Government LeaksChelsea Manning Army Leak, 2009-10 | Edward Snowden NSA Leak, June 2013
In the past decade, several controversial cases have emerged involving government leaks. Late in 2009, Chelsea Manning (at that time called by his birth name, Brad), a U.S. Army Intelligence Analyst in Iraq began transferring to WikiLeaks what would eventually amount to 750,000 government documents. In 2013, Edward Snowden, an American IT professional, gave journalists thousands of classified documents that he had taken from the NSA while doing contract work for them. Manning and Snowden were both charged under the Espionage Act of 1917, among other charges. While Manning served part of a prison sentence for her leak, Snowden fled America before disclosing his stolen documents and has since then received asylum in Russia. Snowden’s and Manning’s efforts to bring government secrets to light have been alternately lauded and condemned, revealing deep differences in our perception of the legitimacy of government secrecy and the rights and duties of government agents.
There are two First Amendment questions when it comes to government leaks: what are the rights of the government employee who gives away government information, and what are the rights of those who publish that information? There is little question that the government can fire employees for releasing classified information, just as a company can fire and sue its employees for giving away secrets (see Garcetti v. Ceballos). There can also be criminal charges for theft of records, just like other kinds theft, although the Department of Justice does not typically prosecute for theft of intangible records (e.g., orally reported secrets or electronic documents).
Most important, however, are crimes related to security. It is illegal to give any information (classified or otherwise) with the intent of hurting the U.S. or aiding a foreign enemy. It is also illegal to disclose classified information relating to intelligence communication (e.g., releasing information about codes or encryptions used in government communication). These criminal laws are all considered to be consistent with the Supreme Court’s current view of First Amendment speech protections. To disclose such information would directly harm the United States.
When it comes to the rights of the publishers of stolen, classified information, there is more latitude. In New York Times v. United States (1971), the Supreme Court decided, in keeping with the principles of Schenck and Brandenburg, that the government could not punish a newspaper for publishing state secrets if they did not pose an immediate danger to national security. This principle was extended more generally in Bartnicki v. Vopper (2000) to anyone publishing or disclosing illegally acquired information as long as they did not personally participate in the illegal acquisition. The NYT v. U.S. and Bartnicki decisions were a natural development from New York Times v. Sullivan (1964), which had established a fairly extreme standard of press immunity. One important exception, however, was the decision in Branzburg v. Hayes (1972) that the press does not have immunity from government compulsion to reveal sources.
Chelsea Manning and Adrian Lamo’s Chat Logs
Adrian Lamo, a former high-profile hacker, turned in Manning to authorities after she confided in him about her leaks. Lamo subsequently released the logs of their internet chats to Wired magazine, which decided to publish them in their entirety in 2011.
The Afghan War Diary
This is the name given by WikiLeaks to more than 91,000 reports that Manning leaked documenting the U.S. war in Afghanistan.
The Iraq War Logs
This is the name given by WikiLeaks to 391,832 reports that Manning leaked documenting the U.S. war in Iraq. The collection has been organized and presented differently by different news organizations.
Geoff Morrell, Statement from the Department of Defense
The Defense Department issued a response to WikiLeaks’ publication of the Iraq War Logs in October, 2010.
Chelsea Manning’s Statement to the Military Court
Below you can hear the full audio of Manning’s statement at her court martial, which was later leaked.
United States vs. Pfc. Manning
The record of Manning’s trial was never officially released to the public but much of it has been obtained through FOIA requests and through anonymous leaks. A nearly-complete record of the case has been compiled by Alexa O’Brien on her personal website.
Chelsea Manning: The Dystopia We Signed Up For
Manning published this editorial in the New York Times on September 13, 2017.
The NSA Archive
In 2013, Snowden released thousands of files documenting the surprising extent of the NSA’s surveillance efforts. The American Civil Liberties Union has a searchable archive of these files on its website, as does Archive.org.
Edward Snowden: A Manifesto for the Truth
Snowden sent this short statement to Der Spiegel on November 1, 2013, which published it in German.