Where's The Line Between Whistleblowing And Criminal Leaking Of Classified Works?

from the is-there-a-line? dept

Nearly 40 years ago, Daniel Ellsberg leaked what's now known as The Pentagon Papers to the NY Times, exposing a "classified" study that showed how the Johnson Administration had regularly (and systematically) lied about the war in Vietnam. The Nixon administration claimed that Ellsberg violated the Espionage Act of 1917, since they had no authority to share those classified documents. The administration also sought injunctions against newspapers for publishing excerpts of the documents. Eventually, the Supreme Court allowed the newspapers to publish. As for Ellsberg, his case went to trial, but it was thrown out due to government bungling, including wiretapping him without a warrant and slapstick government attempts to spy on and/or discredit Ellsberg. These days many people consider Ellsberg quite a hero for whistleblowing on illegal activities by the US government.

This all has become very pertinent again, as it appears that the US Army has finally charged intelligence analyst Bradley Manning with violating the Espionage Act for his leaking of certain "classified" information to Wikileaks.

And that leaves us back to square one of a very difficult question: what's the difference between whistleblowing and criminally leaking classified works? It seems like the line is pretty clear. If the "leak" is designed to expose otherwise illegal activities, that should be protected in some manner. If the leak, on the other hand, has nothing to do with exposing illegal activities and, instead, is just to reveal secret (but legal) information, it probably falls on the other side of the line. Where Manning's actions fall on this spectrum are still not at all clear -- but it seems like folks are rushing to push him into one or the other camps already. Hopefully some more details will come out and it becomes clear where he really falls (no matter what a court may decide...).


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    nader paul kucinich gravel mckinney, Jul 6th, 2010 @ 6:59pm

    Soldier Of Love

    We cut 'em in half with a machine gun and give 'em a Band-Aid.
    It was a lie.
    And the more I saw them, the more I hated lies.

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    AdamR (profile), Jul 6th, 2010 @ 7:02pm

    I think the kid went overboard with the release of the diplomatic messages, for me that's when crossed a line he should not have.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Jul 6th, 2010 @ 7:08pm

    leaking just to play "gotcha" politics is something that merits no protection.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Chris Mikaitis (profile), Jul 6th, 2010 @ 7:13pm

    What's the difference?

    So, I'll likely get shot down for this, but I don't understand the difference either way. As a supporter of both a transparent government and the free flow of information to make everyone better off in the end, I wonder why we create the line of 'good vs. bad' leaks. I'm going to put aside sensitive government info. for a second to try to make my point.
    Justin Beiber was recently voted to go to North Korea based on an online poll. The poll was rigged (or at least was gamed by a determined set of people). Similar things have happened with Time's person of the year for 2009 (moot, and marblecake), The governments attempt to vote for the name of space equipment (Steven Colbert won that one), and even a specific racy picture of Demi Moore, which rose to the top of Google search thanks to Tosh.0. We need all these things to secure the future of 'voting' through the internet. They demonstrate the flaws, and teach us at the same time.
    When I found out that 'terrorists' were able to get video feed from our drones... (I don't have a link... look it up)... I was upset... not at the terrorists, but at the government that kept it so secret, it couldn't be tested in a real market... I was VERY upset at the government to know that this problem couldn't be solved for several years.
    This gets back to the original point... government secrecy only harms the government, which is unable to test their secrecy in real terms. Whistleblowing is another way of demonstrating that either a) you shouldn't be doing something, or b) that you are terrible at hiding it. Both of those things are better discovered earlier than later.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    jjmsan (profile), Jul 6th, 2010 @ 7:35pm

    Re: What's the difference?

    They could receive the feeds because the transmissions were not encrypted. They did not encrypt the transmissions because primitive tribesman wouldn't know about computers. It had more to do with stupidity than not being tested in the market

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Pwdrskir (profile), Jul 6th, 2010 @ 8:01pm

    In his own words...

    D. Ellsberg is very clear that he assumed he must be breaking some law when he released The Pentagon Papers and was waiting for retribution, but later found out –
    “…I didn’t understand that we don’t have an official secrets act in this country, criminalizing the disclosure of classified information, except for certain narrow forms of information which are not involved in either The Pentagon Papers or in these cases. Communications intelligence, nuclear weapons data, the identities of covert agents like Valerie Plame who was disclosed by the White House. Those things are subject to law. The classification system, as a whole, is an administration system that does not have legal force in this country. We’re almost alone among countries in that.”

