How Bradley Manning's 'aiding the enemy' charge could jolt journalism

Closing arguments in the court-martial of Pfc. Bradley Manning began Thursday, with the Army intelligence officer facing a potential sentence of life in prison for releasing some 700,000 classified government documents online.

But decisions in the courtroom have already echoed beyond the realm of national security into the world of journalism. Indeed, the case has significant implications for the media today, communication experts say. 

The decision this past week by the presiding military judge, Army Col. Denise Lind, to refuse to dismiss charges of "aiding the enemy," which carry a potential death sentence (though prosecutors have said they will not pursue it), is particularly important. Colonel Lind said Private Manning's military training would have given him knowledge that the information he divulged could be seen by America’s foes.

"He was knowingly providing intelligence to the enemy," she said, according to Reuters.

But that standard is an almost impossible one in the Internet era, when anything published is instantly available worldwide, Manning's supporters say. The result is that anyone who wants to inform fellow Americans about secret government actions – as Manning’s defense lawyers claim he was trying to do – is in danger of life in prison, or perhaps even death.

"The idea that you can execute someone for an offense that had no element of intent or even specified effect, or that you can face life in prison or death simply from informing an enemy or potential enemy in the process of informing fellow citizens for their benefit is potentially a lethal blow to the First Amendment or freedom of speech and the press," says Daniel Ellsberg, the former intelligence specialist who released the Pentagon papers – a classified history of the US policies in the Vietnam War – some 40 years ago.

That precedent could be damaging "specifically to investigative reporting on matters alleged to be security issues," adds Mr. Ellsberg, who has been a staunch defender of Manning's actions. "You can’t inform the public of wrongdoing by your government without informing the world."

Yet a healthy Democracy, he says, is impossible without such information. "No government will voluntarily reveal the elements of its own decisionmaking."

This application of "aiding the enemy" is new, suggests Kevin Gosztola, a civil-liberties blogger for firedoglake.com. According to his research, in the handful of "aiding the enemy" cases dating back to 1950, there has always been the proviso that the perpetrator had the specific intention of communicating information to America’s foes.

The Manning trial could open the charge to virtually anyone who posts sensitive information online.

"People need to understand that this is a new way of applying the aiding-the-enemy charge," says Mr. Gosztola. "It changes the standard for aiding the enemy."  

The question is whether people should have the right to freely disseminate information that reflects negatively on the US government, says Mark Tatge, a journalism professor at DePauw University in Greencastle, Ind. He suggests it is a constitutional right, but that it is "being trampled."
"How this information is disseminated and eventually published – blog, tweet, spoken conversation, published news story – really shouldn't matter,” says Professor Tatge.

The potential punishment is harsh, says Len Shyles, a professor of communication at Villanova University in Philadelphia. But, he adds, the purpose is "to protect America from our mortal enemies."