The Justice Department has just dropped a dime on Moscow-based “whistleblower” Edward Snowden, suing him for publishing and speaking about his past work for the CIA and NSA without their okay.
The lawsuit, which grew out of a Supreme Court ruling against me, claims that Snowden’s just released memoir, Permanent Record, and all job-related speeches he has given since bolting the country violate CIA and NSA employment contracts and invisible “fiduciary” obligations to these agencies.
A Justice Department press statement keyed to the September 17 filing, explained the body-slam this way: “under well-established Supreme Court precedent, Snepp v. United States, the government seeks to recover all proceeds earned by Snowden…”
Under the “Snepp” ruling, which landed on me in 1980, any bureaucrat or ex-bureaucrat who has had access to government secrets is obliged to get official clearance before publicly disseminating orally or in writing anything he or she learned on the job, classified or not.
The Snowden suit, a civil filing, does not penalize him for blowing secrets, which he has admittedly done in abundance. That could come in criminal proceedings based on espionage charges filed against him in 2013.
The offense for which he is being dinged is the simple act of thumbing his nose at prepublication review rules held dear by the intelligence community.
The government claims in its legal brief that the stakes are sky-high:
“As a direct and proximate result of Snowden’s breach of his contractual and fiduciary duties, the United States has been damaged and irreparably harmed by, inter alia, the undermining of confidence and trust in the CIA, NSA and their prepublication review processes, thereby hampering the ability of those agencies to perform their respective duties, including the protection of sensitive national security information.”
What does this mouthful amount to? The government said virtually the same thing in my case, and it translated into the hypothetical notion that any breach of clearance rules encourages similar breaches by others and is apt to spook foreign allies into withholding their secrets from us, thus seriously damaging national security.
Nearly forty years later my lawyers and I are still waiting to see the evidence.
The suit against Snowden does not aim to stop publication or distribution of his book. Prosecutors see no percentage in trying to put toothpaste back into the tube. But they are asking the courts to bar him from further violating his clearance obligations. This would amount to his being gagged — prevented from speaking or publishing anything else about his work-related activities — without an official sign-off.
If the courts grant this “injunction” — and if Snowden were to violate it by continuing to speak or publish without approval — he could face criminal contempt charges and jail time, if he ever sets foot on U.S. soil.
The lawsuit mentions Snowden’s publisher, Macmillan and two affiliated book companies and says, “Macmillan has no legitimate claim to Snowden’s earnings, which properly belong to the United States.”
But the government also makes clear it is not seeking the publisher’s share of Snowden’s royalties but is simply naming Macmillan and its affiliates as “necessary parties for purposes of according the United States complete relief” in this action — that is, to induce them to help the government track down and confiscate Snowden’s profits.
The lawsuit does, however, raise the prospect that people who assisted Snowden in getting his book published or his speeches scheduled and who received money for this — may be forced to surrender it.
Prosecutors specifically ask the court to require “Snowden and/or his agents, assignees or others acting on his behalf to relinquish to the United States all monetary proceeds earned by them” from Permanent Record and from his speeches, which the government claims have sometimes earned him $10,000 a pop.
One Snowden helpmate singled out in the Justice Department brief is Ben Wizner, who is described as his “principal legal adviser” and “primary contact with the publisher.”
It is not clear whether the government means to seize whatever earnings Wizner may have picked up in his role as go-between with Macmillan. But it is apparent that prosecutors hope to make collaboration with Snowden as costly as possible to anyone potentially guilty of it. In one passage, they ask the court to award “monetary damages” against Snowden and his agents for any proceeds from the book or speeches that are no longer in their possession.
In many ways, the brief against Snowden is a slick re-write of the government’s filing against me in 1978, which the Supreme Court enshrined as the law of land two years later.
Prosecutors charged me with having irreparably harmed the nation’s security by publishing a memoir about my CIA career in Vietnam, Decent Interval, without Agency approval. They made imaginative use of contract law and implicit “fiduciary obligations” never enforced before and the hypothetical theory of harm described above, which was based on speculation that our allies might react negatively to any “appearance” of a breakdown in government security safeguards.
But unlike Snowden I was never linked to any secrets dump. In fact, the government explicitly stipulated that it was not accusing me of any security breach, simply an avoidance of Agency censors.
