RICHMOND, Va. (CN) — Attorneys sparred before a Fourth Circuit panel on Tuesday over the constitutionality of a policy implemented by four federal agencies, which requires former intelligence agency employees and military personnel to obtain the government’s permission before publishing works that relate to their service.
Five former federal employees brought their challenge to the government’s “prepublication review” system in 2019, claiming the policy violated their rights under the First and Fifth Amendment.
Attorneys for the Knight First Amendment Institute and the American Civil Liberties Union who filed a lawsuit in federal court in Maryland on behalf of the public servants say the policy’s submission requirements and review standards are too vague, confusing and overbroad.
The groups say that the requirement to submit writings for review prior to publication is imposed on millions of former government employees “without regard to whether those employees ever had access to sensitive information, and without regard to how long ago those employees left government service.”
“In the absence of concrete deadlines, manuscript review frequently takes weeks or even months, which means that books, articles, and blog posts cleared for publication are published long after the debates they seek to engage have subsided. And Defendants’ censorial decisions are often arbitrary, unexplained, unrelated to national security concerns, or influenced by authors’ viewpoints,” attorneys wrote in a 64-page appellants' brief.
The brief lists top officials from the Central Intelligence Agency, Department of Defense, National Security Agency and Office of the Director of National Intelligence as defendants in the case.
“This case is about a sprawling system of lifetime restrictions on the speech of millions of former government employees, including plaintiffs,” said Brett Max Kaufman, the attorney who argued on behalf of the former government employees during oral arguments on Tuesday.
He asked the three-judge panel for the Fourth Circuit to reverse a district court’s earlier decision to dismiss the case.
Kaufman said his clients, Timothy H. Edgar, Mark Fallon, Melvin A. Goodman, Richard H. Immerman and Anuradha Bhagwati, have all been failed by the prepublication review system.
“These regimes suppress and chill speech that has enormous significance to public debate about critical national security issues by the people whose perspective the public needs to hear most,” he told the panel.
Authors who were formerly employed by these agencies may challenge instances of censorship in court, but a problem presented in this case, Kaufman said, is that there is an absence of mechanisms to challenge censorship within the agencies.
Kaufman told the Fourth Circuit that people in this category often decide not to speak at all “in light of the burdens associated with submission as well as the potential for abuse created by the censors’ wide ranging discretion.”
U.S. Circuit Judge Paul Niemeyer, a George H.W. Bush appointee, pushed back on Kaufman’s assertions.
“Sounds to me like that argument is challenging the agencies’ claim to national security and secrecy. In other words, if you take the position that the public would be well served by knowing how we handle national security secrets and so forth, that challenge is the whole policy of national security,” Judge Nieymeyer said.
'But the question here is when an employee goes into a national security agency, they know they’re going into a place that is developing and collecting data and has secrets, and they sign documents that that say they know that and they also know that they’re not allowed to take any data from the agency or publish it without prior permission," he added. "And, what’s wrong with that? A person has total free choice not to go to work for the NSA.”
Neimeyer was joined on the Fourth Circuit panel by U.S. Circuit Judge Barbara Keenan, an Obama appointee, and Senior U.S. Circuit Judge William B. Traxler Jr., who was nominated by Bill Clinton.
Kaufman argued that “this case is not about whether the government may constitutionally implement some system of prepublication review.” Rather, he said, his clients argue that the agencies have too much discretion when it comes to censorship and often assert the authority to censor information that is not classified and information that is not learned in the course of government employment.
He cited the experience of one plaintiff, former CIA officer Mel Goodman, as an example of the possible chilling effect of the prepublication review process.
“Mr. Goodman, who lost access to CIA information in 1986 was told he couldn’t write about the drone program, which began 30 years later,” Kaufman said.
Goodman waited more than 11 months for his memoir, "Whistleblower at the CIA," to clear prepublication review. When his manuscript was eventually returned, the CIA insisted that he redact pages of information that was already in the public domain.
“All four regimes require submission of virtually anything that former employees write about the government or national security,” Kaufman said. “And that is just a huge category of information.”
Daniel Winik argued on behalf of the government agencies listed as defendants in the case.
“Plaintiffs’ claims in this case rely over and over again on allegations about how the agencies are supposedly applying these policies. Over and over again. They say on page one of their brief that quote ‘defendants’ decisions are often arbitrary, unexplained, unrelated to national security concerns or influenced by the author’s viewpoints,' but theres just no basis even at the pleading stage here, to assess these sort of sweeping allegations,” Winik said.
“There is no plausible basis from those documents to believe that the government is doing anything illegitimate in applying the prepublication review process,” Winik added, accusing Kaufman’s side of “extensive speculation.”
He noted that four of the plaintiffs in the case had submitted a prepublication review and all had information redacted from their publications.
“They challenged the propriety of some of those redactions, but they don’t suggest that they were all improper,” he said.
That illustrates that four of the authors would have unwittingly revealed classified information, if it were not for the prepublication review process, Winik argued.
“The policies are equally reasonable in the review standards they apply. Both the policies and the nondisclosure agreements make clear that works are reviewed to determine whether they disclose classified information or in some limited instances, information that is statutorily protected even if it is not classified,” Winik said. “That is entirely within constitutional bounds.”
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