“Recent media reports have misconstrued ODNI’s policy for pre-publication of information to be publicly released,” according to a May 9 statement that was issued by the Office of the Director of National Intelligence.
The ODNI policy had been described in articles published in Secrecy News (ODNI Requires Pre-Publication Review of All Public Information, May 8) and in the New York Times (Intelligence Policy Bans Citation of Leaked Material by Charlie Savage, May 8).
ODNI said that the new pre-publication review policy was basically a consolidation of two previous policies (ODNI Instruction 80.14/2007-6, July 25, 2007, and ODNI Instruction 80.04, August 5, 2009) and that it represented nothing very new.
“The revised policy is not significantly different from the two previous policies,” the new ODNI statement asserted.
But that assertion is hard to understand, since the text of the revised policy appears significantly different from its predecessors in several respects.
First and foremost, the previous policies focused on protection of classified information, while the revised policy casts a much broader net.
“Pre-publication review is intended to prevent the disclosure of classified information,” according to the 2007 Instruction (emph. added). Likewise, according to the 2009 Instruction, “Pre-publication review of material prepared for official dissemination is intended to prevent the disclosure of classified information.”
By unmistakeable contrast, however, the newly revised policy extends to all intelligence-related information, whether classified or not:
“The goal of pre-publication review is to prevent the unauthorized disclosure of information.”
That seems like a fairly significant difference.
Similarly, the 2007 Instruction presented a clear-cut “standard for review” applicable to former ODNI staff and contractors that is missing in the revised policy:
“Material proposed for publication or public dissemination will be reviewed solely to determined whether it contains any classified information,” the 2007 Instruction said.
No such limitation exists in the revised policy, which also includes review of unclassified information that may be “otherwise sensitive.”
Another significant difference pertains to informal interactions with the press and the public, which now appear to be far more constrained than they were in the past.
Thus, the 2007 Instruction said that “In informal situations where no prepared remarks are delivered” and which therefore cannot be reviewed in advance, “each individual… is responsible for remaining within the guidelines provided above.”
But the new policy, as written, no longer permits the use of an employee’s individual judgment or sense of responsibility in such situations.
“ODNI personnel expecting to engage in unstructured or free-form discussions… must prepare an outline of the topics to be discussed or the agenda to be followed…” to be submitted for official review.
The ODNI statement that was issued on May 9 asserted that this peremptory requirement was actually more flexible than it appeared:
“It is understood that there are times that former employees may receive calls for comment from the media, and there simply is not time to follow the pre-publication review process.”
However, the text of the new ODNI Instruction does not include any allowance for cases when “there simply is not time to follow the pre-publication review process.” It says the process “must” be followed, without exception.
Moreover, “Failure to comply with this Instruction may result in the imposition of civil and administrative penalties, and may result in the loss of security clearances and accesses.”
By introducing such uncertainty (and danger) into ordinary contacts with the public and the press, ODNI is likely to discourage its employees from any contact — or to drive them into anonymity — and to encourage public cynicism, while further impoverishing public discourse on intelligence policy.
A superior approach would be to simply say that all ODNI employees are obliged to fulfill the terms of the non-disclosure agreements that they signed, and to leave it at that.
The May 9 ODNI statement was first obtained by Marty Lederman and published by him on the Just Security blog. ODNI then made it available. Charlie Savage reviewed the situation in Memo Revisits Policy on Citing Leaked Material, to Some Confusion, New York Times, May 9.
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