Former Intelligence Officials Sue The Government Over Its Unconstitutional Pre-Publication Review Process

from the if-nothing-else,-the-Supreme-Court-takes-a-dim-view-of-prior-restraint dept

A handful of former intelligence officials are suing the US government for engaging in prior restraint. It’s a novel take on a First Amendment issue — one that involves a vetting process for books, articles, and op-eds written by these officials containing details of their work in the CIA, Defense Department, and the Office of the Director of National Intelligence.

While the government obviously has some right to ensure classified or sensitive info isn’t leaked in post-career memoirs, the plaintiffs argue the vetting process has no guidelines and no firm timetable, which has resulted in planned publications being held up for years with zero explanation. Charlie Savage has more details at the New York Times.

The plaintiffs include Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former C.I.A. employee; Anuradha Bhagwati, a former Marine; and Mark Fallon, a former counterterrorism agent at the Naval Criminal Investigative Service.

Mr. Fallon, who retired in 2010, said that he had trouble getting the manuscript for his book, “Unjustifiable Means: The Inside Story of How the C.I.A., Pentagon, and U.S. Government Conspired to Torture,” cleared for publication.

His plan, he said, had been to publish it at the start of the Trump administration. But the government farmed out his book to numerous agencies, and the review process delayed publication more than eight months, to the fall of 2017, disrupting promotional plans.

In Fallon’s case, the government demanded redactions of material that had already made its way out to the public domain via congressional hearings and news articles. It wanted 113 pages removed completely, even though the subject matter was already subject of open discussions in Washington, DC.

The redaction process is a mess, according to the lawsuit. Books get shuffled from agency to agency, resulting in a patchwork of internally-inconsistent redaction demands that guts entire sections of the authors’ manuscripts. The end result of this process is an obvious negative effect on the free speech of these former officials. The lawsuit [PDF] claims authors have engaged in self-censorship, lost book contracts, and otherwise avoided participating in speech they feel should be protected.

Mr. Fallon’s experiences with prepublication review continue to negatively impact him and deny him the opportunity to contribute to the public debate over breaking news. He would like to publish op-eds in newspapers about current affairs, but his experiences with the review process have discouraged him from trying to do so because of potential delays and unjustified objections by the agency. Mr. Fallon has declined offers to author op-eds and write articles on topics of public concern in response to breaking news because such events require an immediate response in light of the ever-changing news cycle. In addition, Mr. Fallon is unsure how his prepublication review obligations apply in academia—for example, whether he must submit for review edits he makes to the work of other people, or whether an entire piece written by someone else becomes subject to review if he adds one or two sentences. This uncertainty hinders Mr. Fallon’s work and his ability to engage with his colleagues.

That’s just Fallon’s experience. Others echo the same complaints. Most point out the redactions demanded by government agencies include public domain information and seem to be made with the point of protecting agencies from embarrassment, rather than protecting the nation from unintentional leaks of sensitive info.

The plaintiffs are asking the court to find the process unconstitutional, given its incursion on their free speech rights.

Defendants’ prepublication review regimes violate the First Amendment because they invest executive officers with sweeping discretion to suppress speech and fail to include procedural safeguards designed to avoid the dangers of a censorship system.

Defendants’ prepublication review regimes are void for vagueness under the First and Fifth Amendments because they fail to provide former government employees with fair notice of what they must submit for prepublication review and of what they can and cannot publish, and because they invite arbitrary and discriminatory enforcement.

It will be a tough fight. The government likes to engage in opacity and avoid embarrassment. Both of these are key factors in its vague, lengthy pre-publication review process. It won’t want to give those up and it will have ton of national security arguments to make on its own behalf — few of which tend to get challenged by federal courts.

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Comments on “Former Intelligence Officials Sue The Government Over Its Unconstitutional Pre-Publication Review Process”

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Bamboo Harvester (profile) says:

I doubt this will go far...

Giving up the right to publish "memoirs", revealing classified materials, etc. are part of the job, it’s one of the many things you agree to, under contract, when hired for ANY position requiring a Clearance. IIRC, it’s also part of the National Security Act, the US version of Britain’s Official Secrets Act.

You won’t get anyone working for the DIA or any intelligence agency to comment on the documents Snowden released, as they’ve never been officially de-classified. Any who do so stand to lose their jobs, pensions, and face possible fines and jail times as well.

I’m sure blue and at least two of the brain challenged AC’s will start screaming that the contract restrictions are illegal. Of course, they won’t have any suggestions on how the government can keep secrets if contracts don’t work, they’ll yell the government shouldn’t have any secrets.

