NEW YORK—The 35-year prison sentence handed down to Chelsea Manning by a United States military court in August 2013 far exceeds international legal norms and should be reduced, according to a brief filed this week by the Open Society Justice Initiative in support of Manning’s appeal against her conviction and sentence.
In an amicus curiae brief submitted to the U.S. Army Court of Criminal Appeals, Virginia, the Justice Initiative notes that a survey of 30 countries shows the sentence to be “far higher than the penalties that our closest allies would consider proportionate in light of the evidence regarding her motive and intent, and the public interest value of some of the disclosures.”
Sandra Coliver, who heads the Justice Initiative’s work on freedom of information, said: “Manning was found not guilty of aiding the enemy. She has already served almost six years in jail, including more than 11 months in solitary confinement. Her sentence of 35 years’ imprisonment is clearly disproportionate to any harm caused by her disclosures and is significantly out of step with the penalty she would have received in other democracies, including our closest intelligence-sharing and military allies.”
The Justice Initiative’s research shows that in at least 12 countries, penalties for the unauthorized public disclosure of national security information are limited to five or fewer years’ imprisonment, absent proof of espionage, treason, delivery to a foreign state, or intent to prejudice the country’s security or defense.
The laws of most other countries surveyed provide for maximum penalties of up to 10 years’ imprisonment, except for Canada’s law, which authorizes penalties of up to 14 years but allows the court to take into account whether a leak of confidential information served the public interest (a defense which is not recognized in U.S. law).
The countries surveyed include Australia, Canada, New Zealand and the United Kingdom, with which the U.S. shares nearly all of its signals intelligence, as well as Israel, France, Germany and Spain. More than 30 lawyers and legal experts from around the world contributed information to the survey.
The brief draws parallels between Manning and the case in Israel of Anat Kamm, a young female soldier with the Israel Defense Forces (IDF) who in 2008 copied more than 2,000 documents from her commander’s computer dealing with extra-judicial killings by the army which she then gave to a journalist. Although the chief of Israeli intelligence argued that the leak threatened state security and potentially endangered IDF soldiers and civilians, Kamm was sentenced to four-and-a-half years in prison, a sentence subsequently reduced to three-and-a-half years by the Israeli Supreme Court. The court took into consideration factors including Kamm’s youth, lack of prior convictions, admission of guilt, and motive to expose wrong-doing.
The brief argues: “Like Kamm, Manning admitted guilt, expressed regret, was young when she made the disclosures, had an altruistic motive to serve the public interest, and had no prior offenses.” It cites the case of Mordechai Vanunu, the Israeli nuclear technician who served an 18-year sentence for having leaked details of the country’s nuclear program to the press in 1986: Israel’s nuclear capability is Israel’s most closely guarded secret, and Vanunu’s declared intent was to harm that capability.
In the United Kingdom, the brief notes that the Armed Forces Act of 2006 provides for a penalty of no more than two years in prison for deliberately releasing information that might be useful to an enemy. David Shayler, a former intelligence agent who delivered secret files to the media in 2001 was given a six month sentence, and was released after serving just seven weeks.
The Justice Initiative has extensive expertise in international law and practice in the area of national security. Among other activities, it facilitated the drafting of the Tshwane Principles on National Security and the Right to Information – in consultation with experts, including security professionals, from over 70 countries – which provide guidance to those drafting, revising or implementing laws relating to a state’s authority to withhold information on national security grounds and to punish those who release it without authorization.
The brief also notes that international law recognizes that high public interest in unauthorized disclosures should be considered as a factor that mitigates the penalty—even if they cause some harm to national interests.
It states that while much of the information released by Manning might not meet the legal standard of being of “high public interest” some of the material clearly did: in particular, military files regarding the conduct of the wars in Afghanistan and Iraq. It further notes that the Iraq disclosures in particular “were widely claimed to have played a significant role in President Obama’s decision not to extend the deployment of U.S. soldiers in Iraq.”
“Whether or not one agrees with the wisdom of that decision, that the disclosures influenced public opinion to such an extent…is strong evidence of their public interest value,” it states.
Manning’s appeal was filed by his lawyers Nancy Hollander and Vincent Ward of Freedman Boyd Hollander Goldberg Urias & Ward, together with Capt. Dave Hammond, JA, U.S. Army Defense Appellate Division. Three other amicus curiae briefs have been filed: by Amnesty International; the American Civil Liberties Union (ACLU); and, jointly, the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers and the Center for Democracy and Technology.