The judge presiding over the court-martial of Pfc. Bradley Manning, accused of being behind the largest leak of classified information in U.S. history, is expected to hand down a decision today. If Manning is found guilty of aiding the enemy, after pleading guilty to numerous other charges, he could face a sentence of life in prison. We get the latest from the courtroom and analysis of the decision.

Guests

  • Elliott Francis WAMU Anchor and Reporter
  • Victor Hansen Associate Dean and Professor, New England Law, Boston; Vice President, National Institute of Military Justice; retired Army Judge Advocate General's Corps officer

Transcript

  • 13:40:34

    MR. KOJO NNAMDIEarlier this hour, in a verdict three years in the making, Private Bradley Manning was found not guilty of aiding the enemy for giving secrets to Wikileaks. He had his hand in the largest leak of classified information in U.S. history, and the military arrested him for it in 2010. Manning later acknowledged the leak and pleaded guilty to some charges earlier this month, but whether he would face the steep charge, aiding the enemy, came down to who he was. Was he a traitor or a naive humanist when he released 700,000 classified documents to the whistleblower site, Wikileaks.

  • 13:41:05

    MR. KOJO NNAMDIWhile the Judge acquitted him on that charge, he found him guilty on most other charges for which he could still face many years in jail. Here to discuss what this means for whistleblowers and investigative journalism in the Internet age is Elliott Francis. He's a WAMU 88.5 anchor and reporter. He joins us from Fort Meade, Md. Elliott, thank you for joining us.

  • 13:41:27

    MR. ELLIOTT FRANCISThank you, Kojo.

  • 13:41:28

    NNAMDIAlso joining us by phone from Boston is Victor Hansen. He is associate dean and professor of law at New England Law in Boston. Before joining New England Law, he served a 20-year career in the military which included work as a prosecutor and a defense attorney. He's vice president of the National Institute of Military Justice. Victor Hansen, thank you for joining us.

  • 13:41:48

    MR. VICTOR HANSENHappy to be here.

  • 13:41:49

    NNAMDIElliott, this case has been developing since 2010. Can you explain the significance of the verdict today?

  • 13:41:55

    FRANCISWell, Kojo, it comes down to one charge and one charge only, the one Manning was found not guilty of, aiding the enemy. This was huge, and here's why. It became very clear after the testimony of Harvard professor Yochai Benkler, who essentially testified and gave some very compelling testimony that suggested that Wikileaks was a legitimate, and still is according to him, a legitimate news organization. And in fact, if in fact Manning was found guilty of aiding the enemy, it would set the kind of precedent that in fact would be quite chilling for journalists and quite significant for the First Amendment going forward in that the aiding the enemy charge historically has been one where the way it's written people have given information directly to the enemy.

  • 13:42:49

    FRANCISI hand it from my hand to your hand. In this Internet age, what the prosecutors were suggesting was the indirect passage of information over the Internet, through a blog or through a website, was in fact tantamount to aiding the enemy. And going forward that could mean you, Kojo. That could mean me if we publish something that the government though was sensitive on a blog or on a significant similar other website, we in fact could be brought up on those same charges. So that was significant. That, I think, is the bottom line on this case.

  • 13:43:23

    NNAMDISo for the time being, you and I are safe, Elliott, but you are at the courthouse in Fort Meade. What was the reaction there to the verdict?

  • 13:43:31

    FRANCISThe reaction actually was quite muted. People have warned. The number of supporters who have been here since here the beginning, they've ebbed and flowed, but today there was a very large crowd in the court in the overflow room and elsewhere. But the judge, Judge Colonel Denise Lind, was very clear, and she has been all along, that if there were any disturbances at all she would stop the proceedings and have the people causing the disturbance ejected from the Court.

  • 13:43:58

    FRANCISIn fact, within the week, she ejected, you probably recall, rejected a court sketch artist because of some activity that he was alleged to have engaged in on the Internet. So she's been very strict about that. So when the verdict came down, everybody in the courtroom was very stoic. Manning showed no reaction as did his defense attorneys. The prosecutors showed no reaction, and there wasn't a peep in the courtroom. I was in the overflow room with a number of supporters, and it was pretty quiet there too.

