Colleen “Jihad Jane” LaRose Sentenced

Colleen LaRose, better known as “Jihad Jane,” was sentenced to ten years in federal prison last week. LaRose was convicted on multiple terrorism-related counts, most notably for her role in plotting the murder of a Swedish cartoonist who depicted the Islamic Prophet Muhammad as a dog in a political cartoon. Prosecutors allegedly sought a more serious sentence but U.S. District Judge Petrese Tucker lightened LaRose’s punishment based in part on her renouncement of her crimes. Continue reading

Bradley Manning Sentencing Begins

Early yesterday, the sentencing phase of the trial of Bradley Manning, the source of the Wikileaks scandal, began at Fort Meade.  As I said yesterday, Manning was acquitted of aiding the enemy, the most serious charge against him.  Still, Bradley Manning was convicted on 20 of 22 counts, including charges of violating the Espionage Act of 1917.  The prosecution and defense both agreed with Col. Denise Lind that Manning faces a total of 136 years in a military prison for his crimes.

On top of the potential 136-year prison sentence, the parties also agreed that Bradley Manning will be demoted to the rank of enlisted private, dishonorably discharged from the Army, and stripped of all pay and benefits that he would have otherwise received.

The star witness of yesterday’s sentencing hearing was Brig. Gen. Robert A. Carr (ret.), who is now an executive at defense contractor Northrop Grumman.  General Carr’s expertise on the matter comes from a long career overseeing the Army’s intelligence gathering operations in Iraq, Afghanistan, and Bosnia.  His last assignment as a member of the Army was to gather information and assess the extent to which information released by Wikileaks harmed soldiers in the field and jeopardized American national security.

Now that the bulk of Bradley Manning’s sentence has already been settled, all that remains is to determine how much of the potential 136-year sentence he will actually serve and what monetary fines the court will impose on him.  I find it hard to believe at this point that Manning, who is just 25 years old, will ever be a free man.  I guess that’s just what 20 separate convictions for espionage will get you.  But now that he has been stripped of all benefits and pay and will probably spend most or all of his life behind bars, arguing about monetary fines is basically just a formality.  It’s probably not very realistic to expect him to pay up.

Anyways, General Carr’s testimony centered around whether or not Bradley Manning’s crimes actually led to any deaths in the field.  General Carr claimed that exactly one death, an Afghani national with ties to the U.S. government, occurred as a result of the Wikileaks scandal.  The Taliban reportedly killed him after obtaining the information.  However, when pressed by the defense, General Carr admitted that the man was never named in war logs released by Julian Assange and any mention of the death was stricken from the official record.  General Carr still insisted that Bradley Manning’s crimes had put U.S. soldiers and Afghani allies at risk by detailing the relationship between certain Afghani forces and the U.S. military.

It’s interesting that not even General Carr, the prosecution’s authority on the supposed damage caused by Bradley Manning, could not point to a single instance where the leaks led to even one casualty.  The only such accusation was quickly stricken from the record.  To me, this shows just how desperate the government was to make an example out of Manning with the aiding the enemy charge.  There’s really no other explanation for moving forward with that charge with only one precarious piece of evidence.

The trial still has a long way go.  The defense is still days, maybe weeks away from presenting evidence of mitigating circumstances that could soften the blow of Bradley Manning’s 20 convictions.  Like I said before, Manning isn’t going to be a free man any time soon.  But if today was any indication, he might not be looking at a 136-year sentence after all.

Chris Whitten, Research Fellow
Center for Policy and Research

Bradley Manning Acquitted of Aiding the Enemy

Yesterday, Col. Denise Lind, the military judge presiding over the Bradley Manning case at Fort Meade, acquitted Manning of the charge of aiding the enemy.  The charge was the most serious that Manning faced, and almost certainly would have led to life in a military prison.  For those of you unfamiliar with Bradley Manning, he is the Private First Class who was on trial for releasing the data published by Julian Assange on Wikileaks.  Because of that, the case has received a great deal of attention from both the media and human rights groups who are attempting to find a balance between government secrecy, transparency, and civil liberties.

