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It seems like a straightforward and obvious proposition: If the government charges someone with "espionage" or "aiding" the enemy," it must prove that the person actually intended to aid the enemy or benefit a foreign nation.

But this has actually been a hotly-debated issue in all of the Espionage Act prosecutions of whistleblowers.

As Judge T.S. Ellis III explained publicly for the first time last year, he grafted an intent requirement onto the notoriously vague and ambiguous World War I-era Espionage Act in order to keep it constitutional.

Yesterday, the military judge for WikiLeaks suspect Bradley Manning seemed to inch closer back to an Ellis-type standard, which was found to be inapplicable in the case of my client, CIA whistleblower John Kiriakou. There are no links in this diary because there are no transcripts publicly available--a different problem set in stark relief yesterday when it emerged that there are 30,000 pages of motions, none of which can be viewed.

The Espionage Act is a vague, ambiguous, outdated law, passed long before the label "classified" entered the lexicon.  It has, however, been resurrected by the Obama administration to target individuals, by and large whistleblowers, accused of mishandling (usually through "leaking") supposedly classified information--an idea espoused, curiously, by a neoconservative.

Before President Obama, the Espionage Act had only been used three times to target "leaking," most famously in the case against Pentagon Papers whistleblower Daniel Ellsberg (dismissed due to government misconduct.) Obama resurrected the Espionage Act, and has now brought seven cases under this law against people who are not spies. That is why the "intent requirement" is so important.

In the last of the three pre-Obama cases, the "AIPAC espionage scandal," the government prosecuted one government employee and two lobbyists for allegedly disclosing national defense information to persons not entitled to have it. At the time, it was one of the only Espionage Act cases of its kind, targeted not at traditional espionage but at the common practice of "leaking" in Washington, D.C. The cases against two of the defendants were also unusual because the Espionage Act had never been used against non-government individuals, in this case, lobbyists.

In an August 2006 ruling, AIPAC judge T.S. Ellis III grafted an intent requirement onto the Espionage Act in order to make the law constitutional:

prosecutors had to show that the accused knowingly sought both to harm the United States and benefit a foreign nation.
This set a high bar for prosecutors, as it should have, because after all, charging someone with being an enemy of the state is one of the most serious allegations that can be leveled against an American.

Flash forward to the Espionage Act case against my client, CIA whistleblower John Kiriakou, for disclosing the identity of two CIA officers involved in the torture program.  In his case, Judge Brinkema issued a fatal ruling on the critical issue of “intent to harm"--namely that prosecutors need not prove that Kiriakou intended to harm the United States or benefit a foreign nation. Her reasoning was due to the fact that Kiriakou learned the information he disclosed when he was a government employee, not in the private sector.

That's what makes yesterday so extraordinary. In the pretrial proceedings for the court martial of alleged WikiLeaks source Army Pfc. Bradley Manning, the judge (Army Col. Denise Lind) ruled that prosecutors will have to prove that Manning knew he was indirectly providing information to the enemy (in this case, Al Qaeda and bin Laden) when he disclosed information to WikiLeaks. This is different than the heightened proof requirement in which the government must show that he intended to harm the United States and benefit a foreign nation.  But at least it's a step closer to the spirit of what Judge Ellis required to prove espionage--as it should be when the government makes incendiary allegations of "aiding the enemy," and being an "enemy of the state" against an American.

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Comment Preferences

  •  RE Brinkema's ruling (22+ / 0-)

    It's another in a long stream of judicial rulings and laws passed by Congress that treat government employees as a sub-class of people, for whom many  Constitutional protections do not apply.  Yet, the Constitution itself makes no such exceptions.  This would be a scandal but the media make no mention of it.

    •  Many constitutional rights don't apply (3+ / 0-)
      Recommended by:
      Bisbonian, triplepoint, Don midwest

      to any number of people - such as members of the military, employees of corporations, and school kids.

      Why should Congress be different?

      •  I was referring to federal employees (10+ / 0-)

        not members of Congress. Federal workers have been denied rights available to other Americans under the First, Fifth and Fourteenth Amendments.

        Employees of corporations have vastly more protections than federal workers. That is nowhere more obvious than in the due process rights afforded to workers with security clearances.  Government contractors have double the due process rights of government employees who hold the same levels of clearance and work on the same restricted projects. The federal worker poses no greater risk to national security.  In fact, the risk is higher for contractors, who answer to a third party motivated by profit, not national security.  Yet, contractors can call witnesses in their defense at hearings on their clearance suitability; federal employees cannot.  This offends the notion of equal protection under the law (14th Amendment) and raises national security concerns.

  •  I wish I had faith that this would turn out (15+ / 0-)

    okay. After seeing what they did to Aaron Swartz, I'm not hopeful.

    Thank you for your diligence on these issues.

    "Say little, do much" (Pirkei Avot 1:15)

    by hester on Thu Jan 17, 2013 at 06:27:50 AM PST

  •  Aiding the enemy? (33+ / 0-)

    Legalisms aside, the info allegedly released by Manning, in fact, dealt a blow to the enemy by, among other things, helping to spark the democratic uprisings in the Middle East, securing the end (mostly) of the U.S. occupation of Iraq, and generally exposing some of the foreign policy crimes and corruption which are, in fact, "aiding the enemy." Nothing has aided the enemy more than the global war against terrorism, which is fueling AQ and its allies.

