Another War of Jenkins' Ear

Resist The Pointless

Whistle Blowing Versus Leaking; Tamm and Manning

leave a comment »

The Department of Justice decided to not prosecute Thomas Tamm for leaking information regarding secret warrantless wiretapping to the New York Times under the Bush Administration.

This reminded me of what Adam Serwer wrote this morning about Bradley Manning, even mentioning Tamm:

I don’t agree with the equivalence some Manning defenders have drawn between Manning and other leakers. Yesterday, Glenn Greenwald wrote that “Once again we find how much we now rely on whistleblowers in general – and WikiLeaks and (if he did what’s accused) Bradley Manning in particular – to learn the truth and see the evidence about what the world’s most powerful factions are actually doing.” There’s a difference between the kind of targeted leaking whistleblowing involves and simply releasing reams of information, which is what Manning is accused of doing. There’s a difference between what Manning is accused of doing and Thomas Tamm, the FBI agent who exposed an unconstitutional warrantless wiretapping program. There’s a difference between what Daniel Ellsberg did when he exposed years of government lies about Vietnam, even if Ellsberg himself doesn’t see it. A targeted leak meant to expose a specific instance of government malfeasance is qualitatively and morally distinct from someone simply exposing volumes of information without regard for what might be in them, even if some of that information ultimately leads to the disclosure of information related to government misbehavior.

None of this is to say that Wikileaks should be prosecuted, an act that would set a disturbing precedent that could endanger the First Amendment rights of all media organizations.  I do however, think if Manning is guilty he should be punished. I don’t mean punished by austere conditions in pre-trial detention, before any level of legal culpability is established, but I do think the government has the authority to go after leakers rather than whistleblowers, and if the accusations against Manning are true he’s the former rather than the latter. Official secrecy should never be used to cover up government malfeasance, but there are some government functions that require secrecy, and those cannot be performed if there is no legal barrier to disclosing that information.

It’s important to get right at what that difference is. The difference is not who it was leaked to – both Wikileaks and the New York Times (in re Tamm and Ellsberg) are media organizations.

The problem is that statutorily sending information to the media is leaking:

Under U.S. law, in simple terms, a “whistleblower” is somebody who reports an employer’s bad conduct to an agency with oversight over the employer. You’re working for a mining company, the mining company is committing safety violations, so you report the violations to the MSHA; or they’re committing environmental violations, so you report the violations to the EPA; or they’re committing wage and hour violations so you complain to the state or federal department of labor. Whistleblower protections come into play, as your employer is not supposed to retaliate against you for reporting their conduct.

Leaking is when you take your employer’s confidential information and you provide it to somebody outside of your organization, usually the media, for the purpose of exposing your employer’s conduct. Leaking is not the same as whistleblowing. Unlike whistleblowing, a statutorily protected activity, leaking is usually going to be tortious and often criminal in nature.

Circumstances arise when the oversight system breaks down or is corrupted, and a frustrated employee leaks information in order to end abuses that won’t otherwise be stopped. There are also times when an employer’s activities are lawful, but the employee is sufficiently offended by those activities or their implications that he chooses to leak them to the media.

Tamm’s and Ellsberg’s targeted leaks were both instances where the oversight system broke down – what they were leaking about concerned the specific concerns of alleged illegal or unconstitutional action that went to the highest office in the land.

That’s just not the case with Manning. He just copied and pasted a whole  trove of State Department Secrets and sent it off. Some were embarrassing to the US, some embarrassing to other countries, some might even have been deserving of targeted leaks, depending on circumstances I’m not really aware of. But that wasn’t what Manning did. Burning down a city isn’t justified because a mass murderer perished in the flames.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: