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A warning to would-be leakers

PFC Bradley Manning was found not guilty of the most serious charge against him, but the Obama administration's war on leakers continues.
/ Source: Up

PFC Bradley Manning was found not guilty of the most serious charge against him, but the Obama administration's war on leakers continues.

Army Pfc. Bradley Manning is escorted out of a courthouse in Fort Meade, Md., Tuesday, July 30, 2013, after receiving a verdict in his court martial. (Photo by Patrick Semansky/AP)

For most people, under most circumstances, the prospect of decades in prison after being found guilty of 19 criminal charges would be devastating. For Private First Class Bradley Manning, it was a cause for celebration. He had been acquitted of “aiding the enemy”–the most serious charge against him, and one that might have carried a life sentence.

Manning was convicted of six counts of violating the Espionage Act of 1917 and most of the other charges he faced in connection with his release of hundreds of thousands of secret documents to WikiLeaks in January 2010. He pleaded guilty to 10 charges earlier this year. Sentencing hearings will begin Wednesday and are expected to last two to three weeks.

Manning could spend much of the rest of his life in prison for exposing what he has said he believed to be government wrongdoing, but he will not be considered a traitor under the law. In theory, Manning could be sentenced to 136 years in prison if he must serve his sentences consecutively.

Tuesday’s verdict by military judge Colonel Denise Lind was a setback for the Obama administration’s aggressive prosecution of leaks. Under President Obama, the Department of Justice has charged more leakers under the 1917 Espionage Act than all previous administrations combined. Journalists and advocates for whistleblowers are increasingly concerned about the administration’s unprecedented pursuit of leakers.

“Accusing a whistleblower of aiding the enemy has, unto itself, had a chilling effect,” Stephen Kohn, executive director of the National Whistleblower Center, told MSNBC. “If he’d been convicted, it would have had a devastating effect on all national security whistleblowing.”

The verdict could most immediately affect Edward Snowden, the former NSA contractor who leaked secret documents about that agency’s surveillance programs and technology to the Guardian and the Washington Post. The government has charged Snowden with theft of government property and two espionage charges (unauthorized communication of national defense information, and communication of classified intelligence to an unauthorized person), and is currently pursuing his extradition back to the United States for trial.

Snowden has said that one of the reasons he fled the United States after leaking the NSA surveillance information was that he feared being treated as harshly as Bradley Manning was during his pre-trial confinement. Manning spent nearly a year in solitary confinement after his arrest. International human rights groups argue that more than 15 days in solitary detention constitutes torture.

Had Manning been found guilty of aiding the enemy for making classified military and diplomatic cables, video, and documents available online, the implications for investigative journalism would be profound. Reporters are already under pressure. Recent moves by the government to seize the phone logs of Associated Press reporters and a federal court decision to force New York Times reporter James Risen to testify against a source in a leak-related case have angered the national press.

In a statement released after the Manning verdict, the Center for Constitutional Rights, which had filed suit to force the government to increase transparency around the trial, expressed disappointment at Manning’s likely long prison sentence. “If the government equates being a whistleblower with espionage or aiding the enemy, what is the future of journalism in this country?” the statement asked.

During proceedings to determine whether to drop the most serious charge against Manning, Col. Lind asked a member of the prosecution team whether bringing the cache of documents to a more well-regarded organization than Wikileaks would have lessened the impact. The lawyer responded, “It would not potentially make a difference.” In other words, bringing secret information to The New York Times is tantamount to espionage.

Lind’s decision to allow the “aiding the enemy” charge could embolden the government to go after those who leak information in the future, even though Manning was ultimately acquitted of that charge. Granting the motion “would have been a clearer victory than today finding that the government failed to meet its burden of proof,” Colonel Morris Davis, a former chief prosecutor at Guantanamo Bay and expert witness for the defense told MSNBC. “This whole affair will have a chilling effect on the next person that sees something wrong and contemplates whether or not to speak up on it.”

Civil liberties groups applauded the not guilty verdict but insist the charges were excessive to begin with. “While we’re relieved that Mr. Manning was acquitted of the most dangerous charge, the ACLU has long held the view that leaks to the press in the public interest should not be prosecuted under the Espionage Act,” said Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project said. “Since Manning already pled guilty to charges of leaking information–which carry significant punishment–it seems clear that the government was seeking to intimidate anyone who might consider revealing valuable information in the future.”

Elizabeth Goiten of the Brennan Center for Justice also expressed concern about the fact that Manning still faces such harsh punishment. “Manning is one of very few people ever charged under the Espionage Act prosecutions for leaks to the media,” she said in a statement. “Despite the lack of any evidence that he intended any harm to the United States, Manning faces decades in prison. That’s a very scary precedent.” It is probably fearsome to Snowden as well.

The use of the Espionage Act against Manning and Snowden is unusual, but Kohn, the head of the National Whistleblower Center, does not expect their cases to be the last–unless swift action is taken to protect those who want to expose what they see as wrongdoing. “On one hand, you see an employee or soldier who learns about what they think are significant crimes, and the other hand, no effective channel to raise those concerns in which they’ll be protected and properly investigated,” he said. “Until there is a workable whistleblower law that creates a safe and effective channel for national security and intelligence whistleblowers, we’re going to see a repeat of the Snowden and Manning cases.”