Facts and Legal Arguments Asserted by Plaintiffs in the District
Court:
With the government’s demand that Ms. Wilson and Simon &
Schuster delete and censor what they strongly believed to be constitutionally
protected information that was irretrievably in the public domain,
and the executive branch defendants’ refusal to cure the prior
restraint, plaintiffs had no recourse but to seek judicial relief.
Accordingly, on May 31, 2007, plaintiffs Valerie Wilson and Simon
& Schuster commenced an action against J. Michael McConnell,
Director of National Intelligence, Central Intelligence Agency and
Gen Michael V. Hayden, Director CIA, seeking a declaratory judgment
and injunction, pursuant to the Federal Declaratory Judgment Act,
28 U.S.C. § 2201 and the Constitution.
Specifically, Valerie Plame Wilson and Simon & Schuster, Inc.,
the publisher of Ms. Wilson’s memoir entitled “Fair
Game” sought declaratory judgment that the Executive Branch
of government cannot restrain publication of previously unclassified
or currently unclassifiable information documenting Ms. Wilson’s
dates of federal service disclosed in unclassified form in 2006
by the Central Intelligence Agency (“CIA”) and now in
the Congressional Record and available world-wide on the Library
of Congress website.
Plaintiffs asked the Court to declare that plaintiffs possess a
First Amendment right to publish information in FAIR GAME that references
or is consistent with the same information contained in a letter
sent in unclassified form for the purpose of her retirement planning
and which Congress subsequently published in connection with proposed
legislation to provide Ms. Wilson with immediate access to her deferred
retirement benefits.
Plaintiffs were not asking the Court to review specific
passages in the Manuscript to determine whether it can be properly
concluded that such passages contain classified information. Rather,
plaintiffs respectfully requested that the District Court issue
a declaration and order under which PRB would be required to review
the Manuscript and clear for publication the information that had
been improperly classified and therefore wrongly deleted in accordance
with the criteria set forth in CIA’s April 19, 2007 letter
to Ms. Wilson. That is, CIA would be compelled by the Court not
to prohibit the publication by plaintiffs of information that would
be consistent with Ms. Wilson’s specific dates of service
with the Agency, which have been officially acknowledged by CIA
and are irretrievably in the public domain.
Background
Valerie Wilson’s decades of dedicated service to the United
States ended prematurely when she was “outed” as an
undercover officer for the CIA by senior government officials entrusted
to protect that classified information. Following the initial “outing”
in the media in July 2003, Valerie Wilson’s prospects as a
covert CIA operative evaporated and her long career was effectively
destroyed. Ultimately, Ms. Wilson formally resigned her position
on January 9, 2006. She now seeks to tell the story of her career
in public service and its premature termination.
Well before any publishing agreement was entered into, or any manuscript
was written, Ms. Wilson grappled with the consequences of a completely
unexpected and involuntary conclusion to her CIA career. Suddenly
facing unemployment and an uncertain future, Ms. Wilson also learned
that she did not meet the statutory age requirements necessary to
begin receiving her government annuity.
Ms. Wilson’s inquiries about her retirement benefits at the
end of 2005 resulted in a February 10, 2006 letter from the CIA
which provided official, unclassified confirmation of her precise
years of service and confirmed that due to statutory age requirements
she would only be eligible to receive a deferred annuity years after
her resignation. The letter was executed by the CIA’s “Chief,
Retirement and Insurance Services,” and was delivered by regular
mail on official CIA letterhead.
Certain members of Congress were also concerned that as a result
of calculated leaks by government officials at the highest levels
of the Executive Branch and through no fault of her own, Ms. Wilson
would lose her career as a covert CIA operative and suffer significant
financial consequences. Accordingly, a member of Congress approached
Ms. Wilson during 2005 to propose a legislative remedy to her annuity
predicament, and draft legislation was prepared.
With the change of Congressional control, the “Valerie Plame
Wilson Compensation Act,” H.R. 501, was finally introduced
in Congress in January 2007. Congress reprinted in the Congressional
Record a partially redacted copy of the CIA’s February 10,
2006 letter to document that Valerie Wilson had achieved the necessary
20 years of service for a government annuity. (The redacted version
of the official CIA February 10, 2006 letter published in the Congressional
Record is hereinafter called the “Agency Annuity Letter”).
Thus, since January 16, 2007, Ms. Wilson’s actual dates of
service have appeared in the Congressional Record and have been
available worldwide on the Internet at http://www.thomas.gov.
Despite official and unclassified acknowledgment of her decades
of service in the Agency Annuity Letter and no effort for almost
a year to retrieve that letter or to suggest that it be treated
as classified – and notwithstanding the fact that the CIA’s
own letter appears in the Congressional Record as part of pending
legislation and is unquestionably irretrievable – the CIA
asserted that Ms. Wilson’s pre-2002 federal service dates
were and remained classified in 2007. Further, it demanded that
significant portions of Ms. Wilson’s Manuscript be excised
or rendered “fiction,” purportedly to protect the “secret”
of Ms. Wilson’s government service prior to 2002. By unreasonably
interfering with Valerie Wilson’s memoir in violation of the
First Amendment, plaintiffs asserted that the Executive Branch sought
to prevent information relating to its own misconduct from reaching
the American public.
A loyal former CIA officer, Valerie Wilson is not seeking carte
blanche to discuss her entire government service or to reveal
any classified information in her memoir. On the contrary, she diligently
worked for more than a year with the CIA’s Publications Review
Board (“PRB”) to comply fully with her secrecy agreements
and to avoid any possibility of divulging national security information
with which she has been entrusted.
