The Bradley Manning Matter

Private First Class Bradley Manning.

By Ralph E. Stone

June 15, 2013

Bradley Manning, a U.S. Army soldier, admitted sending 700,000 government documents to Wikileaks in 2010.  It was the biggest leak of classified information in U.S. history.

Manning is now charged under Articles 92 and 134 of the Uniform Code of Military Justice (UCMJ), which incorporates parts of the Espionage Act in Article 106a of the UCMJ.  The Manning case is ongoing at Fort Meade, Maryland.

On April 10, 2013 Colonel Denise Lind, the military judge handling Manning’s case, imposed a demanding burden on the prosecution, ruling that prosecutors must prove beyond a reasonable doubt that Manning had reason to believe his actions would harm the U.S. or aid a foreign power.

Basically the government is saying that leaking classified information to a publication is the same as leaking to the enemy.  Ironically, a publisher has a First Amendment right to publish leaked information, whereas Manning has no right to leak the information.

The prosecution rejected Manning’s offer to plead guilty to several charges including misusing classified material, which would have meant up to 20 years in jail.  The government, instead, is playing hardball, treating Manning like a traitor rather than a leaker.  This is the first time that someone is being charged with aiding the enemy simply for leaking information to the press.  If he is found guilty of “aiding the enemy,” Manning could receive a sentence of life in prison or even the death penalty.

Clearly, there is a need for some government secrecy.  For example, military plans, intelligence sources, undercover agents, and the capabilities of weapon systems.

Trouble is, when an individual decides to release classified documents, it is often done indiscriminately. That is, information that is classified because its release will embarrass the government as well as information that probably should be kept classified.

According to Manning testimony, “Given all of the Department of State information that I read, the fact that most of the cables were unclassified, and that all the cables have a SIPDIS caption [messages intended for automatic Web publishing, according to the U.S. Department of State Foreign Affairs Manual], I believed that the public release of these cables would not damage the United States; however, I did believe that the cables might be embarrassing, since they represented very honest opinions and statements behind the backs of other nations and organizations.”

It is important to note that Manning testified “most of the cables were unclassified” indicating that possibly some were not.

Thus, prosecutors will attempt to show that the release of some of the leaked information placed U.S. service personnel in harm’s way or exposed sensitive intelligence activities.  For example, the prosecution has already presented evidence that code words and the name of at least one enemy target were revealed, and a leaked video of a U.S. Apache helicopter attack that ostensibly revealed sensitive information that could help enemies plan deadlier assaults.  I expect the prosecution will present more such evidence.

By his own admission, Manning broke the law by releasing classified information and for that, at the minimum, he probably will face a less than honorable discharge and some jail time.   But even if it can show some of the leaked material may have aided the enemy, the prosecution will have to show beyond a reasonable doubt that Manning had reason to believe his actions would harm the U.S. or aid a foreign power.  This is a difficult burden for the prosecution.

Manning has been in jail since his arrest on May 29, 2010.  He spent his first nine months in a Marine brig in Quantico, Virginia where he was reportedly held in solitary confinement for 23 hours a day, forced to sleep naked without pillows and sheets on his bed, and restricted from physical recreation or access to television or newspapers even during his one daily hour of freedom from his cell.  This maltreatment was all under the pretense that the Manning was a suicide risk.  His treatment caused a public outcry as his treatment was reminiscent of the conditions of suspected terrorists held at Guantánamo Bay.

The Manning case, Daniel Ellsberg’s release of the Pentagon Papers, and the recent case of Edward Snowden, the National Security Administration leaker, remind me of Henry David Thoreau’s “On the Duty of Civil Disobedience.” Thoreau argued that individuals should not permit governments to overrule or atrophy their consciences, and that they have a duty to avoid allowing such acquiescence to enable the government to make them the agents of injustice. Thoreau was motivated in part by his disgust with slavery and the Mexican-American War.

The government has the right and possibly the duty to prosecute Manning for leaking classified information.  However, the government here has overreached by charging Manning with treason for an act that is criminal at most.

If Manning is convicted of treason, will this deter others from engaging in similar acts of civil disobedience?  I doubt it.  There are about 1.5 million Americans with top secret clearances who work for the government or private contractors.  That’s a lot of potential leakers if the public’s understandable distrust of government continues unabated.

Ralph E. Stone

I was born in Massachusetts; graduated from Middlebury College and Suffolk Law School; served as an officer in the Vietnam war; retired from the Federal Trade Commission (consumer and antitrust law); travel extensively with my wife Judi; and since retirement involved in domestic violence prevention and consumer issues.

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