Jack Goldsmith and Oona A. Hathaway are professors of law at Harvard and Yale universities, respectively. Both have served as special counsel to the general counsel at the Defense Department. Goldsmith also served as an assistant attorney general in the Justice Department. The views expressed in this commentary are those of the authors and do not reflect the official policy or position of the Defense Department or the U.S. government.
We both learned the hard way that public service in jobs related to national security carries the risk that, for the rest of our lives, the government will insist that we allow it to review virtually everything we write related to our time in government before it can be published. We are not alone. Hundreds of thousands of former government employees who have had access to classified information cannot publish without permission. This system results in pervasive and unjustifiable harms to freedom of speech.
Anyone given access to classified information must pledge not to disclose it. Often he or she must also promise to allow the government to review future writings before publication so it can determine if they contain classified information. The Defense Department, for example, requires former employees who held a top-secret, sensitive compartmented information (known as TS/SCI) clearance to submit “any public statements or publications based on [their] government service for security review before release.” This sweeping language applies to works of fiction as well as nonfiction, even if the drafts clearly contain no classified information. Even agencies with less sweeping contractual language often insist in practice on equally far-reaching review.
Such prior restraint on speech usually faces “a heavy presumption against its constitutional validity,” as the Supreme Court said in the Pentagon Papers case. But in a 1980 case, Snepp v. United States, the court explained that the government has a “compelling interest” in guarding classified secrets and concluded that a former employee’s contractual duty of prepublication review could overcome the presumption against prior restraint because it is a “reasonable means for protecting this vital interest.”
In the 35 years since Snepp, however, the review system has grown unreasonable. Despite fierce congressional resistance, the Reagan administration dramatically expanded the scope of prepublication review and allowed each agency to develop its own standards. At the same time, the number of classified documents, and of people with access to them, has grown exponentially. The result today is a mess of overbroad and inconsistent regulations that apply to all living people with pre-clearance contracts going back decades.
In practice, the system is racked with pathologies. Former government employees are often unsure of the scope of the duty to get clearance. Wanting to comply and fearful of harming their reputations or careers, they tend to show the government more than is required or simply don’t write at all. Officials conducting prepublication review encourage overcautious behavior by broadly interpreting what must be reviewed. (We submitted this op-ed, which clearly contains no classified information, out of an abundance of caution. The Defense Department implicitly found that we had a duty to do so when it approved publication only on the condition that we attach the disclaimer below.)
Problems continue after submission. The review process sometimes takes longer than the specified review periods, leaving authors in limbo. And vague criteria give reviewers enormous discretion over what the public can see.
Former CIA director Stansfield Turner long ago complained about prepublication review, charging that the agency’s consideration of one of his books was marked by “extreme arbitrariness.” The government told a former employee of the Los Alamos National Laboratory, Danny Stillman, that he could not publish a word of a draft book on China’s nuclear weapons program. Only after he sued did it agree that most of the draft contained no classified information and could be published. (Stillman decided not to publish because of the still-censored portions.) Last year, former CIA director and defense secretary Leon Panetta became so frustrated by the overzealous review process that he sent his memoir to his publisher before receiving clearance. We also each have been subject to overbroad clearance claims and have had work held up unduly, once beyond the prescribed review period.
These public complaints are the tip of an iceberg. The vast majority of those who encounter this broken process remain silent because they think their difficulties are isolated or minor or because they fear repercussions.
Clearly, the government has a legitimate interest in preventing disclosure of classified information. But the current prepublication review process is too expansive, slow and susceptible to abuse. The damage it does to First Amendment values is pervasive but nearly invisible to the public. In an era characterized by endless war and a bloated secrecy bureaucracy, the restrictions on commentary and criticism about government policies and practices pose an intolerable cost to our democracy.
It is time for change. The executive branch should develop clear, uniform criteria for publication review. Only writings that might reasonably contain or be derived from classified information should be subject to the process, and inspection for classified information should be the only basis for review. When an agency blocks publication, it should give clear reasons and permit swift appeals. And it should establish binding deadlines for completion — ideally no longer than 30 days. If the executive branch needs more resources to implement these reforms, Congress should provide them.
The government must be able to keep its secrets, but First Amendment values also matter. The president and Congress should find a better way to balance the two.