Split Decision


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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36 Responses

  1. Avatar Michael Drew says:

    Anyone fretting that he wasn’t convicted on more counts, particularly on aiding the enemy, is… I don’t know. In need of a re-evaluation of political priorities, or something.

    I tend to agree with the rest of what you write here. He deserved to be convicted. He may deserve a significantly lighter sentence than he is likely to receive because of the value to the public of his actions; I would certainly support that, so long as some deterrent to the kind of freelancing he did remains in place. (You can freelance on releasing classified information in the national-security space and deserve no punishment by my lights, but you have to get it absolutely, 100% right, and the need for the public to see what you release has to be great. If the most revelatory thing you reveal to the public is that civilians get killed in war and 99% of what you release is less revelatory of official malfeasance than that, you haven’t met that standard.)

    The Snowden case, if it’s ever tried, will be significantly more problematic from my, and I suspect Burt’s, perspective. I have thoughts on it composed, but I’m not sure they’re really what I think anymore, which makes it hard to edit the writing to make it fit for publication. Hopefully I’ll figure it out and post soon. Kinda waiting for it to come back in the news in a bigger way again so as to “hook” it to something.Report

  2. Avatar Mike Schilling says:

    will face a maximum of 136 years behind bars, likely in solitary confinement

    If that’s accurate, it’s an Eighth Amendment issue. There is no justification for anything as destructive as extended periods of solitary except being a danger to those around you, and there is no suggestion whatsoever that Manning is violent.Report

  3. Avatar Kolohe says:

    What 4th and 5th amendment violations did Manning expose?Report

    • Avatar Burt Likko in reply to Kolohe says:

      It’s unclear at best that Manning exposed violations of the Constitution, unless one were to say that the Iraq and/or Afghanistan wars are themselves constitutional violations. What he exposed were a variety of diplomatic and military activities. There are suggestions that a variety of laws have been broken in the course of those activities and there is certainty that a lot of information and video was very ugly looking.

      Contra Kim infra, I’m not clear that Manning redacted any of this the information as opposed to Wikileaks — the names of certain people, mainly sources of information, were redacted in the versions of the documents released to the public.Report

      • Avatar Kim in reply to Burt Likko says:

        Concurring with your assessment, however, he may have entrusted the data to Wikileaks with the understanding that their information scientists would scrub it properly.

        If we were to ask anyone who wants to be a whistleblower to be an information scientist… I think that’s kinda unreasonable.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        Which is to say, I haven’t combed through the thousands of pages of documents on Wikileaks myself and rely on digests prepared by others, so there may be evidence suggesting constitutional violations in there.

        So maybe in Manning’s case the putative public benefit might one of exposing violations of laws inferior to the Constitution. I can see ways in which that might play out to the public benefit. I do not see that it has done so yet.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        My hesitation to agree with your assertion that it is unreasonable to ask that a whistleblower also be an “information scientist” is twofold.

        First, having voluntarily assumed for herself the task of deciding what should or should not be public knowledge, the whistleblower has inherently assumed for herself the responsibility of mitigating any harm to the public that will result from her disclosure. So if the whistleblower outsources her responsibility to mitigate collateral damage when making a public disclosure of malfeasance, then she has also outsourced her prudence and assumes responsibility for what that third party does in fulfillment of her duty. So in former PFC Manning’s case, if Wikileaks did an incomplete job of redacting documents it made public, and harm was caused thereby (as, for instance, Professor Woo darkly but vaguely hints in the article I linked in the OP) moral blame for causing that harm properly resides with former Manning.

        Second, in the specific cases of Bradley Manning and Edward Snowden, both of them actually are “information scientists,” meaning the recipients of specialized training in the sorting, analysis, and manipulation of the very information they caused to be made public.Report

      • Avatar Kim in reply to Burt Likko says:

        I concur wholeheartedly with your first point. If you’re going to outsource, it’s your responsibility to make sure they’re responsible, and that they haven’t screwed up.

        When I say information scientists, I mean folks trained in information theory. It’s a rather specialized field in computer science (and some might even say obsolete. it’s certainly little used and less taught).Report

  4. Avatar Kim says:

    “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation”

    … how is this not intent?

    I ask, because it would appear that he did as much as could reasonably be expected to mitigate or erase the ability of other nations to use this data to harm America.

