tag:theconversation.com,2011:/us/topics/chelsea-manning-19496/articlesChelsea Manning – The Conversation2023-06-09T15:44:39Ztag:theconversation.com,2011:article/2073732023-06-09T15:44:39Z2023-06-09T15:44:39ZTrump charged under Espionage Act – which covers a lot more crimes than just spying<figure><img src="https://images.theconversation.com/files/531151/original/file-20230609-15-kmec9x.jpg?ixlib=rb-1.1.0&rect=35%2C11%2C7912%2C5147&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump was on the campaign trail in early June 2023, as an investigation continued that led to his indictment on federal charges.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-and-2024-presidential-hopeful-donald-news-photo/1258360358">Andrew Caballero-Reynolds/AFP via Getty Images</a></span></figcaption></figure><p>Former President Donald Trump’s <a href="https://www.washingtonpost.com/national-security/2023/06/09/indictment-document-trump-classified-documents-pdf/">indictment by a federal grand jury</a> in Miami includes <a href="https://www.washingtonpost.com/dc-md-va/2023/06/09/trump-charges-classified-documents/">31 counts of violating</a> a part of the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37">Espionage Act of 1917</a>.</p>
<p><a href="https://theconversation.com/free-speech-wasnt-so-free-103-years-ago-when-seditious-and-unpatriotic-speech-was-criminalized-in-the-us-160835">The Espionage Act</a> has historically been employed most often by law-and-order conservatives. But the biggest uptick in its use <a href="https://apnews.com/article/north-america-donald-trump-ap-top-news-elections-barack-obama-9d9a76067d5b47e5a290dc9832369c92">occurred during the Obama administration</a>, which used it as the hammer of choice for national security leakers and whistleblowers. Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage. </p>
<p><a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">We are</a> both <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">attorneys who specialize in</a> and teach national security law. While navigating the sound and fury over the Trump indictment, here are a few things to note about the Espionage Act.</p>
<h2>Espionage Act seldom pertains to espionage</h2>
<p>When you hear “espionage,” you may think spies and international intrigue. One portion of the act – <a href="https://www.law.cornell.edu/uscode/text/18/794">18 U.S.C. section 794</a> – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment. </p>
<p>That aspect of the law is best exemplified by the convictions of <a href="https://www.npr.org/2020/12/30/951334047/jonathan-pollard-cold-war-spy-who-spent-30-years-in-u-s-prison-arrives-in-israel">Jonathan Pollard in 1987</a>, for spying for and providing top-secret classified information to Israel; <a href="https://www.fbi.gov/history/famous-cases/aldrich-ames">former Central Intelligence Agency officer Aldrich Ames in 1994</a>, for being a double agent for the Russian KGB; and, in 2002, former <a href="https://www.fbi.gov/history/famous-cases/robert-hanssen">FBI agent Robert Hanssen, who was caught selling U.S. secrets</a> to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences. </p>
<p>But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-2057-synopses-key-national-defense-and-national-security-provisions">certain sensitive government information</a>. </p>
<p>Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for a document’s return. Trump’s charges reportedly include an allegation of “unauthorized retention of <a href="https://www.nytimes.com/2023/06/08/us/politics/trump-indictment-charges.html">national security documents</a>,” which can include both possessing the documents and refusing to return them to the government. All of these prohibited activities fall under the separate and more commonly applied section of the act – <a href="https://www.law.cornell.edu/uscode/text/18/793">18 U.S.C. section 793</a>.</p>
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<a href="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a military uniform is escorted onto a vehicle by a man in a dark shirt and khakis." src="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chelsea Manning, in uniform, after being sentenced on Aug. 21, 2013, to 35 years in prison after being found guilty of several counts under the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/army-private-first-class-bradley-manning-is-escorted-by-news-photo/177149744?adppopup=true">Photo by Mark Wilson/Getty Images</a></span>
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<h2>A violation does not require an intention to aid a foreign power</h2>
<p>Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. interests is generally enough to trigger a possible sentence of 10 years.</p>
<p><a href="https://www.nytimes.com/2022/08/14/us/politics/trump-documents-explanations.html">Current claims by Trump supporters</a> of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.” </p>
<p>One of the most famous Espionage Act cases, <a href="https://www.nytimes.com/2019/05/23/us/politics/assange-indictment.html">known as “Wikileaks</a>,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed. </p>
<p>Two recent senior Democratic administration officials – <a href="https://www.reuters.com/article/us-people-sandyberger-obituary/former-u-s-national-security-adviser-sandy-berger-dies-idUSKBN0TL1OL20151203">Sandy Berger</a>, national security adviser during the Clinton administration, and <a href="https://www.britannica.com/biography/David-Petraeus">David Petraeus</a>, CIA director under during the Obama administration – <a href="https://www.washingtonpost.com/world/national-security/how-david-petraeus-avoided-felony-charges-and-possible-prison-time/2016/01/25/d77628dc-bfab-11e5-83d4-42e3bceea902_story.html">each pleaded</a> guilty to misdemeanors <a href="https://www.justice.gov/archive/opa/pr/2005/April/05_crm_155.htm">under the threat</a> of Espionage Act prosecution. </p>
<p>Berger took home a classified document – <a href="https://www.washingtontimes.com/news/2022/aug/9/national-archives-documents-center-trump-raid-have/">in his sock</a> – at the end of his tenure. Petraeus <a href="https://www.politico.com/story/2016/06/fbi-petraeus-shared-top-secret-info-with-reporters-224023">shared classified information</a> with an unauthorized person for reasons having nothing to do with a foreign government. </p>
<h2>The act is not just about classified information</h2>
<p>Some of the documents the FBI sought and found in the Trump search <a href="https://www.npr.org/2022/08/12/1117277865/read-the-full-warrant-documents-from-fbi-search-of-trumps-mar-a-lago-home">were designated</a> “top secret” or “top secret-sensitive compartmented information.” </p>
<p>Both classifications tip far to the serious end of the sensitivity spectrum. </p>
<p><a href="https://handbook.tts.gsa.gov/general-information-and-resources/business-and-ops-policies/top-secret/">Top secret-sensitive compartmented information</a> is reserved for information that would truly be damaging to the U.S. if it fell into foreign hands. </p>
<p>One theory floated by <a href="https://www.usatoday.com/story/news/politics/2022/08/12/trump-says-mar-a-lago-documents-declassified-experts-disagree/10310614002/?gnt-cfr=1">Trump defenders</a> is that by simply handling the materials as president, Trump could have effectively declassified them. <a href="https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html">It actually doesn’t work</a> that way – presidential declassification requires an override of <a href="https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information">Executive Order 13526</a>, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.</p>
<p>And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. The Espionage Act applies to all <a href="https://www.dodig.mil/Portals/48/Documents/Programs/Whistleblower/2010_1206_CRS_Criminal_Prohibitions_Defense_Information.pdf?ver=2017-04-27-105018-560">national defense information, or NDI</a>, of which classified materials are only a portion. This kind of information <a href="https://www.politico.com/f/?id=00000161-d018-d933-a3e9-d7b9120b0000">includes a vast</a> array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.</p>
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<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A judge unsealed a search warrant that shows that the FBI is investigating Donald Trump for a possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
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<h2>The public can’t judge a case based on classified information</h2>
<p>Cases involving classified information or NDI are nearly impossible to referee from the cheap seats. </p>
<p>None of us will get to see the documents at issue, nor should we. Why? </p>
<p>Because they are classified. </p>
<p>Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void. </p>
<p>And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters.</p>
<p>Historically, <a href="https://www.mtsu.edu/first-amendment/encyclopedia/case/43/espionage-act">Espionage Act cases</a> have been occasionally political and almost always politicized. <a href="https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917">Enacted at the beginning</a> of U.S. involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy. </p>
<p>But it was immediately used to target immigrants, labor organizers and left-leaning radicals. It was a tool of Cold War <a href="https://billofrightsinstitute.org/activities/handout-b-liberty-and-security-civil-liberties-and-mccarthyism">anti-communist politicians</a> like Sen. Joe McCarthy in the 1940s and 1950s. The case of <a href="https://www.history.com/this-day-in-history/rosenbergs-executed">Julius and Ethel Rosenberg</a>, executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era. </p>
<p>In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistleblower <a href="https://www.britannica.com/biography/Daniel-Ellsberg">Daniel Ellsberg</a>. Since Sept. 11, 2001, officials have used the act against whistleblowers like <a href="https://www.whistleblowers.org/whistleblowers/edward-snowden/">Edward Snowden</a>. Because of this history, the act is often assailed for chilling First Amendment political speech and activities. </p>
<p>The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/you-dont-have-to-be-a-spy-to-violate-the-espionage-act-and-other-crucial-facts-about-the-law-trump-may-have-broken-188708">article</a> originally published Aug. 15, 2022.</em></p><img src="https://counter.theconversation.com/content/207373/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas A. Durkin was an expert witness on behalf of Julian Assange in his UK proceeding.</span></em></p><p class="fine-print"><em><span>Joseph Ferguson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Spy cases are rare. More typically, as in the Trump indictment, the act applies to the unauthorized gathering, possessing or transmitting of certain sensitive government information.Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University ChicagoThomas A. Durkin, Distinguished Practitioner in Residence, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1887082022-08-15T17:35:19Z2022-08-15T17:35:19ZYou don’t have to be a spy to violate the Espionage Act – and other crucial facts about the law Trump may have broken<figure><img src="https://images.theconversation.com/files/479036/original/file-20220814-50347-gx33u5.jpeg?ixlib=rb-1.1.0&rect=24%2C12%2C8218%2C5475&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump, at the Conservative Political Action Conference, Aug. 6, 2022, in Dallas. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-speaks-at-the-news-photo/1413332675?adppopup=true">Brandon Bell/Getty Images</a></span></figcaption></figure><p>The <a href="https://www.nytimes.com/live/2022/08/12/us/trump-news">federal court-authorized search</a> of former President Donald Trump’s Florida estate has brought renewed attention to the obscure but infamous law known as the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37">Espionage Act of 1917</a>. A section of the law was <a href="https://www.nytimes.com/2022/08/12/us/trump-espionage-act-laws-fbi.html">listed as one of three potential violations</a> under Justice Department investigation. </p>
<p><a href="https://theconversation.com/free-speech-wasnt-so-free-103-years-ago-when-seditious-and-unpatriotic-speech-was-criminalized-in-the-us-160835">The Espionage Act</a> has historically been employed most often by law-and-order conservatives. But the biggest uptick in its use <a href="https://apnews.com/article/north-america-donald-trump-ap-top-news-elections-barack-obama-9d9a76067d5b47e5a290dc9832369c92">occurred during the Obama administration</a>, which used it as the hammer of choice for national security leakers and whistleblowers. Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage. </p>
<p><a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">We are</a> both <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">attorneys who specialize in</a> and teach national security law. While navigating the sound and fury over the Trump search, here are a few things to note about the Espionage Act.</p>
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<h2>Espionage Act seldom pertains to espionage</h2>
<p>When you hear “espionage,” you may think spies and international intrigue. One portion of the act – <a href="https://www.law.cornell.edu/uscode/text/18/794">18 U.S.C. section 794</a> – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment. </p>
<p>That aspect of the law is best exemplified by the convictions of <a href="https://www.npr.org/2020/12/30/951334047/jonathan-pollard-cold-war-spy-who-spent-30-years-in-u-s-prison-arrives-in-israel">Jonathan Pollard in 1987</a>, for spying for and providing top-secret classified information to Israel; <a href="https://www.fbi.gov/history/famous-cases/aldrich-ames">former Central Intelligence Agency officer Aldrich Ames in 1994</a>, for being a double agent for the Russian KGB; and, in 2002, former <a href="https://www.fbi.gov/history/famous-cases/robert-hanssen">FBI agent Robert Hanssen, who was caught selling U.S. secrets</a> to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences. </p>
<p>But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-2057-synopses-key-national-defense-and-national-security-provisions">certain sensitive government information</a>. </p>
<p>Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for its return. All of these prohibited activities fall under the separate and more commonly applied section of the act – <a href="https://www.law.cornell.edu/uscode/text/18/793">18 U.S.C. section 793</a>.</p>
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<a href="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a military uniform is escorted onto a vehicle by a man in a dark shirt and khakis." src="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Chelsea Manning, in uniform, after being sentenced on Aug. 21, 2013, to 35 years in prison after being found guilty of several counts under the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/army-private-first-class-bradley-manning-is-escorted-by-news-photo/177149744?adppopup=true">Photo by Mark Wilson/Getty Images</a></span>
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<h2>A violation does not require an intention to aid a foreign power</h2>
<p>Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. interests is generally enough to trigger a possible sentence of 10 years.</p>
<p><a href="https://www.nytimes.com/2022/08/14/us/politics/trump-documents-explanations.html">Current claims by Trump supporters</a> of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.” </p>
<p>One of the most famous Espionage Act cases, <a href="https://www.nytimes.com/2019/05/23/us/politics/assange-indictment.html">known as “Wikileaks</a>,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed. </p>
<p>Two recent senior Democratic administration officials – <a href="https://www.reuters.com/article/us-people-sandyberger-obituary/former-u-s-national-security-adviser-sandy-berger-dies-idUSKBN0TL1OL20151203">Sandy Berger</a>, national security adviser during the Clinton administration, and <a href="https://www.britannica.com/biography/David-Petraeus">David Petraeus</a>, CIA director under during the Obama administration – <a href="https://www.washingtonpost.com/world/national-security/how-david-petraeus-avoided-felony-charges-and-possible-prison-time/2016/01/25/d77628dc-bfab-11e5-83d4-42e3bceea902_story.html">each pleaded</a> guilty to misdemeanors <a href="https://www.justice.gov/archive/opa/pr/2005/April/05_crm_155.htm">under the threat</a> of Espionage Act prosecution. </p>
<p>Berger took home a classified document – <a href="https://www.washingtontimes.com/news/2022/aug/9/national-archives-documents-center-trump-raid-have/">in his sock</a> – at the end of his tenure. Petraeus <a href="https://www.politico.com/story/2016/06/fbi-petraeus-shared-top-secret-info-with-reporters-224023">shared classified information</a> with an unauthorized person for reasons having nothing to do with a foreign government. </p>
<h2>The act is not just about classified information</h2>
<p>Some of the documents the FBI sought and found in the Trump search <a href="https://www.npr.org/2022/08/12/1117277865/read-the-full-warrant-documents-from-fbi-search-of-trumps-mar-a-lago-home">were designated</a> “top secret” or “top secret-sensitive compartmented information.” </p>
<p>Both classifications tip far to the serious end of the sensitivity spectrum. </p>
<p><a href="https://handbook.tts.gsa.gov/general-information-and-resources/business-and-ops-policies/top-secret/">Top secret-sensitive compartmented information</a> is reserved for information that would truly be damaging to the U.S. if it fell into foreign hands. </p>
<p>One theory floated by <a href="https://www.usatoday.com/story/news/politics/2022/08/12/trump-says-mar-a-lago-documents-declassified-experts-disagree/10310614002/?gnt-cfr=1">Trump defenders</a> is that by simply handling the materials as president, Trump could have effectively declassified them. <a href="https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html">It actually doesn’t work</a> that way – presidential declassification requires an override of <a href="https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information">Executive Order 13526</a>, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.</p>
<p>And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. The Espionage Act applies to all <a href="https://www.dodig.mil/Portals/48/Documents/Programs/Whistleblower/2010_1206_CRS_Criminal_Prohibitions_Defense_Information.pdf?ver=2017-04-27-105018-560">national defense information, or NDI</a>, of which classified materials are only a portion. This kind of information <a href="https://www.politico.com/f/?id=00000161-d018-d933-a3e9-d7b9120b0000">includes a vast</a> array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A judge unsealed a search warrant that shows that the FBI is investigating Donald Trump for a possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<h2>The public can’t judge a case based on classified information</h2>
<p>Cases involving classified information or NDI are nearly impossible to referee from the cheap seats. </p>
<p>None of us will get to see the documents at issue, nor should we. Why? </p>
<p>Because they are classified. </p>
<p>Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void. </p>
<p>And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters.</p>
<p>Historically, <a href="https://www.mtsu.edu/first-amendment/encyclopedia/case/43/espionage-act">Espionage Act cases</a> have been occasionally political and almost always politicized. <a href="https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917">Enacted at the beginning</a> of U.S. involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy. </p>
<p>But it was immediately used to target immigrants, labor organizers and left-leaning radicals. It was a tool of Cold War <a href="https://billofrightsinstitute.org/activities/handout-b-liberty-and-security-civil-liberties-and-mccarthyism">anti-communist politicians</a> like Sen. Joe McCarthy in the 1940s and 1950s. The case of <a href="https://www.history.com/this-day-in-history/rosenbergs-executed">Julius and Ethel Rosenberg</a>, executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era. </p>
<p>In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistleblower <a href="https://www.britannica.com/biography/Daniel-Ellsberg">Daniel Ellsberg</a>. Since Sept. 11, 2001, officials have used the act against whistleblowers like <a href="https://www.whistleblowers.org/whistleblowers/edward-snowden/">Edward Snowden</a>. Because of this history, the act is often assailed for chilling First Amendment political speech and activities. </p>
<p>The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.</p><img src="https://counter.theconversation.com/content/188708/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas A. Durkin was an expert witness on behalf of Julian Assange in his UK proceeding </span></em></p><p class="fine-print"><em><span>Joseph Ferguson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two national security law experts explain how the Espionage Act isn’t only about international intrigue, and share other important points about the law that was invoked in a search of Trump’s estate.Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University ChicagoThomas A. Durkin, Distinguished Practitioner in Residence, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1177412019-05-25T06:15:22Z2019-05-25T06:15:22ZNew indictments set up a confrontation between the US and Julian Assange<p>Australians woke to the news on Friday that the United States had unveiled new charges against Wikileaks co-founder Julian Assange. </p>
<p>The <a href="https://www.justice.gov/opa/press-release/file/1165556/download">indictment</a>, issued by the US Department of Justice, includes 17 charges of <a href="https://www.law.cornell.edu/uscode/text/18/793">espionage</a>: </p>
<ul>
<li>one count of conspiracy to receive national defense information </li>
<li>seven counts of obtaining national defense information </li>
<li>nine counts of disclosing national defense information. </li>
</ul>
<p>These charges are in addition to the charge of conspiracy to commit computer misuse contained in the initial US request for extradition in April. </p>
<p>Here’s what the new charges mean for Assange, how he could fight them, and what’s likely to happen next.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/julian-assange-on-google-surveillance-and-predatory-capitalism-43176">Julian Assange on Google, surveillance and predatory capitalism</a>
</strong>
</em>
</p>
<hr>
<h2>What factors will affect whether the UK approves extradition to the US?</h2>
<p>Extradition includes a mixture of judicial and political processes. Assange could plead a number of legal objections to his extradition, including human rights concerns. This could see the case go through all levels of the English court system, as <a href="https://www.supremecourt.uk/cases/uksc-2011-0264.html">happened in 2011-12</a>. The charges could also be challenged in the European Court of Human Rights.</p>
<p>Assange’s main legal objection to extradition is likely to be that the offences charged are political offences, and therefore not extraditable offences under the treaty.</p>
<p>In addition to the American extradition request, the Swedish prosecutor has announced she is reopening the investigation of a rape accusation against Assange. She <a href="https://www.theguardian.com/media/2019/may/20/julian-assange-sweden-files-request-arrest-rape-allegation">has applied to the Swedish courts</a> for a detention order, which is the first step towards the issuing of a European Arrest Warrant (EAW). </p>
<p>Both the EU’s <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32002F0584">Framework Decision on the European Arrest Warrant</a> and the US-UK extradition treaty allow the UK to decide which of the two competing extradition requests to prioritise. There’s a good chance that the UK would decide to prioritise the Swedish request because the rape prosecution must be brought by August 2020, at the latest. It’s likely that the English courts would expedite any legal challenges to prevent time running out. </p>
<p>If the UK decides to prioritise the American request, it would effectively prevent the Swedish prosecution being brought in time.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/chelsea-manning-and-the-rise-of-big-data-whistleblowing-in-the-digital-age-102479">Chelsea Manning and the rise of 'big data' whistleblowing in the digital age</a>
</strong>
</em>
</p>
<hr>
<h2>If he goes to Sweden first to face the rape charges, would Sweden be more or less favourable on the US indictment?</h2>
<p>The <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=16&ved=2ahUKEwiFu4WHrrTiAhXv6XMBHZ1HDv0QFjAPegQIBxAC&url=https%3A%2F%2Ftreaties.un.org%2Fdoc%2FPublication%2FUNTS%2FVolume%2520494%2Fvolume-494-I-7231-English.pdf&usg=AOvVaw3geBB-eA2HIVx_8Q1zsGJ3">US-Swedish extradition treaty</a> appears to be stricter than the US-UK treaty. It only allows extradition for listed offences, and espionage is not listed. </p>
<p>Given that the treaty was adopted in 1961, computer crimes are not listed, although they might be understood to be included in one of the forms of fraud listed in the treaty. </p>
<p>The US-Swedish treaty also prohibits extradition for political offences or when the death penalty is imposed. </p>
<p>The Swedish government <a href="https://www.government.se/government-of-sweden/ministry-of-justice/international-judicial-co-operation/extradition-for-criminal-offences/">declares that it will not extradite</a>: </p>
<blockquote>
<p>if there is reason to fear that the person whose extradition is requested runs a risk – on account of his or her ethnic origins, membership of a particular social group or religious or political beliefs – of being subjected to persecution threatening his or her life or freedom, or is serious in some other respect.</p>
</blockquote>
<h2>Do these charges attract the death penalty?</h2>
<p>These offences could lead to a long prison sentence, but do not attract the death penalty. </p>
<p>Like the US-Swedish treaty, the <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/243246/7146.pdf">US-UK extradition treaty</a> also allows the UK to refuse extradition if the accused is likely to face the death penalty, unless the US gives assurances that the death penalty will not be imposed.</p>
<h2>Could Assange be protected under the US constitution?</h2>
<p>Civil liberties groups and journalists in the United States argue that the charges in the new indictment are unconstitutional. The First Amendment of the American Constitution guarantees freedom of expression, and American courts have historically provided strong protection for journalism. </p>
<p>Many argue that what Assange and Wikileaks did in obtaining information from Chelsea Manning about the detainees at Guantanamo Bay and rules of engagement in Iraq, and disseminating it, is not meaningfully different from what news outlets do on a regular basis. American officials who worked for the Obama administration <a href="https://www.theguardian.com/media/2019/may/23/julian-assange-indicted-what-charges-mean-for-free-speech">say their decision</a> not to pursue Assange was based on concerns that such a prosecution would be contrary to the First Amendment. </p>
<p>Assange’s legal team are likely to argue that extradition to the US would constitute a violation of Assange’s right to freedom of expression under international law. If the extradition occurs, it’s likely they would seek to have the charges thrown out by American courts as unconstitutional.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/is-part-of-chelsea-mannings-legacy-increased-surveillance-71607">Is part of Chelsea Manning's legacy increased surveillance?</a>
</strong>
</em>
</p>
<hr>
<h2>Will these new charges change the way the Australian government treats the case?</h2>
<p>The new charges are much more serious than the computer misuse charge in the initial extradition request. The total sentence could be up to 175 years in jail – effectively a “whole of life” sentence, which some human rights advocates consider to be a form of cruel and inhumane treatment. </p>
<p>Australian government support for its nationals caught up in criminal proceedings overseas is largely negotiated out of the public eye. Nonetheless, there have been cases, such as the recent campaign to bring <a href="https://theconversation.com/hakeem-al-araibis-case-is-a-test-of-world-soccers-human-rights-credentials-heres-why-110580">Hakeem al-Araibi</a> back to Australia from Thailand, where the government was a <a href="https://www.smh.com.au/politics/federal/scott-morrison-intervenes-in-hakeem-al-araibi-case-20190129-p50ubd.html">public advocate</a>. </p>