Bradley Manning’s acquittal on this charge is not exactly surprising given that it was unprecedented for the government to bring such a charge in a leak case.  But still, the government’s argument made some sense if you look at the letter of the law.  Luckily, common sense seems to have prevailed.  I don’t believe (and I certainly don’t think the government could prove) that he intended to aid the enemy, and a vast majority of the information he leaked probably did not aid al-Qaeda or other terrorist groups in any way.  On top of that, there seems to be a lot of questions regarding whether or not most of the information should have been classified in the first place.

That’s not to say that Bradley Manning’s actions weren’t worthy of punishment.  Any way you look at it, it’s probably not a good policy to allow military personnel with security clearance to release classified information.  But that’s where the other charges come into play.  Manning is by no means off the hook.  Yes, he beat the most serious and highly publicized charge against him, but he was still convicted of a myriad of other charges.  Manning was still convicted of six violations of the Espionage Act of 1917, as well as most of the other 22 charges lodged against him (10 of which he has already plead guilty to).  He faces a maximum of 136 years in prison, although he probably won’t receive the maximum sentence due to the plea bargain I mentioned.  Regardless, it’ll probably be pretty hefty.

A statement put out by Reps. Mike Rogers (R-Mich.) and C.A. Dutch Ruppersberger (D-Md.), both members of the House Intelligence Committee, was cautiously optimistic but also a little confusing to me.  Here it is:

“Justice has been served today. PFC Manning harmed our national security, violated the public’s trust, and now stands convicted of multiple serious crimes. There is still much work to be done to reduce the ability of criminals like Bradley Manning and Edward Snowden to harm our national security. The House Intelligence Committee continues to work with the Intelligence Community to improve the security of classified information and to put in place better mechanisms to detect individuals who abuse their access to sensitive information.”

My confusion here comes from their claim that they are working hard toward securing classified information and our national security.  It seems to me like their plan is to bring the hammer down on anyone like Bradley Manning who leaks information to deter others from doing the same.  I know that leaking classified information is different than murder in that it’s usually a planned, calculated act.  The leaker usually knows there’s a good chance he might get caught, so I can see the logic behind a deterrence theory argument.  But I highly doubt anyone planning to pull a Bradley Manning-esque stunt doesn’t already know that the crime carries a serious penalty.

Maybe instead of throwing the book at Bradley Manning, who seems to have had serious concerns about the military’s policies, we should take a look at overhauling our classification systems.  And maybe we shouldn’t be handing out security clearances like candy.  Politicians should absolutely go after people like Bradley Manning and Edward Snowden.  Leaking government secrets should be punished.  But the politicians should at least own up to the fact that this is partially their fault.  If we start paying attention to what we classify and who we give security clearance to, we won’t find ourselves in these situations.

Chris Whitten, Research Fellow
Center for Policy and Research

Bradley Manning’s Top Charge to Remain

Earlier today, a military court judge dismissed a motion by Bradley Manning’s defense team to drop “aiding the enemy” from the list of charges against him.  Manning, who is now definitely facing life in military prison without the possibility of parole, is the U.S. Army intelligence analyst accused of leaking the information that eventually ended up on Wikileaks.  He was arrested in 2010 in Iraq and charged with 22 separate counts related to the release of over 700,000 documents to Wikileaks.  Though he plead guilty to 10 of the 22 counts back in February, Manning’s trial did not start until early last month.

The decision was left up to Colonel Denise Lind, the judge presiding over the case at Fort Meade in Maryland.  She rejected the motion based on the “accused’s training and experience and preparation,” as well as Manning’s knowledge that terrorist organizations would have access to the leaked documents on the Internet.  The defense’s motion claimed that the government had failed to show that Manning possessed “actual knowledge” that he was providing information to the enemy, and could only show that he unintentionally or accidentally gave terrorist organizations access to the documents.

I think it’s worth noting that there’s a pretty sharp difference between “knowingly” and “intentionally” aiding the enemy, a difference that the defense seems to have overlooked.  I agree that Manning’s intent probably wasn’t to provide al-Qaeda with sensitive government documents. The way he went about releasing the information wouldn’t make any sense if that scenario were true.  But at the end of the day, his intent isn’t what matters if you read Article 104, the charge which Manning’s defense appealed:

Any person who—
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or protects or 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. This section does not apply to a military commission established under chapter 47A of this title.

