As a few thousand people and I predicted, last Saturday morning a federal district court rejected the Trump Administration’s attempt to block publication and distribution of John Bolton’s new memoir.[1] It’s not really an occasion for bragging, because everyone with a dim awareness that the First Amendment exists said the same thing. But I was happy to see that District Court Judge Royce Lamberth used the same tired cliché to describe the government’s failure to prove its case that I used in last week’s post about the case: “By the looks of it, the horse is not just out of the barn—it is out of the country.”
Don’t start cheering yet. Before correctly ruling that the government could never prove publication would cause irreparable harm to national security, Judge Lambert also correctly applied existing legal rules that led him to conclude that the government had shown Bolton included classified material in the book that could harm national security. Under these rules, courts give the government’s assertions far too much deference. Excessive deference allows the government to use “national security” as a pretext for censoring political dissenters, preventing whistleblowers from revealing corruption, and covering up incompetence and lies – and that’s just the start of a list.
“Excessive deference allows the government to use “national security” as a pretext for censoring political dissenters, preventing whistleblowers from revealing corruption, and covering up incompetence and lies – and that’s just the start of a list.”
Here is a brief review of these flawed legal rules. Courts begin by putting themselves at the mercy of agency censors: “[T]he government’s ability to maintain secrecy is essential and . . . the government is in the best position to judge the harm that would result from disclosure.”[2] After declaring the government’s expertise (without considering the incentives of public officials to manipulate the process to the detriment of First Amendment values), courts enshrine that purported expertise by making it difficult to challenge: they “giv[e] deference to reasoned and detailed explanations of a classification decision.”[3] Although courts deny that they “just rubber stamp the government’s classification decision,”[4] the test is not very demanding: the court must satisfy itself “from the record, in camera or otherwise, that the [agency] in fact had good reason to classify, and therefore censor, the materials at issue.”[5] Any reasonably intelligent person can come up with a plausible “good reason” why the disclosure of some piece of secret information could harm national security, so this standard sets a very low bar. Yet, not all secrets are created equal.
This deferential status quo has some heavyweight defenders. Among them is former federal appellate judge Richard Posner, who argues that governments should err on the side of caution when evaluating claimed threats to national security, because “[o]fficialdom has repeatedly and disastrously underestimated” threats to national security, listing a series of foreign policy disasters caused by the government’s inability to foresee threats.[6] But by focusing on mistakes of oversight that caused great harm to this nation, Posner is looking in the wrong place. First, it’s questionable whether many significant events can be predicted at all.[7] Second, when he is aiming at an achievable target – better quality intelligence and analysis – Posner nevertheless is answering the wrong question. The fact that the United States has sometimes inflicted distress on itself because it failed to see signs of events like the attack on Pearl Harbor or the catastrophe of September 11, 2001[8] does not justify deferring to government claims that a publication threatens national security. A blind spot does not imply a strength.
In fact, governments often use the classification process for political purposes. While the case against Bolton was being heard in one Washington D.C. federal courtroom, elsewhere in the same building the Justice Department was arguing that its successful prosecution of General Michael Flynn should be dropped, relying in part on materials declassified so they could be used to support the government’s 180 on Flynn.[9] And the information in Bolton’s book itself was declared classified only after one official had given the manuscript clearance for publication after months of back-and-forth that yielded significant deletions from the book, and a second recent Trump political appointee, who had never been trained in pre-publication review, was directed to take over the process.[10] This approach comes at the expense of core First Amendment speech directed at criticism of government.
The decision whether information should be classified in the first place can be made for political rather than security reasons. That fact alone warrants greater judicial skepticism of classification decisions. Judge Posner and others who argue for less judicial scrutiny are simply wrong.
The United States is also likely to exaggerate or even invent threats to national security so high-ranking officials can get court approval for what they want. No less an authority than former Solicitor General Erwin Griswold, who urged the Supreme Court to impose a prior restraint against publication of the Pentagon Papers, asserted many years later that “I have never seen any trace of a threat to the national security from the [Papers’] publication. Indeed, I have never seen it suggested that there was such an actual threat.” [11]
The gross exaggeration supporting the government’s position in the Pentagon Papers cases is not an isolated instance. One of the great embarrassments of American history – the detention of American citizens of Japanese ancestry in camps during World War II – was based on governmental deception and lies: “The War and Justice Departments first wrongly intimated that Japanese Americans had committed espionage in support of Japan’s Navy, then falsely asserted that there had been insufficient time to identify and detain the disloyal—and thus that the entire racial group had to be locked up.”[12] In Korematsu v. U.S., the Supreme Court swallowed the lies whole.[13] And the decision that first recognized the “state secrets” privilege in United States law was revealed, nearly 50 years later when the “secrets” were declassified, to have rested on documents that did not actually reveal information about national security, but instead proved that the engines of B-29 bombers often caught fire and the Air Force was lax in fixing the problem.[14]
Courts give government assertions of national security undue deference based on the fundamental premise that the government can be trusted. This approach fails over and over because history shows that only more disclosure, not less, ensures that our government is properly held to account.
_________________________
[1] The opinion is available at https://pacer-documents.s3.amazonaws.com/36/219024/04517891261.pdf. (return) [2] Stillman v. CIA, 517 F. Supp. 2d 32, 39 (D.C.D.C. 2007). (return) [3] McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983). (return) [4] Stillman, 517 F. Supp. 2d at 39. (return) [5] McGehee, 718 F.2d at 1148. (return) [6] R. Posner, Law, Pragmatism, and Democracy 298-99 (2003). (return) [7] See generally N. Taleb, The Black Swan (return) [8] These are two of eight examples that Posner supplies. Law, Pragmatism, and Democracy 298-99. His inclusion of the September 11 attacks is curious, because the United States did have intelligence on them, in the form of the famous memorandum from August 6, 2001 titled “Bin Laden Determined To Strike In U.S.” warning President Bush of “patterns of suspicious activity in this country consistent with preparation for a hijacking” of aircraft. Available at https://nsarchive2.gwu.edu/NSAEBB/NSAEBB116/pdb8-6-2001.pdf. (return) [9] https://www.npr.org/2020/06/12/876083197/appeals-court-appears-skeptical-of-flynns-bid-to-force-judge-to-dismiss-case (return) [10] https://www.washingtonpost.com/politics/2020/06/17/trump-official-said-john-boltons-book-contained-no-classified-info-then-trump-loyalists-intervened/ (return) [11] Erwin N. Griswold, Secrets Not Worth Keeping, available at https://www.washingtonpost.com/archive/opinions/1989/02/15/secrets-not-worth-keeping/a115a154-4c6f-41fd-816a-112dd9908115/ (return) [12] https://www.yalelawjournal.org/forum/masquerading-behind-a-facade-of-national-security (return) [13] 323 U.S. 214 (1944). (return) [14] https://www.latimes.com/style/la-bk-barrysiegel22-2008jun22-story.html. The case is United States v. Reynolds, 345 U.S. 1 (1953). (return)
