Chelsea Manning Was No Criminal

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Politico.com

Chelsea Manning Was No Criminal

Many Americans have been perplexed about how to view the prosecution of Chelsea Manning, who was sentenced this week under the name Bradley Manning.

On the one hand, they’re not comfortable with the notion that any Army private should be able to decide for herself, without consequences, which government records should be made public. On the other, they’ve witnessed, time and again, government officials abusing their classification authority to protect themselves from embarrassment and accountability, not to protect the nation from harm, and they wonder why much of the information that Manning disclosed had been hidden from the public in the first place.

Among the more blatant injustices of the Manning case is that Manning was prosecuted more intensely, and punished far more harshly, than other soldiers (and their superiors) who authorized and engaged in war crimes, including the torture of prisoners and the killing of civilians.

How should the American legal system accommodate both the government’s legitimate (though narrow) interest in protecting some secrets and the public’s vital need to know enough about government conduct to ensure democratic accountability and adherence to the nation’s values? The draconian 35-year sentence handed down to Manning – by far the longest sentence ever imposed by a democratic government for leaks to the press – shows that we have a long way to go in getting that balance right. Here are a few principles that could help inform a saner and more nuanced policy towards unauthorized disclosures.

1. Government employees who expose misconduct should not be punished more severely than those who engage in misconduct. Among the more blatant injustices of the Manning case is that Manning was prosecuted more intensely, and punished far more harshly, than other soldiers (and their superiors) who authorized and engaged in war crimes, including the torture of prisoners and the killing of civilians. A justice system that “looks forward rather than backward” with respect to grave human rights abuses, while extending no mercy to those who break secrecy rules in good faith, will have serious legitimacy problems, and rightly so.

2. Not all leaks are the same, and the law should not treat them the same. Unauthorized leaks to the press play a critical role in a democracy. Without them, the American public might never have learned about torture in Abu Ghraib, the CIA’s “black-site” prisons, the NSA’s domestic surveillance operations, and other matters of vital public concern. Whistleblowers who disclose information about these kinds of government activities should be able to defend themselves on the ground that the public benefit of their disclosures far outweighed any claimed harms to security. Indeed, unauthorized disclosures of information relating to government fraud, corruption, or illegal activities should not be prosecuted at all, because in these instances the public’s right to know categorically outweighs the government’s interest in secrecy.

3. The government should have to demonstrate that the leaked information had been properly withheld form the public. Rampant overclassification of information about critically important government activities is a chronic and widely recognized problem. Against that backdrop, criminal liability for leakers can’t rest exclusively on a classification decision made by an intelligence community bureaucrat; a judge and jury must be able to consider whether the information had been withheld from the public for legitimate security reasons.

4. The government should be consistent in its enforcement of criminal laws against leaking. The current prosecutions of leaks to the press must be considered against the backdrop of ubiquitous leaking. As the CIA’s general counsel told Congress in 1979, if leaking national security information without subversive intent is a crime, “we have had in this country for the last 60 years an absolutely unprecedented crime wave.” Since then, the pace of government leaking hasn’t slowed; leaks — both tacitly authorized and otherwise — remain an integral part of the media’s daily reporting in an age of government secrecy. Even while the Obama administration has brought an unprecedented number of leak prosecutions, it has simultaneously provided favored reporters with vast amounts of classified information for the production of news reports and books that further its preferred narrative. When the government chooses to prosecute only disfavored leaks, while systematically failing to pursue many hundreds of leaks that advance its interests, it loses even more legitimacy.

5. The government should be consistent in its enforcement of criminal laws against leaking. The current prosecutions of leaks to the press must be considered against the backdrop of ubiquitous leaking. As the CIA’s general counsel told Congress in 1979, if leaking national security information without subversive intent is a crime, “we have had in this country for the last 60 years an absolutely unprecedented crime wave.” Since then, the pace of government leaking hasn’t slowed; leaks — both tacitly authorized and otherwise — remain an integral part of the media’s daily reporting in an age of government secrecy. Even while the Obama administration has brought an unprecedented number of leak prosecutions, it has simultaneously provided favored reporters with vast amounts of classified information for the production of news reports and books that further its preferred narrative. When the government chooses to prosecute only disfavored leaks, while systematically failing to pursue many hundreds of leaks that advance its interests, it loses even more legitimacy.

Now apply these principles to Manning’s leaks. Isn’t it clear that a sentence of 35 years is manifestly excessive? It’s beyond serious debate that Manning’s disclosures included information of enormous public significance. The world’s leading newspapers, which received the documents, could have returned them to the government; instead, they published them on their front pages, exposing previously concealed evidence of civilian deaths in Iraq and Afghanistan, U.S. efforts to quash European criminal investigations into CIA rendition and torture, U.S. involvement in drone strikes in Yemen, and many other matters of global concern. And, notwithstanding accusations from government officials that Manning had “blood on his hands” as a result of the disclosures, the government’s evidence did not match its rhetoric; it conceded during the trial that it could not link a single death to Manning’s disclosures.

A justice system that bluntly equates leaks to the press in the public interest with espionage, and imposes unduly harsh punishment, might well deter some would-be leakers. But it will also deprive the American people of information that is indispensable to holding public officials’ feet to the fire and ensuring adherence to our nation’s highest ideals. Manning will not be the only victim of the government’s overreach.

Ben Wizner

Ben Wizner is the Director of ACLU’s Speech, Privacy & Technology Project, which is dedicated to protecting and expanding the First Amendment freedoms of expression, association, and inquiry

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