Another War of Jenkins' Ear

Resist The Pointless

Posts Tagged ‘department of justice

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.

New DOJ Regulations Pretend Torture Never Happened

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If a detainee falls in the woods, and you as his military appointed lawyer are not allowed to ask him the circumstances around him falling, could it ever be torture?

Defense lawyers were given until Monday to sign the new rules, prompting a protest by the Chief Defense Counsel Marine Col. Jeffrey Colwell, who said Friday afternoon the Pentagon was delaying implementation. Broadly, Colwell wrote, the document “unreasonably and unlawfully interferes with the attorney-client relationship” between the captives in the Guantanamo camps and American defense lawyers in uniform of their enemy.

Specifically, in one instance, he noted the “absurd” requirement that lawyers tell the military beforehand what language they will speak with the captive.

It suggests “the government is monitoring our communications,” the Marine colonel wrote, “which paragraph 87e says you are not.”

. . .

Now paragraph 29, for example, says a lawyer needs the CIA’s blessing simply to ask a captive about a confession the CIA claims he made at a secret overseas interrogation site, before the prisoner ever saw the Red Cross delegate or a lawyer. “Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.”

. . .

Military lawyers not assigned to the Nashiri case said the rules mean his defense attorneys can ask him broad questions — for example, Tell me about your time in U.S. custody before Guantánamo? — but not specifically about any classified documents created while he was at a CIA black site.

Paragraph 31 forbids the defense lawyers from saying, “That’s classified,” as an explanation for why they can’t answer a question.

The Pentagon’s top lawyer, Jeh Johnson, told Congress members Thursday that the order was meant to align the oversight of military lawyers with the “protocol” already imposed on civilian lawyers who travel to Guantánamo to meet captives suing in federal court for unlawful detention.

“As you can imagine, the defense counsels are not to happy about it,” Johnson said, adding that they were given an advanced copy to give them a chance to complain. Colwell said the military criminal defense lawyers were “extremely troubled” by the new oversight regime.

It does not let an attorney use discretion on what constitutes legal reading material. A Pentagon lawyer gave Guantánamo’s youngest captive, Omar Khadr, a copy of Lord of the Rings some years ago — until guards confiscated it.

So basically the administration line is that it brings protocol into line, but doesn’t feel the need to even defend that protocol in public. What’s worse, is that this is widely accepted.

And yes, apparently it’s in the vital national interest of the United States to prevent a teenager who got caught up in a war zone largely because of the deplorable acts of his father from reading about the friendships the develop between elves, dwarves, and little people. Peter Jackson is clearly a member of a sleeper cell, after all.

The bottom line:

“It’s going to slow everything down, tie our hands,” said Colwell. “Getting information to our clients is now going to take weeks instead of days.”

Written by John Whitehouse

March 19, 2011 at 1:23 pm