Chelsea Manning and the case against Edward Snowden
17 May 2017|

Image courtesy of Flickr user Sterling G.

With Chelsea Manning’s release from prison imminent, following the surprise commutation of her sentence in January by former President Obama, the issue of what happens to Edward Snowden will resurface.

Manning was sentenced to jail for 35 years for the largest unauthorised release of classified information in US history at that time and Obama’s act of clemency took her supporters and detractors alike by surprise. Both remain unsettled about what it means.

For those who condemn Obama’s action, including the weighty opinion of House Speaker, Paul Ryan, Manning is one of the worst traitors in US history, and deserved her sentence. Supporters, the highest-profile being Wikileaks and the American Civil Liberties Union which represented Manning, saw it as too long in coming and a precedent for Snowden and Assange.

But there is little comparison. A pillar of the criminal justice system is mens rea or intent which provides, for example, the difference between murder and manslaughter. Manning did consciously and deliberately elect to break the law in 2010 by releasing to Wikileaks around three quarters of a million sensitive government documents, causing immeasurable harm to US and coalition interests. But this was not her purpose in 2007 when, as Bradley Manning, she joined the United States Army, or even when she later deployed to Iraq.

Like many military personnel, Manning enlisted in the hope of a better life including a good education. Her personal issues, including gender identity and bullying, saw her career see-saw from being slated for discharge on mental health grounds through to becoming an intelligence analyst with a high-level security clearance deployed to Iraq.

Snowden, by his own admission, sought out a contractor position with Booz Allen working for the NSA in Hawaii. He took a pay cut to access classified data for release, although most of the data he released he’d already downloaded during his previous job as a contractor for Dell. Snowden didn’t find himself stranded in a job he’d been posted into while in a difficult personal situation: this was a conscious plan implemented over years to steal and publicly release information.

Another element of the justice system is acknowledging guilt and facing the consequences. Manning pleaded guilty to 10 of 22 charges, with the most serious charge of aiding the enemy later dropped. She was found guilty on 17 charges and amended versions of the remaining four, and sentenced to prison. With her now-commuted sentence she will have served seven years when she is released. This is far greater than any other recent US espionage case.

Snowden, by contrast, has never faced justice for his crimes. His carefully planned getaway, captured in documentary form after he contacted a filmmaker, ensured the information was released when he was outside the US. Hong Kong authorities denied a US request for his extradition, and he flew to Russia, where he reportedly remains. Snowden says he won’t return to the US as the charges don’t allow him to defend himself in open court; this is the argument of a conspiracy theorist who doesn’t recognise US law or responsibility to justice.

The third issue is the much-discussed matter of the whistleblower. And here we focus starkly on Snowden. For in the three years between Manning’s revelations and Snowden’s, the US intelligence community and its global partners had turned themselves inside out to understand what had happened and why. A key initiative from this was whistleblower protection.

The US, Australia and others have institutionalised mechanisms for employees to raise concerns through internal arrangements or through an external independent body, although in 2013 there were issues about how accessible these were for contractors in the US. Snowden says he tried to raise concerns internally, though the NSA says there is no record; and Snowden has not yet been able to produce evidence to support his claim, despite secreting hundreds of thousands of documents from the NSA for public release.

It is easy to allege secrecy about the machinations of intelligence agencies. But the reality of probity and rule of law in democracies—particularly after Manning—is that there are many lawful ways to deal with a perceived legal or ethical issue other than plotting to commit a crime by recklessly releasing information on capabilities and individuals to the entire world. There are also residual issues that face any organisation of how likely these are to change approved government policies and programs.

As President Obama stated, the manner of Snowden’s sensational disclosures had often ‘shed more heat than light’, and revealed US capabilities to adversaries rather than seeking to improve US government ethics and accountability.

Manning committed the largest release of government information in the history of the US to that date. But Manning was a deeply troubled individual who faced up to her crimes and served punishment. The President elected to apply clemency for time served and took into account her situation, including troubled mental health and good behaviour in custody.

While Snowden’s case demonstrates some psychological issues, these manifest in different ways. Far from being bullied, Snowden exaggerated his educational qualifications and experience, engaged confidently in the workplace and ultimately betrayed his colleagues without empathy. Despite his protestations that this was not about him, engaging journalists and filmmakers suggests the opposite, as does his insistence that only his view of the world is right and that his conduct was above reproach.

President Obama broke the record books with his use of the Presidential pardon and commutation power during his time in office, but it was never likely he would absolve Snowden of his crimes. Indeed, in 2015 the White House confirmed it wouldn’t pardon Snowden. Under the Trump administration, a pardon would be unthinkable.