<p>Assange’s Australian legal adviser <a href="https://www.theguardian.com/media/2019/may/24/assange-extradition-could-test-patience-of-australia-and-us-allies-bob-carr-warns">Greg Barns</a> has called on Foreign Affairs Minister Marise Payne and Prime Minister Scott Morrison to raise his case personally with the US and UK governments.</p>
<p>Assange’s case is certainly exceptional, and the human rights concerns over US extradition could justify exceptional intervention.</p><img src="https://counter.theconversation.com/content/117741/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Holly Cullen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The new charges are much more serious than the computer misuse charge in the initial US extradition request. Will the Australian government intervene?Holly Cullen, Adjunct professor, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1154202019-05-01T16:52:42Z2019-05-01T16:52:42ZIs the Assange indictment a threat to the First Amendment?<p>A British court sentenced Julian Assange on May 1 <a href="https://www.nytimes.com/2019/05/01/world/europe/julian-assange-sentence-uk.html">to almost a year in prison</a> for jumping bail.</p>
<p>That’s not the end of Assange’s legal travails: he still faces the possibility of an <a href="https://www.nytimes.com/2019/04/11/world/europe/julian-assange-wikileaks-ecuador-embassy.html">extradition to the U.S.</a> After a brief initial hearing, the matter will be taken up again <a href="https://www.nytimes.com/2019/05/02/world/europe/julian-assange-us-extradition.html">at a hearing on May 30</a> in London.</p>
<p>The American government has many reasons to dislike Assange, the co-founder of <a href="https://wikileaks.org/-Leaks-.html">WikiLeaks</a>, who is responsible for the dissemination of huge troves of classified American documents. These include <a href="http://www.cnn.com/2010/US/10/22/wikileaks.iraq/index.html">hundreds of thousands of classified military reports</a>, <a href="https://www.theguardian.com/world/2010/nov/28/us-embassy-cable-leak-diplomacy-crisis">hundreds of thousands of classified diplomatic cables</a>, <a href="http://www.cnn.com/2011/US/04/24/wikileaks.guantanamo/index.html">hundreds of classified reports from the military prison in Guantanamo Bay</a> and <a href="https://www.nytimes.com/2017/03/07/world/europe/wikileaks-cia-hacking.html">thousands of secret CIA documents</a> revealing the agency’s techniques for hacking and surveillance. </p>
<p>The publication of classified information violates a number of federal laws, including the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37">Espionage Act</a>. The act imposes up to 10 years of imprisonment for every violation of its various provisions. </p>
<p>But at least for now, the U.S. has not charged Assange with any such violations. </p>
<p>Instead, the United States indicted Assange for conspiring with <a href="https://www.apnews.com/569631f2b11c400cac05a29e0853624b">Chelsea Manning</a>, the former United States Army soldier convicted of leaking classified documents, <a href="https://www.reuters.com/article/us-ecuador-assange-usa-conspiracy/u-s-charges-wikileaks-founder-assange-with-conspiracy-idUSKCN1RN1QA">to hack into a government computer and obtain classified information</a>. </p>
<p>Why has Assange not been charged with the more serious crimes of publishing American secrets? </p>
<h2>Constitutional protections for publication</h2>
<p>One reason is the questionable constitutionality of such charges. They may violate the <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment to the U.S. Constitution</a>, which prohibits the government from “abridging the freedom of speech, or of the press.” </p>
<p>Accordingly, the American government has traditionally abstained from charging publishers of classified information for the crime of publication. The one near-exception occurred in 1942, in the middle of World War II, after the Chicago Tribune published a front-page story titled “Navy Had Word of Jap Plan to Strike at Sea.” The story implied that the <a href="https://www.chicagotribune.com/news/local/breaking/ct-met-tribune-espionage-act-book-web-post-out-20171024-story.html">U.S. military had cracked Japan’s secret naval code</a> – which in fact it had. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/271532/original/file-20190429-194620-aag7bj.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/271532/original/file-20190429-194620-aag7bj.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/271532/original/file-20190429-194620-aag7bj.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=328&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271532/original/file-20190429-194620-aag7bj.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=328&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271532/original/file-20190429-194620-aag7bj.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=328&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271532/original/file-20190429-194620-aag7bj.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=413&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271532/original/file-20190429-194620-aag7bj.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=413&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271532/original/file-20190429-194620-aag7bj.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=413&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chicago Tribune of June 7, 1942, featuring story, ‘Navy Had Word of Jap Plan to Strike at Sea.’</span>
<span class="attribution"><a class="source" href="https://www.chicagotribune.com/news/opinion/editorials/ct-battle-midway-japan-war-code-tribune-roosevelt-edit-0924-md-20160922-story.html">Screenshot, Chicago Tribune</a></span>
</figcaption>
</figure>
<p>An incensed President Franklin Roosevelt demanded that Espionage Act charges be brought against the reporter, the managing editor and the Tribune itself. But a grand jury <a href="https://www.chicagotribune.com/news/opinion/editorials/ct-battle-midway-japan-war-code-tribune-roosevelt-edit-0924-md-20160922-story.html">refused to issue indictments</a>. </p>
<h2>The Pentagon Papers</h2>
<p>In 1972 the U.S. government tried to stop The New York Times and The Washington Post from publishing the Pentagon Papers, a top-secret Department of Defense study on the Vietnam War. </p>
<p>In its well-known decision, the Supreme Court held that <a href="https://supreme.justia.com/cases/federal/us/403/713/">preventing the publication violated the First Amendment</a>. Less known is the fact that a majority of the justices also thought that the newspapers could be prosecuted and possibly punished for the publication, even if stopping the publication was unconstitutional. </p>
<p>The Pentagon Papers decision was about the ability of government to stop the publication of information – in other words, its ability to impose a “prior restraint.” It left open the possibility of punishing publishers after the publication. </p>
<p>On the other hand, a number of later Supreme Court decisions did protect publishers who had published truthful information in violation of the law. </p>
<p>The court prohibited the punishment of a television station that <a href="https://supreme.justia.com/cases/federal/us/420/469/">broadcast the name of a rape victim</a> in violation of state law, the punishment of a newspaper that <a href="https://supreme.justia.com/cases/federal/us/435/829/">published the content of confidential judicial proceedings</a>, and the punishment of a radio station that <a href="https://supreme.justia.com/cases/federal/us/532/514/">broadcast an unlawfully recorded phone conversation</a>. </p>
<p>These publications were all protected by the freedoms of speech and the press.</p>
<h2>National security vs. free speech</h2>
<p>However, none of these later cases dealt with publication of national security information, and the outcome may be different when it comes to such materials. That would depend on the specific dangers or harms posed by the publication: for example, on <a href="https://www.bbc.com/news/world-us-canada-11882092">whether lives were endangered</a>, or whether the government was simply trying <a href="https://www.law.cornell.edu/supremecourt/text/403/713">to prevent embarrassment to itself</a>.</p>
<p>Some judges, however, would likely simply defer to the government’s assessment of these dangers. </p>
<p>“In my judgment the judiciary may not … redetermine for itself the probable impact of disclosure on the national security,” wrote Justice John Marshall Harlan for himself and Justices Harry Blackmun and Warren Burger in the Pentagon Papers decision. Some of today’s Supreme Court justices – <a href="https://www.law.cornell.edu/supct/html/03-6696.ZD1.html">Justice Clarence Thomas, for example – are likely to agree with Harlan’s position</a>. </p>
<p>Still, as of today, Assange’s indictment does not include charges of criminal publication. Assuming that the indictment is left unchanged, the question remains: Is the current charge – a conspiracy to hack into a government computer – a danger to the freedom of the press?</p>
<h2>Threat to legitimate journalism?</h2>
<p>Nothing in Assange’s indictment turns on any distinction between WikiLeaks and the mainstream press. The current charge would be equally applicable to “real” journalists if they engaged in similar conduct. </p>
<p>Nevertheless, it has been widely claimed that <a href="https://theconversation.com/journalisms-assange-problem-115421">legitimate journalism is not threatened by the indictment</a>, because legitimate journalists do not help their sources <a href="https://www.usatoday.com/story/news/politics/2019/04/11/assange-case-separates-journalism-criminality/3435588002/">hack into computers</a>. </p>
<p>And yet, Assange is not charged with helping Manning hack into a computer. </p>
<p>He is charged with agreeing to help Manning hack into a computer – whether there was or wasn’t any hacking attempt. <a href="https://www.britannica.com/topic/conspiracy">The essence of the crime of conspiracy</a> is agreement to commit a crime, irrespective of whether that crime was in fact attempted.</p>
<p>Federal conspiracy charges also <a href="https://www.justia.com/criminal/offenses/inchoate-crimes/conspiracy/">require that some action be taken toward committing the crime</a>. But that action can be utterly minor, fall far short of an actual attempt, need not be itself criminal, and may be undertaken by any of the co-conspirators with or without anyone’s knowledge. </p>
<p>Moreover, conspiracy can exist even without explicit words of agreement: It can be inferred. For example, from the fact that a passenger exited a car, robbed a pedestrian, then returned to the car and was driven away, it was permissible to infer that the driver conspired to commit robbery <a href="https://law.justia.com/cases/pennsylvania/superior-court/1983/313-pa-super-310-2.html">(a criminal offense wholly independent of the robbery itself).</a></p>
<p>Do legitimate journalists sometimes engage in criminal conspiracies with their sources? Of course: Every time a journalist receives and publishes classified national security information, she can be said to conspire with her source to disclose classified information, which is a crime. </p>
<p>In fact, the federal government had already advanced such a conspiracy claim in regard to a journalist.</p>
<p>In 2009 Fox News reporter James Rosen wrote an article that contained leaked classified information about North Korea. In 2010 the Obama administration <a href="https://archive.nytimes.com/www.nytimes.com/interactive/2013/05/25/us/politics/james-rosen-affidavit.html?_r=0">filed a search warrant application</a> where it argued that Rosen was a criminal co-conspirator of his State Department source in the criminal disclosure of classified information. </p>
<p>The warrant was granted, although Rosen was never indicted for the alleged conspiracy. Indeed such an indictment would have raised similar constitutional difficulties to those implicated in the criminal publication of classified information.</p>
<h2>Line of illegality</h2>
<p>Julian Assange is charged with a conspiracy to criminally obtain classified information through computer hacking — not with a conspiracy to disclose or publish classified information (which legitimate journalists might also be accused of). </p>
<p>Nevertheless, Assange’s indictment can be a dangerous precedent if the government views it through a broad lens: namely, as a charge about a criminal conspiracy to <em>obtain</em> classified information. In that case, legitimate journalists may also be on the hook.</p>
<p>In fact, it is rather clear that the government takes a broad view of Assange’s indictment. After all, clearly Assange is prosecuted because of <a href="https://www.washingtontimes.com/news/2019/apr/12/charging-assange-reflects-dramatic-shift-in-us-app/">WikiLeaks’ publication of classified information</a>, even if the government is still reluctant to indict him for that. </p>
<p>And the broad view is also implied in the statements of Jeff Sessions, who as attorney general made <a href="https://www.theguardian.com/media/2017/apr/21/arresting-julian-assange-is-a-priority-says-us-attorney-general-jeff-sessions">prosecuting Assange a priority.</a></p>
<p>When testifying before the Senate Judiciary Committee in 2017, Sessions was asked whether he can “commit to not jailing reporters for doing their jobs.” </p>
<p>He responded: “I don’t know if I can make a blanket commitment to that effect, but I would say we have not taken any <a href="https://www.salon.com/2017/10/18/jeff-sessions-wont-commit-to-not-jailing-journalists/">aggressive action against the media at this point.”</a> </p>
<p>With Assange’s indictment, they finally may have.</p><img src="https://counter.theconversation.com/content/115420/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ofer Raban does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The US indicted WikiLeaks co-founder Julian Assange for conspiring to hack into a government computer. But the prosecution of Assange may also pose a risk to the rights of journalists in the US.Ofer Raban, Professor of Constitutional Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1153252019-04-11T18:41:56Z2019-04-11T18:41:56ZJulian Assange Q+A: WikiLeaks founder arrested in London<p><a href="https://theconversation.com/uk/topics/julian-assange-2002">Julian Assange</a>, founder of WikiLeaks, has been arrested in London and charged with conspiracy to commit computer intrusion over his alleged role in the leaking of classified United States government documents. Assange has already been found guilty of failing to surrender British police, who took him from the Ecuadorian embassy, where he has been living for nearly seven years, having claimed asylum there. Here’s what we know so far. </p>
<p><strong>Why was Assange in the Ecuadorian embassy in the first place?</strong></p>
<p>Assange sought extraterritorial asylum in the Ecuadorean embassy in London in June 2012 when an arrest warrant was issued against him in Sweden for accusations of sexual assault. He claimed that these charges were part of an international effort to silence his organisation WikiLeaks, which has become famous for publishing leaked, and often classified, information about governments across the world.</p>
<p>Importantly, the government of Ecuador took the view at the time that if the UK arrested him, he would be sent to the US to face treason charges relating to WikiLeaks exposures. Assange claimed that he could face the death penalty for those charges. Since both Ecuador and the UK are parties to the <a href="https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&clang=_en">1951 Convention on Refugees</a>, they are obliged to consider whether there is a real risk that a person seeking asylum could lose their life if they were handed over to another authority when deciding whether they have to protect them.</p>
<p><strong>What were the charges against him in Sweden?</strong></p>
<p>The Swedish charges related essentially to a “preliminary investigation” into accusations of sexual offences, including an alleged rape. The proceedings began in 2012, but by August 2015, the Swedish prosecutors dropped parts of their investigation. The investigation into the allegation of rape was also dropped in May 2017. </p>
<p><strong>What are the charges against him in the US?</strong></p>
<p>The exact charges against Assange have not been clear up until now. This was partly why Ecuador and so many of his supporters backed his claims to political asylum. In the wake of Assange’s arrest, the US government has issued <a href="https://www.justice.gov/usao-edva/pr/wikileaks-founder-charged-computer-hacking-conspiracy">further details</a> about a federal charge of conspiracy to commit computer intrusion “for agreeing to break a password to a classified US government computer”. A statement from the Department of Justice accuses Assange helped former intelligence analyst Chelsea Manning crack a password that would enable her to download classified records to transmit to WikiLeaks. </p>
<p><strong>Assange has already been found guilty of failure to surrender. What does that mean?</strong></p>
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<p>In pursuit of the sexual assault charges, Sweden issued a European Arrest Warrant against Assange, which meant the UK authorities were required to act. Judges in the UK granted Assange bail at the time of this initial arrest, but with strict conditions. However, while the case was being considered, Assange entered the Ecuadorian embassy and was granted political asylum on June 16 2012. In failing to leave the embassy, he breached his bail conditions. When his asylum was revoked, he was immediately charged and subsequently found guilty of failing to surrender. He is yet to be sentenced but could face up to 12 months jail time under UK law.</p>
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<p><strong>Why were British police suddenly able to enter the Ecuadorian embassy?</strong></p>
<p>Simply put, the police could go into the embassy for the first time in nearly seven years because the Ecuadorian government revoked Assange’s asylum. The “premises of a diplomatic mission” including buildings or parts of buildings and the land ancillary to it are, inviolable according to the <a href="http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf">Vienna Convention on Diplomatic Relations 1961</a>.</p>
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<p>However all such rights are subject to the right of a country to grant a waiver and the agents of a receiving state may enter diplomatic premises with the consent of the head of the mission. Such waivers are expected to be in writing and there will be a document to evidence this in the hands of the UK government.</p>
<p><strong>Why did the Ecuadorian government withdraw asylum from Assange?</strong></p>
<p>The Ecuadorian government issued a statement accusing Assange of “discourteous and aggressive behaviour” and of violating international asylum conventions. We don’t know exactly what he has done but Ecuadorian president Lenín Moreno said in a video statement that he had failed to abide by the norm of “not interfering in the internal affairs of other states”. </p>
<p>Assange has been a difficult guest in some ways. His continuous communication with the outside world and the way he <a href="https://www.nytimes.com/2016/07/27/us/politics/assange-timed-wikileaks-release-of-democratic-emails-to-harm-hillary-clinton.html">wrote himself into the legend</a> of the last US presidential elections would certainly have been against the intentions of Ecuador in granting him extraterritorial asylum.</p>
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<p>Extraterritorial asylum – which is asylum granted outside the territory of the state itself – is indeed a contested practice in international law and the UK had been quite accommodating in recognising what is, in essence, a subpractice of Latin American states within international law. </p>
<p><strong>What will happen to Assange now?</strong></p>
<p>Although the British authorities appear to have given some assurances to the Ecuadorean authorities that Assange will not be extradited to the US, they will probably embark on a very truncated extradition process in conjunction with the US authorities and he may soon be in the US. It is unclear what president Donald Trump’s position on his case is, but the president has spoken in his favour in the past. There might be a clash of political interests between the US intelligence community and the presidency about what to do with Assange. </p>
<p><strong>Can the UK demand that the US commit to not executing Assange if he is extradited?</strong></p>
<p>Yes, this demand can be easily made and will most likely be granted because it is simply not in line with modern democracies to apply the death sentence in political and crimes of conscience cases. The US government has said he faces a maximum penalty of five years in prison. Actual sentences for federal crimes are typically less than the maximum penalties.</p><img src="https://counter.theconversation.com/content/115325/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gbenga Oduntan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Wikileaks founder has been removed from the Ecuadorean embassy after nearly seven years.Gbenga Oduntan, Reader (Associate Professor) in Law, University of KentLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1024792018-09-05T05:51:09Z2018-09-05T05:51:09ZChelsea Manning and the rise of ‘big data’ whistleblowing in the digital age<p>Chelsea Manning will <a href="https://thinkinc.org.au/chelsea-manning/">appear via video link at events</a> in Brisbane and Melbourne this month – as the Australian government <a href="http://www.abc.net.au/news/2018-09-02/chelsea-manning-australia-video-link-speaking-tour/10193154">refuses</a> to provide her a visa.</p>
<p>Without a visa, Manning was in Los Angeles when she appeared electronically on a giant screen at a weekend event speaking with journalist Peter Greste at the Sydney Opera House, where she received a standing <a href="https://www.smh.com.au/national/nsw/a-convicted-terrorist-and-a-convicted-spy-walk-into-the-opera-house-and-get-a-standing-ovation-20180902-p501ak.html">ovation</a>.</p>
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<p>International and <a href="https://www.theguardian.com/us-news/2018/aug/30/move-to-ban-chelsea-manning-from-australia-a-political-stunt-to-appease-trump">Australian</a> organisations have called on the Australian government to give a visa to Manning in support of freedom of speech. Nearly 20,000 people have signed a <a href="https://www.change.org/p/david-coleman-let-chelsea-manning-visit-australia">petition</a> calling on Australia to allow Manning to visit. </p>
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<a href="https://theconversation.com/explainer-what-role-does-ministerial-discretion-play-in-the-chelsea-manning-visa-case-102397">Explainer: what role does ministerial discretion play in the Chelsea Manning visa case?</a>
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<p>Whether you agree with Manning or not, public debate and discussion are essential for a healthy democracy. Any attempt to shut it down flies in the face of freedom of expression.</p>
<p>This is important as we enter an era of machines that make decisions for us, including autonomous weapons. Data ethics, transparency, accountability and avenues of recourse for injustice become even more important to explore in public forums. These are all relevant to Manning’s story.</p>
<h2>Manning the whistleblower</h2>
<p>Manning was a US army intelligence analyst in 2010 when she leaked more than 700,000 classified documents to WikiLeaks. Her disclosures were a major milestone in the emergence of the digital age whistleblower. </p>
<p>First there was the explosive <a href="https://collateralmurder.wikileaks.org/">Collateral Murder</a> video, published by WikiLeaks. It showed the US military gunning down civilians in Iraq. US soldiers fired on children and killed two Reuters staff, <a href="https://www.reuters.com/article/us-reuters-iraq/reuters-seeks-u-s-probe-into-killing-of-iraqi-staff-idUSL1617459520070716">Namir Noor-Eldeen and Saeed Chmagh</a> along with ten other people. Former Reuters Iraq bureau chief Dean Yates, who sent his staff out that fateful day, wrote a personal piece on the impact of “<a href="https://www.reuters.com/investigates/special-report/witness-yates-injury/">moral injury</a>” while being treated at Melbourne’s Austin Health for trauma recovery.</p>
<p>The US military lied about the incident and tried to <a href="https://www.huffingtonpost.com.au/entry/wikileaks-exposes-video-o_n_525569">cover it up</a>. To this day, no one has been charged or convicted for the killings, nor the lying.</p>
<p>Manning is the only person to go to prison linked with the incident, yet she is the one who brought the truth to the public. </p>
<p>The astonishing video, filmed from the gunsight of an Apache helicopter, illustrates the power of bringing together visual digital media and whistleblowing. The video has had more than 16 million views on <a href="https://www.youtube.com/watch?v=5rXPrfnU3G0">Youtube</a> alone.</p>
<p>Manning also disclosed a collection of war logs. These were records about daily events happening in two wars, in <a href="https://wikileaks.org/irq/">Iraq</a> and <a href="https://wikileaks.org/afg/">Afghanistan</a>. </p>
<p>Politicians had promised the public these wars were progressing well. The data showed a different story.</p>
<p>The New York Times, publishing in partnership with WikiLeaks, described the Afghan war logs as “<a href="https://www.nytimes.com/2010/07/26/world/asia/26warlogs.html">more grim than the official portrayal</a>”. </p>
<p>In Iraq, a leading independent UK-based charity <a href="https://www.iraqbodycount.org/">Iraq Body Count</a>, estimated <a href="https://www.theguardian.com/world/2010/oct/22/true-civilian-body-count-iraq">15,000 civilians were killed</a> from 2003 to 2010 that had not been previously been revealed. </p>
<p>Less than half of the deaths reported in the Wikileaks War Logs had been previously reported by Iraq Body Count, according to one <a href="https://www.cambridge.org/core/journals/prehospital-and-disaster-medicine/article/wikileaks-and-iraq-body-count-the-sum-of-parts-may-not-add-up-to-the-wholea-comparison-of-two-tallies-of-iraqi-civilian-deaths/93585802BA9EA65288321F492CA47A43">study</a>. </p>
<p>Bringing the two datasets together showed how the body count of the Iraq War had been higher than either set had initially documented.</p>
<p>This sort of analysis illustrates how big data and whistleblowing are drawn together in actual cases, and have exposed the truth of what is really happening on the ground.</p>
<h2>Big data leaks are getting bigger</h2>
<p>In the digital age, <a href="https://www.theguardian.com/news/datablog/2010/oct/23/wikileaks-iraq-data-journalism">data sets</a> are increasingly driving news stories. Large data sets show patterns and connections - both of which can be important for accountability of decision-making by government.</p>
<p>At the time, Manning’s disclosures seemed like an enormous amount of data. Yet, the data size was small <a href="https://www.statista.com/chart/11698/the-scale-of-the-paradise-papers-leak/">compared</a> with what was to come.</p>
<p>Collateral Murder (646MB) and the Afghan War Logs (75MB) data sets, published in 2010, created a new model for whistleblower disclosures driving database journalism. The entire tranche of this data, plus the US diplomatic cables and the Iraq War Logs, was reported to total <a href="https://www.wired.com/2017/05/chelsea-manning-free-leaks-changed/">1.73 gigabytes (GB)</a> – small enough to fit on a single DVD.</p>
<p>What followed in their footsteps was much larger disclosures in terms of <a href="http://www.slate.com/blogs/future_tense/2016/04/04/contextualizing_the_2_6_terabytes_of_leaked_panama_papers_data.html">total data size</a>. These included the 2013 <a href="https://offshoreleaks.icij.org/">Offshore Leaks</a> (260GB), the 2014 <a href="https://www.icij.org/investigations/luxembourg-leaks/">Luxembourg Leaks</a> (4GB), the 2016 <a href="https://www.icij.org/investigations/panama-papers/">Panama Papers</a> (2.6TB), the 2017 <a href="https://www.icij.org/investigations/paradise-papers/">Paradise Papers</a> (1.4TB), and Edward Snowden’s 2013 disclosures, estimated to be at least <a href="https://www.nbcnews.com/news/world/how-much-did-snowden-take-least-three-times-number-reported-flna8C11038702">60GB</a> (the total data size has not been publicly revealed).</p>
