The Wall Street Journal has an article about Bradley Manning that is self-serving and dangerously wrong on the facts and law--including the assertion that he aided the enemy.
Trevor Timm of the Freedom of the Press Foundation has written an amazing article on the factual mistakes. I will talk about the mistakes of law.
The Wall Street Journal (WSJ) is correct on one thing: Manning is facing a charge that he
knowingly [gave] intelligence to the enemy, though indirect means.However, instead of dissecting the dangerous legal reasoning proffered to support this charge, journalist L. Gordon Crovitz just adds numerous factual and legal errors to the mix, among them that Manning didn't reveal crimes and WikiLeaks didn't vet the information it released.
I'm focusing on Crovitz's legal errors because I am a lawyer representing whistleblowers charged under the Espionage Act.
The key element of this espionage charge is intent: Did Pfc. Manning mean to give intelligence to the enemy?First, Crovitz's reference to "this espionage charge" refers incorrectly to his preceding paragraph about the "aiding the enemy" charge. Manning is charged with both, and they are two separate charges with different burdens of proof.
Second, the key element of the Espionage charge is whether Manning improperly retained or disclosed national defense information. Judge T.S. Ellis III, in his own words, grafted on the intent requirement in the AIPAC case in order to keep this vague and ambiguous statute constitutional.
Third, if Crovitz had been following the Manning proceedings, he would know that Judge Lind already ruled that the defense will not be allowed to discuss Manning's good-faith intent or motive at trial (sorry I can't post the decision because most transcripts, motions and rulings are not public).
Fourth, Crovitz mistakenly relies on Manning's plea to try to show something akin to actual malice (not an element), apparently not realizing that the plea served precisely the purpose of showing Manning's good intent--because such evidence will not be allowed at trial as per the above-referenced ruling.
Fifth, in Crovitz's singular interpretation of Manning's plea (even Manning critics found it to show good faith) he argues that
Manning describes himself as a whistleblower, but doesn't explain what he was blowing the whistle onevidencing his complete misunderstanding of whistleblower law. One becomes a whistleblower through operation of law, by disclosing information he or she reasonably believes evidences fraud, waste, abuse, and/or illegality. While Crovitz conclusively states that, "[t]he documents didn't disclose government wrongdoing," he is either deliberately omitting the "Collateral Murder" video, which shows clear war crimes, or he has not seen it. I cannot find a single article on the Internet that says the video didn't show numerous violations of law (even though none of the Apache helicopter crew has faced charges for mowing down innocent civilians as if they were playing Call of Duty.)
Sixth, Crovitz again states conclusively that
WikiLeaks posted unedited diplomatic and intelligence cables that identified by name Iraqis, Afghans and others who were helping the U.S. war effort.Timm already dissects the numerous factual inaccuracies with this sentence. Legally, however, it is important to note that the prosecution has argued, tellingly, that they don't have to show harm and have strenuously withheld the damages assessments.
Seventh, and perhaps most troubling, is Crovitz's statement that
[b]uilding a case that Pfc. Manning knowingly gave intelligence to the enemy seems open and shut.This conclusion risks setting a dangerous precedent because it essentially means that the New York Times could be held responsible if intelligence reported in its articles is found in the possession of an alleged terrorist.
Eighth, Crovitz attempts to establish a difference between WikiLeaks and journalists.
One reason federal prosecutors rarely charge news publishers under the espionage laws is that prosecutors understand that news organizations are different from spies. No one expects charges against the New York Times or any other news outlet that used the WikiLeaks documents.But the prosecution has already made it clear that it considers WikiLeaks and the New York Times to be factually the same, and that they would have charged Manning even if he had shared the information with the mainstream media. And considering that the government appears to have few reservations about prosecuting whistleblowers under laws intended to go after spies, it seems like only a small trip down the slippery slope before news organizations could face a similar fate.