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Manning verdict not a win for journalism

August 2, 2013

By Susan McGregor

Despite Tuesday’s acquittal of Pfc. Bradley Manning on the charge of “aiding the enemy” by sharing hundreds of thousands of military documents with Wikileaks, Col. Denise R. Lind’s verdict on that count does not reject the notion that whistleblowers who share information with journalistic outlets—or anywhere online—could still face that charge in the future.

In declining to dismiss the charge altogether, Lind effectively upheld the notion that there may be circumstances in which publishing information to the Web constitutes treason, a charge that was never levied against leakers in the pre-Internet era. Writing in the Guardian, Harvard law professor Yochai Benkler described Lind’s decision as a “chilling precedent”:

Leaking classified documents to the these [sic] newspapers can by itself be legally sufficient to constitute the offense of “aiding the enemy”, if the leaker was sophisticated enough about intelligence and how the enemy uses the internet.

In fact, the discussion during the mid-July hearing to dismiss Manning’s “aiding the enemy” charge confirmed that the nature of the publishing institution is irrelevant, as indicated in an exchange between Lind and prosecutor Captain Angel Overgaard, as recounted in the Guardian:

Does it make any difference if it’s Wikileaks or any other news organization—The New York Times, Washington Post, or Wall Street Journal?

The prosecution answered: “No, it would not. It would not potentially make a difference.”

The implication is that information that makes it to the Internet—no matter who ultimately hits “publish”—could open the source to prosecution for treason. As Ben Winzer, director of the ACLU’s Speech, Privacy and Technology Project, notes, “The key to the government’s case is this simple claim: that posting intelligence information to the internet aids Al Qaeda because Al Qaeda has access to the internet.”

Ultimately, Manning’s acquittal on the “aiding the enemy” charge indicates that Lind found the prosecution failed to demonstrate that Manning had “actual knowledge” that publishing the trove of documents online would constitute providing them to “the enemy.” Lind had made clear in an earlier ruling that such evidence would be required for to obtain a conviction.

But as the Electronic Frontier Foundation’s Cindy Cohn points out, awareness that enemy groups use the Internet to gather information about the United States is hardly “something that only someone with specialized ‘Internet training’ would know.” Yet Lind’s decision is now another example of actions involving digital technology beingviewed differently under the law than their analog equivalents.

Without access to the exact reasoning behind the decision, it’s impossible to know what level of Internet-savvy might be considered sufficient to obtain a conviction on such a count. Until then, it’s possible that any would-be military whistleblower with a simple appreciation for the publicness of the Internet could be similarly charged—and may therefore keep silent. Published in Columbia Journalism Review.

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