Last month former intelligence contractor whistleblower Reality Winner was finally released from jail for leaking classified information. But many argue she and Chelsea Manning before her, had very little choice but to knowingly commit a crime by leaking information to the media.
Whistleblowers in the security service in the UK and US need greater protections around whistleblowing to protect them speaking out on public interest national security matters when they have little very faith in internal channels.
In the UK, the Official Secrets Act (OSA) 1989 – which is used to protect government data from unauthorised disclosures by criminalising those that disclosure such information without authority – has been a contentious law for Protect and many civil society groups. Protect argue that there should be a statutory public interest defence (PID) for civil servants and intelligence workers charged under the OSA for making an unauthorised disclosure, a view now backed by the Law Commission. Though the Government are now consulting on legal reform with a view that the OSA should have no public interest test.
National security leaks are high risk, and divides opinion with many condoning, while others believe the whistleblowers to be selfless and brave for exposing wrongdoing. Either way, many believe there’s an easy way to limit leaks through reform. In the US, many argue the whistleblowers should be able to securely approach Congress when they witness wrongdoing, even if what they witness is classified. A blog on the Government Accountability Project website, entitled ‘ Want to Stop Intelligence Leaks? Make Life Easier for Whistleblowers’ explains:
Under the current system, intelligence whistleblowers can only approach Congress through either their agency’s or the intelligence community’s inspector general. These internal watchdogs investigate whistleblowers’ “urgent concerns,” and send their findings on credible complaints to their agency’s director, who forwards the complaint to the congressional intelligence committees. But these directors, as we saw just before last fall’s impeachment inquiry, can stop this process with the stroke of a pen.
Reality Winner and Chelsea Manning
Reality Winner was working for the National Security Agency after several years in the Airforce when she came across documents detailing how Russian hackers tampered with the 2017 Presidential election. Winner printed this report at the NSA and gave it to The Intercept, an online news agency. Her name was leaked to the U.S. government, and she was consequently arrested and put in federal prison for a period of 5 years.(1) She was released from federal prison in last month (June 2021) and taken to a halfway house facility near her family home. (2)
During her career as an intelligence analyst Chelsea Manning had access to highly classified government information which showed the nature of the United States government and military operations in Afghanistan and Iraq. After failed attempts of whistleblowing to the American press, specifically the Washington Post and the New York Times, Manning leaked over 700,000 documents over the course of four months to Wikileaks, including diplomatic cables, battlefield reports, and Guantanamo detainee profiles. It was the biggest leak in U.S. military history. In 2010, Manning was arrested and charged with 22 different offences, most under the Espionage Act. She was sentenced to 35 years in prison and her case sparked a flame surrounding the balance of government accountability and protecting the nations’ secrets. In 2017, then President Barack Obama commuted Chelsea Manning’s sentence to 7 years.
Many U.S. public leaders have spoken up against Obama’s decision, including former President Trump, calling Manning a traitor, naming the leak a matter of national security. Yet many years later in 2019, a report came out from the Pentagon, stating that the leaks had no impact on national security or the war in Iraq. (3)
Reform of whistleblowing law in both the US and UK would undoubtedly reduce national security leaks to the media and would have eradicated both Reality Winner and Chelsea Manning’s situation by having a clear and concise method of whistleblowing within their terms of employment and within Congress. Effective internal whistleblowing arrangements in the security services, backed by a public interest defence, might reduce leaks to the media, end the need to prosecute whistleblowers and encourage others to speak up and stop harm.
By Millie Camp
- Philipps, Dave. “Reality Winner, Former N.S.A. Translator, Gets More Than 5 Years in Leak of Russian Hacking Report.” The New York Times. The New York Times, 23 Aug. 2018. Web. 05 July 2021.
- NSA Whistleblower Reality Winner Released from Prison.” The Guardian. Guardian News and Media, 14 June 2021. Web. 05 July 2021.
- Chelsea Manning Leaks Had No Strategic Impact on US War Efforts, Pentagon Finds.” The Guardian. Guardian News and Media, 20 June 2017. Web. 06 July 2021.