Did Bradley Manning “Aid the Enemy”? Did The New York Times? (Updated)

by Kevin Jon Heller

As Roger noted earlier, Bradley Manning has been formally charged with “aiding the enemy,” a potentially capital offence.  (The military has said that it will not seek the death penalty.)  The strength of the charge, however, is difficult to determine. Here is the text of Article 104 of the Uniform Code of Military Justice:

28. Article 104—Aiding the enemy
a. Text of statute.
Any person who—
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or correspond with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.

The charge sheet provides almost no information about the allegations against Manning.  It simply charges him with a violation of Article 104, “[i]n that Private First Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, without proper authority, knowingly give intelligence to the enemy, through indirect means.”

To analyze the strength of the charge, we need to know whether the military intends to rely on 104(1) or 104(2).  104(2) would seem to be more appropriate, given that the case involves the dissemination of information to the enemy, not the provision of tangible items.  To be sure, 104(1) also prohibits aiding the enemy with “other things.”  The canon of construction ejusdem generis, however, would seem to limit “other things” in 104(1) to things that are themselves tangible.  That interpretation is supported by the existence of a separate paragraph, 104(2), that specifically addresses information.

So, is there a colorable argument that Manning violated 104(2)? Note first that nothing in 104(2) specifically requires the intent to aid the enemy.  Indeed, intent is mentioned in the elements of Article 104 only concerning an attempt to aid the enemy under 104(1); following traditional attempt doctrine, such an attempt requires proof that the defendant intended to complete the crime. Presumably, then, as long as the defendant “gives intelligence to or communicates with or hold any intercourse with the enemy, either directly or indirectly,” he is guilty under 104(2).

Has Manning done that?  Here is where things get tricky.  The military is not claiming that Manning directly gave intelligence to the enemy.  (Julian Assange is not the enemy, no matter what you might think of him.)  The charge is based on the fact that indirect communication with the enemy is, at least textually, no less criminal than direct communication.  The military’s argument thus appears to be this: (1) Manning stole intelligence from the U.S. and gave it to WikiLeaks; (2) WikiLeaks published that intelligence on the internet; (3) the “enemy” accessed or had access to that intelligence, completing the crime of aiding the enemy.

The problem for the military, it seems to me, is that this argument may not satisfy the definition of “indirectly” aiding the enemy.  The UCMJ subdivides 104(2) into two separate offences, “giving intelligence to the enemy” and “communicating with the enemy.”  Here is the first offence, according to the Manual for Courts Martial:

Giving intelligence to the enemy is a particular case of corresponding with the enemy made more serious by the fact that the communication contains intelligence that may be useful to the enemy for any of the many reasons that make information valuable to belligerents.  This intelligence may be conveyed by direct or indirect means.

This offence can be committed indirectly, but it clearly contemplates a situation in which the enemy actually received the intelligence, either by directly receiving it from the defendant or by indirectly receiving it through the defendant’s intermediary.  Hence the following sample specification in the Manual for Courts Martial:

In that ____ (personal jurisdiction data), did, (at/on board — location), on or about ____ 20 __ , without proper authority, knowingly give intelligence to the enemy, by (informing a patrol of the enemy’s forces of the whereabouts of a military patrol of the United States forces) (____).

It is possible that Manning is guilty of this offence, assuming that the military can prove an enemy of the United States did, in fact, access the information released on the internet; again, indirect conveyance is sufficient and the intent to aid is not required.  But that might be difficult to prove; does the U.S. government have access to WikiLeaks’ incoming IP addresses?  Moreover, such a prosecution creates its own problems, as I’ll discuss in a moment.

Now consider the second offence, “communicating with the enemy”:

No unauthorized communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communication, correspondence, or intercourse may be conveyed directly or indirectly.

To begin with, note that this offence specifically states that receipt of information is not required, supporting the idea that “giving intelligence to the enemy” does require proof of actual receipt.  “Communicating with the enemy” thus seems like the stronger charge, especially given that “[t]he offense is complete the moment the communication, correspondence, or intercourse issues from the accused.”

But the issue is actually more complicated.  The drafters of the Manual for Courts Martial seem to have been concerned that newspapers would be guilty of “communicating with the enemy” simply by publishing information capable of aiding the enemy.  Consider the following sample specification, which also appears as a “model specification” in the Military Judges’ Benchbook (emphasis mine):

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, without proper authority, knowingly (communicate with) (correspond with) (hold intercourse with) the enemy (by writing and transmitting secretly through lines to one__________ whom he/she, the accused, knew to be (an officer of the enemy’s armed forces) (__________) a communication in words and figures substantially as follows, to wit: (__________) (indirectly by publishing in __________, a newspaper published at __________, a communication in words and figures as follows, to wit: __________, which communication was intended to reach the enemy) (__________).