But the Executive Branch cannot have it both ways. In 2003, senior
government officials leaked information to the news media identifying
Valerie Wilson’s covert affiliation with the CIA; defendant
CIA subsequently disclosed in its 2006 unclassified letter her exact
dates of service when providing official information relevant
to her ability to receive a government annuity after 20 years of
service. Nevertheless, the defendants seek to prevent plaintiffs
from publishing the exact information it previously confirmed in
its unclassified Agency Annuity Letter and which is currently available
to the world on the Internet through the Library of Congress. Because
improper classification or reclassification of information officially
released to the public by the very federal agency responsible for
controlling the information imposes a prior restraint that violates
the First Amendment, plaintiffs sought relief from a United States
District Court, as mandated by applicable law.
Valerie Wilson is Exposed as a Covert CIA Officer
On July 14, 2003, Robert Novak’s syndicated column revealed
Valerie Wilson’s status as a covert CIA officer. Novak wrote
that “[Ambassador Joseph] Wilson never worked for the CIA,
but his wife, Valerie Plame, is an Agency operative on weapons of
mass destruction.” With that one reported sentence –
Mr. Novak “outed” Valerie Wilson.
As a result of senior government officials wrongfully revealing
her covert CIA status to the press in 2003, Valerie Wilson’s
years of loyal service to the government were effectively and prematurely
ended. As later reprinted in her husband’s book, The Politics
of Truth, Mr. Wilson reported her response: “Twenty years
of loyal service down the drain, and for what, my wife asked after
she had read it. What was Novak trying to say? What did blowing
her cover have to do with the story?”
From Lewis Libby’s trial and conviction, it is now widely
known that several senior government officials – including
Karl Rove, Richard Armitage, and Ari Fleisher, as well as Mr. Libby
– leaked Ms. Wilson’s covert status to a number of reporters.
While government officials were leaking information about Valerie
Wilson’s employment affiliation with CIA, this information
was highly classified. The leaks were considered to be of such a
serious nature that a criminal referral was instituted, resulting
in the investigation ultimately leading to Mr. Libby’s conviction.
Further, in connection with Mr. Libby’s sentencing, the CIA
confirmed that at the time of the leak, Ms. Wilson was a covert
CIA employee for whom the CIA was taking affirmative measures to
conceal her intelligence relationship to the United States. As acknowledged
by the government in connection with the sentencing phase of the
criminal prosecution of I. Lewis Libby, in January 2002, Ms. Wilson
was a CIA operations officer, assigned to the Counter Proliferation
Division (“CPD”) at CIA Headquarters. In that capacity,
she served as the chief of a CPD component with responsibility for
weapons proliferation issues related to Iraq. Over the years, on
numerous occasions Ms. Wilson traveled overseas, always under a
cover identity, using an official or non-official cover, with no
ostensible relationship to the CIA.
The Consequences of the Government Leaks
The immediate result of Mr. Novak’s revelation was the end
of Ms. Wilson’s career as a highly trained covert intelligence
officer. Following the public disclosure of her covert status, she
continued for a limited period of time in other capacities with
the CIA, supervising recruiting and training for CPD.
Yet, her government service as an undercover agent, her ability
to travel overseas on assignment, and her expectation to advance
within the Agency were all prematurely over. Ms. Wilson resigned
her position with the CIA on January 9, 2006.
Prior to her resignation, Ms. Wilson explored her eligibility to
receive retirement benefits. She learned that, despite 20 years
of service, her earned annuity could not be paid until she was 56
years old – almost a decade after her resignation. Because
of her unique circumstances – she did not choose to lose her
career and retire early – Ms. Wilson inquired whether the
applicable age requirements could be waived in her situation. Following
an internal review at CIA, which included review of a draft resignation
memorandum submitted by Ms. Wilson to its Office of General Counsel,
in November 2005, she received the “final word” from
the Agency.
Because of the statutory retirement regulations, CIA could not
grant a waiver that would allow Ms. Wilson to obtain an immediate
annuity. The Agency informed Ms. Wilson that she would receive an
“official” memorandum verifying her annuity and the
year it would become payable. Ultimately, this “official”
memorandum came in the form of the February 10, 2006 letter that
is the subject of this litigation.
The February 10, 2006 Letter
In response to her inquiries regarding the payment of her government
annuity and her request that the statutory date for pay-out be waived,
an official CIA letter was generated. Dated February 10, 2006, the
letter was on CIA letterhead and was signed by the CIA’s “Chief,
Retirement & Insurance Services.” (the “Agency Annuity
Letter” or “Letter”).
The Agency Annuity Letter acknowledged and disclosed Ms. Wilson’s
eligibility to receive a deferred annuity under the Federal Employees
Retirement System (FERS) Special Category at the conclusion of her
government service. Specifically, the Letter officially disclosed
the exact dates of her federal service and government affiliation,
including that her dates of service began on “November 11,
1985” and included “6 years 1 month and 29 days of overseas
service.” The Agency Annuity letter also revealed that she
had “achieved a minimum of 20 years of service” and
was entitled to receive a deferred annuity at her Minimum Retirement
Age of 56.
The Agency Annuity Letter did not include any form of a classification
stamp and did not include any indicia that the Letter, or information
it contained, was classified. Indeed, the Letter was sent by First
Class Mail, a method of delivery forbidden for classified documents.
