Wikileaks founder Julian Assange feels vindicated at the moment that his source, Bradley Manning, goes on trial for handing over hundreds of thousands of pages of sensitive material. The US government eschewed a plea bargain (and Manning’s guilty plea to lesser charges) in order to try Manning for “aiding the enemy.” The prosecution made its opening argument yesterday:
In an hour-long opening statement for the prosecution on Monday, Captain Joe Morrow told the court martial that the US army private had been motivated by a craving for “notoriety” that had led him to disregard his extensive training and to the “aid of our adversaries”.
The prosecution statement made new allegations about the links between Manning and Julian Assange, founder of WikiLeaks. Morrow said that Manning had directly assisted in the editing of the Apache helicopter video of a US attack on civilians in Baghdad, and the court was shown extracts of a chat log between the soldier and Assange.
Prosecutors also alleged that Manning had been guided in his searches by the WikiLeaks “most wanted list”. …
Of the 21 counts faced by the army private on Monday, by far the most serious is that he knowingly gave intelligence information to al-Qaida by transmitting hundreds of thousands of classified documents to WikiLeaks.
Manning is accused of “aiding the enemy”, in violation of Article 104 of the Uniform Code of Military Justice. The prosecution alleges that by indirectly unleashing a torrent of secrets onto the internet, Mannning in effect made it available to Osama bin Laden and his cohorts.
I suspect that the government will have to exert itself to sell that argument. Broadly speaking, that could be said about any leak during wartime that has to do with national-security secrets. We have existing laws that deal with these leaks in degrees for a reason, although all of them are serious crimes with hefty prison sentences. Usually, “aiding the enemy” requires an intent and action to directly aid the enemy rather than just leaking classified material to a publisher. This at least hints at prosecutorial overreach, and it may end up leaving egg on the faces of the government if they can’t make that case.
Assange tells the Huffington Post’s Ryan Grim that the US media’s failure to rally to Manning’s defense — and his — emboldened the Obama administration to abuse their power with the Associated Press and James Rosen:
The U.S. media made themselves vulnerable to attack by the Department of Justice by standing aside as WikiLeaks and Army Pfc. Bradley Manning were targeted several years ago, Julian Assange told The Huffington Post in an interview from the Ecuadorian Embassy in London, where he is holed up fighting extradition to Sweden.
“All rights are fought for and maintained,” the WikiLeaks founder said. “As soon as organizations or people stop demanding that their rights be protected, then they are overrun and the current situation results.” …
“It is a disgrace to charge [Manning with] communicating with the enemy and to make it a capital offense — to threaten to either kill him or make him spend life in prison. The prosecution has refused to drop that charge. The reason that charge is there, and it should be a wake-up to all U.S. journalists and publishers, is to establish a precedent,” said Assange.
“The precedent works like this: If you communicate with a journalist, then you communicate with a publisher, then you communicate with the public, then you communicate with al Qaeda — so you communicate with enemies of the United States, and as a result your communications with a journalist must be punished by death or life imprisonment. If tolerated, that will lead to regimes where every U.S. government source, when speaking to a journalist, must be concerned that they will suffer either the death penalty or life imprisonment as a result. Now having established that, the U.S. government will have set the precedent that not only is the [source] indirectly communicating with al Qaeda by communicating with the public, but the publisher and the journalist is as well. And therefore the publisher and the journalist can be embroiled in espionage charges, some of which similarly carry the death penalty,” Assange said.
Assange might have a point in regard to Wikileaks, which was the publisher of the material, and filled the same role as the New York Times or Washington Post when those newspapers revealed classified data for their own scoops. He’s correct that this seems to be the position the Department of Justice took with Rosen, at least in general, by representing to a federal court that Rosen was a potential co-conspirator in espionage. I’d be surprised if Rosen turned out to be the only case in which Justice tried to use that mechanism to get around federal regulations in leak investigations, especially since they succeeded with Rosen.
However, Assange is most decidedly incorrect when it comes to Manning. He may have a case for arguing prosecutorial overreach, as I noted above, but Manning is not analogous to Rosen, the AP, or even Wikileaks. As I point out in my column for The Week, Manning is a source, not a reporter, and the distinction is important:
Those with clearances are briefed on how to raise issues on legality and ethics within the parameters of security, and none of those processes involve sending the data to a newspaper. If all else fails, one can contact a member of Congress to discuss whatever issue arises, especially those on committees with oversight of the activities involved. That’s doubly true for those within the military, where chain-of-command prevails in most cases. Manning made the whistleblower defense even more difficult with his indiscriminate release of material — hundreds of thousands of pages of classified cables and other data — that belies a compelling need to expose any specific wrongdoing.
All of the above applies to both the Rosen and AP cases, too. In both cases, the leaks involved were serious and could have compromised people on the ground in sensitive operations. The DOJ screwed up not in its pursuit of leakers, but in the way it pursued reporters. Congress enacted regulations in the wake of Watergate to ensure that the Department of Justice acted in a restrained fashion when dealing with the media in leak investigations, 28 CFR 50.10. In theAP case, Justice ignored its provisions. With Rosen, Attorney General Eric Holder signed a warrant request that accused a journalist of being a potential co-conspirator in espionage to get around those regulations. On top of that, Holder then misled the House Judiciary Committee on May 15 by stating that he’d never heard of any such effort, only to have his direct involvement in the warrant application exposed by NBC News eight days later.
To some, this may seem a distinction without a difference. If government goes after leakers, sources for reporters will dry up, Hedges claims, representing a de facto end to freedom of the press. That, however, also confuses the roles of source and reporter, and it flies against common experience over the last few decades, too.
People have an almost irrepressible desire to tell secrets, especially those that don’t belong to them, which is why government has to establish strong deterrents to leaks that could get people killed and damage our ability to defend ourselves. The real danger lies in making criminals out of reporters and espionage out of normal source-currying behaviors, establishing precedents that will allow those in power to deter journalists from pursuing legitimate stories about the way in which our government operates. That is both a distinction and a difference, and one that matters to both national security and freedom of the press.