Chelsea ManningCommunityThe Dissenter

What About Bradley Manning’s Releases Has Really Created ‘Chilling Effect’ for State Department?

Government witnesses from the State Department have suggested in the sentencing phase of Pfc. Bradley Manning’s trial that the Department was the victim of a “chilling effect” created as a result of Manning’s decision to provide a cache of US State Embassy cables to WikiLeaks.

The defense objected to testimony about this “chilling effect,” arguing it is “not directly related to or resulting” from Manning’s “misconduct.” Military judge, Army Col. Denise Lind, ruled on the objections and found that testimony from Under Secretary of State of Management, Patrick Kennedy, on a “chilling effect” was admissible evidence, but it would be limited in scope. Only evidence from periods directly following the WikiLeaks releases or “subsequent media accounts” on the cables in host countries would be considered.

The reduction of information included by diplomats in reporting from the field as a result of this “chilling effect” was deemed admissible with the same caveat. The belief that if the US does not have the trust of others it cannot get accurate information and if it cannot get accurate information it cannot do complete reporting on countries was deemed admissible. That non-governmental persons, such as businessmen, were no longer willing to talk “fully and frankly” was deemed admissible, again, with the caveat that it be limited in scope to the time immediately after the releases. That there was now less information included in diplomatic cables for “fear of not being protected” was deemed admissible, as it was a direct result of Manning’s act.

However, the judge ruled that testimony from Kennedy on this “chilling effect” being indefinite was inadmissible as it was speculative and not based on “quantifiable data.” That a “chilling effect” had impacted US policymakers and interagency partners was found to be speculative and inadmissible as well.

The judge ruled yesterday that testimony on a “chilling effect” from Michael Kozak of the Bureau of Democracy, Human Rights and Labor was inadmissible. [Kozak led the WikiLeaks Persons at Risk group that relocated individuals allegedly endangered by Manning’s releases to safety.]

According to the judge’s ruling, Kozak had “opined that the accused’s offenses caused, and will continue to cause, a chilling effect on people making them afraid to come forward and foster democracy abroad and human rights concerns is speculative and inadmissible aggravation evidence.” The court would disregard it.

Few specifics were offered in open court by State Department witnesses testifying on this “chilling effect,” but Kennedy did inform the judge that a “relatively small number of people” had expressed feeling this “effect” that they cannot get the “kind of exchanges they had before WikiLeaks.”

I have written quite a bit about Kennedy, the State Department’s allegations of a “chilling effect” and the State Department’s role in Manning’s sentencing. But, it is worth adding some additional context to this suggestion of a “chilling effect,” which was not included in the initial report I published.

As the defense has said, the nature of some of the testimony military prosecutors have tried to present to the judge indicates an attempt to “place many of the ills of the world at Pfc. Manning’s feet.” There are any number of reasons why relations with a country might be suffering now and those reasons are unlikely to involve WikiLeaks if one truly examines what is affecting diplomatic operations.

There also were significant revelations in the cables published by WikiLeaks that could be partly responsible for any “chilling effect” that diplomats have experienced.

Could there have been a “chilling effect” because it was revealed that US diplomats were instructed to spy at the United Nations?

Could there have been a “chilling effect” because it was revealed that US diplomats worked to prevent investigations into renditions and torture authorized by the administration of President George W. Bush?

Could there have been a “chilling effect” because it was revealed that US  diplomats and Chinese diplomats joined together to obstruct a major agreement on climate change by European countries?

Could there have been a “chilling effect” because it was revealed that US diplomats were well aware of rampant corruption in the Tunisian ruling family of President Ben Ali but did not say much about this corruption publicly?

Could there have been a “chilling effect” because it was revealed that the US diplomats and Turkish diplomats were covering up the fact a base in Turkey was being used for rendition flights?

Could there have been a “chilling effect” because it was revealed that US diplomats recommended drawing up a list of European countries opposed to genetically modified crops so that they could, on behalf of Monsanto and other biotech companies, retaliate against them?

Could there have been a “chilling effect” because it was revealed that US diplomats were participating in meetings with US and Pakistan military commanders to enable “counterinsurgency” missions involving US special operations forces without the consent of the people of Pakistan?

And could there have been a “chilling effect” because it was revealed that US allies, Saudi Arabia and the United Arab Emirates, are two of the biggest funders of terrorism international terrorism, including in Pakistan?

The reality is that the inability to have “full and frank” discussions is an admission that business or conduct, which might be perceived as corrupt if it became publicly known, must be concealed after Manning’s disclosures. State Department diplomats are more aware than ever of what could happen if they don’t keep such information secret, and, since there is no guarantee in the information age that what they report will not be leaked, the best solution is to not include certain details in their reports at all.

In that sense, the “chilling effect” may be a positive byproduct of Manning’s act. If diplomats are more hesitant to communicate or discuss certain business or policies, it shows they are at least aware that what they are doing is possibly criminal if not outright improper and wrong. If non-government people, such as businessmen, are less willing to discuss certain matters, that shows they are more conscious of possible acts of forced transparency as well.

Finally, as I previously highlightedForeign Policy wrote on December 1, 2010, “How do you go from being the targeted victim of an unprecedented information attack to being the victor? Simple: Be revealed to have been working hard behind the scenes to do the right thing. The United States is as imperfect as any nation and guilty of countless missteps as the past decade has shown with great clarity. But if there is one over-arching message to the Wiki-spill it is that for the most part, in most places U.S. diplomats and senior officials have been doing an admirable job.”

Yet, if they were doing an “admirable job,” as then-Secretary of State Hillary Clinton and other officials in the State Department publicly contended, would there be such a “chilling effect”? That is not intended as a jibe against the State Department but an open question that should be considered. (Unfortunately, the fact that most of the evidence is being presented in secret court sessions makes considering the evidence difficult.)

The trial has seen evidence presented, although in secret, on the alleged deterioration of relations in countries like Mexico, Ecuador, Venezuela, Pakistan and various countries in the Middle East. However, what of that alleged deterioration was a result of countries figuring out how duplicitous and deceitful US diplomats had been? And, if that is a significant part of why relations happened to suffer, how much should Manning be punished because he exposed the true nature of American diplomacy in these countries?

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."