More Thoughts on Whistle-Blowing and National Security

The outing of Army Specialist Bradley Manning for his alleged role in leaking classified documents to Wikileaks raises a number of questions in my mind about the relationship between whistle-blowing, human rights and national security. I don’t have a lot of answers, so this post is mostly food for comment fodder.

Question #1: To what extent are whistle-blowers protected under human rights law from recrimination? This is a topic about which I actually know very little, and have also found very little on national security law blogs in the last day or two (please send links if you know of them). Of course there are various domestic laws that provide such protection – in the US they vary by state. Various other countries have established similar rules. And the European Parliament has recently adopted a resolution to protect those who leak information to “stop wrongdoings that place fellow human beings at risk.”

At the global level, I don’t know of a specific provision in international human rights instruments that provides such protection, nor have I run across this as a salient issue in my study of the human rights movement. (Doesn’t mean it’s not there.) However, there are global whistle-blower protection laws on the books as of 2003 in a separate set of treaties governing corruption: Article 33 of the Convention Against Corruption provides for

“protection against any unjustified treatment for any person who reports in good faith and on reasonable ground to the competent authorities any facts concerning offenses established in accordance with this Convention.”

Some of these terms would be a bit ambiguous in this unfolding case. (Did Manning act “in good faith?” when he leaked the Collateral Murder video or when he threatened to leak the additional diplomatic cables? Is Wikileaks a”competent authority?”)

All that aside, these emerging rules primarily apply to employees of corporations. While the government is also an employer, I think the law may be a bit more muddled, particularly when national security is at stake. My understanding is that servicepersonnel are protected for whistleblowing under the UCMJ only if they make their report to specific authorities such as Congress, an Inspector General, DoD audit, Law Enforcement Investigation Agency, or commanders and others in the chain of command (see Article 4 of DOD Directive #7050.6).

Now, the DoD does have a poor track record of responding to and protecting such whistle-blowers when they publicly file complaints: Joseph Darby, who reported the Abu Ghraib scandal, was outed by Donald Rumsfled during a Senate hearing, and Lieutenant Colonel Darrel Vandeveld may be facing dishonorable discharge for helping bring to light problems with the military commissions system at Guantanamo Bay.

So it will be interesting to see what Manning gets charged with, and how the National Whistleblower Protection community responds given the illegality of his approach, weighed against the fact that at least in the case of the video he had a plausible case to make that the story should get out. Whether the same goes for the 260,000 diplomatic cables Manning presumably also has in his possession depends a lot on what’s in them.

Question #2: Where do we draw the line between whistle-blowing in the human interest and “whistle-blowing” aimed at simply embarrassing your superiors? This is really two questions. One is about how much we care whether a person’s motivations are genuine irrespective of the merits of the case. But secondly, what is the burden of proof for demonstrating genuine wrong-doing if you’re going to “blow the whistle,” rather than simply providing information that will look bad to others though it may not be criminal? As I recall, the original video itself was rather confusing on these points.

Question #3: How much responsibility does an organization like Wikileaks have for making these distinctions during their vetting and dissemination process? Conventional journalists, to whom whistle-blowers would have traditionally turned, have a variety of professional standards governing the sourcing of inflammatory or damaging material. Social media has changed the game in certain ways – particularly in protecting confidentiality -but it would be a shame if one of the side effects of such developments are a reduction in the public’s willingness to trust a leak due to uncertainty about the reliability of the source.

Question #4: To what extent should the US government – or any government – be hiding the documentary record of armed conflict from its public in the first place? A norm of greater openness about the human costs of military operations could increase the amount of care taken by the government to reduce those costs and ensure that when they occur, they are within the bounds of international law. Indeed, Robert Mandel has argued that this effect is already taking place to some extent.