Whistle-Blowing in the US: The Manning Effect

In only a few days, the court will render its verdict about WikiLeaks whistle-blower Bradley Manning. It is not only the soldier’s freedom that is at stake, but also a fundamental principle: Will the U.S. government succeed in criminalizing the unwanted publication of information in an Internet era?

A journalist can find himself in more pleasant situations than being watched by armed military personnel who every now and then take a glance at his laptop. The increase of security measures related to the closing arguments of the Manning case, which has also been reported by journalists, might end up taking a back seat to the implications for freedom of the press.

This is due to the fact that the military court in Fort Meade is not only deciding about the future of a young man who gave secret documents to WikiLeaks, but also determining whether military personnel will dare to share secrets in the future regarding information that is relevant to the public.

The Bradley Manning case has turned into a blueprint of how the U.S. government is dealing with traitors. This is not just about the long and unnecessary solitary confinement of the defendant, which has caused an uproar among human rights activists since the beginning of the trial; nor is it just about the military’s attempt to derogate Manning’s character (“He was not a humanist, he was a hacker. He was not a whistle-blower, he was a traitor”), which ultimately confirms the inherent logic of the prosecution’s proceedings. Indeed, this is really about the government’s rigorous attempt to close any gaps within the security apparatus, solely based on the assertion that Manning aided the enemy.

‘Aiding the Enemy’ in a Digital Era

Article 104 of the Uniform Code of Military Justice defines aiding the enemy as a criminal offense. Any person who aids, or attempts to aid, the enemy with arms, money or intelligence could face the death penalty. However, in Manning’s case, the prosecution abstained from this request, instead calling for life in prison.*

The prosecution argues that Manning knew WikiLeaks would publish all 700,000 documents. Thus, he also knew that America’s enemies, such as al-Qaida, would have access to them. In addition, due to his military training, Manning would have known perfectly well that terrorist organizations use such information to harm the U.S.

This line of argument ultimately turns all military whistle-blowers into traitors. The Internet era allows immediate access to published documents from basically anywhere in the world. Thus, in accordance with the interpretation of article 104, publishing documents online is the equivalent to sending them by mail to all 7.2 billion inhabitants of Earth — and naturally, this includes all of the enemies of the U.S.

Manning, Snowden and the Automatism of Treason

Manning’s lawyers, as well as civil rights activists, consider this claim to be absurd. Judge Denise Lind, however, has a different point of view: It was only last week that she dismissed the defense’s motion to exclude the aiding the enemy allegation from the case.

According to civil rights blogger Kevin Gosztola’s research, Judge Lind would have been the first to follow this type of argument. Throughout U.S. history, members of the military have only been convicted for aiding the enemy in cases of direct support, like purposefully providing information to specific people or groups.

A potential conviction turns any attempt to inform the public about wrongdoings, even if purely driven by conscientious reasons, into an attempt to aid the enemy, states Daniel Ellsberg, who passed on critical Pentagon documents to the media four decades ago. This “is potentially a lethal blow to the First Amendment or freedom of speech and the press,” he told the Christian Science Monitor.

Tightening Anti-Whistle-Blower Tactics

In the future, if the media decides to publish any original military documents, like the Manning material, on their website, their informants risk facing the death penalty if ever exposed. In view of such prospects, military whistle-blowers will have to consider very carefully whether to pass on information about grievances or injustices at all.

This strategy integrates seamlessly into the Obama administration’s anti-whistle-blower tactics on a civil level: By now there are eight current and former government employees who face charges in line with the Espionage Act of 1917 for passing on information. Thus, the current administration has charged 1.5 times as many people as all previous governments combined — even though the law was originally only aimed at foreign intelligence agents and people selling secret information.

These charges are also solely based on applying one ambiguous article: In accordance with section 793 of the Espionage Act, it is an offense to transfer knowledge “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”

Snowden’s Lessons from the Manning Case

Both Bradley Manning and the escaped National Security Agency (NSA) whistle-blower Edward Snowden are facing charges under the Espionage Act. The latter abstained from revealing details about electronic eavesdropping, but rather focused on providing information about a general surveillance program framework. While doing so, Snowden also referred to the lessons he had learned from the Manning case. This, however, is unlikely to actually help the former NSA employee if he ever gets caught.

*Editor’s Note: In the verdict, rendered July 30, Manning was found not guilty of aiding the enemy.