A military judge is set to issue a verdict in the trial of Pfc. Bradley Manning, the soldier prosecuted for disclosing information to WikiLeaks, tomorrow in the early afternoon. The verdict will come on the same day that America passed its first whistleblower protection law.
The law passed by the Continental Congress on July 30, 1778, declared that it was the “duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by an officers or persons in the service of these states, which may come to their knowledge.”
It was passed unanimously in response to a whistleblower, Marine Captain John Grannis, who presented a petition to the Continental Congress on March 26, 1777, to have a commander of the Continental Navy, Commodore Esek Hopkins, suspended after he tortured British sailors who were captured.
Hopkins, as Stephen M. Kohn, wrote in an editorial for the New York Times, that Hopkins “came from a powerful family; his brother was a former governor of Rhode Island and a signer” of the Declaration of Independence. After his suspension, Hopkins retaliated against those who had blown the whistle, including two from Rhode Island named Samuel Shaw, who was a midshipman and Richard Marven, who was a third lieutenant.
Marven and Shaw petitioned the Continental Congress on July 23, 1778, and asserted that they had been arrested and were suffering retaliation because they had done “what they then believed and still believe was nothing but their duty.”
The Continental Congress agreed and also went so far as to include in the whistleblower protection law that the “reasonable costs of defending” Marven and Shaw be defrayed by the United States.
Manning did not go to Congress with his information but had he gone to Congress it is a virtual guarantee that he would have lost his security clearance for trying to provide information to Congress that included evidence of torture and other war crimes. The world would never have seen the information he disclosed to WikiLeaks.
Not every one of the more than 700,000 documents he released contained evidence of a major crime, and yet a statement Manning read in court February 28 indicates his decisions to release certain sets of information were that of a classic whistleblower. Yet, he faces a potential sentence of life in prison without parole if convicted of “aiding the enemy.”
Take the video of a 2007 Apache helicopter attack, which shows two Reuters journalists being gunned down in Baghdad. The soldiers in the video known as “Collateral Murder” feature soldiers begging superior officers to give them orders to fire on individuals, who are rescuing wounded people. Soldiers also openly hoped a wounded man crawling on the sidewalk would pick up something resembling a weapon so they could finish him off. And, “The most alarming aspect of the video,” as Manning said, is “the seemingly delightful bloodlust they appeared to have.”
Consider the military incident reports from Iraq and Afghanistan, which he thought “represented the on the ground reality of both of the conflicts” the US was waging in those countries. In Afghanistan, the reports obtained by WikiLeaks and released as the “Afghan War Logs” showed an assassination squad, Task Force 373, was operating. It kept classified lists of enemies and went on a mission on June 17, 2007, to target “prominent al Qaeda functionary Abu Laith al-Libi.” The squad staked out a “Koran school where he was believed to be located for several days.” An attack was ordered. The squad ended up killing seven children with five American rockets. Al-Libi was not killed.
Reports from Iraq, also obtained by WikiLeaks and released as the “Iraq War Logs,” revealed an order, Frago 242, which the US and the UK appeared to have adopted as a way of excusing them from having to take responsibility for torture or ill-treatment of Iraqis by Iraqi military or security forces. The reports also showed US interrogators had threatened Iraqi detainees with the prospect of being turned over to the “Wolf Brigade” or “Wolf Battalion,” which would “subject” them “to all the pain and agony that the Wolf Battalion is known to exact upon its detainees.”
If those revelations are not enough to make him a whistleblower, over 250,000 US diplomatic cableswere slowly released (up until 100,000 were rapidly published on to the Internet by WikiLeaks in August 2011), and they revealed: US diplomats spying on United Nations leadership, the Yemen president agreed to secretly allow US cruise missile attacks that he would say were launched by his government, Iceland’s banking crisis had partly been a result of bullying by European countries, US and China joined together to obstruct a major agreement on climate change by European countries, US government was well aware of rampant corruption in the Tunisian ruling family of President Ben Ali, the FBI trained torturers in Egypt’s state security service, both the administrations of President George W. Bush and President Barack Obama pressured Spain and Germany not to investigate torture authorized by Bush administration officials, and foreign contractors managed by DynCorp hired Afghan boys to dress up as girls and dance for them.
