Sentencing Private Manning

Private Bradley Manning last week apologized for leaking secrets. He said he made a mistake. 

He might have made a bigger mistake 25 years ago by being born in the USA.

Had he been born in Denmark, he might have gotten four months for disclosing information a Danish court found highly damaging to national security. That’s the penalty Danish Defense Intelligence analyst Frank Grevil received in 2005 for disclosing threat assessments concerning Iraq’s possession of weapons of mass destruction.

Or, had he been British, he could have been released after serving seven weeks of a six-month sentence, as was David Shayler, the former MI5 member who gave a newspaper 28 security and intelligence files on a variety of topics, including on Libyan links with the IRA, Soviet funding of the Communist party of Great Britain, agents’ names and other highly sensitive information.

Or, given his military status, he might have received a sentence of 12 months in jail – the penalty a British judge gave to Navy petty officer Steven Hayden in 1998 for selling significant security and intelligence information to a newspaper concerning a plot by Saddam Hussein to launch anthrax attacks in the UK. That sentence was the heaviest awarded to any of the eight Britons convicted of disclosing sensitive information since the current Official Secrets Act was passed in 1989.

Given the amount and nature of documents Manning disclosed, what penalty would, under international standards, be considered proportionate to the harm caused?

To answer this and related questions, the Open Society Justice Initiative together with an academic at the University of Copenhagen recently undertook a survey of the laws and practices of 20 European countries.

All of the surveyed states prescribe criminal penalties for the disclosure of classified national security information. However, where there is no spying, treason or disclosure directly to a foreign state, the penalties are far less than in the United States: up to two years in Denmark and Great Britain; four years in Spain and Sweden; five years in Belgium, Germany, Poland, and Slovenia; and seven years in France.

Moreover, prosecutions are rare. In six countries—Albania, Belgium, Norway, Romania, Spain, and Turkey—there has not been a single conviction in the past 10 years. In another 11 countries, there have been less than a handful of prosecutions, and even fewer convictions. Russia is the only country surveyed in which significant numbers of prosecutions have resulted in penalties of more than three years, including, and disturbingly, for the disclosure of human rights violations.

A few months ago, a committee of the Parliamentary Assembly of the Council of Europe welcomed a set of principles, based on international and national law and practices, on national security and the right to information. Called the Tshwane Principles after the South African province where they were finalized, they recommend that any laws that make it a crime to publish information should: 1) specify narrow categories of information whose disclosure may be punished, 2) require proof that the disclosure posed a “real and identifiable” risk of causing “significant” harm, and 3) allow the accused to present a public interest defense. Moreover, any criminal penalty, as set forth in law and as applied, should be proportionate to the harm caused. 

Significantly, the Principles call on states to establish procedures to enable public servants—current and former public employees and contractors, including members of the security forces—to make “protected disclosures” internally and to independent oversight bodies. Such procedures should protect the confidentiality of the identity of the discloser, including, if necessary, from a soldier’s superior officer, and should be effective—requiring, at the least, that oversight bodies have the necessary resources, powers, independence and impartiality to fully investigate claims and lead to adequate remedial measures.

The U.S. Department of Defense has an inglorious record when it comes to treatment of service members who internally disclose evidence of possible wrongdoing. An internal 2011 DoD report, obtained through litigation, found that most military whistleblowers have faced serious reprisals, including career-stopping mental health evaluations, and that few complaints ever prompted remedial action.

Moreover, the Espionage Act of 1917, the main law under which Manning was prosecuted, has been widely criticized, including by sitting U.S. judges, for its overbreadth and vagueness. The Act makes it a crime, punishable by up to 10 years in prison, for anyone in possession of various sorts of “national defense” documents (interpreted to include all classified documents) to communicate them to someone not entitled to possess them. The prosecution is not required to prove harm to national security, intent to harm, or even reason to believe that a document could be used to injure the United States. Judicial opinions that have sought to interpret the Act so as to be consistent with the First Amendment are not authoritative, and have not been accepted by the Obama Administration.

High criminal penalties might deter a person motivated by financial gain, and accordingly high penalties for the sale of information could well make sense. But experience suggests that high penalties have little impact in deterring actors who believe they are right, let alone are also troubled, feel betrayed by their employer or colleagues, and/or have nowhere to turn. Certainly, the Obama administration’s aggressive, albeit selective, prosecution of leakers has been far from effective: of the 10 post-World War II prosecutions of people who disclosed information publicly, seven have been initiated or maintained by this administration. Yet, significant leaks continue. Indeed, Edward Snowden said that Manning’s courage was one of the considerations he weighed in reaching his own decision to disclose.

The most effective response in a democracy to unauthorized, damaging disclosures is not high criminal penalties but a combination of measures: effective internal disclosure procedures, employment policies that promote loyalty, concentration of access to classified information in the hands of trusted employees, and administrative penalties that are applied consistently regardless of the status or politics of the leaker.

Manning undeniably disclosed information of high public interest. Indeed, some of Manning’s disclosures exposed evidence of possible egregious human rights violations—including a gun-ship video showing U.S. soldiers firing on unarmed civilians. On the other hand, disclosure of State Department cables, the chatter of low and mid-level foreign servants, some of which endangered human rights activists who visited U.S. embassies, gives rise to a very different public interest vs. harm calculus. The fact that the video and many other documents contributed to democratic oversight does not justify disclosure of huge numbers of documents that were of negligible public interest, some of which undoubtedly caused harm to individuals.

Manning was found not guilty of aiding the enemy. He has already served three years in jail, including more than 11 months in solitary confinement under conditions that a UN expert found might have constituted torture. His punishment should be proportionate to the actual harm caused.

The U.S. government, rather than hounding the often idealistic, sometimes unwise persons who gain access to troves of discomfiting information, should instead focus on developing procedures to protect legitimate secrets and facilitate internal whistleblowing.

It should investigate evidence of war crimes and other wrongdoing exposed by Manning and report back to the American people. The Espionage Act should be substantially amended. And the military, which has the authority to parole Manning after he has served one-third of his sentence, should do so at the earliest possible date.