Aug. 31, 2012 -- The attorney for the former Navy SEAL whose tell-all book about the raid that killed Osama bin Laden has led the Pentagon to consider taking legal action against him says the author did not violate non-disclosure agreements cited by the Pentagon as the reason for potential legal action.
On Thursday, the Defense Department's General Counsel Jeh Johnson sent a letter to the pseudonym "Mark Owen" notifying him the Pentagon was considering taking legal action against him because he was in "material breach" of non-disclosure agreements about the release of classified information. According to Johnson those agreements required him to "never divulge" classified information even if he is no longer on active duty.
In a response to Johnson's letter issued Friday, Robert Luskin, a partner at the Washington, D.C. firm Patton Boggs, said Owen did not violate the agreements he signed in 2007 and that he "takes seriously his obligations to the United States and to his former colleagues." He added, "They are as important to him as any mission he undertook while on active duty."
Luskin points out that Owen had sought legal advice prior to agreeing to publish his book and "scrupulously reviewed the work to ensure that it did not disclose any material that would breach his agreements or put his former comrades at risk. He remains confident that he has faithfully fulfilled his duty."
The attorney said that one of the two non-disclosure agreements signed by Owen did not require the former SEAL to submit his work for pre-publication review. He said the other agreement, the Sensitive Compartmented Information Nondisclosure Statement, does require a pre-publication security review "under certain circumstances" limited to "specifically identified Special Access Programs."
In his response Luskin argues that the Sensitive Compartmented Information Nondisclosure Statement applies to Special Access Programs identified on the date it was signed. "Accordingly, it is difficult to understand how the matter that is the subject of Mr. Owen's book could conceivably be encompassed by the non-disclosure agreement that you have identified."
Luskin said Owen is proud of his service and "has earned the right to tell his story; his abiding interest is to ensure that he is permitted to tell it while recognizing the letter and spirit of the law and his contractual undertakings."
A Defense official who had reviewed Luskin's response told ABC News that the former SEAL's security clearance compelled him to seek pre-publication review and that the non-disclosure agreements pre-dating the bin Laden raid are still binding. This official points out that though one of the agreements requires pre-publication reviews by DOD "under certain circumstances," they are always required.
Earlier Friday, Pentagon Press Secretary George Little told reporters the letter was sent to Owen because he had violated the non-disclosure agreements and not submitted his book to the Pentagon for pre-publication review. "We take our agreements very seriously," he said. "We are very concerned that this book did not go through the pre-publication review."
He also said that no determination has been made yet as to whether the book does contain secrets. Little said Johnson's letter indicates "there is potential disclosure. He is not rendering determination."
Johnson's letter also warned "further public dissemination of your book will aggravate your breach and violation of your agreements." Little did not identify what potential actions the Defense Department is considering and would not say if there are plans to halt the book's scheduled release next Tuesday.
Little said the "onus" was on the author to take unspecified action and that the letter "was not meant to be any kind of intimidation."
Though the former SEAL said he will donate a majority of the book's profits to charities that help the families of fallen SEALs, Johnson's letter suggested that all of the book's royalties belong to the U.S. government.
According to Johnson, in signing the non-disclosure agreements the SEAL acknowledged he "assigned to the U.S. government ... all royalties, remunerations, and emoluments that have resulted, will result or may result from a disclosure, publication or revelation of classified information not consistent with the terms of this agreement."
Luskin represented Karl Rove during the investigation into who "outed" Valerie Plame as a CIA agent and most recently represented Lance Armstrong during his legal fight with the U.S. Anti-Doping Agency.