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The Government Had to Approve This Op-Ed – The New York Times

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Opinion

Prepublication review of the writings of current and former federal employees violates their First Amendment rights.

By Mark Fallon

Mr. Fallon worked for the federal government for 31 years.

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Between the time I wrote these words and the time that you are reading them, a team of government censors decided how much of what I wrote you would get to see. Fortunately, it was cleared without redactions. But I haven’t always been so fortunate.

There are millions of others like me who face this scrutiny as present and former employees of the armed services and a dozen other government agencies, from the C.I.A. and F.B.I. to the State and Energy Departments. We have faithfully carried out our duties and upheld our oaths of allegiance to the Constitution. Many of us earned the highest trust of our country, serving in roles that brought us in contact with government secrets and classified material. We have honored and repaid that trust, guarding sensitive information and fulfilling the obligations associated with our security clearances.

In return, we have been rewarded with what feels very much like a lifetime of distrust. Whenever we want to write about even the nonsensitive aspects of our service and experience, we have to submit our manuscripts and articles for prepublication review by the government. We have to do this even after we retire.

I spent 31 years in sworn duty to support and defend the Constitution of the United States, and I’m pretty sure this is not how the First Amendment is supposed to work. That’s why I have joined in a lawsuit with four other former federal employees seeking to block the government from enforcing this review process in its current form.

I joined the Naval Criminal Investigative Service in 1981. At that time, despite the Cold War obsession with national security, service members and intelligence officers rarely had to submit their writings before publication. Two years later, President Ronald Reagan issued a directive that would have subjected millions of government employees to prepublication review. That directive was so controversial, and so obviously at odds with free speech values, that Congress held hearings, and Mr. Reagan rescinded it.

In the years since, however, 17 military and civilian agencies have instituted their own prepublication review regimes, according to an analysis by the A.C.L.U. and the Knight First Amendment Institute at Columbia University, which are representing us in our lawsuit. The rules about which employees are required to submit to review are confusing and inconsistent among agencies. The criteria for what gets censored are unclear. The time it takes to have a manuscript approved can stretch to years.

Of course, vital intelligence and operational information must be protected. But no review system will guard against those who are determined to divulge government secrets. At its best, then, this review should confirm that employees are not inadvertently disclosing information that would actually harm national security. My own experience shows, however, that this is not always the way the system works.

Three years ago, during a presidential race in which Donald Trump, the Republican Party’s presumptive nominee, was pledging to “bring back waterboarding and I’d bring back a hell of a lot worse than waterboarding,” I felt I needed to share what I knew about the destructiveness of torture, and about the struggle many of us had waged to stop the abuse of prisoners in American custody after the Sept. 11 terrorist attacks. As deputy commander of the Department of Defense Criminal Investigation Task Force, I had protested prisoner abuse to my superiors, and I had shared what I knew with Senate investigators. With the subject of torture again thrust into the center of the national debate, I wanted to write a book that would make the case why these abuses should never be repeated.

I would never publish classified material. I carefully avoided it, and meticulously cited congressional hearings and official investigations to show that the information I included was already public. In January 2017, I submitted my manuscript to the military. Defense Department regulations provide for a review process of at least 30 working days, but the government held my manuscript for 233 days. I finally got it back, months after the planned publication date, littered with unnecessary redactions of already published material.

I’m now one of the editors of an academic volume on ethical interrogation. A single chapter that I helped write, thoroughly footnoted with published sources, was held up for six months for review. It was finally returned to us with redactions that required additional rewriting, adding to the delays.

This censorship system seriously discourages publishers from taking on books by people who often have the most to contribute to public debates and decision-making. As my first book languished in review, my publisher considered canceling my contract, and told me afterward that it was unlikely to publish similar projects because of the uncertainties and costly delays involved.

Worse, review inhibits others from publicly writing about their service. There are several million veterans of the wars in Iraq and Afghanistan and other post-Sept. 11 military operations, plus many more from nonmilitary agencies. They are all required to submit their writings to government censors, many for the rest of their lives.

I take seriously my obligation to protect information essential to our national security. I also understand that I face a range of penalties, including criminal prosecution, if I betray this trust. There may be a place for prepublication review, but it should be limited in scope, clear in what it covers, and consistent with constitutional protections for freedom of speech. But the system we have now is not it.

The current system is discouraging some of our most dedicated and trustworthy veterans and public servants from joining public conversations that are crucial to our country’s future. That is the very opposite of what the First Amendment intended, and it is not good for any of us.

Related

Ex-National Security Officials Sue to Limit Censorship of Their Books

Mark Fallon, who spent 31 years as a federal agent, counterintelligence officer and counterterrorism specialist, is the author of “Unjustifiable Means: The Inside Story of How the C.I.A., Pentagon and U.S. Government Conspired to Torture.”

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A version of this article appears in print on , on Page A23 of the New York edition with the headline: The Government Had to Approve This. Order Reprints | Today’s Paper | Subscribe

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