Bradley Manning trial courtroom. Illustration by C. Stoeckley.

Closing arguments are set to begin in the trial of Pfc. Bradley Manning, the soldier who remains charged by the United States military with “aiding the enemy” by “knowingly” giving “intelligence to the enemy, through indirect means” after releasing US government information revealing the true nature of US wars in Afghanistan and Iraq to WikiLeaks.

Manning’s defense pushed for the military judge, Army Col. Denise Lind, to acquit Manning of the charge, but she found “some evidence” had been presented by the government that he had “aided the enemy” by giving intelligence to enemy groups, such as al Qaeda.

Previously, his defense had pushed for the charge to be dismissed. They had argued the charge was “substantially overbroad,” it should be “void for vagueness,” and prosecutors had failed to state an offense in the charge.

The defense had also sought to convince the judge that the prosecutors should have to prove intent, but the judge accepted the charge without an intent requirement. She decided all the prosecutors had to show is that Manning had knowledge his disclosures would “aid the enemy.”

David Coombs, Manning’s civilian defense attorney, said on July 15 that the government has “taken a very, very unique position” on this charge. “No case has ever been prosecuted under this type of theory, that an individual by the nature of giving information to a journalistic organization would then be subject to a 104 offense [aiding the enemy].”

“To avoid the slippery slope of basically punishing people for getting information out to the press to basically put a, I guess, a hammer down on any whistleblower or anybody who wants to put information out,” there should be an “intent requirement.” So, if your intent was to use and organization to indirectly get it to the enemy,” that could make you guilty of “aiding the enemy.”

Coombs also stated, “In this instance what the government is advancing here today, at least is extremely bad precedent, if what happens is you can give information to who you think is a journalistic organization that would publish it, and by the fact that you should have known that the enemy might eventually get it, you can be punished by 104 [aiding the enemy].”

A review of prior cases confirms what the defense has argued—that the way this charge has been brought against Manning is without precedent. It also is an “any person” offense.

The judge asked during a pretrial hearing on February 27, “Going back to constitutional questions – if someone wants to go interview someone from al Qaeda, they are potentially violating the statute with the first email, ‘Are you available next week?’” Coombs answered, “If the person was subject to the US Military Code of Justice.” The judge reminded him it is an “any person” offense. He did not really have an answer for her. With a nervous smile, he seemed to acknowledge there was wide latitude for the government to bring the charge and realized a journalist could be committing an offense, but he said those were not the facts of the case. Manning was not a journalist seeking to arrange an interview with a member of Al Qaeda for a news story.

All of which suggests that the broad implications, if Manning is convicted of “aiding the enemy,” will be that the military now has a greater ability to control information because military officers will now know leaking could get them charged with “aiding the enemy.” It will also further embolden the Obama Administration, particularly the Justice Department, which has adopted a hawkish policy of pursuing leakers and/or whistleblowers.

For historical perspective, Cpt. Jabez W. Loane wrote a thesis on the charges of treason and aiding the enemy for the Judge Advocate General’s School of the US Army in Charlottesville, Virginia, in October 1965. The thesis has been cited by military prosecutors and argues:

A citizen may intellectually, emotionally and spiritually sympathize with the enemy. He may harbor disloyal thoughts, But so long as he fails to engage in some sort of conduct designed to give the enemy aid and comfort, the crime of treason is not complete. Conversely a citizen may do an act which gives the enemy aid and comfort, but if there is no adherence to the enemy’s cause there is no treason. By doing the act he may appear outwardly a traitor but he is not legally a traitor. Nor does it appear necessary that the enemy wants or needs the proffered assistance. The mere fact that it is offered or rendered with the requisite intent will make the crime complete.

Loane also highlighted how it was “difficult to gauge” the “usefulness” of charging military members with “aiding the enemy”:

Records of military courts are woefully inadequate to permit research on the extent of its historical application. It is thus impossible to compile any statistics concerning the number of individuals who have been tried and convicted by military courts prior to the enactment of the Uniform Code. Only two cases involving World War II prosecutions in violation of Article of War 81 ever reached the Board of Review level and both involved offenses committed within the United States. Following the Korean War the offense achieved some vitality as a vehicle for bringing prisoner of war collaborators to trial. It is reported that ten of these individuals were charged under Article 104 and eight convicted. But its comparative lack of use in no way imports obsolescence. In an age where increased psychological and sophisticated pressures may mold the minds of some to ignore their obligations of loyalty to their country, a military law of treason continues to be necessary to provide effective deterrent and adequate punishment.

In effort to further demonstrate, the unprecedented nature of what the Army did by charging Manning with “aiding the enemy” I have put together a collection of previous cases.

