Thursday, Mar 3, 2011 10:04 ET
Bradley Manning could face death: for what?
By Glenn Greenwald
http://www.salon.com/news/wikileaks/index.html?story=/opinion/greenwald/2011/03/03/manning
The U.S. Army yesterday announced that it has filed 22 additional charges against Bradley Manning, the Private accused of being the source for hundreds of thousands of documents (as well as this still-striking video) published over the last year by WikiLeaks. Most of the charges add little to the ones already filed, but the most serious new charge is for "aiding the enemy," a capital offense under Article 104 of the Uniform Code of Military Justice. Although military prosecutors stated that they intend to seek life imprisonment rather than the death penalty for this alleged crime, the military tribunal is still empowered to sentence Manning to death if convicted.
Article 104 -- which, like all provisions of the UCMJ, applies only to members of the military -- is incredibly broad. Under 104(b) -- almost certainly the provision to be applied -- a person is guilty if he "gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly" (emphasis added), and, if convicted, "shall suffer death or such other punishment as a court-martial or military commission may direct." The charge sheet filed by the Army is quite vague and neither indicates what specifically Manning did to violate this provision nor the identity of the "enemy" to whom he is alleged to have given intelligence. There are, as international law professor Kevin Jon Heller notes, only two possibilities, and both are disturbing in their own way.
In light of the implicit allegation that Manning transmitted this material to WikiLeaks, it is quite possible that WikiLeaks is the "enemy" referenced by Article 104, i.e., that the U.S. military now openly decrees (as opposed to secretly declaring) that the whistle-blowing group is an "enemy" of the U.S. More likely, the Army will contend that by transmitting classified documents to WikiLeaks for intended publication, Manning "indirectly" furnished those documents to Al Qaeda and the Taliban by enabling those groups to learn their contents. That would mean that it is a capital offense not only to furnish intelligence specifically and intentionally to actual enemies -- the way that, say, Aldrich Ames and Robert Hanssen were convicted of passing intelligence to the Soviet Union -- but also to act as a whistle-blower by leaking classified information to a newspaper with the intent that it be published to the world. Logically, if one can "aid the enemy" even by leaking to WikiLeaks, then one can also be guilty of this crime by leaking to The New York Times.
The dangers of such a theory are obvious. Indeed, even the military itself recognizes those dangers, as the Military Judges' Handbook specifically requires that if this theory is used -- that one has "aided the enemy" through "indirect" transmission via leaks to a newspaper -- then it must be proven that the "communication was intended to reach the enemy." None of the other ways of violating this provision contain an intent element; recognizing how extreme it is to prosecute someone for "aiding the enemy" who does nothing more than leak to a media outlet, this is the only means of violating Article 104 that imposes an intent requirement.
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