Bad News for Bradley Manning Means Bad News For First Amendment

This morning, a military judge refused to dismiss the charge against Bradley Manning for "aiding the enemy" when he disclosed classified information to WikiLeaks  That is bad news for Manning.  It is also bad news for the First Amendment.  Here's why ...

A New York Times article gives a good account of this morning's events.  The Government's argument boils down to this:  Manning was "aiding" al Qaeda because he disclosed information to WikiLeaks, which is on the Internet, and al Qaeda has access to the Internet.  That's it.  That's flimsy.

Under military regulations, "aiding the enemy" applies to “any person who ... gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly,” whether or not the "intelligence" is classified.  That means any time anyone in the military with any information shares that information on the Internet in any context, that person could be prosecuted because the information might be accessed by the enemy. 

On the other hand, it also might be accessed by the public and press, leading to needed changes in our system.

Manning's defense lawyers argued that Manning was not "aiding the enemy" because he was trying to share information with a media outlet (WikiLeaks) and "spark" debate and reform.  Well, the former certainly happened.  The jury is still out on the latter.  See my previous post on the subject. 

The bar should be higher -- e.g., proof that harm was imminent or actually occurred (see another post of mine on a related subject) or at least some proof that the enemy actually received/accessed the material.

According to an excellent blog post by Ben Wizner of the ACLU, over a thousand active duty members of the military maintain blogs.  What is happening to Manning better be a wake up call to those members not to discuss anything that has anything to do with the military because whatever they say might be accessed by the enemy.

The military traditionally has a lot of control over its members' speech.  This makes sense in the heat of battle, but when it comes to retrospective looks at policy positions and simply embarrassing information (i.e. most of what Manning disclosed), it makes much less, if any, sense at all.