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Protecting Government Equities Enthusiastic authors hoping to use information obtained from official or unofficial leaks in their books are walking into a minefield. that the behavior is acceptable. 24 Enforcement of anti-leaking laws, as haphazard as it has been, has focused almost entirely on the leakers, while the recipients of the leaks—typically journalists—are left untouched. 25 Courts have also taken a dim view of attempts to block publication of leaked material. 26 On the other hand, courts have consistently upheld CIA efforts to block publication by individuals who are “in privity” with the agency by virtue of having signed a secrecy agreement that obliges them to seek prepublication permission for manuscripts. This has enabled the CIA to temporarily stop publication of books by former employees in order for the PRB to gain access to the manuscript. However, the secrecy agreement has applied only to attempts by CIA-affiliated authors to publish their own works; it has not been ruled to constitute grounds for enjoining publication by third parties. 27 Enthusiastic authors hoping to use information obtained from official or unofficial leaks in their books are walking into a minefield. One of the problems with publicly available information is the possibility that the information is still considered classified by the originating agency or department. Up until about 2014, CIA neither affirmed nor denied involvement in the Predator program, while Hank Crumpton’s 2012 book discussed the Predator program in detail. Ambassador Crumpton’s book clearly states the book was reviewed by the CIA’s PRB, but once published, many in the IC thought the inclusion of the Predator account in the book was at least curious, given the agency’s continued refusal to confirm its existence. This situation is not limited to CIA. In an atmosphere like this, an Intelligence Community person using classified terms but quoting them from reports in the media would presumably strongly challenge the probable redactions. A Broken Process? In a Washington Post op-ed dated 27 December 2015, Jack Goldsmith and Oona A. Hathaway lamented, “The government’s prepublication review process is broken.” 28 They state in their opening paragraph: We both learned the hard way that public service in jobs related to national security carries the risk that, for the rest of our lives, the government will insist that we allow it to review virtually everything we write related to our time in government before it can be published. We are not alone. Hundreds of thousands of former government employees who have had access to classified information cannot publish without permission. This system results in pervasive and unjustifiable harms to freedom of speech. 29 The secrecy or non-disclosure agreement signed by both of these individuals prior to their being allowed to access classified information clearly specifies a prepublication review requirement. Furthermore, any other nondisclosure agreement they may have signed subsequently—indeed, at any point in their careers— carries the same verbiage. Secrecy agreements are legal contracts upheld by the US Supreme Court and enforceable by the executive branch. These agreements clearly state that information must be reviewed by a prepublication review board prior to publishing. Goldsmith and Hathaway continue: In the 35 years since Snepp, however, the review system has grown unreasonable . . . the number of classified documents, and of people with access to them, has grown exponentially. The result today is a mess of overbroad and inconsistent regulations that apply to all living people with pre-clearance contracts going back decades . . . the system is racked with pathologies . . . 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 . . . It is time for change. The executive branch should develop clear, uniform criteria for publication review. Only writings that might reasonably contain or be derived from classified information should be subject to the process, and inspection for classified information should be the only basis for review. When an agency blocks publication, it should give clear reasons and permit swift appeals. And it should establish binding 20 Studies in Intelligence Vol 60, No. 4 (Extracts, December 2016)
