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Beyond Bradley Manning

Assange may be outraged at Manning’s conviction for leaking secret documents, but the judge’s dismissal of two other charges against Manning could halt Obama administration’s plans to prosecute Assange for publishing the documents.

August 1, 2013

Crossposted from The New York Times Room for Debate.

Pfc. Bradley Manning’s conviction for violating the Espionage Act of 1917, and his acquittal on charges of “aiding the enemy,” is a long-awaited step in a case that has stretched on for years. And as Charlie Savage noted in The New York Times, there have been seven people “charged in connection with leaking to the news media during the Obama administration; during all previous administrations, there were three.”

So will the outcome of the Manning trial have ramifications in other cases? How significant is this week’s verdict?

William Hennessy/Associated Press

Faiza PatelFaiza Patel is the co-director of the Liberty and National Security Program at the Brennan Center for Justice at the New York University Law School.

Julian Assange, the founder of WikiLeaks, is of course outraged at Pfc. Bradley Manning’s conviction on 20 charges for leaking some 700,000 U.S. government documents. But there may be good news to temper that outrage: the judge’s dismissal of two of the charges against Manning could derail the Obama administration’s plans to prosecute Assange for publishing the documents.
The judge rejected the argument that Manning aided the enemy by turning over national security information to WikiLeaks for publication. Although prosecutors conceded that this principle would also apply to a traditional newspaper, they nonetheless argued that WikiLeaks was not a “journalistic enterprise” but a “transparency movement.” The judge’s full opinion is not yet public, but her dismissal of the “aiding the enemy” charge suggests that she didn’t buy that characterization.
This is important. No administration has brought Espionage Act charges against the press, which enjoys strong constitutional protections. If WikiLeaks is considered part of the press – as it should be – the Obama administration will have to overcome both this history and the First Amendment if it wants to prosecute Assange successfully.
The WikiLeaks founder can also take comfort in the dismissal of the charge that, shortly after Manning arrived in Iraq in November 2009, he gave WikiLeaks a video of an airstrike near the village of Garani in Afghanistan. Prosecutors contended that the early sharing of video showed that the two men were scheming to acquire information for public release, and challenged Manning’s claim that he leaked information only because he became disgusted with the conduct of the Iraq war. Proving cooperation of this sort would be critical in any case against Assange. It’s hard to go after the press for disseminating information, even if it is secret. So prosecutors will most likely have to show that the two men conspired to get and publish documents. They may have other evidence of such a plot, but now they can’t rely on the Garani video.
Even so, Assange probably shouldn’t leave the Ecuadorian Embassy in London (where he has taken refuge to avoid extradition to the U.S.) just yet. The Manning prosecution shows that the administration is willing to pursue broad theories of liability against those who reveal its secrets. Given the chance, it may take a shot at Assange after all.
Read other points of view at Room for Debate.