Edgar v. Haines https://knightcolumbia.org/cases/edgar-v-haines In house <![CDATA[How the Biden Administration and Congress Can Fix Prepublication Review: A Roadmap for Reform]]> https://knightcolumbia.org/content/how-the-biden-administration-and-congress-can-fix-prepublication-review-a-roadmap-for-reform U.S. intelligence agencies prohibit their former employees from writing or speaking about their government service without first obtaining government approval. The system, established after the Second World War to prevent the inadvertent disclosure of national security secrets, was initially modest in scope, but over a period of decades it has metastasized. Today, every intelligence agency imposes a lifetime prepublication review requirement on at least some of its former employees. Many agencies impose prepublication review obligations without regard to whether the covered employees ever had access to sensitive information, and without regard to how long ago those employees left government service. Submission requirements and review standards are vague, confusing, and overbroad. In the absence of concrete deadlines, manuscript review frequently takes weeks or even months, which means that books, articles, and blog posts cleared for publication are published long after the debates they seek to engage have subsided. Agencies’ censorial decisions are often arbitrary, unexplained, unrelated to national security concerns, or influenced by authors’ viewpoints. 

The dysfunction of the prepublication review system has far-reaching effects, as the dispute over former National Security Advisor John Bolton’s book highlighted—and as the Knight Institute and ACLU argue in Edgar v. Haines, a petition for certiorari now pending before the Supreme Court. Most significantly, the system impoverishes public discourse about foreign policy, national security, and war. Former intelligence agency employees often have unique insight into the operations and policies of the agencies for which they worked. Because their manuscripts draw on their personal knowledge and experience of government, their voices are not fungible or replaceable. The prepublication review system, at least in its current form, deprives the public of information and insight that is important to its ability to understand government policy, advocate for change, and hold government officials accountable for their decisions.

The system is in dire need of reform, but what would reform look like? Professors Jack Goldsmith and Oona Hathaway sketched some ideas in a series of blog posts and op-eds published several years ago. Perhaps inspired by their suggestions, the House and Senate intelligence committees instructed the director of national intelligence in May 2017 to prepare a new prepublication review policy by October 2018 that would apply to all intelligence agencies and “yield timely, reasoned, and impartial decisions that are subject to appeal.” The new policy, the intelligence committees said, should require each intelligence agency to develop and maintain its own prepublication review policy identifying the individuals whose work is subject to prepublication review; providing guidance on the types of information that must be submitted for review; mandating timely responses; establishing a “prompt and transparent” appeals process; supplying guidelines for the assertion of “interagency equities”; and summarizing the measures agencies may take to enforce their policies. 

All of this was promising. Implementation of the intelligence committees’ instructions might not have addressed all of the prepublication review system’s problems, but it would have addressed many of them. Three years after the committees’ deadline, however, no new policy has been produced, and there is no evidence that one is forthcoming. Perhaps there is more going on behind the scenes, but from all appearances the Office of the Director of National Intelligence (ODNI) seems simply to have disregarded the committees’ instructions.

The new administration, and the new Congress, should act more decisively to reform this broken system. As part of a broader effort to strengthen transparency and accountability in the national security sphere, President Joe Biden should issue an executive order that clarifies and narrows submission and review criteria, establishes new procedural safeguards, and mandates transparency about the prepublication review system’s operation. To ensure that future administrations do not backtrack on these reforms, and to impose additional safeguards against arbitrary and politicized decision-making, Congress should reinforce the executive order with legislation. Between them, the executive order and legislation would ensure that the prepublication review system strikes a more defensible balance between the government’s legitimate national security interests, the First Amendment interests of would-be authors, and the First Amendment and larger democratic interest of the public in ensuring that public debate about national security policy is fully informed.

Below, building on the intelligence committees’ instructions, we propose 10 guideposts for reform. 

 

STREAMLINE THE SYSTEM

 

FIRST, the president and Congress should narrow the universe of former employees on whom the intelligence agencies can impose submission obligations. 

One major problem with the current system is that it subjects far too many people to prepublication review obligations. When the system of prepublication review was first established, it applied to only a relatively small number of intelligence agency employees who had had access to the government’s most closely held secrets. Even when President Ronald Reagan briefly extended the system across the nation’s intelligence agencies, he extended it only to employees who had had access to sensitive compartmented information (SCI)—at the time “a very small fraction of Government employees who [had] access to classified information generally,” as former Deputy Assistant Attorney General Richard Willard testified to Congress. (The General Accounting Office reported that 119,000 agency employees had SCI access at the time.) Today, however, many agencies impose lifetime prepublication review obligations even on employees who have never had access to SCI, or even (in some cases) to classified information of any kind. The result is that millions of former government employees—more than 1.5 percent of the U.S. population, according to one estimate—are now subject to some sort of prepublication review requirement.  

The president and Congress should limit the universe of former employees on whom the intelligence agencies may impose prepublication review requirements. Specifically, they should bar agencies from imposing prepublication review requirements on former employees who (i) have not held top-secret (TS)/SCI clearance, or (ii) who left government service more than 10 years ago. 

Limiting the system in these ways would confine prepublication review to the circumstances in which it is most justifiable. It is important to remember that prepublication review has never been an effective safeguard against intentional disclosures of classified information, because those who disclose classified information intentionally do not submit their manuscripts for review. Instead, the narrower interest served by prepublication review is in preventing inadvertent disclosures. That interest is served most directly not by prepublication review, but by threat of administrative, civil, and criminal sanctions for the unauthorized disclosure of classified information. The interests served by prepublication review are narrower still with respect to the two categories of individuals identified above—those who have never held TS/SCI clearance and those who left government service more than a decade ago—because these two categories of individuals are unlikely to possess information whose inadvertent disclosure could cause serious harm. Any residual interest the government has in nonetheless reviewing their draft publications could be served by a system of voluntary submission.

Narrowing the universe of people subject to mandatory prepublication review requirements would have national security benefits too. It would allow reviewers to focus their attention on the manuscripts most likely to contain information whose disclosure would cause real harm. It would also relieve an overburdened system, making prepublication review faster and thereby reducing the likelihood that former employees disregard their obligations. 

SECOND, the president and Congress should limit the kinds of materials agencies can require former employees to submit for review. 

In the current system, submission requirements vary considerably by agency, and they are imposed through a confusing and sometimes conflicting tangle of contracts, regulations, and policies. As a rule, agency submission requirements are vague and overbroad and fail to give former employees fair notice of what they must submit. Many of them use phrases like “relates to,” “pertains to,” and “might be based upon,” which are of uncertain meaning and scope, and which invest reviewers with broad discretion that can easily be abused. 

