As the contents of No Easy Day began to ooze these past few days, there has been much speculation about whether the publisher and author of the tell-all book on the raid and killing of Osama bin Laden will be prosecuted.
The predictable legal argument of the government is that the book reveals classified information and did not go through pre-publication review. The counter-point to this argument is that my clients Peter Van Buren (State Department) and John Kiriakou (CIA) DID go through the laborious pre-publication review process, had their books approved, and then faced threatened or actual Espionage Act prosecutions.
The pre-publication review process--and its close cousin, secrecy agreements--are a red herring. My real-life experience tells me that whether former Navy SEAL Matt Bissonnette's book makes the government look good or bad will determine whether or not he is prosecuted. Because his account reveals multiple contradictions with earlier accounts by Administration sources, I predict he will be indicted under the Espionage Act.
I am given pause by the fact that 1) improper classification played a major role in the collapse of Obama's centerpiece Espionage Act prosecution against NSA whistleblower Thomas Drake; 2) torture apologist Jose Rodriguez's book (which paints the CIA in a glowing light and defends the use of torture) reveals sources and methods but gets no grief from the government; 3) whistleblowers who did go through pre-publication review and had their books approved are now threatened with or facing prosecution, and 4) the Obama administration itself has revealed highly-classified information to newspapers and Hollywood about the bin Laden raid.
CIA whistleblower John Kiriakou submitted his 2009 book, The Reluctant Spy: My Secret Life in the CIA's War on Terror, for pre-publication review and worked with the CIA for 22 months before it approved his book. Now Kiriakou has been indicted under the Espionage Act (the sixth person to be indicted in the Obama administration's record-braking war on whistleblowers). One of the charges against him, despite his cooperation with the pre-publication review process: lying to the CIA's pre-publication review board. More specifically, Kiriakou is charged with trying to trick the CIA's board, but being unsuccessful--meaning CIA approved the book in its entirety. The charge is based upon an exasperated e-mail Kiriakou allegedly sent not to the CIA's board, but to his co-author. (If you find it baffling that the Justice Department has used this as the basis for a felony charge, you are not alone).
What is this prosecution really about? Kiriakou ticked off some powerful government agencies in his book, criticizing the CIA’s torture program, the deception leading to the war in Iraq, and the FBI’s failure to pursue potential leads in the immediate aftermath of 9/11. It just adds insult to injustice that the only person to be criminally prosecuted in connection with the CIA’s torture program (see Holder's announcement yesterday) is John Kiriakou.
State Department whistleblower Peter Van Buren also submitted his book (We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People) for pre-publication review, and the State Department approved the book. Nonetheless, after the book had been shipped to bookstores, the State Department informed his publisher that it contained classified information--a claim it has since dropped. The State Department engaged in a series of retaliatory actions including suspending Van Buren's security clearance, barring him from accessing the State Department building, monitoring all of his online activities taken on personal time using his home computer, placing him on administrative leave, transferring him to a makeshift telework position, and threatening him criminally under one of the espionage statutes with disclosing classified information in the book the State Department approved.
Considering that the Obama administration has been spilling a deluge of details about the Bin Laden raid--including sources and methods--it makes it particularly pernicious to be making noises about legal ramifications for author Matt Bissonnette. Given Kiriakou's and Van Buren's experiences with pre-publication review--and having their books approved only face criminal ramifications for their books--it is no surprise that the Navy SEAL writing on the Bin Laden raid decided not to submit his book. That doesn't mean he shouldn't have had to if it does, indeed, contain classified information. But if pre-publication review is to be meaningful, it should be applied equally to everyone, and authors who've had their books approved certainly should not face criminal action afterward based on what they wrote.