This column was written by Faiza Patel and Elizabeth Goitein, who co-direct the Liberty and National Security program at the Brennan Center for Justice.
You might think the government would be satisfied that Bradley Manning, the source of hundreds of thousands of classified documents published by WikiLeaks, has entered a guilty plea that could put him away for 20 years. Instead, in the court martial that began Monday, prosecutors are reaching for more. They seek to convict him on additional Espionage Act and other charges, and to send him to jail for life.
It remains to be seen whether the government’s aggressive approach, in this and other leak cases, succeeds in deterring people who are bent on injuring the nation. But it is almost sure to deter some well-meaning officials from exposing government misdeeds and to cause the press to think twice about reporting them.
At the center of the case is the government’s allegation that Manning violated the Espionage Act by disclosing classified documents to WikiLeaks. As its name implies, the law, enacted in 1917, was intended to punish spies, traitors, and other enemies of the state. In 2006, a federal judge ruled that the provision of the Act at issue in Manning’s case applies only to people who act in “bad faith”—those who intend to harm the country.
But the Obama administration has taken a very different view. It has brought six prosecutions against officials and contractors for leaking information to the media—twice as many as all previous administrations combined. In none of these cases, including Manning’s, was there any suggestion that the leaker intended harm. Indeed, most of the defendants were attempting to serve their country by exposing government wrongdoing or providing information that could enrich public debate.
In the Espionage Act prosecution of John Kiriakou, the CIA officer who disclosed details about the U.S. waterboarding of detainees, the judge sided with the Obama administration, rejecting the “bad faith” requirement. Instead, the government had to show only that Kiriakou had “reason to believe” the disclosures could injure the U.S. or aid a foreign nation. The judge in Manning’s case has taken the same view, ruling that Manning’s motive is irrelevant. She also ruled that it made no difference whether the disclosures actually caused harm.
What constitutes “reason to believe” that a disclosure will harm national security? There is no settled answer. But prosecutors are likely to rely heavily on the fact that the leaked documents were classified. Such reliance would be unjustified. Officials have acknowledged for decades that “overclassification” is rampant in the federal government. Manning’s disclosures, for example, included a cable in which a State Department official classified the fact that weddings in Russia’s Dagestan province take place over three days.
If the judge gives undue weight to the documents’ classified status, the result—combined with her other rulings—could be far-reaching. A statute designed to incapacitate dangerous spies would become available to imprison for decades people who intended no harm to the country, who have done no harm to the country, and who had little reason to think such harm would occur.
To be sure, Manning’s own disclosures included some information that could have caused great harm. For instance, he leaked documents that included the names of Afghan locals who were cooperating with U.S. forces, endangering them and their families. But an overly broad reading of the Espionage Act in Manning’s case will virtually ensure that other officials, even those in possession of information that was improperly classified and reveals serious government misconduct, will keep what they know to themselves.
The potential chilling effect goes beyond would-be whistleblowers. No reporter has ever been prosecuted under the Espionage Act for obtaining and publishing information. But the Obama administration is flirting with crossing this line. In 2009, it obtained a warrant for Fox News reporter James Rosen’s e-mails, alleging that he conspired to violate the Espionage Act by requesting and receiving national defense information from a State Department source. There also have been persistent rumors that the Justice Department is preparing a secret indictment against the founder of WikiLeaks, Julian Assange, on the same “conspiracy” theory.
The free flow of information is critical to the functioning of our democracy. Some secrets must of course be protected but it is too easy for the government to hide embarrassing information or controversial programs behind the cloak of national security. The government’s broad theories of Espionage Act liability in Manning’s case could silence whistleblowers and journalists alike. Without these sources, the government would have a monopoly on information about national security policies, and we the citizenry would be much worse off.
Faiza Patel