Pentagon to Bissonnette: “See You In Court”
Looks like the Pentagon is going to play hardball with former SEAL Matt Bissonnette (AKA “Mark Owen”) regarding his book. The DoD General Counsel reportedly informed Bissonnette yesterday that the Pentagon is considering legal action against him and his publisher to force them to forfeit proceeds from Bissonnette’s upcoming book No Easy Day.
Looks like Bissonnette should have actually read his Classified Information Nondisclosure Agreement, especially paragraphs 3 and 5. In paragraph 3, he specifically agreed to submit potentially classified manuscripts for prepublication classification review. (He didn’t.) And in paragraph 5, Bissonnette agreed in writing to forfeit all proceeds obtained through the unauthorized release of classified information.
This isn’t any kind of government power grab, or “prior restraint” of any type. Bissonnette screwed himself here. He signed a formal, enforceable legal agreement with the government, and he later violated that agreement. So now he gets the consequences – which were spelled out for him a priori. He gets no sympathy from me.
Category: Dumbass Bullshit, Military issues, Veterans Issues
When his brethren showed a collective thumbs-down on him, that was enough for me.
Yep. Using a fake name to publish information you agreed not to publish aren’t going to get much sympathy. Even if every single word of his book is true, it’s still inappropriate.
I’m of two minds about this–yeah, Bissonnette screwed himself and his fellow SEALs over big-time and his dick can and should be hammered flat.
OTOH, why is it that even more egregious unauthorized disclosures of classified information have occured for political purposes on multiple occasions for a far longer period, and yet fuck-all is being done about THOSE breaches?
Another case in point–Sandy Burger must be laughing his balls off right about now when he thinks about how he got over.
To the extent that there’s anything classified in the book I don’t have any sympathy for the guy either, but I don’t know that this is going to be a particularly easy case for the Pentagon to make.
You know how sometimes you’ll go into a restaurant and order a Coke and the waiter will ask you if Pepsi is okay? They have to do that because if they serve you a Pepsi when you asked for Coke, Coke can and sometimes does sue. Coke knows if they start letting people misrepresent their brand out of simple laziness, when somebody comes along and misrepresents their brand intentionally to gain a marketing advantage, courts will be less likely to rule in Coke’s favor when they try to defend their brand.
Every person – EVERY SINGLE ONE – who has fed classified data to the press and various authors who have written favorably about Obama has been under some sort of contractual obligation not to share that data. I’m no lawyer, but if the Pentagon isn’t bluffing and actually pursues this, I’d have to guess that Bissonnette’s lawyer is going to argue that since the Pentagon had previously declined to pursue government employees who leak to authors, Bissonnette had every reason to assume that his NDA wasn’t really enforceable. And even if the Pentagon can win, I doubt that the administration wants to be ramping up a court case in which they know the other side is likely to very publicly ask questions about leaks that the administration approved.
No sympathy here. The Special Operations community have been known as the Quiet Professionals and now he is violating that code.
[…] a few days to find the context for this email I got the other day from our buddy Don Shipley. With Hondo’s post, I guess it’s about the right time. Don found this phony dude named Robert Crawford who […]
One other thing – I think this really is about prior restraint. I don’t think anybody actually believes that anybody in the upper reaches of the Obama administration is concerned about the damage anything in that book can do to the country. Obama and his minions are concerned about the damage that the contents of that book can do to his political career. They don’t need to win the case, they only need to get a court to prevent distribution of the book through at least 11/6/12.
Agreed there won’t be much sympathy for him, but equal application of the law would be an admirable goal as well. With 2 FBI investigations into leaks continuing for months, it would be nice to hear that someone intends to prosecute a case against the civilians who signed similar documents at 1600 Pennsylvania Avenue.
“But Mom didn’t spank Joey when he did it!” That’s no defense. If the statute were uniformly unenforced forsome years, that WOULD be a defense. The undercurrent here–and I am part of it–is that we really want to come to the defense of the author but, in light of what the stance his brothers have taken, we are reluctant to do so in deference to them and their views. Rock and a hard place.
I am not suggesting equal application of the law is a defense, I am just not surprised the civilian investigation will take a long time and probably yield small results or no results for what I consider equally egregious behavior by those who are ostensibly “serving” the nation.
