The opinion of the court was delivered by: Gladys Kessler United States District Judge
REDACTED MEMORANDUM OPINION
This is a sad and discouraging tale about the determined efforts of the FBI to censor various portions of a 500-page manuscript, written by a former long-time FBI agent, severely criticizing the FBI's conduct of the investigation of a money laundering scheme in which United States-based members of the Hamas terrorist organization were using non-profit organizations in this country to recruit and train terrorists and fund terrorist activities both here and abroad. The FBI also sought to censor answers given by both Plaintiffs to a series of written questions presented to them by a New York Times reporter concerning Wright's allegations about the FBI's alleged mishandling of the investigation. In its efforts to suppress this information, the FBI repeatedly changed its position, presented formalistic objections to release of various portions of the documents in question, admitted finally that much of the material it sought to suppress was in fact in the public domain and had been all along, and now concedes that several of the reasons it originally offered for censorship no longer have any validity.
Unfortunately, the issues of terrorism and of alleged FBI incompetence remain as timely as ever.
Plaintiffs are Robert G. Wright, Jr., a FBI Special Agent based in Chicago, and John Vincent, a retired FBI Special Agent, who were both members of the FBI's Counter-Terrorism Task Force. Plaintiffs were denied permission, pursuant to the FBI's prepublication review policy, to publish certain writings critical of the FBI's counter-terrorism efforts. They bring these separate lawsuits against the Defendant, Federal Bureau of Investigation ("FBI" or "Government"). Vincent has also named the Department of Justice ("DoJ") as a Defendant.*fn1 In their Second Amended Complaint, both Plaintiffs alleged the same causes of action: that Defendants violated the First Amendment (Count I), 28 C.F.R. § 17.18 (the FBI's prepublication review regulation) (Count II), and the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A), (B), and (D) (Count III). After this Court's Opinions on July 31, 2006 and February 24, 2009, two Counts remain: (1) Count I and (2) the portion of Count III based on Section 706(2)(B) of the APA.
Plaintiffs seek: (1) a declaratory judgment that Defendants' refusal to grant them permission to publish their writings was unlawful; (2) an injunction prohibiting Defendants from continuing to refuse them permission to publish their writings; and (3) attorneys' fees and costs.
This matter is now before the Court on Defendants' Renewed Motions for Summary Judgment [Dkt. No. 76*fn2 ] and Plaintiffs' Renewed Motions for Summary Judgment [Dkt. No. 90].*fn3 Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, including the sealed in camera submissions, and for the reasons stated below, Defendants' Renewed Motions for Summary Judgment [Dkt. No. 76] are granted in part and denied in part with respect to the Fatal Betrayals manuscript, denied with respect to the Miller interview questions, and denied with respect to the OIG complaints. Plaintiffs' Motions for Summary Judgment [Dkt. No. 90] are granted in part and denied in part with respect to the Fatal Betrayals manuscript, granted with respect to the Miller interview questions, and granted with respect to the OIG complaints. An Order shall accompany this Memorandum Opinion.
A. Factual Background*fn5
Upon joining the FBI, Plaintiffs signed an agreement requiring them to seek prepublication review from the Office of Public and Congressional Affairs ("OPCA") of a broad category of information before disclosing it publicly. The agreement states, as consideration for employment, I agree that I will never divulge, publish, or reveal . . . to any unauthorized recipient without official written authorization by the Director of the FBI or his delegate, any information from the investigatory files of the FBI or any information relating to material contained in the files, or disclose any information or produce any material acquired as a part of the performance of my official duties or because of my official status . . . I agree to request approval of the Director of the FBI in each such instance by presenting the full text of my proposed disclosure in writing . . . at least thirty (30) days prior to disclosure. I understand that this agreement is not intended to apply to information which has been placed in the public domain . . . .
Defs.' Vincent Mot., Ex. 19.
In addition, the FBI had adopted a prepublication review policy, which is mandatory for all current and former FBI employees. Its purpose is to "identify information obtained during the course of an individual employee's employment/work with the FBI, the disclosure of which could harm national security, violate federal law, or interfere with the law enforcement functions of the FBI." Id., Ex. 1.
