Tuesday, April 25, 2006

Fired CIA Officer—Developments

The conventional wisdom regarding the firing of Mary McCarthy from the CIA was that the information she leaked had to do with the CIA’s “Black Sites.” That conventional wisdom, however, may be turned on its head as her lawyer and former colleagues have announced that she was not the source for Dana Priest’s Washington Post story.[1] For her part, Ms. Priest has neither confirmed nor denied that Ms. McCarthy was the source, and a former CIA officer, Larry C. Johnson, mentioned at the time of the firing, that it “smell[ed] a little fishy” because Ms. McCarthy “never worked on the Operations side of the house. In other words, she never worked a job where she would have had first hand operational knowledge about secret prisons. She worked the analytical side of the CIA and served with the National Intelligence Council. … That is a type of academic/policy wonk position and, again, would not put her in a position to know anything first hand about secret prisons.”[2]

At this point, it is unclear exactly what precipitated the firing, but “a U.S. official” told CNN that “it’s not just about one story, it’s a pattern of activity,”[3] and “a senior intelligence official said the agency is not asserting that [Ms.] McCarthy was a key source of [Ms.] Priest’s award-winning articles last year disclosing the agency’s secret prison.”[4] It may be that the precipitating cause for the dismissal was her “undisclosed contact with journalists, including [Ms.] Priest, in violation of a security agreement.”[5] When a person works for the CIA, they are required to sign certain forms that prohibit them from disclosing certain information. For example, in CIA Secrecy Agreement, Form 368, “the signer agrees to submit for review any material that ‘I contemplate disclosing publicly or that I have actually prepared for public disclosure, either during my employment … or at any time thereafter, prior to discussing it or showing it to anyone who is not authorized to have access. … I further agree that I will not take any steps toward public disclosure until I have received written permission to do so from the Central Intelligence Agency.”[6] Thus, in the absence of a criminal prosecution for a violation of the Espionage Act of 1917, Ms. McCarthy’s case could simply end in a contract violation dispute. At this point, the CIA has not “formally asked the Justice Department to look into charges against McCarthy, a law enforcement official said on condition of anonymity because the matter is sensitive.”[7]

One further aspect of her dismissal that should be addressed is the notion, as Stephen Kohn—the chairman of the National Whistleblower Center—puts it, that “If she was blowing the whistle on something that’s illegal, it’s our position you cannot classify the illegal conduct of government. You can’t say that’s a secret.”[8] That certainly seems logical. After all, in 1966, the Freedom of Information Act created a framework through which stored information could be obtained.[9] And Supreme Court Justice Louis Brandeis said, in 1914, that “sunshine is the best of disinfectants.”[10] But is it a completely accurate claim, that illegal activity cannot be classified? In fact, it is. On March 25, 2003, President Bush signed Executive Order No. 13292 which “prescribes a uniform system for classifying, safeguarding, and declassifying national security information.”[11] In this executive order, it was made clear that “in no case shall information be classified in order to … conceal violations of law, inefficiency, or administrative error.”[12]


[1] Katherine Shrader, , Associated Press, Apr. 25, 2006; see also Mark Hosenball et al., , Newsweek (via MSNBC.com), Apr. 24, 2006.
[2] Larry C. Johnson, , No Quarter, Apr. 22, 2006.
[3] David Ensor, CNN.com, Apr. 24, 2006.
[4] R. Jeffrey Smith, et al., , Wash. Post, Apr. 25, 2006.
[5] Id.
[6] See John Hollister Hedley, , Studies in Intelligence, Spring 1998.
[7] Shrader, supra note 1.
[8] Id.
[9] See , The National Security Archive, last visited Apr. 25, 2006.
[10] William J. Clinton, , US Embassy in Israel, May 18, 1998 (quoting Brandeis, J.).
[11] , 68 Fed. Reg. 15,315 (Mar. 28, 2003).
[12] .

posted by McNabb Associates, P.C. @ 11:15 AM