Secrecy: Leaks Prosecutions

Matthew Bissonnette’s Duties Concerning Classified Information

By Jack Goldsmith
Monday, September 10, 2012, 4:37 PM

Tom Ricks has an uncharacteristically uninformed post about the No Easy Day kerfuffle, in which he claims that it “would be a bad thing if people came to expect some sort of right of the military to review memoirs, and adds that “I know CIA does that sort of thing, but I don't remember the military doing it much.”  In fact everyone in the military with access to highly classified information expects prepublication security reviews, and the military does such reviews all the time, pursuant to the same classified information contractual nondisclosure agreements and background legal rules that apply to the author of No Easy Day, Mark Owen (real name, Matthew Bissonnette).  A more interesting question is whether Bissonnette did actually violate his non-disclosure and related legal obligations.  One would think that the unauthorized disclosure of details about the Bin Laden mission would easily and obviously violate the government’s secrecy rules.  But based on the public documents disclosed thus far, the government’s case does not seem air tight.  (Warning: the analysis that follows is lengthy, complex, and very tentative; also, I have not read No Easy Day.)

A few weeks ago, DOD General Counsel Jeh Johnson wrote to Bissonnette (actually, to “Mark Owen”), claiming that he violated his classified information nondisclosure and consultation agreements with the Defense Department, and announcing that the government is considering pursuing “all remedies” against Bissonnette and those who acted in concert with him.  The government has not disclosed the actual agreements in question, but it has said that the central obligations that Bissonnette breached come from this standard DOD Sensitive Compartmentalized Information (“SCI”) Nondisclosure Statement, which one signs when one is “read in” to, or “indoctrinated” in, a Special Access Program (in brief, a program containing highly classified information and special access restrictions).

By signing this document, Bissonnette assumed two basic obligations: (1) nondisclosure obligations, and (2) pre-publication consultation obligations.

The basic nondisclosure obligation is as follows.  Paragraph 1 provides: “Intending to be legally bound, I [Bissonnette] hereby accept the obligations contained in this Agreement in consideration of my being granted access to information or material protected within Special Access Programs, hereinafter referred to in this Agreement as Sensitive Compartmented Information (SCI).”  Then in paragraph 3, Bissonnette agreed not to disclose SCI (which is the most sensitive form of classified information, the information found in Special Access Programs) or any other classified information.  And in paragraph 6 he acknowledges that unauthorized disclosure of SCI might result in criminal penalties.  I do not know if No Easy Day contains SCI or other classified information, and I thus do not know if its publication violates this nondisclosure obligation.  But even if the book does contain SCI information, I think it will be legally and practically very difficult for the government to prove it in a criminal trial against one of the men who shot and killed Bin Laden.  And I seriously doubt the government will try, especially since violations of the second set of obligations – concerning consultation prior to publication – are easier and less controversial to prove.

The main pre-publication consultation obligations are contained in paragraph 4 of the standard nondisclosure agreement.  Bissonnette agreed “to submit for security review by the Department or Agency that last authorized my access to such information or material, any writing or other preparation in any form . . . that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that I have reason to believe are derived from SCI, that I contemplate disclosing to any person not authorized to have access to SCI or that I have prepared for public disclosure.”  He further agreed to “make any required submissions prior to discussing the preparation with, or showing it to, anyone who is not authorized to have access to SCI,” and he also agreed not “disclose the contents of such preparation to any person not authorized to have access to SCI until” he receives the appropriate written authorization.

Both Johnson’s letter and a subsequent DOD briefing make clear that the government believes Bissonnette violated these very broad consultation obligations.  A breach of a consultation obligation is much easier for the government to prove than a breach of the nondisclosure obligation.  For the government need not show that the book contains SCI.  Rather, it need only show (this is its minimal showing) that Owen failed to submit the material in the book (and in preparation for the book) for security review and approval, or discussed the material with non-authorized persons (in Penguin and elsewhere), or published the material, even though he had reason to believe that the material was derived from SCI.  This seems like an easy burden for the government to meet (assuming, as seems probable, that Bissonnette had reason to believe that his account of the Bin Laden raid was derived from SCI.)  I thus expect that, at a minimum, the government is contemplating a civil action against Bissonnette to recover royalties and the like.  See Paragraph 13 of the SCI Agreement (“I hereby assign to the United States Government all rights, title and interest, and  all  royalties,  remunerations,  and  emoluments  that have resulted, will result,  or  may  result  from  any  disclosure, publication,  or  revelation not consistent with  the terms  of this Agreement”); cf. Snepp v. United States, 444 U.S. 507 (1980).

But matters are more complex, for this reason: It is not clear that the SCI nondisclosure agreement that Bissonnette signed covers SCI related to the Bin Laden mission.  This potential loophole is the most interesting implication of the letter from Robert Luskin, Bissonnette’s attorney, in response to Jeh Johnson.  Luskin makes reference to a 2007 SCI Nondisclosure Agreement that Bissonnette signed.  (The agreement is, according to Luskin, in the attachments to Johnson’s letter; but it has not been disclosed publicly).  He then says of this agreement:

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 ProgramsThat agreement was executed in January 2007, and the Special Access Programs to which it applies were identified at 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 nondisclosure agreement you have identified.  (emphasis added) 

In other words, Luskin argues that the obligations Bissonnette assumed in the relevant SCI Nondisclosure Agreement, which is from 2007, do not apply to SCI related to the Bin Laden mission in 2010.

