the relationship between law, the State, secrecy, and dissent
TASK:
The Leaks by Edwards Snowden, Chelsea Manning, WikiLeaks, amongst many others, raise fundamental questions about the relationship between law, the State, secrecy, and dissent. Discuss.
ABSTRACT
Over time, State governments have an uphill task of curtailing sensitive government information from trickling down to the general public. This paper drafts a fundamental approach to the theoretical part of the leaks espouses a detailed discussion of the case studies concerning various U.S. leaks such as the Guantanamo Bay detention center, the Afghanistan wars as well as the U.S. diplomatic cables among others. Furthermore, a discussion concerning the retaliate response of the U.S. government as far as the informational leakages are concerned emerges as well as the reaction of the law particularly the activities of the U.S. supreme court in response to the infringement of top government secrets. These results in the prosecution of the culprits leading to different judgments in which some of the whistleblowers are sentenced as well some court decisions upholding the rights of the press to keep a well-informed citizenry through the publishing of information.
The dissenters view their actions as of public interest and as avenues of ensuring the rule of law is upheld while the State on the other end views such whistleblowers as treasonous resulting to the invocation of statutes such as the Espionage Act of 1917 to charge the informants.
The research further narrows down to the emergent fundamental questions raised majorly as a result of the countermeasures taken by the State on the informants whose dissenting exposure of state secrets is viewed as a threat to the security of the crucial state secrets.
Might there be a conspiracy to curtail essential government information regarding war crimes from the citizens, and does the State rely on the law to protect its actions in such cases even when the constitutional dictates of the parties involved are compromised? This fundamental question, raised as a result of the treatment of informants by the U.S. courts among many others, outlines the relationship between the State, law, secrecy, and dissent in reference to various WikiLeaks case studies.
A.BACKGROUND INFORMATION
Government leaks by employees of the government or the press in states, particularly the U.S. A is a matter that is worth broaching. Conducts of individuals such as Chelsea Manning who leaked information as to mass killings of Iraq Civilians by the U.S, Edward Snowden who leaked top-secret government documents on surveillance programs by the National Surveillance Agency (NSA) and Julian Assange, a publisher and founder of Wikileaks, a website that leaked information shared by Chelsea Manning raise contentious issues which include inter alia; Whether there is justification for such leaks, whether these individuals are traitors or heroes, whether leaks are a threat to state superiority and whether the leaks expose a porous intelligence department that abuses the secrecy oath of office.
With unending and widespread publicity created on the daring nature of Snowden, Manning and Assange, a lot is left to address with a section of the masses viewing them as heroes and recognizing their efforts to expose governance ills and ensure supply of justice to the innocent civilians killed by state machinery. On the other hand, the whistleblowers face a strict stance on the law. With the Australian government threatening closure of the Wiki-leaks site, the United States of America initiates a probe into the exposure and arrests the culprits prompting a question by David de Cole – what should we make of Snowden, manning and Assange? The three end up either in jail, fugitives in foreign nations or remain in isolation. Viewed as patriots who would give their lives away for the sake of the typical innocent and voiceless race of humanity, the State considers their actions as treasonous and a threat to the supremacy of governance with the law popping in to punish the informants severely. Whether they are patriots or not, the leaks prompt the general public to think about the right of citizens to access secret information in the digital era.
A STUDY ON GOVERNMENT LEAKS BY EDWARD SNOW, CHELSEA MANNING, AND JULIAN ASSANGE
In the year 2010, Chelsea Manning, a United States of America Army Intelligence Analyst working in Iraq, shared with WikiLeaks approximately 750,000 government documents. WikiLeaks is a non-profit media organization that publishes news leaks while protecting the sources who leak this information. The materials included U.S. Department diplomatic cables, secret military documents on Iraq and Afghanistan wars and videos of U.S. forces killing Iraq and Afghanistan civilians. This information featured by The Guardian as well as Germany’s der Spiegel not forgetting New York times inclusive of the WikiLeaks Website resulted in the conviction of Manning who
received a sentence of 35 years imprisonment but served seven years after her sentence was commuted.
Edward Snowden, an American I.T. Professional, working as a contractor for National Security Agency (NSA) Shared with the Guardian and Washington Post top-secret documents on NSA’s surveillance program and permitted them to publish his name. He was charged in line with the Espionage Act but fled America and sought asylum in Russia before the charges were pursued.
