Dear Mark Owen (a.k.a. Matt Bissonnette),
On Tuesday, I wrote a review of your new book, No Easy Day, about your role in the raid that killed Osama bin Laden. There are few easy days ahead of you. The government apparently is considering whether to take legal action against you for allegedly violating the terms of two nondisclosure agreements you signed while still in uniform that the Pentagon says remain in force today. And this administration, as you may already know, is not too fond of employees who talk about sensitive national security operations without asking permission.
The Pentagon says there are secrets in your book. It seems officials are preparing to move against you, possibly with an eye to indicting you. (They’ve already determined they can’t stop the sale of your book.) I’m not a lawyer, but I’ve written about leak investigations, the government prosecutors who run them, and the pledges government employees often sign to keep quiet about their work. We journalists also have to be cautious these days about whom we talk to and what secrets we publish. So here are some tips learned in the field that you might keep in mind as you mount your defense.
1) Behave honorably in public.
It will be politically difficult for the government to attack a hero who helped kill Osama bin Laden. It would be much easier to go after a loudmouth who thumps his chest and sticks his finger in the eye of the President. The Pentagon will decide whether to prosecute you in large part based on how you acquit yourself in the promotion of your book, and principally during your media tour, which kicks off this Sunday on 60 Minutes. Of course, you may just opt to keep quiet. Your publisher tells us that as of now, you’re not planning to give any more interviews.
2) Don’t sweat the bin Laden material. Worry about all the other stuff you wrote.
The Pentagon claims you revealed some secrets in the chapters about the bin Laden raid. I’ve read the book, and I can’t find much that wasn’t already revealed by members of the administration. But the first half of your book chronicles many other operations in which you took part, including raids in Iraq and Afghanistan, a failed mission to rescue an American POW, the successful rescue of a shipping captain who was taken by pirates, and even operations you say the United States conducted with Pakistan, inside that country. I doubt you were authorized to talk about any of this, and you might have said something that gives the government grounds to come after you without even touching the bin Laden mission.
3) Talk to your publisher’s lawyer.
Presumably, an attorney for Penguin Group (USA) went through your manuscript line by line looking for copyright infringements, possible libel, and other issues lawyers routinely check before a book goes to press. This lawyer works for your publisher, not for you, and is under no obligation to ensure that you abide by the secrecy agreements you signed with the government. If in the course of your back-and-forth with this lawyer, which probably took several hours, if not days, you discussed any information about those agreements and whether you were breaching them, that information could be discoverable by the government. Call me paranoid, but you should ask this lawyer: How much of our communication is covered by attorney-client privilege? Are your discussions limited to the scope of this lawyer’s job, which was to review your manuscript for legal liabilities to your publisher, or does it cover a lot more ground than that?
4) Consider playing the gray mail card.
A big reason cases of unauthorized disclosures rarely go to court is because the accused has an opportunity to bring forth information that might reveal even more secrets. For instance, he can demand that the government turn over documents about other intelligence operations that might prove his innocence, but that also shine a light on matters the government would prefer to keep hidden. This is known as “gray mail,” and it works. From 2005 to 2009, the FBI received almost 200 referrals from federal agencies about alleged leaks. Investigators opened only 26 cases, identified 14 suspects, and prosecuted none of them. Granted, this was before the Obama administration began an unprecedented number of leaks prosecutions, but it gives you a sense of how cautious prosecutors are about giving people in your situation a chance to expose the government.
5) Prepare a defense under the Espionage Act.
You’ve already hired your own lawyer—smart move—who’s arguing that the secrecy agreements you signed don’t apply to the bin Laden raid, and in any case, that the law merely “invites” you to submit your work to pre-publication review by the government. The government, no surprise, has a much stricter interpretation of your agreements, and the Pentagon’s spokesman has essentially accused you of withholding your book in order to avoid official censorship.
But you should consider that rather than prosecute you for breaching signed agreements, the government might go after you under the Espionage Act. Sound improbable? That’s exactly what prosecutors have done in other cases where government employees allegedly revealed classified information, and those people weren’t writing a book. To defend yourself, you’ll have to argue that nothing you wrote about was classified, and then you’ll have to turn the tables on the administration and make the case that officials already revealed the most telling details of the mission to kill bin Laden. (Side note: This will end up diminishing the importance of your book. In No Easy Day, you claim to “set the record straight” about the bin Laden operation, which implies you’re telling the world things it doesn’t already know. I don’t think you are, and you might have to admit that in order to save yourself.)
Also be aware that even if the prosecutors’ case under the Espionage Act was without merit, they could still practically bankrupt you with legal fees. Indeed, they’ve done it before. That leads me to Tip 6.
6) Don’t spend the book advance.
You’ve said you intend to donate much of the proceeds of the book to organizations that support the families of fallen SEALs. But first, you might want to set aside some of it for legal fees. And second, don’t kid yourself: Absent a prosecution, the government’s primary relief in your case will be to impound the proceeds of your book, including the advance you’ve already been paid, future installments that you’re owed, and any subsequent royalties and revenue from the sale of other rights, like the movie or the TV show. (These dramatic properties are in demand in Hollywood, as you are surely aware.) Unlike with a public trial, there will be little, if any, blowback for the government if it takes this money. People will defend your right to write a book about the SEALs. They won’t defend your right to make millions off it if you broke a promise to stay quiet.
7) Protect your communications with your cowriter.
A leaks prosecutor need not just focus on you. He could go after your cowriter, Kevin Maurer, and compel him to turn over all e-mails, interview notes, recordings, or other documentation about what you told him in the course of writing this book. Does he have a lawyer? Has he destroyed his notes? You need to find out.
Of course, if your arrangement was like most cowriting gigs, you actually didn’t write a word. You told your story to Maurer, and he wrote the manuscript, or most of it. In this case, Maurer could argue that you were merely a source, and that reporters’ privilege means he doesn’t have to divulge any information to the government. That would mean the details of your conversations were safe on his end. But the government could then come after you as a source, and it’s a lot easier to subpoena someone in that position.