A friend of mine recently sent me an article about an ex-CIA employee, Amaryllis Fox, who has sidestepped Agency censorship rules and is preparing to publish an unauthorized memoir called “Life Undercover: Coming of Age in the CIA.” Advance copies and excerpts are already in circulation. and the author can be seen in online videos, hawking her work.
The article cites a notorious U.S. Supreme Court ruling as a reason she should worry about being prosecuted. The case is titled Snepp v. the United States, and it grew out of my own tangle with CIA censors years ago.
My friend remarked jokingly that I’m beginning to resemble the Ghost of Christmas Past since the “bad law” I helped inspire keeps coming back to haunt those foolish enough to punch Big Brother in the nose.
Ms. Fox may ultimately prove unworthy of the government’s punitive attentions. Elements of her book are fictionalized, as she has acknowledged publicly. The story she has to tell is a worm’s eye view of yesterday’s news, her eight years in the Agency having straddled the Bush-Obama administrations whose hidden skeletons Trump is only too willing to have unearthed. And she has powerful family connections – her husband is a member of the storied Kennedy clan – which may help insulate her.
But I wouldn’t be so sure. Some of her revelations deal with her alleged posting as an operative under “non-official cover,” a sensitive subject for the CIA. The last uncleared memoir by a “NOC” landed the author, Ishmael Jones, in a replay of the lawsuit against me. I warned Jones before he went to press not to stiff the censors since I knew from experience no good would come of it. He ignored my counsel and wound up being sued and stripped of all future profits from his book.
A similar fate befell a former Seal Team 6 member who failed to clear his memoir of the Bin Laden raid with Pentagon censors. Seal Team 6 values its low profile. In 2016 the author was ordered by a judge to surrender $6.8 million in royalties to the U.S. Treasury.
So, Amaryllis — beware.
Comey’s Close Call
Ms. Fox is the latest Trump-era whistleblower to face the threat of being “Snepp’d,” as one wit described what was done to me. Included in the list is a more prominent upstart named James Comey, former director of the FBI and Donald Trump’s most frightful recurring nightmare.
The government’s handling of his case provides one more reminder that the ability of the average citizen, or even a privileged one, to speak truth to power is becoming a bit fragile.
It was only three weeks ago that the Justice Department’s Inspector General, Michael Horowitz, lacerated Comey for leaking inside information about conversations he’d had with the President during the early months of the Trump administration.
As Horowitz recounts in detail, Comey wrote contemporaneous memos about several of these exchanges. One of his “mem-cons” dealt with a direct encounter on February 14, 2017, which Comey interpreted as an attempt by Trump to derail his investigation of former National Security Adviser Michael Flynn, who’d resigned over allegations related to conversations with the Russian ambassador.
Later, after his own firing, Comey passed the February 14 memo to a friend with the understanding it would be shared with the press, which it was. As Comey later told Congress, he thought this would trigger the appointment of a much-needed special counsel. He also shared four of the memos with his own lawyers in anticipation of a legal backlash against him.
Horowitz casts all these actions as leaks (unapproved disclosures outside official FBI channels) and invokes a handful of court cases in explaining why he considers them grave violations of Comey’s employee obligations and DOJ clearance requirements. The overriding precedent, the keystone for all the others, is Snepp v. United States, as Horowitz acknowledges on page 58 of his report.
The Original Sin
Since many of you are too young to remember what the “Snepp ruling” is all about, I’ll take a moment to fill you in. This isn’t a bid for sympathy or an ego-stroke. I am too gray and jaded for that. But what I say may help you understand why current censorship procedures throughout Federal bureaucracies are so screwed up.
In 1977, two years after the fall of Saigon and my resignation from the CIA, I published a memoir, “Decent Interval,” about what I’d witnessed as an intelligence officer during the traumatic final phase of the war. Since no one in high places wanted to acknowledge what had gone wrong – or the allies we’d abandoned — I knew I would face pushback from Agency censors. So, I bypassed them.
