Criminal Justice & the Rule of Law Intelligence

Disappointing DOD Inspector General Report on Pre-Publication Review

Jack Goldsmith, Oona Hathaway
Thursday, June 23, 2016, 1:22 PM

Editor’s note: This post also appears at Just Security.

Published by The Lawfare Institute
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Editor’s note: This post also appears at Just Security.

Earlier this year, we wrote about the US Government’s broken pre-publication review process (see here, here, here, here, and here). Last week, the Defense Department’s Inspector General released a report titled Review of the Policies for Prepublication Review of DoD Classified or Sensitive Information to Ensure no DoD Sensitive or Classified Information is Released to the Media. Although it’s great to see the DOD paying attention to the issue, the report unfortunately does not appear to make much progress in resolving the problems with pre-publication review.

The stated aim of the report was to “review the existing policies that require Department personnel to submit DoD sensitive or classified information for prepublication review to ensure no DoD sensitive or classified information is released to the media.” Its main finding is that DOD Directive 5230.09 and DOD Instruction 5230.29, both of which provide rules for pre-publication review within the Department, “were not uniformly applied throughout the Department.” It is not entirely clear from the report whether the Inspector General concluded that the Department is too permissive or not permissive enough in its pre-publication review policies. The report concludes with a recommendation that the Director of Washington Headquarters Services “provide a plan of action and milestones to ensure all Defense Component-specific prepublication review policies align with” DOD Directive 5230.09.

The problem with this recommendation is twofold. First, it continues the agency-by-agency process that we criticized earlier. There are not only internal inconsistencies within agencies, as this report documents, but there are inconsistencies among agencies. The Inspector General was tasked only with examining the DOD process, and therefore didn’t address this more pressing problem.

Second, this report raises the specter that reform could go in precisely the wrong direction — toward more stringent pre-publication review that would further restrict the free speech rights of former employees, rather than toward review more narrowly focused on preventing the release of classified information. As we noted earlier, the more cumbersome and unreasonable the review, the more likely former employees will avoid review — and the greater the chance of inadvertent release of classified information.

This report highlights that agency-by-agency review isn’t the solution. Rather, as contemplated by the recent HPSCI directives to the DNI (see p. 7, and our summary), the issue must be addressed by Congress and high-level executive officials with authority over the entire secrecy bureaucracy.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
Oona A. Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, Professor of International Law and Area Studies at the Yale University MacMillan Center, Professor of the Yale University Department of Political Science, and Director of the Yale Law School Center for Global Legal Challenges.

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