Xinhua/SIPA USA/PA Images. All rights reserved.In one of his final acts as president, Barack Obama appeared to show some mercy by commuting Chelsea Manning’s sentence. The US army private turned whistleblower was responsible for leaking classified military and diplomatic material – more than 700,000 documents and videos – to WikiLeaks, who in turn worked with news organisations to coordinate widespread publication throughout 2010. But the fact remains that Obama has persecuted more whistleblowers under the Espionage Act of 1917 compared with all previous administrations.
Whilst Manning’s release in 2017 is of course better than 2045, as her original sentence of 35 years demanded, she still served longer than most other whistleblowers. Indeed the average sentence for leaking classified material in the US is typically one to three years. In contrast, Manning spent more than three years behind bars just awaiting the start of her military trial, and then another four years after her conviction.
Manning has served in abhorrent conditions, including solitary confinement for 23 hours a day for a period of 11 months. Following a 14-month investigation into the treatment of Manning, UN special rapporteur, Juan Mendez, concluded the conditions she endured could have constituted torture. “Imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime”, he asserted “is a violation of his right to physical and psychological integrity as well as of his presumption of innocence”.
The US military for a long time refused to accept Manning’s gender dysphoria and request for gender realignment therapy. Being a transgender inmate held in the men’s military prison at Fort Leavenworth, she attempted to take her own life on two occasions in 2016. In an interview published only days before the commuting of her sentence, she described her current situation:
“I need help. I am living through a cycle of anxiety, anger, hopelessness, loss, and depression. I cannot focus. I cannot sleep. I attempted to take my own life.”
In an understatement unbecoming of the great orator, Obama proclaimed: "Chelsea Manning has served a tough prison sentence." Moreover, he felt “very comfortable that justice has been served” because Manning had indeed repented and served time.
Of course by commuting the sentence rather than pardoning her, Obama ensures Manning’s conviction remains on record. She was also demoted and dishonourably discharged from the army, both of which also remain unchanged.
It is important to remember that those admissions, of course, came in a court where she faced an even harsher sentence: the Justice Department was seeking 60 years’ imprisonment. Because the case went to military tribunal, Manning was also unable to plead a public interest defence. That is, using the fact that her revelations uncovered actual wrongdoing as a mitigating factor in her trial or even sentencing. Eventually she was acquitted of aiding the enemy, but convicted of espionage violations.
Far from signalling the end to an era of a vendetta against whistleblowers, as the Icelandic Pirate Party's Birgitta Jonsdottir hopes, US policy on whistleblowers is likely to persist. Firstly, Obama made a strong suggestion to this effect when he announced the commuting of Manning’s sentence:
“What I can say broadly is that, in this new cyber age, we're going to have to make sure that we continually work to find the right balance of accountability and openness and transparency that is the hallmark of our democracy, but also recognize that there are adversaries and bad actors out there who want to use that same openness in ways that hurt us – whether that's in trying to commit financial crimes, or trying to commit acts of terrorism, or folks who want to interfere with our elections.”
Secondly, the administration also sought to differentiate between the pleas of Manning and Snowden, arguing that Manning’s self-reproach meant she should be treated differently. Only days before Obama’s announcement, White House press secretary Josh Earnest claimed there was a stark difference between the cases of Manning and Snowden:
“Chelsea Manning is somebody who went through the military criminal justice process, was exposed to due process, was found guilty, was sentenced for her crimes, and she acknowledged wrongdoing. 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.”
Though of course the alleged fleeing into the arms of an adversary, was a direct consequence of the US withdrawing his passport, as Snowden was quick to point out:
— Edward Snowden (@Snowden) January 19, 2017
The message from the US here is not that whistleblowing is a legitimate last resort, but that they will prosecute and punish.
Thirdly, we already have an indication that these policies against whistleblowers are likely to persist or even deteriorate under president Trump and a House/Senate dominated by the Republican Party. His spokesperson, Sean Spicer claimed Trump was “troubled by this action”:
"It's disappointing and it sends a very troubling message when it comes to the handling of classified information and the consequences for those who leaked information that threatened the safety of our nation."
House Speaker Paul Ryan was even more unequivocal:
"This is just outrageous. Chelsea Manning's treachery put American lives at risk and exposed some of our nation's most sensitive secrets. President Obama now leaves in place a dangerous precedent that those who compromise our national security won't be held accountable for their crimes."
Republican Senator John McCain also claimed Obama’s decision was "a grave mistake that I fear will encourage further acts of espionage and undermine military discipline."
When president Trump eventually commented on the case, he naturally did so via his personal Twitter account – incorrectly labelling Manning a “traitor”, since she was found not guilty of “aiding the enemy”:
Ungrateful TRAITOR Chelsea Manning, who should never have been released from prison, is now calling President Obama a weak leader. Terrible!
— Donald J. Trump (@realDonaldTrump) January 26, 2017
In the past Trump has expressed similar disdain for Edward Snowden, tweeting (of course) in 2014 that he should be executed:
Snowden is a spy who has caused great damage to the U.S. A spy in the old days, when our country was respected and strong, would be executed
— Donald J. Trump (@realDonaldTrump) April 19, 2014
The first victim of Trump’s presidency is unlikely to be Snowden, however, as his Russian visa has recently been extended for three years. Instead we are likely to see a steady dismantling of rights and infrastructure designed to protect whistleblowers. One such mechanism was The Office of the Whistleblower which the Securities and Exchange Commission was forced to establish by the Dodd–Frank Wall Street Reform and Consumer Protection Act in 2010, following the financial crisis. The “whistleblower who knows of possible securities law violations can be among the most powerful weapons in the law enforcement arsenal of the Securities and Exchange Commission”, it proclaims on its website.
President Trump has surrounded himself with elite bankers, including Jamie Dimon (the CEO of JPMorgan) and Gary Cohn (former Goldman Sachs president). It should come as no surprise then that one of the many executive orders he has signed in the first weeks of his presidency, is to review the Dodd-Frank Act by instigating a review of how financial markets are regulated. Whilst there is little detail about how this will be achieved, The Office of the Whistleblower will likely be on a target list of regulations to be abolished.
Obama’s legacy on whistleblowers is not one of clemency, compassion, leniency or even mercy. Rather president Obama should be remembered for his persecution of whistleblowers and presiding over a culture of intimidation against those who seek to uncover wrongdoing and to hold power to account. If their current rhetoric and early actions is anything to go by, president Trump and his administration will happily build on Obama’s legacy to continue persecution of whistleblowers for years to come.
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