Maybe it’s a generational thing. I honor my word, I READ contracts in full before I sign them, and I do NOT sign them if I disagree with any clause or feel that they’re "illegal". If someone tells me something in confidence, I NEVER repeat it – to anyone.

The people filing the suit are simply pissed that they missed making MORE money not being able to release when they wanted to.

If you can’t abide the terms of an Employment Contract, DON’T TAKE THE JOB.

Bamboo Harvester (profile) says:

Re: Re: I doubt this will go far...

Their contract specifically requires vetting by the relevant agencies.

Until a Classified item is De-Classified, nobody holding a Clearance can talk about it – even if it’s on the front page of the Times.

This suit isn’t about ANY of that. It’s about people trying to break the Contract they agreed to in order to get their (former) job. To make money from what they learned at that job.

That One Guy (profile) says:

Re: Re: Re: (Fictional) ostrichs' ain't got nothing on them

Until a Classified item is De-Classified, nobody holding a Clearance can talk about it – even if it’s on the front page of the Times.

Which is an idea that’s not just kinda stupid, but incredibly so. Pretending that something that’s been made public hasn’t does not magically stuff it back into the bag ‘o secrets, and no amount of wishful thinking on their part backed up by stupid rules will make it so. All that does is allow the public, which isn’t gagged by boneheaded rules enforcing willful blindness/muteness to control the narrative and dig through/speculate on their own, leaving the people most knowledgeable on the subject to just sit on the sidelines and look on.

Anonymous Coward says:

Re: I doubt this will go far...

While nice, none of that is particularly relevant to this legal challenge. The government does not remove their right to publish memoirs (or anything else) in the contract, but rather, requires that they allow government review of it prior to publication. Since the government is reviewing their work, rather than prohibiting it entirely, separate first amendment issues crop up. That is, if the government is going to censor anything, it must do so in a way which is specifically tailored to achieve its goals and, even more importantly, is viewpoint neutral. The government is not allowed to do otherwise, nor to be party to a contract which states that the government can do otherwise, regardless of whether the other party wants to let them do so. Thus, the issue is not whether they have given up rights to publish in contracts, but whether the rights that they specifically did not give up are being violated.

The lawsuit alleges that…submission requirements and review standards are vague, overbroad, and leave former employees uncertain or unaware of their obligations…. Agencies’ censorial decisions are often arbitrary, unexplained, and influenced by authors’s viewpoints. And favored officials are sometimes afforded special treatment, with their manuscripts fast-tracked and reviewed more sympathetically.

That is, the lawsuit alleges two things which would make the implementation of the review process illegal (as distinct from making the idea of reviewing in general illegal). First, that the review process is not governed by clear guidelines narrowly tailored to prevent release of classified information. Second, that the review process is not viewpoint neutral, and is actively being used to favor certain political viewpoints. Both of these things make the implementation of the review process illegal, but have nothing whatsoever to do with the contract itself.

Even ignoring the government side of things though, it would not be obvious to a signatory of the contract that the review process they agreed to has these characteristics (remember, if the contract did claim either of these things then the government would be legally barred from signing the contract to begin with). Thus, claiming that they should have read the contract more carefully is simply wrong, no amount of reading of the contract could have revealed that the government was going to use the review process to undermine certain political opinions and promote others.

Now, whether these allegations have any merit is a separate issue.

Bamboo Harvester (profile) says:

Re: Re: I doubt this will go far...

"no amount of reading of the contract could have revealed that the government was going to use the review process to undermine certain political opinions and promote others."

Seriously? EVERYTHING a Government does is political, by definition.

There’s a pile of language in the paperwork for a Clearance regarding exposing through publishing without permission.

Not vetting, explicit permission.

I’m jaded about this kind of nonsense. My suspicion, based solely on the above article, is that they’re simply bent out of shape that they couldn’t release another "tell all" book about trump eating cheese burgers in bed or paying Russian hookers to urinate on him, or whatever claims they wanted to make that specifically could not be denied or confirmed BECAUSE they’d had Clearances.

Tens, if not hundreds of thousands of people have signed those same contracts and documents without a court challenge when they retired.

Mike Masnick (profile) says:

Re: Re: Re: I doubt this will go far...

Seriously? EVERYTHING a Government does is political, by definition.

Uh, no, it’s not. Politics involves elected officials and political appointees. Every other government employee is not supposed to be political.

