A former Navy SEAL who participated in the operation that killed Osama bin Laden has written a book about the mission, which went on sale September 4th. The SEAL wrote the book under the pseudonym Mark Owen, but Fox News revealed his real identity as Matt Bissonnette after multiple other SEALs came forward with the information.
The book has not only angered other members of the military, who claim the author has broken the tradition of silence regarding SEAL missions, but has also drawn the ire of the Pentagon, which says that Bissonnette did not submit the book to either the CIA or the Defense Department for review before sending it to be published. Navy SEALs, like all military and intelligence community personnel who come into contact with military secrets, are required to sign non-disclosure agreements and must submit all book manuscripts for security review by the Pentagon before they can be published.
According to CBS News the Pentagon is considering taking legal action against Bissonnette. The general counsel for the Defense Department sent a letter on Thursday claiming that the non-disclosure agreements Bissonnette signed in 2007 obliged him to never reveal any classified information about his time in the Navy. That agreement remains in force even though Bissonnette retired from active duty in April 2012.
Several laws and regulations are relevant to this issue. A provision of the Espionage Act, 18 U.S.C. § 798, makes it illegal for anyone to disclose classified information. Department of Justice regulations in 28 CFR § 17.18 require that all individuals with access to sensitive information be required to sign nondisclosure agreements containing a provision for prepublication review to assure deletion of the sensitive or classified information. Failure to submit such material for prepublication review constitutes a breach of the obligation and exposes the author to remedial action even in cases where the published material does not actually contain Sensitive Compartmented Information or classified information.
If the Pentagon does pursue legal action, it can proceed in two ways. First, the Pentagon can sue Bissonnette under a breach of contract theory, because Bissonnette breached his nondisclosure agreement both in disclosing sensitive information and in failing to submit his manuscript for review. This was the winning argument in Snepp v. United States, 444 U.S. 507 (1980). In that case, Snepp (a retired CIA agent) published a book about his experiences without prior review and approval from the CIA. The Court found that Snepp had a right to publish his book, but it ordered that the profits from the book be placed in a constructive trust because Snepp violated the agreement to submit the book for prepublication review.
In addition to a suit in civil court, the Department of Defense can bring criminal charges under 18 U.S.C. § 798, the criminal provision on disclosure of classified information. To prevail under this claim, the government would have to prove that the information in Bissonnette’s book was classified and concerned communication intelligence activities or information on codes or cryptographic devices used by any part of the United States government. The government must also prove that the information is at least potentially damaging to the United States or advantageous to a foreign government. This is a heavier burden than simply proving that Bissonnette breached his agreement, but the resulting punishment will also be heavier if the government proves its case: Bissonnette will not only have to forfeit all profits related to the book, but he may also receive other punishment as the court sees fit, including incarceration or fines.
Given courts’ current tendencies to defer to the government on claims relating to national security, it seems likely that there will be consequences for this SEAL’s decision to breach his nondisclosure agreement. On the other hand, Bissonnette and others have pointed out that the White House has leaked substantial amounts of information regarding the Osama bin Laden mission, so perhaps Bissonnette should be able to tell his side of the story.