On Mary McCarthy and Leaks

Following my regular tradition of waiting until a story has been developing for days before even mentioning it, this is my Mary McCarthy post. It may be my only Mary McCarthy post -- unless I can come up with a new angle, I probably won't want to rehash the work already done by other bloggers with more time on their hands, and less devotion to photoshopping Mr. Potato Head.

Allah has a useful summary of the story here.

Here's my summary of the summary: Mary McCarthy just got fired from the CIA for leaking classified information to the press, possibly about alleged "black" prisons in Eastern Europe. The angle taken by the right wing blogs is that if she were a Republican leaking information damaging to Democrats (a la Scooter Libby) the media would be going berserk, but as it is, they can't even muster the energy to mention her thousands of dollars in contributions to John Kerry.

A separate issue is whether she leaked at all. The righties seem convinced she did, but apparently she denies it. I'll reserve judgment, as I lack the information to form a responsible opinion on the matter.

Yet another separate issue is whether -- assuming she's the leaker -- she has a right to leak without fear of repercussions. From what I've seen, the Lefties defend the leak on the grounds that Bush's war is immoral, and therefore McCarthy has a duty to expose the truth and thus provide the impetus to hold a bad man accountable for his crimes (never mind that no evidence of the "black" prisons has ever been discovered, even after numerous investigations by said Eastern European countries). The Righties point out the Lefty double-standard in attacking Scooter Libby for leaking Plame's identity, while defending McCarthy's leak.

An off-shoot of that last issue is the one I want to address in more detail. The issue is, does McCarthy have a Constitutional right to leak, under the First Amendment?

A similar question was asked -- and, in my view, correctly answered -- in an American case called Snepp v. United States, 444 U.S. 507 (1980). Snepp was a CIA officer who published a book about his experiences in Vietnam. When he joined the CIA, he signed a contract in which he promised to seek pre-publication review of anything he might later want to publish, but he failed to seek such review for his book, Decent Interval. The Supreme Court sided with the government, holding that "the CIA could ... impos[e] reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment." In the Snepp case, the remedy was that the government was entitled to every cent of profit made from the sale of the book -- that had to sting. [Incidentally, a British Court came to the same conclusion in a similar case].

So the rule is that the CIA can impose "reasonable restrictions." Does that apply here? Certainly the CIA has a vested and defensible interest in protecting secrets, especially when the exposure of those secrets can do serious damage to its foreign policy with important allies, such as Poland (which contributed ground troops to the Iraq invasion, in spite of public pressure from a vocal segment of the population). In my view, it is reasonable to punish the leak of information that sets up Poland as a terrorist target, that lowers the U.S. in the eyes of the world while America is trying to win hearts and minds, or that undermines a President's ability to conduct foreign policy, pursuant to his Constitutionally-protected powers. Yes, such a restriction is reasonable.

So the next question is whether Snepp was rightly decided in the first place. The First Amendment is rightly considered the foundation of all our Constitutional rights. Should it yield in this case?

Without a doubt it should. And that is not because the government should have the power to abrogate Constitutional clauses as it sees fit, but because citizens have the right to waive their rights. Anyone who has ever seen a cop movie knows two important things about Constitutional law: (1) you have the right to remain silent; and (2) you can waive that right. The criminal usually does, incidentally. The fact is, we all have all kinds of rights that we waive all the time, as a matter of course. I have the right to patronize a strip club, but I don't exercise that right. I have the right to drink alcohol, to own a gun, to waive pickets on the D.C. mall. Millions of Americans waive their right to vote every four years. I have the right to set up a printing press, and I've never done that. I have the right to keep British soldiers out of my house, but I also have the right to invite British soldiers in if I want. I can keep a cop from searching my car, or I can give him permission.

I also have the right to apply for a job with the CIA, and if they hire me, they will give me a piece of paper that will say "By signing here I promise I won't leak classified information to the press just because I want to dick over the President." Or words to that effect.

And then I have a choice: I can either exercise my right to gainful employment by accepting the terms of the job, and waive certain First Amendment rights, or I can retain my First Amendment rights in all their glory, and be denied access to top secret information.

Mary McCarthy, you signed the paper, and you put your integrity on the line. If you choose to abandon that integrity, you have no right to complain about your termination, especially if it's in the context of a partisan, juvenile attack on a popularly-elected President. There are places the First Amendment simply does not reach.