Jack Goldsmith and Oona Hathaway called attention in several recent columns to the pre-publication review process (here, here, here, and here) that many current and former national security officials and other government employees must submit to before their work can be published. The process, they argued, has become dysfunctional, overstepping legitimate national security boundaries and infringing on freedom of speech as well as the public’s right to know.
Their case is strong.
Among many pertinent examples, the experience of former Army Reserve officer Anthony Shaffer is particularly instructive. After he wrote a memoir of his Afghan war experience, Shaffer submitted his manuscript to the Army for review, as required, and the approved text was printed. But then the Defense Intelligence Agency intervened and objected that in its estimation the cleared volume still contained classified information. Publication was halted, and the Department of Defense was obliged to purchase and pulp thousands of copies of the book, although numerous publicity copies had already been released. A new version of the book with the objectionable words and passages blacked out was finally published for sale. (Shaffer presented his version of events in a First Amendment lawsuit he brought in 2010, with very limited success.)
What makes the Shaffer case valuable in this context is that both the pre- and post-publication review versions of his text entered public circulation, permitting external scrutiny of the deletions required by the official reviewers. In nearly every case, the redacted words and passages seem to be devoid of national security sensitivity, as the Army itself had originally concluded.
The most frequent redaction is the cover name that the author used while serving in Afghanistan, “Christopher Stryker.” Also commonly deleted are references to the National Security Agency, its headquarters location in Fort Meade, Maryland, and the use of the term “SIGINT” (signals intelligence). Somewhat more plausibly, the identity of the former CIA chief of station in Kabul was replaced with a pseudonym. But rather less plausibly, a passing mention of the name of character actor Ned Beatty was deleted.
The point, in other words, is that there is an empirical foundation for the belief that pre-publication review has gone off the rails. As it is conducted today, the review process too often arbitrarily impedes the freedom of many US government employees to participate in public discourse.
A harder question is what to do about it. In principle, there are several avenues to consider.
One response would be a form of civil disobedience in which the author simply refuses to participate in or comply with pre-publication review. The review is a contractual requirement, accepted by everyone who has signed a non-disclosure agreement containing this provision. So refusing to submit to it is a violation of contract, but not a criminal offense. Under certain circumstances, an author might decide to violate her contract, to forego or ignore pre-publication review, and to accept the corresponding penalty — namely, the forfeit of proceeds from sale of the work.
When a former CIA officer writing under the pen name Ishmael Jones became dissatisfied with the CIA’s pre-publication review process, he went ahead and published his book The Human Factor in 2008 without Agency approval. The CIA filed a lawsuit against him and prevailed in court. But in that case, the CIA did not collect damages because the author had preemptively given his profits away to charity, and under the circumstances the government did not seek to recover the funds. It did, however, reserve the right to seize any future proceeds including any receipts from a potential movie.
More recently, physicist Kenneth W. Ford dismissed the concerns of Energy Department reviewers and published his memoir — Building the H Bomb: A Personal History — over their objections last year. As far as is known, no adverse consequences for the author (or the country) have ensued.
This is a risky and potentially costly course of action that most affected government employees will probably not choose to follow. Among other things, one would want to be very confident that the work in question did not in fact (or even arguably) contain any classified information. If it did, its unauthorized publication could complicate the author’s legal situation considerably, to say the least.
Still, it is good to know that there are options available when an agency review process becomes stuck or stubbornly irrational, or when the need to inform the public is urgent.
Another approach would be to start with the contractual origins of the pre-publication review requirement. One could imagine that some individuals would refuse to sign a classified information nondisclosure agreement if they fully understood that it rendered them vulnerable to a lifelong pre-publication review process, especially a dysfunctional one.
In fact, I know of more than one person who has declined to accept a security clearance and the employment possibilities it provided precisely because it entailed what they considered an intolerable limitation of their personal freedom to speak, write, and publish.
If enough people came to feel the same way, then government agencies might eventually feel compelled to adapt their requirements in order to meet such concerns at least part way. But that is a long-term educational project rather than a near-term policy solution.
