ACLU Aids Ex-CIA Employee In

Obtaining Prepublication Clearance

for Article

by Mark Srere

First Principles, May 1994, p.12 (ISSN 0363-0447) Center for National Security Studies

The ACLU's National Security Litigation Project secured a significant victory in its representation of a former CIA employee who wished to publish an article on reconnaissance satellite policy. Allen Thomson, an ex-CIA employee, wrote an article on reconnaissance satellites and the vulnerability of the current United States strategy of depending on a few, very expensive satellites. In January 1993, he submitted the article for prepublication review by the CIA as called for by his nondisclosure agreement with the agency. (CIA employees are required to sign prepublication review agreements -- a practice long opposed by the ACLU.)

The CIA's Prepublication [sic] Review Board (PRB) reviewed the article and requested that he provide additional "open source" cites for several items contained in the article. Mr. Thomson provided those cites and the PRB made it clear that it had no additional security concerns with the article as written. However, the CIA withheld clearance to publish the article until the National Reconnaissance Office (NRO) cleared the article for publication.

After its review, the NRO told Mr. Thomson that he could not publish his article because any discussion of reconnaissance satellites had to occur in classified channels only. The NRO cited the classified National Security Directive 30, signed by President Bush in 1989, as the legal basis for its decision. According to the NRO, NSD 30 limited any discussion of reconnaissance satellites to classified channels. In essence, the NRO told Mr. Thomson that no part of his article could be cleared for public consumption.

Mr. Thomson was then notified that he could appeal the NRO's decision directly to the Director of Central Intelligence, who has responsibility over the NRO. In April 1993, Mr. Thomson appealed the decision to the DCI. After not receiving any response to his appeal and follow-up letter in over six months, Mr. Thomson came to the ACLU's National Security Litigation Project (NSLP) for help.

The NSLP wrote to the Director and the CIA's General Counsel on Mr. Thomson's behalf, pointing out that the CIA had no legal basis to prevent the publication of unclassified material, which for practical purposes the CIA had already admitted was at stake here. Initially, the CIA took the position that the entire article was classified because of who the author was: i.e., Thomson's prior experience at the CIA and access to classified information gave his article an imprimatur of official endorsement of his views. In other words, people who read the article would believe that Mr. Thomson selected the open sources quoted in the article because he knew them to be correct in their facts and opinions.

The CIA, however, also demonstrated a willingness to discuss the issue and try to resolve the parties' differences. Mr. Thomson, represented by the NSLP, then engaged in negotiations with the CIA and NRO, making it clear that he would take the case to court if necessary. These negotiations proved fruitful. Ultimately, Mr. Thomson met with the NRO's technical people to review the text of the article line-by-line to determine whether sufficient changes could be made to satisfy the NRO and still allow the article to be published. At that meeting, the NRO requested only a few minor changes to the text, all of which were acceptable to Mr. Thomson. He then received explicit permission to publish his article with those changes.

Allen Thomson's saga raises both concerns and commendations about the actions of the CIA and the NRO. The NRO's close-minded approach against the publication of any material regarding reconnaissance satellites is a symptom of a much larger problem within the Intelligence Community. Indeed, the DOD/CIA Joint Security Commission recently cited the NRO for its excessive secrecy and recommended that "many NRO classification requirements currently imposed can be dropped without danger to essential NRO activities." Redefining Security, A Report to the Secretary of Defense and the Director of Central Intelligence, at 20 (Feb. 28, 1994) [sic]. Because the very existence of the NRO was classified until 1992 (even though it was commonly known to exist), the culture of the agency is that it can classify everything and anything that somehow touches on its mission. This attitude must be changed, especially given the changed world circumstances.

Moreover, this case also raises questions whether the NRO may have acted solely to control the debate on its mission and its budget. Mr. Thomson's article is critical of the NRO's current practices and cites arguments that support the launching of many low-cost satellites as opposed to the few, very expensive satellites currently deployed. Indeed, despite the NRO's contention that any discussion of reconnaissance satellites can only occur in classified channels, the government has cleared numerous other writings that discuss reconnaissance satellites. These facts therefore suggest that the NRO's efforts to prevent publication of Mr. Thomson's article were rooted more in a desire to protect itself against criticism than to protect the national security.

In contrast, the CIA's PRB should be commended for making the correct initial determination regarding the article before the NRO got involved. Moreover, the CIA's Office of General Counsel must also be commended for its work in resolving this issue before it reached the courts. Although the delay in acting on Mr. Thomson's initial appeal cannot be condoned, once the NSLP became involved and the General Counsel's office focused on the issue, resolution was swift and correct.

Draft letter to CIA Inspector General from Allen Thomson, 6 July 1998