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On July 25, the New York Times reported on the release by Wikileaks.org of more than 92,000 U.S. military documents relating to the war in Afghanistan. While interesting from a number of angles, for our purposes the story is a tale of two informants that highlights complicated questions of loyalty and society’s treatment of informants. The first informant in the story was Pfc. Bradley Manning, an Army soldier who allegedly transmitted the leaked reports to Wikileaks. While not an “informant” in the traditional sense, as he did not help the government apprehend criminals, Manning played the informant’s role by revealing miscalculations and fatal mistakes, if not crimes, committed by the U.S. military in Afghanistan. The second informant was Adrian Lamo, who reported Manning’s involvement in the leak to federal authorities.

What no one seems able to agree on, however, is whether Manning and Lamo are heroes, villains, or something in between.

Seen in the best possible light, Manning is a classic whistle-blower. Disillusioned with his employer’s actions, he revealed them publicly in the hopes of forcing change. What some see as treason, then, could also be viewed as the highest form of loyalty to America’s ideals of openness and public debate. But even if he did not betray his country, Manning certainly betrayed his fellow soldiers and those Afghans who have assisted the United States by placing them in mortal danger. And, at least according to Lamo, Manning’s motives were not altruistic: he leaked the documents because enjoyed the attention that his contact at Wikileaks lavished on him, not because it was the right thing to do.

Lamo, on the other hand, is an informant in the more typical mold. He is a hacker with a previous conviction for breaching computer networks. He lied to Manning in order to gain the soldier’s confidence, claiming to be an ordained minister so that Manning would feel comfortable giving his “confession.” And he has at least arguably milked the situation for attention. Yet Lamo says that he came forward out of a sense of moral obligation: he believed that Manning had endangered human lives and felt that it would be cowardly to do nothing.

Neither Manning nor Lamo would seem to be a clear-cut hero or villain, then, and each has been both celebrated and condemned. Some call Manning a hero (the website for the Bradley Manning support network is here), while others have called for his execution. For his part, Lamo has received death threats and has been shunned by the hacker community, but he also has been hailed as a patriot for doing the right thing in a tough spot.

Moreover, the situation is even more of a moral and ethical morass than the typical criminal informant case, because there at least the underlying criminal conduct is considered unquestionably wrong. Here, though, one’s perspective on Manning and Lamo may depend on one’s view of the war in Afghanistan. If you believe it is a just war, then you may feel that Lamo did the right thing, but if you think that the war has been mishandled, then you may see Manning as a hero. Alternatively, some will fall back on equating legality with morality. In that case, Manning is a villain for breaking the law, while Lamo, though maybe not a hero, at least committed no crime.

But what should the government do? It does not prosecute every crime, and whether Manning is charged is a decision within the government’s broad prosecutorial discretion. Without knowing all of the facts, I don’t know how that discretion should be exercised. What I do suggest, however, is that whoever makes the final decision must consider more than the letter of law and focus as well on the morality of Manning’s actions. It appears to me that he betrayed his compatriots, but it is less clear that he betrayed his country. The crime charged must fit his moral desert. Treason may be going too far, but something less than treason may be appropriate.

Meanwhile, what do we do about Lamo? He lied to and betrayed Manning, and he did so at the instigation of the government, with whom he was actively cooperating during his discussions with Manning. This raises a larger question that applies to the government’s handling of many criminal informants: should the state encourage informants, as private citizens, to commit immoral, if non-criminal, acts? As I see it, there is something unsavory and disquieting about the government, in the name of enforcing criminal laws that are themselves based on society’s moral code, pushing civilians to act immorally. And certainly law enforcement’s involvement in private immorality weaken the communicative force of the criminal justice system. But is that a price we are willing to pay for the information that informants like Lamo provide?

Before I get started, I’d like to thank Alexandra Natapoff for the opportunity to contribute to this blog. I look forward to providing a different and (hopefully) interesting take on the problems and contradictions that arise from law enforcement’s dependence on, and society’s complicated relationship with, criminal informants.

