I spy, but I can’t show and tell

Cover of 'Fair Game' by Valerie Plame via Simon & Schuster websiteJudith Miller published a story which, among other things, named Valerie Plame as a CIA spy. In later grand jury proceedings, Miller declined to name her source, despite a decision of the DC Circuit Court of Appeals that she had to do so, and spent 85 days in prison for her troubles. In truth, both Plame and Miller were pawns in a bigger game being played by the White House, but a lawsuit by Plame against members of the Bush administration was dismissed. In the meantime, Plame wrote a memoir about the affair: Fair Game. My Life as a Spy, My Betrayal by the White House (cover left) (Amazon | Simon & Schuster) but she was prevented by the CIA from writing about various aspects of her employment with them. The US Court of Appeals for the Second Circuit held (pdf) yesterday that this restriction did not infringe her First Amendment right to free speech.

When she joined the CIA, she signed a standard form secrecy agreement in which she agreed never to disclose classified information which she obtained in the course of her employment, and to submit publications which could do so to the CIA for pre-publication review, and – in Wilson v CIA – the Second Circuit Court of Appeals upheld the CIA’s refused to allow her to disclose her dates of service and other information relating to her employment before 2002.

For the Second Circuit, it was settled law that a system of pre-publication clearance is not a prior restraint in the classic sense, and that when a government employee voluntarily assumes a duty of confidentiality, restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public, so that once a government employee signs an agreement not to disclose information properly classified pursuant to executive order, that employee simply has no first amendment right to publish such information.

This leading authority in favour of this position is Snepp v United States 444 US 507 (1980) (FindLaw | Justia | Oyez) (Frank Snepp’s site), which in many ways is similar to the decision of the House of Lords in Attorney General v Blake [2001] 1 AC 268, [2000] UKHL 45 (27 July 2000). In Snepp, the US Supreme Court upheld the validity of pre-clearance agreements relating to classified material and held that a former CIA employee breached not only such an agreement but also a fiduciary obligation when he published a book about CIA activities without submitting his manuscript for pre-publication review, and the proceeds of the publication were impressed with a constructive trust in favour of the Government. Plame did not put Snepp in issue, and merely sought to argue instead that the material which she wished to publish was no longer properly classified. These largely factual arguments failed; Raggi J for the Court held that the

plaintiffs’ disclosure of the information presently censored by the CIA … would facilitate the identification of particular intelligence sources and methods, thereby compromising the Agency’s ability to use such sources and methods in the future. … In sum, the CIA has advanced “good reason” to maintain any pre-2002 Agency service by Ms. Wilson as classified and to prevent the inclusion of such information in her memoir. …

Because we reject plaintiffs’ argument that no good reason supports the CIA’s maintenance of Ms. Wilson’s pre-2002 dates of Agency service as classified, and because we have already determined that this information has not been officially disclosed by the CIA, we necessarily conclude that plaintiffs’ First Amendment challenge to defendants’ redactions to Fair Game fails as a matter of law. Ms. Wilson – like every other current and former Agency employee who has signed a Secrecy Agreement – “simply has no first amendment right to publish” the information here at issue, regardless of how “public” her past activities appear to have become …

Update (2 March 2011): the book is now a major motion picture (as all the best Hollywood adverts say) starring Naomi Watts as Valerie Plame and Sean Penn as her husband, Joe Wilson. It was Wilson’s article in the New York Times, claiming that the Bush administration had manipulated intelligence about Saddam Hussein’s weapons programs to justify an invasion of Iraq, that was the reason why the White House leaked Plame’s identity as a CIA agent.