A military judge will rule Thursday on a key charge against the Army private responsible for the largest leak of classified material in American history, a decision that has significant implications for the future publication of secret government material, according to civil libertarians and press freedom advocates.
Judge Denise Lind will decide whether to dismiss charges that Bradley Manning "aided the enemy" when he turned over 700,000 military and diplomatic documents to the anti-secrecy group WikiLeaks because some of that material was read by Osama bin Laden.
On two separate occasions, Lind, an Army colonel, has questioned military prosecutors about whether they would be pursuing the charge if the information had been leaked directly to The Washington Post or the New York Times. Each time, the prosecution has said it would. That troubles advocates for whistleblowers who fear that the leaking of national defense information that appears online, as it inevitably does, can be construed as assisting the enemy.
"The aiding the enemy charge is not only unconstitutional, it is unnecessary," said Ben Wizner, director of the American Civil Liberties Union's Speech, Privacy and Technology Project. "The point of charging Manning in this way is to transform what was widely seen around the world as a valuable leak into treason. The government purports to criminalize any information that is published somewhere where the enemy can see it."
If convicted of the charge, Manning, an intelligence analyst who served in Iraq, could face life in prison.
Defense attorney David Coombs has argued that before he was identified as the leaker, Manning, in a series of online chats, including with WikiLeaks founder Julian Assange, never articulated any intent to aid al-Qaida or "any potential enemy that has ever, at any time, been identified by the government." Instead, he said, Manning's motivation was to increase public awareness "in order to spark change and reform."
The government, however, has insisted that Manning is distinct from "an infantryman or a truck driver," and that as an intelligence analyst he would know that terrorists make extensive use of the Internet.
"He knew exactly what he was doing," military prosecutor Capt. Angel Overgaard said. "He knew exactly the consequences of his actions."
In early 2010, Manning called reporters at both the Post and the Times to tell them that he had access to a database of Army field reports in Afghanistan and Iraq. He said he was frustrated by the reporters' apparent lack of interest and in February of that year turned to WikiLeaks, which had begun to establish itself as an outlet willing to publish secret information.
Harvard law professor Yochai Benkler testified for the defense that WikiLeaks is a "legitimate journalistic organization" that simply differs from traditional media in its platform. "Once you accept that WikiLeaks is a new journalistic organization that can be read by anyone with an Internet connection . . . that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world becomes automatically aiding the enemy," Benkler said.
Questions about WikiLeaks's singular journalistic mission have been raised in the weeks since disclosures by National Security Agency contractor Edward Snowden about U.S. surveillance programs. The organization helped Snowden get safe passage from Hong Kong to Russia, and it has been at the center of Snowden's negotiations for asylum.
Coombs has asked the judge to dismiss the charge of aiding the enemy against Manning and urged her Monday not to punish "people for getting information out to the press, to basically put . . . a hammer down on any whistleblower."
The government has outlined how bin Laden asked an associate for material from the WikiLeaks website.
The al-Qaida leader did not use the Internet at his hideout in Abbottabad, Pakistan, for security reasons. Instead, he relied on a trusted courier who ferried material in and out on thumb drives. Members of the Navy SEAL team that conducted the raid on bin Laden's hideout and killed him swept up a trove of digital material, including information from WikiLeaks, the government said.
The prosecution has struggled to show that Manning knew the information would be seen by the enemy, according to legal experts. The defense was able to elicit testimony from Manning's superiors that they never trained Army intelligence analysts on the role of WikiLeaks or whether al-Qaida was known to access the website.
"The defense has a fighting chance on this motion," said Eugene Fidell, a visiting lecturer in law at Yale University and the former president of the National Institute of Military Justice. "The government has a particular burden to carry here. A lack of intent to harm the country or advantage its adversaries is definitely in play."
The trial, which began in June, is expected to wrap up as early as this week after hearing from more than 90 witnesses.
The judge is also expected to rule Thursday on one other defense motion to dismiss charges of violating the Computer Fraud and Abuse Act.
Closing arguments could begin Friday, and the judge could issue a verdict as soon as that day. Manning elected not to ask a panel of military jurors to hear the case.
Once the verdict has been pronounced, the trial will move immediately to the sentencing phase. Manning has already pleaded guilty to 10 lesser included offenses and faces up to 20 years in prison on those charges.