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Tue July 30, 2013
What The Manning Verdict Says About Edward Snowden's Future
Originally published on Wed July 31, 2013 8:42 am
In the wake of today's verdict acquitting Bradley Manning of aiding the enemy, the natural question is, what does this say about Edward Snowden's future?
Manning is, of course, the Army private responsible for the biggest leak of classified information in U.S. history. Snowden is responsible for revealing some of the most secretive and sensitive intelligence programs inside the National Security Agency.
The U.S. government charged Manning with aiding the enemy. As The New York Times puts it, that was an unprecedented charge that had the potential of casting a long shadow over future leak cases.
Mary-Rose Papandrea, a professor of law at Boston College, is in the middle of writing an academic paper that explores the difference between leakers and traitors.
Papandrea said an aiding-the-enemy charge essentially amounts to treason; the fact that Col. Denise Lind, the military judge presiding over the Manning case, found him not guilty of the charge bodes well for Snowden and whoever may come next.
"It is good news for people who have the intent to inform the public that they will be protected," Papandrea said. "What I think the court did — without having seen any explicit rationale here — is to make a distinction between true aiding the enemy — intent to aid the enemy, knowledge that information will be read by the enemy and an intent to have that information read by the enemy — versus individuals who disclose information without authorization but with the intent to disclose them to the public at large."
During the trial, the U.S. government argued that when Manning released information to WikiLeaks — instead of traditional news outlets — it was because he wanted the data to be available in an indiscriminate manner. As an intelligence analyst, the government argued, he should have known that the information was going to end up in the hands of al-Qaida.
Many civil libertarians worried about the kind of precedent the case would set for investigative journalism in the United States. In essence, they said, this meant anyone could be charged with aiding the enemy for handing information to a website or news outlet because al-Qaida was free to visit that website.
What's more, aiding the enemy is one of only three crimes in the Uniform Code of Military Justice that theoretically applies to everyone.
Eugene Fidell, a lecturer at Yale Law School and an expert on military law, said the Manning verdict will likely revive talk about whether you can aide the enemy by releasing information to a news organization. One thing that seems clear, he says, is that Snowden will not be tried on that most-serious charge.
"On paper, the statute applies to any person. But in fact the Supreme Court would not tolerate a court martial of a civilian for aiding the enemy," Fidell said. "I don't think Mr. Snowden has to worry about being court martialed."
Papandrea agrees, but she says that while Manning beat the most serious charge against him, he could still face decades in prison for his other crimes, including espionage and theft.
"It's not like Bradley Manning is getting off scot-free. All it means is that he was not found guilty of what essentially amounts to treason," Papandrea says. "So as far as the message for Snowden, he still would face potential Espionage Act charges and other lesser charges."
In fact, the U.S. government has already charged the former NSA contractor with espionage, theft and conversion of government property.
Papandrea argues, however, there are stark differences between Manning and Snowden.
"I don't think the espionage charges [against Manning] were that controversial," she said. "I think some people thought that Bradley Manning may have been engaged in whistle-blowing. But I think the Snowden disclosures raise much bigger questions about the role of leakers in our society. You have Congress right now considering and coming close to passing legislation that would stop the program that Snowden revealed. Clearly, his disclosures have had a big impact on the public debate. They are meaningful; they are important."
Manning, on the other hand, disclosed some 700,000 classified documents that "did not have significant impact on public discourse."
That was the argument, Snowden's father Lonnie and his attorney, Bruce Fein, made on CNN this afternoon. Snowden, Fein said, should be treated as a whistle-blower not a spy.
"He has sparked a conversation that Mr. Obama said was urgent," said Fein.
In Manning's case, judge Lind found the 25-year-old was not a traitor, but in six different instances, she rejected the defense's argument that Manning was a whistle-blower intent on sparking a debate about war and diplomacy.
If Lind sticks to maximum sentences, Manning could be in prison for decades.
Lonnie Snowden, who had called for his son to come back to the United States and face justice, had a different message for his son today: Stay safe, in Russia, he told him on CNN.
He added: "I have absolutely no faith in the attorney general of the United States."