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Benkler writes: "Thursday, Colonel Denise Lind, the judge in the Bradley Manning court martial, refused to dismiss the 'aiding the enemy' charge.... The decision will cast a long shadow on national security journalists and their sources."

Bradley Manning is escorted from the courthouse to a vehicle on July 15th, 2013, at Fort Meade. (photo: Scott Galindez/RSN)
Bradley Manning is escorted from the courthouse to a vehicle on July 15th, 2013, at Fort Meade. (photo: Scott Galindez/RSN)


Manning 'Aiding the Enemy' Charge Is a Threat to Journalism

By Yochai Benkler, Guardian UK

20 July 13

 

RSN Special Coverage: Trial of Bradley Manning

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Without an informed and free press, there cannot be an enlightened people. That's what this trial is really about.

hursday, Colonel Denise Lind, the judge in the Bradley Manning court martial, refused to dismiss the "aiding the enemy" charge. The decision is preliminary, and the judge could still moderate its effect if she finds Manning not guilty. But even if she ultimately acquits Manning, the decision will cast a long shadow on national security journalists and their sources.

First, this case is about national security journalism, not WikiLeaks. At Monday's argument in preparation for Thursday's ruling, the judge asked the prosecution to confirm: does it make any difference if it's WikiLeaks or any other news organization: New York Times, Washington Post, or Wall Street Journal? The prosecution answered: "No, it would not. It would not potentially make a difference."

Second, the decision establishes a chilling precedent: leaking classified documents to the these newspapers can by itself be legally sufficient to constitute the offense of "aiding the enemy", if the leaker was sophisticated enough about intelligence and how the enemy uses the internet.

Thursday's decision was preliminary and made under a standard that favors the prosecution's interpretation of the facts. The judge must still make that ultimate decision on guilt based on all the evidence, including the defense, under the strict "beyond a reasonable doubt" standard.

Although the decision is preliminary, it is critical as a matter of law because it accepts the prosecution's extreme theory as legally sufficient. The prosecution's case is that by leaking materials to the press, the source of classified materials is "communicating with the enemy" indirectly. The source gives materials to the journalist; the journalist publishes; the enemy reads the publication and, presto, the source is guilty of the offense of "aiding the enemy". Manning is facing life imprisonment without parole for this offense.

The judge earlier held that "aiding the enemy" required that the leaker have "actual knowledge" that by handing materials over to a newspaper, he or she is giving it to "the enemy"; it is not enough that the source "should have known" that the enemy would access the materials. The critical question for Thursday's holding was what evidence is enough, as a matter of law, to prove "actual knowledge".

On Monday, the prosecution argued its case based on the thinnest of circumstantial evidence. It began by saying that Manning was "a trained intel analyst", not "an infantryman or a truck driver". The judge challenged the prosecutor as to "what is the government's specific information ... that by that publication, that al-Qaida and al-Qaida in the Arabian Peninsula would access it"? The prosecution's answer was "[Manning] was trained specifically, that al-Qaida used the internet to get this information, that the enemy was looking for this specific type of information."

The judge then sought further clarification:

You are basically focusing on Pfc Manning's individual circumstances and training and experience. And that might distinguish him from someone else in an Article 104 setting who basically had no knowledge of intelligence.

And the prosecutor's response was, "That is absolutely true."

By dismissing the defense's motion, the judge effectively accepted that, as a matter of law, evidence that the leaker was trained in intelligence and received training on the fact that that enemy uses the internet to collect information about the United States is a legally sufficient basis for conviction.

Significant leaks on matters of national defense are not generally going to come from army truck drivers. Daniel Ellsberg was a military analyst at RAND. Thomas Drake was an NSA senior executive. Stephen Kim was a senior adviser on intelligence in the State Department. Jeffrey Sterling was a CIA officer. John Kiriakou was a CIA officer. Bradley Manning was a private first class in army intelligence about two years out from basic training. We can disagree about who among these is more or less worthy of respect or derision. But after Thursday's hearing, they all fall on the wrong side of the line that the judge endorsed.

Leak-based journalism is not the be-all-and-end-all of journalism. But ever since the Pentagon Papers, it has been a fraught but critical part of our constitutional checks in national defense. Nothing makes this clearer than the emerging bipartisan coalition of legislators seeking a basic reassessment of NSA surveillance and Fisa oversight following Edward Snowden's leaks.

National defense is special in both the need for, and dangers of, secrecy. As Justice Stewart wrote in the Pentagon Papers case, the press is particularly important in national defense because it is there that the executive is most powerful, and the other branches weakest and most deferential:

In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry - in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the first amendment. For without an informed and free press, there cannot be an enlightened people.


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+36 # Sweet Pea 2013-07-20 14:13
Many years ago,my grandmother often said, "Be sure your sins will find you out". It makes one wonder what our government is doing that they don't want us to know about?
 