Further, the Letter was signed by Karen Tumolo, CIA’s Chief,
Retirement & Insurance Services, a manager presumed to be knowledgeable
concerning the handling of classified information. Valerie Wilson
received no indication from the CIA at the time she received the
Letter (or for almost a full year thereafter) that this official
correspondence, which had been provided to her expressly for retirement
benefit planning purposes and in the context of overcoming a statutory
limitation upon her ability to obtain an immediate annuity, was
itself purportedly classified or subject to any restrictions regarding
publication or dissemination.
The Valerie Plame Wilson Compensation Act and the
Inclusion of the CIA Letter in the Congressional Record
Because Valerie Wilson learned that her annuity would not become
payable until she was 56 years old and the CIA could not waive this
requirement, only an act of Congress could effectuate a change that
would allow her to collect it. Accordingly, in late 2005, a member
of Congress sympathetic to the plight she and her family were placed
in because of her unauthorized “outing” as a covert
agent by senior White House officials, raised the possibility of
a private bill to make her annuity benefits available earlier than
the statutory age requirement. Based on these discussions, draft
legislation was prepared in October 2005 that would waive the age
requirement for Ms. Wilson to receive her government annuity.
As part of this dialogue with Congress, Representative Jay Inslee’s
office confirmed that Ms. Wilson in fact had 20 years of government
service and was entitled to an annuity. Indeed, on February 26,
2006, after she received the Agency Annuity Letter, Ms. Wilson wrote
to Mr. Inslee’s Chief of Staff “to follow up and let
you know that on 10 February, the agency sent me an official letter
stating that they resolved the issue of when I was eligible for
an annuity. According to them, I am eligible to receive approximately
$1,795 per month when I turn 56. I will be happy to fax you the
actual letter, if it would be helpful.”
The proposed federal legislation initially drafted in October 2005
was not introduced until 2007 because it was deemed unlikely that
the Republican-controlled Congress would have been willing to enact
it at that time. Following the November 2006 election and the shift
in control of both houses of Congress to the Democratic party, Congressman
Inslee renewed his efforts in the House of Representatives to allow
Valerie Wilson to receive her deferred annuity benefits, and introduced
a bill for that purpose in mid-January 2007.
Almost a year after the February 10, 2006 official CIA letter was
sent, Congressman Jay Inslee introduced the Valerie Plame Wilson
Compensation Act, H.R. 501, on January 16, 2007 in the United States
House of Representatives. Representative Inslee’s floor statement
brought to the attention of Congress “one of the human impacts
caused by the indiscretion of government officials regarding the
covert identity of Central Intelligence Agency operative Valerie
Plame Wilson.
As noted by Representative Inslee, on July 14, 2003 when Robert
Novak first identified her as a CIA agent, Valerie Wilson’s
“professional life was forever altered, and her CIA career
irrevocably ruined by the syndicated publication of a column, which
revealed [Ms. Wilson’s] identity as a covert CIA officer .
. . . [F]ollowing the initial outing in the media, [Valerie Wilson’s]
future as a covert CIA operative ceased to exist and her career
of two decades was destroyed. On January 9, 2006, [Ms. Wilson] resigned
from the CIA, recognizing that any future with the Agency would
not include work for which she had been highly trained.”
Representative Inslee’s remarks established the basis for
the legislation: “Despite [Valerie Wilson’s] 20 years
of federal service, she [did] not meet the minimum age requirement
to receive her retirement annuity. She has been left without a career.
Accordingly, Congressman Inslee introduced legislation “to
allow [Valerie Wilson] to qualify for her annuity, as one who has
served her country for two decades, and waive the age requirement
for collecting it.”
“To best demonstrate the annuity for which [Valerie Wilson]
may qualify if th[e] [proposed] legislation were to pass,”
Congressman Inslee “submit[ed] for the record a document sent
to [Valerie Wilson] by the CIA. It outlines her deferred annuity
and testifies to 20 years of service. The document bears no indications
of classified material as required by CIA procedures, and was sent
via regular postal mail after [Valerie Wilson] was no longer in
the employ of the CIA.” Indeed, Representative Inslee introduced
the Agency Annuity Letter into the Congressional Record only after
“[l]egal experts have assured [him] that this is not a classified
document.”
As part of the legislative process, on January 16, 2007, the Agency
Annuity Letter, including Ms. Wilson’s exact federal service
dates, entered the Congressional Record and since that date, it
has been continually available worldwide on the Internet through
the Library of Congress website at http://www.thomas.gov.
CIA’s Improper Effort to Treat Valerie Wilson’s Federal
Service Dates as Classified
Well after the October 2005 initial consideration of legislation
to waive the age requirement for Ms. Wilson’s annuity, and
the February 2006 receipt of the Agency Annuity Letter, Ms. Wilson
entered into a publishing agreement with Simon & Schuster and
commenced writing her memoir. In accordance with her contractual
obligations, in September 2006, she submitted a draft of her manuscript
to the CIA’s PRB for clearance.
From the outset, Ms. Wilson had endeavored to reach a reasonable
resolution with the Agency of any possible national security issues
arising from her memoir. Ms. Wilson was not seeking carte blanche
to discuss her entire government service or to reveal any classified
information. Ultimately, Ms. Wilson submitted the complete manuscript
to the PRB for its review in early September, 2006 and requested
a meeting in mid-October 2006 to discuss any required redactions.
In the course of requested postponements to this meeting, Ms. Wilson
learned for the first time that there was an internal Agency debate
about the propriety of revealing information about the duration
of her employment affiliation with CIA.. During her first in-person
meeting on November 1, 2006, PRB officials indicated that it was
their view that prohibiting Ms. Wilson from disclosing her CIA affiliation
prior to 2002 would lead to an “absurd” and “ludicrous”
result. Nonetheless, on November 8, 2006, Ms. Wilson was informed
that a decision had been made by “the Seventh Floor,”
i.e., senior Agency management, not to permit her to disclose
her Agency affiliation prior to 2002.
