If Manning is ever released, he will re-enter a world ready to embrace him, advanced with the understanding to recognize his greatness.
Mark Wilson, Getty Images)
Zoom in on an aerial image of the Fort Meade military base and you will see miles of sprawling green fields and parking lots separating homes and administrative buildings. From that vantage point the magistrate court looks about the size of a Mack Truck. History is being made in that little building, the court martial of Pfc. Bradley Manning is being held there.
Two weeks ago, in the swampy heat, I stood outside that single-floor courthouse. A crowd of about twenty-five of us were gathered in a narrow paved area between trailers for restrooms, crowd overflow, and the security check-in. There was a man near the entrance that had to be in his eighties. I overheard him interrupt a conversation to ask, “What’s an e-reader?” A white haired woman told him it is a thin device that holds loads of books as digital files. He paused, perhaps to consider how the contents of his personal library might be encoded to fit inside something not much bigger than a calculator. I looked around again. Maybe a third of the people attending the trial as spectators could remember the bombing of Pearl Harbor as clearly as 9-11. And quite a number more looked like retired boomers. Has AARP thrown its weight behind hacktivist causes? Were they cypherpunks in elaborate disguise?
I started talking with a retired woman who drove down from Pennsylvania. I asked how she felt about the prosecution’s depiction of WikiLeaks as a terrorist abettor. “Well, I’m not as concerned with that,” she said. “I’m here because they were torturing that kid.”
I was there because they were torturing that kid.
Last winter, I read a tweet from the Guardian‘s Ed Pilkington quoting Manning’s testimony in the pre-trial hearing. I shut my phone off and stared out the window — a tiny privilege that Manning had for so long been denied:
“BRADLEY MANNING: ‘You could see the reflection of the reflection of the skylight if you angled your face on the cell door’ – Quantico” — @Edpilkington
From then on, I found myself often thinking about Manning straining to see a “reflection of the reflection” while locked away at the brig. And for what? For exposing criminality and corruption on a worldwide structural level when no one else dared. But in the courtroom, Manning looks so earnest. He appears confident, not frail. You can see in him a glimmer of the “bradass87″ that once wrote to a friend that he would like to be like his idols, “richard feynman, carl sagan, harvey milk, etc.”
The enormity of his actions sits in contrast with the work-a-day procedure of the court martial. But that is Washington for you, a city where you might meet diplomats with sweat stains under the arms of their dress shirts and stateswomen in fraying stockings. Power appears unexpectedly accessible and deceivingly provincial. The prosecutors — representing the US government — seem guided less by iron fist than egregious technical illiteracy. The people who tortured Bradley Manning do not have horns. And that makes it all much worse.
Earlier that day, I left my phone in a friend’s glove compartment and handed my umbrella to a soldier as another searched my bag in the security trailer. Anyone can walk in and observe the proceedings. It is a short train ride from Union Station and the Bradley Manning Support Network arranges pickups, but too few people are taking advantage of this opportunity. On a panel at Left Forum, Jessalyn Radack, the attorney who represented NSA whistleblower Thomas Drake, said that some days there were only six spectators. Nearing a verdict now, the courtroom is typically full, but the overflow trailer still has plenty of room. It makes a difference. They announce court attendance every morning.
How many people even know the trial is happening? Manning was held for three years without a trial. That is plenty of time for the public to mistakenly assume there was already a court decision and sentencing. And why did they try this case at all? Manning already pled guilty to 10 charges and faces up to 20 years. The remaining charges are bizarrely exaggerated. Using flimsy circumstantial evidence, the government is trying to argue that publishing documents on the internet assists terrorists. And for that they could lock him away for life.
The prosecution insists they would have pressed the same charges if Manning had gone to the New York Times instead of WikiLeaks. Daniel Ellsberg did go to the New York Times, which published excerpts of the Pentagon Papers in 1971. Before his case was thrown out as a mistrial, he faced a sentence of up to 115 years under the Espionage Act of 1917. “Everything that Richard Nixon did to me, for which he faced impeachment and prosecution, which led to his resignation, is now legal under the Patriot Act, the FISA [Foreign Intelligence Surveillance Act] amendment act, the National Defense Authorization Act,” Ellsberg told Chris Hedges in an interview. Now Manning is accused not only of espionage, but “aiding the enemy,” essentially because some WikiLeaks files were on Osama bin Laden’s computer.
The prosecutors are in their early 30s — nominally “digital natives” — and should know better. “Do you know what Wget is?” they interrogate a witness, as if it is malicious spyware and not an everyday command line program. The government is capitalizing on asymmetric tech literacy and the failure of language when old laws are applied to the internet. At the peak of this absurdity: WikiLeaks cables are still formally classified, so despite being readily available to anyone with internet, closed sessions are required to discuss them.
