Judge Refuses To Drop 'Aiding The Enemy' Charges Against Bradley Manning

from the whistleblowing-is-aiding-the-enemy dept

We noted recently that it has become official Obama administration policy that leaking governmental wrongdoing to the press is considered aiding the enemy. This is ridiculous on multiple levels, not the least of which is the suggestion that "the enemy" is the public, and that truthful information about government overreach and excess could somehow be counterproductive to the country's interests. Of course, that issue hadn't really been put to test in any sort of court until now, in the military trial of Bradley Manning. Tragically, the judge has announced that the "aiding the enemy" charge will not be dropped, despite the near total lack of evidence to support the idea that Manning knowingly released the documents to Wikileaks recognizing that it would "aid the enemy." It is still possible he could be found "not guilty" of aiding the enemy, but dismissing the overall charge would have sent a more powerful message.

Of course, the double standard you see when compared to how the military has treated its own when it comes to things like massacring innocent people is stark and disgusting:

Colonel Morris Davis, one of the key witnesses called by Manning's defence team in an attempt to have the "aiding the enemy" charge dropped, said he was "extraordinarily disappointed" by the ruling. Davis was director of the US air force's judicial system from 2007 to 2008 and said he was normally a defender of military justice.

But he said the fact that military prosecutors were pursuing Manning with such a heavy hand had forced him to think again. He pointed to the contrast between the full-blooded prosecution of the US soldier and the outcome of the court martial that flowed from the 2005 Haditha killings in Iraq.

In that incident, 24 unarmed Iraqis including women and children were killed by US marines. In the ensuing prosecutions, six of the marines involved had their cases dropped, a seventh was found not guilty and the only one to be convicted of a single count avoided any time in jail.

"When you think about these different responses, it suggests to me that the military justice system is not working," Davis said.

Notice that this wasn't being said by some civil libertarian, but the guy who had been in charge of the air force's judicial system just a few years ago. When even folks like Colonel Davis are recognizing what a farce the Manning trial is, it's pretty clear that the system is really, really broken.

The dangerous impact of this ruling cannot be overstated. As we've noted, the main "evidence" against Manning on this particular charge is the claim that Al Qaida, and bin Laden in particular, were found to have some of the Wikileaks documents. But that's not evidence of "aiding the enemy" and if it is, it means that famed reporters like Bob Woodward and his White House sources are equally at risk for having "aided the enemy," since Woodward's books have revealed much more sensitive information, and bin Laden was also found to have not only read Woodward's book, but recommended the book to others.

Meanwhile, as Harvard law profess Yochai Benkler has written (and also testified during the trial), a finding that leaking such information to the public is a form of "aiding the enemy" creates a massive threat to the concept of a free and independent press. The chilling effects are massive.

Freedom of the press is anchored in our constitution because it reflects our fundamental belief that no institution can be its own watchdog. The government is full of well-intentioned and quite powerful inspectors general and similar internal accountability mechanisms. But like all big organizations, the national security branches of government include some people who aren't purely selfless public servants. Secrecy is necessary and justified in many cases. But as hard-earned experience has shown us time and again, it can be—and often is—used to cover up failure, avarice, or actions that simply will not survive that best of disinfectants, sunlight.

That’s where whistleblowers come in. They offer a pressure valve, constrained by the personal risk whistleblowers take, and fueled by whatever moral courage they can muster. Manning's statement in court yesterday showed that, at least in his motives, he was part of that long-respected tradition. But that’s also where the Manning prosecution comes in, too. The prosecution case seems designed, quite simply, to terrorize future national security whistleblowers. The charges against Manning are different from those that have been brought against other whistleblowers. “Aiding the enemy” is punishable by death. And although the prosecutors in this case are not seeking the death penalty against Manning, the precedent they are seeking to establish does not depend on the penalty. It establishes the act as a capital offense, regardless of whether prosecutors in their discretion decide to seek the death penalty in any particular case.

The Freedom of the Press Foundation goes deeper in explaining how merely asking basic important questions can have you accused of "aiding the enemy" under the definitions used by the court.

