30 July 2013
The Bradley Manning case: If espionage isn't aiding the enemy, what is it?
PFC Bradley Manning has been found guilty of several instances of violating the Espionage Act by providing U.S. government documents to Wikileaks, but the verdict of a military judge is being described as a win for Manning in many headlines because he was acquitted of the gravest charge against him, that of aiding the enemy. Had he been found guilty, he would have faced life in a military prison. The judge apparently was persuaded that Manning had no intention of aiding any enemy by making the secret documents public. That seems correct from what we know of Manning and his whistleblowing agenda. But it throws into question the meaning of "espionage," at least as defined by the Espionage Act. Thanks to generations of pop thrillers, we identify espionage with spying, and spying is usually for somebody. If there is no enemy to benefit, is there espionage? According to U.S. law, the answer is yes. The Espionage Act criminalizes the delivery of confidential data to anyone "not entitled to receive it." The issue ultimately isn't who gets the information, but who owns it in the first place. As the defense team for another defendant, accused of leaking intelligence to Fox News, argues, the Espionage Act as interpreted by modern judges amounts to little more than a "Government Secrets Act." A judge in that case has ruled that prosecutors don't need to prove actual damage to national security in order to win a conviction. It boils down to: you have no right to give that info to those people, or to anyone. The information is understood to be the property of the U.S. government. That may be a lawful understanding now, but we might still ask whether the government can own something in a way that entitles them to withhold it from the American people. If the ultimate purpose of someone like Manning is to let the people know what their government is doing, would that be wrong? It might be if you understand citizens' delegation of certain powers to government to be an abdication or renunciation of responsibility for the use of those powers. The argument might go: if you don't want to do this yourself, you don't need to know how it's done. But does the inevitable delegation of power in a large country ever come with a surrender of oversight so complete that it'd be criminal to inform you of what the government does? I suppose not, though ideally there would be formal procedures through which the people could demand information deemed secret by the government -- a more sweeping version of the Freedom of Information Act, for instance -- rather than rely on the initiative of whistleblowers. Can the people's presumed right to know be exercised by individual citizens, even against the preference of most of the people? That is, could the people say: we don't want to know, or shouldn't know, about what the government's doing somewhere and we repudiate anyone who causes trouble by trying to incite us with information? It doesn't sound flattering to the people, but it does sound like what many people say about Manning or Edward Snowden. Such people are probably concerned with secrets that should be kept from actual enemies -- the names of secret agents, etc. -- but how much of the data taken by Manning fits under such categories? Not enough to convict him of aiding the enemy, apparently, and as for the rest, in an ideal situation it would be for the people, not a court, to decide whether Manning had done wrong.