Debate Forum 08/06

Debate Forum 08/06

Debate Center: Has the government blown the whistle on the whistle-blowers?

 Illustration by:  Signe WilkinsonBy Alex Culpepper

Bradley Manning released for publication to WikiLeaks several official documents about the United States’ actions in the Iraq and Afghan wars, as well as detainee files from Guantanamo Bay. Manning now faces sentencing after a military court found him guilty on 20 counts, some them in violation of the 1917 Espionage Act. The good news for Manning is he is not guilty of aiding the enemy, which was the major and most controversial charge against him. Still, Manning faces 60 years in prison for his acts, though some experts believe he will serve less time. This verdict in the court martial ends a two-year prosecution that raised issues of spying and whistle-blowing.

The 1917 Espionage Act was intended to prevent spying during wartime and provides a legal foundation to charge and try people accused of traitorous actions in the service of enemy governments. This is where the judge liberated Manning from his aiding-the-enemy charge because he did not actually hand over secret documents to another government. He simply released the material for publication – much the way a source would do for a journalist – and for no financial gain. The prosecution, however, saw little distinction between covertly sending intelligence to a foreign power and publishing that information online for anyone to see. According to some experts, this fact – coupled with the other espionage charges – sets a precedent for what future government whistle-blowers may be up against if they release U.S. secret information. They, too, could be charged as traitors.

Supporters of the prosecution clearly consider Manning a traitor even though he did not actually sell secrets to a foreign government, which was a big part of the prosecution’s case. They claimed his deeds were reckless, and his needs “to make a splash” with his revelations put many people in jeopardy. Supporters add to this and say placing American lives at risk for the sake of disclosing sensitive information is a traitorous action, regardless of whether the information should be revealed or not. Top representatives from the U.S. House Intelligence Committee summed up supporters’ stance by saying Manning damaged the country’s national security and desecrated the public’s trust.

Opponents of the prosecution’s charges say as a result of this case, the only leaks of government information we will know about now will be “authorized leaks.” They further say this is an assault on democracy because no distinction is made between beneficial whistle-blowing and potentially damaging whistle-blowing, and this verdict will force a silence on whistle-blowers who might uncover misdeeds or corruption or set them up as traitors if they do reveal any type of sensitive material. This attempt at stifling information, they add, could prove far more dangerous to the American people than any criminal exchange with a foreign government or revelation published on the Internet.

Some experts think the government is making an example with the Manning conviction. The prosecution and their supporters believe it’s a good example, and they hope it stalls future efforts at sensitive document disclosure. The opposition fears the implications it has on investigative journalism and free press and also how it may redefine the word “traitor.”

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

 

Debate Forum Question of the Week:

Bradley Manning’s release of information to WikiLeaks resulted in a conviction for violating the 1917 Espionage Act, even though he did not directly hand over sensitive information to a foreign power. Is there no longer a distinction between a traitor selling military secrets to the highest bidder and someone giving sensitive government information to a journalist on a matter of conscience and for no reward?

 

Debate Left: This we’ll defend – but as an Army of One?

By: Ben Tomkins

 The case of Bradley Manning is both nebulous and bizarre. So often, the laws of our country were created at a time before the issues raised by unknown future technologies. In most cases, it is sufficient for a court to simply expound on the spirit of an older law in order to apply it to a previously unconsidered circumstance. However, when the creation of a statutory principle concerns a capital offense like treason, the language of the written law becomes equally if not more important than the spirit, because the imposition of an irreversible punishment demands an absolute conviction of the accused. For Bradley Manning, the letter of the law has quite possibly saved his life.

Conspiracy theories and the belief in one’s ability to assess an absolute righteousness plague newly bloomed young men and women, whose impetuosity and vigor has not yet been tempered with the realistic social wisdom that comes with age and experience. At 22, Bradley Manning would have been both a young man and a mature teenager whose first steps into the role of an adult in a larger society began the day he enlisted in the United States Army.

Of course, a paranoid and irrational fear of the secrecy of our government is by no means limited to the young, but this is beside the point. A fear of government is not only a reality in a democracy in which one is allowed to challenge the government, but should be expected as a natural byproduct of our social contract. A democracy is the only form of government in which citizens willingly give their leaders permission to keep secrets on the back of a faith in the judgment of those elected officials as to what information constitutes a larger public good.

The gravity of both the task and the concession must be deeply understood and respected by the executive and the citizen alike. By doing so, we entrust an individual not personally known to us with the task of guarding a strongbox full of jewels without the privilege of review, and sustained only by their word that its contents have not been appropriated to line his own pocket.

As a result, the whistle-blower is the only agent in our society who has any semblance of an ability to become aware of abuses of this power and bring them to the attention of a trusting public. However, part and parcel with the decision of an individual to buck the system is a possibility of a larger picture to which one does not have access. This becomes all the more perilous when the issue is one of national security and military action, as the consequences of one’s actions may well endanger lives or compromise a larger good.

Imagine the impact of a Bradley Manning publicly releasing information about the Allied decoy operation to divert Nazi attention from Normandy in World War II without the larger knowledge of the bigger picture. A young man could easily come to believe this was a colossal waste of government resources, and worthy of public knowledge in order to reroute those funds to soldiers in need of supplies elsewhere in the Pacific and in England. Although hyperbolic, the question posed by the situation stands in regards to the case of Bradley Manning: Is there a distinction between a treasonous agent overtly acting on behalf of an enemy government for the purpose of hurting their fellow citizens, and a individual who believes their actions are for the benefit of their fellow citizens but result in the byproduct of a more informed enemy?

