[governance] Tangential / The Dangerous Logic of the Bradley Manning Case,,BY YOCHAI BENKLER

[Riaz K Tayob]

    *The Dangerous Logic of the Bradley Manning Case*

BY YOCHAI BENKLER <http://www.newrepublic.com/authors/yochai-benkler>


After 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.

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 /New York Times/?

The prosecutor's answer was simple: "Yes Ma'am 
<http://www.nytimes.com/2013/01/10/us/new-evidence-to-be-introduced-against-bradley-manning.html>."

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 /New York Times/. 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.

    The charge of "aiding the enemy" is vague. But it carries the death
    penalty---and could apply to civilians as well as soldiers.

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.

A 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.

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 "one of the most significant oversight efforts in 
the history of the United States Senate 
<http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=46c0b685-a392-4400-a9a3-5e058d29e635>." 
But they are unavailable to the public.

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.

*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 **statement in court 
yesterday 
<http://www.wired.com/threatlevel/2013/02/bradley-manning/>**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.* 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.

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.*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?"*

    *If the Viet Cong photocopied the Pentagon Papers, could Daniel
    Ellsberg have been prosecuted for aiding the enemy? *

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 video from 
<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 
<http://www.collateralmurder.com/>injured, wounding two children who 
were in the van <http://www.collateralmurder.com/>. 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 the 
military had substantially understated the scale of civilian 
<http://www.nytimes.com/2010/10/23/world/middleeast/23casualties.html>casualties 
in Iraq 
<http://www.nytimes.com/2010/10/23/world/middleeast/23casualties.html>; 
and that U.S. forces were silently complicit in abuses by allied Iraqi 
government forces 
<http://www.guardian.co.uk/world/2010/oct/22/iraq-detainee-abuse-torture-saddam>; 
it uncovered repeated abuses by civilian contractors 
<http://www.nytimes.com/2010/10/24/world/middleeast/24contractors.html?pagewanted=all> 
to the military. The war logs have become the most important spin-free 
source of historical evidence about the Iraq and Afghanistan wars.

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 
/feels/ less like "the press" than the /New York Times/. 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.

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, /Index of 
Censorship/, in 2008.

No one would have thought at the time that WikiLeaks had the gravitas of 
the /Times/. 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 /ProPublica/ or the /Bureau of Investigative 
Journalism/ than to /Huffington Post /or /the Daily Beast/.*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 **/New York Times /**or the **/Guardian /**no 
less than to **/ProPublica, the Daily Beast/**, or WikiLeaks**/. /**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.*

The 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 /ProPublica /or the /New 
York Times,/ knowing that Al Qaeda can read these news outlets online, 
is indeed enough to constitute the capital offense of "aiding the enemy."

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---/directly or 
indirectly---/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. *Under this theory, there is 
no need to show that the defendant wanted or intended to aid the enemy.* 
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 /New York Times'./ Hence the 
prosecutor's "Yes Ma'am."

*This theory is unprecedented in modern American history. *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.

In fact, neither side disagrees with this central critique:*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. *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 /Brown vs. Board of Education/ there was also 
a time when prosecutors could enforce the segregation laws of Jim Crow. 
Those times have passed. *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.*

*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.*

*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*---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 /Hamdan/ implies that 
Section 104 may in fact apply to civilians and be tried by military 
commissions. But this is not completely settled. *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.*

The past few years have seen a lot of attention to the Obama 
Administration's war on whistleblowing 
<http://www.theatlanticwire.com/politics/2011/05/obamas-war-whistle-blowers/38106/>. 
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 to 
jail Eugene V. Debs 
<http://query.nytimes.com/gst/abstract.html?res=9B0DE2D71539E133A25757C2A9649D946095D6CF>and 
other political 
<http://query.nytimes.com/gst/abstract.html?res=9B0DE2D71539E133A25757C2A9649D946095D6CF>activists 
<http://query.nytimes.com/gst/abstract.html?res=9B0DE2D71539E133A25757C2A9649D946095D6CF>. 
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 /New York Times/ called 
an "ad hoc Official Secrets Act 
<http://www.nytimes.com/2012/02/27/business/media/white-house-uses-espionage-act-to-pursue-leak-cases-media-equation.html>."

*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*. 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: *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?*

*What a coup for Al Qaeda, to have maimed our constitutional spirit to 
the point where we might become that nation.*

/Yochai Benkler is a professor at Harvard Law School and co-Director of 
the Berkman Center for Internet and Society at Harvard./

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