DOD to Give Penguin the WikiLeaks Treatment?

As a number of outlets have reported, DOD has written a threatening letter to Matt Bissonnette, the Navy SEAL whose memoir comes out next week.

But I think they’re misunderstanding part of the nature of the threat (though Mark Zaid, a lawyer who has represented a lot of spooks in cases like this one, alludes to it here, which I’ll return to). Here are, in my opinion, the two most important parts of the letter. First, DOD’s General Counsel Jeh Johnson addressed it to Penguin’s General Counsel as the custodian for the pseudonymous writer he makes clear he knows the real identity of elsewhere in the letter.

Mr. “Mark Owen”

c/o Alexander Gigante, Esquire

General Counsel

Penguin Putnam, Inc.

That, by itself, is not a big deal. But it does mean Johnson knows Penguin’s GC will read this letter.

More importantly, here’s how Johnson ended the letter:

I write to formally advise you of your material breach and violation of your agreements, and to inform you that the Department is considering pursuing against you, and all those acting in concert with you, all remedies legally available to us in light of this situation. [my emphasis]

That is, DOD is also considering legal remedies against “those acting in concert” with Bissonnette.

As far as we know, the only people acting in concert with Bissonnette are at Penguin’s imprint of Dutton. Thus, as much as this is a threat to Bissonnette, it’s also a threat to Penguin.

Which would make sense because–as Zaid points out–the government has been trying to push the application of the Espionage Act to those sharing classified information since the AIPAC trial.

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.”

Moreover, if it worked, then they’d have a legal precedent they could use to go after WikiLeaks itself, which they’ve been trying to do for years.

Plus, going after Penguin, but not Bissonnette directly, would get around the problem I pointed to here. While they may have a legally sound case against Bissonnette, politically charging him would be really dangerous. But Penguin isn’t a war hero, so would make a safer target–until the rest of the publishing community goes apeshit.

The legacy press may be willing to see WikiLeaks prosecuted, but I presume they’re unwilling to see Penguin prosecuted for essentially the same actions WikiLeaks took and NYT takes all the time.

And if I weren’t already having fun with this case, Bob “Gold Bars” Luskin (Karl Rove’s lawyer in the Plame investigation) is representing Bissonnette. And he’s already given DOD some nice answers on Bissonnette’s behalf.

Most ironically, Luskin has basically used the very same excuse banksters and torturers use all the time to avoid jail time: they consulted with their lawyer who okayed it ahead of time.

Mr. Bissonnette’s lawyer, Robert D. Luskin, responded in a letter to the Pentagon that the author, who wrote under the pseudonym Mark Owen, had “sought legal advice about his responsibilities before agreeing to publish his book and scrupulously reviewed the work to ensure that it did not disclose any material that would breach his agreements or put his former comrades at risk.”

Luskin’s also pulling what I fully expected Bissonnette to pull: the same kind of legal loopholes that the Administration itself uses to make these kinds of operations legal.

The letter also said that the book was not subject to the nondisclosure agreement that the Defense Department said was violated.

That agreement applied only to “specially identified Special Access Programs” that did not include the subject matter of the book, Mr. Luskin wrote.

“Mr. Owen is proud of his service and respectful of his obligations,” the letter said. “But he has earned the right to tell his story.”

I’m not sure whether Luskin’s arguing that these subjects were never a Special Access Program, or are no longer one now that John Brennan blabbed to everyone about it. But whatever they’re arguing, it suggests that if this goes to court, there will be a mighty interesting dispute about what is and is not classified in the era of political gamesmanship.

And here I thought football was going to be the most interesting game being played this weekend.

As a reminder, the book is due out Tuesday, so DOD has just one long weekend to prevent this from coming out.

Update: Here’s the letter Luskin sent to Jeh Johnson.Here’s the paragraph in which Luskin argues that Bissonnette (he uses the pseudonym Mark Owen just as Jeh Johnson did) didn’t need to submit to a pre-publication review.

As you are well aware, the Classified Information Non-Disclosure Agreement, which you attached to your letter, invites, but by no means requires Mr. Owen to submit materials for pre-publication review. Although the Sensitive Compartmented Information Nondisclosure Statement does require pre-publication security review under certain circumstances, that obligation is expressly limited to specifically identified Special Access Programs. That agreement was executed in January 2007, and the Special Access Programs to which it applies were identified on that date. Accordingly, it is difficult to understand how the matter that is the subject of Mr. Owen’s book could conceivably be encompassed by the non-disclosure agreement that you have identified.


22 replies
  1. JTIdaho says:

    I thought the Bin Laden raid was a CIA op – in order to get around the messy issue of sending combat troops into a sovereign country we are not technically at war with yet. So why would the DOD have their knickers in a twist? Shouldn’t it be the CIA’s review people sending the threatening letter?

  2. harpie says:

    “Most ironically, Luskin has basically used the very same excuse banksters and torturers use all the time to avoid jail time: they consulted with their lawyer who okayed it ahead of time.”

    Verrrry interesting.

  3. emptywheel says:

    @JTIdaho: Apparently they’re reviewing too. Note however the Judicial Watch stuff shows CIA pushing the movie hard, so they would have an even harder time saying this is classified.

    And note my update, with a link to Luskin’s letter. He’s saying they didn’t include this in the SAPs that Bissonnette signed.