    A must watch video to understand D. Ellsberg’s position and a better understanding of our government’s secrecy.
    Questions at 3:11 and 5:02.
    http://www.youtube.com/watch?v=Yp6ifG4SAUA&feature=related

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Jul 6th, 2010 @ 9:15pm

    He probably has air-conditioning in his cell :)

    http://www.dinosaursandrobots.com/2010/05/split-system-air-conditioning-in-war.html

    I don't think this will change any time soon, people in power have secrets and they want those secrets to be kept and when they are not they will punish someone for it.

    That is why deepthroat was incognito and did go to a lot of trouble to keep his identity secret, that is why you don't brag about those things in public to others not even your dog(he may be bugged).

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Wolfy, Jul 6th, 2010 @ 9:23pm

    As a former Army officer, I was thinking there are problems with prosecuting conscientious leakers. There clearly needs to be a way for the public to monitor and guide the military. Prosecuting people for getting "non-enemy-aiding" stories out with the same fervor reserved for someone aiding and abetting the "enemy" is a bad idea.

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    Bob V (profile), Jul 6th, 2010 @ 10:02pm

    I've read this story a few times now and I'm still not sure where I stand.

    I'm not sure of the guys age but since he is a Pfc I'm guessing fairly young (18-20). He released a lot of classified information to a foreign national. If there was something he saw that bothered him enough to leak information to a foreign national why didn't he attempt to use the processes in place to get an investigation started. If he did do that then what happened?

    Even if some feel it is okay to leak the information this time what about the next time some young private decides to leak information. Do you think some kid who just graduated high school has the right to decide what military intelligence information should and should not be released to the world.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Jul 7th, 2010 @ 12:53am

    "It seems like the line is pretty clear."

    That's the exact opposite of what I was thinking.

    "If the "leak" is designed to expose otherwise illegal activities, that should be protected in some manner. If the leak, on the other hand, has nothing to do with exposing illegal activities and, instead, is just to reveal secret (but legal) information, it probably falls on the other side of the line."

    So it depends on someone's opinion of what's legal or not? That doesn't strike me as a clear line at all.

    The truth is there is no line. What could legitimately called "whistleblowing" can also be illegal.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Sara, Jul 7th, 2010 @ 3:10am

    Re:

    I disagree since the some diplomats have been abusing their authority (or rather the lack of the other government's authority) to commit criminal acts and get away with it. At least, that is the impression I've been getting about the documents. I think the Espionage Act has been a horrible abuse of power by our government since it was created. It is through this act that Eugene V. Debs was sent to prison after speaking out against the military draft, because it "obstructed recruiting" for the military. I don't care what the Washington Post and an ex-hacker wants to say about this young man, the fact he leaked it to WikiLeaks, not on his blog or facebook, is enough for me to believe he had good intentions of improving our country. It was not some secret weapon plans leaked to Iran. This information was for us, the public, so we can hold our politicians and military accountable for their actions. I am scared for Bradley Manning and for the precedent that might be set if he is convicted.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Sara, Jul 7th, 2010 @ 3:30am

    Re:

    I agree with you that "true" military secrets probably shouldn't be accessed by someone with so little experience, but that choice is already in military control and I bet they are regretting it today.

    But your outrage about a foreign national is very misplaced. Julian Assange is from Australia and he was not giving this information to the Australian government to use against the United States! They wanted to give this information to us, the public. We cannot be a democracy without being informed about the decisions we are making! These documents were military secrets, because they didn't want to get into trouble from us, the public, the citizens of the United States and the people they are suppose to serve and protect. This was not instructions on making a nuke given to Iran (something that we would need to have criminal charges to prevent). This was information on the criminal activity of U.S. diplomats, censored policy, and videos of the military disregarding civilian casualties. Two of the collateral damage were reporters and even their newspaper was not able to get the footage under the Freedom of Information Act. Not because this footage would endanger lives, but because the military did not want to be held accountable for their actions. I believe Bradley Manning is 22 years old and regardless of his age or personal issues, he is a hero for our country. This footage was several years old by the time Manning saw it. The proper channels to start an investigation are being used only to censor information by people who think they can get away with it.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Jul 7th, 2010 @ 4:18am

    Re:

    It is illegal to cut civilians into tiny pieces with heavy artillery, but those weren't civilians. Clearly, they were non-uniformed combatants; not even protected under the Geneva convention!

