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Thursday, September 1, 2011

Spy, or Whistleblower? Can something be classified to prevent its use as evidence of wrong doing?

Spy, or Whistleblower? Can something be classified to prevent its use as evidence of wrong doing?

If a document is disclosed, in a manner that results in someone being a whistleblower, do we have laws to protect whistleblowers from suits? (As far as I know, yes).

Now, what happens if that same document is classified? Do the same whistleblower protection laws protect the whistleblower? Or is the disclouser considered a "Spy", and subject to persecution?

Should Manning be persecuted as a "Spy", for giving classified documents to a foreign national? Should the laws be reviewed -- does "foreign national" really count as a valid distinction? Is it less damaging to give documents to a U.S. person, such as a U.S. newspaper, than to a neutral person such as Assage/Wikileaks? Is any disclosure bad no matter who?

Are people responsible for their actions? If someone is an accessory to a crime, are they held accountable? If a document includes the names of civilians that are part of a crime, and a whistleblower releases that document, can that be used to persecute those civilians? What if the document is classified? This paragraph of questions refers to the fact that Wikileaks was not able to redact all of the names out of the released Manning documents. Originally, Assange had the view that all of the people who were participating in what happened were accessories to the crime ("These people were collaborators, informants, they deserve to die". Source: "Frontline", "Wikisecrets", air date 5/24/2011) and should be punished for their crimes. That's not that different from existing U.S. law that allows people to be charged with criminal charges for aiding others in a crime. Two days before the publication, Assange changed his mind, and most -- but not all -- of the names were redacted. The result? Other news organizations data mined the released information to make all the unredacted names easy to access.

So who is the guilty party here -- the people that made it easy to find the names? The person that published the names in the mass of data? The people who were accessories to the crimes in the first place? The people who committed the crimes? Or the one person that blew the whistle on the actions of other people?

Should Bush administration officials be persecuted for disclosing the identity of undercover agents?

I don't have any good, or easy answers here. I do have some hard, tough answers. Answers that no one in government will like.

1. Classifying documents does not automatically protect them from other laws that would be applicable if they were not classified.
1b. No agency may freely classify documents without cause. Any classifying, or redacting, must be indicated as to why, and must be reviewed by a review board. Abuses of classification must be noted by the review board, and the agencies that do abuse the process must be investigated by the appropriate agency.
2. Classifying documents cannot protect them from court supoena.
3. Courts are automatically allowed full access to all classified documents. A proceeding in which a classified document is discussed may be regarded as classified. If a lawyer involved is not considered cleared for classified documents, and is not able to be cleared, then a valid, cleared lawyer must be added to the appropriate team. If an individual needs classified documents for their case, then the documents must be provided as follows:
A: Anyone for their defense against the government: Always. The government gave up its right to conceed when it asserted under penalty of perjury that the charge was valid. If there is a relevant classified document, it may not be kept out of the court record. The resulting record may become classified if full disclosure will harm someone not party to the case, but a redacted version must be disclosed publically, and the reasons and nature of any redaction must be revealed.
B: Anyone for their valid suit against the government: Unless the government will conceed the case.
C: Anyone as defendent in another (almost certainly civil) suit: See below. Classified/redacted as in case A.

4. A classified review board may review whether or not the documents are in fact relevant to the case. If they specify no, they must say why.
5. Appeals courts are *ALWAYS* granted access to any requested classified document, and may overrule the review board.
6. All senators and house representatives are always granted access to any classified document.

* Important: The board that reviews classification (1b) and the board that reviews the need for them in court (4) must not be the same board! There is a horrendous conflict of interest if they are the same.

Remember, Congress shall pass no laws preventing the petition of government for redress of grievances -- Amendment 1. Claiming that the redress is prevented because of "classified" is not constitutional.

Now, case "C" above is an interesting one. Can a civil suit force disclosure of related classified documents?

There is no easy answer here. None. Not even an easy hard answer.

I'll suggest the following. Note that this is NOT airtight; I can come up with loopholes. I don't think there's a good answer, and I'm not even sure what the goal here should be.

C-1: If a corporation is suing an individual, then the government can force the individual to be found not guilty, and prohibit release of information.

C-2: If an individual is suing a corporation for wrongdoing, then the government can force the corporation to be found guilty ("Redress of grievences" clause) and prohibit the release of information.

C-3: Suits between corporations, or against a corporation for other than redressing a grievence, do not have the right of automatic disclosure.


Update! On 2013 October 20th, "Reliable Sources" on CNN had a segment ("Whistleblowers and the media") on this very question, although they asked the question "Leaker or Whistleblower".

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