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Shaffer v. Defense Intelligence Agency

United States District Court, District of Columbia

November 2, 2012

Anthony SHAFFER, Plaintiff,
v.
DEFENSE INTELLIGENCE AGENCY, et al., Defendants.

Page 114

Bradley P. Moss, Mark S. Zaid, Law Office of Mark S. Zaid, P.C., Washington, DC, for Plaintiff.

Scott Risner, John Russell Tyler, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Plaintiff Anthony Shaffer is an intelligence officer who was employed with the Defense Intelligence Agency, an operational component of the Department of Defense, from 1995-2006. After this, he joined the U.S. Army Reserve and retired as Lieutenant Colonel in 2011. Mr. Shaffer served two tours of duty in Afghanistan. Together with a ghost writer, Mr. Shaffer authored a book entitled Operation Dark Heart: Spycraft and Special Ops on the Frontlines of Afghanistan and the Path to Victory, which he describes as an eyewitness account of the 2003 " tipping point" of the war in Afghanistan. He is required by several secrecy agreements to submit all of his writings for prepublication review to ensure they do not contain classified information. Mr. Shaffer complains that several executive agencies improperly designated certain information in his book as classified and imposed a restraint on his First Amendment right to publish his book. The agencies assert that Mr. Shaffer lacks standing to bring his claim because he sold control of his book to his publisher in the United States; they

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move to dismiss the Amended Complaint. The motion will be denied. Mr. Shaffer has standing because he maintains rights to publish an unredacted version of his book and, if the redactions are overbroad, to otherwise " publish" the non-classified information in his book.

I. FACTS

Mr. Shaffer makes the following allegations in his Amended Complaint. Mr. Shaffer is a retired Lieutenant Colonel. He was mobilized as an Army Reserve Office from December 2001 to June 2004, during that time he had two tours of duty in Afghanistan. He submitted a draft manuscript of his book to the Army Reserve chain-of-command in June 2009 in compliance with his agreement to submit writings for prepublication review. He received approval of the manuscript in January 2010.[1] Thereafter, the Defense Intelligence Agency (" DIA" ) requested a copy of the manuscript for its review, which it also sent to the Central Intelligence Agency (" CIA" ) and the National Security Agency. On July 22, 2010, DIA informed Mr. Shaffer that the manuscript contained " classified information." On August 6, 2010, DIA informed the Department of the Army of its conclusion and on that same date the Army withdrew its approval of the manuscript. Am. Compl. [Dkt. 35] ¶ 25. In response to DIA's concerns, Mr. Shaffer's publisher, St. Martin's Press, submitted a copy of the finished book to the Army and, in agreement with Mr. Shaffer, delayed publication of the book. Mr. Shaffer met with DOD and DIA throughout August and September 2010 at which time DIA and the Department of Defense (" DOD" ) requested redactions on approximately 250 of 320 pages of Operation Dark Heart to prevent the disclosure of classified information. DOD and St. Martin's also engaged in conversations regarding DOD's concerns.

Mr. Shaffer alleges that he fully cooperated " to negotiate away classification concerns." Id. ¶ 36. " As part of the negotiations [Mr.] Shaffer willingly agreed to modify or delete certain text and to the extent agreement could not be reached, the publisher agreed to redact the text from a revised edition." Id. On or about September 3, without Mr. Shaffer's knowledge or consent, DOD provided a copy of Operation Dark Heart to St. Martin's for publication that omitted text it viewed as classified. St. Martin's accepted the book and notified Mr. Shaffer that it had been sent to the printer on September 9, 2010.

St. Martin's printed a second edition [2] of Operation Dark Heart, in which confidential material was redacted from the book's text, on September 24, 2010, and a paperback edition was published in October 2011. However, copies of the first edition, which contained the allegedly classified information, had already been distributed for review and appeared for sale.

In the Amended Complaint, Mr. Shaffer alleges that the Defendant Agencies have classified text that was previously approved

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by the Army and prevented him from publishing text that is supported by " open source material." Id. ¶ 66. Mr. Shaffer claims that he " would like to arrange for publication, which is his legal right as the copyright owner of the book, of future editions with the full text available to the public" and that Defendant Agencies' actions have violated his First Amendment right to publish, including obviously oral publication. Id. ¶ 77. The Defendant Agencies claim that Mr. Shaffer only has a " general desire to publish another edition some day" and that he lacks standing to bring his claim now because St. Martin's ...


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