Secrecy & Leaks

The Broken Prepublication Review Process

By Jack Goldsmith
Sunday, December 27, 2015, 8:09 AM

Oona Hathaway and I have an op-ed in the Washington Post today about the USG pre-publication review process’s “pervasive and unjustifiable harms to freedom of speech.” The gist:

In practice, the [pre-publication review] system is racked with pathologies. Former government employees are often unsure of the scope of the duty to get clearance. Wanting to comply and fearful of harming their reputations or careers, they tend to show the government more than is required or simply don’t write at all. Officials conducting prepublication review encourage overcautious behavior by broadly interpreting what must be reviewed. (We submitted this op-ed, which clearly contains no classified information, out of an abundance of caution. The Defense Department implicitly found that we had a duty to do so when it approved publication only on the condition that we attach the disclaimer below.)

Problems continue after submission. The review process sometimes takes longer than the specified review periods, leaving authors in limbo. And vague criteria give reviewers enormous discretion over what the public can see. …

The vast majority of those who encounter this broken process remain silent because they think their difficulties are isolated or minor or because they fear repercussions.

Clearly, the government has a legitimate interest in preventing disclosure of classified information. But the current prepublication review process is too expansive, slow and susceptible to abuse. The damage it does to First Amendment values is pervasive but nearly invisible to the public. In an era characterized by endless war and a bloated secrecy bureaucracy, the restrictions on commentary and criticism about government policies and practices pose an intolerable cost to our democracy.

More on this topic later.