SCI Nondisclosure Agreement Requires Prepublication Review

If the former Navy SEAL who co-authored a new book about killing of Osama bin Laden signed a non-disclosure agreement for access to “sensitive compartmented information” (i.e., classified intelligence information), then he was obliged to submit his manuscript to the government for prepublication review even if he believed that it contained no classified information.

A sample SCI non-disclosure agreement that is used by the Department of Defense is here.

If the book did contain classified information, then the author could conceivably be subject to criminal prosecution under the Espionage Act.  But even if it did not contain classified information, its publication without prior review could be deemed a breach of contract, with the proceeds subject to seizure by the government.

The government’s authority to enforce a non-disclosure agreement in this way was affirmed by a federal court most recently in the case of USA v. Ishmael Jones.  In that case, Jones (the pseudonym of a former CIA officer) published his manuscript without completing the prepublication review process.

Last week, Adm. William H. McRaven of U.S. Special Operations Command condemned the disclosure of classified information by former special operators, as well as other forms of activism that tended to politicize the service.

“While as retired or former service members, they are well within their rights to advocate for certain causes or write books about their adventures, it is disappointing when these actions either try to represent the broader S.O.F. community, or expose sensitive information that could threaten the lives of their fellow warriors,” McRaven wrote in an email to all special operations personnel.

“We will pursue every option available to hold members accountable, including criminal prosecution where appropriate,” he wrote, as reported by Kimberly Dozier of the Associated Press.

“Today, U.S. Special Operations Forces are in 78 countries around the world supporting U.S. policy objectives,” Adm. McRaven told Congress last March.

The SOCOM budget request for FY2013 is $10.4 billion.  “The FY 2013 budget includes 21 construction projects in nine states, one overseas, and one at a classified location,” Adm. McRaven said in the 2012 SOCOM posture statement.

2 Responses to “SCI Nondisclosure Agreement Requires Prepublication Review”

  1. Jesselyn Radack August 27, 2012 at 2:10 PM #

    I know this is weedy, but it has been legally significant in cases like that of whistleblower Thomas Drake. You say, “If the book did contain classified information, then the author could conceivably be subject to criminal prosecution under the Espionage Act.” Technically, based on how the government’s been using its prosecutorial discretion, you’re right. But according to the letter of the law, the Espionage Act provisions the government has been using to prosecute alleged mishandling of classified information, 18 U.S.C. ss 793(d)-(e) do not mention “classified” information, but rather “national defense” information. If the government wanted to use the proper statute, it would prosecute under s 798 re: Disclosure of Classified Information.

  2. Thomas Drake August 27, 2012 at 5:06 PM #

    In this hyper anti-leak and secrecy age charged environment where national security has largely become the near be all and end all imprimatur, secrecy agreements now often serve as instruments of punishment and censorship against individuals for disloyalty, whistleblowing, dissent, and going off the range.

    In addition, the government has developed a peculiarly obsessed penchant for either pretextually or retroactively classifying just about anything and everything it says is classified including unclassified information or what it unilaterally deems as requiring ‘state secrets’ protection.

    Would need to know more about which specific secrecy agreement was binding with the author.

    Just because one signs a secrecy agreement involving SCI information does not automatically mean that any and all information intended for publication has to go through pre-publication review.

    CIA’s secrecy agreement is much more inclusive in that regard.

    I know. The issue of alleged retention/mishandling of classified was central in my criminal case, given that I was charged with 5 felony counts of violating the Espionage Act under Title 18, USC 793(e).

    Nothing in the Espionage Act under 793 refers to classified information, only National Defense Information.

    Also have to remember there is Title 18, USC 798 for communications intelligence.

    There is also Title 18, USC 1924 – where classified does not equal NDI and defined as:

    ‘(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.’

    And in my case the government misused/abused 793(e) by saying I retained classified information for the purposes of disclosure (an Act specifically designed to go after spies and not whistleblowers), when I did neither, and the government conducted a forced pretextual classification review to make ‘classified’ what was patently unclassified and had been in whole or in part given by me as a material witness to official DoD IG government investigators examining certain NSA programs and related First Amendment protected communications involving government wrongdoing, fraud, waste, abuse and illegalities.

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