Doubling Down – Stupidly
Looks like Bissonnette is planning on thumbing his nose at DoD. And he and his lawyer are planning to use an . . . interesting and novel legal argument:
According to the letter, the nondisclosure agreement signed by Bissonnette when he was a SEAL only applied to “specially identified Special Access Programs” and not missions such as the May 1, 2011 raid.
That’s an argument that may come as a surprise to some legal experts, who considered the Pentagon’s case against Bissonnette a “slam dunk” given his failure to submit his book for pre-publication review.
The letter referenced above was from Bissonnette’s lawyer to DoD.
I’m thinking that Bissonnette needs to find another lawyer – fast. Because this one appears to be leading him down the proverbial primrose path. Another way to describe the legal theory his lawyer is using besides “interesting and novel” is “naive, foolish, and wrong” – or, alternatively, “hope you enjoy your stay at the crossbar hotel”.
Classified information nondisclosure agreements are like burqas – they cover damn near everything. They’re not limited to “specially identified Special Access Programs”.
IMO, teh stoopid appears to be running amok here. Bissonnette needs to remember that when a sledgehammer hits a walnut, it’s generally not the sledgehammer that gets damaged. And DoD knows how to swing a sledge.
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For those interested: a decent but brief analysis of Bissonnette’s actual legal situation may be found here. He’s on damned thin ice.
Category: Dumbass Bullshit, Legal, Military issues
Well, the NDA (Nondisclosure agreement) does say “never disclose” unless certain conditions are met, which Bissonnette did not meet. Google “SF 312”. It’s kinda clear.
Well I know that when I was debriefed and signed all the docs there was a passage about nondisclosure and otherwise released by competent authority lines……. Hell I still do not know what I can and cannot talk about…..so I do not talk….
Remember the lines about need to know?
Spec Ops cannot bitch about Oval Office releases and then praise one of their own!
He should have submitted it for review……
That said Yes I will buy his book!
Hmmm, rapidly losing my ‘understanding’ of this guy and his motives.
Sounds to me like he got himself one of the best barracks lawyers in the country.
Should have released it posthumously
Legal experts abound. Legal experts with an knack for predicting case outcomes, not so much. Recall, there was no way on God’s green earth that the Supremes would uphold obama’s (lower case intended) health-care mandate.
Dammit. I’m Anonymous again.
Okay, looks like I’m on a screw-up roll. I meant to say in Cmt 5 that there was no way on God’s green earth that the Supremes would uphold obama’s (lower case intended) health-care mandate as a tax.
Okay, that’s it! Have you ever seen so many screw-ups from one guy in consecutive posts? Well, other than those guys, I mean. The Cmt reference in 8 should have been to Cmt 6. Out.
AirCav, maybe you should have your coffee before you hit the keyboard?
Did you mean the Supremes, the singing group?
2-17 AirCav: you are correct; each case is different. However, based on precedent Bissonnette should indeed be worried. See the last paragraph of the 2nd article linked above.
In that paragraph, the case of former CIA employee Frank Snepp is mentioned. The CIA took him to court and forced him to give up royalties for a book he’d written in 1977, Decent Interval, but never submitted for pre-publication review. He was forced to forfeit $188,000 – which, assuming 1977 dollars and allowing for inflation, would be about $710,000 today.
Nondisclosure agreements today are much tighter than I recall them being even 20 years ago. So I’d guess Bissonnette has even less legal “wiggle room” than did Snepp in 1977.
As I said above: IMO Bissonnette needs a new lawyer – fast.
Not smart on his part, but I hope things are stalled until the book is released on Tuesday. Then the info is out there, which will make a very interesting contrast to the movies come December. As long as he didn’t really divulge info that will put people in harms way that is.
Maybe he thinks it will be worth it for his story to get out, believing that the book would have never been approved had it been submitted for review.
So when is the President going to get sued by the DOD for disclosing information about the raid to Hollywood?
Let’s keep it in perspective:
1) He signed non-disclosure agreements.
2) As per those agreements, he was required to submit the book for review. (Luttrell and others have gone through that process.)
3) Regardless of what the particular NDA “covered” is irrelevant as he has also signed other NDA’s that remain in effect that cover ANY classified information he ever came across.
HOWEVER:
4) As to this date, there has been NO proof, or even allegation, that there is ANY classified information in that book.
If there is no classified information in the book, the rest of the discussion is moot.
If there is previously disclosed classified information in the book, he is not exempted from disclosure. He is still bound by the NDA.
IF the White House “declassified” the information before they released it to Obama biographers and filmmakers, then he is off the hook, legally speaking.
