Yochai Benkler: The dangerous logic of the Bradley Manning Case

Yochai Benkler, in The New Republic, on an exchange that took place in a military courtroom in January during pre-trial hearings in the Bradley Manning/Wikileaks case:

The judge, Col. Denise Lind, asked the prosecutors a brief but revealing question: Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?

The prosecutor’s answer was simple: 'Yes Ma'am.' The question was crisp and meaningful, not courtroom banter. The answer, in turn, was dead serious. I should know. I was the expert witness whose prospective testimony they were debating.

That "Yes ma'am," argues Benkler, makes Manning's prosecution "a clear and present danger to journalism in the national security arena." Read the rest.

• [sargentrg]

  would it be a threat to journalism though? as a member of the military his release of classified material to anyone is slightly different than a journalist publishing said classified info isn’t it?

  if this was a court case for a journalist being prosecuted for publishing the information provided by manning then id say journalism was at risk.

  • [Nonentity]

    The article explains that the laws in question can conceivably be applied to civilians as well.

    Also, the journalist publishing the information needs to get it from somewhere.  If they’re making communication with American journalists into an offense with a real risk of the death penalty then it significantly threatens the ability of journalists to bring abuses to light.

    • [Comfortable]

      No.
      Civilians have an entire spectrum of rights that serving soldiers agree to give up as part of their contract to serve. Disclosure of classified documents is a crime. People with clearances know this in spades. Manning’s status as a member of a semi-protected class — the gay community — will not help him in court.

      • [Jason Wood]

        By “semi-protected” do you mean slowly becoming unacceptable in society to single out for abuse & discrimination?

        • [charlieok]

          “Protected Class” is a legal term with a pretty clear definition:

          http://definitions.uslegal.com/p/protected-class/

          “The first civil rights laws protected only race and color. As the principle of discrimination evolved over the years more laws were passed and more groups were added. Federal protected classes now include race, color, national origin, religion, sex (or gender), age (over 40), and disability. State law (HEPA) further protects ancestry, marital status, sexual orientation, as well as arrest and court record (in most cases).

          Anti-discrimination laws only regard unequal or unfair treatment as unlawful discrimination when the victim is a member of a defined group known as a protected class.”

          I wasn’t able to find a definition for “semi-protected class”. My guess is that it refers to the protection at the state (not federal) level mentioned above, and that this protection is wildly inconsistent among states.

      • [Nonentity]

        I don’t think the criminal status of disclosing documents is in argument, but the potential death penalty for this specific situation is what’s in doubt.

        And, really.. the gay community is a semi-protected class?  Even if it were (hah!), it has nothing to do with this situation.

      • [GlyphGryph]

         The bit they are trying to pin on him, that the article specifically discusses, is NOT a soldier or military thing. It applies to civilians as well. If he is found guilty through their argument as it appears, it’s an incredibly strong precedent that civilians who make such information accessible to “potential enemies” (such as by publishing the information in your newspaper) would be the same class of crime.

      • [wysinwyg]

        Even neglecting the arguments others have made that you are wrong about this particular case, you are wrong in a more general sense as well.

        If we concede that people with clearance leaking classified documents is not acceptable then classifying documents will become a very easy way for anyone in the government to escape any kind of accountability.  More secrecy –> less accountability.  More draconian punishments for whisteblowers –> more secrecy.

        I don’t think this is consistent with the ideals of the USA.  Sounds more like Belarus or Myanmar. No offense to the people in either country, I have been given the impression that those governments are oppressive.

        • [llamaspit]

          Exactly correct. And it also asks us to accept the premise that if it is classified, then it must deserve to be classified and may not be questioned. 

  • [charlieok]

    It’s not slightly different. It’s vastly different. To get a security clearance, you need to sign a non-disclosure agreement.

    http://en.wikipedia.org/wiki/Standard_Form_312

    Bradley Manning would have signed this or some very similar agreement to protect the information he was granted access to. Journalists obviously do not need to sign any such document (unless they’re embedded with military troops? Now I’m curious about those situations…) and their role, quite rightly, is to inform the public about any important information they recieve.

• [Cowicide]

  In The Land of the Free, inc. there are no whistleblowers, just traitors or the good patriots that stay in line and obey.

• [Kurtz25]

  A whistleblower is someone who reveals wrongdoing on the part of his/her employer, not just anyone who turns over secret information to a bozo with a website.

  I respect Manning’s INTENT, but unfortunately, what he did was totally irresponsible.

  • [Tynam]

    Ummm… Manning turned over information because he believed it revealed wrongdoing on the part of his employer.  Lots of it, as it turned out. 

    What he did was the most responsible thing that can be possibly done… although the courage to do so in this situation is extremely rare.

    • [Comfortable]

      Yes, “responsible” if you suppose that being a tattle tale on the world’s most aggressive superpower is a winning strategy. Otherwise, it’s just an act of infantile naivety. Manning is as screwed up as Tim McVeigh was.

      • [Tynam]

        Responsible behaviour has nothing to do with self-preservation; it’s about preserving others.  Bradley’s behaviour was intended to improve the superpower in question, and he was prepared to take a huge personal risk to do so.
        Naive, yes, but awesomely responsible – he placed the welfare of his state and its citizens above his own.

        (Since he was in the service at the time, he had in fact taken an oath to do so.  That most serving officers would (and do) fail to meet the same high standard doesn’t make his behaviour any less responsible.)

        And your accusation is flat-out ridiculous.  McVeigh killed random strangers; Bradley didn’t.  Silly comparison.

      • [Brainspore]

        Manning is as screwed up as Tim McVeigh was.

        Right, because leaking evidence of human rights abuses within the military is exactly the same as blowing up children.

      • [wysinwyg]

        I can just see you trying to console your child after coming home from being bullied at school:
        “Well of course, he’s bigger than you.  Law of the jungle.  Man up.”

    • [wygit]

       Are you suggesting he read all of the 750,000 documents he released ?

      • [class_enemy]

        This.

        A whistleblower says: “Here is a list of the crimes for which I give evidence, and the evidence is as follows.”

        Not, “Here’s a cubic shitload of stuff, some of which may be criminal. Grab a shovel and take a look”.

  • [EH]

    Regardless of what you think about the responsibility in doing so, the greater value of having done so may be larger than that.

  • [aikimoe]

    As it’s been pointed out, Manning is the very definition of a whistleblower.  Of course, Obama is prosecuting more whistle blowers than all other presidents combined, so that doesn’t really help him.

    Also, there is absolutely no evidence that what Manning did was irresponsible, compared, of course, to the people who were most embarrassed about what he exposed.

    http://www.salon.com/2010/12/24/wikileaks_23/

• [Greg Fox]

  If the pen is mightier than the sword, then give them guns and take away their speech. Sounds like Orwell to me.

• [llamaspit]

  In comparing the harm that was done through the secrecy and dissimulation of the government in taking us to war in Iraq, and in uncounted ways that limit our civil rights, I will accept the chance of harm that could have been done by Manning’s acts of disobedience every time.

  The list of overreaching governmental mistakes is too long to begin to recount, but if we can’t rely on The New York Times to find out where the mistakes and official criminality lie any more, we will have to rely on whistleblowers like Manning, just as it took Daniel Ellsberg from the State Department, and Mark Felt from the FBI, to provide the necessary information in an earlier era.

• [Urbane_Gorilla]

  I’ll take Bradley Manning’s release of our ‘secrets’ any day over the absurd and in my opinion un-Constitutional secrecy that pervades our government. What happened to the ‘open government’ that our founders had evoked? These days you have to fight in court for years to get documents released, only to find them heavily redacted. This needs a change. Thank you Mr. Manning to have the balls to release what is truly nonsense and non-critical documentation anyway.

• [Work_Watch_Buy_Repeat]

  We’re now at the point where, what, upwards of 5% of the total US workforce now needs a Federal security clearance as a condition of employment?

  The fact that such a huge portion of our workforce faces Federal felony charges if they discuss their work with the press is the problem.  The specific criminal charges that prosecutors can choose from to punish “leakers” is a side issue: these days, *any* Federal prosecution effectively ruins your life.

• [Sasha K-S]

  Excellent article. Best I’ve read in the NR in a long time. Worth reading all the way through.

• [class_enemy]

  If I ran the NYT and Manning had offered me a dozen carefully selected classified documents which pointed explicitly at specific abuses, I’d have taken them and published them, and done my damndest to protect the source.

  If he came to me with a terabyte of classified diplomatic correspondence, 98 percent of which was not indicative of abuse and for which I was now going to bear custodial responsibility, I’d have slammed the door in his face too.

• [miasm]

  The divide here seems to derive from the diametric instincts to ‘be faithful even to the apparently corrupt’ and ‘do the right thing at all costs’.
  Whether the detractors response is to suppose Bradley should have been more discerning in those he swore loyalty to in the first place, or having declared loyalty, should have kept his mouth shut no matter how terrible the crimes he discovered, both reactions seem blindly emotional and yet still lacking of empathy.

  If you really cant imagine, even as a thought experiment, a situation in which you would be forced to betray a confidence in order to do what is right, then you are not trying hard enough.
  The fact that this case almost perfectly exemplifies the most extreme possible trope of this situation seems to highlight, if only to me, that the underlying instinct purveyed by both sides of the argument is still the desire to do the right thing.

  Perhaps you can imagine such a game-changing situation but feel that this case did not quite meet that standard.
  Or perhaps you really do feel that once declared, oaths of loyalty should only be broken on pain of death and that Manning should expect such a consequence in considering the decision to leak the information.

  However, I have a very hard time imagining that there is anybody out there who really thinks that there are no circumstances imaginable in which it is incumbent upon a moral actor to do what is right if that means breaking contract.