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During Bradley Manning's ongoing pretrial hearings, Judge Army Col. Denise Lind asked the government:

If we substituted New York Times for WikiLeaks, would you still charge Bradley Manning in the way that you have?
Without hesitation, the government answered yes.

The scope of this statement is breathtaking and should alarm all journalists.  It makes manifest something I've been saying for a long time with regard to the war on whistleblowers--that the Espionage Act will soon be used to go after journalists, just as it is being used to hammer sources.

This statement is even scarier because the government also claimed that WikiLeaks is an info-terrorist "organization that aids the enemy" because information published there was allegedly found during the the bin Laden raid.  Under this logic, the New York Times and any other paper that reprinted WikiLeaks material--or published any information that is read/viewed/listened to by a terrorist--could be prosecuted for "aiding the enemy."

UPDATE: A half hour after I posted this blog, Greg Mitchell of The Nation posted a piece expressing the same concern:

The Times and other media--not just the leakers--could be/should be charged in similar cases.

When neocon Gabe Schoenfeld wrote an entire book on how the Espionage Act should be used to prosecute the New York Times, journalists and sources, it seemed far-fetched.  But Obama took a page right from the book and started prosecuting whistleblowers under the notoriously vague and antiquated Espionage Act for allegedly mishandling classified information. I have warned repeatedly that the crackdown on whistleblowers could create really bad precedent for going after journalists.  It already happening in the case of CIA whistleblower Jeff Sterling, where the government has subpoenaed New York Times reporter Jim Risen to testify against a source.

In Manning's hearing, the government told the Judge to take notice of "digital media" found during the bin Laden raid; a propaganda video discussing WikiLeaks and al Qaeda's response to the WikiLeaks revelations; and an issue of Inspire magazine that references WikiLeaks. All of this evidence shows "possession of information by the enemy."

Do you know what the enemy also has? Access to (and possession of at least some of) millions of articles and videos that reference or rely on WikiLeaks, and/or that can be construed as "aiding the enemy." From articles about NSA's warrantless wiretapping program, to articles about torture of al Qaeda suspects, to articles about US mistreatment of Muslims, there are innumerable open-source pieces of information that using a content-based analysis can be construed as aiding the enemy, including two articles in today's New York Times.

While this "damage evidence" may only be allowed to come in during sentencing and not the merits portion of Manning's court martial, it is still creates dangerous precedent for showing "danger" posed by ordinary, classic reporting that journalists do every day, which could now be construed as "national defense information" that aids the enemy.

There's a reason that, under the First Amendment, political speech is the most highly guarded form of speech: because of its purely expressive nature and importance to a functional republic. Restrictions placed upon core political speech must weather strict scrutiny analysis or will be struck down. The line of reasoning that is emerging in Manning's case will operate as a de facto restriction on political speech, which lies at the core of a free and democratic society.

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Comment Preferences

  •  Tip Jar (25+ / 0-)

    My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

    by Jesselyn Radack on Thu Jan 10, 2013 at 06:03:19 AM PST

  •  I'm not seeing the importance of this. (4+ / 0-)
    Recommended by:
    yella dawg, NYFM, TomP, maskling11

    The question wasn't whether the government would take the same interest in the NYT, as a potential target of prosecution, as it is apparently taking in Wikileaks; rather, it was whether the government would take the same interest in Manning regardless of who he leaked to.  (I assume that the first question couldn't even be posed in Manning's case because it's not relevant.)  To me it would have been "breathtaking" if the government had given any answer other than "No."

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Thu Jan 10, 2013 at 06:38:25 AM PST

    •  Oops, I mean "Yes"! (2+ / 0-)
      Recommended by:
      yella dawg, TomP

      Damn, I even proofread it!

      You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

      by Rich in PA on Thu Jan 10, 2013 at 06:39:08 AM PST

      [ Parent ]

    •  The govt said it considered WikiLeaks aiding enemy (13+ / 0-)

      This lays the groundwork for prosecuting Assange. If Assange gets prosecuted, papers like the New York Times would be just as vulnerable.

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Thu Jan 10, 2013 at 06:56:21 AM PST

      [ Parent ]

      •  John Kerry himself said Manning's releases (3+ / 0-)
        Recommended by:
        ScienceMom, GoGoGoEverton, laker

        were in no way comparable to the "Pentagon Papers".  Much of it was more malicious in intent than edifying to the public (although some of it was).  There's a qualitative analysis missing here.  
        Nevertheless, while what Manning did was wrong he should not be tortured in captivity for it.