Despite apparent disagreement internally at the CIA, PRB’s
Chairman indicated that his hands “were tied” because
Agency management had intervened and the final decision rested with
the Office of the Director, rather than with the individuals directly
involved in the review process and therefore most knowledgeable
about the specific aspects of information subject to nondisclosure
for national security purposes.
On or about late December 2006, and by letter received on January
9, 2007, the CIA was reminded by Ms. Wilson’s counsel that
the dates of her federal service were disclosed officially by the
Agency in an unclassified letter to her in February 2006 and that
disclosure of Ms. Wilson’s federal service information conformed
to other public domain information that had previously been reviewed
with CIA. In light of its prior disclosure, CIA was requested to
reconsider its untenable stance.
Instead, it was not until January 19, 2007 that the CIA first asked
Ms. Wilson to return the official, unclassified Agency Annuity LetterPrior
to that date, the CIA failed to take any action concerning its unclassified
release of Ms. Wilson’s service dates.
Indeed while the CIA had actual knowledge of the existence in unclassified
form (and its disclosure of) Valerie Wilson’s precise dates
of service from at least February 10, 2006 through January 19, 2007,
it took no steps whatsoever for nearly a year to: (1) reclassify
any information contained in the CIA Letter, (2) indicate any national
security classification of the contents of the letter through proper
marking and redelivery of the letter, (3) retrieve the original
letter, or (4) restrict in any way dissemination of the letter or
any information contained therein
In its January 19, 2007 letter, the CIA for the first time requested
that Ms. Wilson “contact Karen F. Tumolo, [Chief, Retirement
& Insurance Services] . . . to make arrangements to return the
[February 10, 2006] letter” (“CIA’s January 19
Letter”). At the time the CIA’s January 19 Letter was
written, it already knew that the Agency Annuity Letter had been
printed in the Congressional Record. On January 23, 2007, the CIA
acknowledged in writing to the Clerk of the House of Representatives
that its February 10, 2006 letter, which the CIA stated contained
“classified information,” had been published in the
Congressional Record on January 16, 2007.
Following receipt of the January 19, 2007 letter, Ms. Wilson agreed
to provide a copy of the February 10, 2006 letter to the CIA and
requested that the CIA provide her with a revised and remarked version
of the Agency Annuity Letter, with any ostensibly classified information
redacted, that complied in good faith with the applicable provisions
of Exec. Order 13292, including § 1.6.
Specifically, however, it was not until April 24, 2007 –
some four months later – that the CIA purported to identify
the information it had previously disclosed in February 2006 (now
published in Congressional Record) – as “secret.”
Thus, on April 25, 2007, CIA’s Acting General Counsel, John
A. Rizzo, on behalf of defendant CIA and defendant Hayden, sent
a letter to Valerie Wilson’s attorneys in New York enclosing
a newly redacted copy of the Agency Annuity Letter that he asserted
“reflects the proper classification markings and that has
been approved for release in redacted form as a result of a declassification
review.” Notwithstanding the CIA’s documented official
disclosure of her service dates previously published in the Congressional
Record, the newest version of the Agency Annuity Letter is largely
blank, except for the CIA’s official letterhead, date of the
letter, addressee information, CIA service dates from 1/01/2002
to 1/09/2006, and title of the sender.
Notably, this new version of the Agency Annuity Letter includes
the crossed out word “secret.” The word “secret”
appeared nowhere on the original and official February 10, 2006
letter and was added to this new version, and then crossed out,
in order to create the appearance or pretext that as originally
issued the document was labeled “secret.” The CIA now
contends that the unclassified February 10, 2006 Agency Annuity
Letter had been “mistakenly sent to her.”
The Government’s Unconstitutional Prior Restraint and Censoring
of the Memoir
Ms. Wilson’s initial and continuing communications with the
PRB showed that she planned to write and publish a memoir. At no
point during the five months of initial correspondence with PRB
did anyone there indicate that she would be effectively prevented
from publishing a memoir that reflected the duration of her employment
(and hence the seriousness of her “outing” as a senior
and experienced intelligence officer, rather than a relatively new
employee with limited service). As a general matter, PRB had essentially
acknowledged that most of the material in the book was, by itself,
innocuous and posed no actual threat to national security. However,
Ms. Wilson and her counsel were nevertheless informed in November
2006 that the CIA’s Director, General Hayden, had personally
decided that Ms. Wilson’s federal services dates with CIA
could not be disclosed. CIA therefore denied approval for her to
publish the first half of her manuscript because it was “replete”
with information that confirmed her actual service dates with the
Agency. At the same time, PRB informed Ms. Wilson that while there
was “more than one approach” to revising the manuscript
to render it unclassified, CIA also recognized that “these
options might not be feasible in some instances and that the only
way to avoid revealing classified information in those cases would
be to recast that information or fictionalize it . . . .”
Over the next several months, Ms. Wilson and her representatives
attempted to resolve the impasse with the CIA concerning the Agency’s
demand that significant changes be made to the Manuscript based
largely on whether her actual dates of service were in the public
domain.
Given the CIA’s belated attempt to classify or reclassify
the information documenting her service dates, Ms. Wilson understandably
was unable to resolve the impasse with PRB concerning the significant
redactions to her Manuscript.