<h2>Whistleblower protection</h2>
<p>Strong public support in <a href="http://newsroom.melbourne.edu/sites/newsroom.melbourne.edu/files/EMBARGOEDNewspoll_Whistleblowing.pdf">Australia</a> and <a href="http://gala.gre.ac.uk/10298/1/UK_Public_Attitudes_to_WB_Press_Release_and_Report_20121115.pdf">overseas</a> for the protection of whistleblowers flowed from this torrent of revelations, and it has forced governments around the world to respond. </p>
<p>From <a href="https://www.lawsociety.ie/News/News/Stories/whistleblowing-the-protected-disclosures-act-2014/">Ireland</a> to <a href="https://bnn-news.com/lithuania-will-protect-corruption-whistleblowers-which-will-be-hard-in-reality-175771">Lithuania</a> to <a href="http://saharareporters.com/2017/06/08/nigerian-senate-passes-whistleblower-protection-bill">Nigeria</a>, governments have been adopting whistleblower protection laws.</p>
<p>In April, the European Union announced its draft <a href="http://europa.eu/rapid/press-release_IP-18-3441_en.htm">Directive</a> on whistleblower protection which, when passed, will apply to all 28 member states.</p>
<p>Whistleblowers reveal unsafe or illegal practices in everything from <a href="https://www.nature.com/articles/s41538-018-0017-5">food safety</a> to <a href="https://www.telegraph.co.uk/news/health/news/11398148/The-NHS-whistle-blowers-who-spoke-out-for-patients.html">hospital practice</a>. </p>
<p>In 2017, US President Barack Obama <a href="https://www.theguardian.com/us-news/2017/jan/17/chelsea-manning-sentence-commuted-barack-obama">released Manning by commuting her prison sentence</a>. The world Chelsea Manning re-entered after seven years in prison was profoundly transformed. </p>
<p>Increased public recognition of both the importance of whistleblowing as a corrective mechanism to wrongdoing in society, and of datasets informing a new kind of journalism, are part of that changed landscape.</p>
<p>Manning has been a controversial yet central figure in that transformation. As such, she has interesting perspectives to contribute to the public debate. </p>
<h2>Encourage debate</h2>
<p>A country which prides itself on being a free, western democracy should encourage such public discussions. Australia’s close allies Canada and New Zealand have recognised this.</p>
<p>The New Zealand government has <a href="https://www.radionz.co.nz/news/national/365697/chelsea-manning-receives-work-visa-from-immigration-nz">granted</a> Manning a visa to visit its shores for events in Auckland and Wellington. </p>
<p>Canada, which had initially <a href="https://www.reuters.com/article/us-canada-immigration-manning/chelsea-manning-says-she-was-denied-entry-to-canada-idUSKCN1C02OW">turned her back at the border</a>, also allowed her <a href="https://www.cbc.ca/news/politics/chelsea-manning-montreal-border-1.4642997">entry</a>, in order to speak publicly earlier this year. </p>
<p>It’s worth noting the Australian government allowed US General <a href="http://www.abc.net.au/news/2017-06-24/david-petraeus-says-australia-must-be-firm-on-south-china-sea/8648704">David Petraeus</a> into Australia last year, despite the fact that he, like Manning, “<a href="https://www.politico.com/story/2016/06/fbi-petraeus-shared-top-secret-info-with-reporters-224023">leaked secrets</a>”. Petraeus was spared prison time after <a href="https://www.reuters.com/article/us-usa-petraeus/ex-general-cia-chief-petraeus-gets-probation-100000-fine-in-leak-case-idUSKBN0NE15520150424">pleading guilty to mishandling classified information</a>, but he was sentenced to two years probation and fined US$100,000.</p>
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<p>Manning’s disclosure did not cause any real harm to US interests, according to <a href="https://www.buzzfeednews.com/article/jasonleopold/secret-government-report-chelsea-manning-leaks-caused-no#.bfZJ7wWVW">media analysis</a> of a US Department of Defense review, released in 2017 under a 2015 Freedom of Information lawsuit.</p>
<p>By contrast, material leaked by Petraeus was highly sensitive and, according to <a href="https://www.reuters.com/article/us-usa-pentagon-petraeus/ex-general-cia-chief-david-petraeus-to-receive-no-further-punishment-idUSKCN0V80SH">Reuters</a>, contained the identities of covert officers, code word information, war strategy, intelligence capabilities and diplomatic talks.</p>
<p>Manning poses no danger to Australia, she is neither violent nor a terrorist. Yet, if people will still hear what she has to say via video links at the Australian events, why not let her appear in person?</p>
<p>Debating ideas is a core value of our democracy – and one the Australian government should embrace, not fear.</p><img src="https://counter.theconversation.com/content/102479/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Suelette Dreyfus has an executive role with freedom of expression not-for-profit NGO Blueprint for Free Speech and receives funding from it. She has received ARC funding.</span></em></p>Chelsea Manning’s disclosures on the Iraq war were major milestones in the emergence of the digital age whistleblower.Suelette Dreyfus, Media Specialist, Department of Computing and Information Systems, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/776462017-05-17T10:45:44Z2017-05-17T10:45:44ZChelsea Manning emerges into a different US – but not much has really changed since the WikiLeaks affair<p>Chelsea Manning, the US army whistleblower who was sentenced to 35 years for leaking sensitive documents to WikiLeaks <a href="http://www.sbs.com.au/news/article/2017/05/15/chelsea-mannings-mum-happy-about-release">is being released</a> after a pardon by Barack Obama, issued during his last days as president. She entered prison as Bradley Manning but, after being diagnosed with gender dysphoria in 2013, will emerge into a new US under a new president as Chelsea.</p>
<p>Nearly four months into the Trump presidency, it is timely to review the extent to which US security policy has changed; and whether the release of Manning is in itself any indicator. The degree to which the incoming president was anticipated to significantly change his country’s security policy was, arguably, unprecedented. President Trump’s opponents foresaw large-scale change (for the worse) while his supporters anticipated radical (and in their view positive) change. The <a href="https://www.theatlantic.com/liveblogs/2017/02/president-trump-addresses-congress/518112/">result</a> to date: far less than either side might have imagined.</p>
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<span class="caption">Artist’s impression of how Chelsea Manning sees herself, commissioned by the Chelsea Manning Support Network in 2014.</span>
</figcaption>
</figure>
<p>Let us examine a number of issues. The most high-profile initial action sought to “secure” the US from the threat of extreme Islamic terrorism through an <a href="https://www.theguardian.com/us-news/2017/jan/28/airports-us-immigration-ban-muslim-countries-trump">executive order</a> which imposed a temporary ban on immigration from seven Muslim countries. Not only were the measures dismissed <a href="https://theconversation.com/trump-loses-appeal-but-travel-ban-fight-isnt-over-yet-72648">on legal grounds</a>, but the extent to which they might have been effective is also questionable. </p>
<p>Some within the US leadership might have believed that these measures would add to the country’s feeling of – if not actual – security, but this has to be balanced against the wider issues that affect Ammerica’s national security. </p>
<p>The US is a major trading nation and, particularly in the fields of high technology and arms sales, the global leader. The very region that the travel ban might have impacted, the Middle East, is a <a href="http://edition.cnn.com/2016/05/24/politics/us-arms-sales-worldwide/">major purchaser</a> of American military hardware. </p>
<p>It is also in the interests of the US for the Middle East to be stable – not least, for reasons of national security – so it needs to remain engaged in the region in order to be able to apply influence. America’s lack of involvement in Syria is a clear example: not only has this allowed Russia to dominate the local, and to an increasing extent regional, debate, but <a href="http://www.bbc.co.uk/news/world-middle-east-23849587">the chances</a> of there being any settlement that would be in America’s broader interests are significantly decreased. </p>
<p>Put simply, America remains a trading nation and a global superpower. Isolationism of any form will simply not advance its interests, and president Trump, as both a businessman and a realist, will be aware of this – or at least be becoming aware.</p>
<p>Meanwhile, the president’s suggestions of a closer relationship with Putin’s Kremlin show few signs of being translated into action, notwithstanding the ongoing domestic investigations into <a href="http://www.independent.co.uk/news/world/americas/us-politics/donald-trump-vladimir-putin-us-russia-relations-worse-military-syria-chemical-attack-barack-obama-a7679796.html">alleged involvement of Russia</a> in the presidential election. This reflects a greater degree of continuity in American security policy than might have been anticipated. </p>
<p>Likewise, the lack of real progress in the construction of the border wall with Mexico suggests that realpolitik is exerting a greater hold over the creation and direction of US foreign and security policy than campaign promises. </p>
<p>While there have been new levels of rhetoric in foreign policy, particularly where there is a significant and direct security element, what is more significant is the consistency. An examination of <a href="http://edition.cnn.com/2017/04/18/asia/north-korea-donald-trump-timeline/index.html">the administration’s response</a> to the North Korean missile tests reveals greater and harder rhetoric, with threats and demonstrations of power, and a greater reaching out to China. But is this really that different from the Obama era? </p>
<p>Obama, like Trump, recognised both the regional and wider security threats that a potentially nuclear – and ballistic missile – capable North Korea represents. The only <a href="http://www.washingtonexaminer.com/trump-may-be-the-real-smart-cookie-on-north-korea-after-all/article/2622821">difference between them</a> appears to be their respective enthusiasm for the Roosevelt doctrine of “speak softly, and carry a big stick”. Obama was more willing to speak softly, but both acknowledge the need for the big stick. Indeed, the differences are arguably more of approach than substance.</p>
<p>But what of domestic policies and how these affect security policy? Again, there is more consistency than was first imagined. </p>
<p>Gun law (Obama’s greatest regret was failing to better control firearms) shows <a href="http://time.com/money/4565146/donald-trump-gun-sales/">little chance</a> of changing, and the closure of mosques is as unlikely now as it was 100 or more days ago, when Trump entered office. And despite changes in senior appointments within national security agencies and the White House, it is unlikely this will lead to significant change in internal American security policy.</p>
<p>So where does the release of Manning fit into all this? President Trump denounced Obama’s decision to offer Manning the clemency that will lead to her serving seven years of her 35-year sentence. But it was a decision <a href="https://www.usnews.com/news/articles/2017-01-26/can-donald-trump-rescind-chelsea-mannings-clemency">he was unable to overturn</a>. </p>
<p>It is possible, probable even, that there will be negative, provocative even, 2am tweets from the Oval Office, but the release will go ahead. The debate about whether Manning should have received a full pardon (the liberal viewpoint) or is a traitor (the conservative viewpoint) <a href="http://www.spiked-online.com/newsite/article/dont-let-politics-leak-away-chelsea-manning-wikileaks-trump-dnc/19361">will continue</a> but changes as a result of the WikiLeaks affair are as unlikely under this president as under his predecessors: the move to a fully open government and society as proposed by the adherents of WikiLeaks just has not happened. President Trump has been vocal <a href="http://www.politifact.com/truth-o-meter/statements/2017/apr/21/jackie-speier/did-trump-really-mention-wikileaks-over-160-times-/">in his criticism of WikiLeaks</a>. Internal US security policy will likely mimic the lack of change in external policy. To put it bluntly, wider national interests will be seen to be best served by a broad continuation of present security policies.</p>
<p>There have been changes in US security policy, but more in the rhetoric than the substance. Promising significant change while on the campaign trail is one thing, but faced with a “far tougher than I imagined” job, overriding national needs, and the realities of global politics, Trump is struggling to enact real and significant change. Be prepared for more bluster (it is this president’s style) but few changes of true significance.</p><img src="https://counter.theconversation.com/content/77646/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian Shields does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>National interest trumps open approach to US security policy.Ian Shields, Associate Lecturer in International Relations, Anglia Ruskin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/711042017-01-22T10:08:09Z2017-01-22T10:08:09ZICC expands definition of war crimes to cover combatants in the same armed forces<figure><img src="https://images.theconversation.com/files/153197/original/image-20170118-3917-4vkwrf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Union of Congolese Patriots (UPC) child soldiers on the streets of Bunia in 2003 following a ceasefire with government.
</span> <span class="attribution"><span class="source">Reuters/Antony Njuguna</span></span></figcaption></figure><p>The <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions">international law of armed conflict</a> seeks to protect civilians and those no longer taking part in hostilities from the worst effects of war. Serious violations of these laws covering armed conflict situations constitute <a href="http://www.crimesofwar.org/a-z-guide/war-crimes-categories-of/">war crimes</a>. War crimes are a particular category of international crime, which can be tried by international criminal tribunals, like the
<a href="https://www.icc-cpi.int">International Criminal Court (ICC)</a>.</p>
<p>To date, the majority of war crimes prosecutions in international criminal tribunals have focused on crimes committed against civilians in armed conflicts. In last year’s Bemba <a href="https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/05-01/08-3343">judgment</a>, for example, the ICC heard of a campaign of mass rape committed against civilians in the Central African Republic. </p>
<p>War crimes can also be committed against combatants, provided that they are no longer taking part in hostilities. Certain methods of warfare (such as the use of poisoned weapons) are also <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">prohibited</a>. The aim is to protect combatants on the battlefield.</p>
<p>The traditional assumption has been that war crimes against combatants can only be committed against soldiers from the other side of the armed conflict. The reasoning behind this interpretation was that crimes or human rights violations committed against one’s own armed forces were a matter for states themselves to deal with under their domestic criminal law or human rights law.</p>
<p>But the ICC <a href="https://www.icc-cpi.int/CourtRecords/CR2017_00011.PDF">passed down a decision</a> earlier this month that extends protection under international criminal law to cover war crimes committed within armed forces. Its ruling accepts the argument that victims of crimes perpetrated by people on the same side of an armed conflict should be protected.</p>
<h2>Breaking new ground</h2>
<p>The ruling was preceded by a <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC">suggestion</a> made by the International Committee of the Red Cross that perhaps war crimes could be committed against members of the same armed forces. An example it cited was the rape of one soldier by another in the same armed group. It argued that the fact that the crimes were committed by persons from their own side should not be reason to deny victims protection under the law of armed conflict. </p>
<p>The ICC agreed with this interpretation in its decision. It held that acts of rape and sexual slavery committed by members of a Congolese armed group against other members were war crimes within the jurisdiction of the ICC. The victims were principally girls forcibly recruited as child soldiers for the Union of Congolese Patriots and its military wing, the Patriotic Forces for the Liberation of Congo. The accused, <a href="https://www.icc-cpi.int/drc/ntaganda">Bosco Ntaganda</a>, is former Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo.</p>
<p>This decision, in holding that rape and sexual slavery as war crimes could be committed against any person “irrespective of any legal status”, meant that the court could avoid determining the <a href="https://ilg2.org/2017/01/05/icc-extends-war-crimes-of-rape-and-sexual-slavery-to-victims-from-same-armed-forces-as-perpetrator/">tricky issue</a> of whether the victims were “members” of the armed forces. To do so would have meant recognising that those victims who also took direct part in hostilities lost their protection under the laws of armed conflict.</p>
<h2>Brave new definition</h2>
<p>The decision is likely to be hugely significant. Allegations of mistreatment against members of armed forces by fellow soldiers are not uncommon, as seen from the recent <a href="http://www.telegraph.co.uk/news/2016/06/03/deepcut-inside-the-chaotic-demoralised-and-highly-sexualised-bar/">Deepcut Barracks inquest</a>. In that inquest, there were repeated <a href="http://www.independent.co.uk/news/uk/crime/deepcut-allegations-reveal-culture-of-cruelty-where-sexual-assaults-and-rape-were-widespread-at-army-a6815266.html">allegations</a> of physical and sexual abuse. Following this recent ICC decision it would not be unreasonable to suggest that the allegations constitute not just domestic crimes, but international crimes as well. </p>
<p>Similarly, it is a war crime to deny the right to a fair trial. In the past, we might have expected that this relates only to prisoners of war or civilians detained by armed forces. But, following the ICC’s interpretation, it could be argued that it is also a war crime for an armed force to deny its own members a fair trial. </p>
<p>This could, for example, be pertinent in light of allegations that high profile former members of armed forces, such as <a href="http://www.pbs.org/newshour/bb/military-july-dec13-manning2_07-30/">Chelsea Manning</a>, convicted for passing information to Wikileaks, were not given a fair trial by the courts martial that tried them.</p>
<p>The ICC’s expansive interpretation in this case could well be met with hostility from states, at a time that the ICC is facing increased pressure, including recent <a href="https://theconversation.com/withdrawal-from-the-icc-a-sad-day-for-south-africa-and-africa-67489">withdrawals</a> from the court’s statute. </p>
<p>The ICC’s decision was clearly founded on the laudable aim of recognising the victimhood of young girls forcibly abducted and turned into child soldiers who were then subjected to rape and sexual slavery. But it might have been wise for the Court to have limited this interpretation to these particular war crimes and the particular circumstances of the Ntaganda case.</p><img src="https://counter.theconversation.com/content/71104/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Yvonne McDermott does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Acts of rape and sexual slavery committed by members of a Congolese armed group against other members are war crimes within the jurisdiction of the International Criminal Court.Yvonne McDermott, Associate Professor of Law, Swansea UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/716072017-01-20T11:00:16Z2017-01-20T11:00:16ZIs part of Chelsea Manning’s legacy increased surveillance?<figure><img src="https://images.theconversation.com/files/153551/original/image-20170120-5260-o65qmd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/big-brother-watching-giant-hand-magnifying-345947360">Via shutterstock.com</a></span></figcaption></figure><p>The military’s most prolific <a href="https://www.thenation.com/article/long-list-what-we-know-thanks-private-manning/">leaker of digital documents</a> has ushered in an age of even more increased surveillance over government workers. The legacy of Chelsea Manning’s actions is under discussion in the wake of the announcement that the former Army private will be released from military prison in May. In one of his last official acts, President Obama <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html">commuted her sentence</a> for violations of the Espionage Act and copying and disseminating classified information. The commutation reduced her sentence from 35 years to the seven years she has already served, plus <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html">four additional months needed to effect her release</a>.</p>
<p>In 2010, Manning, then presenting as male and going by the first name Bradley, was an intelligence analyst serving in Iraq. <a href="http://www.npr.org/sections/thetwo-way/2014/06/15/322252062/chelsea-manning-says-she-leaked-classified-info-out-love-for-country">Disillusioned by callous behavior and indiscriminate killing</a> of people in Afghanistan and Iraq by American soldiers, Manning copied and digitally released a <a href="https://www.theguardian.com/world/2013/jul/30/bradley-manning-wikileaks-revelations">massive trove of classified information</a>. The data included 250,000 cables from American diplomats stationed around the world, 470,000 Iraq and Afghanistan battlefield reports and logs of military incident reports, assessment files of detainees held at Guantanamo Bay and war zone videos of airstrikes in Afghanistan and Iraq war in which civilians were killed.</p>
<p>Government officials immediately expressed <a href="http://www.pbs.org/wgbh/frontline/article/just-how-damaging-were-mannings-wikileaks/">concerns about damage to national security, international relations and military personnel</a> because of the information contained in the material. There appears to have been <a href="http://www.huffingtonpost.com/2011/01/19/us-official-wikileaks-rev_n_810778.html">relatively little lasting damage</a> to American diplomacy. The military revelations were more damaging, with documents discussing <a href="https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-military-leaks">prisoner torture</a> and an <a href="http://www.spiegel.de/international/world/the-truth-about-task-force-373-war-logs-cast-light-on-dirty-side-of-afghanistan-conflict-a-708559.html">assassination squad made up of American special forces operators</a>. Those enraged American citizens and the international community alike, and may have hardened the resolve of adversaries.</p>
<p>But the most lasting effect will likely be a powerful new fear of so-called “insider threats” – leaks by people like Manning, working for the U.S. and having passed security clearance background checks. In the wake of Manning’s actions, the military and intelligence communities have been ramping up digital surveillance of their own personnel to unprecedented levels, in hopes of detecting leakers before they let their information loose on the world.</p>
<h2>Embarrassing to diplomats</h2>
<p>The initial official response was that the release of <a href="http://www.slate.com/articles/news_and_politics/explainer/2010/11/whats_a_diplomatic_cable.html">State Department cables</a> – internal communications between officials with candid assessments of international situations and even individual leaders’ personalities – would be so <a href="http://www.telegraph.co.uk/news/worldnews/northamerica/usa/8169040/WikiLeaks-Hillary-Clinton-states-WikiLeaks-release-is-an-attack.html">debilitating to foreign relations</a> that repair would take decades.</p>
<p>In reality, the cables were <a href="https://thecaucus.blogs.nytimes.com/2010/11/30/gates-on-leaks-wiki-and-otherwise/">more embarrassing than destructive</a>. A political uproar met the news that the U.S. and its purported ally Pakistan were working at cross-purposes: American forces were trying to fight against the Taliban and al-Qaida, while Pakistan was trying to offer them protection and even weapons. But overall, it didn’t significantly increase the existing tensions in <a href="https://foreignpolicy.com/2015/01/26/the-art-of-u-s-pakistan-relations/">American-Pakistani relations</a>. Other foreign officials may have <a href="https://www.theguardian.com/world/2013/aug/05/bradley-manning-leak-foreign-policy-sentencing">become more wary about sharing information</a> with Americans, but over time, new people come into key posts, the leak is forgotten and business continues as it has always done.</p>
<p>Foreign leaders about whom U.S. officials had made blunt and disparaging comments in the cables did suffer. For example, the cables revealed a <a href="https://www.theguardian.com/world/2010/dec/03/wikileaks-yemen-us-attack-al-qaida">secret agreement</a> in which the U.S. conducted drone strikes in Yemen while that country’s President Ali Abdullah Saleh publicly took the blame. Two years later, in 2012, a <a href="http://www.bbc.com/news/world-middle-east-17177720">popular revolution ousted him</a>. A similar fate befell the Tunisian President Zine El Abidine Ben Ali, whose lavish lifestyle – and lack of American support – was <a href="http://www.mcclatchydc.com/news/special-reports/article24607888.html">discussed in the cables</a>.</p>
<h2>Revealing military misdeeds</h2>
<p>More damaging to the U.S. was what was revealed in the battlefield reports Manning released, and called evidence of American soldiers’ “<a href="http://www.telegraph.co.uk/news/worldnews/wikileaks/9900525/WikiLeaks-soldier-Bradley-Manning-I-wanted-to-expose-bloodlust-of-US-forces-in-Middle-East.html">bloodlust</a>.” For instance, Manning’s leaks disclosed the activities of an American assassination squad in Afghanistan. Called <a href="https://www.theguardian.com/world/2010/jul/25/task-force-373-secret-afghanistan-taliban">Task Force 373</a>, the unit comprised specially trained U.S. personnel from elite forces such as the Navy SEALs and the Army’s Delta Force. Its goal was to assassinate a range of targets including drug barons, drug makers and al-Qaida and Taliban figures. </p>
<p>The documents also showed U.S. military personnel shooting innocent civilians on the ground and from the air – <a href="https://www.theguardian.com/world/2010/apr/05/wikileaks-us-army-iraq-attack">among them a Reuters journalist</a>. They showed that American <a href="https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-military-leaks">authorities ignored extreme torture</a> inflicted on Iraqi prisoners, including sexual abuse and physical mistreatment, such as hanging detainees upside-down. Allegations of <a href="https://www.theguardian.com/world/2010/dec/02/foreign-contractors-hired-dancing-boys">child trafficking by U.S. military contractors</a> also came to light.</p>
<h2>Surveilling the potential messenger</h2>
<p>Manning is being hailed as a <a href="http://www.truth-out.org/news/item/17935-noam-chomsky-on-grittv-bradley-manning-should-be-regarded-as-a-hero">hero</a> and as a <a href="http://thehill.com/homenews/administration/314858-pence-mistake-to-commute-sentence-for-traitor-chelsea-manning">traitor</a>. There are arguments for both. The public has a right to know about official misdeeds carried out by the government and military. But those kinds of revelations can jeopardize our defense strategy and hurt our standing in the world community.</p>
<p>Manning’s leaks <a href="https://www.ncsc.gov/nittf/">raised alarms across the government</a> because they came from a trusted insider. In 2011, Obama issued <a href="https://www.whitehouse.gov/the-press-office/2011/10/07/executive-order-13587-structural-reforms-improve-security-classified-net">Executive Order 13587</a>, directing Executive Branch departments and agencies to <a href="https://www.ncsc.gov/nittf/docs/National_Insider_Threat_Policy.pdf">be on guard against insider threats</a>.</p>
