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<h2> <strong>The Dangerous Logic of the Bradley Manning Case</strong>
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<p class="byline"> BY <span class="authors"><a
href="http://www.newrepublic.com/authors/yochai-benkler">YOCHAI
BENKLER</a></span> </p>
<div id="controls"><br>
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<div class="intro"> </div>
<p><span class="dropcap">A</span>fter 1,000 days in pretrial
detention, Private Bradley Manning yesterday offered a modified
guilty plea for passing classified materials to WikiLeaks. But his
case is far from over—not for Manning, and not for the rest of the
country. To understand what is still at stake, consider an
exchange that took place in a military courtroom in Maryland in
January.</p>
<p>The judge, Col. Denise Lind, asked the prosecutors a brief but
revealing question: Would you have pressed the same charges if
Manning had given the documents not to WikiLeaks but directly to
the <em>New York Times</em>?</p>
<p>The prosecutor’s answer was simple: “<a
href="http://www.nytimes.com/2013/01/10/us/new-evidence-to-be-introduced-against-bradley-manning.html">Yes
Ma'am</a>.”</p>
<p>The question was crisp and meaningful, not courtroom banter. The
answer, in turn, was dead serious. I should know. I was the expert
witness whose prospective testimony they were debating. The judge
will apparently allow my testimony, so if the prosecution decides
to pursue the more serious charges to which Manning did not plead
guilty, I will explain at trial why someone in Manning's shoes in
2010 would have thought of WikiLeaks as a small, hard-hitting, new
media journalism outfit—a journalistic “Little Engine that Could”
that, for purposes of press freedom, was no different from the <em>New
York Times</em>. The prosecutor's “Yes Ma'am,” essentially
conceded that core point of my testimony in order to keep it out
of the trial. That's not a concession any lawyer makes lightly.</p>
<blockquote class="pull-left">
<p>The charge of "aiding the enemy" is vague. But it carries the
death penalty—and could apply to civilians as well as soldiers.</p>
</blockquote>
<p>But that “Yes Ma'am” does something else: It makes the Manning
prosecution a clear and present danger to journalism in the
national security arena. The guilty plea Manning offered could
subject him to twenty years in prison—more than enough to deter
future whistleblowers. But the prosecutors seem bent on using this
case to push a novel and aggressive interpretation of the law that
would arm the government with a much bigger stick to prosecute
vaguely-defined national security leaks, a big stick that could
threaten not just members of the military, but civilians too.</p>
<p> </p>
<p><span class="dropcap">A</span> country's constitutional culture
is made up of the stories we tell each other about the kind of
nation we are. When we tell ourselves how strong our commitment to
free speech is, we grit our teeth and tell of Nazis marching
through Skokie. And when we think of how much we value our
watchdog press, we tell the story of Daniel Ellsberg. Decades
later, we sometimes forget that Ellsberg was prosecuted, smeared,
and harassed. Instead, we express pride in a man's willingness to
brave the odds, a newspaper’s willingness to take the risk of
publishing, and a Supreme Court’s ability to tell an overbearing
White House that no, you cannot shut up your opponents.</p>
<p>Whistleblowers play a critical constitutional role in our system
of government, particularly in the area of national security. And
they do so at great personal cost. The executive branch has
enormous powers over national security and the exercise of that
power is not fully transparent. Judicial doctrines like the “state
secrets” doctrine allow an administration to limit judicial
oversight. Congress’ oversight committees have also tended to
leave the executive relatively free of constraints. Because the
materials they see are classified, there remains little public
oversight. Consider the Senate Intelligence Committee's report on
the interrogation torture practices during the immediate post 9/11
years: Its six thousand pages, according to Senator Dianne
Feinstein, are “<a
href="http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=46c0b685-a392-4400-a9a3-5e058d29e635">one
of the most significant oversight efforts in the history of the
United States Senate</a>.” But they are unavailable to the
public.</p>
<p>Freedom of the press is anchored in our constitution because it
reflects our fundamental belief that no institution can be its own
watchdog. The government is full of well-intentioned and quite
powerful inspectors general and similar internal accountability
mechanisms. But like all big organizations, the national security
branches of government include some people who aren't purely
selfless public servants. Secrecy is necessary and justified in
many cases. But as hard-earned experience has shown us time and
again, it can be—and often is—used to cover up failure, avarice,
or actions that simply will not survive that best of
disinfectants, sunlight.</p>
<p><b>That’s where whistleblowers come in. They offer a pressure
valve, constrained by the personal risk whistleblowers take, and
fueled by whatever moral courage they can muster. Manning's </b><b><a
href="http://www.wired.com/threatlevel/2013/02/bradley-manning/">statement
in court yesterday</a></b><b> showed that, at least in his
motives, he was part of that long-respected tradition. But
that’s also where the Manning prosecution comes in, too. The
prosecution case seems designed, quite simply, to terrorize
future national security whistleblowers.</b> The charges against
Manning are different from those that have been brought against
other whistleblowers. “Aiding the enemy” is punishable by death.
