Edward Snowden and Chelsea Manning’s legal cases are destined to be remembered together for as long as their cases are discussed because of the similarities in the cases and their nearly simultaneous evolution which, together, reveal two perspectives on American justice. Nevertheless, the media’s treatment of Manning’s case has been a stark contrast to the manner in which Snowden’s case has been reported. Comparing the two cases reveals a double standard in both the prosecution of the two cases, and in the media’s coverage of those events.
Bradley (because that was who he was then) Manning’s case involved the disclosure of a large volume of classified military communications that included graphic reports about U.S. military interventions. The most volatile of Manning’s disclosures included graphic documentation of the 2007 incident in which an Iraqi news team that just happened to be at the wrong place at the wrong time was decimated by U.S. Army helicopter gunships. Some media critics credit that revelation in 2009 and Manning’s disclosures of private diplomatic cables concerning the relationships between the United States and various repressive Islamic regimes for the sudden explosion of protest movements in several Arab countries that toppled repressive governments that were friendly to the United States in the so-called “Arab Spring” movement. The destabilization of Egypt, a principal U.S. ally in the Middle East, which has now gone through three regime changes in three years, was clearly linked to the Arab Spring which, in turn, was liked to Manning’s disclosures. The ongoing civil war in Syria has also been attributed to Manning’s disclosures.
Manning’s admitted offenses were committed when he was serving U.S. Army enlisted man and, therefore, subject to the terms and conditions of the Uniform Code of Military Justice (HCMJ). Some reports have incorrectly stated that Manning was prosecuted under the Espionage Act, but that is because some of the citations from the Espionage Act have been incorporated into the UCMJ. Manning was, in fact, charged and convicted in a military court martial, not in a civilian proceeding. Manning may yet be eligible to be charged again under the Espionage Act, although some legal authorities believe that might constitute double jeopardy.
While some critics have maintained that Manning’s sentences were harsh, they were well within the lines for military sentencing. Had Manning done the same things during a period of declared war, he would have been eligible for the death penalty. Manning’s case quite clearly included instances in which active U.S. intelligence assets had to be withdrawn and relocated from their theaters of operation, rendering them useless for American intelligence gathering efforts. They were, in the parlance of the profession, blown.
Bradley Manning is not listed among the 49 individuals charged under the Espionage Act. The military judge who presided over Manning’s court martial ruled that, in order for Manning to be convicted under the Espionage Act, the government would have to prove the Manning knowingly revealed documents that could be used to harm the U.S. or aid a foreign power, a criteria almost impossible to prove.
Edward Snowden is the 49th person to be charged under the Espionage Act, a dubious honor he shares with union leaders Emma Goldman, Big Bill Haywood and Eugene Debs, along with political activists like Daniel Ellsberg and actual real-life spies Aldrich Ames, Robert Hanson and the hapless, inept Jonathan Pollard. Only two people – Julius and Ethel Rosenberg – have ever been executed under the terms of the Espionage Act under what are still considered by some to have been controversial convictions.
The CIA hacker’s case is quite different.Unlike Manning, Snowden was charged under the Espionage Act of 1917. While his disclosures have clearly affected U.S. diplomatic relationships around the world, it is not clear whether any ongoing covert operations had been compromised by the Snowden disclosures, except for the NSA’s eavesdropping efforts. The indictment itself was initially sealed, which meant that no one could divulge the contents of the indictment. Public pressure from the media and Congress forced the Justice Department to release the charges, which include the unauthorized communication of national defense information and the willful communication of classified communications intelligence information to an unauthorized person.
While Snowden’s disclosures have not been shown to cause military harm, they have clearly resulted in the political discomfiture of the Obama administration, with disclosures that the United States was eavesdropping on the private conversations of 35 heads of state, including Germany’s Angela Merkel, making conversations with some of those world leaders rather difficult for President Obama. Obama was also discomforted by revelations of U.S. eavesdropping operations when he was about to complain to the Chinese about their industrial espionage aimed at U.S. corporations.
The key differences in the manner that the media has chosen to report these two stories is that Manning’s media coverage has focused on his/her transgender issues amid questions of mental instability, while the coverage of Snowden’s disclosures have focused on his repeated assertions that he did what he did to call attention to the invasion of privacy issues…but the documents that Snowden gave to the media go far beyond what was needed to make the case against what 29 year old whistle blower believes is the unconscionable invasion of privacy committed by the NSA.