Julian Assange, the founder of WikiLeaks and an Australian Citizen, was charged in the year 2010 for violation of the Espionage Act after Wikileaks released among others footage of U.S. soldiers shooting civilians in Iraq and confidential files about Guantanamo Bay. Assange was accused of working with Chelsea Manning to leak classified documents that the U.S. authorities allege endangered the lives of their informants. He was charged for publishing classified documents, but in June 2012, he sought asylum in the Ecuadorean Embassy, London, mainly to avoid extradition to the United States for publishing American papers shared by Chelsea Manning. Currently, at the request of the U.S. government, Assange is detained by the government of the U.K., and his extradition to the U.S. hearings are on. The Leaks by Edwards Snowden, Chelsea Manning, and WikiLeaks, raise critical questions as to the freedom of speech, legitimacy of government secrecy, and transparency and accountability of the State. In essence, striking a balance between government transparency while protecting classified information.
The Law and the State.
Somehow distinct from its citizens, the State is an entity given by the citizens to themselves, and certain powers are conferred to it under the social contract theory. This is entrenched in constitutions of various countries. In the U.S., it is espoused in the antecedent three articles of the Constitution, which concretize the doctrine of separation of powers whereby the federal arm of government is split into the legislature, judiciary, and the executive. The State may then legitimately interfere with its subjects occasionally. On the other hand, the law is imposed rules that govern behavior. It is a rule of conduct imposed by an authority.
The experiences by Edwards Snowden, Chelsea Manning and Julian Assange provide a platform for analysis of the relationship between the two (The law and the State). There are situations where citizens of the State allegedly breached the law imposed by the State and they were to face the consequences dictated by the law itself. The State is therefore seen as the enforcer of the law. It is the State that ensures that the law is followed and those who transgress are isolated from the society and punished. This is the reason why the State takes measures such as creation of a robust judicial system to try offenders as well as creation and maintenance of correctional facilities to punish those found guilty. The various state organs are duty-bound to respect, protect, and uphold the law in their various actions and decisions. Sometimes, this duty is abused when individual interests prevail over the interest of the State.
The Espionage Act, one of the primary statutes in the U.S., addresses the disclosure of classified information. It criminalizes the collection or communication of information that poses a security threat to the national defense or aid in a foreign country. Chelsea Manning was charged for breaching the Espionage Act, specifically section 793, which prohibited the disclosure of information on national defense. Chelsea Manning passed classified information on national defense to Wikileaks, Information that the U.S. government alleged was a threat to national security. She also faced charges for being in violation of other statutes such as the “Uniform Code of Military Justice” and the “Computer Fraud and Abuse Act.” During the proceedings, Manning argued that her revelation of classified information pertinent to national security and were defended under the First amendment. The court rejected her argument. It was the opinion of the court that Manning understood the nature of the information she was disclosing and how it could jeopardize national defense as the leaks endangered the lives of American soldiers and Afghanistan informants, and she was also was in violation of non-disclosure agreements that she had signed. While in prison, she was tortured and put under solitary confinement. During her trial, witnesses provided no evidence that her actions had caused any direct deaths. Prompting yet a bone of contention on the position of the law as far as the rights of the convicted are concerned Her actions were those of a patriotic citizen who exposed the actions of the government causing the death of innocent civilians .What she faced for her actions was to be put in a male prison even after she declared herself a transgender woman and to be brutalized .This clearly shows a failure of the judicial system whose main aim was to protect the interests of the government while the ordinary citizen had to suffer consequences for their innocent actions with not even an iota of consideration to their human rights.
The first amendment to the USA Constitution recognizes free speech and free press, and prohibits the Congress from making laws abridging that freedom. This freedom can however be limited in cases pertaining detraction, indecency as well as select cases of state censorship, categorically during wartime (The U.S. Constitution, First Amendment).
Reference made to the case on the leaked pentagon papers of 1971 featuring the U.S. state against the New York Times establishes the principle that a publisher is not liable for publishing pertinent facts on a public official. The facts are that the current Administration tried to bar the New York Times as well as Washington Post from highlighting activities of the U.S. in Vietnam. President Nixon argued that preventing the publication was necessary as a way of protecting national security. The issue arises, in this case, was whether efforts of the Nixon Administration to prevent publication of such sensitive and classified information violated the First Amendment. Justice Brennan in his ruling argued that the publication would not result to any event that would endanger the well-being of Americans, hence no justification on the censorship.
