The New Constitution: did I miss one?

I saw a Free Bradley Manning sticker on a car as I walked my dog this morning and it got me to thinking. Some months back I produced the New Constitution series, which set forth the principles upon a more just and workable American government might be based. The final “deliverable,” as we say in the business world, was 20 articles – some barely modified from the original Bill of Rights, some more aggressively revised, and some that are entirely new.

What that sticker and my morning walk have me wondering is if I need to add a 21st amendment protecting whistleblowers. In principle, it seems to me that it should never be a crime to expose criminal or unconstitutional activity.This would apply, as did most everything in TNC, to both governments and private enterprises (read, corporations).

What do you think? Do I need to update the project?

9 replies »

  1. If journalists, whose responsibility, loosely defined, is to question authority, have the protection of shield laws, why should whistleblowers be denied similar protections? Do not whistleblowers also question authority?

    • I can probably make the argument that the sort of protection I’m thinking about is embedded in the existing 20 articles somehow. But even if that’s true, there may well be value in promoting the concern to the top. After all, privacy is sort of embedded in the original BoR, right? But that hasn’t been sufficient. An amendment making it explicit would have exerted significant force on issues like Roe and the NSA, to name a couple.

  2. At some point laws will be broken in the interest of national security in all countries. It is an unfourtunate reality of living in a world of fragmented views. As the Manhatten project was being established I am sure a laundry list of infractions most likely took place. The rules that protect such projects blanket such a wide range of possible activities that those protections are often abused. I believe that to a point, if the infraction that the ‘whistle blower’ publishes jeopardizes security interests, they should charge the actor with treason. However, if it can be proven that the whistle blowers actions brought to light abuses of the system for reasons other than those of national security, charges are justified. I think a problem you may have with your amendment are the same things we are hearing about in the news now. Apparently the government will try to justify just about any activity as being in the best interest of national security. Defining the parameters of what is and what is not acceptable to the interests of national security could at the very least provide a basis for protections under your new 21st amendment. This could prevent those who are acting within those parameters from being accused and imprisoned without justifiable cause.

  3. In your preface to the project you wrote, “The New Constitution is a collection of guiding principles, not articles of legislation.” To me whistle blower protections are definitely the latter Sam.

    I see the argument that Manning was a patriot for revealing the USA’s dirty dealings in Iraq and Afghanistan, particularly the cover up of the machinegunning of the Reuter’s news crew. The Uniform Code of Military Justice has a firm proscription against following illegal orders. The killing was an accident, the coverup was a crime.

    However, having taking the enlistment oath and having received a basic secret security clearance, I can also see the argument that Manning was a traitor for indiscriminately copying gigabytes of classified information and releasing it to Wikileaks. Most of which had nothing to do with illegal acts.

    All in all I’d say the military judges treated him very gently with a 35 year sentence. He’ll be eligible for parole in 12, and that beats a firing squad or hangman’s noose by a long shot. His platoon Sargent, CO and therapist bear a lot of culpability in this mess as well, there’s no way he was fit for the intelligence analyst post he held.

  4. The problem, of course, is in who decides something is a crime. Providing blanket whistleblower protection would open the floodgates for anyone to publicly release anything they feel is against the law. Would I be afforded such protection if I release information that I claim reveals a crime but then later is found not to? Perhaps your new amendment should provide such protection retroactively once the revelation is found by a court to be illegal.

    • Nothing about this one, or anything in TNC, is simple. You note some potential workability issues, but pretty much every plank of our constitution has workability issues, some a lot bigger than this.

      At a glance, though, I don’t imagine that this would protect you for revealing something that was legal. Take Manning, for instance. It seems safe enough to say that some of what he revealed was govt illegalities. Other stuff wasn’t. My guess is that if you do that, you’d still be on the hook for the rest. Of course, we might craft legislation that forgave peripheral revelations in the due course of constitutional whistleblowing.

      Good questions.