The case of Pvt. Bradley Manning, convicted last week by a military court of leaking secrets to the WikiLeaks website and now facing up to 136 years in jail, looks as if it might be the high-water mark of America’s zealous security culture. It certainly ought to be. After the attacks of Sept. 11, 2001, George Bush tipped the balance too far from liberty toward security — and it has stayed there under Barack Obama.
As Manning awaits his sentence, Edward Snowden, a contractor for the American intelligence services, was reported on Aug. 1 to have gone to Russia, where he has been offered a year’s temporary asylum. He had set out to shed light on the warrantless warehousing by the National Security Agency (NSA) of private data belonging to millions of American citizens, possibly in breach of the Patriot Act and the Fourth Amendment.
Meanwhile, the Obama administration has seized journalists’ telephone records and pursued leakers with a legal sledgehammer.
Any government’s first responsibility is to protect its citizens. It made sense to adjust the balance between liberty and security after 9/11.
But America’s values ought not to have become casualties of Bush’s war on terror.
The indefinite incarceration of prisoners in Guantanamo Bay without trial was a denial of due process. It was legal casuistry to redefine the torture of prisoners with waterboarding and stress positions as “enhanced interrogation.” The degradation of Iraqi criminals in Abu Ghraib prison in 2003, extraordinary rendition and the rest of it were the result of a culture, led by Dick Cheney and Donald Rumsfeld, that was both un-American and a recruiting sergeant for its enemies. Obama has stopped the torture, but Guantanamo remains open and the old system of retribution has often been reinforced.
Neither Snowden nor Manning is a perfect ambassador for a more liberty-focused approach. Both broke the law by revealing secrets they were under oath to keep. America’s spying agencies cannot function if their employees squawk — and, when “mass leaking” has become politically fashionable and technically feasible, deterrents are needed. Manning’s public-interest defense is especially thin: He leaked more than 700,000 files with little judgment about what harm or good this would do. Snowden’s initial disclosure was selective, but his flight to Hong Kong and Russia was damaging, and he has ended up disclosing secrets about how America spies on China. America is right to want to put him on trial, like Manning.
But both men also show how America still leans too far toward security over liberty. In Snowden’s case, it has to do with what he revealed. When he fled, the securocrats argued that the NSA’s data warehousing was vetted by Congress and a national-security court; the executive was supposedly being held to account by the other two branches of government. That argument is looking ever more rickety: in fact, the NSA lives under a simulacrum of judicial and legislative oversight.
The linchpin of the system is the secret court, which interprets government powers under the law as well as issues routine warrants. But Americans do not know about its rulings, and so cannot challenge them. In theory, if Congress disputes the court’s judgments or the NSA’s behavior, it can amend the law. Yet the politicians who know what is going on in secret cannot discuss their concerns in public and officials have felt safe lying to congressional hearings.
Unless the court is open to challenge from the public, it risks becoming the creature of the executive; perhaps it already is. Because of Snowden, that Kafkaesque system is now under scrutiny.
The disproportionate severity of Manning’s treatment matters, too. Under arrest, he was in effect kept in solitary confinement under harsh conditions for nine months (for his own protection, apparently: a nice Putinesque touch). The prosecution charged him under the draconian Espionage Act of 1917, originally designed to punish traitors and spies, not whistleblowers. It accused him of aiding the enemy, a crime that carries the death penalty, on the flimsy ground that his leaks were published online where Al-Qaida could see them. Even though the judge scotched that, she could still put a well-intentioned but misguided young man in jail for a century.
Such severity is counterproductive as well as unjust. Every democracy needs its secrets. But to uncover the inevitable abuses of power, every democracy needs leaks, too. Snowden’s supporters add that the whistleblower fled into the arms of first the Chinese and then the Russians because of Manning’s harsh treatment. Better for America if he had sought to justify himself in an American court.
Few Americans have much sympathy for Manning or Snowden. Yet the attitude toward secrecy is changing. For the first time since 2004, when Pew, a pollster, started asking them, fewer Americans say that the government should boost security than say it has gone too far in restricting civil liberties. Jim Sensenbrenner, a Republican congressman from Wisconsin and one of the authors of the Patriot Act, has said that the NSA’s dragnet was not what the act intended. An amendment to limit the NSA’s data collection was defeated in the House of Representatives on July 24 by only seven votes. A growing chorus in the Senate wants to tighten oversight of the agency. Even Obama has revived his pledge to close Guantanamo and begun to reveal more about the NSA’s programs.
Every intelligence service will impinge on individual liberties — and America’s has succeeded in its main job: to prevent attacks. But every democracy also needs to keep those impingements in check and to hold its spies to account. Of all the world’s democracies, the one that should best understand this tension is the United States. Its Constitution rests on the notion that the people in charge are fallible. As Manning waits to hear the judge’s sentence, it is time to remember that.