The New Republic

After 1,000 days in pretrial detention, Private Bradley Manning yesterday offered a modified guilty plea for passing classified materials to WikiLeaks. But his case is far from over—not for Manning, and not for the rest of the country. To understand what is still at stake, consider an exchange that took place in a military courtroom in Maryland in January.

The judge, Col. Denise Lind, asked the prosecutors a brief but revealing question: Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?

The prosecutor’s answer was simple: “Yes Ma'am.”

The question was crisp and meaningful, not courtroom banter. The answer, in turn, was dead serious. I should know. I was the expert witness whose prospective testimony they were debating. The judge will apparently allow my testimony, so if the prosecution decides to pursue the more serious charges to which Manning did not plead guilty, I will explain at trial why someone in Manning's shoes in 2010 would have thought of WikiLeaks as a small, hard-hitting, new media journalism outfit—a journalistic “Little Engine that Could” that, for purposes of press freedom, was no different from the New York Times. The prosecutor's “Yes Ma'am,” essentially conceded that core point of my testimony in order to keep it out of the trial. That's not a concession any lawyer makes lightly.

The charge of "aiding the enemy" is vague. But it carries the death penalty—and could apply to civilians as well as soldiers.

But that “Yes Ma'am” does something else: It makes the Manning prosecution a clear and present danger to journalism in the national security arena. The guilty plea Manning offered could subject him to twenty years in prison—more than enough to deter future whistleblowers. 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.

A country's constitutional culture is made up of the stories we tell each other about the kind of nation we are. When we tell ourselves how strong our commitment to free speech is, we grit our teeth and tell of Nazis marching through Skokie. And when we think of how much we value our watchdog press, we tell the story of Daniel Ellsberg. Decades later, we sometimes forget that Ellsberg was prosecuted, smeared, and harassed. Instead, we express pride in a man's willingness to brave the odds, a newspaper’s willingness to take the risk of publishing, and a Supreme Court’s ability to tell an overbearing White House that no, you cannot shut up your opponents.

Whistleblowers play a critical constitutional role in our system of government, particularly in the area of national security. And they do so at great personal cost. The executive branch has enormous powers over national security and the exercise of that power is not fully transparent. Judicial doctrines like the “state secrets” doctrine allow an administration to limit judicial oversight. Congress’ oversight committees have also tended to leave the executive relatively free of constraints. Because the materials they see are classified, there remains little public oversight. Consider the Senate Intelligence Committee's report on the interrogation torture practices during the immediate post 9/11 years: Its six thousand pages, according to Senator Dianne Feinstein, are “one of the most significant oversight efforts in the history of the United States Senate.” But they are unavailable to the public.

Freedom of the press is anchored in our constitution because it reflects our fundamental belief that no institution can be its own watchdog. The government is full of well-intentioned and quite powerful inspectors general and similar internal accountability mechanisms. But like all big organizations, the national security branches of government include some people who aren't purely selfless public servants. Secrecy is necessary and justified in many cases. But as hard-earned experience has shown us time and again, it can be—and often is—used to cover up failure, avarice, or actions that simply will not survive that best of disinfectants, sunlight.

That’s where whistleblowers come in. They offer a pressure valve, constrained by the personal risk whistleblowers take, and fueled by whatever moral courage they can muster. Manning's statement in court yesterday showed that, at least in his motives, he was part of that long-respected tradition.  But that’s also where the Manning prosecution comes in, too. The prosecution case seems designed, quite simply, to terrorize future national security whistleblowers. The charges against Manning are different from those that have been brought against other whistleblowers. “Aiding the enemy” is punishable by death. And although the prosecutors in this case are not seeking the death penalty against Manning, the precedent they are seeking to establish does not depend on the penalty. It establishes the act as a capital offense, regardless of whether prosecutors in their discretion decide to seek the death penalty in any particular case.

