No one would have thought at the time that WikiLeaks had the gravitas of the Times. But if you roll back to the relevant time frame, it is clear that any reasonable person would have seen WikiLeaks as being in the same universe as we today think of the range of new media organizations in the networked investigative journalism ecosystem, closer probably to ProPublica or the Bureau of Investigative Journalism than to Huffington Post or the Daily Beast. If leaking classified materials to a public media outlet can lead to prosecution for aiding the enemy, then it has to be under a rule that judges can apply evenhandedly to the New York Times or the Guardian no less than to ProPublica, the Daily Beast, or WikiLeaks. No court will welcome a rule where culpability for a capital offense like aiding the enemy depends on the judge's evaluation of the quality of the editorial practices, good faith, or loyalty of the media organization to which the information was leaked. Nor could a court develop such a rule without severely impinging on the freedom of the press. The implications of Manning’s case go well beyond Wikileaks, to the very heart of accountability journalism in a networked age.

The prosecution will likely not accept Manning's guilty plea to lesser offenses as the final word. When the case goes to trial in June, they will try to prove that Manning is guilty of a raft of more serious offenses. Most aggressive and novel among these harsher offenses is the charge that by giving classified materials to WikiLeaks Manning was guilty of “aiding the enemy.” That’s when the judge will have to decide whether handing over classified materials to ProPublica or the New York Times, knowing that Al Qaeda can read these news outlets online, is indeed enough to constitute the capital offense of “aiding the enemy.”

Aiding the enemy is a broad and vague offense. In the past, it was used in hard-core cases where somebody handed over information about troop movements directly to someone the collaborator believed to be “the enemy,” to American POWs collaborating with North Korean captors, or to a German American citizen who was part of a German sabotage team during WWII. But the language of the statute is broad. It prohibits not only actually aiding the enemy, giving intelligence, or protecting the enemy, but also the broader crime of communicating—directly or indirectly—with the enemy without authorization. That's the prosecution's theory here: Manning knew that the materials would be made public, and he knew that Al Qaeda or its affiliates could read the publications in which the materials would be published. Therefore, the prosecution argues, by giving the materials to WikiLeaks, Manning was “indirectly” communicating with the enemy. Under this theory, there is no need to show that the defendant wanted or intended to aid the enemy. The prosecution must show only that he communicated the potentially harmful information, knowing that the enemy could read the publications to which he leaked the materials. This would be true whether Al Qaeda searched the WikiLeaks database or the New York Times'. Hence the prosecutor's “Yes Ma'am.”

This theory is unprecedented in modern American history. The prosecution claims that there is, in fact precedent in Civil War cases, including one from 1863 where a Union officer gave a newspaper in occupied Alexandria rosters of Union units, and was convicted of aiding the enemy and sentenced to three months. But Manning’s defense argues that the Civil War cases involved publishing coded messages in newspapers and personals, not leaking for reporting to the public at large. The other major source that the prosecution uses is a 1920 military law treatise. Even if the prosecutors are correct in their interpretations of these two sources, which is far from obvious, the fact that they need to rely on these old and obscure sources underscores how extreme their position is in the twenty-first century.