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
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.