 
+38 # RGV.REG 2013-07-20 16:50
It seems that our "government" is the enemy these days. All Manning did was expose them.
 
 
+51 # jabo1941 2013-07-20 15:46
Here is the crux of the matter:

For without an informed and free press, there cannot be an enlightened people.

The mainstream media has swallowed the Kool-Aid and no longer serve as the fourth estate. Real journalism has gone underground and into the ether. Our current government believes it is OK for them to know everything about us but we cannot know anything about them. That is the jist of this secrecy thing. The Russians and East Germans had secret governments and now we have one too.
 
 
+29 # tedrey 2013-07-20 15:47
Once again, can we cut through to the core of this court-martial? It is an attempt to cover up CRIMINAL activity (war crimes and high misdemeanors) by prosecuting the very man who brought them to light. An organization concealing law-breakers, mass-murderers, and profiteers has no standing to hold legal tribunals until it has proved that its own house is clean. A decent military would have put its collective feet down when sent to Iraq and said "NO!" Instead it betrayed every code of honor it should have held dear, and the national defense has been immeasurably weakened thereby. The continuation of this faux court offends every sense of justice, and reeks in the nostrils of the world.

I admit that I am a bit pissed off by all this. Other than that, I have nothing to complain about it.
 
 
+3 # moodymack 2013-07-21 09:26
Thanks, tedrey
When I read that term, "aiding the enemy", I ask myself: how made "the enemy".
 
 
+26 # jwb110 2013-07-20 15:55
This started with Reagan's assault on the press and the the"embedding" of the press during Iraq 2., courts demanding sources from reporters. This has been a long time in the making. The characterizing of the press as too liberal or a tool of the Liberals in America. Has anybody read a newspaper lately. Nothing liberal about them. Not worth wrapping fish in.

The press played right into the hands of the very people who would do them in. Get some guts guys. Don't sit of your butts like this is going to effect someone else and not you.
The average Joe in this country hasn't got a thing to say about this. Don't turn to us. If there is still some fragment of Freedom of the Press out there, start waging war to protect your jobs. And the job of outing the press that is full of lies and "aiding the enemy".
 
 
+25 # angelfish 2013-07-20 16:04
Of COURSE it is! They WANT to stifle REAL journalists and what better way to do it? Land of the Free? I think NOT, anymore.
 
 
+30 # fredboy 2013-07-20 16:53
Yes, in times of war the U.S. would shove journalists' rights off the table. Now the powers that be seem to believe we are in a perpetual state of "war" and have made journalists--an d truth--the enemy.
 
 
+23 # geraldom 2013-07-20 17:39
You have to remember that Bradley Manning's judge is a military judge, not a federal judge. She could say whatever she wants, but it's ultimately up to the federal court system whether a journalist can be charged with aiding and abetting the Enemy by publicizing national security information out to the public.

Unfortunately, thanks to G.W. Bush with the full and dumb support of the idiotic Senate Democrats over his 8 year (illegitimate) term, our federal court system has been totally corrupted with judges who could care less about our Constitution and our Bill of Rights. George Bush placed well over 300 extremist political judges onto the federal bench, including two onto SCOTUS, John Roberts and Samuel Alito.

So who knows what would happen if this kind of case involving a journalist were to ever reach the federal court system.

All I know is this. Ever since George W. Bush stole the 2000 and 2004 presidential elections and the Republicans have taken over many of the so-called battleground states at all levels, I have never ever seen so many court cases having to take place in my whole lifetime within such a short period of time as 12 or 13 years in order for the good guys to try and protect our freedoms and civil liberties in this country, and we are losing the war.
 
 
+4 # maverita 2013-07-20 20:26
The conservatizatio n of the courts has been part of the republican plan since Eisenhower. This is why, even when so angry at the Democratic Party I could spit nails, I vote dem. they have also been trying to break up the more liberal district courts... One of our last bastions. The only thing that gives me hope is that, as a party, the republicans seem intent on extinction as our demographics continue to become more diverse.
 
 
+5 # moodymack 2013-07-21 09:32
I prefer to be an Independent. It allows me to reason.
 
 
-1 # Billy Bob 2013-07-21 16:17
But, does it also allow you to blur the lines of distinction between left and right? Can you see that the differences of opinion are real and consequential?
 
