ODNI Clarifies New Pre-Publication Review Policy
On Friday I said that on a quick read, the Obama administration’s new pre-publication review policy seemed "overbroad to the point of practically unenforceable.” Friday afternoon, as Marty Lederman noted, the Office of the Director of National Intelligence distributed a memorandum that sought to clarify that the new policy was being interpreted more broadly than was intended. Mar
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On Friday I said that on a quick read, the Obama administration’s new pre-publication review policy seemed "overbroad to the point of practically unenforceable.” Friday afternoon, as Marty Lederman noted, the Office of the Director of National Intelligence distributed a memorandum that sought to clarify that the new policy was being interpreted more broadly than was intended. Marty’s reaction to the new memorandum:
It appears to me that this memorandum, if implemented, would ensure that the new policy looks a whole lot like a combination of Snepp and Touhy regulations--which, as I explained in my earlier post, ought to be constitutionally sound. This doesn't mean it's perfect: There are still some issues and ambiguities left unaddressed; and it would be ideal if these qualifications were incorporated into Instruction 80.04 itself, in order to guide decision-makers through the years. A similar clarification should be issued with regard to IC Directive 119, as well. But this is, I think, a substantial improvement/clarification.
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.
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