The case against McCarthy, moreover, is said to involve not just a single illegal disclosure of the Nation's secrets, but several.
One prominent instance is reported to involve alerting the press that the CIA had arrangements with overseas intelligence services for the detention of high-level al Qaeda detainees captured in the war on terror — from whom the culling of intelligence is critical to the safety of Americans.
The so-called "black site" prisons were later publicized by Dana Priest of the Washington Post, jeopardizing not only the detainee intelligence stream but, just as importantly, America's relationship with the cooperating governments — on whom we rely because of our global dearth of intelligence assets, and who are now incentivized to cut-off information exchanges because they believe (with some obvious justification) that our intelligence community is not trustworthy.
As a result of all this, McCarthy was fired, stripped of her security clearance, and escorted from the CIA's premises last Thursday. Yet, she has not been arrested.
More alarmingly, according to government officials who spoke to the Washington Post, she may not even be the subject of a criminal investigation. Indeed, unnamed Justice Department lawyers reportedly told the Times that McCarthy's "termination could mean she would be spared criminal prosecution."
This is hard to fathom. Federal law, specifically, Section 793(d) of Title 18, United States Code, clearly makes it an offense, punishable by up to ten years' imprisonment, for anyone who lawfully has access to national defense information — including information which "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation" — to willfully communicate that information to any person not entitled to have it.
McCarthy had access to classified information about our wartime national defense activities by virtue of her official position at the CIA.
The compromise of that information appears to have been devastating to U.S. intelligence efforts — in wartime, no less. CIA Director Porter Goss testified before the Senate Intelligence Committee in February that the "damage" from leaks "has been very severe to our capabilities to carry out our mission."
The unauthorized disclosures were also, patently, a boon to several foreign nations, which have used it to put immense pressure — under the guise of international law — on countries that heretofore have been willing to run the risk of helping the United States battle terrorists.
In other words, this seems like a straightforward case. The Times suggests that "the C.I.A.'s reliance on the polygraph in Ms. McCarthy's case could make it more difficult for the government to prosecute her."
That seems farfetched. Yes, lie-detector-test results — i.e., the actual findings about whether or not a person was truthful during a polygraph examination — are inadmissible in federal court. But so what? That has nothing to do with the underlying evidence of conduct. Nor should it render problematic any admissions the person makes — including any confession, such as the one McCarthy is reported to have given.
The only way a polygraph could complicate a prosecution would be if McCarthy was given immunity of some kind in exchange for submitting to it. That, however, is highly unlikely. In her sensitive job, McCarthy could no doubt be polygraphed as a condition of her employment — the government should not have needed to trade away any rights to get her to take the test.
Evidence aside, it is essential for policy reasons that this case be prosecuted aggressively. The intelligence community's leaking of information to the media since 9/11 has been breathtaking. The Bush Justice Department's response has not been inspiring.
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I find nothing more current indicating ANY criminal charges were ever filed. I SWEAR ... I JUST WANT TO PUNCH SOMEONE over these constantly overlooked travesties of justice.
This will be overlooked as well. The AG hasn't shown any interest so far in any of the leak cases. Don't look for that to change any time soon. I have sent e-mails to as many talkies as I can asking for them to take up the cause and NOT ONE will do any more than complain about the leaks but never a word about the lack of prosecution. I've given up.
Anyway, as soon as the prosecution tries to charge them with anything their legal team starts requesting access to every classified document they can as part of their defense; they demand to question averyone who could even remotely be called a witness including - especially including- people who are "nocs," people the defense knows full well the government cannot allow to testify because that would be the end of their usefulness as covert agents. If we had real common-sense judges they would deny the defense nonrelevent material, and then a case might proceed if the material he does allow can be declassified safely. But we don't have common-sense judges, we have what Clinton left us. If we had trustworthy defense lawyers we could go ahead and allow more classified info into the court but again, the lawyers we have are internationalists or more loyal to their profession than to the American people, and they would pass on the intel to the press if they thought it was useful.
With the crop of judges we have they will grant access to just about anything the defense lawyers demand no matter how ridiculous, and even if it doesn't really pertain to the defendant's case. A lot of damage could be done, enough to outweigh the justice done.
The government is then forced to choose between the need to prosecute a criminal and the need to prevent its human intel assets in other countries from being exposed and imprisoned or killed, or must choose between prosecution and exposing a very classified project or operation still underway or one that is otherwise crucial to defense.
We tried to nail Agee several times but each time he pulled the "doc dump defense" and because our judiciary is compromised he was allowed to get away with it.
Of course, he twists this to mean that since he wasn't prosecuted the gov has nothing on him, and says the gov won't go after him because their "criminal" actions against him would be exposed. Nothing could be further from the truth- its just that other people could be harmed if the government presented everything his lawyers demand.
The only time you can prosecute without this risk is if enough time has passed that there are no longer human assets or operations that could be adversely affected by being exposed. It may be years before that happens. Or the defendant may be prosecutable because he was so low on the totem pole that there isn't anything his lawyers could demand that isn't worth calling them on and then prosecuting.
Unfortunately, the higher the person was in rank and access and the more damaging the leaks- means they are the ones most likely to successfully pull off a doc dump defense.
Mary McCarthy by virtue of her high position and job description can demand a huge volume of information for her defense and can demand to have a lot of people we would prefer not to expose put on the witness stand. Prosecuting her would require us to expose these people and an awful lot of info and it's doubtful prosecuting her [for now at least] would be worth the damage that the legal case would do to national security.
If they could find some unrelated crime on her part to go after her with it would be worth pressing her for that in order to indirectly punish her for her on-the-job crimes, but she was probably not out doing drugs or mugging nuns. Perhapos in time, if no statute of limitations can kick in, she may be prosecutable, but during a war I doubt the opening will come any time soon.
There is nothing that has confused and befuddled me more that the weakness of the current Justice Department. It has caused me to seriously question just about everything about AJ Gonzales.
And speaking of punching someone, I want to punch the next politician or pundit who intones "We are a nation of laws" when we clearly are not when it comes to the powerful and the connected who get a pass, even for stealing or passing on national secrets. The law only applies to some of us.