Chelsea Manning is free – finally.
On his last day in office, President Obama commuted Manning’s absurdly disproportionate 35-year sentence for passing classified documents to Wikileaks in 2010. The documents included the Collateral Murder video and the Afghan War Logs, which revealed the grim reality of US war efforts in Iraq and Afghanistan.
Manning has served 7 years and 120 days, and the law that enabled her draconian sentence remains unchanged and ready for use on the next leaker who may be a whistleblower. The law is the Espionage Act of 1917, which US authorities increasingly rely on to punish people who leak classified information to the media, and not to foreign governments as it was originally intended.
Those prosecuted under this law still cannot argue their actions were motivated by the public interest in their defense. Nor does the Espionage Act require prosecutors to prove national security was harmed as a result of the leak, much less that the harm outweighed the benefit of the public’s right to know.
Allowing for a public interest defense is necessary in any democratic society where government activity is often shrouded in secrecy. It is the only way to combat wrongdoing in the parts of the government subject to the least amount of oversight. The UN’s specialist on freedom of expression and access to information, David Kaye, has slammed the Espionage Act, calling it “antiquated, ill-suited to contemporary national security issues, a relic of the wartime hysteria of a century ago subject to government overreach and abuse.”
Cracking down on leaks – and potentially on whistleblowers as well – is unfortunately in fashion. The United Kingdom’s Law Commission recently recommended whistleblower protections be weakened in the 1989 Official Secrets Act, potentially criminalizing the reporting of leaked information that could be obtained through a Freedom of Information Act request. The UK government has since distanced itself from the report, and the Law Commission, suffering heavy criticism, reopened the consultation period.
The application of the Espionage Act in Manning’s case was unjust, but its impact was exacerbated by the lack of protection for transgender people in US prisons.
Today is the International Day Against Homophobia, Transphobia & Biphobia, a good time to reflect on the maltreatment Manning suffered as a transgender woman in a military prison for men. Human Rights Watch has reported on abuses that transgender women face in US immigration detention and called on the US Congress to bar Immigration and Customs Enforcement from holding transgender women in men’s detention facilities. We should also not forget the other challenges she will face in accessing health care as a trans person.
Manning’s story should serve as a wakeup call for governments to reform whistleblower protections and fulfill their human rights obligations toward incarcerated transgender people.