Lawyers for Chelsea Manning this week filed a sentencing appeal on behalf of the 28-year-old former U.S. army private, arguing that giving her 35 years in prison for leaking a huge cache of government documents was “grossly unfair and unprecedented.”
Describing the sentence as “perhaps the most unjust sentence in the history of the military justice system,” Manning’s legal team argued that she had been portrayed as a traitor to the United States when “nothing could be further from the truth.”
The appeal was supported by a number of third-party interventions, including one from the Open Society Justice Initiative, which compared the 35-year sentence given to Manning to similar cases in 30 other countries.
We found that in at least 12 countries, penalties for the unauthorized public disclosure of national security information are limited to five or fewer years’ imprisonment, unless the state proves that there is espionage, treason, delivery to a foreign country, or intent to prejudice the country’s security or defense.
Recent cases from the United States’ close allies, including for multiple disclosures that caused grave harm, resulted in penalties of less than 10 years, except where the government proved intent to harm the security of the state.
The countries surveyed include Australia, Canada, New Zealand, and the UK, which together with the United States comprise the “Five Eyes,” and with which the United States shares nearly all of its signals intelligence.
Among the Five Eyes nations: the laws of Australia and the UK provide for maximum penalties of two years, in the absence of proof of intent to harm their countries’ security. New Zealand law provides a three-year maximum term.
Canadian law authorizes penalties of up to 14 years for the communication, without authority, of “special operational information,” including the content of military plans, the objects of covert operations, the identity of covert agents, and other highly safeguarded information. However, the law states that no person is guilty of this offense “if the public interest in the disclosure outweighs the public interest in nondisclosure.”
Even if the public interest in the disclosure does not outweigh the interest in nondisclosure, the public interest value of the disclosure may be considered as a mitigating circumstance.
This same test has been adopted and repeatedly applied by the European Court of Human Rights, the top court of the Council of Europe (comprised of 47 member states representing more than 820 million people).
For instance, in 2013, the European Court determined that a two-year sentence, given to a telecommunications analyst in one of Romania’s military intelligence units who disclosed “top secret” information about “irregular” surveillance, violated his rights. The court reasoned that the general interest in the disclosure of information revealing irregular surveillance authorized by high-ranking officials was so important in a democratic society that it prevailed over the interest in maintaining public confidence in the intelligence agency.
Documents can be of high public interest if they provide significant evidence of war crimes or other violations of law, reveal clear misrepresentations to the public by government officials, or provide significant information about important matters of public debate.
The case of Anat Kamm, an Israeli soldier who gave 2,000 secret documents to the press, provides a compelling illustration of the application of the public interest defense. On appeal, Israel’s Supreme Court reduced her sentence to 3.5 years’ imprisonment, taking into consideration, among other factors, her youth, her admission of guilt and expression of regret, and her motivation to expose wrongdoing in the military.
The most pertinent UK case is that of David Shayler, a former MI5 member who gave a newspaper 28 security and intelligence files, deemed “highly sensitive,” including on Libyan links with the IRA, Soviet funding of the Communist Party of Great Britain, and the names of undercover agents. He was sentenced to six months and was released after serving seven weeks.
What was the public interest in Manning’s disclosures?
Among other things, her disclosures showed that coalition forces had significantly underreported the killing of civilians by coalition forces in both Afghanistan and Iraq, and that many of these killings had not even been investigated. For instance, the Guardian reported that the Afghan war files “for the first time … reveal details of deadly missions by an elite task force … hunting down … targets that were previously hidden behind a screen of misinformation.” Other documents describe unreported or misleadingly reported friendly-fire incidents between Afghan police and army forces, coalition forces, and the U.S. military, and that U.S. contractors had hired local male child prostitutes.
The files show that U.S. authorities knew about widespread torture and ill-treatment of detainees by Iraqi forces, yet transferred thousands to Iraqi custody between early 2009 and July 2010, in violation of U.S. obligations under the UN Convention against Torture, and other treaties.
The Iraqi war files 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 on a crucial policy matter is strong evidence of their public interest value.
As stated by Secretary of State John Kerry, then chair of the Senate Foreign Relations Committee: “However illegally these documents came to light, they raise serious questions about the reality of America’s policy toward Pakistan and Afghanistan. … Those policies are at a critical stage, and these documents may very well underscore the stakes and make the calibrations needed to get the policy right more urgent.”
Manning’s defense team is arguing that “no whistleblower in American history has been sentenced this harshly,” and that Manning was excessively charged and illegally held while awaiting trial in conditions amounting to solitary confinement. The appeal suggests that her sentence be reduced to 10 years.