The implications of the government’s argument are breathtaking. To understand why, it helps to recall the experience of another soldier. In December of 2004, Defense Secretary Donald Rumsfeld held a town-hall style meeting for troops who were preparing to deploy to Iraq. Following his remarks, Rumsfeld was confronted by an Army specialist who complained about the inadequacy of the combat equipment provided by the military.

“Our vehicles are not armored,” said Specialist Thomas Wilson, an airplane mechanic with the Tennessee Army National Guard. “We’re digging pieces of rusted scrap metal and compromised ballistic glass that’s already been shot up . . . to put on our vehicles to take into combat. We do not have proper vehicles to carry with us north.”

The soldier’s question — and Rumsfeld’s now infamous response that “you go to war with the army you have, not the army you might want or wish to have” — were front-page news around the world. And while war cheerleaders like Rush Limbaugh accused Specialist Wilson of “near insubordination” for embarrassing the defense secretary in a public forum, there was no suggestion in serious quarters that he face punishment — much less prosecution — for his words.

Yet the government’s decision to prosecute Manning for “Aiding the Enemy” threatens to make public comments like Wilson’s grounds for criminal prosecution. The government does not contend that Manning gave any information to Al Qaeda, or even that he intended that Al Qaeda receive it. Rather, it claims that Manning “indirectly” aided Al Qaeda by causing intelligence information to be posted on WikiLeaks’ website, knowing that Al Qaeda has access to the internet. Specifically, the government contends that Manning violated Article 104 of the Uniform Code of Military Justice, which provides that “any person who . . . 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.”

They go on to note that in merely asking that question (and, in fact, Rumsfeld in answering it) "spoke openly about the vulnerability of U.S. forces in Iraq." And, under the definitions used against Manning, claiming he was "aiding the enemy" the same would apply to both Wilson and Rumsfeld as well:

Both men surely knew that the enemy would watch their exchange on television or read about it on the internet. The notion that Wilson and Rumsfeld broke the law by communicating this information to the media and thereby “indirectly” aiding the enemy is absurd — but no more so than the government’s contention that Bradley Manning did so.

Today's failure to dismiss that claim against Manning is a travesty of justice in so many ways, but more importantly, it makes it clear to future whistleblowers that the cost of blowing the whistle on gross government negligence is much, much higher. That's a very unfortunate situation for a country who at least used to pretend that it was important to keep its government in check.

Filed Under: aiding the enemy, bob woodward, bradley manning, chilling effects, denise lind, free speech, journalism, whistleblowing, yochai benkler
Companies: wikileaks

Why Bob Woodward And His White House Sources Should Be On Trial Before Bradley Manning

from the low-court,-high-court dept

As we noted recently, one of the key questions in Bradley Manning's trial is whether or not his leaking of information amounted to aiding the enemy, a charge which can lead to a death sentence. This is troubling on many levels, considering the evidence is pretty clear that Manning was actually trying to do the opposite: aid the US, by providing more openness and transparency, not help Al Qaeda. Even scarier, the government's ridiculously broad interpretation of "aiding the enemy" seems to be revealing or publishing any information that Al Qaeda might like. As Glenn Greenwald notes, if that's the case, famed investigative reporter Bob Woodward (one half of the duo who revealed Watergate) and his White House sources should be on trial first.

But let's apply the government's theory in the Manning case to one of the most revered journalists in Washington: Bob Woodward, who has become one of America's richest reporters, if not the richest, by obtaining and publishing classified information far more sensitive than anything WikiLeaks has ever published. For that reason, one of Woodward's most enthusiastic readers was Osama bin Laden, as this 2011 report from AFP demonstrates:

"Al-Qaeda has released a video marking the anniversary of 9/11 which includes a message from its slain leader Osama bin Laden to the American people . . . . He recommended that Americans read the book 'Obama's War' by Bob Woodward which details wrangles over US military decision-making."

If bin Laden's interest in the WikiLeaks cables proves that Manning aided al-Qaida, why isn't bin Laden's enthusaism for Woodward's book proof that Woodwood's leakers - and Woodward himself - are guilty of the same capital offense? This question is even more compelling given that Woodward has repeatedly published some of the nation's most sensitive secrets, including information designated "Top Secret" - unlike WikiLeaks and Manning, which never did.

Indeed, he goes on to point out a report from 2010 by Michael Isikoff showing that Woodward's book revealed a ton of highly sensitive info.

