An Unusual and Troubling Prior Restraint

On May 31, 2007, Plaintiffs Valerie Plame Wilson and Simon & Schuster, Inc., publisher of Ms. Wilson’s memoir entitled FAIR GAME: MY LIFE AS A SPY, MY BETRAYAL BY THE WHITE HOUSE, sought declaratory and injunctive relief in the District Court under the First Amendment of the United States Constitution to prevent an unlawful prior restraint by the executive branch defendants in violation of the First Amendment of the United States Constitution.

The specific background of the dispute is not as widely known as other aspects of the case. The dispute arose from the executive branch decision to prohibit plaintiffs from republishing information voluntarily disclosed in unclassified form to Valerie Wilson by CIA in February 2006 and released to assist her in connection with obtaining a government annuity through Congressional legislation when she was forced to retire prematurely in January 2006.

Although Congress subsequently printed the February 10, 2006 letter from CIA to Valerie Wilson in the Congressional Record as part of the legislative process and it is now available worldwide on the Internet, the executive branch opposed publication of the same information in Valerie Wilson’s memoir for “national security” reasons. The executive branch defendants asserted, and the District Court agreed, that a letter on CIA letterhead prepared by its Chief of Retirement and Insurance Services for the purpose of assisting her efforts to obtain government benefits was not an “official” disclosure by CIA.

Direct Acknowledgment By an Authoritative Government Source

The executive branch defendants also asserted that despite the fact that the February 10, 2006 letter entered the public domain through the legislative process as a result of direct acknowledgments by an authoritative government source – CIA’s Chief of Retirement and Insurance Services – and despite the fact that it was reasonably foreseeable that CIA’s direct acknowledgment in unclassified form of Ms. Wilson’s federal service dates would be utilized by Congress and thereby enter the public domain, Ms. Wilson’s dates of federal service were not made public “‘through’ an official disclosure.”

The rather tortured analysis of the Department of Justice, which ignored the reasoning of another federal district court as well as basic tort law and common sense, led to a bizarre conclusion that Ms. Wilson’s federal dates were not thereby “made public ‘through’ an official disclosure” by CIA, but rather by Ms. Wilson herself and the Congressman who relied upon the Agency’s official confirmation of her dates of service in proposing legislation to benefit a spy betrayed by her own government. The District Court agreed with the executive branch defendants and held that the February 10, 2006 letter to Ms. Wilson from CIA setting forth in unclassified form her dates of federal service for retirement planning purposes and possible future enactment of Congressional legislation to provide financial relief to Ms. Wilson was “not a public disclosure” by CIA and was “not an official disclosure” by CIA.

A Bizarre Outcome and Strange Theory About What the “Public Thinks It Knows”

Thus, in late summer, the executive branch defendants persuaded the district court -- based largely upon a secret declaration submitted by the Deputy Director of CIA that could not be reviewed or responded to by plaintiffs or their lawyers -- that the prior restraint should be upheld and censorship imposed upon Ms. Wilson’s book, FAIR GAME. This unusual outcome has effectively prevented the American public from confirming the exact same information previously disclosed by CIA a year earlier in unclassified form on CIA letterhead by the Chief of its Retirement and Insurance Services and published in the Congressional Record for legislative purposes.

Moreover, in sustaining a rare and apparently unfounded restriction upon freedom of speech, the lower court advanced a novel theory that the White House and the intelligence agencies it controls have limitless authority to confound the American public about “what they think they know” and to guess about what the real facts are concerning serious political misconduct by the executive branch of government.

The District Court observed that “[t]o be sure, the public may draw whatever conclusions it might from the fact that the information at issue was sent on CIA letterhead by the Chief of Retirement and Insurance Services. However, nothing in the law or its policy requires the CIA to officially acknowledge what those in the public may think they know.” (italics added). Leaving aside for the moment that the actual question presented was whether CIA had already “officially acknowledged” Ms. Wilson’s federal service dates, (rather than whether they ought to be required to do so yet again), the notion that propaganda techniques and tradecraft artfully employed for national security purposes against foreign enemies by our intelligence services can properly be used to confuse U.S. citizens about domestic matters in the “homeland” is a troubling one. It is especially so when the censored information concerns the betrayal by high-level executive branch officials of a senior CIA covert officer serving her country overseas during wartime, and whether a current administration and its supporters should be held accountable at the ballot box in an upcoming election year for harming national security due to that betrayal and associated misconduct.

