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.

Filed Under: 1st amendment, anuradha bhagwati, cia, defense department, free speech, mark fallon, melvin goodman, odni, pre-publication review, richard immerman, timothy edgar