Pursuant to the prepublication review policy, Wright sought permission to publish: (1) his five-hundred page manuscript ("Fatal Betrayals manuscript") about an investigation ("Vulgar Betrayal investigation") into known terrorist threats against United States national security and the FBI's efforts to thwart that investigation; (2) his answers from an interview with New York Times reporter Judith Miller; (3) a thirty-eight page complaint filed with the DoJ Office of Inspector General ("OIG"), titled "Dereliction of Duty by the Federal Bureau of Investigation in Failing to Investigate and Prosecute Terrorism and Obstruction of Justice in Retaliating Against Special Agent Robert G. Wright, Jr."; and (4) a 113 page complaint*fn6 titled "Whistleblowing Retaliation by the Federal Bureau of Investigation against Special Agent Robert G. Wright, Jr." (referred to together herein as "OIG complaints"). Wright sought permission to publish his Fatal Betrayals manuscript and his OIG Complaints. Vincent sought permission to publish only his answers from his interview with Judith Miller.
Both Plaintiffs worked on the Vulgar Betrayal investigation, which uncovered a money laundering scheme in which United States-based members of the HAMAS terrorist organization were using nonprofit organizations to recruit and train terrorists and fund terrorist activities in the United States and abroad. The Vulgar Betrayal investigation ultimately resulted in the FBI's seizure of $1.4 million in funds which were targeted for terrorist activities.*fn7 The seized funds were linked directly to Saudi businessman Yassin Kadi, who was later designated by the Government as a financial supporter of Osama Bin Laden. Plaintiffs' submissions were highly critical of the FBI's handling of the Vulgar Betrayal investigation and other FBI operations which took place prior to September 11, 2001.*fn8
Wright submitted his Fatal Betrayals manuscript for prepublication review in the beginning of October 2001.*fn9 In the beginning of January 2002, the FBI informed him that about 18 percent of the manuscript would require modifications because it contained "classified information; information containing sensitive investigative material and information protected by the Privacy Act." In accordance with the FBI's suggestions, Wright edited and resubmitted his materials, with the 18 percent either deleted or modified to address the Government's concerns. In support of his revisions, Wright submitted three binders full of endnotes, which he alleges provided a public source of information for each of the passages to which Defendants had objected.
On November 13, 2001, Wright submitted his OIG complaints to OPCA for prepublication review. On January 7, 2002, OPCA responded, taking issue with only 4 percent of the first document and 6 percent of the second. On January 18, 2002, Wright re-submitted the documents with deletions and edits responsive to OPCA's concerns.
In March 2002, New York Times reporter Judith Miller submitted a series of written questions to Wright concerning his allegations about the FBI's mishandling of the Vulgar Betrayal investigation. She gave Vincent a similar series of questions. In March of 2002, Miller also interviewed FBI officials, including Wright's supervisor, about Wright's charges against the agency. On March 31, 2002, both Wright and Vincent submitted to OPCA their proposed answers to Miller's questions for prepublication review.
On May 10, 2002, the day after Wright filed suit in this Court, the FBI responded separately to Wright and Vincent regarding all of their submissions. The FBI indicated to both of them that as a result of its review and guidance from the U.S. Attorney's Office for the Northern District of Illinois,*fn10 all of Plaintiffs' submissions contained information regarding open investigations, matters occurring before a grand jury, and information relating to law enforcement techniques and other sensitive information. According to the FBI, the protected information was so intertwined with other unprotected material in the submissions, that they could not be amended or segregated so as to be suitable for publication.*fn11
The FBI therefore reversed its prior position and denied Wright permission to publish any of the materials he had submitted, and issued a blanket denial as to Vincent's interview answers.
In early June 2002, both Wright and Vincent appealed these decisions to the FBI Director, Robert Mueller, and their appeals were denied.
On November 7, 2002, and January 6, 2003, respectively, Plaintiffs Wright and Vincent appealed to the Office of the Deputy Attorney General pursuant to 28 C.F.R. § 17.18(i). On December 19, 2002, and January 17, 2003, respectively, Deputy Attorney General David Margolis responded, indicating that an appeal to his office, which handled appeals of FBI decisions prohibiting disclosure of classified information, was inappropriate because "no classified information" was contained in Plaintiffs' submissions.
Approximately fifteen months later, the FBI changed its position yet again. On October 31, 2003, more than two years after Wright first submitted the Fatal Betrayals manuscript for prepublication review, the FBI sent him a letter explaining that "following a request from a Congressional committee for the [manuscript] another review had been conducted . . . and that it had been determined that Chapters 1-4 (inclusive)" and parts of Chapter 7 could be published. The FBI still prohibited publication of Chapters 5-6 and 8 through 27.
On December 22, 2003, approximately one year and seven months after its blanket denial of Vincent's request, the FBI sent him a letter stating that the answers to many of the interview questions previously submitted (2-6, 8-9, 11-14, 16, 18-19, and 21) could be disclosed in their entirety, and that the answers to questions 15 and 17 could be disclosed in part. On May 4, 2004, the FBI granted Vincent permission to publish the response to interview question 15 in full. The FBI continued to prohibit publication of five of Vincent's interview answers: 1, 7, 10, part of 17, and 20.