The CIA’s standard secrecy agreement, for example, requires former agency employees to submit all materials that are “intelligence related.” The regime of the Department of Homeland Security (DHS) obligates former DHS employees to submit all manuscripts “that reference DHS intelligence data or related activities, at any classification level, or … information derived as a result of affiliation with DHS.” Form 4414, the standard form that agency employees must sign in order to be afforded access to SCI, requires the submission of any materials that “contain or purport … to contain any SCI” or that “produce or relate to SCI or that [the individual has] reason to believe are derived from SCI.” Many of the operative terms here are sweeping and elastic. Former agency employees who have asked agencies for guidance about their submission obligations have been given inconsistent responses, when they have been given responses at all. 

The president and Congress should limit the materials subject to prepublication review to manuscripts reasonably likely to contain or be derived from classified information obtained during the course of an individual’s government service. Limiting submission requirements in this way would clarify and narrow former employees’ obligations, align the prepublication review system more closely with the First Amendment, and allow reviewers to focus on the relatively small number of manuscripts likely to contain information whose disclosure would cause real harm. As the House and Senate intelligence committees have recognized, it would also “better incentivize” former employees to comply with their obligations. 

 

ESTABLISH NEW PROCEDURAL SAFEGUARDS

 

THIRD, the president and Congress should strictly limit the time agencies may take to review the manuscripts submitted to them. 

In the current system, former employees who submit manuscripts for review routinely wait weeks or months for a substantive response. The CIA now estimates that its review of book-length manuscripts will take more than a year. Some authors have waited even longer. The long delays deter some former employees from putting pen to paper. When they do write, their manuscripts sometimes do not see the light of day until long after the public debates they seek to engage have subsided. Frequently, the public is denied timely access to information and insight that is important to its ability to understand government policy or hold government decision-makers accountable for their decisions. 

The president and Congress should impose clear deadlines for the completion of manuscript review. As an initial matter, they should establish a schedule of deadlines for review tied primarily to the length of the submission. One reasonable approach might be to require agencies to review manuscripts of less than 1,500 words within three days; manuscripts of 1,500–10,000 words within 14 days; and manuscripts of more than 10,000 words within 30 days. The president and Congress should also establish a channel for expedited review of newsworthy and other works whose publication is time-sensitive—an analog to the “expedited processing” provision of the Freedom of Information Act. 

The president and Congress should also establish clear deadlines for interagency referrals. They should require agencies to make referrals promptly (e.g., within 24 hours for short manuscripts), to notify authors of the agencies to which their manuscripts were referred, and to notify them of the dates on which the referrals were made. They should also strictly limit the time an agency may take to review a manuscript referred to it by another agency. An agency that receives a manuscript through referral should be required to review the referred manuscript within the same period of time it would have been afforded had the manuscript been submitted to it in the first instance. 

The president and Congress should also incentivize agencies to meet these deadlines. They should do this in two ways. They should provide that an agency’s failure to complete a manuscript review within the statutorily prescribed period will preclude the agency from imposing any direct or indirect sanction on the submitter for failing to satisfy her prepublication review obligations. (Direct sanctions would include attempting to impose a constructive trust on the submitter’s book proceeds. Indirect sanctions would include revoking the submitter’s security clearance.) 

Finally, Congress should establish a cause of action that (i) permits a former employee whose manuscript has not been reviewed within the statutorily prescribed deadline to obtain an injunction requiring the agency to complete the review within a period of seven days; and (ii) entitles the former employee to reasonable attorneys’ fees and costs associated with the action. 

FOURTH, the president and Congress should prohibit agencies from exploiting the prepublication review process for ends unrelated to national security. 

Prepublication review obligations are quintessential prior restraints. The argument for their constitutionality turns on the claim that the restraints are necessary to protect national security secrets. Many agencies, however, use the prepublication review process to control and suppress other types of information. Indeed, some agencies expressly claim the authority to censor information unrelated to national security. For example, the DOD permits reviewers to censor any information “requiring protection in the interest of national security or other legitimate governmental interest.” Other agencies, including the National Security Agency and ODNI, fail to specify any limitation on reviewers’ censorship authority at all, effectively giving reviewers a free hand. Even those agencies whose regulatory frameworks seem to contemplate that reviewers’ authority will extend only to national security secrets permit reviewers to censor classified information without regard to whether the submitter learned of the information as a result of her government service. Agencies routinely censor information that submitters learned from newspapers, congressional hearings, and even the agencies’ own websites.

The president and Congress should prohibit agencies from using the prepublication review system to censor anything other than properly classified information that former agency employees learned in the course of government service.   

FIFTH, the president and Congress should require agencies to document the reasons for their censorial decisions.

Currently, agencies are not required to provide authors with reasons for their decisions. The president and Congress should require agencies to provide authors with reasons, to the extent that reasons can be provided in unclassified form, and to document their reasons more fully in classified form. They should require agencies to make the classified record available to any court called on to review the propriety of the agency’s decisions. 

SIXTH, the president and Congress should require agencies to establish an effective administrative appeals process.

Although some agencies currently have appeals processes, they provide no specific timeframes for resolution of appeals. For example, the ODNI states that appeals will be adjudicated “as time and resources allow.” Similarly, the Defense Department informs submitters that appeals will be resolved “as quickly as possible.” In practice, the appeals process is often a source of significant additional delay. Yet a “prompt and transparent” appeals process is essential, as the intelligence committees have recognized. The president and Congress should require agencies to resolve administrative appeals within a period of time equal to the statutorily prescribed time for initial review.  

SEVENTH, the president and Congress should provide for prompt and meaningful judicial review of the agencies’ substantive decisions.

In the current system, agencies effectively have the last word with respect to what gets published. Submitters rarely challenge agency decisions in court because litigation is costly and time-consuming, and because courts almost always defer to agencies’ substantive decisions without assessing whether publication would cause harm or whether the risk of harm outweighs the public interest in disclosure. 

The president and Congress could mitigate the first of these problems by establishing a “reciprocal notice” framework, under which an agency would be obligated to initiate judicial review upon notice from an author that she intends to contest the agency’s substantive decisions. The 2015 USA Freedom Act provides a possible model. Under that statute, if the recipient of a “national security letter” notifies the government that it intends to contest the legitimacy of a nondisclosure order, the government is required to initiate judicial review within 30 days, and the district court is required to “rule expeditiously.” In adapting this model to prepublication review, the president and Congress should set out short, mandatory deadlines for the government to file suit, and Congress should provide deadlines for judicial resolution of authors’ claims. Particularly in cases involving time-sensitive publications, it would be reasonable to require the government to initiate judicial review within five days of receiving an author’s notice, and to require courts to resolve the suits at least as quickly as they would resolve requests for a preliminary injunction. 

