A federal tribunal has upheld Ottawa’s decision to keep Chelsea Manning from entering Canada due to her conviction in the United States for revealing to WikiLeaks sensitive government documents that exposed American troops’ conduct during the “war on terror.”
The Immigration and Refugee Board decision is drawing criticism from experts who say Canada’s rules regarding individuals deemed inadmissible on criminal grounds were not designed to keep people such as Manning out of the country, and that the system, as it is, seems ill-equipped to acknowledge and fairly deal with whistleblowers.
Although the board did find disclosing documents to WikiLeaks would not constitute an offence in Canada, it said the offence Manning was convicted of under the U.S. Espionage Act would constitute “unauthorized use of computer” under the Canadian Criminal Code, an indictable offence liable for up to 10 years in jail.
A visitor to Canada can be barred from entry for security reasons such as espionage, attempt to overthrow a government, violence or terrorism. A person belonging to a group involved in war crimes or organized crime, as well those with criminal records including drug- and alcohol-related offences are also inadmissible. Such individuals are referred to the board for adjudication.
“Ms. Manning downloaded an unauthorized program onto her work computer and retrieved hundreds of thousands of Department of State cables for the purpose of transmitting them to WikiLeaks … This can be qualified as an unauthorized use for a prohibited purpose,” adjudicator Marisa Musto wrote in a 59-page decision released Friday.
“The fact that she could access the information in the normal course of her work does not negate the fact that, in the circumstances related to this case, she was not accessing the information for work purposes but for the purposes of sending it to WikiLeaks.”
Manning, a former private in the U.S. army, was sentenced to 35 years in prison in 2013 by court-martial under the U.S. Espionage Act for revealing thousands of U.S. government documents, including an infamous video depicting brutal U.S. air attacks against Iraqi civilians.
Her revelation of the documents to WikiLeaks prompted some to brand her a traitor. Others lauded her for an act of conscience that exposed the conduct of American forces on the ground, which contributed to changing the public discourse about the U.S.-led wars and counterterrorism measures.
While U.S. president, Barack Obama commuted her sentence “in the interests of justice.” She was released in 2017.
In September of that same year, Manning, who is now a network security consultant and advocate, tried to enter Canada at the St-Bernard-de-Lacolle port of entry to visit friends in Montreal and organize a series of speaking engagements here. She was turned away for her record of “serious criminality.”
Queen’s University immigration law professor Sharry Aiken said she’s not surprised by the tribunal decision, given the restrictive inadmissibility provisions in the law.
“Chelsea Manning is not somebody that the criminal inadmissibility procedures were designed for. People may disagree about the acts that she undertook and the motivations for those acts. But there’s no question that the United States was engaged in egregious violations of international humanitarian law in the way that it conducted its ‘war on terror,’” said Aiken, who is not involved in Manning’s case.
“Chelsea Manning’s motivations as a whistleblower have been clearly documented.”
In 2021, after a long delay, the Canadian government referred Manning to an admissibility hearing before the refugee board. A two-day hearing was held in October, where her lawyers argued that Canadian statutes had provisions for whistleblower protection that their client is entitled to, and her action was justified due to public interest.
However, Musto said what Manning released was essentially a “data dump,” through which hundreds of thousands of cables, pertaining to numerous seemingly unrelated subjects of varied importance, were indiscriminately copied and transferred.
“Unlike the war logs which, despite being voluminous, were directly related to the activity of the U.S. in the wars in Afghanistan and Iraq, it has not been demonstrated that all or even the bulk of the diplomatic cables Ms. Manning accessed and downloaded or that she was convicted of disclosing were in relation to the war on terror or to serious abuses and violations she felt it was necessary to expose,” Musto said.
“Although the person concerned argues that her conduct was not dishonest because its purpose was to reveal gross violations of international law and serious abuses, the reality is that the evidence demonstrates that she did not select the cables based on their subject matter or content.”
Musto said 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.
“Although Ms. Manning stated she believed the release of the cables would not damage the U.S. beyond causing embarrassment to the Department of State, the cables were obviously restricted to internal use and considering the often delicate nature of diplomatic relations,” wrote Musto.
“It is not unreasonable to think that the publication of some of those cables may have done more harm than good.”
Aiken said Canada’s inadmissibility standards are flawed and reforms are long overdue to allow a more holistic assessment of an individual’s circumstances. In Manning’s case, for example, humanitarian factors should have been taken into account in the deliberation of the decision, she contended.
“We are using immigration laws to bar access to the country. It really highlights the extent to which the mantle of criminalization prevails in immigration,” she noted.
In a statement, Manning’s lawyers, Joshua Blum and Lex Gill, said their client intends to challenge the tribunal decision before the Federal Court in part on the basis that the provision under the unauthorized use of computer in the Criminal Code is overbroad and criminalizes whistleblowing.
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