This article is by Malcolm Jorgensen, PhD candidate and lecturer at the University of Sydney. It originally appeared on The Conversation.
analysis 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, Manning is but a casualty in a much grander mission.
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.
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.
The factual basis for Manning’s conviction strengthens the case for indicting Assange under the 1917 Espionage Act. 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.
The basis for prosecution had already been made clear in a 2010 State Department letter 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.
The government’s determination behind these prosecutions, and that of National Security Agency leaker Edward Snowden, 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 “war on whistleblowers”, with strong and continuing civil society campaigns to free Manning. This is fundamentally a political question about what policy best promotes robust democratic government.
Assange clearly believes his own activism promotes the interests of democracy and political freedom. To this end he launched 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 approving of WikiLeaks. 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.
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.
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 emphasised that: “finding the right balance among security, secrecy, transparency and privacy remains a work in progress”.
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.
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.
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 statement 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.
Malcolm Jorgensen does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations. Image credit: Snapperjack, Creative Commons
This article was originally published at The Conversation. Read the original article.
I disagree with Mr Jorgensen’s assumptions and conclusions here. The assumption is that there must necessarily be a balance between transparency and national security, and Wikileaks, Manning and Snowden have risked and undermined national security of the USA without providing a demonstrably necessary contribution to transparency as a result of their actions. Mr Jorgensen goes on to state that the responsible approach is for individuals to engage in the democratic process.
The problem with this argument is it assumes that government in ostensibly democratic countries such as the USA are incorruptible and always operate in the best interests of, well, everyone; while also assuming that constituents have a voice that can be heard and who feel empowered enough to make a difference (and that they actually can make a difference).
Publication of the Wikileaks documents and Snowden revelations, as well as documents demonstrating the USA’s history of illegal treatment of its own people, torture of prisoners and interference with and destabilisation of other countries, governments and entire regions, all lead to the conclusion that the US government will break any rules or laws, trample any civil rights and freedoms, cause the collapse of any government or nation, illegally torture and murder anyone in the pursuit of their own unique interpretation of ‘National Security’.
So we have evidence demonstrating that the US Government and authorised agencies cannot be trusted to act as a good international citizen that respects due process and the rule of law when it is inconvenient. It cannot be trusted to even respect it’s own laws and constitution with regards to its own people. Is exposure of this information important? Is it in the interests of the International community, let alone US citizens? Does its importance outweigh the protection of ‘National Security’ interests of a government and bureaucracy that appears flushed with power and the certainty of its right to pursue it’s own interests without consideration of the rights, freedoms and sovereignty of anyone else, comparable with the activities and excesses of some of the worst dictatorships and repressive regimes in documented history? I’d say that’s a pretty obvious ‘yes’.
Yes, Wikileaks, Manning and Snowden have caused the US Government damage. I’d say they have changed the world forever. But the US Government cannot prosecute these people under the rule of law when their work exposes the same government’s disdain for the rule of law when convenient – it isn’t just hypocritical, their vested interest in the matter means they cannot hold an impartial position and thus cannot be trusted to reach a fair and reasonable conclusion or pass reasonable judgement in a criminal prosecution. In short, any such prosecution must necessarily vilify the defendants and they cannot expect to receive a fair trial. Any such trial could only be conducted by a disinterested party or body where the US Government does not hold a position of power or influence and where it cannot exercise influence on participants, a scenario unlikely to exist in the world currently.
Finally, the suggestion that individuals can participate through active involvement in their democratic systems ignores the realities of the situation – it ignores the power of rich lobbies, it ignores the influence of specific agendas on the law throughout history representing the views of powerful groups such as the Christian right, which ostensibly represent the views of the uneducated and factually baseless to the detriment of knowledge, evidence and fact. The debilitating and undeniable reality is that facts, truth, science and reason take a back seat to the views of the religious, the uneducated and the rich because they have the numbers and the funds to control the law and the government. Within this context, what option do people have when they find themselves in possession of facts which clearly demonstrate corruption and illegal activities, whether perpetrated by individuals, groups, organisations or governments? If keeping silent on tax fraud, murder, child abuse, theft and rape by individuals is unthinkable, why is someone morally and legally obliged to stay silent on morally objectionable and criminal activity by a government, just because that government is the US administration? You wouldn’t claim such nonsense if it was an African or Asian government they were blowing the whistle on, so why the hypocritical and untenable stance because the geographic location of the government coincides with the North American continent?
People really need to take a razor to their logic with this, and indeed any number of issues relating to criticism of governments – if you would condemn it in one nation, you must do so for all. If you would defend a while blower from a military dictatorship as a courageous hero, you must do so when the name of the nation is changed but the activities reman similarly reprehensible and legally indefensible.
Well said Trevor.
+1
Excellent essay, TrevorX. However, the concerns raised by the author, Jorgensen, are not without basis, too. Especially this part:
“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.”
Is individual and unilateral action by Assange (et al) a manifestation of the will of the people? If it is, how do we know? More importantly, how do those who take such actions know? Ascertaining the will of the people is so expensive that the Government of Australia only does it once every three years. The USA does it only once every four. Everything else is just a rough estimate at best, a shot in the dark at worst.
I agree with the actions so far of Assange, Manning, etc. I agree with your concerns, TrevorX, about governments behaving badly. But is it justifiable to put our trust in vigilantes, who themselves are unaccountable, even if we support their goals?
