UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
GARY BERNTSEN
Plaintiff, Civil Action No. 05-1482 (CKK) v.
THE CENTRAL INTELLIGENCE AGENCY
Defendant.
MEMORANDUM OPINION (May 22, 2009)
Plaintiff Gary Berntsen is a former covert employee of the Central Intelligence Agency
(“CIA”). He is also the author of Jawbreaker, a book describing some of his experiences while
working in his former covert capacity. Pursuant to a secrecy agreement executed between the
parties, Berntsen submitted a draft manuscript of Jawbreaker to the CIA for review prior to its
publication. After finding the pace of the CIA’s review to be unacceptably slow, and then
finding the amount of information redacted by the CIA as classified to be unsatisfactory,
Berntsen filed this lawsuit seeking an order allowing him to publish his unredacted manuscript.
At the request of the parties, the Court granted several lengthy periods of time for the
parties to resolve their disputes without further judicial intervention. The parties’ discussions
were largely but not completely successful, and 18 items redacted from Berntsen’s manuscript
remain in dispute. Pursuant to a briefing schedule set by the Court, the CIA filed a Motion for
Summary Judgment as to the remaining 18 items. Berntsen did not file an Opposition to the
CIA’s Motion for Summary Judgment, thereby rendering the motion uncontested. After a searching review of the CIA’s Motion for Summary Judgment, the attached exhibits, the CIA’s
ex parte, in camera declaration submitted in support of the motion, relevant case law, statutory
authority, and the entire record of the case as a whole, the Court shall GRANT the CIA’s
Unopposed [54] Motion for Summary Judgment, for the reasons that follow.
I. BACKGROUND
The facts underlying this case are undisputed. Berntsen was a covert employee of the
CIA from 1982 to 2006.1 See Defs.’ Statement of Material Facts (“Defs.’ Stmt.”) ¶ 1. As a
condition of his employment, Berntsen entered into a secrecy agreement with the CIA on October
6, 1982. Id. ¶ 2. Pursuant to the secrecy agreement, Berntsen agreed to submit certain materials
to the CIA for review and receive written permission from the CIA before taking any steps
toward publicly disclosing such materials:
I hereby agree to submit for review by the [CIA] all information or materials including works of fiction which contain any mention of intelligence data or activities, or contain data which may be based upon information classified pursuant to Executive Order, which I contemplate disclosing publicly or which I have actually prepared for public disclosure, either during my employment or other service with the [CIA] or at any time thereafter, prior to discussing it with or showing it to anyone who is not authorized to have access to it. I further agree that I will not take any steps toward public disclosure until I have received written permission to do so from the [CIA].
Defs.’ Mot., Ex. 1 at 1 (10/6/82 Secrecy Agreement).
The CIA’s Publications Review Board (“PRB”) is the CIA entity responsible for
reviewing submissions such as Berntsen’s manuscript. Defs.’ Stmt. ¶ 5. Berntsen submitted his
manuscript for prepublication review on May 18, 2005. Id. ¶ 6. After an initial review in
1 Berntsen’s cover was “lifted and rolled back” at his request on June 12, 2005. Defs.’ Stmt. ¶ 7.
2 October 2005, the PRB returned the manuscript to Berntsen with substantial redactions of
information that it determined to be classified. Id. ¶ 8.
Berntsen filed this lawsuit on July 28, 2005, and filed an Amended Complaint on
December 5, 2005. The Amended Complaint contains one count, titled “First Amendment -
Right to Publish - Classification Challenge.” Am. Compl. at 4. The Amended Complaint alleges
that the CIA “has failed to show that Plaintiff’s First Amendment right to publish is outweighed
by its interest in efficiently carrying out its mission by minimizing harms that are real, not merely
conjectural.” Id. ¶ 15. It further alleges that the CIA “has failed to demonstrate the existence of
substantial government interests that would enable it to prohibit the publication of certain
information within Plaintiff’s manuscript.” Id. ¶ 16. The Amended Complaint seeks, among
other relief, the right to publish the redacted portions of the manuscript.2 Id. at 5.
