Last summer, a former Director of National Intelligence employee had questioned the reasonableness of the review process of a manuscript he had written about mass surveillance. The employee, Timothy Edgar, worked for DNI from 2006 to 2013 and held a Top Secret clearance. He submitted his manuscript in 2016, and it was returned with multiple redactions, which Edgar contended in his lawsuit violated the First Amendment in that it gave the editors a broad and sweeping power with no due process afforded to the writer.
The United States Court of Appeals for the Fourth Circuit upheld the dismissal of the case. It was a standard opinion, where the judicial branch does not want to intervene with the executive branch and their responsibility to national security. Each federal national security agency has their own form of prepublication review, which in many ways are similar to each other.
Prepublication Review with the DoD
Recently, another prepublication review case popped up. Kelly Kennedy, managing editor for The War Horse, an online publication serviced by many writers, is the plaintiff in the case. Kennedy is an experienced writer on military affairs, focusing often on the human-interest aspect of war, both in glory and despair. She is also an Army veteran of six years. Her embedded tours in both Afghanistan and Iraq are telling of her high qualifications on the subject. Her complaint seeks immediate action by the DoD on a current prepublication review.
In August 2020, Kelly, based on her secrecy agreements as a war correspondent, submitted a manuscript to DoD’s Office of Prepublication and Security Review entitled: The Activity: My Life Inside America’s Most Secret Unit”. The story focuses on an immigrant from Egypt who became a Command Sergeant Major in a very elite United States Army Unit. The complaint points out that the subject of the book (referenced as Ameen) “was the only Muslim Arab-American in the Army Intelligence Support Activity and tasked to collect actionable intelligence in advance of missions by the “Activity” as well as other U.S. special operations forces”.
The complaint also details much of Ameen’s career, including his role in tracking both Saddam Hussein and Osama Bin Laden. It also discusses the vicissitudes Ameen had to encounter throughout his career, ranging from animosity he received from a select few military personnel to fellowship that was established between himself and others in the unit.
How Long is Too Long?
In 2022, some 20 months after submission, according to Kennedy, the manuscript is still in review by the DoD, even though Kenedy is adamant that no classified material is contained in the document. That length of time with no answers is what brought the lawsuit forward, as Kennedy asserts that it both violates the First Amendment and the Administrative Procedures Act. Under both causes of action, the age-old legal axiom of “reasonable amount of time to review” is germane to the complaint. One note of interest is that later on in the complaint, it refers to the submission date of the manuscript as August of 2021 not 2020 as previously indicated. Eight months is a lot different than 20 months.
The length of time for the review is puzzling absent any explanation from DoD as to why it takes 20 months (if the 2020 date is accurate) to accomplish. Ideally, an established military writer like Kennedy has a good grasp on what information may be classified and go out of her way to avoid it. Hopefully, she gets an answer soon, as the book sounds like a fascinating read.
A Word to Aspiring Writers
Those aspiring writers who have security clearances should be aware of requirements of their agencies (or former agencies) regarding prepublication review. I cannot ever remember getting a formal briefing on the subject in 30 years in the military with my clearance mostly at the Top Secret level. It is a subject that you don’t want to be on the wrong side of, and as usual, claiming ignorance is never a winning legal strategy when it comes to national security.