Bradley Manning Pleads Guilty

Sabrina said:
There's no evidence to indicate that Wikileaks encouraged Manning in any way, Travis; where did you hear that, if I may ask?

Everything I've heard is that it was all Manning's idea; the transcripts of the conversations he had with Adrian Lamo apparently bear that out.
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Yeah, I could have sworn he contacted Wikileaks to ask if they wanted the data and they told him to go get it but I can find no references to this exchange so I may have just dreamed that bit up. Thanks for catching that.
 
More from Professor Stone

Sabrina said:
I personally do not; my area of expertise lies in military intelligence. HOWEVER... my unit has two J.A.G. officers attached to us, and I have put the question to them just now, as I am performing military duties currently. In their professional, legal opinion, Article 104 of the UCMJ only applies to civilians in those instances outlined under U.S.C. Title 10, Chapter 47. If the civilian in question is not affiliated with the US Military at the time they leaked the classified information (and again, this is according to two J.A.G. officers who have been to law school and whose job in the unit is to interpret military law), then they are charged under U.S.C. Title 18, which is US Federal Law, not the UCMJ. The civilian in question must have an identified, previously agreed upon affiliation with the US Military for the UCMJ to apply.

To the best of my knowledge, every civilian who has been accused of espionage or leaking classified information in the history of the United States has been tried under U.S.C. Title 18. There is no legal precedent currently to show that a civilian with no military affiliation has EVER been charged with violating Article 104 of the UCMJ; indeed, there is no indication that ANY civilian, military affiliation or no, has ever been charged with violating that article.

I would also point out that what Justice Stevens may or may not be implying is solely your interpretation. In addition, Hamdan was NOT being tried with a violation of Article 104; according to the documents released by the Supreme Court, he was being charged with one count of conspiracy. Conspiracy is a violation of Article 81, not Article 104. To add insult to injury, Hamdan is NOT a US Civilian who leaked classified information; he is a Yemeni national who was captured in 2001 and turned over to the US Military before being transported to Gitmo in 2002, the implication being that he was considered at the time an enemy combatant. That is extremely different from Manning's case, and is even further removed from the idea that US civilians might be subject to Article 104 of the UCMJ when there's a perfectly sound Federal law already enacted by U.S.C. Title 18 that they ARE subject to.

Maybe you should research a bit more before pulling examples out, just to be sure they're actually saying what you claim they say, hmm? It took me fifteen seconds on Google to find the actual opinion filed by Justice Stevens where the circumstances and charges against Hamdan were provided. I seriously suggest that you find a different expert to source, as this Professor Benkler is clearly biased and does not begin to understand military law.
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First, thank you for your service to your country. Second, thank you for asking the JAGs; that is helpful information. Third, I don't believe that the past history of Article 104 is under dispute; it is what it might be used for in the future should the prosecution's theory prevail (or at least that is how I read Benkler's article; your mileage may vary).

Fourth, the issues go beyond Article 104. I previously linked to Professor Stone's discussion of the SHIELD act (HR 6506) in the Federal Communications Law Journal (Volume 64, 2012). Professor Stone also wrote an Op-Ed in 2011 that covers similar ground. "Although this proposed law may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked. At the very least, the act must be expressly limited to situations in which the spread of the classified information poses a clear and imminent danger of grave harm to the nation."
 
halides1 said:
First, thank you for your service to your country. Second, thank you for asking the JAGs; that is helpful information. Third, I don't believe that the past history of Article 104 is under dispute; it is what it might be used for in the future should the prosecution's theory prevail (or at least that is how I read Benkler's article; your mileage may vary).

Fourth, the issues go beyond Article 104. I previously linked to Professor Stone's discussion of the SHIELD act (HR 6506) in the Federal Communications Law Journal (Volume 64, 2012). Professor Stone also wrote an Op-Ed in 2011 that covers similar ground. "Although this proposed law may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked. At the very least, the act must be expressly limited to situations in which the spread of the classified information poses a clear and imminent danger of grave harm to the nation."
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*facepalm*

It's fairly clear to me that either you are drastically misinterpreting your Professor Benkler, or he has absolutely no understanding of US and/or US Military law. May I ask what HIS credentials are? Is he a lawyer?

