The attention of the press faded from Bradley Manning rapidly after NSA-leaker Edward Snowden decamped first for Hong Kong and then Russia. It was more exciting to imagine how Snowden planned to elude authorities and plan a potential escape for political asylum than to keep track of Manning’s incarceration, which as of yesterday tallied 1,161 days, including 23 days in court-martial proceedings. On Tuesday, Manning was found guilty of most of the 22 counts he faced, including six counts of violating the Espionage Act and several counts of stealing government property, but not guilty of the charge of aiding the enemy for having released a treasure’s trove of classified U.S. government documents—250,000 State Department cables and 500,000 military war logs concerning Afghanistan and Iraq—to WikiLeaks. To date, since Snowden’s NSA disclosures may not have run their full course, Manning’s actions constitute the largest leak of restricted U.S. documents ever in history.
Were Manning’s trial or his leaks of any real importance to nonprofits? To the extent that the public has been following his court-martial, commentary is sharply divided between those who view Manning as a hero whistleblower and those who see him as a traitor who violated his military oath. Regardless what one thinks of what Manning did, there are implications for nonprofits in the consequences.
While Manning’s disclosures in volume simply dwarf other previous leaks in U.S. history, the Manning case (and the Snowden case) raise significant questions about what it means to be someone who leaks secret government information to the press. At much smaller, discrete magnitudes, it happens every day in Washington DC as White House and Congressional players leak information to the press. Last year’s interesting case involved the White House fighting off lawsuits demanding public access to information about the raid on Osama bin Laden’s compound while White House staff were selectively leaking information about the raid to the press.
In Manning’s case, the administration essentially charged him with treason; that is, leaking information meant to benefit the enemies of our country. According to the prosecution, documents released by Manning were found in Osama’s compound after the Navy SEALs’ attack. No one suspected that Manning sent al Qaeda the documents himself, but the charge was that he meant our enemies to get them and use them—in so many words, that he knew that the release would benefit enemies of the United States. That’s a pretty porous definition of aiding the enemy and could be used to stanch lots of leaks. Had Manning been convicted for aiding the enemy, it stands to reason that journalists who received or used his information might fall into the trap that NBC Meet the Press host David Gregory tried to catch the Guardian’s Glenn Greenwald in: potentially having criminally aided or abetted NSA-leaker Snowden. Rights nonprofits that often have to look for government leaks to learn about essential information are going to have to watch the evolution of government attitudes and treatment of government leakers quite closely. Press outlets will have to be aware that their distribution of information from government leakers might subject them to the accusation of having abetted someone who the government believes was engaged in wrongdoing.
Is Manning a whistleblower? Is Snowden? To some extent, whistleblowers who reveal evidence of illegal government activity receive protection under various laws. However, the Obama administration has been more aggressive in its prosecution of potential whistleblowers than any preceding administration. Besides Manning, there are a number of other people being prosecuted by the administration for leaking secret information, including Shamai Leibowitz for leaking transcripts of FBI wiretaps of the Israeli embassy, Stephen Jim-Woo Kim for leaking information to Fox News’s James Rosen about North Korea, and Jeffrey Sterling for leaking information about Iran’s nuclear program to James Risen of the New York Times.
The argument of some nonprofit critics is that Manning was disclosing evidence of U.S. war crimes. The oft-replayed video of a U.S. “Apache” gunship helicopter shooting at a dozen or so people on a street in Iraq, killing several including two Reuters news employees, is just one instance of potential war crimes. The Center for Constitutional Rights explained its concern about the government’s Espionage Act prosecution:
“Government employees who blow the whistle on war crimes, other abuses and government incompetence should be protected under the First Amendment. We now live in a country where someone who exposes war crimes can be sentenced to life even if not found guilty of aiding the enemy, while those responsible for the war crimes remain free. If the government equates being a whistleblower with espionage or aiding the enemy, what is the future of journalism in this country?”
Although lauding the court for rejecting the charge of aiding the enemy (calling the prosecution of Manning “an unprecedented case of judicial overreach”), the Government Accountability Project noted that Manning, along with Snowden and NSA whistleblower Thomas Drake, “have all suffered various incarceration, professional and financial ruin, and exile. This is precedent and, unfortunately, what Americans can now expect from their country when they expose unconstitutional and repressive actions approved secretly by all three branches of government.”
Ultimately, the issue is that, in today’s technological era, leaks end up on the Internet for anyone to see and use. When Daniel Ellsberg released what became known as “the Pentagon Papers,” the distribution mechanism was getting print newspapers to publish serially, as the government shut down one and then another’s disclosures. Now, Bradley Manning gives the information to WikiLeaks, taking advantage of commonly available programs such as the Wget utility on a Unix-equipped computer, and the disclosures are quickly available to anyone with access to Google or any Internet browser.
