Ever since Bradley Manning was placed in military custody for leaking sensitive government documents to WikiLeaks while serving as an American soldier in Iraq in 2010, Daniel Ellsberg, the former U.S. Defense analyst and leaker of the Pentagon Papers, rushed to Manning’s defense. Like Manning, Ellsberg believed that the public benefit of releasing classified material was of greater value than the obvious personal legal jeopardy he faced. As a result, Ellsberg disclosed the Papers to the New York Times in 1971 to reveal that all five Vietnam presidents – starting with Truman – had seen predictions of an indefinitely prolonged guerrilla war in Vietnam but continued U.S. involvement there despite the advice of senior government officials. Although Manning and Ellsberg’s actions may have taken place forty years apart, they share the same whistleblower conscience that has raised a set of complex and interlocking legal questions regarding the free flow of information within the U.S. government against leaks. One of these questions is whether Manning and Ellsberg intended to act nobly for disclosing classified government information in the interest of raising public awareness or committed espionage and threatened U.S. national security.
Although the materials Manning and Ellsberg released were not found to have compromised national security and posed no direct threat to the United States, they were both charged with violating 18 U.S.C. § 793(e), the Espionage Act of 1917. This federal statute states it is a criminal offense for anyone with unauthorized possession to willfully release and communicate information relating to the national defense that could cause damage to the United States. In 1919, the U.S. Supreme Court upheld the Espionage Act’s constitutionality in Schneck v. United States and ruled that words which would ordinarily be within the freedom of speech protected by the First Amendment, may be prohibited when they are of such a nature and used in such circumstances as to create a clear and present danger to the United States.
Over the past few decades, courts have grappled with how best to apply the words of the Espionage Act to situations involving information leaks. Ellsberg was the first American prosecuted under the Espionage Act for leaking the Pentagon Papers; however, President Nixon’s attempt to discredit Ellsberg by authorizing an illegal break-in into Ellsberg’s psychiatrist’s office led to a mistrial and the case was ultimately dismissed. More recently, in the American Israel Public Affairs Committee (AIPAC) lobbying case, the court made clear that to sustain a case under the Espionage Act, the government would have to prove beyond a reasonable doubt that the defendants had a specific criminal intent to injure the United States and that they acted in bad faith. Since the defendants argued they wanted to broaden awareness of Iran’s threat to harm the United States and the prosecutors could not show that the defendants possessed all the capable mental states under the Espionage Act, the charges were dropped in 2009.
Since Manning’s pre-trial hearing is currently underway, it will be a while, if at all, before the prosecution has a chance to show that Manning’s actions satisfied the intent requirement of the Espionage Act. If court-martialed, Manning’s charges are subject to the Uniform Code of Military Justice (UCMJ), which has several specific provisions related to espionage. One of these provisions specifically includes the Espionage Act of 1917, which is applied by Article 134 of the UCMJ. Previous court-martial cases under Article 134 have resulted in imprisonment, dishonorable discharge, and reductions to the lowest enlisted grade – providing some foresight into possible consequences of Manning’s actions if he is convicted. ( See United States v. Diaz; United States v. Anzalone; United States v. McGuinness; United States v. Flemming).
Although Ellsberg emerged unscathed from President Nixon’s threats to throw him in prison for releasing the Pentagon Papers and one could only speculate the result of Manning’s fate, policy-makers have been forced to question the boundaries of free speech and how to balance that freedom with the need to protect sensitive government information and U.S. national security. Furthermore, Ellsberg and Manning’s cases have indicated that although the Espionage Act may seemingly have the capability to effectively prosecute leakers of classified information, many legal experts argue that the statute is arcane, vague, and antiquated. As a result, on December 16, 2010, House Judiciary Committee Chairman John Conyers (D-Michigan) held a hearing entitled, “The Espionage Act and the Legal and Constitutional Issues Raised By WikiLeaks,” as a preliminarily push to overhaul the 1917 statute. While committee members and panelists disagreed over how to specifically reform the statute, they all agreed that any solution should reconcile the values of secrecy and accountability. If an appropriate balance is eventually achieved, the government will be guaranteed with a strong authority to prohibit leaks, and individuals, such as Manning and Ellsberg, will be entitled to an expansive right to disseminate information to the public.