Subsequently, on April 19, 2007, the CIA confirmed that Ms. Wilson
had exhausted her administrative remedies concerning the Agency’s
demands. The April 19, 2007 letter stated that “with limited
exceptions, the classified information the PRB identified in [the
Manuscript] relates to a single issue, of which [Valerie Wilson
was] aware, and reflects the classification determination made by
the Director of the Agency [defendant Hayden]. Because the Agency
has provided [Valerie Wilson] with a level of administrative process
that exceeds the requirements of the applicable Agency regulations,
[Valerie Wilson has] exhausted [her] administrative remedies with
respect to this classification determination.”
The “single issue” referred to in the April 19, 2007
letter was the unwillingness of the CIA and defendant Hayden to
permit Valerie Wilson to disclose her federal service dates prior
to January 1, 2002 because such information was purportedly “classified”
and therefore remained subject to Ms. Wilson’s secrecy agreement
as ostensibly “secret” information under Executive Order
13292. The CIA therefore censored the Manuscript to preclude any
acknowledgment that she was employed by the Agency before 2002 notwithstanding
its prior disclosure of her actual service dates in the unclassified
Agency Annuity Letter and the fact that the January 2007 Congressional
Record published the same information (where it has remained available
worldwide on the Internet through the Library of Congress website
at http://www.thomas.gov.)
Following the CIA’s express confirmation that Ms. Wilson
had exhausted her administrative remedies concerning the publication
of material that could reveal the “single issue” of
her service dates, Ms. Wilson’s counsel on April 27, 2007
urgently appealed to J. Michael McConnell, Director of National
Intelligence (“DNI”) in his oversight authority to promptly
correct the unconstitutional actions of the CIA. Ms. Wilson’s
counsel provided supporting documentation to show Mr. McConnell
that the CIA, in order to conceal what the CIA characterized as
an “administrative error,” was attempting to improperly
classify or reclassify Ms. Wilson’s service dates by demanding
that she delete or fictionalize her Memoir to censor known facts
in the public domain. The DNI was requested to correct the CIA’s
unconstitutional position, as he was statutorily empowered to do.
On May 18, 2007, the General Counsel of the Office of the Director
of National Security (“ODNI”), Benjamin Powell, responded
on behalf of Mr. McConnell, and declined Ms. Wilson’s request
to the DNI to cure the alleged constitutional violation by CIA and
its Director, General Hayden.
The Constitutional Presumption Against Prior Restraints and Government
Censorship and the Legal Basis for Plaintiffs’ Argument that
Valerie Wilson’s Dates of Federal Service Were Officially
Acknowledged by CIA in Unclassified Form and Entered the Public
Domain as a Direct Consequence of that Disclosure
The term prior restraint describes “a law, regulation or
judicial order that suppresses speech – or provides for its
suppression at the discretion of government officials – on
the basis of the speech’s content and in advance of its actual
expression.” United States v. Quattrone, 402 F.3d
304, 309 (2d Cir. 2005) (citing Alexander v. United States,
509 U.S. 544, 550 (1993)).
Valerie Wilson’s federal service dates were previously disclosed
in an authorized, official letter delivered in unclassified form
in 2006 to Ms. Wilson for planning purposes, which included proposed
legislation by Congress to provide financial relief to Ms. Wilson
arising from the premature conclusion of her career before she had
attained the statutory age required for her deferred annuity. After
the letter was published in the Congressional Record her service
dates indisputably and irrevocably entered the public domain. Plainiffs
asserted that to censor Ms. Wilson’s manuscript in a way that
prevents publication of the specific service dates disclosed by
CIA would impose an unlawful prior restraint on the author’s
and publisher’s ability to communicate public domain information
to the public and would chill protected speech by the threat of
criminal sanction. See Davis v. East Baton Rouge Parish School
Bd., 78 F.3d 920, 928 (5th Cir. 1996) (“An order that
prohibits the utterance or publication of particular information
or commentary imposes a prior restraint on speech.”) (citations
omitted). Indeed, “it has long been established that such
restraints constitute “the most serious and the least tolerable
infringement” on our freedoms of speech and press.”
United States v. Quattrone, 402 F.3d 304, 309 (2d Cir.
2005) (quoting Nebraska Press Ass’n v. Stuart, 427
U.S. 539, 559, 49 (1976). “Any imposition of a prior restraint,
therefore, bears ‘a heavy presumption against its constitutional
validity.’” Quatronne, 402 F.3d at 310 (quoting
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)).
As a former CIA intelligence officer, Ms. Wilson is contractually
obligated to have her manuscript reviewed and approved by the CIA.
See Snepp v. United States, 444 U.S. 507, 511 (1980). No
one disputes that fact and as a loyal former CIA officer, Ms. Wilson
does not want to reveal any classified information in her Memoir.
However, notwithstanding her status as a former CIA agent, Ms. Wilson
is no different from any other author in that she, too, is free
to publish unclassified information and information that is in the
public domain. See, e.g., Snepp, supra, at 511 (“Government
does not deny – as a general principle – [former CIA
employee’s] right to publish unclassified information.”).
See also, McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir.
1983) (author has “strong [F]irst [A]mendment interest in
ensuring that CIA censorship of his article results from a proper
classification of the censored portions”) (citing Alfred
A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1367 (4th Cir.) (“the
deletion items should be suppressed only if they are found to be
both classified and classifiable under the Executive Order”),
cert denied, 421 U.S. 992 (1975)); Stillman v. Cent.