Should that still not be enough, Manning also provided WikiLeaks with more than 700 detainee assessment reports on prisoners held at Guantanamo Bay. The assessments showed children and elderly men were imprisoned, information from a “small number of detainees” who were tortured was relied upon by US authorities and al Jazeera journalist Sami al-Hajj had been sent to the prison “to provide information” on the “al Jazeera news network’s training program, telecommunications equipment and newsgathering operations in Chechnya, Kosovo and Afghanistan, including the network’s acquisition of a video of [Osama bin Laden] and a subsequent interview” of bin Laden.
Manning does not dispute that he committed violations of the military code of justice, which he swore an oath to obey. He pled guilty to some offenses before trial, and, had the prosecutors accepted this plea instead of going forward with the entire case to convict him of “aiding the enemy,” the government could have put him in jail for twenty years. It was apparently not good enough. They wanted to convict him of all the federal offenses he faced—the Espionage Act charges, the Computer Fraud and Abuse Act (CFAA) charges and the embezzlement of government property charges.
Military prosecutors also wanted to convict him of “aiding the enemy” for releasing information. They convinced the military judge, Army Col. Denise Lind, prior to trial to interpret the charge without a specific intent requirement. All the government would have to prove is that Manning had knowledge his disclosures would “aid the enemy.”
During the trial, Manning’s civilian defense attorney, David Coombs, argued, “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 charged with “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 an organization to indirectly get it to the enemy,” that could make you guilty of “aiding the enemy,” he suggested.
Coombs added, “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” for “aiding the enemy.”
Like seven others charged under the Espionage Act for leaking while the Obama administration has been in power, Manning has been prosecuted as if he is a spy with an antiquated World War I-era law that was used deter dissent against the war. This aspect of the case also received a boost recently from the judge in the case of Stephen Kim, who is a former State Department employee charged with violating the Espionage Act after he released classified information on North Korea’s nuclear program to Fox News reporter James Rosen.
Judge Colleen Kollar-Kotelly in Kim’s case lowered the burden of proof for prosecutors and ruled they did not have to prove the information could be potentially damaging to the United States or that it would “advantage a foreign nation.” That Kollar-Kotelly determined would encourage a jury to second guess individuals who had decided to classify the information. [Prosecutors sought to obtain a copy of this initially sealed opinion on June 9 for use in their case against Manning.]
Similarly, the judge has opposed calling the classification determinations of original classification authorities, who decided to classify the information, unless information in the documents (or video) could be found in open source materials. And this transforms the Espionage Act into an Official Secrets Act, an anti-leaks law, which is not how the law was ever intended to be used when it was passed; however, convincing the courts that this law can be used to punish other offenses has been more effective than trying to get Congress to pass an anti-leaks law.
As written previously, Manning is a whistleblower who disobeyed military codes and US law governing the handling of classified information. He has pled guilty and accepted responsibility for his acts of civil disobedience. But the Obama administration has cast him as a leaker, having prosecuted a record number of other “leakers” and also fought to keep an increasing amount of information it claims is sensitive to “national security” secret. It has failed to address the problem of over-classification while at the same time clamping down on the free flow of information between government employees and members of the press.
If the Manning case is seen as part of a larger trend toward reestablishing—and even expanding—the ability to protect state secrecy, it becomes clear that his prosecution is not simply about a soldier made decisions he did not have the authority to make. It is about whether Americans are going to allow the government to persecute an individual because he or she had the courage and audacity to reveal corruption that government officials wished to keep hidden out of sight for at least twenty to thirty more years.
Ironically, Sen. Chuck Grassley is pushing for July 30 to be designated by Congress as National Whistleblower Day. Were this to succeed, Manning could be convicted of “aiding the enemy” on a day intended to celebrate whistleblowers. It would be twisted, indeed, but indicative of how the American democratic republic has abandoned its founding principles and values.
Officials in the US government are more than willing to profess a commitment to whistleblowers if they are not blowing the whistle on crimes, abuse or corruption, which they have a vested interest in defending. When individuals come forward that force them to confront US wars, how America conducts its foreign policy, how it spies on other countries or violates freedom and human rights in the world, those individuals are not celebrated. They think they can arbitrarily decide who is and who is not a whistleblower, who citizens should praise and who they should condemn for their whistleblowing acts. And the case of Manning is a prime example because he could be convicted of all charges tomorrow and face a bleak future of life in prison that should be reserved for truly traitorous criminals.
For more coverage of Bradley Manning’s trial from Firedoglake, go here.