    We have protocols in America for data that we expect to be reasonably sensitive (“Secret” level, to use military parlance) — HIPAA spells a good deal of them out. He apparently made certain that the data got scrubbed before being sent out.Report

    • Avatar Burt Likko in reply to Kim says:

      The reason that clause of 18 U.S.C. § 793(e) is not intent is because that clause describes the information, not the person who transmits it or the reason for its transmission. Compare that to 18 U.S.C. § 793(a), which describes the motive behind particular kinds of information-gathering, or even better, to 18 U.S.C. § 794(a) which is explicit about the intent of the defendant.Report

  5. Avatar Kim says:

    got a comment stuck in moderation.Report

  6. Avatar zic says:

    @burt-likko you got a sully link. Congrats on the well-deserved exposure.

    Personally, after my years of writing about military/civilian business efforts, I can only conclude that many folk who handle classified information leak it every day, simply because so much is classified here, but the same bit of information is not classified there. There is simply no way to sort it out.

    Secrecy and security classifications should have good cause; and I don’t think the vast majority of what’s classified rises to a reasonable standard for secrecy in a free society. Much of what Manning leaked was simply shoddy operations in Iraq and Afghanistan; and we would have been better off if that information had been public, simply on the theory that sunshine and eyes might have resulted in better choices.Report

    • Avatar Will H. in reply to zic says:

      IIRC, persons with “Classified” security clearance are permitted to see secret and top secret documents, however the classification of those documents as “Secret” or “Top Secret” is not to be disclosed to them.

      The vast majority of “classified documents” are classified because they’re awaiting review to determine if there’s anything secret or top secret in there. It’s one big hold area.Report

  7. Avatar Damon says:

    The guy exposed practices that are abhorrent to reasonable people everywhere. Several Admin officials have admitted that what data he released had no significant impact on national security. Nothing I’m aware of jeopardized covert agents, etc. Maybe it embarrassed people, but so what.

    What he exposed was wrong doing by the state department and exposed the hypocrisy of our gov’t in its dealings with others, such as calling out certain behavior as terroristic when you do it yourself. I’m referring to the video footage of us soldiers shooting civilians then waiting until emergency services arrived and shooting them. And shooting children.

    Not only that, this guy deserve to walk for time served for the following reasons 1) see above 2) his torture and treatment while in custody. He’s paid enough of a price for doing what was right. If I’ve not mistaken, his oath was to protect the county from all enemies, foreign and domestic. The last several admins certainly qualify as falling into one of those categories.Report

    • Avatar Burt Likko in reply to Damon says:

      As I argue in the OP, this reasoning would be persuasive and appropriate in a petition for clemency. He did leak classified documents, and that is a crime.

      That he was tortured during the early days of his confinement is as inexcusable as (at least some of) the substantive conduct he exposed to the light of day, but still irrelevant as to the issue of whether he leaked classified documents.Report

      • Avatar zic in reply to Burt Likko says:

        That he was tortured during the early days of his confinement is as inexcusable as (at least some of) the substantive conduct he exposed to the light of day, but still irrelevant as to the issue of whether he leaked classified documents.

        I heard on the radio (NPR) that the judge had already taken 100 days of any sentence because he was tortured; thought the broadcast said, “mistreated.” That is significant, and bears remark as such if what I heard was accurate.

        That said, I agree with you that it lacks significance concerning his crime of leaking classified docs; they’re separate crimes.

        I do wonder about another thing here; @burt-likko. Does there seem to be any potential for ongoing legislation, through appeals or other court challenges, that might rise to constitutional challenges to state-secrets laws?Report

      • Avatar Damon in reply to Burt Likko says:

        Yes, it’s a crime. So why aren’t we seeing the majority of those who leak classified data to the press about other issues arrested? Oh, yes, they have the administrations tacit support/approval.

        At least Manning had good reasons to do so.Report

      • Avatar Damon in reply to Burt Likko says:

        @ Zic

        Yah, getting 100 days off for being tortured vs the decades he’s likely to get sentenced to is “fair”.Report

    • Avatar Creon Critic in reply to Damon says:

      Manning jeopardized the safety of many US informants. People have faced online threats from nationalists (Yu Jianrong, He Weifang – China); people have been fired (Helmut Metzner, Berry Smutny – Germany); people have faced questioning by the police and had to flee their countries (Argaw Ashine – Ethiopia); and people have been put under what amounts to house arrest (Herbert Chingono, Fidelis Satuku – Zimbabwe).

      Not to mention what intelligence agencies, actual adversaries of the US, can piece together from what Manning disclosed – putting together surveillance of US embassies with the cables for instance, or knowing how the US obtained information on a covert operation undertaken by Iran.

