Did Navy SEAL Author Truly Breach Confidentiality?

The book No Easy Day gives a Navy SEAL's account of Osama bin Laden's death, an operation he participated in. It can be found on bookstore shelves now — just over a year after the raid. One major reason the book came out so quickly is that it was not submitted for Pentagon review. Audie Cornish talks with attorney Mark Zaid about what that SEAL may be up against for skipping the official vetting process.

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MELISSA BLOCK, HOST:

This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.

AUDIE CORNISH, HOST:

And I'm Audie Cornish.

On this 11th anniversary of the 9/11 attacks, many people will be cracking open their copy of the book "No Easy Day." That's the insider's account of the U.S. Navy SEAL raid that killed Osama bin Laden. It was written by a retired SEAL officer under the pseudonym Mark Owen. Pentagon officials have accused the author of violating nondisclosure agreements and say the book raises national security concerns. Defense Secretary Leon Panetta suggested in an interview with CBS that action should be taken against the author.

(SOUNDBITE OF TV SHOW, "THIS MORNING")

SECRETARY LEON PANETTA: I cannot, as secretary, send a signal to SEALs who conduct those operations, oh, you can conduct these operations and then go out and write a book about it and - or sell your story to The New York Times. How the hell can we run sensitive operations here that go after enemies if people are allowed to do that?

CORNISH: To learn more about the legal issues at the heart of this dispute, we turn to Mark Zaid. He's a national security attorney. Hi there, Mark.

MARK ZAID: Hi.

CORNISH: Now, the Defense Department and the author disagree on the language in this nondisclosure agreement. We've seen some legal papers back and forth between the attorneys here. The Pentagon says that the book is a clear violation of it and that he was required to send it to them for review first. The publishers and the author say that the agreement only invites them to submit the book for review. How important is this particular clause of this dispute?

ZAID: Well, the battle between the author and the Defense Department is very intriguing. The standard nondisclosure agreement correctly only has this ambiguous you should submit if you desire to, there' nothing explicit. It's another version for a much higher level classified information, which the SEAL had access to that has the explicit clause in it. The question is: Is the agreement he signed that has the explicit clause, does it factually relate to the bin Laden raid itself? And we don't know that yet.

But, ultimately, this is a breach of contract case with respect to the civil clause. And just like any breach of contract case, there may be a difference of opinion as to what the language actually says and how broadly it can be applied.

CORNISH: But what about the potential for criminal prosecution? I mean, is there anything there, say, with the federal Espionage Act that this author should be concerned about?

ZAID: Well, the espionage statute from World War I, which was amended 60 years ago, is the typical statute that they use. This is what they've been using in all the leak prosecutions. This is the - a statute they use against the two AIPAC officials back a few years ago. So far, every step of the way - and I've been involved in some of the leak prosecutions - they've only gone after the individual who they accused of leaking. They've tried to subpoena the journalists. The journalists have fought back. But most of the time, the courts won't go that route. So they haven't been - the government hasn't been able to shut down that exchange, that avenue of exchange.

In this case, not only do they have the typical statute that would be available for possession, dissemination and potentially solicitation; they can go after a publisher that has essentially thumbed its nose at the U.S. government. Not only did it brazenly say we're not going to listen to your instructions forbidding us to publish, but they increased the print run from 300 to 400,000 to 575,000, and then they expedited the publication date from September 11th to September 4th.

I mean you can't get more in-your-face than that. And when you tangle with the intelligence community and you smack your tin can on the cage of the lion, you wake the lion and they smack back. And if anything, they might have really brought a heap of trouble for themselves that they never anticipated.

CORNISH: Mark Zaid, thank you.

ZAID: Thank you.

CORNISH: Mark Zaid, national security attorney. We spoke to him about the legal dispute between the Defense Department and the retired Navy SEAL who authored the book "No Easy Day: The Firsthand Account of the Mission that Killed Osama bin Laden."

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