The Obama administration is actively pursuing legal action against a former Navy SEAL to seize the hundreds of thousands of dollars he received for writing a best-selling but deeply controversial memoir about the raid that killed Osama bin Laden.
The Justice Department and the Pentagon are in settlement talks, which have not previously been reported, with No Easy Day author Matt Bissonnette, who wrote the book in 2012 under the pseudonym Mark Owen. The book bumped Fifty Shades of Grey from the top of the USA Today best-seller list when it was first published and has gone on to sell hundreds of thousands of copies. The book infuriated many at the Pentagon and in the secretive Special Operations community because Bissonnette didn't submit it for a pre-publication review designed to prevent the disclosure of any top-secret information about the raid.
"The department continues to assert forcefully that Mark Owen breached his legal obligations by publishing the book without pre-publication review and clearance," a Pentagon spokesman said. "Settlement negotiations continue with an intent to pursue litigation if talks break down."
The Pentagon has long said that "all options are on the table" when it came to the book. But defense officials have only hinted that the government would go after the proceeds of the book if Bissonnette didn't participate meaningfully in settlement negotiations.
Pentagon officials hadn't said, until now, that the administration was actively seeking to seize the funds from the book and would pursue charges against the author if those negotiations failed. The Pentagon's acknowledgement that it would do so suggests that administration lawyers aren't optimistic that those negotiations will produce results and are preparing a civil suit to get money from Bissonnette. The former commando had initially promised to donate most proceeds from his book to charities that support Navy SEALS or related causes but at least some groups had refused to accept the money because of the controversy surrounding the book. As a result of the Pentagon's concerns, Bissonnette and his lawyer had agreed with the government not to disperse any money until the legal issues were resolved.
"We are indeed in discussions with the DOD about a possible resolution of this matter and I'm optimistic that they will be successful," Robert Luskin, an attorney representing Bissonnette, told Foreign Policy in an email. "Beyond that, I really don't want to comment."
No Easy Day was controversial as soon as it was published on September 11, 2012, for its blow-by-blow account of the raid that killed 9/11 mastermind bin Laden as told by someone who lived it, and for details it contained that didn't square with information the White House provided in the days following the famous mission in May 2011, including whether bin Laden was armed or if he used others as human shields.
The book was never cleared with Pentagon officials before it was published, which means that operational details about the raid could have been remained in the book despite Bissonnette's insistence that he scrubbed anything classified. Still, it's been two years since the book caused an uproar and so far, Defense and Justice lawyers have not moved against the author or its publisher, Dutton Penguin.
Typically, any member of the armed forces who writes about their time in the military or draws on their knowledge as a service member must be vetted by the appropriate service like the Army or Marine Corps. If the content of the manuscript is broad enough to warrant it, it is vetted at the Defense Department level.
But the process by which military authors agree not to disclose sensitive information -- and the signing of such "nondisclosure agreements" -- isn't necessarily formalized, critics of the process say. And the Office of Security Review, which conducts such reviews for the Pentagon, doesn't have an effective appeals process by which military authors can object to decisions made by the office to scrub their material, those critics have said.
Book projects can be delayed as each service or the command assigned to look at the material scrutinizes it for sensitive or potentially classified information. It's not clear why Bissonnette didn't participate in the vetting process with the Pentagon. But critics of the Defense Department on the issue say it is a cumbersome endeavor that military authors have said is fundamentally flawed.
Peter Mansoor told Foreign Policy in September 2012 that the vetting for one of his books, Baghdad at Sunrise, took almost four months to get through the security process. The delay, he said, was discovered when a low-level staffer was found to have left her job without passing the manuscript on to someone else in her office. The book was ultimately reviewed quickly and given back to the author.
Mansoor, now a professor of military history at the Ohio State University, said at the time that he felt sympathy for Bissonnette because many military authors fear content will be unnecessarily removed.
"I can see why people wouldn't want to go through the process and take the chance that their words would not see print," he told FP at the time. "I understand why the system is the way it is, I just hope it's fair." Mansoor said Thursday in a brief interview that the subsequent vetting process of his second book, Surge, had gone smoothly.
Publication of Stanley McChrystal's My Share of the Task also looked as if it could be delayed at one point as Defense Department security experts scrutinized the sensitive portions of the manuscript for operational details U.S. Special Operations Command or the Pentagon deemed inappropriate for public consumption. But the issues were ultimately all addressed and the former Joint Special Operations Command commander's book was published in January.
Bissonnette had claimed that most proceeds from his book would be donated to charities that support Navy SEALS. After controversy erupted upon the book's publication, at least two of those charities refused to accept any money, including the Navy SEAL Foundation and the Tip of the Spear Foundation.
But Luskin said that by agreement with the government, Bissonnette has not spent or donated any of the proceeds of the book.
"We have agreed with the government that Owen would not distribute any of the proceeds of the book pending our settlement discussions," Luskin said, referring to Bissonnette by his pen name. "That means that he has not touched any of the funds for any purpose."
Spencer Platt/Getty Images