Thursday, June 6, 2013

What if Spc. Manning had gone to a lawyer instead of to Wikileaks?


The trial in Specialist Bradley Manning's court martial began this week, and I am in pain as I think about how different his case might be if he had consulted with an experienced whistleblower lawyer before he made his disclosures to Wikileaks.  Could a lawyer have saved him from facing a life sentence? Could his concerns about excessive violence in Iraq have had more impact if he had made his disclosures through different channels?

Consider the Military Whistleblower Protection Act, 10 U.S.C. § 1034. In Section (a)(1), this Act states, “No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.” Section (a)(2) adds this proviso, “Paragraph (1) does not apply to a communication that is unlawful.” While the extent to which the law protects disclosures of classified information to members of Congress has yet to be fully developed, a lawyer can help military personnel assess the risks and benefits of making disclosures to particular members of Congress. Incidentally, this same law specifically protects disclosures of “sexual harassment or unlawful discrimination.”

Consider further the Lloyd–La Follette Act,  5 U.S.C. § 7211.  This law states in its entirety, “The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.” Congress passed this law in 1912 after postal officials retaliated against workers who disclosed unsanitary conditions in Chicago postal buildings.  The law contains no exceptions for classified information.

Combined, one must wonder what, if any, disclosures to members of Congress could be unlawful. Ordinarily, the Military Whistleblower Protection Act would also protect subsequent disclosures of a service member's letter to Congress. It would take the unusually courageous whistleblower to test whether this doctrine would apply to classified information.  However, redistribution of one's letter to Congress would not be necessary if a member of Congress chose to share that information on the floor of the House or Senate.  Members of Congress enjoy Constitutional protection for their “Speech and Debate.”

Obviously, the concerns that whistleblowers have about retaliation could be alleviated with better whistleblower protection laws.  If service members trusted their Inspectors General to protect them from reprisals, then fewer would feel compelled to make leaks to the media.  Civilian personnel now have significantly improved rights under the Whistleblower Protection Enhancement Act (WPEA) passed last December.  Even civilian employees with security clearances can bring their discrimination and retaliation cases to jury trials under Title VII of the Civil Rights Act.  Would we see the current level of controversy over protecting victims of sexual assault if service members had these same rights? To the extent that our laws and institutions give potential whistleblowers confidence that they can raise their concerns without reprisal, and have them properly and timely addressed, those potential whistleblowers will be more likely to pursue the official channels instead of going to the media.

There is no guarantee that Spc. Manning could have avoided prosecution by obtaining expert legal advise on how to make his disclosures.  Indeed, the present administration has shown an unprecedented willingness to pursue criminal prosecution of national security whistleblowers.  See, for example, Prof. Richard Moberly's article, Whistleblowers and the Obama Presidency: The National Security Dilemma, Emp. Rts. & Emp. Policy J., Vol. 16 (2012). Still, the legal defenses available to Spc. Manning could have been greatly enhanced if he had trusted a lawyer instead of internet hackers with his trove of information and concerns.

     -This blog entry was prepared by attorney Richard Renner, who joined the firm in May 2013.  You may reach him at rrenner@kcnlaw.com or 202-331-9260.


2 comments:

Alan Kurtz said...

Mr. Renner, thank you for this timely and insightful post.

By all accounts, Bradley Manning is a computer whiz and information junkie, highly trained by the Army in data mining and independently resourceful in electronic intelligence gathering. As an avid Google user, it would've been a cinch for him to find the Wikipedia MWPA article and other sites explaining his legal options.

Instead, after deciding to expose what he considered war crimes—none of which was ongoing—he went straight to organizations in the business of making headlines: first The Washington Post, next The New York Times (neither of which seemed interested), and then to WikiLeaks, which was only too happy to publish the 750,000 classified documents he dumped on them.

"If service members trusted their Inspectors General to protect them from reprisals," you speculate, "then fewer would feel compelled to make leaks to the media."

Yet neither Manning nor his lawyers have claimed he didn't trust the IG. As far as I know, they've never mentioned the MWPA. It's as if Manning, who at the time of his leaks was a Specialist E-4 with 2½ years of service, had never heard of an Inspector General. Sorry, as a veteran, I don't buy it. Soldiers are taught about the IG during basic training—which Manning underwent twice. It's obvious that he deliberately blew off this option, and the alternative of communicating with an antiwar member of Congress, because he was after the instantaneous rush of mass media.

"It would take the unusually courageous whistleblower," you write, "to test whether this doctrine [i.e., going to a congressman per the MWPA] would apply to classified information."

Yet that would not have been necessary. To attract congressional attention, Manning may have had to share some classified documents (though certainly not three-quarters of a million). But once aroused, Congress wouldn't have had to publish sensationalistic classified material to stimulate the outrage that Manning sought.

All of which suggests to me, at least, that Bradley Manning deliberately and recklessly eschewed the Military Whistleblower Protection Act for the sake of his and his issue's notoriety. Under the circumstances, it's hard to consider him a whistleblower at all.

Unknown said...

Dear Mr. Kurtz:
It appears to me that you and I are in agreement on the main point of my blog post: service members have some options about how they raise concerns, and it would be best if they sought out legal counsel to help them pick the best way for them to raise their concerns.

Since I wrote this last May, Spc. Manning has announced that she prefers to use the name Chelsea Manning. I do not know the details about whether she was familiar enough with any Inspector General's office to make an assessment about its trustworthiness, or even if she was aware of such offices or the other lawful channels for raising concerns about classified matters. It is much easier to judge someone's conduct with the benefit of hindsight.

Whether Ms. Manning "deliberately and recklessly eschewed" the lawful channels, I still find it appropriate to call her a whistleblower. She had sincere concerns about the unnecessary loss of civilian life in Iraq and misconduct in the war, and she made disclosures about that misconduct. My sense is that she was young and uninformed about the available legal options. Too many are unaware. That is why our public debate about these issues is beneficial.

Richard Renner
rrenner@kcnlaw.com