United States District Court, D. Columbia.
Decided March 26, 2015
For ANTHONY SHAFFER, Plaintiff: Mark S. Zaid, LEAD ATTORNEY, Bradley P. Moss, LAW OFFICE OF MARK S. ZAID, P.C., Washington, DC.
For DEFENSE INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, Defendants: John Russell Tyler, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Scott Risner, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
ROSEMARY M. COLLYER, United States District Judge.
After a career as a military intelligence officer, Anthony Shaffer was employed by the Defense Intelligence Agency while also serving in the Army Reserve as a Lieutenant Colonel. After 9/11, he was sent to Afghanistan for two tours of duty. Upon his return, he wrote a best-selling book, Operation Dark Heart: Spycraft and Special Ops on the Frontlines of Afghanistan and the Path to Victory (St. Martin's Press 2010). As required by the secrecy agreements he signed during his career, Lt. Col. Shaffer (Ret.) submitted his manuscript for review before publication. The Army Reserve cleared the manuscript and the publisher printed a first edition. The Defense Intelligence Agency, Department of Defense, and Central Intelligence Agency (Defendants) then obtained a copy of the manuscript and insisted on hundreds of redactions of allegedly classified information. This lawsuit ensued. Lt. Col. Shaffer contends that Defendants violated his First Amendment rights by insisting upon unnecessary redactions, while the Defendants assert their responsibility to protect classified information and Lt. Col. Shaffer's contractual obligation of secrecy.
Via this litigation, Defendants slowly and with utmost reluctance were compelled to concede that Lt. Col. Shaffer's testimony before the House Armed Services Committee on February 15, 2006, was officially released and can be published. As to the remainder of the redacted material, Defendants submitted in camera a precise explanation for each. The Court reviewed all of the material, including Lt. Col. Shaffer's allegation that the narrative of his accomplishments that supported his Bronze Star award was publishable because it had been officially released, and finds that Defendants supported their reasons for non-disclosure. Defendants' motion for summary judgment will be granted in part and denied in part.
Anthony Shaffer retired from the United States Army as a lieutenant colonel and thereafter continued to serve in the Army Reserve. From 1995 to 2006, Lt. Col. Shaffer worked as a civilian employee of the Defense Intelligence Agency (DIA), within the Department of Defense (DOD), while serving simultaneously in the Army Reserve. Lt. Col. Shaffer was mobilized as an Army Reserve Officer from December 2001 to June 2004, during which time he served two tours in Afghanistan. Over the course of his Army career and at DIA, Lt. Col. Shaffer signed several nondisclosure agreements to maintain the secrecy of classified information and documents. Pursuant to these non-disclosure obligations, Lt. Col. Shaffer must submit any written materials that may contain classified information to the military for prepublication security review. See Mot. for Summ. J. (MSJ) [Dkt. 63], Ex. A (Scheller Decl.) [Dkt. 63-3], Attachments A-G (Nondisclosure Agreements executed by Lt. Col. Shaffer). He has been assiduous in his compliance.
In early 2007, after he left his position at DIA, Lt. Col. Shaffer teamed with a ghostwriter to write a memoir of his time in Afghanistan, titled Operation Dark Heart: Spycraft and Special Ops on the Frontlines of Afghanistan and the Path to Victory (the Book). The Book was accepted for publication by Thomas Dunne Books/St. Martin's Press (St. Martin's Press). Lt. Col. Shaffer describes Operation Dark Heart as:
a direct, detailed eyewitness account of the 2003 'tipping point' of the war in Afghanistan . . . [that] provides an unemotional examination of the events and decisions where mistakes were made in strategy[,] . . . [and] recommends a detailed, alternate strategy to the current failing [c]ounterinsurgency strategy that could result in victory in Afghanistan.
Am. Compl. [Dkt. 35] ¶ 7. The Book also " details protected disclosures made to the Executive Director of the 9/11 Commission on pre-9/11 intelligence failures . . . ." Id.
Much of the Book focuses on Lt. Col. Shaffer's career after September 11, 2001. It details his tours of duty in Afghanistan, where he participated in such " high risk/high gain operations" as the search for the senior leadership of Al Qaeda for which he received a Bronze Star. Id. ¶ 2. The Book also covers Lt. Col Shaffer's involvement in a military intelligence project known as " Able Danger." As described in a separate lawsuit brought by Lt. Col. Shaffer, Able Danger allegedly identified at least one of the September 11 hijackers prior to the attacks. See Shaffer v. Defense Intelligence Agency, 601 F.Supp.2d 16, 19-20 (D.D.C. 2009). Lt. Col. Shaffer writes in Operation Dark Heart that he informed the 9/11 Commission about Able Danger.