<p>National Security Agency contractor <a href="https://www.theguardian.com/us-news/the-nsa-files">Edward Snowden’s leaks of NSA documents</a> in 2013 only heightened official fears. As a result, government organizations have <a href="https://www.theguardian.com/us-news/2016/mar/18/chelsea-manning-insider-threat-surveillance-government-employees">increased surveillance</a> and are <a href="http://www.pbs.org/newshour/rundown/us-intelligence-officials-monitor-federal-employees-security-clearances/">closely monitoring their employees’ online activity</a>. </p>
<p>With software and techniques also <a href="http://enterprise-encryption.vormetric.com/rs/vormetric/images/CW_GlobalReport_2015_Insider_threat_Vormetric_Single_Pages_010915.pdf">in use in the private sector</a>, government agencies <a href="http://www.dss.mil/documents/isp/ISL2016-02.pdf">and contractors</a> use computer systems that <a href="https://theconversation.com/panama-papers-revelation-we-must-rethink-data-security-systems-57464">monitor when employees are accessing</a>, copying, deleting and transferring files. </p>
<p>Computers’ <a href="http://www.cio.com/article/2400017/security0/how-to-prevent-thumb-drive-security-disasters.html">external media ports are also being watched</a>, to detect an employee connecting a <a href="https://www.us-cert.gov/ncas/tips/ST08-001">USB thumb drive</a> that could be used to smuggle documents out of a secure system. Workers’ keystrokes and other actions on their computers <a href="http://www.fedtechmagazine.com/article/2016/10/nsa-and-opm-turn-behavioral-analytics-combat-insider-threats">are being analyzed</a> <a href="http://www.cio.com/article/2687816/government-use-of-it/virtualization-cloud-complicate-insider-threats-for-federal-cios.html">in real time</a> to detect unauthorized activity, such as accessing restricted files or even connecting to file-sharing or social media sites.</p>
<p>Agencies and private companies with government contracts will also have to <a href="http://blogs.wsj.com/riskandcompliance/2016/09/01/the-morning-risk-report-defense-contractors-face-new-insider-threat-rule/">keep their employees’ after-work lives under greater surveillance</a>, looking for behavior or situations that might compromise government security. The effectiveness of these efforts is <a href="http://www.mcclatchydc.com/news/special-reports/insider-threats/article24750850.html">not yet clear</a>.</p>
<h2>Leniency or mercy?</h2>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/153550/original/image-20170120-5211-1f1sgyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chelsea Manning.</span>
<span class="attribution"><span class="source">U.S. Army</span></span>
</figcaption>
</figure>
<p>Obama characterized Manning’s release as a <a href="http://www.npr.org/sections/thetwo-way/2017/01/17/510307055/president-obama-commutes-chelsea-mannings-prison-sentence">humanitarian gesture</a> because of her personal circumstances. The day after she was sentenced, Manning revealed that <a href="http://www.nbcnews.com/feature/nbc-out/chelsea-manning-potent-symbol-transgender-americans-n709126">she is transgender and identifies as a woman</a>; nevertheless, she was held in a <a href="https://www.nytimes.com/2017/01/13/us/chelsea-manning-sentence-obama.html">men’s military prison</a>. </p>
<p>The military was under increasing public and even <a href="https://www.theguardian.com/world/2012/mar/12/bradley-manning-cruel-inhuman-treatment-un">international pressure</a> to allow her to <a href="https://www.aclu.org/blog/speak-freely/government-chelsea-manning-were-denying-your-treatment-your-own-good">make a physical and biological transition</a> – a procedure neither the military nor any U.S. prison has <a href="http://www.cnn.com/2016/09/13/politics/chelsea-manning-gender-reassignment-surgery/">ever dealt with or paid for before</a>. (She is likely to <a href="http://www.usatoday.com/story/news/politics/2017/01/18/chelsea-manning-lose-transgender-benefits-dishonorable-discharge/96742180/">lose her military medical coverage</a> upon her release from prison, leaving her medical care in question.)</p>
<p>Despite Obama’s perspective, Manning’s release could be viewed as an act of leniency, a signal that others might escape decades of prison time if they, too, were to violate their oaths of secrecy and reveal confidential public information. But fewer might get the chance to do so, because insiders are trusted less and being watched more.</p><img src="https://counter.theconversation.com/content/71607/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sanjay Goel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Government agencies and contractors are now less trusting of their workers, and keeping a much closer eye on them, both on and off the job.Sanjay Goel, Professor of Information Technology Management, University at Albany, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/715882017-01-19T15:02:36Z2017-01-19T15:02:36ZJust how compassionate is Chelsea Manning’s release?<p>As one of the final acts of his presidency, Barack Obama commuted the sentence of Chelsea Manning, who will now be released in May 2017. Manning was <a href="https://www.theguardian.com/world/2013/aug/21/bradley-manning-35-years-prison-wikileaks-sentence">sentenced to 35 years’ imprisonment</a> in 2013 for leaking more than 700,000 classified documents that were considered prejudicial to the US national interest, many of which formed the bulk of Wikileaks’s first major document dump in 2010.</p>
<p>The length of her sentence was considered by many to be considerably in excess of others who have been convicted of similar offences. The conditions of her imprisonment, which have included lengthy periods of solitary confinement, have also raised concerns. Manning has <a href="http://www.bbc.co.uk/news/world-us-canada-37880823">attempted suicide</a> at least twice during her incarceration. The UN Special Rapporteur on torture, Juán Mendez, <a href="https://www.theguardian.com/world/2012/mar/12/bradley-manning-cruel-inhuman-treatment-un">described</a> her treatment as being cruel, inhuman and degrading. Amnesty International <a href="https://www.amnesty.org/en/latest/news/2017/01/usa-commutation-for-chelsea-manning-long-overdue-positive-step-for-human-rights/">had this to say</a> about her treatment in prison:</p>
<blockquote>
<p>President Obama was right to commute her sentence, but it is long overdue. It is unconscionable that she languished in prison for years while those allegedly implicated by the information she revealed still haven’t been brought to justice.</p>
</blockquote>
<p>Many Republicans in the US, though, have been deeply critical of the decision to commute the sentence. John McCain, for example, described the decision as a “grave mistake”. But the law is clear: a president has the right to commute a sentence. <a href="https://www.law.cornell.edu/constitution/articleii">Article 2(II) of the US Constitution</a> provides that:</p>
<blockquote>
<p>The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.</p>
</blockquote>
<p>This is not in itself unusual. Most states around the world grant an executive power to mitigate the effects of the strictures of criminal law; in the UK, for instance, it is referred to as the Queen’s royal prerogative of mercy. But it’s crucial to note that Obama did not pardon Manning, but instead commuted her sentence to roughly the same amount of time she has already served. She has also been demoted and dishonourably discharged from the army. As such, rightly or wrongly, her convictions remain on record.</p>
<p>This commutation was highly politically sensitive, and in no small part because other cases could yet be brought against other hackers, leakers and whistleblowers, among them Edward Snowden. Hence a <a href="http://mashable.com/2017/01/17/chelsea-manning-edward-snowden/#vjdWBSFt2kqp">careful statement</a> from the White House pointing out the “stark difference” between Manning and Snowden. Whereas Manning was tried by due process in the US military criminal justice system, Edward Snowden “fled into the arms of an adversary” and has yet to face justice for his actions. </p>
<p>Clearly, the Obama administration wanted to be careful it didn’t set a precedent with its decision about Manning’s future. The question of whistleblowing will always be a contentious one, and by nature will often hinge on very particular cases involving individual whistleblowers. </p>
<p>Although the executive power to alter the result of a case in favour of the accused may be a very good one, it does not alter the question of whether there ought to be a formal legal change to protect people like Manning before they end up incarcerated in the first place. </p>
<p>A political negotiation it may be, but Obama’s decision might have at least one collateral benefit: it may yet reopen a crucial debate on whether whistleblowers such as Manning can cite public interest as a defence for making sensitive information public.</p><img src="https://counter.theconversation.com/content/71588/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Cryer does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Crucially, President Obama has commuted Manning’s sentence without pardoning her.Robert Cryer, Professor of International and Criminal Law, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/714732017-01-18T22:56:11Z2017-01-18T22:56:11ZClemency for Chelsea Manning – but will Assange or Snowden also find the US merciful?<figure><img src="https://images.theconversation.com/files/153335/original/image-20170118-26573-1fnfnbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The timing of Chelsea Manning’s commutation further undermines any chance of similar approaches to the situations of Julian Assange or Edward Snowden.</span> <span class="attribution"><span class="source">Reuters/Pierre Albouy</span></span></figcaption></figure><p>US President Barack Obama has <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html?_r=0">commuted the sentence of Chelsea Manning</a>. A former army intelligence operative, Manning was sentenced by court martial in 2013 to <a href="https://www.washingtonpost.com/world/national-security/judge-to-sentence-bradley-manning-today/2013/08/20/85bee184-09d0-11e3-b87c-476db8ac34cd_story.html?utm_term=.85d6f87b74d5">35 years’ imprisonment</a> for espionage crimes relating to the mass leaking of military and diplomatic material. </p>
<p>She will now be released in May 2017, having served seven years including her time in confinement before and during her trial. </p>
<p>Manning’s lawyers argued she was motivated by a desire to <a href="http://www.abc.net.au/news/2013-06-05/bradley-manning-trial/4733550">expose the reality of war</a> to the American people. She leaked more than 700,000 items of interest to whistleblower website WikiLeaks. It published many – including videos of airstrikes that <a href="http://www.abc.net.au/news/2017-01-18/who-is-chelsea-manning/8190214">killed civilians</a> in Iraq and Afghanistan.</p>
<p>At the time of sentencing, the American Civil Liberties Union (ACLU) contrasted Manning’s punishment with the <a href="https://www.theguardian.com/world/2013/aug/21/bradley-manning-35-years-prison-wikileaks-sentence">relative impunity</a> of military personnel who tortured prisoners and killed civilians. According to the ACLU’s Ben Wizner: </p>
<blockquote>
<p>A legal system that doesn’t distinguish between leaks to the press in the public interest and treason against the nation will not only produce unjust results, but will deprive the public of critical information that is necessary for democratic accountability.</p>
</blockquote>
<h2>Reaction to the announcement</h2>
<p><a href="https://www.chelseamanning.org/">Manning’s supporters</a> have welcomed Obama’s decision, particularly given her two suicide attempts last year. </p>
<p>At the time of her trial, Chelsea Manning was known as a man named Bradley. She has since identified as a transgender woman and undergone hormonal and psychological therapy, but remains in a <a href="https://www.nytimes.com/2017/01/13/us/chelsea-manning-sentence-obama.html">men’s prison</a>. </p>
<p><a href="http://www.amnestyusa.org/get-involved/take-action-now/urgent-action-demand-commutation-for-chelsea-manning-usa-ua-27716">Amnesty International</a> has campaigned for Manning’s release. The human rights group claims she was denied due process at trial and treated cruelly in prison. It regards Manning as a human rights defender for exposing public interest material. </p>
<p>Amnesty’s conclusions were endorsed by the UN special rapporteur on torture, <a href="https://www.theguardian.com/world/2012/mar/12/bradley-manning-cruel-inhuman-treatment-un">Juan Mendez</a>, who found the conditions of Manning’s imprisonment cruel, inhumane and potentially torturous. </p>
<p>WikiLeaks founder Julian Assange also welcome the commutation. He called Manning a hero and demanded an end to the “<a href="http://indianexpress.com/article/world/julian-assange-welcomes-barack-obamas-decision-to-commute-chelsea-manning-sentence-4479482/">war on whistleblowers</a>”. </p>
<p>Manning’s fellow intelligence operative <a href="https://twitter.com/Snowden/status/821476926372118531">Edward Snowden</a> similarly thanked Manning “for what you did for everyone”, and wished her strength in her remaining months of imprisonment.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"821476926372118531"}"></div></p>
<h2>A merciful US government?</h2>
<p>The White House is celebrating Obama’s record of 1385 pardons and sentence commutations during his administration. Obama’s exercise of these extraordinary presidential powers was hailed as evidence of his <a href="https://www.whitehouse.gov/blog/2017/01/17/president-obama-has-now-granted-more-commutations-any-president-nations-history">remarkable mercy</a>.</p>
<p>Yet the Obama administration has <a href="https://www.theguardian.com/us-news/2015/mar/16/whistleblowers-double-standard-obama-david-petraeus-chelsea-manning">criminalised whistleblowing</a> in the national security context like no previous US government. It is <a href="http://www.washingtontimes.com/news/2017/jan/13/obama-suddenly-wants-protect-whistleblowers-igs/">notorious</a> for undertaking nine prosecutions under the WWI-era Espionage Act. This is more than twice the number of prosecutions under all previous administrations.</p>
<p>Low- and mid-level operatives like Manning have received harsh sentences, while the torture and human rights abuses they have exposed go unpunished – and more senior officials escape sanction for leaking. Even military operatives convicted of <a href="https://theintercept.com/2016/07/01/obama-administration-finally-releases-its-dubious-drone-death-toll/">war crimes</a>, murder and rape have received considerably shorter sentences than that initially delivered to Manning.</p>
<p>Some sources have critiqued Obama’s commutation of Manning’s sentence as a cynical and all-too-late development, given it followed eight years of efforts to “<a href="http://www.washingtontimes.com/news/2017/jan/13/obama-suddenly-wants-protect-whistleblowers-igs/">diminish and silence</a>” whistleblowers and watchdogs.</p>
<p>A <a href="https://theintercept.com/2016/07/01/obama-administration-finally-releases-its-dubious-drone-death-toll/">lack of transparency</a> has characterised Obama’s massive expansion of the drone program and the idea of borderless war against terrorism.</p>
<h2>A precedent for Assange, Snowden and others?</h2>
<p>The announcement of Manning’s commutation raises questions regarding the future of other high-profile leakers. </p>
<p>Since 2012, Assange has been under effective house arrest in the Ecuadorean embassy in London. He has been <a href="http://www.telegraph.co.uk/news/worldnews/wikileaks/11681502/Why-is-Julian-Assange-still-inside-the-embassy-of-Ecuador.html">granted asylum</a> to protect against the <a href="http://heavy.com/news/2017/01/will-julian-assange-be-extradited-to-united-states-us-after-chelsea-manning-clemency-obama-wikileaks-extradition-offer/">possibility of prosecution</a> for espionage in the US.</p>
<p>Earlier this month, the WikiLeaks Twitter account announced Assange <a href="https://twitter.com/wikileaks/status/819630102787059713">would agree to US extradition</a> if Manning was released. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"819630102787059713"}"></div></p>
<p>However, Assange now says Manning ought to have received clemency and been released immediately. <a href="http://www.independent.co.uk/life-style/gadgets-and-tech/news/julian-assange-chelsea-manning-barack-obama-hand-in-embassy-arrest-extradition-us-a7533911.html">Assange’s lawyers</a> have indicated that the terms of the commutation do not meet his requirements to consent to extradition. </p>
<p>Assange’s situation is complicated by the persistent threat of “<a href="https://justice4assange.com/">lesser rape</a>” charges in Sweden.</p>
<p>It seems even less likely that Manning’s commutation will prompt a change in circumstance for Snowden. The former CIA contractor leaked classified material, including the revelation that the NSA collects Americans’ <a href="http://www.thejournal.ie/manning-snowden-obama-3192213-Jan2017/">phone and internet data</a>.</p>
<p>Obama has denied he has the power to pardon Snowden, because Snowden has not submitted himself to the judgement of a court. Yet US presidents as recent as Bill Clinton have delivered <a href="http://www.thejournal.ie/manning-snowden-obama-3192213-Jan2017/">pre-trial pardons</a>.</p>
<p>This week a new element of this stance emerged. White House spokesman Josh Earnest effectively identified Snowden as a <a href="https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html?_r=0">traitor</a> because of his temporary asylum in Russia: </p>
<blockquote>
<p>Mr Snowden fled into the arms of an adversary and has sought refuge in a country that most recently made a concerted effort to undermine confidence in our democracy.</p>
</blockquote>
<h2>What now under Donald Trump?</h2>
<p>The timing of Manning’s commutation further undermines any chance of similar approaches to the situations of Assange or Snowden. With President-elect Donald Trump to be sworn in this week, an even less conciliatory tone is likely to be taken in relation to whistleblowers. </p>
<p>This was evident in Republican senator <a href="https://www.theguardian.com/us-news/2017/jan/17/chelsea-manning-sentence-commuted-barack-obama?CMP=Share_iOSApp_Other">John McCain’s response</a> response to the announcement of Manning’s commutation: </p>
<blockquote>
<p>It is a sad, yet perhaps fitting commentary on President Obama’s failed national security policies that he would commute the sentence of an individual that endangered the lives of American troops, diplomats, and intelligence sources by leaking hundreds of thousands of sensitive government documents to WikiLeaks, a virulently anti-American organisation that was a tool of Russia’s recent interference in our elections.</p>
</blockquote>
<p><a href="https://twitter.com/realDonaldTrump/status/457314934473633792">Trump</a> has previously made his views on Snowden very clear:</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"457314934473633792"}"></div></p>
<p>Obama’s legacy of <a href="http://www.newyorker.com/news/daily-comment/obama-leaves-trump-a-mixed-legacy-on-whistle-blowers">zealous criminalisation</a> of whistleblowers sets:</p>
<blockquote>
<p>… a precedent that some fear Donald Trump will invoke … to further muzzle dissent. </p>
</blockquote>
<p>By no means has Trump indicated commitment to <a href="http://europe.newsweek.com/2016-election-donald-trump-press-freedom-first-amendment-520389?rm=eu">freedom of the press</a>, either.</p><img src="https://counter.theconversation.com/content/71473/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a member of the National Committee of Australian Lawyers for Human Rights and a member of Amnesty International. </span></em></p>The announcement of Chelsea Manning’s commutation raises questions regarding the future of other high-profile leakers, like Julian Assange and Edward Snowden.Amy Maguire, Senior Lecturer in International Law and Human Rights, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/573682016-04-06T15:10:27Z2016-04-06T15:10:27ZWhistleblowers and leak activists face powerful elites in struggle to control information<figure><img src="https://images.theconversation.com/files/117701/original/image-20160406-28973-p3s1ug.jpg?ixlib=rb-1.1.0&rect=0%2C552%2C3549%2C2762&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">They want you to keep it zipped.</span> <span class="attribution"><span class="source">Lightspring/shutterstock.com</span></span></figcaption></figure><p>The <a href="https://panamapapers.icij.org">Panama Papers</a> have brought the powerful role of whistleblowers back into the public consciousness. Several years after WikiLeaks’ <a href="http://wlcentral.org/cablegate">Cablegate</a> and the <a href="https://snowdenarchive.cjfe.org">Snowden revelations</a>, the next big leak has not only <a href="http://www.theguardian.com/world/2016/apr/05/iceland-prime-minister-resigns-over-panama-papers-revelations">caused the downfall of Iceland’s prime minister</a> (with others possibly to follow), but has demonstrated that the practice of exposing hidden information is very much alive. The struggle over controlling this kind of information is one of the great conflicts of our times.</p>
<p>It might seem that such leaks are rare. WikiLeaks’ publication in 2010 of the <a href="https://wardiaries.wikileaks.org">Iraq and Afghanistan war diaries</a> and of US diplomatic cables brought major political repercussions, but public interest in WikiLeaks has fallen since. Whistleblower Edward Snowden’s revelations in 2013 about mass surveillance programmes by US and British intelligence services returned the power of the leak to the spotlight, triggering new legislation in the UK in the form of the <a href="http://services.parliament.uk/bills/2015-16/investigatorypowers.html">Investigatory Powers Bill</a>. But no mass movement of whistleblowers appears to have emerged in their wake.</p>
<p>Nevertheless, plenty has been going on. WikiLeaks has continued to expose hidden information, including files on <a href="https://wikileaks.org/gitmo/">Guantanamo Bay operations</a>, secret drafts of the controversial <a href="https://wikileaks.org/tpp-final/">TPP trade negotiations</a>, and more recently a recording of an <a href="https://wikileaks.org/imf-internal-20160319/">IMF meeting</a> that provides significant insights into current conflicts between the IMF, the EU and the Greek government in their handling of the eurozone crisis. Other leaks include those that revealed HSBC bank helped <a href="http://www.theguardian.com/business/2015/feb/08/hsbc-files-expose-swiss-bank-clients-dodge-taxes-hide-millions?CMP=share_btn_tw">clients conceal their wealth</a>.</p>
<p>Old-world and new-world media organisations have developed processes to deal with anonymous data leaks and protect the safety of the whistleblowers. Organisations such as the New York Times, The Guardian and Al-Jazeera use secure digital dropboxes for depositing files anonymously. Major publishers established collaborations <a href="http://theconversation.com/panama-papers-the-nuts-and-bolts-of-a-massive-international-investigation-57197">to share resources and expertise</a> in order to analyse and make sense of the huge amount of data quickly and to maximise international exposure.</p>
<h2>Leak activism and hacktivism</h2>
<p>And beyond the major news organisations, a culture of “leaks activism” has emerged. Hacktivist groups such as <a href="https://www.globaleaks.org/">Globaleaks</a> have developed technology for secure and anonymous leaking. Local or thematically-oriented initiatives provide new opportunities for whistleblowers to expose secret information. <a href="https://xnet-x.net/en/xnetleaks">Citizen Leaks</a> in Spain, for example, acts as an intermediary that accepts leaks, reviews them, and sends them on to partner newspapers. Run by Xnet, an anti-corruption group, Citizen Leaks has helped uncover major cases of corruption in Spain that brought to court leading Spanish politicians such as former minister of the economy and chairman of Spain’s largest bank, <a href="https://15mparato.wordpress.com/2014/10/28/story-citizen-lawsuit/">Rodrigo Rato</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/117704/original/image-20160406-28940-kwp587.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/117704/original/image-20160406-28940-kwp587.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=353&fit=crop&dpr=1 600w, https://images.theconversation.com/files/117704/original/image-20160406-28940-kwp587.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=353&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/117704/original/image-20160406-28940-kwp587.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=353&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/117704/original/image-20160406-28940-kwp587.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=443&fit=crop&dpr=1 754w, https://images.theconversation.com/files/117704/original/image-20160406-28940-kwp587.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=443&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/117704/original/image-20160406-28940-kwp587.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=443&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Who will blow the whistle?</span>
<span class="attribution"><span class="source">PlusONE/shutterstock.com</span></span>
</figcaption>
</figure>
<p>As intermediaries rather than publishers, organisations such as Citizen Leaks remain largely invisible to the public. But their role is crucial to expose corruption and other wrongdoings and so they are an important feature of the changing media landscape. Following the WikiLeaks revelations in 2010-11, US scholar Yochai Benkler conceptualised this emerging news environment as a “<a href="http://benkler.org/Benkler_Wikileaks_current.pdf">networked fourth estate</a>”, in which classic news organisations interact with citizen journalists, alternative and community media, online news platforms, and new organisations such as WikiLeaks and Citizen Leaks. In Snowden’s case, he (the whistleblower) worked with documentary filmmaker Laura Poitras, independent journalist and former lawyer Glenn Greenwald, and The Guardian, a traditional media organisation.</p>
<p>Leaks activist groups and platforms are increasingly relevant because digitisation makes it easy to collect and transmit vast troves of data. The 7,000 pages of the <a href="http://www.biography.com/people/daniel-ellsberg-17176398">Pentagon Papers</a> that Daniel Ellsberg had to photocopy in 1971 would be a small PDF file today, while the huge amounts of documents that comprise the Panama Papers would have been impossible to leak in pre-digital times. </p>
<h2>No love lost for whistleblowers</h2>
<p>Consequently, as organisations become more vulnerable to leaks they try to protect themselves through other means. The <a href="http://www.commondreams.org/views/2016/01/08/insider-threat-program-hundred-thousand-pentagon-personnel-under-total-surveillance">Insider Threat Program</a> adopted for US public administrative agencies requires employees to report to their superiors any “suspicious” behaviour by colleagues.</p>
<p>Under the Obama administration <a href="https://www.propublica.org/special/sealing-loose-lips-charting-obamas-crackdown-on-national-security-leaks">more whistleblowers have been prosecuted</a> than under all previous Presidents combined. Chelsea Manning was sentenced to 35 years in prison, Julian Assange is holed up in the Ecuadorian Embassy in London, and Snowden lives in exile in Russia. So as leaks become more common, the response by states and corporations becomes harsher.</p>
<p>Whistleblowers are exposing the secrets of the powerful and the foundations on which contemporary political and economic power relations are built. Activism based around hacking, leaks and the release of data has put tools to affect world politics into the hands of those outside the classic structures of power and influence. Yet as previous high-profile leaks have shown, the degree and direction of change is far from clear, and there’s no doubt that the consequences for whistleblowers can be life-changing. With the stakes rarely higher, the struggle to control information is likely to stay at the top of the political agenda.</p><img src="https://counter.theconversation.com/content/57368/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Arne Hintz receives funding from the Economic and Social Research Council for the project 'Digital Citizenship and Surveillance Society: UK State-Media-Citizen relations after the Snowden leaks'.</span></em></p>The rise of leaktivism: specialised platforms and organisations that turn data into a weapon to strike at government and corporate power.Arne Hintz, Senior Lecturer in Media, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/464042015-08-21T00:49:37Z2015-08-21T00:49:37ZWhat if the Ashley Madison hack was an inside job?<figure><img src="https://images.theconversation.com/files/92493/original/image-20150820-32459-1gzcfce.jpg?ixlib=rb-1.1.0&rect=89%2C65%2C1608%2C979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Many people might be in trouble care of the Ashley Madison hack.</span> <span class="attribution"><span class="source">lucyburrluck/Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>A massive cache of highly personal information collected by dating site Ashley Madison has been publicly posted on the internet by a group calling itself “Impact Team”. Ashley Madison is specifically aimed at married people seeking extra-marital affairs, advertising itself with the tagline: “Life is short – have an affair”.</p>