  • 13:44:33

    FRANCISAnd I'll tell you exactly why it might have been quiet. As she was reading the verdict, she read them according to their numerical designation. So at first blush it was very difficult to tell what she had pronounced him not guilty on, and where the other guilty charges were. So I think most people were a little confused in the beginning, but for the most part it was very straightforward and not much reaction.

  • 13:44:58

    NNAMDIElliott Francis is a WAMU 88.5 anchor and reporter. He joins us from Fort Meade, Md. Victor Hansen, what do you make of the verdict today?

  • 13:45:07

    HANSENWell, I think it is an interesting verdict, and to some degree, I agree with Elliott that the focus all along has been this Article 104, aiding the enemy charge. Certainly the government's theory of the case, or theory on this charge, and just taking it directly from the charge sheet itself, they allege that Private Manning aided the enemy through indirect means. So they weren't necessarily alleging that Wikileaks was the enemy, but rather that through Wikileaks the enemy was aided, and that certainly does have a potential chilling effect on legitimate expressions of free speech.

  • 13:45:45

    HANSENOn the other hand, it seems like it was, you know, being found not guilty on that offense is what attracts a lot of the attention, obviously, but it should be remembered that he was found guilty of a number of fairly serious offenses in violation of Espionage Act as it's incorporated into Article 134. So it's clear that Private Manning is going to face some potentially very significant punishment for the offenses that he was found guilty of, which certainly the judge, you know, being very knowledgeable on the law was taking a much less controversial approach by finding him not guilty of the Article 104 charge, but finding him guilty of, in essence, violation of the Espionage Act for which the evidence is probably more direct and the legal theory is much less novel.

  • 13:46:35

    NNAMDI800-433-8850 is our number. If you'd like to offer an opinion or ask a question. What do you think of the Bradley Manning verdict? 800-433-8850. You can send us email to kojo@wamu.org. Victor Hansen, how much time can Bradley Manning face on the charges having to do with the Espionage Act?

  • 13:46:59

    HANSENWell, each violation, as I'm trying to calculate it, and I'm not going to say that my calculations are exactly correct, because I don't know -- I haven't seen exactly what he was found guilty of, but each specification of the violation of the Espionage Act carries with it a maximum of 10 years. And so in the military the punishment is aggregated for each violation of the -- or each specification. So, you know, we're talking potentially decades of potential confinement. Certainly more than the 20 years to which he had pled guilty to earlier.

  • 13:47:36

    HANSENThat's not say that that's what he'll get, but I mean, the practical reality is that even though he was found not guilty of the Espionage Act, when you aggregate all of the other offenses that he was found guilty of, the maximum punishment is probably well over 50 or 60 years (unintelligible) confined to.

  • 13:47:54

    NNAMDIAnd Elliott Francis, could that be the reason why there was no great outburst of joy among the supporters of Bradley Manning in the courtroom today?

  • 13:48:02

    FRANCISPossibly. But as I said before, as they were reading the -- as the Judge was reading the verdict, she was referring to it my its numerical equivalent, so unless you had a cheat sheet with you, and even if you did, it was tough to tell left from right, up from down, in terms of the charges. But I will tell you this. I think Victor's calculations are pretty much on point, and it is very difficult to tell, but David Coombs, the lead defense attorney, did come out after the verdict and spoke briefly with the supporters, and he suggested that going forward with the penalty phase, they're looking at knocking down some 134 years of prison time based on the guilty verdicts here today.

  • 13:48:49

    FRANCISAnd again, that's supposition, and maybe to a degree exaggerated on his part. He was talking to the Manning supporters, but Victor is correct. It's going to be way over the 20 years that people have suggested up to this point.

  • 13:49:04

    HANSENYes. And I think that's right. I mean, I wouldn't -- I'm pretty sure that attorney Coombs is accurate in his numbers, so I'm not surprised that he's come up with a number well over a hundred years. So in some ways you might look at this as a hollow victory on Manning's part in the sense that, okay, he wasn't convicted of this aiding the enemy charge. But clearly again, I think the judge is quite sophisticated. She knows that charge -- the legal theory that the government put forward on that charge is, I think, a stretch and everybody's...

  • 13:49:34

    NNAMDIWell, Victor Manning, allow me to interrupt. Because Manning's lawyer argued that an aiding the enemy charge has to prove general evil intent. How does one go about proving general evil intent one way or the other?

  • 13:49:47

    HANSENWell, you know, that's an interesting question. If you look at how the charge is set out in the Uniform Code of Military Justice, it does not refer to general evil intent. What it says is that the individual providing the information must knowing have given intelligence information to the enemy. Now, that doesn't suggest in and of itself that there has to be an evil intent, but what it does suggest is that the person giving the information has to know that it's information -- has to knowingly provide that information to the enemy.

  • 13:50:18

    HANSENThis is not a charge that the military charges frequently, so there's not a lot of case law on it, and I think there's a lot of unclarity even if you look at the statute as it's set out here, of what that knowingly means. Certainly the defense is going to argue that it has to show a high degree of ill intent on the defendant's part because that makes their defense easier. On the other hand, the prosecution is likely to argue all he has to do is know that he's providing information and that it's going to get to the enemy in some way, shape, or form. Clearly, the government -- or the judge rejected that theory.

  • 13:50:51

    NNAMDIElliott?

  • 13:50:52

    FRANCISAnd might I add too, while the judge rejected it, rightfully so, because the prosecution -- all along it was clear that the prosecution struggled to establish this so-called evil intent. I mean, there were forensic -- testimony from forensic computer specialists who had pulled notes and chats with Manning, and I remember there was one in particular that he had very early on with a known hacker. In fact, this hacker, the name escapes me right off the top of my head, but he was the person who originally turned manning in.

  • 13:51:25

    NNAMDIYeah.

  • 13:51:25

    FRANCISAnd there was a note that Manning had sent to this particular hacker in which he said, and I'm paraphrasing now, if you had unlimited access to this classified information, what would you do? And it goes on beyond that. I'm taking it slightly out of context, but putting it in context, it was very clear that what Manning -- according to his note to this hacker, what he wanted to do was try to make people aware of this, not necessarily give this to the enemy.

  • 13:51:58

    FRANCISSo this was a thing that the prosecution struggled with mightily throughout this trial, and it was very clear that they probably had not connected all the dots in regards to that coming down to the end of the trial.

  • 13:52:09

    NNAMDIVictor Hansen, this raises the argument again that's been raging for a while. Some argue that Manning was a whistleblower like Daniel Ellsberg who brought the Pentagon papers to light, while others maintain that he was a leaker. Why does that distinction matter?

  • 13:52:24

    HANSENWell, you know, in one sense, it may not matter that much. Certainly for the crimes that he was convicted of, whether he was a whistleblower or a leaker, he can still be guilty of the crimes and violations of the Espionage Act. But I think where it likely matters, or the defense certainly hope it likely matters is when it comes down to determining what's the appropriate sentence. If they can make a case that he had some, although perhaps misguided, but noble motivation for doing this, maybe that gives him some mitigation with the judge.

  • 13:53:00

    HANSENBut I'm not -- I've not been convinced, nor am I yet convinced that that distinction really matters in the military context for the simple reason that whether you're a whistleblower or a leaker, you know, you -- when you come into the military and you swear an oath to obey orders and to keep information private, the fact that you have a motivation that you see as a noble reason for violating that order, I don't think that carries a lot of weight in the military environment, and I think that's likely to be reflected in whatever sentence he receives.

  • 13:53:33

    NNAMDIElliott, ultimately Manning's main defense to the steep charges against him was that he intended to spur a national discussion about U.S. foreign policy. How effective do you think that defense was?