Hard cases, lawyers have long known, make bad law. The unusual nature of Manning's case has led some to argue that his leaks are different than those we now celebrate as a bedrock component of accountability journalism: Daniel Ellsberg leaked specific documents that showed massive public deception in the prosecution of the Vietnam War. Deep Throat leaked specific information about presidential corruption during the Watergate investigation. Manning, though, leaked hundreds of thousands of documents, many of which were humdrum affairs; perhaps, some have argued, the sheer scope raises the risks. But in the three years since the leaks began, there has still been no public evidence that they in fact caused significant damage. The prosecutors say they will introduce evidence of harm in secret sessions; one of these bits of evidence is reportedly going to be that they will show that several of the files published were found on Osama Bin Laden's computer. Does that mean that if the Viet Cong had made copies of the Pentagon Papers, Ellsberg would have been guilty of “aiding the enemy?”

If the Viet Cong photocopied the Pentagon Papers, could Daniel Ellsberg have been prosecuted for aiding the enemy? 

It is also important to understand that although the number of leaked items was vast, it was not gratuitously so; some of the most important disclosures came precisely from sifting through the large number of items.  Certainly, some of the important revelations from the leaks could have been achieved through a single “smoking gun” document, such as the chilling operational video from a U.S. helicopter attack that killed two Reuters' cameramen, and shot at a van trying to offer relief to the injured, wounding two children who were in the van. But many of the most important insights only arise from careful analysis of the small pieces of evidence. This type of accountability analysis showed that the military had substantially understated the scale of civilian casualties in Iraq; and that U.S. forces were silently complicit in abuses by allied Iraqi government forces; it uncovered repeated abuses by civilian contractors to the military. The war logs have become the most important spin-free source of historical evidence about the Iraq and Afghanistan wars.

The reputation that WikiLeaks has been given by most media outlets over the past two and a half years, though, obscures much of this—it just feels less like “the press” than the New York Times. This is actually the point on which I am expected to testify at the trial, based on research I did over the months following the first WikiLeaks disclosure in April 2010. When you read the hundreds of news stories and other materials published about WikiLeaks before early 2010, what you see is a young, exciting new media organization. The darker stories about Julian Assange and the dangers that the site poses developed only in the latter half of 2010, as the steady release of leaks about the U.S. triggered ever-more hyperbolic denouncements from the Administration (such as Joe Biden's calling Assange a “high-tech terrorist”), and as relations between Assange and his traditional media partners soured.

In early 2010, when Manning did his leaking, none of that had happened yet. WikiLeaks was still a new media phenom, an outfit originally known for releasing things like a Somali rebel leader’s decision to assassinate government officials in Somalia, or a major story exposing corruption in the government of Daniel Arap Moi in Kenya. Over the years WikiLeaks also exposed documents that shined a light on U.S. government practices, such as operating procedures in Camp Delta in Guantanamo or a draft of a secretly negotiated, highly controversial trade treaty called the Anti-Counterfeiting Trade Agreement. But that was not the primary focus. To name but a few examples, it published documents that sought to expose a Swiss Bank’s use of Cayman accounts to help rich clients avoid paying taxes, oil related corruption in Peru, banking abuses in Iceland, pharmaceutical company influence peddling at the World Health Organization, and extra-judicial killings in Kenya. For its work, WikiLeaks won Amnesty International's New Media award in 2009 and the Freedom of Expression Award from the British magazine, Index of Censorship, in 2008.

No one would have thought at the time that WikiLeaks had the gravitas of the Times. But if you roll back to the relevant time frame, it is clear that any reasonable person would have seen WikiLeaks as being in the same universe as we today think of the range of new media organizations in the networked investigative journalism ecosystem, closer probably to ProPublica or the Bureau of Investigative Journalism than to Huffington Post or the Daily Beast. If leaking classified materials to a public media outlet can lead to prosecution for aiding the enemy, then it has to be under a rule that judges can apply evenhandedly to the New York Times or the Guardian no less than to ProPublica, the Daily Beast, or WikiLeaks. No court will welcome a rule where culpability for a capital offense like aiding the enemy depends on the judge's evaluation of the quality of the editorial practices, good faith, or loyalty of the media organization to which the information was leaked. Nor could a court develop such a rule without severely impinging on the freedom of the press. The implications of Manning’s case go well beyond  Wikileaks, to the very heart of accountability journalism in a networked age.

The prosecution will likely not accept Manning's guilty plea to lesser offenses as the final word. When the case goes to trial in June, they will try to prove that Manning is guilty of a raft of more serious offenses. Most aggressive and novel among these harsher offenses is the charge that by giving classified materials to WikiLeaks Manning was guilty of “aiding the enemy.” That’s when the judge will have to decide whether handing over classified materials to ProPublica or the New York Times, knowing that Al Qaeda can read these news outlets online, is indeed enough to constitute the capital offense of “aiding the enemy.”

