Storming its way to publication, No Easy Daya first-person account of the May 2011 raid on Osama bin Ladens compound, penned by an ex-Navy SEAL who was part of the operationwas released Tuesday amid plenty of controversy. A letter sent by the Pentagon general counsel last week threatened legal action over alleged violation of the authors non-disclosure agreements, while raising questions on another legal front, too: what, if any, liability could the books publisher face?
Legal experts agree that its authors who are on the hook for pre-publication review. But a publishers liability in a case such as this is likely to hinge on the 1917 U.S. Espionage Act, and whether the government can show that the book contains classified information, says Washington D.C. attorney Mark Zaid.
If its determined there is classified information in the book, the U.S. government has been searching for years for the right test case to bring against a media entity for publishing national defense or classified information, says Zaid. who has represented publishers and authors, including government whistleblowers and members of the military.
On Tuesday, the Pentagon moved closer in that direction during a mid-day press conference about the book. And a U.S. Department of Defense spokesperson told CorpCounsel.com: We are of course continuing to review the book and at this stage, we believe that both sensitive and classified information is contained within the book.
Last Thursdays missive from Department of Defense general counsel Jeh Johnson set the stage for a potential showdown. Johnsons letter [PDF] was addressed to Mark Owen (the pseudonym for author Matt Bissonnette, who was a member of SEAL Team 6), in care of Alexander Gigante, senior vice president for legal affairs at Penguin Group USA.
Johnson informed Owen that he was in material breach and violation of two non-disclosure agreements he signed in January 2007. The Pentagon didnt release copies of the agreements, but according to Johnsons letter, Owen has a continuing obligation to never divulge classified information. He also agreed to submit [his] manuscript for pre-publication security review, and to obtain permission from the agency before publishing, the letter states.
Johnson indicated that legal action could target others, as well. The Defense Department is considering pursuing against you, and all those acting in concert with you, all remedies legally available to us in light of this situation, according to the letter.
The authors attorney, Robert Luskin of Patton Boggs, shot back in a letter of his own on Friday. He argued that Owen scrupulously reviewed the work to ensure that it did not disclose any material that would breach his agreements or put his former comrades at risk.
Luskin also maintained that the non-disclosure agreement Johnson cited invites, but by no means requires Mr. Owen to submit materials for pre-publication review.
In response to a request for comment on the publishers side, Gigante declined, and pointed this reporter back to Luskins letter: Sorry, we dont comment on these matters,” he wrote in an email. “However, I attach the letter written by the authors attorneys, expert in this area, refuting the DODs claim that the author violated his confidentiality agreements.
The controversy over No Easy Day recalls the 1980 U.S. Supreme Court case Snepp v. The United States, in which the government sued a former Central Intelligence Agency employee who published a book sans pre-publication review. The court held that the employee violated his employment agreement, and that the proceeds from the book would go to the government via a constructive trust.
If the author of No Easy Day were found in violation of his secrecy agreement, says University of Chicago law professor Geoffrey Stone, I dont think theres any question the same remedy would apply here.
The Snepp decision didnt apply to the publishers proceeds, however. So in the case of No Easy Day, could the government potentially collect Penguins proceeds, too? Its not clear that the publisher can have its money taken away in a case like this, Stone says.
Any penalties levied against Penguin could come down to facts such as whether the publisher was a passive recipient of information from the author (harkening back to the seminal Supreme Court decision over the Pentagon Papers in New York Times Co. v. The United States) or, rather, induced him to violate his contractual agreement with the government, the law professor notes.
In this case, we dont know the facts, Stone says.
According to Zaid, however, Penguins decisions to bump up the publication date (from September 11, 2012, to September 4) and increase the books print run wont curry any favor. Certain steps that the publisher has taken have increased the odds of their liability, he says.
Zaid adds: When youre dealing with the national-security world, it does not take kindly to being taunted.
See also: “Pentagon GC, an Ex-Paul Weiss Partner, Threatens to Sue No Easy Day Author,” The AmLaw Litigation Daily, September 2012.
