The publisher and author of No Easy Day, an upcoming tell-all on the mission to kill Osama bin Laden, promised the book doesn't reveal classified information. But government privacy lawyers speaking with The Atlantic Wire say the book almost certainly does.
Last night, the public got its first taste of the book's contents as the Associated Press and The Huffington Post obtained pre-release copies of it. In acute detail, former Navy SEAL Matt Bissonnette described everything from the blood seeping beneath bin Laden's body to the entry-point where his fellow SEALs surged the compound. (His account also revealed multiple contradictions with earlier accounts by administration sources.) Only the government knows for certain which details are considered classified in Bissonnette's book, but based on the Justice Department's previous legal efforts to conceal all photographs and video pertaining to the raid, lawyers say it's very likely Bissonnette crossed the legal line.
"The odds are very high that such a person personally involved in such an operation -- who has so brazenly breached his obligation to submit his manuscript for pre-publication review -- has included at least some classified detail," says Dan Metcalfe, the Justice Department's former director of the Office of Information and Privacy. "Consider, by comparison, that the CIA effectively claimed that every last bit of the 52 'death photos/video' is classified."
In that particular case, the CIA fought the disclosure of every last shred of raid imagery requested in a Freedom of Information Act lawsuit by Judicial Watch, a conservative legal group. In April, a federal judge sided with the CIA to keep the images concealed on grounds of national security. Considering the CIA's broad definition of classified materials, Metcalfe said "it would be extremely surprising" if Bissonnette's disclosures were not also considered classified. And Metcalfe isn't alone.
"I have a hard time believing that a book-length first-hand account of such a sensitive operation would not contain a single piece of classified information," says Kel McClanahan, the executive director of National Security Counselors, a law firm that specializes in litigating secrecy cases. "[Just one] piece of classified information is what will cause the problems, even if it’s not in this particular section," he said, reviewing last night's disclosures.
Attorney Mark Zaid, who has provided legal services on some 20 military-related books during the classification review process, says the case against Bissonnette is a "slam dunk." "There's a high, high likelihood that officials with the U.S. government would render a determination that there is classified information within the book," he said. As an example of the mundane details often considered classified, he said the government argued that the NSA's nickname "the fort" was deemed to be classified in Anthony Shaffer's 2010 memoir Operation Dark Heart. In addition, the government even demanded the name "SEAL Team 6" be removed from one of his client's books. "It's ridiculous but until I get a judge to reverse it, it's classified," he said.
If any such disclosure were found, Bissonnette could be subject to prosecution under the Espionage Act. In addition, the Justice Department could claim all the proceeds from the book for Bissonnette's failure to submit his manuscripts for approval, a condition he reportedly agreed to in a non-disclosure agreement. "I have no idea why this guy and his publisher didn't do a pre-publication review," said Scott Hodes, a FOIA attorney and former DoJ official. "He's not being targeted. It's a term of employment and they will [pursue] anybody."
All four lawyers interviewed by The Atlantic Wire said it would be unusual if the Justice Department didn't go after Bissonnette for not submitting his book for review. "The government has a strong (and in my opinion legitimate) interest in the prepublication review system, and no person can ever be allowed to think that they can substitute their own judgment for the government’s when it comes to classified information," said McClanahan. "For every person who actually is right and did not reveal any classified information, there are ten who are not, and those people are the reason the government has to go after anyone who violates the nondisclosure agreement."
In a precedent that should worry Bissonnette, Frank Snepp lost the proceeds to his book and was vigorously prosecuted in the 1970s for failing to submit his book Decent Interval for pre-publication review. "I can remember seeing on my first client visit to Langley a photocopy of his $188,000 check hanging like a trophy on a wall," said Metcalfe. "The Carter Administration CIA aggressively sued him, and the case even went to the Supreme Court. But could the result be different here due to any other perspective especially in an election season? I doubt it."
This article is from the archive of our partner The Wire.