        There are very few subjects which do not interest or fascinate me.

        by NYFM on Thu Jan 10, 2013 at 07:07:12 AM PST

        [ Parent ]

        •  the Pentagon Papers don't exist anymore (4+ / 0-)
          Recommended by:
          NYFM, gerrilea, fuzzyguy, 2020adam

          The Pentagon Papers only happened because the DoD was naive enough to think they could write a "Centralized Index of Things We Lied About Vol. I" and nobody would be so unpatriotic as to leak it.

          If "A Study of How Much Time the State Department Spends Lobbying on Behalf of Individual Corporations vs. National Interests" or "The Process of the Assimilation of the Diplomatic Corps by the CIA Post-9/11" or "Friendly Tyrants 1995-2005" existed they'd have been leaked years ago.

          The reason the Pentagon Papers were interesting wasn't because they gave away some bad things, it was that they were a meta-analysis of how important the bad things were and how representative they were of the DoD's overall behavior. That kind of paperwork doesn't exist anymore, or if it does it's way more tightly controlled. The only way you're ever going to get something like the Pentagon Papers again is by leaking big representative chunks so journalists can decide how significant the bad stuff is on their own.

        •  While I agree he should not be tortured, what (3+ / 0-)
          Recommended by:
          NYFM, fuzzyguy, aliasalias

          he did may have been illegal, that does not make it wrong.

          That presupposes our laws are actually moral.

          We saw how immoral they really are when Congress granted the Telecoms retroactive immunity.

          -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

          by gerrilea on Thu Jan 10, 2013 at 09:17:45 AM PST

          [ Parent ]

      •  Two things (2+ / 0-)
        Recommended by:
        GoGoGoEverton, NYFM

        First, it's always better if the government holds a consistent view, even if it's wrong, rather than letting them pick and choose which media outlets it considers enemy-friendly.  

        Second, the government's legal theory vs. Wikileaks (or, if you prefer, the NY Times) is incredibly tenuous and thus far there's no evidence that they're seriously pursuing it.  Manning is the one in jeopardy right now and I don't see how it helps him to invoke the currently speculative jeopardy of others.  The NY Times has shown that it can defend itself pretty well in court.

        You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

        by Rich in PA on Thu Jan 10, 2013 at 07:08:53 AM PST

        [ Parent ]

      •  Does WikiLeaks equal Woodward? (2+ / 0-)
        Recommended by:
        laker, aliasalias
        Glenn Greenwald, the political columnist and former constitutional and civil rights lawyer, sees hypocrisy in the U.S. equating the leak of classified information with "aiding and abetting the enemy." If that were the case, how are Bob Woodward and his sources allowed to walk off scott-free?:  [T]he theory being used to prosecute Manning would convert almost every government source for newspapers into a traitor. [...]

        In order to demonstrate that Manning's leaks aided al-Qaida, the government yesterday said, for the first time, that it intends to introduce "evidence that Osama bin Laden requested and received from a Qaeda member some of the State Department cables and military reports that Private Manning is accused of passing to WikiLeaks." Bin Laden and other al-Qaida members almost certainly had an interest in reading the vast majority of national security leaks over the last decade published by the New York Times, the Washington Post and other media outlets. The very notion that their mere interest in leaks proves the "aiding and abetting" charge demonstrates just how menacing this theory is.

        But let's apply the government's theory in the Manning case to one of the most revered journalists in Washington: Bob Woodward, who has become one of America's richest reporters, if not the richest, by obtaining and publishing classified information far more sensitive than anything WikiLeaks has ever published.

        http://www.politico.com/...

        "Who are these men who really run this land? And why do they run it with such a thoughtless hand?" David Crosby

        by allenjo on Thu Jan 10, 2013 at 09:16:27 AM PST

        [ Parent ]

      •  Not really (0+ / 0-)

        The New York Times is pretty harmless for the establishment. Remember Judy Miller and her ilk?

      •   No, they didn't. (0+ / 0-)

        That report was false.  And more to say, there was no link found between Assange and Manning, which means the chance of a prosecution is badically nil.  And even if this wasn't the case......

        Nobody Should Get A Get-Out-Of-Rape-Free Card.

        I don't care whether you're Julian Assange or Jesus F'ing Christ himself, I don't give a damn how "unjustly persecuted" you consider yourself, if you F* a sleeping girl to work around her repeated refusal to consent to your preferred form of sex, you need to stand trial for it.  