Lt. Col. Shaffer first notified his Army Reserve chain-of-command in March 2009 that he was writing a book. Army Reserve leadership provided guidance on how to comply with all security and ethical regulations, and he submitted a draft manuscript of the Book to the Army Reserve chain-of-command in 2009. For reasons that are not revealed in the record, Lt. Col. Shaffer did not submit the draft manuscript to DIA or any other component of the DOD.
Two officers in Lt. Col. Shaffer's Army Reserve chain-of-command were appointed to review Operation Dark Heart. Am. Compl. ¶ 12. The first, a Staff Judge Advocate for the Headquarters 94th Training Division, U.S. Army Reserve Center in Fort Lee, Virginia, issued a memorandum on December 26, 2009, stating that " it was his understanding that [Lt. Col.] Shaffer used only unclassified information and open sources in his memoir." Id. ¶ 15. He opined that Lt. Col. Shaffer could accept payment for his memoir. Id. The second, an Assistant Division Commander of the Headquarters 94th Training Division issued on January 4, 2010 a favorable security review and approval of the Book for publication. Id. ¶ 16.
Lt. Col. Shaffer sent the manuscript to St. Martin's Press for publication in February 2010. However, at some point before the Book's scheduled distribution date of August 31, 2010, DIA obtained a copy of the manuscript, reviewed it, and determined that it " contained a significant amount of classified information," the release of which " would cause harm to the national security of the United States." MSJ at 5. The CIA also reviewed Operation Dark Heart and reached the same conclusion. Id.
On August 6, 2010, due to the DIA and CIA's objections to publication of allegedly classified material, the Army Reserve revoked its publication approval. Am. Compl. ¶ ¶ 27-28. Although St. Martin's Press already had printed the Book, it agreed to delay distribution so that classification concerns could be addressed. Id. ¶ 30. Consequently, Lt. Col. Shaffer, DIA officials, DOD officials, and agents from St. Martin's Press spent August and September 2010 discussing potential revisions to the manuscript. Id. ¶ ¶ 32, 36. The upshot of these negotiations was a modified manuscript: Lt. Shaffer agreed to the revision of certain passages and the redaction of all text on which the parties could not agree to modifications. Id. ¶ 36. At the end of this process, approximately 250 of the Book's 320 pages contained redactions. Id. ¶ 37.
On September 24, 2010, St. Martin's Press published the redacted version of Operation Dark Heart. Id. ¶ 41. By then, however, St. Martin's Press already had sent out a small number of copies of the original unredacted draft__without redactions of classified material__for pre-distribution critics' review and comment. DOD allegedly paid St. Martin's Press to destroy all copies from the first printing of the Book, but the publisher was unable to retrieve all of the copies circulated for pre-distribution critical review. MSJ, Ex. B (Shaffer Decl.) [Dkt. 63-4] ¶ ¶ 35, 46. Unredacted copies of the first printing of Operation Dark Heart began appearing for sale online in September 2010. Id. ¶ 49. Various media, such as the New York Times, started to report on the Book and DOD's efforts to prevent publication of classified information. See e.g., id. ¶ 44 (citing Scott Shane, Secrets in Plain Sight in Censored Book's Reprint, N.Y. Times, Sept. 18, 2010, at A9). A group focused on national security issues posted a purported side-by-side comparison of the two versions of the Book on its website, thereby claiming to identify the redacted information. Shaffer Decl. [Dkt. 63-4] ¶ 51.
B. Procedural History
On December 14, 2010, Lt. Col. Shaffer filed a Complaint against Defendants, alleging that they deprived him of his First Amendment right to publish by designating as classified a substantial amount of classified information in the Book. See Compl. [Dkt. 1] ¶ 56. Defendants moved to dismiss for lack of standing, arguing that Lt. Col. Shaffer had transferred all of his rights to the Book to St. Martin's Press, so that only St. Martin's Press could claim a constitutional injury. Judge Ricardo M. Urbina, to whom the case was originally assigned, denied Defendants' motion without prejudice and ordered Lt. Col. Shaffer to amend the Complaint to address the issue of standing. See Jan. 12, 2012 Order [Dkt. 34].
Lt. Col. Shaffer filed an Amended Complaint on February 13, 2012. In addition to making new allegations regarding standing, he alleged three Counts:
Count I claims a First Amendment right to publish the information redacted from the Book;
Count II claims a First Amendment right to use a secure government computer for the purpose of challenging ...