With the U.S. president mandated to uphold the virtues of prestige and authority of the united states of America, there arises yet a contentious issue on the position of the law in times of classified information leaks. Might there be a conspiracy to curtail crucial government information in regard to war crimes from the citizens and does the State rely on the law to protect its actions in such cases even when the constitutional dictates of the parties involved are compromised?The published cables such as the Pentagon Papers leaked by Daniel Ellsberg expose a state Incarcerating and detaining without trial civilians at the Guantanamo Bay detention center while the law remains silent on the rights of the suffering minority
“In the dark halls of Guantanamo, we have compromised our most precious values” (Obama, 2008). With presidential candidate Obama referring to the Guantanamo Bay detention center in which civilians are detained without trial supposed to be conducted by the U.S. courts, and as exposed by the Chelsea Manning to Wikileaks, the courts remain silent on the inhuman detention posing questions on the law protecting the convicted or the State even in times that such decisions made by the State expose its citizens to danger. Upon assuming office, President Obama orders the closure of the Guantanamo center with the center still in operation up to date.
A reference drawn from a wiki-leaks publication dated 5th April 2010 in a video showing the U.S. army shooting innocent civilians from the air and the retaliate response by the State in which they claimed that the killed people were terror-linked exposes a compromise of human values. The innocent killings are not yet justified by the law, with the dissenters pursued hence posing a credibility issue on the courts as to whether they take sides with the State or stand up for the rights of the press as well as innocent civilians.
The State and secrecy
The State, and especially the United States of America, may sometimes treat specific categories of information as classified. This information is then guarded, and the public may not have easy access to it. The justification for such action varies on case by case basis but mainly, it is aimed at protecting national security and public morals. The freedom of speech may then be limited accordingly in light of those safeguards. The State then passes laws such as the Espionage Act of 1917, Official Secrets Act and laws on treason to entrench this concept. On the other hand, the citizens of a country have the right to access information. This, a constitutionally highlighted right specifically where the citizens need that information to enable them to exercise a particular right. Balancing these competing interests is an uphill task for the State. There are individuals such as Chelsea Manning who believe that the right of the public to know trumps the secrecy of the State, and they, therefore, disclose classified information to citizens. Such individuals may then find themselves on the wrong side and apart from prosecution, they may be persecuted as well.
On secrecy, the State has a duty of protecting whistleblowers but this does not happen because the interests of individuals running the affairs of the State prevails. Various whistleblowers have resorted to keeping their identity anonymous to alleviate the negative implications of disclosure. For instance, the whistleblower who disclosed the details of the July telephone conversation between President Donald J Trump of the U.S. A and the President Volodymyr Zelensky of Ukraine has kept his identity unknown to date.
As to whether there is a justification of government secrets, “Secrets and leaks,” a book authored by Rahul Sagar (PG32) highlights the inevitability of secrecy sprawl-down even though such leaks serve an essential role in scrutinizing abuse of power. According to Sagan, violation of confidentiality is considered justifiable when it does not show high-level abuse of human rights as well as a public authority, and it does not pose a danger to the security systems of government.
Edward Snowden leaked secret information on NSA’s surveillance programs, the government has not spared him, as he is held in London at the request of the U.S. government awaiting a determination on his extradition to the U.S. to face charges for communicating information the government kept as a secret.
Some of the critical question arising include; Where laws broken and was the breach justified? In a case presented to the court in 2006 featuring the United States against Rosen, lobbyists received classified information from an employee of the Defense Department and were prosecuted under the Espionage Act. A federal judge held that proof that actions of the lobbyists were for a wrong cause showing disobedience and disregard to the rule of law adding that revealing such information presented a potential danger to the U.S was essential. Individuals such as Chelsea Manning, Julian Assange, and Edward Snowden are human rights activists who publish classified documents to highlight abuse of human rights by the State. Whilst trying to keep their super-status at the top, there is still silent suffering. The law seems not to support the exposure of ills committed by the government and therefore prosecutes the dissenters in a manner showing that such secrets, however true are too sensitive to be exposed as they are viewed as a threat to the reputation and supremacy of the government
The State and dissent.
Dissent is shied away from set rules and guidelines by individuals in the top echelon of government. The holding or expression of opinions at variance with those in an official capacity is, in most cases, reprehensible. In his book, “The Permanent Record,” Edward Snowden explains in great detail the cost of dissent. The officials at NSA believed that the details of PRISM were classified, but Snowden felt that the public needed to know, and he leaked the information. As a result, Snowden was forced to run away and seek asylum in Russia where he lives to date in fear of incarceration for reporting crimes committed by people in the echelon of the U.S. government. The response from the State shows the dissenting opinions as avenue of posing a threat to the superiority, diplomacy and a case of undermined confidence.
