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Mar 05 2013

The Danger of the Daniel Manning Prosecution

Yochai Benkler, a Harvard law professor and one of the expert witnesses in the Bradley Manning case, has a long and very compelling article in the New Republic about the dangers of that prosecution and how it is being pursued primarily as a deterrent to future whistleblowers. I found this passage particularly prescient:

A country’s constitutional culture is made up of the stories we tell each other about the kind of nation we are. When we tell ourselves how strong our commitment to free speech is, we grit our teeth and tell of Nazis marching through Skokie. And when we think of how much we value our watchdog press, we tell the story of Daniel Ellsberg. Decades later, we sometimes forget that Ellsberg was prosecuted, smeared, and harassed. Instead, we express pride in a man’s willingness to brave the odds, a newspaper’s willingness to take the risk of publishing, and a Supreme Court’s ability to tell an overbearing White House that no, you cannot shut up your opponents.

But it isn’t enough to tell such stories to congratulate ourselves for how much we love the First Amendment and how committed we are to freedom of speech and of the press, especially in light of the government’s relentless attempts to keep secret its own misdeeds:

Whistleblowers play a critical constitutional role in our system of government, particularly in the area of national security. And they do so at great personal cost. The executive branch has enormous powers over national security and the exercise of that power is not fully transparent. Judicial doctrines like the “state secrets” doctrine allow an administration to limit judicial oversight. Congress’ oversight committees have also tended to leave the executive relatively free of constraints. Because the materials they see are classified, there remains little public oversight. Consider the Senate Intelligence Committee’s report on the interrogation torture practices during the immediate post 9/11 years: Its six thousand pages, according to Senator Dianne Feinstein, are “one of the most significant oversight efforts in the history of the United States Senate.” But they are unavailable to the public.

Freedom of the press is anchored in our constitution because it reflects our fundamental belief that no institution can be its own watchdog. The government is full of well-intentioned and quite powerful inspectors general and similar internal accountability mechanisms. But like all big organizations, the national security branches of government include some people who aren’t purely selfless public servants. Secrecy is necessary and justified in many cases. But as hard-earned experience has shown us time and again, it can be—and often is—used to cover up failure, avarice, or actions that simply will not survive that best of disinfectants, sunlight.

That’s where whistleblowers come in. They offer a pressure valve, constrained by the personal risk whistleblowers take, and fueled by whatever moral courage they can muster. Manning’s statement in court yesterday showed that, at least in his motives, he was part of that long-respected tradition. But that’s also where the Manning prosecution comes in, 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.

One of the things that has come out recently is that Manning approached the New York Times, the Washington Post and Politico about leaking those documents to them but got no interest. That’s why he went to WikiLeaks instead. If one of those more mainstream media outlets had taken him up on the offer, it’s likely that they would have not been as indiscriminate with the release of documents that either show nothing (most of what he leaked were just routine diplomatic cables and the like, of no real consequence) or that might genuinely be too sensitive to release, at least in unredacted form.

But all of this must be understood in the context of the government’s relentless quest for secrecy and for preventing anyone who has been harmed by its actions to have any chance at having their case considered, on the merits, in court. It is only because of whistleblowers over the last few years that we know of the NSA’s data mining program, of the installation of splitters on the trunk lines of the telecoms that allow them to intercept virtually every electronic message sent in the country, and many more dangerous and illegal actions.

Yes, whistleblowers may from time to time go too far and put out information that legitimately should remain secret. But on balance, we are far better off having our freedoms in the hands of brave people who risk their lives to get the truth to us than in the hands of the government that wants to keep their illegal actions secret from those who pay for them.

9 comments

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  1. 1
    theschwa

    I assume the title has a typo. It should Bradley Manning? Or is the Government so viscous that it is also prosecuting his father or brother as well as an added deterrent?

  2. 2
    Marcus Ranum

    Manning approached the New York Times, the Washington Post and Politico about leaking those documents to them but got no interest.

    It’s not that they got no interest – it’s that the press was scared of losing access and being taken off the white house luncheon invitations list.

  3. 3
    wscott

    How much of a difference did it make that Manning was tried under the UCMJ? Do you think the outcome would’ve been any different if he’d been a civilian tried in a civilian court? I ask because some people have argued that members of the military can/should be held to a higher standard in regards to handling classified information. Not sure I buy that argument, and I know the Obama Administration has been pretty aggressive in going after civilian whistleblowers as well. But I’m curious what those of you who follow these cases more closely think about how much impact (if any) it had in this specific case?

  4. 4
    schweinhundt

    I don’t see Manning as a whistleblower. He data dumped a HUGE assortment of classified information—granted, though, a sizeable chunk of that was probably over-classified. Included in the dump, however, were about 250,000 U.S. embassy messages from around the world. I’m sorry, Ed, I can’t call that inconsequential.

    Whatever his intentions, Manning deserves the espionage charge in my opinion.

  5. 5
    dmcclean

    It would be cool if in cases like this we could take a secret poll of Congress. If one congressperson votes that what you did was good whistleblowing instead of bad espionage, there you go.

    Assuming we don’t want to amend the constitution just for cases like this, though, what mainly needs to change is attitude, and that’s going to be just as tough.

  6. 6
    outraged

    Don’t forget, Wiki Leaks did vet the stories before releasing them. The did research them until Mr. Assange was marked for arrest, then they released them in a blast. No previous stories were threats to national security as other sources and the US government were given them for comment and research. Only after the US went after Wiki Leaks did it send out the stories. That is how journalism does work. The news generated out of those stories was the best news done for the last couple of years if you were paying attention.

  7. 7
    outraged

    Don’t forget, Wiki Leaks did vet the stories before releasing them. They did research them until Mr. Assange was marked for arrest, then they released them in a blast. No previous stories were threats to national security as other sources and the US government were given them for comment and research. Only after the US went after Wiki Leaks did it send out the stories. That is how journalism does work. The news generated out of those stories was the best news done for the last couple of years if you were paying attention.

  8. 8
    slc1

    Prof. Benkler must be one of those Harvard professors that Ted Cruz claimed was a Comsymp. End snark.

  9. 9
    baal

    Manning’s treatment is clearly meant to send a signal to future leakers / whistleblowers. If you do it, we will abuse you. I’m not against his prosecution necessarily but find the lack of due process (3 years pre-trial detention) and the BS around his confinement (enforced nudity, solitary confinement, sleep deprivation) intolerable.

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