Author Topic: Legal Errors in Wall Street Journal's Dangerous Manning Article  (Read 1540 times)

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Offline Riney

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Legal Errors in Wall Street Journal's Dangerous Manning Article
MON MAR 18, 2013 AT 07:25 AM PDT
by Jesselyn Radack

The Wall Street Journal has an article about Bradley Manning that is self-serving and dangerously wrong on the facts and law--including the assertion that he aided the enemy.

Trevor Timm of the Freedom of the Press Foundation has written an amazing article on the factual mistakes. I will talk about the mistakes of law.

The Wall Street Journal (WSJ) is correct on one thing: Manning is facing a charge that he

knowingly [gave] intelligence to the enemy, though indirect means.
However, instead of dissecting the dangerous legal reasoning proffered to support this charge, journalist L. Gordon Crovitz just adds numerous factual and legal errors to the mix, among them that Manning didn't reveal crimes and WikiLeaks didn't vet the information it released.
I'm focusing on Crovitz's legal errors because I am a lawyer representing whistleblowers charged under the Espionage Act.

Crovitz says:

The key element of this espionage charge is intent: Did Pfc. Manning mean to give intelligence to the enemy?
First, Crovitz's reference to "this espionage charge" refers incorrectly to his preceding paragraph about the "aiding the enemy" charge. Manning is charged with both, and they are two separate charges with different burdens of proof.
Second, the key element of the Espionage charge is whether Manning improperly retained or disclosed national defense information. Judge T.S. Ellis III, in his own words, grafted on the intent requirement in the AIPAC case in order to keep this vague and ambiguous statute constitutional.

Third, if Crovitz had been following the Manning proceedings, he would know that Judge Lind already ruled that the defense will not be allowed to discuss Manning's good-faith intent or motive at trial (sorry I can't post the decision because most transcripts, motions and rulings are not public).

Fourth, Crovitz mistakenly relies on Manning's plea to try to show something akin to actual malice (not an element), apparently not realizing that the plea served precisely the purpose of showing Manning's good intent--because such evidence will not be allowed at trial as per the above-referenced ruling.

Fifth, in Crovitz's singular interpretation of Manning's plea (even Manning critics found it to show good faith) he argues that

Manning describes himself as a whistleblower, but doesn't explain what he was blowing the whistle on
evidencing his complete misunderstanding of whistleblower law. One becomes a whistleblower through operation of law, by disclosing information he or she reasonably believes evidences fraud, waste, abuse, and/or illegality. While Crovitz conclusively states that, "[t]he documents didn't disclose government wrongdoing," he is either deliberately omitting the "Collateral Murder" video, which shows clear war crimes, or he has not seen it.  I cannot find a single article on the Internet that says the video didn't show numerous violations of law (even though none of the Apache helicopter crew has faced charges for mowing down innocent civilians as if they were playing Call of Duty.)
Sixth, Crovitz again states conclusively that

WikiLeaks posted unedited diplomatic and intelligence cables that identified by name Iraqis, Afghans and others who were helping the U.S. war effort.
Timm already dissects the numerous factual inaccuracies with this sentence.  Legally, however, it is important to note that the prosecution has argued, tellingly, that they don't have to show harm and have strenuously withheld the damages assessments.
Seventh, and perhaps most troubling, is Crovitz's statement that

uilding a case that Pfc. Manning knowingly gave intelligence to the enemy seems open and shut.
This conclusion risks setting a dangerous precedent because it essentially means that the New York Times could be held responsible if intelligence reported in its articles is found in the possession of an alleged terrorist. 
Eighth, Crovitz attempts to establish a difference between WikiLeaks and journalists. 

One reason federal prosecutors rarely charge news publishers under the espionage laws is that prosecutors understand that news organizations are different from spies.  No one expects charges against the New York Times or any other news outlet that used the WikiLeaks documents.
But the prosecution has already made it clear that it considers WikiLeaks and the New York Times to be factually the same, and that they would have charged Manning even if he had shared the information with the mainstream media.  And considering that the government appears to have few reservations about prosecuting whistleblowers under laws intended to go after spies, it seems like only a small trip down the slippery slope before news organizations could face a similar fate.

the link: http://www.dailykos.com/story/2013/03/18/1194932/-Legal-Errors-in-Wall-Street-Journal-s-Dangerous-Manning-Article?showAll=yes
"Life shrinks or expands in proportion to one's courage" Anais Nin .. and yet we must arm ourselves with fear

Offline Riney

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Re: Legal Errors in Wall Street Journal's Dangerous Manning Article
« Reply #1 on: March 18, 2013, 19:54:11 PM »
Correcting the Error-Riddled Wall Street Journal Column on WikiLeaks, Bradley Manning, and Press Freedom
March 18, 2013
By Trevor Timm

Since the audio of whistleblower Bradley Manning's statement to the court leaked last week, it's becoming clear how much of a threat the government's "aiding the enemy" charge against Manning threatens all whistleblowers. Famed law professor Yochai Benkler and First Amendment scholar Floyd Abrams wrote an op-ed in the New York Times denouncing the unprecedented charge, and this past weekend, On The Media dedicated its whole program to Manning's trial.