 
+5 # geraldom 2013-07-21 15:39
maverita, I don't really want to burst your bubble of hope, but the following reflects the reality of the world that we live in today:

o As a result of HAVA, the Help America Vote Act, put together by the Repubs & naively supported by the Dems, passed by Congress soon after the 2000 presidential election debacle, we all now have to use corrupt & fraudulent & unverifiable e-voting machines for all of our elections, at the national, state & local levels. The software (SW) within these machines cannot be legally verified by an independent agency because the manufacturers of these machines, who primarily support the Republican Party, claim that the SW is proprietary. In other words, maverita, you have no idea who or what you're really voting for when you press the buttons.

o As a result of the massive 2010 losses by the Dems in many of the important & critical battleground states & the 2010 10-year census that was taken, the Repubs now control all aspects of the electoral processes in those states & they've been gerrymandering them to death.

o SCOTUS just recently murdered the VRA which now allows these Repub-controlle d states to go to the very ends of the earth in suppressing as much of the minority vote as they can get away with using any method that they can get away with.

You claim that our courts are conservative. I claim that what they are has nothing to do with conservatism. They are simply politically corrupt courts and nothing more.
 
 
+1 # Billy Bob 2013-07-21 16:19
Well, the conservative movement is based on using corruption to any advantage.
 
 
+1 # geraldom 2013-07-21 20:18
Quoting Billy Bob:
Well, the conservative movement is based on using corruption to any advantage.


Corruption exists in both the ranks of the Democrats and the Republicans, conservatives and liberals. But, I will have to say that out of the two political parties that we have to deal with today, that the Republicans are far and away the most corrupt of the two.
 
 
+2 # Billy Bob 2013-07-21 20:51
Out of the two parties we have today NEITHER IS LIBERAL.
 
 
+2 # dquandle 2013-07-22 16:52
Manning is being persecuted by a "Democratic" president and his unutterably vile regime.
 
 
-20 # AlWight 2013-07-20 21:24
As a former intelligence officer, I know first hand the risks of disclosing intelligence information and sources. We have to decide. If we want good intelligence, we have to keep it classified and safeguarded. Those in the intelligence service know this, and know the consequences of violating the oath they take to do so.
 
 
+8 # Billy Bob 2013-07-21 12:53
Do any of them take an oath to uphold and defend the Constitution of the United States of America?
 
 
0 # dquandle 2013-07-22 17:00
They have their fingers crossed behind their backs when they take that one, so it really doesn't count. Besides its just a yellow old piece of paper. Why pay any attention at all. They feel annoyed that the founders of the nation had the gall to bequeath such a scratchy piece of toilet paper to posterity.
 
 
0 # dquandle 2013-07-22 16:56
What about the consequences of violating the oath to uphold the constitution that was taken, which completely trumps any f$%king oath to the national security state and the regimes that embody it. "Intelligence" is absolutely meaningless if the country and constitution you swore to defend, by means of that "intelligence" are being obliterated by those organizations and people that swore to defend it.
 
 
+9 # futhark 2013-07-20 22:32
My question is, absent a declaration of war passed by the Congress as specified in the Constitution, who is the decider of which party is the enemy?
 
 
0 # Billy Bob 2013-07-21 16:19
Whoever is in control.
 
 
+12 # DaveM 2013-07-20 22:55
If Bradley Manning is "aiding the enemy" of a government which perpetrates war crimes (one of his disclosures) and treats him as it did during pre-trial confinement.... shouldn't every decent person have a moral obligation to also be such an enemy?
 
 
+5 # medusa 2013-07-20 23:47
The high points of what Bradley Manning leaked were (1) the helicopter attacking civilians, killing a Reuters correspondent, and continuing to kill those who came to care for the wounded. This attack was hardly a secret to the Iraqis; they saw it up close. Or was it the conversation of the soldiers in the helicopter that had to be kept secret? (2) the correspondence of American diplomats. This correspondence showed that our diplomatic leadership is balanced, knowledgeable, and truthful. Even more, they respect the interests of the people in the countries in which they serve.
I cannot see why any of this was harmful to our country, or how in any way it helped enemies.
 
 
+12 # lark3650 2013-07-21 06:07
The real threat to journalism is the likes of Roger Ailes and Rupert Murdoch, isn't it?
 
 
+5 # CandH 2013-07-21 09:36
Here's something else that's a "threat to journalism:" "U.S. Lifts Propaganda Ban, Will Now Go For It"

Per (now deceased Michael Hastings) report in May, while this proviso was as of yet voted on (it has since passed w/NDAA as of commondreams 7/16 report:)

"The new law would give sweeping powers to the government to push television, radio, newspaper, and social media onto the U.S. public. “It removes the protection for Americans,” says a Pentagon official who is concerned about the law. “It removes oversight from the people who want to put out this information. There are no checks and balances. No one knows if the information is accurate, partially accurate, or entirely false.”"
 
 
+3 # CandH 2013-07-21 10:05
Forgot to include the links:

Commondreams report: https://www.commondreams.org/further/2013/07/16-4

Michael Hastings report: http://www.buzzfeed.com/mhastings/congressmen-seek-to-lift-propaganda-ban
 

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