    What's that? They were non-combatants? Oh...

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    Dark Helmet (profile), Jul 7th, 2010 @ 6:08am

    Re: Re:

    "What's that? They were non-combatants? Oh..."

    Not just non-combatants. At least one of them was a member of the mass media (I can't remember if it was AP or Reuters). What this kid did was nearly heroic. His only misstep was not at least attempting to go through American media channels first and foreign channels second.

    As for the "should we really trust an 18-20 year old to know what needs to be exposed or not"....Jesus Christ, you trust him with a 50cal gun but you don't trust him to know right from wrong? C'mon people, the people in our military are heroes, the people that run the military are not....

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Jul 7th, 2010 @ 7:00am

    Re: Re:

    I'm not defending the killing of civilians. Unfortunately mistakes happen with sometimes disastrous consequences. There may have been decisions made about the attack which were wrong, I don't know because I haven't seen any information so I'm just making some assumptions which may be completely off base.

    The military is made up of over a million disparate individuals. When someone says the military is trying to hide something my first thought is BS. How can a million people agree on anything, let alone that a single morally wrong action is worth hiding. Saying the military is doing this or that is the same as using the ambiguous "they" are doing this or that, it's a cop out. If you don't trust the military as a whole to do something why would you trust any single individual element of the military to do the right thing. If you trust that single element then there must be other elements that are worthy of trust as well.

    When you say "true" military secrets what do you mean. Who gets to decide what is a true secret. Was the raw video of an attack in progress showing how our forces respond and with what capabilities a military secret. Should that video be given to anyone who request it just because they request it. You say that the video doesn't endanger lives but how do you know that.

    This is just my opinion and could be completely wrong but a helicopter pilot isn't just watching a video from a desk. Hes at low altitude in a combat situation having to watch for people shooting at him, his instruments, and everything else that is involved with flying and shooting at the same time . He sees what he believes to be people moving with weapons. HE attacks and its not until much later that its found out that they are civilians without weapons. The chain of command looks at what happened and determines whether he was right or wrong in his decision making process. A couple years later some private comes along sees the video and releases it not to American journalist, not to American congressmen or senators, not to the inspector general but to a foreign national for dissemination to the world. If he was looking to make things right why didn't he go about it in a way to actually do that. Instead he did things in a way to embarrass the military and America.

    How and why was someone able to access information and disseminate it. Who's fault was it and how are they going to be punished. PFC Manning screwed his buddies and fellow soldiers.

    You say he is a hero, I'd like to know why.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Bob V (profile), Jul 7th, 2010 @ 7:26am

    Re: Re: Re:

    I agree with you on the nearly heroic part.

    I'm just throwing this out for arguments sake. If the American government is viewed as being untrustworthy, why would anyone believe that the American media is anymore trustworthy. They are by and large in a business that is failing left and right. To keep their jobs they need to do something that gets attention. I don't trust people as a whole to do anything but what is in their own self interest. Not that people aren't trustworthy but a large chunk of people will do morally ambiguous things when push comes to shove.

    AS to trusting a private with a gun. Of course I do. Why wouldn't you trust soldiers with guns. They have been trained in how to use them. Do I trust a young private to make decisions about what is classified and what isn't. Nope not at all. He just doesn't have the training or life experience for the most part to make those decisions. Hopefully he can make decisions as to what is morally correct and if he can consistently make those correct choices hopefully he will get the experience and training and move into a position to exercise those choices.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    Pickle Monger (profile), Jul 7th, 2010 @ 7:43am

    Right/Wrong?

    A very, VERY, thorny issue...

    As far as I see it there are the following givens that must be considered:

