A day after threatening to take legal action against a former U.S. Navy SEAL for an unauthorized book about the commando raid which killed Osama bin Laden, U.S. officials are still debating whether there are sufficient grounds for doing so.
But a lawyer for Matt Bissonnette said on Friday that the former SEAL took his obligations to keep government secrets "seriously" and had made sure the book did not contain secrets.
On Thursday, Jeh Johnson, the Defense Department's top lawyer, sent a letter to "Mark Owen" — a pen-name used by Bissonnette — and his publisher, Penguin Putnam, advising them that the book, "No Easy Day" had been published in violation of non-disclosure agreements Bissonnette signed while a SEAL.
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The letter advised the author that he was in "material breach" of such agreements and that the Pentagon was "considering" legal action against the former SEAL and "all those acting in concert with you."
However, Bissonette's lawyer, Robert Luskin, who represented former President George W. Bush's adviser Karl Rove in the Valerie Plame leak case, claimed that a non-disclosure agreement signed by the former SEAL "invites, but by no means requires Mr. Owen to submit materials for pre-publication review."
Bissonnette "remains confident that he fulfilled his duty," Luskin said in a letter in response to Johnson.
While his client did sign an additional agreement in 2007 requiring pre-publication review "under certain circumstances," it was "difficult to understand how the matter that is the subject of Mr. Owen's book could conceivably be encompassed by the nondisclosure agreement that you have identified," Luskin said.
Luskin also claimed that Owen had "earned the right to tell his story."
U.S. defense and intelligence officials familiar with internal government deliberations about the book acknowledged that legal and factual issues surrounding the book's content were complex.
As a consequence, they said, it is is still unclear if the U.S. government would proceed with legal action against the author or publisher, which is owned by Britain's Pearson Plc. The Justice Department also could go after the profits of the book in a civil proceeding.
Even if such action were launched, the officials said, it might well fail.
LETTER DOES NOT DIRECTLY ACCUSE
One U.S. official familiar with an array of recent leak-related investigations noted that Johnson's letter did not directly accuse the author of disclosing classified information, an allegation which would signal a possible criminal investigation.
"Also interesting is that according to the letter, to sue for (civil) damages, they would have to show that he not only violated his agreement, but that he did reveal classified information. I think that will be difficult for a lot of reasons," the official said, adding: "Maybe they are just trying to scare him."
At a news briefing on Friday, George Little, a Pentagon spokesman, said that an official, post-publication review of the book was continuing.
"I'm not aware that we have reached any final conclusions about, or conducted or finalized a security review of the book... We're reviewing all the options ... I'm not ruling in or out any future action. That's not for me to determine today," Little said.
Acknowledging the possibility of political fallout from any legal action against someone who could be portrayed as a hero for his role in the bin Laden raid, Little said: "I would note that we of course applaud anyone who participated in one of the most successful military and intelligence operations in U.S. history."
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But he added: "Even those who participated in such a mission have a very serious and enduring obligation to follow the process and to help protect classified information."
Little also insisted that Johnson's letter was "not meant to be any kind of measure of intimidation ... It is meant to very strongly signal the requirement to uphold agreements that a former service member has made."
Mark Zaid, a lawyer who has represented a variety of former military and intelligence officials in disclosure and leak cases, said the Johnson letter looked like a signal that the Pentagon was "contemplating a test case against the publisher or media for disclosing classified information."
Zaid said it might be easier to file such a criminal case against the publisher than the author of the book, though a civil case against the author for violating secrecy agreements would be, in Zaid's opinion, a "slam dunk."
Given U.S. media laws, including the First Amendment to the Constitution guaranteeing freedom of expression, Zaid said, the result of any criminal prosecution against a publisher would be uncertain. "I'm not saying they're going to win ... I don't know if they'll do it. (But) They've been waiting for a good factual case to bring it."
Representatives of both the book's publisher, as well as the author's lawyer, have asserted that the book was carefully reviewed before publication to ensure it did not contain any secrets. But U.S. officials said the book was not submitted for official pre-publication review, and that the author therefore had exposed himself to potential legal risks.
Pre-orders for the book have catapulted it to No. 1 on Amazon's best-seller list, displacing the erotic trilogy "Fifty Shades of Grey." An initial print run of 200,000 has been increased to 575,000 copies.
It was highly unlikely that the government would try to halt publication of the book itself, considering that a limited number of advance copies are already in the public domain and media reports have summarized the book's contents.
While the Defense Department is taking the lead in investigating the book's contents, the Central Intelligence Agency, which played a major role in laying the groundwork for and in carrying out the bin Laden raid, is conducting its own review. Some officials said Bissonnette may technically have been operating under the authority of the agency during the operation, further complicating the legal picture.
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Little said the Defense Department had "consulted" with the Justice Department about the Bissonnette book, though he would not comment on whether an "official referral has taken place."
Justice Department spokesman Dean Boyd declined any comment on the book Friday. It declined to say if it had received a referral.
Material from The Associated Press was used in this report.
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