Lawless v. Dep't of Def.

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RICHARD P. LAWLESS, Plaintiff, v. DEPARTMENT OF DEFENSE, Defendant.

Civil Action No. 21-2859 (TJK)

United States District Court, District of Columbia

September 23, 2024

MEMORANDUM OPINION

TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

Richard Lawless wrote a book about his experience working for the Central Intelligence Agency and the Department of Defense. But after conducting prepublication review, DOD determined that it contained classified information. After some negotiation, the parties still disagreed as to the propriety of many of DOD's proposed redactions. So Lawless sued challenging the designations of this material as classified and alleging that DOD was violating his First Amendment rights by prohibiting him from publishing the unredacted manuscript. The parties crossmove for summary judgment. The Court has reviewed the redacted portions of Lawless's manuscript and other submissions, including classified declarations submitted by both parties. It concludes that DOD has properly designated the redacted information as classified and that Lawless has not shown that the information was either officially acknowledged or obtained solely from public sources. Thus, Lawless has no First Amendment right to publish the information, so the Court will grant DOD's motion for summary judgment and deny Lawless's cross-motion for the same.

I. Factual and Procedural Background

Lawless is no stranger to classified material. From 1972 to 1987, he served as an operations officer for the Central Intelligence Agency (“CIA”), a role in which he specialized in “nuclear proliferation and Asian security.” ECF No. 34-1 ¶ 1. Then, from 2002 until 2007, he served as the Under Secretary of Defense for East Asian and Pacific Security Affairs with the Department of Defense (“DOD”). Id. ¶ 2. For both roles, Lawless held a security clearance that gave him access to certain classified material, and, as a condition of that clearance, he entered into a secrecy agreement prohibiting him from publishing or otherwise disclosing classified information. Id. ¶¶ 3-4; ECF No. 16-6. Relevant here, the secrecy agreement also required him to submit for prepublication review any writings he sought to publish. ECF No. 34-1 ¶ 4.

Several years after leaving the government, Lawless sought to publish a book about his government experience titled Hunting Nukes: A Fifty-Year Pursuit of Atomic Bomb Builders and Mischief Makers, in which he recounts his involvement addressing nuclear proliferation in North Korea. ECF No. 1 (“Compl.”) ¶ 5; ECF No. 34-1 ¶ 5. As the secrecy agreement required, he submitted the manuscript of this book to the CIA's Prepublication Classification Review Board in October 2020. ECF No. 34-1 ¶ 6. The Board found around 500 instances of classified information that required redaction, with which Lawless “fully complied.” ECF No. 31-1 ¶¶ 7-8. The Board completed its review in June 2021 but told Lawless that he could not publish the manuscript until DOD completed its own review. ECF No. 34-1 ¶¶ 7-8. In the summer of 2021, DOD informed Lawless that there was additional classified information that he would need to redact or remove but that it had yet to finish its review. Id. ¶¶ 9-10.

In October 2021, Lawless sued DOD before it had finished its review. See Compl. He brings three counts, alleging that: (1) his manuscript contained no classified information and that, by restricting him from publishing it, DOD was violating his First Amendment right to publish that information, id. ¶¶ 13-21; (2) DOD had unreasonably delayed its prepublication review of his manuscript in violation of the Administrative Procedure Act, id. ¶¶ 22-26; and (3) to protect his First Amendment rights, his attorney should be given access to any classified information DOD claims is in his manuscript, id. ¶¶ 27-29.

In December 2021, while this suit was still in its initial stages, DOD provided Lawless with its completed review of the manuscript, detailing the additional classified information that he would have to remove or redact. ECF No. 34-1 ¶ 11. Four months later, in April 2022, Lawless responded by submitting to DOD a document with his comments on these new classified designations; the parties then met in-person (without Lawless's counsel present) for a classified discussion of their respective positions. Id. ¶¶ 12-13. Following that meeting, DOD agreed to narrow or lift certain redactions on fifteen pages, and Lawless withdrew his objection to redactions on five pages. Id. ¶ 14. Still, the parties disagreed over just short of a hundred redactions requested by DOD. Id. ¶ 15.^[1]

In July 2022, DOD moved for summary judgment, arguing that Lawless has no First Amendment right to publish the properly classified, redacted information. ECF No. 16. In support of that motion, DOD lodged three classified declarations for ex parte, in camera review. ECF Nos. 16, 17. They are from Ilan Goldenberg, the Principal Deputy Assistant Secretary of Defense for International Security Affairs, ECF No. 16-3; Richard C. Johnson, the Deputy Assistant Secretary of Defense for Nuclear and Countering Weapons of Mass. Destruction Policy, ECF No. 164; and Andrew T. Walter, the Deputy Assistant Secretary of Defense for Nuclear Matters, ECF No. 16-5.

