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Watson scholar sues federal government over freedom of speech

Timothy Edgar takes on constitutionality of prepublication review process

By
Senior Staff Writer
Sunday, October 20, 2019

Timothy Edgar, senior fellow at the Watson Institute for International and Public Affairs and former associate general counsel at the Office of the Director of National Intelligence, has filed a First Amendment lawsuit against the directors of several federal agencies.

Edgar and four other former government employees allege that the process of prepublication review restricts speech to an unconstitutional degree. A prepublication review involves the government reviewing and potentially censoring the writings of former government employees who were privy to classified information. The complaint requests that this process — one of “prior restraint,” according to the document — employed by the ODNI, the Central Intelligence Agency, the Department of Defense and the National Security Agency be declared unconstitutional, and that the court files an injunction to stop prepublication review from continuing in its current form.

The American Civil Liberties Union and the Knight First Amendment Institute at Columbia University filed the complaint for Edgar v. Coats et al. April 2 with the U.S. District Court for the District of Maryland on behalf of the plaintiffs. The plaintiffs claim that the submission requirements and review standards of prepublication review are “vague, overbroad and leave former employees uncertain” of what they are obligated to submit to the government for review before publishing, according to the complaint. For example, the ODNI requires all former employees to submit any information intended for publication that “discusses operations, business practices or information related to the ODNI (the Intelligence Community) or national security,” according to ODNI’s guidelines for prepublication review.

In response, the Department of Justice has filed a motion to dismiss the lawsuit on the grounds that Edgar’s case lacks standing. The DOJ states that the current system of prepublication review is necessary to ensure that former employees do not reveal classified information to the public. The DOJ also argues that the former employees voluntarily signed lifetime non-disclosure agreements, which allow for prepublication review, in order to obtain their security clearances, according to the defense’s brief supporting the motion to dismiss.

The court has not yet issued a date of oral argument on the motion to dismiss. The DOJ did not respond to The Herald’s request for comment.

The complaint landed months before Edward Snowden, former National Security Agency contractor, released a memoir about his decision to disclose a slew of confidential government documents. Days after the memoir hit stands, the United States filed a civil lawsuit against Snowden, alleging that he violated his non-disclosure agreements with the CIA and NSA by failing to submit his book to the agencies for prepublication review. Edgar has previously taken an interest in Snowden. In 2017, he published a book titled “Beyond Snowden: Privacy, Mass Surveillance and the Struggle to Reform the NSA,” in which he stresses the importance of bolstering privacy protections and outlines the shortcomings of the NSA’s structure.

“The system has gotten out of control,” Edgar told The Herald. “I try to comply with it to the best of my ability, but I don’t think anyone could actually physically comply with the system exactly how it’s written.”

Brett Max Kaufman, a senior staff attorney at the ACLU, added that the prepublication reviewers do not always adhere to their stated benchmark of 30 business days.  “There is no assurance from any of the agencies, and certainly no guarantee of prompt review for works of writing that need to reach the public in order to be relevant to an ongoing debate,” he told The Herald.

When a plaintiff in Edgar v. Coats submitted a 2017 manuscript about his time at the CIA for review, the agency took eleven months to complete the process, and as a result, the book’s publication was postponed, according to the complaint.

Edgar encountered similar problems when he submitted a manuscript for his book “Beyond Snowden: Privacy, Mass Surveillance, and the Struggle to Reform the NSA.” He believes that there is, in practice, an indefinite review period, which in turn restrains speech. “Part of writing in a way that’s effective in the national conversation is knowing that timing and getting it right,” he told The Herald. “The right to speak is the right to speak when it actually matters.”

For Edgar, the biggest issue with prepublication review is its effect on how he decides what to write. Because he wanted to publish the book on Snowden in a timely manner and avoid conflict with the government, Edgar said he frequently found himself thinking, “What can I do to make sure … that my relationship (with the government) is preserved?”

“I shouldn’t be thinking that way. That’s censorship,” he added.

Kaufman called this fear that negative writing will result in increased redactions and damaged relationships with government agencies a “chilling effect on speech,” arguing that the prepublication review constitutes a suppression of speech “through anticipation of government action” rather than direct censorship.

The DOJ argues that the plaintiffs’ concerns represent “a mere preference not to use the existing (appeal process) available to them to contest individual prepublication review decisions,” according to the defense’s brief. They argue that the plaintiffs’ claims of a chilling effect on speech have no standing, as the plaintiffs all stated in the complaint that they intend to continue writing about the government regardless of the “systemic inadequacies they allege.”

The DOJ also asserts that the amount of time needed to review any given submission is dependent on “numerous factors that the Agencies cannot control,” such as submission length and the amount of classified information it contains, according to the defense’s brief.

The defense further argues that whenever prepublication review results in the requirement of a change to submitted writing, “the explanation is that the material is classified.” They state that explanations of why such material is classified would reveal information that the writer is not authorized to receive.

Edgar acknowledged the importance of some form of prepublication review when national security is at risk. “If I really genuinely thought that something I was going to write could damage national security, I would certainly want to submit it to an (agency) and get a second opinion,” he said. “I did make a commitment to the government to keep certain secrets, and I actually honor that commitment.” But he remains committed to challenging the current policy. “It gives the government too much power over that critically important group of people who have credibility to speak to national security issues.”

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