Edgar v. Coats

• Decision Date: 15 April 2020
• Docket Number: Case No.: GJH-19-985
• Citation: 454 F.Supp.3d 502
• Parties: Timothy H. EDGAR, et al., Plaintiffs, v. Daniel COATS, et al., Defendants.
• Court: U.S. District Court — District of Maryland

454 F.Supp.3d 502

Timothy H. EDGAR, et al., Plaintiffs,

v.Daniel COATS, et al., Defendants.

Case No.: GJH-19-985

United States District Court, D. Maryland, Southern Division.

Signed April 15, 2020

Filed April 16, 2020

Alex Abdo, Pro Hac Vice, Jameel Jaffer, Pro Hac Vice, Meenakshi Krishnan, Pro Hac Vice, Ramya Krishnan, Pro Hac Vice, Knight First Amendment Institute at Columbia University, Brett Max Kaufman, Pro Hac Vice, Naomi Gilens, Pro Hac Vice, Vera Eidelman, Pro Hac Vice, American Civil Liberties Union, New York, NY, David Robert Rocah, ACLU of Maryland, Baltimore, MD, for Plaintiffs.

Serena Orloff, US DOJ, Washington, DC, Neil R. White, Office of the United States Attorney, Baltimore, MD, for Defendants.

MEMORANDUM OPINION

GEORGE J. HAZEL, United States District Judge

Former national security professionals Timothy H. Edgar, Richard H. Immerman, Melvin A. Goodman, Anuradha Bhagwati, and Mark Fallon ("Plaintiffs") bring this action against the Director of National Intelligence, the Director of the Central Intelligence Agency, the Secretary of Defense, and the Director of the National Security Agency ("Defendants"), challenging the constitutionality of the agencies’ prepublication review ("PPR") regimes, which require current and former employees to submit materials they intend to publish to the agencies if they concern certain subjects. The Complaint, ECF No. 1, alleges that the regimes are void for vagueness under the First and Fifth Amendments and violate the First Amendment by investing the agencies with excessive discretion to suppress speech and failing to include necessary procedural safeguards. Defendants have moved to dismiss the Complaint. ECF No. 30. Also pending before the Court are a motion by three Plaintiffs to omit their home addresses from the caption in their Complaint, ECF No. 8, and a third party's Motion for Leave to submit an amicus brief, ECF No. 34. No hearing is necessary. See Loc. R. 105.6 (D. Md.). For the following reasons, all of the pending motions will be granted and the action will be dismissed.

I. BACKGROUND¹

In reviewing the Complaint's allegations, the Court first discusses each of the Plaintiffs before turning to the structure and operation of Defendants’ PPR regimes.

A. Plaintiffs

Plaintiff Edgar, a Rhode Island resident, is a cybersecurity expert who was employed by the Office of the Director of National Intelligence (the "ODNI") from 2006 until his resignation in June 2013. ECF No. 1 ¶¶ 56, 58. At various points during his time at ODNI, Edgar served in roles including Deputy for Civil Liberties and Senior Associate General Counsel. Id. ¶ 58. In 2009 and 2010, he was detailed to the White House National Security Staff as Director of Privacy and Civil Liberties. Id. After signing a nondisclosure agreement with the ODNI, Edgar obtained a Top Secret/Sensitive Compartmented Information ("TS/SCI") security clearance in 2006, which he held continuously until June 2013. Id. ¶ 59.

During his employment, Edgar submitted for PPR official material prepared for public appearances he made on behalf of the government and syllabi for Brown University and Georgetown University Law Center courses he taught in 2012 and 2013. Id. ¶ 60. Since his departure from the agency, Edgar has submitted to the ODNI blog posts and op-eds that have appeared in major publications, including the Guardian , the Los Angeles Times , and the Wall Street Journal , and on the Lawfare national security blog. Id. ¶ 61. On October 10, 2016, Edgar submitted to the ODNI's PPR office a book manuscript entitled Beyond Snowden: Privacy, Mass Surveillance, and the Struggle to Reform the NSA. Id. ¶ 62. Some portions of the manuscript were based on his personal experiences, but Edgar relied on and cited declassified documents "for pertinent details." Id.

After Edgar submitted the manuscript, the ODNI informed him that it was referred to the Central Intelligence Agency ("CIA") and the National Security Agency ("NSA") for additional review. Id. ¶ 63. Edgar was unable to communicate directly with reviewing officials at those agencies despite multiple inquiries. Id. On January 12, 2017, the ODNI informed Edgar that he could publish the manuscript only if he redacted or excised certain material. Id. ¶ 64. Some of the redactions related to events that had taken place or issues that had arisen after Edgar had left government, while others related to facts that were widely discussed and acknowledged if not officially confirmed. Id.