    •  The enemy that he aided is the American people. (30+ / 0-)

      That was his real crime, and the reason he is being treated so harshly.  The powers that govern us are deathly afraid of the American people learning what they are up to.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Thu Jan 17, 2013 at 06:57:48 AM PST

      [ Parent ]

    •  Wish I could rec this 1000 times. (9+ / 0-)

      We have this blindness called 'exceptionalism' that won't allow us to see that our blundering about the world with guns blazing and oil pipelines pulsing (and leaking) actually has consequences, and they're rarely favorable to those who happen to be in the way, nor are they especially enhancing to our reputations or our honor or our safety.
      It's past time to stop using John Wayne as an example to emulate in our policy making, both here and abroad.

    •  It is documented that the releases gave (0+ / 0-)

      the names, locations and sect affiliations of thousands of Afghan families who had cooperated with US forces to the Taliban...who promptly announced that they would "investigate and try" these people and their families. We all know what that means.

      That's pretty ironclad aid of the enemy--and harm to our allies--if you ask me.

      Have a flagon and discuss the news of the day at the sign of the Green Dragon, or hear me roar on Twitter @MarkGreenFuture

      by Dracowyrm on Thu Jan 17, 2013 at 10:43:30 AM PST

      [ Parent ]

      •  Please back this up, because I've never seen (4+ / 0-)
        Recommended by:
        aliasalias, brasilaaron, lysias, NonnyO

        evidence of that accusation.  The only stuff I've heard about the leaks contradicts your statements.  From Wikipedia -

        Some, including Barack Obama and Hamid Karzai, raised concerns that the detailed logs had exposed the names of Afghan informants, thus endangering their lives.[51][52] Partially in response to this criticism, Wikileaks announced that it has sought the help of the Pentagon in reviewing a further 15,000 documents before releasing them. The Pentagon said it had not been contacted by Wikileaks.[53] However, blogger Glenn Greenwald presented evidence that the Pentagon had, in fact, been contacted, and that it had refused the request.[54]

        On 11 August, a spokesman for the Pentagon told the Washington Post that "We have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the WikiLeaks documents",[55] although the spokesman asserted "there is in all likelihood a lag between exposure of these documents and jeopardy in the field." On 17 August, the Associated Press reported that "so far there is no evidence that any Afghans named in the leaked documents as defectors or informants from the Taliban insurgency have been harmed in retaliation."[56]

        In October, the Pentagon concluded that the leak "did not disclose any sensitive intelligence sources or methods", and that furthermore "there has not been a single case of Afghans needing protection or to be moved because of the leak."[57] Both Wikileaks and Greenwald pointed to this report as clear evidence that the danger caused by the leak had been vastly overstated

        So where is it documented?
  •  "Knew or should have known". (12+ / 0-)

    That is what I heard in a radio report is what the military judge's ruling said.  The prosecution may well be able to satisfy a court martial jury that Manning should have known that he was revealing information to Al Qaeda, or whoever "the enemy" is.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Thu Jan 17, 2013 at 07:00:14 AM PST

    •  Yeah, this. (5+ / 0-)

      It seems like a really easy hurdle for the prosecution to clear.  Obviously, WikiLeaks planned on releasing the information to "everyone" which necessarily included Al Qaeda.

    •  it's an objective standard (2+ / 0-)
      Recommended by:
      johnny wurster, Simplify

      it it were purely a subjective standard, you'd never get a conviction absent a confession.

      Pretty standard criminal law thing, not exclusive to this alleged crime but anytime you are dealing with a specific intent crime, you are usually dealing with knew or should have known standard.

      General intent crimes are more about simply intending the act.

      Specific intent crimes are harder to prove, but it doesn't require mind-reading of the accused.

  •  but making is public IS providing it to the enemy (6+ / 0-)

    ... or at least this is the argument that I've heard made.

    Obviously this puts a massive chill on all whistle blowing, and is totally draconian. But so far a I understand, that is what the Espionage Act is being used to argue.

    I am basing this on an interview given by Julian Assange for Democracy Now, here: http://www.democracynow.org/...

    Obviously if I am making something public, I know that "the enemy" (whoever that may be) will also have access. So I am therefore knowingly making it (indirectly) available to the enemy.

    To prove I know this would only require the prosecutor to demonstrate that I know the definition of "public" (i.e. accessibly to everyone).

    •  should read: "making it public IS providing it..." (1+ / 0-)
      Recommended by:
      Don midwest
    •  Yes...because that's true. (1+ / 0-)
      Recommended by:
      sviscusi

      Whistleblowing only applies to criminality. Releasing hundreds of thousands of classified communiques is, indeed, providing them to the enemy, and only those which apply to lawbreaking constitute whistleblowing.

      Manning didn't even know what he had downloaded. He couldn't possibly have read it all, nor was he in a position to be able to judge the harm that releasing any given piece of information might do. He just gave it all to a guy who is openly hostile to the United States and has a radical and unreasonable theory that there should be no such thing as secrets.

      Manning is not a hero. Neither is Assange.