Once CIA topsiders realized I was about to go public, they hastily erected a formal round-the-clock “Prepublication Review Board,” the first ever in any government agency, in case they had to make censorship look reasonable in court. Up until then there’d been no recognizable clearance system at Langley. Different agency departments had simply red-penciled anything that threatened to embarrass them. “Friendly” memoirists from the ranks had been be allowed to publish at will, with no vetting at all.
I figured what was good for them was good for me, especially since I had no intention of exposing any secrets left over from the war or doing anything that might further harm the Vietnamese we’d left behind.
My confidence was misplaced. Because the intelligence community was then awash in leaks – the toxic fallout from Director Stansfield Turner’s ham-handed management policies — the Justice Department decided an example had to be made. I was the obvious candidate.
Making up law on the fly since censorship doesn’t quite fit with the U.S. Constitution, prosecutors argued that my insubordination alone, my failure to get CIA approval for my book, violated official clearance obligations essential to protecting secrets. Paradoxically, however, they never accused me of blowing secrets; indeed, they stipulated under oath that I hadn’t. That way, they could keep the case neat and uncomplicated. My sin, as they defined it, lay simply in publishing my memoir without official approval.
To amp up the stakes, and the importance of pre-publication review, they insisted CIA officers-turned-memoirists are incapable of recognizing and protecting secrets without censors looking over their shoulders. Never mind that CIA officers are trained every day they are on the job to recognize and protect secrets on their own. That doesn’t change just because they choose to speak or write publicly. If a bad actor means to betray secrets, censors aren’t going to stop him (or her).
The biggest obstacle prosecutors faced was the Constitution itself. To get past it, they twisted themselves into imperial pretzels. While conceding that the First Amendment does protect free speech rights, they maintained that the President’s implicit powers as commander-in-chief allow him to limit those rights for government employees, or ex-employees, if there’s a national security reason. It was a wonderfully convoluted, conveniently subjective argument that Donald Trump would doubtless relish.
My case reached the U.S. Supreme Court amidst public hysteria over the Iran hostage crisis and the Soviet invasion of Afghanistan (and right after an embarrassing book about the Court, based on leaks from its clerical staff, had landed at Barnes & Noble).
In early 1980, six of the Brethren ruled for the government on all counts. They did so summarily, without allowing my lawyers (or the government’s) to offer formal written or oral arguments. That’s a rarity in Supreme Court annals. It happened because the government had deftly slimed me as a faithless cheat. Under the circumstances I was lucky not to be burned at the stake, although the three dissenting Justices did concede I had published no secrets.
Goodbye to Fair Play
The decision stood in marked contrast to the famed Pentagon Papers ruling nine years before. In that instance a majority of the Supremes had blunted Nixon’s effort to inflict “prior restraint” (censorship) on the press. Journalists and their lawyers hailed this as a great victory for the First Amendment.
The “Snepp” ruling suggested the jubilation had been premature. It gave the government, and implicitly anyone else, the legal authority to enforce non-disclosure agreements (“NDAs”), written or tacit, regardless of whether the information at issue is public or confidential.
The authority remains in force.
Donald Trump used this authority during his business career and Presidential campaign to impose NDAs on people like Stormy Daniels and countless others who threatened to embarrass him. Private companies, like the cigarette manufacturer Brown & Williamson, have relied on it to keep internal whistleblowers silent. Horowitz harkened to it as he mulled over whether to recommend prosecution of the supposedly leak-prone Comey.
He even resurrected several of the rationales the government had used to justify prosecuting me – namely: 1) that unapproved insider disclosures, classified or not, can tempt destructive copycat leaks (an unproven proposition, at best); and 2) that effective avenues for registering grievances exist within every major Federal bureaucracy (a dubious proposition as far as intelligence, military and law enforcement bureaucracies are concerned).
Horowitz also acknowledged, as the government had in my case, that no classified information was compromised by the disclosures at issue. In short, in the eyes of the law, neither Comey nor I had leaked any duly constituted national security secrets.
And yet, Comey was spared prosecution while I was bankrupted (relieved of all profits, past and future, from my book), gagged for life (barred from making any more unapproved disclosures about my government service) and eviscerated for having allegedly done “irreparable harm” to the nation’s security.
Why such different outcomes?