During the course of the litigation, and after numerous discussions between the parties,
Berntsen provided the PRB with a classified submission identifying 97 items that he wanted to
publish in his manuscript. Id. ¶ 9. In August 2008, the PRB completed its review of the 97 items
and agreed to withdraw its objections as to all but 18 of the items identified by Berntsen. Id.
The CIA now moves for summary judgment on the 18 items that remain in dispute.
The CIA supports its Motion for Summary Judgment with an unclassified declaration
from Karen T. Pratzner, an Associate Information Review Officer for the National Clandestine
Service of the CIA. See Pratzner Unclass. Decl. ¶ 1. Ms. Pratzner has also submitted an ex
parte, in camera classified declaration containing detailed item-by-item justifications for the
2 The Amended Complaint also alleges that the CIA failed to timely complete its review of the manuscript, and therefore, seeks an order to require the CIA to complete its review. This allegation was subsequently mooted when the CIA completed its review of the manuscript.
3 PRB’s determinations. As set forth in her declarations, Ms. Pratzner concludes that the
remaining 18 items reveal intelligence sources, methods and activities, foreign government
information, or information impacting the foreign relations of the United States, and that
publication of this information could cause serious damage to national security, endanger the
safety and lives of individuals who work for and with the CIA, and undermine the ability of the
CIA to collect intelligence information. See Pratzner Unclass. Decl. ¶¶ 31-52. Ms. Pratzner also
concludes that none of the information associated with the remaining 18 items has been officially
disclosed or acknowledged by the CIA. Id. ¶¶ 53-60.
II. LEGAL STANDARDS AND DISCUSSION
This case involves a straightforward application of controlling legal principles to
uncontested facts. Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary
judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits
demonstrate that there is no genuine issue of material fact in dispute and that the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638
(D.C. Cir. 1994).
As an initial matter, the CIA’s enforcement of its secrecy agreement, and the
corresponding prohibition on Berntsen’s publication of classified information, do not implicate
the first amendment. See McGehee v. Casey, 718 F.2d 1137, 1144 (D.C. Cir. 1983) (“[w]e hold
that the CIA censorship of ‘secret’ information contained in former agents’ writings and obtained
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
GARY BERNTSEN
Plaintiff, Civil Action No. 05-1482 (CKK) v.
THE CENTRAL INTELLIGENCE AGENCY
Defendant.
MEMORANDUM OPINION (May 22, 2009)
Plaintiff Gary Berntsen is a former covert employee of the Central Intelligence Agency
(“CIA”). He is also the author of Jawbreaker, a book describing some of his experiences while
working in his former covert capacity. Pursuant to a secrecy agreement executed between the
parties, Berntsen submitted a draft manuscript of Jawbreaker to the CIA for review prior to its
publication. After finding the pace of the CIA’s review to be unacceptably slow, and then
finding the amount of information redacted by the CIA as classified to be unsatisfactory,
Berntsen filed this lawsuit seeking an order allowing him to publish his unredacted manuscript.
At the request of the parties, the Court granted several lengthy periods of time for the
parties to resolve their disputes without further judicial intervention. The parties’ discussions
were largely but not completely successful, and 18 items redacted from Berntsen’s manuscript
remain in dispute. Pursuant to a briefing schedule set by the Court, the CIA filed a Motion for
Summary Judgment as to the remaining 18 items. Berntsen did not file an Opposition to the
CIA’s Motion for Summary Judgment, thereby rendering the motion uncontested. After a searching review of the CIA’s Motion for Summary Judgment, the attached exhibits, the CIA’s
ex parte, in camera declaration submitted in support of the motion, relevant case law, statutory
authority, and the entire record of the case as a whole, the Court shall GRANT the CIA’s
Unopposed [54] Motion for Summary Judgment, for the reasons that follow.
