SCI NONDISCLOSURE AGREEMENT REQUIRES PREPUBLICATION REVIEW

SCI NONDISCLOSURE AGREEMENT REQUIRES PREPUBLICATION REVIEW

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 85
August 27, 2012

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 operation 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.