With all of that said, the classifying authorities rarely make hay out of these cases, because doing so acts as confirmation of the information. It *normally* acts quietly behind the scenes in such situations to prevent compounding the problem.
The fact that so much is being said BEFORE anyone knows what has been published, in a manner that is atypical of the normal procedures, seems to me to indicate that the case is being pursued on political motivations. It seems that the politicians wish to remain the sole source of information on how great they are, and don’t like the competition.
That is not to say that Bisonette took proper action, is altruistic, or should not be corrected for his indiscretions, but this would probably best be rememdied in a dark alley amongst SeALs, than in a court of law and the Media. Word in the whisper rooms is that they are not happy with him.
And his best defense would be to donate 100% of the proceeds to Pro-Troop Non-Profits. I know of another case where the lack of author profit got the offender completely off the hook.
Bissonnette abruptly left the Navy as a Chief (E-7) with 14 years. A close personal friend of mine (who was stationed at DEV GRU as a senior operator and leaderfor 13 years) knows this man and was very disappointed and surprized by his departure and subsequent actions. ADM McCaven in a letter to all NSW personnel read them the riot act regarding release and unauthorized disclosure of classified information. That letter was in direct response to NO EASY DAY. This WILL NOT END well for Bissonnette. He will be charged and possibly face and deservingly so a double ham sandwich … DoD UCMJ and DoJ smack down. I spent over 10 years supporting the NSW community and everyone I know is not happy about this GET RICH QUICK scheme. It is the opinion of this Master Chief, that he and his publisher will claim that the WH was the first to release such classified information leading to what he and his publisher will claim to be open source information. This does not in any way release him from his obilgation. This former Navy Chief left the Navy and his Mess … we are turning our backs on him now!
This is quite a quandry. If it is true that he is saying that much of the information previously released from other sources and published elsewhere is incorrect, then they are not guilty of releasing sensitive/classified information. Does this publication absolve others of what is presumed to be illegal release of information?
What a mess.
@ OWB …. the obligation stands for life unless released in writing. Just because it was released, it does not mean it is open. For example, when WiKidicks posted all the classified info provided my Ms. Belinda Manning everyone in the FED Govt and Military was warned that viewing the classified infomation on WiKidicks was not authorized because of it was still classiifed. Without a need to know you can’t access it. Now of course there some issues because the classified information was released, but still … these are very simple rules and agreements and very hard to wiggle around. He is in trouble one way or another.
Okay, I’ve read the docs Atty. Luskin referred to in his letter and I wholeheartedly agree that his assertion is silly. The plain language of the SCIN statement makes crystal clear that the term Luskin leans on, Special Access Programs, encompasses the universe, not merely the few planets that were listed in writing for ‘Owens’ in 2007. If that hints at his best shot, ‘Owens’ is in deep stuff. On the other hand, the letter carries as much weight as a quark. It reminds me of the venerable adage about what to do when neither the facts nor the law is on your side. Thus, the table banging has begun.
My guess is that he made a calculated decision to eat whatever happens to himself because of not following procedures for this book as a means to publicize himself for a future career as either a speaker, writer or media resource. He may have ruined his profits for this project, but now he’s established as one of the SEALs who participated in the Bin Laden raid, something that can be worth a lot of money down the road.
How right you are jz638.
In fact he apparently already consulted with the making of a video game.
The fact that he was an active duty SEAL operator, fully engaged in the wars on terror, in itself would, I assume, open a LOT of doors and opportunities. Consulting, opening a business, you name it. But now add into this the fact that he actually participated in the raid itself, went into the compound and engaged OBL himself, man, multiply what I mentioned before by a thousand. Set for life is an understatement.
In reading the comments section of various media outlets commenting on this book, I see the HUGE divide in opinion between many in the SEAL/Special Ops community and the general public. Many in the general public frankly do not seem to care about confidentiality agreements or the bigger picture and repercussions of what he did. They are fully behind him and his book, and they reason if Obama can release information to make a movie, then he can do the same to sell a book.
@ #19: No argument from me on that score whatever. And it has nothing to do with my point which is that it would be interesting to juxtipose the previously released “facts” against those in the book. If they are contradictory, one set of “facts” or the other is not true, meaning that this book just might prove that no sensitive/classified material was previously released.
Interesting possibility that without even realizing that they were conducting a military disinformation campaign that someone, somewhere may have done so with their published lies and inuendos?
And if there is a trial, surely the varacity of the various “facts” will need to be presented?
