The military judge who found U.S. Army Private Bradley Manning guilty of violating the Espionage Act—but not guilty of even more serious charges—exercised a form of legal statesmanship that provides a potential model for the equally explosive National Security Agency leak case.
The judge, Colonel Denise Lind, concluded that Manning violated the Espionage Act when he disclosed hundreds of thousands of classified documents to WikiLeaks, while acquitting the self-styled whistleblower of “aiding the enemy,” which would have made him eligible for a life sentence. Before the announcement of Lind’s verdict today, Manning had already pleaded guilty to a lesser version of the charges he was facing, and he still could end up spending decades behind bars when he is sentenced. Despite Manning’s guilty plea, the government tried him on the Espionage Act and aiding-the-enemy counts.
Lind’s verdict essentially split the difference, avoiding what might have been a constitutional collision between the government’s authority to keep secrets and the media’s First Amendment right to disseminate information about powerful institutions and individuals. The aiding-the-enemy charge, “unprecedented in a leak case,” according to the New York Times, raised the prospect of implicating any leaker of national security secrets—along with any media outlet that published, broadcast, or digitally posted the leaker’s classified disclosures—in a plot to assist the nation’s military foes. The government’s aggressive theory was that since Manning had to have known that terrorist enemies of the U.S. would be able to learn of his disclosures to WikiLeaks, he committed essentially the same crime as a military turncoat who hands secrets directly to a hostile country.
The Manning verdict bears the strong imprint of common sense. Lind rejected the government’s contention that, by dint of his training in intelligence, Manning knew his disclosures of documents and videos related to the wars in Iraq and Afghanistan would likely come to the attention of al-Qaeda. On the other hand, Lind found that Manning should have known that his actions could harm the U.S., even if that was not his goal.
Some analysts and activists nevertheless decried the verdict. “Despite the lack of any evidence that he intended any harm to the United States, Manning faces decades in prison. That’s a scary precedent,” Elizabeth Goiten, co-director of the Liberty and National Security Program at the Brennan Center for Justice at New York University School of Law, said via e-mail. The verdict, of course, was meant to be “scary.” The judge intended to deter future Bradley Mannings from breaking the law and taking it upon themselves to decide which military secrets deserve exposure. At the same time, Lind made an implicit distinction between a leaker and a direct instrument of the nation’s enemies. In so doing, she ensured that Manning’s admitted misconduct will be punished, without making him into more of the martyr his supporters see him as.
Edward Snowden, the fugitive former NSA contractor behind a separate series of leaks, may one day find himself in a position similar to Manning’s. Snowden would be prosecuted in the civilian justice system, rather than by the military, so he will automatically enjoy protections not available to soldiers accused of crimes. Assuming they ever get their hands on Snowden, the U.S. Department of Justice and the federal judiciary ought to emulate Colonel Lind’s prudence in dealing with him. Attorney General Eric Holder took a promising step in that direction when he told the Russian government that Snowden will not face the death penalty if he’s returned to the U.S. The threat of capital punishment would only heighten emotions and distract from the substance of the case against Snowden.
What’s needed, instead, is a tough, prudent response that clarifies the consequences of clearly illegal defiance.