Bradley Manning’s trial threatens the rights of all future whistleblowers

Do you know the government’s main charge against Bradley Manning hinges on a case decided in the 1860s?

Most people don’t. And that’s because the trial of Manning, the Army private who has admitted to giving 700,000 government documents to WikiLeaks, is shrouded in secrecy, despite being one of the most important cases involving whistleblower rights in the United States in forty years.

The government has charged Manning under the Espionage Act and with “aiding the enemy”, under article 104 of the Uniform Code of Military Justice, which if convicted, could change both whistleblower rights and the First Amendment rights of US military men and women forever.

Regardless of one’s opinion on Manning’s act, it’s important to point out he has already taken responsibility for leaking documents and will face a steep punishment. He has already pleaded guilty to ten charges, for which he will reportedly face twenty years in jail, no matter what happens in his trial in the coming months.

The government’s argument is basically this: Manning “aided the enemy” because he gave classified information to a media organisation. The media organisation published this information on the internet. Al-Qaeda has access to the internet, and because some WikiLeaks cables were allegedly found on Osama bin Laden’s computer, Manning should be tried as someone akin to a traitor.

The most alarming part is the government doesn’t even have to prove the enemy actually used the information to damage the US. All they have to prove is Manning had “reason to believe” that the leaked documents could be used to harm the United States or to aid a foreign power.

Of course, newspapers publish classified information all the time. Open the New York Times or Washington Post any given day and you will find supposedly “secret” information on the front pages. The idea that relaying truthful information to a news organisation for public consumption could be akin to aiding the enemy should send shutters down the spines of all Americans, whether one believes what Manning did was right or wrong.

Take the nation’s most famed journalist, Bob Woodward. Osama bin Laden once recommended his followers read one of his books on President Obama’s war strategy. This book was also full of information considered classified. Does that mean every Army and Air Force general who was a source for Woodward “aided the enemy” as well? Of course not, but that’s where the Manning charge leads.

But as the ACLU’s Ben Wizner explained: “Article 104 is not limited to sensitive or classified information… 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.” Wizner continued, “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.”

There’s simply no modern precedent for this charge. University of Chicago law professor Geoffrey Stone is one of the few who have analysed the case that is being used against Manning. In the Huffington Post, Stone explained the Civil War case the government is relying on:

“In defense of its position, the military invokes an 1863 case in which a member of the Union army, Henry Vanderwater, published the roster of Union soldiers in a local newspaper. He did so using a code, so the import of the information would not be known to others. His purpose in doing this was to aid the Confederate army so they would know how many Union soldiers were available to defend the city. He was found out, court-martialled for aiding the enemy, and served several months in the brig before being dishonorably discharged.”

Manning, of course, did not publish any codes or purposefully release any information for the benefit of any enemy, but to “spark a domestic debate over the role of the military and our foreign policy in general“. He thought the information may be embarrassing to the United States, but certainly not harmful, and has been proven right. The US has not been able to point to a single person harmed by the disclosures in the three years since they were made public.

Even those who do not agree with Manning’s behaviour recognise the government’s folly. Floyd Abrams, who does not believe Manning is a whistleblower, wrote in the New York Times with Harvard Law Professor Yochai Benkler that the “aiding the enemy” charge could have huge implications for future whistleblowers, regardless of how Manning was categorised. They wrote:

“Under the prosecution’s theory, because Private Manning knew the materials would be published and that Al Qaeda could read them once published, he indirectly communicated with the enemy. But in this theory, whether publication is by WikiLeaks or The Times is entirely beside the point. Defendants are guilty of ‘aiding the enemy’ for leaking to a publishing medium simply because that publication can be read by anyone with an internet connection.”

They conclude: “Anyone who holds freedom of the press dear should shudder at the threat that the prosecution’s theory presents to journalists, their sources and the public that relies on them.”

Similarly, Former State Department spokesman PJ Crowley, who once led the anti-WikiLeaks task force in the State Department, wrote, “The US should be a beacon of justice, not a bully. Any further pursuit of Manning is a propaganda gift to the country’s enemies.” He concluded: “Whatever one thinks of [Manning’s] judgment, there is no indication he did anything with the intention of helping any adversary.”

So why aren’t the government’s extreme and unprecedented arguments more widely known? Part of the reason is the absurd secrecy surrounding the trial. As the Washington Post noted on Sunday, Manning’s judge “has read lengthy rulings from the bench but not made them available. More than 30,000 pages of classified and unclassified motions have been produced in the case, but none of the unclassified material has been released.”

Transcripts of the pre-trial hearings have not been released either. The media that shows up to the court hearings are left furiously scribbling as the participants run through a complicated set of acronyms and dates that leaves everyone confused. Media organisations that don’t send a reporter to the court have no way of accurately reporting on the government arguments, leaving the public with no way to properly analyse the scope of the government’s arguments.

At Freedom of the Press Foundation, we’ve crowd-funded almost $60,000 to pay for two court stenographers to sit in the media room to transcribe the trial for the public, since the government refuses to release transcripts of their own. Unfortunately, the government granted only 70 media passes, despite more than 350 media organisations requesting them. We at Freedom of the Press Foundation are left without a press pass for the start of the trial, along with more than 280 other media organisations, with no way to report on the trial.

We hope the military will reverse this impediment to public access – and if a media organisation would like to let us borrow their press pass for this endeavour, please let us know. We’ll be posting the transcripts hours after each day’s proceedings and hope we can bring a little transparency to this trial, since the government seems unwilling to bring it to the public itself.

Trevor Timm is co-founder and executive director of Freedom of the Press Foundation, an organisation dedicated to supporting cutting-edge transparency journalism focused on bringing transparency and accountability to government.

Follow him on Twitter: @trevortimm