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There is a fundamental disagreement at the heart of the United States’s prosecution of Bradley Manning, and it was evident minutes after his Article 32 hearing began on December 16, in a small courtroom at Fort Meade. As per the United States’s Uniform Code of Military Justice (UCMJ), in an Article 32 hearing—similar to a hearing before a grand jury—evidence is presented to a military officer, like a judge, who decides whether the accused will be court-martialed. But first, the officer asks both the defense and the prosecution whether they have any reason to doubt his impartiality. When Lt. Col. Paul Almanza, the investigating officer in Manning’s hearing, popped the question, the lead defense attorney, David Coombs, stood and answered with understated poise, “Yes sir.” Ad Policy

Almanza seemed taken aback. An Army reservist, Almanza is a prosecutor for the Department of Justice, which has an open investigation into WikiLeaks, the freedom-of-information group to which Manning allegedly leaked hundreds of thousands of government cables. Before a packed gallery and several military police officers—plus four attorneys for the government and two co-counsels next to Manning at the defense table, all wearing the standard Army Combat Uniform—Coombs launched into a line of questioning that resembled a cross-examination. His primary complaint was that Almanza had granted the government its full list of twenty witnesses—ten of whom were also requested by the defense—while denying all but two of the defense’s unique thirty-eight.

But there was a deeper objection within the complaint.

“Let’s get these witnesses up here to discuss: why is this information classified?” Coombs said, in an animated oratory that contrasted with the rote, procedural feel of the hearing. An Iraq veteran and lieutenant colonel in the Army reserve, Coombs wished to challenge claims about Manning such as those made by Admiral Mike Mullen in 2010, that Julian Assange and his alleged source, Manning, may have on his hands “the blood of some young soldier or that of an Afghan family.” Almanza determined that the question was not appropriate for the hearing and chose to deny the witnesses Coombs had hoped would testify on the classification issue.

“Where is the damage?” Coombs asked. “Where is the harm? That’s what the defense wanted to get out today and in this hearing and yet you ruled no, we’re not going to hear that.”

Coombs charged that, given the DOJ’s ongoing investigation into WikiLeaks and Almanza’s possible interest in getting a plea out of Manning, Almanza’s impartiality was open to question. Add the denial of thirty-eight defense witnesses, Coombs said, and the facts demanded that Almanza step aside in favor of an officer untainted by the appearance of bias. Almanza declined to recuse himself, and the six days of proceedings that followed mostly reflected a narrow scope of issues centered around a single question: did Manning do it? The prosecution brought forward a litany of evidence to show in minute detail how Manning perpetrated the biggest leak in American history.

Manning’s defense, meanwhile, all but conceded that Manning was the source of the documents, highlighting instead such mitigating factors as his struggles with gender identity and the Army’s failure to address his manifest psychological and emotional problems. In closing arguments, Coombs accused the government of overreacting and asked that the charges be reduced, most significantly by eliminating the potentially death sentence–carrying charge of “aiding the enemy,” a request predicated on his position that the leaks did no harm.

Almanza declined to eliminate or reduce any of the charges. On Thursday, January 12, he sent his recommendation that Manning face all twenty-two charges brought against him up the chain of command, where the decision will be vetted at several levels before a court martial begins. Since a court martial is nearly certain, Coombs’s attempts to question how much actual harm was done by the leaks are likely to resurface. Almanza determined that the question is irrelevant, but is it? Should the harm done by Manning’s alleged actions be open for discussion in this case?

Established law on the question might seem, initially, to support Almanza’s position that it should not. When Samuel Loring Morison, a naval intelligence analyst, was charged in 1984 for selling classified photos of a Soviet aircraft carrier to Jane’s Defense Weekly magazine, his attorneys argued that the leak did no harm to the United States. The US Appeals Court for the Fourth Circuit dismissed that argument, and Morison was found guilty. When the Supreme Court declined to hear his appeal in 1988, the Fourth Circuit decision became law and Morison became the first leaker to the press to be convicted under the Espionage Act. He served two years of a maximum forty-year sentence and was pardoned at the urging of Senator Daniel Patrick Moynihan on Bill Clinton’s last day as president.

The ruling in Morison did not delve deeply into the balancing of national security and press freedom, but in a concurring opinion, Fourth Circuit Judge J. Harvie Wilkinson did. “The First Amendment interest in informed popular debate does not simply vanish at the invocation of the words ‘national security,’ ” Wilkinson wrote. “National security is public security, not government security from informed criticism.”

