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View Diary: Govt Must Prove Manning KNEW He Was Providing Info to the Enemy (92 comments)

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  •  Well, Woodward and other reporters are not (2+ / 0-)
    Recommended by:
    Don midwest, elwior

    the ones who took classified material they had received via their security clearances and gave it to a third party.  There's a difference here--the media releases stuff and is protected by the 1st Amendment (see the Pentagon Papers case, NY Times v. US).

    However, the person giving the media the info is another story.  In fact, criminal charges were filed against Ellsburg for releasing the Pentagon Papers to the NY Times, but the government totally botched the case.

    A good summary of the penalties for releasing classified info can be found here:
    http://www.fas.org/...

    Further muddying the picture here is that Manning was a member of the US military at the time AND it might be a stretch to call Assange a member of the "media".  

    As a member of the military, Manning not only breached the classified disclosure laws, but can be court marshaled on a number of other issues (conduct, use of government resources, etc.).  

    I don't want to judge his actions, but can say that when he did what he did, he knew there would be severe penalties.    

    Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

    by dizzydean on Thu Jan 17, 2013 at 08:33:16 AM PST

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    •  I'm not saying Manning should escape punishment (5+ / 0-)

      I'm saying he shouldn't be prosecuted under the Espionage act.  I don't believe he had the requisite intent.  

      Its kind of a shame Manning has taken the limelight because I think the prosecution of John Kiriakou is much, much worse.  At the end of the day though, its all tied to the federal governments efforts to punish and scare anyone who may reveal what the government is really doing.  This isn't about providing aid to the enemy, its about people not embarrassing the U.S. gov't by revealing secrets.  

      I don't believe Manning should face 30 years in prison and possibly death (though that seems doubtful) for his crimes.  

      From your link -

      Generally, federal law prescribes a prison sentence of no more than a year and/or a $1,000 fine
      for officers and employees of the federal government who knowingly remove classified material
      without the authority to do so and with the intention of keeping that material at an unauthorized
      location.53 Stiffer penalties—fines of up to $10,000 and imprisonment for up to 10 years—attach
      when a federal employee transmits classified information to anyone that the employee has reason
      to believe is an agent of a foreign government.54 A fine and a 10-year prison term also await
      anyone, government employee or not, who publishes, makes available to an unauthorized person,
      or otherwise uses to the United States’ detriment classified information regarding the codes,
      cryptography, and communications intelligence utilized by the United States or a foreign
      government.55 Finally, the disclosure of classified information that discloses any information
      identifying a covert agent, when done intentionally by a person with authorized access to such
      identifying information, is punishable by imprisonment for up to 15 years.56 A similar disclosure
      by one who learns the identity of a covert agent as a result of having authorized access to
      classified information is punishable by not more than ten years’ imprisonment. Under the same
      provision, a person who undertakes a “pattern of activities intended to identify and expose covert
      agents” with reason to believe such activities would impair U.S. foreign intelligence activities,
      and who then discloses the identities uncovered as a result is subject to three years’ imprisonment,
      whether or not violator has access to classified information.57
      There is a big difference between 10 years in prison and a possible death sentence.  
      •  There is...I just read this UPI report (1+ / 0-)
        Recommended by:
        elwior

        from a few days ago:
        http://www.upi.com/...

        which indicates that prosecutors are not seeking the death penalty.  Also, Manning is up on 22 charges, the only one of which might involve the death penalty is the violation of the UCMJ 104 "aiding the enemy".  The UCMJ defines enemy as"

        Enemy. “Enemy” includes organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. “Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.
        That seems to be a stretch in this case, but perhaps the latter clauses on the "citizens of one belligerent" might apply.  

        Still, I think the most likely outcome, given the past history of these sorts of cases is a very significant imprisonment term--at least 25 years, given the amount of material released (see the Lonetree honey-trap case).

        That's not making a moral judgment of whether what he did was right or not.  Also, the DoD is not going to want to set an example of somebody doing something like this and not getting thoroughly punished, so I doubt the admin will step in either.

        Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

        by dizzydean on Thu Jan 17, 2013 at 09:36:59 AM PST

        [ Parent ]

        •  The jury in a court martial is free to impose (3+ / 0-)
          Recommended by:
          burlydee, elwior, aliasalias

          the death penalty for any crime that carries the death penalty as a possible punishment, whether or not the prosecution is seeking the death penalty.

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Thu Jan 17, 2013 at 10:56:51 AM PST

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          •  Given that the opposite usually happens (0+ / 0-)

            I would not put too much behind that.  Of the 16 cases since 1984 that have led to the death penalty under UCMJ, 10 have been commuted.  The last execution by the military was in 1961.  There are only 6 individuals on military death row, all for killing Americans.

