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Secrecy: The big unanswered questions

June 6, 2013, at 11:13 AM

While Bradley Manning's disclosures to WikiLeaks did not appreciably harm national security, the government decided early on to use his case as a warning. The government absolutely has a stake in making sure that government employees don't feel free to share classified information because they disagree with a policy. But Manning's prosecution and treatment go well beyond anything reasonable. I suspect that the size and scope of his disclosures contributed to the decision to prosecute him to the hilt, as did the explicit and available evidence that he intended to disclose classified information to the world in order to directly influence policy. He is now a martyr of sorts, absolutely guilty of a felony, but being treated as a traitor, something he does not resemble. And that undermines the government's case, at least to me, that he should not be given the benefit of the doubt or of context.

The case sets up several interesting questions about secrecy.

1. Who is a whistleblower? The activist community defines it very broadly. The government defines it very narrowly. The media doesn't know what to do but tends to accept people's self-definition. If everyone is a legitimate whistleblower, doesn't the entire system for protecting secrets fall apart? If very few people are legitimate whistleblowers, what process is in place to ensure that their rights are truly protected?

2. If the media is allowed to print classified information without sanction, who are the media? Is there a way to separate the "legitimate" national security press — those who know the beat and who walk through their stories with relevant authorities to avoid disclosing truly harmful information — from outside agitators? But aren't outside agitators protected by the same speech right (and privilege) as the press? Or have the courts recognized the "press" as a separate entity that is allowed to use the "freedom" granted in the first amendment in a way that citizens aren't? I don't know. It is very hard for me to explain in non-subjective terms why I am a reporter and Julian Assange is not, at least for the purposes of investigation and prosecution.

3. What recourse does the government have to punish people who disclosure classified information without permission? Shouldn't it have some? Shouldn't the classification wall be enforced by something other than a paper contract? Shouldn't there be some sort of legal jeopardy for leakers? To say no suggests that the government has no stake in the enterprise of protecting national security information, which is absurd.

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