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Bin Laden Raid SEAL Author Faces “Double Jeopardy”

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SEALs in Action: "Admiral McRaven strongly encourages you to think twice about publishing your book without the required prepublication review."

If Rupert Murdoch’s Sun newspaper can defy British royalty by publishing pictures of a naked Prince Harry, why should we be surprised when a Navy SEAL bares all in an upcoming book on the raid last year that killed Osama bin Laden? Well, for starters, the Brits are ruled by tradition and custom, the SEALs by U.S. law.

No Easy Day: The Firsthand Account of the Mission That Killed Osama bin Laden, is slated to go on sale Sept. 11.

The author is listed as “Mark Owen,” the pen name of Matt Bissonnette, 36. He retired from the Navy last summer, after a career that saw him earn five Bronze Stars and a Purple Heart.

(MORE: The Navy SEAL Tell-All: Anonymous Osama bin Laden Memoir Slated for Sept. 11)

This is what is going to happen next:

– Pentagon lawyers will read the book.

– If it contains classified information (the publisher says it doesn’t), the Pentagon will recommend that the Justice Department prosecute Bissonnette. Pentagon spokesman George Little said Friday that while defense officials have yet to read the book, they plan to assess it for the potential that it contains classified information.”

– Even if it doesn’t contain secrets, Justice could elect to prosecute Bissonnette because he apparently violated a non-disclosure agreement that requires him to submit anything he writes about his military service to the government before publication.

You could say Bissonnette faces a SEAL-specific form of double-jeopardy: even if he takes care to ensure he spills no SEAL secrets, he could still be in trouble for not letting the government vet his book prior to publication.

(MORE: SEALs Turned Authors: A Military Reading List)

“The government does have to stand behind the deal it makes with these people — when somebody thumbs their nose at an agreement on which access to highly-sensitive information was conditioned, the government does have to do something,” says Eugene Fidell, former president of the National Institute of Military Justice, and a lecturer at Yale Law School. “Now whether that involves an effort to impose a prior restraint, or bringing criminal proceedings is going to be a major policy choice.” While the government doesn’t have to act, it “has sent people to jail for compromising classified information.”

Some former SEALs are upset by this breakdown in the traditional of silence. “I was shocked and surprised,” ex-SEAL Team 6 member Don Mann says. “I am afraid that he has put a big target on his back and the back of his family.

” Mann is the author of Inside SEAL Team Six, published last December after getting the required military pre-pub scrub.

Other members of elite SEAL community aren’t as concerned, saying a book on the bin Laden raid can be written without disclosing secrets. “For the past decade more and more books have come out on SEAL teams and their training, and to a degree some of their missions,” says ex-SEAL Stewart Smith. “This OBL mission is a typical example of a basic mission – helo insert, fast rope out, clear a house, helo extract,” he adds. “These missions are done hundreds of times by these operators. It is nothing Hollywood has not shown since the invention of the action/war movie.”

But SEALs’ customs are changing, says Smith, himself a SEAL author. “We used to never utter the words `SEAL Team 6′ in public until this raid,” he says. “We do need to be careful how much we discuss as the operators and their families could be put in danger. Hopefully books by former SEALs will not jeopardize them or their families. From the ones I have read, I do not think we are at that level yet.”

(PHOTOS: Osama bin Laden’s Pakistan Hideout)

Mann says SEALs sign “an agreement stating that we will not release classified info. And if we do elect to write a book or send anything out to the public that it has to be reviewed by a publication review board” – something U.S. government officials say Bissonnette did not do. “It is a lifelong commitment,” Mann says. “We are not allowed to disclose classified info – ever.”

Bissonnette has changed the names of his fellow SEALs to protect their identities. “Sharing the true story of his personal experience in No Easy Day is a courageous act in the face of obvious risks to his personal security,” Dutton spokeswoman Christine Ball said in a statement. “That personal security is the sole reason the book is being published under a pseudonym.” But military officers laughed at the notion that Bissonnette ever felt publishing the book as “Mark Owen” would shield his identity.

Late last week, Admiral William McRaven – the head of U.S. Special Operations Command who actually commanded the bin Laden raid from an Afghan base when he headed up the Joint Special Operations Command – warned SEALs, past and present, that could face criminal prosecution for not letting the government review their books before publication.

“Every member of the Special Operations Community with a security clearance signed a non-disclosure agreement that was binding during and after service in the military,” he said in an email to his troops. “If the US Special Operations Command finds that an active duty, retired or former service member violated that agreement and that exposure of information was detrimental to the safety of U.S. forces, then we will pursue every option available to hold members accountable, including criminal prosecution where appropriate. “

(MORE: The Last Days of Osama bin Laden)

Dutton, a Penguin imprint, has said most of the book’s proceeds will go to charities that support the families of SEALs killed in action. It also says the book contains no classified information. But that may not be sufficient to shield the author from legal trouble.

Steven Aftergood, a secrecy expert with the Federation of American Scientists, says Bissonnette may be in legal jeopardy given that he almost certainly signed a non-disclosure agreement something like this. “If he did sign such an agreement, as seems likely, and he did not submit to pre-publication review, then he would be in breach of contract,” Aftergood says. “Courts have repeatedly upheld agency claims of breach of contract, most recently in the case of former CIA officer Ishmael Jones.”

What the government elects to do remains an open question. It “can seek to enjoin – prevent — publication or distribution of the unreviewed book, as in the case of Anthony Shaffer, or it can seek to confiscate any proceeds from sale of the book, as in the case of Frank Snepp,” Aftergood says. “Another important nuance is that the author could be in breach of contract even if the book does not contain classified information. The non-disclosure agreement imposes a binding commitment to pre-pub review even if the author is convinced that he has disclosed no classified information.”

Former SEAL Smith knows SEALs don’t always appreciate their comrades putting pen to paper. “I do know many do not appreciate SEALs writing books,” he says. “I caught a ration of crap when I got out and developed my first book — The Complete Guide to Navy SEAL Fitness — and all I talked about was the secret of the pushup!”

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