I. BACKGROUND
The facts underlying this case are undisputed. Berntsen was a covert employee of the
CIA from 1982 to 2006.1 See Defs.’ Statement of Material Facts (“Defs.’ Stmt.”) ¶ 1. As a
condition of his employment, Berntsen entered into a secrecy agreement with the CIA on October
6, 1982. Id. ¶ 2. Pursuant to the secrecy agreement, Berntsen agreed to submit certain materials
to the CIA for review and receive written permission from the CIA before taking any steps
toward publicly disclosing such materials:
I hereby agree to submit for review by the [CIA] all information or materials including works of fiction which contain any mention of intelligence data or activities, or contain data which may be based upon information classified pursuant to Executive Order, which I contemplate disclosing publicly or which I have actually prepared for public disclosure, either during my employment or other service with the [CIA] or at any time thereafter, prior to discussing it with or showing it to anyone who is not authorized to have access to it. I further agree that I will not take any steps toward public disclosure until I have received written permission to do so from the [CIA].
Defs.’ Mot., Ex. 1 at 1 (10/6/82 Secrecy Agreement).
The CIA’s Publications Review Board (“PRB”) is the CIA entity responsible for
reviewing submissions such as Berntsen’s manuscript. Defs.’ Stmt. ¶ 5. Berntsen submitted his
manuscript for prepublication review on May 18, 2005. Id. ¶ 6. After an initial review in
1 Berntsen’s cover was “lifted and rolled back” at his request on June 12, 2005. Defs.’ Stmt. ¶ 7.
2 October 2005, the PRB returned the manuscript to Berntsen with substantial redactions of
information that it determined to be classified. Id. ¶ 8.
Berntsen filed this lawsuit on July 28, 2005, and filed an Amended Complaint on
December 5, 2005. The Amended Complaint contains one count, titled “First Amendment -
Right to Publish - Classification Challenge.” Am. Compl. at 4. The Amended Complaint alleges
that the CIA “has failed to show that Plaintiff’s First Amendment right to publish is outweighed
by its interest in efficiently carrying out its mission by minimizing harms that are real, not merely
conjectural.” Id. ¶ 15. It further alleges that the CIA “has failed to demonstrate the existence of
substantial government interests that would enable it to prohibit the publication of certain
information within Plaintiff’s manuscript.” Id. ¶ 16. The Amended Complaint seeks, among
other relief, the right to publish the redacted portions of the manuscript.2 Id. at 5.
During the course of the litigation, and after numerous discussions between the parties,
Berntsen provided the PRB with a classified submission identifying 97 items that he wanted to
publish in his manuscript. Id. ¶ 9. In August 2008, the PRB completed its review of the 97 items
and agreed to withdraw its objections as to all but 18 of the items identified by Berntsen. Id.
The CIA now moves for summary judgment on the 18 items that remain in dispute.
The CIA supports its Motion for Summary Judgment with an unclassified declaration
from Karen T. Pratzner, an Associate Information Review Officer for the National Clandestine
Service of the CIA. See Pratzner Unclass. Decl. ¶ 1. Ms. Pratzner has also submitted an ex
parte, in camera classified declaration containing detailed item-by-item justifications for the
2 The Amended Complaint also alleges that the CIA failed to timely complete its review of the manuscript, and therefore, seeks an order to require the CIA to complete its review. This allegation was subsequently mooted when the CIA completed its review of the manuscript.
3 PRB’s determinations. As set forth in her declarations, Ms. Pratzner concludes that the
remaining 18 items reveal intelligence sources, methods and activities, foreign government
information, or information impacting the foreign relations of the United States, and that
publication of this information could cause serious damage to national security, endanger the
safety and lives of individuals who work for and with the CIA, and undermine the ability of the
CIA to collect intelligence information. See Pratzner Unclass. Decl. ¶¶ 31-52. Ms. Pratzner also
concludes that none of the information associated with the remaining 18 items has been officially
disclosed or acknowledged by the CIA. Id. ¶¶ 53-60.
II. LEGAL STANDARDS AND DISCUSSION
This case involves a straightforward application of controlling legal principles to
uncontested facts. Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary
judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits
demonstrate that there is no genuine issue of material fact in dispute and that the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638
(D.C. Cir. 1994).