In the first 12 pages of his new book, “Obama’s Wars,” famed journalist Bob Woodward reveals a wealth of eye-popping details from a highly classified briefing that Mike McConnell, then-director of National Intelligence, gave to President-elect Barack Obama just two days after the November 2008 election.

Among the disclosures: the code names of previously unknown National Security Agency programs, the existence of a clandestine paramilitary army run by the CIA in Afghanistan, and details of a secret Chinese cyberpenetration of Obama and John McCain campaign computers.

The contents were so sensitive that McConnell, under orders from President George W. Bush, barred Obama's own transition chief, John Podesta, from sitting in at the briefing, which took place inside a tiny, windowless and secure room known as a SCIP (or Sensitive Compartmented Information Facility.)

Thus, under the basic argument being used against Manning, any government source who provided info to Woodward -- and Woodward himself -- could be subject to the same charges (and potential death penalty). That is, to put it mildly, insane. And, yet, very few journalists are speaking out about how ridiculous the charges are against Manning. Sometimes this is because they're just not paying attention. Or it's because they don't like Wikileaks. No matter what the reason, it's quite scary.

What this really shows, however, is that it appears the Obama administration -- which has gone after a ton of journalists who have published embarrassing information -- is using these lawsuits strategically. If you reveal highly sensitive info that makes them look good: no problem. If you reveal much less sensitive info that makes them look bad: watch out.

Filed Under: aiding the enemy, bob woodward, bradley manning, chilling effects, free speech, journalism, leaks

Bob Woodward Blames Google For 'Killing' Newspapers

from the maybe-he-should-investigate-that dept

Famed investigative reporter Bob Woodward apparently doesn't spend much time "investigating" the state of the internet and online news before making statements. His latest is that he's not thrilled with this whole internet thing, saying that Eric Schmidt's tombstone should say "I killed newspapers." He followed this statement up with this bit of pure cluelessness:

"There's going to be something we're going to miss in journalism that will be very regrettable. I hope the young people who have developed Facebook and Google will say, 'We need to fix the information system and we need to get information to people that's well-researched and investigated.' "

There's something beautiful in a statement that disproves itself, and Woodward's statement above fits into that category perfectly. After all, he made the statement above, and it's pretty damn clear that he made it without investigating or researching what's actually going on. The fact is that Woodward seems to have conflated two totally separate issues: the fact that services like Google and Facebook exist... and the fact that not all reporting is well-researched or investigated. The problem is that those two things are not particularly related, and most certainly not causal. There are, for example, plenty of reports in newspapers that are neither well-researched nor investigated. At the same time, there are plenty of things found online that are both well-researched and investigated. Of course, there's plenty that isn't... but that doesn't harm the stuff that is. I never understand why people automatically think that all content online gets equal attention, and that any "bad" content somehow takes something away from good content.

But rather than researching and investigating what's really causing problems for newspapers (hint: massive debt-load and an astounding failure to adapt to the times), Woodward simply does what he claims to hate, and makes uninformed and ignorant statements, blaming "search engines" for the "screwed up information system." He also seems to think that while "people" exist offline, what happens online no longer involves people. The following paragraph, for example, makes no sense:

"Mark Felt, who was Deep Throat, didn't have a Facebook account. He wouldn't have had one. The news of Watergate came from human beings who were reluctant to talk. And the information was not on the Internet. You talk to college students and they say, 'Instead of two years before Nixon resigned, it would have happened in a week.' And I say, 'Why?' And they say, 'Because, people would have gone to the Internet and found it.' But I say, 'It wasn't there. Even if there was an Internet, the information would not be available.'"

Even if that latter exchange really happened (and I have my doubts), the whole thing seems to be based on the idea that a reporter today can't cultivate sources online. While I'm not an investigative reporter by any stretch of the imagination, I can say pretty clear that the internet has been a massive boon in building up a variety of sources of information that simply wouldn't be possible in the past. Just because it happens online doesn't mean it doesn't involve communicating with people. It's just that the process becomes more efficient. He's right that Mark Felt wouldn't have put info online... but would it have been possible for reporters to cultivate a source like Feld online? Absolutely.

Filed Under: bob woodward, internet, journalism, newspapers, sources