Without whistleblowers, it is hard to imagine a democracy with full governmental accountability to the people could survive. Printed in the New York Times last week by Floyd Abrams and Yochai Benkler comes a chilling analysis of the Bradley Manning case.
Mr. Abrams was the attorney who represented the New York Times in the Pentagon Papers case. In that case, Daniel Ellsberg leaked classified documents to the newspaper that were ultimately published, after the government took the case to the Supreme Court in an effort to impose prior restraint.
Yochai Benkler is a law professor at Harvard and co-director of the Berkman Center for Internet and Society.
The two lawyers come at this case from different angles, but ultimately both believe that, despite whatever justifications the government has, the case represents a true danger to freedom of information and the press in this society.
They write, “If successful, the prosecution will establish a chilling precedent: national security leaks may subject the leakers to a capital prosecution or at least life imprisonment. Anyone who holds freedom of the press dear should shudder at the threat that the prosecution’s theory presents to journalists, their sources and the public that relies on them.”
As they note: “You don’t have to think that WikiLeaks is the future of media, or Private Manning a paragon of heroic whistle-blowing, to understand the threat.”
Bradley Manning is a 25-year-old former Army Private who was arrested back in May of 2010 on suspicion of passing classified material to Wikileaks.
He has already pled guilty to a number of offenses which would land him in prison for 20 years, but the most serious charge remains. It is the capital offense of “aiding the enemy.” The government here is not seeking the death penalty, but rather a life sentence.
As noted, Mr. Abrams and Professor Benkler deeply disagree on how to assess Private Manning’s conduct and the behavior of WikiLeaks.
Mr. Abrams, who represented the New York Times in the Pentagon Papers case, has argued that “both Daniel Ellsberg, who provided the documents to the newspaper, and The Times acted with far more restraint and responsibility than Private Manning and WikiLeaks have, and that both have repeatedly behaved with a devil-may-care obliviousness to genuine national security interests.”
Mr. Benkler, a law professor, has argued that “Private Manning and Mr. Ellsberg (himself a Manning supporter) played a similar public role, that WikiLeaks behaved reasonably under the circumstances and that the revelations, including American forces’ complicity in abuses by Iraqi allies, understatement of civilian casualties and abuses by contractors deserve recognition, not criticism.”
They argue that their disagreements on this case are “characteristic of many who think about the WikiLeaks/Manning affair; public feelings range from respect to deep discomfort.”
In the 1971 Pentagon Papers case, Justice Potter Stewart wrote, “It is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy.”
However, it was Justice Hugo Black who ultimately carried the day when he wrote, “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”
Mr. Abrams and Professor Benkler ask, “What could be more destructive to an informed citizenry than the threat of the death penalty or life imprisonment without parole for whistle-blowers?”
They note, “Under the prosecution’s theory, because Private Manning knew the materials would be published and that Al Qaeda could read them once published, he indirectly communicated with the enemy. But in this theory, whether publication is by WikiLeaks or The Times is entirely beside the point. Defendants are guilty of ‘aiding the enemy’ for leaking to a publishing medium simply because that publication can be read by anyone with an Internet connection.”
“In a January hearing the judge, Col. Denise Lind, asked prosecutors directly whether they would have brought the same charges had Private Manning leaked the materials to The New York Times instead of WikiLeaks. The prosecutors’ answer was unambiguously yes,” they write. “That yes was not courtroom bluster, but a necessary concession regarding what their theory means.”
Mr. Abrams and Professor Benkler argue, “Nothing in that theory would limit its application to the release of hundreds of thousands of documents. It could apply as effectively to a single abuse-revealing document.”
The two men agree, “WikiLeaks is part of what the Fourth Estate is becoming, that the leaks included important disclosures and that their publication is protected by the First Amendment no less than the publication of the Pentagon Papers was.”
“Private Manning’s guilty plea gives the prosecution an opportunity to rethink its strategy,” they write. “The extreme charges remaining in this case create a severe threat to future whistle-blowers, even when their revelations are crystal-clear instances of whistle-blowing.”
Their conclusion: “We cannot allow our concerns about terrorism to turn us into a country where communicating with the press can be prosecuted as a capital offense.”
—David M. Greenwald reporting
[i]They argue that their disagreements on this case are “characteristic of many who think about the WikiLeaks/Manning affair; public feelings range from respect to deep discomfort.”[/i]
Let’s try respect to disgust. Those that are disgusted are at least as numerous as those that respect these actions of treason, and those that are disgusted are also disgusted with those that respect these acts of treason. But then that relationship exists and will always likely exist. The new stuff is the premise that a soldier and a once highly-regarded newspaper would have any excuse to argue.
