The Dangerous Logic of the Bradley Manning Case

[Jefferson23]

March 1, 2013

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 prosecutor’s answer was simple: “Yes Ma'am.”

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.

in full: http://www.newrepublic.com/article/112554#

[PuraVidaDreamin]

1. They want us so in lock step or if we challenge....

There will be only 4 options and you wont really get to choose
1. in prison for life
2. death sentence
3. being disappeared/ or horrible accident
4. and your only decision, committing suicide

[Jefferson23]

2. It's pretty damn bleak, isn't it? n/t

[struggle4progress]

3. Manning faces court martial under UCMJ: the "aiding the enemy" charge

falls under UCMJ Article 104. Manning faces court martial under UCMJ: the "aiding the enemy" charge falls under UCMJ Article 104. Article 104 asserts "Any person who ... without proper authority, knowingly ... gives intelligence to ... the enemy, either directly or indirectly; shall suffer ... such ... punishment as a court-martial ... may direct.” Despite Benkler's claim, UCMJ does not apply to civilians.

Similarly, despite Benkler's claim, Manning does not face the death penalty. There has been no military execution for more than fifty years: the last was for the rape and attempted murder of an 11yo girl in Austria. The handful of persons currently on the military death row have all been convicted of murder: the most recent death warrant (signed by Bush in 2008) was for a soldier, who had already pleaded guilty in civilian court to five rapes and two murders, and who had been sentenced unanimously by the military jury; that warrant was stayed to allow appeals. The prosecution has not sought the death penalty in Manning's case. Manning has waived a jury trial and has voluntarily offered to plead guilty to various lesser-included-charges: but in capital cases under the UCMJ, the defense is not allowed to plead guilty, nor may a jury trial be waived: an unanimous jury verdict is required to impose a death sentence

Of course, it is difficult to know whether Manning "knowingly" gave "intelligence to ... the enemy ... indirectly" but he certainly released hundreds of thousands of documents to a foreign national "without proper authority." There is reason to think the information was peddled to the Belorussian government to enable them to target domestic opponents, as well as reason to think Taliban commanders used the information to target their opponents. IIRC conviction under Article 104 does not require that "the enemy" actually receive the intelligence but merely that the act was done "knowingly" and under circumstances making receipt of the information possible, even "indirectly." The article is broadly drafted, of course, in order to cover a wide variety of cases in which soldiers by various means deliberately transmit information in a manner such that "the enemy" could receive it. Manning therefore might fall afoul of the article if he understood that "the enemy" could receive the intelligence: it may be difficult for him to argue he did not understand that, since he has stated he expected considerable attention to and considerable public debate over the documents he released

I know of no evidence that US prosecutors have targeted any journalists in association with Manning's releases. Nor does Benkler offer any evidence of such targeting

Facts and Figures
Military Death Penalty Information