Bradley Manning’s trial presents a unique interpretation of a military law that, if it stands and Manning is convicted, would have dire consequences for both whistleblowers and the freedom of the press, according to a Harvard Law School professor who is expected to testify at the trial.
The judge asked in a previous portion of the trial in January whether the prosecutors would have pressed the same charges—aiding the enemy—against Manning if he had given the documents in to the New York Times instead of Wikileaks.
The prosecutor told the judge: “Yes ma’am.”
That admission—that Wikileaks, a small organization at the time, is the same as a larger media outlet—greatly concerns Yochai Benkler, a professor at Harvard Law School and co-director of the Berkman Center for Internet and Society at Harvard.
Manning’s guilty plea could already subject him to 20 years in prison, “more than enough to deter future whistleblowers,” wrote Benkler in an analysis of the case.
“But the prosecutors seem bent on using this case to push a novel and aggressive interpretation of the law that would arm the government with a much bigger stick to prosecute vaguely-defined national security leaks, a big stick that could threaten not just members of the military, but civilians too.”
The prosecution case, says Benkler, “seems designed, quite simply, to terrorize future national security whistleblowers.”
The charges against Manning include “aiding the enemy,” which is punishable by death. The aiding caused damage to the United States national security and hampered diplomatic affairs, according to the prosecution.
One of the examples reportedly going to be put forth of the impact of the leak of documents is that several files were found on Osama Bin Laden’s computer.
Benkler asks, referring the the man who leaked documents showing deception in the prosecution of the Vietnam War, “Does that mean that if the Viet Cong had made copies of the Pentagon Papers, [Daniel] Ellsberg would have been guilty of “’aiding the enemy?’”
The “aiding the enemy” charge, if Manning is convicted, would have a big impact on news organizations around the world. If whistleblowers leak classified materials to any news organization that publishes it on a website, then enemies of the United States can read them. So Manning is charged with “aiding the enemy” because he knew that Al Qaeda or its affiliates could read the materials he was leaking online.
“This theory is unprecedented in modern American history,” according to Benkler. “The prosecution claims that there is, in fact precedent in Civil War cases, including one from 1863 where a Union officer gave a newspaper in occupied Alexandria rosters of Union units, and was convicted of aiding the enemy and sentenced to three months. But Manning’s defense argues that the Civil War cases involved publishing coded messages in newspapers and personals, not leaking for reporting to the public at large. The other major source that the prosecution uses is a 1920 military law treatise. Even if the prosecutors are correct in their interpretations of these two sources, which is far from obvious, the fact that they need to rely on these old and obscure sources underscores how extreme their position is in the twenty-first century.”
This charge could also extend to civilians who leak information to the press.
Benkler says that if Manning is convicted, “the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers,” he says, adding. “The consequences for the ability of the press to perform its critical watchdog function in the national security arena will be dire.”