Split Decision

Now that he’s been found not guilty of the charge of “aiding the enemy” but guilty of violating the Espionage Act, some will say that this vindicates their decision to call Bradley Manning a martyr, and others will feel vindicated in calling him a criminal and fret instead that he didn’t get an even more strenuous conviction. To me, the verdict seemed to get it pretty much right.

The entire charges are a bit long to reprint here. But some portions of the Espionage Act appear to be right on point for what Manning did — I refer you specifically to 18 U.S.C. § 793(e), the statute underlying the bulk of the charges Manning faced:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it… Shall be fined under this title or imprisoned not more than ten years, or both.

Careful readers, or lawyers trained to look for such things, will notice that there is no intent element in this statute. That Manning subjectively believed (whether reasonably or not) that what he was doing would ultimately benefit the United States is completely irrelevant. He got classified security information (it would appear unlawfully, although see section (d) of the same statute if he got it lawfully), and he delivered it to Wikileaks, an entity that he knew or should have known would have put nearly all of it on the internet where the Real Bad Guys could read it and make use of it, and that he knew or should have known was not authorized by United States law to receive that information.

On the other hand, while Wikileaks could only be anticipated to have made whatever Manning gave it public, and thus available to the actual enemies the United States faces, Wikileaks itself is not an “enemy” of the government, merely an annoyance to it. So the charge of “aiding the enemy” would not seem to fit:

Any person who–(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) without proper authority, knowingly harbors or [protects or 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.

The bitter response of those who think Manning’s dump of classified documents to Wikileaks was a heroic act is at least understandable, although I’m not sure I sympathize with it. Consider, for example, David Harris Gershon:

…a soldier who served the public interest by exposing war crimes and revealing gross legal violations by our government, will face a maximum of 136 years behind bars, likely in solitary confinement. … Seriously, I don’t want to hear any lectures about how Manning deserves this time because he “broke the law.”

Gershon is right about one thing: the state will protect itself, right or wrong (like anyone or anything else with access to the courts, I might add). But he’s wrong to so quickly dismiss the rather obvious fact that Manning indeed did break the law. Gershon may protest, Bumble-like, that the law is an ass, but that doesn’t mean it isn’t the law. And the law was broken. That fact is not to be waved away.

Is anyone willing to go so far as to say that everything Manning disclosed was wrongfully classified? Or harmless? I can’t find it in myself to make that claim, even if some of what he dumped demonstrates that the government was up to questionable and even illegal things. I’m not even all that certain that it should be made clear what harm resulted from the data dump. Some things ought to be classified and not made general knowledge. And there ought to be a consequence for breaching that confidentiality.

I’m not sure if the word “whistleblower” is exactly right. It seems to me that the duty of loyalty one owes one’s employer means one ought to make some kind of good faith effort to raise their concerns via an internal procedure before going public. I don’t know if either Manning or Snowden did that.I can understand why they might feel that doing so would effect no change and only produce harm to themselves. I cannot sympathize, though, with not trying — having made the decision that what was at stake was important enough to go public and invite criminal prosecution, prudence and loyalty would suggest taking a less dramatic step first.

Manning, along with his spiritual cohort Edward Snowden, almost certainly had sober and significant moral and legal concerns about things they saw the government was doing, about the reach of the security state in terms of both its intrusiveness and its lack of meaningful checks and controls. The public may very well benefit from their exposure of what the security state was doing in the form of the creation of some sort of meaningful controls and balancing of individual privacy rights against (or, as I prefer to say, “with”) the need to keep the nation secure and at peace.

So if the public has benefitted from these violation of the law, that is one of the reasons that executives have the power to grant clemency. If Bradley Manning can demonstrate that the nation has tangibly benefitted from his data dump to Wikileaks, then the place to argue that is not in a court-martial, which is charged with determining the truth of whether a particular law was violated. The place to argue that is in a request for a commutation of sentence or a pardon, addressed to the President of the United States.

What can be done between then and now, for the admirers of people like Manning, is to use the momentum of the public interest to impel Congress to pick up its mandate of oversight, and to insist that the government conform to the Constitution’s ban against unreasonable searches and seizures. If that happens, then a claim that Manning martyred himself to benefit the public will have meat on its bones.

This President seems unlikely to issue such a pardon. Perhaps his successor will see things differently — but only if the rest of us in the body politic make clear that we insist on having both liberty and security, and that we expect and demand that our leaders find a way to provide us with both.

For if there is public benefit from these young men throwing their careers and liberty away, it has not yet manifested. To the extent that we change our ways and impose meaningful Fourth and Fifth Amendment controls on the reach of our national security apparatus, then Manning and Snowden are heroes rather than villains — and to the extent that happens, justice would be served by an executive reduction of their sentences.

But if it turns out that as a people we don’t actually care enough about our own privacy and liberty to restrict the security state, then why should we care about these young men who took the government’s money to keep its secrets and then betrayed it? So we could have a dialogue about it and conclude that they were wrong?

They broke the law. That matters. But whether these young men are properly called “heroes” or “fools” is a matter that is now in your hands and mine.
 
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.