Harvard Law professor Yochai Benkler begins a recent New Republic article like so:
After 1,000 days in pretrial detention, Private Bradley Manning yesterday offered a modified guilty plea for passing classified materials to WikiLeaks. But his case is far from over—not for Manning, and not for the rest of the country. To understand what is still at stake, consider an exchange that took place in a military courtroom in Maryland in January.
The judge, Col. Denise Lind, asked the prosecutors a brief but revealing question: Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?
The prosecutor’s answer was simple: “Yes Ma’am.”
This last line, the simple, “Yes, Ma’am,” is important.
It’s not that Manning leaked to WikiLeaks the government is saying. It’s that he leaked at all. More specifically, in the government’s view, the act of leaking is “aiding the enemy,” and it is those charges — a capital offense, although the prosecution says they will not seek the death penalty — that it looks like they are going to pursue.
As GigaOm’s Matthew Ingram points out:
[I]f Manning is found guilty of “aiding the enemy” for releasing classified documents to WikiLeaks, it could change the nature of both journalism and free speech forever.
Why? Because as Benkler points out, the charge for which Manning is being court-martialed could just as easily be applied to someone who leaks similar documents to virtually any media outlet, including the New York Times or the Washington Post. In other words, if the U.S. government has seen fit to go after Manning and WikiLeaks, what is to stop them from pursuing anyone who leaks documents, and any media entity that publishes them?
And, as Benkler, who’s an expert witness on the case, further explains:
[T]hat “Yes Ma’am” does something else: It makes the Manning prosecution a clear and present danger to journalism in the national security arena. The guilty plea Manning offered could subject him to twenty years in prison—more than enough to deter future whistleblowers. But 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…
…The prosecution case seems designed, quite simply, to terrorize future national security whistleblowers. The charges against Manning are different from those that have been brought against other whistleblowers. “Aiding the enemy” is punishable by death. And although the prosecutors in this case are not seeking the death penalty against Manning, the precedent they are seeking to establish does not depend on the penalty. It establishes the act as a capital offense, regardless of whether prosecutors in their discretion decide to seek the death penalty in any particular case.
Chilling, indeed. As Ingram sums up:
Benkler’s warning shouldn’t be taken lightly: if Manning is guilty of aiding the enemy for simply leaking documents, then anyone who communicates with a newspaper could be guilty of something similar. And if the leaker is guilty, then the publisher could be as well — and that could cause a chilling effect on the media that would change the nature of public journalism forever.
Yochai Benkler, The New Republic. The Dangerous Logic of the Bradley Manning Case.
Mathew Ingram, paidContent. If Bradley Manning and WikiLeaks are guilty, then so is the New York Times.