Former national security adviser John Bolton’s book “The Room Where It Happened” is scheduled to be released on Tuesday. This past Tuesday, the Justice Department filed a lawsuit against Bolton, alleging he did not complete the prepublication review required by his nondisclosure agreement. On Wednesday, the U.S. government asked Judge Royce C. Lamberth to issue a temporary restraining order against Bolton to prevent the release of the book, which would, according to the Justice Department, also apply to the publisher and any stores that received copies already. Lamberth has scheduled a hearing for Friday on the motion. Excerpts of the book have already been published in various media outlets, and millions of copies have already been shipped to retailers. So Lamberth is extremely unlikely to grant the motion, but the government is still likely to win its lawsuit ultimately and take all of Bolton’s proceeds from the book. By choosing to publish the book — or even send the manuscript to his lawyer — without getting advance clearance from the government, Bolton opened himself up to exactly such an outcome.
But the really interesting question isn’t what the government will do to Bolton for writing the book. It’s what the government could do to people who read it.
It sounds Orwellian, but believe it or not, if you have — or expect to need — a security clearance, you could jeopardize that by reading Bolton’s book (or anything else that is claimed by the government to be classified). Back when WikiLeaks was new and the intelligence community was coming to grips with the fact that news articles seemed to be running every other day based on leaked national security information, the government decided not only to crack down on leakers, but to use the largely unregulated security clearance authority at its disposal to intimidate government employees and contractors into not even reading about the leaks. The clearest example of this new policy can be seen in a 2013 Defense Department memo, which clearly states: “DoD employees or contractors who seek out classified information in the public domain, acknowledge its accuracy or existence, or proliferate the information in any way will be subject to sanctions.” Notice the “or.” That means that people can be punished just for reading it.
This sounds like it must run afoul of the First Amendment, but things like this have been happening to clearance holders for decades. One of the criteria for losing a clearance — known as “Guideline K: Handling Protected Information” — provides that “inappropriate efforts to obtain or view protected information outside one’s need to know” and “any failure to comply with rules for the protection of classified or sensitive information” can result in an adverse clearance determination. Guideline E — related to “Personal Conduct” — is even broader, allowing clearances to be denied or revoked for something that simply shows “unwillingness to comply with rules and regulations,” which can be defined as loosely as not following a private employer’s workplace rules. And because security clearance determinations are almost always considered to be beyond the scope of judicial review, people who get in trouble for violating these rules generally can’t sue. The only recourse they have is to appeal within the same department that made the decision in the first place. In effect, it’s like asking to speak to a manager.
In all fairness, neither I nor any of the clearance lawyers I’ve spoken with have personally seen a case where an agency actually revoked someone’s clearance for reading an article or book about leaked material. But the fact that it’s possible shows the arbitrariness inherent in the system, and security clearance lawyers only see a small percentage of adverse clearance decisions. Intelligence and defense agencies drill this admonition into their cleared personnel and contractors in security training and warn of dire consequences for anyone who violates the rules. Moreover, the matter does not even have to be properly classified, as long as someone with the authority to do so says it is classified. One clearance decision even explicitly stated that unclassified documents that were improperly marked as classified still had to be “given those protections of a Secret document” — that is, a document that wasn’t really classified had to be treated as if it were simply because it was mislabeled. The whole premise of the system is that nobody is entitled to ignore a claim that something is classified, even if it might be wrong. If you hold a clearance and you believe something is incorrectly classified, you must challenge the determination to someone with the authority to overrule that determination. You cannot simply decide on your own that it isn’t classified.
So once Bolton’s book is on sale, and the royalties start flowing back into the U.S. Treasury if the government succeeds in punishing him for publishing without permission, the Trump administration can still punish anyone subject to its clearance process for reading it — even if it can’t stop the general public. Government employees or contractors could still choose to read the book (or read any excerpts or reports about it), and I would maintain that it should be up to them. But it may put them at the mercy of an often-arbitrary bureaucratic system which values following rules over everything else.