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

By Yochai Benkler, Guardian UK

20 July 13

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.