CIA Unlawfully Imposed Prior Restraint, Lawsuit Alleges

The Central Intelligence Agency improperly blocked a former CIA employee from disseminating unclassified information about what he considered illicit CIA contacts with a foreign national suspected of criminal acts, according to a lawsuit (pdf) filed this week in DC District Court.

Franz Boening, who was employed by CIA from 1980 to 2005, contended that “the CIA maintained a special relationship with a foreign individual who committed unlawful human rights violations and criminal acts with the knowledge of the CIA.” He further alleged that he has suffered retaliation for expressing his concerns.

According to Mr. Boening, “CIA may have violated US laws during its 10+ year relationship with [name redacted].”

As required by his non-disclosure agreement, Mr. Boening submitted his proposed disclosures to the CIA Publication Review Board, which refused to authorize their release.

“Although the entire analysis and factual recitation of the CIA’s involvement with this individual was based purely on publicly available nongovernmental (including newspaper articles) and unclassified government websites, the CIA ‘classified’ more than a dozen pages of publicly available newspaper, radio, and television information, a practice that was commonly assumed to have been discontinued by the CIA years ago,” according to the complaint, filed by attorney Mark S. Zaid on March 5.

Two former CIA officials contacted by Secrecy News declined to comment on the case. Another official said that the handling of the Boening matter over the last couple of years coincided with a loss of autonomy at the CIA Publication Review Board in favor of increased control by agency Information Review Officers (IROs). That trend may now be reversing, the official said, under the current DCIA Michael Hayden.

Mr. Boening appears to have been the first and perhaps the only government official ever to take advantage of a provision of the executive order on classification that encourages authorized holders of classified information to challenge its classification if they believe it is improper (executive order 13292, section 1.8).

In order to deflect his challenge, the new complaint says, the CIA argued that he was not technically an “authorized holder” of the information in question and therefore did not have standing to challenge its classification status.