+1 with what the Master Chief said. Bissonette is screwing himself over royally by sticking to this.
I think he could have pulled his ass out of the fire by now, but after this one, he’s basically betting his future career and convicted-felon status on a lawyer who really doesn’t quite understand how fucked he is if and when the full resources of the United States government can be brought to bear on one individual.
@19 A lot of money? Maybe, but at a huge risk to himself and his family. There are enough Islamic fundamentalist bastards out there that unless he gets some serious high-level protective detail, a speaking gig seems ill-advised.
I think what he did was wrong, but at this point, I’m more concerned with his safety than throwing the book at him. Yeah, he screwed up, but he also served admirably for many years, and we owe him some gratitude for that.
Sounds like he has the lawyer from Ask a Barracks Lawyer over at Duffel Blog.
Even if someone else disclosed classified information, it’s still classified and all of the normal rules apply. You can’t discuss or reference (or look up) classified information on Wikileaks, for example, because it’s still considered legally classified, even if it’s been spilled. We keep getting reminders about this because of all of the leaks re: bin Laden, even though no one really believes that they came from anywhere other than the White House.
BTW: if any of this is true. The federal judge presiding in one stroke of a pen will ensure as clad as a NONDISCLOSURE AGREEMENT that he will never profit from his stories and or affiliation with the US military. He is DONE! Stick a fork in him. He erred badly. The last provision of most federal convictions is a never to profit clause!
Master Chief, something about this whole noisy business just doesn’t add up, which is why we’re all discussing it (like civilized beings, too).
This is from executive order 15236, re:National Security:
(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;
(3) create or continue a special access program contrary to the requirements of this order;
Taking into consideration the landslide of classified info leaks last year, with no consequences to anyone, why is there this very sudden and aggressive effort to clamp down on one individual, who hasn’t yet given his real reasons for walking away from his job/career and doing what he’s done.
Anyone can be a consultant to a video game company and not give up classified or confidential stuff.
There’s a lot more here than meets the eye. It’s just too coincidental.
And you guys should all remember that Bisonnette said he was giving all the royalties to a veterans’ charity, taking nothing for himself. I think money had VERY little to do with his producing this book.
There is something else going on here. If there weren’t, there wouldn’t be such a dustup about it, regardless of any NDA.
My predictions: The veteran’s charities will not get a dime …and the former Navy Chief is in big trouble. Refer to ADM McCraven’s memo to NSW personnel.
29 was I!
Money may or may not have been a motive, but it does bring other worrisome motives into play. Namely, the need for fame and attention. Now I am not saying this author in particular is like that, but I am sure for him to come out with a book like this so relatively ‘soon’ is probably rubbing quite a few folks the wrong way. It seems to go against everything the Special Ops community stands for.
We live in a society where anonymity is seemingly not as “valued” as publicity and attention. Every time a public figure like a celebrity or sports athlete does something good, they have a need to twitter away and let the media know their deeds. They need their egos stroked and the public adulation to show what good people they are, what “heroes” they are. Nothing is private anymore, every little thing is public.
And this guy is a bona-fide super hero to many Americans, more so than a Hollywood celebrity or a professional athlete. Hell, those celebrity flakes would love to be associated with him, THE SEAL that helped take down one of the most wanted terrorist criminals in the history of the United States. Maybe some of that enticed him?
Sure it can be said that this author did what he could to assure his privacy, but come on, what do people expect in this internet day and age of ours? Nothing, and I mean nothing, is private or anonymous. Everything and anything will be revealed and found out (especially if you deal with the mainstream media). Well, I would say most everything except for the silence of the professionals in the Special Ops community. Maybe that is why some of them are quite upset about this.
MCPO? You’ve got to quit being Mr. Anonymouse….Something’s just not right with it, Senior. Running for public office are ya? LOL!
@ 32 Wait … I have an excuse. My wife keeps logging me off. She says I spend too much time on the computer. When she logs me off, I ferget to fill in my call sign. Not running for office .. just my mouth. With an edgy satirical and well informed point of view. Particulary on this matter, I served with NSW in a support role for over ten years. My last 6 years in the Navy was with NSW and this issue burns my skivvies as bad as most in NSW.
People write under pen names for various reasons, to be able to write in more than one genre or to protect their privacy. Bisonnette chose to write as Mark Owen, ostensibly to protect his privacy, but the snoops in the media found out who he was, even so. I wonder how long he thought that would actually last.