Edgar disagreed with some of the redactions but decided not to challenge them. Id. He had already delayed his publication date, partly because of the three-month PPR process, and worried that delaying it further would make some of the analysis and insights in his book outdated or less relevant to ongoing public debates. Id. He also sought to maintain a good relationship with the ODNI reviewers because of concerns that future publications would be subject to greater delays if he did not. Id. In the future, Edgar plans to continue writing about intelligence and cybersecurity matters and anticipates submitting at least some of these materials for PPR. Id. ¶ 65. He expects that any manuscripts he submits may be referred to the NSA, CIA, or other agencies, as happened with Beyond Snowden , which has now been published. Id.

Edgar believes that the ODNI's PPR regime requires him to submit an excessive amount of material and finds the agency's submission requirements to be vague and confusing, leaving him uncertain of the exact scope of his submission obligations. Id. ¶ 66. He fears that the delay associated with PPR will hinder his career as an academic and impede his ability to participate effectively in public debates on matters involving his area of expertise. Id. He further alleges that the delay and uncertainty associated with PPR has dissuaded him from writing some pieces that he otherwise would have written and caused him to write others differently than he otherwise would have. Id. Finally, he believes that the ODNI, CIA, and NSA might have taken longer to review his book if they had perceived it to be unsympathetic to the intelligence community. Id. He is also concerned that "government censors will be less responsive to him if he writes books that are perceived to be critical." Id.

Plaintiff Immerman, a Pennsylvania resident, is a historian with expertise in U.S. foreign relations who retired in 2017 after holding a series of distinguished academic posts. Id. ¶¶ 67–68. From 2007 to 2009, he took leave from his faculty position at Temple University to serve at the ODNI as the Assistant Deputy Director of National Intelligence, Analytic Integrity and Standards, and as the agency's Analytic Ombudsman. Id. ¶ 69. After signing a nondisclosure agreement with the ODNI, Immerman obtained TS/SCI clearance in 2007. Id. ¶ 71. In 2009, shortly after returning to Temple, Immerman accepted an invitation to serve on the U.S. Department of State's Advisory Committee on Historical Diplomatic Documentation (referred to as the "HAC"), of which he became chairman in 2010. Id. ¶ 70. In 2011 or 2012, Immerman signed a nondisclosure agreement with the CIA related to his HAC responsibilities. Id. ¶ 71.

Since leaving the ODNI, Immerman has submitted book manuscripts, articles, papers, public talks, and academic syllabi to the agency for PPR. Id. ¶ 72. On January 25, 2013, Immerman emailed to the ODNI's PPR office a manuscript entitled The Hidden Hand: A Brief History of the CIA . Id. ¶ 73. The manuscript did not directly or indirectly refer to any classified information that Immerman obtained while employed with the ODNI or Department of State and cited public sources for all factual propositions. Id. The ODNI acknowledged receipt three days after Immerman's email. Id. ¶ 74. Nearly three months later, Immerman was informed that the agency had referred part of the manuscript to the CIA for additional review. Id. Several weeks after that, the ODNI informed him that the CIA was reviewing the entire manuscript. Id. Immerman contacted the CIA but was unable to obtain information about the review. Id.

On July 12, 2013, the ODNI informed Immerman that he could publish the manuscript only with extensive redactions mandated by the CIA, all of which related to information for which Immerman had cited public sources. Id. ¶ 75. Some redactions related to information that government agencies including the CIA had published previously, and many related to events that had taken place or issues that had arisen after Immerman left government. Id. In some instances, the ODNI directed Immerman to excise citations to newspaper articles, while in others the ODNI directed Immerman to delete passages relating to information he had obtained from public sources, including information about the CIA's use of drones. Id. The ODNI also instructed him to redact words communicating judgments and arguments he considered fundamental to his conclusions as a trained historian. Id. The agency did not provide Immerman with any explanation for the mandated redactions. Id. ¶ 76.

Immerman appealed the PPR office's determination to the agency's Information Management Division, which several weeks later informed him that he could publish a significant portion of the text that the PPR office had directed him to redact. Id. ¶ 77. In September 2013, Immerman was able to meet with two reviewing officials from the CIA. Id. ¶ 78. The officials agreed with Immerman that some of the redactions were unnecessary and authorized him to publish additional text with revised wording but reaffirmed their view that other redactions were required. Id. ¶ 78. Immerman disagreed but decided to proceed with publishing with the redactions in place to avoid further delay. Id. The draft that was eventually published, after a ten-month review process, included approximately eighty percent of the material that the agencies had originally redacted. Id.

Immerman plans to continue publishing articles,...