You might remember that I defended Julian Assange and Wikileaks—much as I don’t like them—because they have the right to publish whatever they want. We wouldn’t attempt to prosecute the Washington Post for publishing classified material that it obtains from undisclosed sources, would we? Although the Post is bound by U.S. laws dealing with classified material, we also have (or at least had) strong First Amendment protections for media outlets. A leaker might be a criminal, but the recipient and publisher of the leak isn’t.
Wikileaks, as a foreign media outlet, doesn’t have First Amendment protections . . . but it also isn’t bound by U.S. laws about classified material, so they are still in the clear.
I pointed out at the time that, “Crimes were committed here. The people who stole secret information and gave it to Wikileaks have mishandled classified information; that is a crime, and the culprits should be charged and prosecuted.” It turned out that the culprit was U.S. Army Private First Class Bradley Manning, who has since been convicted of violating the Espionage Act and a number of other serious crimes.
More recently, Edward Snowden—a federal contractor employed by Booz Allen Hamilton—also divulged classified information to the media, particularly relating to a National Security Agency (NSA) program that collects and analyses virtually all phone records in the United States. While I called Manning a criminal, I’ve called Snowden a hero. I stand by these characterizations. Despite efforts—particularly by Assange—to equate Manning and Snowden’s actions, the two leaks (and men) are very different.
First, there’s a matter of scale. Manning downloaded two hundred and fifty thousand diplomatic cables, five hundred thousand reports from the Iraq and Afghanistan wars, and countless other videos and files. He released them, unfiltered, to Wikileaks, which later published many of them online. Manning made no apparent effort to limit the release to avoid harm to his fellow soldiers or U.S. diplomatic relations.
If Manning had limited the scope of his release to specific files relating to specific actions or activities that he believed were illegal, he would have a much stronger basis for claiming that he was a whistleblower trying to uncover improper behavior in the government. But instead, he leaked everything he had—good, bad, or indifferent. This was a release designed to cause harm, not to uncover particular government misdeeds. Snowden, on the other hand, only released specific information related to the NSA’s unconstitutional surveillance program.
In addition to matters of scale, there is an important difference in the content of each leak.
The vast majority of the information released by Manning was information that you might call ‘legitimate secrets’—the kinds of things that are perfectly acceptable for governments to keep under-wraps. Diplomatic cables deal with relations between people and nations, and often involve precarious negotiations that could go awry if revealed too early or out-of-context. More troubling, Manning released information about military activity in the Iraq and Afghanistan war zones. Military procedures and strategy, and information about covert operatives and informants, must be kept from the enemy in a time of war . . . and in today’s networked world, releasing sensitive data on the Internet might as well be handing it directly to al-Qaeda. Manning’s leak posed a clear threat to the war effort, and to soldiers’ and operatives’ lives.
Again, there are exceptions. If Manning was aware of war crimes being committed by U.S. soldiers—like what happened at the Abu Ghraib prison in Iraq, for example—he has a responsibility to report those things to his superiors and, if they do not respond appropriately, to the public. And there are things in the Manning files that might have fallen into this category, and possibly deserved a selective release. But, as mentioned before, there was nothing selective about the Wikileaks data dump.
Compare this to the Snowden leak, which didn’t deal with U.S. military activity in a war zone, or diplomatic relations between states, but rather with a covert government activity directed at innocent citizens of the United States at home on American soil. Barring a war-time suspension of the Writ of Habeas Corpus and an imposition of martial law—which must be declared by the president and is only permitted when the country is in a state of rebellion or invasion (cf. U.S. Constitution, Article 1, Section 9)—the Fourth Amendment is still in effect. The government may not violate it, even when some violations might help it catch some real bad guys.
The NSA program that Snowden told us about—which collects data about every American, innocent or guilty, in hopes of finding terrorists—is clearly, obviously, undeniably illegal. It is a blatant violation of our enumerated civil liberties. We have a right to know about it, and Snowden—who took a great personal risk in telling us—is therefore a hero, not a criminal. He didn’t blindly dump gigabytes of secret files on the web, he selectively released files that dealt with a particular abuse happening in the national security bureaucracy. He didn’t put soldiers’ lives at risk or compromise military war strategy; no, he protected and defended the Constitution, just like every public servant is supposed to.
Assange is having a good ol’ time trying to paint Manning and Snowden with the same brush, and the Wikileaks crew does deserve credit for their efforts to protect Snowden from a U.S. government witch-hunt, but these are two different men who did two very different things. Manning is a criminal who compromised national security, and he deserves to spend time behind bars (within reason). Snowden is a whistleblower, and he deserves a medal for having the courage to publicize an institutionalized violation of Americans’ civil rights.