The Manning Verdict Is a Mistake

by John Yoo

The military judge has seriously erred in acquitting Bradley Manning of aiding the enemy, though his guilt on numerous, lesser charges should mean that he will spend the rest of his life in jail. Manning gave a treasure trove of classified intelligence to Wikileaks which has gravely damaged our national security by releasing the names of intelligence assets, disclosed U.S. tactics and operations, and revealed secret diplomatic negotiations. In this covert war against al-Qaeda, a stateless enemy which conceals itself as civilians to attack innocents by surprise, intelligence is the most important weapon. Manning should have been convicted of aiding the enemy just as should someone who leaked weapon plans during wartime.

Here is the portion of the Uniform Code of Military Justice that criminalizes aiding the enemy:


Any person who–

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or [protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;

shall suffer death or such other punishment as a court-martial or military commission may direct.

It is undeniable that Manning meets virtually all of the elements of the law — he knowingly and without authority gave intelligence. The only question that the judge might have stumbled upon is whether giving the information to Wikileaks amounts to “the enemy.” But notice that the statute criminalizes “directly or indirectly” giving intelligence to the enemy.

Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that al-Qaeda would read it. But Wikileaks is not the New York Times or the Wall Street Journal and it does not have First Amendment rights. Manning communicated regularly with Wikileaks’s founder and would have known about the group’s anarchic, anti-U.S. mission. He also would have known that posting anything on the Internet would make it available to al-Qaeda in Iraq, Afghanistan, and world-wide. His actions knowingly placed the lives of American soldiers, agents, and allies at grave risk. In the world of instant, world-wide communications and non-state terrorist groups, Manning committed the crime of aiding the enemy, and he is lucky to escape the death penalty.


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