This is a remarkable claim.  What to make of it?  There is an unknowable factual issue here and a tricky legal issue.  The unknowable (at least to the public) factual issue is whether the Special Access Program that Bissonnette was read in to in 2007, in connection with which he signed the 2007 Nondisclosure Agreement, adequately relates to and thus covers the Bin Laden mission.  Luskin says that it does not, and this assertion seems plausible.

Now for the tricky legal issue.  It is possible that the 2007 SCI Nondisclosure Agreement that Bissonnette signed imposed nondisclosure and pre-publication consultation obligations concerning not just the SCI in the Special Access Programs he was read in to in 2007, but all subsequent SCI in all subsequent Special Access Programs he was read in to as well.  DOD does not appear to have any SCI Nondisclosure Agreements with Bissonnette after 2007.  (I infer this from Luskin’s letter, which implies it, and from Johnson’s letter, which refers to “other similar agreements [Bissonnette] may have signed,” which suggests that DOD, after weeks of looking, hasn’t yet found any other such agreements.)  Luskin’s position is that the 2007 agreement “is expressly limited” to SCI in the Special Access Program that Bissonnette was read in to in 2007.  DOD’s position appears to be that the 2007 Agreement covers the program from 2007 and all subsequent SCI in all subsequent Special Access Programs to which Bissonnette was given access.

Who is right?

Begin at the beginning of the SCI Nondisclosure Statement, which provides that the “principal purpose” of the document is as follows:  “The information contained herein will be used to precisely identify individuals when it is necessary to certify their access to sensitive compartmented information.”  This sentence is ambiguous.  Its most obvious meaning appears to be that the nondisclosure form will be used each time (“when necessary to certify their access to”) individuals are certified for access to SCI, but the sentence also bears the opposite reading that the form is used as a one-time identification of the individuals who are subsequently given access to SCI (and thus who assume general SCI-related obligations).  The first sentence of paragraph 1 is similarly unclear.  It says that one accepts the agreement’s obligations in consideration for access to “Special Access Programs” (emphasis added) – and the reference to programs in the plural might refer to all programs, include future programs, to which one is given access.  But it also might simply refer to two or more programs one gets access to on the date of the indoctrination and signing of the agreement.

Paragraph 2 of the Agreement seems more relevant.  It states:

I understand that I may be required to sign subsequent agreements upon being granted access to different categories of SCI.  I further understand that all my obligations under this Agreement continue to exist whether or not I am required to sign such subsequent agreements.

This statement again is ambiguous.  At first I thought it meant that that the obligations in the 2007 Agreement would apply to all subsequent categories of SCI to which Bissonnette was given access.  But on reflection I think it means (or at least might mean) that the failure to sign SCI nondisclosure agreements for subsequent access to different categories of SCI does not ameliorate the obligations of nondisclosure and consultation assumed in 2007 in connection with the Special Access Program accessed then.  One reason I think this latter interpretation might be right is this: Why would there be a need for the subsequent non-disclosure agreements contemplated in this paragraph if the first non-disclosure agreement covers all subsequent SCI in all subsequent Special Access Programs to which one is admitted?  Requiring agreements each time one receives new SCI would be unnecessary if (as DOD appears to contend) the first nondisclosure agreement covers all subsequent SCI to which one gains access.  This conclusion finds further support, I think, in Jeh Johnson’s awkward statement that Bissonnete’s obligations derive not only from the 2007 agreement, but from “other similar agreements [he] may have signed.”  Those other similar agreements would not be necessary if the obligations in the 2007 agreement applied to all subsequent SCI to which Bissonnette was given access.

These are the reasons why I think DOD does not have an airtight SCI Nondisclosure Agreement with Bissonnette that applies to his public revelations about the Bin Laden mission.  I want to emphasize that my conclusion is far from firm.  There are many things I do not know and many reasons I might be wrong.  Here are some.  It is possible that the SCI program Bissonnette was read in to in 2007 is related enough to the Bin Laden mission to cover that mission.  I have no way to figure this out, but it seems unlikely.  Also, DOD might have post-2007 nondisclosure agreements with Owen that cover the Bin Laden raid, which Johnson might not have attached in his letter for fear of disclosing SCI information (or at least SCI code names).  But Luskin (who should know) seems to imply that there is no such subsequent Bin Laden mission-related nondisclosure agreement, and Johnson’s awkward locution about other possible similar agreements, noted above, suggests that Bissonnette might not have signed a post-2007 SCI Nondisclosure agreement with DOD.  Also, the Bin Laden mission was a Title 50, CIA-controlled covert action.  It is possible that CIA has relevant contracts, regulations, or information that shed light on Bissonnette’s obligations related to the SCI information in the Bin Laden mission that might change the analysis above.  (I am reliably informed that CIA employees sign a single broad SCI nondisclosure agreement that expressly covers anything one learns or does subsequently in CIA.)  Finally, my interpretation of the SCI Nondisclosure Agreement as applying only to SCI programs that one is read in to on the day one signs the nondisclosure agreement might be wrong.  DOD certainly has a customary practice that would shed light on these issues, and possibly has regulations or similar clarifying guidance that might show my interpretations to be wrong.

Even if I am right that there are legal loopholes or uncertainty in DOD’s secrecy coverage, it does not follow that it was appropriate for Bissonnette to disclose the information he did.  Legal technicalities aside, he appears to have violated the confidences and mores of his colleagues.  Nonetheless, the legal technicalities matter a lot for any USG legal response to what Bissonnette did.

If anyone has knowledge or experience or expertise that sheds light on these issues, please email me at [email protected], and I will post what I learn.