GOOD FOR HER

U.S. whistleblower Chelsea Manning loses bid to visit Canada, but promises another battle

Adrian Humphreys - Yesterday - NATIONAL POST 

© Provided by National PostIn this file photo taken May 02, 2018 former U.S. soldier and whistleblower Chelsea Manning speaks at the digital media convention

After almost five years of legal squabbles, U.S. whistleblower Chelsea Manning has been found inadmissible to enter Canada because of her convictions for leaking a massive trove of U.S. military and diplomatic secrets to WikiLeaks.

The declaration by the Immigration and Refugee Board (IRB) means one of the world’s best-known whistleblowers won’t be able to cross into Canada for speaking engagements, work or to visit friends.

Manning’s lawyers say the decision, sent to them April 8, will be appealed to the Federal Court, and they will press a constitutional challenge of Canadian law that “criminalizes whistleblowing.”

Joshua Blum and Lex Gill already claim some measure of success because the IRB rejected Canada Border Service Agency’s “alarming argument” that releasing information to the media could constitute communication to a foreign entity or terrorist group.

The IRB agreed with Manning on many key issues, in fact, but she could not avoid the thorny issue of her convictions.

In 2010, while a military analyst with the U.S. Army deployed to Iraq, Manning leaked hundreds of thousands of documents, including an explosive video of two U.S. helicopters opening fire and killing 11 people on the ground, including two children and two journalists.

She testified at an immigration hearing in October that she did it to alert the public to what was really going on in the war on terror and how it differed from official versions.

Manning was 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 whistleblowing. In 2017, after seven years in prison, Manning’s sentence was commuted by U.S. President Barack Obama.

IRB adjudicator Marisa Musto reserved her decision after hearings in October. In her 54-page written decision, Musto agreed that Ottawa’s handling of Manning’s immigration file was “somewhat puzzling.”

After being told her case had been referred to the IRB for a hearing in 2017, Manning was then told a year later her hearing was cancelled and her rejection from Canada was final.

“This action was not supported in law,” Musto said in her decision. The Federal Court ordered an immigration hearing, but none was convened until April 2021 after more legal threats from Manning. Ottawa originally accused Manning of being guilty of “treason.”

At her immigration hearing last year, Manning did not deny her convictions in the United States but challenged Ottawa’s interpretations on the equivalency of the U.S. laws she violated to Canadian laws.

Musto said Manning was partly right.

Musto rejected the government’s claim that one equivalent Canadian law is the Security of Information Act of Canada.

Under Ottawa’s position, any public reporting by news media of whistleblower information that could be read by a terrorist or foreign government was liable to prosecution. Instead, Musto said, the obvious intent was to punish direct and purposeful leaking to these groups, not incidental.

“The (IRB) finds that the Minister’s arguments are simply not founded. Disclosing documents to Wikileaks would not constitute an offence in the Canadian statute. In order for the Canadian offence to be committed, the information must be communicated to a foreign entity or terrorist group. The Minister has not established that WikiLeaks is either one or the other.”


U.S. whistleblower and transgender rights advocate Chelsea Manning at the C2 business conference in 2018 in Montreal. 

GEE MONTREAL IS IN CANADA LAST TIME I CHECKED 

However, the same did not apply to Manning’s unauthorized access to U.S. government computers to obtain the information, Musto said.

The two countries’ laws on computer fraud were aligned enough to consider Manning’s conviction a serious enough violation to preclude her entry into Canada.

Musto rejected Manning’s defence of necessity — when someone does something illegal but out of an important and laudable need.

That rejection, however, was not so much for her whistleblowing on the war in Iraq and Afghanistan, which was hailed by experts as important information for the public on a matter of serious public concern.

It was the 250,000 confidential diplomatic cables that Manning also gave to Wikileaks that did her in.

Musto said the nature of some of that data was not as high-minded and justifiable.

“It is difficult to conclude that in order to protect the lives of Afghan and Iraqi civilians and detainees, it was necessary for (Manning) to obtain cables pertaining to entirely unrelated matters.

“For example, there is a marked difference between a cable exposing prisoner abuse and a cable revealing that U.S. diplomats in Ottawa think Canadian television stereotypes Americans.”

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Musto differentiated the two types of data Manning leaked.

“Depending on the circumstances of each case, a legitimate act of whistleblowing might not be found to be objectively dishonest,” Musto wrote. “In the case before the panel, the acts of the person concerned, specifically with regards to the diplomatic cables, were found to be objectively dishonest.”

Manning’s lawyers said an appeal is warranted.

“The decision is characterized by legal errors,” Blum and Gill said in a written statement. “We therefore intend to seek judicial review and continue her constitutional challenge to section 342.1 of the Criminal Code in Federal Court, including on the basis that the provision is overbroad and criminalizes whistleblowing.”

A CBSA spokeswoman said CBSA was unable to speak to the specifics of this case for privacy reasons.

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