The Obama Administration's Unhealthy Obsession with Whistleblowers

Yesterday saw a mixed verdict delivered to Bradley Manning, who was charged with various crimes under the Espionage Act for leaking classified materials to WikiLeaks. Colonel Denise Lind, who presided over the court-martial, acquitted Manning of the most serious charge brought against him while finding him guilty on 20 of the 21 lesser charges. Lind's ruling is at least a partial victory, acting as a partial break of the Obama administration's overreaching war on whistleblowers. But many aspects of the case remain disturbing.

It is notable and welcome that the government could not convince Lind that Manning was guilty of aiding the enemy under the Espionage Act. Since this charge rested on the theory that releasing any information the government would rather keep quiet is "aiding the enemy" by definition, the dangers of convicting Manning can hardly be overstated. The idea that transparency aids the enemy is the same theory behind prosecuting newspapers for publishing the Pentagon Papers. The dismissal of these unprecedented charges is an important victory against overbroad contstructions of the Espionage Act.

The belief that the soldier was not merely guilty of illegal leaks, but also a traitor, was presumably the reason for his gratuitously cruel treatment. This treatment should be remembered and cannot be defended whatever one thinks of the merits of the charges against Manning.

Lind was wise not to allow the government to proceed down the road of making some leakers into enemies of the state by definition. Whether this victory will remain hollow for Manning remains to be seen. Lind retains very broad discretion in sentencing Manning on the remaining charges—there is no minimum and the top theoretical range would exceed Manning's remaining natural life. A sentence of more than a few years would have an effect nearly indistinguishable from convicting Manning for aiding the enemy—the message to future whistleblowers would be chilling indeed. 

The question of whether the charges were wise or appropriate in the first place is also less than settled. As Glenn Greenwald observed on CNN last night, leaks are the basis of investigative journalism, and are thus prosecuted very selectively. Absent evidence of concrete harm, it's hard to justify the prosecution of a whistleblower like Manning. The harsh prosecution of Manning is particularly hard to justify in light of the other priorities of the administration. Torture clearly violates federal law, and is a much more serious offense than leaking information—it harms the security interests and reputation of the United States to boot. Nonetheless, torture has gone systematically unprosecuted. It's very hard to square Bradley Manning facing decades in prison while the people who designed and implemented torture policies under the Bush administration walk free.

Hopefully the same good judgment that Ortiz showed in acquitting Manning of aiding the enemy will also be displayed by imposing a relatively light sentence. Manning has already spent more time in prison—some of it under conditions far more harsh than can possibly be defended—than his conduct warrants.

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