On February 5, 2004, the FBI changed its position one more time and sent Wright a letter advising him that it had conducted a re-review of his answers to Judith Miller's interview questions and had determined that answers 2-6, 8, 11-13, 15-16, 18-19, 21, 25-26 and parts of 1, 9, and 14 could be published.
Finally, on March 25, 2004, the FBI sent Wright a letter stating that his OIG complaints could be submitted to the DoJ OIG without the need for prepublication review, but that release to any other party was prohibited.*fn12
Plaintiff Wright filed his Complaint in this Court on May 9, 2002, an Amended Complaint on December 6, 2002, and a Second Amended Complaint on August 18, 2003. Plaintiff Vincent filed his Complaint in this Court on February 12, 2003.
On July 31, 2006, the Court denied Plaintiffs' Motions for Summary Judgment, granted Defendants' Motions for Summary Judgment with respect to Plaintiffs' claims under 28 C.F.R. § 17.18 (Count II) and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (B), and (D) (Count III), and denied Defendants' Motions with respect to Plaintiffs' First Amendment claims (Count I) [Dkt. Nos. 69, 70] ("July 31, 2006 Opinion). In that ruling, the Court also denied Plaintiffs' Motions for Summary Judgment.
Plaintiffs filed a Motion for Reconsideration, asking the Court to reconsider its decision to grant Defendants' Motion for Summary Judgment with respect to all APA claims. Plaintiffs argued that since the Opinion intended to preserve all constitutional claims, Defendants' Motion should have been denied with respect to Section 706(2)(B) of the APA, thereby allowing Plaintiff to challenge agency action that is "contrary to constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2)(B). On February 24, 2009, the Court granted Plaintiffs' Motions for Reconsideration. As a result, Count III was reinstated for claims based on Section 706(2)(B) of the APA.
Defendants filed their Renewed Motion for Summary Judgment on September 9, 2006 [Dkt. No. 76]. In the alternative, the Motion requested a stay in the proceedings until the conclusion of the proceedings in United States v. Marzook, No. 03-CR-978 (N.D. Ill.), in the Northern District of Illinois. Defs.' Renewed Mot. at 1. Plaintiffs' response was originally due on October 30, 2006, but Plaintiffs filed and were granted eight Motions for Extension of Time. On February 14, 2007, Plaintiffs filed their Opposition and Cross Motion for Summary Judgment [Dkt. Nos. 88, 90]. On March 14, 2007, Defendants filed a Reply and an Opposition [Dkt. Nos. 94, 95], and on March 23, 2007, Plaintiffs filed a Reply [Dkt. No. 96]. On February 26, 2008, the Court stayed the case until April 1, 2008, pending the filing of the appellate briefs in the appeal of the Marzook case [Dkt. No. 101]. On April 4, 2008, after a delay in the filing of the briefs, the Court continued the stay until April 30, 2008. On May 21, 2008, after yet another delay in the filing of the briefs, the Court continued the stay until June 30, 2008, and set a Status Conference for July 8, 2008 [Dkt. No. 108].
Two Status Conferences were held in July 2008, one on July 8 and one by phone on July 28. At the July 8, 2008 Status Conference, Defendants argued that releasing the information in Plaintiff Wright's manuscript could affect the Marzook appeal. To support this argument, they offered to provide an affidavit from the Assistant U.S. Attorney for the Northern District of Illinois.
In response, Plaintiffs argued that further delay would be inappropriate and that the case should be adjudicated immediately.
Following this Status Conference, on July 8, 2008, the Court ordered Defendants to submit an affidavit from the Assistant U.S. Attorney assigned to the Marzook case by July 18, 2008 [Dkt. No. 110].
On July 18, 2008, Defendants filed two affidavits. In the first, David Hardy, an employee in the Records Management Division at the FBI, stated that "[i]n the event that the Marzook prosecutors lift some or all of their objections to the release of related information contained in plaintiff's manuscript, the FBI will release a new version to plaintiff which would allow release of that previously redacted information." On the other hand, redactions "that were not at the request of the Marzook prosecutors" would remain redacted.
The second affidavit was submitted in camera by Joseph M. Ferguson, the Assistant U.S. Attorney handling the Marzook appeal. He stated that publishing the manuscript would interfere with the Marzook appeal and a pending civil forfeiture matter.
Plaintiffs responded to the two filings on July 25, 2008. They argued that the narrow issue on appeal -- whether the judge in the Northern District of Illinois had "properly applied the Sentencing Guidelines" -- would not be ...