The Electronic Frontier Foundation decried the government’s prosecution argument aimed at a leaker’s knowledge of computer technologies as a “‘hacker madness’ strategy.” Against the technophobes and Luddites in the judicial system, the use of digital knowledge as a scare tactic is potentially quite powerful. Tarring the computer savvy as potential dangers whose releases could end up on the Internet without regard for the consequences elevates those who know their way around computers above pedestrian leakers like Ellsberg to a threat far more sinister—simply because of the technology. One new role for technology nonprofits might be to educate the public, the judiciary, and perhaps the whistleblower-chasing Obama administration against hacker madness overreactions.
Manning actually pled guilty to a number of the charges, with cumulative penalties of as many as 74 years in prison (though Manning’s attorneys had requested imprisonment of around 18 years). The government wasn’t satisfied with that, though, and leaned heavily on charges that his purported espionage had caused damage to the interests of the government.
Did Manning damage the interests of the government, or the interests and operations of the U.S. military? His lawyers will argue in his sentencing hearings that Manning’s disclosures embarrassed the U.S. government, but actually didn’t cause harm. More controversial than Manning or Snowden in some ways, WikiLeaks founder Julian Assange had a point when he said, in his commentary on the verdict, “The prosecution did not present evidence that—or even claim that—a single person came to harm as a result of Bradley Manning’s disclosures.” A statement from the American Civil Liberties Union in response to the Manning verdict indicated that “the government was seeking to intimidate anyone who might consider revealing valuable information in the future. In other words, even if the government might not have been damaged by the leaks, the fact that the leaked information was valuable—and embarrassing—was enough to compel the government to send a message to people who might want to emulate Manning (or Snowden) in the future.
What counts as worthy of being kept secret? For some years now, the scope of what government deems to be secret appears to be expanding inexorably. It seems easier to stamp “secret” on a document than to take the risk of disclosure to the public. By prosecuting disclosure of secrets, governments get to take action against potential dissidents without having to confront what those dissidents oppose. Rather, the prosecution focuses on the disclosure of an official secret rather than the substance of the dissidents’ complaint. Experts contend that the scope of official secrecy has been expanding rapidly, especially due to the growth of the national security state. Even such legislators as Senator Ron Wyden (D-OR) almost seem pleased that Snowden, for example, made his disclosures about the NSA, because now Wyden can discuss publicly what he has long wanted to, but was prevented from due to secrecy rules. A typical pre-Snowden message by Wyden was this excerpt from a statement he made on the Senate floor in 2011: “I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”
Senator Sheldon Whitehouse (D-RI) charged that the reluctance of the Obama Administration to reveal information about the NSA was to maintain or strengthen the executive branch’s “inherent advantage over the checks of the legislative branch.” Another way of saying that is that secrecy prevents debate over the issues, narrows the latitude available to dissidents, and, if dissidents utilize leaked information, makes people legally vulnerable.
Sad to say, nonprofits haven’t been all that strong on issues of transparency and disclosure. For the most part, nonprofits have been relatively unsupportive of mandatory disclosure provisions concerning donors to 501(c)(4) political organizations, fearing that mandatory disclosure requirements could be extended to 501(c)(3) public charities. But it is more than that. As journalists, we often interview nonprofit leaders who go off the record to keep topics secret for reasons that befuddle us. Sometimes, those refusals to disclose information extend from the banal to the factual; a number of nonprofits play coy with information that will eventually be made public by law, such as nonprofit executives’ salaries. (See Milwaukee’s Summerfest, Scranton’s Chamber of Commerce, and the NCAA, just to name a few examples.) What’s equally disturbing is that most nonprofits don’t call out their peers that hide behind unnecessary secrecy.
Sissela Bok’s wonderful book, Secrets: The Ethics of Concealment and Revelation, addresses a conundrum of secrecy that few of us ever really think about. “With no capacity for keeping secrets and for choosing when to reveal them, human beings would lose their sense of identity and every shred of autonomy. Their plans would be endangered and their creativity stifled; they could not count on retaining even the most fundamental belongings,” Bok wrote. “And yet this capacity too often serves to thwart the very same human needs, since it risks damaging the judgment and character of those who exercise it, and conceals wrongdoing of every kind…Control over secrecy and openness gives power: it influences what others know, and thus what they choose to do.” Her argument, as summarized by reviewer Richard Sennett, was that “secrecy must end when public peril begins.”
Manning’s conviction could bring a sentence of as many as 136 years, though the judge has some limited discretion on the charges and will probably count his time in prison to date against the sentence. The sentencing hearing could go on for some time, probably followed by appeals and more. The debate will envelop Snowden as well—Snowden, were he to return to the U.S., could be pursued as harshly as the government pursued Manning—although probably not subjecting him to solitary confinement, much of the time naked due to government concerns that he might commit suicide. For other whistleblowers, Edward Snowden, and the Obama administration, the results of the Manning court-martial should be an opportunity for a dialogue rooted in the nonprofit sector in its sectoral role as an expression of the democratic values of a free society, to explore how much official, institutional secrecy we need, and when the desire to restrict disclosure becomes a threat to the effectiveness, trustworthiness, and believability of government officials.
This article’s text was altered on August 3, 2013, to correct a typographical error in the second paragraph.