Image via WikipediaVia Secrecy News:

“Judge Gerald Bruce Lee of the Eastern District of Virginia ruled at a June 15 hearing (pdf) that the CIA officer, who goes by the pseudonym “Ishmael Jones,” would be held liable for publishing his 2008 book “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” in the face of a refusal by the CIA’s Prepublication Review Board to clear the volume for publication.”

According to the author’s website:

“Ishmael Jones, a pseudonym, was born in the United States and raised in the Middle East, East Asia, and East Africa. He attended universities in the US and served as an officer in the US Marine Corps. In the late 1980’s he joined the Central Intelligence Agency where he served as a deep cover officer focusing on human sources with access to intelligence on weapons of mass destruction and terrorism. His assignments included more than 15 years of continuous overseas service in numerous exotic countries and several rogue nations. He resigned from the CIA in good standing.”

On the 2010 CIA lawsuit over Jones’ book published in 2008:

“The CIA requires that its employees submit manuscripts before publication in order to make sure that no classified information is revealed. After review, the CIA sends authors a list of what sentences need to be removed or rewritten. For The Human Factor, the CIA was unable to find any classified information in the manuscript, but objected to its criticism of the CIA, and took the unusual step of disapproving every single word in the manuscript. During the year that the CIA spent evaluating the manuscript, Jones repeatedly offered to remove or rewrite anything in the manuscript. 

Initially, the book drew relatively little attention, but as Jones continued to work toward intelligence reform and to meet with members of Congress and the Administration, he began to get more traction. In July 2010, more than two years after the book was published, the CIA filed a lawsuit against Jones. Jones learned about the lawsuit in September 2010, when the CIA served him papers.”

Below is Judge Gerald Bruce Lee of the Eastern District of Virginia ruling excerpted from the June 15 hearing transcript obtained by Secrecy News.

Let the record reflect this matter is before the Court on the defendant’s motion for partial summary judgment as to liability. And this is a case as we’ve heard involving the publication of a manuscript that was not approved by the Agency in prepublication review as required by the secrecy agreement.

So the issue is whether the Court should grant the Government’s motion for summary judgment as to liability where the plaintiff signed a secrecy agreement which is attached to the complaint as Government Exhibit A. And, the Agency required under the secrecy agreement that the plaintiff obtain written permission from the Central Intelligence Agency’s publication review board prior to publishing any work. And the plaintiff did not secure Agency approval prior to having his book published.

The facts are not in dispute, it seems to me. Plaintiff admits that he was signatory to the secrecy agreement. He did prepare a manuscript which he submitted to the publication review board multiple times, and he was given feedback from the Agency about what was publishable and what was not.

His opinion is that the Agency’s refusal to approve publication of his book was unreasonable and deprived him of his rights under the First Amendment, and he decided to publish the book without securing Agency approval.

I don’t think that this is really a very difficult question. I think the Snepp case would control here. It seems to me that where he signed a binding secrecy agreement that prevented from publishing any materials prior to receiving written consent, that under Snepp this liability for the Government has been established.

His signing a secrecy agreement does not violate his First Amendment rights. And his claim that the Court should deny summary judgment because of genuine issue of fact about whether the plaintiff’s counterclaim alleging First Amendment violations creates a genuine issue of fact for trial.

It seems to me that the judgment that he exercised at some risk, according to his own counsel, to publish a matter without securing Agency approval does not demonstrate that the Government breached the contract first because plaintiff acknowledges that under the process in effect that once the prepublication board denied his request for publication, that he had a remedy and that remedy was to come to U.S. District Court and to pursue a claim to have the Court determine if the Agency’s withholding of permission was unreasonable. Not having exercised that right, I do not see how the Government could be held liable for breach when they were pursuing the process as set forth in the agreement.

So, I am first of all holding that the Snepp case controls here. They’re both — Snepp was an agent and so is this plaintiff. They both signed secrecy agreements. They both failed to adhere to them knowing what they were — the agreement said.

I don’t think any discovery is necessary because the plaintiff admits that he published without the permission. And the issue of whether the Government breached first because of some sham appellate review, the process was never over. And, his judgment to go forward without the completing — pursuing his remedies before the court was the breach. It was not the Government’s breach. The Government was carrying out it’s agreement.

So, for those reasons, it is the — the case is also very similar to Marchetti, but I don’t think we needs to go as far as Marchetti. I think that Snepp is sufficient.

Motion for summary judgment for the Government is granted, and the case will be dismissed as it relates to his claim, counterclaim. So, partial summary judgment liability is granted.

What remains to be done is the issue of what remedy the Government is entitled to because of the breach of secrecy agreement.

The Snepp case mentioned above is SNEPP v. UNITED STATES, 444 U.S. 507 (1980) where SCOTUS held that:

“A former employee of the Central Intelligence Agency, who had agreed not to divulge classified information without authorization and not to publish any information relating to the Agency without prepublication clearance, breached a fiduciary obligation when he published a book about certain Agency activities without submitting his manuscript for prepublication review. The proceeds of his breach are impressed with a constructive trust for the benefit of the Government.”

In the NYT review of Snepp’s book Irreparable Harm in 1999, James Bamford writes:

“[…] The C.I.A. would later admit in court, the book contained no secrets at all.  Unable to go after Snepp for unauthorized release of classified information, the C.I.A. and the Justice Department instead sued him for violating a clause in his original agency contract demanding prepublication review. The goal, Snepp says, was to reduce him to penury and seal his lips and fingers with legal superglue. In court, the Government argued that Snepp should be stripped of all earnings from the book — virtually every penny he had made in the nearly two years it took to write it — as well as all future profits. At the same time, the C.I.A. asked the court to impose a lifetime gag order on him, demanding that he submit all writings — articles, scripts, novels, speeches, everything, true or fictional — for prior censorship. The only exceptions were cookbooks and treatises on gardening. The case went all the way to the Supreme Court, but Snepp ultimately lost, sending him into a financial and emotional tailspin from which he is only now recovering. (Even this memoir had to be vetted before he could give it to his editor.)”

A lifetime gag. Holy mooolly guacamole! A lesson for the ages … fighting with city hall is a perilous enterprise.

So it looks like — if you put in your book for prepublication review, and the board tasked with clearing it sits on it like jerks, or even deny you permission to publish it given the secrecy agreement you signed, you cannot just go ahead and publish the book. Even after claiming First Amendment protection.  After denial by a prepublication board, it looks like you have to take the agency/USG to a U.S. District Court so a judge (or jury?) can decide if the denial of permission to publish is unreasonable.  I wonder if anyone has ever tried that.

I haven’t read these books but now have an excuse to borrow both books from the library.