When the Nixon administration tried to stop the New York Times and Washington Post from publishing the Pentagon Papers, government lawyers argued that the information “could” or “might” prejudice national security. The Supreme Court rightly said that was not enough to justify the unprecedented step of ordering the newspapers, in effect, to stop the presses.
Four decades later, the government had a much easier case in prosecuting then-Pfc. Bradley Manning for leaking hundreds of thousands of classified, computerized documents to Wikileaks. As in the Pentagon Papers case, however, the government lawyers have yet to show at least on the public record that the publication of this classified information has actually harmed the United States.
The findings that U.S. Army Judge Denise Lind set out after having convicted Manning of multiple counts are silent on any actual harm to U.S. interests from Manning’s leaks. Here, complete with legal verbiage, is Manning’s most serious offense: “Wrongfully and Wantonly Causing Publication of Intelligence Belonging to the United States on the Internet Knowing the Intelligence is Accessible to the Enemy to the Prejudice of Good Order and Discipline in the Armed Forces or of a Nature to Bring Discredit Upon the Armed Forces.”
On that so-called espionage count, Lind found that Manning “had reason to believe” that the information “could be used to the injury of the United States or the advantage of any foreign nation.” But, she added, “the government is not required to prove that the information was actually used to injure the United States.” None of Manning’s other offenses conversion, transmitting defense information, computer fraud, and violation of a “lawful general regulation” required such proof either. Lind rejected the government’s most serious charge: aiding the enemy.
Manning, who now identifies as a woman and calls herself “Chelsea,” apologized during the sentencing hearing for her actions and acknowledged they were wrong. “I’m sorry that my actions hurt people,” Manning testified in a three-minute, unsworn statement from the witness stand. “I’m sorry that they hurt the United States.”
Manning’s contrition before a judge with the power to sentence her to up to 90 years’ imprisonment made perfect sense as a legal strategy. But, as Manning supporter Rainey Reitman points out in an article for the Freedom of the Press Foundation, Manning is actually contradicting earlier statements by current and former government officials that the information was not damaging U.S. interests.
Back when Wikileaks was publishing the fruits of Manning’s data dump, officials up to and including Vice President Joe Biden pooh-poohed any fears that the leaks were causing harm. “I don’t think there is any substantive damage, no,” Biden told MSNBC in an interview on Dec. 16, 2010.
Publicly, the State Department at the time was claiming “substantial damage” from the disclosures of the cables. But Reuters quoted congressional sources as saying that State Department briefers had privately described the leak just as Biden had: embarrassing but not damaging. The stronger public statements, the congressional sources explained, were needed to bolster legal efforts to shut down the Wikileaks web site and/or prosecute the leakers.
Manning had been identified by then as the leaker fingered in May 2010 by an ex-hacker, Adrian Lamo, who feared Manning’s disclosures were putting Americans’ lives at risk. Manning, dealing with his own emotional difficulties while stationed in Iraq, had sought out Lamo through cyberspace as a fellow sufferer of Asperger’s disorder. In their computer exchanges, Manning took credit for Wikileaks’ disclosure of an indiscriminate U.S. helicopter airstrike in suburban Baghdad in July 2007 that took 12 lives, including two Reuters news agency employees.
Lamo, the self-confessed hacker of the New York Times’s computer system, had no information, only a layperson’s intuition, about the potential risk of Manning’s disclosures. Three years later, the government has yet to produce any evidence that the leaks resulted in any loss of life. Indeed, as Rainey points out, now retired Brig. Gen. Robert Carr, who had headed the Wikileaks “mitigation” effort, acknowledged during Manning’s sentencing hearing that he knew of no one killed as a result of having been identified in the so-called Afghan War Logs that Manning had leaked.
Weighed against what former Secretary of Defense Donald Rumsfeld candidly described as the “overwrought” reaction to the Wikileaks disclosures are the benefits to the public’s right to know. The so-called Iraqi War Logs, for example, indicate that the United States undercounted civilian deaths in post-Saddam Iraq and failed to investigate reports of abuse, torture, rape, and even murder by Iraqi police. The State Department cables have been “at least partially successful” in providing more “transparency” to international politics, according to Joshua Keating, associate editor of Foreign Policy.
Lind may or may not have taken all this into consideration in sentencing Manning to 35 years’ imprisonment [Aug. 21]; she said nothing to explain her reasons. The sentence was less than the 60 years the government had asked for and less, according to Manning’s attorney, David Coombs, than the government had offered in a plea bargain. Still, it is the stiffest sentence ever for releasing classified documents. That will send a powerful warning against any future whistleblower who, like Manning, might think that exposing possible government wrongdoing will help make the world a better place.