What matters in regard to this charge is that Manning knowingly released classified government documents that he knew could indirectly reach terrorist organizations.  You can argue all day about whether or not Manning actually deserves to be charged under Section 104.  But if we’re going by the book, Judge Lind made the right call.

Putting aside the technical aspects of the case, journalists are all in a tizzy about what this means for investigative journalism.  Many are claiming that the Obama administration is trying to make an example of Manning by bringing the hammer down on a highly visible whistleblower.  They are concerned that the threat of life in prison without the possibility of parole will prevent others like Manning to come forward when they believe the government is doing something unethical or shady.  These are valid concerns.  There is a reason why freedom of the press is a cornerstone of our democracy.  If we aren’t aware of what our representatives are doing, how can we vote them out of office if we disagree with their policies?

Still, I think the government has a legitimate concern as well.  Sure, we over-classify and give security clearances to far too many people, but that doesn’t mean it should be a free-for-all.  There is plenty of classified information that I’m sure I wouldn’t want to go public, and the government has a right to protect that information in the name of national security..  But the solution isn’t to throw Manning into prison for the rest of his life; it’s to fix the system.  Because of the aforementioned over-classification, the government has created a climate in which someone almost HAS to leak classified information to get to the bottom of any real stories.  Since we seemingly classify everything nowadays, what should be public and what should be classified gets lumped together and we see exactly what happened in Manning’s case.  And when we have an estimated 4 million people with top-secret security clearance, let’s not act too surprised when that happens.

Did Bradley Manning do something stupid?  I think he did.  Did terrorist organizations gain access to classified government documents because of his actions?  Undoubtedly.  But the government needs to realize that the guilt doesn’t lie solely with Manning.  If we’re really worried about protecting classified information, we need to start being selective in regard to what we classify and who we give clearance to.

Chris Whitten, Research Fellow
Center for Policy and Research

Snowden circumvented legitimate whistleblower route

Over the last couple of weeks, the a lot has been said on both sides of the argument about Edward Snowden, the NSA leaker, and the balance of national security and privacy. His disclosures have raised a moderate amount of outrage on the part of libertarians of both parties, as well as a great deal of discussion on the proper balance of national security needs and privacy rights.

Interestingly, most representatives in Congress does not seem that perturbed by the idea of these programs, although they are livid that they were disclosed in this manner. And of course the Executive has been outraged that one of its trusted contractors has turned on them. And now, Snowden has been charged with espionage, however poorly that statute may fit the offense.

Something that is lost in all of this debate on whether the surveillance programs in question are legal, ethical, wise, etc. is the question of who should be asking these questions and how. We have a Whistleblower Protection Act for a reason, after all. It reiterates and reinforces the idea that national security policy questions are to be dealt with by our cadre of national security professionals and by Congress.

Snowden claims that he leaked the information in order to allow the American public to decide for itself if these programs were appropriate. But his own actions and methods belie this intent. By releasing the information into the public domain, instead of following the prescribed chain of notification and complaint, Snowden decided himself that the programs were a violation of the public’s privacy rights. So instead of having the decision on the careful balance between national security nd privacy made by our elected representatives, Snowden ensured that it was made by an unaccountable high school dropout.

I do not bring up this last point out of spite, or to merely disparage Snowden; I, too, never completed high school.  However, there is a reason for the overwhelming preference for college graduates with a broad liberal arts background. Such an education promotes better contextual understanding of the fine balances between the different competing factors confronted in any given situation. This is precisely the skill that the central question in this affair requires: whether the value to national security of these programs is worth the loss of a given amount of privacy. Interestingly enough, this is also exactly the type of decision made on a daily basis by our elected representatives in Congress, who (not incidentally) should have been the Snowden’s last stop before going public.

I know understand how powerful the personal belief that a certain national security program or event is unethical and must be exposed can be. I have been personally involved in a whistleblower case, and seen with my own eyes the emotional strain that can be caused by holding back the information that you vehemently believe should be made public. But that does not excuse those like Snowden or Bradley Manning, who have simply bypassed all of the proper channels and taken the decision entirely into their own hands.

