Yochai Benkler had a great article in the New Statesman back in March about “The Dangerous Logic of the Bradley Manning Case”. Specifically, he was talking about the danger of a guilty verdict on the charge of aiding and abetting the enemy. In a nutshell, the danger was this:
The judge, Col. Denise Lind, asked the prosecutors a brief but revealing question: Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times? The prosecutor’s answer was simple: “Yes Ma’am.”
Now that Manning beat that charge, we seem to be off that hook. But still, I find intolerable the idea that a courageous man is now going to jail for performing a public service of simply mindblowing proportions, basically opening up the machinations and violent actions of the most powerful country on the planet to public scrutiny, both for its own population and the international community. The Obama administration has, as people like Glenn Greenwald have been covering extensively, engaged in a war on whistleblowers. It’s worth it, in that context, to take a moment to consider what the charge of aiding and abetting the enemy would have meant, in that campaign. And what cost would be brought to bear on democracy if the verdict had been guilty.
The past few years have seen a lot of attention to the Obama Administration’s war on whistleblowing. In the first move, the Administration revived the World War I Espionage Act, an Act whose infamous origins included a 10-year prison term for a movie director who made a movie that showed British soldiers killing women and children during the Revolutionary War and was therefore thought to undermine our wartime alliance with Britain, and was used to jail Eugene V. Debs and other politicalactivists. Barack Obama’s Department of Justice has brought more Espionage Act prosecutions for leaks to the press than all prior administrations combined since then, using the law as what the New York Times called an “ad hoc Official Secrets Act.”
If Bradley Manning is convicted of aiding the enemy, the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers. The consequences for the ability of the press to perform its critical watchdog function in the national security arena will be dire. And then there is the principle of the thing. However technically defensible on the language of the statute, and however well-intentioned the individual prosecutors in this case may be, we have to look at ourselves in the mirror of this case and ask: Are we the America of Japanese Internment and Joseph McCarthy, or are we the America of Ida Tarbell and the Pentagon Papers? What kind of country makes communicating with the press for publication to the American public a death-eligible offense? What a coup for Al Qaeda, to have maimed our constitutional spirit to the point where we might become that nation.
There are not a lot of ways left to aid and abet Bradley Manning now. He’s apparently in jail for the duration, unless some future president should pardon him. He has paid a high price for his public-mindedness. The only thing to do is to keep on working in his spirit to create a freer, fairer society, with more accountability for power and violence. And to hate and put down the cynical part of our discourse or ourselves that insists on thinking that last sentence was naive, juvenile or pretentious.