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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 Programs. That 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.