If Snowden was a true patriot, he would not broadcast his information from safe havens abroad, on the run from the law (although he claims he is “not here to hide”—again, his actions belie his claimed intent). He would instead do what respectable whistleblowers do: First go through the correct channels, and when that fails and resort to the open media is required, stand up and face the music. Such whistleblowers often go unprosecuted, and when they are, they can at least rely on a jury of their fellow citizens to come to the rescue.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

Court of Appeals upholds denial of FOIA request seeking Bin Laden photos

The Court of Appeals for the District of Columbia yesterday decided to uphold a district court ruling that the US did not have to release photos of taken during and after the raid on Osama Bin Laden’s compound in Abbottabad, Pakistan. The photos were sought by a conservative watchdog group, Judicial Watch, under a Freedom of Information Act request. The court found, however, that since the photos were used to conduct facial recognition to verify the body as Bin Laden, releasing the photos could endanger intelligence methods.

While I do not dispute that ruling, I am happy about the outcome on another ground altogether. John Bennett, director of the CIA’s National Clandestine Service, described the photos in a declaration to the court as “quite graphic, as they depict the fatal bullet wound to and other similarly gruesome images of his corpse.” And according to the Appeals Court,

“As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al-Qaida could cause exceptionally grave harm.”

To my mind, this decision validates an important reason for the Freedom of Information Act: informational transparency. Congress did not pass it to give the media free access to salacious material to boost their ratings.

As citizens of an open democracy, Americans have a right to information about their government and its activities. But where the government has a legitimate reason for withholding a document, even if it is on grounds such as diplomatic “embarrassment,” as happened in the Bradley Manning Wikileaks case, a FOIA request should as a matter of policy only be granted if there is a legitimate informational purpose. Judicial Watch could identify no cognizable information contained in the pictures that was not already publicly known. Thus, releasing the photos would not serve FOIA’s purpose of informational transparency, only the media’s purpose of generating buzz.

A vastly undervalued aspect of protecting our rights as citizens of an open society is to avoid abusing those rights. One example of the dangers that fear of unwarranted disclosure can cause can be found in the case of the CIA interrogation tapes. Fearing that these tapes may at some point become public, the CIA destroyed them. The courts yesterday thus did us a favor in protecting the government from unnecessary disclosure of gruesome photos, helping to ensuring that the government can do its job without fear that anything and everything will wind up on Fox, MSNBC, and Al Jazeera.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

President Obama to give speech on counterterrorism policy, drones, and GMTO

President Obama is scheduled to deliver a speech on Thursday at the National Defence University on the administration’s counterterrorism policies, and how it intends to bring those policies in line with his long-standing pledge to honor the rule of law.

According to a White House official, speaking anonymously to the Washington Post Saturday, President Obama will “discuss our broad counterterrorism policy, including our military, diplomatic, intelligence and legal efforts.”

“He will review the state of the threats we face, particularly as the al-Qaeda core has weakened but new dangers have emerged,” the official said. “He will discuss the policy and legal framework under which we take action against terrorist threats, including the use of drones. And he will review our detention policy and efforts to close the detention facility at Guantanamo Bay.”

This speech could go some way toward fulfilling the promise that President Obama made in his 2013 State of the Union address, in which he proclaimed that his new administration would “ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.” Many, including myself, have been disappointed with the level of transparency the administration has maintained regarding national security efforts over the last 4 years or so. 

The speech comes at a time of increasing unrest in the national security arena. Indeed, it has already been delayed due to the hunger strike at the Guantanamo Bay Detention Facility and the brouhaha over the Justice Department’s subpoena of the AP’s phone records. While the events at Guantanamo Bay can to some degree be attributed to the policies of the Bush administration (in opening the prison) and to Congress (in refusing to allow it to close), the AP seizure is something that rests firmly in Obama’s lap, and is indicative of his Justice Department’s approach in general. Rather than increasing transparency, Obama’s Justice Department has been ruthless in suppressing leaks and punishing leakers.

While I have no sympathy for the likes of Bradley Manning, the number of prosecutions related to national security leaks has been higher under Obama than his predecessors, with at least some chilling effect on the “unofficial transparency” that leaks tend to serve. And while Obama has recently pushed for a new Federal shield law to protect reporters’ sources, his downright schizophrenic approach to transparency has been a bitter disappointment. Hopefully, Thursday’s speech will help to alleviate that disappointment.