Bradley Manning began his first day as a convict on Wednesday, after he was found guilty of 20 counts relating to the transmission of state secrets to WikiLeaks. Outside the courtroom, the consequences of what amounts to a major escalation in the U.S. government's war on whistleblowers are beginning to sink in.
Tuesday's verdict was the first time under the Obama administration that any leaker of official secrets has been convicted under the 1917 Espionage Act – a criminal statute designed to ensnare actual spies and traitors working with foreign governments. The only other time in U.S. history that an official has been found guilty at trial under the Act for passing classified information to the press involved a naval intelligence expert, Samuel Morison, in 1985.
Jesselyn Radack of the Government Accountability Project, a former Department of Justice whistleblower herself, said the consequences of Manning being found guilty of six counts under the Espionage Act should not be underestimated. She compared it to the failed attempt by the U.S. government to prosecute Daniel Ellsberg, source of the 1970s Pentagon Papers on the Vietnam war. "This is Obama's first conviction against a non-spy under the act," she said. "He has now managed to do what Nixon couldn't."
The Espionage Act offenses – which cover the leaking of the Iraq and Afghan war logs, more than 700 detainee files from Guantánamo Bay, documents relating to a U.S. airstrike that killed civilians in Farah Province, Afghanistan, and other records – add up to a possible maximum 60-year sentence out of the total of 136 years in military custody which Manning faces. The court in Fort Meade, Maryland, where Manning's court-martial has conducted for nearly two years, will now begin hearings over his sentencing, with both prosecution and defense teams calling a slew of new witnesses.
The judge presiding over the court-martial, Colonel Denise Lind, is expected to reach a decision on Manning's sentence over the next three weeks. Given the sheer number of charges to which the soldier has been found guilty, and the cumulative sentence they carry, the 25-year-old army private is now facing the real prospect of spending a large portion of his adult life in military custody.
A sentence that could stretch into decades would set a precedent of a kind all its own: it would be signify a huge intensification of the punishment for those who disclose U.S. state secrets. That in turn could have implications for others facing such charges, including the NSA source Edward Snowden.
Under the Obama administration, seven Espionage Act prosecutions have been unleashed – more than all those initiated by previous presidents combined. Of those that have been completed, prosecutions have either failed – as in the case of Thomas Drake, a former NSA official against whom all 10 charges were dropped – or led to a prison term for non-Espionage Act charges, as in the case of John Kiriakou, who is serving a 30-month sentence for disclosing classified information about a fellow CIA officer.
"The Manning verdict takes us to a whole other level," said Liza Goitein, who co-directs the Brennan Center for Justice's liberty and national security program. "The government has done a poor job in thinking through the potential effects of this prosecution."
Though Manning was found not guilty of the most serious charge, "aiding the enemy", Goitein suggested that multiple convictions under the Espionage Act are certain to have a chilling effect across public information. "This will discourage the average whistleblower, an official who maybe has just a few classified documents that reveal corruption or wrong-doing and who ensure[s] accountability in the system. This will shoot down the least offensive, and the most valuable leaks."
Goitein added that one class of leak will not be endangered by a hefty Manning sentence: "authorized" leaks from the government itself. "Leaking will continue, but it will increasingly be skewed to the one-sided party line of what the government wants the public to know."
In securing the six Espionage Act convictions, military lawyers drew on a precedent set by a separate federal whistleblower prosecution under the Act against Stephen Kim, a former state department official accused of disclosing intelligence on North Korea's nuclear program to Fox News. The judge in the Kim case ruled last month that prosecutors did not have to prove that the released information could actually be potentially damaging to the U.S. or to the "advantage of a foreign nation" – only that the defendant was aware that it could be.
That lowered standard of proof was imported into the Manning trial. It prevented the soldier's defense team presenting evidence to the trial that the actual damage of the Wikileaks disclosures was minimal.
Ben Wizner, director of the American Civil Liberties Union's speech, privacy and technology project, said that this would set up a major impediment to fair hearings in leak cases, as it essentially barred any discussion of whistleblower protections in Espionage Act trials. That would make it impossible for the justice system to distinguish between genuinely harmful leaks and those that were essential for a healthy democracy.
"There is no distinction drawn between the nature of a leak between those that could be harmful and those that are beneficial and needed," he said. "What this says to a potential leaker is: 'We will throw the book at you, no matter what.'"