CIA Wins Ruling in Prepublication Review Dispute

A federal court said that a former CIA clandestine services officer had breached his secrecy agreement by publishing a critical account of the CIA without obtaining prior Agency authorization.

Judge Gerald Bruce Lee of the Eastern District of Virginia ruled at a June 15 hearing (pdf) that the CIA officer, who goes by the pseudonym “Ishmael Jones,” would be held liable for publishing his 2008 book “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” in the face of a refusal by the CIA’s Prepublication Review Board to clear the volume for publication.

“It is uncontroverted in this case that Mr. Jones signed a secrecy agreement that required him to submit his manuscript for prepublication review and that required him not to publish it unless and until he received the Agency’s written approval,” Justice Department attorney Marcia Berman told the court on June 15.  “It is also uncontroverted that Mr. Jones submitted a manuscript to the prepublication review process and that the Agency denied him permission to publish the manuscript.”

But defense attorney Laurin Mills countered that the CIA breached the agreement first by failing to complete the review of Mr. Jones’ manuscript in a timely fashion and then issuing a “bad faith denial.”  “I think after 18 months of going through the [prepublication review] process, with them denying him the right to publish anything but footnotes,… and going six months through an appeal process where the Government’s own regulations say they’re supposed to complete it in a month, he exercised his rights under the First Amendment to publish this.”

“I don’t think that this is really a very difficult question,” said Judge Lee in ruling for the CIA and against Mr. Jones.  “I think the Snepp case would control here,” he said, referring to the case of former CIA officer Frank Snepp, whose 1977 Vietnam War memoir “Decent Interval” was published over CIA objections.  The CIA won a U.S. Supreme Court ruling against Mr. Snepp and was awarded the royalties from his book.

“It seems to me that where [Ishmael Jones] signed a binding secrecy agreement that prevented him from publishing any materials prior to receiving written consent, that under Snepp liability… has been established.  His signing a secrecy agreement does not violate his First Amendment rights,” Judge Lee said.

If Mr. Jones believed CIA was wrongly blocking publication of his book, the Judge said, “he had a remedy and that remedy was to come to U.S. District Court and to pursue a claim to have the Court determine if the Agency’s withholding of permission was unreasonable.”

“[Jones' decision] to go forward without pursuing his remedies before the court was the breach.  It was not the Government’s breach.  The Government was carrying out its agreement.”

“What remains to be [decided] is the issue of what remedy the Government is entitled to because of the breach of secrecy agreement,” Judge Lee said.

A copy of the June 15 hearing transcript was obtained by Secrecy News.  The court ruling was first reported by Josh Gerstein in Politico on June 28.  Frank Snepp presented a gripping account of his legal battle with CIA in the 1999 book “Irreparable Harm.”

2 thoughts on “CIA Wins Ruling in Prepublication Review Dispute

  1. “MS. BERMAN: Your Honor, Mr. Jones had the remedy of coming into federal court and seeking judicial review of that PRB decision. That is a remedy that has been in existence since the Marchetti case, and he clearly had it available to him, and he did not pursue
    it.”

    I will have to confess, though having been modestly exposed to the PRB appeals process (http://www.fas.org/spp/eprint/at_aclu.htm), I didn’t realize that appeal to a federal court was an established option. But apparently Ms. Berman is quite correct:
    http://www.justice.gov/osg/briefs/1990/sg900878.txt .

  2. The problem with “judicial review” of PRB decisions is that judges are disinclined to second guess the CIA’s censors who are viewed as the “experts” on secret/sensitive matters. Indeed, ever since the US Supreme Court decision against me the courts have exhibited increasing “judicial deference” towards government claims in national security cases, even those involving competing constitutional values like the First Amendment. For example in cases involving potentially obscene movies local government “reviewers” are limited under judicial precedent in the amount of time they get to pre-screen the film in question — normally thirty days. If a decision hasn’t been rendered within this time limit, the producer/distributor is free to publish (show the film). When I tried in Federal court (subsequent to US v Snepp) to apply this limiting precedent to PRB decisions, Federal judges in Virginia brushed aside my assertion that CIA censors should be similarly limited to a time certain period in which to conclude their pre-publication review. Mr. Jones should resurrect this argument on appeal as the review period for his work was unduly prolonged.

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