Since the audio of whistleblower Bradley Manning's statement to the court leaked last week, it's becoming clear how much of a threat the government's "aiding the enemy" charge against Manning threatens all whistleblowers. Famed law professor Yochai Benkler and First Amendment scholar Floyd Abrams wrote an op-ed in the New York Times denouncing the unprecedented charge, and this past weekend, On The Media dedicated its whole program to Manning's trial.
Today, however, the Wall Street Journal's Gordon Crovitz has written a column not only supporting the "aiding the enemy" charge against Bradley Manning, but also dangerously insisting WikiLeaks should be charged under the Espionage Act as well. The column is filled with critical factual errors and deserves a closer look.
Crovitz starts off by listing the reasons Manning allegedly "aided the enemy" by leaking information he wanted the US public to read and debate:
Among the prosecution's more than 100 witnesses will be a Navy SEAL who participated in the raid in Pakistan that killed Osama bin Laden. He'll testify to finding Manning-Assange documents on the terrorist leader's computer. Prosecutors are seeking a sentence of life in prison without the possibility of parole.
The fact that this is most prominent piece of evidence against Manning underscores, rather than rebuts, how dangerous the "aiding the enemy" charge is. Osama bin Laden was also a fan of famed reporter Bob Woodward’s books, going as far as to publicly recommend everyone read them. It’s also worth noting Bob Woodward regularly publishes Top Secret classified information, which is a higher secrecy classification than anything WikiLeaks has ever published.
Using the government’s theory in Manning’s case, virtually every four-star general in the armed forces—Woodward’s go-to sources—would be guilty of aiding the enemy as well.
The key element of this espionage charge is intent: Did Pfc. Manning mean to give intelligence to the enemy? In his 35-page plea, Pfc. Manning describes himself as a whistleblower, but he doesn't explain what he was blowing the whistle on. The documents didn't disclose government wrongdoing.
Here’s a very long but incomplete list of all the government wrongdoing that was uncovered by the war logs and the cables. In addition, here is the Collateral Murder video showing the killing of two Reuters journalists by the US military, juxtaposed with Manning's audio description of why he released it.
Instead, WikiLeaks posted unedited diplomatic and intelligence cables that identified by name Iraqis, Afghans and others who were helping the U.S. war effort.
Again, Crovitz is just wrong on the facts. The Iraq War Logs were redacted by algorithm, so all names of innocent Iraqis were protected. Former New York Times editor Bill Keller even gives WikiLeaks credit for making better redactions than the Times would have by itself. While the Afghan war logs were unredacted, WikiLeaks held back approximately 15,000 of the documents to protect innocent Afghans, and to this day, the US government cannot point to a single person harmed by reprisals.
An expert witness for the defense, Yochai Benkler of Harvard Law School, wrote in The New Republic that bringing a case against Pfc. Manning is a slippery slope. He claimed that in the past, "no one has been charged with aiding the enemy simply for leaking information to the press for general publication." That is not true.
Actually, it is true. Crovitz cites the conviction of Samuel Morison from the 1980s, but Morison was charged under the Espionage Act, not with "aiding the enemy." Crovitz is confusing the two. “Aiding the enemy” is part of the Uniform Code of Military Justice, not a civilian law like the Espionage Act. While Manning is also charged under the Espionage Act—dangerous and draconian charges in themselves—the ‘aiding the enemy’ charge is wholly unique and unprecedented.
If Crovitz had even bothered read the charge sheet against Bradley Manning before writing his column, he would have known this. In fact, the main precedent the government is relying on is from the Civil War era. It is, as law professor Geoffrey Stone points out, not only absurdly outdated, but couldn’t be more different than Manning’s situation.
One reason federal prosecutors rarely charge news publishers under the espionage laws is that prosecutors understand that news organizations are different from spies. No one expects charges against the New York Times or any other news outlet that used the WikiLeaks documents.
First, prosecutors do not “rarely” charge news publishers under the Espionage Act, they never do. Twice before WikiLeaks—once with the Chicago Tribune during World War II, and once with the New York Times and the Pentagon Papers—the government tried to indict a newspaper. They failed to do so both times.
Second, just a few months ago, a House Judiciary subcommittee held a hearing where members of Congress declared they wished to see the New York Times reporters in jail for publishing classified information. The lead witness compared New York Times reporter David Sanger to a spy.
Crovitz ends his column like this:
But news executives and media lawyers should think twice before treating Mr. Assange as if he were a journalist. If leaders in the news industry blur the distinction between their journalists and self-proclaimed enemies of the state like Mr. Assange, they may encourage prosecutors to make the same false equivalence.
Here, for the record, are ten times the Wall Street Journal has quoted WikiLeaks cables in its news reporting. That list is over a year old; there are doubtless many more.