How Today's Ruling in the Bradley Manning Case Could Adversely Affect Journalists and Whistleblowers

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A version of this post originally appeared on the ACLU Free Future blog in 2012. It has been updated and cross-posted with permission from the author.

Today, the military judge overseeing the court martial of Pfc. Bradley Manning, who has admitted to giving government documents to WikiLeaks, is expected to rule on the prosecution’s charge of “Aiding the Enemy.” The charge, which is akin to treason and is punishable by death, is separate from the charges that Manning has already pled guilty to — that he leaked sensitive documents to people unauthorized to receive them. The government’s inclusion of this charge raises enormous problems, and a conviction of Manning in these circumstances would be unconstitutional.

The key to the government’s case is this simple claim: that posting intelligence information to the internet aids Al Qaeda because Al Qaeda has access to the internet.*

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The implications of the government’s argument are breathtaking. To understand why, it helps to recall the experience of another soldier. In December of 2004, Defense Secretary Donald Rumsfeld held a town-hall style meeting for troops who were preparing to deploy to Iraq. Following his remarks, Rumsfeld was confronted by an Army specialist who complained about the inadequacy of the combat equipment provided by the military.

“Our vehicles are not armored,” said Specialist Thomas Wilson, an airplane mechanic with the Tennessee Army National Guard. “We’re digging pieces of rusted scrap metal and compromised ballistic glass that’s already been shot up . . . to put on our vehicles to take into combat. We do not have proper vehicles to carry with us north.”

The soldier’s question — and Rumsfeld’s now infamous response that “you go to war with the army you have, not the army you might want or wish to have” — were front-page news around the world. And while war cheerleaders like Rush Limbaugh accused Specialist Wilson of “near insubordination” for embarrassing the defense secretary in a public forum, there was no suggestion in serious quarters that he face punishment — much less prosecution — for his words.

Yet the government’s decision to prosecute Manning for “Aiding the Enemy” threatens to make public comments like Wilson’s grounds for criminal prosecution. The government does not contend that Manning gave any information to Al Qaeda, or even that he intended that Al Qaeda receive it. Rather, it claims that Manning “indirectly” aided Al Qaeda by causing intelligence information to be posted on WikiLeaks’ website, knowing that Al Qaeda has access to the internet. Specifically, the government contends that Manning violated Article 104 of the Uniform Code of Military Justice, which provides that “any person who . . . gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

Article 104 is not limited to sensitive or classified information — it prohibits any unauthorized communication or contact with an enemy. So, if the government is right that a soldier “indirectly” aids the enemy when he posts information to which the enemy might have access, then the threat of criminal prosecution hangs over any service member who gives an interview to a reporter, writes a letter to the editor, or posts a blog to the internet.

For example, there are now more than a thousand enlisted military bloggers. According to Stars and Stripes, “Army officials . . . encourage troops to blog as long as it doesn’t break any operational security rules, and they see it as a good release for servicemembers.”

Are these bloggers aiding the enemy? Prior to Bradley Manning’s case, charging anyone with that crime in the absence of any allegation or evidence that he had intended to aid the enemy would have been inconceivable.

The crux of the government’s case against Manning — that he leaked sensitive documents without authorization — in no way depends on branding him a traitor. Indeed, some courts have held that leaks may be punished even if the leaker’s motive was purely patriotic. In its zeal to throw the book at Manning, the government has so overreached that its “success” would turn thousands of loyal soldiers into criminals.

Which brings us back to Specialist Wilson — and, for that matter, Donald Rumsfeld. Both men spoke openly about the vulnerability of U.S. forces in Iraq. Both men surely knew that the enemy would watch their exchange on television or read about it on the internet. The notion that Wilson and Rumsfeld broke the law by communicating this information to the media and thereby “indirectly” aiding the enemy is absurd — but no more so than the government’s contention that Bradley Manning did so.

*The military judge has previously ruled that prosecution does not need to prove Manning had the specific intent to "aid the enemy" to be convicted.

Ben Wizner is the director ACLU’s Speech, Privacy, and Technology Project. A version of this post originally appeared on the ACLU Free Future blog.

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