By Christopher B. Daly
Among the many public services rendered by the New York Times, one is the coverage of the “Wikileaks case” being prosecuted in a U.S. court martial against Pfc. Bradley Manning. The case is taking place at Fort Meade, Maryland, which is about midway between Washington and Baltimore. That means that New York Times reporter Charlie Savage (formerly of the Boston Globe) has to
schlep out there every day when hearings are held and submit to all the rigamarole of entering a U.S. military base and the extra challenges of covering a court martial.
Because Savage is there and because he is well-versed in the law of the case, Savage is alert to the meaning of a lot of the pre-trial maneuvering. In today’s story, he informs us that Bradley caught a rare break this week: the judge ruled that the government will have a higher burden of proof than had originally been thought. The issue involves some arcane provisions of the Espionage Act of 1917 (as amended), but the judge’s ruling on the burden of proof goes right to the heart of the case. Put simply, it comes down to this:
When Private Manning leaked all those secret files to WikiLeaks (and he has already admitted doing so), did he have an intent to harm the United States? Did he have a “reason to believe” that the leaks would help a foreign enemy of the U.S.? And can the government prove that he had such a state of mind?
That really tips the balance in the defendant’s favor, because one can imagine a whole host of intentions that a leaker could plausibly have that would fall short of the “aiding the enemy” standard. Like Daniel Ellsberg — the leaker in the Pentagon Papers case — Manning could have been acting with an intent of changing U.S. war policy, or simply hastening an end to a war he considered unjust.
The government side, including military lawyers, had wished to proceed to trial under a different set of rules. Here’s how Savage paraphrased the government’s position:
A military legal spokesman argued that the decision may make little difference because the judge previously ruled that Private Manning’s motive — whether he thought of himself as trying to help society — was irrelevant to whether he intentionally broke the law. The fact that many of the documents were classified, he said, was a reason for Private Manning to believe that their disclosure could cause harm.
In other words, the classification system is always correct and any violation of its rules is, on its face, a crime. That, of course, is an invitation to those in power to cover their asses in perpetuity by classifying any information that they don’t want to see the light of day. In that case, we would never learn any of the disclosures that came to light through the Pentagon Papers or Wikileaks. We, as citizens, could not even debate whether our elected officials are doing a good job, because we would have no evidence to work with.
It’s not an overstatement to say that, no matter what happens to Manning in the end and no matter how we feel about the wisdom of the war in Iraq, we should all thank the Times for looking out for the rights of all of us.
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Savage’s story also gives us a glimpse of the conditions under which the reporters covering the trial have to work:
Military authorities, meanwhile, said that while court was in session they would ban cellphones and air cards and turn off the wireless Internet in a media center where reporters and activist bloggers watch a closed-circuit feed from the courtroom. The steps were a response to the release on the Internet by the Freedom of the Press Foundation of a bootleg recording of Private Manning’s statement in February. Colonel Lind emphasized that recordings were not allowed at any court-martial proceeding.
“To date I have not ordered persons to be screened for phones and recording devices,” she said. “I hope I won’t have to. I trust you will all follow the rules and we will not have any additional violations of the court’s rules.”