As an initial matter, the CIA’s enforcement of its secrecy agreement, and the
corresponding prohibition on Berntsen’s publication of classified information, do not implicate
the first amendment. See McGehee v. Casey, 718 F.2d 1137, 1144 (D.C. Cir. 1983) (“[w]e hold
that the CIA censorship of ‘secret’ information contained in former agents’ writings and obtained
by former agents during the course of CIA employment does not violate the first amendment”);
Stillman v. CIA, 517 F. Supp. 2d 32, 38 (D.D.C. 2007) (“[c]ourts have uniformly held that
current and former government employees have no First Amendment right to publish properly
4 classified information to which they gain access by virtue of their employment”). Rather, the
first amendment is only implicated to the extent that the CIA has sought to prohibit Berntsen
from publishing unclassified information. See McGehee, 718 F.2d at 1148 (“[the plaintiff] has a
strong first amendment interest in ensuring that CIA censorship of his article results from a
proper classification of the censored portions”); Stillman, 517 F. Supp. 2d at 37 n.4 (“[t]he
Court recognizes . . . that any secrecy agreement which purports to prevent disclosure of
unclassified information would contravene First Amendment rights”) (citing United States v.
Marchetti, 466 F.2d 1309, 1317 (4th Cir. 1972)). Accordingly, the sole claim asserted in
Berntsen’s Amended Complaint, titled “First Amendment - Right to Publish - Classification
Challenge,” requires the Court to engage in a single inquiry into whether the PRB has properly
classified the remaining items in dispute. See Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir.
2003) (“[i]f the Government classified the information properly, then [the plaintiff] has no first
amendment right to publish it”).
To determine whether the PRB has properly classfied the remaining items, the Court has
considered the unclassified declaration and the ex parte, in camera classified declaration
submitted by Ms. Pratzner. Although the Court’s review of these declarations has been searching
and thorough, the Court remains cognizant that the CIA’s justifications for its classification
decisions are entitled to substantial deference. See McGehee, 718 F.2d at 1149 (“[courts must
give] deference to reasoned and detailed CIA explanations”).
Having reviewed these declarations, Ms. Pratzner has established that the CIA’s
classification decisions with respect to Berntsen’s manuscript have met the standards required by
the Executive Order governing the classification of information by the Executive Branch. See
5 Exec. Order 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), amended by Exec. Order 13,292, 68
Fed. Reg. 15,315 (Mar. 25, 2004). In particular, Berntsen’s manuscript was reviewed by an
original classification authority, see Pratzner Unclass. Decl. ¶¶ 1-5, 24-27, the information
subject to classification was within the control of the government, id. ¶¶ 11-13, 53, the
information fell within three of the eight authorized classification categories, id. ¶ 26, and the
disclosure of the information “reasonably could be expected to result in damage to the national
security.” Id. ¶ 7. Ms. Pratzner has also established that the CIA has not officially released this
information into the public domain despite the publication of other works by former government
officials or journalists. See Pratzner Class. Decl. ¶¶ 75-85.
Ms. Pratzner’s classified ex parte, in camera declaration also contains an item-by-item
justification as to each of the 18 disputed items. These justifications establish that disclosure of
the information associated with these 18 items would reveal intelligence sources, methods and
activities, foreign government information, or information impacting the foreign relations of the
United States, and that disclosure could cause serious damage to national security, endanger the
safety and lives of individual who work for and with the CIA, and undermine the ability of the
CIA to collect intelligence information. Id. ¶¶ 33-74. Because Berntsen has not filed an
Opposition in this case, none of these conclusions have been contested, and none have been
controverted by anything in the record.
Based on the Court’s consideration of the foregoing, the Court concludes that the CIA has
properly classified the 18 disputed items in Berntsen’s manuscript. Accordingly, the Court shall
grant the CIA’s Motion for Summary Judgment.
6 III. CONCLUSION
For the reasons set forth above, the Court shall GRANT the CIA’s Unopposed [54]
Motion for Summary Judgment. This case shall be dismissed in its entirety. An appropriate
Order accompanies this Memorandum Opinion.
Date: May 22, 2009
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge