The Guardian home – Bradley Manning WikiLeaks trial ‘dangerous’ for civil liberties – experts

220px-Bradley_Manning_US_Army

Soldier faces charge of ‘aiding the enemy’ by downloading and leaking
hundreds of thousands of classified documents

Ed Pilkington in Fort Meade
The Guardian, Monday 3 June 2013


The trial of Bradley Manning, the US soldier who leaked a trove of state
secrets to WikiLeaks, could set an ominous precedent that will chill freedom
of speech and turn the internet into a danger zone, legal experts have
warned.

Of the 21 counts faced by the Army private on Monday, at his trial at Fort
Meade in Maryland, by far the most serious is that he knowingly gave
intelligence information to al-Qaida by transmitting hundreds of thousands
of classified documents to the open information website WikiLeaks. The
leaked disclosures were first published by the Guardian and allied
international newspapers.

Manning is accused of “aiding the enemy”, in violation of Article 104 of the
Uniform Code of Military Justice. By indirectly unleashing a torrent of
secrets onto the internet, the prosecution alleges, he in effect made it
available to Osama bin Laden and his cohorts, for them to inflict injury on
the US.

Laurence Tribe, a Harvard professor who is considered to be the foremost
liberal authority on constitutional law in the US and who taught the subject
to President Barack Obama, told the Guardian that the charge could set a
worrying precedent. He said: “Charging any individual with the extremely
grave offense of ‘aiding the enemy’ on the basis of nothing beyond the fact
that the individual posted leaked information on the web and thereby
‘knowingly gave intelligence information’ to whoever could gain access to it
there, does indeed seem to break dangerous new ground.”

Tribe, who advised the department of justice in Obama’s first term, added
that the trial could have “far-reaching consequences for chilling freedom of
speech and rendering the internet a hazardous environment, well beyond any
demonstrable national security interest.”

“Aiding the enemy” carries the death penalty. Though the US government has
indicated it will not seek that ultimate punishment, Manning still faces a
maximum sentence of life in military custody with no chance of parole.

Daniel Ellsberg, who in 1971 was subjected to an aborted trial for leaking
the Pentagon Papers on the Vietnam War to the New York Times, said that the
Manning prosecution was far tougher than anything that he had endured.

“This is part of Obama’s overall policy of criminalising investigative
reporting on national security,” he said. “If the government has its way, it
will become very hard in future to expose official corruption or disclose
information in the public interest other than leaks made by the
administration itself.”

Manning’s trial, which is slated to last three months, opens against a
backdrop of mounting unease about the increasingly aggressive stance the US
government is taking against official leakers. The Obama administration has
launched six prosecutions under the Espionage Act, twice as many as all
previous presidencies combined, of which only Manning’s has gone to trial.

The Department of Justice is already under fire for its controversial secret
seizures of phone records of Associated Press reporters and of a Fox News
reporter, James Rosen, investigating North Korean nuclear tests.
bradley manning trial A demonstration in support of Bradley Manning at Fort
Meade in Maryland. Photograph: Nicholas Kamm/AFP/Getty Images

In the course of pre-trial hearings, military prosecutors have outlined the
basic skeleton of their case against Manning. They will seek to show that
Osama bin Laden personally instructed an aide to download elements of
WikiLeaks, including the Afghan war logs, on to digital storage devices so
that he could read them.

The court will hear – either in person at a secret session of the trial, or
in an affidavit – from an anonymous witness called only “John Doe”, who is
believed to be one of the 22 US Navy Seals who killed Bin Laden in a raid on
his compound in Abbottabad, Pakistan in May 2011. The witness will testify
that he retrieved from the compound three items of digital media that
contained WikiLeaks material.

The prosecution will present evidence to the court that the items retrieved
from Bin Laden’s compound included a letter written by the al-Qaida leader
to an aide, asking for them to download US defence information from
WikiLeaks. The same al-Qaida operative then replied to Bin Laden attaching
the Afghan war logs and department of state information released by
WikiLeaks.

Colonel Denise Lind, the judge presiding over the court martial in the
absence of a jury, has ruled that for Manning to be found guilty of “aiding
the enemy” the prosecution must prove beyond a reasonable doubt that he
knowingly gave helpful information to al-Qaida, al-Qaida in the Arabian
Peninsula and a third terrorist group whose identity remains classified. The
route by which Manning communicated with al-Qaida can be indirect, through
Wikileaks, the judge has directed, though the soldier must have had a
“general evil intent in that he had to know he was dealing with an enemy of
the United States”.

A defence motion calling on all reference to al-Qaida to be ruled
inadmissible on grounds that it was irrelevant and prejudicial was denied by
Lind in an earlier hearing.

Manning has already pleaded guilty to lesser offences, that he transmitted
classified information to WikiLeaks carrying a possible maximum sentence of
20 years. Between November 2009 and May 2010 he downloaded massive files,
stored in secure US intelligence databases, from his computer at an army
operating base in Iraq, where he was working as an intelligence analyst. He
then transmitted the files to an encrypted whistleblower channel set up by
WikiLeaks.

Jesselyn Radack of the Government Accountability Project, who represented
two of the six leakers who have been prosecuted – National Security Agency
whistleblower Thomas Drake and former CIA operative John Kiriakou – said the
broad legal implications of Manning’s trial were frightening. “If Osama bin
Laden or any other suspected terrorist happens to have read a New York Times
article on the internet, the government can now go after the paper for
‘aiding the enemy’. That’s a big problem.”

In the course of legal argument in pre-trial hearings, one of the
prosecution lawyers was asked whether Manning would have been prosecuted in
the same way had he leaked to the New York Times as opposed to WikiLeaks.
The prosecutor replied: “Yes.”

Radack said that the case has sent a chill through investigative reporting.
Several potential whistleblowers have approached her in recent weeks, she
said, expressing great trepidation about leaking to any news outlets because
“they fear they will become the next Bradley Manning”.

© 2013 Guardian News and Media Limited or its affiliated companies.
All rights reserved.