To address the second problem identified above, Congress should require that courts reviewing agencies’ substantive decisions independently balance the government’s interest in secrecy with the public’s interest in disclosure. This balancing of interests is constitutionally required. As the Supreme Court has made clear, the question of whether information is properly classified is distinct from the question of whether an injunction against its publication is consistent with the First Amendment.  

 

MANDATE TRANSPARENCY

 

EIGHTH, the president and Congress should require agencies to publish their prepublication review policies. 

Under the current system, former government employees often don’t know what their obligations are because the obligations are imposed through contracts, regulations, or policies that they do not have and that aren’t easily available online. In some cases, these documents aren’t public at all. For example, one CIA regulation relating to prepublication review was made public only after the ACLU and the Knight Institute sued for its release. (A version of the document was already available online, but that version was 11 years old and heavily redacted.) 

The president and Congress should require every agency that imposes prepublication review obligations on former employees to publish the contracts, regulations, and policies that impose or interpret the obligations. Building on the intelligence committees’ instruction, agencies should also be required to publish a “summary of the lawful measures each agency may take to enforce its policy, to include civil and criminal referrals.” The president and Congress should require the ODNI to consolidate all of this information on a single website accessible to the public.

NINTH, the president and Congress should require the ODNI to audit agencies’ prepublication review practices and policies and to report regularly to Congress and the public on the operation of the prepublication review system. 

In the current system, even basic statistical information about prepublication review is difficult to come by. If responses to FOIA requests filed by the ACLU and Knight Institute are any guide, it seems that many agencies do not have this information themselves. The president and Congress should require agencies to maintain databases tracking at least the following with respect to every submission: the name of the submitter, the title of the submission, the date of submission, the type of submission, the length of the submission, the agency that received the submission, the agencies to which the submission was referred, the date of any substantive response, and a summary of that response. They should require agencies to make their databases available to the ODNI on an ongoing basis, and they should require the ODNI to publish a consolidated database in a native database format, excluding only the name of each submitter and the title of each submission (which could be added to the database after manuscripts are published). They should also require the ODNI to periodically audit individual agencies’ compliance with new statutory requirements, and Congress should require the ODNI to report regularly to the intelligence committees and the public about deficiencies in agencies’ compliance with those requirements.  

 

PROVIDE DEDICATED FUNDING

 

TENTH, Congress should give intelligence agencies the resources they need to administer a streamlined prepublication review system effectively.

Some of the problems associated with the current system stem from a lack of resources. Streamlining the system along the lines proposed above would help a great deal. But Congress should also provide the agencies with dedicated funding for prepublication review. This funding should be separate from the funding provided to the agencies for declassification review and the processing of Freedom of Information Act requests. A better functioning prepublication review system should not come at the cost of these other systems, which serve important functions in our democracy.

* * *

In its current form, the prepublication review system imposes intolerable costs on former public officials who want to responsibly share their experiences and insights with the public; on the intelligence agencies, whose energies and resources the current system misdirects; and on the public, which is denied timely access to important information and ideas. It’s clear what steps need to be taken to fix the system. The new administration and the new Congress should take those steps quickly.

 

Printable PDF

 

Cite as: Jameel Jaffer et al., How the Biden Administration and Congress Can Fix Prepublication Review: A Roadmap for Reform, 22-04 Knight First Amend. Inst. (Mar. 11, 2022), https://knightcolumbia.org/content/how-the-biden-administration-and-congress-can-fix-prepublication-review-a-roadmap-for-reform [https://perma.cc/9QAX-ML6Y].

]]> /content/how-the-biden-administration-and-congress-can-fix-prepublication-review-a-roadmap-for-reform Fri, 11 Mar 2022 00:00:00 -0800 <![CDATA[Supreme Court Declines to Hear Challenge to Intelligence Agencies’ Unconstitutional Censorship Systems]]> https://knightcolumbia.org/content/supreme-court-declines-to-hear-challenge-to-intelligence-agencies-unconstitutional-censorship-systems WASHINGTON —The U.S. Supreme Court today denied a petition seeking review in a case challenging the constitutionality of four intelligence agencies’ “prepublication review” systems, which prohibit millions of former intelligence agency employees and military personnel from writing or speaking publicly about their area of expertise without first obtaining the government’s approval. In 2019, the Knight First Amendment Institute at Columbia University and the American Civil Liberties Union brought the legal challenge on behalf of five former government employees.

“We’re disappointed that the Court won’t hear this case, because the intelligence agencies’ prepublication review policies are simply indefensible as a First Amendment matter,” said Jameel Jaffer, executive director of the Knight First Amendment Institute. “The government has a legitimate interest in protecting bona fide national security secrets, but this system sweeps too broadly, fails to limit the discretion of government censors, and suppresses political speech that is vital to informing public debate.” 

The Knight Institute and the ACLU filed the case in April 2019 on behalf of Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former employee of the CIA; Anuradha Bhagwati, a former United States Marine; and Mark Fallon, a former employee of the Naval Criminal Investigative Service. The plaintiffs continue to be subjected to prepublication review, and their experiences navigating the broken review process—including delays, demands that they omit information that is not classified, censorship decisions that appeared to be fueled by concerns about embarrassment rather than national security, and increased costs for publishers and co-authors—highlight the defects in the current system. 

The intelligence agencies’ prepublication review systems have expanded dramatically in the last 42 years, in large part because courts have understood Snepp v. United States—the 1980 Supreme Court precedent the petition asked the Court to reconsider—to mean that these regimes are exempt from meaningful scrutiny under the First Amendment. What was initially a narrow censorship program largely limited to CIA spies has since grown into a sprawling system of prior restraint that restricts the speech of millions of people for their entire lives. As a result, many former public servants are subject to onerous and far-reaching restrictions on their speech that lack the safeguards the Supreme Court has insisted on in related contexts. 

“The government’s prepublication review systems, in their current form, are broken,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy and Technology Project. “They subject millions of former government employees to censorship without any binding timelines or clear standards for review, opening the door to silencing speech because it is critical of the government—not because it holds any national security risk. Now that the Supreme Court has refused to take corrective action, Congress should step in.” 

In light of today’s decision, the groups call on the Biden administration and Congress to reform the current prepublication review regime. As part of a broader effort to strengthen transparency and accountability in the national security sphere, President Biden should issue an executive order that clarifies and narrows submission and review criteria, establishes new procedural safeguards, and mandates transparency about the prepublication review system’s operation. To ensure that future administrations do not roll back these reforms, Congress should reinforce the executive order with legislation. 

Read more about the case here.

Read the Knight Institute’s prepublication policy paper here.

