Another War of Jenkins' Ear

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Posts Tagged ‘Bradley Manning

Whistle Blowing Versus Leaking; Tamm and Manning

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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.

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The Court of Public Opinion Is Not An Actual Court

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Bruce Ackerman is gathering signatures for an academic statement on Bradley Manning’s detention. They contest not the charges against him (in fact, they are not even mentioned, much less challenged). The entire statement concerns only Manning’s treatment in detention. The key paragraph in the blog post is not the statement itself, but rather the update to the post:

UPDATE:Our initial draft relied on news reports in the major news outlets. Comments we received since then lead us to think that two facts may be overstated in the original draft:
1. The instance of forced nudity overnight and in morning parade apparently occurred once. The continuing regime apparently commands removal of Pvt. Manning’s clothes and his wearing a “smock” at night.
2. The shackling apparently occurs when Private Manning is moved from his cell to the exercise room, but not while walking during the one hour of exercise.

Other responses we have received suggest that there are claims of myriad other abuses that make conditions worse in various ways than we describe. We do not, and cannot, seek to adjudicate these factual claims. The conflicting responses underscore the need for a public, transparent, and credible response to the reported abuse, and cessation of those among them that cannot be justified.

Bolded part is key. I’ll stay away from naming names, but too many people invested in this debate are concerned with resolving this debate with the very limited information in the public sector, despite every single fact only being out there because one of two parties want it to be there: the defense counsel (who has an obvious and understandable bias) and the Marines holding him (who can conveniently say everything they do follows the rules). In the normal justice system, abuses can be challenged since there are actual judges a lawyer can file claims with. But as Adam Serwer has noted, there are no such standing courts with jurisdiction to oversee Manning’s detention – something that could have quickly and definitively ended this debate the moment it started.

Indeed, Manning’s lawyer says they are currently waiting for a “706 board.” According to the Journal of the American Academy of Psychiatry, this process inquires into the person’s sanity and to whether he has or had a mental disease or defect. In other words, this process within its legal bounds cannot at all address the salient question of whether the treatment of Pvt. Manning is punitive or preventative. (That Manning has or had a mental disease or defect does not ipso facto mean that’s the rationale of the brig commander). Following the 706 board Coombs says an Article 32 hearing wiill take place, which even Coombs does not say can address detention conditions.

This is a recurring problem, because as Serwer and others also noted, there were similar questions regarding Army Capt. James Yee. And so while I have no interest in legally defending Manning on the merits (as PJ Crowley himself said, Manning is in the right place), I do think the Pentagon (or Congress) needs to find a way to allow military prisoners to challenge conditions of their detention before a military judge.

This is not primarily an 8th Amendment issue of cruel and unusual punishment (or a Geneva Conventions issue), but rather a 5th Amendment issue of due process. Manning doesn’t have the same process due to him that a citizen would have in a civilian military facility, but he should have some access to a court. If nothing else, it would enforce what the rules of the system are and end the somewhat ridiculous process of American presidents having to “own” the conditions of detention for any military prisoner. We should want procedural protections, not political ones.

Written by John Whitehouse

March 17, 2011 at 8:05 am