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

This Message is UNCLASSIFIED: FISA Explained

The Foreign Intelligence Surveillance Court was created by Congress in
1978 to review applications for warrants related to national security
investigations.  According to the Federal Judicial Center website, initially the court
was created in part as a response to allegations that the executive
branch was abusing its authority in conducting domestic electronic
surveillance in the interest of national security. (Sounds familiar,
doesn’t it?) Presumably the goals of the court have been to preserve
an air of fairness in relation to what are otherwise sensitive issues of
national security dominated by the executive branch.

But, it’s fairly disconcerting to have a court creating a body of law
that is essentially kept a secret from the public. So in February,
Senator Diane Feinstein sent a letter to presiding judge of FISA,
requesting that “important rulings of law” be declassified by FISA
to inform the public about FISA.

In 2010, the Office of the Director of National Intelligence and the
Department of Justice established a process to declassify opinions that
are “assessed to contain a significant interpretation of law,” but the
policy never really took hold. The court’s presiding judge Reggie
Walton, wrote in response to Feinstein’s letter that, “While
classification determinations are made by the Executive Branch in the
first instance, the facts presented in applications to [FISA] always
or almost always involve classified intelligence activities, the
disclosure of which could be harmful to the nation’s security.”

So it seems that while FISA was originally formed as a response to
the Executive branch’s abuse of authority, it really just serves as a
mechanism by which that same branch can maintain an authoritative
stranglehold on national security practices through the language of
“classification.” As a result, the power of FISA is as great as the
executive branch’s power to classify, which is always growing.

Perhaps there are highly sensitive issues that FISA is protecting,
but a judicial policy to protect information “classified” by the
government is especially problematic when the government is known to
over-classify. The real question is, are the the “classified intelligence activities” that
Reggie Walton claims FISA’s secrecy protects truly of a sensitive
and detrimental nature to our nation’s security, or just more instances of the
government classifying information to protect itself from public scrutiny?

Alison Frimmel, Research Fellow
Center for Policy and Research