Look, it's extremely simple to understand, and has in fact been born out in previous cases (see the Pentagon Papers); NO ONE IS ATTEMPTING TO CHARGE WIKILEAKS OR ANY NEWS MEDIA ENTITY WITH A VIOLATION OF EITHER ARTICLE 104 OF THE UCMJ OR A VIOLATION OF USC TITLE 18 BECAUSE THEY KNOW THEY CANNOT GIVEN THE CURRENT INTERPRETATION OF THE LAWS IN QUESTION. The worst that can happen is that a gag order can be imposed on the news media; that was all that happened during the Pentagon Papers case, and probably the only reason we didn't attempt such with Wikileaks is because they are not a US-based entity.

There is no indication by anyone involved with the Bradley Manning case that they are doing anything other than prosecuting an INDIVIDUAL who leaked classified information. Referring back to the article by your precious Professor Benkler, COL Lind, the judge for Bradley Manning's court-martial, asked the prosecution if they would still seek to charge Manning if he had leaked to the NYT; the prosecution's answer was simply "Yes ma'am". Note she did not ask them if they would charge the NYT; she only asked if they would charge MANNING. There was no mention of the news media aside from whether the charge would be the same if the publication apparatus were the NYT versus Wikileaks. How Professor Benkler interprets this as a potential attack on the First Amendment is utterly beyond me.

There is no indication by anyone in the government that they would ever intend to prosecute the news media for simply publishing information they are offered. Name me ONE case; just ONE in the entire history of the United States; where the press was ever charged with violation of the Espionage Act. I dare you; go ahead. For God's sake, if we didn't prosecute Geraldo Rivera when he stupidly started drawing troop locations and movements in the sand while embedded in Iraq with the military, what on God's green Earth would EVER give you the impression that, aside from keeping information deemed dangerous to national security secret from them, the US Government bears any sort of malice or intent to muzzle the news media?
 
and Professor Stone is at the University of Chicago law school

Professor Benkler is a professor of law at Harvard University. He was originally going to be called as a expert witness in the case, according to the link I provided. LOL, Facepalm pretty much sums it up on this end also.
 
halides1 said:
Professor Benkler is a professor of law at Harvard University. He was originally going to be called as a expert witness in the case, according to the link I provided. LOL, Facepalm pretty much sums it up on this end also.
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Would it be too much to ask for you to cite Professor Benkler's legal theory of the threat to freedom of the press in this context?
 
halides1 said:
Professor Benkler is a professor of law at Harvard University. He was originally going to be called as a expert witness in the case, according to the link I provided. LOL, Facepalm pretty much sums it up on this end also.
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And yet again I point out that he has little expertise in military law and the UCMJ.

Look halides, it's simple. If we didn't press charges against Geraldo Rivera for revealing classified information on live television, what on Earth makes you think that this Professor Benkler has any grounds to stand on when it comes to his fearmongering about the possibility of the media being prosecuted for some imaginary publication that hasn't happened?

Geraldo Rivera stood on LIVE television, television that would easily be seen by our enemies, and started drawing the current location of the military unit he was embedded with in the sand, as well as where they were planning to head, information that, given that he was in the middle of a freaking MILITARY OPERATION, was CLASSIFIED. By your Professor Benkler's nebulous interpretation of the law, why then did we not charge HIM with violations of the Espionage Act, or violations of Article 104 of the UCMJ? All we did was kick him to the curb and tell the news networks that they needed to inform their embedded journalists to not reveal classified information on the operation that was about to start up so as not to warn our enemies of our arrival. Admit it; you don't have a leg to stand on, and neither does Professor Benkler.
 
According to that Bio, he is a Proffessor of what boils down to Business law, mostly related to Small Business setups, with his main areas of interest being Internet Software and Social Knowledge and Communications. From a guess, a lot of Copyright and Commons laws for small Internet startups. Nothing in there about him having Military Law expertise.