Intelligence Agency, No. 01-1342(EGS), 2007 U.S. Dist. LEXIS
24206 at *13 n.4 (D.D.C. March 30, 2007) (“Court recognizes,
however, that any secrecy agreement which purports to prevent disclosure
of unclassified information would contravene First Amendment
rights” (citing United States v. Marchetti,
466 F.2d 1309, 1317 (4th Cir. 1972) (“We would decline enforcement
of the secrecy oath signed when he left the employment of the CIA
to the extent that it purports to prevent disclosure of unclassified
information, for, to that extent, the oath would be in contravention
of his First Amendment rights.”)).
In sum, plaintiffs have a well recognized First Amendment right
to publish unclassified information about Valerie Wilson’s
life – specifically, her dates of federal service as previously
disclosed by the CIA – and a corresponding interest in ensuring
that the Agency’s pre-publication review process is reasonably
structured to prevent publication only of properly classified
material. See Snepp, 444 U.S. at 520 (Stevens, J., dissenting)
(a fundamental public interest “lies in a proper accommodation
that will preserve the intelligence mission of the Agency while
not abridging the free flow of unclassified information”);
McGehee v. Casey, 718 F.2d at 1148 (“the entire scheme
of prepublication review [by the CIA] is designed for the purpose
of preventing publication of classified information”).
Accordingly, when information that the CIA disclosed in unclassified
form is irretrievably in the public domain as a consequence of the
Agency’s own official disclosure, the executive branch defendants
should have been, but were not, enjoined by the District Court from
precluding publication of the same information published by Congress.
CIA “Officially Acknowledged” Valerie Wilson’s
Federal Service Dates
Courts have consistently recognized that when information has been
“officially acknowledged” and it enters the public domain,
the government may no longer prevent access to or dissemination
of the same specific information. Indeed, “when information
has been ‘officially acknowledged,’ its disclosure may
be compelled even over an agency’s otherwise valid exemption
claim.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.
Cir. 1990). See also, Wolf v. Cent. Intelligence Agency,
473 F.3d 370, 378 (D.C. Cir. 2007) (discussing and applying doctrine);
Afshar, v. Dep’t of State, 702 F.2d 1125, 1133 (D.C.
Cir. 1983) (same); Fitzgibbon, 911 F.2d at 765 (same);
Peay v. Dep’t of Justice, No. 04-1859 (CKK), 2007
U.S. Dist. LEXIS 17586, at *10 (D.D.C. March 14, 2007) (government
may not withhold information that has been “officially acknowledged”
or is in the “public domain”); Hudson River Sloop
Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414,
421 (2d Cir. 1989) (applying doctrine “when the government
has officially disclosed the specific information
being sought” and “the information sought has previously
been made public through official disclosures”); Rubin
v. Cent. Intelligence Agency, No. 01 CIV. 2274 (DLC), 2001
U.S. Dist. LEXIS 19413 at *14-15 (S.D.N.Y. Nov. 30, 2001) (recognizing
“important distinction between official and unofficial disclosure”).
Official acknowledgement by a government agency occurs when the
following three criteria are met:
First, the information requested must be as specific as the
information previously released. Second, the information requested
must match the information previously disclosed. Third, the
information requested must have been made public through an
official and documented disclosure.
Wolf, 473 F.3d at 378 (quoting Fitzgibbon 911
F.2d at 765). “A plaintiff asserting a claim of prior disclosure
must bear the initial burden of pointing to specific information
in the public domain that appears to duplicate that being withheld.”
Wolf, 473 F.3d at 378 (quoting Afshar, 702 F.2d at
1130). Further, the plaintiffs must show that information disclosed
into the public domain is as specific as that which is being sought
to be published, relates to the same time period, and has been the
result of an official disclosure. See Fitzgibbon v. Cent. Intelligence
Agency, 578 F. Supp. 704, 715 (D.D.C. 1983); Wolf,
473 F.3d at 378 (“prior disclosure of similar information
does not suffice; instead, the specific information sought by plaintiff
must already be in the public domain by official disclosure”).
Here, under the applicable law and indisputable facts, plaintiffs
have met their burden of showing that each of the three criteria
under the “officially acknowledged” doctrine have been
satisfied. The CIA, through its own conduct, has waived any legitimate
grounds it might otherwise have to forbid publication of information
previously disclosed in unclassified form on the basis of harm to
national security or for any other reason. It cannot now try to
re-assert the pretense that Ms. Wilson only worked for the CIA starting
in January 2002. To hold otherwise would maintain a charade that
has no support in the law or these undisputed facts. See Wolf,
473 F.3d at 378 (“when information has been ‘officially
acknowledged,’ its disclosure may be compelled even over an
agency’s otherwise valid exemption claim”) (quoting
Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755, 765
(D.D.C. 1990). Accordingly, this Court should compel the CIA to
permit disclosure by Ms. Wilson of her specific dates of service,
as published in the Congressional Record for the last six months.
1. The Information at Issue is as Specific as the Information
Previously Released by CIA
The February 10, 2006 Letter drafted and officially released
by the CIA, as submitted by Congressman Inslee for publication
in the Congressional Record, included the following unclassified
information: (1) Valerie Wilson (a/k/a Valerie Plame) commenced
her service with CIA on “11/9/1985” (2) the dates
of Ms. Wilson’s CIA service were from “11/9/1985 to
1/9/2006—total 20 years, 7 days”; (3) Ms. Wilson “acquired
6 years, 1 month and 29 days of overseas service” with CIA.
See http://www.thomas.gov. By release of this official and unclassified
letter, the CIA acknowledged the specific dates of Ms. Wilson’s
CIA employment starting in 1985.