Because one of the great flaws in the government’s improvised censorship system is that the rules are enforced selectively, often for political reasons, or because one potential defendant is a vulnerable nobody, and another a well-connected political hotshot.
Ever hear of Richard Armitage? He was chief aide to Secretary of State Colin Powell during the Bush II years and, by his own admission, was the source of leaks that obliterated CIA agent Valerie Plame’s highly classified cover. Armitage doubtless signed government non-disclosure agreements. But his alleged breach was greeted by crickets.
Another case in point: Henry Kissinger is under the same clearance requirements as other government alumni, his “vetters” being starry eyed State Department officials. It is hard to imagine any of them having the moxie to try to silence Kissinger, or Kissinger consenting to it. Nor does he run the same risks others face for overstepping the rules. Kissinger’s initial memoirs of his Nixon years escaped official vetting altogether, with no adverse consequences for him.
The same was true of Alexander Haig’s ghost-written account of his own tenure as a White House adviser. Former CIA director William Colby, who testified against me at my trial and condemned me for ignoring the censors, was later found to have slipped the French version of his CIA memoir, Honorable Men, into print without clearance. Despite the fact he betrayed countless secrets in the process, he was only lightly punished, with a measly $10,000 fine.
Ambassador Graham Martin, my last boss in Saigon, stole classified documents from the State Department upon his retirement for use in writing a memoir to counter my own, and then lost the documents to a bunch of car thieves. He didn’t even receive a slap on the wrist.
If I were a lawyer for Ms. Fox I would cite the government’s failure to prosecute Comey and other putative offenders as proof that the rules are applied unevenly and therefore constitute weak reeds on which to hang any legal charges against her.
Trump’s own abominable handling of classified information and his obvious coddling of Putin have also blown a hole in one of the principal arguments underpinning the ruling against me and the logic of enforcing clearance rules. Prosecutors alleged in my case that whenever a CIA memoir is published without approval, even one with no secrets, it creates the appearance of a breakdown in security procedures. This, they assured the courts, can frighten off allies who might otherwise share secrets with us, and thus can cause grave damage to the nation’s security.
They offered no proof for this windy thesis, but the courts accepted it anyway. So, we are stuck with it.
If I were part of Ms. Fox’s legal team, I would demand every shred of available evidence that Trump’s own behavior has discouraged allies from trusting us with their confidences. News reports point to mounting reticence on the part of Israeli and British intelligence, and I suspect there are many other examples of such Trump-induced paranoia.
According to recent headlines, the CIA itself shut down a once-in-a-lifetime penetration operation in Moscow in mid-2017, partly out of concern that Trump himself had become too loose lipped with Putin. If any part of this story is true, the potential alienating effect of an unapproved CIA memoir is no more consequential than a flea bite on an elephant.
I would also hammer away at the fact that the clearance process throughout the government has become a de facto vest pocket veto, with censors at various agencies tending to sit indefinitely on any manuscript they don’t want to clear.
That’s apparently why Amaryllis Fox chose to publish without clearance. She couldn’t get a timely approval decision out of the CIA after submitting her manuscript for pre-publication review.
This is not an uncommon hang-up for those condemned to be vetted.
The CIA once sat on a manuscript I had submitted (in compliance with the Supreme Court ruling against me) for so long that it killed my publishing deal. I sued the agency and demanded it adopt a thirty-day deadline for completing any review process. The courts brushed me off, declaring that the CIA shouldn’t be inconvenienced with judicially imposed deadlines. The Supreme Court declined my appeal.
Snodgrass Snub
In a recent lawsuit, retired Navy Cmdr. Guy Snodgrass, aide to James Mattis during his tenure as Defense Secretary, accused Pentagon censors of pigeon-holing a draft memoir of his own, which he had submitted to them months ago. He claimed they did it to benefit Mattis himself, and implicitly the President.
Snodgrass’ publisher describes his work, which is titled “Holding the Line: Inside Trump’s Pentagon with Secretary Mattis,” as an “insider’s sometimes shocking account” of how Mattis operated as Defense Secretary “while serving as a crucial check on the Trump Administration.” The book promises to be far more attention-grabbing and damaging to Trump than Mattis’ own recently published memoir, which is conspicuously devoid of any substantive comment about the President and Mattis’ interactions with him.