One would suggest that using him is a classic Appeal to Authority Fallacy.
 
no problem

theprestige said:
Would it be too much to ask for you to cite Professor Benkler's legal theory of the threat to freedom of the press in this context?
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I cited it before but sure. I am not saying that he must be right, only that it seems reasonable to give thought to what he has to say.
 
halides1 said:
I cited it before but sure. I am not saying that he must be right, only that it seems reasonable to give thought to what he has to say.
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Huh. My interpretation is not that he thinks the case will open up media outlets to prosecution as spies for publishing leaks from whistleblowers, but that the prosecution of Manning for making such a leak will have a chilling effect on future whistleblowing, as potential whistleblowers consider the consequences for violating their oaths and leaking classified documents.

This is summed up pretty clearly in the penultimate paragraph of Benkler's article:

Professor Benkler said:
If Bradley Manning is convicted of aiding the enemy, the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers.
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Elsewhere in the article, Benkler attempts the argument that a chilling effect on whistleblowers will result in an unacceptable undermining of the free press as government watchdog (since if the press does not receive the leaks, they cannot hold the government to account).

Sabrina has already forwarded the legal theory, grounded firmly in the text of the relevant passages of the UCMJ, that Manning has been properly charged with providing classified material indirectly to America's enemies.

I've lost track of what argument Benkler's article is intended to support. I think that it's far too long for the conclusion it reaches, and wanders pretty badly at times. I think his concern for the free-press-as-watchdog is overblown.

I think that leaking classified information to a nation's enemies--directly or indirectly--is a serious matter that should rightly carry serious penalties. It should be considered seriously by any potential whistleblower, whether the material they intend to leak truly merits forswearing themselves and incurring those penalties.

I think that the fact that Manning didn't even bother to review the material he leaked magnifies his crime, and even more so merits harsh penalties.

A whistleblower who sees a grave injustice, and is willing both to aid America's enemies and to accept the penalties for doing so, might earn my respect for their principled choice and their courageous acceptance of the punishment that comes with it. That is a noble sacrifice, and if their leak had merit, I would join the chorus of those petitioning for leniency.

What Manning did was immature self-pleasuring romantic ********, and it deserves to be slapped down hard. If that deprives Wikileaks or the New York Times (media outlets between which I make no distinction in principle) of the occasional sensational "scoop" at the expense of national security and rule of law, so be it.

I find Benkler's case to be ill-considered and poorly made.
 
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theprestige said:
Huh. My interpretation is not that he thinks the case will open up media outlets to prosecution as spies for publishing leaks from whistleblowers, but that the prosecution of Manning for making such a leak will have a chilling effect on future whistleblowing, as potential whistleblowers consider the consequences for violating their oaths and leaking classified documents.

This is summed up pretty clearly in the penultimate paragraph of Benkler's article:



Elsewhere in the article, Benkler attempts the argument that a chilling effect on whistleblowers will result in an unacceptable undermining of the free press as government watchdog (since if the press does not receive the leaks, they cannot hold the government to account).

Sabrina has already forwarded the legal theory, grounded firmly in the text of the relevant passages of the UCMJ, that Manning has been properly charged with providing classified material indirectly to America's enemies.

I've lost track of what argument Benkler's article is intended to support. I think that it's far too long for the conclusion it reaches, and wanders pretty badly at times. I think his concern for the free-press-as-watchdog is overblown.

I think that leaking classified information to a nation's enemies--directly or indirectly--is a serious matter that should rightly carry serious penalties. It should be considered seriously by any potential whistleblower, whether the material they intend to leak truly merits forswearing themselves and incurring those penalties.

I think that the fact that Manning didn't even bother to review the material he leaked magnifies his crime, and even more so merits harsh penalties.

A whistleblower who sees a grave injustice, and is willing both to aid America's enemies and to accept the penalties for doing so, might earn my respect for their principled choice and their courageous acceptance of the punishment that comes with it. That is a noble sacrifice, and if their leak had merit, I would join the chorus of those petitioning for leniency.

What Manning did was immature self-pleasuring romantic ********, and it deserves to be slapped down hard. If that deprives Wikileaks or the New York Times (media outlets between which I make no distinction in principle) of the occasional sensational "scoop" at the expense of national security and rule of law, so be it.