And although the prosecutors in this case are not seeking the
death penalty against Manning, the precedent they are seeking to
establish does not depend on the penalty. It establishes the act
as a capital offense, regardless of whether prosecutors in their
discretion decide to seek the death penalty in any particular
case.</p>
<p>Hard cases, lawyers have long known, make bad law. The unusual
nature of Manning's case has led some to argue that his leaks are
different than those we now celebrate as a bedrock component of
accountability journalism: Daniel Ellsberg leaked specific
documents that showed massive public deception in the prosecution
of the Vietnam War. Deep Throat leaked specific information about
presidential corruption during the Watergate investigation.
Manning, though, leaked hundreds of thousands of documents, many
of which were humdrum affairs; perhaps, some have argued, the
sheer scope raises the risks. But in the three years since the
leaks began, there has still been no public evidence that they in
fact caused significant damage.<b> The prosecutors say they will
introduce evidence of harm in secret sessions; one of these bits
of evidence is reportedly going to be that they will show that
several of the files published were found on Osama Bin Laden's
computer. Does that mean that if the Viet Cong had made copies
of the Pentagon Papers, Ellsberg would have been guilty of
“aiding the enemy?”</b></p>
<blockquote class="pull-left">
<p><b>If the Viet Cong photocopied the Pentagon Papers, could
Daniel Ellsberg have been prosecuted for aiding the enemy? </b></p>
</blockquote>
<p>It is also important to understand that although the number of
leaked items was vast, it was not gratuitously so; some of the
most important disclosures came precisely from sifting through the
large number of items. Certainly, some of the important
revelations from the leaks could have been achieved through a
single “smoking gun” document, such as the chilling operational <a
href="http://www.collateralmurder.com/">video from </a><a
href="http://www.collateralmurder.com/">a U.S. helicopter attack
that killed two Reuters' cameramen, and shot at a van trying to
offer relief to the </a><a
href="http://www.collateralmurder.com/">injured, wounding two
children who were in the van</a>. But many of the most important
insights only arise from careful analysis of the small pieces of
evidence. This type of accountability analysis showed that <a
href="http://www.nytimes.com/2010/10/23/world/middleeast/23casualties.html">the
military had substantially understated the scale of civilian </a><a
href="http://www.nytimes.com/2010/10/23/world/middleeast/23casualties.html">casualties
in Iraq</a>; and that <a
href="http://www.guardian.co.uk/world/2010/oct/22/iraq-detainee-abuse-torture-saddam">U.S.
forces were silently complicit in abuses by allied Iraqi
government forces</a>; it uncovered repeated <a
href="http://www.nytimes.com/2010/10/24/world/middleeast/24contractors.html?pagewanted=all">abuses
by civilian contractors</a> to the military. The war logs have
become the most important spin-free source of historical evidence
about the Iraq and Afghanistan wars.</p>
<p>The reputation that WikiLeaks has been given by most media
outlets over the past two and a half years, though, obscures much
of this—it just <em>feels</em> less like “the press” than the <em>New
York Times</em>. This is actually the point on which I am
expected to testify at the trial, based on research I did over the
months following the first WikiLeaks disclosure in April 2010.
