The Conversation

By Harry Melkonian

Even before his trial commenced, United States Army private Bradley Manning must have known that he would be spending a significant time in prison. Think decades rather than years.

Manning pleaded guilty in February 2013 to 10 charges relating to the misuse of classified information, including the admission that he supplied a cache of documents to Julian Assange’s whistleblower website WikiLeaks.

Manning could face up to 20 years imprisonment on these charges alone. But he now faces 12 remaining charges that include the very serious allegation that he aided enemies of the United States. If he is convicted of that charge, he could face a life sentence.

Much has been made of the parallels between Manning’s situation and the plight of Daniel Ellsberg, a US military analyst who released the Pentagon Papers during the Vietnam War.

But there is a major difference: Ellsberg released classified information and he faced criminal charges for that act. However, the documents released by Ellsberg were only historical and could not seriously be thought to compromise the interests of the United States.

The Pentagon Papers revealed a lack of candor by Lyndon B. Johnson’s administration concerning the Vietnam War and subjected the US to ridicule, but it did not jeopardise security. The papers were released during the Nixon presidency but none of the documents related to events that occurred during the Nixon administration.

Ellsberg may have done something unlawful but no-one could claim that it compromised ongoing military operations. This point is clearly revealed by the Nixon tapes, in which the president and his aides were initially rather pleased by the leaking of documents that embarrassed Johnson. In fact, the Supreme Court refused to stop publication of the Pentagon Papers because they found that nothing in the documents could possibly be considered a military secret. The charges against Ellsberg were ultimately dismissed because of the misbehavior of Nixon’s infamous plumbers unit.

But Manning is charged with releasing many thousands of government documents and not just historical records. The US government contends that this distinguishes Manning from Ellsberg’s situation — Ellsberg simply released documents that he was not authorised to release, and there was not a serious claim that his conduct put any American interest at risk.

To convict Manning on the more serious charges, the government cannot simply allege that Manning did something he was not supposed to do. That issue is no longer in dispute as he admits to leaking the documents: rather, the prosecutors must now prove that Manning’s conduct actually aided the enemies of the United States.

Proof of giving aid to the enemy can be quite elusive and the government clearly faces real challenges. Much has been made of the fact that some of the leaked information was found among the possessions of Osama bin Laden. However, while this may be an interesting tidbit, it really means very little if anything. The fact that bin Laden had information disclosed by Manning does not mean that the information assisted him in any current or future act directed against the US.

The question is: did the information Manning released directly aid the enemies of the US? To prevail on this point, the government will really need to show that something that was illegally disclosed was both current and of use to bin Laden. Evidence that Manning disclosed current or future troop deployments, code breaking information, future strategy or identities of undercover agents would be rather convincing and persuasive evidence of having aided the enemy.

The government does not have to prove that bin Laden said to someone that he was grateful for the leaked information because it helped him plan terror campaigns. The nature of the information itself can be persuasive as to whether it compromised US interests and aided the enemy.

It is likely that most of the thousands of leaked documents are not of interest to friend or foe. The government has the challenge of sifting through them and finding something that can convince an observer it was of direct benefit to the enemy. That will not be an easy task. While Manning’s guilty plea may have assured him some prison time, he has also taken the momentum out of the government’s claims and left the government with a very difficult proof requirement.

Since Manning admits to the theft of the documents, the government will not be able to build on that incident, and it is now irrelevant in the court martial proceedings. The government’s entire case now rests on proving the value of the purloined evidence.

Depending on what is in the file, the odds may now favour Manning being acquitted of the charges of aiding the enemy.

That is some good news, but doesn’t change the fact that he has already admitted to releasing the documents in the first place, an act that may see him sentenced to twenty years in jail.

Either way, Bradley Manning is still looking at a long time behind bars.

This article was originally published at The Conversation