NEW HAVEN, Conn. - Must the government take every possible ounce of flesh from Pfc. Bradley Manning in punishing him for his massive data dump to WikiLeaks? The woeful answer is yes.
Thursday, the military judge in Manning's trial decided not to drop the most serious - and least supportable - charge against him, "aiding the enemy." The government shouldn't have brought this charge in the first place. Whatever you think of Manning, it sets a terrible precedent for whistle-blowers. And the only gain is the possibility of a life sentence for a 25-year-old who has already pled guilty to charges that could put him in prison for 20 years. This is about revenge, not justice.
Manning's leak was, of course, legion. In 2009, he gave WikiLeaks reams of diplomatic cables, logs from the Iraq and Afghanistan wars, files from Guantánamo, intelligence memos, and the video of an Apache helicopter attack in Iraq that showed the "collateral" death of a Reuters photographer and his driver. Manning has admitted to the leaks, and he pled guilty to 10 of the counts against him. But he says he's not guilty of aiding the enemy because he didn't intend the publication of the leaked material to help terrorist groups like al-Qaida.
Here's what the law says: The charge applies to "any person who aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or 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." The language is broad - the judge didn't make this up out of whole cloth. But in other cases, courts have required a defendant to specifically intend to help the enemy. The charge has been reserved for traitors who whisper in the ears of our foes. As Yochai Benkler, one of the defense experts at Manning's trial, wrote in March in the New Republic, the charge of aiding the enemy was previously used "in hard-core cases where somebody handed over information about troop movements directly to someone the collaborator believed to be 'the enemy,' to American POWs collaborating with North Korean captors, or to a German-American citizen who was part of a German sabotage team during WWII."
None of this fits with the facts surrounding Bradley Manning. For the government and the military, his leaks were destructive and crazy making. But he says he did it to spark public debate. He had increasing doubts about the war, and he wanted to expose American wrongdoing so the public would know what was happening.
"I felt that we were risking so much for people that seemed unwilling to cooperate with us, leading to frustration and anger on both sides. I began to become depressed with the situation that we found ourselves increasingly mired in year after year," Manning said in court earlier this year. "I also believed the detailed analysis of the data over a long period of time by different sectors of society might cause society to re-evaluate the need or even the desire to even to engage in counterterrorism and counterinsurgency operations that ignore the complex dynamics of the people living in the affected environment everyday."
To justify today's ruling, prosecutors argued that "the evidence will show that the accused knowingly gave intelligence to the enemy." The proof was that some of the documents, once online, reached Osama bin Laden and were found on his computer. In other words, by giving the information to WikiLeaks, Manning was giving it to the terrorists. This is a shockingly broad interpretation of a law that was written too sweepingly. It implicates all kinds of people who publish things that could hurt U.S.interests by tarnishing our image abroad. Journalists do this routinely; So do plenty of people on social media. It's called free speech.
Most of the critics have no access to the kinds of damaging goods that Manning had. But now when they do, they will have to fear that publishing it is the legal equivalent of deliberately handing it to terrorists. As Benkler points out, it doesn't matter if the publishing platform is WikiLeaks or The New York Times or Twitter. And this theory of aiding the enemy "is unprecedented in modern American history." You have to go back to the Civil War, and a case in which a Union officer gave a newspaper in Virginia rosters of Union soldiers, to find a case like Manning's.
If Manning spends the rest of his life in prison for an act of defiance in his early 20s, this will follow upon conditions of pretrial detention that, in a major understatement, the judge found to be "excessive." Manley was held in solitary confinement for 23 hours a day during his nine months in a military brig. He had to sleep naked, without sheets or pillows. He had no way to exercise. Supposedly, this was because he was a suicide risk, but it looks much more like another form of revenge.
At this point, not even Manning is arguing that he should go free. His case isn't about guilt or innocence. It's about proportionality. The government and the court are in danger of crossing the line into a dark place.
There is enough room to punish Bradley Manning without going there, and more than enough reason to stay away.
Bazelon is a Slate senior editor and writes about law, family, and kids.