Conceding that the judiciary should defer to the experts on issues as unfamiliar to most lawyers as intelligence operations, Wilkinson still balanced the national security needs with essential press freedom. While he maintained that “we cannot invariably install, as the ultimate arbiter of disclosure, even the conscience of the well-meaning employee,” considering the actual harm of a leak nonetheless entered sweepingly into his calculus. “The espionage statute has no applicability to the multitude of leaks that pose no conceivable threat to national security but threaten only to embarrass one or another high government official,” he wrote.

Judge Wilkinson’s words have a more timely ring today than in the year they were put to paper. The move to a digital world has made transmitting information easier, while more people have access to more state secrets than ever. Leaks are not just commonplace; they are the raw material of nearly all groundbreaking reporting on foreign affairs. Wilkinson’s “multitude of leaks” has become even more numerous, while American foreign policy has grown more opaque. Our free press now depends on leaks, and if leaking state secrets to the press constitutes espionage, harmless or not, then we have a bigger problem on our hands than an insubordinate intelligence analyst.

One of Manning’s more thoughtful critics, former State Department Spokesman P.J. Crowley, defines the fundamental question in Manning’s case as narrowly as Almanza.

“Bradley Manning stands accused of violating his oath of office. It’s a serious crime under US law to provide classified information to someone not authorized to have it,” he said on Al Jazeera English as the Article 32 hearing was wrapping up. Or, as Crowley said via Twitter, “The essence of the #BradleyManning case is, if every soldier gets a vote on national security policy, the military ceases to function.” The essence of Crowley’s position is that military discipline is both austere and essential and that the Army has procedures in place to punish a person who violates his nondisclosure agreement.

But Manning is not merely charged with insubordination—only five of the twenty-two counts he faces are for violations of Article 92 under the UCMJ, “Failure to Obey Order or Regulation.” Of the sixteen counts he faces under UCMJ Article 134, for behavior that brings “discredit upon the armed forces,” eight are for violations of the Espionage Act. Taken together, and excluding one, the twenty-two counts against him add up to a maximum sentence of 150 years—his third and most serious charge, under UCMJ Article 104 on “aiding the enemy,” carries a maximum of death or life without parole.

If a citizen is to be charged with a crime as serious as aiding the enemy, is to too much to ask that the state answer the simple question, Was the enemy aided?

At times, lawyers for the prosecution addressed the question. In presenting its case, the government sought to establish that the leaked SIGACTS (“Significant Activities”)—the classified reports that became the Iraq and Afghan War Logs—revealed key American response procedures to events like IED attacks or the kidnapping of US soldiers. During its closing argument, the government showed a video in which a man who appeared to be Adam Gadahn, also known as Azzam the American, the Oregon-born Al Qaeda spokesman, discusses revelations found in the WikiLeaks documents Manning is accused of leaking. “This information is accessible to all enemies of the United States with Internet access,” said the lead prosecutor, Capt. Ashden Fein.

Coombs was given limited leeway to question the assumption that such leaks did substantial harm. “So if you had access to SIPRnet [the Pentagon’s private network for information classified at Secret and below], you had access to those cables?” Coombs asked one of Manning’s superiors from his Iraq deployment. “Yes,” said Capt. Lim. “So this is not a super-secret place where people can go to access the deep, dark secrets of the United States,” pressed Coombs. “No, sir,” said Lim. In his closing argument Coombs decried what he called the “Chicken Little response” from the US government and military. “The sky has not fallen. The sky has not fallen,” he said. “And the sky will not fall.”

Though still mystifyingly considered “classified” by the state, the information released by WikiLeaks is publicly available on the Internet. No further harm can be done by discussing the contents of the leaks in open court. Many political and military leaders have already taken the time to tell the world that Bradley Manning threatened our security. If the key difference between the “multitude” of harmless leaks and this leak is the damage done to national security, then our leaders ought to say so again under oath.

Editor’s Note: This article has been updated to reflect the following correction: Samuel Long Morison, the naval intelligence analyst, was charged in 1984, not 1985, for selling classified photos of a Soviet aircraft carrier. He sold them to Jane’s Defense Weekly, not Jane’s Fighting Ships. In addition, the following change has been made to the seventh paragraph: A sentence stating that Manning’s attorneys "all but conceded his guilt" has been changed to read "all but conceded that Mannind was the source of the documents."