The court-martial of US Army Pfc. Bradley Manning for the largest leak of classified documents in US history will hinge on whether he aided the enemy and violated the 1917 Espionage Act – charges that some legal analysts say the Obama administration could have trouble proving.
Manning, whose trial begins Monday, is accused of passing more than 700,000 government and military documents to the anti-secrecy website WikiLeaks. The polarizing figure, called a whistle-blowing hero by supporters and traitor by opponents, has been in detention since his arrest in Iraq in May 2010.
Manning faces more than 20 charges, including violating the Espionage Act and a military charge of aiding the enemy. If convicted, he could be sentenced to prison for life without parole.
In February during pretrial hearings, Manning admitted to 10 charges. He told military judge Army Col. Denise Lind he leaked the material to expose the American military's "blood lust" and disregard for human life in Iraq and Afghanistan. He said he did not believe the information would harm the United States and he wanted to start a debate on the role of the military and foreign policy.
The judge accepted his guilty plea to reduced charges for those charges, but prosecutors did not and moved forward with a court-martial.
Manning chose to have his court-martial heard by a judge instead of a jury. It is expected to run all summer. The case is the most high profile in a string of leak prosecutions by the Obama administration, which has come under criticism for its crackdown on leakers. The six prosecutions since Barack Obama took office is more than in all other presidencies combined.
The government’s decision to proceed with the two most serious charges even after Manning admitted guilt took some legal analysts by surprise.
Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, told The Washington Post that Manning’s leaks were “reckless” and “a data dump.” But “he is not an enemy of the state” and putting him behind bars for life “is overreaching,” she said.
First Amendment lawyer Floyd Abrams told The Wall Street Journal, “His conduct in my view was neither lawful nor admirable, but the decision to persist in this prosecution seems unduly severe.”
On the other side, prosecutors have said Manning must be held accountable: “Private First Class Manning was a US analyst who we trained and trusted to use multiple intelligence systems ... and he used that training to defy our trust,” said Maj. Ashden Fein, a prosecutor in the case, in one pretrial hearing.
Manning, he said, “knowingly engaged in a six-month-long criminal enterprise of harvesting classified information” to send to WikiLeaks, “while knowing and understanding that enemies would have access to the information.”
Some former prosecutors told The Washington Post it could be difficult to prove intent to harm the US.
“A lot of times, you think something is damaging,” said Baruch Weiss, a former federal prosecutor and an expert on the Espionage Act, “and the reality proves to be otherwise.”
But Ms. Goitein said that under a ruling by Lind, prosecutors will have to prove only that Manning had “reason to believe” that the documents disclosed could be used to harm the US or aid a foreign power. They need not prove that he intended to harm the US.
“I suspect that the government can meet this burden on at least some of the counts,” Goitein told the Post.
The material that WikiLeaks began publishing in 2010 documented complaints of Iraqi detainee abuses, contained a US tally of civilian deaths in Iraq, and described weak US support for the government of Tunisia – a disclosure that Manning supporters said encouraged the popular uprising that ousted the Tunisian president in 2011 and helped trigger the Middle Eastern pro-democracy uprisings known as the Arab Spring.
In pretrial hearings, Manning also acknowledged sending WikiLeaks unclassified video of a 2007 US Apache helicopter attack that killed civilians, including a Reuters photographer. An internal military investigation concluded the troops reasonably mistook the camera equipment for weapons, while WikiLeaks dubbed the video "Collateral Murder."
The release of the cables and video embarrassed the US and its allies. The Obama administration has said it threatened valuable military and diplomatic sources and strained America's relations with other governments, but the specific amount of damage hasn't been publicly revealed and probably won't be during the trial.
Much of the evidence is classified, which means large portions of the trial are likely to be closed to reporters and the public. The judge tested alternatives to closing the courtroom, such as using code words and unclassified summaries, but she said it didn't work.
About 20 Manning supporters demonstrated Monday morning in the rain outside the visitor gate at Fort Meade in Maryland, where the court-martial is taking place. They waved signs reading "free Bradley Manning" and "protect the truth," while chanting, "What do want? Free Bradley. When do we want it? Now."
• Material from the Associated Press was used in this report.