Court case challenges DOD, CIA authority to delete information from books

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A former military intelligence officer’s court case could redefine just how far the government can go to block information from being published that it deems sensitive to national security.

A federal judge ruled earlier this month that retired Army Lt. Col. Anthony Shaffer, a former Defense Intelligence Agency (DIA) officer, could sue the Pentagon and Central Intelligence Agency (CIA) for redacting information from 250 pages of his 320-page best selling book Operation Dark Heart: Spycraft and Special Ops on the Frontlines of Afghanistan and the Path to Victory.

In his book, Shaffer cited eyewitness accounts and concluded the Bush administration and military leaders made mistakes in their wartime strategy in Afghanistan.
U.S. District Judge Rosemary Collyer ruled against the Pentagon and CIA and determined Shaffer’s lawsuit has merit to move forward.

Mr. Shaffer has standing because he maintains rights to publish an un-redacted version of his book and, if the redactions are overbroad, to otherwise ‘publish’ the non-classified information in his book,” Collyer ruled last week.

It is standard procedure for publishers and authors to seek Pentagon approval to safeguard any potential national security issues. Shaffer’s publisher followed protocol and received approval, but shortly before the publication of Operation Dark Heart, the Pentagon reversed course.

After the first 10,000 copies of Dark Heart were printed, Pentagon officials alleged Shaffer relied on classified information and demanded all 10,000 books be destroyed. That demand was refused and the Pentagon spent nearly $50,000 to purchase, burn the books and then demanded Shaffer and his ghostwriter redact 250 pages from subsequent editions.

Shaffer contends the U.S. government has improperly extended its censorship reach post-9/11 under the guise of national security.

“My judgment remains now, as it was when the Pentagon (specifically DIA) demanded in August 2010 a second review of Operation Dark Heart - and that the second, much more severe review, was conducted for political, not security, purposes,” Shaffer said.

Shaffer alleges the DIA decided to take a second look at the book after he went to Congress and disclosed concerns about pre-September 11th intelligence failures, specifically a project codenamed ABLE DANGER, and became critical of the government’s Afghanistan strategy.

Pentagon officials told Shaffer to redact words like the nickname of the National Security Agency’s office — known as “The Fort” – or the “A” from “A-team” and the name “Ned Betty” because he described an official who looked similar to the Hollywood actor.

“These redactions were arbitrarily removed for no possible security reason other than to try and render the book unreadable,” he said.
He argues the second, more severe redaction, was based purely on political factors.

“I spoke out against the then (2010) and current Counterinsurgency Policy in Afghanistan.  It was very clear, based on my research and experience, the policy would not work to achieve any permanent stability in Afghanistan - and I identified specific decision points in which this flawed COIN (counter-insurgency) strategy was adopted. I offered an alternative policy recommendation in the last chapter of Dark Heart - and my ‘path to victory’ was through Pakistan (and in my judgment remains so today).”

Shaffer concludes that the court’s decision to rule in his favor is more than a victory for him, but may have precedent for future wartime accountings from other retired military officers.

“I believe the courts have ruled correctly to support my standing to sue the Department of Defense over its violation of my First Amendment rights for its abusive review and excessive redactions of Operation Dark Heart. We feel that the information in the first edition of Dark Heart (that the DoD destroyed) was written using unclassified information,” Shaffer said.

The judge’s ruling allows the case to move forward.

The government often claims former military employees sign away any rights to publish books. A recent example is the book “No Easy Day” written by Mark Owen, the pen name for Matt Bissonnette. His book recounted the famous “Osama bin Laden” raid in Pakistan. Bissonnette claimed the book was only written because the Obama administration “outed” SEAL Team Six and he wanted to set the record straight.

His attorney, Robert Luskin, told CNN, “Mr. Owen is proud of his service and respectful of his obligations. But he has earned the right to tell his story; his abiding interest is to ensure that he is permitted to tell it while recognizing the letter and spirit of the law and his contractual undertakings.”

Both of these precedent-setting cases seek to enforce the constitutional right to contract, which the authors contend pre-empts the government’s right to assert broad national security privileges.

Mr. Shaffer’s First Amendment interest in his book is not limited to any contract he has signed thus far with a publisher in the United States or abroad,” the judge wrote in her order. “He has professed his intent to publish an un-redacted version of his book beyond the confines of his publishing contracts. He maintains standing to seek relief from the defendant agencies’ classification decisions regarding his text.”

Shaffer’s attorney, Mark Zaid, agrees his client has a right to challenge the redactions in his book under the First Amendment. The legal hurdle that Shaffer overcame in the preliminary hearing was the government’s assertion that he had contractually waived his First Amendment Rights under his employment contract.

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