Reporters and leakers all over Washington, D.C., are heaving a sigh of relief: On Tuesday, a military judge found Pvt. Bradley Manning not guilty of “aiding the enemy.”
Manning, whose sentencing begins tomorrow, will probably still be spending at least a couple of decades in prison for 19 other crimes, but his conviction on most of those charges had been expected; he’d already pled guilty to some of them. But “aiding the enemy” was the most serious accusation. It’s labeled a capital crime; although prosecutors were not seeking the death penalty in this instance. He would have been put behind bars for life. More broadly, a guilty verdict on the charge of aiding the enemy would have turned the climate for investigative journalism—already as tense as it has been for many years—into a toxic dust cloud.
Prosecutors had argued during the trial that the documents Manning supplied in 2010 to WikiLeaks—which, in turn, provided them to the New York Times and other publications—were read by Osama Bin Laden, who took comfort from them. Therefore, they contended, Manning had aided the enemy.
It was an explosive argument. Few officers or enlisted personnel had ever been tried for “aiding the enemy”—codified at Article 104 of the Uniform Code of Military Justice—and none had been convicted on that charge merely for leaking classified documents to a news agency (or, in WikiLeaks’ unusual case, an intermediary to news agencies).
Had the judge accepted the argument and found Manning guilty of the broad new charge, the implications would have been profound. By such a verdict’s logic, The New Yorker could have been accused of aiding the enemy for publishing Seymour Hersh’s article about the torture of detainees at Abu Ghraib. Hersh’s intention may have been to call attention to war crimes being committed by U.S. officers in Iraq, but a prosecutor could certainly have argued that the story served al-Qaida’s interests; and it’s certainly true that the revelations over Abu Ghraib were used as recruitment tools by jihadists worldwide.
In fact, by this logic, any published criticism of an American war, or of U.S. foreign policy generally, could be interpreted as “aiding the enemy” if copies were found in enemy hands. For that matter, news reports of Southern racism in the 1950s could have been prosecuted on those grounds because the Soviet Union—the enemy in the era’s Cold War—cited those reports in its anti-American propaganda campaigns, especially in the developing world.
True, Manning was tried in a military court by military prosecutors and a military judge. A newspaper or magazine, in these hypothetical scenarios, would be tried in a federal court by Justice Department prosecutors and a civilian judge. The standards are different. Precedents from military trials are rarely cited—and have no legal standing—in civilian courts.
Still, judges and prosecutors are free to cite legal arguments from any type of court they wish. Steven Aftergood of the Secrecy News website notes that, in the indictment against Stephen Kim—the State Department official who recently leaked information about North Korean nuclear testing to a FoxNews reporter—the Justice Department prosecutors cite an argument used by Chief Judge Denise R. Lind; the military judge in the Manning case. Specifically, they quote Col. Lind as saying (on Pages 59–60) that the accused “had reason to believe the information he communicated could be used to the injury of the United States or to the advantage of any foreign nation.” They add that Lind said the actual damage done by the leak is irrelevant to the fact that he had “reason to believe” the information “could be used” to ill effect.
In the Manning verdict today, Judge Lind herself didn’t buy that argument. We don’t yet know why. Was it because she thought the prosecutors hadn’t made their case that Manning knew, or had reason to believe, that Osama Bin Laden would read the news reports based on his leaks? Or did she think the argument was absurdly broad on the face of it?
A federal judge in Virginia came to that latter conclusion in the 2006 case, United States of America vs. Lawrence Franklin, et al., in which a Pentagon official (Franklin) was indicted for leaking classified information to two executives of the American-Israel Public Affairs Committee—and, more alarmingly, the two AIPAC executives were indicted for receiving that information, a crime under the rarely invoked Espionage Act of 1917.
Initially, the presiding judge, T.S. Ellis, allowed the charge to stand, noting that the law “applies to academics, lawyers, journalists, professors, whatever.” He added that if there’s a problem with that, the law should be changed; but judges can only interpret and apply the law, not nullify it. In the end, though, Ellis went against his earlier pronouncement and dismissed the indictment against the AIPAC analysts, on the grounds that the statute was too vague, broad, inconsistently applied, and draconian. (Franklin, the Pentagon official, was convicted, however for violating his security oath.)
There is another possible reason for Manning’s acquittal on the charge of aiding the enemy: It’s possible the judge simply thought he wasn’t guilty. The charge was always a bit of a stretch for the prosecutors. Article 104 of the UCMJ states that the crime applies to 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. (Italics added.)”
For the judge to find Manning guilty under Article 104, she would have had to conclude that “other things” includes classified documents, and that giving intelligence to the enemy “indirectly” includes giving it to WikiLeaks, which gives it to a newspaper, which is read by the enemy. Such stretches wouldn’t have been unprecedented, in civilian or military courts, but, again, Judge Lind chose not to go there.
It may be that the prosecutor overreached. In his summary remarks, he lambasted Pvt. Manning as not only a leaker, a thief, a security threat, and all the rest, but also a “traitor.” Whatever one thinks of Manning and his motives, this went too far. Article 3 of the U.S. Constitution states: “Treason against the United States shall consist only in levying war against them, or in adhering to their Enemies, giving them Aid and Comfort.” (Italics added.) One could make a stretch and claim that Manning’s actions gave aid and comfort to some enemies; but there’s no way that he could be seen as “adhering” to enemies or as “levying war” (which later Supreme Court decisions have interpreted to mean physically waging war against the United States).
Whether what Manning did was right or wrong in the broader book of morality, it did violate military law. He knew that; and, in his plea, he accepted responsibility for it, accepted his fate, but always insisted that he had no intention to aid the enemy. The military court’s assent on that point was wise, beneficial for free speech, and for the country.
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