Explainer: Prepublication Review and How it Applies to Bolton

A few days ago, The New York Times published significant revelations from a draft manuscript of former National Security Adviser John Bolton’s memoir, The Room Where It Happened, which is slated for publication this March. In late December, Bolton submitted this manuscript to the government for “prepublication review.” As news reports have explained, the White House could exploit this process to delay or block publication of Bolton’s memoir. Days before the Times ran its story, the White House warned Bolton against publishing his book until it had been reviewed and cleared for publication. But what is prepublication review, and how does it apply to Bolton’s memoir?

Below, we explain the key features of the system and the significant discretion it gives the government to suppress protected speech—potentially including Bolton’s memoir.

Full disclosure: we believe the government’s current system of prepublication review is unconstitutional. The Knight Institute and the ACLU represent five former public servants in an ongoing lawsuit challenging that system on First Amendment and Fifth Amendment grounds.

What is prepublication review?

Prepublication review is the umbrella term for the system of government censorship that prohibits millions of former intelligence-agency employees and military personnel—like John Bolton—from writing or speaking publicly about their government service without first getting the government’s approval. The government asserts that the system is intended to prevent the inadvertent disclosure of classified information.

Prepublication review traces back to the CIA’s early practice of requiring employees to sign secrecy agreements prohibiting them from publishing manuscripts without first obtaining the agency’s consent. In 1980, the Supreme Court decided Snepp v. United States, ruling that the CIA could seize the proceeds earned by a former CIA officer who published a book on the Vietnam War without submitting it for prepublication review. And in 1983, President Ronald Reagan issued a national security directive compelling all intelligence-agency employees with access to highly sensitive information (specifically, “sensitive compartmented information” or “SCI”) to sign a nondisclosure agreement requiring prepublication review of their manuscripts. One year later, the directive was suspended in response to congressional pushback, but federal agencies continued to adopt and develop their own prepublication review regimes.

Since the 1980s, the prepublication review system has expanded on every axis. More agencies impose review requirements on more categories of people. Former employees are submitting more material, and in part because of this, agencies are taking more time to complete their reviews. The amount of information designated as classified—and thereby subject to redaction during review—has increased significantly. And prepublication review processes have grown increasingly complex.

Why did Bolton submit his memoir for prepublication review?  

Bolton is likely subject to several independent obligations to submit his manuscript for prepublication review.

First, Bolton was a presidential appointee (to the post of National Security Adviser), and presidential appointees are generally required to submit their manuscripts for prepublication review. Instruction 80.04 of the Office of the Director of National Intelligence (ODNI) requires presidential appointees such as Bolton to submit for review “all official and non-official information intended for publication that discusses the ODNI, the IC [Intelligence Community], or national security.”

Second, given Bolton’s position, he likely signed government nondisclosure agreements as a condition of access to classified information, and those agreements likely contain prepublication review obligations. For access to SCI in particular, Bolton would most likely have been required to sign Form 4414. That form requires signatories to submit for review “any writing or other preparation in any form, including a work of fiction, that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that [the individual has] reason to believe are derived from SCI.”

These standards for the submission of manuscripts are broad and vague, and it’s not always clear whether any particular manuscript must be submitted.

This said, assuming Bolton is in fact subject to one or more of these prepublication review obligations, it is fairly clear that they apply to his book manuscript. The Room Where It Happened is billed as a “White House memoir” offering a “substantive and factual account of [Bolton’s] time in the room where it happened.” Press accounts say that the book discusses, among other things, Trump’s policies toward Ukraine, as well as Bolton’s concern that the President was dispensing personal favors to autocratic leaders. If these accounts are accurate, Bolton was almost certainly obligated to submit his manuscript for prepublication review.

Importantly, the government takes the view that prepublication review is required even where an author is certain—as Bolton claims to be—that the manuscript contains no classified information. (In response to that claim, the White House has asserted that Bolton’s manuscript “appears to contain significant amounts of classified information,” including top secret information. That claim warrants close scrutiny, as the government’s definition of classified information is notoriously expansive and susceptible to misapplication.)

Who is reviewing Bolton’s manuscript?

Likely the White House and multiple intelligence agencies.

Bolton submitted his manuscript to the National Security Council records office. Given Bolton’s former position within government and the prepublication review obligations to which he is likely subject, that office likely referred his manuscript to several intelligence agencies for review.

In particular, the Office of Director of National Intelligence (ODNI) and whichever agency last authorized Bolton’s access to SCI—whether the CIA, the NSA, or some other agency—are almost certainly reviewing his manuscript. These agencies, in turn, may have referred the manuscript to other agencies with particular interests (what the government calls “equities”) in the manuscript. The government generally does not volunteer to authors whether, and to which agencies, it has referred their manuscripts for review, so it’s possible that not even Bolton knows who has copies of his manuscript.