  •  I am not thrilled that this is all going (5+ / 0-)

    on in a MILITARY court. After all, each soldier is well aware that he is solely owned by the military. AND Obama has already declared Manning guilty without waiting for a trial, even a kangaroo trial.

    Our system has failed us and we have failed to come to grips with the systemic failures it has presented us. We have preferred to believe that it would right itself and come about smartly once the "right" people were in office. So how long are we gonna sit on our butts waiting for the "right" folks to show up and show us how it is done?

    There is nobody afraid of us. There is no real threat to the bloggernation. We don't have to worry about armored cops showing up and beating us up. Why is that? Why was Occupy such a threat? Maybe because what they did might have become contagious.

    So tell me all you powerful bloggerettes and blogdudes: what do we do now?

    American Television is a vast sea of stupid. -xxdr zombiexx

    by glitterscale on Thu Jan 10, 2013 at 06:42:11 AM PST

  •  The administration apologists, who have blindly (5+ / 0-)

    defended this administration's adoption and expansion of the Bush-era suspension of several fundamental Civil Rights, including the totalitarian dismissal of whistleblower protections, wouldn't have a leg left to stand on if they were centipedes. God forbid any one of them finds themselves in such a situation and actually develops a conscience. They will find it lonely and forbidding, to say the least. Of course, it's doubtful they will find themselves in such a situation...

    Thanks for keeping us posted.

    The Class, Terror and Climate Wars are indivisible and the short-term outcome will affect the planet for centuries. -WiA "When you triangulate everything, you can't even roll downhill..." - PhilJD

    by Words In Action on Thu Jan 10, 2013 at 06:44:39 AM PST

  •  while I despise the way Manning has been treated (6+ / 0-)
    Recommended by:
    TomP, NYFM, GoGoGoEverton, VClib, FG, doroma

    I know that factually, giving away classified military information to someone who did not have the approval to see that classified information with the intent to have it published for wide access, is a crime

    If Manning went to the NYT and said "I know about the horrible things the government is doing, I can't give you specifics because its classified but lets works out what I can tell you" it'd be different because that would be much closer to political speech.

    As I said, his treatment, his trial, etc have been horrible and mishandled at best. But it's hard to argue that he shouldn't be on trial at all.

    I guess this makes me a bad democrat, oh well.

    •  Whether the Manning info. is classified is issue. (12+ / 0-)

      Remember in the Tom Drake case, the government charged him under the Espionage Act for allegedly mishandling allegedly classified information.

      The case collapsed because it turns out none of the information was classified after all.

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Thu Jan 10, 2013 at 07:03:45 AM PST

      [ Parent ]

      •  and that's a line of defense (2+ / 0-)
        Recommended by:
        VClib, FG

        i could stand behind...

        it's just hard for me to defend the guy when the most vocal defense of his accused acts are that since he was trying to do the right thing, it should be OK.

        As I said, the gov has handled the case about as badly as possible, and his treatment has been far from humane, but it's hard for me to defend his acts.

        •  Isn't this where we've gone astray as a nation? (4+ / 0-)
          it's just hard for me to defend the guy when the most vocal defense of his accused acts are that since he was trying to do the right thing, it should be OK.
          YES.  That's the whole point of "justice" is it not?  To punish the wrong and protect the righteous?

          Our laws do not make something wrong or right, just legal or illegal.

          Mannings releases were protected under, Whistle Blower Protection Laws, not free speech, not political speech and the Obama administration is making a mockery of our "justice" system under the guise of "rule of law" using statutes in ways they've rarely if ever been used.

          It's like the police and zealot DA's prosecuting people for and under "wiring tapping" laws when they video tape police doing their job.  

          WE do have a problem and it ain't Bradley Manning.

          -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

          by gerrilea on Thu Jan 10, 2013 at 09:36:53 AM PST

          [ Parent ]

      •  So you think there's really a question as to (0+ / 0-)

        whether what Manning released was classified or not?

        I see what you did there.

        by GoGoGoEverton on Thu Jan 10, 2013 at 08:05:23 AM PST

        [ Parent ]

  •  Do you believe that (3+ / 0-)
    Recommended by:
    NYFM, VClib, doroma

    anyone given access to classified information has the right to violate criminal laws regarding the dissemination of that information?  

    Is there a line, or does each person get to decide on his or her own what secrets may be kept secret?  