If you go all the way back, starting with the leaks of info last year and take the timeline up to OPSEC’s video protest and now the release of this book, there is a pattern here. The official angry noises didn’t start until the announcement of the release of Bisonnette’s book. There has to be something that has people in the upper levels upset, and I don’t mean the Pentagon. And Bisonnette knowingly violated a nondisclosure agreement, so my guess is that he knew there would be an uproar and went ahead with his project, in spite of that.
That is why I don’t think it’s about money or attention.
There’s more to it than that.
C’mon, you guys. You’re 99% smarter than insipid. Figure it out. The clues are right in front of you.
@ EX PH2 Read my earlier posts on this issue. There is more to the story. It lies in the WH. Bisonnette will certainly claim that it was the WH that released the detailsand started this ball rolling. This guy left the Navy with 14 years as a Chief. My freinds in the community are not pleased. We in NSW never spoke of past, current, or future OPS (training or otherwise)with outsiders S. The NSW Ethos, OPSEC, and Non DAisclosue Agreements are life long committments. The Chief threw it all away. Why do you leave the Navy, certain to make Senior and then Master Chief after serving in DEV GRU. In my opinion, simple GREED. I predict if he is involved in a video game, it will be a exact replica of what went down on May 1st. That is UNSAT. But this is just my way of seeing it. I have been wrong in the past, but not often on issues of leadership.
BTW the media did not out him. He was easy to figure out. In a group of men no larger than lets say 125(?) give or take a 6 or 12 pack … who is missing?
As mentioned before, he already was involved with a video game:
http://www.forbes.com/sites/katiedrummond/2012/08/25/navy-seal-book/
Read the link above, he founded his own consulting company just last year. It also states that he is donating “a majority” of the profits from his book towards “unnamed charities,” not the entire amount mentioned here. I know it is a nitpick but still.
I do not begrudge any man wanting to make money, but MCPO seems right on the money with his viewpoints. Being an outsider I certainly respect most the opinions of those in the Special Ops community. If they do not like what this guy is doing, then who am I to say they are wrong?
I just think there is more to it than mere greed. That’s too easy a solution.
Look, I’ve never had anything to do with SpecOps, which has its own no-tell rules and ethos, but I know quite well there are unwritten rules that nobody breaks without a confoundedly good reason, and if he is the only one of that group who did this, in my book there is more than just money involved.
Whistleblowers break confidentiality rules because something is very, very wrong and they are willing to risk everything to expose the wrong. Jeff Wigand was a research biologist at Brown & Williamson Tobacco who exposed the genetic engineering going on to make tobacco more addictive. He lost his job, he was threatened and intimidated, his family was threatened, but he stuck to his guns. And he had also signed a confidentiality agreement with B&W as a condition of employment.
Because of that, I can’t imagine anyone intentionally throwing away a career and all its perks just for a little bit of money, especially when there is very real danger to his family and himself. Bissonnette knew very well the dangers and the consequences of what he was doing, but he was willing to take those risks to do this.
However, if I’m wrong, I’m wrong, and I’ll be the first to admit it.
@38
This is a repeat from a different post. This excerpt is from a Jack Murphy article at sofrep.com. Apologize if you have already read this.
“Word has it that Matt was given the boot from SEAL Team Six’s Red Squadron not long after the Bin Laden raid, possibly causing some bad blood. There is also speculation that Matt has come on some hard times financially leading him to chase a seven figure payday. Don’t tell us the money is for charity because that doesn’t give you a free pass. This is reminiscent of what I have heard about another controversial book called “Inside Delta Force” by Eric Haney who is purported to have written the book as a way to compensate after a number of bad investments.”
Read more: http://sofrep.com/10674/seal-team-six-and-the-white-house-throw-opsec-to-the-wind/#ixzz25DodRRW5
Ok guys, I’m not 100% up to speed on this, if you haven’t noticed I’ve been away for a bit. When I was discharged I had to sign a form that said I wouldn’t talk about any secrets I knew being on our Bn. NBC team. I had to have a Secret Security clearance to be assigned. There was nothing I knew that would mean anything to anyone who wasn’t NBC. As when I enlisted, I signed the line and did my time. I never said a word to anyone. This has ‘stink’ written all over it, IMHO.
I’m not really sure about this. If material that is classified as secret is released by someone else and is generally available to the public than by definition it is not classified secret anymore. Was Woodrow and Bernstein prosecuted for releasing classified material they were handed by someone else? Not a good comparison but I think you see my point. Regurgitating information that is already out there can’t be illegal since if that were so, all of the news outlets that re-published Asasanges stuff would be breaking the law and subject to prosecution.
