April 25, 2006, 12:21 p.m.
If Mary McCarthy is Guilty, Will She Be Punished?
There’s a real chance the answer is no.

A bill set to go to the floor in the House tomorrow could make it easier for the nation’s intelligence agencies to punish leakers without relying on the criminal justice system to prosecute them.

The Intelligence Authorization Act of 2007, a far-reaching measure that outlines the intelligence community’s top priorities, contains a section ordering the Director of National Intelligence to study “the feasibility of revoking the pensions of personnel in the intelligence community who commit unauthorized disclosures of classified information.”

Although the bill was drafted long before the CIA’s dismissal of analyst Mary McCarthy, lawmakers say the McCarthy case adds urgency to the issue of punishing leakers. Specifically, some members of Congress are concerned that, even if McCarthy is guilty of leaking classified information, the government will have no effective way to punish her.

Last week, the CIA fired an officer — identified by others as McCarthy — who had, according to a CIA statement, admitted to “unauthorized discussions with the media in which the officer knowingly and willfully shared classified intelligence, including operational information.” McCarthy denies the allegation; her lawyer, Ty Cobb, tells National Review Online flatly that, “She did not leak any classified information.”

The obvious way for the government to pursue the case would be for the Justice Department to prosecute. But it is not clear whether the Department, which has spent two and a half years probing the leak of CIA employee Valerie Plame Wilson’s identity, will undertake such an investigation. CIA officials notified the Department of the McCarthy situation back in January, but there is speculation that, since the firing of McCarthy rested in large part on her failure of a CIA-administered polygraph test — evidence that would not be admissible in court — the Justice Department might ultimately decide not to take action against her.

The other way in which McCarthy, a longtime government employee, might be punished would be for her pension to be revoked. But it appears that will not happen either, at least in the absence of any criminal prosecution.

The CIA refuses to comment on McCarthy, but the Washington Post reported today that a senior intelligence official “confirmed that McCarthy was preparing to retire and said she will retain her government pension despite the agency’s decision.”

If the Justice Department does not prosecute, and if McCarthy’s pension is unaffected, and if her firing means that she left her job just days before she planned to go anyway — in that case, McCarthy, if she is indeed guilty, will likely escape any serious punishment.

“People retire, so the threat of being fired is not that big,” says Republican Rep. Mac Thornberry, who has studied the issue as a member of the House Intelligence Committee. “But if you have an administrative penalty that threatens their pension, maybe that will get their attention.”

The House Intelligence Committee’s action stems in part from a letter written to both the House and Senate intelligence committees by Speaker Dennis Hastert and Senate Majority Leader Bill Frist on November 4, 2005, two days after the Washington Post published the CIA “secret prisons” story for which McCarthy was allegedly a source. “We request that you immediately initiate a joint investigation into the possible release of classified information to the media alleging that the United States government may be detaining and interrogating terrorists at undisclosed locations abroad,” the letter said.

The Senate Intelligence Committee did not take action on the request, but the House committee, under chairman Pete Hoekstra, did. It does not appear that the committee investigated the actual leak in the secret prisons matter, but rather looked for ways in which intelligence agencies could more effectively deal with leakers. In doing so, they studied what Thornberry calls “administrative remedies that are easier to apply than criminal penalties.”

“One of the suggestions that has been made to us is, you could have a contractural provision that says you are not going to release classified information as part of your employment contract,” Thornberry continues. In that case, in dealing with a leaker, intelligence agencies would have “more of an administrative, contractural case to prove, rather than a beyond-reasonable-doubt criminal standard.”

The intelligence bill orders the Director of National Intelligence to have a report on the issue ready within 90 days of the law’s passage.

— Byron York, NR’s White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.

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