John Bolton is before the courts and struggling to justify his failure to let the White House complete pre-publication review of his forthcoming memoir. I sympathize with his cause if not the man himself. But other defenders of the cause – which amounts to nothing less than defense of the First Amendment — may wind up shortchanging it by giving Bolton too much benefit of the doubt in hopes of keeping government censorship at bay.
Just for reference: In 1980 the U.S. Supreme Court ruled that I had irreparably harmed the national security by publishing a memoir of my CIA service in Vietnam, Decent Interval, without getting clearance for it from the Agency. I had signed a series of non-disclosure agreements which didn’t agree with each other and which I felt left me free to publish without approval as long as I didn’t betray any secrets.
The government acknowledged in its later legal briefs that my book was indeed secrets free but managed to rally the lower courts, and ultimately the Supreme Court against me. I lost all book profits forever, and was gagged for life, forbidden forever to publish anything else about what I had learned “as a result of” my CIA experience.
As happens with Supreme Court rulings, this one cast a long shadow. The government is now using the precedent against Bolton.
The following is a compendium of my initial reactions to today’s court hearing and some of the press and legal commentary that immediately preceded it.
For non-lawyers it may be a bit too granular for easy consumption. But baby, that’s what you have to contend with in these complex life-changing cases
God knows I learned that the hard way.
My thoughts.
The Bolton case may provide the courts with an opportunity to address (or re-address) the offense against First Amendment values enshrined in government non-disclosure agreements. And since the Supreme Court ruling in U.S. v Snepp is the controlling precedent in this area – the government’s brief describes it as the “seminal” case — I have some interest in how events unfold.
I have nothing but loathing for Bolton himself. But I am disturbed that many First Amendment mavens are desperately trying to rescue him from the precedent set in Snepp by either misstating or obscuring its particulars or by resurrecting demon theories that make it seem like a one-of-a-kind case and therefore irrelevant to Bolton’s legal predicament. If this approach succeeds, Bolton may score half a reprieve that leaves the rest of us NDA “violators” in deep kimchee.
Secrets Versus No secrets
Almost to a man (and woman) the typical Constitutional expert, who deigns to comment on Snepp versus Bolton fails to note that the government explicitly absolved me of publishing any secrets or even any information that had not already be made public.
Though the White House is likely overstating Bolton’s security violations, for better or worse he stands accused of letting slip ultra-sensitive government information to his publisher without official approval. He therefore personifies a far greater sleight against national security interests than I did (or do). For that reason alone, the government’s arguments in my case should land harder on him then they did me.
I do not wish it so, but anyone trying to analyze the relevance of the Snepp ruling to Bolton should at least give a nod to the secrets-versus-non secrets issue.
Slicing And Dicing Bolton’s NDAs To Distinguish Them From Mine
In a recent Lawfare piece Professor Jack Goldsmith of Harvard attempts a complex distancing tactic designed to remove Bolton from the penumbra of U.S. v Snepp.
Here’s part of what I just emailed to Goldsmith:
“Your recent Lawfare commentary errs in the distinction it makes between Bolton’s NDAs and those that governed me.
“First, point of fact. I signed six different NDA’s. Only the first one, which I signed the day of my hiring at the CIA and never saw again until the government’s lawsuit, required clearance of all job-related information. The other five, some of which related to SCI [Specially Compartmented Information], required clearance of only classified information.
“Though it goes unmentioned in your article, the government stipulated that I had published NO classified information and NO information that had not already been made public.
“Nonetheless prosecutors scrambled contract law (and a lot else) and convinced the trial court and ultimately the Supreme Court that my first NDA should govern and that in any case I had an invisible obligation of trust to clear everything.
“If you carefully read the government’s emergency brief against Bolton you will see that his basic NDA is construed in the same comprehensive way as my first one.
“Bolton’s alleged sin, like mine, is that he sidestepped the requirement not to publish before clearance was completed, regardless of whether the material was classified or not.
“I fought that interpretation all the way to the Supreme Court but alas the majority decided against me summarily…”
[By “summarily,” I mean the Court took the rare step of reaching a judgment without allowing my lawyers or the government’s to offer any written or oral arguments explaining their positions. The case had reached the Court amidst national hysteria over the Iran hostage crisis and the Soviet invasion of Afghanistan. The Court itself was reeling from the recent unauthorized publication of a critique of its inner workings based on leaks from present and former Court clerks. Some Court-watchers deduced that the Brethren were looking for a way of delivering an object lesson to their own leakers and found me a convenient candidate.]
Demonizing The Precedent-Setter To Spare Bolton
Writing in the Washington Post two days ago First Amendment lawyer Theodore Boutrous sought to reduce Bolton’s liability under Snepp by arguing that while I published “surreptitiously” Bolton at least went through the motions of securing approval for his manuscript before publication.
First, the tedious facts about me.
As I explained in my second memoir Irreparable Harm, the only thing I kept from the CIA was the name of my publisher. On the very day I resigned, as the Agency’s own court documents later revealed, I told the exit interviewer I was quitting to write a book because I didn’t think it would be cleared by the Agency and would not therefore be submitting it for clearance. The Agency then surveilled me for a year and a half, even assigning a case officer to me, in an attempt to identify my publisher and thus front-load a judicial injunction against publication.
To win sympathy for the subsequent suit against me, lawyers for Jimmy Carter’s Justice Department circulated the fiction that I had published “surreptitiously.”
With my concurrence my lawyers deemed it constitutionally irrelevant and made no sustained objection.
Too bad, especially since high profile “experts” like Boutrous are now resurrecting the old charge in hopes of making Bolton look less culpable by comparison.
What makes this so galling is that Bolton is the very antithesis of principled transparency.
Truthfully or not, the government briefs against him assert the White House first learned from news reports in early June that his manuscript was already in his publisher’s hands. (I doubt his editors are cleared to receive government secrets.) Till then, if you accept the briefs, Bolton was sneaking his manuscript to S&S while merely pretending to play by the rules with the White House.
This was a surreptitious breach of his NDAs any way you look at it.
Worse, part of it occurred while he was stiff-arming Congress in the impeachment inquiry, under the rubric of protecting executive branch confidences.
First, he refused to testify to House investigators unless they served him with a subpoena and a judge validated it. Then he offered to testify under subpoena to the Senate when he knew the GOP majority would likely reject any witness.
It was all a bait and switch calculated to enable Bolton to complete his manuscript, slip it to his publisher and secure his $2 million advance.
And it’s not as if he didn’t have an alternative to playing coy or caving in.
The courts handling my case decided that the availability of judicial review – the right to appeal censorship decisions to a judge — helps establish the constitutionality of clearance rules since it provides a pre-publication remedy for any bused author.
While it’s likely to be a cold day in hell before any judge second-guesses a government censor acting in the name of national security, the simple fact is Bolton’s lawyer could have and should have under Snepp looked to a judge for help if he felt the White House was doing his client dirt in the clearance process.
He didn’t. Instead pages kept flowing surreptitiously to Simon & Schuster.
That fact alone defeats any claim that Bolton handled his clearance problems on the up and up.
Needless to say, this is not amicus brief for the government in the Bolton case. But I do worry that in trying to distance his case from mine, ardent First Amendment lobbyists will persuade the courts to carve out an exception for Bolton that leaves us lesser devils stuck with the abomination that is the ruling against me.