THE BLOG
03/13/2013 04:04 pm ET Updated May 13, 2013

Bradley Manning and Military Overreach

Bradley Manning has offered to plead guilty to charges that he unlawfully transferred classified information to persons (in this case, WikiLeaks) unauthorized to receive it. The maximum penalty for this offense is 10 years in prison. Manning also offered to plead guilty to nine other charges. For these 10 pleas combined he could spend as long as 20 years in prison.

The military prosecutors insist that this penalty is insufficient. They also want to convict Manning under a separate statute for aiding the enemy (in this case, al Qaeda) by providing them with classified information. The penalty for this offense is life in prison.

The military's argument that Manning violated the aiding the enemy statute is clearly ill-founded. That statute is intended for situations in which the defendant intends to aid the enemy. No one argues that that was Manning's intent. By every account, his purpose was not to aid al Qaeda but to bring to light what he thought were governmental and military abuses. Even if he violated the unauthorized disclosure law when he shared this information with WikiLeaks, he was not guilty of intending to aid the enemy.

In defense of its position, the military invokes an 1863 case in which a member of the Union army, Henry Vanderwater, published the roster of Union soldiers in a local newspaper. He did so using a code so the import of the information would not be known to others. His purpose in doing this was to aid the Confederate army so they would know how many Union soldiers were available to defend the city. He was found out, court-martialed for aiding the enemy, and served several months in the brig before being dishonorably discharged.

The military prosecutors argue that Manning's case should be governed by Vanderwater's (except, of course, for the penalty). Legal reasoning often consists in choosing among competing analogies. Vanderwater's case is a terrible analogy for Manning's. This is so for at least two reasons.

First, unlike Manning, Vanderwater clearly intended to aid the enemy. That was never in doubt. It was why he intentionally masked the information in code. A better analogy to Manning's situation would be if Vanderwater had openly published the names of the Union soldiers so people in the town could be courteous to them. Even if he could be punished for this act for disclosing confidential information, he would not have been convicted of aiding the enemy. That would clearly not have been his intent. Vanderwater is thus a poor analogy for Manning.

Second, the First Amendment had virtually no meaning 150 years ago when Vanderwater's case arose. Indeed, during the Civil War the military prosecuted and convicted a former congressman, Clement Vallandigham, for giving a speech in Ohio that condemned the Lincoln administration's conduct of the war. Lincoln himself argued that this did not violate the First Amendment. It would be unthinkable today for the government to prosecute a former congressman for criticizing President Obama's handling of the war in Afghanistan. Our appreciation for the First Amendment and for the freedom of speech have changed immeasurably over the last 150 years. In invoking Vanderwater's conviction, the military prosecutors ignore that fundamental change in American law.

Manning's prosecutors argue, finally, that intent to aid the enemy is not required under the statute. But that makes no sense. What makes aiding the enemy sufficiently outrageous to justify life in prison is precisely the fact that the guilty party was intending to aid the enemy. The intent is critical to the very nature of the offense. Indeed, there is apparently no instance in American history in which an individual has been convicted of aiding the enemy without proof that that was in fact his purpose and intent. That, in itself, should be sufficient to settle the meaning of the statute.

A sentence of up to 20 years in prison for Bradley Manning is more than sufficient to serve any legitimate interest of the government. The military prosecutors should accept his offers to plead guilty, drop the wholly unfounded and unjust "aiding the enemy" charge, and move on to more important things.

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