Clearance and the Need to Know: Potential Legal Action against Navy SEAL Team 6 Member

Tweet

On May 2, 2011, United States Navy SEAL Team Six completed a decade-long mission: they killed Osama Bin Laden, Al Qaeda leader and 9/11 mastermind.  While members of the team remained quiet, the assassination effort garnered global attention and became a crowning achievement and campaign talking point for the Obama Administration.  The Commander in Chief spoke publicly about the death of Bin Laden, but those involved maintained anonymity.

That anonymity, however, proved to be only temporary.  Just over a year after the SEALs raided Bin Laden’s Pakistani compound and successfully completed their mission, a member of SEAL Team 6, writing under the pseudonym Mark Owens, authored and released a book about the raid.   No Easy Day was released on September 4, 2012, but the book received significant attention before it ever hit shelves.

Debate circulated in the media and in the military regarding the propriety of publishing a book that contained potentially classified and certainly sensitive information.  The legal issue involves a possible breach of a non-disclosure agreement and the disclosure of sensitive and classified information.  The social issue involves a need – or at least a desire – on the part of the American people to know what happened in the infamous raid.  But another issue exists that is neither legal nor social.  Even if the author, whose real name is Matt Bissonnette, did not breach his nondisclosure agreement, there are those who feel he broke the long-standing code of silence that exists among Navy SEALs, possibly placing those still serving in danger.

The Disagreement over the Agreement

The initial outcry from the Pentagon involved Bissonnette’s breach of the nondisclosure agreement he signed when he enlisted in 2007.  Bissonnette received a letter from the Pentagon’s General Counsel, Jeh Johnson, informing him that the government considered him to be in violation of that agreement.  Johnson’s letter was intended to place Bissonnette on notice that the government may take legal action against the former SEAL.

All military personnel authorized to access sensitive military information are required to sign non-disclosure agreements, which remain effective even after one retires from active duty.  Federal regulations require that these agreements include a provision mandating the submission of all materials that may contain classified and sensitive information, such as manuscripts, to an authorized representative of the Department of Defense for security review prior to publication.  The purpose of these pre-publication reviews is to determine whether dissemination would result in the “disclosure of Sensitive Compartmented information or other classified information.”  Generally, Sensitive Compartmented information is classified for national security reasons as confidential and involves particularly sensitive intelligence sources or methods. Because the Pentagon claims Bissonnette did not submit his manuscript to the appropriate entity for review, he is in breach of his signed agreement.

Bissonnette, however, maintains a different argument.  He claims that he did, in fact, have his manuscript reviewed prior to publication.  The author submitted his work to a former special operations attorney to determine whether it contained classified material. Bissonnette claims that because the manuscript was found by his expert as not containing such information, it is appropriate for publication.  But in order for pre-publication submission to satisfy the requirements of the agreement, the submission must have been to an authorized Department representative.  Unless a former special ops attorney is an authorized representative, Bissonnette likely is not in compliance.  Further, the Department of Defense alleges that the book does contain classified and sensitive material and is, therefore, not appropriate for publication.

The Government’s Next Move

The Department of Defense has taken a definite stance on the breach of nondisclosure agreement and the sensitive nature of the material, and has even released a Department-wide memo with guidelines on how to respond to questions about the book.  It has not, however, affirmatively stated whether it will follow through with legal action against Matt Bissonnette.  Should the Government choose to bring action, it has two options: a breach of contract claim for the non-disclosure violation, or criminal charges for disclosure of classified information under The Espionage Act.

The breach of contract claim has succeeded before. Specifically, in Snepp v. United States, a retired CIA agent was ordered to place profits from his book in a constructive trust because he did not submit the book to proper representatives prior to publication. The outcome of criminal charges, however, is not so certain, as the U.S. Government has not experienced much success with similar cases in the past.  But it is unlikely the U.S. Government will press charges against Matt Bissonnette, despite their public denouncement of his actions.

Going forward with a trial risks further disclosure of classified and sensitive information.  Not only would this fly in the face of the government’s goal in prosecuting Bissonnette, but it would also risk disclosing other sources.  To dig deeper would be to take potentially compromise the safety of sources who remain anonymous, placing both lives and intelligence in harm’s way.

Additionally, were charges to be pressed—particularly charges related to the exposure of classified information—Bissonnette likely has a valid defense.  According to William Woodruff, Campbell Law Professor and former Chief of the Judge Advocate General’s Litigation Division, the attention directed at Bin Laden’s death by members of the Executive Branch works in Bissonnette’s favor.  The classification of military information is an executive function; Bissonnette could therefore argue that because members of the Obama Administration have publicized the raid, the information has been effectively declassified.  It would be rather far fetched, Woodruff said, to think that the publication of Bissonnette’s book is the sole method of disclosure. It is, therefore, unlikely that the controversial author will face punishment greater than public censure. 

The Other Debate

In addition to the discourse regarding whether Matt Bissonnette should or will be prosecuted for his book, conversation also exists about access to military information and the effects of broadening the scope of that access.

In the military, access to information depends on one’s level of clearance and her need to know what is contained in the material she seeks.  Certainly, those involved in the raid on Bin Laden had the appropriate level of clearance and a need to know the details of the operation.  But once completed, who else is entitled to that information?  In a September 11, 2012, interview with CBS, Secretary of Defense Leon Panetta acknowledged the American people had a right to know about the mission, but he also maintained that those involved in the mission were committed to remaining quiet on the more sensitive details.

As Woodruff noted, the details of such missions are the more interesting pieces, but the details are also the pieces that could compromise national security and military safety.  Much of the inter-military criticism of No Easy Day stems from a very real fear that disclosing too much will put military personnel and their families at risk.  The negative commentary also revolves around the fact that by writing this book, Bissonnette broke the tradition of silence and anonymity associated with Navy SEALs and the military in general.  In a profession seemingly comfortable with remaining behind the scenes, it is no surprise that stepping out from the curtain garners great attention.

Though the Government is unlikely to press formal charges against Bissonnette, the issues his publication has raised are likely to remain.  The line between knowing enough and revealing too much will remain blurred, and the debate over satisfying American curiosity and maintaining national security will continue.