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.