This article is cross-posted at Lawfare.
On Jan. 17, Director of National Intelligence Avril Haines quietly issued a clarification of an Intelligence Community Directive concerning the obligations of former government employees who are bound by “prepublication review” requirements. This is an important step toward fixing a deeply broken system, and one that will make a difference to the ability of millions of former government employees who once held top secret/sensitive compartmented information (TS/SCI) security clearances to write and speak.
Background
The U.S. government requires that current and former U.S. government officials who have or had TS/SCI clearance submit their writing for review by the U.S. government prior to publication. This lifetime preclearance requirement currently applies to millions of former government employees. (In 2014, over five million people held security clearances—or 1.5 percent of the entire U.S. population.)
For nearly a decade, we have written about the many problems with this system, which we have argued constitutes the largest system of prior restraint on speech in U.S. history. Among other things, we have explained that the system doesn’t just apply to national defense information, is plagued by an absence of binding and consistent rules, is subject to unnecessary and seemingly opportunistic delays, drives talent away from government service, leads to an impoverished public discourse, and causes many former government officials to simply opt out.
Directive 711
In July 2024, DNI Haines signed Intelligence Community Directive 711, establishing new requirements for intelligence community (IC) administration of prepublication reviews. It was the first IC-wide guidance on prepublication review. It included a few of the reforms we had proposed—including procedural steps that promised to bring greater uniformity to a process that had been highly decentralized and inconsistent. It thus represented some progress in the direction of fixing a badly broken system.
But, as we wrote last year, Directive 711 also contained speech-harming provisions and was, we concluded, very disappointing. The pertinent provision provided that a covered official had a duty to submit for prepublication review:
non-official material that a fully-informed person granted access to covered intelligence might reasonably deem to contain or be derived from covered intelligence and that is intended for disclosure to, or discussion with, one or more individuals not authorized to access covered intelligence, or which is intended for public dissemination. [C.3]
This provision recognizes that a publication that may appear to not contain or be derived from classified information based on what the covered official knows could nonetheless contain classified information when viewed in the context of materials unknown to the official. In that light, Directive 711 appeared to require a former official to submit for prepublication review material that they believed contained no classified information if “a fully-informed person granted access to covered intelligence might reasonably deem to contain or be derived from covered intelligence.”
We previously explained the conundrum this provision puts former official in:
There is no way that the vast majority of employees and former employees can know that broader context when deciding whether to submit material for prepublication review. If former employees are confident based on their information set that the material they wish to publish does not contain and was not derived from classified information, how could they know whether someone with “full” information might reasonably reach a different conclusion? They cannot.
And yet that is what the directive appears to require those covered by the directive to do. The duty to preclear is tied to what a “fully-informed person granted access to covered intelligence” knows. Past or present employees who are confident based on their government experience and general knowledge that a publication contains no classified information have, it seems, a duty to preclear unless they are also confident that a “fully-informed person granted access to covered intelligence” would also conclude that the writing contains no classified information. This is literally an impossible standard to satisfy—no partially informed person can know what the fully informed person might reasonably conclude. The directive therefore seems to require those covered by it to preclear practically every publication with any conceivable connection to government work or even a government program on which the person did not work, even if there is no reason for the person to think that the publication contains or derives from classified information. And, relatedly, it appears to give the government a basis to require preclearance of practically any writing it likes.
We added:
It is conceivable that the ultimate aim of Directive 711 is to encourage employees to preclear if they are not sure if a publication contains classified information. That would be a more reasonable standard. But that is not what the language says. If that is what the directive nonetheless aimed to achieve, ODNI should clarify the relevant preclearance standard. As it is, the directive embraces an extreme duty to preclear for the entire IC that will chill likely speech to an unprecedented degree.
The Clarification
The Jan. 17 clarification seeks to address the problem that we, and surely others, identified. It states, “Some have interpreted the standard to be very broad and to ultimately require that all materials be submitted for prepublication review because it is impossible to know what a ‘fully-informed person’ would conclude. This memorandum seeks to clarify this standard.”
The clarification is worth quoting in full (broken into paragraphs for ease of reading):
The standard outlined in section C.3. is intended to mean that current or former personnel need not submit material for prepublication review if the material could not reasonably be deemed to contain or be derived from covered intelligence. In determining what “might reasonably be deemed” to “contain or be derived from covered intelligence,” reasonableness should be judged by what a clearance-holder with access to relevant information, knowledgeable about intelligence activities and classification of information, might reasonably deem to contain or be derived from covered intelligence. In other words, where a person seeking to publish material thinks the material is or is likely to be unclassified, but also believes an informed intelligence professional might reasonably conclude otherwise, the person should submit the material for prepublication review.
For example, when a former officer seeks to publish information concerning an intelligence activity, an aspect of which has been officially acknowledged and believes explanatory information about how that intelligence activity may have been undertaken is likely unclassified, the former officer should submit the material for prepublication review if they believe an informed intelligence professional might reasonably conclude that the explanatory information was not included in the official acknowledgement and remains classified. In contrast, if the person seeking to publish the material has a factual basis to believe that a reasonable, informed intelligence professional would not determine that the material is classified, the material need not be submitted.
This standard may be met, for example, where the intelligence material in question is sourced to an unclassified official acknowledgment of the U.S. Government and does not disclose additional intelligence or intelligence-related information than the official acknowledgment on which it is based. This standard reflects the reality that the U.S. Government relies on current and former personnel every day not to disclose classified information to those not authorized to receive it, while also recognizing that when there may be doubt about whether information slated for publication is classified, the prepublication review process should be invoked to ensure that the correct decision is made and avoid harm to national security.
We believe this clarification is a major improvement over the original, though not ideal.
The clarification makes plain that the covered officer need not do the impossible and make prepublication review decisions based on what a “fully-informed person granted access to covered intelligence might reasonably deem to contain or be derived from covered intelligence” would conclude. That language is still in Directive 711, but the clarification explains that it is “intended to mean that current or former personnel need not submit material for prepublication review if the material could not reasonably be deemed to contain or be derived from covered intelligence.”
This clarification appears to shift the reference point for submission from the impossible-to-know information set of a hypothetical fully informed person to what a “reasonable” intelligence officer would believe. As the clarification explains, “reasonableness should be judged by what a clearance-holder with access to relevant information, knowledgeable about intelligence activities and classification of information, might reasonably deem to contain or be derived from covered intelligence.” A lot of work here is being done by the term “reasonableness,” but the clarification seems to mean the clearance-holder who believes the publication contains no classified information need not submit for preclearance review unless that person “also believes an informed intelligence professional might reasonably conclude otherwise, the person should submit the material for prepublication review.”
How to know what “an informed intelligence professional might reasonably conclude”? There is no concrete guidance here, and we are not sure that such concrete guidance would be possible. But the examples suggest that it is the clearance holder’s beliefs that matter. Prepublication review of a publication that the clearance holder thinks contains no classified information is necessary only if the clearance holder otherwise “believe[s] an informed intelligence professional might reasonably conclude” otherwise (emphasis added). The validity of this belief appears to turn on an objective reasonableness assessment.
If this seems confusing, that’s because it is. It is very hard to articulate a standard that gives freedom to publish while at the same time protecting classified information, since what counts as classified is often elusive and sometimes based on information unknown to the clearance holder. The clarification reduces the incidence of effective prior restraints by shifting the preclearance standard from one that over-incentivizes submission—because it relies on an impossible-to-satisfy state of knowledge—to one that requires fewer submissions based on a less demanding but still vague reasonableness test. The clarification is designed to require prepublication review “when there may be doubt about whether information slated for publication is classified,” based on what a reasonably informed clearance holder would know. That is much closer to a defensible line than the original directive, but in its vagueness and uncertainty it will surely chill or delay speech unjustifiably.
The clarification closes with an important note: “[I]f covered personnel publish non-official material without receiving clearance from the appropriate IC element through prepublication review, they remain personally responsible for ensuring that no classified information is disclosed.” In other words, the clearance holder is ultimately responsible for ensuring that no classified information is disclosed. If the clearance holder misjudges and declines to submit for prepublication review a writing that in fact contains classified information, that person remains on the hook for criminal, civil, and administrative remedies. In this sense, prepublication review, with all of its foibles that we have detailed in past writings, is a kind of safe harbor.
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We have written a lot about how the preclearance review process could be improved, and will not repeat those arguments and proposals here. The main takeaway from the ODNI clarification is that the original Directive was ambiguous and possibly overly demanding, and that the standard for prepublication review is basically the clearance holder’s reasonable belief about whether the writing might contain, or be derived from, classified information. This is far from crystal clear, but it is much better than what came before.