SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 31
March 7, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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CIA SUED OVER PREPUBLICATION REVIEW

A former Central Intelligence Agency employee, Thomas Waters Jr., filed a lawsuit against the Agency last week, arguing that publication of his book had been improperly blocked in the prepublication review process.

"The Central Intelligence Agency has unlawfully imposed a prior restraint upon Thomas Waters by obstructing and infringing on his right to publish his unclassified memoirs and threatening him with civil and criminal penalties," according to the March 3 complaint filed in DC District Court.

The case seems to reflect the tightening of controls on public disclosure of information at the CIA.

Almost all of Waters' manuscript had been cleared for publication by the CIA in September 2004, according to the complaint. But last month, the Agency notified him that substantial portions of the book, including some material that had previously been approved, could not be published after all.

"The CIA continues to deliberately create a hostile environment for its former employees who are seeking to do nothing other than publish nonsensitive, unclassified information," said Mark S. Zaid, Waters' attorney. "Its actions are completely unconstitutional and designed to disable the First Amendment."

A news release about the case may be found here:

The March 3 complaint in Waters v. CIA is posted here:

See also "CIA Sued Over Right to Publish" by Shaun Waterman, United Press International, March 6:

CONGRESS ON AMENDING THE PATRIOT ACT, CAPTURED IRAQI DOCS

With final congressional reauthorization of the USA Patriot Act now imminent, new legislation was introduced in the Senate yesterday to amend the reauthorized Act.

"What this legislation does is reinstate provisions of the original Senate-passed [Patriot Act reauthorization] bill," said Senator Arlen Specter (R-PA). Those provisions were rejected by the House Republican leadership.

The new bipartisan legislation, jointly sponsored by Senators Specter and Leahy among others, would "require a more reasonable period for delayed-notice search warrants, provide enhanced judicial review of FISA orders and national security letters, require an enhanced factual basis for a FISA order, and create national security letter sunset provisions."

The legislation does not confront the awkward fact that the Bush Administration appears to believe it does not have to comply with the Foreign Intelligence Surveillance Act.

See the introduction of the new bill here:

Another bill, introduced by Rep. Pete Hoekstra, chair of the House Intelligence Committee, would require the Director of National Intelligence to release documents captured in Afghanistan or Iraq.

"The Director of National Intelligence shall make publicly available on an Internet website all captured documents."

"The term 'captured document' means a document captured or collected in Afghanistan or Iraq, including a document collected from the Government of Iraq or from a private person and including a document in electronic form, during Operation Desert Storm, Operation Enduring Freedom, and Operation Iraqi Freedom." See:

ORIGINS OF "THE RIGHT TO KNOW"

"There is nothing in the Constitution about 'the public's right to know'," wrote former Assistant Director of Central Intelligence Mark M. Lowenthal in his book "Intelligence: From Secrets to Policy" (CQ Press, 2000, page 143).

"The Constitution safeguards freedom of speech and of the press, but these are not the same as a right to information," Mr. Lowenthal argued. This is not quite correct. The Constitution may be readily understood to grant a public right to know certain types of information.

Specifically, the Constitution imposes an obligation on the government to publish two categories of information: a Journal of Congress (Article I, section 5) and a statement and account of all receipts and expenditures (Article I, section 9).

And the government's obligation to publish this information is semantically identical (or nearly so) to a public right to know it.

The public only gained a broader legal right to access government information with the Freedom of Information Act, which was first enacted in 1966. Prior to that time, one could ask for information, but the government had no duty to respond. Since then, thanks to the FOIA, the public has had a legally enforceable right to compel disclosure of non-exempted information.

As for the phrase "the right to know," it was apparently coined in the 1940s by Kent Cooper, who was the executive director of the Associated Press. The New York Times credited him with originating the phrase in an editorial on January 23, 1945. (As noted by James S. Pope in the Foreword to "The People's Right to Know" by Harold L. Cross, Columbia University Press, 1953, p. xi.)

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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