United States military whistleblower Chelsea Manning was convicted of offenses related to her disclosures to WikiLeaks one year ago. In this time, Manning’s case has become a clear example to future whistleblowers of what the US government will do to military officers or federal government employees, who follow their conscience. And her case seems to have only emboldened President Barack Obama and his administration to continue to wage a war to control information that includes a clampdown on leaks, a campaign against national security whistleblowers and a concerted attack on press freedom.
Manning was convicted of five Espionage Act offenses. The military prosecuted her as if she had committed strict liability crimes, which is how the Justice Department had pursued previous leak prosecutions.
According to Nancy Hollander, one of the defense attorneys who is working on appealing her convictions, “It is frightening that the Espionage Act has essentially become a strict liability crime, that intent required is the intent to disclose and we simply cannot let that continue.” And, “the lack of criminal intent is frankly horrifying to me as a lawyer, that Chelsea was convicted and is going to spend 35 years in jail without any burden on the government whatsoever to prove that she intended or had reason to believe that this disclosure would harm the United States or advantage a foreign government.”
Hollander contends the Justice Department must stop using the Espionage Act in the way it is being used if there is to be any freedom of speech or First Amendment in this country. But Manning’s case and how the Espionage Act was employed has not discouraged the Justice Department from using the World War 1-era law intended for spies against leakers.
James Hitselberger, a former Navy linguist, was charged with multiple Espionage Act offenses for a lapse in judgment, which involved taking classified documents related to Bahrain, which he had clearance to read, outside of his living quarters without proper authorization. In April, Hitselberger chose to plead guilty to a misdemeanor charge of “removing classified documents without authorization.” As Steven Aftergood of Secrecy News pointed out, “the progression” of Hitselberger’s case was similar to the prosecution of NSA whistleblower Thomas Drake, where ten felony counts, including Espionage Act charges, “gave way to a technical misdemeanor” of exceeding authorized use of a government computer.
State Department contractor Stephen Jin-Woo Kim disclosed information on the threat posed by North Korea’s nuclear program to Fox News reporter James Rosen. Kim was charged with violating the Espionage Act (and making false statements), and the Justice Department used a potential 10-year sentence to pressure Kim into not taking the case to trial. And, in February, he essentially chose to plead guilty to the Espionage Act charge if his prison sentence would not exceed 13 months in jail.
Kim’s attorneys contended, “His illegal conduct consisted solely of talking to a member of the news media with whom others in his office spoke as well. Government officials at every level speak with news reporters on a daily basis in Washington . . . [M]any of those conversations include the disclosure of classified information. Yet few, if any, of those officials have paid the price that Mr. Kim has paid for a single conversation with a reporter.”
The government’s pursuit of Kim included the criminalization of Rosen, who was labeled in an FBI affidavit as a “co-conspirator” for performing his job as a journalist. “Records showed that the Justice Department went back to court repeatedly during that time for approval to avoid notifying Rosen and Fox News about the subpoena, in an apparent effort to continue to monitor Rosen’s email for other contacts with government officials. It amounted to open-ended government surveillance of a reporter’s communications,” according to a report from the Committee to Protect Journalists (CPJ).
What happened to Rosen was similar to what happened in the case of former FBI agent Donald Sachtleben. He pled guilty to violating the Espionage Act after providing information on a “disrupted suicide bomb attack on a US-bound airliner” by Al Qaeda in the Arabian Peninsula (AQAP) and the recovery by the United States of a bomb in connection with that plot in April 2012.” The Justice Department notified the Associated Press three months after the fact that it had “secretly subpoenaed and seized all records for 20 AP telephone line and switchboards for April and May of 2012″ to investigate his leak. This made it possible to spy on thousands of phone calls being made by over 100 journalists, including calls made in the newsroom, in their homes or on their mobile phones.
The Obama administration has given off the appearance of concern. The Justice Department has been developing new guidelines for criminal leak investigations, but the effort seemed to backfire when new groups read the guidelines and concluded “ordinary newsgathering” would only be protected. What that meant exactly was unclear, which was the problem. It would essentially be a loophole that would allow the government to continue to exercise broad discretion and obtain records of journalists when prosecuting, in many instances, their sources.
The Justice Department has also not shown any signs of backing down from its pursuit of testimony from New York Times reporter James Risen, who the Obama administration argues must testify against his source in the leak prosecution of former CIA officer Jeffrey Sterling. The Supreme Court refused to hear his case arguing that he was protected from testifying by “reporter’s privilege.” The path is now clear for the administration to subpoena him to testify at Sterling’s trial and, if he doesn’t comply, they can jail him or fine him an amount that increases each day until he complies with the subpoena to avoid bankruptcy.
