I was somewhat surprised to see both Glenn Greenwald and law professor Kevin Jon Heller make inaccurate statements about the charges just filed against Bradley Manning. In particular, the charge being discussed was “aiding the enemy.”
Greenwald claims that article 104(b) of the Uniform Code of Military Justice (UCMJ) was “almost certainly the provision to be applied.” It’s true that the charge sheet doesn’t specifically say that Manning is charged with violating the second clause of article 104, but it uses the language of that provision, so it NOT “almost certainly” the provision being applied; it is definitely the one being applied.
The charge sheet states that Manning did “without proper authority knowingly give intelligence to the enemy, though indirect means.” Section 104(2) prohibits any person who “without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly.”
It is not clear why then Greenwald speculates that the second clause is “almost certainly” applicable and Professor Heller, after quoting the charge sheet, wonders “whether the military intends to rely on 104(1) or 104(2).” It is quite clear they are relying on 104(2).
Further, Heller spends a good amount of time discussing the “communication” prong of the 104(2), which is not the prong under which Manning is charged. The charge sheet specifies only the “giving intelligence” prong of 104(2).
This may seem insignificant, but as Heller takes some pains to point out, the analysis is somewhat different for each prong. In the prong under which Manning is actually charged — the “giving intelligence” prong — Heller notes, the provision “clearly contemplates a situation in which the enemy actually received the intelligence,” while in the “communication” prong, receipt is immaterial, according to the Manual for Courts Martial.
In the giving intelligence prong, Heller notes, “the intent to aid is not required,” which is the same for the communication prong – intent is immaterial, according to the Manual for Courts Martial. Greenwald notes that if the military uses the theory that Manning has aided the enemy though indirect transmission via leaks to a newspaper, it must prove that “the communication was intended to reach the enemy.” This is incorrect (and a misquote of Heller). As Heller points out, this is only true of the second prong of 104(2) – the “communication” prong (under which Manning is NOT charged), AND the phrase is found only as a “model specification” in the Military Judges’ Benchmark; it is not found in the Manual for Courts Martial itself.
However, neither Heller nor Greenwald take note of the fact that 104(2) has what is called a “scienter” requirement. It prohibits someone who KNOWINGLY gives intelligence, etc. This is not quite the same as intent, but it presumably includes intent. The word “knowingly” would presumably be applied by the military court to Manning knowing that what he gave was intelligence AND knowing that he gave it to the enemy. In this context, there seems to be no question of intent, since if it were proved that Manning knew he was giving intelligence and knew he was giving it to the enemy, his intent to do so would be clear by his actions.
So Heller’s questions about whether the military might or might not argue intent seem moot. And Greenwald’s statement that “none of the other ways of violating this provision contain an intent element” is wrong.
Clearly, the military prosecutor, to obtain a conviction under this provision and clause, must prove that Manning knew that he was giving intelligence and knew he was giving it to the enemy.
How will they prove this? Either by direct proofs or by inference. The chat that Manning had with his colleague, Adrian Lamo, will be used as direct proof that Manning knew he was giving intelligence. That he knew he was giving it to the enemy, the prosecution will likely attempt to prove via inference, e.g, Manning knew that once this information was in the public domain, the enemy would have access to it. How do we know Manning knew this? We don’t; we presume it because any reasonable person would know that if he released information to Wikileaks, it would likely be published and accessible to everyone everywhere, including the enemy.
But if Heller is correct, the military must prove that the enemy actually received the intelligence Manning leaked. This could be proven via secret information from covert operatives or field agents testifying to what happened after the leaks were published. (This also means that Manning would be held liable for the publication of the documents he leaked, even though he had no control over their publication.) If Heller is not correct that the leaked information from Manning must have been received by the enemy, the prosecution will only have to show that Manning knowing leaked intelligence information that the enemy could have received.
I think the latter is the most likely scenario. The scienter or knowledge requirement in the statute is sufficient to get Manning without his intent to actually aid an enemy of the U.S.
Who is the enemy? Good question. UCMJ Article 99 defines the enemy to include:
organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. “Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.”
Heller and Greenwald may be wrong about another element of these new charges. Both note that “the UCMJ applies only to members of the military,” so newspaper reporters can’t be charged with violating it. However, Rod Powers, “a retired Air Force First Sergeant with 22 years of active duty service,” who has written the About.com guide on the Punitive Articles of the UCMJ, states under – “This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission.”
This doesn’t matter in Manning’s case, but it matters a great deal for journalists. If it is true that this provision applies to “all persons whether or not otherwise subject to military law” and if it is true that one need not have any actual intent to aid the enemy in order to be convicted, that the knowledge requirement in the statute can be broadly enough construed to cover someone who leaks intelligence for public benefit, then — and here both Heller and Greenwald are correct — “any media organization that published the information [Manning] allegedly stole” has also aided the enemy and is subject to prosecution for it.
JENNIFER VAN BERGEN, a former law lecturer at Anglo-American University in Prague and adjunct at the New School University, is an independent legal and historical scholar, investigative journalist, and book author.She is the founder of the 12th Generation Institute, and author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004) and Archetypes for Writers: Using the Power of Your Subconscious (Michael Weise Productions, 2007). She can be reached at firstname.lastname@example.org.