BY AMY DAVIDSON, The New Yorker
Update: Manning was found not guilty of aiding the enemy, which was the most serious charge against him, but was found guilty of five counts of violating the Espionage Act.“Picking up the wounded?” “Yeah, we’re trying to get permission to engage” “Come on, let us shoot!”
Raffi Khatchadourian has written extensively about this video, and the important questions it raises about rules of engagement and the law of war—as well as its plain tragedy. Coombs wasn’t talking about the legality of what happened on that day in 2007; rather, he asked the judge to imagine how it appeared to Manning, as a young soldier, and why he would think others would want to see it, too. The prosecutor had already called Manning a “traitor” and, of all things, an “anarchist” who gave the video, along with hundreds of thousands of battlefield reports and State Department cables, to WikiLeaks with “evil intent.” Coombsresponded with an appeal to what the sight of people who shouldn’t be dead on the ground might have meant to Manning. “Is Manning somebody who is a traitor with no loyalty to this country or the flag, who wanted to download as much information as possible for his employer WikiLeaks? Or is he a young, naïve, well-intentioned soldier who has his humanist belief central to his decisions and whose sole purpose was to make a difference?”
[pullquote] “I prefer a painful truth over any blissful fantasy,” Manning wrote in an online chat. Minutes later he added: “I think I’ve been traumatized too much by reality, to care about consequences of shattering the fantasy.” And he also wrote: “I want people to see the truth … regardless of who they are … because without information, you cannot make informed decisions as a public.” [/pullquote]Manning’s legal stance in the trial has not been one of outraged innocence. He offered, unreservedly, to plead guilty to ten charges that would have carried a sentence of twenty years in prison. That is a significant penalty for a twenty-five-year-old man who freely admits that he leaked classified documents. It makes one wonder why the trial proceeded—why we are waiting today for a verdict at all. The possible answers don’t do the government credit. One, that even twenty years was too little, has an edge of vindictiveness, especially given that Manning was held for months in conditions of solitary confinement that were, at times, illegal. As the BBC noted, the prosecution introduced a grinning selfie that Manning took, and left on a thumb drive, in a way that made him sound like the Joker, snapping away in his room at Arkham Asylum. The defense pointed out that Manning, who was wearing makeup and a bra in the photo, might be better understood as a man barely out of his teens who was experimenting with cross-dressing.
Another reason that the case has gone forward may be that the government wanted to establish a precedent by prosecuting a leaker on the most serious charge that Manning faces—aiding the enemy. This is more dangerous for the country than anything Manning did. The charge carries the death penalty, though this prosecution is only seeking life, but the severity isn’t even the main issue. It is the legal theory that Manning aided the enemy by giving something to reporters that was published, and that bad people then read.
This argument was last used during the Civil War, in a case whose facts were very different and involved what most people would recognize as classic espionage. (Coded messages in advertisements, for one thing.) A crucial moment in the Manning trial came when the judge, Denise Lind, turned down a motion to dismiss that charge, saying that Manning as a soldier ought to have understood whom he might help. (Lind will decide the case; Manning passed up a trial by a military jury. I’ll update this post when the verdict is released.) But unlike laws on protecting classified documents—which, again, Manning agreed to plead guilty to violating—this is about judging the criminality of the leaks by how the world reacts to them.
Exposing a war crime, or even just bad policy decisions, may embarrass an Administration, cause domestic support for a war to drop, or allow marchers in many countries to carry posters with ugly pictures. If we call that aiding the enemy, then we are closing off discourse in areas where we most need it. Reporters, by this theory, could be aiding the enemy, too, anytime they make a government uncomfortable—which is their job. The prosecutor in Manning’s case made a great deal of the discovery of some of the published WikiLeaks files (which appeared and were indexed in places like the Guardian and the New York Times) in Osama bin Laden’s compound in Abbottabad. As I’ve asked before, when should we expect the trial in which the damning evidence is that someone whom America doesn’t like subscribes to The New Yorker?
Photograph by Chip Somodevilla/Getty.
