The U.S. government has arrested another whistleblower. reports that the government is holding Specialist Bradley Manning in detention in Kuwait pending charges that he supplied a classified video to  I reported here in April that this video depicts US armed forces killing about a dozen civilians in Iraq, including two Reuters journalists. Manning had reached out to convicted computer hacker Adrian Lamo who has now acknowledged that he told authorities about Manning’s role in leaking the video to WikiLeaks. The government had previously identified WikiLeaks as a security threat (see my prior blog entry about this government memo), and threatened to prosecute anyone leaking classified information. Together with the Thomas Drake prosecution, we see that the present administration is picking up the pace in using criminal charges against whistleblowers. The administration also continues to hold UBS whistleblower Bradley Birkenfeld while his pardon petition awaits actions.

It is early in the case, and we cannot expect that all the facts are out yet. Still, I am already concerned about whether the government’s prosecution is selective, or retaliatory for the critical content of the Wikileaks video. I would ask that the government make a measured response that is proportionate to the violation of classification rules and not affected by the government’s embarrassment over the publicity about its violence in Iraq.

Also, it appears that Specialist Manning was not aware of some of the basics in how to protect yourself as a whistleblower.  Instead of going to a convicted criminal who has had time in jail to appreciate the government’s interest and power, whistleblowers should go to a personal lawyer.  The communications with the lawyer for the purpose of getting legal advice and counsel are privileged. The sooner a whistleblower gets a good lawyer, the better off the whistleblower can be in the end.  A lawyer could have advised Manning about his right to make disclosures to members of Congress under the Military Whistleblower Protection Act, 10 U.S.C. § 1034. With thoughtful selection of the right material for the right member of Congress, Manning might have accomplished his disclosures in a way that would have protected him from this arrest. Perhaps others will learn from this experience.

Here is another issue that might be helpful to Manning and other national security whistleblowers.  "While the Government must be able to prevent the public disclosure of information that would compromise the national security, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment," National Security Council official William Leary wrote in a blog post saved by Politico’s Josh Gerstein. Indeed, presidential classification directives, published in Executive Orders, have traditionally barred classification of information to conceal violations of law, inefficiency or administrative error, or to prevent embarrassment, or delay the release of’ information that does not require protection in the interest of national security. See, for example, Executive Orders 12065 and 12356, 47 Fed. Reg. 14874 (April 6, 1982). This principal suggests that some balancing is appropriate to show that our democratic government does not shy away from having citizens know what is done in their name.