As is clear from a survey of journalists (and lawyers) by Human Rights Watch and the American Civil Liberties Union [PDF], the administration has largely accepted that investigative journalism may be collateral damage in the course of leak prosecutions. Instead of prosecuting journalists for publishing classified information, the government will simply target communications with advanced technology and covertly uncover acts of journalism that involve leak suspects so they can control information.
As a US military court was in the process of completing Manning’s trial, the world was introduced to Snowden, who had fled to Hong Kong so he could reveal documents on massive surveillance programs to journalists.
The first month of his disclosures revealed that the NSA was collecting phone records of millions of Americans, had access to emails, voice, text and video chats of those who use services from the Internet’s biggest companies and a program capable of collecting billions of pieces of intelligence on US citizens called “Boundless Informant.”
Snowden was also indicted under the Espionage Act with “unauthorized communication of national defense information.”
If he had any questions about what he would face if he returned to the US for a trial, they were dispelled by Manning’s trial and how she was inhumanely treated while in pretrial confinement. When Snowden requested asylum from Ecuador, he suggested his case was similar to her case and noted that she had been put in conditions of “solitary confinement” before trial. ”Secret documents” had been “presented to the court and secret witnesses have testified.”
“I believe that, given these circumstances, it is unlikely that I would receive a fair trial or proper treatment prior to that trial, and face the possibility of life in prison or even death,” Snowden declared.
The government blocked Manning from arguing that he had “good faith” when selecting what sets of documents to provide to WikiLeaks. Effectively, the possibility of arguing the disclosures were in the public interest was entirely foreclosed. So, unsurprisingly—and to the dismay of high-profile officials like Secretary of State John Kerry, former Secretary of State Hillary Clinton and President Barack Obama, Snowden will not return to the US as long as the Justice Department is employing the draconian Espionage Act to prosecute him.
Additionally, Snowden presented an opportunity to stand up to the US and show that sources could be protected from zealous prosecutions for leaking. WikiLeaks’ Sarah Harrison, who assisted Snowden in leaving Hong Kong and was with him when he found himself stuck in Moscow, has said, “The last example that the world had of how the US government treats a high-value source is Chelsea Manning, who they put into a cage, was tortured, sentenced to prison for 35 years in the end.” WikiLeaks believed it was important to show that “you can speak the truth, you can blow the whistle, and you don’t have to end up in a cage; there are people that will support you, that there are people that will take risks for you, when you have risked so much, and you can have asylum in a country.”
There is much that has been learned and not learned. While there were spurts of intense coverage by the US news media, the trial of Manning did not receive the widespread coverage it should have had so Americans could truly confront this issue of government secrecy and whether it is appropriate to prosecute leakers as if they are “espionage actors,” who have become traitors against their government.
The case was always too complex for media to fashion into a story of good versus evil. There were reporters, who found it tedious, and a CNN reporter named Larry Shaughnessy, who routinely fell asleep. He much preferred being sent to cover the case of Maj. Nidal Hasan, who went on a shooting rampage at Fort Hood, killed thirteen people and was ultimately sentenced to death. There was less ambiguity he had to deal with, and, perhaps, that ambiguity is what led a number of reporters to be largely indifferent or disinterested in Manning’s case.
Overall, Amnesty International appears to be one of the only prominent organizations that grasps the significance of her case, what it means that she remains in jail and is still willing to advocate for her.
“Chelsea Manning has spent the last year as a convicted criminal after exposing information which included evidence of potential human rights violations and breaches of international law,” the organization declared. “By disseminating classified information via Wikileaks she revealed to the world abuses perpetrated by the US army, military contractors and Iraqi and Afghan troops operating alongside US forces.”
The human rights organization has renewed its initial call to US authorities to “grant her clemency, release her immediately, and to urgently investigate the potential human rights violations exposed by the leaks.”
While she is in prison for having a concern about the lack of debate about the wars in Iraq and Afghanistan, as well as other abuses in the “war on terrorism,” the very people responsible for war crimes and crimes against humanity continue live life openly without any fear of being held accountable. In fact, at the CIA, the director, John Brennan, is actively involved in helping former CIA officers plan a campaign to discredit a Senate intelligence committee report on torture when it is partially disclosed later this year.
The irony, as was highlighted in coverage of her trial, is that July 30 is a day of significance in whistleblower history. It is a day when the Continental Congress passed America’s first whistleblower protection law. In fact, as she was convicted, the Senate decided to make this day “National Whistleblower Appreciation Day.”
Her conviction will forever be a reminder that there is a whole class of whistleblowers that the political elites and wider American society are unwilling to deem worthy of protection from being silenced, especially as they profess appreciation for the cause of whistleblowing and claim to champion protections for others.
Sketch by Alicia Neal and from the Chelsea Manning Support Network