Aiding the enemy is a broad and vague offense. In the past, it was used in hard-core cases where somebody handed over information about troop movements directly to someone the collaborator believed to be “the enemy,” to American POWs collaborating with North Korean captors, or to a German American citizen who was part of a German sabotage team during WWII. But the language of the statute is broad. It prohibits not only actually aiding the enemy, giving intelligence, or protecting the enemy, but also the broader crime of communicating—directly or indirectly—with the enemy without authorization. That's the prosecution's theory here: Manning knew that the materials would be made public, and he knew that Al Qaeda or its affiliates could read the publications in which the materials would be published. Therefore, the prosecution argues, by giving the materials to WikiLeaks, Manning was “indirectly” communicating with the enemy. Under this theory, there is no need to show that the defendant wanted or intended to aid the enemy. The prosecution must show only that he communicated the potentially harmful information, knowing that the enemy could read the publications to which he leaked the materials. This would be true whether Al Qaeda searched the WikiLeaks database or the New York Times'. Hence the prosecutor's “Yes Ma'am.”

This theory is unprecedented in modern American history. 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.

In fact, neither side disagrees with this central critique: That for 150 years, well before the rise of the modern First Amendment, the invention of muckraking journalism, or the modern development of the watchdog function of the press in democratic society, no one has been charged with aiding the enemy simply for leaking information to the press for general publication. Perhaps it was possible to bring such a charge before the first amendment developed as it did in the past hundred years, before the Pentagon Papers story had entered our national legend. But before Rosa Parks and Brown vs. Board of Education there was also a time when prosecutors could enforce the segregation laws of Jim Crow. Those times have passed. Read in the context of American constitutional history and the practice of at least a century and a half (if not more) of “aiding the enemy” prosecutions, we should hope and expect that the court will in fact reject the prosecution's novel and aggressive interpretation of that crime.

But as long as the charge remains live and the case undecided, the risk that a court will accept this expansive and destructive interpretation is very real.

That’s especially true when you consider that “aiding the enemy” could be applied to civilians.  Most provisions of the Uniform Code of Military Justice apply only to military personnel. But Section 104, the “aiding the enemy” section, applies simply to “any person.” To some extent, this makes sense—a German-American civilian in WWII could be tried by military commission for aiding German saboteurs under this provision. There has been some back and forth in military legal handbooks, cases, and commentary about whether and to what extent Section 104 in fact applies to civilians. Most recently, Justice Stevens' opinion in the Supreme Court case of Hamdan implies that Section 104 may in fact apply to civilians and be tried by military commissions. But this is not completely settled. Because the authorities are unclear, any competent lawyer today would have to tell a prospective civilian whistleblower that she may well be prosecuted for the capital offense of aiding the enemy just for leaking to the press.

The past few years have seen a lot of attention to the Obama Administration's war on whistleblowing. In the first move, the Administration revived the World War I Espionage Act, an Act whose infamous origins included a 10-year prison term for a movie director who made a movie that showed British soldiers killing women and children during the Revolutionary War and was therefore thought to undermine our wartime alliance with Britain, and was used to jail Eugene V. Debs and other political activists. Barack Obama’s Department of Justice has brought more Espionage Act prosecutions for leaks to the press than all prior administrations combined since then, using the law as what the New York Times called an “ad hoc Official Secrets Act.”

If Bradley Manning is convicted of aiding the enemy, the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers. The consequences for the ability of the press to perform its critical watchdog function in the national security arena will be dire. And then there is the principle of the thing. However technically defensible on the language of the statute, and however well-intentioned the individual prosecutors in this case may be, we have to look at ourselves in the mirror of this case and ask: Are we the America of Japanese Internment and Joseph McCarthy, or are we the America of Ida Tarbell and the Pentagon Papers? What kind of country makes communicating with the press for publication to the American public a death-eligible offense?

What a coup for Al Qaeda, to have maimed our constitutional spirit to the point where we might become that nation.

Yochai Benkler is a professor at Harvard Law School and co-Director of the Berkman Center for Internet and Society at Harvard.

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