Dangers of blowing the whistle in the digital age

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by Elizabeth O'Shea

Bradley Manning and Edward Snowden are victims of democracy criminalising the exposure of injustice.

Whistleblower Edward Snowden's stunning story provides an insight into government power at almost the exact moment the future echo of his story is playing out in a military courtroom in the US.

Snowden has identified himself as the source of revelations about the mass spying operations undertaken by America's National Security Agency as part of its Prism program. The motivation for his revelation, that the NSA has vacuumed up internet and phone data of millions of everyday people, was solely ''to inform the public as to what is done in their name and that which is done against them''. Almost certainly forfeiting his family relationships, his home and possibly his liberty, Snowden's courage is of the finest variety. This massive operation by the NSA destroys the concept of privacy as we know it, but paradoxically few knew about it until Snowden blew the whistle. Who knows whether something similar to Prism is already happening in Australia?

Snowden's calm acceptance of his fate is impressive. His story is remarkably similar to that of Bradley Manning and there is a good chance it will have a similar outcome personally. Coincidentally, Snowden's leak came in the week Manning's trial finally began. His treatment alone, as a prisoner of conscience, should be cause for alarm. He has waited for more than three years for this day, in breach of the Uniform Code of Military Justice, which requires a speedy trial. He has suffered in conditions that are cruel, inhuman and degrading. That is not hyperbole: it is the view of the UN Special Rapporteur on Torture.

Mainstream reporting has described Manning as a funny little character or weirdo. This not only lacks compassion, but is wilfully blind. Manning is a humanist: indeed, the back of his dog tag was stamped with that exact word. Like so many whistleblowers, including Snowden, he saw injustice and tried to expose it. He explicitly wanted to ''spark a domestic debate on the role of the military and our foreign policy''. He rightly asked: ''[if] you saw incredible things, awful things … things that belonged in the public domain, and not on some server stored in a dark room in Washington DC … what would you do?'' He had tried to raise concerns up the chain of command and was told to ''shut up''. To expose wrongdoing in this context is admirable; to continue to collaborate in its concealment is the opposite.

Both Manning and Snowden have been very deliberate in their actions. Neither sought to sell the information, though this would have undoubtedly been profitable, because of a belief that it belonged in the public sphere. Neither sought to engage in an indiscriminate dump of documents. Snowden says he reviewed every document he leaked. Manning carefully collected material he thought both evidenced injustice and was also unlikely to harm US troops. In this, he has so far been proven correct.

For Snowden, he must wait to see what happens next. Hopefully his fate and the outcomes of his actions will diverge from that of Manning's.

As far as we know, no one has faced trial for the crimes exposed by Manning's leaks. Most notably this included a video showing the killing of 12 people, including two Reuters journalists. In fact, despite Manning having already pleaded guilty to crimes with a potential 20-year sentence, the prosecution have put him on trial seeking to have him imprisoned for life. To do so, it has adopted the widest possible interpretation of the term ''aiding the enemy'' to cover any communication from military personnel that exposes weakness. The idea is that this communication, once published, could be read by the enemy, whoever that is, regardless of the intention of the communicator. This has a very serious chilling effect. It potentially covers the photos from Abu Ghraib showing prisoner mistreatment, comments by military personnel about deficient body armour, or even criticism about the military's handling of sexual assault allegations. It effectively precludes critical speech from a notoriously secret world.

The US government sees the forest, not just the trees. This is an active attempt to destroy the spirit of anyone within the US military with sympathies towards exposing wrongdoing. This is not just about Manning; it's an attempt to crush all potential whistleblowers.

To that end, there is a whole further set of people who are affected by this trial, whether they like it or not: journalists. Manning exposed war crimes by giving documents to a publisher. As expected, the prosecutors are seeking to link Manning to Julian Assange and the publishing site, WikiLeaks. But it could just as well be the New York Times, Fairfax or the Guardian. As Michael Ratner from the Centre for Constitutional Rights has stated: this trial is both a major attack on truth tellers and on journalists. It behoves us to defend them both if we wish to see more of either in the future.

Whistleblowers are vital to our press and our democracy. They provide some of the best information about the workings of closed environments such as corporations and government. Interestingly, what is demonstrated by Snowden's story, and Glenn Greenwald's fearless journalism, is that intimidation is a weak defence against the human instinct to expose injustice. While governments continue to misuse power under the cover of darkness, good people will invariably let the sunshine in. We must protect them. As Matt Taibbi wrote: ''If you can be punished for making public a crime, then the government doing the punishing is itself criminal.''

Both Manning and Snowden, like all whistleblowers, have a defence: the public interest. That is currently not available to Manning because of a ruling that sees his motivations as only relevant for sentencing purposes. It must be reversed and be taken into account in all such similar legal contexts. Without this, Manning's actions make no sense and his treatment looks like a show trial. When we start to criminalise dissent and the exposure of injustice in this way, it has very serious consequences for our society. As Ben Wizner from the American Civil Liberties Union noted: ''Sometimes what may be helpful to the enemy is also indispensable to the public in a functioning democracy''. If you think Manning's trial has nothing to do with your privacy or democratic rights, think again.

Elizabeth O'Shea is a human rights lawyer in Melbourne.

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