Pfc. Bradley Manning's conviction yesterday for violations of the Espionage Act and theft of government property was inevitable the moment his defense settled on a position of moral righteousness, rather than a denial of the specific actions, as the best way to achieve an acquittal.
Fair enough. Army prosecutors had him dead to rights as the leaker of a trove of classified diplomatic cables and military battlefield reports from Iraq and Afghanistan. So from the position of the defense, an argument that it was someone else was never going to fly after hacker Adrian Lamo dobbed him in with incriminating online chats.
But the outrage of many antisecrecy activists and fellow travelers over the conviction (Manning was acquitted on the most serious and frankly absurd charges of "aiding the enemy") isn't that the wrong man has been tried. It's that the US government, and particularly the US Army, are punishing him for revealing secrets he was sworn to protect. In the view of his supporters, the secrets themselves are the crime, not the man who revealed them.
Mr. Assange referred to what he calls a system of "information apartheid" in which agents of the "deep state" provide access to information to a select group of insiders, leaving the majority of the people as second-class citizens. "We have a situation now that young people like Edward Snowden (and Manning)... don't like that. They don't accept that, that the US Constitution can be violated, that international human rights norms can be violated, that this system of information apartheid can exist."
"At the very minimum I think he could have been charged with mishandling classified information," Assange continued. "Of course, I think he should be acquitted of such a charge because under the First Amendment and a number of other obligations we all have he should be free to break one obligation to fulfill another, the higher obligations of exposing crimes and satisfying the Constitution."
Snowden is the leaker of National Security Agency information, primarily to Glenn Greenwald at The Guardian, that has invigorated a dormant debate in the US about the extent and appropriateness of US government surveillance. There are legitimate concerns that some of the NSA programs he disclosed violate the US Constitution's Fourth Amendment on unreasonable search and seizure (both the ACLU and the Electronic Frontier Foundation are pursuing constitutional challenges to NSA activities revealed by Snowden).
But in the case of Manning, it's not clear that anything was revealed in his leaks beyond the horrors of war and reams of fairly routine diplomatic collection and reporting. The First Amendment, which guarantees free speech in the US? It doesn't now and never has protected soldiers or anyone else who violate their oaths. Human rights norms? Well, in the view of Assange and the many people who agree with him, it does appear that the mere existence of secrecy is some kind of human rights violation. It's an extreme pose, a blend of libertarianism and anarchism, that has grown in popularity of late, particularly among the young and computer savvy, and a position that Manning appears to hold.
In May 2010, Manning told Lamo, shortly before Lamo turned him in to the authorities, that he'd provided documents to Wikileaks because "it belongs in the public domain. Information should be free."
That's an echo of Stewart Brand's comment in the early 1980s that "information wants to be free" that has been taken up by a variety of anarchist and techo-utopian cliques who oppose secrecy. Manning clearly thinks he was doing a public good - everything that's known about him points to a purity of motive, a troubled young man disturbed by the reality of war. And to supporters like Assange, he's a hero. As Assange said this morning: "Bradley Manning is a martyr... Manning is being put into a position quite unjustly where he's facing 136 years that brings disrepute upon the United State's government and its system of judgement."
For Manning, Snowden, and many of their supporters the belief is that a public interest defense trumps all. They revealed things that the public had an interest in knowing, some of it (in their view) illegal. Therefore, the judgment of the leakers should be substituted for the rules and laws they agreed to abide by and that the government relies on to compel compliance from employees in sensitive national security positions.
In the case of Manning, subject to the Uniform Code of Military Justice (UCMJ) as a soldier, that means he didn't have rights to things that civilian Americans assume as a matter of course. He wasn't tried by a jury of his peers and the judge in his case, Judge Denise Lind, is a direct employee of the branch of government that was demanding he be sent to jail (she's a Colonel in the army). And he was treated abominably in detention - the nine months he was kept in solitary confinement after his initial arrest is and was an unconscionable abuse.
This is unfair, right? Well, it may be unfair. Or not. "Fair" is relative. It's certainly foreign to civilians. But there are strong arguments for the difference.
The US military (and other militaries) exists for one, brutal purpose: To destroy foreign enemies ("enemy" to be defined by civilian politicians, elected by the people). Young soldiers and marines are expected to go into combat where some of them will almost certainly die or be maimed, to endure hardships and risks when called on that the vast majority of Americans simply can't fathom, and to follow orders at the snap of a finger in the middle of these chaotic and dangerous environments.
Soldiers in the rear like Manning are expected to manage information flows - and keep information secret that could put the mission and the soldiers at the sharp end of the spear in harm's way.
The military simply can't tolerate individuals substituting their own judgment for that of their superiors about what's best for the mission, or best for the US. Yes, the Nuremberg Trials established a precedent of sorts that soldiers should refuse unlawful orders, as regards to crimes against humanity. But Manning didn't refuse an unlawful order as that's commonly understood. His choice was to leak a vast trove of a material under various classifications to a multinational group of activists who released it all wholesale to the world.
As a reporter, I'm torn about this. I'm glad for the leaks and have used the diplomatic cables in reporting from time to time. In April 2010 I wrote approvingly about the first leak from Manning (unknown at the time) via WikiLeaks - the video from a camera of an Apache helicopter in Baghdad that killed two Reuters journalists and about nine other Iraqis in 2007.
I knew some of the Reuters journalists who had spent years trying to get to the bottom of the incident against Pentagon stonewalling, and was glad that a greater degree of truth about the incident had finally come out, though I was also trouble by Assange's editing of the video and decision to brand it "Collateral Murder" - as it allowed no consideration, and betrayed no understanding, about how these things sometimes happen in war zones. I remain curious about Wikileaks' assertion at the time, now scarcely remembered, that the source of the video was "military whistleblowers" (plural).
In the long-run it turns out Manning's leaks changed very little. No crimes have been brought to light - nor any great long-term damage done to US interests. Did people see more of the horrible toll of America's war thanks to his releases? Yes. But does that therefore mean that soldiers have the right to ignore the chain of command and release vast amounts of classified information to the public, based on how they feel about it? Remember, that Manning's leaks ended up doing little harm to US interests is a far different thing than knowing they would do little harm at the time he made his decision.
Sentencing for Manning is yet to come. A long stretch in prison is virtually assured, and the US Army will be pleased with that, as something that will make the next would-be Manning think twice. But there are growing numbers of young people who view secrecy as inherently suspect, ones that are precisely the sort of people the military and US intelligence agencies are looking for to man their increasingly computer-intensive operations. That there will be another Manning, some day, seems assured.