Manning, Snowden and Chilling Effects

There has been plenty of discussion in the media, amongst politicians and people in general over the actions of Edward Snowden and Bradley Manning, and whether, in each case, they deserve to be called 'whistleblower' or 'traitor'. People seem to be mostly willing to consider Snowden to be a whistleblower, and support his right to be protected with this status. Manning seems to have less support, and I think this is interesting.

The main negative arguments people can make against Snowden are:

• He broke his contract to the NSA by revealing classified information.
• He ran off to another country to escape 'justice', which makes him look like a traitor.
• We already knew everything that he revealed.

I don't think any of these arguments holds up. The first point is true for any whistleblower (i.e. they will typically be under some sort of contract forbidding them to release confidential information), which is precisely why the government needs to provide protection to whistleblowers. The second point is entiredly justified behaviour on his part, given the US government treatment of Manning, not to mention use of things such as extraordinary rendition for people who have been deemed 'enemies'. And the last point is certainly false, given each new document that the Guardian continues to publish. Plus, the reaction from politicians, the general public, and foreign countries (such as Germany) would make no sense if all of this information was already known.

All in all, it seems pretty clear that Snowden released important information about unconstitutional activities being performed by the US government, and that he deserves protection as a whistleblower for doing this service. Given the amount of key internet infrastructure that is based in the US, and the number of large US internet corporations that the whole world has become dependent on, and which have been compromised by the NSA, it is hard to overstate the importance of getting this information out to the world.

In the case of Manning, it gets complicated by two key factors:

• He is part of the military, which is subject to its own code of justice.
• He released a large, unfocused mass of information, rather than just documents that specifically showed illegal activity.

Many people have argued that Manning doesn't deserve to be considered a whistleblower because much of the content he released (such as diplomatic cables) had nothing to do with illegal activities and simply caused embarrassment to the US government and made it harder for it to perform its functions. While there is certainly truth to this, the important part that seems to be so often ignored is that he released evidence of illegal activities. He released, amongst other things, video of the US military killing innocent civilians in Iraq. While Manning has been charged with releasing these videos, no charges have been filed against the soldiers responsible for this.

So the response to all of this has been that Manning was held in solitary confinement for months, in conditions that have been called "cruel and inhuman" by the UN, and has subsequently been found guilty of a number of charges, which could lead to a sentence of over 100 years.

The big question is this: Imagine Bradley Manning had released only evidence of illegal activities, and no other documents. Would he have been treated differently by the US goverment? Would he not have been held in cruel and inhuman conditions, and would he have been acquitted of all charges, such as espionage? If the answer is no, which I think is almost certainly the case, then we have a fundamental problem, since in this case Manning would undoubtedly be a whistleblower, making the public aware of illegal activity covered up by the government. And we would have the government horribly punishing a whistleblower, which would have a massive chilling effect on anyone else thinking of doing the same thing.

In a time where the US public is forced to put a huge amount of trust in their government to not abuse all of the secrecy that they take advantage of, it's very important that there are massive penalties to the government for betraying this trust. We need an environment where the costs of performing and covering up illegal activities are so high that the government will never consider it to be a better option than coming clean.

My proposal is that whenever someone releases evidence of illegal activity covered up by the government, then they should be given a free pass on any other information that they also disclose. Yes, this could mean disclosure of all manner of secret and damaging information. And yes, this information might be a huge benefit to the country's enemies. And that's exactly why it would actually have a chance at having a deterrent effect.

The government will always have the option to protect itself from such a damaging disclosure, of course: don't perform illegal activities, and if you do, don't cover it up! In the same way that Wall Street investment banks continue to break the law because the fines that they receive are smaller than the benefits they get from it, the government will continue to cover up illegal activity if this seems to be less risky than coming clean. But if they knew that a whistleblower would be protected no matter what they revealed as long as they revealed the illegal activity, well, that might actually change something.