It is time to pull out the stops. Yes, efforts have been made, some commendable, some noisily admirable, and the protesters have gathered constantly over the thousand and more days that Private Bradley Manning has been held. The trial is about to begin, larded with 22 charges on the prosecution’s part, including espionage and aiding the enemy.
The campaign against Manning for his part in Cablegate has been insidious. The whistleblower, for all the heroic properties he or she might have, is treated as the betrayer of covenants, contracts and promises. The fundamental weakness of any whistleblowing regime is its construction from the inside. It remains a creature of establishment, a design of state authorities to ultimately restrain disclosure rather than endorse it. Ultimately, there is never any guarantee of protection against prosecution. One must be punished for doing a good deed – that’s the tribal prerogative.
To “disclose” information, one has to do so through appropriate channels. The family, in other words, takes precedence over the outsiders. Authorities must be allowed a chance to bring in a duster and rearrange the mess they have presided over. And if they don’t, where is one to go?
When that is not done, results are harsh and retributive. Incarceration and punishment under archaic laws – the Espionage Act 1917 remains a First World War relic that the Obama administration has only been too enthusiastic to deploy against dissidents – and a campaign of discrediting, tend to be the norm. Manning has been dismissed as suicidal, homosexual, confused with gender, and unstable. We can be thankful that none of these “tendencies” impaired his disgust at the reports coming out of American missions in Iraq and Afghanistan.
Within any legal context, it could be argued that Manning disclosed material that satisfied, in the broadest possible sense, the public interest. He revealed the continued US backing of despotisms in the Middle East even as the embryonic spring was about to bloom. He disclosed material which he was obligated to do to uphold the US Military Code, exposing atrocities.
The various legal tests that one can find in the jurisprudence of what constitutes public interest vary. The Spycatcher case, the colourful reference to Attorney General (UK) v Heinemann Pty Ltd (1987) tested the limits of what could and could not be disclosed in a common law setting guarded by a culture of secrecy verging on mania. MI5 wanted to protects its secrets; Peter Wright, a former officer of MI5, was happy to disclose it. Besides, much of the material revealed blatant acts of criminality, wrong doing and, dare one say it, common knowledge.
The main judge in that case, the progressive jurist Justice Michael Kirby of the NSW Appellate Court, argued that a free press was indispensable to democracy. Restraint on publication could only be granted if there was a “pressing social need” to do so.
That case cited the views of Justice Anthony Mason from the judgment of Commonwealth v Fairfax (1980), a High Court decision dealing with the Australian government’s attempt to restrain the publication of a collection of documents on foreign policy. The words of the judge are worth noting when dealing with cases such as Manning’s:
“It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.”
The American context is even more powerful, and Justice Hugo Black’s scorching speech justifying the release of the Pentagon Papers in New York Times v. United States (1971) for publication suggested that any democratic society worth its salt would need to have a well nourished press and informed representative government. “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”
The revolution of new media, with its channelling of information gathered from whistleblowers, its insistence on scientific or forensic forms of examination, has provided another avenue for exposure. It has democratised information in a manner that terrifies the fogies of power, the censorious cynics of process. Too much truth, they fear, will kill. The flipside of that is that the lie is indispensable.
Categories such as “traitor” or “hero” are the commercial brands of patriotism. At the end of the day, patriotism is a deceptive, and changeable abstraction. Such labels are never useful because invariably one person’s stock traitor is another’s valued hero. What matters here is that Manning decided that his country could not be right and wrong, a monster sojourning in the valley of death while trumpeting the merits of virtue. A social order that has to rest on a carefully manufactured illusion, notably one that extols blood rites, is one that deserves to perish.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: email@example.com