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A Belated Thought on Wikileaks

by Gra­ham Dumas (J.D. Can­di­date 2011)

I am a bit late in writ­ing about the Wik­ileaks issue, but I would like to pro­pose here a slight­ly dif­fer­ent way of view­ing the ques­tion through the lens of sys­tems engi­neer­ing. For a num­ber of rea­sons, Wik­ileaks has pre­sent­ed to mem­bers of the mil­i­tary a sim­pli­fied and seem­ing­ly less painful way to report vio­la­tions of IHL, lead­ing to a break­down in, or rather an excur­sion from, the process the U.S. Mil­i­tary has been using to report, iden­ti­fy, pros­e­cute, and ulti­mate­ly pre­vent vio­la­tions of mil­i­tary law and the law of armed con­flict. To rem­e­dy this prob­lem, the mil­i­tary should inves­ti­gate both the demand and sup­ply sides of the infor­ma­tion pipeline, sim­pli­fy the report­ing process, and ini­ti­ate a cam­paign to edu­cate ser­vice­men of the inter­nal report­ing chan­nels avail­able to them, the need to pre­vent extra­ne­ous leaks to the pub­lic, and the penal­ties for releas­ing clas­si­fied infor­ma­tion.  More after the jump.

As described by Pro­fes­sor Lau­ra Dick­in­son in 42 NYU J. Int’l L. & Polit 355 (2010), the JAG corps with­in the U.S. mil­i­tary func­tions large­ly as a com­pli­ance unit, fos­ter­ing account­abil­i­ty and an under­stand­ing of IHL through the use of an inde­pen­dent chain of com­mand and the author­i­ty to impose sanc­tions on vio­la­tors. Most impor­tant for this analy­sis is the true inde­pen­dence of the JAG corps from the rest of the mil­i­tary chain of com­mand, a fac­tor that has the poten­tial to allow ser­vice­men to report IHL vio­la­tions with­out con­fronting direct­ly their supe­ri­or offi­cers.

Clear­ly, how­ev­er, with Wik­ileaks, some­thing has gone astray. Infor­ma­tion on IHL vio­la­tions wants to get from point A, the ser­vice­man with the knowl­edge in ques­tion, to point B, an offi­cer or oth­er supe­ri­or with the abil­i­ty to address the issue, with as lit­tle resis­tance as pos­si­ble. In the case of the recent Wik­ileaks dis­clo­sures, it appears that the flow of infor­ma­tion has become restrict­ed to the point where the pipeline between points A and B has burst, lead­ing to a dis­charge of infor­ma­tion into the pub­lic sphere. Of the many pos­si­ble caus­es of this over­load, four stand out in my mind: that the JAG corps is not tru­ly inde­pen­dent enough to afford whistle­blow­ers ade­quate cov­er from reprisals by supe­ri­ors and peers; that there are sim­ply not enough JAGs and relat­ed per­son­nel to deal with the flow of infor­ma­tion in a sat­is­fac­to­ry man­ner; that the sanc­tions imposed by the Uni­form Code of Mil­i­tary Jus­tice are not suf­fi­cient to deter breach­es of con­fi­den­tial­i­ty by whistle­blow­ers armed with the new, and seem­ing­ly anony­mous, tool of Wik­ileaks; or that Wik­ileaks and sim­i­lar ser­vices are sim­ply so flashy or sen­sa­tion­al that ser­vice­men may turn to them first with­out going through the JAG corps.

Not being acquaint­ed with the details of the UCMJ or the JAG corps, I can’t real­ly com­ment on the first and third pos­si­bil­i­ties, although from the cov­er­age of the con­tro­ver­sy it seems that mil­i­tary law affords a range of stiff penal­ties for vio­la­tions such as the recent leaks; like­wise, the JAG corps has report­ed­ly been much improved since the Viet­nam war, and in the­o­ry rep­re­sents a tru­ly inde­pen­dent chan­nel for com­pli­ance. The sec­ond pos­si­bil­i­ty, the lack of suf­fi­cient JAGs to deal with the num­ber of vio­la­tions, is also beyond my exper­tise, although it could be an inter­est­ing focal point for fur­ther study–especially as it may reveal that an increase in aware­ness of IHL issues on the part of U.S. mil­i­tary per­son­nel could actu­al­ly be lead­ing to a glut of report­ed inci­dents.

The fourth pos­si­bil­i­ty is inter­est­ing, as it offers a very dif­fer­ent approach and appears to indi­cate that some­thing akin to a cam­paign of pub­lic ser­vice announce­ments with­in the military–a sort of “start snitch­ing” pol­i­cy, if you will. Again, I don’t know enough about mil­i­tary train­ing or the inter­ac­tion between the JAG corps and the aver­age ser­vice­mem­ber to judge whether the lat­ter are being suf­fi­cient­ly edu­cat­ed on IHL and how to report vio­la­tions, but it seems that some­thing must be done with­in the mil­i­tary to over­come the sen­sa­tion­al­ism assio­ci­at­ed with Wik­ileaks. 

Think of it as a Loose Lips cam­paign for the dig­i­tal era. The only dif­fer­ence is that the results of some­one talk­ing now are not near­ly as appar­ent, or imme­di­ate­ly dead­ly, to the aver­age ser­vice­man as they were 60 years ago. Thus, what­ev­er approach the mil­i­tary devel­ops will have to include on the “demand side” a detailed expla­na­tion of why it is gen­er­al­ly ben­e­fi­cial to the Unit­ed States that ser­vice­mem­bers keep their whistle­blow­ing inter­nal, such as a dis­cus­sion of the injury to U.S. for­eign pol­i­cy caused by the pub­lic dis­clo­sure of IHL vio­la­tions. On the “sup­ply side,” the mil­i­tary should work to make it as easy and pain­less as pos­si­ble for ser­vice­men to blow the whis­tle on non­com­pli­ant peers or supe­ri­ors, elim­i­nat­ing as many obsta­cles to this process as pos­si­ble.

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