US Prior-Restraint System Is Broken, Workers Tell Court

The Department of Justice headquarters building in Washington. (AP Photo/J. David Ake, File)

GREENBELT, Md. (CN) — Five military and U.S. intelligence community veterans took legal aim Tuesday at the government’s system of prepublication review, calling it rife with dysfunction and inequality.

Represented by the American Civil Liberties Union and the Knight First Amendment Institute at Columbia University, the former public servants brought their suit in Maryland this morning.

Though the prepublication-review system dates back to the 1940s-era CIA, the complaint led by cybersecurity expert Timothy Edgar says it affects workers across a broad swath of government agencies, “without regard to their level of access to sensitive information.”

“Agencies’ censorial decisions are often arbitrary, unexplained, and influenced by authors’ viewpoints,” the complaint states. “And favored officials are sometimes afforded special treatment, with their manuscripts fast-tracked and reviewed more sympathetically. As a result of the system’s dysfunction, many would-be authors self-censor, and the public is denied access to speech by former government employees that has singular potential to inform public debate about government policy.”

Whereas the CIA received 43 submissions for prepublication review in 1977, the agency received more than 8,400 submissions in 2015.

Led by Edgar, who used to work at the Office of the Director of National Intelligence, the plaintiffs describe the government’s review standards as vague and overbroad.

What is censored is often arbitrary and unexplained, leaving “former employees uncertain or unaware of their obligations,” according to the complaint.

Asking a federal judge to rule the system unconstitutional, the plaintiffs say it lacks the safeguards that would otherwise “avoid the dangers of a censorship system.” 

“The pre-publication process in its current form is broken and unconstitutional, and it needs to go,” Brett Max Kaufman, staff attorney with the ACLU’s Center for Democracy, said in a statement Tuesday. “Prepublication review gives the government far too much power to suppress speech that the public has a right to hear.” 

Edgar’s co-plaintiffs include Mark Fallon, a former employee of the Naval Criminal Investigative Service, who needed prepublication review to publish a book about the interrogation and torture policies adopted during the presidency of George W. Bush.

Fallon’s review took close to eight months and was only completed after he’d written a letter to six senators, sent more than a dozen requests for updates, and received media attention and legal help from the ACLU and the Knight Institute. 

Another plaintiff, Richard Immerman, worked at the Office of the Director of National Intelligence as well. He says the government heavily redacted his manuscript, even though it did not contain any classified information, blacking out information in some cases had already been published by government agencies or cited to newspaper articles. Immerman’s manuscript was returned six months after its submission. 

“This far-reaching censorship system simply can’t be squared with the Constitution,” Jameel Jaffer, executive director of the Knight First Amendment Institute, said in a statement Tuesday. “The government has a legitimate interest in protecting bona fide national-security secrets, but this system sweeps too broadly, fails to limit the discretion of government censors, and suppresses political speech that is vital to informing public debate.” 

The other plaintiffs are former CIA employee Melvin Goodman and Anuradha Bhagwati, a former U.S. Marine.

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