We Need to Know More About How the Government Censors Its Employees

In December, in a series of editorials published in The Washington Post and Just Security, Jack Goldsmith and Oona Hathaway made the case for reforming the government’s broken prepublication review system. Through secrecy agreements and a patchwork of regulations, intelligence community agencies have for decades required past and present employees to submit any works (written or oral, fiction or non-fiction) for security review prior to publication. Goldsmith and Hathaway sought to draw attention to the many problems that inhere in this system and to spur a debate about how to fix it. (In response, Steven Aftergood had a few good ideas.) There is, however, a major hurdle to reform efforts: Although anecdotal evidence shows instances of egregious delays, overbroad censorship, and discrimination against those who seek to speak critically of the government, little is known about how prepublication review actually works.

We do know that the prepublication review system has many — often vocal — critics. For instance, in a book published just two weeks ago, Michael Hayden, former NSA and CIA director, made one hell of an accusation: He says he wrote an opinion piece in April 2015 in the wake of a US drone strike that killed two hostages, but the CIA’s publication review board told him “that no articles about drones would be cleared regardless of content.” This, in his view, was “a misuse of the review process” and “just plain stupid.” History encourages taking what Hayden says with a grain of salt — but if this story is true, he’s certainly right.

And Hayden’s story is indeed plausible. Two other former CIA directors — Stansfield Turner and Leon Panetta — have shared similar experiences. So has former FBI agent Ali Soufan, who claims that redactions by the CIA’s publication review board to his memoir about Bush-era counterterrorism were politically motivated. Prepublication review, he says, “has more to do with trying to protect a narrative … than protecting classified information.”

These stories are consistent with the little we know about the process from the handful of lawsuits that have challenged the censorship determinations of prepublication review panels. Not surprisingly, these suits tend to involve works that are critical of the agencies in question. In one notable case from the 1980s, evidence showed that “the CIA’s past enforcement record bears a considerable correlation with the agency’s perception of the extent to which the material is favorable to the agency.” In plain English: The CIA was using prepublication review to silence those who disagreed with it. Other cases involved delays in the review process of months or even years.

But while these anecdotes, and the concerns expressed by Goldsmith and Hathaway, hint at a problematic process, we still need a great deal of information to determine the extent of the rot in the system. For example, we know that virtually everything written by government employees who have ever held a security clearance is subject to prepublication review. But how, exactly, these requirements are enforced remains a mystery. What are government censors even looking for when they review a piece? The ostensible purpose of review is to protect classified information, but, as explained above, there are indications that more nefarious purposes are at play. Information about the criteria used would help us understand how broadly these reviews cast their nets.

And the government’s enforcement of its own rules is also something of a black box. How does the government decide whom to punish, and how, for failing to submit a piece for review? We rarely hear about such cases, but is that “evidence of absence” or just an “absence of evidence”? Do certain authors get preferential treatment from review boards? Is prepublication review being used to silence certain viewpoints on important topics of national debate — in other words, to protect not just government equities but government spin? These are critical questions, but we don’t even have a good handle on how many pieces the government reviews, let alone a comprehensive view of what is (and is not) passing through the censors, and for what reasons.

As Goldsmith and Hathaway explain, the concerns they aired are merely “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.” This is classic First Amendment territory, and the government seems to have taken it over. In 1980, the Supreme Court summarily rejected a First Amendment challenge to the enforcement of a prepublication review requirement. But since then, Goldsmith and Hathaway write, the burdens of prepublication review on authors have gotten worse. In no small part, this forced silence is why it’s so difficult to get a grasp on how and why censorship decisions are made. There’s also a “mess of inconsistent regulations,” as Goldsmith and Hathaway put it, since there is no government-wide standard and no administrative appellate body with authority over the censorship determinations of individual agencies.

In an effort to improve this state of affairs, last week the ACLU filed a Freedom of Information Act request seeking records from all intelligence agencies about the standards governing prepublication review and the way those standards are applied. Specifically, we want to know how prepublication review processes are designed; how the applicable rules are enforced; and the impact the review processes have on current and former employees who aim to participate in the public debate. (Of course, if you happen to know something about any of these things, we’d love to hear from you, too.) Our hope is that the information we obtain can be used to assemble a richer picture of the problems described by Goldsmith, Hathaway, and others, and to clarify the path towards fixing a broken system. 

About the Author(s)

Benjamin Good

William J. Brennan First Amendment Fellow at the ACLU’s Speech, Privacy, and Technology Project