<p>Impact Team had earlier threatened to release the information if the site’s operators, Canadian company Avid Life Media, <a href="http://krebsonsecurity.com/2015/07/online-cheating-site-ashleymadison-hacked/">continued to operate</a> both Ashley Madison and companion site Established Men. Other dating sites operated by the company, such as Cougar Life, were not targeted. </p>
<p>Interestingly, the motivation for the data release appears to be ideological rather than financial. The group’s <a href="http://www.wired.com/2015/08/happened-hackers-posted-stolen-ashley-madison-data/">statement</a> on releasing all of the data states:</p>
<blockquote>
<p>Avid Life Media has failed to take down Ashley Madison and Established Men. We have explained the fraud, deceit, and stupidity of ALM and their members. Now everyone gets to see their data.</p>
</blockquote>
<p>While earlier purported releases of the data turned out to be fakes, the latest release appears highly likely to be <a href="http://krebsonsecurity.com/2015/08/was-the-ashley-madison-database-leaked/">authentic</a>, as pointed out by Gawker journalist, Sam Biddle:</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"633859412487184384"}"></div></p>
<h2>An inside job?</h2>
<p>In an <a href="http://krebsonsecurity.com/2015/07/online-cheating-site-ashleymadison-hacked/">interview</a> after the initial release by Impact Team, ALM CEO Noel Biderman stated that:</p>
<blockquote>
<p>“We’re on the doorstep of [confirming] who we believe is the culprit, and unfortunately that may have triggered this mass publication […] I’ve got their profile right in front of me, all their work credentials. It was definitely a person here that was not an employee but certainly had touched our technical services.</p>
</blockquote>
<p>Later <a href="http://media.ashleymadison.com/statement-from-avid-life-media-inc-august-18-2015/">statements</a> by the company have been mute on the identity of the suspected attackers. However, an "inside job” still seems to be among the most plausible sources of the data leak.</p>
<p>While security breaches by “outside” hackers traditionally receive more attention, inside threats are often much harder to stop.</p>
<p>Insiders may already have direct access to the information they seek to misuse. Even if they do not, their insider status may allow them to bypass many layers of security. They will also often know what resources are available, and how remaining security might be bypassed, including through social means.</p>
<p>One defence against inside attacks is to limit the information to which an individual has access, and the nature of that access to that needed to do their job. As a simple example, email systems do this by allowing most people access only to their own emails. </p>
<p>However, the information an insider might legitimately need is difficult to predict and frequently changes. Furthermore, some individuals may legitimately need access to virtually all the information resources a company has – the IT system administrators, for instance. It’s also very difficult to automatically determine the purpose of access to IT resources; is the system administrator copying that database to transfer it to a new company server, or to release it on the internet? </p>
<p>Impact Team’s own statements might well hint at the difficulties of protecting against inside attacks, by way of a backhanded compliment to the person most directly responsible for preventing attacks such as theirs. Brian Krebs’ <a href="http://krebsonsecurity.com/2015/07/online-cheating-site-ashleymadison-hacked/">original story</a> on the hack quotes Impact Team’s manifesto:</p>
<blockquote>
<p>Our one apology is to Mark Steele (Director of Security) […] You did everything you could, but nothing you could have done could have stopped this.</p>
</blockquote>
<h2>Non-technical countermeasures</h2>
<p>While technical measures are of limited use against skillful, motivated inside attackers, there are other factors that deter such attacks. The most significant and controversial media leak of the new century illustrates this well.</p>
<p>Chelsea (born Bradley) Manning, as a junior intelligence analyst in the US Army, was able to access and make copies of an enormous trove of classified data from several US government networks specifically designed for sharing secret information.</p>
<p>The technical measures set up on these networks – presumably set up with information security top of mind – did not prevent her from providing Wikileaks with information well beyond what she would have accessed in the normal course of her work.</p>
<p>But where technical measures failed, US military law has stepped in. Manning is serving a 35-year prison sentence for her actions. The personal consequences of getting caught are likely to deter all but the most committed American soldiers from repeating her actions. </p>
<p>While military and intelligence secrets are protected by uniquely harsh laws, there are a variety of criminal and civil law deterrents to hacking in civilian life, including in Canada, where ALM is domiciled. Furthermore, if they are publicly identified and they are IT professionals, they are likely to have rendered themselves virtually unemployable.</p>
<h2>Unusual, but not unique</h2>
<p>Ashley Madison is unusual in the sensitivity of the data it kept and the depth of moral outrage its service provoked in some people. As such, it seems to have motivated attackers who were prepared to inflict financial costs on its owners. This is in spite of potentially huge personal costs on its clients and the risk of jail time for the hackers in order to achieve their goal of shutting the site down.</p>
<p>Companies running websites to aid extra-marital affairs are not, however, the only organisations that use IT systems to store highly sensitive information and provoke intense outrage in some individuals.</p>
<p>For instance, sites that bring together people affected by domestic violence, or related to reproductive health, record sensitive details that may have severe real-world consequences if made public. Furthermore, there are relatively small but highly motivated groups within the community who are opposed to the activities of these sites and might be prepared to try to make that data publicly available.</p>
<p>Some of these sites, such as <a href="https://www.1800respect.org.au/about/">1800Respect</a> – a national counselling service for those experiencing sexual, domestic or family violence – already provide extensive <a href="https://www.1800respect.org.au/get-help/tech-tips-for-increasing-security/">advice</a> for individuals on how to increase their personal IT security. </p>
<p>Organisations working in such sensitive areas already take enormous care with the information they keep. As they move into online service provision, they will have to be similarly cautious.</p>
<h2>The future: a risky world for some</h2>
<p>Any information that we leave online is vulnerable to hackers, but not all of it is equally interesting to them. Some information is attractive to criminals for financial reasons; in this case, it was interesting for ideological reasons.</p>
<p>Furthermore, the leak demonstrates that even a well-resourced site aware of the risks it faced was unable to prevent an attack by skilled and motivated attackers.</p>
<p>Individuals providing very sensitive information to sites that may face such attackers should consider further measures to obscure the connection between themselves and their online activities. A full discussion on how to do so would be beyond the scope of this article. </p>
<p>However, to give a simple example of what not to do: most of the Ashley Madison customers publicly identified so far used <a href="http://www.csoonline.com/article/2973036/vulnerabilities/ashley-madison-hackers-publish-compromised-records.htmlhtml">government or employer-provided email addresses</a> and computing resources to sign up for the service.</p><img src="https://counter.theconversation.com/content/46404/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Merkel does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If the Ashley Madison hack was an inside job, then it shows that even strong protection against outside attacks isn’t necessarily enough to prevent a leak of private data.Robert Merkel, Lecturer in Software Engineering, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/461492015-08-14T16:10:59Z2015-08-14T16:10:59ZWill Julian Assange quit the Ecuadorian embassy?<p><a href="http://www.ft.com/cms/s/0/f25c9714-40ec-11e5-b98b-87c7270955cf.html">Speculation</a> is rife that Julian Assange could be about to emerge from the Ecuadorian embassy in London, where he has been holed up for three years. There has been a change in his legal circumstances and, perhaps sensing an opportunity, the British government has lodged a <a href="http://time.com/3997683/uk-julian-assange-ecuadorean-embassy-wikileaks/">formal protest</a> with the Ecuadorian government about its refusal to give him up.</p>
<p>But anyone expecting to catch a glimpse of the Wikileaks founder in the near future may be sadly disappointed. He is unlikely to think it safe to come out just yet.</p>
<p>Assange is an Australian computer programmer and former hacker. But, owing to his editorship of the Wikileaks website, he is best known for overseeing the release of hundreds of thousands – if not millions – of classified government documents.</p>
<p>The most notable of these were <a href="http://blogs.wsj.com/washwire/2013/08/21/what-bradley-manning-leaked/">papers</a> relating to US intelligence and operations in Iraq, Afghanistan and Guantanamo Bay. The US was not impressed when Wikileaks released these in 2010 and began investigating both Assange and Chelsea Manning, the US Army soldier who leaked the documents. Manning is now serving a <a href="http://www.bbc.co.uk/news/world-us-canada-33912462">35-year sentence</a> in the US for her role in the release of the documents.</p>
<p>These US investigations do relate to the latest developments in Assange’s situation, but are not the basis of the <a href="http://www.theguardian.com/media/2010/dec/17/julian-assange-sweden">legal difficulties</a> he has in Sweden, where he was visiting in 2010.</p>
<p>There he faces charges for the sexual offences of unlawful coercion, rape and sexual molestation. Assange has not yet been charged because the Swedish prosecutor wants to interview him, in Sweden, about the allegations. In Sweden a putative defendant has to be interviewed prior to any charges being brought. Sweden issued a European Arrest warrant in June 2012 in an attempt to bring him back to comply.</p>
<p>Upon hearing of this development, Assange, who was in London, sought <a href="http://www.birmingham.ac.uk/research/perspective/assange.aspx">diplomatic asylum</a> at the Ecuadorian embassy. This was granted in August 2012.</p>
<p>He does not have personal diplomatic immunity but since the Ecuadorean embassy is immune from UK legal process, he cannot be arrested while he is on the premises (or in a diplomatic car).</p>
<p>So, a stand-off has developed. Assange has stayed in the embassy since 2012, with British police stationed outside, prepared to arrest him should he venture out. The cost to the UK taxpayer for this has already topped <a href="http://www.bbc.co.uk/news/world-europe-33894757">£12m</a> and continues to rise.</p>
<p>Assange said he sought asylum in the embassy because he feared that if he were to return to Sweden, he would be extradited to the US to face the Wikileaks charges.</p>
<p>Sweden has not said that it would do this – and it’s not certain that it could easily happen in legal terms either. But it has not categorically said that it wouldn’t either and Assange, rightly or wrongly, also feels that the full legal process may not be followed in his case.</p>
<h2>Swedish law</h2>
<p>Now, the Swedish statute of limitations is about to expire on some of Assange’s alleged offences. A statute of limitations is a piece of legislation which prevents the trial or punishment of an alleged offender after a certain period of time (often known as period of prescription). The precise details of which crimes are covered and time periods differ between countries.</p>
<p>They are a controversial measure. Those who speak in their favour say it is important to stop courts from getting clogged up with old cases and to respect the fact that evidence deteriorates over a long period of time. Some also argue that statutes of limitation allow victims to move on (a point with which one of Assange’s accusers <a href="http://www.bbc.co.uk/news/world-europe-33894757">appears to agree</a>).</p>
<p>Others argue that it is wrong to privilege the ease of administration of justice, and the rights of a defendant over those of victims, especially in serous offences.</p>
<p>They are complicated issues, and this is in part why different states deal with the issue differently. In some states there are no periods of limitation for sexual offences. In Sweden the offences alleged against Assange have statutory limitation periods of between five and ten years.</p>
<p>The period of limitation for the charge of unlawful coercion and one of the two allegations of sexual molestation levelled at Assange has run out. And the statutory period of prescription on the second charge of sexual molestation will expire next week. </p>
<p>So, in spite of Sweden offering talks and suggestions about how Assange could be interviewed in the Ecuadorean embassy in <a href="http://www.independent.co.uk/news/uk/home-news/julian-assange-ecuador-agrees-to-open-talks-with-sweden-on-allowing-prosecutors-to-question-the-wikileaks-founder-over-sexcrime-claims-10450833.html?origin=internalSearch">June of this year</a> and again on August 13, Assange will not be charged with, still less stand trial for, these alleged offences there.</p>
<p>He has said he is <a href="http://www.theguardian.com/media/2015/aug/13/julian-assange-cases-dropped-but-rape-claim-investigation-continues">saddened</a> that he will not be able to provide his side of the story in relation to these allegations. His detractors say he could have done so by either going to Sweden, or agreeing to their proposals about Swedish officials coming to London.</p>
<p>So, does this mean that Assange’s legal worries in Sweden are over? The answer is no. The statutory limitation period for rape, the remaining allegation, is ten years. Therefore Swedish prosecutors have another five years to come to an agreement with Ecuador on how to proceed to interview Assange, and make a decision on whether to charge him.</p>
<p>Given that any proposals and negotiations are likely to be based on the idea that Assange will not set foot inside Sweden to talk, it seems likely that he will sit tight in the embassy for some time soon, much to the <a href="https://www.gov.uk/government/news/hugo-swire-calls-on-ecuador-to-support-legal-process-in-julian-assange-case">chagrin</a> of the British government.</p><img src="https://counter.theconversation.com/content/46149/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Cryer does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The statute of limitations is expiring on some of the charges against the Wikileaks founder – but not all of them.Robert Cryer, Professor of International and Criminal Law, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/452602015-07-28T14:35:11Z2015-07-28T14:35:11ZHactivists aren’t terrorists – but US prosecutors make little distinction<figure><img src="https://images.theconversation.com/files/89935/original/image-20150728-7641-1yxr1ta.jpg?ixlib=rb-1.1.0&rect=0%2C73%2C381%2C307&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">For Lauri Love, being treated as a terrorist is no laughing matter.</span> <span class="attribution"><span class="source">Lauri Love/Facebook</span></span></figcaption></figure><p>Activists who use technology to conduct political dissent – <a href="http://www.computerweekly.com/opinion/Hacktivism-Good-or-Evil">hacktivists</a> – are increasingly threatened with investigation, prosecution and often <a href="http://opinionator.blogs.nytimes.com/2013/04/13/hacktivists-as-gadflies/?_r=0">disproportionately severe criminal sentences</a>. </p>
<p>For example, in January 2015 self-proclaimed Anonymous spokesman Barrett Brown was sentenced to 63 months in prison for hacking-related activities including <a href="http://www.theguardian.com/technology/2015/jan/22/barrett-brown-trial-warns-dangerous-precedent-hacking-sentencing">linking to leaked material online</a>. Edward Snowden is currently exiled in Russia after leaking the global surveillance operations of the NSA and GCHQ.</p>
<p>Prosecutions of hacktivists intensified in 2013, when Andrew “weev” Auernheimer was <a href="http://www.theverge.com/2012/11/20/3673754/att-ipad-hack-email-auernheimer-iccid-goatse">sentenced to 41 months</a> after exposing a vulnerability that affected 114,000 iPad users on AT&T’s service. Jeremy Hammond was <a href="http://www.theguardian.com/us-news/2015/feb/02/fbi-anonymous-hacktivist-jeremy-hammond-terrorism-watchlist">sentenced to 10 years in federal prison</a> after hacking and releasing documents about military subcontractor Stratfor. Aaron Swartz, who was facing a prison sentence of 25 years after hacking into JSTOR – a database of academic articles – <a href="http://www.theguardian.com/commentisfree/2015/feb/07/aaron-swartz-suicide-internets-own-boy">committed suicide</a> in January of that year. Chelsea Manning leaked secret military documents to Wikileaks and was <a href="http://www.theguardian.com/world/2013/aug/21/bradley-manning-35-years-prison-wikileaks-sentence">sentenced to 35 years imprisonment</a> in August.</p>
<h2>Long arm of the law is getting longer</h2>
<p>While these are US citizens subject to US laws and punishments, the Obama administration has recently indicated that it will also <a href="http://www.wired.com/2015/04/new-obama-order-allows-sanctions-foreign-hackers/">aggressively pursue</a> hackers located overseas for alleged criminal activities.</p>
<p>So in July 2015, British hacktivist Lauri Love <a href="http://www.bbc.co.uk/news/uk-england-suffolk-33560879">was re-arrested under a US warrant</a> for violating the Computer Misuse Act. His case, like those mentioned above, illustrates the remarkable steps the US government will undertake in the pursuit and prosecution of hackers. </p>
<p>In 2013 the US District Court for New Jersey issued an <a href="http://www.justice.gov/sites/default/files/usao-nj/legacy/2013/11/29/Love,%20Lauri%20Indictment.pdf">indictment</a> against Love, charging him with hacking into the US Missile Defense Agency, NASA, the Environmental Protection Agency and other government departments. The <a href="https://www.fbi.gov/newyork/press-releases/2014/u.k.-computer-hacker-charged-in-manhattan-federal-court-with-hacking-into-federal-reserve-computer-system">US Attorney’s Office</a> for the Southern District of New York claims Love stole the sensitive personal information including emails of Federal Reserve employees.</p>
<p>The leaked Federal Reserve emails <a href="https://www.rt.com/usa/lauri-love-anonymous-lastresort-853/">may have been part</a> of Operation Last Resort, an Anonymous project to avenge the death of Swartz, which they linked to prosecutorial harassment and the over-zealous enforcement of outdated computer crime laws. Like all major Anonymous operations, Operation Last Resort was a visual spectacle, including hijacking an MIT website to put up a Swartz tribute, releasing the names and contact information of <a href="http://www.theverge.com/2013/2/4/3950732/anonymous-posts-banking-industry-details-in-aaron-swartz-protest">4,000 banking executives</a>, and <a href="http://www.zdnet.com/anonymous-hacks-us-sentencing-commission-distributes-files-7000010369/">hacking the US Sentencing Commission</a> website.</p>
<h2>Are hackers terrorists?</h2>
<p>Like Hammond, Manning and Snowden before him, Love is accused of hacking into government agencies and leaking information in an effort to make federal agencies more <a href="http://www.scotsman.com/news/politics/top-stories/insight-lauri-love-the-making-of-a-hacker-1-3170765">transparent</a>. </p>
<p>Love faces extradition to the US, even though a British police investigation failed to turn up any incriminating evidence. The Crown Prosecution Service acknowledged it didn’t have enough evidence to prosecute and Love was <a href="http://www.bbc.co.uk/news/uk-england-suffolk-28486123">released from bail in 2014</a>.</p>
<p>The impending threat of US extradition is powerful enough to have kept Wikileaks publisher, Julian Assange, holed-up in Ecuador’s London Embassy for three years – and it is not difficult to understand why. Extradition law is generally reserved for serious criminal suspects such as those accused of terrorism. </p>
<p>Consider some of the individuals who have been extradited from the UK to the US: Abdel Abdel Bar and Khalid Abdulrahman al-Fawwaz, wanted in connection with the 1998 terrorist bombing of US Embassies in East Africa; KGB spy Shabtai Kalmanovich; al-Qaeda operative Syed Fahad Hashmi; and Christopher Tappin, accused of selling weapons parts to Iran.</p>
<h2>Blurring the political and the criminal</h2>
<p>So it’s ironic that while Obama recently noted that the US criminal justice system “<a href="https://www.whitehouse.gov/the-press-office/2015/07/14/remarks-president-naacp-conference">isn’t as smart as it should be</a>”, his government pursues a policy that seems to blur the differences between and the sanctions against hackers, terrorists, spies and political activists. </p>
<p>There have been successful challenges against extradition orders aimed at those accused of hacking offences, such as <a href="http://www.wired.com/2012/10/mckinnon-extradition-win/">Gary Mackinnon</a>, who spent 10 years facing extradition before Home Secretary Theresa May rejected US demands. But Love’s case also offers a window into the anti-democratic operation of state power. The scale of US government response to hacktivism is disproportionate. </p>
<p>Love is accused of attempting to reveal secret facets of the military and financial-industrial complexes so that they might be held accountable. If, as it is alleged, his activities were associated with Operation Last Resort, they were part of a broader digital civil disobedience action involving a form of cyber-squatting on two federal websites as a coordinated protest against the persecution of a fellow hacktivist. Were this activity to have been conducted in the offline world – sit-ins, placard-waving protests, even obtaining and leaking information to journalists – the punishments would not be nearly as severe. </p>
<p>That Love has been doggedly pursued by the US, a year after being released in the UK, reveals that the apparatus of state power is increasingly aimed at criminalising dissent as it is conducted online.</p><img src="https://counter.theconversation.com/content/45260/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When political activists are treated like terrorists who plot and kill, state power is misdirected.Adam Fish, Lecturer in Sociology and Media Studies, Lancaster UniversityLuca Follis, Lecturer in Criminology, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/432282015-06-22T04:25:14Z2015-06-22T04:25:14ZHow surveillance is wrecking journalist-source confidentiality<figure><img src="https://images.theconversation.com/files/84993/original/image-20150615-18547-hht1fq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Would reporter Bob Woodward have been able to protect Deep Throat’s identity from today's surveillance tools?</span> <span class="attribution"><span class="source">Reuters/Alex Gallardo</span></span></figcaption></figure><p>Washington Post reporter Bob Woodward famously used cloak and dagger methods to communicate with his secret source – “Deep Throat” – in the 1972 Watergate investigation which led to the Nixon administration’s downfall.</p>
<p>Woodward <a href="http://www.independent.co.uk/news/world/americas/how-woodward-met-deep-throat-6144917.html">said</a> he would move a pot plant on his balcony to signal to his confidential, high-level source that he wanted a meeting. If Deep Throat wanted a meeting, he would draw a clock face on page 20 of Woodward’s newspaper to indicate the time they should rendezvous in a disused underground car park.</p>
<p>These very 20th-century means of communication helped preserve the iconic source’s anonymity – until former FBI deputy director Mark Felt <a href="http://www.washingtonpost.com/politics/fbis-no-2-was-deep-throat-mark-felt-ends-30-year-mystery-of-the-posts-watergate-source/2012/06/04/gJQAwseRIV_story.html">outed himself</a> more than 30 years later.</p>
<p>It was significant, then, that Washington was the <a href="http://www.unesco.org/new/en/media-services/single-view/news/unesco_research_is_previewed_at_editors_congress/#.VX1SVuckvF4">venue</a> for the release of <a href="http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/news/protecting_journalism_sources_in_digital_age.pdf">preliminary findings</a> of a study by the University of Wollongong’s <a href="https://theconversation.com/profiles/julie-posetti-3353">Julie Posetti</a> into the threats to source confidentiality in a new era of sophisticated surveillance technologies and powers.</p>
<h2>Leaving a trail</h2>
<p>The study poses worrying questions about whether sources can ever be sure their communications with journalists remain confidential no matter how determined a reporter might be to protect them.</p>
<p>Journalists have a sacrosanct relationship with their confidential sources. It is enshrined in ethical codes internationally with some qualified protection under “shield laws” in Australia. Journalists don’t “rat” on their sources. In recent decades in Australia, three journalists have been jailed for refusing to reveal their sources in court - <a href="http://www.crikey.com.au/2013/04/09/bend-over-lift-your-balls-tony-barrass-on-journos-in-jail/">Tony Barrass</a>, <a href="https://www.greenleft.org.au/node/4111">Joe Budd</a> and <a href="https://www.greenleft.org.au/node/6414">Chris Nicholls</a>.</p>
<p>Four decades on, in a digital era of surveillance and data storage, Watergate remains a useful yardstick for assessing the value of source confidentiality. We can only speculate as to whether Woodward would have been able to preserve Deep Throat’s confidentiality with the surveillance tools and legislative reach agencies have at their disposal today.</p>
<p>Some have argued that modern journalists need to return to those analogue means of communicating if they are to have a hope of protecting their sources, particularly when investigating national security, high-level corruption and matters embarrassing to governments.</p>
<p>Recently departed Guardian editor-in-chief Alan Rusbridger <a href="http://blog.wan-ifra.org/2015/06/08/qa-alan-rusbridger-on-the-challenges-of-investigative-journalism-and-protecting-confident">said</a>:</p>
<blockquote>
<p>I know investigative journalism happened before the invention of the phone, so I think maybe literally we’re going back to that age, when the only safe thing is face-to-face contact, brown envelopes, meetings in parks.</p>
</blockquote>
<p>Associate editor at <a href="http://www.theaustralian.com.au/media/cameron-stewart/story-e6frgdif-1111114733929">The Australian</a> Cameron Stewart <a href="http://journlaw.com/2014/05/01/journalists-revert-to-age-old-methods-to-protect-sources-says-camstewarttheoz/">told me</a> that investigative journalists had to leave their smartphones at the office when heading out to meet confidential sources. The 1970s Watergate methods were again becoming necessary.</p>
<p>However, following Woodward’s approach with Deep Throat would not, on its own, be enough in the digital surveillance era. CCTV footage and geolocation technology on mobile devices carried by either party could potentially link the journalist with their source. </p>
