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Published by The Lawfare Institute
“How the hell can we run sensitive operations here that go after enemies if people are allowed to do that?,” asked Secretary of Defense Leon Panetta, on CBS, in response to the revelations about the Bin Laden mission by former SEAL Matthew Bissonnette in No Easy Day. Panetta’s question makes plain the pressure on DOD to take action against Bissonnette for revealing information about the Bin Laden mission in his book without first running it by the Pentagon for security approval. (Interestingly, Panetta referred to the relevant information in the book as “sensitive,” not classified, and when pushed by Nora O’Donnell on the distinction, said: “Well, you know there's always fine lines here. But, you know, we are currently reviewing that book to determine exactly, you know, what is classified, and what isn't, and where those lines are.”) If Bissonnete suffers no legal sanctions for failing to send his book through pre-clearance security review for classified information, then the already fragile norms that protect highly classified government secrets – norms diminished in the last decade not just by changes in technology, but also by extraordinary national security leaks followed by largely feckless government attempts to stop the leaks through incessant complaints and mostly botched attempted prosecutions – will be weakened yet more. But what concretely can the government do against Bissonnette? I think criminal prosecution is unlikely. The underlying criminal laws are notoriously weak and uncertain and have never proven easy to apply. There is also the practical problem of demonstrating that Bissonnette’s book contains classified information. This might be hard to do by itself (as Panetta’s hedge implies), and any attempt to do so would (as always) threaten to reveal more, possibly much more, classified information along the way. Then there is the problem that the government has itself been revealing a lot to the public about the Bin Laden mission – both in public briefings but also in opportunistic leaks to the press and in briefings to movie producers. These collateral disclosures wouldn’t help Bissonnette’s legal arguments, but they would be used by the defense to embarrass the government, and might well influence a jury that in any event might not be keen to convict one of the men who killed Bin Laden. This in a nutshell is why I think it much more likely that the government will instead bring a civil action to try to recover Bissonnette’s royalties and related earnings from the book. In theory this is a much easier case for the government to win. There is a helpful Supreme Court precedent on point, and the government need not show that Bissonnette’s book contains Sensitive Compartmentalized Information (SCI), but rather need only show that he failed to pre-clear the book even though he had reason to believe that it contained information derived from SCI information. But even a civil suit for royalties poses risks. As I explained yesterday, the government might face difficult issues about whether the nondisclosure agreements it has with Bissonnette actually cover the information related to the Bin Laden mission. And the problems of past government leaks, and of inadvertently revealing more classified information, would still be present. Moreover, recovering royalties will be very awkward if Bissonnette follows through on his promise to give most of the book’s proceeds to the families of fallen SEALS. Despite these problems, I think the government will seek to recover the royalties because it believes it must do something in response to what it views as a blatant breach of its security protocols in order to buck up the effectiveness of the norms underlying those protocols. But there is always the chance that the government’s suit will fail, thus making its norms weaker yet. And even if it wins, many will see the mere recovery of royalties as a too-tepid response that will not adequately deter future Bissonnettes, especially future Bissonnettes who care little about royalties.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
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