      Have a flagon and discuss the news of the day at the sign of the Green Dragon, or hear me roar on Twitter @MarkGreenFuture

      by Dracowyrm on Thu Jan 17, 2013 at 10:46:12 AM PST

      [ Parent ]

  •  The only way their case makes sense... (7+ / 0-)

    Is if you assume that we are engaged in a "Total War" against terror.

    Seeing as industry is not mobilized in that manner, and there is no clear and obvious censorship of media supporting said war...

    The assertion that Manning was providing information to the enemy requires that the specific enemy be identified, I would think.  A nebulous enemy like "Terrorists" seems to me to be rather...  vague.

    I don't blame Christians. I blame Stupid. Which sadly is a much more popular religion these days.

    by detroitmechworks on Thu Jan 17, 2013 at 07:17:20 AM PST

    •  I think the point is that Manning didn't care (4+ / 0-)
      Recommended by:
      johnny wurster, ballerina X, FG, Dracowyrm

      and indiscriminately released classified information (which he didn't fully evaluate) to a foreign national.

      •  So any time anyone releases "classified info" (15+ / 0-)

        are they aiding the enemy?  Shouldn't Bob Woodward and host of other reporters be in jail because they release classified info to the public, where Al Qaeda could probably read and evaluate it?  

        And if this is the case, couldn't the US Gov't just make everything classified as a way to prosecute people who tell secrets to the American public?  This is a very dangerous prosecution that threatens to set a very bad precedent for how the American people engage their government.  

        •  where they release damaging classified info, (2+ / 0-)
          Recommended by:
          FG, Dracowyrm

          the executive retains the right to prosecute. they're not obliged to, but they can.

        •  Well, Woodward and other reporters are not (2+ / 0-)
          Recommended by:
          Don midwest, elwior

          the ones who took classified material they had received via their security clearances and gave it to a third party.  There's a difference here--the media releases stuff and is protected by the 1st Amendment (see the Pentagon Papers case, NY Times v. US).

          However, the person giving the media the info is another story.  In fact, criminal charges were filed against Ellsburg for releasing the Pentagon Papers to the NY Times, but the government totally botched the case.

          A good summary of the penalties for releasing classified info can be found here:
          http://www.fas.org/...

          Further muddying the picture here is that Manning was a member of the US military at the time AND it might be a stretch to call Assange a member of the "media".  

          As a member of the military, Manning not only breached the classified disclosure laws, but can be court marshaled on a number of other issues (conduct, use of government resources, etc.).  

          I don't want to judge his actions, but can say that when he did what he did, he knew there would be severe penalties.    

          Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

          by dizzydean on Thu Jan 17, 2013 at 08:33:16 AM PST

          [ Parent ]

          •  I'm not saying Manning should escape punishment (5+ / 0-)

            I'm saying he shouldn't be prosecuted under the Espionage act.  I don't believe he had the requisite intent.  

            Its kind of a shame Manning has taken the limelight because I think the prosecution of John Kiriakou is much, much worse.  At the end of the day though, its all tied to the federal governments efforts to punish and scare anyone who may reveal what the government is really doing.  This isn't about providing aid to the enemy, its about people not embarrassing the U.S. gov't by revealing secrets.  

            I don't believe Manning should face 30 years in prison and possibly death (though that seems doubtful) for his crimes.  

            From your link -

            Generally, federal law prescribes a prison sentence of no more than a year and/or a $1,000 fine
            for officers and employees of the federal government who knowingly remove classified material
            without the authority to do so and with the intention of keeping that material at an unauthorized
            location.53 Stiffer penalties—fines of up to $10,000 and imprisonment for up to 10 years—attach
            when a federal employee transmits classified information to anyone that the employee has reason
            to believe is an agent of a foreign government.54 A fine and a 10-year prison term also await
            anyone, government employee or not, who publishes, makes available to an unauthorized person,
            or otherwise uses to the United States’ detriment classified information regarding the codes,
            cryptography, and communications intelligence utilized by the United States or a foreign
            government.55 Finally, the disclosure of classified information that discloses any information
            identifying a covert agent, when done intentionally by a person with authorized access to such
            identifying information, is punishable by imprisonment for up to 15 years.56 A similar disclosure
            by one who learns the identity of a covert agent as a result of having authorized access to
            classified information is punishable by not more than ten years’ imprisonment. Under the same
            provision, a person who undertakes a “pattern of activities intended to identify and expose covert
            agents” with reason to believe such activities would impair U.S. foreign intelligence activities,
            and who then discloses the identities uncovered as a result is subject to three years’ imprisonment,
            whether or not violator has access to classified information.57
            There is a big difference between 10 years in prison and a possible death sentence.  
            •  There is...I just read this UPI report (1+ / 0-)
              Recommended by:
              elwior

              from a few days ago:
              http://www.upi.com/...

              which indicates that prosecutors are not seeking the death penalty.  Also, Manning is up on 22 charges, the only one of which might involve the death penalty is the violation of the UCMJ 104 "aiding the enemy".  The UCMJ defines enemy as"

              Enemy. “Enemy” includes organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. “Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.
              That seems to be a stretch in this case, but perhaps the latter clauses on the "citizens of one belligerent" might apply.  

              Still, I think the most likely outcome, given the past history of these sorts of cases is a very significant imprisonment term--at least 25 years, given the amount of material released (see the Lonetree honey-trap case).

              That's not making a moral judgment of whether what he did was right or not.  Also, the DoD is not going to want to set an example of somebody doing something like this and not getting thoroughly punished, so I doubt the admin will step in either.

              Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

              by dizzydean on Thu Jan 17, 2013 at 09:36:59 AM PST

              [ Parent ]

              •  The jury in a court martial is free to impose (3+ / 0-)
                Recommended by:
                burlydee, elwior, aliasalias

                the death penalty for any crime that carries the death penalty as a possible punishment, whether or not the prosecution is seeking the death penalty.

                The influence of the [executive] has increased, is increasing, and ought to be diminished.

                by lysias on Thu Jan 17, 2013 at 10:56:51 AM PST

                [ Parent ]

                •  Given that the opposite usually happens (0+ / 0-)

                  I would not put too much behind that.  Of the 16 cases since 1984 that have led to the death penalty under UCMJ, 10 have been commuted.  The last execution by the military was in 1961.  There are only 6 individuals on military death row, all for killing Americans.

                  See http://www.theolympian.com/...

                  Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

                  by dizzydean on Thu Jan 17, 2013 at 12:28:16 PM PST

                  [ Parent ]

                  •  You're assuming a military jury made up of (1+ / 0-)
                    Recommended by:
                    aliasalias

                    officers (and maybe one very senior enlisted person) will not react irrationally to the inflammatory charges being made against Manning.

                    The influence of the [executive] has increased, is increasing, and ought to be diminished.

                    by lysias on Thu Jan 17, 2013 at 01:38:55 PM PST

                    [ Parent ]

                    •  Maybe, but then, if there is ever a group (0+ / 0-)

                      that respects precedent, it is military courts.  Sorry, but I think that the fear over Manning getting the death penalty is a red herring intended to stir up sentiment.

                      Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

                      by dizzydean on Thu Jan 17, 2013 at 01:47:24 PM PST

                      [ Parent ]

                      •  The fear that Manning feels over this possibility (0+ / 0-)

                        is no red herring.

                        The influence of the [executive] has increased, is increasing, and ought to be diminished.

                        by lysias on Thu Jan 17, 2013 at 01:59:40 PM PST

                        [ Parent ]

                        •  Bleah. Projection. (0+ / 0-)

                          Has there been any documentation of what he "feels"?  Granted, his pre-trial treatment has sucked and I can understand if he has been affected by that, but, please, let's not be silly.  

                          If you give a shit about peoples' feelings, then look at our prison system in general.  That 6x8 cell Manning had with a 23-1 lockdown is common practice in our max security prisons, but, oh yeah, they'll put another person in there with you.

                          Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

                          by dizzydean on Thu Jan 17, 2013 at 02:06:43 PM PST

                          [ Parent ]

          •  But that's not the point of the law (3+ / 0-)
            Recommended by:
            burlydee, elwior, aliasalias
            Well, Woodward and other reporters are not the ones who took classified material they had received via their security clearances and gave it to a third party.

            The law applies to "any person" (18 U.S.C. §793) who, for instance, possess

            copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense
            ". . . connected with the national defense."  
            This type of vague langauge is among the reasons why the Espionage Act is such an innapropriate vehicle for prosecuting anyone.  The Act is riddled with arbitrary and vague language throught its sections. These laws apply to Bob Woodward as much as they do Bradley Mannig or anyone who reads Dailykos.
            .
            There's a difference here--the media releases stuff and is protected by the 1st Amendment (see the Pentagon Papers case, NY Times v. US)
            The New York Times Case did NOT apply the first amendment to the Espionage Act, rather -IIRC- the issue was whether the government could BLOCK the publication of the papers. The issue was a restraining order, not a criminal prosecution.

            The NYT was never charged with, for example, possession of "material related with the national defense" and the court even noted that the Government could chose to prosecute the paper under the Espionage Act; however, the government could not restrain the publication of information in its possession through a civil injunction, which is a separate issue.  
            I do not believe any court has ever held that the first amendment is an affirmative defense to the Espionage Act.

            sláinte,
            cl
            -- Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

            by Caoimhin Laochdha on Thu Jan 17, 2013 at 09:16:12 AM PST

            [ Parent ]

            •  Read William O. Douglas's concurring opinion (1+ / 0-)
              Recommended by:
              elwior

              http://supreme.justia.com/...

               While this was a civil case, Douglas makes it clear that the Espionage Act, which was invoked by the government, should not have applied on 1st Amendment grounds.

              Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

              by dizzydean on Thu Jan 17, 2013 at 09:57:32 AM PST

              [ Parent ]

            •  Pentagon Papers was a HISTORY, not active (0+ / 0-)

              operational military and diplomatic documents, as were the docs leaked by Manning.

              The Pentagon Papers was an internal study of US involvement in Southeast Asia. What made it a bombshell was that it documented that a series of administrations knew that their policies were failing, but they just kept throwing more money and American lives into the hole.

              This is a totally different situation. Ellsberg knew what he was leaking, and it wasn't current tactically sensitive information. Manning DIDN'T know what he was leaking, and it WAS.

              Have a flagon and discuss the news of the day at the sign of the Green Dragon, or hear me roar on Twitter @MarkGreenFuture

              by Dracowyrm on Thu Jan 17, 2013 at 10:50:28 AM PST

              [ Parent ]

              •  What current tactically sensitive information (0+ / 0-)

                did Manning reveal?

                (When I was in military intelligence, it was constantly emphasized to us how important it was that timely information be provided as quickly as possible to the commanders, that military information quickly loses all tactical value.)

                The influence of the [executive] has increased, is increasing, and ought to be diminished.

                by lysias on Thu Jan 17, 2013 at 01:56:33 PM PST

                [ Parent ]

          •  Manning has not been "found" to have done anything (5+ / 0-)

            When you say

            Manning not only breached the classified disclosure laws
            , you, like Obama, are pronouncing him guilty before trial, reversing the usual presumption of innocence to which every citizen in this country is entitled.

            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 17, 2013 at 09:25:01 AM PST

            [ Parent ]

            •  He's "accepted responsibility" (2+ / 0-)
              Recommended by:
              Dracowyrm, elwior

              In other words, he has admitted to the action.  Now what the action will entail in terms of what he is found guilty of or sentenced to is another story.

              Given the info we already know, I think my statement is fine.  Manning did admit to releasing the material, but is not pleading guilty.

              Bradley Manning’s lawyer David Coombs has clarified in a statement that Manning “is not pleading guilty to the specifications as charged by the Government.  Rather, PFC Manning is attempting to accept responsibility for offenses that are encapsulated within, or are a subset of, the charged offenses.”
              He may not be found guilty (and I hope he is not) of the Espionage Act charges, but it appears as if he clearly violated the UCMJ on a number of issues and will be punished for that.

              Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

              by dizzydean on Thu Jan 17, 2013 at 09:45:59 AM PST

              [ Parent ]

              •  For the crimes that it's clear he committed (1+ / 0-)
                Recommended by:
                elwior

                under the UCMJ, the punishment would almost certainly be less than the time that he has already served.

                The influence of the [executive] has increased, is increasing, and ought to be diminished.

                by lysias on Thu Jan 17, 2013 at 10:54:23 AM PST

                [ Parent ]

                •  I disagree on the time served (0+ / 0-)

                  Bear in mind he disclosed hundreds of thousands of pages of docs.

                  Here are a fewpossible comparisons:

                  United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995).  The accused was convicted by a military judge of attempted conspiracy to commit espionage, attempted violation of a general order, disobedience of a general order (4 specifications), attempted espionage (2 specifications), wrongful use of marijuana, wrongful possession of marijuana, adultery, as well as violating federal laws relating to defense information (4 specifications)   and to mailing prohibited matters, in violation of Articles 80, 92, 106a, 112a, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 892, 906a, 912a, and 934, respectively. The convening authority approved the sentence of a dishonorable discharge, 15 years’ confinement, total forfeitures, and reduction to the lowest enlisted grade.
                  United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992).  Lonetree was a member of the Marine Security Guard Detachment at the U.S. Embassy in Moscow.  He met Soviet agent Violetta Seina in a subway station. He began a romantic liaison with Seina and eventually passed confidential information to a Soviet agent named Yefimov (a.k.a. “Uncle Sasha”). Ignorant of his activities, the Marine Corps transferred Lonetree to guard duty at the U.S. Embassy in Vienna, where he continued his contact with the Soviets through an agent named Lyssov (a.k.a. “George”). His double life came to an end on December 14, 1986, when, in the first of a series of meetings with two Vienna-station U.S. intelligence agents known as “Big John” and “Little John” (“the Johns”), Lonetree disclosed his involvement with the Soviet agents.  Appellant was court-martialed and found guilty of conspiracy to commit espionage, disobeying Navy security regulations, disclosing the identities of covert agents, willfully communicating information in violation of the Federal Espionage Act, and committing espionage, and sentenced to 25 years’ confinement.
                  United States v. Kaufmann,14 U.S.C.M.A. 28, 34 C.M.R. 63 (1963).  An Air Force O-3 case.  A captain of the Air Force stands convicted of having conspired with secret service agents of the so-called East German Democratic Republic to deliver to them national defense information relating to the United States, of agreeing to act as an agent of the East German Secret Service, and of violation of a general regulation by failing to report attempts by Russian and East German agents to induce him to reveal security information contrary to the best interests of the United States.  10 years imprisonment.

                  Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

                  by dizzydean on Thu Jan 17, 2013 at 12:05:36 PM PST

                  [ Parent ]

                  •  All those documents are classified no higher (1+ / 0-)
                    Recommended by:
                    aliasalias

                    than Secret (and many are not classified at all).  Anybody who has dealt with classified material (as I did for many years in military intelligence) knows that anything whose revelation might do serious harm to the U.S. is classified Top Secret or higher.

                    The influence of the [executive] has increased, is increasing, and ought to be diminished.

                    by lysias on Thu Jan 17, 2013 at 01:41:38 PM PST

                    [ Parent ]

                    •  I've dealt with classified materials also (0+ / 0-)

                      and, while there might not have been anything greater than "secret", the sheer amount of materials is the issue here.  Can you imagine the orgasm an East German or Soviet spy would have had over getting this much stuff?

                      Expect a sentence like that in the Anzalone case.  Perhaps reduced on appeal.

                      Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

                      by dizzydean on Thu Jan 17, 2013 at 01:52:03 PM PST

                      [ Parent ]

        •  A closer analogy would be the Pentagon Papers. (2+ / 0-)
          Recommended by:
          aliasalias, lysias

           Although Daniel Ellsberg had the advantage of being more of a big-shot than Pvt. Manning is, with better connections and so on.
            Also, Nixon's guys got caught trying to screw with him. And in those days there was no Wikileaks, just the good old NY Times that he gave the stuff to.
             But the case against Ellsberg was tossed, as well it should have been, and the Nation was better informed by his "leaks."

          "We the People of the United States...." -U.S. Constitution

          by elwior on Thu Jan 17, 2013 at 12:12:39 PM PST

          [ Parent ]

      •  The massive amount of information (2+ / 0-)

        released works against Manning in that it raises questions as to how much consideration he could have given each of the released documents as to its impacts on US security.  This troubles many whistleblowers as well as government officials. But, until Mannning has an opportunity to provide a full defense in court, judgement should be withheld.

        •  By revealing the information, he broke the law. (6+ / 0-)

          That is pretty clear.  But the question is how draconian should his punishment be.  The "aiding the enemy" charge is not only wildly disproportionate, it threatens the liberties of all of us and the very nature of democracy.

          When I was in military intelligence, I would have expected to face a couple of years in military prison for doing what Manning did.

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Thu Jan 17, 2013 at 08:21:54 AM PST

          [ Parent ]

          •  I think you've oversimplified the issues (1+ / 0-)
            Recommended by:
            elwior

            But, neither am I disputing the possibility that some punishment would be appropriate. I agree that the "aiding the enemy charge" looks overly aggressive--like many charges filed against government whistleblowers.  

        •  Manning's lawyer intends to introduce that he did (5+ / 0-)

          select what information to make public and took national security implications into consideration.

          As has been reported publicly, he had access to much higher level information than he released.

          The info he released was classified at a low level and some of it--like the most damning piece of evidence (the Apache helicopter video) was unclassified.

          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 17, 2013 at 09:21:14 AM PST

          [ Parent ]

      •  That's contradicted by what Manning's attorneys (2+ / 0-)
        Recommended by:
        elwior, aliasalias

        want to put into evidence.

        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 17, 2013 at 09:26:55 AM PST

        [ Parent ]

  •  I'm glad YOU think the govt must blah blah blah... (8+ / 0-)

    ... unfortunately, no one has told the government it must prove X Y and Z.

    They seem to think they don't have to prove anything, or even hold honest legitimate hearings and a real trial.

    As a citizen, I'm satisfied with time served, assuming the worst of Bradley. Let him go.

    Too bad the virulence of the government's actions aren't aimed at people like real war criminals, such as Cheney, Yoo, Bybee, Addington, Gonzolas, etc, etc.

  •  So his only hope, really, is proving (2+ / 0-)
    Recommended by:
    sviscusi, elwior

    that he's the small-time loser dude as presented in other venues?  That could work.  Making him a heroic whistle- blower puts him at risk, then. Let's hope his attorneys see the problems here, for his sake.  Military brigs are notorious for being really lousy places to spend time.

    I'm not looking for a love that will lift me up and carry me away. A love that will stroll alongside and make a few amusing comments will suffice.

    by I love OCD on Thu Jan 17, 2013 at 08:43:58 AM PST

    •  Yes, the judge already held that during his time (5+ / 0-)

      in the Quantico brig, Manning was subjected to unlawful pretrial punishment, which included prolonged solitary confinement, stress positions, sensory deprivation, sleep deprivation, forced nudity, and humiliation techniques.

      The whistleblower angle--Manning disclosed these documents in the public interest to spark debate--has served Manning well far more than it has hurt him.

      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 17, 2013 at 09:18:07 AM PST

      [ Parent ]

      •  Did he not know it would be hell? My (0+ / 0-)

        brother knew brig time was hellish, I suspect every soldier knows that.  He knew he'd be in a shitload of trouble and decided to pay the price for exercising a moral conviction, he was pissed at the Army and decided to get even, or he was ignorant of the consequences of his actions and seduced by fame.  Which is it?  how do we know which it is?  If I run a red light and cause a fatal accident do I avoid consequences if I'm claiming it's tyranny to regulate my driving?  Where does this end?  Which laws are OK to ignore?  

        Is there no other option?   Do you have the expertise to understand International diplomacy in the age of AQ?  I don't.  I vote for someone I believe will tread the best path and hope he's smart enough to do it well.  I'm not willing to return to the naïveté Americans had prior to 9/11.

        I'm not looking for a love that will lift me up and carry me away. A love that will stroll alongside and make a few amusing comments will suffice.

        by I love OCD on Thu Jan 17, 2013 at 03:55:30 PM PST

        [ Parent ]

  •  The way I think about it goes a little like this.. (2+ / 0-)
    Recommended by:
    dizzydean, Dracowyrm

    He had to know that this information, disseminated broadly to the public, would reach hostile governments and non-government organizations.

    You can moralize about whether the secrets should have been released, but he'd have to be real naive to believe they would not reach our enemies.  I mean, its not as if al-Qaeda or China, or any other potential enemies of ours lack an internet connection.  It's a simple logical link.

    Simple question: In the years since Republicans successfully urged the disempowering of workers and unions in the Midwest, what has happened to those states economies?

    by Stephen Daugherty on Thu Jan 17, 2013 at 09:00:01 AM PST

    •  So, what secret information did he leak to them? (4+ / 0-)
      Recommended by:
      lysias, burlydee, elwior, aliasalias

      The most memorable bit was the secret that we were using an attack helicopter to shoot at possible militants, and people who came to rescue those wounded, and the little girls that were in the van with them.

      I think they already knew that.

      When banjos are outlawed, only outlaws will have banjos.

      by Bisbonian on Thu Jan 17, 2013 at 09:14:15 AM PST

      [ Parent ]

      •  I think more or less everything he put out there.. (0+ / 0-)

        ...was classified.

        Really, my biggest beef with him is that instead of revealing selective bits, and being careful only to reveal what wouldn't put people's lifes in danger, he knowingly released the whole thing without a damn bit of filtering.

        He didn't take any care at all, which in my mind is as bad as intentionally choosing specific information and deliberately putting that out.

        Simple question: In the years since Republicans successfully urged the disempowering of workers and unions in the Midwest, what has happened to those states economies?

        by Stephen Daugherty on Thu Jan 17, 2013 at 09:20:57 AM PST

        [ Parent ]

      •  No. Cables contained names, locations, affiliation (0+ / 0-)

        of thousands of Afghans who had cooperated with US forces. The Taliban promptly announced that it would "investigate and try" the people and their families. Guess we know what that means.

        If you don't think having your in-country collaborating partners outed to the enemy doesn't constitute a significant leak, I don't know what you would consider significant.

        Also, the diplomatic cables released led to serious breakdowns with the Afghan and Pakistani governments, because diplomats are candid in private communications, and that isn't always very complimentary to foreign leaders.

        You cannot operate militarily or diplomatically without being able to keep some things secret. It's impossible. I suspect that many of Manning's most ardent supporters think that's a good thing: they like what Manning did because they like anything that throws a spanner into US military activity...even if it endangers people's lives, and undermines diplomacy.

        Have a flagon and discuss the news of the day at the sign of the Green Dragon, or hear me roar on Twitter @MarkGreenFuture

        by Dracowyrm on Thu Jan 17, 2013 at 10:57:42 AM PST

        [ Parent ]

        •  The unflattering cables were stupid... (0+ / 0-)

          ...not on Manning's part, but on the part of those that sent them in the first place.  Not very diplomatic, so to speak.

          Anyone that points out lies and hypocrisy gets kudos in my book, but certainly not at the expense of anyone's lives.  I've heard over and over again that no ones life was endangered by the things he released (even though theoretically possible)...is there evidence to the contrary?

          When banjos are outlawed, only outlaws will have banjos.

          by Bisbonian on Thu Jan 17, 2013 at 03:48:01 PM PST

          [ Parent ]

    •  Under that standard, the New York Times is just (5+ / 0-)

      as guilty because it reprinted WikiLeaks information and copies of the newspaper were also found among bin Laden's possessions.

      It is such an overly-broad standard: whether bin Laden had it or not, or had ever looked at it.  

      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 17, 2013 at 09:15:10 AM PST

      [ Parent ]

      •  Can you really present to me... (2+ / 0-)
        Recommended by:
        Dracowyrm, sviscusi

        ...a logical case as to how he could reasonablly believe that this information wouldn't reach them once he released it?

        By such logic, if I had a database of missile launch codes or something else, and I just dumped them on the internet, I would never suffer punishment.

        In the name of glorifying whistleblowers, I see people here glorifying a man whose actions cannot be justified without calling into question any ability this country has to keep vital national security secrets to itself.

        I don't mind people who reveal things like that NSA spying program.  That was specific.  Even the Pentagon Papers mainly had to do with one subject.

        This?  This is somebody just doing a data dump, which he couldn't possibly remove all the information that shouldn't be revealed from.

        This doesn't feel like something we should encourage.

        Simple question: In the years since Republicans successfully urged the disempowering of workers and unions in the Midwest, what has happened to those states economies?

        by Stephen Daugherty on Thu Jan 17, 2013 at 09:38:05 AM PST

        [ Parent ]

    •  We're not at war with China. (1+ / 0-)
      Recommended by:
      aliasalias

      China is not an enemy.  Not now, at any rate.

      You'd expand "aiding the enemy" to apply to any "potential enemy"?  Every country is a potential enemy.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Thu Jan 17, 2013 at 09:20:07 AM PST

      [ Parent ]

      •  So you consider China a traditional friend? (0+ / 0-)

        Simple question: In the years since Republicans successfully urged the disempowering of workers and unions in the Midwest, what has happened to those states economies?

        by Stephen Daugherty on Thu Jan 17, 2013 at 10:34:02 AM PST

        [ Parent ]

        •  What difference does that make? (1+ / 0-)
          Recommended by:
          burlydee

          It's not an enemy.

          Plus, it was a quasi-ally of the U.S. for the second half of the Cold War (as well as being an ally of the U.S. in the 1940's before the Communist takeover).

