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3Qs: Naïve whistleblower or ‘high-tech terrorist’?

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A military judge found U.S. Army Pfc. Bradley Manning not guilty Tuesday of aiding the enemy but convicted him of espionage, theft, and computer fraud for orchestrating the largest leak of classified material in American history. Manning admitted to giving Wikileaks hundreds of thousands of diplomatic cables and battlefield reports from Afghanistan and Iraq, where he was stationed as an intelligence analyst in 2010. His sentencing hearing is scheduled to begin Wednesday. We asked Michael Meltsner, a former civil rights lawyer and the George J. and Kathleen Waters Matthews Distinguished University Professor in the School of Law, to discuss the verdict.

“I want people to see the truth,” Manning has said, “because without information you cannot make informed decisions as a public.” Do you think his potential sentence will have a chilling effect on whistleblowers, some of whom may be afraid to step forward in fear of severe reprisal?

Even though Manning was acquitted of the most serious charge, the government strenuously argued that he aided the enemy rather than sticking to more conventional charges, some of which Manning pled guilty to. This gives us an indication of how seriously the armed services and the national security community take disclosure of classified information and what they regard as state secrets. When one factors in the hard line the Obama administration has taken toward Edward Snowden and Julian Assange, it’s obvious that anyone trying to repeat something like Manning’s document dump will be courting personal disaster.

On the one hand, some pundits have proclaimed that whistleblowers like Manning represent the “new generation of American Patriots.” On the other hand, the government has argued that Manning’s actions align with those of a “high-tech terrorist.” What’s your take?

Unfortunately for Manning, the criminal law has no “public interest” defense. It’s plain he violated certain disclosure laws. The law governing espionage is more complicated and has a checkered history, but we’ll have to see what sort of an appeal his lawyers mount to his conviction. It’s clear that the government resists accountability by stamping “secret” on far more documents than deserve it and that we will have a far better democracy when we confront the need for a more astute balance between secrecy and openness.

On the other hand, it’s a dangerous world and an effective government, and certainly military, can’t always look like a New England town meeting of old. Still I’m troubled by the prosecution’s demonizing tactics and self-righteousness. Manning might be an idealistic fool but he isn’t the devil. Some of what he exposed was rank incompetence. And of course the greatest leakers of all are Washington elected officials and their staffs.

Manning requested a military judge, rather than a jury, to hear his case. Why do you think he made that decision and how do you think it affected the case’s outcome?

His lawyers must have decided that he had a better chance for leniency before a judge, who presumably would apply the law dispassionately, than before officers who might have no legal training and perhaps be more subject to the opinions of their peers in the Armed Services.

If I were defending Manning, the last person I would want on a jury is an officer who felt his actions or those of his troops could have been subjected to public scrutiny by virtue of the release of confidential documents. But there is no way one can know whether the choice of judge or jury affects the outcome of a particular case, though in this one I would think not.