Five former federal employees filed a lawsuit against several agencies Tuesday, alleging that the government’s pre-review process for publication is an unconstitutional “system of censorship.”
The review process, which applies to millions of government workers, requires former intelligence agency and military personnel to get approval before writing, publishing or speaking about their service. The restriction applies to a wide range of writings: fiction and nonfiction, book-length manuscripts, opinion pieces and academic engagements.
The lawsuit was filed in federal court in Maryland by the Knight First Amendment Institute and the American Civil Liberties Union on behalf of the plaintiffs. It named top officials from the Central Intelligence Agency, Department of Defense, National Security Agency and Office of the Director of National Intelligence (ODNI) and alleged violations under the First and Fifth amendments. It was based, in part, on thousands of documents that the Knight Institute and the ACLU obtained in response to multiyear Freedom of Information Act litigation.
CIA spokesman Timothy Barrett and NSA spokesman Tommy Groves said their agencies do not comment on pending litigation. ODNI and the DoD also said they would not comment.
There are differences in the agencies’ review processes, but they share many aspects, said Vera Eidelman, staff attorney at the ACLU. Each agency restrains speech for “any legitimate government interest” and is applied to millions of employees or former employees — whether they have the lowest-level security clearance or are permitted to see the nation’s top secrets.
There is also no requirement that the agency explain its requested redactions nor are the writers assured a prompt review. The writers are frequently forced to redact even unclassified information they learned or gathered as private citizens after they left their jobs, according to the lawsuit.
Agencies’ censorial determinations — which can take “weeks or even months” to complete — are “often arbitrary, unexplained, and influenced by authors’ viewpoints,” the complaint argued. It can even get political, the lawsuit alleges, saying that “favored officials are sometimes afforded special treatment, with their manuscripts fast-tracked and reviewed more sympathetically.”
The five named plaintiffs were all authorized high-level security clearance in their government jobs. They were required to sign nondisclosure agreements when they were hired and were subjected to the prepublication review requirements. One of them is Mark Fallon, a former employee of the Naval Criminal Investigative Service.
“The problem with the system is that the prepublication process is haphazard and opaque, and people don’t understand it,” said Fallon, who spent three decades working in counterintelligence. “The overburdensome requirements eliminate people, like me, who have a tremendous body of work with government service.”
His book, “Unjustifiable Means,” discussed the George W. Bush administration’s policies on interrogation and state-sponsored torture procedures. As chief investigator for the Department of Defense, Fallon was tasked with the responsibility of bringing al-Qaeda to justice before military commissions were established.
“Living through that time as a leader is something that can help shape policy and help make informed decisions,” he said, noting that he opposed the Bush torture policies, calling them “unconscionable” and “immoral.”
It took eight months, with the help of the ACLU and the Knight Institute, before Fallon received a prepublication review decision. According to Fallon, the government’s redactions were not for classified, national security information. Instead, they requested Fallon redact names from his book that “would be embarrassing” and information that was “already in the public domain” through published unclassified congressional reports.
“They denied my voice, and they denied the public the ability to hear my experiences,” Fallon said in an interview with The Washington Post. “Democracy is about the ability to speak out. My views affirm that torture was neither safe, necessary nor effective. The public should not be denied the breadth of my experience in the debate.”
The other plaintiffs had similar experiences:
Melvin Goodman, a former CIA division chief with 42 years of government service, was asked to redact information about armed drones overseas, which he had researched and learned not as a government employee but as a private citizen through media accounts, according to Tuesday’s filing.
Richard Immerman’s review took six months. His manuscript did not refer to classified information obtained during his employment with the ODNI or the State Department, yet he was given extensive redactions, including references to publicly available newspaper articles.
The review process dragged on for so long for Timothy Edgar that he was forced to push back his publication date. Court documents said that he specifically relied on “declassified documents for pertinent details” in his manuscript, but was asked to redact those portions of the text, too.
Edgar called the lawsuit an “opportunity for reform” that would help the government create a more tailored and reasonable approach to secrecy.
“For a country that values free speech, we’ve become too comfortable with a system that permits prior restraint and censorship of speech,” he said to The Post, referring to government restraint of information that’s already in the public domain. “Depriving us of people who are most knowledgeable and who generally have a lot of wisdom to share makes us all worse off.”
According to a draft report of the CIA Inspector General obtained by the ACLU and the Knight Institute through a Freedom of Information Act request, the number of pages reviewed by the CIA in the early 1970s was 1,000. In 2014, that figure had increased to 150,000. In 2015, the agency received 8,400 submissions, including 3,400 book manuscripts, up from 43 submissions for review in 1977.
Other agencies have seen similar increases.
The complaint alleged that the prepublication review system, in its current form, imposes an intolerable cost on the public debate by discouraging many would-be authors from writing.
“Former public servants are uniquely positioned to inform ongoing debates about national security policies. They’re in the best position to speak about the government and explain how things work or why things might be problematic,” said Eidelman, the ACLU attorney. “This practice is depriving the public from that set of voices.”