Secrecy & Leaks

More Problems with Prepublication Review

By Jack Goldsmith, Oona Hathaway
Monday, December 28, 2015, 12:00 PM

Editor's Note: This post also appears on Just Security.

Over the weekend, we published an op-ed in the Washington Post about the government’s broken prepublication review process.  The problems, in a nutshell, are (a) the stated criteria for review go far beyond what is needed to identify classified information in a draft for publication, (b) the chilling effect of these standards is exacerbated by reviewers who broadly interpret their mandate, (c) the review process sometimes takes longer than the specified review periods, leaving authors in limbo and with no recourse, and (d) vague criteria give reviewers enormous discretion over what the public can see, again usually without effective recourse by authors.  The problems, we claimed, cause “pervasive and unjustifiable harms to freedom of speech.” 

We follow-up here by flagging two other problems we did not have space to discuss in the op-ed.  Later today we will explain how we got to this state of affairs, and later this week we will discuss broader systemic issues related to prepublication review. 

One additional problem is that information reviewers do not limit themselves to reviewing the submitted manuscripts for classified information.  For example, when we submitted the Op-Ed itself to DOD—a piece that obviously included no classified information—DOD cleared it, but only conditionally.  Its letter to us provided: “The paper is cleared as amended for public release, subject to the inclusion of the following disclaimer statement: ‘The views expressed in this article are those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. Government.’” This condition, of course, has nothing to do with insuring against publication of classified information.  (In this connection, we should note we did not submit this post or the subsequent two on this topic for pre-publication review.  We are confident that they do not contain any classified information.  We also believe that it is fair to conclude that they are not “based on” our time in government service.  But we are also reasonably confident that if we were to submit them for PRB review, they would be accepted for review—and the process of review would undoubtedly take many weeks, at best.  (In case there is any doubt, however, we wish to make clear that these posts reflect our own views and not the views of the Defense Department or the U.S. Government!)) 

Another example involves Jack’s book The Terror Presidency, which was critical of some elements of the U.S. government.  When he submitted the draft to DOJ for review in 2006, the pre-publication reviewers circulated the draft widely around the government.  He subsequently received requests related to the book from components he did not submit to about matters that had nothing to do with classified information.  He was also surprised when he showed up at the Grand Jury investigating the leaks of the Terrorist Surveillance Program (an episode discussed in The Terror Presidency), that the classified information reviewers at DOJ had given a copy of the draft to the prosecutor, which he used as a basis for his questions.  Similarly, Oona submitted a workshop paper, which was critical of some aspects of the national security lawmaking process, and started receiving queries about it from those in and out of government who had learned about it from those who had seen a copy in the course of PRB review. 

These practices are an indication that the government sometimes uses the pre-publication review process for reasons beyond checking for classified information.  It also shows the casualness with which the government sometimes treats the draft work of those who try to play by the rules.

A second problem, we are reliably informed, is that FOIA adversely affects prepublication review decisions.  In some agencies, the same people review FOIA requests and prepublication review requests.  And apparently the reviewers are sometimes cautious about approving publication because they worry that allowing a former government official to publish a piece of information will constitute “official acknowledgment” in a way that might be used in FOIA litigation as a stick to pry information from the government.  Perhaps FOIA needs reforming (a topic we take no position on), but leveraging FOIA concerns in this way is an inappropriate basis on which to prevent or delay publication.  The FOIA angle is yet another indication that Congress needs to get its arms around how the prepublication review process actually works and figure out how it should work in conjunction with other congressional programs and with constitutional values.  And in the process, as we noted in the op-ed, it is vital that Congress give the Executive branch adequate resources to carry out its prepublication tasks properly.   (Some people inside the government think that many of the pathologies about pre-publication review – especially the long delays and some of the hard-to-justify censorship decisions – result from a severe lack of resources.)

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