The Biden presidency: what can we expect for free speech?


Biden and Obama/The White House/WikiCommons

Biden and Obama/The White House/WikiCommons

On top of being the only US president impeached twice, Donald Trump leaves a legacy of attacks on the very foundations of free speech and specifically on journalists and the media.

President-elect Joe Biden has offered people hope of returning to normal politics, rather than another term of a president with a severe distaste for free speech. But are notions of a saviour cometh and confirmed on Inauguration Day on 20 January misguided?

Biden has an extensive record in politics from which he can be judged, as well as eight years in high office as vice president under Barack Obama that could give an indication of how he plans to proceed. But the picture that emerges is not one that identifies Biden clearly as a champion of free spech or otherwise.

Going back to the start of Biden’s career as a senator, the signals were already mixed on issues of free speech. In 1989, Index reported on then Senate Judiciary Committee chair Biden introducing a bill to make it illegal to desecrate a flag. Nan Levinson reported at the time: “Biden’s bill and a similar one introduced in the House are intended to sidestep free speech issues by outlawing actions without mentioning motivation, the part of flag desecration that the Court determined is protected by the First Amendment.” But in his favour, some 13 years later Biden helped propose the creation of a “Radio Free Afghanistan”

In more recent years, there is the way in which the Obama Administration handled whistleblowers. Biden can set an early example with the case of Julian Assange by pardoning him. The question is, will he?

Such an action may have been considered by the Obama administration, but was not pursued. The whistleblower involved in the case, Chelsea Manning, eventually had her sentence commuted by Obama in January 2017.

Assange faces charges under the US Espionage Act, a first for a journalist or publisher. The onus is therefore on Biden to ensure there is no legal precedent stopping a journalist from publishing sensitive information again. Pardoning the WikiLeaks founder would go some way to achieving this.

Rumours of an immediate pardon once Biden takes office have arisen and many believe the election of Biden to be a positive thing for Assange. His lawyer Edward Fitzgerald went as far as telling Associated Press “Much of what we say about the fate which awaits Mr. Assange remains good because it’s about systemic faults in the prisons and his underlying conditions,” he said.

But as yet there has not been any indication either Trump or the president-elect will move to do this and any speculation has shaky foundations. There is a contradiction in that – though Obama may have commuted Manning’s sentence – in 2010, Biden described Assange’s work with former US intelligence analyst Chelsea Manning as “closer to a high-tech terrorist than to the [actions of revealing the] Pentagon Papers.”

“The Obama administration went after other whistleblowers whose cases remain active. Edward Snowden for example. These track records and trends started before President Trump,” said Rebecca Vincent from RSF in an earlier interview with Index.

In fact, eight of the 13 people charged under the Espionage Act since its inception in 1917 were during the eight years of the Obama presidency.

Jeffrey Sterling was convicted and sentenced to three and a half years in prison in 2015 for violations of the Espionage Act. Through correspondence with US journalist James Risen, Sterling brought to light covert plans to frame Iran by providing a flawed design for a component of a nuclear weapon, also known as Operation Merlin.

In an interview with Index, Sterling spoke of the importance of whistleblowers and said: “A vital part of free speech is the ability of citizens to hold those in power accountable by speaking out about wrongdoing and misuse of power.

“Whistleblowers are essential to free speech because their courage exposes what the unfettered power of government would prefer not to be known.

“Without whistleblowers, the wrongdoing and abuses of government will remain hidden to the detriment of the people. Without whistleblowers, free speech can be rendered ineffectual and of no concern to those in power.”

In short, misuse of the Espionage Act stops those working for US intelligence agencies and government offices from speaking out against wrongdoing.

“Targeting whistleblowers with the severe penalties and implications of being prosecuted under the Espionage Act has a chilling effect on anyone who might choose to exercise their free speech by being critical of or exposing the wrongful acts and abuses of government,” Sterling noted. “In my opinion, the Obama presidency did all it could to characterise whistleblowers as anti-patriotic and criminals and offered absolutely no protection.”

“When those who are the subject of a whistleblower’s complaint control the dialogue, there are no whistleblowers, just leakers. The Obama administration set the tone by essentially eliminating the very idea of a whistleblower and instead characterised them as leakers, or criminals.”

The contrast between Obama and Trump’s outward attitudes towards the press, however, is significant. While Trump chose to claim most of the criticism against him as “fake news”, Obama often spoke of the importance of journalism, a free media and free speech, such as after the 2015 attacks on Charlie Hebdo in Paris.

At the same time though the 44th president came under repeated fire for his actions towards media freedom and freedom of information in particular. Access to public information during his presidency was limited. The USA’s Freedom of Information Act allows US citizens, like many across the world, to question local and federal authorities. The Obama administration apparently spent a record $36.2 million in legal costs in the final year alone to preserve its right to turn over redacted information.

A lack of transparency and targeting of those revealing information in the public interest does not cast a positive light on Obama’s then right-hand man.

It is perhaps unfair to negatively predict the future of the Biden presidency and its role of free speech solely on the president he served under as second in command. The role of vice president offers no true indication of support of a particular policy; many doubt the power the role has. John Adams once described the role as “the most insignificant Office that ever the invention of man contrived or his imagination conceived”. It could reasonably be said that whether or not Biden was supportive of Obama’s free speech policy, there would have been little he could have done about it either way.

