Two major precedents – one encouraging, the other troubling – emerge from today’s conviction of Bradley Manning on espionage charges, but not on charges of aiding the enemy. One is about the definition of journalism, and all the attendant protections that are supposed to come with that profession in a democracy. The other is about who America’s government defines as patriotic heroes and who it deems traitorous villains.
The first precedent comes from the verdict’s rejection of the charge that Manning “aided the enemy” when he released the now-famous tranche of documents about the U.S. national security state.
Though failing to prove Manning’s disclosures actually harmed U.S. national security, prosecutors based the “aiding the enemy” allegation on the assumption that while well-known, pro-establishment media outlets should be considered legitimate government-approved news organizations, lesser known anti-establishment media outlets can be deemed terrorist collaborators by virtue of their political leanings, newsgathering methods and publication protocols. Yes, as Manning’s prosecutor said during the court proceedings, disclosing information to “established journalistic enterprises like The New York Times and The Washington Post would be a crime” – but he said that wouldn’t necessarily merit the “aiding the enemy” charge. What would warrant such a charge, the prosecution asserted, was the fact that Manning dared to disclose information to a decidedly anti-establishment news outlet, Wikileaks. This, even though it is far from clear that the documents Manning disclosed actually harmed U.S. national security.
“(Manning) identified WikiLeaks as the first intelligence agency for the general public,” the prosecutor said, as if such a distinction between a “news organization” and an “intelligence agency for the general public” should be simply assumed – and assumed to be incriminating for any outlet fitting the latter definition.
By originally endorsing this as a legitimate line of argument when allowing the “aiding the enemy” charge to move forward, the judge created the possibility – if not likelihood – that we will see such charges in the future. However, the good news is that the final verdict could help create a precedentagainst a dangerous double standard. Yes, the verdict suggests the government cannot legally preference and protect one kind of speech and legally punish and persecute another kind of speechbased on what institution happens to be speaking. The precedent, in other words, rejects (at least for now) the idea that the government can protect legacy media organizations from “aiding the enemy” charges while at the same time subjecting newer non-traditional (and more adversarial) media organizations to such charges.
Whether or not you happen to like or hate Wikileaks in specific, the general implications for journalism should be encouraging. At the very moment when the old media ecosystem is being upended by technological and economic forces, a court has now denied the U.S. government’s attempt to use its ultimate power – aka the death sentence that can come with an “aiding the enemy” prosecution – to legally preference legacy media organizations, who just so happen to often be the most reliable organs of state-sponsored propaganda. This is a welcome development that rejects the ugly logic of recent legislative efforts by the Obama administration to narrow the legal definition of journalism to exclude bloggers, freelancers and independent journalists – ie the class of journalists that are often the most adversarial toward the government.
To appreciate how significant this ruling is, consider if the opposite had happened. The message would have been that if reporting from a newly created media organization or an independent journalist is deemed too adversarial, regardless of whether or not the journalism is accurate, the government is empowered to prosecute the organization and journalist as if they are an al Qaeda collaborator.
That’s a message that wouldn’t have been reserved for new media mavericks, by the way. As the Obama administration is now using a separate court case to try to criminalize journalists who protect their government sources, it would have further intensified fear among the honest reporters working in the legacy media. Indeed, as the New York Times’ Charlie Savage told PBS, the case “has a lot of implications for investigative journalism, because news organizations, traditional news organizations like mine, The New York Times, also take information and publish it on the Internet, and so if giving information to another entity for publication online is aiding the enemy, it’s not clear what the line is between The New York Times and WikiLeaks.”
Thanks to the verdict on the “aiding the enemy” charge, the court drew no line and effectively upheld the constitutional precept that journalism organizations are entitled to equal protection under the law.
Of course, whistleblowers – and, by extension, the investigative reporters who break their stories – were once touted as heroes worthy of protection, most famously by Barack Obama. But that gets to the second, more troubling precedent in the Manning verdict – the one whereby the conviction on espionage charges fully redefines the labels of hero and villain, patriot and traitor.
Let’s remember: Manning may have committed a crime in disclosing classified information, but the information he revealed documented at least as serious – if not more serious – crimes by the U.S. government. We’re talking about evidence that the government repeatedly lied to the American public about its ongoing military operations. We’re also talking about stuff like war crimes that resulted in the deaths of many civilians – the latter crimes which Manning actually had a legal obligation to report.
But that obligation to blow the whistle has been ignored because what Manning disclosed was embarrassing and politically problematic for the government and the military. And so rather than thanking Manning for being a patriotic hero by alerting those institutions to the lawbreaking in their midst, those institutions turned their legal and political guns on him, vilifying him as a villainous traitor.
Now, a court has sanctioned such efforts, effectively declaring that to expose U.S. war crimes and criminals is not to be lauded as a hero. It is, instead, to be deemed a criminal first requiring outright torture and now, most likely, a draconian jail sentence. Meanwhile, those who committed the violent, heinous and otherwise abhorrent atrocities that Manning exposed face “no disciplinary action” at all.
Such selective prosecutorial double standards illustrate how state-sanctioned political persecution operates on a day-to-day basis in 21st century America.
We’ve seen those double standards in the government simultaneously charging Edward Snowden with crimes and yet – to date – not charging Director of National Intelligence James Clapper and NSA directorKeith Alexander with the crime of perjury. We’ve seen them in the government’s at once prosecuting NSA whistleblower Thomas Drake but not prosecuting now-CIA director John Brennan for leaking what Reuters' Jack Shafer notes was “sensitive, classified intelligence” about a terrorist plot. We’ve seen them in the Obama administration launching a new program that threatens criminal charges against federal workers who do not report suspicious behavior among colleagues – all while that same administration hasn’t filed charges against officials who leaked Obama-glorifying classified information about the president’s so-called “kill list.”
Now we see the same double standards in a government that prosecutes and convicts Manning but doesn’t discipline those who committed the crimes he exposed. It is, indeed, a precedent endorsing punishment on the basis of political considerations and thus endorsing the idea that political threats to the government (as distinct from genuine national security threats) should be seen as villains. And because of today’s verdict, it is a precedent no longer championed primarily by executive branch decisions, but now ratified by a military court.
The result, thankfully, may not (yet) be the “end of national security journalism in the United States,” as WikiLeaks’ Julian Assange predicted. But because of the decision on the other charges separate from “aiding the enemy,” there will almost certainly be even fewer people like Manning willing to blow the whistle on the government’s systemic crimes – just as the government wants it.