Rather than responding to that motion, Lawless filed two motions of his own seeking relief he believed was necessary before he could oppose DOD's motion for summary judgment. First, he moved for a “preliminary and/or permanent injunction” requiring DOD to give him “immediate access to a secure stand-alone computer (along with a copy of DoD's in camera classified declarations [submitted in support of its motion for summary judgment]) so that he [could] submit a comprehensive declaration to this Court for consideration and in support of his” opposition to DOD's motion. ECF No. 18-1 at 2. The Court denied the motion. Minute Entry of Aug. 26, 2022. Second, Lawless filed a Motion to Compel Defendant to Provide Access to Secure Stand-Alone Computer and for Authorization to Submit Properly Protected Classification Information to the Court. ECF No. 25. The Court denied that motion, too. ECF No. 28. It held that, consistent with the procedure outlined in Stillman v. CIA, 319 F.3d 546 (D.C. Cir. 2003), it would be premature to grant Lawless that relief before the Court had a chance to review the challenged classification determinations to see if it could resolve the issues without additional assistance. ECF No. 28 at 2-4. Thus, the Court ordered that summary-judgment briefing continue. Id. at 5.

Lawless then filed his opposition to DOD's motion for summary judgment and a crossmotion for summary judgment. ECF Nos. 31, 32. He included, in support, the declaration of his attorney, ECF No. 31-2, and a declaration prepared by Lawless himself that had been submitted to DOD for prepublication review and was redacted accordingly, ECF No. 31-3. The Court then ordered DOD to lodge for ex parte, in camera review the unredacted, classified versions of both that declaration as well as the document with Lawless's comments that he had originally provided to DOD in April 2022 preceding the parties' in-person meeting. See ECF No. 28 at 5; ECF Nos. 29, 36. DOD filed a reply in support of its summary-judgment motion and cross-opposition to Lawless's cross-motion, ECF Nos. 34, 35, and Lawless filed a cross-reply. ECF No. 38; see also ECF No. 41 (providing the Court with the full redacted version of Lawless's manuscript). DOD later characterized Lawless's declaration as focusing on “two classified facts” that Lawless argues account for the “vast majority” of the redacted, classified information at issue. ECF No. 441 at 5.

After conducting an ex parte, in camera review of all the classified materials put before it, the Court denied DOD's motion for summary judgment without prejudice. Minute Order of Sept. 28, 2023. Noting a previously unidentified issue in the briefing, the Court ordered DOD to “ad-dress[] through additional briefing or declarations, with specificity, why the information in the public record cited by Plaintiff in his declaration is not an official release or acknowledgment of information Plaintiff seeks to publish . . . or does not in any other way authorize its publication.” Id. In accordance with this order, the parties renewed their cross-motions for summary judgment and addressed the issue identified by the Court.^[2] See ECF Nos. 44, 47, 49, 50. As permitted by the Court, both parties incorporated by reference their previous motions and accompanying materials, preserving the dispute over proper classification. See ECF No. 44-1 at 5 n.1; ECF No. 47 at 4.

The Court also ordered that “Defendant may submit classified briefing or declarations but shall attempt to file as much of this material as possible on the public docket.” Minute Order of Sept. 28, 2023. When DOD renewed its motion for summary judgment, it lodged a classified supplement and two classified declarations in support of its motion. See ECF No. 44-1 at 12, 14; ECF No. 45. These include a declaration by Paul J. Jacobsmeyer, who serves in the Defense Office of Prepublication and Security Review, ECF No. 48-1, and a supplemental declaration by Andrew T. Walker, the Deputy Assistant Secretary of Defense for Nuclear Matters, ECF No. 48-2.

II. Legal Standards

Under Federal Rule of Civil Procedure 56, a court must “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Summary judgment is appropriately granted when viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a...