Sunday, July 1, 2012

Whistleblowing and Publishing: Doing it Wrong

Visit the comments section on any news story about Bradley Manning or Julian Assange, and you'll hear a story repeated over and over by devoted supporters: Bradley Manning is a heroic whistleblower who fulfilled his highest duty as a soldier by revealing war crimes being kept hidden from the American people, and Julian Assange is the brave publisher who shared the shocking truth with the world.  Both are now being unfairly persecuted because the revealed truth threatens the criminals in power, who will surely torture and execute Assange, if only they can get him to Sweden first.

The problem with this story is that none of that is true.

Manning is accused of exceeding his authorized access to government computer networks to copy hundreds of thousands of classified files, which he then gave directly, without reading, to Julian Assange and WikiLeaks.  Manning's supporters will tell you he had no other choice, he had to get the truth about war crimes out to the American people somehow, and WikiLeaks was the only way he could be sure of doing that.

Leaving aside the question of how Manning could possibly have known of crimes shown by documents he didn't actually read, many of his supporters seem completely unaware that soldiers who discover wrongdoing actually have a lot of options to report it.  It's a false dichotomy to claim that Manning's choices were to either keep silent or slip the data to WikiLeaks.  Perhaps non-American supporters can't be expected to know obscure American laws such as the Military Whistleblower Protection Act, but Manning, like any US soldier, would certainly have been aware of it.

When informed of the reporting options that Manning had, his supporters often dismiss them out of hand, claiming that America is so corrupt that if Manning had used the legal whistleblower options, the truth would've been covered up or he would've faced retribution.  The recent experience of Lt. Col. Daniel L. Davis proves that's completely untrue.

In an excellent post on the Empty Wheel blog, Davis's actions are shown in stark contrast to Manning's.  Davis became aware of wrongdoing through the normal course of his duties, he didn't just appoint himself an investigator entitled to hack into and explore whatever files he was curious about.  Once aware of wrongdoing, Davis wrote reports of exactly what was wrong and the evidence that backed his claims, then he submitted them through the same legal channels that were available to, but ignored by, Manning.  These include military Inspectors General, members of Congress, and armed forces investigators, but not random foreigners who happen to run leaking websites.

Davis's reports of wrongdoing were published in the New York Times, Armed Forces Journal, and Rolling Stone, exposing the truth to the public just as well as any WikiLeaks release.  Instead of being arrested and facing a court martial, Davis was invited to speak to members of Congress, who used his information to support their efforts to end the war.  Crucially, because Davis's reports were legal, the focus of the media was on their content, not the fate of the man who revealed them.  By choosing to take the illegal route, Manning ensured that any revelations from his leak would be mere footnotes in the story of the largest theft of classified data in history.

WikiLeaks itself, and Julian Assange, are the subjects of a grand jury investigation which Assange is convinced has already led to a sealed indictment against him.  He bases this belief solely on the contents of one private email written by an executive of the research company Stratfor, even though Stratfor admits its policy is to sometimes give contacts false info in order to see where that false info later turns up, a leak-detecting strategy they call the "Barium Meal." 

Assange was so eager to spread the story of the alleged sealed indictment that WikiLeaks published the email referring to it, along with thousands of others from Stratfor, despite the fact that they were not leaked at all, but stolen by hackers, and despite the fact that Stratfor is not a government agency, so revealing its secrets can't be justified under WikiLeaks' stated mission to "open governments" and show the public what's done in their name.

Assange's fear of a sealed US indictment is the reason he gives for refusing to submit to questioning in Sweden over accusations of sexual misconduct.  Because Sweden once, in 2001, repatriated two Egyptian terror suspects who were later tortured, Assange supporters claim Sweden has a "history" of cooperating with the USA in secret renditions for torture, and that this would be his fate if he went there.  The fact that this incident, one case eleven years ago, caused a huge scandal in Sweden resulting in payments of damages to the victims and changes in Swedish law meant to prevent any such thing ever happening again, and that President Obama signed an executive order ending the use of torture as an interrogation method, is brushed aside by Assange supporters as irrelevant.

Many commentators have pointed out that none of the other publishers who printed the stolen cables are worried about indictments against them, as the First Amendment protects publishers who merely print classified information that is given to them by sources, just as Rolling Stone published the classified version of Lt. Col. Davis's report without facing any charges.  These commentators assume Assange's fear of a US indictment is just a ruse, and that what he really fears is spending up to four years in prison if convicted of sex crimes.  His desperation to avoid this, going as far as taking refuge in the Ecuadorian embassy, seems nonsensical, as his living conditions within the tiny embassy, sleeping on a mattress on the floor with no outdoor recreation, are actually more restrictive than they would be in Swedish prison.

However, just as Manning is not really a whistleblower who knew of specific crimes and reported them the only way he could, evidence indicates Assange may not really be an innocent publisher who did nothing more than print material, with no need to worry about a US indictment.  At Manning's pretrial hearing in December, prosecutors alleged that evidence recovered from his computer shows Assange collaborated with Manning in stealing the files, and that Assange even offered assistance in cracking an encrypted password to facilitate the theft.

This game-changing evidence was widely reported, yet the implications seem to have been largely ignored amid the complexities of Swedish extradition and US court martial proceedings.  Manning's trial will not take place until late fall or winter, but when it does, the evidence which was summarized at the pretrial hearing will be explored in full and judged on its merits.

While it's extremely unlikely there is a sealed indictment against Assange at the present time, grand juries can take over three years to make a decision, and given this new evidence it's likely there will be an indictment against Assange at some point.  Those who continue to support Assange even if he's accused of much more than innocent publishing can take comfort in knowing that an indictment means, by definition, Assange will face a standard civilian trial with due process and the usual agreements not to seek the death penalty as a condition of his extradition.  He will not face any of the extraordinary measures used in the war on terror, or any of the hardships of a military brig or court martial.

Supporters of Manning and Assange are fond of saying history will judge them, smugly certain the final analysis will be a tale of the unjust persecution of heroes.  Looking at the evidence and the choices made, it seems likely history will indeed applaud heroic truth-tellers from this era, but their names will be Davis and Rolling Stone, not Manning and WikiLeaks.