Bolton Book Fight Shows Flaws in U.S. System to Protect Secrets
(Bloomberg) -- The legal fight over John Bolton’s unflattering memoir about his time as national security adviser to President Donald Trump centers on a much-maligned government process for vetting what former U.S. secret-keepers can reveal to the public.
Former government officials say the process for screening their writings to prevent the release of classified information has become increasingly cumbersome over the years, with approvals taking far too long and demands for changes or redactions that seem to reflect political bias more than concern for national security.
“The whole system is so fundamentally broken,” said Oona Hathaway, a professor at Yale Law School who worked as a lawyer in the Defense Department during the Obama administration. “It provides a way for the government, when it doesn’t like what you’re saying, to prevent you from saying it.”
One problem is the recent surge in the number of books, articles and research papers written by former officials with access to classified information. Their submissions have overwhelmed the small government offices that handle reviews within each agency. The Central Intelligence Agency alone saw the number of manuscripts triple since the early 2000s.
In defending his book, Bolton claims the Trump administration abused the review process, delaying “The Room Where It Happened: A White House Memoir” to help the president win re-election.
He submitted his draft to the NSC in late December, asking for a swift review because of the “highly time-sensitive” publication schedule. According to the government’s own account of the review process, a career official at the NSC concluded that a revised draft of Bolton’s book contained no classified information, but a Trump political appointee intervened and reopened the review. With no final approval, Bolton went ahead with publishing this month, and the government sought an injunction to block him.
“There can be no serious dispute about what is happening here,” Bolton’s lawyer, Charles Cooper, said in a legal filing. “The White House is attempting to misuse the national-security apparatus of the Executive Branch to censor Ambassador Bolton.”
On June 20, U.S. District Judge Royce Lamberth in Washington refused to block publication of Bolton’s book, but he defended the review process, saying the former Trump adviser had “gambled with the national security of the United States” by pulling out. The government is proceeding with a separate breach-of-contract lawsuit that could force Bolton to surrender all profits from the book, including his $2 million advance.
The legal foundation for pre-publication vetting began in 1980, when the Supreme Court ruled that such screenings were a “reasonable means” for protecting national security.
Many government officials sign a contract agreeing to the reviews as a condition of receiving their security clearance. And penalties for non-compliance range from criminal charges to losing royalties.
Susan Gough, a spokeswoman for the Defense Department, said reviews are conducted “in as timely a manner as possible,” though longer manuscripts can sometimes require additional vetting and feedback by officials in other parts of the government.
The government purposely uses the logjam to prevent disclosure of information, even if it isn’t a threat to national security, said Mark Fallon, who worked for the Naval Criminal Investigative Service and the Department of Homeland Security from 1981 to 2010, investigating terrorist groups.
The pre-publication review of Fallon’s 2017 book, “Unjustifiable Means,” about the government’s use of torture during the war on terror, lasted eight months. It took so long, the publisher threatened to terminate his contract, and he had to cancel several events to promote the book.
In the end, Fallon said, the government demanded more than 100 redactions, including the removal of seemingly innocuous details like the fact that “sig int” stands for “signals intelligence,” a well-known intelligence-gathering technique that involves intercepting communications between people. Rather than trying to protect classified information, the government seemed intent on preventing embarrassing disclosures about its use of torture, he said.
“When you’re trained through the dark arts, you know when it’s being applied to you,” Fallon said.
Last year, the Knight Institute and the American Civil Liberties Union sued the Defense Department, the CIA and two other government agencies, citing long delays and seemingly arbitrary decisions in asking a federal judge to declare pre-publication reviews unconstitutional. While the case was dismissed, an appeal is pending.
An internal report by the CIA concluded that the agency’s reviewers were “struggling with achieving timeliness, and to some extent thoroughness/quality,” according to documents Knight and the ACLU obtained through the Freedom of Information Act.
In 2015, the report said, number of submissions the CIA received topped 3,000 books, articles, academic papers and other writings, up from less than 1,000 manuscripts in the early 2000s. A CIA spokeswoman declined to comment.
Hathaway, the Yale professor, says the resulting delays in the review process have stymied academics as well as high-profile figures like Bolton.
After leaving her government job in 2015, she submitted a 10-page paper for review in early September that she planned to present at a conference a month later. An instruction sheet said the review would take 10 to 15 days. Instead, Hathaway said she didn’t receive approval until October, several days after the conference.
“I can’t do my job as an academic,” Hathaway said. “The whole thing is just such a mess.”
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