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.

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Comments on “Judge Refuses To Drop 'Aiding The Enemy' Charges Against Bradley Manning”

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out_of_the_blue says:

I've only a quibble on "the system is really, really broken."

No, “the system” is working exactly as intended.

Your perennial optimism that “the system” isn’t utterly corrupt and arbitrary continues to lead you off into puzzlement. You’re way behind on the cynicism curve needed to deal with current gov’t. The gov’t and military that — as you point out — murders with impunity just doesn’t respect the niceties of law.

Anonymous Coward says:

Not a big deal yet

Military rules for considering the defense motions considered require the judge to view any evidence in a ?light most favorable to the prosecution?. This is not the standard the judge will follow when deciding whether Manning is guilty or not of the charges in her ultimate ruling.

This is not the final verdict. Let’s wait and see what happens.

John Fenderson (profile) says:

Re: Not a big deal yet

Military rules for considering the defense motions considered require the judge to view any evidence in a ?light most favorable to the prosecution?.

Really? I am astonished that they put right in the rules that military courts are in fact kangaroo courts! I would have expected they’d keep this little fact a secret.

Anonymous Coward says:

surely this shows that whoever is pulling the strings in the USA, both in the military world and the civilian one, is trying to make everyone adhere to military thinking and therefore military law. civilians are civilians and to get them under the same cloak as the military means implementing martial law. whoever the dictator is that wants this to be the way of America needs to declare his/her intentions and how those intentions are to be executed! whoever the judge is that insists on keeping this charge in is obviously of the mind that the USA should be run totally as a military country, like N.Korea. perhaps the best place for that person to be is in that or a similar country?

Ninja (profile) says:

is a travesty of justice

This sentence is being used way too frequently lately.

it makes it clear to future whistleblowers that the cost of blowing the whistle on gross government negligence is much, much higher

And amusingly and perhaps not surprising it’s creating a breeding ground to more whistleblowers than ever before. Because when the system is punishing them is when they are needed the most. Regardless of whether we agree with them (ie: Assange) or not, we should cherish and help them as much as we can. Spreading their messages is imperative.

That One Guy (profile) says:

Re: Re: is a travesty of justice

After how long locked up in solitary confinement or otherwise imprisoned without being charged?

Also is he able to use all the defenses a normal person is, including being told all the details of what he’s being charged with so he is able to fully defend himself or is he restricted?

The ‘case’ is called a travesty because it is.

That One Guy (profile) says:

What I would love to see...

… but would never expect to actually happen, would be for the prosecution to be forced to actually name the enemy, and provide evidence of how Manning’s actions aided them.


Because I have the strongest suspicion that the ‘enemy’ they are talking about is the american public, and the ‘aid’ is that the public is now able to see all the dirty little secrets, and evidence of wrongdoing, that they were so desperate to keep hidden. Nothing more, nothing less.

*Other than the fact that no one should ever be able to be charged with something they are incapable, and in fact not allowed, to defend themselves against anyway.

Mike Masnick (profile) says:

Re: What I would love to see...

would be for the prosecution to be forced to actually name the enemy, and provide evidence of how Manning’s actions aided them.

For what it’s worth, in the case against him, the enemy has been “named”: Al Qaeda and Al Qaeda of the Arabian Peninsula (AQAP — which is considered a different group than AQ). There was a third “classified” enemy, but the US actually dropped that claim a few weeks ago.

Oblate (profile) says:

Maybe the judges want to slap this policy down?

If the charges are dropped, then can the judges comment about them in their decision? I think not, but IANAL. If they can rule on them, they can set precedent declaring if this is or is not a legal policy. Might be wishful thinking, but is there any chance they kept the charges so they could limit the use/abuse of this policy in the future? Or do military courts not work like that?

Anonymous Coward says:

Courts are not "sending messages"

they are judging and acting on crimes, it’s not up to the court to “send a message” or enter into a political debate.

There is lots of evidence that Manning provided information to Wikileaks, not all the court has to do is determine if ANY of that information could have aided the enemy, that will not be too hard to do.

It’s a court of law, not a court of public opinion, or “stick it to the Government Court”.

Not too many people are arguing that Manning did not steal documents, therefore breaking the law. All that has to be shown is the nature or content of those documents either aided the enemy or hurt the Government.

Neither you nor manning, are in a position to make that determination, but the court is.

Drop the charges, what are you an idiot ??

Anonymous Coward says:

Manning has no defense

he has admitted to the stealing and releasing of the documents, all that is left to prove is IF the nature and content of the documents in some way aided the enemy or hurt the Government.

This is something manning cannot defend against, he is not an expert in the field of intelligence, he could not have check the contents of 250,000 messages, and determined that NONE of them could EVER be used to aid an enemy force, or to aid people seeking to use that information to hurt the Government.

Manning cannot “PROVE” they did not, or could not aid the enemy, that means he DOES HAVE NO DEFENSE.

He can say he did not think they could aid the enemy but he cannot show (beyond reasonable doubt) that NONE of the Documents, or the act of stealing those documents, or the act of giving those documents to wikileaks did not in some form or another aid the enemy or hurt the government.

Basically he’s screwed.. and once he is convicted, Assange will be next, for aiding someone who aided the enemy.

That One Guy (profile) says:


Since turnabout is fair play, I’d like you to prove that none of your actions have aided or could have possibly aided any terrorists, and if you cannot do so I guess it’s okay to assume that you have in fact done so, and are therefor guilty.

I’m 99% sure ‘aiding someone who aided the enemy’ isn’t a crime, but even if it was, the point would be moot, as Assange isn’t a US citizen, and therefor not subject to it’s laws.

That out of the way, what, pray tell, would Assange be charged with? He’s not a US citizen, so treason or ‘aiding the enemy’ is right out, as well as any crimes that require one to be a US citizen. He’s not a member of the US military, so he can’t be charged with breaking any of their rules… so unless ‘Exposing corruption and wrongdoing in the USG and US military’ are considered crimes that are punishable worldwide, there’s nothing to charge Assange with.

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