            See http://www.theolympian.com/...

            Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

            by dizzydean on Thu Jan 17, 2013 at 12:28:16 PM PST

            [ Parent ]

            •  You're assuming a military jury made up of (1+ / 0-)
              Recommended by:
              aliasalias

              officers (and maybe one very senior enlisted person) will not react irrationally to the inflammatory charges being made against Manning.

              The influence of the [executive] has increased, is increasing, and ought to be diminished.

              by lysias on Thu Jan 17, 2013 at 01:38:55 PM PST

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              •  Maybe, but then, if there is ever a group (0+ / 0-)

                that respects precedent, it is military courts.  Sorry, but I think that the fear over Manning getting the death penalty is a red herring intended to stir up sentiment.

                Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

                by dizzydean on Thu Jan 17, 2013 at 01:47:24 PM PST

                [ Parent ]

                •  The fear that Manning feels over this possibility (0+ / 0-)

                  is no red herring.

                  The influence of the [executive] has increased, is increasing, and ought to be diminished.

                  by lysias on Thu Jan 17, 2013 at 01:59:40 PM PST

                  [ Parent ]

                  •  Bleah. Projection. (0+ / 0-)

                    Has there been any documentation of what he "feels"?  Granted, his pre-trial treatment has sucked and I can understand if he has been affected by that, but, please, let's not be silly.  

                    If you give a shit about peoples' feelings, then look at our prison system in general.  That 6x8 cell Manning had with a 23-1 lockdown is common practice in our max security prisons, but, oh yeah, they'll put another person in there with you.

                    Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

                    by dizzydean on Thu Jan 17, 2013 at 02:06:43 PM PST

                    [ Parent ]

    •  But that's not the point of the law (3+ / 0-)
      Recommended by:
      burlydee, elwior, aliasalias
      Well, Woodward and other reporters are not the ones who took classified material they had received via their security clearances and gave it to a third party.

      The law applies to "any person" (18 U.S.C. §793) who, for instance, possess

      copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense
      ". . . connected with the national defense."  
      This type of vague langauge is among the reasons why the Espionage Act is such an innapropriate vehicle for prosecuting anyone.  The Act is riddled with arbitrary and vague language throught its sections. These laws apply to Bob Woodward as much as they do Bradley Mannig or anyone who reads Dailykos.
      .
      There's a difference here--the media releases stuff and is protected by the 1st Amendment (see the Pentagon Papers case, NY Times v. US)
      The New York Times Case did NOT apply the first amendment to the Espionage Act, rather -IIRC- the issue was whether the government could BLOCK the publication of the papers. The issue was a restraining order, not a criminal prosecution.

      The NYT was never charged with, for example, possession of "material related with the national defense" and the court even noted that the Government could chose to prosecute the paper under the Espionage Act; however, the government could not restrain the publication of information in its possession through a civil injunction, which is a separate issue.  
      I do not believe any court has ever held that the first amendment is an affirmative defense to the Espionage Act.

      sláinte,
      cl
      -- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

      by Caoimhin Laochdha on Thu Jan 17, 2013 at 09:16:12 AM PST

      [ Parent ]

      •  Read William O. Douglas's concurring opinion (1+ / 0-)
        Recommended by:
        elwior

        http://supreme.justia.com/...

         While this was a civil case, Douglas makes it clear that the Espionage Act, which was invoked by the government, should not have applied on 1st Amendment grounds.

        Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

        by dizzydean on Thu Jan 17, 2013 at 09:57:32 AM PST

        [ Parent ]

      •  Pentagon Papers was a HISTORY, not active (0+ / 0-)

        operational military and diplomatic documents, as were the docs leaked by Manning.

        The Pentagon Papers was an internal study of US involvement in Southeast Asia. What made it a bombshell was that it documented that a series of administrations knew that their policies were failing, but they just kept throwing more money and American lives into the hole.

        This is a totally different situation. Ellsberg knew what he was leaking, and it wasn't current tactically sensitive information. Manning DIDN'T know what he was leaking, and it WAS.

        Have a flagon and discuss the news of the day at the sign of the Green Dragon, or hear me roar on Twitter @MarkGreenFuture

        by Dracowyrm on Thu Jan 17, 2013 at 10:50:28 AM PST

        [ Parent ]

        •  What current tactically sensitive information (0+ / 0-)

          did Manning reveal?

          (When I was in military intelligence, it was constantly emphasized to us how important it was that timely information be provided as quickly as possible to the commanders, that military information quickly loses all tactical value.)