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Thu Jan 17, 2013 at 10:46:07 AM PST

          [ Parent ]

          •  You're just splitting hairs here. (0+ / 0-)

            If it's out on the internet, behind no encryption, no safeguards whatsoever, even if China isn't our enemy, what about Iran?

            You're not asking a critical question here, because you're starting from a political impulse here, rather than working out the process question.  Is it possible for one man to review so many documents?  Is it at all possible that the man could not conceive of the information he was disbursing getting to our enemies?

            He acted in reckless disregard for the consequences of his actions.

            Simple question: In the years since Republicans successfully urged the disempowering of workers and unions in the Midwest, what has happened to those states economies?

            by Stephen Daugherty on Thu Jan 17, 2013 at 11:09:33 AM PST

            [ Parent ]

            •  As someone who handled highly classified (0+ / 0-)

              documents for many years in the U.S. military, it is my opinion that the whole system of classification (if you except the few things that really should be classified -- military plans and troop movements, codes and cyphers, intelligence information) does the country more harm than good.  We would be better off if it were all (except for the exceptions I named) made public.

              The influence of the [executive] has increased, is increasing, and ought to be diminished.

              by lysias on Thu Jan 17, 2013 at 01:45:31 PM PST

              [ Parent ]

  •   I think he did not aid nobody (1+ / 0-)
    Recommended by:
    Don midwest

    Maybe showed poor judgement in his leak of the information,just like that founder of Reddit who commited suicide while under  Federal indictment,

  •  "none of which can be viewed" (0+ / 0-)

    That is the real scandal: thought sunlight was the best disinfectant?

  •  Every single law wriiten since 2001... (2+ / 0-)
    Recommended by:
    yoduuuh do or do not, aliasalias

    regarding national security, including the "Partriot" Act (which has essentially redefined prosecutorial discretion in this country) has intentionally been written with ambiguity in order for the government to interpret those laws as they see fit... when they see fit.

    "That men do not learn very much from the lessons of history is the most important of all the lessons of history." ~ Aldous Huxley

    by markthshark on Thu Jan 17, 2013 at 09:21:38 AM PST

  •  They've made their point. (1+ / 0-)
    Recommended by:
    aliasalias

    I doubt there will be any more soldiers blowing the whistle on the US government/military. It’s not like anything Manning could have done would have really ‘helped the enemy’ anyway. It’s nonsense and everybody knows it. They’ve made their point, they’ve effectively gagged the troops. The government should stop this transparent nonsense and release Manning.

  •  Uh, I've had a security clearance (3+ / 0-)
    Recommended by:
    dizzydean, Dracowyrm, sviscusi

    and read the relevant statues, and making classified information available to the uncleared is always a crime.

    Economics is a social *science*. Can we base future economic decisions on math?

    by blue aardvark on Thu Jan 17, 2013 at 09:38:36 AM PST

    •  Yep. (2+ / 0-)
      Recommended by:
      blue aardvark, dizzydean

      People seem to think this is some kind of game. Releasing this kind of information isn't the equivalent of tattling in high school. Lives and major world events hang in the balance.

      Ask any of the Afghan families who have been targeted by the Taliban because their names came up in the Afghan War Logs how they feel about the people who released their names, and my guess is they don't think it's quite so cute.

      Have a flagon and discuss the news of the day at the sign of the Green Dragon, or hear me roar on Twitter @MarkGreenFuture

      by Dracowyrm on Thu Jan 17, 2013 at 11:06:05 AM PST

      [ Parent ]

    •  AND you took an oath (3+ / 0-)
      Recommended by:
      lysias, aliasalias, blue aardvark

      to support and defend the U.S. Constitution. Federal employees takes this oath before any other:

      I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

      5 U.S.C. §3331

      Notice that one's loyalty is to the Constitution, not the government, because the government is legitimate only to the extent that it adheres to the Constitution.

      It is illegal to disclose classified information to unauthorized persons. But, it's also a crime to deny the public the protections and guarantees of the U.S. Constitution?  Which responsibility has precedence?

      The Constitution is the law from which all other legal authorities flow. The oath to support and defend the Constitution precedes any other commitment federal employees make. Clearly, the civil service oath takes precedence over all other oaths and commitments--including secrecy agreements.

      It therefore matters very much why Bradley Manning disclosed information entrusted to him. If that information was classified illegitimately, he has committed no crime.

      •  My clearance was via a private employer (0+ / 0-)

        As to Manning, the sheer volume of the released material means he had no opportunity to reveal all of it. If someone had mistakenly placed nuclear launch codes in that material, he'd have revealed them.

        Economics is a social *science*. Can we base future economic decisions on math?

        by blue aardvark on Thu Jan 17, 2013 at 02:00:33 PM PST

        [ Parent ]

  •  Free Manning! (1+ / 0-)
    Recommended by:
    aliasalias

    We need more of him.

    "Love One Another" ~ George Harrison

    by Damnit Janet on Thu Jan 17, 2013 at 10:29:27 AM PST

  •  Sooooooooooo..., (0+ / 0-)

    Who's the enemy?

    US citizens who should be kept fully informed about what their government is doing...?

    OBL was only the delusional and fanatical leader of a little gang of criminals, not the leader of any nation, and not an international wheeler & dealer, fer cryin' out loud.

    I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

    by NonnyO on Thu Jan 17, 2013 at 09:03:15 PM PST

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