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