New York Times "Aided the Enemy" Like Manning

By Bill Simpich, Reader Supported News

21 June 13

ere's the "aiding the enemy" statute that Manning is charged with. The military calls it Article 104; it is also known as 10 USC Section 904. The key phrases are highlighted:

Any person who: (1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.

This statute has almost never been used until now.

Dusting off this old statute for today's world is an enormous issue, as addressed by Laurence Tribe himself, probably the most prominent constitutional law professor in the country and too liberal for the Supreme Court in this era. A Harvard professor who taught constitutional law to Barack Obama, Tribe told the Guardian that Manning's most serious charge of "aiding the enemy," could hold a dangerous precedent:

"Charging any individual with the extremely grave offense of 'aiding the enemy' on the basis of nothing beyond the fact that the individual posted leaked information on the web and thereby 'knowingly gave intelligence information' to whoever could gain access to it there, does indeed seem to break dangerous new ground."

So just allowing the charge to go forward is disastrous, and will mean an appeal probably to the Supreme Court if there is a conviction on this count.

Military law and First Amendment experts widely regard the aiding-the-enemy charge as overreach. "If successful, the prosecution will establish a chilling precedent: national security leaks may subject the leakers to a capital prosecution or at least life imprisonment."

This overreach has occurred because people are finally fighting back from the overclassification of the events that make up American history. We know very little about US foreign and domestic policies since World War II because events are massively overclassified. Most of the material released by Manning should never have been classified in the first place. Such overclassification amounts to treating the American people like children.

Eugene Fidell, researcher on military justice from Yale Law School, states:

The phrase "aiding the enemy" has an antique ring to it and is not usually associated with something done with a computer. And whether or not he is guilty is a legal judgment for the court.

But in terms of whether he had the intent - he certainly intended to send the material to Wikileaks. He knew they would make the material available.

Also, he confessed. So that horse has left the barn.

Although the editors could argue that the statute doesn't apply to them since they're not soldiers, the embedded reporters would not be so fortunate. Law professor Geoffrey Stone is more optimistic, saying that he doesn't believe the prosecution can win on this count.

The essential point, as stated in this article, is that The New York Times has violated the "aiding the enemy" statute just like Manning for "knowingly giving intelligence information."

The Freedom of the Press Foundation details how the "aiding the enemy" charge threatens all journalists.

In January 2013, Judge Lind ruled that Manning's defense team can provide evidence of his motivation in releasing the documents, including that Manning selected documents that would not endanger national security. This is why the Seal Team Six witness is scheduled to appear, in "light disguise," to prove that Manning's documents wound up in bin Laden's hands, and he should have known that.

What if bin Laden had a copy of The New York Times? The same logic would apply. Could the Times face indictment?

Before addressing that question, note that Osama bin Laden was also a fan of famed reporter Bob Woodward's books, going as far as to publicly recommend everyone read them. The Obama administration leaked highly classified information to Woodward about the war in Afghanistan and NSA programs. These Obama officials are clearly liable for criminal acts.

Therefore, even though Manning can testify as to his motives on the aiding-the-enemy charge, he can still easily lose on this count and face execution or life in prison. Any journalist could suffer the same fate - the only thing that spares them, to date, is "prosecutorial discretion." That could change in the future, depending on how this case goes. Julian Assange could be the first journalist facing charges. That's what the Wall Street Journal is calling for. Where does it go from there?

Manning's prosecutors have said that Manning would have been charged even if he had turned his material over to The New York Times rather than Assange. Would that have exposed The New York Times to criminal charges?

Unlike Manning, The New York Times does have a judicially-recognized defense to "aiding the enemy" - the First Amendment offers protection to journalists from being charged under this statute. However, there remains a question whether this protection is absolute. Furthermore, as we have seen over the past two weeks, the Guardian's Glenn Greenwald has been accused by a member of Congress of not acting as a "legitimate journalist" in his interactions with the leaker Edward Snowden. Thus, the journalist has "exposure" to being charged as well as the leaker.

You see where this is going. If you're powerful, leaking is freely permitted. If you effectively challenge the powerful, you can be selectively targeted with aiding the enemy.