Perhaps you heard the audio of Bradley Manning’s court statement earlier this year. That was leaked. No other recordings or visuals have come out of the trial, with the exception of courtroom sketches. Now imagine if there were a livestream. And imagine if everyone had tuned in to watch Yochai Benkler’s gripping expert witness testimony on July 10th. He argued on behalf of the decentralization of media in the digital age, the blurred lines between activist and journalist, and that WikiLeaks was “providing a discrete but critical component of what in the past was always integrated in a single organization.” He explained in clear language what everyone of a certain generation knows intuitively about the internet. Afterward, in the restroom, I overheard two old ladies say they plan to read his book, The Wealth of Networks.
Why did the prosecution ramp up charges against Manning? “Aiding the enemy” might have resulted in the death penalty. The answer came from Benkler under cross-examination. Summarizing an article he wrote, he explained in court, “it’s very hard to suppress information once it’s on WikiLeaks and that the core target needs to be on trust as the center of gravity. In other words, to undermine the concept that WikiLeaks is a place where a leaker can go and trust that they won’t be revealed. So in order to prevent this distributed leaking, it’s necessary to increase the fear, as it were, or the constraint on potential leakers.”
In Ellsberg’s time, the labor involved was its own risk and deterrent. Over the course of a year, he went out with a suitcase to Xerox page after page of the Pentagon Papers (with a piece of cardboard pressed against the glass to edit out the “Top Secret” stamps.) Manning’s cover was a rewritable CD marked “Lady Gaga.” He downloaded the files while listening to “Telephone.” He was tortured and he risks life imprisonment, because leaking is now so easy.
If you grow up knowing an entire library can fit inside a device in the palm of your hand, those 250,000 diplomatic cables and 500,000 army reports do not seem like an enormous bounty. What looks like “harvesting” to one generation, might seem like the obvious way to gather data to the next.
The witness for the defense who has stayed in my mind is Lauren McNamara. She read from a series of AOL chats with Manning in 2009. She was called in to defend his character and demonstrate he was in good spirits in the months leading up to the cable leaks. McNamara — who goes by Zinnia Jones in online videos and blogs — is transgender. It is possible some people in the courtroom had never met someone who is trans* — or think they haven’t. McNamara would smash any retrograde assumptions. She’s confident and witty. There is nothing strange about her gender identity. She is a woman. Manning might be too. McNamara wrote for the Hufington Post, “when I talked with people who are in close contact with Manning, they all told me he currently identifies as male.” Coombes and the Bradley Manning Support Network also say he prefers to be addressed as Bradley. Manning might be female presenting as male, Manning might be non-binary; that’s for Manning to say.
Manning was tortured in part because he signed a few letters from the brig as “Breanna Elizabeth.” Marine Corps Master Sgt. Craig Blenis defended his cruelty in a December pre-trial hearing. Coombs asked why the marine thought Manning’s gender dysphoria should factor into his “prevention of Injury” status. Blenis answered because “that’s not normal, sir.”
But it is normal. Manning’s gender identity is as normal as his computer use. Using Wget, believing WikiLeaks to be a reputable news source in 2010, listening to Lady Gaga, identifying as a gender different from your assigned sex— this is all normal. It just might take another generation to see this. What is out of the ordinary about Pfc Bradley Manning is his extraordinary courage. If Manning is ever released, he will re-enter a world ready to embrace him, advanced with the understanding to recognize his greatness.
Without an informed and free press, there cannot be an enlightened people. That’s what this trial is really about
Thursday, 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.
Similar to Daniel Ellsberg in my generation, these men have put their idealism ahead of their personal fate. Certainly “they” tried to “get Ellsberg” but failed. This week, “they” forced down an aircraft that they thought might be carrying Snowden so it had to be rerouted. “They” will stop at nothing to assure that such a release of information never occurs in the future and we are kept in the dark.
Again the public has been “brainwashed” to believe that the ”truth” of these matters is not as they clearly are — like the weapons of mass destruction that were not! But no one appears to care, and the killing and the destruction go on.
Why should families here and in Afghanistan suffer so much? Why should our infrastructure suffer because the assets are used elsewhere to try to maintain the “empire” that we have created?
Anyone who knows history knows how this all will end if we do not change our goals and methods of operation — absolutely similar to the Roman Empire and many others.
As an anti-war veteran, my perspective on the Bradley Manning trial is that capitalism/imperialism has once again turned truth into a victim of war.