      Just a sample on the Zimbabwe case, from the leaked cables (emphasis mine):

      Ambassador and DATT met privately on January 5 with Brigadier General Herbert Chingono, Inspector General for the ZNA, and on January 6 with Major General Fidelis Satuku, Director General for Policy and Personnel, ZDF. These two serving military officers took a grave personal risk meeting with us, and their identities should be strictly protected. In the current environment, they risk being charged with treason for an unsanctioned meeting with U.S. officials, and that could have fatal consequences.

      While Manning has every right to pursue the US for mistreatment and misconduct directed towards him, the court-martial was about Manning’s conduct and what Manning did was criminal. He deserves to go to jail for it.Report

      • Avatar Kim in reply to Creon Critic says:

        Is whistleblowing always criminal?Report

      • Is whistleblowing always criminal?

        I don’t know. But revealing thousands of cables, several decades worth of State Department communications, isn’t whistleblowing to me. It is a data dump of sensitive information, grievously breaching the oaths taken when given access to this material. Manning should have realized such a data dump would put US informants all over the world in jeopardy.

        Having already, unsuccessfully attempted the legitimate means for reporting misconduct – it isn’t like the DoD keeps the proper channels a secret – if Manning then revealed a discrete instance or pattern of serious government misconduct, that could be defensible (in the court of public opinion at least, I am not a lawyer) as legitimate whistleblowing.Report

  8. Avatar Phillip says:

    I think the main gripe I (and, I think, a large number of other Manning supporters) have is the disconnect between his case and the cases of, say, Scooter Libby or HSBC.

    Yes, he broke the law. So did a great number of other people, and the media exposure was almost as great in some cases. Why then is it appropriate for HSBC to get a slap on the wrist and Scooter Libby to get a pardon, but Manning to get 136 years, potentially in solitary?Report

    • Avatar George Turner in reply to Phillip says:

      Scooter Libby was probably pardoned because he didn’t leak any classified secrets to anyone.Report

      • Avatar BlaiseP in reply to George Turner says:

        Scooter Libby was not pardoned. His sentence was commuted. He remains guilty of his crime, which was telling unfortunate lies to the wrong people. People will put up with most anything — except lies. Which is why he wasn’t pardoned outright.

        Well, we don’t have worry about Scooter Libby. That little shitweasel is hanging around with the Usual Suspects over at Hudson Institute.Report

      • Avatar Stillwater in reply to George Turner says:

        Or! Scooter’s leaks were in service to the state. Manning’s were, well, not. Are you a statist, George?Report

      • Avatar BlaiseP in reply to George Turner says:

        Technically, George is correct. Scooter Libby is just a garden variety liar. He just made the mistake of lying to the wrong agency of government.Report

  9. Avatar Alan Scott says:

    It’s not that I think he deserves to escape punishment.

    It’s that he was looking at a harsher sentence than most murderers get. Obviously, his being acquitted of some of the most serious charges is a relief, but I’ve seen nothing to suggest he won’t still spend the next thirty years in prison, and that’s unacceptable in a civilized society.Report

  10. Avatar NotMe says:

    Too bad I was hoping for aiding the enemy but it was perhaps a stretch. Even without it, he confessed to enough that he will be put away for quite some time. I hope he enjoys prison.Report

  11. Avatar Barry says:

    Creon Critic: “Having already, unsuccessfully attempted the legitimate means for reporting misconduct – it isn’t like the DoD keeps the proper channels a secret – if Manning then revealed a discrete instance or pattern of serious government misconduct, that could be defensible (in the court of public opinion at least, I am not a lawyer) as legitimate whistleblowing.”

    Don’t piss on my leg and tell me that it’s raining.Report

    • Avatar Creon Critic in reply to Barry says:

      It makes sense to me that the DoD would demand people with security clearances go to the Inspector General’s office or Congress rather than the newspapers with their reports of waste/fraud/abuse. With due respect to the legitimate boundaries governing their behavior (international law, the Constitution, etc.), every individual bureaucrat and military officer isn’t a veto point for the policy of the US. Government can’t function if every individual is free to leak everything they object to and then some with impunity. Furthermore, it is unclear to me what public interest was served in revealing the names Herbert Chingono, Fidelis Satuku, the other names I listed, and thousands of State Department cables beyond those.Report

  12. Avatar Rod Engelsman says:

    Of the quarter-million or so documents he dumped, how many of them were actually exposing crimes or misbehaviors or crappy policies?

    Of the remainder (which is likely most of the documents leaked) how many were injurious to legitimate state interest and intelligence operations?

    It seems to me that Manning likely did some good but he did it in a terrible way that also caused quite a bit of harm. I believe his intentions were noble. His main crime was just being young and maybe a bit stupid.Report