Hard row to hoe if you blow the whistle

By Peter Buck

Do those who spill the beans aid the enemy or expose war crimes?

Whistleblower Private Bradley Manning may pay dearly for providing a huge trove of classified information to WikiLeaks. Photo / AP
Whistleblower Private Bradley Manning may pay dearly for providing a huge trove of classified information to WikiLeaks. Photo / AP

It's tough being a whistleblower as Private Bradley Manning has found.

The US Army intelligence analyst is alleged to have provided a huge trove of classified information - everything from Iraq and Afghanistan war logs to 250,000 diplomatic cables - to WikiLeaks in 2010, triggering enormous media coverage and a witch hunt by US authorities to find the leak.

Manning is being prosecuted by a military court and could face life in prison. His trial has been suspended while a judge determines if the 900-plus days Manning languished, sometimes in solitary confinement, before trial - forced to stand or sit upright without back support in a 1.8 by 2.4m cell - was a denial of due process rights and hence unlawful.

Accused of "aiding the enemy," Manning insists he was motivated by the truth. Supporters consider him a whistleblower who exposed war crimes.

Manning's case illuminates the risks whistleblowers face in public and private spheres. It also raises a key concern: when does secrecy impede the public's right to know what governments do in their name?

On the plus side, the Obama administration signed the Whistleblower Protection Enhancement Act [WPEA] last month after years of partisan sparring. It grants government workers who identify fraud, waste and abuse free speech rights so they can amplify their concerns in jury trials.

The White House also issued a Presidential Policy Directive to extend free speech rights to national security and intelligence staff. Both moves have a crucial caveat: whistleblowers are not protected if they talk to media.

Exposing corporate malfeasance is easier. Since the 2002 Enron scandal, Congress has passed 11 laws to help employees blow the whistle before a jury in federal court, though anomalies persist. Last week, Eric Ben-Artzi, a quantitative risk analyst, and two other whistleblowers, alleged a $12 billion fraud at Deutsch Bank. Studies prove whistleblowers reveal more fraud than police, auditors and internal compliance measures combined.

Meanwhile, the Manning case is one of half-a-dozen government cases highlighting the risks whistleblowers faced, while arousing suspicion the Administration has used national security to cover-up wrongdoing.

Manning is charged with 22 offences under the draconian 1917 Espionage Act and the Uniform Code of Military Justice. Previously reserved for spy cases, the Obama Administration has used the old law to prosecute six government workers, which is more than all the previous administrations put together.

"No other national leader has come close to President Obama in terms of making it easier for employees in his own administration to criticise his policies," says Tom Devine, legal director with the Government Accountability Project and the author of the book The Corporate Whistleblower's Survival Guide.

"On the other hand, the national security prosecutions have created a severe chilling effect on freedom of speech generally."

Manning is being tried by the Defence Department, but the Justice Department has prosecuted five others, some for alleged media contacts: State Department intelligence analyst Stephen Kim, National Security Agency staffer Thomas Drake, CIA employee Jeffrey Sterling, FBI linguist Shamai Leibowitz and John Kiriakou, who wrote about CIA waterboarding.

While the Administration is quick to divulge classified material, such as the raid that killed Osama bin Laden or successful drone strikes, when it suits them, critics charge the 1917 law is used to cudgel whistleblowers who shed light on illegal surveillance, torture and rendition. In the Manning case he allegedly downloaded classified material that 4.2 million had security clearances for.

One problem is the sheer volume of classified material, a process intensified during the Bush Administration when "national security" was a catch-all excuse to conceal information.

This trend parallels the escalation of covert drone strikes in Iraq, Afghanistan and elsewhere, mostly launched by the CIA and shrouded in secrecy, a disturbing echo of clandestine US measures in the Vietnam War, exposed by Pentagon Papers whistleblower Daniel Ellsberg in 1971.

A recent report from the Public Interest Declassification Board [PIDB] advised US security rules were inadequate for the digital era, hiding large amounts of information, a trend that "blurs the focus on what truly requires protection, and fails to serve the public interest".

Reformers have their work cut out. The Bush Administration's obsessive secrecy forged around 100 new "pseudo" classification categories, where almost anything could be deemed as secret at the whim of individual bureaucrats. Indeed, while WikiLeaks is blasted for endangering US security, Manning's alleged leaks amount to under 1 per cent of what was classified last year.

"At its most benign, secrecy impedes informed government decisions and an informed public; at worst, it enables corruption and malfeasance," warns the PIDB, suggesting leaks have increased as the state stifles material. But where do governments draw the line between accountability and national security?

"Whistleblowers have to be very careful that they restrict public releases to evidence of fraud, waste, abuse, human rights violations or other government misconduct," says Devine. While the video of a US helicopter gunship crew killing 11 civilians, allegedly revealed by Manning and posted on YouTube, may indicate a war crime, claims he endangered US agents by identifying them arguably violated national security.

Whatever Manning's fate - and defence lawyers are trying to get it dismissed on the grounds harsh treatment in captivity almost pushed their client to suicide and amounted to torture - he has taken a hard road.

"It's always extremely dangerous to challenge abuses of power," says Devine.

"Those who abuse power have the weapons to smash those who threaten them. Blowing the whistle will always be a life crossroads choice, and likely the most dangerous, high-risk decision of any person's life. That's not going to change just because we get legal rights."


Keeping the lid on:

2009 Obama Administration takes office, promising transparency in Government.
2009 Denied 466,402 Freedom of Information Act requests during the year, up 50 per cent from 2008 when George W. Bush was President.

- NZ Herald

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