No easy answers for No Easy Day

The SEAL book secrecy case is hardly clear-cut

No Easy Day
(Image credit: AP Photo/Dutton)

No Easy Day, a Navy SEAL's first-person account of Operation Neptune's Spear, will not, in and of itself, bring harm to the men who compose the National Missions Force of the United States. Having read the book several times and reviewed certain passages with cleared-in military officials, both retired and active-duty, including one person who is given a pseudonym by Matt Bissonnette, it seems clear that the bad guys won't get much out of the book. As one former SEAL remarked to me, "If you want to know about our T[actics] T[echniques] [and] P[roducers], I can give you a dozen video games that [the military] helped out with, and, yeah there was that movie last year [Act of Valor] that gave away more."

A close reader of the book can find a few nuggets that point to information that might be considered classified: The author writes of a 60-pound device that the CIA uses to jam airwaves, insinuates that SEALs had gone into Pakistan several times before the bin Laden raid (this we knew), and reveals the training locations for the Naval Special Warfare Development Group's High Altitude Low Opening (HALO) parachute jumps.

At a news briefing last week, Pentagon spokesman George Little said (after much prodding from the Pentagon press core) that lawyers had indeed found "classified" information, and not just "sensitive" information — a very key distinction. As a DEVGRU SEAL, Bissonnette signed several binding documents, including nondisclosure agreements for special access programs (SAPs) as well as DD 1847, which is the standard agreement preventing him from disclosing "Sensitive Compartmented Information," a broad category of sources and methods that the Pentagon protects with even greater ardor than collateral information that's just stamped SECRET or TOP SECRET.

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Jack Goldsmith of Harvard (and formerly the Justice Department) explores some of the legal angles here, but suffice it to say: This is one heck of a complicated and at the same time rather semantic problem. "SCI" information is governed by rules set out by the director of National Intelligence. SAPs tend to be specific programs, missions, or capabilities, like, for example, the development of a new stealth technology, or the order that permits JSOC and the CIA to work together in Yemen to kill or capture al Qaeda members there. SCI categories are given single word nicknames and di- or trigraphs. A document marked "TOP SECRET//SI-TK" tells the reader that the SCI categories "SI" (Special Intelligence) and "TK" (Talent-Keyhole) are contained within, and that if they're not cleared for access to those compartments, they better stay the hell away from it. SAPs tend to have nicknames, usually two words, and then classified program names. We know, for example, that the JSOC SAP governing the Yemen operations is called "Copper Dune." A document that contains Copper Dune information might be marked with a variety of SCI tickets, but it would also say "SPECIAL ACCESS REQUIRED — COPPER DUNE."

Do the facts that JSOC exists, that JSOC can kill people designated by the president, that soldiers hop on helicopters — basic facts — become classified because everything associated with a particular compartmented operation is thrown into the "special access program"? Bissonnette argues that only the classified stuff is classified. But the reason why SAPs exist is to allow operators and intelligence analysts and officials to work as freely and independently as possible without having to worry about whether everyone who is working on the project has earned the "ticket" to get all of the information.

So in one sense, yes, everything associated with a SAP is classified — even the nonclassified stuff. If that doesn't make sense to you, it's because you don't generally work this way. But the government does. Within each classified document, in order to facilitate declassification and to make the lives of classifiers miserable, each paragraph must be marked with its appropriate classification. One assumes that, in the intelligence briefing materials that Bissonnette read, basic information about Pakistan's geography might have been marked (U) for unclassified.

For every SEAL op, the SAPs and SCI intersect in ways that are hard to disentangle. For example: The existence of the RQ-170 drone that transmitted pictures of the raid back to the White House Situation Room is classified at the SECRET level. The drone's specific capabilities are classified at a higher level. Bissonnette writes about the drone's "black and white" grainy footage, which I am told the Pentagon is not happy about. (This is the same drone that crashed in Iran). It will be easy for Bissnonette's lawyers to point to numerous references in open literature to the drone and its capabilities, and that will probably help him avoid any severe sanction. That is, in addition to arguing that his nondisclosure agreements didn't require him to submit his book for prepublication review, he will make the common argument that the administration declassified the basic narrative unofficially, and that any subsequent recitation of those facts would not meet the definitional threshold that regular classified information is held to.

But that doesn't mean the Pentagon doesn't have a good reason to shake a big stick at him.

For one thing, the Special Operations Command does not want its operators to think that they can write books about their careers without the proper prepublication review. If it were to relent or back down, even though the case here is weak, it would set a precedent that other would-be authors could easily use. Though it's frustrating to know that information can be simultaneously widely known and still classified, the U.S. government has an interest in not declassifying anything that happens to be disclosed, because that would incentivize further compromises of classified information.

The more interesting debate is about the soul of the SEALs. Have these special operators become a victim of the age of self-disclosure? Have the values that so tightly knit the SEAL community together been jettisoned? Is discipline breaking down? The DEVGRU secrecy apparatus serves an operational purpose, but it also binds the unit together. Once a part of the circle they are expected not to talk about stuff they hear inside the circle. Their work may well go unheralded, but it ought to be enough that they know what they did. (CNN's Barbara Starr has a good post about this subject.)

It is almost impossible to operate in secret in an age when every explosion in the world is tweeted. Going into the bin Laden raid, the Joint Special Operations Command tried to prepare for the interest and scrutiny that accompanied its success. At the time, however, people involved in the mission went out of their way to beg reporters who had good sources in the special operations community to leave the operators alone. Adm. William McRaven, then JSOC's commander, told me at one point that "our people are the assets we will do everything to protect."

McRaven knew he would have to figure out a way to talk about special ops in the information age, but he did not anticipate two developments: One, that conservative former SOF guys would complain that the Obama administration leaked classified information and took undue credit for the raid, and two, that participants themselves would, in essence, go rogue. His position is not undermined, at least not to my mind, by the special access that the Pentagon gave to Nicholas Schmidle of The New Yorker and filmmakers Mark Boal and Katherine Bigelow. Figuring out how and when to tell the story is indeed a prerogative of policymakers. It may seem unfair that they get to decide (or simply deem) that certain sensitive information is no longer sensitive, but senior level military and civilian officials are the ones who set national security objectives and then get to decide how to fulfill them. In this case, it seems like the White House and the military decided that two semiofficial accounts would satisfy the public's interest in the operation and prevent further disclosures of classified information.

That turned out not to be the case.

One final note: The identity of any active member of DEVGRU is itself classified, probably SECRET. When Fox disclosed Bissonnette's identity, the news organization did not break the law. And while I was surprised that Bissonnette's colleagues and associates would out him as they did, I was more surprised that Bissonnette believed he could keep his identity secret once he laid the clues for its discovery.

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