A federal judge ruled the United States government may confiscate proceeds NSA whistleblower Edward Snowden earned from the publication of his book, Permanent Record, as well as his speeches.
The government accused Snowden of violating secrecy agreements he signed with the NSA and CIA when classified information was published that did not go through prepublication review.
Judge Liam O’Grady in the Eastern District of Virginia declared [PDF], “Because there is no genuine dispute of material fact, that Snowden publicly disclosed the type of information and materials described above in Permanent Record and his speeches, the government is entitled to summary judgment.”
Snowden exposed mass surveillance programs that violate or undermine the Constitution and brought attention to countless abuses by the NSA, as well as the Foreign Intelligence Surveillance Court.
The case, United States v. Marchetti, established the prepublication review process used currently by U.S. intelligence agencies to enforce secrecy.
As described in a pending lawsuit brought by the American Civil Liberties Union and Knight First Amendment Institute, in the 1970s, former CIA employees increasingly spoke out against the Vietnam War and other “executive branch abuses of power exposed and documented by the Church and Pike Committees.”
The courts ruled they could enforce a secrecy agreement signed by Victor Marchetti, a former CIA employee.
Marchetti’s 1974 book, which was censored, denounced the “cult of intelligence.” He described the CIA as a “secret fraternity of the American political aristocracy.” And added, “The purpose of the cult is to further the foreign policies of the U.S. government by covert and usually illegal means, while at the same time containing the spread of its avowed enemy, communism.”
CIA Director George H.W. Bush setup the Publications Review Board (PRB), and his successor, Stansfield Turner, expanded the board’s ability to ensure former employees complied with their secrecy agreements.
In 1980, a divided Supreme Court ruled that the government could impose a “constructive trust on proceeds” earned by former CIA officer Frank Snepp, who published Decent Interval on the CIA in Vietnam without submitting it for review.
Snowden argued the United States breached the secrecy agreements he signed by “indicating it would refuse to review Snowden’s materials in good faith and within a reasonable time.”
Agencies have 30-60 working days by law to review books. Regardless of whether Snowden has a pending leak case against him that accuses him of violating the Espionage Act, they have to review any books, reports, or manuscripts he might submit.
Former CIA officer John Kiriakou, who submitted all three of his books to the PRB for approval, said he believes there is merit to Snowden’s argument that they would not review the book in a reasonable amount of time.
He recalled working on his second and third books, Doing Time Like A Spy and The Convenient Terrorist. The PRB informed him it was Christmas break, everyone was on vacation, and two people retired so they needed an “extra year” for review.
“I wrote back and said nope. The law says 60 days. You’ve got 60 days. Then they cleared them both by the end of the week. So, you just have to stand up to them,” Kiriakou added.
The review process can be highly politicized. Kiriakou’s first book, The Reluctant Spy, took him nine months to write and 22 months to get cleared. It went through nine rounds of clearance.
“I had to get lawyers involved. I had to go through the appeal process. It was a nightmare, and it was political,” Kiriakou recalled. “Finally, one of my advisers, who was a former CIA officer, told me just wait until the Bush people are gone. When the Obama people come in, send it back in. I did that, and they cleared it immediately.”
Notably, Jose Rodriguez, the former director of the CIA’s National Clandestine Service, faced far less scrutiny when it came time for his book, Hard Measures, to be reviewed. It was widely believed that this was because he defended the CIA’s torture program.
On the other hand, according to the Washington Post, the CIA fought to impose changes to a book by former FBI agent Ali Soufan, The Black Banners, even though it was cleared by the FBI. They requested the “redaction of comments taken directly from transcripts of public hearings on Capitol Hill.
“Absolutely there are things that [Rodriguez] was able to talk about that were redacted from my book,” Soufan declared. “I think it has more to do with trying to protect a narrative rather than protecting classified information.”
Eventually, Soufan released the book with “black marks across many of its pages to show readers how much he was forced to withhold.”
An internal investigation was launched in 2012 as perceptions grew within the CIA that the board was “biased toward agency loyalists, particularly those from the executive ranks.”
With the PRB’s record against critics in mind, Snowden asserted the lawsuit against him was “based on animus towards his viewpoint,” and the government was “selectively enforcing” the agreement.
The government also accused Snowden of giving speeches, where he violated his secrecy agreement by displaying publicly available slides that contained classified information.
“Although Snowden did not create the slide in the first instance,” the judge contended, “he prepared it for public disclosure—along with the other videos, articles, and slides which he uses to illustrate his speeches—when he identified it, made it available, and ultimately presented it to the public at his speeches.”
Which amounts to criminalizing a former government employee for providing context to journalism on mass surveillance programs, regardless of whether Snowden was the source for the reporting or not.
The government would like nothing more than to bankrupt Snowden by depriving him of income from his speeches. It would give them leverage to pressure him into a plea deal, where he would return to the United States and admit his whistleblowing was wrong.
In 2012, a judge issued the first summary judgment against a former CIA officer who went by the pseudonym “Ishmael Jones.” The government sued Jones because his book, The Human Factor, did not go through a review.
“I was not permitted to question them and their witnesses, or to have my day in court. There was no discovery, and no jury. This was easier for the [Justice Department] to do in a civil case than in a criminal one,” Jones stated.
Snowden was similarly denied discovery. With his ability to form a defense significantly restricted, the government won a favorable ruling and bolstered case law around secrecy agreements, which dictates any violations are strict liability offenses. The intent of the former employee does not matter.
The ACLU and the Knight First Amendment Institute maintain that the censorship system former intelligence employees must submit to is broken and violates the First Amendment because it “infringes” on the “authors’ right to speak as well as the public’s right to hear them.” It also invites “arbitrary and discriminatory enforcement and redactions by government censors.”
Congress previously ordered the Office for the Director of National Intelligence to develop new rules for review, but the ODNI has yet to release a reformed policy, even though a deadline passed.