BY
YOCHAI BENKLER
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. curtesy of the http://www.newrepublic.com/article/112554#