The Manning court martial trial presents challenges to vets. The government public relations campaign puts out allegations, disinformation and outright lies about what Manning is alleged to have done. Too often veterans are expected to support the official government and Pentagon positions no matter what, but anti-war vets typically don’t fit this traditional mold. We are outspoken, go against the grain and are demonstrative, for which we are criticized and attacked by conservative and pro-war forces.
The protests at Fort Meade, Md. where Pfc. Manning’s trial is taking place include many vets who are members of a number of anti-war veterans organizations as well as some who are unaffiliated.
Interesting piece on the Bradley Manning case from early March
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 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?”
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.
share this article on facebook or t
In media mythology, the years from the mid-1960s to the mid-’70s were the classical age, a heroic time of moral clarity.
Mainstream journalism marinated in adversarialism. Little Southern newspapers infuriated their own readers by staring down segregation. Foreign correspondents forced upon an unwilling public the realities of a brutal war. Network news ignored official disdain and showed the bottomless suffering the war inflicted on the innocents it was supposed to save. With the Pentagon Papers, newspapers defied secrecy rules to expose government lies. With Watergate, reporters forced out a corrupt president.
True, that retelling is a bit of myth-spinning; the media never were quite that gutsy. But myths illuminate. They remind us of values and aspirations. What we’d like to think was true then reflects what we hope might still be true now.
And over the past decade or so, it’s as if that classical formula of defiance and struggle has been turned upside down. Instead of halting war, the news media helped lead the charge into battle, stoking jingoism and spreading half-truths. Instead of unmasking civilian suffering, the media have kept the thousands of innocent Iraqi and Afghan war dead off-screen, pandering to the idea that the only victims worth compassion wear U.S. uniforms.
Even Watergate is upended, with Bob Woodward, one of the two Washington Post reporters who exposed the scandal, now the target of scathing revisionism because of a trivial dustup with a thin-skinned White House.
And looming above those breathtaking role reversals is the media’s disgraceful abandonment of the boldest news source of his generation, Pvt. Bradley Manning, a soldier who in 2010 defied secrecy restrictions to feed the most influential media in the world with leaks they gratefully published, which exposed corruption and duplicity, identified torturers, energized the Arab spring, and embarrassed officialdom worldwide.
The ferocity of the Obama administration’s attack on Manning and on Wikileaks, the online anti-secrecy organization that brokered his leaks to the media, has been withering. Manning spent the better part of a year in solitary confinement, undergoing maltreatment plainly intended to get him to finger Wikileaks founder Julian Assange as not just a conduit, but a co-conspirator.
Manning, now 25, is before a court martial in Maryland. After 1,000 days behind bars, he recently pleaded guilty to charges that could leave him there for another 20 years.
So the trial could end now, with Manning facing two decades in prison. Instead, the government is pushing ahead with a charge of “aiding the enemy,” technically punishable by death, likely to bring him life without parole.
According to Yochai Benkler, a Harvard law professor who’s assisting his defense, this is the first time in 150 years that anybody has been charged with aiding the enemy for leaking information to the press for general publication. Benkler says that makes secrecy breaches — an indispensable routine of journalism in the national security realm — a capital offense, if they annoy the wrong people.
The government hasn’t said what harm, if any, Manning’s leaks did to this country. The military court has indicated it doesn’t care.
Manning’s own explanation of what motivated him to leak the thousands of dispatches and cables is what you’d expect from an idealistic, thinly educated young man, at the time barely into his 20s:
“The more I read, the more I was fascinated with the way that we dealt with other nations and organizations. I also began to think the documented backdoor deals and seemingly criminal activity that didn’t seem characteristic of the de facto leader of the free world . . . The more I read the cables, the more I came to the conclusion that this was the type of information that should become public.”
The world’s most powerful news media agreed, and turned Manning’s leaks into riveting stories. (Just this month The Guardian and the BBC broke a sensational 15-month story about sectarian death squads in Iraq; it was prompted by reports he provided in which shocked U.S. soldiers described seeing Iraqi detainees who’d been tortured by their countrymen.)
But still, the media leave Manning to face his accusers in a tribunal that is barely public, and by and large the media that were his beneficiaries can’t be bothered to staff the trial that will determine his fate.
He was a great source. His information was solid. The world’s best news organizations believed it was of immense public value. So now he goes to jail, perhaps for life, and the media stand in silence?
The columnist who looks back from 40 years hence will have to squint hard to find reason to be inspired by the courage of today’s media the way we still are by the media of that long-ago classical age.
RECENT DEBATES ABOUT social media commentary have brought the question of freedom of speech in Ireland into focus. While politicians seem to be on a quiet path to try and dampen the vigour of their critics, it is worth pointing out that in Ireland there is no unqualified right to freedom of speech.
