In the past couple of days, Steve and I have offered views on the constitutionality of the new Intelligence Community Directive 119 — which, broadly speaking, prohibits employees of the Intelligence Community from making unauthorized “contacts” with the media about intelligence “sources, methods, activities and judgments.” In both of our accounts, we assumed that the principal effect of Direction 119 is to impose a prior restraint on discussions by employees of the IC with the media concerning information that is not classified or otherwise privileged.
Over on Lawfare, however, Chris Donesa describes Directive 119 as though it were limited to–or at least focused upon establishing–“rules about discussion of classified programs.”
If, as Chris assumes, the problem that the DNI set out to address was the deliberate or inadvertent disclosure of classified information, Directive 119 is hardly an apt solution. Indeed, it’s not obvious why any new regulation was even necessary to address that problem. After all, virtually all employees of the IC are already bound–at least by nondisclosure agreements and other contracts, and in some contexts by criminal prohibitions–not to disclose classified information to anyone outside the government. And to the extent those restrictions are viewed as inadequate to prevent inadvertent or unknowing disclosures of classified information in contacts with the media, the DNI could simply extend to all IC employees a version of the sort of prepublication review that the Supreme Court has already sanctioned for CIA agents in Snepp, which I describe in my earlier post and which is considerably less restrictive than Directive 119. Of course, the conduct at issue here is not the publication of information, as in Snepp (which is relatively straightforward to review for classified information), but instead the practice of more informal “contacts” with the media, such as phone calls. Perhaps, then, the preclearance process, in order to effectively protect against the disclosure of classified information in that setting, might have to include more robust supervision of employee contacts, or more substantial briefing of employees before their contacts with the media in order to clarify just what is, and what is not, classified or privileged (akin to the Touhy regulations I referenced in my last post).
But that is not what Directive 119 does. As I wrote in my earlier post:
[T]he central provision of the Directive provides categorically that “[c]ontact by IC employees with the media on covered matters must be authorized by their IC element”–lest the employee be subject to possible loss of a security clearance or employment termination. And, most significantly, the Directive does not explain when, if ever, the IC element must “authorize” employees to contact the media. It does not, in particular, provide that such authorization must be forthcoming except in cases where the employee might reveal classified or otherwise privileged information. From all that appears on the face of the Directive, administrative officials might have unbridled discretion to withhold authorization based upon whatever criteria they choose. They could, for example, refuse to “authorize” employee speech to the media even about nonclassified, unprivileged information that is already the subject of public debate, and do so even in a case where it is clear that the employee is speaking in her personal capacity, and not as a representative of the government.
In fact, the Directive appears designed to deal with media contacts involving nonclassified (or declassified) information: It does not define “covered matters” as those that are, or are likely to be, classified. Nor does it suggest that reviewing officials should authorize or clear employees to contact the press once the risk of disclosing classified information is allayed. (It is silent on that question.) Moreover, its requirements are limited to contacts with the media — a strange regulatory limitation if classified information were the issue. Most tellingly, the cases expressly invoked in the Directive–the instances it is designed to regulate–are those in which IC public affairs officials or other designated officials are authorized to speak to the press regarding “covered matters” (see paragraph 3a). By necessity, such contacts can only be about nonclassified information, because such officials are prohibited from disclosing classified information, to the press or otherwise.
In this respect, Chris Donesa is absolutely right: “[I]t is hard to argue from the government’s perspective . . . why anyone in the cleared national security community should be discussing matters of this nature with the press except in extraordinary circumstances.” Or, in any event, Chris’s statement would be apt if the “matters of this nature” described in the Directive consisted of classified information, since, as Chris notes, “there can be no halfway and no exempted persons with respect to classification.”
But that’s why I think Chris must be wrong about the subject matter of the Directive. The Directive contemplates that some officials in the IC will be properly authorized to speak to the press. I assume it does so because the Directive is not principally concerned about contacts involving classified information at all, but instead about limiting the category of employees who can contact the press about nonclassified matters. Which is precisely why it raises constitutional and other concerns.