Traitor or Hero? The Law Doesn’t Care

Americans are sharply divided on whether Manning is a traitor or a hero, and the sentence is unlikely to change anyone’s mind. But Manning’s trial has made one thing clear: increasingly, in the eyes of the law, the distinction doesn’t matter.

August 23, 2013

Crossposted on MSNBC

Barring a successful appeal, Bradley Manning (now known as Chelsea Manning after her announcement Wednesday morning) faces 35 years in prison for leaking hundreds of thousands of classified documents to WikiLeaks. Americans are sharply divided on whether Manning is a traitor or a hero, and the sentence is unlikely to change anyone’s mind. But Manning’s trial has made one thing clear: increasingly, in the eyes of the law, the distinction doesn’t matter.

The prosecutors tried to cast Manning as an anarchist and fame-seeker who was indifferent to U.S. interests. Manning’s lawyers countered with a portrayal of an emotionally fragile young soldier who was horrified by the U.S. government’s cavalier approach to war. The evidence pointed to a third alternative: Manning was well-meaning but reckless–someone who believed the government was withholding information necessary for informed public debate, but chose a dangerous solution: a “data dump” of classified documents.

And yet, under Judge Denise Lind’s interpretation of the charges, Manning’s motivation was largely irrelevant to the determination of guilt or innocence. The World War I-era Espionage Act was intended for spies and traitors, and as recently as 2006, a federal judge ruled that the government must prove the defendant acted in “bad faith.” But subsequent rulings have gutted this requirement. Judge Lind determined that Manning could be convicted even if acting from the purest of motives.

In theory, Manning’s intent was relevant at the sentencing stage. There was no minimum sentence or other constraint on the judge’s discretion. Nonetheless, despite the lack of any evidence that Manning wished to harm the U.S., Judge Lind imposed a higher sentence than a U.S. army specialist who was a paid spy for Iraq during the Gulf War. The spy was sentenced to 34 years after being convicted of aiding the enemy–a charge on which Manning was acquitted.

This state of legal affairs is a new one. Previous efforts to graft the Espionage Act onto non-espionage cases have been rare and not particularly successful. Before the Obama administration, the government used the Espionage Act only three times to prosecute disclosures of information to the media, and the longest sentence imposed was two years. Obama’s Justice Department has pursued seven such prosecutions, but until now has struggled to obtain convictions, let alone significant jail time.

Some might argue that things are finally as they should be–that anyone who leaks classified documents, regardless of the reason or the recipient, is jeopardizing lives and should pay the consequences. This belief rests on the false premise that the classification system is well-functioning and shields only sensitive national security information. In fact, even high-ranking government officials recognize that far too much information is classified, and history has shown that classification is often a tool for hiding misconduct. In such cases, those who disclose the information act as whistleblowers, not traitors.

The now-jettisoned “bad faith” requirement was one of the few meaningful safeguards for national security whistleblowers. Intelligence personnel are excluded from the Whistleblower Protection Act, which protects government employees who disclose evidence of government wrongdoing from retaliation. President Obama recently issued a directive extending some protections to national security employees, but only for disclosures within approved government channels. If these channels prove ineffective, as they have for many whistleblowers in the past, employees are left with no safe or legal way to bring misconduct to light.

What is the likely consequence of the government’s decision to treat all unauthorized leaks of classified information as treasonous? On that question, the leaker’s motive unquestionably matters. True enemies of the state–those who consider themselves at war with the U.S.–are unlikely to be deterred by the threat of criminal prosecution. Patriotic public servants who come across evidence of illegal government behavior, however, will think twice before sounding the alarm.

Of course, not every disclosure of classified information can be characterized as either espionage or whistleblowing. Disclosures may stem from recklessness, negligence, or just bad judgment. A variety of administrative penalties and lesser criminal charges are available in these instances. There is no need to press the Espionage Act into service.

This country may never reach consensus on whether Manning is a whistleblower, a traitor, or something in between. But surely we can agree that there is a difference. That difference should be reflected in the law and in our government’s approach to national security leaks. Manning’s trial has taken us one giant step in the wrong direction.

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