Q & A: Manning sentence crucial for future of journalism
From Deutsche Welle
Cyber law expert and key witness in the Bradley Manning trial Yochai Benkler tells DW why Manning’s sentence could have grave implications for journalism and why the verdict spells trouble for Edward Snowden.
Yochai Benkler is co-director of Harvard University’s Berkman Center for Internet and Society and professor of entrepreneurial legal studies at Harvard Law School. He is a leading cyber law expert and was a key witness for the defense in the Bradley Manning trial.
DW: What is your response to the verdict – happy that Manning wasn’t convicted of aiding the enemy or upset that he was convicted on almost all other charges?
My response is mixed. I am relieved that the judge rejected the aiding the enemy charge. That charge would have effectively meant that almost any leak of national security materials could have provided the foundation for an “aiding the enemy” charge. The fact that the judge insisted on a robust intent requirement, and rejected the broad theory that giving materials to a publication that is accessible online to the enemy, is enough.
But the remainder of the charges, in which the judge found Manning guilty, are very broad and carry stiff penalties. It will be critical for the future of journalism whether the ultimate sentence Manning faces is more-or-less congruent with what we have seen in the rare cases of convictions for leaks in the past – in the range of two to three years imprisonment, or whether he faces decades in prison. The latter outcome would cast a long shadow on investigative journalism in the area of national security in America.
What are the broader consequences and the message sent by the verdict to Julian Assange and Edward Snowden as well as to potential future leakers?
The Manning case has been the flagship of the Obama administration’s war on national security journalism. This was one major point in what will be a long, drawn-out battle over the tradeoff between national security interests and freedom of the press. The fact that Manning was found guilty of so many violations of the Espionage Act and computer crimes means that the government has shown it can use a wide arsenal of legal tools to go after both journalists and their sources.
Recall the leaked FBI affidavit from a few months ago in the case of Stephen Kim (a former state department official who was indicted on espionage charges for leaking information on North Korea’s nuclear program to Fox News reporter James Rosen -the ed.), where the Department of Justice in a formal legal document asserted its position that journalists are unindicted co-conspirators and aider and abettors to the violations of the Espionage Act that the sources themselves directly violated.
In this, Julian Assange is no different from Fox News’ Jamie Rosen. The only difference between them is that Rosen is protected by the administration’s concern over public and media reaction to prosecuting a journalist from an established medium, whereas Assange has been the subject of a long, successful campaign to tar him as something fundamentally different.
As far as the risk of prosecution is concerned, it is politics, not law, which separates WikiLeaks from the established media. As for Snowden, I think that the verdict means that he is under severe threat of spending much of the rest of his natural life in prison, because civilian courts, where he is likely to be tried, tend to use cumulative sentencing more than military courts do.
What’s your take on the reaction to the verdict in the US and around the world?
I would say most of the coverage I have read has tended to understand the mixed quality of the verdict.
You testified in the case. Have you had a chance to communicate with Bradley Manning? What was his reaction to the ruling?
No, I haven’t communicated with him. I can’t say anything to his reaction.