2. The Information at Issue Matches the Information Previously
Disclosed by CIA
Valerie Wilson, a loyal former CIA officer, is not seeking carte
blanche to discuss her entire government service or to reveal
any classified information. Rather, as the CIA has itself acknowledged,
the “single issue” presented here is whether Valerie
Wilson and Simon & Schuster can publish the specific information
contained in the Agency Annuity Letter and published in the Congressional
Record. See Smallman Decl., Ex. J; Def. R., Tab 28. This
precise information includes an unequivocal acknowledgment that
Ms. Wilson worked for the CIA for 20 years, starting in 1985,
and the information that plaintiffs seek to publish matches the
information previously disclosed by the CIA in the February 10,
2006 Annuity Letter. Accordingly, plaintiffs seek a declaration
that any deletions to Ms. Wilson’s manuscript required by
the CIA must comport with the fact that her twenty years of service
with the Agency were acknowledged by CIA and that information
is now in the public domain.
3. The Information at Issue has been Made Public through an
Official and Documented Disclosure by CIA
There was, in plaintiffs’ view, no reasonable dispute given
the indisputable material facts that the first two prongs of the
“official acknowledgment” doctrine were satisfied.
Thus, the primary remaining issue for the District Court was whether
the February 10, 2006 Agency Annuity Letter was an “official
and documented” disclosure. Here too, as a matter of law
no other conclusion can be reached. As courts have defined those
terms, the February 10, 2006 Annuity Letter is on its face a “documented”
and “official” disclosure. In Schlesinger v. Cent.
Intelligence Agency, 591 F. Supp. 60, 66 (D.D.C. 1984), for
example, the district court analyzed whether the CIA had “officially
acknowledged” certain information and construed the phrase
“official disclosure” to mean “direct acknowledgments
by an authoritative government source.” Courts routinely
distinguish “official” disclosures – like the
CIA letter at issue here – from speculative ruminations
by independent third parties. As the Fourth Circuit has noted,
“it is one thing for a reporter or author to speculate or
guess that a thing may be so or even, quoting undisclosed sources,
to say that it is so; it is quite another thing for one in a position
to know of it officially to say that it is so.” Alfred
A. Knopf, Inc., supra, 509 F.2d at 1370.
Here, CIA’s Chief, Retirement & Insurance Services knew
of Valerie Wilson’s federal service dates and disclosed them
in a letter sent without any indicia of classification. As such,
CIA’s disclosure was not made by an unaffiliated author or
unauthorized person. Rather, disclosure was made by a senior manager
of the CIA presumed to be knowledgeable about handling of classified
information. Simply put, a letter issued by the CIA’s Chief,
Retirement & Insurance Services is a disclosure by “an
authoritative government source.” Further, the disclosure
did not occur in some offhand, casual manner. Instead, the letter
was issued after months of internal CIA dialogue regarding Ms. Wilson’s
entitlement to her annuity – an analysis that included CIA’s
office of General Counsel. Nor was the disclosure made in casual
conversation or incidental to some other communication. To the contrary,
it came in an official letter on CIA letterhead devoted exclusively
to documenting Ms. Wilson’s dates and terms of service with
the Agency and her entitlement to an annuity. Finally, Ms. Wilson
was not just any former employee at the time she received the Letter.
She had been the subject of intense media attention for years and
was, at that time, the focus of a pending criminal investigation
regarding the leak of her status.
The Result Below
The judgment of the District Court denying plaintiffs’ motion
for summary judgment and granting the federal government defendants’
motion for summary judgment was entered in this action on August
3, 2007 (“Judgment”). The Judgment referenced the District
Court’s Opinion & Order dated August 1, 2007 and filed
August 3, 2007, which held, inter alia, that a prior restraint
in alleged violation of the First Amendment imposed by the executive
branch of the federal government to prevent publication in Valerie
Plame Wilson’s forthcoming memoir FAIR GAME: MY LIFE AS A
SPY, MY BETRAYAL BY THE WHITE HOUSE of “her dates of employment
for the Central Intelligence Agency” (“CIA”) was
permissible because, inter alia, information concerning
“Wilson’s pre-2002 employment for the CIA (if any)”
was “properly classified” and remained classifiable
under the circumstances presented pursuant to Executive Order, was
not “made public ‘through’ an official disclosure”
by CIA, and was not “officially acknowledged” by CIA,
notwithstanding certain factual findings by the District Court and
facts in the record, including that the “Chief of the CIA’s
Retirement and Insurance Services” sent a letter to Valerie
Wilson “on CIA letterhead, by first class mail, and without
any indicia that the information contained therein was classified,”
that the CIA letter “purports to set forth Wilson’s
dates in service and the date she would become eligible to receive
her annuity,” that a member of the House of Representatives
caused that letter to be published in the Congressional Record as
part of the legislative process, that the letter was “in the
public domain” because CIA had delivered it to Wilson in connection
with efforts to receive her deferred annuity after she was “outed”
by “senior government officials” which “ultimately
caused her to resign from the CIA in January 2006,” that the
information concerning Wilson’s dates in service was sought
and obtained by Congress in connection with the introduction of
“a private bill to make Wilson’s annuity available to
her earlier than under the extant statutory scheme,” and that
the information is “publicly accessible on the Internet through
the Library of Congress’s website.”
Valerie Plame Wilson and Simon & Schuster, Inc. filed a notice
of appeal on September 28, 2007. Among other things, they believe
the District Court wrongly decided the case and that censorship
of Ms. Plame Wilson’s dates of government service deprives
the public of important information about government misconduct
and violates the Constitution.