@Fenixius
Excellent question. I don’t believe the answer is an either/or proposition, however. This is not a question of trust, it is a question of evidence. Wikileaks, Manning & Snowden came across evidence that demonstrated gross injustice, illegal activity, corruption and abuse of power at the highest levels of the world’s most vocally ‘democratic’ and ‘liberal’ government. They decided to publish this evidence as it is the only guaranteed way of distributing it to the public at large. Any impartial news publisher would have followed the same course of action. It is only because we are talking about individuals hitherto unknown (and a very young organisation) that we are talking about ‘trust’, vigilantism and treason – if it had been NY Times reporters who had uncovered and published these stories we would be having an entirely different conversation, with the US Government finding it extremely difficult to sidetrack the focus onto individuals.
Do we need to trust these individuals to believe the information they have disclosed? No, we can check the evidence, as many journalists and publications already have. Do we need to trust that they were doing this for the ‘right reasons’? No, because we can see from the evidence the compelling public interest in publication of such contemptible activity, we can see from the facts that there were no checks or balances against this behaviour, we can see from the public denials that the administration wasn’t prepared to accept responsibility for their actions or the impacts on people whose rights they infringed and whose lives they’ve destroyed. We can see from their subsequent actions that they are intent on continuing this activity with no sign that the vocal public outrage or international condemnation has had the slightest effect on their operations.
The facts demonstrate the importance of the information and the necessity of distribution. If the facts had put lives in danger, had ruined years of criminal investigations into the activities and threats apparent from terrorists, if the facts had not demonstrated illegal activity and abuse of power by the US Government, then the facts would demonstrate the irresponsible nature of the leaks, the attempts to smear the administration and destabilise the government and National Security with no basis in the public interest.
But that’s not what happened. The facts paint a compelling picture of a dictatorial government in flagrant ignorance of the law and the rights of anyone caught in their every widening net under the tired catch cry of ‘National Security’. But in a liberal democracy such a phrase shouldn’t be a free pass to illegal activity and immorality. In a liberal society that ostensibly respects and cherishes the rule of law and basic human rights and freedoms, when the government is found to be working in opposition to those basic tenants upon which the society is founded it is the responsibility of everyone to bring it to light and to hold those people accountable. We’re not talking about gauging the ‘will of the people’, we’re talking about upholding the basic principles of society. You don’t need to be a politician, political party or legal expert to work that out, you just have to follow the facts and apply the same responsibility to follow the law and the Constitution and the same penalties for criminal activity to everyone, no matter their position in society or the organisation or office they work for.
Epic post Trevor. Couldn’t agree more.
All good points.
You could point out the flaw in Mr Jorgensen’s “legitimate political authority” much quicker, by just asking, “How can you have a democratic process, when governments of all flavours persistently deny voters any visibility into what is going on?”
In other words, transparency is an absolutely necessary part of the democratic process, and without it no legitimate political authority is possible. Whistle blowers are a necessary component in being able to achieve transparency, because governments have and will tell lies to the citizens.
By the way, both Manning, and Snowden, and the entire US military, and all government employees swear this oath:
Note that “support and defend the Constitution” imposes a requirement to actively get involved when you see other people doing things that are unconstitutional. This oath comes before obedience to any laws, and any superior officer, because the ultimate source of authority for all of those laws is the US Constitution itself.
¨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.¨ And, is that what happened? Did the released documents expose actions that Governments had decided needed to be carried out in secret? Or, did the released documents expose actions Governments had taken and then after the action decided they wanted kept secret? Was the need for secrecy really for our benefit or the benefit of Politicians?
Also, I read a lot about ¨individuals¨ above would not a traditional media outlet such as a Newspaper have also published? If a Newspaper had published the documents should the editor be sitting in a cell next to Manning?
Where the issue comes in the when you have military and intelligence agency making decisions about what we do or don’t need to know without the oversight of the democratically elected representatives or for even the population to know what type of work is being carried out in our name.
Do we need to know about the content of the intelligence gathered by a program like “prism”? No, but out elected representatives do know to know details and justification for the data collected . Does the population need to know a program like prism exist? Certainly as the program is being carried out in their name. No different with other secret information we know there are secret diplomatic cables being sent we don’t need to know the content however what we do need to know is that when elected official talk to the population about ‘secret’ content they are not lying about that content, which was the case with some of the leaked information.
There is one area that espionage acts around the globe fail. They are quick to punish those leaking information but there is no tempering of the act by punishing those who needlessly or abusively use these acts to hide or lie about information that should be known either by the elected officials or the general population.
How can you have a use your Democratic Power when you have no information?
Now that the information has been released, where are the indictments against those that acted illegally or corruptly?
Paul, two simple sentences that yet convey so much. If only I had your talent for succinct brevity, I would save myself (and readers of my verbose meanderings) so much time and trouble. Excellent point, extremely well made :-) +1
Now that the information has been released, where are the indictments against those that acted illegally or corruptly?
Great question. I don’t really expect much to come of all the revelations though, the US aren’t the “good guys” they used to be…
Who watches the watchers?
It’s in vogue to presume innocence of those leaking, because all governments are secretly evil. It’s never ever that simple. There is always going to be a motive. Equally, there have been very reactionary, brutal responses by Authority.
It’s never a clean business. It’s not black and white.
That people can, on the one hand demand and fight for the right to privacy from and for government, and yet equally demand openness of government action, illustrates this perhaps better than anything else.
I disagree. Wikileaks want enough oversight in government that injustices do not occur.
Crimes which, in a criminal court in the US would result in the death penalty have been committed, yet they were hidden and the perpetrators rewarded for their actions.
Any government which allows this to occur has lost its mandate to govern and became the enemy of humanity.
+1
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