Today, however, the Wall Street Journal's Gordon Crovitz has written a column not only supporting the "aiding the enemy" charge against Bradley Manning, but also dangerously insisting WikiLeaks should be charged under the Espionage Act as well. The column is filled with critical factual errors and deserves a closer look.

Crovitz starts off by listing the reasons Manning allegedly "aided the enemy" by leaking information he wanted the US public to read and debate:

Among the prosecution's more than 100 witnesses will be a Navy SEAL who participated in the raid in Pakistan that killed Osama bin Laden. He'll testify to finding Manning-Assange documents on the terrorist leader's computer. Prosecutors are seeking a sentence of life in prison without the possibility of parole.

The fact that this is most prominent piece of evidence against Manning underscores, rather than rebuts, how dangerous the "aiding the enemy" charge is. Osama bin Laden was also a fan of famed reporter Bob Woodward’s books, going as far as to publicly recommend everyone read them. It’s also worth noting Bob Woodward regularly publishes Top Secret classified information, which is a higher secrecy classification than anything WikiLeaks has ever published.

Using the government’s theory in Manning’s case, virtually every four-star general in the armed forces—Woodward’s go-to sources—would be guilty of aiding the enemy as well.

The key element of this espionage charge is intent: Did Pfc. Manning mean to give intelligence to the enemy? In his 35-page plea, Pfc. Manning describes himself as a whistleblower, but he doesn't explain what he was blowing the whistle on. The documents didn't disclose government wrongdoing.

Here’s a very long but incomplete list of all the government wrongdoing that was uncovered by the war logs and the cables. In addition, here is the Collateral Murder video showing the killing of two Reuters journalists by the US military, juxtaposed with Manning's audio description of why he released it.

Instead, WikiLeaks posted unedited diplomatic and intelligence cables that identified by name Iraqis, Afghans and others who were helping the U.S. war effort.

Again, Crovitz is just wrong on the facts. The Iraq War Logs were redacted by algorithm, so all names of innocent Iraqis were protected. Former New York Times editor Bill Keller even gives WikiLeaks credit for making better redactions than the Times would have by itself. While the Afghan war logs were unredacted, WikiLeaks held back approximately 15,000 of the documents to protect innocent Afghans, and to this day, the US government cannot point to a single person harmed by reprisals.

An expert witness for the defense, Yochai Benkler of Harvard Law School, wrote in The New Republic that bringing a case against Pfc. Manning is a slippery slope. He claimed that in the past, "no one has been charged with aiding the enemy simply for leaking information to the press for general publication." That is not true.

Actually, it is true. Crovitz cites the conviction of Samuel Morison from the 1980s, but Morison was charged under the Espionage Act, not with "aiding the enemy." Crovitz is confusing the two. “Aiding the enemy” is part of military law, not a law passed by Congress like the Espionage Act. While Manning is also charged under the Espionage Act—dangerous and draconian charges in themselves—the ‘aiding the enemy’ charge is wholly unique and unprecedented.

If Crovitz had even bothered read the charge sheets (1, 2) against Bradley Manning before writing his column, he would have known this. In fact, the main precedent the government is relying on is from the Civil War era. It is, as law professor Geoffrey Stone points out, not only absurdly outdated, but couldn’t be more different than Manning’s situation.

One reason federal prosecutors rarely charge news publishers under the espionage laws is that prosecutors understand that news organizations are different from spies. No one expects charges against the New York Times or any other news outlet that used the WikiLeaks documents.

First, prosecutors do not “rarely” charge news publishers under the Espionage Act, they never do. Twice before WikiLeaks—once with the Chicago Tribune during World War II, and once with the New York Times and the Pentagon Papers—the government tried to indict a newspaper. They failed to do so both times.

Second, just a few months ago, a House Judiciary subcommittee held a hearing where members of Congress declared they wished to see the New York Times reporters in jail for publishing classified information. The lead witness compared New York Times reporter David Sanger to a spy.

Crovitz ends his column like this:

But news executives and media lawyers should think twice before treating Mr. Assange as if he were a journalist. If leaders in the news industry blur the distinction between their journalists and self-proclaimed enemies of the state like Mr. Assange, they may encourage prosecutors to make the same false equivalence.

Here, for the record, are ten times the Wall Street Journal has quoted WikiLeaks cables in its news reporting. That list is over a year old; there are doubtless many more.

the link: https://pressfreedomfoundation.org/blog/2013/03/correcting-error-riddled-wall-street-journal-column-wikileaks-bradley-manning-and-press
"Life shrinks or expands in proportion to one's courage" Anais Nin .. and yet we must arm ourselves with fear