  • 13:53:46

    FRANCISYou know, I'm not sure that that portion of the defense was in his favor. I'd have to say, I think the big turn on this was the testimony, and I think Victor is not only aware, but probably familiar with this individual, Yochai Benkler, the Harvard Law professor. This was about two weeks ago. And Benkler's testimony in regards to how this new media is approached, and how Bradley Manning needed to use that media in a traditional sense, was used, and the result of all that was extremely compelling and just laid a weight on the prosecution.

  • 13:54:44

    NNAMDIGlad you brought that up. Allow me to interrupt, because Elliott just brought up a very important point, Victor Hansen. When you make information available on the Internet, the way Wikileaks or Manning did, you don't really decide who your audience will be. How does that complicate matters?

  • 13:55:01

    HANSENWell, I think that certainly complicates matters, particularly for the Article 104 charge, and I think it's the aiding the enemy charge, and I think that's reflected in the finding of not guilty on that because how do you know? I mean, you don't necessarily have the kind of control, and as Elliott mentioned earlier, clearly the aiding of the enemy charge was drafted for a different age when you were, you know, sneaking behind enemy lines, passing enemy, you know, plans for your invasion or your attack plans to the enemy. That's kind of the historical context in which this article was developed.

  • 13:55:30

    HANSENAnd so now in this new media, the Internet age, where you have, you know, information that goes onto the Internet and you lose complete control of it, it really hard to make a connection or connect the dots that it was done for the express purpose of aiding the enemy. Had, on the other hand, for example, Manning released this information to a member of al-Qaida's public affairs office or whatever that was running an al-Qaida-sponsored network, and that's where he did his first outreach, that would have made the government's linkage much clearer.

  • 13:56:04

    HANSENBut in this diffuse area, you know, age where information can be diffused so easily and so broadly on the Internet, it really does make it difficult to show that your intent was to aid the enemy, or that you even knew that that's what was going to happen.

  • 13:56:21

    NNAMDIElliott?

  • 13:56:22

    FRANCISAnd Kojo, just to answer your question entirely, the notion that Manning wanted to open this dialogue, wanted to share this information and get this conversation going, I don't think really turned much to his defense, because remember, he pleaded guilty to...

  • 13:56:39

    FRANCISYeah.

  • 13:56:39

    FRANCIS...10 lesser charges, and kind of copped to it. He said basically, look, you know, I know I've done wrong. I know I've violated many of the military tenants, but I did it for a reason, so I'm ready to pay the price for that. So they kind of put that aside, I think, halfway through the trial and really concentrated on this aiding the enemy. They really didn't want that to go forward.

  • 13:56:59

    NNAMDIAnd finally, Victor Hansen, now that this long-awaited verdict is out, what's next for Private Bradley Manning?

  • 13:57:05

    HANSENWell, the next big stage is the sentencing phase of the trial. So now that he's been found guilty of these offenses, there will be several days I would imagine of hearings and evidence and testimony regarding what would be the appropriate sentence where the government and the defense will both introduce information, and the judge, again, will make a decision as to what the appropriate sentence is. So that's what's to look forward to next, and I think that will be telling in its own way in terms of what the government -- or what the judge really thought of the strengths of the government's case.

  • 13:57:32

    NNAMDIAnd I guess, Elliott Francis, this is something you will be continuing to cover?

  • 13:57:36

    FRANCISYes, we will. We'll absolutely be there from WAMU 88.5 news trying to cover it right down till the end.

  • 13:57:42

    NNAMDIElliott Francis is a WAMU 88.5 anchor and reporter. He joined us from Fort Meade, Md. Elliott, thank you for joining us.

  • 13:57:50

    FRANCISThank you, Kojo.

  • 13:57:51

    NNAMDIVictor Hansen is associate dean and professor of law at New England Law in Boston. Before joining New England Law, he served a 20-year career in the military. It included work as a prosecutor and as a defense attorney. He is vice president of the National Institute of Military Justice. Victor Hansen, thank you for joining us.

  • 13:58:06

    HANSENMy pleasure.

  • 13:58:07

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

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