Depriving the American Public of Information About Government Misconduct

While the executive branch defendants’ argued in the District Court that further public knowledge of the duration of Ms. Wilson’s federal service dates would somehow harm national security, plaintiffs believe that censorship of Valerie Plame Wilson’s dates of government service deprives the public of important information about government misconduct and violates the Constitution. Accordingly, Ms. Wilson and her publisher, Simon & Schuster, recently filed an appeal of the District Court’s decision and judgment. Among other things, plaintiffs will assert that the censorship at issue is prohibited by the First Amendment and makes no sense because Congress published information disclosed by CIA itself in unclassified form to help Ms. Wilson obtain her retirement benefits. Only later — a year later — did higher ups in government reverse course and claim that her dates of service were still classified. Based upon the facts and applicable law, it appears to plaintiffs that the executive branch defendants led the district court down an erroneous path and that the case has everything to do with politics and virtually nothing to do with national security, at least as formulated by defendants to support unreasonable prohibitions against republication of public domain information. If anything, the censorship imposed by the executive branch defendants appears to be contrary to national security because it allows the White House to downplay the seriousness of the ‘outing’ of a senior CIA officer who served overseas during wartime in 2002. As such, the case seems to reflect an unfortunate, continued politicization of the Office of the Director of National Intelligence and CIA, which has been mirrored in other important federal agencies, such as the Department of Justice.

The Seriousness of “Outing” a CIA Covert Officer and Obstruction of Justice

The specific information that the executive branch sought to censor – the dates of Valerie Wilson’s service with CIA – directly related both to the seriousness of the “outing” of a senior covert CIA officer by high level officials in the Bush Administration and to the justification for the prosecution of I. Lewis Libby, former Chief of Staff to Vice President Richard Cheney, for interfering with the leak investigation.

That criminal investigation by the Department of Justice had been initiated by CIA to determine whether illegal conduct jeopardizing national security had occurred when the identity of Valerie Plame Wilson – a covert CIA operations officer in the Directorate of Operations who served as chief of a Counterproliferation Division component with responsibility for weapons proliferation issues related to Iraq and who traveled overseas under cover during wartime after September 11, 2001 – was leaked to reporter Judy Miller and columnist Robert Novak for apparently improper political purposes.

The Special Counsel’s Confirmation That Valerie Plame Wilson was a Covert Officer

According to a publicly available court document filed by Special Counsel Patrick J. Fitzgerald in United States of America v. I. Lewis Libby, at the time of the initial unauthorized disclosure in the media of Ms. Wilson’s employment relationship with CIA on July 14, 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States. She traveled at least seven times to more than ten countries. When traveling overseas, Ms. Wilson always traveled under a cover identity – sometimes in true name and sometimes in alias – but always using cover – whether official or non-official cover (NOC) – with no ostensible relationship to the CIA.

Evidence introduced at the criminal trial of I. Lewis Libby indicated that prior to the “outing” of Ms. Wilson in July 2003, Vice President Richard Cheney knew that she was a CIA officer and had informed Mr. Libby of that fact. On July 2, 2007, President Bush commuted the 30 month prison sentence of I. Lewis Libby.

Current Status of the Case and the Continued Importance of the Censored Information

On August 1, 2007, the District Court upheld the executive branch defendants’ prior restraint, granting the government’s motion for summary judgment and denying Valerie Wilson’s and Simon & Schuster’s motion for declaratory and injunctive relief. The District Court held, inter alia, that “information concerning Wilson’s pre-2002 employment for the CIA (if any) is properly classified, has never been declassified, and was not otherwise officially acknowledged by the CIA.” To date, the White House has declined to rule out the future possibility of a full pardon for I. Lewis Libby, and continues to seek and enforce a prior restraint of the information at issue about Valerie Wilson’s dates of employment with CIA previously published in the Congressional Record.

On September 28, 2007, Valerie Wilson and Simon & Schuster filed a notice of appeal of the District Court’s Judgment entered on August 3, 2007 and the Decision and Order dated August 1, 2007 and entered on August 3, 2007.