Note the final bolded clause: indirectly communicating information to the enemy via a newspaper is only criminal if the communication “was intended to reach the enemy.”  Is that a necessary element of  “communicating with the enemy” when indirect communication — or at least indirect communication through the media — is at issue?  A definitive judgment, unfortunately, is not possible.  The sample specification contains the requirement, but the “nature of offense” section of the Manual for Courts Martial does not.

The military, then, would seem to have three possible arguments under Article 104(2):

[1] Manning is guilty of “giving intelligence to the enemy,” because he gave intelligence to WikiLeaks that he knew would be made available on the internet, and an enemy of the United States did, in fact, access that information.

[2] Manning is guilty of “communicating with the enemy” because he gave information to WikiLeaks intending that an enemy of the United States would receive it.  (The “intent required” view.)

[3] Manning is guilty of “communicating with the enemy” because he gave information to WikiLeaks knowing that it would be published on the internet, where any enemy could access it. (The intent not required view.)

The second argument is the weakest, because it is difficult to argue that Manning intended the information he allegedly stole to reach the enemy. I have yet to see the military or the U.S. government claim that he released the information to WikiLeaks hoping that it would find its way to al-Qaeda.  Indeed, even Manning’s most passionate critics seem to accept that he saw himself as a whistleblower, not as a footsoldier in the war against the United States.  (To be clear, the offence as I have sketeched it would not require the intent to actually aid the enemy; the intent for the enemy to receive the information would be enough.)

The first and third arguments are thus the most plausible.  Both, however, suffer from a very significant problem: if Manning has aided the enemy, so has any media organization that published the information he allegedly stole.  Nothing in Article 104 requires proof that the defendant illegally acquired the information that aided the enemy.  As a result, if the mere act of ensuring that harmful information is published on the internet qualifies either as indirectly “giving intelligence to the enemy” (if the military can prove an enemy actually accessed the information) or as indirectly “communicating with the enemy” (because any reasonable person knows that enemies can access information on the internet), there is no relevant factual difference between Manning and a media organization that published the relevant information.

To be sure, the UCMJ only applies to soldiers, so WikiLeaks or the New York Times could not actually be charged under Article 104.  But there is still something profoundly disturbing about the prospect of convicting Manning and sentencing him to life imprisonment for doing exactly what media organizations did, as well.

NOTE: My thanks to Glenn Greenwald and FireDogLake for linking to this post.

http://opiniojuris.org/2011/03/02/did-bradley-manning-aid-the-enemy-did-the-new-york-times/

27 Responses

  1. Why it is disturbing that Manning can be punished and the NYT can’t? Manning affirmatively took and oath and accepted responsibilities to support and defend the Constitution of the United States when he enlisted, and the NYT didn’t. How is this any different from something like Article 88, contempt toward officials? The NYT can be as contemptuous as it wants toward the President, but a commissioned officer can be court-martialed. They’re not in analogous positions.

    A better example might be a reporter embedded with a combat unit (who potentially could be subject to the UCMJ under Article 2, section 10) who publishes similar information in a story for his paper. I believe court-martial in that instance would be wholly appropriate.

    Personally, I think you’re trying to press your point that “newspapers publishing all this information is a good thing, so no one involved should be punished” beyond the point of reasonableness.

  2. Peter,

    I think it is perfectly legitimate for you to distinguish between Manning and the media on the ground that Manning owes a duty of loyalty to the United States that, at least legally, a newspaper like the NYT does not.  But I think it is equally legitimate to point out that numerous newspapers have engaged in precisely the same acts that might make Manning guilty of aiding the enemy — which means that, morally if not legally, they have no less aided the enemy than Manning.

    As for your final point, you are of course entitled to your opinion.  So who, exactly, do you think should be charged among the media?  And with what?

  3. I suppose I’m not all that troubled if no one in the media is able to be prosecuted for the whole WikiLeaks affair. As you ably point out, however, there is a distinction between legal responsibility and moral culpability. After all, there are news outlets which covered the WikiLeaks story without actually linking to their site or republishing any of the leaked material.

    Admittedly, I believe there is a distinction between Assange and more traditional media organizations, though such a distinction is more intuitive on my part than legally effective. Maybe it comes down to purpose; newspapers like the NYT (or the Guardian in the UK, which arguably has even less moral obligation to protect American classified information than a U.S. newspaper) have other purposes besides printing government secrets; WikiLeaks was more or less set up for that exclusive purpose, and so the motive behind its founding casts doubt on its morally upstanding nature for me. Again, I don’t claim this is a distinction with legal significance.

  4. Is there a precedent for charging a public media outlet with a crime under the UCMJ? I know corporations can qualify as persons in certain cases under Constitutional law, but military law?
    The UCMJ is the standard code of criminal law for soldiers, not media outlets.

