Wilson v. McConnell, 07 Cv. 4595.

• Decision Date: 03 August 2007
• Docket Number: No. 07 Cv. 4595.,07 Cv. 4595.
• Citation: 501 F.Supp.2d 545
• Court: U.S. District Court — Southern District of New York
• Parties: Valerie Plame WILSON; Simon & Schuster, Inc., Plaintiffs, v. J. Michael McCONNELL, in his official capacity as Director of National Intelligence Agency; Central Intelligence Agency; Gen. Michael V. Hayden, in his official capacity as Director of Central Intelligence Agency, Defendants.

501 F.Supp.2d 545

Valerie Plame WILSON; Simon & Schuster, Inc., Plaintiffs, v. J. Michael McCONNELL, in his official capacity as Director of National Intelligence Agency; Central Intelligence Agency; Gen. Michael V. Hayden, in his official capacity as Director of Central Intelligence Agency, Defendants.

No. 07 Cv. 4595.

United States District Court, S.D. New York.

August 3, 2007.

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David Brian Smallman Frankfurt Kurnit Klein & Selz, P.C. New York, NY, for Valerie Plame Wilson.

David Brian Smallman, Frankfurt Kurnit Klein & Selz, P.C., New York, NY, Elizabeth A. McNamara, Davis Wright Tremaine LLP, New York, NY, for Simon & Schuster, Inc.

Opinion & Order

JONES, District Judge.

INTRODUCTION

Valerie Plame Wilson ("Wilson") and her publisher, Simon & Shuster, seek declaratory and injunctive relief against the government defendants under the First Amendment of the United States Constitution, the Declaratory Judgment Act, and the Administrative Procedure Act. This dispute arises from the government's decision to preclude plaintiffs from publishing information in Wilson's forthcoming memoir concerning her dates of employment for the Central Intelligence Agency (the "CIA" or "Agency"). The parties have cross-moved for summary judgment without discovery. For the reasons below, the Court DENIES plaintiffs' motion and GRANTS defendants' motion.

BACKGROUND

Wilson is a former CIA agent who was "outed" on July 14, 2003, when she was identified in Robert Novack's syndicated newspaper column as an Agency operative. This leak was later traced to certain senior government officials, none of whom are defendants here.¹ Wilson's outing ultimately caused her to resign from the CIA in January 2006.

After she resigned, Wilson wrote a memoir covering her tenure with the CIA and the events surrounding her outing. (See Tab-Cl. 5.)² She submitted a draft of her manuscript to the CIA's Publication Review Board ("PRB") in September 2006. (See id.; Tab 8.) The PRB is charged with reviewing putative publications by current and former CIA employees for the dual purpose of assisting individuals in meeting their secrecy obligations and to ensure that information damaging to national security is not disclosed (See Declaration of Richard Puhl ("Puhl Decl.") ¶ 3; Tab 39.)³

On November 21, 2006, the PRB sent a letter to Wilson itemizing a number of edits she would have to make in order to render her memoir unclassified. (Tab 11.) The letter also stated that the first half of Wilson's manuscript "would reveal classified information because of the context in which it appears, [or] the time frames associated with the material." (Id.)⁴ A follow-up letter from the PRB, dated December 22, 2006, stated that the first part of the memoir was "replete with statements that ... become classified when they are linked with a specific time frame," and suggested means by which the material could be made unclassified, including "separat[ing] certain statements or vignettes from the timeframes in which they currently appear [or] remov[ing] the references to the times and events in [Wilson's] personal life." (Tab 13.) On February 23, 2007, the PRB sent a redacted version of the memoir to Wilson, and explained in an accompanying letter that "[i]n some instances, the deleted text is classified because it is linked with a specific time frame or is included in a particular context that reveals classified information." (See Tab 24.)

Then, on April 19, 2007, the CIA advised Wilson that it had withdrawn certain objections, and that "[w]ith limited exceptions, the classified information the PRB identified in [the memoir] relates to a single issue." (Tab 28 (emphasis added)). Although the reference is vague, the parties agree that the "single issue" either is, or encompasses, the CIA's determination that Wilson cannot disclose her dates of CIA service prior to 2002, if any.⁵ This litigation springs from that determination.⁶

As discussed further below, plaintiffs assert that the government may not lawfully censor information about Wilson's pre-2002 service dates because that information was already "declassified" or was otherwise "officially acknowledged" publicly. Although the government disputes these legal conclusions, it does not contest that the information is, in fact, in the public domain. Nor is there any material factual dispute about how the information got there.