    What standard do you use, if any, to determine when it is ok to violate the law and not be convicted of that violation?  

    People like Daniel Ellsberg did a great service to America, but he was tried.  The only reason he was not convicted was because of government misconduct (breaking into his psychiatrist office, etc.)

    What service did Bradley Manning do with his mass release of classified documents?

    What rationale do you provide for not finding hin guilty?  (outside of gov't misconduct during his imprisonment)?

    Civil disobedience means going to jail for breaking the law, so this is not that.  

    I just wonder where the lines are.

     

    Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

    by TomP on Thu Jan 10, 2013 at 06:58:51 AM PST

    •  I don't believe people can violate the law and (10+ / 0-)

      just disseminate classified information.

      There are a number of factual issues that have not been determined yet in Manning's case--like whether the information at issue was classified at all, and if so, whether it was properly classified given the huge overclassification problem, which the government has acknowledged.

      Under the Military Whistleblower Protection Act, the prosecution of Manning is considered retaliation because he exposed dross abuse and illegality. You cannot classify illegal info. to shield it from public view.

      Manning's documents are credited with contributing to the Arab Spring and exposing our military's killing of innocents, including reporters and children, as if they were playing a video game.

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Thu Jan 10, 2013 at 07:11:54 AM PST

      [ Parent ]

    •  Civil disobenience isn't the issue here. (1+ / 0-)
      Recommended by:
      Enzo Valenzetti

      Manning became aware of our government's malfeasance and told us about it the best way she was capable of.

      She wasn't participating in any "civil disobedience" such as voter suppression or OWS, she was telling us the truth.

      That still isn't a crime no matter how many laws claim it is.

      -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

      by gerrilea on Thu Jan 10, 2013 at 09:44:15 AM PST

      [ Parent ]

    •  Perhaps you should ask AG Holder such questions? (1+ / 0-)
      Recommended by:
      aliasalias
      What standard do you use, if any, to determine when it is ok to violate the law and not be convicted of that violation?  
      Why should HSBC be let off ? What standard did Holder's DOJ use, what rationale?

      Tom, I also wonder where the lines are, because we have 2 tiers of justice here.

      When bankers can aid terrorists and launder dirty money and go free, why should Manning rot in jail?

      What service did HSBC do with their criminal activity?

      these are all important questions......

      "Who are these men who really run this land? And why do they run it with such a thoughtless hand?" David Crosby

      by allenjo on Thu Jan 10, 2013 at 10:29:12 AM PST

      [ Parent ]

  •  times don't have the balls to do that no/more (1+ / 0-)
    Recommended by:
    gerrilea

    clime parches on. terms: ocean rise, weather re-patterning, storm pathology, drout-famine, acceptance of nature.

    by renzo capetti on Thu Jan 10, 2013 at 07:00:05 AM PST

  •  It's a sad day in America when telling the truth (3+ / 0-)
    Recommended by:
    gerrilea, aliasalias, Enzo Valenzetti

    is a terrorist act...Orwell was right. And Huxley too! But hey- who cares, it's time for centrifugal bumblepuppy!

  •  Why was there a doubt that it will be the case? (0+ / 0-)

    Leaking classified information is a crime no matter to whom it is leaked.

  •  What really pisses me off (6+ / 0-)

    is all of the energy spent on going after Bradley when HSBC was actually aiding and abetting Al Qaeda by actively helping them skirt protections to transfer money into and out of the US.

    HSBC is only being fined and there will be no prosecutions.   The US has once again use the "too big to fail" argument as to why there will be no prosecutions or further pursuit of this issue against HSBC other than requiring them to fix everything with a pile of cash (1.9 billion dollars).

    On many issues like this one it is really hard for me to see the differences the Bush and Obama administrations.   We are now ordering the execution of US citizens without a trial or open process by dropping bombs on them from drones.   Who would have thought the day would come when this happened?   Who would have thought it would be under a Democratic administration?

    •  Who woulda thought? (2+ / 0-)
      Recommended by:
      fuzzyguy, aliasalias
      On many issues like this one it is really hard for me to see the differences the Bush and Obama administrations.
      In my wildest imagination, I would not have thought we would.

      If HSBC is to be let off, why not Bradley Manning?

      Jon Stewart had a great segment on HSBC last night.

      "Who are these men who really run this land? And why do they run it with such a thoughtless hand?" David Crosby

      by allenjo on Thu Jan 10, 2013 at 10:20:05 AM PST

      [ Parent ]

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