The Government’s System of Censoring Its Former Employees Is Unconstitutional

Individuals don’t lose their First Amendment rights by entering into government service. By now, that is black letter law. You wouldn’t know this, though, from the system of lifelong censorship that the government imposes on former intelligence agency employees and military personnel.

Under this system, known as “prepublication review,” millions of former public servants must submit their writing to the government for review prior to publication. And the government can censor their words with very few constraints. The review process frequently results in delays, sometimes severe ones, that prevent the people who know the most about how the government actually works from contributing to critical public debates. And the associated frustrations often cause authors to self-censor or sit out debates entirely.

On Tuesday, the Knight First Amendment Institute at Columbia University and the ACLU filed a lawsuit challenging the system, in its current form, on behalf of five former intelligence agency employees and military personnel.

Originally, prepublication review affected a small number of former government employees, mostly those who worked for the Central Intelligence Agency and had access to the nation’s most sensitive secrets. In the late 1970s, one CIA employee challenged the agency’s prepublication review regime on First Amendment grounds, but the Supreme Court dismissed his claim — without briefing or a hearing on the merits of the claim — in a single footnote.

Since then, the system has grown increasingly unwieldy, arbitrary, and far-reaching. Today at least 17 agencies administer some form of prepublication review. Review criteria are opaque and overbroad, and they differ across agencies. Authors have no meaningful recourse to contest unfavorable decisions. Censors have sweeping power to delay publication or to redact information regardless of whether it would reveal bona fide national security secrets. Moreover, the government appears to review manuscripts that are critical of intelligence agencies and government policies with greater scrutiny and more slowly.

This broken system violates the First Amendment because it infringes both the authors’ right to speak as well as the public’s right to hear them. This system also violates the Fifth Amendment because it fails to provide former employees with fair notice of what they can and cannot publish without prior review, and it invites arbitrary and discriminatory enforcement and redactions by government censors.

Even Congress recognizes that the system is broken. Nearly two years ago, it ordered the intelligence community to develop a new set of rules to govern prepublication review. The government has said that these rules are “forthcoming,” but Congress’s deadline has passed, and the director of national intelligence hasn’t given any indication of when the new rules will be published or implemented.

As former intelligence employees and military personnel, our clients bring unique and important perspectives to matters of great public concern. Yet they have been forced to choose between subjecting their writing to an unconstitutional censorship regime or risking sanction. Our clients take seriously their obligations to protect information essential to national security, and they understand the consequences, including criminal prosecution, of breaking the public’s trust. They believe, however, that the current system is broken and getting more broken every day.

One of our clients is Mark Fallon, who spent almost three decades with the Naval Criminal Investigative Service and two years at the Department of Homeland Security. When he wrote a book criticizing the Bush administration’s torture policies, the government sat on the manuscript for months.

The book, “Unjustifiable Means,” was based entirely on Fallon’s post-retirement research into the voluminous public record of the Bush administration’s use of torture. More than eight months after he submitted his manuscript, the government cleared it — but not until the ACLU and the Knight Institute wrote to six senators about the ongoing censorship, and various news outlets shined a light on the government’s extreme delay.

When it finally returned Fallon’s manuscript, the government required 113 separate redactions, several more than two pages long. Eager to finally add his voice to the ongoing public discussion, Fallon accepted the redactions, though they were seemingly arbitrary and diminished the book’s impact. In the end, in addition to delaying Fallon’s publication by many months, the government severely curtailed his ability to engage in the renewed public debate of torture sparked by then-presidential candidate Donald Trump.

Another of our clients — former CIA officer Mel Goodman — waited more than 11 months for his book, a memoir about his time in government that was critical of the agency, to clear prepublication review. When he finally got the manuscript back, the CIA insisted that he redact pages of information that was already in the public domain. He believes the redactions were largely intended to avoid embarrassing the agency, not to protect information that is legitimately classified.

Similarly, our client Richard Immerman — an academic who worked for less than two years in the Office of the Director of National Intelligence (ODNI) — had to wait nearly six months for a response after he submitted his book on the history of the CIA. He learned that the ODNI had sent his manuscript to the CIA, which conducted its own review and ended up demanding extensive redactions — all of which related to publicly sourced material, including material that the CIA itself had previously published. Although Immerman was able to successfully appeal the vast majority of these redactions, he had to spend another two months fighting with CIA censors to achieve that outcome.

Even former employees who have generally had smoother experiences with prepublication review, like our client Tim Edgar (also formerly of the ODNI), see the requirements of the process — what must be submitted, by whom, when, and for what purposes — as vague and confusing as well as ripe for abuse.

The system is so opaque that many others aren’t even aware of their obligations to submit. Our client Anuradha Bhagwati, for example, is a former Marine Corps officer who has written and spoken widely about her experiences in the military. It was only recently, however, that she learned that, as a former Defense Department employee, she is technically required to submit such works for review, even if she never had access to highly sensitive information while in government.

The government has an interest in protecting legitimate national-security secrets, but the current prepublication review system needs to be overhauled. Any system of prepublication review should apply only to those who had access to the most closely held government secrets and only to material reasonably likely to contain those secrets. The system should provide clear notice of what must be submitted and what standards will guide agency review. It should also clearly limit the discretion of government censors, include strict and definite time limits for completion of review, and require censors to explain their decisions. Finally, censors’ decisions should be subject to prompt review by the courts.

We are hopeful that our lawsuit will lead to a system in which former employees like our clients can participate in ongoing public debates without having to navigate a sprawling and burdensome censorship process that simply can’t be squared with the Constitution.

View comments (16)
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John V Martinez

In a democracy, there are precious few things about "the workings of the government" which legitimately require secrecy, especially after 16 years the fact.

I would argue that the military in particular, whose members are all sworn to "support and defend the Constitution of the United States against all enemies, foreign *and domestic*" bears special responsibility to support the exercise of free speech to the greatest extent possible. One person's 'blabbing' may be just the evidence another person is looking for to prove wrongdoing, or gather public support for passing a much-needed law. Democracy dies in darkness.

AnonymouS

"Democracy dies in darkness." is a piss poor way to address the circumstance -- no assignment of blame to you for using it.

I would prefer we see this for how our nation truly works: Democracy lives through enlightenment.

Remember . . . the nature of life works more effectively when used as a positive reflection on what we are about.

Colonel Mike Ph...

I am a retired intelligence officer who also served on the ACLU's national board and as President of the ACLU of Florida.
The current system of publication review is badly broken. There are secrets that need to be kept, but far too often the review process is used to prevent or significantly delay the publication of information that is highly critical of the government or of information that there is a legitimate need for the public to know. The censorship of Mark Fallon is a prime example. When Bush Administration authorized torture, they did immeasurable damage to the United States. Oversight by Congress and the FISA court is ineffective.
This lawsuit is needed and long overdue.

Anonymous

Maybe you can clarify something to me, what is the difference between censorship and whitewashing in the working world you are familiar?

Anonymous

There is about a 70 year civil liberties crisis, the ACLU has not focused enough on:
“Non-Confrontational Blacklisting” (ie: Cointelpro) is a huge loophole in the Article III “legal standing”. When government agencies (local, state, federal) blacklist Americans - many times without their knowledge - it quite literally may be America’s largest violation of felony crimes by government officials. This crime wave may surpass traditional crimes if this loophole were enforced by government-watchdog agencies. It’s far worse than a real prison sentence, since it lasts for life and there is no way to be removed from these covert blacklists. It is primarily perpetrated against non-criminals and seems to punish legal First Amendment activities. Since 9/11, state legislatures have given state “Fusion Centers” [blacklisting centers in each state] extraordinary secrecy protections, even for non-terrorism cases, making them exempt from Freedom of Information Act laws. What’s so dangerous about this unconstitutional and illegal tactic is anyone can be targeted and destroyed for legal constitutional exercises. The most publicized case was probably the DOJ’s fraudulent abuse of the federal “Material Witness Statute” [confirmee by a federal appeals court] under Attorney General John Ashcroft. Ashcroft would go to your employer and force your boss to fire you or lay you off, then slapped a gag-order on your boss so you never knew why you lost your job. At that point Ashcroft decided where you would work or if you were allowed to earn a living at all. It’s very likely thousands of innocent Americans had their marriages, families and homes destroyed due to this genuine tyranny perpetrated by the DOJ and local/state partners. Ashcroft also forced some white-collar professionals to work in dangerous professions like construction (maybe hoping to mame or kill them?). It’s very likely some may have committed suicide. None had Article III legal standing to challenge this unAmerican and ungodly practice in a court of law. After nearly 70 years, this loophole in “legal standing” should be Job #1 for the ACLU. How can defenseless citizens protect themselves from the most powerful agencies on Earth without help from the U.S. Supreme Court? Bush created an illegal “Preemption Doctrine” so John Roberts can have one to counter lawless agencies like the DOJ.

Anonymous

After posting rebuttal comments regarding known truths about the GOP, responding to religious fanatics spouting hatred and falsehoods about Democrats (without using some of the cursing, profanity and personal attacks they were using... addressing "those guilty" rather than attacking the commentord directly), on january 26th 2019 after posting reminders of Donalds trump's promise that Mexico would pay for the wall when he was about to shutdown the gov't... Youtube and Google blocked my ability to comment... I suspected an algorhythm.... when I appealed their vague and non-specific allegations by requesting the details and specifics of supposed violations.... the response was that they were standing by their decision to block my account from social media comments...(without responding to my request for specifics). I still see the kinds of behavior by others that led my to respond, as well as read articles about Alphabet, Youtube and Google's alleged encouragement of divisive commentary proir to the 2018 elections... after which is when it seems various media companies have decided to implement so-called filtering actions per the regulations passed after the GOP ended Net Neutrality at the request of the major Internet companies...at the same time they were preparing to force individuals onto VPNs that would guarantee them of complete control over Free Speech on the Net. I believe my coherent, honest and effective counters were spotted by the Algorythms designed to prevent discussion of these issue by individuals (non-journalist who lack the legal representation to guard against censorship) to prevent public dissent toward their control of speech. Their only response was to refer to extremely vague guidelines and extremely limited appeals messaging which lacked sufficient space and checkbox chioces to categorize complaints regarding their claims of "suspicious activity"... sometimes typing too fast in a comment field would trigger this... as well as jumping cursers when editing previous errors made by erratic typing response in the Youtube comment fields where the jumping issue corrupted the commenting process). If their was a specific individual who was making a particularly audacious or offensive false claim, I would sometimes address them directly with corrected information. But I only responded to misinformation, rather than stating falseholds such as those I was responding to. I think this is wrong, and attempts to force individuals to VPNs (virtual Private networks will only exacerbated division and allow direct filtering of content to individuals while preventing free and unobstructied access to information using AI algorythms by the Internet companies. This will result in further Civil Censorship, Ignorance in Pursuit of Truth, and the End of Our Constitutional Rights, as well as further Manipulation and Corruptioon of Our Political System by the GOP Establishment controlling our Supreme Court, Our Executive Branch and the Senate.... who is responsible for these changes in Regulations and curbing Our Free Speech an Liberties and access to Gov't. (The Public's) Information and Data.

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