Manning Verdict Threatens Snowden and Other Whistleblowers

WASHINGTON - July 30, 2013 - PRLog -- WASHINGTON, D.C. (July 30, 2013):  Although the Bradley Manning verdict is being hailed by some as a partial victory because he was found not guilty of aiding the enemy, his conviction on six felony counts of espionage nevertheless creates a bad precedent for the case of Edward Snowden and against other potential whistleblowers, even if they leak to major national newspapers, suggests public interest law professor John Banzhaf, who previously explained why Snowden almost certainly can't be convicted of the only other charge against him: Theft of Government Property, 18 U.S.C. Section 641.

        Prosecutions under the Espionage Act are rare, prosecutions of whistleblowers under the act are rarer, and the espionage conviction of a whistleblower such as Manning is even rarer, says Banzhaf.

        Elizabeth Goitein, a security specialist at New York University's Brennan Center for Justice, put it in even stronger language:  "Manning is one of very few people ever charged under the Espionage Act prosecutions for leaks to the media ... Despite the lack of any evidence that he intended any harm to the United States, Manning faces decades in prison. That's a very scary precedent."

        Thus today's verdict will make it much less likely that military or government employees or contractors will become whistleblowers and make information available to web sites like WikiLeaks.

        As Michael Corgan, a professor of international relations at Boston University and former officer in the U.S. Navy, put it: "That is going to make it more difficult for people who want to deal with Assange. They are going to be at greater risk and that will put his operation at risk . . . It will have a very chilling effect on WikiLeaks."

        Indeed, notes Banzhaf, the risk could go beyond those who leak information to web sites, and might include those who, like Daniel Ellsberg, leak it to major newspapers.  In arguments in the Manning case, the government prosecutor said that leaking to the New York Times is the same as leaking to WikiLeaks.

        Although the comment was made in connection with the charge of aiding the enemy, it might well also apply to charges under the Espionage Act, including those involved Snowden.

        In another setback for those who support whistleblowers, a federal judge has just broken with precedent and ruled, in an unrelated espionage case of a defendant charged with leaking national defense secrets to Fox News, that the prosecution does not need to show that the information leaked could damage U.S. national security or benefit a foreign power, even potentially: “The Court declines to adopt the Morison court’s construction of information relating to the ‘national defense’ insofar as it requires the government to show that disclosure of the information would be potentially damaging to the United States or useful to an enemy of the United States,” Judge Kollar-Kotelly wrote.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf