Bradley Manning and the real war on leaks

By Ari Melber
June 3, 2013

Army Private First Class Bradley Manning in handcuffs for his motion hearing in Fort Meade in Maryland June 6, 2012. REUTERS/Jose Luis Magana

The most significant dispute over leaks this week is not in Washington, where Attorney General Eric Holder is under fire for the searches of journalists’ files. It’s 40 miles north in Fort Meade, Maryland, where the trial of Army Private First Class Bradley Manning begins Monday.

Manning is facing a court-martial, or military prosecution, for sending 700,000 government documents to Wikileaks.  It was the “biggest leak of classified information in U.S. history,” as Reuters reported, and the U.S. government believes that makes Manning an enemy of the state.

In an unusual move, prosecutors are charging Manning under the Espionage Act, which targets conduct specifically aimed at injuring the United States, and under the military code barring “aiding the enemy,” a treasonous offense that carries a potential death penalty.

If prosecutors win, Manning will face the most severe punishment for the dissemination of information to publishers in American history. That could be a hollow victory for the United States, however, by chilling press freedoms and government accountability in the long run.

The leaks are not the hard part of this case.

Unauthorized leaks are illegal under both standard criminal law and Army regulations.  In earlier court proceedings, Manning already admitted to leaking, saying his goal was to spark a debate over government policy. He offered to plead guilty to several charges, like misusing classified material, which carry up to 20 years of jail time. But that wasn’t enough for the Obama administration, which gets to the hard part – how to interpret what the leaks mean.

The government thinks they mean treason. So prosecutors are insisting that the single act of leaking information to a publisher is equivalent to leaking information to an enemy, like al Qaeda or North Korea. That is why Manning faces prosecution for a capital crime – the government wants to treat him more like a traitor than a leaker.

I emphasize the word “publisher” for two reasons.

First, history shows we should be wary any time our government announces that working with a news publisher, to criticize the government, is equivalent to working with an operational enemy.

It is nasty politics and almost always bad law. In fact, it is so far-fetched that there are no cases in the modern era treating media leaks as treason.  As law professor Yochai Benkler documented, Manning’s prosecutors concede that in 150 years, “no one has been charged with aiding the enemy simply for leaking information to the press.”

You don’t need to support what Manning did, of course, to see that his crimes are different than passing codes to North Korea, or coordinating with terrorists to kill Americans.

Second, the government’s approach to publishers, as a legal theory, makes no distinction between working with Wikileaks versus the Wall Street Journal.  That’s not up for debate – prosecutors admitted as much in January, when questioned by a military judge in the case. So while many people (understandably) trust Wikileaks less than established news outlets, this case is not limited to Wikileaks. As a precedent, it’s an expansive prosecution that could create risks for all publishers.

That brings us back to the other “war on leaks” in Washington.

The Justice Department’s leak investigations have drawn a range of criticism, some politically motivated. Yet the questions raised by administration’s aggressive legal theory against Manning – even leaving aside that the United States imprisoned him for 845 days before trial, about seven times longer than the maximum under military rules – look even worse after the latest disclosures in the other leak cases.

A few months ago, it may have sounded like a leap to say the case against Manning risks criminalizing the core work of journalists. Now, we know the Justice Department says so directly, fingering Fox reporter James Rosen as an “abettor” or “co-conspirator” to criminal leaks in recent court papers.

Desperate charges may stem from desperate times.  The administration has clearly struggled to identify the leakers in the Fox and A.P. investigations, and it struggled to exert much influence on leaks when Wikileaks’ released the State Department cables. While traditional news publishers have collaborated with the government on disclosures, even altering and delaying articles, the government found that with Wikileaks, there was no one sitting on the other side of the table.

That unusually powerful publishing model has been met with a ferocious response – disabling Wikileaks’ servers and payment processing where possible, ratcheting up investigations and potential charges against traditional journalists, and apparently aiming to make a severe example out of Manning, who could become the first American effectively convicted of information-terrorism.

The courts will decide if all this is legal. But as the evidence piles up, it is increasingly clear that the administration is overdoing it.

This is not about advocating blanket amnesty for national security leaks. But the government is losing sight of its constitutional boundaries when it treats reporting as criminal and leaking as treason.

PHOTOT (Insert A): Attorney General Eric Holder, in Washington, May 28, 2013. REUTERS/Kevin Lamarque

PHOTO (Insert B): Supporters of U.S. Army Private First Class Bradley Manning protest during his scheduled motion hearing, outside the gates of Fort Meade, Maryland, Nov. 27, 2012. REUTERS/Jose Luis Magana





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