CIA Author Points to U.S. Supreme Court Precedent
By Frank Snepp, January 8, 2015
A recent “exclusive” from The Hollywood Reporter reveals that Edward Snowden’s producer, who helped turn his secrets-bust into an Oscar-contending documentary, could be facing a financial bust for her trouble.
A newly filed lawsuit alleges that Laura Poitras and her production associates are guilty of helping the former NSA contractor breach his fiduciary obligations to the government.
If they lose, they could be obliged to forfeit all profits from “Citizenfour,” the documentary they filmed about Snowden and his decision to expose some of the NSA’s most sensitive classified information.
Kansas attorney Jean Lamfers filed the suit on behalf of a former government worker who argues that Snowden and his collaborators should not be allowed to profit from his leaks. The plaintiff, Horace Edwards, who insists he is acting for the public, seeks to have a “constructive trust” imposed on the profits that would cause them to be turned over to the government.
Under existing legal precedent, Edwards needn’t delve into the extent of Snowden’s security breach, or even prove its harmfulness, in order to prevail. He must only demonstrate that Snowden violated an obligation to clear his disclosures with the government and that the filmmakers helped him to overstep that duty.
Like all NSA and CIA employees Snowden signed non-disclosure agreements with an implicit fiduciary obligation to abide by them. The lawsuit holds that this obligation is transferable to Snowden’s accomplices.
As the ex-CIA agent who triggered the U.S. Supreme Court ruling now being used against Snowden and the filmmakers, I can testify that the case against them is viable, despite its grave implications for the media. It should serve as a wake-up call for all those in the press and film community who would help national security whistleblowers go public.
Check out this link for The Hollywood Reporter’s story about the case. Then check out my backgrounder for THR reporter, Eriq Gardner
As the former CIA officer who triggered the Supreme Court decision now being directed at Snowden and his producers, I can assure you, sadly, that the case is rooted in established law.
When the U.S. Justice Department took me to court years ago for publishing an unauthorized CIA memoir, Decent Interval, about the fall of Vietnam, prosecutors considered going after my publisher, Random House and CBS’ “60 Minutes” for allegedly helping me breach my “fiduciary” (non-disclosure) obligations to the CIA. Ultimately they decided to spare my collaborators and to target me alone, on the theory that this was an easier legal shot.
It was a smart decision. With the focus on a single CIA officer, journalists and First Amendment purists were tricked into believing that the government’s action didn’t threaten the mainstream media, even though it did, as my lawyers, Alan Dershowitz, Mark Lynch and John Sims, fully realized.
The case reached the Supreme Court amid public hysteria over the Iran hostage crisis and the Soviet invasion of Afghanistan. In early 1980 the Court ruled against me summarily without allowing my lawyers or the government’s to file any briefs. Under the fiduciary-violation concept endorsed by the Court, I was shorn of all my “ill-gotten gains,” amounting to thousands of dollars, including future profits from my book and any related projects.
I was also gagged for life, forced to submit to the CIA for vetting and censorship all writings, even fiction, arguably related to my government service. The practical effects are still with me. Through an ironic fluke, because of my CIA experiences, I am featured in a documentary now contending with “Citizenfour” for an Oscar nomination – Rory Kennedy’s “The Last Days In Vietnam.” Had I written down the interviews I gave her, I would have been obliged to seek CIA approval for them.
What made my case unique — and very distinct from the charges being leveled against Snowden – is that the government never accused me of betraying any national security secrets.
I was prosecuted for simply publishing without official approval. In the crisis atmosphere of Jimmy Carter’s failing presidency, the Supreme Court readily accepted the government’s claim that my unauthorized book, even minus secrets, threatened “irreparable harm” to the national security by tempting others into flouting CIA security regulations.
If that sounds like a tenuous allegation, imagine how I felt: no one had ever been prosecuted on national security grounds for publishing non-secrets with no proof of harm to anyone.
By contrast, Snowden proudly and loudly betrayed highly classified secrets, and Poitras seems to have been an active accomplice. According to the court filing against her and her production associates, she helped create the opportunity and circumstances that enabled him to sneak his secrets out of NSA.
But the case against her doesn’t turn on sensitivity of those secrets, and the plaintiff, Horace Edwards, needn’t prove that their disclosure was even harmful to the nation’s security in order to win.
Under the precedent in U.S. v Snepp, the key questions are whether Snowden had an obligation to get official approval for his disclosures, whatever their sensitivity, and whether Poitras actively abetted him in breaching that “duty.”
If the answers to both questions are “yes,” then she and her associates could be as liable as he (allegedly) is for violating his fiduciary duty to the government.
The penalty fashioned in my case for such “ill faith” is forfeiture of all “ill-gotten gains,” no proof of damage required. It is tantamount to a no-fault lien on all profits from a collaborative breach of contract, with the proceeds to go the American people, i.e., the U.S. Treasury.
Bad enough that a whistleblower should face such a blunderbuss hit for what may have been an act of conscience. Even worse that his or her collaborators might have to endure the same fate.
Imagine what would have happened if The New York Times or The Washington Post had been threatened with loss of all profits from publishing the Pentagon Papers, which Dan Ellsberg arguably leaked through a “breach of fiduciary obligation.” Would either newspaper have been able to afford such a savaging of its bottom line?
That’s the danger to the media posed by the Supreme Court ruling against me, which was handed down nine years after the Pentagon Papers affair.
So far the government has chosen to use the precedent against leakers, not “leakees.” Over the years a number of rogue memoirists from the national security community have been punished with Snepp-type gags and financial sanctions, most recently talkative Seal Team 6 stalwarts.
But the case against Poitras raises the possibility of a broader application – an assault on the media itself by private plaintiffs using Snepp as a weapon.
In the mid-1990’s the cigarette manufacturer, Brown & Williamson, made a stab in this direction in an effort to silence a former employee. Jeffrey Wigand, who was attempting to blow the whistle on the dangers of nicotine. Invoking the Snepp precedent, the manufacturer threatened 60 Minutes with damages if it were to assist him in breaching a non-disclosure agreement and fiduciary relationship with the company by airing an interview with him. CBS caved in and delayed the full interview — and was ridiculed in a Hollywood blockbuster about the episode, titled “The Insider.”
Make no mistake: I am no fan of using Snepp to “snip” Poitras or anyone else. But it would be foolhardy to pretend the First Amendment doesn’t allow it. The Supreme Court has already resolved that issue.
I believe the only way this precedent might be rolled back is if its potential is made crystal clear to the public, and the media.
I wrote about its dangers in my second book Irreparable Harm, and as an investigative journalist of thirty years standing I worry about the vulnerability of the media every day.
Regards, Frank Snepp