Bradley Manning and the American way of justice

It's probably trite to assume that, in a highly controversial cases, that a just verdict is the one that makes nobody happy. But clearly no one is jumping for joy over the outcome in the trial of Pfc. Bradley Manning, the U.S. soldier who released thousands upon thousands of classified national security documents to the website Wikileaks. Manning was convicted by a military judge today on multiple counts of espionage and stealing documents -- a not-unexpected development that still disappoints civil libertarians and other activists -- but the government was rebuffed in its efforts to pin a serious and unprecedented aiding-the-enemy charge on the former-Army-private-turned-document leaker.

For what it's worth, I think this outcome was just -- and thus a tiny but significant affirmation of American justice. Manning was always a tricky case that never fit any type of box. He wasn't exactly a classic whistleblower, in that he wasn't targeting a specific crime or corrupt official, but rather what he saw as broader U.S. immorality in foreign policy. But he wasn't a spy, either -- despite the government's unfortunate effort to portray him as one. More appropriately, Manning committed an act of civil disobedience, and like all who take such a stand, he surely knew to expect a jail cell in return for what he saw as a principled act. The truth is that, on the whole, his action did some good -- this famous video told Americans more about the conduct of the war in Iraq than eight years of Pentagon -- and little if any harm. But that doesn't mean that Manning shouldn't have expected to be convicted for knowingly breaking the law.

In fact, Manning offered to plead guilty to 10 charges and serve most of his adult years -- 20, to be exact -- behind bars, but Obama's Pentagon wanted to take this much further, and win a conviction that would have thrown a death-penalty-shroud over future acts of muckraking, public-interest journalism. I'll let Amy Davidson of the New Yorker explain the significance:

This is more dangerous for the country than anything Manning did. The charge carries the death penalty, though this prosecution is only seeking life, but the severity isn't even the main issue. It is the legal theory that Manning aided the enemy by giving something to reporters that was published, and that bad people then read.

This argument was last used during the Civil War, in a case whose facts were very different and involved what most people would recognize as classic espionage. (Coded messages in advertisements, for one thing.) A crucial moment in the Manning trial came when the judge, Denise Lind, turned down a motion to dismiss that charge, saying that Manning as a soldier ought to have understood whom he might help. (Lind will decide the case; Manning passed up a trial by a military jury. I'll update this post when the verdict is released.) But unlike laws on protecting classified documents—which, again, Manning agreed to plead guilty to violating—this is about judging the criminality of the leaks by how the world reacts to them.

Exposing a war crime, or even just bad policy decisions, may embarrass an Administration, cause domestic support for a war to drop, or allow marchers in many countries to carry posters with ugly pictures. If we call that aiding the enemy, then we are closing off discourse in areas where we most need it. Reporters, by this theory, could be aiding the enemy, too, anytime they make a government uncomfortable—which is their job.

The Obama administration is already engaged in a race to the bottom with the late Richard Nixon for the worst record on press freedom in my lifetime. The record number of efforts to prosecute whistleblowers and to intimidate future truth-tellers, the alarming efforts to criminalize reporting by Fox News, the Associated Press and others, and a generally callous attitude toward freedom-of-information laws are all terrible enough, but an aiding the enemy conviction for Manning's leak would have been the hardest kick in the groin. The judge, Col. Denise Lind, deserves kudos for standing up and rejecting the government's overreach.

Even so, as citizens we have to hope the severity of the espionage charges that Manning was convicted of today won't have a chilling effect on our right to know what the U.S. government is up to overseas. When we look at this and at the whistleblower cases prosecuted by the Obama administration, maybe we shouldn't be asking ourselves why there are so many whistleblowers. Instead, we need to start asking why America has so many secrets in the first place.