Protecting Government Equities deadlines for completion— ideally no longer than 30 days. If the executive branch needs more resources to implement these reforms, Congress should provide them. The government must be able to keep its secrets, but First Amendment values also matter. The president and Congress should find a better way to balance the two. 30 Goldsmith and Hathaway do touch on some very important aspects of prepublication review, however. The resources devoted to review efforts appear to be minimal for the formal teams. Staff members may not even be full time, and review boards may have a hard time maintaining the staff that is allocated for the function whether “enough” for the task or not. Depending on the status of the writer, and the institution, the primary reviewer may still end up being a current supervisor. That supervisor may have any number of other mission-critical tasks to do in addition to reviewing this work, which probably should not be carried home in case some sensitive item is discovered in the work—thus creating a security violation. Additionally, no formal training exists to instruct supervisors on how to evaluate documents under review (other than resumes) according to board standards. The process can be even more burdensome if a manuscript requires review by other IC entities. This always happens when a manuscript contains information that reviewers believe involves information and source and methods managed in other community components. For example, in 2013, the FBI received The process can be even more burdensome if a manuscript requires review by other IC entities. for prepublication review 16 works from other agencies or departments. The requirement to coordinate review with other IC elements can easily lead to failure to meet the 30-day review deadline established in the Marchetti case. At the very least, the Supreme Court decision in Marchetti and its 30-day “rule” did not address timing in cases where the manuscript needs to be reviewed by a second or third IC partner. Certainly, reviews of some works can be especially taxing. When former DCI George Tenet submitted his manuscript of At the Center of the Storm, the CIA PRB convened a special committee just for his work. That group required about a year to evaluate his manuscript. Soon after the evaluation was completed in 2006, the PRB underwent the most recent of its reorganizations in reaction to the changing volume of material and the identified need to have a relatively stable permanent staff. 31 With the increasing volume of book manuscripts, the reality of similarly long delays (or longer) for other authors increases the likelihood authors will attempt to buck the system, publishing without review and leaving themselves to the mercy of the courts. Alternatively, they may become more inclined to ditch their projects altogether. An author taking this last route most likely would characterize the decision as a de facto form of government prohibition (through the PRB) of the publication of their work. A similar opinion is that of Robert Wallace, former director of the Office of Technical Service at CIA. He believes that individuals who have successfully worked with a PRB multiple times should be allowed some sort of an expedited process through the PRB. He believes that these “frequent fliers” should be trusted not to put classified information into new works presented to the PRB. 32 All individuals within the IC assume a great deal of responsibility when they sign a secrecy agreement. They are entrusted to keep thousands of “secrets” and only occasionally have to face anyone to “prove” their worthiness for the opportunity to protect these items so important for the national security. a The burden for writing an unclassified work is always on the writer. It is the PRB’s job to verify that the work does not contain classified information. 33 The Question of “Appropriateness” While the discussion about “classified” versus “unclassified” can be intense, a potential bigger hornet’s nest is the issue of an additional normative standard to which current CIA employees and contractors must adhere—that of “appropriateness.” While this standard has been applicable for years, the subject was treated at length, in two pages, in the aforementioned 2011 Studies in Intelligence article. b The officer reminded a. Issues around overclassification do exist. b. Former PRB chairman John Hedley addressed this topic, although in less detail, in his article on the review process in 1997. See “Reviewing the Work of CIA Authors: Studies in Intelligence Vol 60, No. 4 (Extracts, December 2016) 21
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Page 9 and 10: Letter to the Editors Another View
Page 11 and 12: Product Evaluation “How good is y
Page 13 and 14: Product Evaluation ed, from its
Page 15 and 16: Product Evaluation Only in a co
Page 17 and 18: Product Evaluation multiple fac
Page 19 and 20: Product Evaluation past ad hoc
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Page 24 and 25: Protecting Government Equities
Page 33 and 34: Intelligence in Public Media The Fi
Page 35: The Field of Fight and The Pivot
Page 38 and 39: Spying Through a Glass Darkly w
Page 40 and 41: The Angel: The Egyptian Spy Who
Page 43 and 44: Intelligence in Public Media Spies
Page 45: Spies in the Congo: America’s Ato
Page 48 and 49: The Bletchley Girls of the Offi
Page 51 and 52: Intelligence in Public Literature I
Page 53 and 54: Intelligence in Public Literature
Page 71 and 72: Books Reviewed in Studies in Intell
Page 73 and 74: Books Reviewed in 2016 Disciple
Page 75 and 76: Books Reviewed in 2016 Spies In

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