The Justice Department has renewed its effort to shut down a lawsuit in Washington over the scope of information a former U.S. defense intelligence officer can publish in a memoir about service in the war in Afghanistan.
DOJ lawyers said in court papers filed April 26 that the government has determined that some of the details in the book, Operation Dark Heart, written by Anthony Shaffer, are classified and cannot be publicly disclosed. "[T]here is no First Amendment right to publish classified information," Scott Risner of the DOJ civil division's federal programs branch wrote.
Shaffer's book, DOJ lawyers said, reveals "intelligence activities, sources and methods, as well as information about military plans and the foreign activities of the United States that, if disclosed, could reasonably be expected to cause serious identifiable damage to our national security." The dispute centers on information in 233 passages. The redactions include single words and whole sentences.
Shaffer was an officer from 1995 to 2006 for the Defense Intelligence Agency. He retired in 2011 as a lieutenant colonel in the U.S. Army Reserves. Shaffer received a Bronze Star in service as an operations officer who oversaw DIA activity in Afghanistan. Government lawyers said Shaffer entered into "numerous non-disclosure and secrecy agreements" with the Defense Department.
"It is in the context of these binding secrecy agreements and the government’s compelling need to protect national security that the court should consider [Shaffer's] claim that the government violated his right to free speech," Risner wrote.
A redacted version of Operation Dark Heart was published in 2010. That printing occurred after the government paid tens of thousands of dollars to the publisher, St. Martin’s Press, to destroy copies of an earlier edition that the government claimed contained classified information.
The Justice Department argued the government's concern about the harm to national security is "neither vague nor speculative." Risner said classified declarations—submitted to the trial judge for review—"demonstrate with reasonable specificity a logical connection between the information at issue and the reasons for classification."
Shaffer, represented by Mark Zaid, who practices in national security law, argued in a 33-page affidavit, submitted to the court, that the government has too broadly asserted classification to suppress information in his book.
“No one, least of all me, had any interest in revealing properly classified information,” Shaffer said in the unclassified, redacted affidavit.
Shaffer said he presented the government “reams of open source information” to argue against the government push to keep some details under wraps. “In my professional opinion, and based on the legal and/or factual circumstances, little to none of this information, is now or was at the time actually classified,” Shaffer said.
Justice Department lawyers counter various arguments from Shaffer that the government has previously disclosed information that military and intelligence officials now want to keep secret.
"The government has identified risks of serious and exceptionally grave harms to national security if that information is disclosed in a revised version of the book, and the government’s judgment is entitled to substantial deference," Risner said.
Sales of Operation Dark Heart, Shaffer said in his affidavit, “suffered greatly from the heavy-handed government redactions.” He called the memoir an “overall commercial failure.”
Earlier in the case, DOJ lawyers fought against allowing Shaffer to prepare an affidavit for submission to the court. Government lawyers argued that the trial judge, Rosemary Collyer, had sufficient information to rule on the merits of the government's assertion that certain details should not be revealed to the public.
Collyer in February expressed concern that the government was trying to muzzle Shaffer by preventing him from writing up anything in his defense. Over the Justice Department's objection, Collyer said she wanted to hear directly from Shaffer by way of an affidavit.
Shaffer's lawyer, Zaid, said in an email that the legal dispute "presents a fundamental contest as to an individual's ability to legally challenge the Executive Branch's efforts to infringe upon the First Amendment by claiming information is properly classified while at the same time taking every action possible to impede a substantive response."
Shaffer said in his affidavit said he's being punished for following the rules concerning his secrecy agreements. Mark Bissonnette, author of No Easy Day, which recounts the killing of Osama bin Laden, "received no negative consequences for his refusal to submit his book for pre-publication review," Shaffer said.
"[T]here is a negative incentive and chilling effect created by the defendant's lack of clear standards and lack of enforcement on the basic requirements to enforce the review process fairly," Shaffer said.
Zaid called it a "sad irony" that Shaffer "is punished rather than rewarded" for following the rules when it comes to challenging classification. "It is a horrible message that is being conveyed particularly by the Pentagon," Zaid said.