<p>As security expert Bruce Schneier <a href="https://www.schneier.com/books/data_and_goliath/">explained</a>, security agencies can also use device inactivity in a process of elimination to identify a source. If they can account for the location of nine possible government sources’ phones over a set period – but the tenth has either been turned off for a long period or left at home – then that employee becomes the prime whistleblowing suspect.</p>
<p>Despite their limitations, such primitive contact methods might make a one-off leak harder to trace than it would if there were email records and stored telco and internet provider metadata such as phone tower locations, call durations and IP addresses. These are all easily accessible under Australia’s new <a href="https://theconversation.com/government-labor-deal-on-metadata-close-but-how-will-media-organisations-react-38923">data retention</a> laws.</p>
<p>Stewart explained:</p>
<blockquote>
<p>The thing I’ve got to my ear now [a smartphone] is your biggest enemy in every single sense, as the Snowden revelations have shown. The ability of authorities to track movements of journalists is really of great concern as far as protecting sources goes.</p>
</blockquote>
<p>Veteran investigative journalist Ross Coulthart offered <a href="http://www.brisbanetimes.com.au/comment/metadata-access-is-putting-whistleblowers-journalists-and-democracy-at-risk-20150504-1mzfi0.html">detailed insights</a> into the detectable trail of communications between reporters and sources last month. He explained a major problem was the “first contact” from a whistleblower with a story.</p>
<blockquote>
<p>If they contact me by phone or email now, though, I now warn them they’re compromised.</p>
</blockquote>
<p>Coulthart also explained his use of encrypted communications and secure platforms in his efforts to disguise his contacts with sources or to expunge records of his contacts with sources.</p>
<h2>Paying the price</h2>
<p>However, <a href="http://www.pjreview.info/articles/shield-laws-australia-legal-and-ethical-implications-journalists-and-their-confidential">recent research</a> has shed light on how ignorant many journalists are of the risks of compromising their source confidentiality. They are even unaware of whether recently legislated shield laws offer them any protection in the states or territories where they work.</p>
<p>The survey of 154 journalists by Curtin University’s <a href="https://theconversation.com/profiles/joseph-fernandez-3809">Joseph Fernandez</a> found that while almost all journalists expressed unreserved commitment to the confidentiality of their sources, three-quarters were uncertain about the extent to which shield laws might cover them. Almost half expressed no alarm at official surveillance of their communications.</p>
<p>The price of a detected link can be high. Many whistleblowers have paid with their liberty or careers. They include Chelsea Manning, who is serving what is likely to be the rest of her life in a US military prison for <a href="http://www.unswlawjournal.unsw.edu.au/sites/default/files/t5_hardy_and_williams.pdf">releasing information</a> to WikiLeaks. In Australia, the list of discovered sources include former customs officer <a href="http://www.crikey.com.au/2009/09/14/allan-kessing-my-side-of-the-story/">Allan Kessing</a>, Victorian detective <a href="http://www.theaustralian.com.au/business/media/victoria-detective-simon-artz-gets-suspended-four-month-jail-sentence/story-e6frg996-1226570649945">Simon Artz</a> and design college part-timer <a href="http://www.smh.com.au/nsw/freya-newman-escapes-conviction-for-leaking-frances-abbott-scholarship-details-20141125-11t88u.html">Freya Newman</a>.</p>
<p>If journalists are to have any hope of protecting confidential sources into the future it will require a multi-faceted approach. Posetti’s study proposes an ambitious 11-point framework for enhancing free expression, strengthening legislative and policy shields for journalists and whistleblowers, and training reporters.</p>
<p>The fundamental question facing journalists is whether the very act of promising confidentiality to a source – particularly a government whistleblower – is unethical, given the likelihood that agencies have the power, will and technology to detect and identify sources.</p>
<p>A 2015 Deep Throat would be unlikely to survive a week without detection. That is regardless of whether a journalist has promised them confidentiality and even if a shield law allows the reporter to refuse to identify the source in court. </p>
<p>Despite such undertakings, the metadata trail would likely produce enough evidence to nail the confidential source. This damages the public’s right to know.</p><img src="https://counter.theconversation.com/content/43228/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Pearson is Australian correspondent for Reporters Without Borders and was a member of the review panel for the study "Protecting Journalism Sources in the Digital Age" conducted by the World Association of Newspapers and News Publishers (WAN-IFRA) for UNESCO.</span></em></p>Four decades on, in a digital era of surveillance and data storage, Watergate remains a useful yardstick for assessing the value of source confidentiality.Mark Pearson, Professor of Journalism and Social Media, Griffith Centre for Cultural Research and Socio-Legal Research Centre, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/398772015-04-13T03:41:33Z2015-04-13T03:41:33ZWhistleblowers may bypass the media thanks to new data laws<figure><img src="https://images.theconversation.com/files/77407/original/image-20150408-18044-gw8hnp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A responsible media is cautious about what leaked information it will publish.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/alexcovic/4830461080">Flickr/Alex BuckyBit Covic</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>The Australian Government made some <a href="https://theconversation.com/data-retention-plan-amended-for-journalists-but-is-it-enough-38896">concession towards journalists</a> when the new data retention legislation was passed by both Houses of parliament last month. But that doesn’t mean a journalist’s metadata is protected from ever being accessed by authorities. </p>
<p>While much has been said about the importance of press and <a href="http://www.theaustralian.com.au/opinion/metadata-laws-an-uneasy-compromise-on-press-freedom/story-e6frg6zo-1227272006672">media freedom</a>, another important aspect so far has received far less coverage: that seeking to discourage media involvement in reporting leaks on government practices might actually run counter to the national interest. </p>
<h2>Public interest test</h2>
<p>Under <a href="http://www.theguardian.com/australia-news/live/2015/mar/26/metadata-legislation-heads-to-final-vote-politics-live">the new law</a>, which will come into effect in 2017, the government and opposition have agreed to a <a href="http://www.abc.net.au/news/2015-03-17/xenophon-journalists-metadata/6326858">secret warranting system</a>.</p>
<p>Current <a href="http://asic.gov.au/for-business/running-a-company/company-officeholder-duties/whistleblowers-company-officeholder-obligations/whistleblowers-and-whistleblower-protection/">whistleblower laws in Australia</a> offer some protections to public servants, but others generally receive <a href="http://www.sbs.com.au/news/article/2014/01/15/whistleblower-protection-law-comes-effect">very little legal</a> protection. Given the importance of the media to a functioning democracy, journalists are seen as deserving of special treatment.</p>
<p>Law enforcement or other relevant agencies will require a warrant to gain access to metadata –- the information about whom a journalist has been talking with and when – and these warrants must pass a “public interest test”, where a public advocate argues against the warrant. </p>
<p>But this must be kept secret, and should journalists report that such a warranting process is occurring, they’ll face up to <a href="http://www.theaustralian.com.au/business/media/journalist-jail-threat-in-metadata-law/story-e6frg996-1227270296737">two years jail time</a>.</p>
<h2>Free to publish anywhere</h2>
<p>These new metadata laws, however, overlook the fact that traditional media sources are no longer the only method of large scale public communication.</p>
<p>When <a href="https://theconversation.com/au/topics/wikileaks">Wikileaks</a> came into the public consciousness in 2006, it signalled a change in the relationship between the whistleblower and the public. Any potential <a href="http://www.vanityfair.com/news/politics/2005/07/deepthroat200507">Deep Throat</a> no longer needed to go through <a href="http://www.npr.org/2014/06/13/321316118/40-years-on-woodward-and-bernstein-recall-reporting-on-watergate">journalists</a> to get their information out.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/7Qe2Gri_YeU?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">The importance of whistleblowers in journalism.</span></figcaption>
</figure>
<p>Information is not something that can be controlled as it once was. Snowden, <a href="http://www.biography.com/people/chelsea-manning-21299995">Chelsea Manning</a> and <a href="https://wikileaks.org/">WikiLeaks</a> have shown just how porous informational barriers are these days, and the disgruntled insider is a huge issue for any institution that likes to keep things out of public view.</p>
<p>Modern history sees <a href="https://www.youtube.com/watch?v=SdezJrNaL70">many</a> <a href="http://www.thismachinekillssecrets.com/">different ways</a> that people have sought to get information about perceived government malpractice, from <a href="http://www.mostdangerousman.org/">traditional media</a>, to <a href="http://thefalconandthesnowman.com/">spying</a>, to more recent widespread release of personal information on <a href="http://en.wikipedia.org/wiki/Timeline_of_events_associated_with_Anonymous">the internet</a>. </p>
<p>Any changes in public policy need to recognise the importance of this new informational world, because the media can act in ways that seek to prevent the release of operational or mission sensitive information. Think here of the release the <a href="http://www.theguardian.com/world/the-war-logs">Afghan War Diaries</a> supplied by Manning to WikiLeaks.</p>
<p><a href="http://en.rsf.org/united-states-open-letter-to-wikileaks-founder-12-08-2010,38130.html">Reporters Without Borders</a> and <a href="http://www.wsj.com/articles/SB10001424052748703428604575419580947722558">Amnesty International</a> both criticised WikiLeaks for its failure to properly redact the names of sources in the war diaries.</p>
<p>The concern was that the keeping source names in the War Diaries placed lives at risk and undermined ongoing missions. Even <a href="http://scribepublications.com.au/books-authors/title/inside-wikileaks/">those</a> within <a href="http://www.thismachinekillssecrets.com/">Wikileaks</a> were concerned about the lack of concern shown towards personal information.</p>
<h2>A responsible media</h2>
<p>Compare this to the releases by Snowden, via The Guardian and others new outlets. The journalists in these circumstances sought <a href="https://citizenfourfilm.com/">some feedback</a>, albeit grudgingly, from national security agencies in order to <a href="http://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/6">remove or redact mission-sensitive information</a>.</p>
<p>Obviously for various governments around the world, they would prefer sensitive information not to get out at all, as they consider that the Snowden leaks were highly detrimental to the <a href="http://www.defense.gov/news/newsarticle.aspx?id=121564">national interests</a> and might also have put lives <a href="http://abcnews.go.com/Blotter/intel-heads-edward-snowden-profound-damage-us-security/story?id=22285388">at risk</a>.</p>
<p>If the choice is between a motivated insider passing information on to relevant journalists or simply dumping information wholesale without due care or consideration for its impact, it would seem that any sensible government would prefer to do what is possible to avoid a wholesale dump.</p>
<p>But the risk of a whistleblower’s identity being revealed through any successful request to access data that shows who a journalist has had contact with makes the option of a wholesale dump more attractive.</p>
<p>This is not to pass judgement on these high profile leaks, or indeed on the responses by governments.</p>
<p>Rather, that in considering how they treat individual journalists and the media more widely, governments around the world are faced with a fundamentally insecure informational environment. <a href="http://www.pbs.org/mediashift/2014/06/the-urgent-need-to-shield-journalism-in-the-age-of-surveillance/">Journalists worldwide</a> are also feeling concerned about the possibility of maintaining the confidentiality of their sources</p>
<p>Seeking to discourage media in participation in the way that leaks are publicised can – in certain circumstances at least – run counter to the aims of protecting operational matters and could end up being detrimental to national security.</p>
<p>Of course, this whole idea runs on the notion that members of the media themselves act responsibly, and actively work with government agencies to protect mission sensitive information.</p>
<p>But if anything, this highlights the need for the government and the media to be able to work together. Laws that seek to undermine the public trust in national security practices and threaten the capacity for government agencies and the media could end up driving people to leak more important information than they may have otherwise done.</p><img src="https://counter.theconversation.com/content/39877/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Henschke does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If confidential sources can still be exposed by the government’s new data retention legislation, why risk leaking anything to the media?Adam Henschke, Postdoctoral Research Fellow, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/326042014-10-08T00:20:59Z2014-10-08T00:20:59ZHow media reports affect trans people, and what should be done<figure><img src="https://images.theconversation.com/files/61096/original/yf5m8sfb-1412727941.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It’s disingenuous for newspaper editors to claim ignorance in reporting trans issues.</span> </figcaption></figure><p>Yesterday, the Courier-Mail put the <a href="https://twitter.com/JoshuaWithers/status/519240007970611200">gruesome murder of Indonesian transwoman Mayang Prasetyo</a>, killed by her partner Marcus Volker, on its front page. The article is breathtaking in its prurience and voyeurism. Even though Prasetyo was murdered and dismembered, the Courier-Mail deemed it appropriate to include a succession of photos of a seductively-posed Prasetyo in a bikini.</p>
<p>The article manages to imply both Prasetyo’s culpability in her own death – repeatedly pointing out both her transsexuality and sex work – and to sexualise her: though only after playing that old Fleet Street trick of flagging readers to her pre-operative status.</p>
<p>After realising that perhaps they had gone a little too far, The Courier-Mail ran with a marginally less provocative headline in its online edition <a href="http://www.couriermail.com.au/news/queensland/killed-and-cooked-trans-woman-was-highclass-sex-worker/story-fnihsrf2-1227081886168">here</a>; though of course still focusing on Prasetyo’s sex work and swimwear. It’s hardly standard for murder victims to be shown posing in a swimsuit.</p>
<p>The article has caused national outrage and in less than 24 hours writers at <a href="http://www.theguardian.com/commentisfree/2014/oct/07/neither-job-nor-gender-identity-killed-mayang-prasetyo-she-died-because-of-a-man-who-felt-entitled-to-her">Guardian Australia</a>, <a href="http://www.dailylife.com.au/news-and-views/dl-opinion/mayang-prasetyos-murder-and-the-problem-with-domestic-violence-reporting-20141007-10r8e8.html">The Age</a> and the <a href="http://www.brisbanetimes.com.au/queensland/newspapers-shemale-front-page-souldestroying-transgender-advocate-20141007-10rbek.html">Brisbane Times</a> have spoken up in protest. Get Up has mounted a <a href="https://www.getup.org.au/campaigns/womens-rights/violence-misreported/violence-against-women-tell-the-right-story">campaign</a> condemning The Courier-Mail’s representation of Prasetyo.</p>
<p>It is fundamentally important that The Courier-Mail continue to be taken to task for its lazy, unethical and distasteful reportage. Representation of trans people in Australia has been, on the whole, relatively benign in comparison with the UK and the US press. Maintaining that is important to the trans community – but it is not a certainty.</p>
<p>The style, over-sexualisation and victim-blaming in The Courier-Mail’s article is reminiscent of the kind of reportage normally associated with UK tabloids such as The Sun, The Mail and The Mirror, which consistently churn out the very worst reportage of transwomen. In a 2010 submission to the Leveson Inquiry articles such as The Sun’s <a href="http://www.thesun.co.uk/sol/homepage/news/scottishnews/3277068/Sex-swap-mechanic-goes-nuts-at-medics.html">Sex Swap Mechanic Goes Nuts at Medics</a>; The Express’s <a href="http://www.express.co.uk/news/uk/220433/Half-man-gets-new-breasts-and-guess-who-s-paying-78k">Half Man Gets New Breasts and Guess Who’s Paying For it?</a>; and the Daily Mail’s <a href="http://www.dailymail.co.uk/news/article-2038965/British-passports-gender-free-spare-feelings-transgender-people.html">The Gender-Free British Passport: UK Travellers May No Longer Have To Declare Their Sex, To Spare Feelings Of ‘Transgender People’</a> were used as examples of the regular abuse trans people experience at the hands of the British press.</p>
<p>Even the Guardian Media Group, long considered one of Britain’s most liberal publishers, has been forced to reassess its guidelines on transgender reportage. As journalist Juliet Jacques <a href="http://julietjacques.blogspot.co.uk/2010/08/transgender-journey-how-it-came-about.html">has pointed out</a>, The Guardian Media Group’s approach to trans reporting and representation has been problematic. </p>
<p>Up until this year it was still publishing pieces about trans people by noted anti-trans feminists Germaine Greer, Julie Bindel and Julie Burchill. In January 2013 Burchill was responsible for one of the most hateful <a href="http://blogs.telegraph.co.uk/news/tobyyoung/100198116/here-is-julie-burchills-censored-observer-article/">anti-trans screeds</a> ever published in a major newspaper. </p>
<p>The Observer removed the article and issued <a href="http://www.digitalspy.com.au/media/news/a450990/observer-removes-julie-burchill-transsexual-piece-we-got-it-wrong.html#%7EoS2HAVAXd891El">an apology</a>.</p>
<p>One of the many criticisms levelled against the British media through the Leveson Inquiry concerns trans people, who continue to be referenced in the media in a way that would be considered entirely inappropriate if directed towards ethnic minorities, people with disabilities or other groups.</p>
<p>This representation has an immediate and damaging effect on trans lives.</p>
<p>UK Charity <a href="http://www.transmediawatch.org/">Transwatch</a> found 21% of trans people surveyed reported experiencing abuse directly related to the way trans people were portrayed in the media.</p>
<p>In particular the recent Rolling Stone article – <a href="mailto:http://www.rollingstone.com/culture/news/the-transgender-crucible-20140730">The Transgender Crucible</a> – about Cece McDonald, the trans activist who was sentenced to jail for manslaughter in 2012, highlights the toxic way that media representation, racism and being trans leads to violence, prosecution and imprisonment of innocent trans women.</p>
<p>Mainstream reportage of trans people in the US media is depressing too. While Time changed the landscape this year with its <a href="http://time.com/135480/transgender-tipping-point/">Transgender tipping point</a> article, it’s one of only a handful of positive representations of trans people. There are many examples of bad reporting of stories involving trans people that have had real effects on people’s live. </p>
<p>In January 2014 <a href="http://feministing.com/2014/01/20/nobody-knows-my-life-but-me-an-elegy-for-dr-v/">Grantland</a> outed a transgender inventor – which led to her suicide.</p>
<p>In June the Chicago Sun published an op-ed anti-<a href="http://www.nationalreview.com/article/379188/laverne-cox-not-woman-kevin-d-williamson">trans rant</a> and The Wall St Journal ran a <a href="http://online.wsj.com/articles/paul-mchugh-transgender-surgery-isnt-the-solution-1402615120">piece</a> on transgender issues by discredited psychiatrist Paul McHugh. </p>
<p>Most recently The New Yorker published <a href="http://www.newyorker.com/magazine/2014/08/04/woman-2">What is a woman?</a>, giving oxygen to bizarre 19th-century junk psychology theories of notorious anti-trans feminists such as Australian Sheila Jeffreys. </p>
<p>At the same time the US media has been reluctant to cover stories like that of <a href="http://www.huffingtonpost.com/chase-strangio/justice-for-jane-doe-and-_b_5494030.html">Jane Doe</a>, a 16 year old transgirl of colour who continues to be incarcerated in an adult facility without charge.</p>
<p>It is to the great credit of sections of the Australian media that the Courier-Mail article has been so vociferously pounced on through online newspapers and social media. This is mainly because of the way that transwomen are increasingly being included in feminist circles and recognised as being legitimately of their target gender. </p>
<p>As trans activist Julia Serano points out in her book <a href="http://www.amazon.com/Whipping-Girl-Transsexual-Scapegoating-Femininity/dp/1580051545">Whipping Girl</a>, much of what is commonly called “transphobia” is merely traditional sexism in disguise. How true! The normalising of male violence and victim-blaming apparent in the Courier-Mail article affects all women, <a href="http://queerdictionary.tumblr.com/post/9264228131/cisgender-adj">cisgender</a> (those whose gender is aligned with their biological sex) and transgender alike.</p>
<p>But ignorance on reporting trans lives is no excuse.</p>
<p>As watchdog Transwatch <a href="http://www.transmediawatch.org/">points out</a> gutter press reporting on transwomen dried up at the same time that the Leveson Inquiry was taking submissions, only to be ramped back up after the closing dates.</p>
<p>Reportage around alleged WikiLeaks leaker <a href="http://en.wikipedia.org/wiki/Chelsea_Manning">Chelsea Manning</a>’s transition saw major media organisations in the US dump their own style guides in the race to cover her <a href="http://feministing.com/2013/08/23/the-shameful-unacceptable-media-coverage-of-chelsea-mannings-transition/">story</a>.</p>
<p>In light of this it’s disingenuous for newspaper editors to claim ignorance in reporting trans issues. A wealth of support material exists and transgender advocacy groups actively engage with the media to make sure that there is no confusion about the way that trans people should be portrayed.</p>
<p>No journalist in the Australian media should ever be given the leeway to blur the shock of a woman being murdered with the titillation that she also happened to be transgender.</p><img src="https://counter.theconversation.com/content/32604/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eloise Brook does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Yesterday, the Courier-Mail put the gruesome murder of Indonesian transwoman Mayang Prasetyo, killed by her partner Marcus Volker, on its front page. The article is breathtaking in its prurience and voyeurism…Eloise Brook, Lecturer in Media Writing and Public Relations, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/300632014-08-07T09:26:01Z2014-08-07T09:26:01ZNSA surveillance is a clear threat to journalism in America<p>Digital mass surveillance is having a chilling effect on US democracy, affecting journalists and lawyers, a <a href="http://www.hrw.org/node/127364">report</a> from human rights organisations has warned.</p>
<p>The report, by Human Rights Watch and the <a href="https://www.aclu.org/">American Civil Liberties Union</a>, concludes that some of the most fundamental freedoms are under threat. The organisations argue that the government’s policies on secrecy and preventing leaks, as well as its stance on officials talking to the media, undermine traditional US values.</p>
<h2>Press under threat</h2>
<p>When it comes to journalism, the Snowden case has already had an impact in a number of high-profile cases. In July 2013, staff at the Guardian had to destroy hard drives containing files leaked by Snowden under threat of action from the UK government. In February of the same year, <a href="http://www.bbc.co.uk/news/uk-23782782">David Miranda</a>, partner of former Guardian journalist Glenn Greenwald, was held at a London airport for nine hours under the UK Terrorism Act, because of Greenwald’s association with the Snowden case.</p>
<p>These concerns do indeed appear to be playing out in the industry. In 2012 alone, the US federal government reclassified 95 million pieces of information. It’s not clear how many of these were made more or less secret but overclassification is becoming a concern. It has been <a href="http://www.nytimes.com/2011/11/07/opinion/national-security-and-americas-unnecessary-secrets.html">estimated</a> that between 50% and 90% of classified documents could be made public without them posing a security threat.</p>
<p>The Obama administration has also used the 1917 Espionage Act to routinely target whistleblowers. Under the current presidency, eight people have been pursued for leaking information to the press, including Edward Snowden and Chelsea Manning, the WikiLeaks source. Just three such prosecutions were pursued between 1917 and Obama’s election. </p>
<p>“We’re not able to do our jobs if sources are in danger”, a national security reporter told Human Rights Watch and the ACLU. These concerns are in turn leading to increasing use of encryption technology among a significant number of journalists interviewed for the report.</p>
<p>But while the use of some tools such as the Tor browser or the PGP encryption service to secure emails can definitely reduce the risk of being exposed to government surveillance, the report notes that many journalists fear they are not completely safe. This was a fear raised by Pulitzer Prize-winning reporter Erich Schmitt when he warned that asking sources to protect their digital communication can actually attract more attention to their communications. Others reported having to pay for encryption technologies out of their own pocket and while some journalists are being trained to use them by their employers, others are having to do it alone.</p>
<p>These difficulties are also affecting public discourse, especially in the United States. If sources are reluctant to talk, information doesn’t get through to the public. When it comes to reporting national security issues, several journalists described the climate in the US as comparable to what they might come up against in more authoritarian countries. Journalist Peter Maass is quoted in the report as saying he is “horrified and outraged” by the situation, revealing that he has the same problems working as a reporter in the US as he did in the former Soviet Union and North Korea.</p>
<p>Similar concerns are expressed in the report by lawyers, who warn that client confidentiality is at risk. “I don’t send any information by email, attachment, or phone”, says one interviewed defense attorney, “I don’t use GChat or WhatsApp for anything but ‘Hi, what’s up?’. I don’t even talk on Skype.” By contrast, the government officials interviewed for the report backed NSA surveillance.</p>
<p>In October 2013, the Committee to Protect Journalism released a report denouncing the dangers which journalism is exposed to in the US in the wake of the Snowden case, coming to similar conclusions as the two human rights organisations. And it came to no surprise for some to see the NSA listed in the 2014 Reporters Without Borders <a href="http://12mars.rsf.org/2014-en/enemies-of-the-internet-2014-entities-at-the-heart-of-censorship-and-surveillance/">Enemies of the Internet</a> report. </p>
<p>This report is not the first to raise concerns about the future implications of what we have learned from the Snowden leaks but it gives us a broader picture of the magnitude of the case. Snowden himself has accused the NSA of <a href="https://theconversation.com/the-internet-is-on-fire-but-snowdens-heroes-cant-save-us-24241">setting fire to the future of the internet</a> but now it seems journalism and the legal profession are in danger too.</p>
