The Whistleblower Protection Enhancement Act appeared to be headed for approval one year ago - until the release of hundreds of thousands of U.S. diplomatic cables to the WikiLeaks website, allegedly by Army Pvc. Bradley Manning, thrust it to the sidelines.
Opponents of the bill seized on the incident to strip an important provision from the legislation, which ultimately died when Congress closed for Christmas without taking it up, advocates say.
“There suddenly became a concern in the Congress that was ill-informed, that the legislation would protect leaks of classified information … which wasn’t true,” said Danielle Brian, executive director of the Project on Government Oversight, a nonpartisan independent watchdog that seeks good government reforms. “… It was in large part a reason why the legislation stalled and it also caused a real backlash of overreaction by agencies to start clamping down on employees’ access to information.”
Army Specialist Bradley Manning, accused of leaking US government documents published by Wikileaks
As Manning has his first court appearance on Friday – a pretrial hearing – proponents of the legislation to protect government workers who report illegal or unethical behavior by officials have regrouped.
They are pushing a measure -- the Whistleblower Protection Enhancement Act of 2011 -- winding its way through Congress, but they are encountering some familiar hold-ups. “The Manning case is certainly feeding the resistance,” said Brian, noting it was not the only factor.
Manning, who turns 24 on Saturday, is accused of using unauthorized software on government computers to pull classified information, illegally download it and send the data for public release by what the Army called the "enemy." He has been held for 18 months in confinement and his pretrial hearing at Fort Meade, Md., on Friday will be his first public appearance. He is charged with 22 counts that could land him in prison for life.
The Bradley Manning Support Network argues that the soldier is not a traitor but fits the definition of a whistleblower, citing online discussions in which he allegedly said he hoped to generate “worldwide discussion, debates, and reforms” and wanted “people to see the truth… regardless of who they are… because without information, you cannot make informed decisions as a public.”
The law firm representing Manning did not respond to an email or phone call placed seeking comment on whether they would argue this he was a whistleblower as part of his defense.
Though the new legislation pending in Congress could make some "very modest improvements,” it is still only a Band-Aid, said Stephen Kohn, executive director and co-founder of the National Whistleblowers Center, a nonprofit, nonpartisan organization.
“I think that the underlying hostility to protecting national security whistleblowers pre-existed Manning … and there’s no end in sight -- meaning Congress, which excluded national (security) whistleblowers from protection in 1978 and has taken no action to fix the problem since, will continue in this current status,” he said.
Kohn said those opposed to the earlier legislation used the Manning case as a “smokescreen.”
“These folks were against it to begin with, they’ve been against it for years,” he said.
The Manning incident was bound to occur, he said, “because if someone was of conscience and did have concerns, they really have no legitimate place to go. … Under the current regime, there’s really no way to disclose these national security violations effectively and protect yourself. It does not exist.”
During the 2010 debate, Kohn’s group sent a letter to Congress with concerns that a provision in the legislation would allow “managers and political appointees to fire career civil servants who disclose violations of law.” This in turn prompted more than 90 organizations to voice their backing of the bill, The Washington Post reported.
Around the same time, the Post reported that Darrell Issa, a Republican congressman from California who had supported the bill, switched sides and argued for a delay. An Issa spokesman noted then that "new areas of concern that have been raised by the WikiLeaks" releases had convinced the congressman that the legislation should be considered in 2011.
In the first week of November, Issa and other lawmakers introduced the latest version of the legislation to the House.
"There’s really genuine interest in all three parts (White House, Senate, House of Representatives) to get something passed this spring. So I’m very hopeful actually," Brian said.
History has little to show for Americans in similar situations as Manning. In one of the most well-known cases of U.S. whistleblowing, former Marine Daniel Ellsberg in 1971 released what came to be known as the "Pentagon Papers," a secret government study put together during his time as an analyst in the Nixon Administration. The study revealed that previous administrations had deceived Congress about stepping up the Vietnam conflict. A judge eventually threw out the government's espionage and conspiracy case.
"The WikiLeaks’ unauthorised disclosures of the last year are the first in 40 years to approach the scale of the Pentagon Papers (and even surpass them in quantity and timeliness)," Ellsberg wrote in an editorial published in The Guardian, in which he called for other potential whistleblowers to not "wait until a new war has started."
Kohn did note a case that ended with positive results for whistleblowers in 1777, when 10 sailors and soldiers jumped ship and blew the whistle on the U.S. Navy commander for torturing British prisoners. The Continental Congress supported the whistleblowers, passed the country’s first whistleblower law and released all the documents -- regardless of how embarrassing they were to the United States.
“That was the first and maybe only time back in U.S. history that our government backed national security whistleblowers,” he said, chuckling. “It’s been pretty much downhill since 1777.”
Kohn also said the response to the incident showed “the founding fathers’ view of every person’s obligation to disclose misconduct was rather consistent with our view, and in fact, we believe that that is the legislative intent behind the First Amendment.”
Brian said she did not believe legislation to protect the Bradley Mannings of the world for leaking publicly classified information would ever be passed, but she hoped that his case would highlight the issue facing those in his situation. She noted that her organization and its allies were working hard to create "meaningful channels for a Bradley Manning.”
“I really believe that the lack of safe channels for disclosure is part of why people like Bradley Manning need to go straight to the public or to the media,” she said. “I’m hoping that what people learn from this is this is why we need to have a better way of handling this information, because the government does sometimes hide their misconduct behind classification and we need to have a robust way of dealing with that.”
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