Nonetheless the Supreme Court approved a lifelong gag order, barring me from writing or speaking again about my CIA experiences, classified or not, without clearance. The Court also imposed a “constructive trust” on all “ill-gotten gains” from my book, past or future. I was even forced to pay the Treasury the equivalent of income taxes I had already forked over on book earnings.
The Snowden filing follows these skid marks, and then goes a step or two further. I was not held liable for speeches even though I could have been. And while the government vaguely threatened my “agents and assigns” with retribution, none was confronted with the prospect of having to pay “damages” for working with me. (And none was ever punished.)
At one point early in the litigation Justice Department attorneys contemplated action against my publisher, Random House, for allegedly assisting me in breaching my obligations. But ultimately, they backed off, apparently for fear of rallying the mainstream press and all First Amendment purists to my cause.
In the Snowden case the government seems leery of trouncing the publisher, but clearly means to enlist Macmillan and its affiliates in getting a handle on Snowden’s earnings. The very suggestion that a publisher might be obliged to take part in enforcing government sanctions against an unapproved author is surely a signal that those who assist leakers should not consider themselves immune from consequences.
The Past as Future
Often overlooked during the government’s assault on me was the threat posed to the First Amendment itself. The same threat may go under-appreciated during Snowden’s coming ordeal.
In the Pentagon case of 1971, the Supreme Court rejected government demands for prior restraint (censorship) of the press even though, in that instance, provably sensitive and ultra-classified information was at risk.
The government offered no proof in my case that I had done or was likely to do any demonstrable harm to the nation. Even so, as previously explained, the Brethren made any future utterance from me about my past CIA work unpublishable — subject to prior restraint — without CIA vetting. Even more troubling, they gave all Federal agencies the right to impose a similar fault-free hobble (mandatory prepublication review without a whiff of imminent harm) on all employees and alumni. Then there were the devastating financial penalties for any alleged breach.
Are we any safer for all of this?
Snowden is proof we’re not.
Neither the threat of criminal prosecution under the espionage statutes nor the specter of bankruptcy under the “Snepp” ruling served to deter Snowden from spilling any secret he damn well pleased. And no one so hell-bent on compromising the national security is ever going to submit the prepublication review. The whole concept is beside the point for such individuals.
The only winners under the censorship regime established in my case are self-protective bureaucrats determined to suppress or punish criticism from whistleblowers — at least those principled enough to speak out and then stay around to answer for it. Snowden was never one of them.
Meanwhile, zealous young government lawyers desperate to make names for themselves as defenders of the nation’s secrets have time and again upended the Constitution to do it. When prosecutors looked for ways to nail me, they could get no help from existing law since the First Amendment prohibits any law abridging freedom of speech. So, they dipped into murky theories of executive power and decided arbitrarily that the President’s inherent authority as commander in chief entitles him or her to limit speech and behavior that might otherwise be Constitutionally protected if there is a national security reason for the constraint. The Supreme Court endorsed this view in my case and thus added one more stone to the shaky edifice for so many of Donald Trump’s efforts to “make law” off the cuff, through executive fiat.
So extreme is his overreach, so excessive his self-indulgence, so deferential his treatment of Putin and other dictators, that we might all be forgiven for wondering who is the graver threat to the nation’s security: the current occupant of the White House or the craven Edward Snowden?
The Trouble with Edward
You might guess by now I am not part of the Snowden cult even though both of us loosely wear the label of “whistleblower.” In my view Snowden is more impressionable than inspired, more opportunistic than ethically buttoned down. As I observed in a Los Angeles Times op ed years ago when Snowden was angling for clemency from the Obama administration:
“He claims his only concern is for privacy. But many of his leaks, like those exposing National Security Agency operations against Chinese targets, and those involving critics and allies in Europe and Latin America, have nothing to do with 4th Amendment protections for American citizens and everything to do with ingratiating himself with potential benefactors, from Beijing to Moscow.
“Had he read though his stolen documents, moreover, he would have realized that Russia and China are as aggressive as anyone on the planet in attacking our digital firewalls. If he were to cripple the NSA, which seems to be his real purpose, he would simply be sabotaging our defenses against governments that abhor our constitutional values, including privacy rights.”
It is a ghastly irony that the excesses of the problematic Snowden now give Trump’s Justice Department one more excuse to bend Constitutional values to its own twisted notion of what the national security requires.
(For further discussion of these issues, see the author’s earlier article in Medium: “Censoring Free Speech in the Age of Trump”)