Edgar v. Haines

• Decision Date: 23 June 2021
• Docket Number: No. 20-1568,20-1568
• Citation: 2 F.4th 298
• Parties: Timothy H. EDGAR; Richard H. Immerman ; Melvin A. Goodman; Anuradha Bhagwati; Mark Fallon, Plaintiffs - Appellants, v. Avril D. HAINES, in her official capacity as Director of National Intelligence; David Cohen, in his official capacity as Director of the Central Intelligence Agency ; Lloyd J. Austin, III, in his official capacity as Secretary of Defense; Paul M. Nakasone, in his official capacity as Director of the National Security Agency, Defendants - Appellees. Professor Jack Goldsmith; Professor Oona A. Hathaway; The Reporters Committee for Freedom of the Press, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

2 F.4th 298

Timothy H. EDGAR; Richard H. Immerman ; Melvin A. Goodman; Anuradha Bhagwati; Mark Fallon, Plaintiffs - Appellants,

v.Avril D. HAINES, in her official capacity as Director of National Intelligence; David Cohen, in his official capacity as Director of the Central Intelligence Agency ; Lloyd J. Austin, III, in his official capacity as Secretary of Defense; Paul M. Nakasone, in his official capacity as Director of the National Security Agency, Defendants - Appellees.

Professor Jack Goldsmith; Professor Oona A. Hathaway; The Reporters Committee for Freedom of the Press, Amici Supporting Appellant.

No. 20-1568

United States Court of Appeals, Fourth Circuit.

Argued: May 4, 2021

Decided: June 23, 2021

ARGUED: Brett Max Kaufman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellants. Daniel Lee Winik, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Alexia Ramirez, Vera Eidelman, Ben Wizner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; David R. Rocah, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Jameel Jaffer, Alex Abdo, Ramya Krishnan, Meenakshi Krishnan, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellants. Jeffrey Bossert Clark, Acting Assistant Attorney General, H. Thomas Byron III, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellees. Paul N. Harold, Washington, D.C., Brian M. Willen, Lauren Gallo White, Brian Levy, WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION, New York, New York, for Amici Professors Jack Goldsmith and Oona Hathaway. Bruce D. Brown, Katie Townsend, Gabe Rottman, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C., for Amicus Reporters Committee for Freedom of the Press.

Before NIEMEYER and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Keenan and Judge Traxler joined.

NIEMEYER, Circuit Judge:

Five former employees of our Nation's security agencies who, during their employment, had clearances for access to classified and sensitive information, commenced this action against the Central Intelligence Agency (CIA), the Department of Defense (DoD), the National Security Agency (NSA), and the Office of the Director of National Intelligence (ODNI), facially challenging the agencies’ requirements that current and former employees give the agencies prepublication review of certain materials that they intend to publish. These prepublication review requirements allow the agencies to redact information that is classified or otherwise sensitive to the national security. The employees alleged in their complaint that this prepublication review — which is implemented through "regimes" of policies, regulations, and individual employee agreements — violates their free speech rights guaranteed by the First Amendment and their rights under the Due Process Clause of the Fifth Amendment. Specifically, they alleged that the agencies’ regimes "fail to provide former government employees with fair notice of what they must submit," "invest executive officers with sweeping discretion to suppress speech[,] and fail to include procedural safeguards designed to avoid the dangers of a censorship system."

The district court, in a thorough and well-reasoned opinion, granted the defendant agencies’ motion to dismiss, holding that their prepublication review regimes were "reasonable" measures to protect sensitive information and thereby did not violate the plaintiffs’ First Amendment rights. The court held further that the regimes were not unduly vague under the Fifth Amendment because they adequately informed authors of the types of materials they must submit and established for agency reviewers the kinds of information that can be redacted.

We agree with the district court and affirm.

I

Information related to national security has, since World War I, been graded according to sensitivity under a classification system. See Dep't of Navy v. Egan , 484 U.S. 518, 527, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) ; see also Daniel Patrick Moynihan et al., Report of the Commission on Protecting and Reducing Government Secrecy , S. Doc. No. 105-2, app. A ("Secrecy: A Brief Account of the American Experience") (1997). And security agencies have, over the years, adopted policies and regulations to protect classified information from public disclosure. They have also required various employees to sign agreements, as a condition of employment or as a condition for receiving access to classified information, requiring the employees to follow the agencies’ policies and regulations.