I find Benkler's case to be ill-considered and poorly made.
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Halides has thus far failed to use Professor Benkler to support the assertion that this case presents a clear and present danger to the press.
 
expert witness

PhantomWolf said:
According to that Bio, he is a Proffessor of what boils down to Business law, mostly related to Small Business setups, with his main areas of interest being Internet Software and Social Knowledge and Communications. From a guess, a lot of Copyright and Commons laws for small Internet startups. Nothing in there about him having Military Law expertise.

One would suggest that using him is a classic Appeal to Authority Fallacy.
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I agree that military law does not appear to be his specialty, but it seems to me that the issues in play may benefit from more than one type of expertise. I hope that you see this as a respectful disagreement, as opposed to a quibble.

Selections from Dr. Benkler's bibliography:
Legal Research Network, MCI Communications Corporation & Yochai Benkler. Rules of the Road for the Information Superhighway: Electronic Communications and the Law (West 1996).

Benkler, Yochai. "A Free Irresponsible Press: Wikileaks and the Battle Over the Soul of the Networked Fourth Estate," 46 Harvard Civil Rights-Civil Liberties Law Review 311 (2011).

Professor Benkler wrote, "The question was crisp and meaningful, not courtroom banter. The answer, in turn, was dead serious. I should know. I was the expert witness whose prospective testimony they were debating. The judge will apparently allow my testimony..." (highlighting mine)
 
One doesn't need to read the transcript to know that Manning is an attention-seeking coward.

By his own admission, he doesn't have the authority or knowledge to determine whether the information he leaked could potentially cause harm.

The judge, Col. Denise Lind, pressed Private Manning to explain how he could admit that his actions were wrong if his motivation was the “greater good” of enlightening the public. Private Manning replied, “Your Honor, regardless of my opinion or my assessment of documents such as these, it’s beyond my pay grade — it’s not my authority to make these decisions” about releasing confidential files.
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Not his authority. And yet he did it anyway. And he has admitted he was in the wrong to do so. How anyone can still support him is beyond me.
 
halides1 said:
I agree that military law does not appear to be his specialty, but it seems to me that the issues in play may benefit from more than one type of expertise. I hope that you see this as a respectful disagreement, as opposed to a quibble.

Selections from Dr. Benkler's bibliography:
Legal Research Network, MCI Communications Corporation & Yochai Benkler. Rules of the Road for the Information Superhighway: Electronic Communications and the Law (West 1996).

Benkler, Yochai. "A Free Irresponsible Press: Wikileaks and the Battle Over the Soul of the Networked Fourth Estate," 46 Harvard Civil Rights-Civil Liberties Law Review 311 (2011).

Professor Benkler wrote, "The question was crisp and meaningful, not courtroom banter. The answer, in turn, was dead serious. I should know. I was the expert witness whose prospective testimony they were debating. The judge will apparently allow my testimony..." (highlighting mine)
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Did you take a look at what his testimony was going to be about? It was essentially that Wikileaks could be considered a legitimate journalistic outfit like a newspaper. Quite appropriate for his listed expertise, Internet startups and social communications. Venturing outside of that his opinion holds very little weight.
 
So... how does this professor's testimony mean jack squat in a trial where the defendent is a) one person, b) NOT a legitimate journalistic outfit, nor even a journalist, and c) the only defendent being charged with "aiding the enemy"?

I'd hardly call him an expert witness in that regard; if he's the best the defense can find, then Manning is toast.
 
PhantomWolf said:
Did you take a look at what his testimony was going to be about? It was essentially that Wikileaks could be considered a legitimate journalistic outfit like a newspaper. Quite appropriate for his listed expertise, Internet startups and social communications. Venturing outside of that his opinion holds very little weight.
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It raises my eyebrows when someone, let alone a law professor, tries to draw a distinction of what is "legitimate" journalism. Journalists have no more Constitutional rights than anyone else. "The press" in the Constitution literally means a printing press, not the profession of journalism. And over the years, as technology changed, it was understood to apply to typed material, material printed with a dot-matrix printer, digital media, etc etc. And those rights apply to everyone, not just professional journalists. I have as much right to freedom of the press as a New York Times reporter does.

Indeed, it would be very dangerous to our freedoms if only the privileged few people working as professional journalists had freedom of the press. Especially so in this day and age, where blogs and such are in such proliferation.
 
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