Tomorrow, Flatiron Books will publish Jim Comey’s book, a much-anticipated memoir in which Comey will reportedly share striking new details from his two decades in government. Others will judge whether the book lives up to the hype. This post focuses not on the book’s contents but on the fact of its publication.
Over the last several months, the Knight Institute along with the ACLU have filed and litigated FOIA requests for records relating to “prepublication review”—the byzantine regulatory regime that requires millions of former public servants to submit their manuscripts to government censors before publication. We know that Comey’s book was submitted for prepublication review, and apparently “very little” was removed. However, we do not know how long the review took, what alterations the FBI (or any other agency) demanded that he make, and how his experience with prepublication review compares to the experience of the thousands of other former employees and contractors who submit manuscripts to government agencies each year.
It is a remarkable and under-examined fact that the U.S. intelligence agencies require millions of former employees, contractors, and even interns to submit works for review prior to publication. It is a sprawling regime of prior restraints—and, as Jack Goldsmith and Oona Hathaway have observed, it is a system “racked with pathologies.” There is no executive-branch-wide policy on the review process, meaning that each agency has its own. Agency schemes comprise a tangle of regulations, policies, and non-disclosure agreements the requirements of which are often obscure and sometimes inconsistent. Many agencies impose prepublication-review obligations even on former employees who have never had access to sensitive information. The criteria for submission and review are vague and overbroad. Censors’ decisions are arbitrary. And authors who receive an adverse determination lack effective recourse.
Perhaps the complaint most often heard about the prepublication-review system is that review simply takes too long. Many authors have waited months or even years for agencies to review their manuscripts. For example, Nada Bakos, a former CIA analyst, submitted a manuscript for review back in 2015. When she finally received a response nearly two years later, she was told she had to revise or delete substantial portions of her work, even though she says it contained no classified information. Bakos initially expected to be able to publish in 2016; it now looks like her book may go to print in 2019. Mark Fallon, a 27-year veteran of the NCIS, and former chief investigator at the Guantanamo Bay detention center, had his book on government torture held up for over seven months last year. As a result of the delay, he missed a submission deadline and had to cancel a book tour. His book was cleared only after the Knight Institute and the ACLU intervened on his behalf.
Comey does not seem to have encountered similar difficulties. Comey signed his book deal with Flatiron in August of last year. Unless Comey already had a complete manuscript in hand at that time—highly unlikely, given the topics the book is said to address—the government’s censors could not have had the book for very long. And prepublication review does not seem to have delayed the book’s publication at all. The book was initially scheduled for release on May 1, but after interest in the book spiked, Flatiron moved the publication date up by two weeks.
The efficient resolution of any prepublication review is a good thing, and that is no less true in Comey’s case. As his publishers note, there is a demand for the former FBI director’s voice to be heard in the “urgent conversation” now taking place about the bureau. As special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election ramps up, so too do efforts to discredit it. The insights and experiences of someone intimately involved with the events leading up to the investigation are welcome at this juncture. But it is worth pausing to consider the hurdles that Comey’s book would have had to clear—not only to understand its journey, but also to better understand the obstacles to writing that other former public servants must face.
The FBI’s prepublication-review scheme suffers from all of the problems associated with prior restraints. The scheme consists of a hodgepodge of instruments, including a federal regulation, 28 C.F.R. § 17.18; the FBI Employment Agreement; the FBI Prepublication Review Policy Guide; and various nondisclosure agreements. It is difficult to make sense of the relationship between all these instruments. After close review, our understanding is that Section 17.18 requires all FBI employees and contractors granted access to Sensitive Compartmented Information to sign a nondisclosure agreement that includes a provision relating to prepublication review. Although Section 17.18 does not identify the nondisclosure agreement, other sources indicate that it is Form 4414, which imposes a lifetime prepublication-review obligation. Separately, the FBI Employment Agreement requires all FBI personnel (current and former) to submit to prepublication review in accordance with the Policy Guide.
The Policy Guide sets out submission and review criteria that go far beyond what is needed to identify classified information. It requires FBI employees and contractors to submit proposed disclosures containing “any knowledge gained through FBI employment or assignments related to the FBI.” Submissions are reviewed for a long list of “prohibited” information categories. Classified information is but one item of this list. Reviewers may also censor information that “the FBI would have discretion to withhold pursuant to civil discovery obligations, the Freedom of Information Act, or any other statute, law, or regulation.”
As one court noted in 2009, the mere fact that the FBI has discretion to withhold information under a statute such as the FOIA “cannot negate or override the First Amendment inquiry.” Yet the Policy Guide makes clear that the Bureau continues to treat it as if it does. This fact, coupled with the absence of a definite time limit for review, creates a serious risk of arbitrary and discriminatory enforcement, one that has been borne out.
Again, it is good news that Comey’s book did not suffer at the hands of this caprice. The public will get to hear his story just as its appetite for it is at a peak. But it is worth asking what stories the public will not hear because of the dysfunctional prepublication-review system—either because the system suppresses those stories or because the prospect of having to submit manuscripts for review dissuades some former public servants from writing at all.
Ramya Krishnan is a staff attorney at the Knight First Amendment Institute.