A Tale of Two Whistleblowers

“I’m for truth, no matter who tells it. I’m for justice, no matter who it’s for or against.” — Malcolm X


Justitia, the Roman goddess of Justice, is often depicted as a blindfolded figure, carrying in one hand a sword and, in the other, a set of measuring scales. The image is a conflation of characteristics taken from multiple goddesses; the blindfolded Fortuna (fate) of Rome, Hellenistic Greek Tyche (luck), and the sword-carrying Nemesis (vengeance).

Justitia, commonly referred to as Lady Justice, is said to be blinded or “impartial” in administering her duties. She is supposed to have no masters, to serve no particular interest over another.

Increasingly, however, Lady Justice appears to be doing the bidding of one very special interest: that of the United States government.

By way of illustration, let us observe the startlingly oppositional cases of two whistleblowers.

One was awarded $100 million from the United States Internal Revenue Service for revealing information to the government that was decidedly not in private citizens’ interest.

The other has been locked in a cage for 28 months, and counting, for revealing information to private citizens that was decidedly not in the government’s interest.

To one whistleblower, a fortune. To the other, the swift sword of vengeance.

What “brave services” did the former perform, and what “heinous crimes” did the latter commit, in order to earn their respective “just deserts”?

We begin with Bradley Birkenfeld, the UBS whistleblower who was this week gifted $104 million from the IRS for providing insider information that led to the forced disclosure of private banking information for over 4,500 American clients with deposits at Switzerland’s largest bank.

It is, at time of writing, the largest individual payment of its kind in the nation’s history.

IRS spokeswoman Michelle Eldridge confirmed the award and said in a statement: “The IRS believes that the whistleblower statute provides a valuable tool to combat tax non-compliance, and this award reflects our commitment to the law.”

“…the law as it serves the interest of the government,” Ms. Eldridge might have added.

The official IRS report went on to praise the courageous whistleblower for the extent to which he went in order to divulge his clients’ private records to the government: “The comprehensive information provided (by Birkenfeld) was exceptional in both its breadth and depth.”

UBS, Switzerland’s largest bank, was subsequently forced to pay a $780 million penalty as part of a deferred prosecution agreement. So far-reaching was the long arm of the US government’s law, in fact, that the Swiss government was forced to reform its bank secrecy laws.

Score: 1 for Big Brother. Score: 0 for private citizens. Score: $104 million for back-stabbing snitch.

There may or may not be a sequel to Birkenfeld’s story…but there is a notable prequel.

The world’s richest tattler was awarded his incredible payout only after serving time behind bars for (are you ready for this?) not snitching enough. Back in 2008, George W. Bush’s Justice Department decided to charge Birkenfeld with tax fraud and conspiracy after prosecutors claimed he had failed to disclose information on one of his biggest UBS clients, a California real estate developer. Birkenfeld and his lawyers at the National Whistleblowers Center denied the claim.

But whistleblowers that don’t blow whistles often find themselves on the losing end of criminal prosecutions…at least until they learn to blow the whistles loud and clear. In August of 2009, Birkenfeld found himself on the receiving end of a 40-month prison sentence. Once behind bars, Birkenfeld became a master whistleblower in no time at all.

So let’s not be too hasty in summoning the tiny violin quartet for poor Mr. Birkenfeld. The record IRS whistleblower payout he received this week equals approximately $2.6 million per month of his incarceration.

That’s pretty good work…if you’re comfortable with Faustian pacts.

Of course, not all whistleblowers are…which brings us to our second story, that of PFC Bradley Manning.

The 24-year old former Army intelligence analyst is accused of leaking the now-infamous “Collateral Murder” video, in which a US Apache helicopter crew gunned down two Reuters journalists, Namir Noor-Eldeen and Saeed Chmagh, and wounded several unarmed civilians, including children, during an attack in a public square in Eastern Baghdad, Iraq, back in 2007. You can view the shorter, WikiLeaks-edited footage here:

“You shoot. I’ll talk.”

In addition to the above footage, Manning is also accused of bringing to light documents that would eventually be compiled and released by Wikileaks as the Afghan War Diary, the Iraq War Logs, and a series of embarrassing US diplomatic cables.

The following quotes, taken from an online chat attributed to Manning, may, if he is indeed found to be the author, shed light on the young man’s frame of mind at the time:

“If you had free reign over classified networks… and you saw incredible things, awful things… things that belonged in the public domain, and not on some server stored in a dark room in Washington, DC…what would you do?”

“God knows what happens now. Hopefully worldwide discussion, debates, and reforms… I want people to see the truth…because without information, you cannot make informed decisions as a public.”

“What would you do?” is indeed a chilling question, one that typically inspires in thinking individuals to whom it is addressed a moment of silence, of deep and prolonged contemplation. But let’s not use that as an excuse to silence the prosecuting side.

In a 2010 Pentagon briefing, then Defense Secretary Robert M. Gates, addressed the (wiki)leaked documents directly. His comments were instructive, both for their supreme arrogance…and for the importance (or more precisely, lack thereof) that Secretary Gates accorded the documents:

“Now, I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on. I think those descriptions are fairly significantly overwrought. The fact is; governments deal with the United States because it’s in their interest, not because they like us, not because they trust us, and not because they believe we can keep secrets. Many governments — some governments — deal with us because they fear us, some because they respect us, most because they need us. We are still essentially, as has been said before, the indispensable nation…

“Is this embarrassing? Yes. Is it awkward? Yes. Consequences for US foreign policy? I think fairly modest.”

For Manning’s alleged deeds, those of “fairly modest” consequences, the 24-year old has to date served 28 months behind bars, much of it enduring what the United Nations Special Rapporteur on torture, Juan Mendez, has described as “cruel and inhuman” treatment, including ten months of solitary confinement.

The Fifth Amendment of the United States Constitution stands guard against punishment without trial, as does United States Military Law. The Eighth Amendment expressly prohibits cruel and unusual punishment. The Uniform Code of Military Justice (UCMJ) promises soldiers fair treatment and a speedy trial.

In whose service do you stand, Lady Justice?

In March of 2011, 295 members of the academic legal community signed a statement protesting Manning’s detainment “under degrading and inhumane conditions that are illegal and immoral.”

One month later, a petition to end the isolation of Manning garnered half a million signatures…in a single week. Public pressure mounted. Eventually, Manning was relocated from Quantico to Fort Leavenworth, KS.

The very day he was moved, President Obama was attending a breakfast fundraiser. Apparently seeing no need to wait for the outcome of Manning’s (still) pending trial, Obama told a group of protesters who confronted him at the junket, “He [Bradley Manning] broke the law.”

Legal experts have called into question Obama’s “verdict,” raising concerns the nation’s Commander-in-Chief and highest-ranking military officer may have exercised “undue command influence” in his pretrial declaration of guilt.

Has Lady Justice’s blindfold become her gag?

The government’s message reads loud and clear: Whistle only the approved tune, at the approved time and against the approved enemy.

It is truly as Voltaire observed: “To learn who rules over you, simply find out who you are not allowed to criticize.”


Joel Bowman
for The Daily Reckoning

The Daily Reckoning