SCOTUS Refusal to Hear Prepublication Review Case Highlights Need for the Director of National Intelligence to Update Prepublication Rules, and More: FRINFORMSUM 5/26/2022

SCOTUS Will Not Hear Prepublication Review Case; DNI Has Not Yet Updated Prepublication Instructions Despite 2017 Congressional Mandate

The Supreme Court made the unfortunate decision not to hear a case arguing that the government’s prepublication review requirements violate the First Amendment rights of former national security officials. The prepublication review system requires former intelligence and military officials to submit any fiction or nonfiction writing that relates to their government work to government censors for review to ensure no government secrets are disclosed. The logic may be palatable in theory, but in practice, the prepublication review process often holds up or prevents the publication of unclassified material, information that is already publicly available, and information that embarrasses the government. 

The case SCOTUS refused to hear was initially brought by the Knight First Amendment Institute at Columbia University and the ACLU and challenged the entire prepublication review system in federal court. The plaintiffs in the case argued that the system, which was initially limited to a select group of CIA employees but is now a routine part of obtaining a security clearance, is “dysfunctional,” ambiguous, and restricts free speech and due-process rights. The process has frustrated numerous authors, including former Defense Secretary Mark Esper and former national security adviser John Bolton. 

In 2017 the House Permanent Select Committee on Intelligence mandated that the Office of the Director of National Intelligence come up with new guidelines to streamline the prepublication review system to make it more uniform across the government and more timely, and to issue the new policy rules by the end of the year. On November 20, 2018, the ODNI FOIA chief, Sally Nicholson, told Steve Aftergood in response to a FOIA request that “An IC-wide policy on prepublication review is being formulated and is forthcoming.” But none has materialized, and the prepublication review guidelines on the DNI website have not been updated since 2016.  

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Professor Uses NSArchive Documents in Pulitzer Prize-Nominated Poetry Collection

Professor and poet Mai Der Vang is a Pulitzer Prize finalist for her poetry collection, “Yellow Rain,” which is inspired in part by declassified documents obtained by the National Security Archive. The Archive documents concern allegations of the illegal use of chemical biological weapons in Laos in the 1970s. Professor Vang included the Archive’s records in her research, along with research on the CIA, State Department, and other agency websites, to give voice to the experience of Hmong refugees.

Grand Jury Investigation of  Classified Info at Mar-a-Lago Begins 

Federal prosecutors recently launched a grand jury investigation into whether classified White House materials found at Mar-a-Lago were mishandled. On February 7, 2022, the Washington Post reported that National Archives and Records Administration (NARA) officials had retrieved 15 boxes worth of presidential records from Mar-a-Lago – some of which contained classified information. The egregious violation prompted NARA to ask the DOJ to investigate and now, The New York Times reports that the Justice Department is examining the role former President Donald Trump and other White House officials had in the handling of the documents. The department issued a subpoena to NARA for the boxes and has requested interviews with former White House employees.

The Chernyaev Diary, 1982—”The run up to perestroika”

The National Security Archive marks what would have been Anatoly Sergeyevich Chernyaev’s 101st birthday this week with the publication for the first time in English of his Diary for 1982. At the time, Chernyaev was deputy director of the International Department of the Central Committee responsible for the International Communist Movement (ICM). Within a few years he became a close adviser to Mikhail Gorbachev and a leading theorist in the era of perestroika and glasnost. 

After the Soviet collapse, Chernyaev transformed into one of the most important and reliable sources of historical information for Western observers about the Soviet system and the Kremlin’s Cold War. An invaluable contributor to international scholarship, including conferences and research conducted by the National Security Archive, he ultimately donated his diary – which Pulitzer Prize-winning author David Hoffman called “irreplaceable” and “one of the great internal records of the Gorbachev years” – to the Archive. Every year, this organization translates and posts another installment of this extraordinary chronicle. Read more about this year’s Diary on our website. 

In Brief

• US Declassifies Intel on Russian Naval Blockade of Ukraine: The US has declassified intelligence showing Russia’s blockade of the Northwestern Black Sea, putting the global food supply at risk. The Intelligence Community’s ongoing commitment to declassifying information on Ukraine supports arguments that declassification of information that might technically meet the standards for declassification when there is a compelling reason to do so can promote US national security and America’s foreign policy objectives. 
• Diario Militar Helps Bring New Trial: Twenty-three years ago on May 20, 1999, the National Security Archive published the “Diario Militar,” a detailed document also known as the “Death Squad Dossier” that was smuggled out of Guatemala. The unique document describes atrocities committed by the Guatemalan military during an 18-month period of the country’s protracted civil war and is still making an impact two decades later. On May 6, 2022, Guatemalan judge Magistrate Miguel Angel Galvez, using documentation from the “Diario Militar”, ruled that nine former military and police officers will stand trial for civil crimes committed during the war. Read more in our latest “Weekend Read.”
• Bipartisan Condemnation of the Glomar Denial: Former Senator Mark Udall (D-Co.) and Representative Bob Goodlatte (R-Va.) co-authored a bipartisan op-ed for The Hill taking aim at the pernicious use of the Glomar denial. (A “Glomar” response is when an agency refuses to confirm or deny the existence of documents in response to a FOIA request because “the existence or nonexistence of requested records is currently and properly classified.”) The politicians note that, “The expansion of the Glomar loophole to circumvent FOIA threatens to render a law passed by Congress, and signed by a president, with the approval of the American people who elected them, utterly meaningless.” Read the op-ed here.   
• ACUS Seeks Input on FOIA and Agency Legal Materials: The Administrative Conference of the United States (ACUS) has launched a new project to consider whether Congress should amend the FOIA and other statutes governing the disclosure of federal agency legal materials. A press release on their website notes, “ACUS is also soliciting public input on key questions related to the public availability of agency legal materials such as regulations, guidance documents, and adjudicative decisions. A request for information will be published in the Federal Register next week. The request is also available on ACUS’s website at www.acus.gov/research-projects/disclosure-agency-legal-materials. All interested persons are encouraged to submit views, data, and other information.”
• New DNSA Set on Climate Change: The National Security Archive, along with our scholarly partners at ProQuest, is publishing a rich new set of documents on United States climate change diplomacy from the Reagan years through the Obama administration. The 2,440 document collection, U.S. Climate Change Diplomacy: From the Montreal Protocol to the Paris Agreement, 1981-2015, provides researchers an unparalleled compilation of primary-source material on an essential subject. Read more about the new collection on our blog.