https://www.washingtonpost.com/…/4e5d7cac-0403-11eb…
Regarding the attached Washington Post report about a judge’s decision to keep the heat on John Bolton for handing his memoir to Simon & Schuster before it got official White House approval:
Despite everything else going on — the near collapse of the Republic under the weight of COVID 19 — I can’t resist nitpicking the article over several points.
My friend, Mark Zaid, valiant defender of numerous whistleblowers, is mistaken in suggesting to the Post that it’s okay for a bureaucrat-turned-author to let a publisher, lawyer, or agent check out an uncleared draft while it is still going through the clearance process.
That issue was addressed and resolved to the contrary in my own two court battles over government prepublication review.
Their upshot:
If you are a government hack, active or retired, who is required by contract or implicit obligation to get official approval before spouting off, you can’t do it to any outsider without that sign off. Period.
If you do, you automatically forfeit all profits from the enterprise and risk being labeled a national security threat, regardless of whether your published work contains any secrets.
A Supreme Court ruling against me in 1980 established this regime.
I was reamed out and bankrupted for publishing my CIA memoir Decent Interval without Agency clearance, though prosecutors acknowledged for the record that the book was secrets-free. The case stands for the enforceability of government prepublication review procedures under any circumstances, even minus any demonstrable security violation.
Inter-agency clearance regulations based on this ruling warn that no insider’s manuscript can be circulated off the official grid before the censors give a thumb’s up.
Accordingly, lawyers representing me have always been obliged to await security clearances before counseling me on the substance of any manuscript or even giving it a cursory glance.
My second excursion to the Supreme Court – call it Snepp v US, Part II – sought to nail down a technical aspect of prepublication review: clearance deadlines. It was designed to keep government censors from vest-pocket-vetoing a prospective book simply by sitting on the draft indefinitely.
This is what White House censors tried to do with John Bolton.
The judge cited in the Post article — the guy handling the Bolton case — seems to believe that censors in whatever agency are legally obliged to complete the vetting of manuscripts within 30 days. By all rights that should have persuaded him to decide in Bolton’s favor. Perversely he didn’t do that.
In fact he’s got the issue all screwed up. There is no enforceable rule or court precedent requiring the government to liberate a manuscript within 30 days. There should be, but there isn’t.
In Snepp v US, Part II, I asked the Federal courts to endorse just such a cut-off, and lost. The lower courts decided that senior security officials should not be inconvenienced with precise clearance deadlines. When I asked the Supreme Court to intervene, it refused, leaving the lower court rulings intact.
The judge’s confusion in the Bolton case and the absence of a rock-solid deadline for the censors tell us all we need to know about the imperfections of prepublication review as it is now being practiced by government agencies.
Such imperfections are supposedly redeemed (made right with the First Amendment) because an abused author can always appeal the abuse to the courts. But who can afford it? The government can outspend you every time.
And what if you do scrape together enough money or pro bono representation to mount a counter-suit? I can tell you that nine times out of ten the courts will defer to the government. What mere judge dares second-guess a vaunted security official who adamantly insists the nation will implode if a certain word or paragraph sneaks into print?
This conundrum means that lawyers like Mark Zaid, who specialize in negotiating “down” overzealous censors by striking out-of-court compromises with them will always have their calendars full.
Thank God for them. Blind Justice offers little help.