<p>In fact, the Snowden case implicates every field of our constantly connected and wired society, especially when it comes to <a href="https://theconversation.com/nine-reasons-you-should-care-about-nsas-prism-surveillance-15075">digital communication through commercial and popular tools and social media</a>. We should be outraged but we should also use the case as evidence in the fight to narrow the scope of surveillance, reduce government secrecy and better protect national security whistleblowers – as well as the lawyers who defend them and the journalists who tell their stories.</p><img src="https://counter.theconversation.com/content/30063/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Philip Di Salvo does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Digital mass surveillance is having a chilling effect on US democracy, affecting journalists and lawyers, a report from human rights organisations has warned. The report, by Human Rights Watch and the…Philip Di Salvo, PhD Candidate in Communications Sciences and Journalism, Università della Svizzera italianaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/175202013-08-27T20:32:33Z2013-08-27T20:32:33ZIn Conversation with Tom Watson MP: edited transcript<figure><img src="https://images.theconversation.com/files/30023/original/56y2z489-1377590321.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">British Labour MP has worked to expose and investigate activities by News Corporation figures ranging from phone hacking to bribing police.</span> <span class="attribution"><span class="source">Chris Boland</span></span></figcaption></figure><p><strong>Jill Singer:</strong> You’ve come here fresh from being British Labour’s campaign coordinator, which you’re not doing now. We won’t get into all the argy-bargy about that. But I wonder, coming from that perspective and looking at Labor’s campaign here, what do you think of the way Labor is campaigning?</p>
<p><strong>Tom Watson:</strong> It’s really hard to make a judgement three or four days in. I’ve not dived in to the campaign, and literally the first Labor politician I met was <a href="http://www.abc.net.au/tv/qanda/txt/s3818772.htm">last night on Q&A</a>, when I met Bill Shorten. So I’ve not got a sense of what is going on the doorstep, but it’s an unusual campaign for them as they’re running as insurgents as the government so it can’t be easy for them to pick their message.</p>
<p>What struck me is that it feels very much like the <a href="http://en.wikipedia.org/wiki/United_Kingdom_general_election,_1992">1992 general election</a> in Britain, where it was pretty close at the start, and News Corp definitely did not want the Labour leader Neil Kinnock to win, so there was a <a href="http://en.wikipedia.org/wiki/It's_The_Sun_Wot_Won_It">very, very aggressive campaign</a>. What their involvement in the campaign did was to make it very hard for both parties to pitch the future, talk about their message of hope and how they wanted to change the country.</p>
<p>And the effect of the reporting here strikes me as being somewhat similar.</p>
<p>On the panel last night they were all talking about how this <a href="https://theconversation.com/dont-these-guys-ever-shut-up-how-tony-abbott-reignited-the-gender-debate-without-realising-it-17339">line by Abbott</a>…</p>
<p><strong>Jill Singer:</strong> “Does this guy ever shut up?”</p>
<p><strong>Tom Watson:</strong> It seemed to me they would prefer to talk about Kevin Rudd’s character rather than what Kevin Rudd actually stands for and what kind of Australia you want into 2020. Unfortunately the parallels with the UK in 1992 are very similar.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/30032/original/ffvvmjz3-1377601640.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/30032/original/ffvvmjz3-1377601640.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=796&fit=crop&dpr=1 600w, https://images.theconversation.com/files/30032/original/ffvvmjz3-1377601640.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=796&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/30032/original/ffvvmjz3-1377601640.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=796&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/30032/original/ffvvmjz3-1377601640.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1001&fit=crop&dpr=1 754w, https://images.theconversation.com/files/30032/original/ffvvmjz3-1377601640.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1001&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/30032/original/ffvvmjz3-1377601640.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1001&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Does Tony Abbott have Rupert Murdoch in his corner for this federal election?</span>
<span class="attribution"><span class="source">AAP/Dan Peled</span></span>
</figcaption>
</figure>
<p>On the ALP campaign, it obviously has been a very bruising period with leadership changes and that has made it quite hard for them to get their message across. Other than that I can’t really say much about the campaign because I haven’t really had a look at it.</p>
<p><strong>Jill Singer:</strong> We’ve certainly got so much in common - including Rupert Murdoch. We’ve had a lot to say about Rupert Murdoch’s influence in Britain which we’ve seen, we’ve seen the repercussions of the Leveson Inquiry and a lot of that has come out. I wonder if there are any parallels here though because we’ve had News Limited in Australia saying: “any problems that have been there, have not been in Australia, that culture that people have complained about and has been exposed due to the Leveson Inquiry is not part of the culture here”. How plausible do you think that claim is?</p>
<p><strong>Tom Watson:</strong> I think it’s plausible, but I never rule anything out with this company.</p>
<p><strong>Jill Singer:</strong> What possible commercial interest do you think Rupert Murdoch could have in having an Abbott government elected?</p>
<p><strong>Tom Watson:</strong> They would be one of the only companies that would benefit from there not being <a href="https://theconversation.com/news-corp-australia-vs-the-nbn-is-it-really-all-about-foxtel-16768">superfast broadband</a>, an NBN, that goes straight into people’s homes.</p>
<p>I’m sure that he feels his commercial interests in the market would be best served by not welcoming competition there, and if an Abbott government doesn’t deliver that then they will be one of the few governments around the world that don’t have the intent to allow faster broadband connectivity into homes.</p>
<p><strong>Jill Singer:</strong> Rupert Murdoch scoffs at that, Rupert Murdoch says that’s absolute nonsense, that the NBN would not damage his reach, or Foxtel, or anything at all.</p>
<p><strong>Tom Watson:</strong> I don’t believe that. I just don’t believe it.</p>
<p><strong>Jill Singer:</strong> I think some people might not realise how much and individual can be consumed when they take on Murdoch, on certainly on that personal level, you have paid a fairly high price for taking on Murdoch haven’t you?</p>
<p><strong>Tom Watson:</strong> Yes. I try not to talk about my personal life really. Occasionally there is stuff in newspapers such as <a href="http://www.news.com.au/breaking-news/british-mps-casual-bid-to-take-on-murdoch-press/story-e6frfkp9-1226704600874">The Australian today</a>, but when you come under that level of scrutiny, at the time I was being followed by private investigators, but they were commissioned by a guy called <a href="http://www.theguardian.com/media/2012/may/22/news-of-world-tom-watson">Mazher Mahood</a> – The Fake Sheik they call him – and then they brought in a guy called Gareth who one of the journalists told me worked with audio visuals.</p>
<p>The former chief reporter of the News of the World told me that was instruction from down the executive, from what he described as the “deep carpet land” of the executive.</p>
<p><strong>Jill Singer:</strong> So Murdoch people had private detective following you. What do you think they were hoping to find?</p>
<p><strong>Tom Watson:</strong> What the journalists told me is that they were digging for dirt. Neville Thurlbeck, the chief reporter for the News of the World told me that they were instructed to line up every member of the committee that was investigating the companies, and he used the phrase: “find out who is gay, find out who is having an affair, we want to know everything about them”.</p>
<p><strong>Jill Singer:</strong> Say you wanted to get some dirt on Murdoch. Do you ever understand the drive to get around, or cross ethical boundaries and get the information. Do you understand that temptation?</p>
<p><strong>Tom Watson:</strong> I believe there should be a defence of public interest for journalism in the UK. In certain circumstances, for the greater good, a journalist can cross the line of law. But the way that worked in the UK was totally rampant.</p>
<p><strong>Jill Singer:</strong> At the time when Rupert Murdoch was giving evidence before Leveson, he said it was the most “humble day of his life”. Did you believe him?</p>
<p><strong>Tom Watson:</strong> No. But I immediately thought, “that’s the soundbite”. And I have experience of that because when I was put on the committee, the first evidence session we had with the editor of the NOTW, Colin Myler and the lawyer Tom Crone, and the very first thing they did, before even questions were taken, was challenge the chair and ask for my removal from the committee and ask for my removal from the committee because I had <a href="http://www.theguardian.com/media/2009/oct/28/the-sun-tom-watson">a legal action against The Sun</a> for libel.</p>
<p>So before I left the room, before the MPs finished their questioning, the breaking news story on Sky News was “Attempt to remove MPs from committee over their interest”. I thought: “this is where they are looking for their headline”.</p>
<p>It actually wasn’t what he wanted because most people reported it as “humble pie” given the pie incident, but the soundbite was just all part of the media operation.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/30031/original/5rwmrvxk-1377601350.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/30031/original/5rwmrvxk-1377601350.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/30031/original/5rwmrvxk-1377601350.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/30031/original/5rwmrvxk-1377601350.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/30031/original/5rwmrvxk-1377601350.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=521&fit=crop&dpr=1 754w, https://images.theconversation.com/files/30031/original/5rwmrvxk-1377601350.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=521&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/30031/original/5rwmrvxk-1377601350.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=521&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Media mogul Rupert Murdoch on the ‘humblest day’ of his life before the Leveson Inquiry in 2011.</span>
<span class="attribution"><span class="source">EPA</span></span>
</figcaption>
</figure>
<p><strong>Jill Singer:</strong> How concerned are you over the possibility that Rupert Murdoch perjured himself at the Leveson Inquiry?</p>
<p><strong>Tom Watson:</strong> That would be for others to make that judgement in law. But what he said to Leveson was contrary to what he said in private to Sun journalists who were obviously so concerned about his conduct that they recorded it.</p>
<p>That was journalists at The Sun, there was more than one journalists who taped him, and there was more than one person who recorded that. While he was before Leveson he welcomed the inquiry and said they would co-operate with the police to get to the facts of the criminality. </p>
<p>What he told the journalists was we made a mistake, we should never have cooperated, and we won’t cooperate with the police anymore and sort of gave them the nod and the wink and said you’ll be alright if you ever get done for jail. Which is extraordinary for the chairman of a powerful global company to take that approach.</p>
<p><strong>Jill Singer:</strong> Was that on oath?</p>
<p><strong>Tom Watson:</strong> He was on oath, and if I was Lord Leveson I’d be asking which Rupert Murdoch was telling me the truth.</p>
<p><strong>Jill Singer:</strong> What do you think should happen to Julian Assange?</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/30033/original/3fnyrpnb-1377601879.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/30033/original/3fnyrpnb-1377601879.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=932&fit=crop&dpr=1 600w, https://images.theconversation.com/files/30033/original/3fnyrpnb-1377601879.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=932&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/30033/original/3fnyrpnb-1377601879.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=932&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/30033/original/3fnyrpnb-1377601879.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1171&fit=crop&dpr=1 754w, https://images.theconversation.com/files/30033/original/3fnyrpnb-1377601879.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1171&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/30033/original/3fnyrpnb-1377601879.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1171&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">WikiLeaks may not have properly protected Chelsea Manning, according to Watson.</span>
<span class="attribution"><span class="source">EPA/Facundo Arrizabalaga</span></span>
</figcaption>
</figure>
<p><strong>Tom Watson:</strong> It is very hard for me to give you a clear answer on this because I’m not across it all. The main issue for me with Julian Assange is his relationship with Chelsea Manning and I was genuinely taken aback when Chelsea Manning got 35 years for what she called whistleblowing.</p>
<p>I’m not sure whether the WikiLeaks people necessarily protected her interests throughout the case and I worry about that. I do think you have to care for a source like that and circumstances might have made that impossible.</p><img src="https://counter.theconversation.com/content/17520/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jill Singer was a columnist for the Herald Sun from 1997 to 2012.</span></em></p>Jill Singer: You’ve come here fresh from being British Labour’s campaign coordinator, which you’re not doing now. We won’t get into all the argy-bargy about that. But I wonder, coming from that perspective…Jill Singer, Lecturer in Journalism, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/173332013-08-21T18:15:11Z2013-08-21T18:15:11Z35 years for Manning, and time for better whistleblowing laws<figure><img src="https://images.theconversation.com/files/29705/original/cv9zttnc-1377106524.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Hero or traitor? Bradley Manning will have years to ponder the question.</span> <span class="attribution"><span class="source">EPA/Shawn Thew</span></span></figcaption></figure><p>Bradley Manning, the whistleblower behind the biggest leak of military secrets in history, <a href="http://www.bbc.co.uk/news/world-us-canada-23784288">has been sentenced</a> to 35 years imprisonment. Convicted for six offences under the Espionage Act, he will have his military grade reduced to the rank of Private E1, be dishonourably discharged from the Army and will lose all pay and allowances. </p>
<p>The reaction of to the verdict is likely to be divisive. To some Manning will <a href="http://www.telegraph.co.uk/news/worldnews/wikileaks/10212990/Bradley-Manning-is-a-hero-says-WikiLeaks-founder-Julian-Assange.html">remain a hero</a>, the whistleblower who stood up to the United States and paid a heavy price for doing so. To others he will be portrayed <a href="http://www.foxnews.com/on-air/oreilly/transcript/there-are-traitors-america">as a traitor</a>, a danger to national security who should have suffered a far worse punishment than the 35 years suggests. </p>
<p>The reason for such polarised opinion is due in part to the way his disclosures were made. Manning, of course, did not take the route of leaking his information to a traditional journalist. Instead he used an online platform. While a traditional print journalist may have exercised a level of prior restraint, the Wikileaks organisation <a href="http://www.theguardian.com/world/2011/sep/01/unredacted-us-embassy-cables-online">chose to release</a> some of the leaked documents in a “raw” and unredacted form. Thousands of documents were therefore made available for the world to see, whether friend or foe.</p>
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<a href="https://images.theconversation.com/files/29703/original/xx6qf3q6-1377105812.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/29703/original/xx6qf3q6-1377105812.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/29703/original/xx6qf3q6-1377105812.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=870&fit=crop&dpr=1 600w, https://images.theconversation.com/files/29703/original/xx6qf3q6-1377105812.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=870&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/29703/original/xx6qf3q6-1377105812.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=870&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/29703/original/xx6qf3q6-1377105812.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1093&fit=crop&dpr=1 754w, https://images.theconversation.com/files/29703/original/xx6qf3q6-1377105812.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1093&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/29703/original/xx6qf3q6-1377105812.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1093&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The man in the embassy: Julian Assange.</span>
<span class="attribution"><span class="source">PA Archive</span></span>
</figcaption>
</figure>
<p>The Manning episode also identifies the differences in editorial approach; The Guardian chose to report on the documents, yet <a href="http://www.theguardian.com/world/2010/nov/29/us-embassy-cables-redacted">declined the opportunity</a> to republish the documents in full on the grounds of security. The option to resort to traditional methods of leaking to a journalist remains, however the recent events surrounding Edward Snowden, Glenn Greenwald and his partner <a href="https://theconversation.com/bully-boy-tactics-make-guardian-a-player-in-its-own-nightmare-scenario-17289">David Miranda</a> identify the difficulties in handling journalistic source material when it is placed in the jurisdiction of a NATO ally. </p>
<p>Those faced with few options and an overriding desire to make their concerns known are likely to resort to the internet as the fastest and surest way of disclosure. </p>
<h2>New era of online leaking</h2>
<p>The Manning situation is not likely to be a one-off event. Instead it should be indicative of a turning point that will lead to a new era of online leaking. Unauthorised disclosures using the internet can be seen as particularly advantageous to prospective whistleblowers. The internet provides a platform for the swift dissemination of material and can even provide a layer of anonymity. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/29701/original/yh2g2znz-1377105653.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/29701/original/yh2g2znz-1377105653.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/29701/original/yh2g2znz-1377105653.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=723&fit=crop&dpr=1 600w, https://images.theconversation.com/files/29701/original/yh2g2znz-1377105653.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=723&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/29701/original/yh2g2znz-1377105653.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=723&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/29701/original/yh2g2znz-1377105653.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=909&fit=crop&dpr=1 754w, https://images.theconversation.com/files/29701/original/yh2g2znz-1377105653.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=909&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/29701/original/yh2g2znz-1377105653.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=909&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One step ahead of the law: Edward Snowden.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
</figcaption>
</figure>
<p>The Manning situation - and now the Snowden revelations - identify that whistleblowing can engage different legal jurisdictions around the globe. The traditional legal methods used to deter and prosecute individuals for unauthorised leaking are out of date. The actions of those motivated to use the somewhat rusty and blunt legal instruments at their disposal have succeeded in prosecuting Manning. </p>
<p>However, the Snowden episode shows would-be whistleblowers may use the global stage to their advantage by seeking asylum in another jurisdiction. With a degree of legal knowledge, the information and the whistleblower can transverse borders with relative ease. </p>
<p>Advances in modern technology identify that whistleblowing organisations can be set up in legal jurisdictions with good shield law protections for journalists, meaning the journalists cannot be coerced into giving up their source. Or they can be mobile and move from jurisdiction to jurisdiction. Whistleblowers can seek protection in countries that do not have extradition agreements in place or do not have working relationships with the aggrieved jurisdiction to which the individual had originally fled. Regardless of the eventual outcome, unauthorised disclosures of this nature can pose an underlying risk for both the individual concerned and for the national security of the nation at issue.</p>
<h2>Better reporting mechanisms needed</h2>
<p>In the aftermath of the Manning trial, it is unlikely that legal reforms could ever outpace technological advancements. Governments must seek to provide viable authorised reporting mechanisms if they are ever going to provide a realistic alternative to unauthorised leaking. The first question the US government should ask - and one which should be considered in forensic detail - is why did Manning choose to leak the documents? </p>
<p>The <a href="http://www.uscg.mil/legal/militarywhistlerblowerprotectionact.asp">Military Whistleblowers Protection Act 1988</a> exists to shield whistleblowers from retaliation if they raise concerns to Congress, an Inspector General or a person designated to receive concerns. One must question whether there are issues with the internal culture of the military which act as a deterrence to use these channels. Despite looking good on paper, the law is seldom used and has been <a href="http://www.whistleblower.org/press/press-release-archive/2013/2743-house-committee-takes-action-on-military-whistleblowers">previously labelled</a> by Tom Devine, legal director of the Government Accountability Project as affording “weak and nonexistent rights”. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/29702/original/p2ht2xnm-1377105711.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/29702/original/p2ht2xnm-1377105711.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/29702/original/p2ht2xnm-1377105711.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=890&fit=crop&dpr=1 600w, https://images.theconversation.com/files/29702/original/p2ht2xnm-1377105711.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=890&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/29702/original/p2ht2xnm-1377105711.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=890&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/29702/original/p2ht2xnm-1377105711.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1118&fit=crop&dpr=1 754w, https://images.theconversation.com/files/29702/original/p2ht2xnm-1377105711.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1118&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/29702/original/p2ht2xnm-1377105711.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1118&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Leaker behind Pentagon papers: Daniel Ellsberg.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
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</figure>
<p>Military whistleblowers were also excluded from the <a href="http://blogs.wsj.com/corruption-currents/2012/11/27/obama-signs-whistleblower-protection-bill-into-law/">Whistleblower Protection Enhancement Act 2012</a> which provided much-needed reform to protections afforded to Civil Service whistleblowers but excluded those in the military and intelligence community. </p>
<p>Proposed reforms aimed at enhancing the <a href="http://oversight.house.gov/hearing/department-of-energys-bonneville-power-administration-discriminating-against-veterans-and-retaliating-against-whistleblowers/">existing protections</a> are currently before a Congressional committee. Even if these aims succeed into law, they cannot be relied upon to deter unauthorised leaking without clear moves to address the internal culture in the armed forces. </p>
<p>As Daniel Ellsberg, who famously leaked the Pentagon Papers, <a href="http://seattletimes.com/html/nationworld/2021646809_apusmanningwikileaksellsberg.html">commented</a> in response to the sentencing verdict, “Manning’s 35-year sentence will not deter all future whistleblowers”. Providing them with authorised channels which create less risk to a whistleblower’s employment position and to their liberty, as well as addressing the risks associated with leaking national security material may go some way to satisfy the opinions of those on both sides of the fence. </p><img src="https://counter.theconversation.com/content/17333/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ashley Savage does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Bradley Manning, the whistleblower behind the biggest leak of military secrets in history, has been sentenced to 35 years imprisonment. Convicted for six offences under the Espionage Act, he will have…Ashley Savage, Senior lecturer, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/170932013-08-15T20:44:55Z2013-08-15T20:44:55ZBorn this way? Becoming Bradley Manning in a digital world<figure><img src="https://images.theconversation.com/files/29321/original/yy357qbt-1376545132.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In truth, whistleblower Bradley Manning's experiences with online media are not so far removed from other 'digital natives'.</span> <span class="attribution"><span class="source">EPA/Jim Lo Scalzo</span></span></figcaption></figure><p>As US Army private Bradley Manning <a href="http://www.bbc.co.uk/news/world-us-canada-23700938">stares down</a> 90 years in jail, his lawyers are fighting the weight of history. Prosecutors want us to see a soldier who shamefully turned his back on a sacred oath. To others, he is a heroic whistleblower who sacrificed his own liberty for the greater good. His lawyers want the court to see neither. </p>
<p>Manning’s team are playing for leniency by building, as lawyers do, another way of seeing things. Their client’s crime, so the argument goes, was caused by a disastrous command decision. A private soldier with a litany of personal problems should never have been given the chance to wreak such chaos.</p>
<p>Seeking the smallest possible tariff, his lawyers portray Manning as an imbroglio of <a href="http://news.sky.com/story/1128731/bradley-manning-i-hurt-the-united-states">personality disorders</a>. Take a young man plagued by gender uncertainty, narcissism and political immaturity. Add social isolation and war. Stir.</p>
<p>Sadly, we know that this unappealing psychological sketch is really quite normal. It fits with the growing recognition that young men are especially prone to anxieties that are desperately difficult to talk about. </p>
<p>We are aware of this now, because Manning’s dreams and dilemmas coalesced into his media habits. In this, he is a victim of a culture that colonises and exploits the desires and talents of its young users. He really is as ordinary as his brief would have us believe, as an icon of the commonplace hazards in everyday media life.</p>
<p>Bradley Mannning is a harsh reminder that young media users are enmeshed in deeply political <a href="http://en.wikipedia.org/wiki/Clifford_Geertz">“webs of significance”</a>, even when they’re on their lonesome. By some accounts, his crimes were less “Spooks” and more teenage pre-party. The friendless soldier <a href="http://www.bbc.co.uk/news/world-us-canada-11874276">reportedly</a> “listened and lip-synced to Lady Gaga’s Telephone while exfiltrating possibly the largest data spillage in American history”. </p>
