The Espionage Act and Bradley Manning

by Matthew Shaffer

Bradley Manning is the most notorious provider of documents to Julian Assange. He confessed via online chat to a fellow hacker, Adrian Lamo, that he provided the “Collateral Murder” video to WikiLeaks, is considered a “person of interest” in the Afghan war log leaks, and stands accused of illegally accessing SIPRNET to collect 150,000 diplomatic cables that have since been published by WikiLeaks. Assange refuses to confirm that he received the cables from Manning, but has offered to contribute $50,000 to Manning’s legal defense. The Army has arrested Manning and charged him under the Espionage Act.

On the blogosphere, Manning has gained a number of defenders. The so-called “Collateral Murder” video, which he obtained and helped publicize, did seem to expose serious misconduct. In Manning’s chats (which Lamo forwarded to authorities, quickening Manning’s arrest), Manning wrote, “I want people to see the truth . . . because without information, you cannot make informed decisions as a public.” Statements like this have won him many sympathizers.

But even among those more acutely aware of the dangers created by Manning’s crimes, there is a legal question of whether Manning is guilty of espionage. He handed documents over to, charitably construed, a journalist — not an enemy power. And it’s not clear that he had a specific intent to undermine the U.S., her interests, or her allies.  So does this still constitute espionage?

Yes. There’s a closely analogous precedent for this case. In 1985, Samuel Morison, the namesake and grandson of the famous naval historian, became the first American prosecuted under the Espionage Act of 1917 for passing information to the press. Morison was a United States intelligence agent who contributed to the editing of Jane’s Fighting Ships, an annual reference of the world’s navies associated with Jane’s Defence Weekly. In 1984, several classified photos of a Soviet ship-building facility appeared in Jane’s. An investigation found that Morison had removed classified labels from the satellite photos, brought them illegally to his residence, and provided them to Jane’s.

It was also established that Morison did not pass on the photos out of any left-wing sympathies for the Communist cause, or any other treasonous motives. Quite the contrary — his stated goal was to raise U.S. awareness of Soviet military technology in order to fan public support for more and stronger defense. Investigators found no intent to provide classified documents to enemies. Nor did his crimes necessarily endanger U.S. citizens or allies. Morally, one could almost sympathize with Morison.

But none of that mattered. Classified documents are classified documents, and Morison illegally held them, illegally altered them, and illegally turned them over. That meets the letter of the Espionage Act. And the United States Court of Appeals for the Fourth Circuit held that, even if inspired by “the most laudable motives, or any motive at all,” the leaks still constituted espionage. On December 4, 1985, Morison received a prison sentence. In 2001, at the urging of Sen. Daniel Patrick Moynihan, Pres. Bill Clinton pardoned Morison on his final day in office.

If Morison was guilty of espionage, then Manning certainly is. And Manning’s leaks were on a much larger and much more potentially damaging scale. He cannot anticipate any presidential pardon. He will be prosecuted for espionage, a crime punishable by death.