So, let’s start with one of the contradictions:

When newspaper reporters and columnists write about informants outside the context of wrongful convictions, the tone tends to be one-note, excoriating “stop snitching” culture. A recent editorial by Bill Maxwell, a columnist for the St. Petersburg Times, is typical. (A couple of similar recent articles or columns are here and here.) Criticizing the black community in Tampa Bay for ostracizing three women who helped two police officers after they had been shot, he also takes on the “snitching ethos”:

If we do not call the police, we deserve the mayhem and dysfunction we suffer. When we conceal the identity of a murderer, we endanger everyone. When we turn our backs on drug deals near our homes, we cheapen the rule of law and destroy social values. In addition to its self-destructiveness, the snitching ethos alienates us from others, putting us at odds with normal behavior.

Maxwell’s points generally are well-taken, if not particularly novel.

But another recent column also caught my eye. This one, by Marc Hansen of the Des Moines Register, bears the headline, “Iowan mails Lefty’s arm back to bar, won’t snitch on thief.” Far less gruesome than it sounds, the story involves the theft of a mannequin’s left arm from a bar in San Francisco and its subsequent return by Doug Kintzle, a Des Moines resident who had it in his basement. Hansen explains that though Kintzle knows who stole the arm, the culprit is part of his cycling group, and Kintzle refuses to “snitch.” As Hansen says, “you have to respect that.” And I think he’s right: most people would have no problem with Kintzle staying mum and protecting his friend.

But why is the Maxwell’s “snitching ethos” bad, and Kintzle’s refusal to “snitch” good? Despite the presence of a stolen plastic arm, I ask the question non-facetiously: in both cases we’re talking about crimes that the police can’t solve without an informant’s help, yet in one case refusing to snitch is reprehensible and in the other it’s respectable.

(posted by Michael Rich)

Of course, there are numerous differences that may help explain the discrepancy, and prime among them is the relative severity of the crimes: murder in one case, and the theft of a piece of a plastic mannequin in the other. But Maxwell also argues that the failure to report drug dealing “cheapen[s] the rule of law and destroy[s] social values.” Isn’t drug dealing, arguably a malum prohibitum crime, less morally culpable than stealing? Doesn’t Kintzle also cheapen the rule of law by refusing to inform on the thief? Isn’t “do not steal” an important social value?

Or is the critical difference that Kintzle is refusing to snitch on a member of his cycling group and we respect the loyalty of those who bicycle together more than we do loyalties among neighborhood members? Or is it that petty theft within cycling groups is unlikely to foment more crime, while drug dealing will? Or that drug dealers tend to be poorer than cyclists? Or that Maxwell is talking about black communities and cycling is largely a sport enjoyed by whites?

Most likely, it’s a combination of some or all of these considerations that makes us comfortable with Kintzle’s silence and generally agree with Maxwell. But the question of where the line is drawn between bad snitching and good informing is infrequently considered and one that policymakers need to keep in mind when they tailor policies to encourage cooperation with the police.

I am very pleased to introduce Snitching Blog’s first guest blogger: Professor Michael Rich formerly at Capital University Law School and recently moved to Elon University School of Law. Professor Rich has written about the use of informants as a potential violation of the Thirteenth Amendment, which prohibits involuntary servitude. From the abstract:

Though active informants cooperate for many reasons, most assist the police out of fear that if they refuse, they will be subject to criminal prosecution or more severe punishment. This Article argues that by compelling these “coerced informants” to work under such a threat, the government violates the Thirteenth Amendment’s prohibition on involuntary servitude. As a doctrinal matter, compelling coerced informants to serve under threat of criminal sanction fits the Thirteenth Amendment’s definition of involuntary servitude. Moreover, the use of coerced informants offends the free labor principles that animated the passage and ratification of the Thirteenth Amendment and underlie the Supreme Court’s Thirteenth Amendment jurisprudence.

Link to article here: Coerced Informants and Thirteenth Amendment Limitations on the Police-Informant Relationship, 50 Santa Clara L. Rev. 681 (2010). Professor Rich will be here throughout August.