A military judge will deliver the verdict in the Bradley Manning case on Tuesday afternoon, and journalists covering the story will have no shortage of self-interest in reporting the outcome.
Manning, the Army private who gave various documents to the WikiLeaks website, is facing court-martial. He has already agreed to plead guilty to 10 lesser criminal charges, but he faces charges of violating the Espionage Act and also charges of aiding the enemy under military law (which carries a potential life sentence).
The Espionage Act violation has implications beyond the act of one member of the military giving a huge collection of documents to a web site.
The recent case of Edward Snowden, a former military contractor who leaked information about government surveillance programs to the press, has some in the media asking if the threat of espionage charges will deter future whistleblowers and the journalists who report their revelations.
Brian Fung from the Washington Post points out that the Obama administration has a direct interest in Manning’s potential conviction on espionage charges.
“The Obama administration has charged at least seven individuals with violations of the Espionage Act, but so far none of those cases have been ruled on by a judge or jury. The military trial against WikiLeaks source Bradley Manning could therefore set an important precedent about the legal treatment of leakers,” Fung says.
“The outcome of Manning’s case will affect how leakers are treated in the future, and could even affect the legal status of future journalists, though the Obama administration doesn’t appear ready to cross that line just yet,” he says, addressing a major concern in the journalistic community after the recent revelations about Snowden, and the Obama administration’s investigation into news reports originating from the AP and Fox News.
The Congressional Research Service gave its opinion of the Espionage Act and Manning in January 2013 to Congress as his trial approached.
“A number of other cases involving charges under the Espionage Act demonstrate the Obama Administration’s relatively hardline policy with respect to the prosecution of persons suspected of leaking classified information to the media,” said staff attorney Jennifer Elsea.
The CRS also briefed Congress on a related First Amendment issue: the potential prosecution of media outlets that published leaked, classified information supplied by sources.
“While prosecutions appear to be on the rise, leaks of classified information to the press have relatively infrequently been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it,” Elsea said.
“There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.”
But that was before Snowden’s wide-ranging disclosure of government surveillance programs drew outrage from the White House and members of Congress.
Snowden also faces two charges under the Espionage Act. Last week, Attorney General Eric Holder said Snowden wouldn’t face the death penalty, if Snowden returns from Russia, for the Espionage Act violations.
The Espionage Act came about during the World War I era. President Woodrow Wilson asked Congress to pass the act. It was amended in 1918 with the addition of the controversial Sedition Act amendments, which prohibited public criticism of the United States government.
The Sedition amendments were repealed by Congress after World War I, but the Espionage Act has remained on the books, in amended form, since then.
WikiLeaks founder Julian Assange said last week in a telephone conference that if the aiding the enemy charge stood in the Manning case, “this case will forever change the ability of journalists to reveal the most important crimes of the state.”
Assange and Daniel Ellsberg, who leaked the Pentagon Papers in 1971, have repeatedly defended Manning’s actions.
Military prosecutors claim the Manning had “evil intent” when he decided to leak more than 700,000 classified documents to WikiLeaks, which is a point it must prove as part of the evidence needed for the aiding the enemy conviction against Manning.
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