[pdabbadabba]

I really wish we could elevate quality of our discourse about government whistle-blowers. It is very far from clear that Manning (or Snowden, for that matter) was treated "highly unfairly." This could make for an interesting conclusion to a well-thought-our argument, but it makes a pretty dubious premise.

Yes, Manning et al. attempted to do a public service and got punished for it. That seems messed up. And it may be that the information they released is important enough that we all have a right to know it. (I think this is more plausible with Snowden than Manning, but both may have a claim here.) But there really are also serious questions about whether it is OK for an individual person to make the decision for all of us about what needs to be released and what does not, even if we like the outcome in a particular case.

What is the answer here? Should we really just decide not to prosecute government and military personnel who reveal sensitive government information (which is indisputably a crime) just because we think the release was valuable? Who makes this decision? What if DOJ or the president like that the leak happened, but the people do not? Are the people well enough informed to make this decision? What about the issue of deterrence? Even if everyone agrees that a leak was worthwhile, is it really a good idea to empower others, whose judgment may not be so good, to do the same thing?

[DennisP]

In a democracy, the voters, via their representatives, decide what's legal for the government to do. So if the government does things that are illegal and hidden, then I'd say anyone has the authority to reveal it. That authority was granted by the voters who made the activity illegal.

If the government's activity is legal, on the other hand, then it's harder to make a case. A whistleblower may still decide to reveal it as a matter of civil disobedience, but at that point he's trying to change the minds of the voters, rather than enforce their expressed wishes. He should expect more legal jeopardy, though if he succeeds in changing people's minds, then a pardon would be appropriate.

If our legal system doesn't make a distinction between revealing legal and illegal secrets, then I'd say our system is inconsistent.

[pdabbadabba]

This is a pretty good answer, but I think there are at least two problems with it:

* It is often (though not always) quite hard to tell whether something the government is doing is or is not illegal even for well trained lawyers. Manning, Snowden, et al. are not lawyers.

* The information released by Manning, Snowden, et al. was dramatically broader in scope that what would have been required merely to reveal illegal activity. Most of it, especially in Manning's case, does not reveal any illegal activity at all.

[DennisP]

Sure, it's a judgement call and whistleblowers have to do the best they can. If they make the wrong decision they're in the second category, so they have to decide if it's worth the risk. If they reveal the secrets to lawyers they're still breaking the law.

I agree that from what I've seen, Manning is on the civil disobedience side. I wish he had changed voters minds more than he apparently did.

Snowden had evidence of clearly illegal activity. There was a lot more mixed in, but it wasn't practical to separate it. Secret abuse of power is dangerous enough that I think that should be acceptable.

If we don't have practical protection for whistleblowers, we might as well not bother putting limits on government power at all. Based on what's happened to whistleblowers who went through official channels, it's clear that that approach doesn't work at all, and I don't know why anyone should expect it to work.

[drostie]

If you want to open these sorts of questions you'll quickly run into the fact that there are a bunch of different judicial opinions out there. I recommend the following link:

http://legacy.earlham.edu/~peters/writing/csepref.htm

It is the preface and introduction to Peter Suber's book The Case of the Speluncean Explorers: Nine New Opinions; as the introduction discusses, the original Case, posted online here:

http://people.brandeis.edu/~teuber/lawspelunk.html#fuller

...was published by Lon Fuller in 1949 and contains a statement of facts in a (fictional!) case where a bunch of explorers get trapped for many days, ultimately eat one among their number, and are tried for murder and found guilty, sentenced to be hanged: this case is the final appeal of their sentence to the Supreme Court. In general people are sympathetic to the explorers, who faced death had they not acted.

This statement-of-facts is followed by the opinions of 5 court judges, who come to very different conclusions with very different reasonings. For example the chief justice says "Well, it's my job to apply the law as correctly as I can -- not to evaluate whether hanging these people for doing what they needed to do to survive is important. They broke the law, the law says that the punishment in this case is hanging, therefore I must rule that they should be hanged. Whose job is it to make sure that these laws are good to these people? Well, that's what we have lawmakers and an executive branch for. I'm going to sentence these people to death and hope that the President commutes their sentence." In response the second opinion says, "Seriously? That's a cop-out. Obviously if our hearts are saying that these people shouldn't be hanged, then that's not justice and they shouldn't be hanged, and in this case it's because there's a deeper Law from Nature which takes priority over our lawbooks." And so forth.

Then Pete Suber's book offers 9 more opinions, and there are even a few more in some other law reviews. Gives you a large question of how we should be balancing all of these different interests.