Selective Prosecution?

Like many Americans, I'll be watching 60 Minutes next Sunday night. Not that I'm a regular viewer of the program; from my perspective, the MSM is like bad medicine, best taken in small doses, and only when necessary. So why is CBS appointment television on 9 September? Because the network's venerable news magazine will have the first broadcast interview with Mark Owen, the Navy SEAL who participated in the raid that killed Osama bin Laden, and has written about the mission.

While other media outlets have published Owen's real name, CBS refers to him by his pen name. And it's the right call, in my opinion. While Owen retired from the Navy after last year's raid, he remains in potential danger. Various jihadist web sites have called for his death, in retribution for the killing of bin Laden.

But Mr. Owen may have more pressing problems than Muslim fanatics. He's facing potential legal action from the U.S. government because his memoir, No Easy Day, was not approved and vetted by the Pentagon in advance. On Thursday, the Pentagon's top lawyer, Jeh Johnson, sent a letter to Mr. Owen, announcing that the former SEAL was in "material breach" of non-disclosure agreements he signed back in 2007. Owen reportedly retired from the Navy in May of this year, near the one-year anniversary of the bin Laden mission.

From a legal standpoint, it's hard to dispute Johnson's decision. The non-disclosure agreements are standard for anyone with a security clearance; in exchange for access to sensitive information, the holder agrees not to divulge that material--even after that individual leaves government service. If you want to write a book about your experiences, the prospective author obtains permission from the feds, then submits the manuscript for review before it is published.

Mr. Owen is a brave man and a patriot, but he clearly broke the rules. Several retired SEALs have written books about their careers, and to my knowledge, all followed the prescribed protocol. Had Mr. Owen followed the same procedures, there's a chance the Pentagon might have signed off on the book, after the required review and sanitization of sensitive material.

So, why didn't the SEAL-turned-author follow the protocol? First, I'm guessing he saw his chances for approval as slim-to-none, and with the first "insider" account of the bin Laden raid, he had an opportunity to set the record straight and make a pile of money in the process. And, if he didn't go through the normal review process, the government would be unable to stop the book.

Sure, he still faces legal action from the feds, but with the book expected to become an instant best-seller, he will be in a better position to battle the government and their legions of lawyers. Heck, I'm not even convinced the Pentagon can force Owen to forgo royalties from the book (as some have claimed). His publisher (Penguin) is part of a British conglomerate; if Mr. Owen and his literary agent are as sharp as I think they are, they're probably being paid through one of the corporation's non-U.S. subsidiaries, and the royalty money will sit in an overseas bank account, untouched by Uncle Sam.

But, judging from brief excerpts of the interview that have aired so far, it's clear that Mr. Owen i is seeking more than financial gain with the publication of his book. As the former SEAL told CBS anchor Scott Pelley, he wants to set the story straight, and that puts him at odds with the Pentagon and the Obama Administration.

Consider his account of how bin Laden actually died. When they entered bin Laden's home in Pakistan, Owen was #2 in the "stack," the line of SEALs charged with entering the building and finding bin Laden. So, Mr. Owen was--literally and figuratively--at the tip of the spear, with a front row view of what actually transpired. According to Owen, the SEALs took fire from the moment they left their helicopters--a far cry from initial reports which suggested virtually no resistance from inside the compound.

After climbing to the third floor of the residence, Owen says, they saw a man stick his head out of a door that led to one of the rooms. The point man opened fire, striking bin Laden in the head. The Al Qaida leader staggered back into the room and slumped to the floor, the SEALs in pursuit. Shoving two women aside, the special forces operators stood over bin Laden; his wounds were clearly fatal, but at that moment, he was very much alive. Without hesitation, two of the SEALs finished the job, pumping several shots into bin Laden. Owen photographed the body of the dead terrorist, images that provided preliminary verification that bin Laden was indeed, dead.

Compare that to the more "antiseptic" version that made the rounds in May of 2010. According to those accounts (based largely on leaks from senior government officials), bin Laden retreated into his room before the SEALs opened fire. Inside, they confronted the terror leader and the lead operator dispatched him with a "double tap," one shot to the heart, one to the head. There was no mention of bin Laden being shot as he lay on the floor, or the fact that he was hit multiple times, with the final rounds clearly aimed at killing him.

So why the difference? Well, Owen's account doesn't exactly square with the precision strike that was widely touted in the days after the raid. And the image of "execution" shots doesn't exactly help President Obama's outreach to the Muslim world, at least from the administration's perspective. Never mind that OBL was responsible for the deaths of thousands of Americans--and his "popularity" with Muslims had sunk to historic lows by the time the SEALs caught up with him. The actual events that unfolded that night clearly didn't match the White House's desired "narrative," so they offered up an altered version.

That clearly bothered Mr. Owen, who decided to buck the Pentagon by offering his own, eyewitness version of the raid. And while the military pursues legal action against the former SEAL, we're reminded of another, on-going legal action against "leakers" in the U.S. government. We refer to the probe being conducted by two U.S. attorneys who are attempting to determine who disclosed extraordinarily sensitive information about such projects as our cyber campaign against Iran's nuclear program, and a Saudi-run double agent operation that foiled an Al Qaida plot to bomb an airliner.

Those disclosures represent a serious breach of national security, yet it took bi-partisan pressure from Capitol Hill to get Attorney General Eric Holder to launch an investigation. More than a month later, there has been no word of how the probe is going and who the leakers might be.

To be fair, investigations of this type should never be conducted in public, and we may yet see someone held accountable. But I'm not optimistic; over a 10-year span from the mid-1990s until 2005, the FBI conducted over 500 inquiries into the unauthorized disclosure of classified information. Despite all that effort, there were no indictments and no prosecutions.

And more recently, there have been only two senior government officials who have been sanctioned for disclosing or mishandling classified material. Lewis "Scooter," Libby a former aide to Vice President Dick Cheney, was convicted for lying to government investigators about his role in the Valerie Plame affair, and Sandy Berger, former national security adviser for Bill Clinton, received a slap on the wrist for illegally removing secret documents from the national archives.

Against that backdrop, it's a pretty safe bet that whoever might be implicated in the recent breaches will get off scot-free, or receive some sort of administrative punishment at best. Meanwhile, Mark Owen may face the full wrath of the federal government for his disclosures. It's the same sort of bureaucratic and political hypocrisy that official Washington does so well.