When you read the hundreds of news stories and other materials
published about WikiLeaks before early 2010, what you see is a
young, exciting new media organization. The darker stories about
Julian Assange and the dangers that the site poses developed only
in the latter half of 2010, as the steady release of leaks about
the U.S. triggered ever-more hyperbolic denouncements from the
Administration (such as Joe Biden's calling Assange a “high-tech
terrorist”), and as relations between Assange and his traditional
media partners soured.</p>
<p class="Textbody">In early 2010, when Manning did his leaking,
none of that had happened yet. WikiLeaks was still a new media
phenom, an outfit originally known for releasing things like a
Somali rebel leader’s decision to assassinate government officials
in Somalia, or a major story exposing corruption in the government
of Daniel Arap Moi in Kenya. Over the years WikiLeaks also exposed
documents that shined a light on U.S. government practices, such
as operating procedures in Camp Delta in Guantanamo or a draft of
a secretly negotiated, highly controversial trade treaty called
the Anti-Counterfeiting Trade Agreement. But that was not the
primary focus. To name but a few examples, it published documents
that sought to expose a Swiss Bank’s use of Cayman accounts to
help rich clients avoid paying taxes, oil related corruption in
Peru, banking abuses in Iceland, pharmaceutical company influence
peddling at the World Health Organization, and extra-judicial
killings in Kenya. For its work, WikiLeaks won Amnesty
International's New Media award in 2009 and the Freedom of
Expression Award from the British magazine, <em>Index of
Censorship</em>, in 2008.</p>
<p>No one would have thought at the time that WikiLeaks had the
gravitas of the <em>Times</em>. But if you roll back to the
relevant time frame, it is clear that any reasonable person would
have seen WikiLeaks as being in the same universe as we today
think of the range of new media organizations in the networked
investigative journalism ecosystem, closer probably to <em>ProPublica</em>
or the <em>Bureau of Investigative Journalism</em> than to <em>Huffington
Post </em>or <em>the Daily Beast</em>.<b> If leaking
classified materials to a public media outlet can lead to
prosecution for aiding the enemy, then it has to be under a rule
that judges can apply evenhandedly to the </b><b><em>New York
Times </em></b><b>or the </b><b><em>Guardian </em></b><b>no
less than to </b><b><em>ProPublica, the Daily Beast</em></b><b>,
or WikiLeaks</b><b><em>. </em></b><b>No court will welcome a
rule where culpability for a capital offense like aiding the
enemy depends on the judge's evaluation of the quality of the
editorial practices, good faith, or loyalty of the media
organization to which the information was leaked. Nor could a
court develop such a rule without severely impinging on the
freedom of the press. The implications of Manning’s case go well
beyond Wikileaks, to the very heart of accountability
journalism in a networked age.</b></p>
<p> </p>
<p><span class="dropcap">T</span>he prosecution will likely not
accept Manning's guilty plea to lesser offenses as the final word.
When the case goes to trial in June, they will try to prove that
Manning is guilty of a raft of more serious offenses. Most
aggressive and novel among these harsher offenses is the charge
that by giving classified materials to WikiLeaks Manning was
guilty of “aiding the enemy.” That’s when the judge will have to
decide whether handing over classified materials to <em>ProPublica
</em>or the <em>New York Times,</em> knowing that Al Qaeda can
read these news outlets online, is indeed enough to constitute the
capital offense of “aiding the enemy.”</p>
<p>Aiding the enemy is a broad and vague offense. In the past, it
was used in hard-core cases where somebody handed over information
about troop movements directly to someone the collaborator
believed to be “the enemy,” to American POWs collaborating with
North Korean captors, or to a German American citizen who was part
of a German sabotage team during WWII. But the language of the
statute is broad. It prohibits not only actually aiding the enemy,
giving intelligence, or protecting the enemy, but also the broader
crime of communicating—<em>directly or indirectly—</em>with the
enemy without authorization. That's the prosecution's theory here:
Manning knew that the materials would be made public, and he knew
that Al Qaeda or its affiliates could read the publications in
which the materials would be published. Therefore, the prosecution
argues, by giving the materials to WikiLeaks, Manning was
“indirectly” communicating with the enemy. <b>Under this theory,
there is no need to show that the defendant wanted or intended
to aid the enemy.</b> The prosecution must show only that he
communicated the potentially harmful information, knowing that the
enemy could read the publications to which he leaked the
materials. This would be true whether Al Qaeda searched the
WikiLeaks database or the <em>New York Times'.</em> Hence the
prosecutor's “Yes Ma'am.”</p>
<p><b>This theory is unprecedented in modern American history. </b>The
prosecution claims that there is, in fact precedent in Civil War
cases, including one from 1863 where a Union officer gave a