Article 40.6.1.i of our constitution guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions. So far so good. Unfortunately it heavily qualifies the statement with a ‘however’ in that this right “shall not be used to undermine public order or morality or the authority of the State.”
The next line in the same article is where our famous blasphemy law comes from:
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.
All of these qualifications pretty much mean that freedom of speech in Ireland is whatever the government and judiciary of the day are having themselves. What precisely does “public order” mean? What is the “morality” of the state? Or its authority? What’s seditious or indecent?
There’s no constitutional appendix outlining what can and can’t be banned under these loose phrases. The judiciary tends to adopt a conservative view when interpreting these clauses, to pretty much mean that whatever the state bans in law is constitutional. After all, their job is to interpret the wishes of the framers, and the esteemed Eamon de Valera was not shy when it came to censorship and upholding the morals of the nation.
In general Ireland today is a tolerant and open democracy, where most of the censorship is self-imposed for the benefit of social normality or from fear of litigation, like the way we report on car accidents or former persons of interest to tribunals. There are however government curbs on freedom of speech as well as hangovers from our more uptight Archbishop McQuaid days.
The Minister for Finance, for example, has the power under the Credit Institutions (Stabalisation) Act 2010 to take some fairly extreme financial action and ban any open discussion of the details; or even publishing that such an order or direction has been made. Days after that act was passed €3.7 billion was transferred from the state to AIB with journalists kicked out from court before the matter was discussed. Whether or not other orders have been made with your and my money at stake I can’t tell you.
Even if a concerned citizen involved in the process were to leak the details, they could not be published without severe punishment falling on the heads of those involved.
In terms of context rather than content, I’m reminded of the leaking of the Pentagon Papers and their publication in 1971. The papers were a classified Pentagon study of the war in Vietnam exploring how the US government had effectively lied about its involvement in that war and its escalation.
Though the papers were classified, the New York Times’ legal counsel argued that under the first amendment to the US constitution the press had a right to publish information significant to the people’s understanding of the Vietnam War. The Nixon administration sought an injunction against publication. If such a thing were to happen in Ireland, I’d say everyone would run for the hills and the publication in question would be in it deep.
In the US, the Washington Post joined in the publication and the US Supreme Court ruled that the US government did not have the right to censor the press on the matter. The court found that the right to free speech was more important to the security of the Republic than the “broad and vague” definition of security that the government wanted to preserve.
The Supreme Court Justice Brown actually made reference to a few of the things that are qualifying statements in our own constitution during his summary. He said that the framers of the first amendment specifically thought that strength and security came from providing “unabridged” freedom of speech, press, religion and assembly.
There is presently open talk of regulating new media and social communication online in Ireland, and Declan Ganley has just won a landmark defamation case against a Twitter user. I’m not for the right of anyone to bully, harass or harm the reputation of anyone else freely and without any fear of consequence. I do believe however that in Ireland there is too much scope to stifle free speech, if not explicitly in law then from the bully pulpit or through the threat of legal consequences.
In the US the right to absolute freedom of speech allowed the publication of the Pentagon Papers. It also leads to some fairly vitriolic discourse in politics and, ultimately, it is the freedom enjoyed by people like the Westboro Baptist Church who picket funerals with slogans like “God Hates Fags”. The trouble with trying to ban this sort of distasteful stuff is that the net, ultimately, can be extended to catch other things. It was one of our former Attorney Generals during the campaign against Oireachtas inquiries who pointed out that a constitution is not designed to protect you from a benign government.
Ireland is a country where the Republic has been blighted by corruption and mismanagement at its very core; where we can hardly get adequate protections together for whistleblowers; and where the economy is in ruins – but the government can do things with your money and ban anyone from even saying it happened. I believe that instead of talking about regulation of communications, we should be opening up our own First Amendment-like rights.
We should get rid of the qualifying statements from our Constitution on freedom of speech. It’s not for the state to decide if what you or I say is undermining public morality. It’s more seditious to the security of democracy to allow politicians and civil servants to decide if what you or I are saying is seditious. Too much free speech is stifled by the person with the deeper pockets who can pay their solicitors and senior counsels to run down to the High Court.
Yes, a completely free debate can become vitriolic. Then again, nobody takes the Westboro Baptist Churches of this world all that seriously for their abuse of their freedom. And in not regulating that freedom, you don’t run the risk of stifling somebody who has something important to say.
Aaron McKenna is a businessman and a columnist for TheJournal.ie. He is also involved in activism in his local area. You can find out more about him at aaronmckenna.com or follow him on Twitter @aaronmckenna.