Documents indicating the invasion of the privacy of other world leaders have nothing to do with the invasion of privacy of American citizens. The Fourth Amendment provides protections against unauthorized searches and seizures of American citizens. The Constitution is silent on the issue of the invasion of privacy of non–citizens. Revelations of that nature seem to have been aimed directly at embarrassing the Obama Administration. Nevertheless, the news media, with rare exceptions, treads lightly around the edges of the Snowden story. No one has called Snowden out for releasing information having nothing to do with the privacy violations that were at the core of his arguments against the Obama administration.
No one – except, alas, Fox News – has called the fugitive computer wizard out for his grandiose claims that he was an operative of the U.S. Central Intelligence Agency (CIA). The CIA reportedly has 21,000 employees, but being employed by the CIA is not the equivalent of being an undercover field agent, of which there are only a few thousand, very few of whom are actually native born American citizens. It takes approximately two years for a field agent to complete training for undercover assignments, and there was no such period of time in Snowden’s resume during which he could have spent the two year required for such training.
Snowden has repeatedly referred to his effort to go through “channels” to raise the invasion of privacy issues he was concerned about, and has gone so far as to suggest that the news media file “Freedom of Information Act” requests for the release of the emails he claims passed back and forth about that issue. The NSA has released a single email thread in which Snowden asks for advice about whether it was legal for the CIA to conduct eavesdropping projects in direct violation of American law, rather than specifically alleging that such violations were taking place.
The fact that Snowden, who has been accused of releasing perhaps a couple of million pieces of email on other subjects, neglected to keep copies of his own emails on this subject strongly suggests that those emails do not exist, and never did. No one in the mainstream media is picking up on this point, nor does it seem they are likely to, because Snowden is good copy, and he will remain good copy for as l0ng as the question of his motives for releasing the documents remain in debate. In the meantime, an obscure contractor has become a worldwide celebrity of sorts, with all that entails, including book and movie deals, personal appearances, and the prospect of joining the very lucrative lecture tour. One doubts that Manning will be afforded similar luxuries.
The bottom line on the Manning – Snowden comparison is that Manning will be stuck in jail for another eight years, while Snowden might never spend a day in jail if he plays his cards right. Manning will remain a side show while Snowden basks in the sunlight of public attention, for committing exactly the same offenses at exactly the same time, thus proving the rule that breaking the law as an enlisted soldier is, except for cases involving sexual assault, ten times worse than breaking the same law as a civilian. Equal treatment under the law appears to have a notable footnote: except when one of the parties is a gay transgender solder and the other one (Snowden) looks and sounds like Jeopardy all-time winner Ken Jennings.
Arguments are going back and forth about whether Manning and Snowden are heroes or villains, patriots or traitors. Commentators are leaning from one side or the other on the basis of largely specious arguments over acknowledged facts. It is fact, albeit an undiscussed one, that the enemies of the United States, both foreign and domestic, were all fully aware of United States surveillance efforts. Those efforts had been discussed and dissected for years. The existence of the FISA courts and the continued, un-subpoenaed wiretapping efforts conducted under blanket waivers by the FISA courts were also a matter of common knowledge.
What was not common knowledge, until Snowden broke the story open, was the extent to which American citizens were being routinely surveilled without cause or warrant as part of an overall effort to identify potential wrongdoers before the wrongs were done. Those potential wrongdoers were, first of all, fully aware of the surveillance efforts arrayed against them, and acted accordingly. Foreign governments were aware of the NSA surveillance activities, and they acted accordingly as well. The only people in the entire scenario who were oblivious to the surveillance were the American citizens who, paradoxically, were the only ones in this scenario who arguably have a Constitutional right to privacy under the Fourth Amendment to the Constitution.
Manning’s revelations only concerned the military conduct of the United States in Iraq and Afghanistan and, as such, were less important to the overall lesson plan about privacy in America. Snowden’s revelations struck close to the heart of the Constitutional debate, which was not even being occasionally discussed in the media until Snowden’s disclosures made the subject front page news again. The fact that we are discussing now what could not be discussed legally before Snowden is all the exoneration that Snowden’s actions need.
Some critics have focused on Snowden’s age and the arrogance of one so young making so momentous a decision by releasing the privileged documents.Thomas Jefferson was 33 when he penned the Declaration of Independence. Edward Snowden will be 31 next month. That is not intended to impugn Jefferson, or exalt Snowden on the basis of age, but merely to discredit age as an issue when someone decides to blow a whistle on a bad play.fisqa
Commentary by Alan M. Milner, National News Editor