Analysts fear other whistleblowers could be construed to aid enemy.
– A military judge on Thursday declined to dismiss a key charge against the Army private responsible for the largest leak of classified material in American history. The decision has significant implications for the future publication of secret government material, according to civil libertarians and press freedom advocates.
Judge Denise Lind decided to reject a defense motion to dismiss a government charge that Army Pfc. Bradley Manning “aided the enemy” when he turned over 700,000 military and diplomatic documents to the anti-secrecy group WikiLeaks because some of that material was read by Osama bin Laden.
Lind cited as reasons for her decision the “accused’s training and experience and preparation” and the volume of classified information disclosed to WikiLeaks. Those factors effectively buttressed the government’s charge that Manning “knowingly provided information to the enemy,” Lind decided.
The judge said that because Manning maintained and possessed intelligence publications, he would have been aware of the use of the Internet by terrorist organizations. She noted that Manning was trained as an all-source intelligence analyst and would have learned in that training that when U.S. forces were conducting operations, critical information must be protected.
Lind also cited Manning’s chats in which he referred to WikiLeaks as “an intelligence agency without anonymous sources.”
The motion to dismiss the charge was filed July 4 by Manning’s civilian defense attorney. He argued that the government had failed to show that Manning “had ‘actual knowledge’ that by giving information to WikiLeaks, he was giving information to an enemy of the United States.” He said the government did introduce evidence “which might establish that PFC Manning ‘inadvertently, accidentally, or negligently’ gave intelligence to the enemy,” but that this was not enough to prove the most serious charge against him, known as an Article 104 offense.
On two separate occasions, Lind, an Army colonel, had questioned military prosecutors about whether they would be pursuing the charge if the information had been leaked directly to the Washington Post or the New York Times. Each time, the prosecution said it would. That troubles advocates for whistleblowers, who fear that the leaking of national defense information that appears online, as it inevitably does, can be construed as assisting the enemy.
If convicted of aiding the enemy, Manning, an intelligence analyst who served in Iraq, could face life in prison.
“By pressing forward with this dangerous and overbroad legal theory, the government has virtually ensured that any conviction of Manning will be vulnerable on appeal,” said Ben Wizner, a staff attorney at the American Civil Liberties Union.
He said earlier that the charge was “not only unconstitutional” but “unnecessary,” and that the point was to “transform what was widely seen around the world as a valuable leak into treason.”
The government, however, has insisted that Manning is distinct from “an infantryman or a truck driver” and that as an intelligence analyst, he would know that terrorists make extensive use of the Internet.
“He knew exactly what he was doing,” said Capt. Angel Overgaard, military prosecutor. “He knew exactly the consequences of his actions.”
The trial, which began in June, is expected to wrap up as early as this week after hearing from more than 90 witnesses.
Closing arguments could begin Friday, and the judge could issue a verdict as soon as that day. Manning elected not to ask a panel of military jurors to hear the case. He has already pleaded guilty to 10 lesser offenses and faces up to 20 years in prison on those charges.