On February 23, charges were brought against Private Bradley Manning among which was the charge of “aiding the enemy,” an offense that could bring the death penalty if convicted. Manning is accused of providing at least ten thousand confidential military documents and videos to the organization WikiLeaks, which WikiLeaks then published on its website for public viewing. Among the many materials that Manning is accused of leaking, is a highly controversial video from July 2007, which shows an American military attack in Iraq that resulted in numerous Iraqi civilian deaths.
Prosecutors are charging Manning under the Code of Military Justice, the code of laws that regulates the United States Military. While prosecutors are not seeking the death penalty, Manning could still receive life in prison if convicted of all charges. Along with the charge of aiding the enemy, he faces charges of theft, fraud and wrongfully releasing intelligence information. Manning was an analyst for the Army, which meant he had access to intelligence systems. Allegedly, after viewing sensitive information, Manning would save it on his personal computer and then transmit the information to WikiLeaks.
While Manning is facing criminal charges, Julian Assange, the founder and Editor-in-Chief of WikiLeaks, faces no criminal charges to date regarding the publication of classified military information. The U.S. Department of Justice has expressed concerns over the difficulty in getting a conviction against Assange. Although his organization’s actions likely constitute a crime under the Espionage Act, there are concerns over conflicts with the right to freedom of press. The Constitution provides the right of individuals to publish news AND the right of the public receive news without government interference. If the Department of Justice were to bring charges against Assange for publishing the classified documents, it could be considered a restriction on this right.
In 1971, the Supreme Court reviewed a case with a similar situation. In this case, New York Times v. U.S., a military analyst provided a confidential study to the New York Times, which was then published. The analyst was charged under the Espionage Act. The Court ruled that the New York Times could publish the confidential material, but only because the government did not meet it’s burden for justifying an injunction prohibiting its publishing. Unfortunately, the Supreme Court did not rule on whether the release of the classified documents to the press was protected under the Freedom of Press Clause or whether the publishing of the documents was otherwise protected under the Constitution. This issue is still open for the court to resolve. Maybe this new situation with WikiLeaks will end up at the Supreme Court where they can decide what limits the right to press has on espionage charges.
Bethany PeakBlogger, Criminal Law Brief
Image by Acidpolly