National Security

Obama's Clemency Doctrine for Leakers Is Flawed

The outgoing president's decisions are likely to have a chilling effect on future whistle-blowers.

How will they be remembered?

Anyone who leaks classified information puts himself in grave danger. It's natural for governments to communicate that with their actions. But Barack Obama's two clemency decisions as he leaves office send the wrong message about what whistle-blowers can expect and when leaks serve the public interest.

QuickTake Privacy Vs. Security

The outgoing U.S. president granted clemency to former private Chelsea Manning and retired general James Cartwright, but not to former National Security Agency contractor Edward Snowden. In Obama's book, Cartwright deserved a full pardon. The respected, highly decorated ex-Marine who now works for an elite think tank, last year pleaded guilty to the felony charge of lying to investigators about a leak he was accused of engineering. The leak, to the New York Times and Newsweek, concerned a successful U.S.-Israeli cyberoperation that took some Iranian nuclear centrifuges out of commission during the first Obama term.

In effect, Cartwright leaked the information out of pride for one of the most successful government cyberattacks in history. The public had already heard a bit about it from both U.S. and Israeli sources. What Cartwright revealed probably didn't do any damage, and it served the greater glory of the U.S. and Israel. So Obama let the retired four-star general get on with his life.

Manning's case was more complicated. Private Bradley Manning, the military intelligence analyst who later changed gender, passed a vast amount of U.S. military and diplomatic information to WikiLeaks, instantly setting up that site as the No. 1 whistle-blowing resource in the world and setting off an endless stream of news stories. Manning published a video showing U.S. military personnel firing on Iraqi civilians and revealed plenty of messy detail about the U.S. operations in Iraq and Afghanistan.

Manning also embarrassed the U.S. State Department by releasing a plethora of diplomatic communications, including frank judgments about many nations' politics and politicians. It's possible that some of the information helped set off the Arab Spring. It also may have precipitated the failure of the U.S.-Russian "reset" during Obama's first term: Some of the leaked cables were insulting to then-Russian President Dmitri Medvedev, who agreed to the reset against his friend and mentor Vladimir Putin's better judgment, and Russia was described as an undemocratic "mafia state."

Manning was convicted of espionage and theft, and sentenced to 35 years in prison by a military court. She became an international cause celebre. Manning was clearly a whistle-blower, not a spy, and the U.S. government was embarrassed by the abuses she revealed. 

Obama didn't pardon Manning as his lawyer requested. But he commuted the former private's sentence to seven years; she'll be out in May. 

The White House has argued, through spokesman Josh Earnest, that "the disclosures by Edward Snowden were far more serious and far more dangerous" than Manning's. Snowden, of course, was open about U.S. electronic intelligence methods, which could have made it easier for America's enemies to counter them. But then, the methods Snowden disclosed were what appalled much of the world.

Obama's lack of clemency for Snowden probably has less to do with the damage he caused than with the fact that Snowden didn't get caught. Earnest said:

Chelsea Manning is somebody who went through the military criminal justice process, was exposed to due process, was found guilty, was sentenced for her crimes, and she acknowledged wrongdoing. Mr. Snowden fled into the arms of an adversary, and has sought refuge in a country that most recently made a concerted effort to undermine confidence in our democracy.  

The NSA leaker had a good idea of the charges he would face in the U.S. He was pretty sure he wouldn't get a fair trial. He didn't end up in Russia because of any preference for Putin's regime. In fact, he has been more of a liability than an asset to Putin lately, often criticizing the Russian police state. Russia has just extended his residence permit for another three years, making him eligible for the Russian citizenship he never wanted -- but, apparently, only because without a U.S. pardon, no other country would accept him.

None of that, however, matters to Obama's implicit classification of leakers: A pardon if a leak isn't particularly serious and flattering to the U.S., a commutation if the leak is damaging but the leaker has been tried in the U.S. and no clemency if the leak is damaging and the leaker lives in Russia.

It's a clear enough message to intelligence service whistle-blowers, to whom Obama has extended more protection if they reveal "waste, fraud or abuse" (not intelligence methods or other national security information). The logic here is flawed. What happens to whistle-blowers shouldn't be based on how much damage their revelations do to existing systems and processes, because these may be wrong, even criminal at times.

The best standard against which a whistle-blower's case for protection should be judged is whether it serves public interest to a greater extent than it damages a state's interests. It may seem hard to pin down, but it's actually laid out in a document titled "The Global Principles on National Security and the Right to Information," written by a number of international authorities on the freedom of expression. One of the principles is the impartiality of the tribunal that rules on a whistle-blower's guilt or innocence. 

It can be argued that no domestic court -- especially not a military one -- can be truly impartial in a case like Manning's or Snowden's. The U.S., of course, has trouble with outsourcing justice. As a matter of policy, it doesn't recognize international tribunals for its citizens. The alternative, however, is worse for the U.S.: future Mannings and Snowdens face a choice between harsh treatment at the hands of U.S. military tribunals and relative freedom under the protection of an anti-American regime like Putin's.

Donald Trump is highly unlikely to let any international authority judge U.S. whistle-blowers. Trump, however, is not forever, and eventually, the U.S. will need to consider what it likes better: a transparent multilateral justice process for whistle-blowers, or the considerable damage that can ensue when they find refuge with America's adversaries.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Leonid Bershidsky at lbershidsky@bloomberg.net

    To contact the editor responsible for this story:
    Therese Raphael at traphael4@bloomberg.net

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