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.

The First Amendment protects the media when disclosing classified material

Last month, U.S. Representative Peter King (R-NY), who sits on the House Committee on Homeland Security, made clear on CNN and Fox News that he believes members of the media should be criminally prosecuted for disclosing confidential information in the course of reporting the news. 

Should the First Amendment protect the mainstream and not-so-mainstream media (e.g., WikiLeaks) from criminal prosecution for the disclosure of classified material?  Yes, it should and it does.

Unless you read the First Amendment literally ("Congress shall make no law ..."), the reasons why the First Amendment protects the media for disclosing classified information are not yet set out in a formal test.

I propose one here.

In order to prosecute a reporter for disclosing classified information, the government should be required to prove all of the following beyond a reasonable doubt:

1. A bad faith intent
2. To cause direct, immediate and irreparable injury 
3. That is inevitable or that has already occurred

This is, and should be, a heavy burden to satisfy.  It is the government's job to figure out how to keep truly classified information secret.  It is the media's job to inform the public.

The "bad faith intent" element comes from Gorin v. U.S., where the Supreme Court held that the Espionage Act of 1917 (the law that would most likely be used to prosecute the media) requires the government prove the defendant acted "in bad faith".  It is hard to imagine the mainstream American media acting with a "bad faith" intent to damage the United States.  After all, American reporters live here, too.

The second two elements are derived from the Pentagon Papers case and Bartnicki v. Vopper.  In the Pentagon Papers case, Justice Brennan came the closest to articulating a test for stopping the publication of supposedly classified reports: such reports may only be enjoined with "proof that publication must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea."

And, in Bartnicki, the Court held that, absent a need of the highest order, an individual may not be punished for publicly disseminating newsworthy information even where the underlying material was obtained unlawfully by a third party.

How is this applied in, for example, the Bradley Manning case?  There is no there there. Former Secretary of Defense Robert Gates called the concerns over the Manning/WikiLeaks disclosures "overwrought," adding "is this embarrassing?  Yes. Is it awkward?  Yes.  Consequences for U.S. policy?  I think fairly modest?" 

And as for the material leaked by Edward Snowden ... so far there is a lot of yelling, but no evidence -- and certainly none beyond a reasonable doubt -- of bad faith, or inevitable, direct, immediate and irreparable injury from media reports. 

Is WikiLeaks legitimate media? Would that help Bradley Manning?

Yesterday, Pfc. Bradley Manning's defense team rested in his court martial trial for releasing a trove of classified information to WikiLeaks, a website designed to accumulate and disperse confidential information.  Manning's lawyers called to the stand Harvard Law Professor Yochai Benkler, an expert on Internet journalism, who testified that WikiLeaks is a legitimate news operation.  Could that really help Manning?  It might.

Charlie Savage of The New York Times reports that Manning's lawyer David Coombs aimed to have Benkler establish that Manning was not trying to "aid the enemy," which could carry a life sentence. 

Instead, Benkler insisted that Manning was feeding information to an outfit that was designed to accumulate and disseminate newsworthy information.  Although there is significant debate about WikiLeaks and its methods and motivations, isn't that what most media outlets are designed to do?  Benkler acknowledged that not every document of the thousands transmitted by Manning was newsworthy, but the point is that the database contains matters of public interest.

If WikiLeaks is a legitimate media outfit, would that relieve some of the pressure on Manning?  Could it be that Manning was trying to educate the public and also give "aid" to the enemy?  Knowing that the enemy might see what you are sharing could be understood to give "aid" in a raw sense.  And, it is well-established that neither the press nor the public are above laws of "general applicability" (that gets fuzzy sometimes -- more on that in a later post). 

There may, however, be something special about the fact that Manning released the information to WikiLeaks, at least as an intermediary, rather than doing what we imagine most alleged traitors doing -- i.e., spying for the enemy and giving away state secrets for something else in return.

All told, the government has an easier road to pursue the leaker (i.e., Manning), as compared with a media outlet receiving the material.

But, what if the next target for prosecution is WikiLeaks or the mainstream media for publishing material provided by the likes of Manning or leaker-du-jour Edward Snowden?

Upcoming posts will explore the legal basis (really the lack thereof) for any such prosecutions in the modern era, and why it would be scary and bad for all of us if the media came under such attack.