On June 3, when the long-anticipated court-martial of Army Pfc. Bradley Manning begins in Fort Meade, Md., journalists will crowd the courtroom. But at some point the press and the public likely will be ordered out while confidential testimony–including from State Department officials and active military personnel– is heard. If the pre-trial proceedings are any indication, the press will also be denied access to written submissions deemed sensitive.
Precisely how much of the Manning trial will be hidden from public view will be decided by the judge in the case, Col. Denise Lind, and is the subject of legal wrangling, including Freedom of Information requests and an amicus brief protesting restrictions and signed by more than 30 media organizations. While the case is undoubtedly sensitive, the U.S. government has a credibility problem when it comes to classification. For example, after WikiLeaks released hundreds of thousands of U.S. diplomatic cables, thus making them available to anyone around the world with an Internet connection, the U.S. government took the absurd view that the documents remained classified and warned unauthorized government employees not to access them, even on home computers.
The possibility that portions of the Manning trial will take place in secret is all the more troubling because the trial will touch on issues of grave concern to U.S. journalists–in particular, whether the act of releasing classified documents to the public violates the 1917 Espionage Act and is tantamount to “aiding the enemy,” a crime under the Uniform Code of Military Justice. The Espionage Act, under which civilians but not (so far) journalists have been prosecuted, makes it a crime to “communicate” information, but the word “publish” was deliberately omitted from the statute by Congress, according to the legislative history.
The novel view of the military prosecutors is that when Manning sent classified material to WikiLeaks using that site’s secure dropbox, he knew that Al-Qaeda would eventually see the information. The fact that some of the material published by WikiLeaks was found on Osama Bin Laden’s personal laptop is expected to be a key argument. Manning pleaded guilty in February to leaking classified information, a crime for which he could be sentenced to up to 20 years in prison. But prosecutors are continuing to pursue more serious charges, including violations of the Espionage Act. They have said that they are seeking life imprisonment rather than the death penalty.
As Floyd Abrams and Yochai Benkler noted in a March 13 op-ed in The New York Times, a successful prosecution in the Manning case could deter future journalistic sources, particularly those in the military who, like Manning, are subject to prosecution under the Uniform Code of Military Justice. The military prosecutors seek to convict Manning for “knowingly giv[ing] intelligence to the enemy” solely on the ground that he disregarded the risk that an enemy might access the same information widely available to the public.
In his statement to the court in February, Manning said that he initially sought to publicize classified after-battle reports from Afghanistan and Iraq through the traditional media, and contacted both The Washington Post and The New York Times. (This claim was viewed with skepticism by former New York Times Executive Editor Bill Keller.) By Manning’s account, it was only when he did not hear back from either paper that he sent the documents to WikiLeaks. While traditional journalists and WikiLleaks treat classified material very differently, they are both in the business of making information available to the public. The prosecutor in the Manning case acknowledged to the judge that he would be seeking the same charges if Manning had leaked the information to The New York Times. In other words, under the prosecution’s legal theory, a source that provides classified information to the media could, potentially, face the death penalty. That would be the ultimate chilling effect.
There is another reason journalists should be concerned about the Manning prosecution, according to CPJ board member James Goodale, author of a new book, Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles. Goodale’s view is that a Manning conviction would make it easier for the U.S Department of Justice to prosecute WikiLeaks founder Julian Assange in a civilian court under the Espionage Act. If Manning has already been found guilty of violating the act, then all the government has to do is prove that Assange conspired with Manning. In December 2010, CPJ wrote to President Barack Obama and Attorney General Eric Holder opposing any effort to prosecute Assange for conspiracy under the Espionage Act because a successful prosecution of Assange would effectively open the door for the potential prosecution of journalists in the United States, and around the world, for doing their job in gathering information about the U.S. government which may be classified.
With this much at stake, journalists and the public should be paying close attention to the Manning trial. The U.S. government has an obligation to ensure that excessive secrecy and over-classification do not impede media coverage and full public airing of the vital issues being decided. In considering government requests to close portions of the trial, Col. Lind should take into account the overwhelming global public interest in ensuring that Manning’s trial is open and the proceedings transparent.