Prepublication Review: Court-sanctioned Censorship 

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For First Amendment and government transparency advocates, the fall of 2020 is off to a decidedly dreary start.

On September 29, Judge Liam O’Grady in the federal Eastern District of Virginia gave the Department of Justice and the Intelligence Community an unsurprising but still depressing win, imposing a constructive trust against whistleblower Edward Snowden for any monies he received for his book Permanent Record and some 56 speeches he gave from December 2014 through at least July 2020. On October 1, federal D.C. Circuit Judge Royce Lamberth denied former National Security Advisor John Bolton’s motion to have a similar case over his book, In The Room Where It Happened, dismissed on First Amendment grounds. 

In both cases, the respective judges held that both men were legally bound by the secrecy and related agreements they had signed not to publish anything about their time in government without first submitting the material for what is commonly referred to as “pre-publication review”—a euphemism for government censorship. The original and still controlling major case that guaranteed these outcomes is the four-decade old Snepp v U.S. (444 U.S. 507 (1980)) Supreme Court decision. 

The plaintiff, former CIA Director of Operations employee Frank Snepp, published a completely unclassified account of his time and experience dealing with American involvement in the Vietnam War. When the Agency learned of Snepp’s action, it sued in federal court to seize Snepp’s royalties from the book and enjoin him from any other publishing endeavors without prior Agency approval. 

Without even hearing oral arguments in the case, the Court sided with the Agency. Here’s the key paragraph from the decision:

Whether Snepp violated his trust does not depend upon whether his book actually contained classified information. The Government does not deny — as a general principle — Snepp’s right to publish unclassified information. Nor does it contend — at this stage of the litigation — that Snepp’s book contains classified material. The Government simply claims that, in light of the special trust reposed in him and the agreement that he signed, Snepp should have given the CIA an opportunity to determine whether the material he proposed to publish would compromise classified information or sources. Neither of the Government’s concessions undercuts its claim that Snepp’s failure to submit to prepublication review was a breach of his trust.

The Snepp decision stands as one of the most ludicrous in the history of the Supreme Court.

In rendering their decision on the basis of contract law, rather than on the merits as to whether or not Snepp had revealed information that was currently and properly classified, the Court created an Executive branch-controlled system of prior restraint that gives it the ability to thwart former employees from disclosing waste, fraud, abuse, or even criminal conduct by their prior federal employers.

This, of course, is exactly what Snowden did in June 2013—expose crimes against the Constitution, and specifically flagrant, massive violations of the Fourth Amendment via NSA’s then-still operational telephone metadata program. It would take over two years and multiple attempts by Congress to address Snowden’s revelations, with the final product being an anemic and ineffectual piece of legislation ironically named the USA Freedom Act. Congress to no action to condemn, much less impeach, those who had authorized or carried out the illegal surveillance.

Even as Snowden lived in exile with Espionage Act charges handing over his head, those who had run the illegal NSA program never lost their jobs, much less faced federal charges for the Fourth Amendment breaches Snowden brought to light. The same was true of those in the Bush 43 administration who created and ran the unconstitutional, post-9/11 NSA program known as STELLAR WIND, which also warrantlessly vacuumed up the digital communications of millions of Americans. These illegal programs operated under a cloak of secrecy via Executive Order 13526, Classified National Security Information

EO 13526 is the Executive branch’s daily operating manual for deciding what gets classified and why. It also expressly forbids using the classification system to conceal wrongdoing, with Section 1.7(a) stating 

In no case shall information be classified, continue to be maintained as classified, or failto be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error;(2) prevent embarrassment to a person, organization, or agency;(3) restrain competition; or(4) prevent or delay the release of information that does not require protection in the interest of the national security.

Both of the NSA programs I’ve described were inherently unconstitutional and thus illegal at their outset—which meant their “Top Secret” classification was never valid. Yet no federal court has ever stopped to question Executive branch officials about the validity of their classification claims in pre-publication review cases like Snowden’s or Bolton’s, instead treating the terrible and demonstrably flawed Snepp decision as an immutable precedent.

What effect the Bolton and Snowden case decisions will have on the ongoing Edgar v. Ratcliffe prepublication constitutionality challenge is uncertain, as that case is being argued on Fifth Amendment due process grounds. However, unless federal courts can be convinced to abandon their practice of showing a ridiculous level of deference to Executive branch secrecy claims—claims that have no textual basis in the Constitution—it may take an act of Congress to fully restore the First Amendment rights of former National Security community employees and contractors to safely speak their minds about their former masters.

Former CIA analyst and ex-House Senior Policy Advisor Patrick Eddington is a Research Fellow at the Cato Institute and a DRAD board member.