It seems there is a growing population of US citizens that have lost the ability to see the line between political protest and actions that are just plain damaging to the country. It is exactly this lack of self-restraint that causes countries like Russia to end up going the opposite way. Those concerned about the impacts of this case to ongoing journalistic freedom, should join in support of the prosecution’s case or at least just keep their mouths shut. People died – including US soldiers and CIA operatives – as a result of these leaks. The leakers and publishers deserve to get the maximum punishment if not more.
“lost the ability to see the line between political protest and actions that are just plain damaging to the country. “
The problem I have is who gets to decide what that line is. The problem now is that you have the government – accused of wrongdoing – acting as the fox guarding the henhouse in determining what is legitimate and what crosses the line. I’m not comfortable with that.
The “line” can only be an individual judgement call. That is the problem… the line and judgement call has shifted for more Americans and much of the press to glee over damaging the country if it serves a political or ideological agenda.
I think of a business. The business has many employees, many manger, many departments and many projects scattered all around the country. Some individuals in the company make poor decisions and behave badly and maybe even illegally. An employee gets access to the information and releases it to Wikileaks and the NYT. Those two enterprises, of course, run with the stories. The company is damaged. Sales fall, the stock price falls, employees lose their jobs and stockholders lose their retirement savings.
What if that employee had just first taken the information to senior management first?
What if Wikileaks and the NYT had the sense to suggest to the employee he first take the information to management since publishing it would be damaging to the enterprise?
Responsible journalists of the past would have done exactly that.
I’m not comfortable with the massive release of documents that might have endangered my daughter’s life being protected by some strange theory of constitutional protection of ‘whistleblowers’. Manning didn’t use any discretion in what he was stealing and releasing. WikiLeaks is not a protected media source.
Don: I’m hardly convinced that your daughter was put in danger, but I’m not that interested in arguing that point. I’m more concerned with how you draw a line, where, and who decides. Plus a life sentence doesn’t sit well either.
I find it interesting that you lament the size and strength of government and yet posit the argument that you have.
[i]I’m hardly convinced that your daughter was put in danger, but I’m not that interested in arguing that point. I’m more concerned with how you draw a line, where, and who decides…[/i]
Anyone who works with a security clearance is endangered when others with security clearances don’t follow the rules that establish those clearances. This was a massive document theft and dump, potentially endangering counterintelligence actions, troop protection decisions, and more. I guess it’s up to you to tell me who you think should be making decisions about security for a military that is at war, and on what basis.
“Anyone who works with a security clearance is endangered when others with security clearances don’t follow the rules that establish those clearances.”
I expected that response from Frankly, not you. I think most of what was leaked was embarrassing to the US rather than of strategic importance.
David, there were [i]hundreds of thousands[/i] of documents leaked (“250,000 United States diplomatic cables; and 500,000 army reports sometimes called Iraq War logs and Afghan War logs” per Wikipedia). Manning was not using any discretion or even likely knew what he was stealing and leaking. It was a lot more than just the diplomatic cables that got so much attention.
My daughter had a security clearance. They are to be taken seriously when we are conducting counter-intelligence and counter-terrorism actions. If his intent was to obstruct the war effort, that merits a high level of punishment. I assume it is his intent that will be at issue in his trial on the counts he hasn’t pled guilty to.
You still haven’t told me who you think should be deciding these things if it isn’t going to be the military.
[quote]You still haven’t told me who you think should be deciding these things if it isn’t going to be the military.[/quote]
I do not know the “right” answer to this question, but having been in a non arms bearing branch of the military,
I can attest to the fact that the military is not adequate to the job of internal monitoring and is frequently in need of “oversight” or “whistleblowers” if you will. And the threat to military personnel is not limited to our
nominal enemies. Many female military members are subject to harassment, sexual harassment up to and including rape which is not adequately addressed within the normal military channels. I would like to say that the military was up to internal monitoring, but I know this is not true.
I too don’t have an answer to that question. I have yet to see a good and well-handled bureaucracy with regards to whistle blowing.
That’s why we have civilian oversight of the military. I’m not sure how you make a ‘well-handled bureaucracy’ to handle a massive violation of the law like this.
Do you approve of what Bradley Manning did? Do you think it’s admirable? I really can’t tell from your comments.
I agree with the authors of the piece I quoted on Manning
Frankly apparently he started leaking when his superior was uninterested in dealing with a problem:
[quote]In 2010, while stationed at Forward Operating Base Hammer in Baghdad, Pfc. Bradley Manning decided to approach a superior officer in his chain of command to voice his concern about something he had stumbled upon in his capacity as an intelligence analyst. His unit had been helping Iraqi federal police identify suspects for detention and discovered that fifteen men had been arrested for producing “anti-Iraqi literature.” After having a high-resolution photo of the “literature” translated into English, Manning discovered that the writing was hardly criminal; it was a “scholarly critique” of Iraqi Prime Minister Nouri al-Maliki. But his superior officer did not want to hear about it. [/quote]
Don: Specifically what information do you believe put your daughter’s life at risk?