A legislative fix for the pre-publication review problem might seem to be the first and best option, but it hardly seems likely in the current political environment. In any contest between individuals and national security agencies, Congress today is predisposed to side with the agencies. In most matters concerning national security information policy, the dominant trend in Congress begins with deference to the executive, and proceed from there.
For example, when the House of Representatives passed new amendments to strengthen the Freedom of Information Act on January 11, it emphasized that the amendments would not require release of any information that “would adversely affect intelligence sources and methods.” Of course, sources and methods are already exempt from FOIA, so this language seems designed to extend existing withholding practices to an ill-defined penumbra of information that would “adversely affect” the already protected sources and methods.
This does not seem like a very favorable environment for devising constructive limitations on pre-publication review in the near term. But perhaps the right test case would help to catalyze a solution.
There is some remarkable ferment in the executive branch over national security information policy that may provide openings for efforts to modify pre-publication review.
Goldsmith and Hathaway presented an outline of what a reformed pre-publication review process might look like, including both substantive and temporal limits on its operations. If consensus emerged around the details, then there are several points within the executive branch where a proposal for reform of pre-publication review could be injected into the policymaking process. Of course, none of them is guaranteed to produce the desired result, and they may produce no result at all. But one can try:
- The Public Interest Declassification Board (PIDB) is an advisory body composed of non-governmental persons appointed by the White House and Congress. Among its functions, it is broadly empowered to “advise the President and other executive branch officials on policies deriving from Executive Orders regarding the classification and declassification of national security information.” If pre-publication review policy is defective, that is an issue that seems to be within the Board’s purview.
- The Security Classification Reform Committee is an interagency working group led by the White House (via the National Security Council) to consider improvements to national security information policy. (It was established in response to a recommendation from the Public Interest Declassification Board.) The Committee has shown some willingness to meet with advocacy organizations and to receive public input concerning its agenda (for example, here and here).
- The Intelligence Community Transparency Council is composed of representatives of all US intelligence agencies led by the Office of the Director of National Intelligence. The relatively new Council has been established to wrestle with the meaning of transparency, and its implications, within the predominately classified field of intelligence.
None of these entities is what anyone would call a household name, even among those actively concerned with national security policy. Nor have any of them yet (with the possible exception of the PIDB) established a substantial record of achievement.
But significantly in this context, all of the individual members of all of these committees are themselves subject to the pre-publication review requirement. That means that they have a personal as well as an institutional self-interest in helping to fix any systemic flaws in the process.
Given all of these potential directions for advancing reform of pre-publication review, my own choice would be: none of the above. I would focus instead on classification reform.
Pre-publication review is one of a cluster of issues that derive from national security classification policy. Other such derivative issues include declassification of historical (and contemporary) records, personnel security clearance policy, oversight of classified programs, national security whistleblower policy, and more.
While each of these issues is important, classification policy is at or near the root of all of them. And if classification practices can be improved, then each of these derivative issues should become more tractable than they currently are.
Of course, fixing the classification system is easier said than done. But it can be done. For the last four consecutive years — from 2010 to 2014 — the number of new secrets created each year (formally known as “original classification decisions”) has dropped, according to statistics reported to the President by the Information Security Oversight Office. By 2014, the number of new secrets generated was the lowest on record.
One way to extend this record is to further clarify the classification guidance used by agencies and to make that guidance as narrow and precise as possible, reducing or eliminating the subjectivity of classification (and, by implication, of pre-publication review). The best opportunity for advancing this objective happens to be the pending Fundamental Classification Guidance Review that is to be performed over the next 18 months by all executive branch agencies that classify information (pursuant to section 1.9 of Executive Order 13526).
If the Review is successful, the scope of classification activity should shrink further and the tool of national security classification should be applied with ever-greater discrimination. And if that happens, then the solution to persistent pre-publication review problems will be closer at hand. There should be no more redacted references to “Ned Beatty.”