    1. Spc. Manning claimed to be the source of the "Collateral Murder" video.

    2. Spc. Manning claimed to have given hundreds of thousands of classified documents to WikiLeaks.

    3. Spc. Manning described to Adrian Lamo how he bypassed the security at FOB Hammer and boasted how unprotected it was.

    4. Rules and regulations the military depends upon to function properly.

    Let us ignore the question whether or not Spc. Manning is in fact the source of the leak as it is not germaine to the points I would like to make.
    I will start with the last and the first givens sort of simulateneaously. Whether one agrees with the actions of the military today, yesterday, 50 years ago or 100 years from now, as long as one agrees on the need to have the armed forces, it is imperative to understand that their rules exist for a very good reason. The soldiers depend on each other with their lives. Questions of whether a soldier can be trusted destroy unit cohesion (that is the way human nature works). Couple of weeks ago Brig.-Gen. Daniel Ménard was recalled after allegations of an affair with a non-commisioned subordinate had surfaced. The soldiers must not have any doubts that they can depend on each other regardless of all other considerations (romantic, political, etc.) Also, the military is barred (and for good reasons) of getting ivolved in politics. A prime example of that is the Fact that General Stanley McChrystal was called in to make a personal apperance in the White House and offered his resignation. Spc. Bradley Manning knew the laws and he chose to ignore them. We all should do what we think is right but we all must be willing to accept the consequences of our own actions. Spc. Manning chose to leak the documents an outside source. I cannot say whether he had other options, perhaps going to the top of his chain of command advising the Army Chief of Staff and President Obama before contacting WikiLeaks. That would have been bad for his career but not as bad as giving the materials to a foreign organization. Though I do believe that the revelation of those tapes is a good thing.

    But Spc. Manning did contact a foreign source and he did give them the videos. And that brings us to the given number 2. There is no way that Spc. Manning read through all 260,000 of diplomatic cables so there's no way he could have know whther they contained evidence of a cover-up. So even though he could claim he was doing the right thing leaking the video, he had no business leaking diplomatic dispatches. I am sorry but this does qualify as treason.

    And finally, even if we accept the fact that Spc. Manning was acting for a higher purpose in leaking the videos and the documents he MOST CERTAINLY had no business contacting a journalist to brag about how easy it is to penetrate security of the base. That is treason as well.

    So he could have just gotten off with a conduct unbecoming had he only released the video(s). But coupled with the 260,000 diplomatic communications and instructions on penetrating base security to a journalist Spc. Bradley Manning has clearly went WAY too far. Provided, of course, that he did not lie to Adrian Lamo about his activities in the first place.

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    Dark Helmet (profile), Jul 7th, 2010 @ 7:48am

    Re: Re: Re: Re:

    "I'm just throwing this out for arguments sake. If the American government is viewed as being untrustworthy, why would anyone believe that the American media is anymore trustworthy."

    Most aren't. You don't try American media first because you expect results. You do it so you can say you did it. It isn't enough to just do what's right, you have to do it in a way that makes your adversaries look bad no matter WHAT they do. Imagine if he tried American media first, and the military used their power to surpress American media reporting on this. Then he goes and releases the tape to a foreign outlet. That makes those that are doing wrong in our govt. look TEN TIMES worse. If the point is to draw attention to what some are doing wrong, that's the best way to do it while also partaking in a little CYA....

    "Not that people aren't trustworthy but a large chunk of people will do morally ambiguous things when push comes to shove."

    Hm, not sure I agree. I actually think the majority of people in this world are actually fairly strict in following their morals. The issue is that morality is so diverse. But people, by and large, will sacrifice themselves to do what they think is right. Unfortunately, none of those people appear to be in government....

    "Do I trust a young private to make decisions about what is classified and what isn't. Nope not at all. He just doesn't have the training or life experience for the most part to make those decisions."

    Clarification: I didn't say I trusted a PFC class army private to know what is classified or not. However, I DO absolutely trust our soldiers to know right from wrong, particularly when it comes to executing war, which is something they HAVE been trained in. This guy saw something that he knew was wrong, and he exposed it. If the military had any balls at all they would promote him, not charge him in a farce of a military tribunal....

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    Bob V (profile), Jul 7th, 2010 @ 8:56am

    Re: Re: Re: Re: Re:

    "This guy saw something that he knew was wrong, and he exposed it. If the military had any balls at all they would promote him, not charge him in a farce of a military tribunal...."

    Which brings it back to the original point of the post. Because of his methods his actions were criminal in my mind. I don't doubt that he felt it was wrong and something had to be done. Trying to make things right the way he did was wrong. In my head his motives while based in a morally correct choice were immoral. In my little world (that doesn't always agree with the rest of the world) the ends are important but the means are more important.

    I think in pickle monger's comments below he pretty much sums up my thoughts much better than I could say it.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Stephen, Jul 7th, 2010 @ 9:16am

    Public vs Private = Whistleblower vs Spy

    When I read this article I thought the difference in a whistleblower and spy was that the former was rather indiscriminate and generally public as to whom would read and use the information and espionage is mostly secret and their misbegotten information is intended for one or a few sources.

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This