newspaper in occupied Alexandria rosters of Union units, and was
convicted of aiding the enemy and sentenced to three months. But
Manning’s defense argues that the Civil War cases involved
publishing coded messages in newspapers and personals, not leaking
for reporting to the public at large. The other major source that
the prosecution uses is a 1920 military law treatise. Even if the
prosecutors are correct in their interpretations of these two
sources, which is far from obvious, the fact that they need to
rely on these old and obscure sources underscores how extreme
their position is in the twenty-first century.</p>
<p>In fact, neither side disagrees with this central critique:<b>
That for 150 years, well before the rise of the modern First
Amendment, the invention of muckraking journalism, or the modern
development of the watchdog function of the press in democratic
society, no one has been charged with aiding the enemy simply
for leaking information to the press for general publication. </b>Perhaps
it was possible to bring such a charge before the first amendment
developed as it did in the past hundred years, before the Pentagon
Papers story had entered our national legend. But before Rosa
Parks and <em>Brown vs. Board of Education</em> there was also a
time when prosecutors could enforce the segregation laws of Jim
Crow. Those times have passed. <b>Read in the context of American
constitutional history and the practice of at least a century
and a half (if not more) of “aiding the enemy” prosecutions, we
should hope and expect that the court will in fact reject the
prosecution's novel and aggressive interpretation of that crime.</b></p>
<p><b>But as long as the charge remains live and the case undecided,
the risk that a court will accept this expansive and destructive
interpretation is very real.</b></p>
<p><b>That’s especially true when you consider that “aiding the
enemy” could be applied to civilians. Most provisions of the
Uniform Code of Military Justice apply only to military
personnel. But Section 104, the “aiding the enemy” section,
applies simply to “any person.” To some extent, this makes sense</b>—a
German-American civilian in WWII could be tried by military
commission for aiding German saboteurs under this provision. There
has been some back and forth in military legal handbooks, cases,
and commentary about whether and to what extent Section 104 in
fact applies to civilians. Most recently, Justice Stevens' opinion
in the Supreme Court case of <em>Hamdan</em> implies that Section
104 may in fact apply to civilians and be tried by military
commissions. But this is not completely settled. <b>Because the
authorities are unclear, any competent lawyer today would have
to tell a prospective civilian whistleblower that she may well
be prosecuted for the capital offense of aiding the enemy just
for leaking to the press.</b></p>
<p>The past few years have seen a lot of attention to the Obama
Administration's <a
href="http://www.theatlanticwire.com/politics/2011/05/obamas-war-whistle-blowers/38106/">war
on whistleblowing</a>. In the first move, the Administration
revived the World War I Espionage Act, an Act whose infamous
origins included a 10-year prison term for a movie director who
made a movie that showed British soldiers killing women and
children during the Revolutionary War and was therefore thought to
undermine our wartime alliance with Britain, and was used <a
href="http://query.nytimes.com/gst/abstract.html?res=9B0DE2D71539E133A25757C2A9649D946095D6CF">to
jail Eugene V. Debs </a><a
href="http://query.nytimes.com/gst/abstract.html?res=9B0DE2D71539E133A25757C2A9649D946095D6CF">and
other political </a><a
href="http://query.nytimes.com/gst/abstract.html?res=9B0DE2D71539E133A25757C2A9649D946095D6CF">activists</a>.
Barack Obama’s Department of Justice has brought more Espionage
Act prosecutions for leaks to the press than all prior
administrations combined since then, using the law as what the <em>New
York Times</em> called an “<a
href="http://www.nytimes.com/2012/02/27/business/media/white-house-uses-espionage-act-to-pursue-leak-cases-media-equation.html">ad
hoc Official Secrets Act</a>.”</p>
<p><b>If Bradley Manning is convicted of aiding the enemy, the
introduction of a capital offense into the mix would
dramatically elevate the threat to whistleblowers. The
consequences for the ability of the press to perform its
critical watchdog function in the national security arena will
be dire. And then there is the principle of the thing</b>.
However technically defensible on the language of the statute, and
however well-intentioned the individual prosecutors in this case
may be, we have to look at ourselves in the mirror of this case
and ask: <b>Are we the America of Japanese Internment and Joseph
McCarthy, or are we the America of Ida Tarbell and the Pentagon
Papers? What kind of country makes communicating with the press
for publication to the American public a death-eligible offense?</b></p>
<p><b>What a coup for Al Qaeda, to have maimed our constitutional
spirit to the point where we might become that nation.</b></p>
<p><em>Yochai Benkler is a professor at Harvard Law School and
co-Director of the Berkman Center for Internet and Society at
Harvard.</em></p>
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