UPDATE (8/21/13): Bradley Manning was sentenced by a military judge today to 35 years in prison. In response, the ACLU’s Ben Wizner said:
When a soldier who shared information with the press and public is punished far more harshly than others who tortured prisoners and killed civilians, something is seriously wrong with our justice system. A legal system that doesn’t distinguish between leaks to the press in the public interest and treason against the nation will not only produce unjust results, but will deprive the public of critical information that is necessary for democratic accountability. This is a sad day for Bradley Manning, but it’s also a sad day for all Americans who depend on brave whistleblowers and a free press for a fully informed public debate.
The piece below was first published as part of the New York Times Room for Debate feature "Beyond Bradley Manning," which asked: Will the outcome of the Manning trial have ramifications in other cases? How significant is the verdict?
The first thing to be said about Bradley Manning's trial is that the entire exercise was unnecessary. There was no real factual dispute, since Manning admitted he had leaked the documents to WikiLeaks, and he offered guilty pleas that would have allowed a sentence of up to 20 years.
Did the government think 20 years in prison was an insufficient punishment for Manning? Maybe so.
But the more likely explanation for the government's refusal of the plea is that it hoped to establish the dangerous precedent that leaks to the press could be equated with "aiding the enemy." Manning's acquittal on that charge was a repudiation of the government's evidence, but not its legal theory, so the government may well take a second bite from that bad apple in a future case.
The government's theory, in a nutshell, is that posting potentially useful information to the Internet aids the enemy because the enemy has access to the Internet. In its continuing prosecution of the former C.I.A. agent Jeffrey Sterling, accused of sharing classified information with James Risen of The New York Times, the government offered a variant of this argument. It insisted that leaks to the press were even "more pernicious" than real espionage – selling secrets to enemies – because not just one, but "every foreign adversary stood to benefit from the defendant's unauthorized disclosure."
The government's reasoning couldn't be clearer or more dangerous: it's preferable for the American people to remain in the dark if that's what's necessary to keep the enemy in the dark. But sometimes information that might be useful to an enemy – such as evidence that the United States tortured prisoners in Abu Ghraib and elsewhere – is also indispensable to the public to ensure democratic accountability and adherence to our nation's ideals.
Equating whistle-blowers with traitors is not only crude, but also fundamentally antidemocratic. And until our laws fairly distinguish between leaks in the public interest and treason against the nation, we shouldn't be surprised when our whistle-blowers seek asylum elsewhere.