  5. Kevin, Are you equally troubled by the fact that a lawyer who leaks client documents to a newspaper is subject to professional discipline, but that the newspaper which publishes those documents is not?

    The UCMJ applies to soldiers and not others because soldiers occupy a particular office, are given unique powers and authority by virtue of that office, and therefore owe reciprocal duties not to abuse that authority. Third parties do not owe the same duties, just because they are not entrusted with the same powers.

    It is more blameworthy for an office holder to breach a duty of confidentiality with respect to information that comes into their possession solely by virtue of their job, than it is for a third party to trade in information that he or she was never entrusted with in the first place.

  6. Peter should read the oath of citizenship people take when they become American citizens. We all agree to defend and support the Constitution, yes, even the citizens working at the NYT.

    The idea that Manning had a higher duty to the constitution than the rest of us Americans is a farce, but one that makes it easier to sit by doing nothing while the constitution is evicerated by things like the Patriot Act, extrodinary rendition, torture, wars of aggression, etc.

  7. Response…
    Liz 
    In response to your question concerning any precedence for the application of the UMCJ to a public media outlet, there is none.
    10 USC 802 lays out who is subject to the UCMJ.  List is below, essentially there has to be a nexus to the military, either in terms of being a member of the military or in limited circumstances civilians who serve with or accompany the military during war or a declared contingency operation.

    1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.
    (2) Cadets, aviation cadets, and midshipmen.
    (3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.
    (4) Retired members of a regular component of the armed forces who are entitled to pay.
    (5) Retired members of a reserve component who are receiving hospitalization from an armed force.
    (6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.
    (7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.
    (8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.
    (9) Prisoners of war in custody of the armed forces.
    (10) In time of war, persons serving with or accompanying an armed force in the field.
    (11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
    (12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

    Read more: http://vlex.com/vid/802-art-persons-subject-this-chapter-19217771#ixzz1FYSkP1Xj

  8. Liz: There is a jurisdictional provision in the UCMJ that extends its jurisdiction to “In time of declared war or contingency operation, persons serving with or accompanying an armed force in the field.” This has extended to military contractors in Iraq, and could also be used to apply to embedded reporters in Afghanistan or Iraq, for example. Probably not the newspaper as a corporate entity, or the Stateside editors, though.

    GD: That may be true for naturalized citizens, but birthright citizens don’t have to take such an oath. Moreover, I absolutely believe that by enlisting (and by getting a security clearance), Manning accepted a special position of responsibility with the federal government, and therefore had special obligations toward the federal government re: classified information that average citizens might not, whatever the default commitment you might believe every U.S. citizen has to support and defend the Constitution and the laws of the United States.

  9. ‘backwards country’ — strange. Australian time zones are between 8–10 hours *ahead* of UTC, whereas US time zones are 5–10 hours *behind* UTC. Indeed, as I type this post it is currently the 4th of March in Australia but only the 3rd of March in the US.

  10. Response…
    I believe that the mens rea to be proven beyond a reasonable doubt would be intent to aid the enemy (:knowingly”), not reckless indirect aiding or “should have known” (a criminal negligence standard).  But the last portion stating “or holds any intercourse with the enemy … indirectly” is different and probably void for vagueness.

  11. I’m sorry, Nathaniel, KJH is an American. You are stuck with him, no matter where he lives :)

    But I confess that I don’t really see his point here either, albeit more for the reasons put by Peter Orlowicz than yours.

  12. Jordan,

    The prohibited act in 104(2) is not aiding the enemy, it is giving information to the enemy, etc.

    The mental element is doing so “knowingly”.

    So long as the accused knowingly passed intelligence to the enemy, directly or indirectly, the offence is complete.

    Whether the accused intended to help the enemy is immaterial.

  13. I am not bothered as between Manning and the Press for the reasons stated above. Manning as a whistleblower subject to the UCMJ is putting himself in that spot and has assumed that risk of prosecution.  Whether that prosecution is succesful or not is another point.  I understand there are 22 charges. 

    No doubt I am morally obtuse, but I do not see a moral reproach for the reporters putting the Manning allegedly received stuff out there – the press publishes stuff.  

    I would find a problem in distinguishing Assange, Wikileaks, and the press.  The three are just press or people in the press with different target marketing approaches to their press role. 

    Obviously, if there was some kind of connection to Manning that would amount to conspiracy, then these entities would be at risk for criminal prosecution if there is an appropriate non-UCMJ statute.  I understand that none of that has been found as of this time.

    Their publishing without (I hope at least) too much of a national security bias of the kind discussed recently by Glenn Greenwald permits me to do what I think is the most important thing here.