David: [i]I agree with the authors of the piece I quoted on Manning[/i]
David: [i]Mr. Abrams and Professor Benkler deeply disagree on how to assess Private Manning’s conduct and the behavior of WikiLeaks.[/i]
You agree with authors who disagree with each other?
Yes. I agree with both their take on Manning, which I see as divergent but not completely inconsistent as well as their overall belief on the handling of the case.
Here’s what I mean:
[quote]Mr. Abrams, who represented the New York Times in the Pentagon Papers case, has argued that “both Daniel Ellsberg, who provided the documents to the newspaper, and The Times acted with far more restraint and responsibility than Private Manning and WikiLeaks have, and that both have repeatedly behaved with a devil-may-care obliviousness to genuine national security interests.”
Mr. Benkler, a law professor, has argued that “Private Manning and Mr. Ellsberg (himself a Manning supporter) played a similar public role, that WikiLeaks behaved reasonably under the circumstances and that the revelations, including American forces’ complicity in abuses by Iraqi allies, understatement of civilian casualties and abuses by contractors deserve recognition, not criticism.”[/quote]
I think Abrams is right that Manning probably could have taken more care in the manner, but I think that the issues Benkler raises about abuses and complicity resonate with me as well.
In the end, Hugo Black is where I ultimately come down.
[i]Specifically what information do you believe put your daughter’s life at risk?
[/i]
I said, [i]”I’m not comfortable with the massive release of documents that [b]might have[/b] endangered my daughter’s life.”[/i]
Fortunately, she had left Anbar province by the time he released the documents. She was an Arabic linguist with security clearance, so I’m guessing you can figure it out. Someone who downloaded and released 750,000 documents was obviously not reviewing them, redacting information, or considering any special sensitivity to ongoing operations. There were still teams working in Iraq when he released all of his material. Unlike the Pentagon Papers, which were a retrospective study, Manning’s actions had the potential to identify and endanger existing personnel.
[i]
I find it interesting that you lament the size and strength of government and yet posit the argument that you have.[/i]
A fair point. From a Constitutional perspective, defending the country is the primary function of the federal government. It is one of the few services the government provides that cannot and should not be outsourced. I want it large and robust because I think it is needed.
The discovery the California state parks agency hiding $50 million is an example of the government being a rich resource for wistle-bllowing Pulitzer Prize-winning journalism that would improve the country, not damage it and put America service personnel at risk.
I think this last point is the “line”. Does the whistle blowing damage or help the country? What PFC Manning, WikiLeaks and the NYT all three conspired to damage the country. I don’t know what PFC Manning’s motivation was. However it is clear that Julian Assange the NYT just wanted to embarrass the US and hurt the Commander In Chief for their own personal gain. They put American Service personnel at risk for their own personal gain. All three should be convicted of treason.
The problem I have starts with the disconnect between your views on government versus military. I understand you believe that the military is necessary and you wish to have it large and robust, but that does not negate the problems inherent in any bureaucracy. So even though necessary, you still end up with the downsides of government.
So then we get to the issue at hand, does the whistle blowing damage or help the country. You believe without stated evidence that the goal of Manning, WikiLeaks and the NYT times was to damage the country.
But you’re looking at that very narrowly assuming that the goal was to embarrass the US and hurt the President for personal gain. Whereas, my read of Manning is that he felt what was happening was wrong and he blew the whistle to try to expose it and hopefully end the practices. We can argue as to whether he did the right thing but his motivation seemed to be to help the country.
Manning got personal gain?
[i]Manning got personal gain?[/i]
Fame, notoriety, attention, revenge, book deal, etc. Yes, I think is highly likely that he was motivated by these things much more than any noble cause.
As Don Shor points out, he didn’t just release a few targeted documents, he released a library.
I am no fan of government bureaucracy. However, the military is special in this respect. Wars are always plagued with bureaucracy, and probably for good reason. If the prison operation had been overseen with greater bureaucracy it is less likely that the soldiers and junior officers would have misbehaved so badly. Wars are also always imperfect. We should not judge the decisions and actions on the battlefield through the filter of civilian life.
[quote]We should not judge the decisions and actions on the battlefield through the filter of civilian life.[/quote]
On this point I could not disagree more. It is exactly through the filter of civilian life, civilian moral standards, and civilian values that actions on the battlefield should be judged. What is our military if not the defenders of our way of life, which we presumably believe to be superior to that of our enemies. If we are willing to use the same inhumane means such as rape, torture, indiscriminate killing of civilians which we abhor in others, what is there left to defend ? And I think there is strong evidence that the founders of our country believed the same in that the President of the United States, or Commander in Chief, is a civilian, often without military experience himself.