The Question Before The Court
We know (don’t we?) that current CIA employees cannot legally leak classified information…what about ex-CIA? The question has relevance, because some, including…ahem…myself, have suggested that whistleblowers like Mary McCarthy should quit their positions prior to talking to the press if their conscience forces them to take action against something they see as morally objectionable.
Common sense would say that it would remain illegal (thus kind of demolishing my own argument – remind me again of why I’m posting this?), but I prefer to see things in black in white than to take them for granted. A cursory bit of searching on my part did not give an explicit answer, but several things do seem clear, based on summarys of several court cases (United States vs. Snepp (also here), United States vs. Marchetti, and other cases cited in the Final Report of the Select Committee To Study Government Operations With Respect to Intelligence Activities (i.e,. the Church Report)).
First, we know that the CIA has to vet published works from ex-CIA; what I’m concerned with, however, is whether there are explicit rules or laws governing ex-CIA in talking to the press about classified information, not publishing it themselves. The sources I’ve found thus far seem a bit murky on this, but from what I gather (and as you would expect), CIA employees sign a Secrecy Agreement upon winning employement with the agency.
It also appears that there is a Termination Secrecy Agreement that CIA personnel are asked to sign upon leaving the agency. The Snepp case is particularly helpful on this score:
As an express condition of his employment with the CIA in 1968…Snepp had [444 U.S. 507, 508] executed an agreement promising that he would “not . . . publish . . . any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the Agency.” App. to Pet. for Cert. in No. 78-1871, p. 59a. The promise was an integral part of Snepp’s concurrent undertaking “not to disclose any classified information relating to the Agency without proper authorization.” Id., at 58a. 1 Thus, Snepp had pledged not to divulge classified information and not to publish any information without prepublication clearance…
…Upon the eve of his departure from the Agency in 1976, Snepp also executed a “termination secrecy agreement.” That document reaffirmed his obligation “never” to reveal “any classified information, or any information concerning intelligence or CIA that has not been made public by CIA . . . without the express written consent of the Director of Central Intelligence or his representative.”
Presumably, if someone declined to sign this, one could be denied the benefits of one’s service, such as any pension benefits, retirement pay, or continuing health care coverage.
It would appear, then, that I am most likely mistaken in my prior assumption that quitting one’s job frees one up to talk about the matters, such as secret CIA prisons, that were troubling one to begin with. In other words, Mary McCarthy may (probably, even) would have been just as much a criminal if she had quit her job before going to the press.
I welcome any additional information if anyone comes across it…
Comrades,
I know that when I left the military I had to sign an agreement that forbid me from discussing any classified information for a period of at least 10 years. Additionally, there were quite a few countries that I was prohibited from travelling to for the same period of time.
My security clearance was high-level, and my job entailed analysis of intelligence. My crew was also trained to deliver nuclear ordnance (as were all the others in the wing). However, other individuals with lower-level clearances also had the same restrictions upon leaving the service, so that it seems that any level of security clearance would trigger such safeguards.
I have no problem with any type of restrictions. Just because someone doesn’t work with classified information doesn’t mean that the information is no longer classified. It is not up to the individual to determine classification, and what should or should not be released.
If someone wishes to divulge classified information, then they should be held accountable for their actions, regardless of their motives. Just because you have a clearance doesn’t mean you have access to ALL the data. It means that you get access to the data that falls within your classification level and for which you have a need to know.
Thus, someone leaking classified information may only know part of the whole situation, and, when that information is put into context may show a completely different picture than what the leaker first thought.
Kind of confusing, but it’s still early….. need more black joe…
Respects,
Gwedd
Gwedd is exactly right. The employee’s employment status doesn’t change the nature of the information, and whether it’s classified or not. I’m not entirely sure on the specifics here at DoD, but I feel pretty confident in saying that a person, retired or not, would still be liable for disclosure of information that he or she knew to be classified.
[...] Addendum: Now I am thinking this could be shady reporting. The quotes in the article above from McGovern are in this AP article from the same period. Still, I would wonder about the claim the VIPS gave the intel to the IAEA – given this article also calls on the CIA to leak. And check out Mark Coffey’s analysis on the legality of ex-CIA discussions with the press. Fascinating. [...]
In looking at the statutes governing classified information and its disclosure, I do not find anything that distinguishes the cupability of disclosure based on current or retired employment status.
I would think that the “resignation” option would simply give the resigning officer the right to go to Congress and explain they had resigned as a matter of conscience over matters that were classified, and request an appropriate (i.e. appropriately cleared) forum to air their grievances. Publicly, all they could do unless and until Congress legally made all or some part of the information in question publicly available, would be to state they resigned as a matter of conscience and that they have sought to discuss the matter with Congress. That’s certainly enough for people to know something’s up and to start looking into policies, without disclosing classified information.
That serves the legitimate function of providing accountablity without the compromise of classified information.
Mapping McCarthy, continued
Even as National Democrats are making noises about instituting impeachment proceedings against President Bush (and perhaps even VP Cheney), and more former intel personnel spin their CYA stories for a (thus far) compliant and helpful media (on "60…