Public opinion is polarized regarding the mega-leakers Chelsea Manning and Edward Snowden. One common view holds them to be heroic patriots. To others, they’re simply traitors. Prominent whistleblower attorney John Howley asks us to consider the possibility that they can be both at once.
Last week, ATL—along with our friends at Lawline—hosted a fascinating (seriously) and timely CLE course, Whistleblowers, Traitors and the Rule of Law. Howley walked the attendees through the various laws governing whistleblowers, treason, and espionage. He also gave an overview of the most important whistleblower and treason cases, as well as explored the thorny legal and ethical implications for lawyers involved in such cases.
The course was as much a history lesson as a legal one. The role of whistleblower plays an integral part of our national history. In fact, the first American whistleblower law predates the country’s founding. In 1777, sailors accused the commander of the Continental Navy, Commodore Esek Hopkins, of torturing captured British sailors, and petitioned the Continental Congress to remove him. Hopkins sued for criminal libel, and Congress — by unanimous vote — agreed to defend the sailors in the suit. Congress also passed a law requiring all military members to inform Congress of “misconduct, frauds or misdemeanors committed by any officers in the service of these states.”
Many of the most important heroes in American history were, technically, traitors, including the Founding Fathers. And knowingly so. As Benjamin Franklin quipped, “We must hang together or we will hang separately.”
So what should a lawyer say to client who wants to be the next Daniel Ellsberg? Obviously, lawyers cannot help their clients break the law. Lawyers may only discuss the potential legal consequences of a particular act and whether or not it constitutes a violation. As for a duty to report misconduct, most states have adopted a version of ABA Model Rule 1.6, which dictates that lawyers “may” reveal misconduct that is “reasonably certain to result in substantial injury.” This guideline obviously contains much ambiguity and room for interpretation. The case of Lynne Stewart was held up as a worst-case illustration of potential ethical pitfalls. When Stewart relayed messages to the Blind Sheik’s cronies in Egypt, she crossed the line into facilitating wrongdoing. Ultimately, Stewart was convicted of, among other counts, “aiding and abetting an offense against the United States.” She will almost certainly die in prison.
One of Howley’s major themes is how the passage of time shapes our perception of the meaning of the word “traitor.” Take the example of John Brown, who was hanged as a traitor for his efforts to arm slaves and foment rebellion. History has vindicated Brown for breaking the law in service of a higher purpose, thus simultaneously a hero and a traitor.
None of the many existing laws designed to protect whistleblowers from retaliation do anything to protect Manning or Snowden. One fundamental limitation of these laws (e.g., The Lloyd-La Follette Act of 1912) is that they are intended to counter cases of individual employees going rogue, not as a check on the government itself. Further, they only apply if the whistleblowers employ official channels (i.e., not the media). Once Manning reached out to Wikileaks, or Snowden to The Guardian, they were on their own.
If Snowden believes himself to be engaged in valid civil disobedience, he’s doing it wrong. Whistleblowing as an act of civil disobedience is an acknowledgment that the law will not offer any protection. It also requires a willingness to deal with the consequences. Punishment must be endured in the belief that the rectitude of one’s position will be vindicated by the public and, eventually, the government. According to Howley, “Snowden’s biggest mistake was leaving.” If one is going to go the civil disobedience route, fleeing into Vladimir Putin’s embrace will not persuade the public of the righteousness of one’s cause. “True” whistleblowing as civil disobedience demands a sort of long-term faith in the wisdom of the people (and maybe a touch of martyr complex) — which might explain why it’s so rare.
In Washington, D.C., on October 17 at 6:30 p.m, please join us for the our next ATL event. Our special guest will be the one-and-only Tom Goldstein of SCOTUSblog fame. Tom will give us a preview of the upcoming Supreme Court Term. RSVP below: