The Bradley Manning Verdict Will Create Massive Chilling Effects For Whistleblowers And Journalists

Following the Bradley Manning verdict, a number of individuals and organizations have weighed in to highlight just how big the chilling effects of the guilty verdict will be. While being found not guilty of “aiding the enemy” meant that it wasn’t the “worst case” scenario, it’s still bad. Dan Gillmor does an excellent job laying out the simple facts about how the “unrelenting war” on leaks and whistleblowing will have damaging impact on the press, and by extension, the public.

For those who want to tell the public what the government is doing with our money and in our name, there are new imperatives. Governmental secrecy, surveillance and the systematic silencing of whistleblowers require updated methods for journalists and journalism organizations of all kinds. Americans pursuing this craft have to understand the risks and find countermeasures.

That is not enough. The public needs to awaken to the threat to its own freedoms from the Obama crackdown on leaks and, by extension, journalism and free speech itself. We are, more and more, a society where unaccountable people can commit unspeakable acts with impunity. They are creating a surveillance state that makes not just dissent, but knowledge itself, more and more dangerous. What we know about this is entirely due to leakers and their outlets. Ignorance is only bliss for the unaccountable.

Gillmor also quotes another journalist, Jeremy Scahill, who points out that: “We’re in a moment when journalism is being criminalized.”

Many in the journalism world are realizing this. Reporters Without Borders put out a statement about how damaging this is for investigative reporters and their sources:

The verdict is warning to all whistleblowers, against whom the Obama administration has been waging an unprecedented offensive that has ignored the public interest in their revelations. It also threatens the future of investigative journalism, which risks finding its sources drying up.

“The information that Manning allegedly passed to WikiLeaks — used by newspapers such as The New York Times, The Guardian, Der Spiegel and Le Monde in coordination with Julian Assange’s website — included revelations of grave abuses in the ‘war on terror’ launched by the Bush administration,” Reporters Without Borders said.

Similarly, the Freedom of the Press Foundation is worried about the consequences, specifically over the conviction over the CFAA and how this will impact future cases:

Manning is now the most high profile conviction under President Obama’s crackdown on leakers. As has been well documented, his administration has prosecuted more leakers under the Espionage Act that all other administration’s combined, and has cast a distinct chill over investigative journalism.

The Espionage Act, a draconian statute written in 1917 as a way to punish non-violent opponents of World War I, has unfortunately been used in recent years to equate leakers and whistleblowers with spies and traitors. Facilitating that warped view in Manning’s trial, the judge ruled early on that the defense was not allowed to put forth evidence of Manning’s sole intent to inform the American public, or evidence showing that none of the information materially harmed national security.

Today’s ruling also opens up a new avenue for charging leakers and whistleblowers—section (a)(1) of the Computer Fraud and Abuse Act, which until now, has never led to a conviction. It’s was crafted in the 1990s by using some of the worst parts of the Espionage Act and adding the phrase “with a computer.”

Michael Calderone, over at the Huffington Post noted that future whistleblowers of government fraud and abuse are likely to think twice now — which some might argue was the entire point of the overzealous prosecution.

That Manning was convicted of six counts of espionage, out of 19 counts total, highlights the Obama administration’s unprecedented use of the Espionage Act to prosecute individuals for leaking information not to foreign governments, but to the media. The Obama administration has invoked the Espionage Act seven times, with the most recent example being in the case of Edward Snowden, a former NSA contractor who shed light on the extent of the U.S. surveillance state with leaks to The Guardian and the Post.

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, said it’s a “very scary precedent” that “despite the lack of any evidence that he intended any harm to the United States, Manning faces decades in prison.”

If basic whistleblowers are frightened, it’s going to make the press’s job harder, and it’s going to make the government’s ability to commit fraud and abuse that much easier.

Meanwhile, the EFF has pointed out the ridiculousness of the CFAA conviction as a part of the ruling against Manning:

the decision today continues a trend of government prosecutions that use familiarity with digital tools and knowledge of computers as a scare tactic and a basis for obtaining grossly disproportionate and unfair punishments, strategies enabled by broad, vague laws like the CFAA and the Espionage Act. Let’s call this the “hacker madness” strategy.  Using it, the prosecution portrays actions taken by someone using a computer as more dangerous or scary than they actually are by highlighting the digital tools used to a nontechnical or even technophobic judge.

In the Manning case, the prosecution used Manning’s use of a standard, over 15-year-old Unix program called Wget to collect information, as if it were a dark and nefarious technique. Of course, anyone who has ever called up this utility on a Unix machine, which at this point is likely millions of ordinary Americans, knows that this program is no more scary or spectacular (and far less powerful) than a simple Google search. Yet the court apparently didn’t know this and seemed swayed by it.

You can argue that Manning didn’t follow the chain of command to blow the whistle (even though he tried) and that he released documents that he shouldn’t have (even if there’s no evidence that they did any real harm), but the impact of this ruling, and the eventual sentencing is going to have far-reaching implications, beyond just Manning. The government’s overzealous prosecution is going to have serious chilling effects, and has opened up some highly questionable legal theories just because this leak happened “with a computer.”

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