Important First Step by HPSCI on Pre-Publication Review Reform

Editor’s note: This post also appears on Lawfare.

We are happy to learn, via Secrecy News, that the House Permanent Select Committee on Intelligence (HPSCI) has weighed in constructively on the pre-publication review issue that we first wrote about here (and followed up on here, here, and here; see also Steve Aftergood’s contribution).

On page 7 of its Report on the Intelligence Authorization Act for Fiscal Year 2017, in a Section titled “Committee Priorities,” the Committee expressed its concerns with the pre-publication review process:

The Committee is concerned that current and former IC personnel have published written material without completing mandatory pre-publication review procedures or have rejected changes required by the review process, resulting in the publication of classified information.  The Committee is particularly troubled by press reports suggesting that officials are unaware of the existence or scope of pre-publication review requirements.

The Committee is also aware of the perception that the pre-publication review process can be unfair, untimely, and unduly onerous and that these burdens may be at least partially responsible for some individuals ‘‘opting out’’ of the mandatory review process.  The Committee further understands that IC agencies’ pre-publication review mechanisms vary, and that there is no binding, IC-wide guidance on the subject.

The Committee then expressed the following “beliefs”:

The Committee believes that all IC personnel must be made aware of pre-publication review requirements and that the review process must yield timely, reasoned, and impartial decisions that are subject to appeal. The Committee also believes that efficiencies can be identified by limiting the information subject to pre-publication review, to the fullest extent possible, to only those materials that might reasonably contain or be derived from classified information obtained during the course of an individual’s association with the IC.  In short, the pre-publication review process should be improved to better incentivize compliance and to deter personnel from violating their commitments.

Next, the Committee “directs that, no later than 180 days after the enactment of this Act, the DNI shall issue an IC-wide policy regarding pre-publication review,” and shall “transmit this policy to the congressional intelligence committees concurrently with its issuance.” The Committee further stated that such policy “should require each IC agency to develop and maintain a pre-publication policy that contains, at a minimum, the following elements”:

(1) Identification of the individuals subject to pre-publication review requirements (“covered individuals”);

(2) Guidance on the types of information that must be submitted for pre-publication review, including regarding works (a) unrelated to an individual’s IC employment; or (b) published in cooperation with a third party, e.g.—

(i) Authored jointly by covered individuals and third parties;
(ii) Authored by covered individuals but published under the name of a third party; or
(iii) Authored by a third party but with substantial input from covered individuals;

(3) Guidance on a process by which covered individuals can participate in pre-publication reviews, and communicate openly and frequently with reviewers;

(4) Requirements for timely responses, as well as reasoned edits and decisions by reviewers;

(5) Requirements for a prompt and transparent appeal process;

(6) Guidelines for the assertion of interagency equities in prepublication review;

(7) A summary of the lawful measures each agency may take to enforce its policy, to include civil and criminal referrals; and

(8) A description of procedures for post-publication review of documents that are alleged or determined to reveal classified information but were not submitted for pre-publication review.

The Committee also issued two other directives. The DNI has 180 days after the enactment of the Act “to provide to the congressional intelligence committees a report on the adequacy of IC information technology efforts to improve and expedite pre-publication review processes, and the resources needed to ensure that IC elements can meet this direction.” And the DNI has 270 days after the enactment of the Act to “certify to the congressional intelligence committees that IC elements’ pre-publication review policies, non-disclosure agreements, and any other agreements imposing pre-publication review obligations that reflect the policy described above.”

