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Fung writes: "The Obama administration has charged at least seven individuals with violations of the Espionage Act, but so far none of those cases have been ruled on by a judge or jury. The military trial against WikiLeaks source Bradley Manning could therefore set an important precedent about the legal treatment of leakers."

Bradley Manning is escorted from the courtroom.  (photo: Scott Galindez/RSN)
Bradley Manning is escorted from the courtroom. (photo: Scott Galindez/RSN)

Why Bradley Manning's Court-Martial Matters for Civilians

By Brian Fung, The Washington Post

27 July 13


RSN Special Coverage: Trial of Bradley Manning

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an a government employee be convicted of espionage for leaking classified information to the media? The Obama administration has charged at least seven individuals with violations of the Espionage Act, but so far none of those cases have been ruled on by a judge or jury. The military trial against WikiLeaks source Bradley Manning could therefore set an important precedent about the legal treatment of leakers.

"No Espionage Act charge brought by this administration in connection with media leaks has ever been resolved on its merits by a judge or jury," said Elizabeth Goitein, the top national security lawyer at New York University's Brennan Center for Justice.

The 25-year-old is the fifth person to be charged by the Obama administration under the Espionage Act, a 96-year-old statute. It's this law that President Obama's been using to accuse civilian leakers of betraying the state. But while it's been used many times before in complaints, none of these cases have reached the legal merits.

That's because previous trials involving the Act have always been resolved in other ways. For example, in the case of Thomas Drake, who leaked information about NSA spending, the government's case fell apart. Some leakers have gone to jail, but that has been the result of plea bargains, not a conviction by a judge or jury. For example, espionage charges against John Kiriakou, the CIA employee who leaked details of the agency's waterboarding practices, were dropped after he agreed to plead guilty to violating the Intelligence Identities Protection Act.

It's unlikely Manning would be altogether acquitted of his espionage charges, since he already pleaded guilty to a watered-down version of them earlier this year. (This process, known as pleading guilty by exceptions and substitutions, means Manning acknowledged some responsibility without directly answering the specific charges brought against him by the government.) If it did happen, however, it would be a major blow to the White House, which has already invoked the Espionage Act twice since Manning.

The more serious allegation - aiding the enemy - is something that's unique to military law. The presiding judge, Col. Denise Lind, enraged Manning's supporters when she refused to throw out the charge. But, she said, keeping the charge alive didn't necessarily mean Manning would be convicted. Even if he is convicted of aiding the enemy, the fact that it's a charge under military law means the Justice Department wouldn't be able to apply the same law to civilian government workers who are considering becoming leakers themselves.

While there's no direct analogue to the "aiding the enemy" charge in civilian law, the Espionage Act does contain roughly similar language. The main difference is that the Espionage Act (under 18 USC 794) sets a slightly higher standard for evidence. Prosecutors have to prove that a suspect gave away national security information with the "intent or reason to believe" that doing so would harm the United States. Under the UCMJ, all the prosecutors have to prove that Manning "knowingly" gave information to "the enemy."

All that is to say that if Manning escapes conviction under this charge, convicting future civilian leakers could become that much harder. At the same time, an opposite finding by the presiding judge would make the administration's job easier.

"The hurdle [for 18 USC 794] is a little bit tougher," said Goitein. "But if the judge were to rule that evidence sufficient to convict ... it would not be unreasonable to concerned about the implications for how this part of the Espionage Act" might be used.

Manning's verdict will have implications for future leak cases. Manning has been compared to NSA leaker Edward Snowden. And NBC host David Gregory last month asked The Guardian's Glenn Greenwald - to his face - whether he ought to be charged with a crime for working with Snowden. The outcome of Manning's case will affect how leakers are treated in the future, and could even affect the legal status of future journalists, though the Obama administration doesn't appear ready to cross that line just yet. your social media marketing partner


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+17 # riverhouse 2013-07-28 05:03
Manning and Snowden are American heroes. They are being punished for embarrassing the government by exposing rogue behavior by that government. The two men are whistleblowers, not traitors. When it is no longer possible to expose wrongdoing by a corporation or a government without being prosecuted as a criminal we will no longer have a functioning democracy.
+15 # tedrey 2013-07-28 06:03
At the risk of repeating myself, I find Bradley Manning innocent, and the court martial guilty of engaging in the cover up of war crimes.
+9 # RMDC 2013-07-28 06:57
I agree that the Mannnig trial is one of those nation changers. If the Obama regime is able to get away with the claim that informing the public about crimes and lies in the military via normal media channels is espionage because only someone who hates the US might read the papers or web, then press freedoms and our right to know is dead forever. Everything published in any venue could become a case of espionage or aiding the enemy.

How do we know that an article in the WaPo about a new pizza restaurant in Washington DC isn't giving aid and comfort to the enemy. Maybe it is a favorite spot for government officials. We don't even know who the enemy is! The enemy changes. An espionage case can be made out of anything anyone publishes that the US regime does not like, since we are so surrounded by enemies that we have to have blimps over DC.

This article is right -- if Manning is acquitted, Obama's espionage crusade is dead. There will be no more espionage cases. The judge must know that. She will be setting a legal precedent with very deep and far reaching implications now matter which way she decides. She can choose to totally destroy press freedom in the US and world. Or she can tell the Obama regime that its over-reaching and that people do have an unalienable right to know what their government is doing.

We are all Bradley Manning.
+15 # Edwina 2013-07-28 09:33
This and other whistleblower cases should clear away any illusions that the Obama administration is "liberal". Pres. Richard M. Nixon spied on a few political opponents, and was run out of office. The Bush administration started by spying on journalists and "persons of interest"; now the Obama administration spies on every citizen, and prosecutes those who expose the fact (Snowdon). What a difference 40 years make.
+8 # reiverpacific 2013-07-28 11:06
It's difficult not to repeat oneself "tedray", if you've been following Manning's railroading, internment/tort ure and public humiliation on RSN or anything but the content-free, lap-dog, conformist US monopoly media, including these days, PBS.
So I'm doing it too.
Courts like Danton/Robespie rre's "Committee of Public Safety" and Roland Freisler's "People's Court" begun with a smallish, targeted, surveilled groups like the remaining French aristocrats and open dissenters from the Third Reich like the White Rose respectively, and became fearsome, all-embracing, fear-inspiring, death-dealing behemoths, eventually devouring themselves but murdering thousands of innocent in the process.
It's not goin' to change me personally.
For my part, I tell my very few conservative ignoramus, conformist acquaintances in Scotland (Tories are an increasingly rare breed there), who inform me that I've become a "Capitalist" 'cause I live here, that au contraire, if you live in the USA, you either capitulate completely to the plutocratic model or it hardens your resolve to stand ever more firmly against it!
My choice is clear!
+9 # jwb110 2013-07-28 11:20
Without an actual Declaration of War from the Congress how does the Espionage Act hold. It wasn't written to apply to a Cold War/Police Action mentality. This country seems to be at war with some sort of a phantom called Terror. Undeclared War on an idea doesn't constitute the need for the use of wholesale violations to the Right to Privacy or the Espionage Act.
Just like the War on Drugs became a way to spend $$$ and things only got worse, this War on Terror will do the same because the war has been turned on the American Public.
The Nation is in more danger from within than from without.

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