The court-martial of Private Bradley Manning resolved the charges of disclosing a cache of secret documents to WikiLeaks but left open the central legal questions raised by his prosecution. "If you ask 10 people where to draw the line between leaking and whistleblowing, you'll get 26 different answers," said Stephen Vladeck of American University Washington College of Law, a national security law expert.
And, Vladeck and others said, you will get precious little help in drawing that line from the nation's existing laws. Without clear lines, there is little to restrain an aggressive government from prosecuting national security leakers, whistleblowers and third parties who assist or facilitate the disclosure.
Manning was acquitted of the most serious charge against him — aiding the enemy — for his disclosure of more than 700,000 classified military and diplomatic documents related to the wars in Iraq and Afghanistan. However, he was found guilty of most of the other charges against him, including violations of the 1917 Espionage Act.
"This was the broadest use of the Espionage Act for a leak to the media, and only the second conviction," said Yochai Benkler, faculty co-director of the Berkman Center for Internet and Society at Harvard Law School. Benkler testified on behalf of Manning that WikiLeaks, at the time of Manning's disclosures, would have been seen by a reasonable person as a new media outfit.
The main problem with the 1917 law is that it covers delivering national defense information to "persons not entitled to receive it," Benkler said. "This is so broad that it could in principle cover any leak to the media, and in fact, could cover the media when it posts classified materials online for the reading public to read."
The 1917 law is outdated, Vladeck said, and just how antiquated can be seen in the fact its relevant provisions do not even use the term "classified information." The statute was written before that term was used, he said.
"Every four or five years Congress has a hearing on updating the act and the same people show up and say the same things and nothing ever comes of it," Vladeck said. "The Manning case isn't going to make new law on the Espionage Act but it will remind everyone of how frustratingly Delphic this 96-year-old statute is, and how completely unable Congress has been to update it."
The unsettled issue with the law is the level of intent that the government must prove, said Elizabeth Goitein, co-director of the Liberty and National Security program at New York University's Brennan Center for Justice.
"There has been a bit of split on whether the government has to prove bad faith in order to get a conviction," she said. "In the past, the act has been used almost exclusively for spies and traitors for whom intent was a moot point. Only under this administration have we seen it used to go after people for disclosures to the media without any bad faith."
In a 2006 case, a federal judge ruled that the government had to prove bad faith, she noted, but "since then we've seen cases going the other way. It's still fair to say it's not a 100 percent settled question because there are so few cases, but it's moving in that direction."
If intent is read out of the Espionage Act, Goitein said, "we're left with a legal framework that does not distinguish between leakers and whistleblowers. We know there is massive overclassification of government documents. That being the case, you can imagine a whole range of motives a person might have for disclosing classified documents and sometimes improperly classified information. Right now, the law gives national security whistleblowers no safe channels to disclose information, and criminal law is increasingly blind to what the person's motive was."
Vladeck said he found the cases of Manning and Edward Snowden, the former National Security Agency contractor charged with disclosing government surveillance programs, "relatively easy" under the Espionage Act.
"It's easy because the act doesn't care a whit about motive or intent, only whether you knew or should have known the information disclosed could harm the United States or aid a foreign power," he said. "As long as that's the standard — and reasonable folks can have qualms about such a low bar — these cases are not going to be difficult."
However, Vladeck added, the cases become difficult when the government goes beyond targeting a government employee to going after somebody else. "The government only crossed that line once, and I think the government understands it crosses that line at its own peril," he said, referring to the U.S. Justice Department's search warrant targeting Fox News reporter James Rosen and the public criticism that followed.
Vladeck sees no legal precedents set by Manning's court-martial, but the Brennan Center's Goitein sees, and worries, about one stemming from Man­ning's acquittal on the aiding-the-enemy charge. (That charge was brought under the Uniform Code of Military Justice, or UCMJ.)
"In the process of deciding how she was going to interpret the law, the judge made some rulings that are precedent-setting," Goitein said. Even though the charge was under the UCMJ, she said, civilian courts will look at the judge's ruling and consider it.
"The judge basically took the intent standard, which says there must be general evil intent, and she held that in this context general evil intent could be established by showing Manning knew al-Qaeda accessed sites like WikiLeaks," she said. "That bar is very low. Aiding the enemy is one of two offenses in the entire UCMJ that purports to apply to everybody. The judge said this is an any-person offense. I don't know if that has ever been tested."
The administration, Goitein added, is not going to subject a civilian to a court-martial for aiding the enemy. "But in theory, the judge's ruling is broad enough to subject anyone in the country to capital punishment if they post information on the Internet and the information is helpful to the enemy."
Harvard's Benkler said adjustments are needed both to the whistleblower laws and to the general federal criminal law "that will create clear new defenses for those who expose systematic error, incompetence and malfeasance in the area of national defense no less than in other areas of government." The balance, he acknowledged, would have to be a delicate one.
"The standard will have to require both subjective good intent to inform the public and objective reasonableness of the belief that the leak in fact exposes matters that are clearly in the public interest," he said. "It will likely have to include some limitation for the gravity of the harm foreseeable by the leaker balanced against the gravity of the wrongdoing or incompetence exposed."
Vladeck doubts Congress will act — particularly on the Espionage Act, whose "benign indeterminancy" in some cases benefits the government. Goitein worries that updating the law could make it worse for leakers and whistleblowers.
"I think the Manning case just shows how dangerous the problem of overclassification has become," Goitein said. "It would be so much better if the government got its house in order and introduced some accountability in classification." As long as the government fails to act on overclassification, "the only solution is this kind of vigilante leaking," Goitein said. "It's not a great solution to rely on the judgment of leakers and hope they exercise good judgment."
Contact Marcia Coyle at firstname.lastname@example.org.