Currently, information that is subject to classification includes "military plans, weapons systems, or operations"; "foreign government information"; "intelligence activities"; "foreign activities of the United States"; and "vulnerabilities or capabilities of ... infrastructures ... relating to the national security"; as well as a few other categories of a similarly sensitive nature. Exec. Order No. 13,526, Classified National Security Information , 75 Fed. Reg. 707, 709 (Dec. 29, 2009).

Under current classifications, information that, if disclosed, "reasonably could be expected to cause damage to the national security" is classified as "Confidential"; information the disclosure of which "reasonably could be expected to cause serious damage to the national security" is classified as "Secret"; and information that, if disclosed, "reasonably could be expected to cause exceptionally grave damage to the national security" is classified as "Top Secret." Exec. Order No. 13,526, 75 Fed. Reg. at 707–08 (emphasis added). In addition, when information "concern[s] or [is] derived from intelligence sources, methods[,] or analytical processes" that require protection "within formal access control systems," it may be further designated as "Sensitive Compartmented Information," or "SCI." Intelligence Community Directive 703, Protection of Classified National Intelligence, Including Sensitive Compartmented Information § 2 (June 21, 2013).

Disclosing information involving national security can be detrimental to the vital national interest, and courts have recognized that the government has "a compelling interest in protecting ... the secrecy of [such] important" information. Snepp v. United States , 444 U.S. 507, 509 n.3, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980) (per curiam). As a consequence, agencies involved in intelligence and national security currently have in place, through policies and regulations, a range of practices and procedures designed to protect against the inappropriate disclosure of information related to national security. One such practice and procedure is "prepublication review," which requires current and former employees to submit materials intended for publication to their agencies to enable the agencies to redact, in advance of publication, classified or otherwise sensitive information. This prepublication review process — which is the subject of the plaintiffs’ challenge here — relies on the agency's judgment about what is sensitive and detrimental to the national security and therefore must be redacted, rather than on the employee's independent judgment. This is because the agency has a "broader understanding of what may expose classified information and confidential sources." Id . at 512, 100 S.Ct. 763.

Under the prepublication review process adopted by each of the defendant agencies, current and former employees are required to submit to their agencies a broad scope of materials that relate to their employment and experience with the agency and that they intend to publish. The agency reviews the materials for classified and sensitive information and, to protect against disclosure of that information, directs that it be redacted, thereby ensuring that the information will not be inadvertently disclosed by the author. The details of the process for each defendant agency are as follows.

The CIA : CIA Agency Regulation 13-10, Agency Prepublication Review of Certain Material Prepared for Public Dissemination (June 25, 2011), provides that employees, former employees, "and others who are obligated by CIA secrecy agreement" must "submit for prepublication review" "any written, oral, electronic, or other presentation intended for publication or public dissemination, whether personal or official, that mentions CIA or intelligence data or activities on any subject about which the author has had access to classified information in the course of his employment or other contact with the" CIA. Id . § 2(b)(1), (e)(1). The CIA reviews proposed publications "solely to determine whether [they] contain[ ] any classified information." Id . § 2(f)(2). And "[a]s a general rule, the [CIA] will complete prepublication review ... within 30 days of receipt of the material." Id . § 2(d)(4). The regulation explains, however, that while "short, time-sensitive submissions ... will be handled as expeditiously as practicable," "[l]engthy or complex submissions may require a longer period of time for review." Id . Authors dissatisfied with the initial reviewer's decisions can appeal within the CIA. Id . § 2(h)(1). Consistent with this policy, CIA employees must also sign an agreement as a condition of employment, agreeing "to submit for review by the [CIA] any writing or other preparation in any form, including a work of fiction, which contains any mention of intelligence data or activities, or contains any other information or material that might be based on" classified information or information the author knows is "in the process of a classification determination." The agreement explains that prepublication review is meant to give the CIA "an opportunity to determine whether the information or material ......