Lawyers on the case include, in addition to Jaffer and Eidelman, Alex Abdo, Ramya Krishnan, and William Hughes of the Knight Institute; Brett Max Kaufman of the ACLU; and David Rocah of the ACLU of Maryland.

For more information, contact: Adriana Lamirande at adriana.lamirande@knightcolumbia.org. 

]]> /content/supreme-court-declines-to-hear-challenge-to-intelligence-agencies-unconstitutional-censorship-systems Mon, 23 May 2022 00:00:00 -0700 <![CDATA[Knight Institute, ACLU Petition Supreme Court To Review Constitutionality of Intelligence Agencies’ “Prepublication Review” Regimes]]> https://knightcolumbia.org/content/knight-institute-aclu-petition-supreme-court-to-review-constitutionality-of-intelligence-agencies-prepublication-review-regimes WASHINGTON — Today, on behalf of five former government employees, the Knight First Amendment Institute at Columbia University and the American Civil Liberties Union petitioned the U.S. Supreme Court to review a challenge to the government’s system of “prepublication review,” which prohibits former public servants from writing or speaking publicly without first obtaining the government’s approval. The groups urge the Court to overrule a 41-year-old Supreme Court decision, reconsider the legal standard applicable to government prepublication review, and hold that the prepublication review regimes being challenged are unconstitutional.

“The prepublication review system imposes an intolerable cost on the free speech rights of former public servants, and it distorts and impoverishes public debate about issues that could hardly be more important,” said Jameel Jaffer, executive director of the Knight First Amendment Institute. “At least in their current form, these prepublication review regimes are fundamentally inconsistent with the First Amendment.”

The intelligence agencies’ prepublication review regimes prohibit millions of former intelligence-agency employees and military personnel from writing or speaking about broad topics like “national security” without first obtaining government approval, regardless of whether they ever had access to sensitive information and even if they do not plan to discuss information they learned during their employment.  As today’s petition explains, the prepublication review process has expanded dramatically in the last 40 years, in large part because courts have understood the underlying legal standard established in Snepp v. United States—the 1980 Supreme Court precedent the petition seeks to upend—to mean that these regimes are exempt from meaningful scrutiny under the First Amendment. What was initially a narrow censorship program largely limited to CIA spies has since grown into a sprawling system of prior restraints that restricts the speech of millions of people for their entire lives. As a result, many former public servants are subject to onerous and far-reaching restrictions on their speech that lack the safeguards that the Supreme Court has insisted on in related contexts. 

The Knight Institute and the ACLU filed the case in April 2019 on behalf of Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former employee of the CIA; Anuradha Bhagwati, a former United States Marine; and Mark Fallon, a former employee of the Naval Criminal Investigative Service. The plaintiffs continue to be subjected to prepublication review hurdles, and their experiences navigating the broken review process highlight the defects in the current system. 

“For 40 years, the government has treated a brief footnote in an old case as a blank check to subject millions of former government employees to government pre-approval before they write or speak publicly, without any real protections in place,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “But former employees like our clients are exactly the kinds of people the public needs to hear from in public debates about national security, foreign policy, and war. It’s long past time for the Supreme Court to make clear that the First Amendment rejects the current prepublication review system of unbridled prior restraints.”

The petition urges the Court to grant certiorari and to reconsider Snepp, “which failed to scrutinize prepublication review as a system of prior restraint, did not adequately account for the public’s interest in the speech suppressed by the system, and is inconsistent with the Court’s more recent First Amendment jurisprudence.”

Read today’s petition here.

Read more about this case here.

Lawyers on the case include, in addition to Jaffer and Kaufman, Alex Abdo, Ramya Krishnan, and William Hughes of the Knight Institute; David Cole, Vera Eidelman, and Shreya Tewari of the ACLU; and David Rocah of the ACLU of Maryland.

For more information, contact: Lorraine Kenny, communications director, lorraine.kenny@knightcolumbia.org. 

 

]]> /content/knight-institute-aclu-petition-supreme-court-to-review-constitutionality-of-intelligence-agencies-prepublication-review-regimes Mon, 22 Nov 2021 00:00:00 -0800 <![CDATA[Knight Institute, ACLU To Appeal Court Ruling in Lawsuit Challenging Constitutionality of Far-Reaching Government Censorship System]]> https://knightcolumbia.org/content/knight-institute-aclu-to-appeal-court-ruling-in-lawsuit-challenging-constitutionality-of-far-reaching-government-censorship-system GREENBELT—The Knight First Amendment Institute at Columbia University and the American Civil Liberties Union today announced that they will appeal a decision by the United States District Court of Maryland to dismiss a lawsuit on behalf of five former public servants challenging the constitutionality of the government’s system of “prepublication review.” The system prohibits millions of former intelligence-agency employees and military personnel from writing or speaking about topics related to their government service without first obtaining government approval.

“This is a disappointing decision,” said Jameel Jaffer, Executive Director of the Knight First Amendment Institute. “The court has approved sweeping restrictions on the speech of former civil servants whose insights into the work of government are needed more than ever. These restrictions silence voices that the public needs to hear, and they are inconsistent with the First Amendment.”

The lawsuit was filed on behalf of Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former employee of the CIA; Anuradha Bhagwati, a former United States Marine; and Mark Fallon, a former employee of the Naval Criminal Investigative Service. Between them, they served in the intelligence community and the military in a diversity of roles for almost a century. The plaintiffs have submitted written works for prepublication review in the past and intend to continue writing works subject to review in the future.

Prepublication review is not governed by a single executive-branch-wide policy. Rather, agencies impose lifetime prepublication review obligations through a complex tangle of regulations, policies, and non-disclosure agreements. Submission requirements and review standards are vague, confusing, and overbroad. Manuscript review frequently takes weeks or even months. Agencies’ censorial decisions are often arbitrary, unexplained, and influenced by authors’ viewpoints. Favored officials are sometimes afforded special treatment, with their manuscripts fast-tracked and reviewed more sympathetically.

“The fight to defend the First Amendment continues,” said Brett Max Kaufman, Staff Attorney with the ACLU’s Center for Democracy. “The prepublication process in its current form is broken and unconstitutional, and it needs to go. Prepublication review gives the government far too much power to suppress speech that the public has a right to hear. One need look no further than the current administration's wielding of this censorship power to see how easily it can be abused and how dangerous it is to our democracy."

Four of the five plaintiffs joining the lawsuit had work subjected to long publication delays and haphazard redactions. For instance, it took nearly eight months, a letter to six senators, over a dozen requests for updates, media attention, and the ACLU and the Knight Institute’s involvement for the government to complete its review of a manuscript of Fallon’s book about the George W. Bush administration’s interrogation and torture policies. Immerman’s manuscript, which did not refer to any classified information he obtained in the course of his employment with the ODNI or State Department, took six months for review and was returned with extensive redactions. Some redactions related to information that had been published previously by government agencies, and many of them related to events that had taken place, or issues that had arisen, after Immerman had left government. In some instances, the government redacted citations to newspaper articles.

