Pre-Publication Review as a Secrecy Battleground

The Obama Administration’s uncompromising approach to punishing “leaks” of classified information has been widely noted.  But its handling of pre-publication review disputes with former intelligence agency employees who seek to publish their work has been no less combative.

Government prosecutors are preparing to confiscate proceeds from the unauthorized publication of “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” by the pseudonymous Ishmael Jones, a former CIA officer.  After Jones published the book without the permission of CIA reviewers, the government said that he was in violation of the secrecy agreement he had signed.

Jones argued that he had not published any classified information and that CIA had breached the agreement first by failing to review his manuscript in good faith.  But his efforts were unavailing, and a court concurred with the CIA.

“All discovery demands heretofore served by defendant [Jones] are quashed, and defendant is prohibited from serving other discovery demands,” ruled Magistrate Judge Thomas Rawls Jones, Jr. in favor of the CIA on November 4.

If Jones believed that CIA was wrongly obstructing publication of his work, prosecutors said, what he should have done “was to file suit in U.S. District Court challenging the Agency’s decision, in order to obtain permission to publish the book.”

That sounds reasonable enough.  But in another case where an author did exactly that, government attorneys are making it all but impossible for the author to present his argument to a judge.

Anthony Shaffer, author of the Afghanistan war memoir “Operation Dark Heart,” said that intelligence agencies had unlawfully violated his First Amendment rights by censoring his manuscript.  But the government wants to limit his ability to present his challenge.

For one thing, Shaffer has been denied access to the original text of his own book.  The text contains classified information, the government says, and he no longer holds a security clearance.  So he is out of luck.  Nor has the government allowed him use of a secure computer so that he could cite contested portions of the text and dispute their classification in pleadings submitted to the court.

Instead, the government argues that the Court should resolve the disagreement based on the materials provided by the government, along with any unclassified materials that may be submitted by the plaintiff [Mr. Shaffer].  Shaffer does not need his manuscript or a secure computer, since “it is improper and unnecessary for Plaintiff to submit classified information to the Court at this time.”  (Joint Status Report, July 22, 2011).

Even unclassified materials that Mr. Shaffer may wish to submit in a declaration to the court — in order to demonstrate that the supposedly classified information in his original text is already public — may need to be sealed from public disclosure, the government said on October 28.  That is because “the association of that open source information with the book’s redactions may make the [author’s] declaration classified.”

All of this is quite absurd, said Mark S. Zaid, Mr. Shaffer’s attorney, in a reply filed last week.

“There is no other way for Shaffer to identify and challenge any of the specific text purported to be classified, much less present an argument to the Court, if he does not have access to the original copy of his book,” Mr. Zaid wrote.

The upshot is that under current policy neither Mr. Jones, who defied the rules, nor Mr. Shaffer, who has attempted to follow them, is permitted to gain a meaningful independent review of government restrictions on the information he sought to publish.

There is an additional layer of absurdity in Mr. Shaffer’s case, since the unredacted text of his book has been publicly released in limited numbers, and portions of it are even available online.  (“Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010).