I always find it interesting that politicians like the talk about their “serving” the public after being in office for years and getting rich doing it, while those who are actually serving the nation and the public do so for small money in comparison. It makes the words of the latter far more interesting for me, than the shallow conversation and platitudes of the former.
I am loathe the criticize any QP. After all, I was just a rear echelon pogue. Chairborne in fact, not even a dirty leg. But I was a chairborne pogue with a clearance, and we took that seriously. We were not the declassifying authority, regardless of how stupid or trivial the material we handled was. And even though I am sure this SEAL was as careful as could be not to reveal “actual” classified data (not having read the book, I can’t say that for certain, but I trust the professionalism of our Spec Ops personnel), it’s just not his call.
His heart could be in exactly the right place, but he signed his name and made a pledge. I take this shite seriously. It’s why I wish Manning would get a short rope and a long drop (but will have to be satisfied with a life term in FAPP). I’m not saying Bissonette has committed espionage. But I am saying he agreed not to publish anything that he didn’t submit for review first. And I don’t take that breach of trust lightly.
I’m not fit to shine the man’s boots. I wrote reports, he was part of the team that killed bin Laden. But dammit, he is still an oathbreaker. And I can’t just let that go.
I will come to this author’s defense in one way: If what he says undercuts and undermines the CinC and his administration and brings them down, forces them out of office or leads to their defeat in the November 7th election, then I will give him a pass.
I had a high clearance and sgned many non-disclosure forms, some for specific events/actions and another when I left the service. I have kept every one of my oaths.
But if this administration is lying about these actions, and using those lies coupled with controlled, specific position-enhancing leaks of classified information to help them win an election, then I believe it is the moral and legal obligation of the author to step up and bring the true facts to light.
That’s how I see it.
I recall several articles where Naval Special Warfare leadership actively encourage the promoting and exposing of the “SEAL brand” to the media, Hollywood, high schools and colleges. The Army however, is very reticent about promoting its SOCOM units in the same way despite having largest component share in the command. I’m thinking Army views SOF and conventional units as co-equals who just happen to perform different functions.
Comparatively few headlines about exploits of Special Forces, Delta Force, or Ranger Regiment. When Delta played instrumental role in nabbing Saddam Hussein and his sons or Pablo Escobar, you heard hardly a peep about them – credit was handed off to a conventional unit. Makes you wonder if the Navy is causing many of its own problems with commercialization and hollywoodization of the SEAL Teams (most notably SEAL Team Six)?
But if this administration is lying about these actions, and using those lies coupled with controlled, specific position-enhancing leaks of classified information to help them win an election, then I believe it is the moral and legal obligation of the author to step up and bring the true facts to light.
The problem with that, Tim, is that it’s the EXACT reasoning that Manning used. He thought he was being a heroic whistle-blower exposing the “lies of Bushitler”. I’m sorry, no one granted me a “moral authority waiver” to disclose classified information if I ever felt that it would be “the right thing to do.” That’s not my call. Nor is it this SEAL’s. I understand and empathize with you (and him) as for motivation. I really do. But no one made him the declassifying authority. He doesn’t have the RIGHT to decide “this is safe to divulge, so long as my motive is pure.” The same went for Pollard as for Manning. I don’t care they they thought it was for a just cause. They violated their oaths, they divulged information they thought the people they sent it to had a right to know, and they were wrong!
Bingo. If we excuse this guy, then we have to make excuses for Manning, Pollard, Walker, etc.
In NO case is it justified. None.
Here’s something from David Carr, in a column in the New York Times back in February:
“The Obama administration, which promised during its transition to power that it would enhance “whistle-blower laws to protect federal workers,” has been more prone than any administration in history in trying to silence and prosecute federal workers. […]
In case after case, the Espionage Act [of 1917] has been deployed as a kind of ad hoc Official Secrets Act, which is not a law that has ever found traction in America, a place where the people’s right to know is viewed as superseding the government’s right to hide its business.
In the most recent case, John Kiriakou, a former C.I.A. officer who became a Democratic staff member on the Senate Foreign Relations Committee, was charged under the Espionage Act with leaking information to journalists about other C.I.A. officers, some of whom were involved in the agency’s interrogation program, which included waterboarding.
For those of you keeping score, none of the individuals who engaged in or authorized the waterboarding of terror suspects have been prosecuted, but Mr. Kiriakou is in federal cross hairs, accused of talking to journalists and news organizations, including The New York Times.”
