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A Devastating Verdict

by ALFREDO LOPEZ

The Bradley Manning verdict may seem a victory of sorts for the defense — it’s certainly being treated that way in the mainstream media — but the decision handed down Tuesday by Court Marshal Judge Colonel Denise Lind is actually a devastating blow not only to Manning, who was convicted of unjustifiably serious charges brought by an aggressive administration seeking to make an example of him, but also to Internet activity in general and information-sharing in particular.

Judge Lind found the young Army private not guilty of the most serious charge he faced: “aiding the enemy”. But it was the most serious because he could have faced life imprisonment as a result. Now he faces a sentencing hearing on 17 charges of which he was convicted.

Much of the media reaction reflected relief:

“We won the battle, now we need to go win the war,” Manning’s trial lawyer David Coombs told a press conference. “Today is a good day, but Bradley is by no means out of the fire.”

Or as Marcy Wheeler wrote in Salon: “But the big news — and very good news — is that Manning is innocent of the aiding the enemy charge. That ruling averted a potentially catastrophic effect on freedom of speech in this country.”

The relief may be misguided. We have not averted a catastrophe; we have experienced one. Manning’s convictions include five counts of “espionage” under the 1917 Espionage Act and therein lies the poison. The logic of that espionage finding means that any of us could potentially be convicted of the very same crime if we were to publish anything on the Internet that the government considers “dangerous” to its functioning or activities.

Hand in hand with the recently-revealed system of surveillance that effectively models a police state, this verdict is spectacularly pernicious.

That may be easier to understand when the decision is matched with the facts of the case.

Bradley Manning, an intelligence technologist with the Army, released a large number of documents to Wikileaks, among them the famous video tape of U.S. pilots bombing a wedding in Afghanistan and laughing as they killed many of the people in attendance. He was arrested and imprisoned in 2010 and then charged thereafter, after being held in a military brig for eight months under conditions human rights activists and a UN reporteur termed “torture,” including being kept in solitary, naked in an unheated cell.

He has never denied that he released the information and has offered to plead guilty to 10 of the charges leveled against him — basically that he released information against the rules of the Army and the regulations governing his security clearance. He did all that, he said, to spark a debate about a foreign policy he had come to deeply question during his work in the Army; he felt that important debate that was being quashed by government secrecy. In short, Manning admitted to being a whistle-blower who was completely clear, competent, missions-driven and ready to go to prison for what he considered a service to his country.

His best-known statement, which went viral on-line, reflects, not some confused and unbalance kid, but rather a mature, thoughtful and courageous young man who was ready to make a huge sacrifice for his country and humanity in general. In order to take that principles stance, Manning had to acknowledge that he leaked the stuff and he knew it would be circulated. Hence his guilty plea on those charges.

But he consistently rejected the government’s charges of espionage and aiding the enemy. That’s where things get creepy.

The government argued that Manning knew that anything he released on the Internet could be read by the enemies of the United States. This means that, effectively, he was involved in espionage and “aiding the enemy”. There’s a difference between those charges.

“Aiding the enemy” is a charge leveled at military personnel during times of conflict. It means you gave some assistance, material or moral, to the people your armed forces are fighting. It’s among the most serious charges a person can face, the very essence of “traitor”, and would have sent Manning away for the rest of his life. It was scary enough when Judge Lind agreed to consider the charge but apparently she did so to finally and firmly dispel it.

In finding him not guilty of that charge, Judge Lind did something else that was missed by a lot of coverage. It was about the bombing video. “While Manning admitted accessing the video,” Wheeler explains, “the government insisted he had leaked it months before Manning admitted to accessing it (and before forensic evidence showed he had). This claim — one Lind said they did not prove — was key to their claims that Manning had planned to leak to WikiLeaks from the start of his deployment to Iraq.” Had he been found guilty of that, the ruling would have logically labelled WikiLeaks a spy agency rather than a news outlet. That failed and it’s a victory for a “freer” press.