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Thu Jan 17, 2013 at 01:56:33 PM PST

          [ Parent ]

    •  Manning has not been "found" to have done anything (5+ / 0-)

      When you say

      Manning not only breached the classified disclosure laws
      , you, like Obama, are pronouncing him guilty before trial, reversing the usual presumption of innocence to which every citizen in this country is entitled.

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Thu Jan 17, 2013 at 09:25:01 AM PST

      [ Parent ]

      •  He's "accepted responsibility" (2+ / 0-)
        Recommended by:
        Dracowyrm, elwior

        In other words, he has admitted to the action.  Now what the action will entail in terms of what he is found guilty of or sentenced to is another story.

        Given the info we already know, I think my statement is fine.  Manning did admit to releasing the material, but is not pleading guilty.

        Bradley Manning’s lawyer David Coombs has clarified in a statement that Manning “is not pleading guilty to the specifications as charged by the Government.  Rather, PFC Manning is attempting to accept responsibility for offenses that are encapsulated within, or are a subset of, the charged offenses.”
        He may not be found guilty (and I hope he is not) of the Espionage Act charges, but it appears as if he clearly violated the UCMJ on a number of issues and will be punished for that.

        Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

        by dizzydean on Thu Jan 17, 2013 at 09:45:59 AM PST

        [ Parent ]

        •  For the crimes that it's clear he committed (1+ / 0-)
          Recommended by:
          elwior

          under the UCMJ, the punishment would almost certainly be less than the time that he has already served.

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Thu Jan 17, 2013 at 10:54:23 AM PST

          [ Parent ]

          •  I disagree on the time served (0+ / 0-)

            Bear in mind he disclosed hundreds of thousands of pages of docs.

            Here are a fewpossible comparisons:

            United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995).  The accused was convicted by a military judge of attempted conspiracy to commit espionage, attempted violation of a general order, disobedience of a general order (4 specifications), attempted espionage (2 specifications), wrongful use of marijuana, wrongful possession of marijuana, adultery, as well as violating federal laws relating to defense information (4 specifications)   and to mailing prohibited matters, in violation of Articles 80, 92, 106a, 112a, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 892, 906a, 912a, and 934, respectively. The convening authority approved the sentence of a dishonorable discharge, 15 years’ confinement, total forfeitures, and reduction to the lowest enlisted grade.
            United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992).  Lonetree was a member of the Marine Security Guard Detachment at the U.S. Embassy in Moscow.  He met Soviet agent Violetta Seina in a subway station. He began a romantic liaison with Seina and eventually passed confidential information to a Soviet agent named Yefimov (a.k.a. “Uncle Sasha”). Ignorant of his activities, the Marine Corps transferred Lonetree to guard duty at the U.S. Embassy in Vienna, where he continued his contact with the Soviets through an agent named Lyssov (a.k.a. “George”). His double life came to an end on December 14, 1986, when, in the first of a series of meetings with two Vienna-station U.S. intelligence agents known as “Big John” and “Little John” (“the Johns”), Lonetree disclosed his involvement with the Soviet agents.  Appellant was court-martialed and found guilty of conspiracy to commit espionage, disobeying Navy security regulations, disclosing the identities of covert agents, willfully communicating information in violation of the Federal Espionage Act, and committing espionage, and sentenced to 25 years’ confinement.
            United States v. Kaufmann,14 U.S.C.M.A. 28, 34 C.M.R. 63 (1963).  An Air Force O-3 case.  A captain of the Air Force stands convicted of having conspired with secret service agents of the so-called East German Democratic Republic to deliver to them national defense information relating to the United States, of agreeing to act as an agent of the East German Secret Service, and of violation of a general regulation by failing to report attempts by Russian and East German agents to induce him to reveal security information contrary to the best interests of the United States.  10 years imprisonment.

            Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

            by dizzydean on Thu Jan 17, 2013 at 12:05:36 PM PST

            [ Parent ]

            •  All those documents are classified no higher (1+ / 0-)
              Recommended by:
              aliasalias

              than Secret (and many are not classified at all).  Anybody who has dealt with classified material (as I did for many years in military intelligence) knows that anything whose revelation might do serious harm to the U.S. is classified Top Secret or higher.

              The influence of the [executive] has increased, is increasing, and ought to be diminished.

              by lysias on Thu Jan 17, 2013 at 01:41:38 PM PST

              [ Parent ]

              •  I've dealt with classified materials also (0+ / 0-)

                and, while there might not have been anything greater than "secret", the sheer amount of materials is the issue here.  Can you imagine the orgasm an East German or Soviet spy would have had over getting this much stuff?

                Expect a sentence like that in the Anzalone case.  Perhaps reduced on appeal.

                Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

                by dizzydean on Thu Jan 17, 2013 at 01:52:03 PM PST

                [ Parent ]

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