The plaintiffs argued that the prepublication review regimes violate the First Amendment because they impose sweeping, indefinite prior restraints that suppress or deter core political speech, including speech that is unclassified or already in the public record. They also claimed that the system violates the Fifth Amendment because it fails to give them fair notice of what they have to submit and of what they can and cannot say, and because it invites arbitrary and discriminatory enforcement.

The lawsuit was filed in the District of Maryland and against the CIA, NSA, Office of the Director of National Intelligence, and Department of Defense. Between 2016 and 2018, the groups filed four Freedom of Information Act requests seeking documents on prepublication review processes and practices. The documents reveal that the system has grown increasingly far-reaching and burdensome in recent years.

Read today’s decision here. 

Lawyers on the case include, in addition to Jaffer and Kaufman, Alex Abdo and Ramya Krishnan of the Knight Institute; Vera Eidelman of the ACLU; and David Rocah of the ACLU of Maryland.

For more information, contact Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

]]> /content/knight-institute-aclu-to-appeal-court-ruling-in-lawsuit-challenging-constitutionality-of-far-reaching-government-censorship-system Thu, 16 Apr 2020 00:00:00 -0700 <![CDATA[Knight Institute, ACLU Challenge Constitutionality of Far-Reaching Government Censorship System]]> https://knightcolumbia.org/content/knight-institute-aclu-challenge-constitutionality-of-far-reaching-government-censorship-system The Knight First Amendment Institute at Columbia University and the American Civil Liberties Union today filed a lawsuit on behalf of five former public servants challenging the government’s “prepublication review” system, which prohibits millions of former intelligence-agency employees and military personnel from writing or speaking about topics related to their government service without first obtaining government approval. The plaintiffs argue the system violates the First and Fifth Amendments, and they call on the courts to block the government from enforcing it in its current form.

“This far-reaching censorship system simply can’t be squared with the Constitution,” said Jameel Jaffer, Executive Director of the Knight First Amendment Institute. “The government has a legitimate interest in protecting bona fide national-security secrets, but this system sweeps too broadly, fails to limit the discretion of government censors, and suppresses political speech that is vital to informing public debate.”

The lawsuit was filed on behalf of Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former employee of the CIA; Anuradha Bhagwati, a former United States Marine; and Mark Fallon, a former employee of the Naval Criminal Investigative Service. Between them, they served in the intelligence community and the military in a diversity of roles for almost a century. The plaintiffs have submitted written works for prepublication review in the past and intend to continue writing works subject to review in the future.

Prepublication review is not governed by a single executive-branch-wide policy. Rather, agencies impose lifetime prepublication review obligations through a complex tangle of regulations, policies, and non-disclosure agreements. The complaint filed today describes a broken system. Submission requirements and review standards are vague, confusing, and overbroad. Manuscript review frequently takes weeks or even months. Agencies’ censorial decisions are often arbitrary, unexplained, and influenced by authors’ viewpoints. Favored officials are sometimes afforded special treatment, with their manuscripts fast-tracked and reviewed more sympathetically.

“The prepublication process in its current form is broken and unconstitutional, and it needs to go,” said Brett Max Kaufman, staff attorney with the ACLU’s Center for Democracy. “It’s one thing to censor the nuclear codes, but it’s another to censor the same information high schoolers are pulling from Wikipedia. Prepublication review gives the government far too much power to suppress speech that the public has a right to hear.”

Four of the five plaintiffs joining the lawsuit had work subjected to long publication delays and haphazard redactions. For instance, it took nearly eight months, a letter to six senators, over a dozen requests for updates, media attention, and the ACLU and the Knight Institute’s involvement for the government to complete its review of a manuscript of Fallon’s book about the George W. Bush administration’s interrogation and torture policies. Immerman’s manuscript, which did not refer to any classified information he obtained in the course of his employment with the ODNI or State Department, took six months for review and was returned with extensive redactions. Some redactions related to information that had been published previously by government agencies, and many of them related to events that had taken place, or issues that had arisen, after Immerman had left government. In some instances, the government redacted citations to newspaper articles.

The plaintiffs argue that the prepublication review regimes they are challenging violate the First Amendment because they impose sweeping, indefinite prior restraints that suppress or deter core political speech, including speech that is unclassified or already in the public record. They also claim that the system violates the Fifth Amendment because it fails to give them fair notice of what they have to submit and of what they can and cannot say, and because it invites arbitrary and discriminatory enforcement.

The lawsuit was filed in the District of Maryland and against the CIA, NSA, Office of the Director of National Intelligence, and Department of Defense. Between 2016 and 2018, the groups filed four Freedom of Information Act requests seeking documents on prepublication review processes and practices. The documents reveal that the system has grown increasingly far-reaching and burdensome in recent years.

Read the brief here.

For more information, contact: Lorraine Kenny, Communications Director, Knight Institute, lorraine.kenny@knightcolumbia.org.

Lawyers on the case include, in addition to Jaffer and Kaufman, Alex Abdo, Ramya Krishnan, and Jake Karr of the Knight Institute; Vera Eidelman and Naomi Gilens of the ACLU; and David Rocah of the ACLU of Maryland.

About the Knight First Amendment Institute at Columbia University

The Knight First Amendment Institute defends the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

]]> /content/knight-institute-aclu-challenge-constitutionality-of-far-reaching-government-censorship-system Tue, 02 Apr 2019 00:00:00 -0700 <![CDATA[Groups Ask Senators To End Publication Delay of Former NCIS Agent's Book on Torture]]> https://knightcolumbia.org/content/groups-ask-senators-to-end-publication-delay-of-former-ncis-agents-book-on-torture The Knight First Amendment Institute at Columbia University and the American Civil Liberties Union yesterday sent a letter to six senators asking them to intervene in a stalled Department of Defense review that is blocking publication of a former military investigator’s book on U.S. government torture. Mark Fallon, a 27-year veteran of the Naval Criminal Investigative Service (NCIS), submitted his manuscript, “Unjustifiable Means,” to the Defense Department for review seven months ago, but has been refused basic information about its status.

“The government’s process for reviewing manuscripts by former employees must not become a pretext for suppressing dissent,” said Alex Abdo, a senior staff attorney at the Knight Institute. “Mark’s insider perspective of U.S. torture is a unique one that Americans have a right to hear.”

