Manning and Snowden: Two Questions on Whistle-Blowers

Bradley Manning, the “naïve and well-intentioned” young man (in the words of his lawyer) who gave top secret, classified U.S. Army documents to WikiLeaks has been found guilty of violating U.S. federal law []. He has not benefitted from the justifications or immunities under the same federal law for whistle-blowers. Keeping our distance from the demands of certain media to regard WikiLeaks, Manning or Snowden as heralds of democratic liberty, we prefer to maintain a certain intellectual reserve. It’s time to seriously consider two questions.

The first question is what a whistle-blower is or must be.

The first concept of a whistle-blower is an employee or public official who reveals information which he reasonably believes to be proof of illegal activity, waste, fraud, dysfunctional governance, abuse of power or a concrete and substantial public safety or public health risk. This definition is attributed to The [Government] Accountability Project (a demo-liberal institution), which infers that, in its point of view, neither Manning nor Snowden are whistle-blowers. This concept of a whistle-blower has a double characteristic: On one hand, it is characterized by its goal and its result — by obtaining an effective correction of things. On the other hand, a whistle-blower is not intrinsically directed toward the media, but rather toward those who hold social power (leaders of the structure concerned, elected officials and, of course, the media).

The American federal law protecting whistle-blowers is part of this intellectual economy, where, for example, it defines specific protocols especially for those federal officials and holders of classified information that may constitute evidence of illegality, waste, fraud, dysfunctional governance, abuse of power, a concrete and substantial public safety or public health risk.

Two Concepts

The second concept of a whistle-blower is an employee or public official who releases information hypothetically evidencing a policy (public or private) or acts with which he does not agree philosophically, even if these policies and acts are legal.

We see the depth of political philosophy that separates these two ways of whistle-blowers’ thinking. It is, in the background, the debate about obedience to the law versus disobedience of an unjust law. And at least since the death of Socrates to the civil disobedience of Henry D. Thoreau, passing Antigone of Sophocles or the debate on the Revolution between supporters and opponents of consecrating a right to resist oppression through the declaration of human rights, the question is difficult and delicate.

Yet, in the United States, the definition of a whistle-blower has always divided and continues to divide journalists and organizations defending rights and freedoms. Not quite enough attention has been paid to a Washington Post article in which Floyd Abrams, a lawyer for The New York Times in the Pentagon Papers case, denies any comparison to WikiLeaks. As for this side of the Atlantic, the meaning given to this expression is never clarified by how it is used. In fact, some of the most “serious” U.S. media outlets are forbidden from calling Edward Snowden a whistle-blower. They prefer to use the term “leaker” as it has not been proven that the NSA program that he revealed is contrary to the Fourth Amendment, as many Snowden supporters believe.

Second question (whatever the definition): If whistle-blowers benefit from administrative, penal and civil immunity, what does this mean for the confidentiality of journalists’ sources?

Indeed, the justification for this secrecy is to protect whistle-blowers against prosecution or sanctions of any kind. On the other hand, the confidentiality of journalists’ sources is, in a manner of speaking, a principle by default. Ideally, in a democratic society, any challenge to the legal and moral responsibility of those who hold power in society must be revealed, if only to allow everyone to judge the credibility and the purity of the intentions of the whistle-blower. It is because this demand may have a chilling effect on the reporting of violations of the law or other malfunctions that the idea of confidentiality of journalistic sources has flourished. But if the law itself guarantees immunity to whistle-blowers (obviously, this law is far from existing perfectly in democratic countries), it is not clear what interest they may still have in demanding anonymity of the journalist to whom they deliver classified information. Consequently, the question is which is better: a law that strictly protects the confidentiality of journalists’ sources or legislation that fully protects whistle-blowers?