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Former U.S. soldier and whistleblower Chelsea Manning speaks at the digital media convention
Adrian Humphreys
POSTMEDIA
Chelsea Manning , the former U.S. soldier whose leak of thousands of U.S. documents changed the public’s view of the wars in Afghanistan and Iraq, is challenging Canada’s secrecy laws — saying the way they are being used to keep her out of the country threatens the public’s right to know important information that embarrasses the government.
Manning, a 33-year-old American citizen, served notice of intent to raise a constitutional challenge of two laws that the Canada Border Services Agency (CBSA) is using to prevent her from visiting Canada.
“It would appear to put nearly every political, national security, and foreign affairs reporter in Canada at some risk of a criminal charge and life imprisonment on a routine basis,” lawyers Joshua Blum and Lex Gill write in a notice of challenge filed on Manning’s behalf.
Blum and Gill, representing Manning at a hearing of the Immigration and Refugee Board (IRB) next month, say the government’s application of security and criminal code laws to her case mean the same laws could also be wielded to silence whistleblowers and journalists, undermining Canada’s constitutional rights and freedoms.
The connection between Manning and public interest journalism in Canada comes from the government saying the Security of Information Act — that criminalizes passing information that could harm Canada to foreign entities or terrorist groups — applies to Manning’s case, when what she was convicted of doing was passing public interest information to media organizations as a whistleblower, her lawyers say.
The government’s position “threatens freedom of expression and freedom of the press in the starkest and most obvious terms,” write Blum and Gill.
Chelsea Manning barred from Canada after conviction for leaking classified documents equated to treason
Manning, one of the best-known American whistleblowers, leaked a vast trove of documents through Wikileaks to major news organizations around the world.
Manning was an intelligence analyst in the U.S. military, deployed to Iraq in 2009. While regularly reviewing on-the-ground activities in Iraq and Afghanistan, she was concerned the reality of what was happening contrasted sharply with what was being portrayed to the public.
Manning leaked records from the U.S. military’s internal incident reports revealing undeclared civilian deaths, complicity in torture, and significant human rights abuses.
Among the leaked material was an explosive video from a U.S. military helicopter in Iraq. It shows soldiers killing ten civilians, including two children and two Reuters journalists. The video contradicted official statements the helicopter was shot at before soldiers opened fire.
Manning also leaked an enormous trove of diplomatic cables that sparked thousands of news stories around the world; among the revelations were incidents and accusations of domestic and international corruption.
“Much of what the public knows today about the reality of the U.S. ‘War on Terror’ and the crimes perpetrated in Iraq and Afghanistan would have remained entirely secret were it not for Ms. Manning’s act of whistleblowing,” Manning’s lawyers say in filed material.
“Without adequate information about the true cost of these wars, neither the press nor the public were capable of making informed decisions about foreign policy.
“The respondent’s actions are part of a long tradition of public interest whistleblowing, without which many crimes and abuses carried out by states and other powerful actors would never see the light of day.”
Manning was arrested for these leaks, convicted under the U.S. Espionage Act and Computer Fraud and Abuse Act and sentenced to 35 years in prison , the longest sentence ever issued in the United States for leaking.
In 2017, after seven years in prison, Manning’s sentence was commuted by U.S. President Barack Obama.
That same year, Manning tried to come to Canada to visit friends in Montreal and arrange a series of speaking engagements.
At the border crossing, she told CBSA officers about her U.S. conviction. CBSA equated her U.S. charges to a Canadian charge for treason and refused her entry.
That set off a series of attempts by Manning to be allowed into Canada.
In 2018 she was allowed in to speak at a conference. A government assessment at the time said Manning’s crimes “were of a time and place, little real harm resulted.”
After a weekend in Montreal that May, she returned to the U.S. without incident, documents say.
If Manning thought this meant she was welcome in Canada, she was mistaken.
It appears someone wasn’t pleased with her visit and CBSA declared her inadmissible to Canada. After a challenge in Federal Court, the government agreed to refer her case to the IRB for a hearing, filed documents say.
“This proved to be false,” Manning’s lawyers write. An Access to Information request showed that CBSA “unlawfully held the file and never sent the matter to the tribunal for a hearing.”
Under threat of another court challenge, Manning’s case was finally referred to the IRB.
No longer claiming Manning’s crimes were equivalent to treason, CBSA instead tagged her for violations under the Criminal Code of unauthorized use of a computer and section 16(2) of the Security of Information Act.
That section of the secrecy laws declares it an offence to intentionally and without lawful authority share information with a foreign entity or terrorist group that harms Canadian interests.
Manning’s lawyers say neither of these laws are equivalent to what Manning was convicted of in the United States. Manning’s disclosures were not out of greed nor malevolence towards the West, her lawyers say.
A charge of “aiding the enemy” against Manning was rejected by the U.S. military court.
The Canadian government’s argument appears to reject public interest disclosure as a mitigating factor and equates a leak to a news agency with passing military secrets to al-Qaeda or an enemy state.
“This is the fundamental reason why constitutional and international human rights law uniformly guarantees that freedom of expression must protect listeners as well as speakers,” Manning’s lawyers argue.
“In the instant case — and while a source or whistleblower’s constitutional right to impart information is doubtlessly also at play — it is the public’s right to know that is most fundamentally at issue.”
Manning’s lawyers also argue the law is overly broad; as worded, it extends the same blanket protection over all information the government “is taking measures to safeguard.”
“This could range from truly sensitive classified documents, all the way to run-of-the-mill data that happens to be password protected,” the lawyers say.
“This indeterminacy is constitutionally impermissible, in part, because of the chilling effect its application could have on legitimate newsgathering.”
Gill said the materials filed in the case speak for themselves, when asked for comment on Manning’s challenge.
CBSA declined to comment on the specifics of the case.
“CBSA takes its responsibility to maintain the integrity of the border and to ensure that those who are not eligible to enter Canada are prevented from doing so, particularly where there are concerns of serious inadmissibility for criminality or national security,” said Jacqueline Callin, a CBSA spokeswoman.
Manning’s admissibility hearing is scheduled for Oct. 7.
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