Espionage, on the the hand, is spying and both civilians and military can be found guilty of it. It means giving classified information to an enemy or another government. Ordinarily, the charge is leveled at intelligence people working for governments which have antagonistic relations with the United States and it is seldom used and hasn’t been popular among prosecutors for decades (probably since the anti-war 70s).

The federal prosecutors in Manning’s trial altered their definition of espionage to bring it back into fashion. They said it constitutes publishing on the Internet something potentially harmful to the government, the country’s security or the safety of U.S. personnel in other countries. Period. Because enemies of the U.S. use the Internet, they could presumably retrieve that information and it makes no difference if Manning was aware of that or not.

During the proceedings, Judge Lind ruled against that interpretation saying that to prove espionage the prosecution had to prove that Manning knew “enemies” could find that information and understood they would retrieve it. To prove that charge, the government showed that al-Qaida leader Osama Bin Laden had some of Manning’s released material on his computer. That, apparently, was all it took.

Under Judge Lind’s verdict, anything you publish on the Internet that could be harmful to the United States constitutes espionage because we all know our “enemies” can retrieve it. Effectively, it would have been impossible for Bradley Manning to be acquitted of espionage under that definition.

The most immediate impact here will be on whistle-blowers, the small army of truth-tellers the Obama Administration has been hunting down and jailing, having tried and imprisoned more whistle-blowers than any other Administration in history.

“This is the first ever espionage conviction against a whistleblower,” Julian Assange said in a statement today. “It is a dangerous precedent and an example of national security extremism. It is a short sighted judgment that cannot be tolerated and must be reversed. It can never be that conveying true information to the public is ‘espionage’.”

Specialist journalists and researchers in military and surveillance activities are also in the middle circle of the target. But there’s a third group of people who are now extremely vulnerable: movement activists.

Almost everything we write and publish, as a movement, goes on the Internet and is read by “enemies” of our government. At this point, the government’s definition of what is helpful to the enemy is fairly narrow: mainly government and military documents involving war and spying. But this is a government that is spying on you right now in a blanket surveillance program that goes beyond the systems described in even the most paranoid novels and completely violates the Fourth Amendment. In such a blanket surveillance climate, legal definitions can waffle and bend based on government policy or response to movements and protests. Without respect for the Constitution, governments are capable of anything and what you do as a movement activist could one day be listed as “dangerous” or “aiding the enemy”.

In fact, when linked with the surveillance programs, this definition of espionage becomes a current nightmare. You already probably communicating with someone who is considered potentially dangerous. For instance, I communicate with the BDS movement, a leader in the movement for boycott, divestment and sanctions against Israeli anti-Palestinian policies. There is no question that my email with that organization is captured and analyzed. If I email with you, for any reason, so is yours. The Internet is a “web” and all activists who use the Internet are targets of the federal surveillance program because our communication is scooped up, stored and analyzed.

The question is when does this communication become “dangerous” in the government’s eyes; I don’t know. Do you? Because, based on what happened to Bradley Manning, we’re in big trouble when it does.

What remains in the Manning case is the sentencing and, now that the “aiding the enemy” charge is no longer a threat, Judge Lind can pretty much do what she wants. There are no minimum sentences with any of these charges. Manning could actually be freed after the sentencing hearing (which begins July 31) since he’s already served over two years in jail. She could also, by the way, send this young man away for the rest of his life — the potential sentences amount to over 130 years in jail, if run consecutively.

But even if our hopes for Manning’s freedom prevail, the destructive impact of the convictions will remain in our lives for now on.

The one bright spot is the eruption of activity both in the courts and on the streets sparked by the revelations of Edward Snowden about the government’s surveillance programs. Surveillance, too long ignored by the progressive movement as an important issue, is now near the top of the list and given what happened in the Manning trial today, that’s where it belongs.

ALFREDO LOPEZ is a member of ThisCantBeHappening!, the new independent three-time Project Censored Award-winning online alternative newspaper.

 

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Alfredo Lopez writes about technology issues for This Can’t Be Happening!

CounterPunch Magazine

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