We don’t see the White House pursuing the sources of its own leaks, do we? No, but the FBI and the House Security Investigation committee are doing just that. It would be nice if the Pentagon could hold onto its britches until after the elections.
If the Pentagon pursues charges against “Owen”, I think the best they can hope for is to seize the book’s revenues in a civil suit, because he violated his non-disclosure agreements, including the one he signed in April 2012.
Having read a lot of this kind of book, I’ve always noted that those authors make a point about how the book was reviewed and authorized for publication. I was quite alarmed that this guy specifically said that his book WASN’T reviewed.
You can take that two ways. One, he think he and his lawyer are enough of a review, which clearly doesn’t fit the agreement he signed. Or two, he thinks that since his info contradicts the Bragger-in-Chief, they would have never approved it.
I can understand #2, nothing comes out of Obama’s mouth but lies, but he put himself, his family, and his team at risk in doing so.
It will be interesting to see what the movie version is like come December. I believe there’s also a documentary coming out about the same time.
Ex-PH2: uh, no. If there’s classified info in the manuscript and it’s published, Bissonnette could end up in jail – though IMO that’s not likely. He’s definitely within the statute-of-limitations period for all of the violations of Federal law listed in para 4. Most of the violations listed there are Federal felonies – e.g., crimes for which max sentences are well over 1 year (most are 5 or 10 years max sentences).
Again: my guess that they won’t prosecute Bissonnette. But they might decide to make an example of him. And if they do and he’s guessed wrong about what’s classified, he’s toast.
He’s wrong for releasing it contrary to protocol. What I find most interesting is there is no official denial of the content.
He knew he needed to submit the transcript for review, and that is pretty much all they have on him. I do not think they said he revealed anything classified… he is wrong for doing that. I doubt it would have got clearance, and not because of classified information in the book.
The book is out there right now. They cannot stop it from being released, it already was. They can only crucify him for not getting approval, even though they gave major inside information to the movie makers… there is a word for this I think, but it does not excuse him.
@Hondo, the Pentagon said they may seize the book — they’ve done it with other, similar books prior to this — and the revenues.
But yeah, if proper procedure is to submit it for review, then he should have done that.
What I don’t like is the double standard coming out of the seat of power (the one that’s taken:)) because none of the leaks are okay.
This is proving to be an interesting event, more so than I had anticipated.
Because administration officials routinely violate OPSEC does not make it right. Bissonnette had no right to determine what and what not is classified and certainly knew that he was violating the nondisclosure documents he had signed. The debate seems to be whether or not he had the right to tell the “real” story on his own accord. He doesn’t.
The reason ops/intel sources, techniques, methods etc… are classified is to safeguard our capabilities and the men at arms who go into harms way. What about the danger posed to his fellow operators present and future. What about their families? His OPSEC violations may be the crucial piece of intel that solves the puzzle for our enemies and puts our servicemen and their families at greater risk. So just who gave Bissonnette the authority to take that decision upon himself.
So what if they take the money. That won’t help those he’s endangered with his actions. This is a Pandora’s Box and Bissonnette must be held accountable, just as administration officials must be prosecuted as well.
Ex-PH2: the Pentagon has no legal authority over officials of the current Administration who are outside of DoD. As I recall, DoD criminial investigators and/or LE officials are not even authorized to investigate such an incident barring clear evidence of a link to DoD personnel (lawyers or current/former DoD LE, please confirm or refute). Ergo, DoD has no ability to go after administration officials outside DoD who may have leaked classified information. In such a case, DoD can only refer the matter to DoJ for further investigation.
As I recall, DoJ has indeed opened such an investigation regarding recent leaks. That investigation is apparently still ongoing.
I agree that other administration officials leaking classified info without authority should also get burned. However, DoD simply doesn’t have the authority to do that to folks outside DoD. Federal civilian LE is responsible for that.
I know, Hondo. The FBI is conducting an investigation concurrent with an investigation by the House Security Investigation Committee, so there are two going on.
So far, everything points to the head of the fish.
Guys I understand about the NDA, he should have submitted the book for review. With that said how do we know he was not encouraged by this admin to get the book out asap? Only after finding out that he wrote about what really happened did they decide to go after him. It would not shock me at all to find out that one of Obama’s “team” pushed the author forward, telling him he did not need to submit the book. Remember we are dealing with a President that will do anything to win this election and can’t stand when someone makes him look bad… When has anyone from Hollywood been given the access to this much data about a classified operation?