    The broader question is that when we see what is leaked and how it differs from the “official line” we are given on the various things, as citizens we should call our government to account for its disingenuousness (to be generous to my government) toward us.

    That focus on accountability of the government for what it does is the part that I find missing.  Manning is the guy at the bottom being made to take a fall – fluat stercus.  What he revealed should make us look up higher – refluat stercus – at what he has told us about what the folks up top are really like.

    Like the efforts to block the Spanish prosecution of the torturers. Bush crime, Obama coverup.

    Best,
    Ben

    I WOULD be bothered as between Assange, Wikileaks, and the Press

  14. Kevin,
    While the UCMJ applies for the most part only to soldiers and others listed under article, art. 104 is broader. It applies to “any person,” not (as most punitive articles do) to “any person subject to this chapter” (i.e., the UCMJ). Why wouldn’t it apply to a reporter?

  15. If it is unlawful to publish information on the internet that could then POSSIBLY be intercepted or recieved by the enemy (indirectly without intent), by an individual within the realm of US Government, then by that logic, one cannot “email” any information (as the information leaked was a bunch of emails) that could potentially leak over the internet, as that counts as publishing the information. i.e.  The messages intercepted and sent to WikiLeaks were published messages in the first place, and could have potentially leaked prior to their interception by Manning.

  16. Will: That’s why the federal government has a separate computer network for classified material. The e-mails allegedly leaked were off of the classified network, I believe. Everyone who has access to a classified network like that has obligations to protect the data contained on the network.

  17. A law which makes use of death penalty is an ennemy of human rights.

  18. Bradley Manning exposed a criminal act by agents, (helicopter crew,) of the government who murdered unarmed civilians. Collateral damage does not apply in this instance. Collateral damage is an impossibility, because it is a “given” that the deaths of civilians will occur during a belligerent action, (invasion,) against a sovereign foreign nation. Therefore the deaths of civilians is not collateral, it is premeditated. 

    It was Bradley Manning’s duty to report that murders had taken place. Manning neglected to use the chain of command to report the crime, because he lost faith in the chain of command’s willingness to take the initiative against the criminal act.

    The other information that Manning is alleged to have released did not provide information of troop movements, operations, troop strength, tactics or strategy. While the information may have been embarrassing, it in no way rises to the level of providing intelligence harmful to the military’s mission.

  19. It’s worth while to distinguish between “information” that includes the unredacted names of informants, and “information” that does not. While Art. 104(2) criminalizes knowingly giving either type of information to the enemy indirectly, the crime would be much less grievous (and thus merit a lesser sentence) if it cannot be proven beyond a reasonable doubt that he knew that Assange would irresponsibly fail to redact out the sensitive bits. Of course, this assumes that the knowledge requirement applies to the type of information, and not just to the act of giving. Any comments?

  20. While charging Manning under the UCMJ is a predictable risk of his alleged activity,  the kind of treatment described at  http://www.nytimes.com/2011/03/04/us/04manning.html?src=recg .  This is more outrageous detention policy.  What a brutalized country we are becoming.
    Best,
    Ben

    Best,
    Ben

  21. On the duty to disclose up the chain of command, this issue has been raised in other settings and one option that has been mentioned is reporting to Congressional oversight committees (Armed Services) to stay compliant with the UCMJ requirements.  The tack he took was one that exposes himself to the risk of prosecution he is suffering – but he may be sufficiently convinced of the “greater good” his alleged acts may have achieved that he considers it worth the sacrifice.  Giles Corey did a similar calculation during the Salem Witch Trials (something I wrote about in a recent article).
    Best,
    Ben

Trackbacks and Pingbacks

  1. […] the UCMJ, applies only to members of the military — is incredibly broad. Under 104(b) — almost certainly the provision to be applied — a person is guilty if he “gives intelligence to or communicates or corresponds with […]

  2. […] who is cited in Glenn Greenwald’s post on the military’s new charges against Manning, writes in reaction to the charges, “if the mere act of ensuring that harmful information is […]

  3. […] of the UCMJ, applies only to members of the military — is incredibly broad. Under 104(b) — almost certainly the provision to be applied — a person is guilty if he “gives intelligence to or communicates or corresponds with or […]

  4. […] UCMJ, applies only to members of the military — is incredibly broad. Under 104(b) – almost certainly the provision to be applied – a person is guilty if he “gives intelligence to or communicates or corresponds with […]

  5. […] the UCMJ, applies only to members of the military — is incredibly broad. Under 104(b) — almost certainly the provision to be applied — a person is guilty if he “gives intelligence to or communicates or corresponds with […]

  6. […] who is cited in Glenn Greenwald’s post on the military’s new charges against Manning, writes in reaction to the charges, “if the mere act of ensuring that harmful information is […]