Prepublication Review

Suggestions for Streamlining the FBI’s Prepublication Review Process

By Darren E. Tromblay
Wednesday, April 17, 2019, 9:00 AM

Scholars of the U.S. intelligence community have engaged in a robust discussion of the community’s prepublication review, or prepub, process. Many of these discussions have been critical in tone, and certainly, the processes that former national security practitioners describe do sound unduly arduous. The American Civil Liberties Union and the Knight First Amendment Institute have initiated a project to address these issues. On April 2, the same groups filed a lawsuit against several agencies in the intelligence community alleging that the prepublication review regime violates the First and Fifth Amendments and asking a federal judge to halt the process on that basis. Hopefully, this effort will help to streamline the prepub process across the intelligence community and hold it accountable where necessary. However, in the midst of this criticism, I thought it would be useful to describe the strengths and shortcomings of the prepub process, along with a few potential improvements.

FBI Prepublication Review: The Policy and Controversies

I’ve served at the FBI for more than a decade, and since 2015, I have published extensively on issues of intelligence in the domestic setting, including four books and multiple peer-reviewed journal articles as well as various editorial pieces. In accordance with the employment agreement that I signed upon joining the bureau, I’ve put these writings through the FBI’s prepub process. For the sake of clarity, I am unaware of any other current or former employees who are publishing works based strictly on open-source information; therefore, I can speak only from my own experience in this respect. I have no complaints about the personnel who staff the Information Management Division, which is responsible for processing submissions.

My writing has hardly been hagiographical about my employer—colleagues refer to me as “the loyal opposition.” I believe in the bureau’s mission and its potential, but I’m fully willing to fire a few editorial shots across the bureaucratic bow—both in academic journals and here at Lawfare—when I spot practices that do not align with the mission that the American public places trust in and relies on the FBI to fulfill. To the credit of the prepub staff—and true to the process’s guidelines, which state that “[d]isclosures will not be prohibited ... solely because they are critical or disparaging of the FBI”—the personnel responsible for the process have never imposed changes based on my work’s sometimes critical editorial line.

The FBI prepub guidelines clearly state that publications containing “FBI information” are among those subject to vetting, which the guidelines define as “any knowledge gained through FBI employment or assignments related to the FBI.” This is as it should be. According to Section 1.1 of the guide, “[a]ll information created and acquired by current and former employees and government contractor employees ... in connection with official FBI duties, as well as all official material to which FBI personnel have access is the property of the United States.” Releasing such information without approval would be tantamount to theft.

One high-profile episode involving the FBI prepub process focused on the use of precisely this type of information. Robert Wright wrote an approximately 500-page manuscript for a book called “Fatal Betrayal” that, as the FBI pointed out and a judge affirmed, contained classified information and information protected by the Privacy Act. The bureau did not simply reject Wright’s book out-of-hand but, rather, requested removal of certain material—less than 20 percent of the overall text.

My own experience has been consistent with this incisive approach. When a reviewer has had questions about my sourcing, he or she has asked for—and I have provided—copies of the items I cited. No reviewer has objected to any of my manuscripts once I furnished evidence that the factual information was publicly available.

A Path Forward for Prepub

There are certainly areas where the process could be streamlined, but these are matters of policy rather than execution.

The 2015 prepublication guide leaves some ambiguity around what must be submitted. As explained in Section 3.1 of the guide, “it is FBI policy that prior to any proposed disclosure of FBI information (outside of official duty requirements), all FBI personnel must comply with the prepublication review process.” However, the guidelines, at Section 4.1.3, draw a clear distinction of what does not have to be submitted for prepublication review only at those issues “that clearly have nothing to do with the FBI or its activities, investigations, missions, or operations.” That leaves a lot of gray area in between what does and does not warrant submission.

This gray area makes life more difficult for academics currently in or formerly with the FBI who attempt to conscientiously honor their obligations to the bureau. A handful of employees write academically—using only declassified and publicly released sources—on issues of intelligence history and policy. These fields are established academic niches, as anyone who has participated in the Intelligence Studies Section of the International Studies Association, or similar organizations, can attest. These works often fall within the gray area by mentioning the FBI and discussing the bureau’s history, both positively and negatively, but they often do not rely on “FBI information” and instead cite publicly available sources, if for no other reason than to demonstrate scholarly rigor.

Requiring scholarly, well-cited works to go through prepub presents two dilemmas. First, it puts academic authors who are presently or were previously employed by the FBI at a disadvantage relative to their peers in academia. Even if these two sets of academics are working from the same set of publicly available sources, the FBI-affiliated authors are at a disadvantage in the paper chase. They risk losing first-mover advantage in publishing purely scholarly works due to the additional time constraints of prepub review. This is particularly problematic for those individuals who go from the FBI to full-time academia. The “publish or perish” paradigm of higher education and research means that the careers of these former FBI employees depend on winning the competition to reach the printed page, and they face extra and time-consuming hurdles.

However, it is not only the author who may be negatively impacted by prepub policy. The second problem is one of FBI resources. Requiring (or leaving authors with the impression) that comprehensively sourced documents are subject to prepub prior to circulation imposes additional and unnecessary burdens on the finite time of prepub reviewer staff.

One policy clarification that would greatly help writers subject to prepub would be to distinguish publicly sourced, academically oriented writing from the murkier memoir-istic works that draw on employees’ firsthand experiences. Currently, the guidelines state that “knowledge gained through FBI employment or assignments related to the FBI” is subject to prepublication review. Adding verbiage along the lines of an earlier FBI employment agreement, which stipulated that “this agreement is not intended to apply to information which has been placed in the public domain or to prevent me from writing or speaking about the FBI,” would eliminate the current gray area.

Prepublication guidelines already provide some latitude to employees and former employees, when it comes to speaking, through, for example, provisions for extemporaneous disclosures. These provisions acknowledge that past or present FBI personnel may find themselves in situations where they cannot first put their comments through prepub. However, the guidelines say that “[i]f an individual reasonably concludes that deferring comment is not practicable, he or she may be subject to postdisclosure administrative action, discipline, and / or criminal sanctions, if warranted by the content of the disclosure.” It would help FBI-affiliated personnel if the prepub policy made a similar exception for certain written products by clearly acknowledging that authors can publish before receiving approval from the government but are accountable for ensuring that their work is built solely on publicly available sourcing. Written products would still have to be submitted so that the bureau could ensure that authors had made a good-faith effort to comply with nondisclosure requirements.

One important distinction to make, when setting out policy, is the differentiation between publicly available information and non-publicly released “unclassified” information. Even if internal information is “unclassified” it—until being officially released—remains the property of the government. Without proper vetting prior to disclosure, such internal documents could, in totality, present a classified picture, as explained by David Pozen’s mosaic theory of national security. In comparison, the Office of the Director of National Intelligence has stated that officials may cite “media reports as long as by doing so they do not confirm classified information.”

It is in the interest of the FBI and the United States to revise the bureau’s guidelines in order to facilitate timely publication. A steady discussion of intelligence in the domestic setting would demystify the bureau for the American public—which too often and mistakenly views the FBI as an omnipotent behemoth intent on violating civil liberties—and show it to be an organization that not only tolerates discussion and criticism but also encourages it, so long as that discussion respects FBI information.

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The FBI’s prepublication review process is fair to authors who are transparent about their sourcing and do not exploit insider access. But, through no fault of the personnel responsible for administering the process, the current guidelines leave too much ambiguity. Ultimately, clarifying prepub policy would encourage accountable discourse that would benefit the FBI and strengthen U.S. national security.