According to Snodgrass’ legal brief, Pentagon officials “intentionally withheld” approval of his manuscript so that Mattis’ memoir could get into print first. They allegedly acted with the general’s “acquiescence, if not complicity,” and “implicitly threatened” retaliation if Snodgrass were “to violate alleged loyalty oaths sought” by Mattis.
The filing is a devastating indictment of Pentagon clearance procedures. And it came amidst reporting by Edmund Luce of the Financial Times that suggests Mattis’ cursory treatment of Trump – in print and in post-resignation statements — is designed to protect his own new private-sector job at General Dynamics, which has extensive contracts with Trump’s Defense Department.
“Mr. Mattis’s worth to GD,” writes Luce, “is inversely related to the value of what he can say about the future of U.S. democracy. The more he speaks against Mr. Trump, the likelier his company will suffer.”
In light of such reporting, the Pentagon’s refusal to spring Snodgrass’ manuscript became unsustainable. On September 12, he received word that his draft had finally been cleared by the censors.
His attorney, the redoubtable Mark Zaid, told The Washington Post that only a few words had been struck out, including “probably not classified” information, “such as where travel delegations stayed.”
That last phrase, which the Post clearly attributes to Zaid, is an obvious reference to reports that U.S. military aircraft have been periodically re-routed to Scotland to help subsidize a failing civilian airport essential to the profitability of a nearby Trump resort hotel.
“This is the power of litigation,” Zaid boasted to the Post in describing the Pentagon’s cave-in. In fact, what likely turned the trick was withering press coverage, inspired by Zaid himself, about alleged manipulation of the clearance process. Even then, as a final concession, Snodgrass had to agree to delete material that is “probably not classified” but potentially embarrassing to Trump and the Pentagon because of what it might reveal about the airport scandal.
Snodgrass forfeited an opportunity to dig into that in exchange for getting his manuscript cleared. What a deal. There’s a guy named Faust who would love it.
Reform?
Zaid has just signed on to represent Amaryllis Fox. He has his work cut out. According to advance reviews, her memoir, parts of which have already appeared in Vogue magazine, may put some secrets at risk. If that proves out, I’d be the first to call her down. If you dodge clearance but don’t have the instinct, industry or integrity to protect sensitive sources and methods, you’re just a knock-off of Edward Snowden, who didn’t even have the moral fiber to stick around and answer for his actions.
Comey was careful to sanitize the memos he lateralled to the press, just as I was scrupulous in keeping dangerous disclosures out my memoir. Though he got better treatment than I did for exercising all due discretion, he deserves every break that comes his way. As I see it, Comey performed an invaluable public service in bringing Trump’s perfidy to light. Justification lies in both his willingness to face the music and the good he has wrought.
All the same, the IG smeared him for not strictly toeing the line, and created enough smoke to convey the impression, lovingly endorsed by Comey’s critics, that he has somehow impaired the FBI’s ability to keep its investigations confidential.
That’s playing politics with security and clearance procedures, the same thing every abused author mentioned in this article has experienced.
The simple fact is that judicially sanctioned censorship as it is now practiced by a galaxy of Federal agencies is in urgent need of reform. It is no friend to democracy, the First Amendment or even to the nation’s security. Too much is classified in the first place and therefore too much is subject to arbitrary suppression. Add to that the selective enforcement of the rules and you have a perfect witches’ brew. It corrodes Constitutional values and undermines the sense of shared burden and common purpose that is our best defense against any adversary.
If the government goes after Amaryllis Fox, the case could provide an opportunity to take the argument for reform back into the courtroom. It could also strengthen an on-going lawsuit brought by the Knight First Amendment Institute and the American Civil Liberties Union on behalf of several Federal employees who’ve allegedly suffered delay and arbitrary redactions after dutifully submitting work-related material to their own agencies for clearance.
But, as I’ve discovered the hard way, judges are imperfect arbiters of intelligence-related issues. Too often they bend over backwards to accommodate the most outrageous national security claims on the naïve assumption that those who know the secrets know best.
Congress needs to step in.
Good luck with that.