Following today's verdict in the Bradley Manning case, Ace wrote:
Bradley Manning Acquitted of Aiding the Enemy, the Most Serious Charge Outstanding Against Him
Yet-- this is a very strange message for a military court to send. I suppose one message is "They won't just convict you based on national security grounds, but will closely examine the evidence to determine if you are really guilty of what you are charged with."
On the other hand -- "They won't just convict you national security grounds." You can download millions of documents to a man known to be venomously anti-American and yet even the US military courts will sort of give you a pass on it, if you say your heart was "in the right place."
With all due respect, it's not really a strange decision. Whether most like it or not, wikileaks is a journalistic enterprise and I will point out the relevant part of The New York Times v United States (Pentagon Papers case):
‘The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: ‘Congress shall make no law . . . abridging the freedom . . . of the press. . .’
BOTH THE HISTORY AND LANGUAGE OF THE FIRST AMENDMENT SUPPORT THE VIEW THAT THE PRESS MUST BE LEFT FREE TO PUBLISH NEWS, WHATEVER THE SOURCE, WITHOUT CENSORSHIP, INJUNCTIONS, OR PRIOR RESTRAINTS…IN THE FIRST AMENDMENT, THE FOUNDING FATHERS GAVE THE FREE PRESS THE PROTECTION IT MUST HAVE TO FULFILL ITS ESSENTIAL ROLE IN OUR DEMOCRACY. THE PRESS WAS TO SERVE THE GOVERNED, NOT THE GOVERNORS.
The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. THE PRESS WAS PROTECTED SO THAT IT COULD BARE THE SECRETS OF GOVERNMENT AND INFORM THE PEOPLE. ONLY A FREE AND UNRESTRAINED PRESS CAN EFFECTIVELY EXPOSE DECEPTION IN GOVERNMENT. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people.
In other words, we are asked to hold that, despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of ‘national security.’ The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to ‘make’ a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.
THE FOUNDING FATHERS GAVE THE FREE PRESS THE PROTECTION IT MUST HAVE [TO] BARE THE SECRETS OF GOVERNMENT AND INFORM THE PEOPLE.’
– Justice Hugo Black, writing for the majority, in New York Times Co. v United States, 403 U.S. 713 (1971)
It can be argued that the release of the Pentagon Papers certainly aided the Viet Cong with their propaganda efforts, at the very least, but the American people also learned the extent to which their government was lying to them. Should Americans have been kept in the dark?
As Justice Potter Stewart wrote in his concurrence in New York Times:
‘In absence of governmental checks and balances, the only effective restraint upon executive policy and power may lie in an enlightened citizenry - in an informed and critical public opinion which alone can here protect the values of democratic government.’
I'm NO fan of either Assange or wikileaks, but I don't want the government deciding who is and who is not entitled to First Amendment protections. The Founders certainly did not limit their opinions of who was a journalist or what constituted a 'journalistic activity' to big newspapers and their employees. The guy printing pamphlets was considered to have as much of a right to 'freedom of a press' as the biggest newspaper in the country.
Would we have wanted any other way? Remember, Thomas Paine was just a pamphleteer.
In Lovell v City of Griffin, 303 U.S. 444 (1938), Chief Justice Charles Evans Hughes, writing for the majority, defined the 'press' as 'every sort of publication which affords a vehicle of information and opinion.'
I will point out that we've had people like Eric Holder, Pete King, and Lindsey Graham 'wonder' recently who was entitled to First Amendment protections. Both King and Graham aren't sure that a bloggers like Ace should have constitutional protections.
Do I want the same government, who claimed that James Rosen was a probable violator of the Espionage Act of 1918 and flight risk, to decide whether I or other bloggers should be protected?
No. Do you? If so, you shouldn't. It's not as though the Federal government has failed to move against the 'press' and the 'people' in the past for 'offences.' In 1798, the Federalist-led government passed the Alien and Sedition Acts. The Sedition Act part made it a crime to criticise Congress and the President (The Vice-President was excepted, which is of particular interest considering the fact that the VP at the time was Thomas Jefferson, who was a loud opponent of the Acts and pardoned those, who had been convicted under them, after he won the Presidency in 1800.) It applied to the press, too.
This is the bottom line: Wikileaks was not a named 'enemy' of the United States when this happened; thus, Bradley Manning could not have aided an enemy. If the government wants to start labeling groups that it argues are engaged in other forms of 'terrorism or espionage,' then let it make its case to the American people and the courts.
As Gabriel Schoenfeld, author of Necessary Secrets: National Security, the Media, and the Rule of Law, wrote over at National Review:
As a member of our armed forces, Bradley Manning assumed a special responsibility to protect classified information, a responsibility he abdicated when he turned over a vast quantity of classified government documents to Wikileaks. His conviction on charges under the Espionage Act is yet another vindication of the rule of law in the contentious arena of national-security leaks. Earlier this year, Manning pleaded guilty to a series of lesser charges that could bring him 20 years in prison. The prosecution pressed ahead with the remaining counts, including the controversial one of “aiding the enemy” on which Manning was today acquitted.
The government’s theory on this last count, that the enemy — al-Qaeda — was aided because, like the rest of the world, it was able to read the classified documents Manning provided to Wikileaks, seemed to me be an unwise stretch of the law with a chain of undesirable implications.
For better and for worse, classified information leaks out of Washington’s national-security machinery on a daily basis. Our newspapers are full of stories based upon leaks and much of what we know about American foreign policy is the result of these leaks. While some leaks — of necessary secrets — can endanger the country, many other leaks — of unnecessary secrets, of which our government has a wealth — have few adverse consequences at all. If routine leaking is turned into a capital crime — which is the direction suggested by the aiding the enemy charge — our understanding of what our government is doing around the world would have suffered a significant blow. The judge’s decision today strikes me as an appropriate balance that, if matched by an appropriate sentence, will meet the twin demands of deterrence and justice.