Namely, prior to resigning, Wilson had requested that the CIA waive the minimum age requirement to receive her deferred annuity. (See Declaration of Karen Tumolo ("Tumolo Decl.") ¶ 7; see also Declaration of David Smallman, dated June 28, 2007 ("Smallman Decl."), Ex. B.) On February 10, 2006, the Chief of the CIA's Retirement and Insurance Services, Karen Tumolo ("Tumolo"), sent a letter to Wilson explaining that the minimum age requirement could not be waived because it was statutory (the "February 10th Letter" or "Letter"). (See Tab-Cl. 1; see also Tumolo Decl. ¶ 10.) As relevant here, the Letter also purports to set forth Wilson's dates in service and the date she would become eligible to receive her annuity. (Tab-Cl.1.) The letter was sent on CIA letterhead, by first class mail, and without any indicia that the information contained therein was classified. (Id.; see also Tumolo Decl., ¶¶ 9-11.)⁷

On January 16, 2007, House Representative Jay Inslee ("Representative Inslee") introduced a private bill to make Wilson's annuity available to her earlier than under the extant statutory scheme.⁸ (See Compl., Ex. A.) Sometime prior to the bill's introduction — although it is not clear when in relation to the PRB process — Wilson provided a copy of the February 10th Letter to Representative Inslee.⁹ In support of the bill, he introduced a materially identical version of the February 10th Letter into the Congressional Record. (See id.)¹⁰ He purportedly did so only after receiving "assur[ance]" from "legal experts" that the information in the Letter was not confidential. (See id.) As part of the legislative process, the material contents of the February 10th Letter entered the Congressional Record (see id.), and has since been publicly accessible on the Internet through the Library of Congress's website.

Three days after the bill was introduced, Tumolo wrote a letter to Wilson stating that the February 10th Letter contained classified information, that the absence of a security stamp on the Letter was the product of "administrative error," and that Wilson must return the Letter to the CIA so that it may be "properly marked and secured." (Tab 18.)¹¹ On January 23, 2007, the CIA also wrote a letter to the Clerk of the House of Representatives stating that the February 10th Letter contained "classified information" but had not been properly, marked. (Tab 19.) The CIA's letter to the Clerk did not specify what information in the February 10th Letter was classified, and did not request any action from the Clerk.

On January 31, 2007, Wilson agreed to return a copy of the February 10th Letter to the CIA, and requested that the. Agency provide her with a remarked version of the Letter with any ostensibly classified information redacted. (Tab 20.) On April 24, 2007, the CIA sent Wilson a newly redacted copy of the February 10th Letter (Tab 1), which the CIA stated "reflects the proper classification markings" and was "approved for release ... as a result of a declassification review." (Tab 29.)¹² The redacted letter is largely blank, except for the CIA's letterhead, date of the letter, Wilson's name and address, her service dates from January 2002 to January 2006, and the title (but not the name) of the sender. (Tab 1.) The redacted letter also contains the marking "Secret//20320110," with a diagonal line through it, at the top and bottom margins of the page. (Id.)¹³

Plaintiffs commenced this action on May 31, 2007.¹⁴ The parties have since crossmoved for summary judgment on an expedited basis, without discovery. Plaintiffs seek to permanently enjoin defendants from censoring information that is consistent with information contained in the February 10th Letter and published in the Congressional Record. Plaintiffs also seek declarations that the First Amendment protects their right to publish the information at issue, and that defendants have violated the Administrative Procedure Act, the CIA internal regulations governing prepublication review, and the Executive Order governing classified information. Defendants oppose plaintiffs' motion in its entirety, and seek summary judgment in their own favor on all of the claims asserted.

DISCUSSION

This case tests the boundary between plaintiffs' First Amendment right to freedom of speech and the government's interests in curbing that speech on national security grounds. As a general matter, government restraints on speech are permissible where the government's interest in promoting the "public services it performs ... outweighs the interests of prospective speakers and their audiences in free dissemination of the speakers' views." Weaver v. U.S. Information Agency, 87 F.3d 1429, 1439 (D.C.Cir.1996) (internal quotation marks and citations omitted).

"[N]o governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981). Thus, it is well settled that a person's First Amendment right to freedom of speech yields to the government's "compelling interest" in preventing the publication or dissemination of classified information. See Snepp v. United States, 444 U.S. 507, 509 n. 3, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980); see also Alfred A. Knopf Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir.1975) (explaining that CIA employees who enter secrecy agreements "effectively relinquish[]" First Amendment rights with respect to classifiable information); United States v. Marchetti, 466 F.2d 1309, 1315-16 (4th Cir.1972) ("Although the First...