II. Proceedings in the United States Court of Appeals for the
Second Circuit, October 4, 2007 to Date
Pre-Argument Statement/Forms
C & D Filed, October 4, 2007
Letter dated October
9, 2007 from AUSA Benjamin H. Torrance to Clerk of the Court, United
States Court of Appeal
Proposed issues to be raised on appeal by Petitioner-Appellants
Valerie Plame Wilson and Simon & Schuster, Inc., as well as
the applicable appellate standard of review for each proposed issue,
may include the following:
- Whether the District Court erred in upholding a prior restraint
in violation of the First Amendment to the United States Constitution
imposed by the executive branch of the federal government to prevent
publication in Valerie Plame Wilson’s memoir FAIR GAME:
MY LIFE AS A SPY, MY BETRAYAL BY THE WHITE HOUSE of the dates
of her service with CIA set forth in a February 10, 2006 letter
from the Chief of the CIA’s Retirement and Insurance Services
that was delivered in unclassified form to Ms. Wilson for the
purpose of explaining her entitlement to a deferred federal annuity
and subsequently relied upon by the United States House of Representatives
in connection with introduction of federal legislation to provide
Ms. Wilson with retirement benefits and published in the Congressional
Record.
Standard of Review: De novo.
- Whether the First Amendment interests of Valerie Wilson and
Simon & Schuster, Inc. in free dissemination of Ms. Wilson’s
pre-2002 federal service dates previously disclosed in unclassified
form by CIA in February 2006 that bear upon the following: (a)
the seriousness of her “outing” as a covert CIA officer
in 2003 by senior officials in the Bush Administration, (b) the
justification for the criminal prosecution of I. Lewis Libby for
perjury and obstruction of justice that interfered with an investigation
of suspects ultimately responsible for the disclosure of the identity
of a covert CIA officer serving overseas during wartime for improper
political purposes which jeopardized national security, and (c)
the accountability of the White House for commuting the prison
sentence of Mr. Libby and any possible future pardon, are outweighed
by the executive branch’s interest in censoring on national
security grounds precisely the same specific information about
Valerie Wilson’s dates of service with CIA published in
the Congressional Record in January 2007 for legislative purposes
that would provide early retirement benefits to a former CIA officer
forced to retire prematurely by government misconduct, and now
available online worldwide.
Standard of Review: De novo
- Whether, because the government’s right to censor information
does not extend to information that it has already officially
acknowledged, and because the District Court erred in holding
that the government had not officially acknowledged the specific
information about Ms. Wilson’s federal service dates, the
District Court’s judgment should be reversed as a matter
of law because the government’s interest in precluding further
dissemination of the identical information previously published
by Congress was outweighed by competing First Amendment rights
of Ms. Wilson and her publisher, Simon & Schuster.
Standard of Review: De novo.
- Whether the District Court abused its discretion by relying
upon the ex parte Declaration of Stephen Kappes, the Declaration
of Richard Puhl, and the Declaration of Karen Tumolo, in violation
of the Federal Rules of Evidence and Fed. R. Civ. P. 56, thereby
resulting in reversible error.
Standard of Review: Abuse of discretion and de novo.
- Whether the District Court erred in holding that Valerie Plame
Wilson’s “pre-2002 employment for the CIA” as
set forth in the February 10, 2006 letter from CIA was “properly
classified” and classifiable after that specific information
was voluntarily disclosed by CIA, relied upon by Congress as part
of the legislative process, and published in the Congressional
Record.
Standard of Review: De novo.
- Whether the District Court erred in holding that Wilson’s
pre-2002 dates of federal service were not “made public
‘through’ an official disclosure” by CIA by
utilizing an inapposite and clearly erroneous proximate causation
standard rather than the correct “but for” causation
standard.
Standard of Review: De novo.
- Whether the District Court’s Judgment was inconsistent
as a matter of law with the factual findings set forth in the
District Court’s Opinion and Order, or, alternately, in
error with regard to certain findings of material fact in favor
of the government defendants without discovery, therefore requiring
reversal pursuant to the applicable standards under Fed. R. Civ.
P. 56 and/or Fed. R. Civ. P. 56(f).
Standard of Review: De novo and abuse of discretion.
- Whether the District Court applied the wrong legal standard
to the third prong of the “official acknowledgment”
doctrine, which requires that the information at issue has been
made public through an official and documented disclosure, by
failing to construe official disclosure as “direct acknowledgments
by an authoritative government source” and by failing to
hold that an authoritative government source had directly acknowledged
Ms. Wilson’s dates of federal service.
Standard of Review: De novo and abuse of discretion.
- Whether the District Court erred by confusing the issue of “classification”
authority and “declassification” pursuant to Executive
Order, with the consequences of “official acknowledgment”
by a government agency, under which disclosure may be compelled
even over a government agency’s otherwise valid classification
or reclassification determination due to waiver and competing
First Amendment interests that only permit government censorship
of properly classified or classifiable information.
Standard of Review: De novo.
- Whether the District Court erred by failing to consider the
heavy presumption against systems of prior restraint based on
the government’s interest in maintaining the secrecy of
national security information and by failing to consider a proper
accommodation that would preserve the intelligence mission of
CIA while not abridging the free flow of unclassified or unclassifiable
information.
Standard of Review: De novo.
- Whether Congressional publication of previously classified information
voluntarily disclosed by CIA waives the CIA’s right to withhold
the identical classified information for subsequent publication.
Standard of Review: De novo.
- Whether the District Court erred by failing to consider and
enforce plaintiffs’ First Amendment right to publish unclassified
information, and their corresponding interest in ensuring that
the government’s pre-publication review process is reasonably
structured to prevent publication only of properly classified
material.
Standard of Review: De novo.
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