OK. Classified information is classified until the originator declassifies it. Period. It does not matter if the information is in the public domain or sealed in a SCIF. If a person accesses classified information, without a need to know, even on WikiLeaks, that is called unauthorized access by the reviewer and unauthorized disclosure by the traitor who provided it (Ms. Manning).
This shamed SEAL will claim that the WH released the info. YES they did … but that was a unauthorized disclosure. DoJ is currently investigating those leaks. He will claim that the mission was not classified (tell that to all the intel analysts and operatives who worked this case) … well IAW NSW standards … you don’t talk about past, current, and or future OPS (training or otherwise).
I suspect the feds will cunduct a habious grabbis on him this week and employ a handis cuffuious move on him
jonp: that is a common opinion. It is also 100% wrong. MCPO is correct in comments 17 and 42 above. Unauthorized disclosure and publication does not declassify, though it indeed makes controlling dissemination of a particular piece of information difficult or impossible. Information remains classified until declassified by competent authority – period. The fact that information has become public through unauthorized disclosure does not automatically declassify that same information. Wikileaks is one example; there are many others. Very often the Federal government will neither confirm nor deny the status of leaked classified material. That is generally by design, as confirmation/denial confirms for adversaries and others the actual status of the material. It’s generally better to keep potential foes guessing as to whether it’s truly leaked classified information or dezinformatsia. That is also one of the reasons that nondisclosure agreements extend past the end of one’s employment. Bissonnette’s descriptions of the death of bin Laden are IMO highly problematic for him and may well get him burned. Per published reports, all photographs/motion pictures of bin Laden’s body were classified by the CIA. This classification determination has already been upheld in court. Judicial Watch sued a year ago for copies of photos of bin Laden’s body; classification was the reason the CIA refused to release them. The judge in that case allowed the CIA’s determination to stand. Bissonnette’s book reportedly contains detailed descriptions of bin Laden’s body – so that’s almost certainly going to be a problem for him. Further, Bissonnette also provides details that are at variance with what’s been made public about the raid to date. That will make it virtually impossible for him to claim that he obtained his info from publicly-available sources. The reason that James Bamford’s The Puzzle Palace passed court muster over NSA’s objections, while Frank Snepp’s Decent Interval didn’t when the CIA took him to court, was exactly that. Bamford was able to demonstrate the material in his book was contained in sources already available to the public; Snepp wasn’t. And I’m pretty sure Bissonnette won’t be able to, either. Bottom line: Bissonnette appears legally… Read more »
Hondo is spot on!
Many of us were privy to bits and pieces of classified information over the years. Some of us didn’t even sign specific documents agreeing to keep our mouths shut but understand that what we know is still something which should not be discussed with those with no need to know.
There is a huge distinction between need to know and want to know. Anyone who doesn’t understand the difference should never have access to information, even small bits of information, which puts missions and personnel in jeaopardy.
For those out there who don’t routinely handle classified info, at first glance a lot of it makes you scratch your head and wonder why it is classified. But that info may be the piece of a larger puzzle that could cause significant damage to our country. That’s why we don’t get to declassify info just because it appears in an open source (most intel does if you dig hard enough). There may also clues as to the sources and methods which can be determined by that same info. Finally, the very fact that we are collecting that particular piece of info tells our enemies something about our intelligence priorities. Whatever this SEALs motives, whatever wrongs the Administration may have committed, this does not give him the right to publish this book. He is a grown man and is going to have to face whatever consequences result from his book.
@ 46 … Well put. AMEN. End of story!
I had a though. I wonder how many here will end up actually reading the book, whether purchased or read through a third party (i.e., borrowed a copy or pirated copy).
Yes, outrage and anger is one thing, curiosity is another.
I’m curious about the book and I almost bought it. But, as I used to be in the Special community, I know how everyone is feeling about this so I’m not going to merely for the fact its something he shouldn’t have done, for whatever reason. So, buying it, whether the proceeds end up in a charity or not is irrelevant. I’d rather give the money straight to a charity in that case.
His providing information about something that should’ve been kept to those who were involved is a shame, that info should’ve been kept with them forever.
The unfortunate part is that more and more the public is gaining “too much” information about what the military does, TTPs, operational information, etc. Especially in the SOCOM community. Embeds have caused distraction to plenty of activities where distraction from a reporter is the last thing you should have to deal with when people are trying to kill you.
And I used to teach classes about handling classified information, to me and many its a no-brainer not to discuss classified information. ASSange is another attention butt-whore trying for fame and doing it by putting people’s lives at risk for his own gain. I don’t ever see DOD saying, “okay everyone, you can go read anything you want on wikileaks.”