Sunday, April 23, 2006

I think that Mary McCarthy did the right thing when she told Dana Priest about the secret CIA prison system and that the CIA did the right thing when it fired Mary McCarthy. Finally I think the Pulitzer committee did the right thing when it awarded Priest a Pulitzer prize.

[see update, recantation and flip flop below]

Now firing is not the worst possible punishment, but it is very painful and costly to McCarthy. How can I think that someone should be fired for doing the right thing ? I agree with the action of revealing this particular secret, because I think that, in this case, it is necessary for the public to know what is being done in our name for us to recognise the threats to our principles. However, allowing the act to go un punished amounts to official sanction and establishes a precedent. I think that breaking the rules when there is a compelling reason to do so is right, but that establishing a new rule that the rules can be broken if it serves the public interest implies establishing a rule that the rules can be broken if a plausible case can be made that the public interest was served. This would lead either to an end of secrecy, which would be costly, or more likely, a crackdown which would involve arbitrary punishment.

Now the current law protects whistle blowers, that is, the classification system can not be used to hide crimes and people can not be punished for revealing crimes. However, as far as I know, the establishment of the secret prison system did not violate US law (torture of prisoners in the system certainly does violate US law). The system violated European Union law, but the CIA violates foreign laws all the time and we want it that way. Thus according to current law and rules, McCarthy should be fired (and can be prosecuted).

The different consequences of breaking the rules and allowing a known rule breaker to go un punished makes it possible that it is good to punish a good action. It is unpleasant but not logically inconsistent.

Also, since journalists should report newsworthy truths without considering whether it is good for us to know such truths, Priest's action was not only socially useful, but typical of socially desirable conduct by journalists. Thus I see no contradiction in thinking she should be rewarded while her partner in truth telling should be punished.

I do think that, if the prize has a monetary component, she should help McCarthy out with her new private sector retirement plan. I'd be willing to chip in a bit myself, since hope in disintrested actions by strangers has never led anyone into a life of crime.

Update: I now think I was wrong when I thought the CIA did the right thing when it fired McCarthy. The key issue related to Federal government firing policy is whether the activities she revealed were criminal. If so, she is a whistle blower and should nto be fired. Glenn Greenwald explains that they were (and are) criminal. One key point is that McCarthy revealed torture, which was clearly against US law, and in particular the international convention against torture )which has been ratified by the Senate and is the law of the land). The Bush administration made a plainly absurd argument that the ratification added nothing to the restrictions in the US Constitution (which only applies inside the USA) but an argument presented by the allegedly guilty party does not make a crime other than a crime unless and until it is accepted by a judge.

The passage in the article (which I forgot as it wasn't news to me) was "et CIA interrogators in the overseas sites are permitted to use the CIA's approved "Enhanced Interrogation Techniques," some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as "waterboarding,""

Furthermore secret prisons are themselves forbidden by the Geneva conventions (also the law of the land) and captured people can be declared illigitimate combatants not covered by the conventions only after a hearing (none of which have been completed so far). Thus holding captured people in secret prisons inside or outside of the US is a crime under US ratified treaties which the Constitution clearly states have the force of law.

Finally the fact that the US held people in secret prisons was not, itself, really secret. The capture of, for example, Khalid Sheik Mohammad was made extremely public. His location was never described and was clearly not Guantanamo, therefore it was tacitly made clear that he was being held in a secret prison. To me, McCarthy's leak was barely a leak (since was already sure of the content).

The point is that she clearly denounced criminal actions. The fact that the President is one of the criminals does not change her whistle blower status, and she should not be fired.

I repeat my offer to chip in a bit (not much sorry I'm stingy) for her retirement (see also Mark Kleiman). I also think she should sue demanding her job back. I'd say there are a fair number of judges who would be willing to express a binding view on who is guilty here.

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