What anyone reviewing these will notice is that they all tend to involve physical contact with the enemy, such as in cases of prisoners of war. It typically involves clear intent, where the person charged was accused of intending to communicate or give intelligence to the enemy.

In only one case is the communication given to a third party and then, as prosecutors argue, made available to the enemy. That case is a Civil War-era case. And, another case, which the prosecutors have cited,  involves incidental communication and it is a byproduct of the charged crime.

One may also read some of these cases and ask, “How is this similar to the Bradley Manning case?” A few definitely are not, but they have either been mentioned in the course of the court martial or provide context for the kind of crimes that have historically been charged as “aiding the enemy” offenses.

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Lt. Col. William H. Steele (2007) - Steele was charged with providing aid to the enemy between October 1, 2005 and October 31, 2006. He oversaw multiple compounds at Camp Cropper and gave an “unmonitored cellular phone to detainees.” He was also charged with “illegally storing and marking classified information; failure to obey an order; possession of pornographic videos; dereliction of duty regarding government funds; and conduct unbecoming of an officer” after he “fraternized” with the daughter of a detainee.

He was not convicted but was found guilty of “unauthorized possession of classified documents, behavior unbecoming an officer for an inappropriate relationship with an interpreter, and failing to obey an order.” He was given a two-year sentence and dismissed from the service. [Sources: New York TimesWashington Post]

The two-year sentence was lenient, considering that Steele could have received 10 years in jail on the classified documents charge. He will also be dismissed from the service.

—Spc. Ryan Anderson (2004) -  Anderson was a twenty-six year-old, who was accused by the Army of “wrongfully attempting to communicate and give intelligence to the al-Qaida terrorist network.”  He signed on to “extremist Internet chat rooms and attempted to get in touch with al Qaeda operatives to offer them information on US military capabilities and weaponry and was caught in an FBI sting operation. However, an unnamed law enforcement source told NBC News the information he tried to provide was the type “you could learn on the History Channel.” It also appeared, according to officials, that no information was actually ever transmitted to al Qaeda.

He was convicted of aiding the enemy and sentenced on September 3, 2004, to life in prison for trying to aid al Qaeda. The sentence included a possibility of parole. He attempted an insanity defense but it was unsuccessful. [Source: NBC NewsNew York Times]

—Sgt. Charles Robert Jenkins (2004) - Jenkins pled guilty to deserting the Army and aiding the enemy in 1965. He “wanted to avoid hazardous duty on the Korean peninsula and Vietnam. He was charged with aiding the enemy because he had taught North Koreans English in the 1980s. He was sixty-four years-old and the plea was part of a bargain for a shorter sentence. It was alleged he participated in propaganda broadcasts, which he denied. [Source: Associated Press]

—Ahmad I. al-Halabi (2003) - Al-Halabi was a twenty-four year-old senior airman in the US Air Force, who served as a translator. The Syrian native was accused of gathering top secret information on detainees in the Guantanamo Bay prison for Syria and charged with espionage and aiding the enemy. He allegedly stepped off a flight from Guantanamo in July 2004 with a computer that had classified information from the base and 180 messages from detainees. He had two handwritten notes from detainees he allegedly intended to hand over to someone traveling to Syria.

He pled guilty to “improperly handling sensitive materials, lying to investigators and illegally taking two photographs at the prison, as well as a charge of ‘conduct prejudicial to good order and discipline.’” The charges of aiding the enemy and espionage were withdrawn and the military eventually admitted that all but one of the documents he had taken were unclassified. [Source: San Francisco ChronicleAssociated Press]

Marine Lt. Col. Edison W. Miller & Navy Captain Walter E. Wilber (1973) - Though the charges were eventually dismissed, Miller and Wilber were both fighter pilots were prisoners in North Vietnam. The Defense Department charged them with “aiding the enemy” and mutiny after expressing antiwar views while in captivity. The charges were eventually dismissed and the Department would not publicly state exactly why, however, when they were filed, it was against advice from top Pentagon officials to “forgive and forget” all conduct by POWs while they were captured. [Source: Lodi News-Sentinel]

—Sgt. Jon M. Sweeney (1971) - Sweeney was a twenty-one year-old sergeant accused of leaving his company in the Quang Tri province “with intent to avoid hazardous duty, namely ground combat against the enemy” and remaining “so absent in desertion.” He also was charged with aiding the enemy when he was a prisoner of war from Feb 22, 1969 to August 24, 1970, by preparing statements that were “disloyal to the US” and making radio broadcasts “to the benefit and aid of the said enemies of the US.” A military judge acquitted him of all charges in August 1971 after hearing argument that he had been unable to physically keep up with his unit and did not intent to desert. [Source: United Press International]

Sgt. George E. Smith & Spc. Claude McClure (1965) – Smith and McClure were captured by the Viet Cong. They were freed at the Cambodian border on November 28, 1965, in honor of antiwar demonstrations in the United States. They were charged with aiding the enemy. Military authorities accused them of “preparing, furnishing and delivering to the Viet Cong certain documents, statements and writings inimical to the interest of the United States.”

