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What Edward Snowden Could Have Guessed About Bradley Manning's Verdict

BY Nick Judd | Wednesday, July 31 2013

Photo: Ben Sutherland / Flickr

For the one man with the single biggest reason to follow the verdict issued Tuesday in the case of Army Pfc. Bradley Manning, the ruling will offer very little he did not already know.

Like Manning, former defense contractor Edward Snowden's rise to fame comes in a shroud of intrigue and cyber-mystery. Manning was revealed to be the source of hundreds of thousands of leaked State Department and Defense Department documents delivered electronically to Wikileaks, the anti-secrecy organization that steeps itself in hacker culture. Snowden outed himself shortly after news broke of the documents he secreted away from the National Security Agency thanks to his computer systems administrator job with the firm Booz Allen Hamilton.

Manning has been found not guilty of aiding the enemy but guilty of all but two other counts leveled against him, including charges under the Espionage Act and theft of government property. The judge, Army Col. Denise Lind, reportedly plans to release findings that explain her rulings, and Snowden is likely to read them with interest. Federal prosecutors have filed a criminal complaint against him including charges under the Espionage Act, and that case is waiting for him should he return to the United States.

Whistleblower or not, spill government secrets and you will be punished. That's the message officials are sending. But as Snowden watches all of this take place from somewhere, we think, inside Moscow's Sheremetyevo Airport, it's hard to imagine him being at all surprised.

"The conditions in which Manning has been held, his unfair trial and the lack of transparency during the hearings speak volumes about the fate reserved for whistle-blowers and the way the rule of law is being flouted," Reporters Without Borders said in a statement in response to the Manning verdict.

Writing for The Guardian in a scathing critique of "legacy" media, Dan Gillmor warns:

We are, more and more, a society where unaccountable people can commit unspeakable acts with impunity. They are creating a surveillance state that makes not just dissent, but knowledge itself, more and more dangerous.

It all smacks a bit of the dystopian future which we have been promised. The reality is probably less fantastic but no less concerning.

Manning has been found guilty and Snowden charged under a law that dates back to 1917. The prosecution in Manning's case has even likened him, while charging him with aiding the enemy for his disclosures, to an Army private in the Civil War who leaked a roster to a local newspaper — as if a court's ruling on the information environment in wartime 150 years ago would be relevant today.

Meanwhile, Freedom of the Press Foundation board member Trevor Timm argues that Manning's conviction on one charge under the Computer Fraud and Abuse Act "opens up a new avenue for charging leakers and whistleblowers."

Manning's case has been unstuck in time, whipping between the past and the future to find legal definition. Is he a novel new breed of hacker or the kind of neglectful pawn that armies have worried over for centuries? The prosecution has argued both, while, Timm told me in an email, the court largely left aside the issue of whether or not Manning's disclosures qualified him as a "whistleblower."

"During the trial, Manning was not allowed ... to show evidence that none of the disclosures materially harmed the US. By forbidding the defense from showing intent and lack of harm, the judge is following in the footsteps of recent rulings that are morphing the Espionage Act into an Official Secrets Act, something that should be considered unconstitutional," Timm wrote to me.

This makes whether Manning is or is not a whistleblower, in practice if not in theory, immaterial to the stakes in his case. As his sentencing begins, he still faces enough years in prison to keep him behind bars for the rest of his life. And the unfair treatment he already received while in custody — which Lind has indicated will shave time off of his sentence — cannot be undone.

While journalists, officials and media critics debate whether Manning's verdict casts a "chill" over watchdogs of government power, Snowden surely knows the truth: That chill is already in the air. Daniel Ellsberg is often mentioned as the pinnacle of modern whistleblowing, but he was facing charges under the same Espionage Act until it was revealed that wiretapping had picked up his phone conversations and his psychiatrist's office was burglarized by agents of President Richard Nixon seeking information to discredit him. In 2007, before Obama took office, FBI agents raided the homes of other former NSA officials who had spoken out about what they saw as wrongdoing within the agency as part of a leaks investigation. They have been cleared of accusations against them.

Because of what Snowden has disclosed, we know now that intelligence officials misrepresented the facts to Congress while discussing surveillance of Americans on unprecedented scale, under a secret legal framework that is little understood.

But that doesn't matter. Snowden said as much almost as soon as he revealed himself to the public.

"I could not do this without accepting the risk of prison," he told The Guardian. "You can't come up against the world's most powerful intelligence agencies and not accept the risk. If they want to get you, over time they will."

Later in the conversation, he explained, "I do not expect to see home again."

But he acted anyway.

Maybe that's what being a whistleblower means today. Maybe there have never really been protections for whistleblowers who leak information, under Obama or any president of the modern era, except what is afforded by the court of public opinion.

Maybe that's something Snowden already knew.