Ben Wizner is the director of A.C.L.U.’s Speech, Privacy and Technology Project.
UPDATED AUGUST 1, 2013, 10:39 AM
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.
Prosecutors may have hoped to establish the dangerous precedent that leaks to the press could be equated with ‘aiding the enemy.’
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.”