Fallon served in the NCIS when torture was authorized by government officials at the highest levels, and his manuscript details the costs of these policies to American interests and values. The First Amendment requires that any review of manuscripts by former government employees be prompt. Yet Fallon has not been informed why his manuscript – which relies heavily on information that’s not only unclassified but already public – is stuck in limbo or when the Defense Department will complete its overdue review.

In the letter, the Knight Institute and the ACLU note that books defending American torture policies do not appear to have faced similar delays:

“It is hard to escape the inference that the extended delay in reviewing Mr. Fallon’s book is related to his criticisms of the torture policies. We note that the Defense Department and CIA have authorized (or not stood in the way of) the publication of many books defending those policies.”

At present, other government officials are currently engaged in suppressing the full version of the Senate’s Torture Report. The letter asks six senators who have been outspoken critics of harsh interrogation to intervene to ensure that the pre-publication review process for books by former staff are not misused to suppress dissent on torture.

“The torture architects and advocates have controlled the public narrative with the myth that the unlawful prisoner torture program was safe, necessary, and effective — even while official investigations repeatedly prove that is false,” said Fallon. “It's time to hear from, and about, the government officials that opposed those inhumane practices, acted with the courage of their convictions, and tried to prevent the adoption of torture as a national policy. ‘Unjustifiable Means’ needs to be added to the public debate on this issue, before it's too late.”

Letter on review of torture manuscript.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education.

About the ACLU

The ACLU is our nation’s guardian of liberty, with a presence in all 50 states and more than 1.5 million members. For nearly 100 years, the ACLU has been at the forefront of virtually every major battle for civil liberties and equal justice in the United State, and has participated in more cases at the Supreme Court than any other non-governmental organization.

]]> /content/groups-ask-senators-to-end-publication-delay-of-former-ncis-agents-book-on-torture Thu, 03 Aug 2017 00:00:00 -0700 <![CDATA[Supreme Court Should Address Prior Restraints on Former Government Employees]]> https://knightcolumbia.org/content/supreme-court-should-address-prior-restraints-on-former-govt-employees The Supreme Court has roundly rejected prior restraint, but U.S. intelligence agencies nonetheless prohibit literally millions of former public servants from speaking or writing about government policy without first obtaining the government’s approval. On Thursday, the Court will consider a petition, filed by the ACLU and the Knight Institute, asking the Court to revisit Snepp v. United States, the 40-year-old case atop which the intelligence agencies’ far-reaching system of prior restraint has been built. Snepp is a glaring anomaly in relation to the rest of the Court’s First Amendment jurisprudence, and the contemporary prepublication review system is a free-speech train wreck.

As we and our colleagues have written here before, the prepublication review system originated in a set of contractual obligations imposed on a small number of public servants with access to the nation’s most sensitive secrets. But what was once a narrow regime has grown into a byzantine network of regulations and policies that restrict the speech of millions of people.

We owe this system in large part to the Supreme Court’s 1980 decision in Snepp, which affirmed the imposition of a constructive trust over the proceeds of a book that a former CIA officer had published without first submitting it for review—an act the agency characterized as a breach of fiduciary duty even though it conceded that the book did not contain classified information. The intelligence agencies interpreted Snepp as a green light for a dramatic expansion of their prepublication review regimes, and lower courts have interpreted it to mean that the agencies’ prepublication review regimes are not subject to the stringent First Amendment review that would ordinarily be applied to prior restraints.

It’s amazing to us that the intelligence agencies have been able to squeeze so much juice from Snepp’s meager fruit. The narrow question the Supreme Court addressed in Snepp was whether the agency was justified in imposing a constructive trust. In addressing this question, the Court mentioned the First Amendment only twice, including once in the Court’s summary of decisions below. The only First Amendment analysis appears in a footnote, and it consists mainly of the bare conclusion that prepublication review is “reasonabl[e]” in light of the government’s “vital interest” in protecting “both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” The Court did not address what materials agencies may constitutionally require former employees to submit for review, on what bases an agency may constitutionally withhold permission to publish, or how quickly agency review must be completed.

That Snepp is the foundation of the modern prepublication review system is, again, simply amazing. But it is especially so because of the highly irregular way in which the case was decided.

Here is that procedural history: The district court enjoined Snepp from further violating his secrecy agreement and imposed a constructive trust on his book proceeds, as the government requested. On appeal, the Fourth Circuit upheld the injunction but rejected the trust, reasoning that Snepp hadn’t published classified information and that accordingly the agency was entitled to recover only actual damages. The government was satisfied with this result, but Snepp petitioned the Supreme Court to hear the case, in part maintaining that his contract was an unenforceable prior restraint. After Snepp filed his petition, the government filed a conditional cross-petition, asking the Court to grant its petition if the Court granted Snepp’s.

And at this point, the case took a bizarre turn. The Court simply decided the case on the basis of the petition and conditional cross-petition, without inviting briefing on the merits and without hearing oral argument. The Court’s per curiam opinion was issued over a lengthy dissent from Justice John Paul Stevens, who complained not just about the Court’s broader reasoning but about its dismissive treatment of First Amendment issues that warranted more serious consideration.

This unusual procedural history perhaps goes some way in explaining why Snepp’s First Amendment footnote is so difficult to square with the Court’s First Amendment jurisprudence. The Snepp opinion doesn’t discuss the constitutional presumption that prior restraints are unenforceable. It doesn’t attempt to reconcile its reasoning with the rule that any system of prior restraint must include “narrow, objective, and definite standards to guide the licensing authority” (from Shuttlesworth v. City of Birmingham), and must include “procedural safeguards designed to obviate the dangers of a censorship system” (from Freedman v. Maryland). It doesn’t discuss the interest of former public servants in speaking about the operations of government, or the interest of the public in hearing that speech (interests the Court highlighted in cases like United States v. National Treasury Employees Union). Snepp’s terse First Amendment footnote seems essentially oblivious to fundamental First Amendment principles.

The result, 40 years later, is that intelligence agencies’ prepublication review regimes look nothing like the licensing schemes the Court has permitted in other contexts. The prepublication review regimes lack narrow, objective, and definite substantive standards to guide government officials and cabin their discretion when reviewing materials. They also lack narrow, objective, and definite standards as to what former employees must submit for review—essentially requiring the submission of virtually anything former employees write about the government or national security, regardless of whether they rely on information they learned in the course of their employment. Finally, the regimes also lack the procedural safeguards required to mitigate the risk of illegitimate censorship—including perhaps most critically any firm timeline for government review, meaning the government can take months or more to review authors’ work and leave authors with no recourse other than expensive as-applied lawsuits. The prepublication review system, as Jack Goldsmith and Oona Hathaway have observed, is “racked with pathologies.”