Yet it is no secret that Obama is a man Biden greatly admires and – while the former Delaware senator did not exercise as much power as some vice presidents – the relationship between the two was famously good. Perhaps a certain level of emulation can be expected.

The Committee to Protect Journalists has put forward a white paper to set out how Biden can go about restoring freedom of speech in the USA. Among their suggestions were calls to “set an example for the world” by ensuring the independence of US government-funded media, appointing a special presidential envoy for press freedom and ensuring previous administrations’ attacks on publishers and whistleblowers were not repeated.

“President Biden should commit to an open and transparent administration that supports Freedom of Information requests, back Justice Department guidelines that protect confidential sources, and pledges never to use the Espionage Act to prosecute journalists or whistleblowers,” they said. “These long-standing concerns of CPJ and the press freedom community were also raised during the Obama administration. “

They said: “President Biden has the opportunity to restore American influence in a critical area.”

“However, this can only be achieved if defence of press freedom is a matter of principle, and not expediency. America must confront its adversaries, but also challenge its friends.”

Adopting such policies would go a long way to allay fears of a Biden presidency that departs from recent ones.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also like to read” category_id=”579″][/vc_column][/vc_row]

Chelsea Manning and the price US whistleblowers pay for revealing secrets

chelsea manning

Although the USA is considered to have relatively generous freedoms of speech and the press protected under the First Amendment to the US Constitution, these freedoms have their limits. Many whistleblowers are not afforded protection in the USA and are subjected to lengthy prison terms after disclosing classified information to the public.

Chelsea Manning’s suicide attempt on 5 July, six years into her 35-year sentence, highlights the severity the USA practices when sentencing whistleblowers. Manning was responsible for the leaks of classified US military information to Wikileaks including videos, incident reports from the Afghanistan and Iraq wars, information on detainees at Guantanamo and thousands of Department of State cables. She was sentenced on 21 August 2013 to 35 years at the maximum-security US Disciplinary Barracks at Fort Leavenworth.

Manning’s case appears to be the rule, not the exception, in the USA.

Jeffrey Sterling

Considered to be a whistleblower by some, Jeffrey Sterling, who worked for the CIA from 1993 to 2002, was charged under the Espionage Act with mishandling national defense information in 2010. Sterling was sentenced to three and a half years in prison for his contributions to New York Times journalist James Risen’s book, State of War: The Secret History of the CIA and the Bush Administration, which detailed the failed CIA Operation Merlin that may have inadvertently aided the Iranian nuclear weapons program. Risen was subpoenaed twice to testify in the case United States v Sterling but refused, resulting in a seven-year legal battle.

On 11 May 2015, at Sterling’s sentencing, judge Leonie Brinkema stated that although she was moved by his professional history, she wanted to send a message to other whistleblowers of the “price to be paid” when revealing government secrets.

Stephen Jin-Woo Kim

Stephen Kim is a former US Department of State contractor who, on 11 June 2009, spoke to Fox News reporter James Rosen about North Korean plans for a nuclear bomb test. Kim allegedly sought Rosen out after becoming frustrated that there was little being done in the Department of State in response to the threats of nuclear tests in North Korea, tests that were ultimately carried out. Fox News published Rosen’s article, North Korea Intends to Match U.N. Resolution With New Nuclear Test, which resulted in an FBI investigation. Kim subsequently pleaded guilty to a single felony count of unauthorised disclosure of national defense information and was sentenced to 13 months in prison on 7 February 2014.

John Kiriakou

John Kiriakou, a former CIA officer, was charged with disclosing information to journalists on several occasions, including revealing the use of torture on Abu Zubaydah and connecting a covert operative to a specific undercover operation. Kiriakou accepted a plea bargain that spared the journalists he had spoken with from having to testify by pleading guilty to one count of violating the Intelligence Identities Protection Act.

On 28 February 2013, Kiriakou began serving his 30-month sentence. He has stated that his case was more about punishment for exposing torture than leaking information and that he would “do it all over again”.

Edward Snowden

Although the most famous whistleblower on this list has not been tried and sentenced, Edward Snowden could face up to 30 years in prison for his multiple felony charges under the World War I-era Espionage Act. Snowden was charged on 14 June 2013 for his role in leaking classified information from the National Security Agency, notably a global surveillance initiative.

Snowden has expressed a willingness to go to prison for his actions but refuses to be used as a “deterrent to people trying to do the right thing in difficult situations” as so many whistleblowers often are.

Barrett Brown

The political climate in the US has become so hostile towards leaks that even journalists can face repercussions for their involvement with whistleblowers. American journalist and essayist Barrett Brown’s case became well-known after he was arrested for copying and pasting a hyperlink to millions of leaked emails from Stratfor, an American private intelligence company, from one chat room to another. The leak itself had been orchestrated by Jeremy Hammond, who is serving 10 years in prison for his participation, and did not involve Brown. Brown faced a sentence of up to 102 years in prison, once again for sharing a hyperlink, before the 12 counts of aggravated identity theft and trafficking in stolen data charges were dropped in 2013.

Although the dismissal of these charges was heralded as a victory for press freedom, Brown was still convicted of two counts of being an accessory after the fact and obstructing the execution of a search warrant. On 22 January 2015, Brown was sentenced to 63 months in prison and ordered to pay $890,250 in fines and restitution to Stratfor.