The First Amendment protects the leaks by the press, public and government employees. Where there is a public need for information that is relevant to self-government, the opinion of government employees, especially that of dissenters, is valuable to the public. However, if the intention of individuals dissenting the government poses a clear imminent danger they should be punished. A classic example is the case of United States versus Scheck. The court, citing the tenets of the Espionage act found the perpetrators guilt of mailing fliers urging men to resist a government draft on military recruitment. The U.S. Supreme Court reasoned that the freedom of speech provided for in the United States First constitutional Amendment could be restricted because a present danger was represented to the society through the mails Furthermore in another case featuring
Brandenburg against Ohio in 1969, Brandenburg made an inflammatory speech to the U.S. government and was convicted of advocating violence, an action which was in violation of the Ohio Criminal Syndicalism Statute. The Supreme Court affirmed that in the State of Ohio, the law violated Brandenburg’s freedom of speech and therefore was in violation of the constitutional requirements of the U.S. The Supreme Court established the dictates of First amendment that cushions statement that addresses illegal conduct unless it incites “imminent lawless action.”
Edward Snowden revealed that the U.S. government was finding the means to aggregate every text, phone call, email and message. The result would have been invasion into the private lives of every individual on earth by the U.S. government. This exposure prompts scholars into pondering over the issue of the position of the law and whether it is a justifiable act of the State to invade the privacy of any individual without their consent or approval by the law. Snowden’s
whistleblowing was a duty to inform the public. John Locke, a legal philosopher wrote that the freedom in the society implies being subject to law made by the legislature that applies to everyone, with a person being free from both governmental and private restriction. The U.S. state however has pressed charges against Snowden alleging violation of the Espionage Act . The very U.S. government has a duty to protect Whistleblowers under the Whistleblower Protection Act enacted in 1989. The main problem derives from the fiction written in 1945 by George Orwell in his book “Animal Farm” (Page 40) which depicts a situation where animals lived and they presumed to be equal. Ultimately however, in the activities in the farm it emerged that some animals are more equal than others. When one applies this abstract situation to the conduct of the government regarding the leaks by Edward Snowden, it becomes clear that the majority of the people in a state; ordinary citizens hardly enjoy their lives meaningfully. Government employees who dissent with what the government does and disclose government illegality ought to be protected and not put into prison . Disclosure of Information that the employee reasonably believes is a violation of any law is essential for public health and safety.
Conclusion.
Going by the statutes and decisions made in case laws that this research paper has examined, it is safe to conclude that there are adequate laws in the U.S. to deal with government leaks. However, the only problem that remains is implementation . Practically, despite Chelsea Manning, Snowden, Assange, and Wikileaks having been protected by the provisions of the First Amendment of the U.S. Constitution, the Whistleblower Protection Act and even the decisions in cases such as the Pentagon Papers among others, the State holds them liable and is determined to have them face the consequences for their actions. This clearly presupposes that the State is reluctant to allow the exercise of the freedom of speech, a human right that each U.S. citizen is inalienably granted in the U.S. Constitution because the State is attacked by its subjects when whistleblowers expose to the public state actions that they dissent from. Recognition of the inherent freedom of speech, human dignity, and equality is the foundation of freedom, justice, and peace in the U.S. and, therefore, fundamental. The right of government employees to expose any actions of the State that they reasonably believe to violate the law should be exercised freely without prejudice.
In conclusion, therefore, the code and the State are mutually related. For law to exist, there should be a state. The rule of law requires that all members of society, who include lawmakers, law enforcement officials, and judges, are equal before the law. The State, therefore, cannot be held to be above the law. The State, which is the enforcer of law, must protect, promote, and fulfill human rights, which are inherent entitlements to each individual. Its limitation of human rights should be legitimate at all material times, and deficiency should only happen where the State needs to protect the vast majority of the citizens. In cases of emergency, for example, where the lives of the people are threatened, the State may declare a state of emergency. This is intended to presume public order and also protect the lives of the people against attacks by the enemy. The onus lies on the State to show that it is indeed indispensable to punish those who disclose classified information, and it must satisfy the requirement that the disclosures pose a threat to national security or diplomatic interrelations. Punishing dissenters when the published information aims at informing the public and does not represent an immediate danger to national security, and is not any way in aid of a foreign country, would be a violation of the First Amendment and other U. S statutes such as the Whistleblower Protection Act. Those in power or the dominant class should not make decisions or laws to serve their selfish interests; instead, human rights should be upheld, and ordinary citizens ought to enjoy their rights meaningfully, just like those in power. The State should remain transparent in its activities to its people and be accountable for its actions. Secrecy undermines transparency and accountability, which is vital in a democratic society. Citizens have a right to know the steps of their State to ensure due diligence and prevent any violations by the State.