Therefore, when we consider a capital charge of treason by way of giving aid and comfort to the enemy – the only crime specifically listed in the Constitution – we must look at precisely the way the amendment is worded to determine the spirit of the law.

Our Founding Fathers explicitly used the word “and” between “aid” and “comfort.” (Comfort in this case, implying a sense of security rather than humane action.) They could have used “or,” which would have an entirely different meaning. By inextricably linking these two points together, a conviction of treason becomes inherently infused with an intentionality of malice rather than a simple result of aid. The wisdom of the acknowledgement that a traitor is only someone who knowingly harms the public with the intent of aiding and providing security for the enemy – to provide aid and comfort – is precisely the difference between Bradley Manning and, say Anwar Al-Alwaki, whose intention was to hurt his fellow American citizens by way of aiding our enemies.

Many, many people want to make either a patriotic martyr or a filthy traitor of Bradley Manning. I see him as neither. I think he acted in a way that he believed was right, but very possibly naively. As such, I believe the court was correct not to convict him of being a traitor to his country. However, I also think that his actions were wrong and those crimes demand punishment. In this case, the conviction of espionage – spying on one’s own government – was exactly the crime that was committed and I applaud the court for not bowing to frothing public opinion.

The final chapter of Bradley Manning’s story is yet to be written. Fortunately, that story will not end in the death of a well-intentioned, although misguided, young man.

Ben Tomkins is a violinist, teacher, journalist and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.

 

Debate Right: Our enemies surf the web, too

By Rob Scott

 U.S. Army soldier Bradley Manning committed espionage and possibly treason, regardless of who received the leaked information.

Manning was arrested in May 2010 in Iraq on suspicion of having passed classified material to the website WikiLeaks. He was charged with 22 offenses, including communicating national defense information to an unauthorized source and aiding the enemy. Manning was convicted last week of most of the charges – including several violations of the Espionage Act – but was acquitted of aiding the enemy, the most serious charge. The information Manning released was thousands of documents from cables between American embassies and consulates, war logs in Afghanistan and Iraq, American air strike information and more.

Manning supporters claim that he simply was whistle-blowing on corruption. They argue Manning was similar to those whistle-blowers like “Deep Throat” during the Nixon presidency. They believe Manning was only revealing military corruption in the Bush and Obama Administrations’ wars in Afghanistan and Iraq. The prosecution disagreed and claimed Manning committed high treason, including putting national security and American lives at risk.

“Treason” is a very scary word and has roots in the U.S. Constitution. The contours of treason are sharply restricted by Article III of the Constitution: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

For good cause, the prosecution lobbed the word against U.S. Army Private Bradley Manning due to the public embarrassment the U.S. experienced from the leak of classified documents. He has been compared to many others who have committed espionage crimes, like Julius and Ethel Rosenberg, accused of giving information about the atomic bomb to the Soviet Union. Others include John Brown for his raid at Harper’s Ferry; Iva Toguri D’Aquino, who broadcast anti-American propaganda during World War II and became known as “Tokyo Rose”; and Benedict Arnold during the American Revolution.

Due to the constitutional limits on the charge of treason, convictions have been few and all of those examples were only convicted of espionage.  The legal charge of treason has often been used to prove a point and serve as a warning to those who dare attempt it. Consider the 1851 trial of citizens who took up arms near Christiana, Penn. to resist a legally constituted posse trying to enforce the Fugitive Slave Act. Those who defended the escapees were charged with treason. The prosecutor argued that they “arrayed in a war-like manner.” Ultimately, they were acquitted of the charge.

Today, there are countless instances of individuals taking up arms to resist the application of law, but ordinary criminal processes are perfectly sufficient to deal with such cases. Treason is tough to prove and it should be due to the severity of the charge. A traitor is no ordinary criminal in our justice system, especially one who served in the armed services. A traitor doesn’t just violate the law, but rather elevates the enemy’s cause above their own country and fellow service members, setting out to harm and perhaps defeat the very nation whose laws protect him.

Ultimately, the dynamic turns to what Manning’s goal from the release of the documents truly was. Who he released the information to is immaterial due to technological advances. Whether he sent the information to the media for a sunshine purpose or sold the information to a foreign power, the information is in the public sphere. And the information contained U.S. secrets regarding national security and possibly may put American lives in jeopardy.

Manning does not have the right to release classified information to the public, regardless of his belief of its release. As a whistle-blower, as his supporters claim, Manning had others he could have approached with what he deemed was whistle-blowing information. He could have gone to his superior officer, or even commander. Manning could have contacted the Judge Advocate General for assistance or even the U.S. Justice Department.

As a soldier, Manning must be and is treated differently than a regular U.S. citizen. Private Manning swore an oath as a soldier in the U.S. Army. One of the principles in that oath was not to commit treason and assist an enemy – whether foreign or domestic. Manning’s actions are deemed wrong and he is being used as an example.

He not only let down those men and women both past and present that protect our American way of life, but all U.S. citizens. Armed service members hold a special place in our country. We honor them and respect them for their sacrifices. Part of that sacrifice is they do not enjoy the same rights as a regular U.S. citizen, due to the nature of military and defense.

I, more than anyone, respect the First Amendment and the Freedom of the Press. However, in order to protect our Republic, the military must be strong for national security. What Manning did by releasing classified documents to a media web outlet is no different than selling them to a foreign power.

The effect is still the same. Our enemies surf the web, too.

 

Rob Scott is a practicing attorney at Oldham & Deitering, LLC. Scott is Chairman of the Montgomery County Republican Party and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or gemcitylaw.com.

 
 
 

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