With Bradley Manning pleading guilty
to some of the lesser charges against him, Harvard law professor Yochai Benkler -- who is a possible expert witness in the trial -- has an excellent and detailed post about why the entire case against him should be seen as a threat to the nature of whistleblowing and a free press
. He notes that the US prides itself on its support of the First Amendment, even in uncomfortable situations, but this case could flip that around in a very damaging way.
A country's constitutional culture is made up of the stories we tell each other about the kind of nation we are. When we tell ourselves how strong our commitment to free speech is, we grit our teeth and tell of Nazis marching through Skokie. And when we think of how much we value our watchdog press, we tell the story of Daniel Ellsberg. Decades later, we sometimes forget that Ellsberg was prosecuted, smeared, and harassed. Instead, we express pride in a man's willingness to brave the odds, a newspaper’s willingness to take the risk of publishing, and a Supreme Court’s ability to tell an overbearing White House that no, you cannot shut up your opponents.
Yet, in the case of Manning, the government is going much, much, much further. It is trying to make leaking information to the press the equivalent of espionage and aiding the enemy -- a capital offense. If you want to create chilling effects on free speech and a free press, this is how you do it. If you believe in the stories above, about the fundamental respect for the First Amendment, then the nature of the prosecution should worry you a great deal.
As for those who claim that leaking to Wikileaks is not like the Pentagon Papers or leaking something to the press, Benkler's detailed analysis shows why that's bunk. Since
Wikileaks released some of the material that Manning sent them, the organization has been painted as being this evil anti-American organization, and there's also been a big spotlight on Julian Assange, who is certainly not presented as a particularly likeable character. But, as Benkler points out, before
Wikileaks got that material, it was regularly
seen as an upstart media property, and a great place for whistleblowers to go to expose fraud and corruption. In other words, the idea that Manning chose to go to Wikileaks to harm the US seems quite unlikely. His story of exposing wrongdoing by the US and forcing a debate on how to have America live up to its principles has more credibility when you realize just how Wikileaks was portrayed prior to Manning's material being submitted:
The reputation that WikiLeaks has been given by most media outlets over the past two and a half years, though, obscures much of this—it just feels less like “the press” than the New York Times. This is actually the point on which I am expected to testify at the trial, based on research I did over the months following the first WikiLeaks disclosure in April 2010. When you read the hundreds of news stories and other materials published about WikiLeaks before early 2010, what you see is a young, exciting new media organization. The darker stories about Julian Assange and the dangers that the site poses developed only in the latter half of 2010, as the steady release of leaks about the U.S. triggered ever-more hyperbolic denouncements from the Administration (such as Joe Biden's calling Assange a “high-tech terrorist”), and as relations between Assange and his traditional media partners soured.
In early 2010, when Manning did his leaking, none of that had happened yet. WikiLeaks was still a new media phenom, an outfit originally known for releasing things like a Somali rebel leader’s decision to assassinate government officials in Somalia, or a major story exposing corruption in the government of Daniel Arap Moi in Kenya. Over the years WikiLeaks also exposed documents that shined a light on U.S. government practices, such as operating procedures in Camp Delta in Guantanamo or a draft of a secretly negotiated, highly controversial trade treaty called the Anti-Counterfeiting Trade Agreement. But that was not the primary focus. To name but a few examples, it published documents that sought to expose a Swiss Bank’s use of Cayman accounts to help rich clients avoid paying taxes, oil related corruption in Peru, banking abuses in Iceland, pharmaceutical company influence peddling at the World Health Organization, and extra-judicial killings in Kenya. For its work, WikiLeaks won Amnesty International's New Media award in 2009 and the Freedom of Expression Award from the British magazine, Index of Censorship, in 2008.
It's sometimes difficult to remember that, given everything that happened in the past two and a half years.
Benkler goes on to point out that the "precedents" that the US tries to rely on to argue that whistleblowing to the press is a form of aiding the enemy are ancient, obsolete and laughable. Many of the arguments go back to some Civil War-era precedents, and even then, when you look at the details you realize they were discussing something extremely different than what happened with Manning (i.e., the cases involved using the press to send coded messages about confidential info, not releasing the info to the public).
In the end, Benkler makes a powerful point:
If Bradley Manning is convicted of aiding the enemy, the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers. The consequences for the ability of the press to perform its critical watchdog function in the national security arena will be dire. And then there is the principle of the thing. However technically defensible on the language of the statute, and however well-intentioned the individual prosecutors in this case may be, we have to look at ourselves in the mirror of this case and ask: Are we the America of Japanese Internment and Joseph McCarthy, or are we the America of Ida Tarbell and the Pentagon Papers? What kind of country makes communicating with the press for publication to the American public a death-eligible offense?
What a coup for Al Qaeda, to have maimed our constitutional spirit to the point where we might become that nation.
Given all of that, you can see why some have nominated Manning for the Nobel Peace Prize
. While it is highly unlikely that Manning will be given serious consideration for the prize, the more you look at the case, the more you realize how dangerous the US government's own argument is here, and how much of an attack it is on fundamental principles we supposedly believe in and fight for here in the US.