How the Bradley Manning Verdict Avoided a Serious Chill on Whistleblowing

On Tuesday, Judge Col. Denise Lind convicted Army Pfc. Bradley Manning of many major charges, but Manning dodged the big one: "aiding the enemy." That charge would have come with a possible life sentence. The conviction still includes 5 charges under the Espionage Act, and Manning could face a long sentence of over 100 years. Manning had previously pled guilty to 10 of the lesser 22 charges against him, pleading not guilty to the most serious, aiding the enemy charge. The full extent of the conviction is still coming in from the court. Sentencing in the case will begin Wednesday morning.

But the biggest news may be the lack of an aiding the enemy conviction, which could have resulted in a dramatic legal precedent.

Depending on your point of view, Manning is either a tragic hero or a traitor, or maybe something in between. The now 25-year-old's personal problems were numerous, coming from an unstable, abusive home, dealing with being a gay member of the military under Don't Ask, Don't Tell, also questioning his gender identity. The military assessed him as having an anxiety disorder. Three years ago, he was arrested after sending what is regarded as the largest leak of classified information in U.S. history to Wikileaks, including a video showing U.S. military personnel shooting down two Reuters employees and 250,000 diplomatic cables.

How Does One Aid the Enemy?

Charges of aiding the enemy are rare. So much so that, in charging Manning, prosecutors pointed toward the case of a Civil War soldier charged and convicted, in 1863, of a similar crime. And what Private Henry Vanderwater did to the Union was, in a way, similar to the circumstances of Manning's arrest. He gave roster information to an Alexandria newspaper that was published. Vanderwater was sentenced to three months of hard labor and was discharged dishonorably.

On the books, the law is curtly written and indicates it's a crime fit for death.

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 death penalty, however, is not being considered in Manning's case.

Cases of aiding the enemy have cropped up since the Civil War. During the Korean War, American prisoners of war were tried and convicted of making anti-American speeches while interned by the Chinese. One of whom was William Olson, who, although claiming psychological coercion on the part of the chinese, was brought to trial for comments he made while prisoner. "Among other things, the accused in his talk asserted that the Korean war was a millionaire's war and that the prisoners had innocent blood on their hands," Court documents stated. Olson also wrote articles that "were distinctly "anti-American and pro-Communist" in tenor, and consistently derogatory toward the cause of the United Nations in Korea." The judge ruled that Olson should have had the gumption to hold his tongue, notwithstanding the circumstances. "No exemption is provided for prisoners of war, or for anyone else, for that matter."

More recently, in 2007, a former U.S. commander was acquitted of the charge after being tried for allegedly lending his cellphone to Iraqi prisoners to make phone calls. In 2004, a National Guardsman was sentenced to life in prison for offering information to Al Qaida.

What Does it Mean for the Future of Leaks, For Edward Snowden?

In a March article in The New Republic, Harvard Law professor Yochai Benkler discussed the potentially far-reaching impact of an aiding the enemy conviction in the Manning case. As Benkler wrote, during the trial, Judge Col. Lind asked prosecutors if they would have pressed the aiding the enemy charge if Manning had leaked to the New York Times instead of WikiLeaks. The answer: "Yes Ma'am."

Benkler, a witness for the defense, wrote that such an answer "makes the Manning prosecution a clear and present danger to journalism in the national security arena." Julian Assange, the founder of WikiLeaks, said just about the same thing to CNN's Jake Tapper on Monday. Daniel Ellsberg, leaker of the Pentagon Papers, issued similar worry. "That you can face life in prison or death simply from informing an enemy or potential enemy in the process of informing fellow citizens for their benefit is potentially a lethal blow to the First Amendment or freedom of speech and the press," he told the Christian Science Monitor.

It's clear to Benkler how the Manning case can put a chill on whistleblowing. Here's how he views the prosecution's thinking:

Manning knew that the materials would be made public, and he knew that Al Qaeda or its affiliates could read the publications in which the materials would be published. Therefore, the prosecution argues, by giving the materials to WikiLeaks, Manning was "indirectly" communicating with the enemy. Under this theory, there is no need to show that the defendant wanted or intended to aid the enemy. The prosecution must show only that he communicated the potentially harmful information, knowing that the enemy could read the publications to which he leaked the materials. This would be true whether Al Qaeda searched the WikiLeaks database or the New York Times'.

The thing is, since that article was written, somebody actually did leak classified national security documents to major newspapers. That would, of course, be Edward Snowden, who leaked the details of big NSA programs toThe Guardian and The Washington Post, among others. While Snowden is now closely associated with WikiLeaks, he didn't go through them when he first pushed to release his information. As he said at the time, this was in part done to make sure the leak-process didn't cause any harm through a mass data dump.

But based on Benkler's argument, and the "Yes Ma'am" response sets a precedent that leaking national security information to the press could result in a conviction punishable by death. The difference between just a pure data dump and a process overseen by journalists and at least one editor is made largely moot by the prosecution's' response to Col. Lind's question.

But Snowden has so far escaped that possible fate. Snowden was not charged with aiding the enemy, but rather with charges under the Espionage Act. Manning being acquitted on the charge of aiding the enemy may mean that the precedent described by Benkler won't actually happen afterall. As such, the ruling today against the prosecution on that one count may seriously reduce the threat to national security whistleblowers, and the media publications who chose to publish their leaks.