David Schanzer: The Big Question Raised by the Bradley Manning Case

[ 0 ] March 12, 2013

by DAVID SCHANZER for ISLAMiCOMMENTARY on MARCH 12, 2013: 

When you cut through the bluster and controversies surrounding the Bradley Manning/Wikileaks case, it raises a difficult unresolved question that has great significance for our democracy:  How can the government be held accountable for its national security policies (and mistakes) in a world where there are far too many secrets, and those who disclose those secrets to the press are violating the law?

The easy questions can be easily dismissed.  Manning is not a First Amendment hero.  He clearly violated his promise to protect the classified information to which he was given access to do his job (and for no other purpose).   If he did not like what those documents showed about the wars in Iraq or Afghanistan or U.S. foreign policy – Manning was free to become an activist after leaving the military. And if he saw genuine government wrongdoing that needed to be addressed, there were multiple legal avenues available to him to register those concerns: first through his chain of command, and/or then to the Army Inspector General or even to Congress.

So a criminal prosecution against Manning is clearly justified. However, determining the severity of the punishment is much more difficult.  Manning pled guilty last month to 10 charges carrying a sentence of up to 20 years. But instead of settling the case, the government is pursuing an “aiding the enemy” charge that carries a life sentence. The stakes for both Manning and our system for government accountability could not be higher.

Today there is a gentlemen’s agreement of sorts between the press and the government. For its part, the government tacitly recognizes that intelligent discussion of national security matters requires the disclosure of some types of classified information to the media. This has led to a routine practice of selective leaking, usually between high-ranking government officials and select members of the elite Washington national security press corps.

Meanwhile, others in the government leak to the press to pursue a policy agenda. While these leaks are usually accompanied by outrage, gnashing of teeth, and promises of a “leak investigation,” the gentlemen’s agreement means that these matters are usually quickly forgotten and written off as the cost of doing business in a messy democracy.

The press’ part of the unstated agreement is to refrain from wholesale publication of national security secrets. The media does not report on troop movements, intelligence sources and methods, scientific information about our weapons systems, or other information that (in the media’s view) could cause actual damage to the nation’s security. The government and the press often disagree on what types of disclosure will result in such “damage,” but because the press has, by and large, acted responsibly when it gets hold of national security information, the government is willing to tolerate at least some level of leakage.

The Wikileaks/Manning case has blown this all apart.

First of all, Wikileaks has provided an outlet for the raw disclosure of classified information, without the filtering mechanism of responsible press outlets. The government cannot, and will not, tolerate this.

More importantly, however, if you put aside the sheer volume of Manning’s disclosures, it is difficult to distinguish Manning’s conduct from leaks that happen in Washington every day. If Manning is convicted during his trial in June for “aiding the enemy” and receives a life sentence – the risks of leaking classified information will have been significantly ratcheted up.

If Manning is given a life sentence because documents he leaked were read by the enemy, the government will be hard pressed to look the other way when far more important secrets than what Manning disclosed show up on the front page of the Washington Post. Manning’s case could damage the détente between the government and the media that has allowed for substantial reporting of national security matters without a constant drum beat of leak prosecutions, subpoenas for reporters to reveal their sources, and the like.

The Manning case presents a potentially existential issue for the national security press. For if Manning can be convicted for life for his leaking, this could have a severe impact on other confidential sources upon which the national security press relies for its existence.  These reporters are concerned that what is already a tough job due to the government’s security apparatus could become virtually impossible. And, they argue, this chilling effect on leakers will damage the ability of the press to keep the public informed, impose government accountability, and stimulate public discussion and debate on some of the most important issues of the modern world.

So we have a situation where giving Manning a slap on the wrist is inconceivable, but imposing severe punishment could harm our democracy.

In a post-Manning world, we may need to put some serious attention to structural reforms that can improve public accountability without damaging national security.

The key source of the problem is over-classification. The government is a serial abuser of the classification system – leading to mass over-classification of information that could be released to the public without damage to the national security.  In the worst cases, over-classification is used to hide embarrassment, rather than protect security – which has led to deep cynicism by the press to the entire notion of classified information.

If the government classified only information that would cause significant harm to the national security if disclosed then there could be a more robust exchange between the government and the press without violating the law. The government would have a greater justification for cracking down on leaks that did occur. And the press would be more inclined to defer to the government’s requests that classified information not be disclosed.

For the system to work effectively, we also need a much more robust system of declassification, a Freedom of Information Act that functions effectively and in real time, stronger and workable procedures for whistleblowers within the government to bring abuses to light, and sanctions against those who abuse the classification system to cover up wrongdoing or prevent embarrassment.

The current system – which gives a wink and a nod to the massive leaking that goes on in Washington each day – while using the full weight of the criminal justice system to crack down on the few low-ranking leakers who actually get caught, is deeply flawed and should not survive the Manning case.

David H. Schanzer is an Associate Professor of the Practice for Public Policy at Duke University and Director of the Triangle Center on Terrorism and Homeland Security, a research consortium between Duke, UNC-Chapel Hill and RTI International. In these capacities, he teaches courses on counterterrorism strategy, counterterrorism law and homeland security.
 He is also affiliated faculty of the Duke Islamic Studies Center. Prior to his academic appointments, Schanzer was the Democratic staff director for the House of Representatives Committee on Homeland Security from 2003 to 2005. He previously served as the legislative director for Sen. Jean Carnahan (2001-2002), counsel to Sen. Joseph R. Biden Jr. (1996-1998), and counsel to Sen. William S. Cohen (1994-1996).

His positions in the executive branch include special counsel, Office of General Counsel, Department of Defense (1998-2001) and trial attorney, United States Department of Justice (1992-94).

*front page photo is of screenshot of the July 12, 2007 Baghdad airstrike video (so-called “Collateral Murder”) that Manning said he gave WikiLeaksin early 2010. 

Related 

This piece was mirrored on Juan Cole’s blog “Informed Comment”. Here is a link to the article, which includes several comments including Professor Cole’s own response to the piece. 

Juan Cole Response: 

This is an excellent analysis of the Bradley Manning situation. I do have a few comments;

Bradley Manning is a hero, perhaps not a First Amendment hero, but a hero nevertheless for forcing the necessary discussions contained in this article.

It is probably unreasonable to expect that any reformed Freedom of Information Act could solve the problem of openness in government in any permanent way. Those desiring maximum secrecy will always find a way. We do need a periodic “shock to the system” such as the Manning leaks provide if for no other reason than to re-examine how the system is working.

In a time of war, even the fake adventures that we are now engaged in, access to information gets clamped down. “War” makes some policies seem necessary that would be rejected out of hand in times of peace. One weapon or war is lies, perhaps necessarily so. These lies are corrosive to democracy. Manning is a hero for openness and truth.

Manning did break the law, as did Daniel Ellsberg of the Pentagon Papers fame, and should be punished. A couple of years in prison seems reasonable. But he is also a hero of convictions and his convictions are shared by many.

David Leigh, Naomi Colvin and David Schanzer interviewed by Jonathan Steele on February 28, 2013, to discuss the prosecution of whistleblowers, on the Islam Channel’s “The World This Week”. (see video at top of post) 

The Dangerous Logic of the Bradley Manning Case (by Yochai Benkler, New Republic, March 1, 2013)

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