After more than three years in prison, 10 and a half months of which were in solitary confinement, enduring cruel and degrading treatment throughout his incarceration, Pfc. Bradley Manning now awaits a final verdict in his court-martial. The verdict will be announced Tuesday at 1 p.m. EST, according to a spokesperson for the military district of Washington.
Government prosecutors called Manning an "anarchist" and "traitor" last Thursday during closing arguments at Fort Meade, Maryland, where Manning's court-martial has been playing out for nearly two months now. But the prosecution's character assassination of Manning is not the worst of it.
Judge Denise Lind, an Army colonel, refused to drop the crucial charge of "aiding the enemy" Thursday despite Manning's defense team’s urging her to do so on the grounds the charge is "overbroad" and should be "void for vagueness."
The charge could set a precedent that could have a chilling effect on national security journalists and whistleblowers across the nation. The government has argued that by leaking information to the press, Manning was communicating with the enemy indirectly and that this alone is sufficient to constitute the charge. Normally, a prosecutor would have to establish the intent of the defendant, but that requirement was bypassed at Fort Meade.
The sentence carries with it the potential for capital punishment, but prosecutors did not pursue the death penalty in Manning's case. Instead he is more likely facing life imprisonment.
"That’s an outrageous charge with the greatest potential for dealing almost a deathblow to investigative journalism involving national security," said Pentagon Papers whistleblower Daniel Ellsberg, during a news conference Friday. "The interpretation of his motives is an absurd fantasy that he did this for fame or for his own purposes, let alone to give information to an enemy to which he clearly does not adhere a requirement for a treason charge anymore than I did."
The charge has never been brought during a case involving a leak before. It's part of an expansive crackdown in the Obama administration’s "war on whistleblowers," in which the administration has used the Espionage Act an unprecedented six times to prosecute government officials suspected of leaks. Prior to the Obama administration, the Espionage Act had been used only three times to prosecute leakers since 1917.
During the trial last week the judge asked the prosecution whether or not it would have made a difference if Manning had leaked his materials directly to major newspapers like The New York Times or the Washington Post, to which Prosecutor Capt. Angel Overgaard told the judge it "would not have made a difference." If a guilty verdict is delivered, it may establish any leak of classified information to any kind of publisher as "aiding the enemy."
“[Manning] is allegedly the greatest source that has ever existed in the history of journalism. He has revealed more information about serious war crimes than any other whistleblower that we are aware of,” said WikiLeaks founder Julian Assange. "The prosecution against Bradley Manning is not a prosecution against merely a young, idealistic, intelligent analyst. It is an attempt to erect a precedent. It is an attempt to redefine how journalism is done in the United States."
Reporters like Kevin Gosztola are learning first-hand just what this emerging war on journalism looks like. Gosztola is one of the few reporters chronicling Manning's court-martial from Fort Meade since it began last month. Gosztola reported having armed military police officers peering over his shoulder throughout his time in the media center at Fort Meade. The officers told him not to have his Twitter account open, and later they told him not to open any windows on his computer at all.
In addition to what Manning's verdict could mean for whistleblowers, the recent prosecution of New York Times journalist James Risen also establishes a new precedent for the journalists who publish leaks. The 4th Circuit Court of Appeals recently ruled Risen has no privilege under the First Amendment to refuse to testify about his confidential source, an alleged former CIA agent.
The ruling could damage journalists' ability to protect their sources if Congress does not pass the Free Flow of Information Act, which would put in place a federal shield law to safeguard journalists from being forced to identify sources, except in cases of imminent threat to national security. The act would have courts determine if there is a compelling reason to force a journalist to divulge information about their sources.
The updated version also requires the Department of Justice (DOJ) to notify journalists within 90 days of reviewing their phone or computer records after the DOJ seized the records of more than 20 telephone lines used by Associated Press reporters in May. An updated version of the act is scheduled for a hearing by the Senate Judiciary Committee in August.
According to Assange, the decision against Risen could exile journalists such as Glenn Greenwald from returning to the United States because the Risen case could establish a precedent that would force Greenwald to testify against NSA whistleblower Edward Snowden.
The Manning case could override one of the last remaining checks on the expanding and pervasive national security state in the United States, as well as topple one of the oldest journalistic paradigms in the nation.
"If these charges really hold - especially the 'aiding the enemy' charge, simply by releasing information to the American public which will inevitably get to everyone, including our allies and our enemies - if that is enough to put someone in prison, let alone for life or execution, then the social function of journalists is reduced to that of the German Democratic Republic basically under the Stasi regime," Ellsberg said.