Both were imprisoned for four months, charges were dropped and they were discharged from the military. When they were released, Smith told Ramparts magazine he was prohibited from talking about his imprisonment by the Viet Cong because they “had been warned by the Army that the entire ordeal had been classified a military secret and to discuss it would leave” them “open to charges of disclosing classified information.” The magazine noted, “Since the Viet Cong might reasonably be expected to be well informed about events when they held Smith and McClure prisoner, the only people this classification could possibly keep information from would be Americans.”  [Source: United Press International, St. Petersburg Times]

—MSGT. William H. Olson (1955) - Olson was forty-year-old Army career officer convicted of three of seven counts of “aiding the Chinese Reds and of swearing falsely that he did not collaborate with the enemy. At Fort Bragg, he was found guilty of “making speeches derogatory to the United States and writing pro-Communist articles for a camp newspaper.” [Source: United Press International]

—Cpl. Edward M. Dickenson (1954) - Dickenson was a twenty-year-old prisoner of war. He surrendered to North Korean forces in 1950. When he was held in captivity, he was believed to have led pro-communist discussion groups. He was accused of sending “recordings to his parents criticizing the United States” and writing “editorials to his hometown newspaper.” He was repatriated to the US to face a court martial in late April 1954 and was charged with aiding the enemy. He was convicted and sentenced to ten years in confinement. The Army eventually reduced his sentence to five years and he was released from Fort Leavenworth after three and a half years in prison. [Source: Defending America: Military Culture and the Cold War Court-Martial]

—Cpl. Claude J. Batchelor (1954) - Batchelor was an eighteen year-old prisoner of war, who was captured by Chinese forces in Korea. He was singled out as a leader of POWs. He led a group, where discussions of the principles of communism, wartime atrocities, and the injustices of the Rosenbergs’ trial, Jim Crow laws and the Ku Klux Klan allegedly occurred. He also allegedly sent a letter in October 1952 to his hometown newspaper, The Winkler County News, in Kermit, Texas, where described how he considered biological warfare and capitalism to be evil.

He was charged with “aiding the enemy,” “misconduct as a prisoner of war,” and violating a general code of military justice. He “chose a civilian attorney to defend him rather than accepting the two experienced judge advocates assigned to act as his defense counsel.” According to Elizabeth Lutes Hillman, this reflected “the doubt of many accused servicemembers about the true allegiances of military attorneys.” His legal team also “submitted pretrial discovery requests for thousands of classified government documents (most were denied on grounds that the documents were not relevant to the charges) and pursued a number of aggressive strategies at trial.”

Batchelor was convicted of these charges and “sentenced to a dishonorable discharge, total forfeiture of pay and twenty years confinement but spent four and a half years in prison, which was one year longer than what Lieutenant William Calley served for his role in the My Lai massacre. His case has been invoked multiple times by prosecutors against Pfc. Bradley Manning. [Source: Defending America: Military Culture and the Cold War Court-Martial]

—Joseph Ellison (1864) - Prosecutors in the Manning case have invoked this Civil War-era case. He was a citizen of Louisiana and was charged under the 56th and 57th Articles of War for aiding the enemy. In June, July and August 1864 at Bayou Sara in the Parish of West Feliciana, Louisiana, he corresponded with Confederate agents, who were all enemies of the United States and officers or agents of the Confederate States government. He spoke to them when purchasing a “large quantity of cotton, the property of the so-called Confederate States government.” He was prosecuted for “relieving” the enemy with money and made to face a court-martial. His incidental communication with Confederates during his “commercial transaction” was what a Judge Advocate General sought to punish.

—Pvt. Henry Vanderwater (1863) - A member of the 1st District of Columbia Volunteers stationed in Union-occupied Alexandria to defend Washington during the Civil War, Vanderwater “gave a military roster to a local newspaper, which promptly printed it.” He was charged with aiding the enemy and found guilty and sentenced to three months of hard labor, according to a report by the Washington Post‘s Linda Wheeeler. (It is unclear whether prosecutors have invoked this case in Manning’s court martial, though it has been mentioned in multiple reports written by reporters covering his case.) [Source: Washington Post]