It’s not entirely clear whether the White House Counsel and the West Wing are also reviewing Bolton’s book. According to one news report, the White House Counsel may be asked to review the book for executive privilege. If this account is accurate, it lends support to the concern that reviewers will redact from Bolton’s book more than just classified information.

How long will prepublication review of Bolton’s manuscript take?

For several reasons, it’s not clear.

To begin with, we don’t know for sure which agency’s prepublication review procedures—and, by extension, deadlines—apply to the review of Bolton’s book. Even if we knew which deadlines applied, most prepublication review deadlines are advisory. For example, ODNI’s instruction states that review will be completed within 30 calendar days, “as priorities and resources allow.” That last clause gives ODNI considerable wiggle room, and many agencies have similar exceptions.

 Even if firm deadlines applied, it’s unlikely they’d be followed. For example, Form 4414 theoretically guarantees that prepublication review will be completed within 30 working days. But in practice, delay is the norm. For example, Mark Fallon (a former DOD employee) and Melvin Goodman (a former CIA employee) had to wait eight months and eleven months, respectively, for their books to be reviewed. A manuscript by former CIA analyst Nada Bakos was reportedly under review for over two years. And the CIA’s own documents candidly project that the review of book-length manuscripts will take more than one year to complete. These personal experiences and government practices are part of the reason we have filed a lawsuit challenging prepublication review.

Will government reviewers look only for classified information in Bolton’s book?  

No.

Like other aspects of prepublication review, the standards that agencies apply when they examine manuscripts are vague and overbroad. Ostensibly, the sole purpose of prepublication review is to prevent the unauthorized disclosure of classified information. But in reality, many agencies have censored—or have claimed the authority to censor—more than just classified information. For example, the CIA demanded that our client Richard Immerman extensively redact portions of his book on the history of the CIA, even though all the information originated from publicly sourced material, including material that the CIA itself had published.

As noted above, one news account suggests that the government may review Bolton’s book for more than just classified information. According to the report, White House officials may be asked to look for information that President Donald Trump’s lawyers claim is protected by their expansive interpretation of executive privilege—despite the holding of one federal appeals court that the government “has no legitimate interest in censoring unclassified materials.”

Can the government block the publication of Bolton’s book, or portions of it?

Effectively, yes.

The government can demand that Bolton redact or rewrite any portions of his book that, in the government’s view, contain classified information (or, as explained above, any other information it determines may not be published). If Bolton decided to rewrite those portions of his book, he would need to resubmit it for another round of review. It does not appear to be common, but the government could even reject Bolton’s entire manuscript, if it determined that no part of it could be published.

More indirectly, the government could simply delay its review of Bolton’s manuscript past the point of its relevance to public discourse—for example, until after the impeachment trial and after the November elections. There are a shocking number of examples of agency censors taking months or even years to complete prepublication review.

If Bolton nevertheless pressed ahead with the publication of his book without final approval, the government could attempt to punish him in a number of ways: by filing a lawsuit to seize the profits from his book, by revoking his security clearance, or by criminally prosecuting him if his book contained classified information.

While the government has several tools it can use to attempt to prevent Bolton’s book, or portions of it, from seeing the light of day, the one thing the government probably can’t do is seek a court order prohibiting Bolton from publishing his book. That would be a dramatic and likely unsuccessful effort, given the Supreme Court’s decision in 1971 rejecting the government’s request to bar The New York Times from publishing the so-called Pentagon Papers, leaked documents concerning the Vietnam War.

Can Bolton challenge the review of his book?

 Yes. If Bolton believes that the review of his book is taking too long, he could ask a court to step in to speed up the process. Last year, Guy Snodgrass, a former top aide to Secretary of Defense Jim Mattis, filed a lawsuit alleging that the Department of Defense was deliberately delaying approval of his manuscript as a “retaliatory and punishing tactic.” Shortly after Snodgrass sued, the Department of Defense cleared his book for publication.

He could also sue to challenge the propriety of any redactions the government insists that he make. Courts are generally very deferential (far too deferential, in our view) to government claims related to classified information, but authors can challenge government redactions as unnecessary or overbroad.

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For more information on the key features of agencies’ prepublication review regimes, check out our interactive chart.

Image: President Donald Trump speaks to members of the media as National Security Adviser John Bolton listens in the Oval Office of the White House August 20, 2019 in Washington, DC. Photo by Alex Wong/Getty Images

 

About the Author(s)

Alex Abdo

Litigation Director of the Knight First Amendment Institute at Columbia University. Follow him on Twitter (@AlexanderAbdo).

Meenakshi Krishnan

Legal fellow at the Knight First Amendment Institute. Follow her on Twitter (@Meenu_Krishnan ).