Writing in dissent in Snepp, Justice Stevens remarked that the majority “seem[ed] unaware” that its cursory First Amendment analysis had potentially “fashioned” a “drastic new remedy” to “enforce a species of prior restraint on a citizen’s right to criticize his government.” 444 U.S. at 526 (Stevens, J., dissenting). He was right. The Court now has the opportunity to consider the First Amendment interests implicated by prepublication review for, truly, the first time. It should take it.

]]> /content/supreme-court-should-address-prior-restraints-on-former-govt-employees Thu, 19 May 2022 00:00:00 -0700 <![CDATA[Edgar v. Haines: Could Overturning a 1980 Supreme Court Case Help Fix the Broken Prepublication Review System?]]> https://knightcolumbia.org/content/edgar-v-haines-could-overturning-a-1980-supreme-court-case-help-fix-the-broken-prepublication-review-system The U.S. government’s prepublication review regime is a far-reaching and dysfunctional censorship system that prevents millions of former public servants from publishing or speaking about topics related to their government service. In 2019, the Knight Institute and the ACLU challenged the constitutionality of the regime on behalf of five former government employees, in Edgar v. Haines. A petition seeking review of the case is pending before the Supreme Court. I spoke with Institute Staff Attorney Ramya Krishnan about the lawsuit, about the footnote in the decades-old Supreme Court case that helped set the broken system in motion, and about how the system should be repaired.

What are the problems with the prepublication review system, and why does it matter so much?

Ramya Krishnan
Ramya Krishnan

The prepublication review system is a massive system of prior restraint. It exposes millions of former public servants and military personnel to possible sanction if they write or speak about the government without first seeking government approval.

The problems with this system are legion. To start with, there’s no executive branch–wide policy, meaning that each agency has its own. Agency regimes comprise a thicket of regulations, policies, and contracts that are difficult to navigate and understand. Agencies impose prepublication review obligations even on former employees who never had access to sensitive information, or who left government decades ago. The criteria for submission and review are vague and overbroad. The review of manuscripts can take months or even years. And censors’ decisions are often arbitrary. As a result, many would-be authors self-censor—if they speak at all—and the public is denied access to speech that is of immense public interest. 

While the government has a legitimate interest in protecting national security, the current system is not moored to that interest. The system suppresses far more speech than is necessary to serve any legitimate government interest. 

In 2017, the House and Senate intelligence committees called on the director of national intelligence to reform the system by issuing a policy that would clarify various aspects of the prepublication review process and make it fairer. Five years later, no policy has been released, and it’s not clear that one is coming.

Tell me about Edgar v. Haines, the lawsuit challenging prepublication review and the petition that the Institute and the ACLU filed last November asking the Supreme Court to review the case.

In 2019, the Institute and the ACLU filed a legal challenge in federal court on behalf of five former federal employees who have faced numerous hurdles navigating the broken review process, including having manuscripts held up in long reviews and unnecessarily redacted. Unfortunately, the lawsuit was dismissed by a district court in 2020, and that ruling was affirmed by an appeals court in 2021. Now we’re asking the Supreme Court to review these decisions. We expect the Court to consider our request on May 19, meaning that we may know in the next few weeks whether the Court will take the case.  

Let’s talk about Snepp v. United States. What does this decades-old case have to do with prepublication review?

Snepp v. United States is a 1980 decision in which the Supreme Court allowed the CIA to seize the profits earned by a former CIA officer who published a book without first submitting it for review. In the four decades since Snepp, agencies have treated the case as a blank check to expand their prepublication review processes. As a result, the system has grown on every axis. 

For example, more agencies impose lifetime prepublication review obligations on employees. When Snepp was decided, only the CIA and National Security Agency imposed prepublication review obligations on former employees. Today, all 18 intelligence agencies impose lifetime obligations on at least some of their employees. And they impose requirements on more categories of people, including employees who never had access to sensitive information. Agency regimes have also become more complex, with regimes implemented through a tangle of contracts, regulations, and policies—a fact that has made it more difficult for former employees to understand, much less meet, their obligations. They also apply to much more material, in part because much more information is classified than before. This, in turn, has led to substantial delays in the review of manuscripts. For example, the CIA now projects that the review of book-length manuscripts will take over a year.

We think Snepp is a weak foundation for the modern system of prepublication review, which is why our petition asks the Court to overrule it.

What’s the argument for asking the Court to overturn Snepp? 

As we explain in our petition, Snepp conflicts with established First Amendment doctrine. That was true when the case was decided, and it’s even more true now. The prepublication review system is a classic prior restraint: it prohibits individuals from writing and speaking without first obtaining government approval. The Court has long considered prior restraints dangerous because they restrict speech in advance of any judicial assessment of whether the government is entitled to restrict it. Thus, it has treated them as presumptively invalid and has approved of them only where they include robust substantive and procedural safeguards. Snepp failed to apply these long-accepted principles, instead asking only whether the CIA’s prepublication requirement at the time was a “reasonable means” of protecting national security. The Court’s subsequent employee speech decisions confirm that Snepp’s analysis was wrong. Those decisions make clear that prospective restrictions on the speech of even current employees must satisfy more stringent scrutiny than Snepp applied.

The Court should also revisit Snepp because of the case’s procedural irregularities. The Court decided Snepp without the benefit of briefing on the merits or oral argument, and it relegated consideration of the First Amendment issue to a single footnote outside the substantive portion of its opinion. The Court has held that decisions generated in this way don’t warrant the deference ordinarily accorded to past opinions.

Finally, the Court should revisit Snepp because the case has been badly misread by lower courts. Lower courts have interpreted Snepp to bless the modern system of prepublication review, but it did no such thing. Snepp merely held that the First Amendment doesn’t prevent the CIA from imposing a prepublication review requirement on a former CIA officer who had access to the government’s most closely held secrets. The case did not exempt all prepublication review regimes from meaningful scrutiny, regardless of the adequacy of the safeguards they have in place to protect free speech. But that is how it’s been read. As a result, millions of former government employees are now subject to a sprawling system of prior restraint that lacks the safeguards that the Court has generally insisted on in other contexts involving censorship schemes. 

Why is it so important that the Supreme Court decide this question now?

As our petition explains, litigation over prepublication review is uncommon and rarely generates substantive decisions—litigation is expensive and authors often prefer to publish manuscripts with redactions rather than wait for courts to resolve disputes. Authors have also been dissuaded from bringing constitutional challenges because Snepp has been treated as exempting prepublication review regimes from meaningful First Amendment review.  There have been only two such challenges in the last four decades, including our lawsuit. In both cases, the court of appeals assumed that Snepp had blessed prepublication review writ large and so gave little weight to First Amendment interests in evaluating the constitutionality of the agency prepublication review requirements at issue. 