To reiterate, these directives are issued in a House Report and are not part of the authorization bill itself. As DNI General Counsel Robert Litt noted recently in a related context, the Report “expresses the views of the Congress, and it therefore would ordinarily be followed as a matter of comity, but does not have the force of law.” The directives are nonetheless a strong signal by the DNI’s House oversight body about its concerns and expectations (which is precisely why they are ordinarily followed as a matter of comity). Here we highlight and comment on a few key elements of this remarkable and important step forward:

First, HPSCI’s call for an “IC-wide policy regarding pre-publication review” has the potential to correct an incoherent system of diverse and conflicting pre-publication review standards across the various intelligence agencies. As we previously explained, the current system of separate agency pre-publication review standards is an historical artifact. In the face of congressional opposition to its pre-publication rules, the Reagan Administration suspended a uniform Directive. But instead of ending pre-publication review, the agencies simply developed their own non-uniform pre-publication rules. HPSCI’s call for a new IC-wide policy offers an opportunity for the DNI to correct this unintended consequence. An IC-wide policy on pre-publication review would not necessarily create perfect uniformity, since HPSCI also said that the DNI should “should require each IC agency to develop and maintain a pre-publication policy” that contains the specific eight elements outlined above. Such minimal non-uniformity in pre-publication review to reflect differences in agency missions and resources might be acceptable as long as the IC-wide policy reflects specific guidance on each of the eight elements. It would not be much of a step forward, however, if the DNI’s IC-wide policy were anodyne and wide disparities in pre-publication standards continued to prevail across IC agencies.

Second, the instruction to develop clearer rules on what types of information must be submitted is extremely important. In particular, allowing covered individuals to avoid pre-publication review for material “unrelated to an individual’s IC employment” has the potential to streamline the review process. As we noted earlier, the current standards are so sweeping in practice that publications that have little to do with an individual’s IC employment are very often subject to review. As a result of the broad standards, the pre-publication review boards are inundated with material that could not reasonably be thought to contain or be derived from classified information. This leads to a large workload that slows down the entire process. That delay, in turn, discourages former employees from submitting publications for review. They know that once they submit a piece for review, they may be left waiting for many months if not longer. Narrowing the scope of material subject to review could therefore better protect not only the free speech rights of covered individuals but also better serve the national security interests of the US government.

Third, the call for a timely response to a pre-publication review request is essential. The DNI should establish a clear and binding timeline for review, ideally no longer than 30 days, at least as a matter of strong presumption, or at least for all but the longest and most technical works. That timeline, moreover, needs an enforcement mechanism. One option would be to allow an applicant to move forward with publication if he or she does not receive an informed response within 30 days. This proposal is not as radical as it may at first appear, as criminal penalties remain as a sanction if the publication indeed contains classified information.

Fourth, the call for guidelines for the assertion of interagency equities in the pre-publication review process is key. Many of the most egregious cases of delay in pre-publication review are due to poor interagency coordination. The agency for which the former employee worked may review the publication quickly, but other agencies that are consulted may take weeks or months (or longer) to sign off on the review. When a matter involves several agencies, this can lead to unacceptably long delays. A process for better interagency cooperation on these matters is sorely needed.

Fifth, HPSCI’s request for information on “the resources needed to ensure that IC elements can meet this direction” points to a larger issue that many in the intelligence community believe lies at the heart of the problem with the pre-publication review process. In a world where so much information is classified and publication is so easy and ubiquitous, the intelligence agencies are swamped with pre-publication review requests. One part of the solution, as we noted above, is focusing limited agency resources more narrowly on those materials that might reasonably contain or be derived from classified information. But another important part of the solution is to provide the intelligence community with the resources it needs for a careful but expeditious pre-publication review. The HPSCI directives are an opportunity for the intelligence community to spell out both the demands placed on it (such as the number and types of pre-publication review requests) and the resources it needs to do what HPSCI has asked.

In short, HPSCI has offered an opportunity for the DNI to better balance First Amendment and national security interests by bringing greater clarity and predictability to the pre-publication review process. In developing a new IC-wide policy regarding pre-publication review, the DNI should bear in mind that less can be more: By providing a more focused, fairer review process, the government can better protect the country’s genuine security interests while not unduly burdening the free speech of those who have chosen to devote a part of their career to public service. 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School Follow her on Twitter (@oonahathaway).

Jack Goldsmith

Henry L. Shattuck Professor at Harvard Law School, Senior Fellow at the Hoover Institution, Former Assistant Attorney General of the Office of Legal Counsel (2003-2004), Former Special Counsel to the Department of Defense (2002-2003) Follow him on Twitter ().