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Why Manning’s aiding the enemy charge was so important

July 30, 2013 by Scott Bomboy


Private Bradley Manning faced 21 charges in his court-martial, but it was one specific charge – aiding the enemy—that became the focus of months of coverage by a concerned media.

Source: Bradley Manning Support Network

Manning, 25, was found not guilty by a military judge on Tuesday on the aiding the enemy charge, but guilty on 19 other counts (including five espionage charges). His sentencing will continue over into Wednesday.

If Manning had been found guilty of aiding the enemy, he faced a potential sentence of life in prison.

Media experts have debated for months if the case would set a precedent that will allow the federal government to level charges akin to treason, under the Espionage Act, against anyone who leaks classified information to a publisher.

Technically, Manning was tried in a military court and didn’t face a treason charge. Such charges are rare, since the constitutional definition of treason is limited. Article III, Section 1, of the Constitution says that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

Manning faced the aiding the enemy charge under Section 104 of the Uniform Code of Military Justice, which applies to enlisted personal and potentially to citizens as well.

Related Story: Treason charges for Snowden would be rare, challenging

The code says that any person who “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 be subject to punishment, including death.

During the case, military prosecutors said Manning wouldn’t receive the death penalty, if convicted.

The aiding the enemy charge was based on the theory that Al Qaeda and others have used the Internet to access to publicly available information provided by Manning to the WikiLeaks web site.

The prosecution also said that Osama bin Laden had asked for information from WikiLeaks from his aides when he learned about the leaked information.

In 2010, Admiral Mike Mullen told “Meet The Press” that the release of the WikiLeaks documents had a direct impact on the military campaign in Afghanistan.

“There is an ability to put this kind of information together in the world that we're living in and the potential for costing us lives, I think, is significant.  I said, when it first occurred, I was appalled--I remain appalled--and that the potential for the loss of lives of American soldiers or coalition soldiers or Afghan citizens is clearly there,” Mullen said.

Mullen didn’t call Manning a traitor in that interview, but the military prosecution used the word “traitor” as it described Manning’s motivation to leak information to the web site.

But it is legal argument made by the government that a person could face potential capital punishment for leaking information to a publisher, which at a later time could be used by enemy combatants, that is an issue with far-reaching consequences.

Back in January, the prosecution and defense argued about the applicability of a Civil War court-martial case to the Manning situation. The debate was about the case of Private Henry Vanderwater, who was convicted in 1863 of aiding the enemy by giving a Virginia newspaper a command roster that was then published and read by the Confederates. (Vanderwater was given three months of hard labor and dishonorably discharged.)

At the time, Air Force Lt. Col. David J. R. Frakt, who teaches military law at the University of Pittsburgh, told the Huffintgton Post that he agreed with those observers who saw the aiding the enemy charge as unusual.

"It's very rare and there hasn't been anything in a long time – and probably nothing in the Internet area," Frakt said.

And it is the type of publication that revealed the information – an independent Web site – that’s another key factor.

Harvard Professor Yochai Benkler told the military court in July that at its outset, WikiLeaks was seen as a legitimate journalistic enterprise and it was an onslaught of government publicity about the Manning leaks that changed the popular perception about WikiLeaks.

Benkler wrote about how he would testify in a New Republic story months before he appeared on the stand.

“I will explain at trial why someone in Manning's shoes in 2010 would have thought of WikiLeaks as a small, hard-hitting, new media journalism outfit,” Benkler said.

He believed the case has definite First Amendment implications for anyone who wants to be a whistle blower, or publish information on a blog, a website or in more traditional media.

“The prosecutors seem bent on using this case to push a novel and aggressive interpretation of the law that would arm the government with a much bigger stick to prosecute vaguely-defined national security leaks, a big stick that could threaten not just members of the military, but civilians too,” he said.

Prosecutors contended that WikiLeaks wasn’t a legitimate journalistic enterprise and they called the group “a bunch of anti-government activists and anarchists.”

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