There’s a pile of language in the paperwork for a Clearance regarding exposing through publishing without permission.

And, as the lawsuit makes clear, it’s possible that that paperwork, and the way it is used, is unconstitutional under the 1st Amendment. Not sure why you’re having trouble understanding that.

The government is not allowed to engage in certain forms of contracts. This lawsuit is alleging that these contracts cross the line. You can’t just dismiss it by saying "but it’s a contract" because that’s ignoring what the lawsuit argues.

I don’t know if the lawsuit will go very far or if it has merit, but your argument is misrepresenting what it’s about.

Anonymous Coward says:

Re: I doubt this will go far...

I think even more to the point is that the complaint is not that the publications must be reviewed but that the agencies have used delaying and over-redacting to retaliate against the authors for perceived slights against the agency/ies in question.

Delaying, redacting or editing for classified purposes = okay; delaying, redacting or editing for retaliatory purposes = not okay.

Good luck trying the prove the second type, though, given the court’s deference to agency’s use of national security as a defense.

Thad (profile) says:

Re: Next step

Leaving aside that intentionally doing an end run around the government’s process for clearing a book (ostensibly based on protecting state secrets) is a great way to get harassed, sued, or possibly criminally prosecuted, you get that the US market is kind of important if you want to sell a book about the actions of the US government, yes?

Anonymous Coward says:

USA v. "Ishmael Jones"

See: USA v. "Ishmael Jones"

The ruling marked the first time a judge has used summary judgment to rule in favor of the CIA, as plaintiff, in a censorship case.

[For Jones] MR. MILLS: You can open this book to any page in the book and you can’t find anything that’s remotely classified…

THE COURT: How would I know that? How would I know what’s classified and what’s not? How would the jury know that?

MR. MILLS: Because it’s obvious from the context of the book. He’s talking about an excursion he has to a bar in Bangkok with a friend of his. There’s
nothing remotely classified about it…

THE COURT: I understand what you just said, but as a judge who has had cases involving classified information, I’m sure you realize that there is the issue of classified documents. And then there’s also the issue of revealing means and methods of intelligence gathering. Are you familiar with that doctrine as well?

MR. MILLS: I am, Your Honor.

THE COURT: So, would you agree that a covert agent who has contacts with an operative in a foreign country revealing his or her identity and the identity of others that they’re interacting with in a covert intelligence gathering operation might expose that individual’s family, not the agent, but the person that they’re dealing with to some personal risk? Would you agree with that?

That One Guy (profile) says:

Re: Less 'check and balance', more 'rubber stamp'

… what. I’ve got to be misreading that, because it sounds like the judge is arguing that ‘going out with a friend to get drinks’ is some super-secret ‘method of intelligence gathering’ that needs to be protected, along with the idea that whether or not something is classified matters less than whether it might be.

Bloody hell are some judges spineless the second someone utters the magic words ‘national security’.

Bamboo Harvester (profile) says:

Re: Re: Less 'check and balance', more 'rubber stamp'

No, the Judge HAD Clearances, and knew what was involved in disclosure.

You work for the CIA. You retire and write a book. It’s NOT vetted, and you end up like "Ishmael" in court.

The Judges hasn’t been read in on all your operations. The Jury most certainly hasn’t.

How can you PROVE that the entire book isn’t disclosing Classified information to people who aren’t allowed to KNOW if it is or not?

Worse yet, you mention ME by name in the book. We WERE just having a drink at the end of the day. First off, I don’t want to be stabbed with a sharp umbrella. Secondly, I don’t want Agency personnel following me around, tapping my phones, and harassing everyone I know because you MAY have given me classified material at that bar, over that drink, which you just publicized to the entire world.

There are VERY good reasons to disallow people with access to Classified materials from publishing books AT ALL.

Since the Vetting is required, the people doing the vetting will see my name in your book, pull the files for whatever you were doing at the time, see that I wasn’t involved other than as someone having a drink with you. And when your book is published, anyone reading it will know that as well. So you haven’t endangered ME.

Hell, just saying we had a drink in a bar in Karachi or the South Bronx in a given year will have people wondering WHY we were in either of those places.

Anonymous Coward says:

But the government farmed out his book to numerous agencies, and the review process delayed publication more than eight months, to the fall of 2017, disrupting promotional plans.

I see we are going to have to extend copyright again so this author can make some money.

What do you make of former intelligence officials who think this is not a waste of government time or taxpayer money? It is almost like they have inside information and realize their former departments have nothing better to do without this lawsuit.

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