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Does the Manning prosecution show overreach on leaks?

Bradley Manning goes on trial this week.  The Army Pfc. faces a court martial in Fort Meade, Maryland, for sending 700,000 government documents to Wikileaks.
Army Pfc. Bradley Manning in December 2011 (AP Photo/Patrick Semansky, File)
Army Pfc. Bradley Manning in December 2011

Bradley Manning goes on trial this week.  The Army Pfc. faces a court martial in Fort Meade, Maryland, for sending 700,000 government documents to Wikileaks.

The prosecutors have decided to pursue an unusual strategy:

Prosecutors are charging Manning under the Espionage Act, which targets conduct specifically aimed at injuring the United States, and under the military code barring "aiding the enemy," a treasonous offense that carries a potential death penalty.If prosecutors win, Manning will face the most severe punishment for the dissemination of information to publishers in American history. That could be a hollow victory for the United States, however, by chilling press freedoms and government accountability in the long run.

As I explain in a Reuters column, Manning already admitted to leaking, saying his goal was to spark a debate over government policy. (He offered to plead guilty to several charges, like misusing classified material, which carry up to 20 years of jail time.)  But that wasn't good enough:

Prosecutors are insisting that the single act of leaking information to a publisher is equivalent to leaking information to an enemy, like al Qaeda or North Korea.  That is why Manning faces prosecution for a capital crime – the government wants to treat him more like a traitor than a leaker.I emphasize the word “publisher” for two reasons.First, history shows we should be wary any time our government announces that working with a news publisher, to criticize the government, is equivalent to working with an operational enemy…You don't need to support what Manning did, of course, to see that his crimes are different than passing codes to North Korea, or coordinating with terrorists to kill Americans.Second, the government's approach to publishers, as a legal theory, makes no distinction between working with Wikileaks versus the Wall Street Journal.  That's not up for debate – prosecutors admitted as much in January, when questioned by a military judge in the case…As a precedent, it's an expansive prosecution that could create risks for all publishers.

If a court accepts this approach, it could chill whistle-blowers and leakers who work with the Wall Street Journal or the New York Times or NBC—traditional journalist outlets that work with the government and take more precautions than Wikileaks.

The verdict could create a precedent that reaching out to a reporter is punishable on par with aiding Al Qaeda would be a new low point for press freedom. If there are examples where such an approach might be legally valid—releasing exact locations of vulnerable personnel, for example—the government has not proven Manning released that kind of material. Instead, the U.S. has argued that even though none of the material was Top Secret, it "damaged U.S. diplomatic efforts and endangered individuals who had spoken with American representatives," as msnbc's Meredith Clark has explained.

The Manning prosecution may draw extra interest as the Obama administration faces questions about its aggressive approach to leaks. While no one is advocating blanket amnesty for national security leaks, it looks like the government is losing sight of its constitutional boundaries when it treats reporting as criminal and leaking as treason.