In other words, if the Court doesn’t take this opportunity to revisit Snepp,  it’s unlikely that the Court will get another opportunity to do so anytime soon.

What if the Court decides to not take the case? Do the president and Congress also have a role in reforming prepublication review? 

If the Court fails to take the case, the president and Congress should step in. In a policy paper released earlier this year, the Knight Institute called on the president to issue an executive order that would streamline the system, establish robust procedural safeguards, and mandate transparency around the prepublication review system’s operation. The Institute also called on Congress to ensure the durability of these reforms by backing the executive order with legislation. 

It’s clear what needs to be done to fix the prepublication review system. The president and Congress only need to act.

Research for this report was contributed by Saisha Mediratta, legal extern at Knight Institute.

]]> /content/edgar-v-haines-could-overturning-a-1980-supreme-court-case-help-fix-the-broken-prepublication-review-system Wed, 04 May 2022 00:00:00 -0700 <![CDATA[Podcast: Freedom of Speech, National Security and the Perils of Silencing Former Officials]]> https://knightcolumbia.org/content/podcast-freedom-of-speech-national-security-and-the-perils-of-silencing-former-officials

Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University, joins Karen Greenberg, host of "Vital Interests," which is produced by the Center on National Security at Fordham Law, to discuss national security, FOIA litigation, and the dangers facing freedom of speech today.

]]> /content/podcast-freedom-of-speech-national-security-and-the-perils-of-silencing-former-officials Tue, 09 Jun 2020 00:00:00 -0700 <![CDATA[A District Court Endorses a Broken Prepublication Review System]]> https://knightcolumbia.org/content/a-district-court-endorses-a-broken-prepublication-review-system Last week, a district court in Maryland dismissed a constitutional challenge to the system of prior restraints that prohibits millions of former intelligence agency employees from writing or speaking about their public service without first obtaining the government’s approval. In a ruling issued on Thursday, Judge George Hazel of the U.S. District Court for the District of Maryland held that the plaintiffs—represented by the ACLU and the Knight First Amendment Institute at Columbia University—had standing to pursue the challenge but that the prepublication review system is constitutional. Since we are among the lawyers for the plaintiffs in the case, and since we have already said that we intend to appeal, it won’t be a surprise to anyone that we think that Judge Hazel was wrong to dismiss the case. As we explain below, however, the court’s ruling should trouble even those who believe that the current system is constitutionally defensible.

The plaintiffs in the suit are five former public servants with more than a combined century of experience in the Intelligence Community. In their complaint, they allege that the prepublication review regimes of four agencies—the CIA, the Defense Department, the NSA, and the Office of the Director of National Intelligence—violate the First Amendment because they invest the agencies with sweeping discretion to suppress speech and because they lack constitutionally required procedural safeguards. The plaintiffs also allege that these regimes are unconstitutionally vague, both because they fail to inform former government employees of what they must submit for review and what they can publish, and because they invite arbitrary and discriminatory enforcement by agency censors.

Judge Hazel held that the plaintiffs had standing to pursue their challenge, rejecting the government’s argument to the contrary. On the merits, though, he sided with the government, reasoning that the case was controlled by Snepp v. United States, a 40-year-old case in which the Supreme Court allowed the CIA to seize the book proceeds of a former agency officer who had published his manuscript without submitting it for prior review. In Judge Hazel’s view, Snepp established that the prepublication review system should not be evaluated under the stringent standards that usually apply to prior restraints. Judge Hazel also reasoned that, given Snepp, what our clients characterized as constitutional defects in the prepublication review system—the breadth and vagueness of submission and review standards, and the absence of procedural safeguards—in fact “have little bearing” on the system’s constitutionality.

In our view, Judge Hazel’s conclusion that the Supreme Court effectively upheld the current prepublication review system 40 years ago is untenable. We say this for a few reasons.

First, in Snepp, the Supreme Court focused almost entirely on a question of remedy: whether the CIA could lawfully impose a constructive trust on the proceeds of a book that Frank Snepp had published without submitting for review. The Court did not seriously consider the First Amendment interests at stake—indeed, the phrase “First Amendment” appears only twice in the Court’s opinion, once in a description of the lower court’s reasoning and once in a conclusory footnote. The Court did not discuss, let alone analyze, the specifics of the CIA’s prepublication review system. Nor did it consider, or have occasion to consider, the outer limits of the government’s authority to impose prepublication review obligations. For example, it did not address what materials an agency might constitutionally require its former employees to submit for review, or what standards an agency might constitutionally use in conducting its review, or what sorts of procedural safeguards might be constitutionally required.

Second, the legal landscape has changed since Snepp was decided. Most significantly, in United States v. National Treasury Employees Union (NTEU), decided in 1995, the Supreme Court clarified that prior restraints imposed on public employees are subject to essentially the same scrutiny as prior restraints imposed in other contexts. NTEU is best understood to have limited Snepp to its facts.

Third, the factual landscape has changed dramatically, too. In 1980, a relatively small number of former government employees were subject to a prepublication review obligation. Today, every intelligence agency imposes some kind of prepublication review obligation on at least some category of its former employees. There are also many more former employees, and there is much more classified information. As a result, far more people are subject to prepublication review requirements, and far more material is subject to review. (One measure: In the 1970s, the CIA reviewed approximately 1,000 pages per year, whereas in 2014, it reviewed approximately 150,000 pages.) The system that exists today bears little resemblance to the one the Court considered (without really considering) in Snepp.

For these reasons, it’s not persuasive to say that Snepp controls the question of whether the current system of prepublication review is constitutional. The constitutionality of today’s system must turn on the features and defects of today’s system. And indeed, Judge Hazel’s view that the specifics of the current system “have little bearing” on the constitutional analysis—or are “irrelevant,” as the opinion states in one passage—should trouble even those who believe the current system is constitutional. This is because the implication of this view is that Snepp was a green light not just for the current system, but for any system the agencies may conjure up in the future.

The voices of former public servants are essential to public deliberation about government policy. The intelligence agencies are at the center of many of the most significant contemporary policy debates—including debates about warrantless wiretapping, foreign state interference in our elections, and the United States’ preparedness (or unpreparedness) for the COVID pandemic. The public’s understanding of the intelligence agencies’ policies, operations, and decisions depends in significant part on the willingness and ability of former public servants to share the knowledge and expertise that they acquired during their public service. We need to hear these voices, but if we want to hear them, we have to fix the obstacle course that prepublication review has become. Judge Hazel’s decision exempting prepublication review from meaningful First Amendment scrutiny is a step in the wrong direction.

]]> /content/a-district-court-endorses-a-broken-prepublication-review-system Tue, 21 Apr 2020 00:00:00 -0700