When? Patrick, it started in May 2011 and just kept going.
If this guy signed the document… then he must pay the piper. He was in “big boy land” and should have known better to jump the hoops. Food for thought- how many guys are contacted by authors/reporters and getting slipped cash for exclusives and remaining anonymous. Not many I’m sure, but there were a few or two I wondered about.
Was this a race to be first in line with a book? That surely means more money.
This is Section 5.5 from Executive Order 15236 dated 12/29/2009, signed by Barack Obama: Sec. 5.5. Sanctions. (a) If the Director of the Information Security Oversight Office finds that a violation of this order or its implementing directives has occurred, the Director shall make a report to the head of the agency or to the senior agency official so that corrective steps, if appropriate, may be taken. (b) Officers and employees of the United States Government, and its contractors, licensees, certificate holders, and grantees shall be subject to appropriate sanctions if they knowingly, willfully, or negligently: (1) disclose to unauthorized persons information properly classified under this order or predecessor orders; (2) classify or continue the classification of information in violation of this order or any implementing directive; (3) create or continue a special access program contrary to the requirements of this order; or (4) contravene any other provision of this order or its implementing directives. (c) Sanctions may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation. (d) The agency head, senior agency official, or other supervisory official shall, at a minimum, promptly remove the classification authority of any individual who demonstrates reckless disregard or a pattern of error in applying the classification standards of this order. (e) The agency head or senior agency official shall: (1) take appropriate and prompt corrective action when a violation or infraction under paragraph (b) of this section occurs; and (2) notify the Director of the Information Security Oversight Office when a violation under paragraph (b)(1), (2), or (3) of this section occurs. You can find the complete EO on blog titled 1461. It’s a PDF in tiny type,so you might want to print it and get a pair of magnifier specs. It’s quite clear on the terms of handling any level classified material and how long it takes to declassify something (minimum 25 years). I’m not arguing any of this, but I’m mystified as to why this guy is being targeted, as it… Read more »
@28. Well, for one thing, his account of the killing of OBL doesn’t fit with the administration’s account. And the suits got to watch it in real time, didn’t they? Or am I wrong about that? If I am not, that is a wee bit of nasty isn’t it? Rather embarrassing internationally, if not domestically, no?
AirCav, think there is a whole lot more to this than meets the eye.
Just read this on Author Jerry Pournelles Blog… He does make a Good point:
“The President has the prerogative to leak anything he likes. A Chief Petty Officer does not. The White House formally released part of the bin Laden story and leaked a lot more of it. I haven’t read the Mark Owens book, but apparently it doesn’t give away any classified information that the President hasn’t already revealed. But now the DOD wants all the royalties from the Mark Owns book. I knew the country was desperate broke, but are we that bad off?
I confess mixed emotions on all of this. When there was a serious effort to have me write the Delta Force story with Charlie Beckwith we had many discussions about this. There are conflicting principles involved. I wish the Chief well, but he did sign a contract to allow the Agency to review the book. Of course if he had submitted it for review there might have been fewer than a thousand words (none consecutive) left when they got through with the manuscript. But you knew the job was dangerous when you took it….”
Not so quick. Until you see the actual agreement that he signed, rather than merely a form DOD non-disclosure agreement, you have no idea if he violated that agreement. His attorney implied that the agreement that he signed only applied to certain factual situations. I must therefore assume that he did not sign the form agreement w/o any modifications.
I’ve not read this, but according to a FB post by one of the Ranger Up crew, really there’s no OPSEC violations in there. Obviously that won’t necessarily stop BO (every time I see that abbreviation, I think Body Odor…which is appropriate because as a President, he stinks….anyway), that won’t necessarily stop BO from threatening him.
I kinda wish ole BO was as good at standing up to the country’s enemies as he is at standing up to the country’s citizens.
Dan: one is required to execute the SF312 as a condition for access to classified information. Modifications to the SF312 are not allowed. You sign it as-is as a condition of access to classified information.
If Bissonnette executed a “classified information nondisclosure agreement”, he executed either a SF312 or it’s predecessor, the SF189 or SF189-A. If he executed a NDA at anytime since roughly 1991, he almost certainly executed the SF312.
http://www.archives.gov/isoo/training/standard-form-312.html