  4. scribe says:

    @emptywheel: In so many words, Luskin is making a contract-based argument. He’s saying “my client may well have signed a contract not to disclose Special Access Programs ‘A’, ‘B’ and ‘C’, but this operation was called ‘D’ and he didn’t sign anything about ‘D’, therefore there is no contract pertaining to ‘D’ and you don’t have a leg to stand on.”

    I’m waiting to see if Penguin suddenly gets pulled from Amazon and MC and Visa won’t do sales of their cookbooks and whatever. Then you have Assange saying “QED” and smirking all the way back into the Ecuadoran embassy.

    And he’d be right.

  5. rosalind says:

    ah hell, Luskin just has to cut & paste any number of DOJ press releases, change the names, and print it out on his letterhead:

    “Mr. Bissonnette’s legal advisor, John Yoo, ultimately concluded that the burden of proof to bring a criminal case could not be met based on the law and facts as they exist at this time,” Luskin said.”

    and wonder if Amazon has been encouraged not to sell the book, or Visa to not process charges, or…

    (damn, type too slow…scribe beat me to it)

  6. bell says:

    …pulled by Amazon and MC and Visa……..collusion at the top…who needs to have a justice system when someone can make a phone call and tell others who can or can’t have their identity/book whatever – treated like they are criminal while never having been charged with anything? i guess this is what the usa now stands for, with the ever so eloquent obama being apologist in residence..

  7. EH says:

    @scribe: If these things are that articulated, they probably didn’t even want to make a “D” SAP (much less anything signed) for that particular operation in case it went wrong. That is, “secrecy” biting them on the way out.

  8. emptywheel says:

    @scribe: As I understand it, this was done under a Controlled Access–rather than a Special Access–Program.

    That, precisely for the reasons I said: because it was a nice Title 10/Title 50 loophole mechanism, and because they didn’t need to brief Congress.

    Big loopholes in place precisely so our govt can bypass intl and US law.

    I’m laughing my ass off, I gotta say.

  9. emptywheel says:

    @Jason Leopold: Well, this wasn’t one. It was a CAP, not a SAP, apparently. The govt used a loophole and now they’re cranky one of their elite warriors did too.

    Like I said, laughing my ass off.

  10. OrionATL says:

    ” all remedies legally available to us in light of this situation…”

    bluff, bluff, bluff.

    bring it on, counsel. let’s see what you got. then we’ll talk turkey.

  11. Frank33 says:

    The Pentagon SpokesLiar is named, George LITTLE. HA HA.

    Little is definitely a government warmonger and war profiteer. He is a chickenhawk, catapulting propaganda for his Secret Government Overlords. Little is CIA, IBM, Booz Hamilton Allen, and Anti-Terror Travel. So Little may have helped Undie Bomber travel to Detroit. His hobbies include weekend soccer games, skiing, swimming, Lego sets, and planning more criminal wars.

    The secret bloody government is preserving options. Of course, truth is not an option.

    War Criminal Little must persuade the other beltway shills to support another secret government persecution against an American citizen.

    “If there were classified information (revealed) and the author knowingly and willingly disclosed classified information … then there might be a criminal dimension to it,” he said.

  12. Peterr says:


    Gold Bars wrote “Mr. Owen sought legal advice about his responsibilities before agreeing to publish his book . . .” in his letter to the DOD.

    The next installment will be when he produces a legal opinion written by John Yoo.

  13. Peterr says:

    @emptywheel: I love the last line of Gold Bars’ letter: “If you have additional information that sheds a
    different light on these matters, we would be happy to discuss it with you.”

    IOW, Luskin is laughing right along with you, EW.

  14. emptywheel says:

    @Peterr: Well, no matter what he is going to have a considerable challenge if the govt decides to go after Bissonnette. But he’s probably up for that challenge.

  15. FrankProbst says:

    @emptywheel I doubt the government is going to go after him, precisely for the reasons you posted in the main post. He was one of the men who found Osama bin Laden and blew his brains out. You’re aren’t going to successfully prosecute him for WRITING ABOUT being one of the men who found Osama bin Laden and blew his brains out. No jury in the country will convict him. And if the government manages to get some sort of closed trial to protect classified information, no judge is going to want the insta-fame of finding this guy guilty, either. It just isn’t going to happen.

  16. Garrett says:


    I read this story last night looking up at a full moon.

    Their battle about what secrets can be revealed, in the least covert covert operation ever conducted, struck me as lunacy.

    Supposedly, it was a blue moon, something that does not happen often.

    But actually, that full moon was rising. The lunacy always rises and never sets.

    Whether killing Osama bin Laden is covered by a contractual non-disclosure agreement.

    And whether

    BOP. BOP.

    is classified information.

  17. OrionATL says:

    “…And if I weren’t already having fun with this case, Bob “Gold Bars” Luskin (Karl Rove’s lawyer in the Plame investigation) is representing Bissonnette. And he’s already given DOD some nice answers on Bissonnette’s behalf…”

    luskin is bissonnette’s attorney?

    well, this is the first serious hint that bissonette’s book might be another swiftboat attack. next to come, lots of enlisted men on teevee displaying their contempt for obama.

    democrats never seem to learn: you can’t win elections by crouching in a foxhole ’til after it’s all over.

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