<p>The tale is insightful. It tells how a landmark crime was committed by a forsaken youth who just wanted to have fun, in a moment of musical ecstasy where he might have imagined he was home, safe in his bedroom. We know all about Bradley Manning because his private pleasures got caught up in the interests of nation states and media businesses. For the young, it has ever been so.</p>
<p>Manning’s case presents a potted history of media research that can be summarised in four sentences. Young audiences have always been remarkably creative, when it comes to using media to make the best of crappy social circumstances that they can’t change. More often than not, the motive is about becoming the person you want to be. But these desires have origins and consequences that aren’t about individual choice. And many of the young people who make media thrive still end up as isolated as they were in the first place. </p>
<p>Manning also represents an ongoing tension between those who see young people as “digital natives”, versus others who caution that, for the majority, a little knowledge is a dangerous thing. Critics warn that we place too much faith in <a href="http://www.slate.com/blogs/future_tense/2013/08/13/teens_on_facebook_ruby_karp_mashable_and_the_anecdotal_evidence_problem.html">teenage media literacy</a>. And it’s increasingly common to find stories about young people who have been turned into examples because they don’t understand the public nature of social media.</p>
<p>In April this year, 17-year-old Paris Brown was <a href="http://www.theguardian.com/uk/2013/apr/09/paris-brown-stands-down-twitter">forced to resign</a> as one of Britain’s first Teen Police Commissioners because of allegedly racist, homophobic and pro-drug tweets she had posted some years earlier. Interestingly enough, Brown quickly accepted that her ill-considered messages meant she had to stand down.</p>
<p>This is significant as a recognition that identity and media go hand-in-hand. Anthropologist Erving Goffman famously <a href="http://clockwatching.net/%7Ejimmy/eng101/articles/goffman_intro.pdf">defined life</a> as a series of acts, where we tailor our performance according to the impression we wish to make on spectators. Social media and the like have amplified the “performative” aspects of daily living by increasing our audience, and the number of “masks” we must wear to win their favour. Many of us seek virtual validation: as if to have no digital life is to have no life at all.</p>
<p>This adds another dimension to the Manning case. His defence has argued that psychological problems made him incapable of seeing the difference between being a political activist, a spy, and a person who just wanted to be accepted. If this is true, it surely matters that the blurring of identities is a characteristic of on line communication for everyone.</p>
<p>It’s perfectly clear that the need for social interaction was a significant motivation for Manning’s actions. This counts more than the lapses in technical judgments that <a href="http://www.theguardian.com/commentisfree/2011/jul/16/bradley-manning-wikileaks-security">led to his downfall</a>. The scale of his misdemeanour is unprecedented. But its mechanics, the disclosure of information in the pursuit of kudos companionship, and all of the vulnerability that ensues, is the very stuff of digital culture.</p><img src="https://counter.theconversation.com/content/17093/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andy Ruddock does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As US Army private Bradley Manning stares down 90 years in jail, his lawyers are fighting the weight of history. Prosecutors want us to see a soldier who shamefully turned his back on a sacred oath. To…Andy Ruddock, Senior Lecturer, Research Unit in Media Studies, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/165662013-08-01T00:24:01Z2013-08-01T00:24:01ZWith Bradley Manning convicted, what now for Julian Assange?<figure><img src="https://images.theconversation.com/files/28430/original/cqq576d2-1375262258.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The natural conclusion from the conviction of Bradley Manning is that WikiLeaks founder Julian Assange is now firmly in the sights of US prosecutors.</span> <span class="attribution"><span class="source">AAP/UPI Media</span></span></figcaption></figure><p>Bradley Manning’s <a href="https://theconversation.com/bradley-manning-verdict-another-sorry-episode-for-obama-and-us-liberals-16473">conviction for espionage</a> marks the closing stages in the US Army private’s personal battle. Yet for Julian Assange, founder of whistleblower website WikiLeaks and Australian Senate candidate, Manning is but a casualty in a much grander mission. </p>
<p>WikiLeaks seeks to end the power of governments to judge when national security decisions should be closed to public scrutiny. Yet Assange’s vision for upholding “democratic freedoms”, if pursued to its logical conclusion, will itself threaten those very principles.</p>
<p>Manning was acquitted of more serious and contentious charges of aiding the enemy, but convicted on 20 further counts, including espionage. These carry a maximum sentence of 136 years, although that figure will likely be far less. The conduct of the trial has an immediate significance for Assange in what it signifies about his own fate, but it is more important in what it reveals for the future of the US government’s ability to control transparency in national security.</p>
<p>The factual basis for Manning’s conviction strengthens the case for indicting Assange under the <a href="http://www.vice.com/read/how-the-espionage-act-of-1917-became-a-law-against-whistleblowing">1917 Espionage Act</a>. The US government must show that he gathered, transmitted or received classified defence information, and that he did so with the intent or reason to believe that it could potentially damage national security. The prosecutor reinforced these elements by repeatedly suggesting that Assange coached Manning to provide leaked documents for the purpose of hampering US national defence.</p>
<p>The basis for prosecution had already been made clear in a 2010 State Department <a href="http://www.reuters.com/article/2010/11/28/us-wikileaks-usa-letter-idUSTRE6AR1E420101128">letter</a> warning that publishing leaked documents risked lives, US military operations and foreign relations. This makes it harder for Assange to deny the requisite element of intent. Assange will evade extradition for as long as he remains in diplomatic limbo in the Ecuadorian Embassy in London to avoid sexual assault charges in Sweden. But he can be confident that there is an arguable legal case and strong political will to make him accountable for his actions in a US court.</p>
<p>The government’s determination behind these prosecutions, and that of National Security Agency leaker <a href="https://theconversation.com/patriot-games-the-odds-are-stacked-against-whistleblower-snowden-15785">Edward Snowden</a>, raises the more fundamental question of what principles should guide the treatment of these men under US law. US president Barack Obama is repeatedly criticised by Assange and others for undertaking a <a href="http://www.theguardian.com/commentisfree/2013/jul/05/blowback-white-house-whistleblowers">“war on whistleblowers”</a>, with strong and continuing civil society campaigns to free Manning. This is fundamentally a political question about what policy best promotes robust democratic government.</p>
<p>Assange clearly believes his own activism promotes the interests of democracy and political freedom. To this end he <a href="http://www.smh.com.au/federal-politics/federal-election-2013/julian-assange-launches-wikileaks-party-via-videolink-from-london-20130725-2qlx7.html">launched</a> his Australian political party to achieve “accountability” rather than to govern: to serve as “an insurance against the election”. A recent Lowy Institute poll suggests he may have reason for optimism, with 58% of Australians <a href="http://www.lowyinstitute.org/publications/lowy-institute-poll-2013">approving of WikiLeaks</a>. Yet Assange’s logic lays bare the threat posed to democracy when individuals usurp the prerogative of elected governments to determine both political processes and matters of national security.</p>
<p>The danger in the actions of Assange, Manning and Snowden is that they are each operating from within institutions established in a democratic society. However, from there, they have proceeded to make unilateral decisions about the most fundamental matters of government, without any of the obligation and democratic control that comes with legitimate political authority. </p>
<p>There is a real debate to be had about the proper balance between freedom of information and classified government operations. Former assistant secretary of state Philip Crowley, who resigned over his criticism of inhumane conditions of Manning’s imprisonment, nevertheless <a href="http://www.bbc.co.uk/news/world-us-canada-23512954">emphasised that</a>: “finding the right balance among security, secrecy, transparency and privacy remains a work in progress”.</p>
<p>But the assumption underlying Assange’s mission is that hard balancing acts can be avoided, and instead national governments should be stripped of the capacity to make judgements about when it is necessary to engage in covert acts in the public interest. The reality is that for citizens to enjoy the umbrella of an effective national security system the government must necessarily take some actions outside of direct public scrutiny. </p>
<p>The US government may have struck the wrong balance in domestic surveillance programs revealed by Snowden, but it was clear that the electorate demanded a greater sense of security in the decade following the September 11 attacks. Political freedoms necessarily exist within a security framework forged by difficult decisions about where the power of the state will most effectively empower individuals.</p>
<p>The answer for citizens wanting to debate that balance is to fully engage in the democratic process, not only when that involves popular campaigns to support martyrs to high ideals, but continually partaking in the hard and sometimes ugly decisions about proper limits of free expression. Assange’s <a href="http://www.indypendent.org/2013/07/31/julian-assange-statement-verdict-bradley-manning-court-martial">statement</a> on the Manning verdict asserted that the leaking of documents created no victim other than “the US government’s wounded pride”. But the real victim may very well become freedoms and security enjoyed by the many.</p><img src="https://counter.theconversation.com/content/16566/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Malcolm Jorgensen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Bradley Manning’s conviction for espionage marks the closing stages in the US Army private’s personal battle. Yet for Julian Assange, founder of whistleblower website WikiLeaks and Australian Senate candidate…Malcolm Jorgensen, PhD Candidate & Lecturer, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/164732013-07-30T20:16:17Z2013-07-30T20:16:17ZBradley Manning verdict another sorry episode for Obama and US ‘liberals’<figure><img src="https://images.theconversation.com/files/28372/original/y8d4ff72-1375199445.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The pursuit of Manning is part of a bigger picture.</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>Private Bradley Manning narrowly avoided conviction on the charge of “aiding the enemy” in a US military court, but make no mistake: the verdict is a severe one. </p>
<p>The tormented young man who downloaded hundreds of thousands of intelligence files while listening to Lady Gaga and then leaked them to the world had already pled guilty to serious charges, which by themselves promised decades in prison. From the start, US authorities have been determined to make an example of the soldier, pressing forward with charges that were tantamount to treason.</p>
<p>The whole sorry episode, which began in 2010, has broken American politics down along unfamiliar lines. Conservatives have <a href="http://www.ijreview.com/2013/02/35610-27-things-the-obama-media-woulda-went-nucular-over-if-bush-had-done-it/2/">rightly criticised</a> liberals for accepting — or at least acquiescing to — policies of Barack Obama that they would have howled about if his predecessor, George W Bush, had adopted them. </p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/5rXPrfnU3G0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Collateral Murder - Wikileaked in 2010.</span></figcaption>
</figure>
<p>Undoubtedly, America’s liberals would not have been so comfortable with drone strikes, targeted assassinations, and the unprecedented crackdown on leakers if a Republican were in the White House.</p>
<h2>Yes we can (outdo George W)</h2>
<p>Many progressives, however, have looked on with dismay as the Obama administration embraced an intrusive and heavy-handed approach to national security, and they have been joined by unlikely allies — libertarian-leaning and Tea Party conservatives such as <a href="http://amash.house.gov/">Rep. Justin Amash</a>, (R-MI) and <a href="http://www.paul.senate.gov/">Senator Rand Paul</a> (R-KY) have also voiced outrage at a security apparatus whose power grows unchecked whether it’s in liberal or conservative hands.</p>
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<a href="https://images.theconversation.com/files/28376/original/j6rx4djt-1375201489.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/28376/original/j6rx4djt-1375201489.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/28376/original/j6rx4djt-1375201489.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=889&fit=crop&dpr=1 600w, https://images.theconversation.com/files/28376/original/j6rx4djt-1375201489.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=889&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/28376/original/j6rx4djt-1375201489.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=889&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/28376/original/j6rx4djt-1375201489.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1118&fit=crop&dpr=1 754w, https://images.theconversation.com/files/28376/original/j6rx4djt-1375201489.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1118&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/28376/original/j6rx4djt-1375201489.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1118&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Obama - tougher than George W.</span>
<span class="attribution"><span class="source">Ben Birchall/PA Wire</span></span>
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</figure>
<p>All of this comes as an unwelcome surprise for civil libertarians and human rights supporters of all political stripes. Obama had campaigned not only to correct the fiscal and foreign policy disasters of an administration that slashed taxes on the rich while invading a country (Iraq) that posed no threat to the US. </p>
<p>The charismatic young senator from Illinois also promised to roll back the worst abuses of the Bush administration, including the use of “enhanced interrogation” (ie: torture), indefinite detention, and the expansion of surveillance under the <a href="http://www.fincen.gov/statutes_regs/patriot/">PATRIOT Act</a>. Obama’s campaign promised the <a href="http://www.presidency.ucsb.edu/ws/?pid=93244">“most transparent”</a> administration in American history.</p>
<p>Such promises were music to the ears of liberals, who felt that their country had lurched into dark territory in the aftermath of the terrorist attacks of 2001. A course correction was in order, and the election of Obama, the constitutional law professor, appeared to guarantee it.</p>
<p>Little did progressives realise that they would get a president who went beyond Bush in trampling on civil and human rights. The signs, however, were there. Shortly after clinching the Democratic nomination in the summer of 2008, Obama embraced a legislative compromise that let major telecom companies like AT&T off the hook for violating consumers’ privacy when they co-operated with the Bush administration in vast, warrantless surveillance.</p>
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<span class="caption">Stuck in transit: Snowden.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
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</figure>
<p>At the time, political observers believed that Obama was simply <a href="http://voices.washingtonpost.com/thefix/wag-the-blog/wag-the-blog-fisa-problems-for.html">being pragmatic</a>, tacking to the centre in order to win the White House. Indeed, past Democratic nominees had been trounced when they appeared to look weak on crime or national security and Obama was determined to avoid the fate of <a href="http://www.theguardian.com/world/2012/oct/21/george-mcgovern">George McGovern</a> or <a href="http://www.hri.org/hri/dukakis.html">Michael Dukakis</a>.</p>
<p>The unfortunate result is that the liberals’ saviour has adopted a relentlessly aggressive posture on foreign policy. The Obama administration’s assiduous pursuit of Bradley Manning and his fellow leakers, Edward Snowden and Julian Assange, is part of this bigger picture: the first Democratic administration of the post-9/11 era - and one willing to pay almost any price to retain the initiative on national security.</p>
<h2>Big Brother has grown up</h2>
<p>This is no excuse, of course - and cold comfort for believers in civil liberties and human rights. More than the War on Terror, we live in an age of stark information asymmetry. The US government feels entitled to know everything about us, but wants us to know as little as possible about it. The NSA can monitor your phone records, and even a casual snoop can find out a great deal about you just by browsing social media. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/28373/original/tf8fkqmr-1375200926.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/28373/original/tf8fkqmr-1375200926.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/28373/original/tf8fkqmr-1375200926.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=871&fit=crop&dpr=1 600w, https://images.theconversation.com/files/28373/original/tf8fkqmr-1375200926.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=871&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/28373/original/tf8fkqmr-1375200926.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=871&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/28373/original/tf8fkqmr-1375200926.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1094&fit=crop&dpr=1 754w, https://images.theconversation.com/files/28373/original/tf8fkqmr-1375200926.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1094&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/28373/original/tf8fkqmr-1375200926.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1094&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Internal exile: Assange.</span>
<span class="attribution"><span class="source">Anthony Devlin/PA Wire</span></span>
</figcaption>
</figure>
<p>A teenager in Texas has spent months in jail for posting that he wanted to <a href="http://edition.cnn.com/2013/07/02/tech/social-media/facebook-threat-carter">“shoot up a kindergarten”</a> on Facebook; he insists he was only joking, having followed the comment with “LOL” (“laugh out loud”).</p>
<p>Such dilemmas about privacy, secrecy, and surveillance are here to stay. Gone are the days when spies passed nuclear designs to the Soviets on little slips of paper; Manning was able to download massive amounts of secret data while listening, fittingly, to Lady Gaga’s song <a href="http://www.youtube.com/watch?v=EVBsypHzF3U">Telephone</a>. Manning showed how easily the curtain can be pulled back on the inner workings of government, just as the state now possesses innumerable new ways to spy on us.</p>
<p>But the balance is not equal. If the cases of Manning, Assange, and Snowden are any indication, government has its thumb on the scales and it appears that the enormous power of information technology ultimately means less privacy and more surveillance.</p>
<p>The last time there was a reaction against such abuses in the US was in the 1970s, when <a href="http://en.wikipedia.org/wiki/Church_Committee">significant reforms</a> curbed a national security apparatus that had grown too powerful in the climate of fear that permeated the Cold War. Progressives might have expected a similar turn after George W Bush left office — but if a liberal like Obama is not willing to tame the leviathan, it is hard to see who will.</p><img src="https://counter.theconversation.com/content/16473/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alex Sayf Cummings does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Private Bradley Manning narrowly avoided conviction on the charge of “aiding the enemy” in a US military court, but make no mistake: the verdict is a severe one. The tormented young man who downloaded…Alex Sayf Cummings, Assistant Professor, Department of History, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/149352013-06-05T20:42:31Z2013-06-05T20:42:31ZWikiLeaks and aiding the enemy: the court martial of Bradley Manning<figure><img src="https://images.theconversation.com/files/25057/original/nkzgskxc-1370402049.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The trial of US Army private Bradley Manning - alleged to have leaked classified information to whistleblower website WikiLeaks - is underway.</span> <span class="attribution"><span class="source">EPA/Michael Reynolds</span></span></figcaption></figure><p>Even before his trial <a href="http://www.abc.net.au/news/2013-06-04/bradley-manning-court-martial-begins/4730930">commenced</a>, United States Army private Bradley Manning must have known that he would be spending a significant time in prison. Think decades rather than years.</p>
<p>Manning <a href="http://www.guardian.co.uk/world/2013/feb/28/bradley-manning-pleads-aiding-enemy-trial">pleaded guilty</a> in February 2013 to 10 charges relating to the misuse of classified information, including the admission that he supplied a cache of documents to Julian Assange’s whistleblower website WikiLeaks. </p>
<p>Manning could face up to 20 years imprisonment on these charges alone. But he now faces 12 remaining charges that include the very serious allegation that he <a href="http://www.nypost.com/p/news/national/traitor_trial_r51E0YwScoHC6hafeAWBpN">aided enemies</a> of the United States. If he is convicted of that charge, he could face a life sentence. </p>
<p>Much has been made of the <a href="http://edition.cnn.com/2011/US/03/19/wikileaks.ellsberg.manning/index.html">parallels</a> between Manning’s situation and the plight of Daniel Ellsberg, a US military analyst who released the <a href="http://www.archives.gov/research/pentagon-papers/">Pentagon Papers</a> during the Vietnam War. </p>
<p>But there is a major difference: Ellsberg released classified information and he faced criminal charges for that act. However, the documents released by Ellsberg were only historical and could not seriously be thought to compromise the interests of the United States. </p>
<p>The Pentagon Papers revealed a lack of candor by Lyndon B. Johnson’s administration concerning the Vietnam War and subjected the US to ridicule, but it did not jeopardise security. The papers were released during the Nixon presidency but none of the documents related to events that occurred during the Nixon administration. </p>
<p>Ellsberg may have done something unlawful but no-one could claim that it compromised ongoing military operations. This point is clearly revealed by the Nixon tapes, in which the president and his aides were initially rather pleased by the leaking of documents that embarrassed Johnson. In fact, the Supreme Court refused to stop publication of the Pentagon Papers because <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=403&invol=713">they found</a> that nothing in the documents could possibly be considered a military secret. The charges against Ellsberg were ultimately dismissed because of the misbehavior of Nixon’s infamous plumbers unit.</p>
<p>But Manning is charged with releasing many thousands of government documents and not just historical records. The US government contends that this distinguishes Manning from Ellsberg’s situation – Ellsberg simply released documents that he was not authorised to release, and there was not a serious claim that his conduct put any American interest at risk.</p>
<p>To convict Manning on the more serious charges, the government cannot simply allege that Manning did something he was not supposed to do. That issue is no longer in dispute as he admits to leaking the documents: rather, the prosecutors must now prove that Manning’s conduct actually aided the enemies of the United States.</p>
<p>Proof of giving aid to the enemy can be quite elusive and the government clearly faces real challenges. Much has been made of the fact that some of the leaked information was found among the possessions of <a href="http://www.theatlanticwire.com/national/2013/06/bradley-manning-trial-osama-bin-laden/65848/">Osama bin Laden</a>. However, while this may be an interesting tidbit, it really means very little if anything. The fact that bin Laden had information disclosed by Manning does not mean that the information assisted him in any current or future act directed against the US. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/25087/original/mmgsvdb6-1370412097.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/25087/original/mmgsvdb6-1370412097.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/25087/original/mmgsvdb6-1370412097.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/25087/original/mmgsvdb6-1370412097.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/25087/original/mmgsvdb6-1370412097.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/25087/original/mmgsvdb6-1370412097.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/25087/original/mmgsvdb6-1370412097.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Bradley Manning disclosed information to WikiLeaks but the US government will struggle to demonstrate it directly aided the enemy in conflict against US forces.</span>
<span class="attribution"><span class="source">EPA/Philippe E. Chasse</span></span>
</figcaption>
</figure>
<p>The question is: did the information Manning released directly aid the enemies of the US? To prevail on this point, the government will really need to show that something that was illegally disclosed was both current and of use to bin Laden. Evidence that Manning disclosed current or future troop deployments, code breaking information, future strategy or identities of undercover agents would be rather convincing and persuasive evidence of having aided the enemy. </p>
<p>The government does not have to prove that bin Laden said to someone that he was grateful for the leaked information because it helped him plan terror campaigns. The nature of the information itself can be persuasive as to whether it compromised US interests and aided the enemy.</p>
<p>It is likely that most of the thousands of leaked documents are not of interest to friend or foe. The government has the challenge of sifting through them and finding something that can convince an observer it was of direct benefit to the enemy. That will not be an easy task. While Manning’s guilty plea may have assured him some prison time, he has also taken the momentum out of the government’s claims and left the government with a very difficult proof requirement. </p>
<p>Since Manning admits to the theft of the documents, the government will not be able to build on that incident, and it is now irrelevant in the court martial proceedings. The government’s entire case now rests on proving the value of the purloined evidence. </p>
<p>Depending on what is in the file, the odds may now favour Manning being acquitted of the charges of aiding the enemy. </p>
<p>That is some good news, but doesn’t change the fact that he has already admitted to releasing the documents in the first place, an act that may see him sentenced to twenty years in jail.</p>
<p>Either way, Bradley Manning is still looking at a long time behind bars.</p><img src="https://counter.theconversation.com/content/14935/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harry Melkonian does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Even before his trial commenced, United States Army private Bradley Manning must have known that he would be spending a significant time in prison. Think decades rather than years. Manning pleaded guilty…Harry Melkonian, Senior lecturer, United States Studies Centre, University of SydneyLicensed as Creative Commons – attribution, no derivatives.