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BROOKE GLADSTONE: From WNYC in New York, this is On the Media. Bob Garfield is away. I’m Brooke Gladstone. This week a leak surfaced regarding the nation’s most famous leaker, at least since Daniel Ellsberg. Army Specialist Bradley Manning, arrested in 2010 for passing classified material - lots of it - to WikiLeaks. On February 28th, he confessed to a military judge to leaking videos of airstrikes and diplomatic cables, and he read a 35-page statement. The audio of that statement leaked this week, and the sound is pretty bad.
[CLIP/MANNING READING STATEMENT]:
BRADLEY MANNING: I am the type of person who likes to know how things work. And, as an analyst, this means I always want to figure out the truth. Unlike other analysts in my section or other sections within the 2nd Brigade Combat Team, I was not satisfied with just scratching the surface and producing canned or cookie cutter assessments. I wanted to know why something was the way it was, and what we could to correct or mitigate a situation. I knew that if I continued…
[AUDIO UP & UNDER]
BROOKE GLADSTONE: This is the first time most of us have actually heard Manning, though we’ve heard plenty about him, the story of a troubled 22-year-old gay man in a “don’t ask, don’t tell” world, who wrote instant messages to a convicted hacker full of bravado and angst and moral outrage of the conduct of the military. And then that hacker, Adrian Lamo, turned him in. We can’t assess Manning’s motivations here, but we do know, because he told the court, why he leaked what he leaked.
[CLIP]:
BRADLEY MANNING: I thought these cables were a prime example of a need for a more open diplomacy….
[AUDIO UP & UNDER]
BROOKE GLADSTONE: Manning pled guilty to 10 of the 22 charges against him. He did not plead guilty to aiding the enemy. Prosecutors made their case for that charge by likening Manning to Pvt. Henry Vanderwater, convicted in 1863 of giving a Confederate newspaper a coded command roster. Vanderwater was convicted and sentenced to three months’ hard labor and a dishonorable discharge. Today, aiding the enemy is a capital offense, though the government says it won’t seek execution. And University of Chicago Law Professor Geoff Stone says Manning’s case bears utterly no resemblance to Vanderwater’s.
PROF. GEOFFREY STONE: First, that in 1863 the First Amendment had virtually no content. There’d been no judicial decisions about the meaning of the First Amendment, and I’m quite sure that it was not even considered. And second, it’s clear that Vanderwater, the individual in that case, was, in fact, intending to aid the enemy. And the truth is no one, so far as I know, claims that Bradley Manning’s purpose was to aid the enemy.
BROOKE GLADSTONE: Tell me about some of the decisions that have changed how we see the First Amendment in the 150 or so years since Vanderwater.
PROF. GEOFFREY STONE: In the years since then, we’ve moved completely in our understanding of the right to free speech. The most dramatic and apt illustration of this was the Pentagon Papers case, in which the New York Times and the Washington Post published classified information leaked to them by Daniel Ellsberg, and the Supreme Court held that they could not be restricted from publishing the information, unless the government could prove, at the very least, that the disclosures created a clear and present danger of grave harm to the nation.
And the court said nothing in the facts of the Pentagon Papers came close to that and, therefore, that they could not be restrained.
And that’s the governing precedent today, if the government attempted to prosecute WikiLeaks or attempted to prosecute the New York Times for publishing the information that Bradley Manning leaked. That’s completely different from what the law would have been in 1918 or, for that matter, in 1863.
BROOKE GLADSTONE: Ultimately, Henry Vanderwater got a three- month sentence back in 1863, along with his dishonorable discharge. The prosecutors are presenting what is now a capital charge.
PROF. GEOFFREY STONE: That’s exactly right. It was not regarded as a major offense, and he was given a very – very modest sentence, particularly for a sentence during the Civil War. Of course, it’s also the case that the government’s views that the harm allegedly done by Bradley Manning may have been much greater than the harm actually done by Vanderwater.
But, be that as it may, there’s just no legal basis, under the statutes as they currently exist or, I believe, even with respect to the First Amendment, for charging or prosecuting Manning under this offense.
BROOKE GLADSTONE: What about the issue of harm? So far, there hasn’t been any strong case made that serious harm was done.
PROF. GEOFFREY STONE: The general view is that a government employee or member of the military can be punished for the unauthorized disclosure of classified information, as long as there is a reasonable possibility of harm to the government.
BROOKE GLADSTONE: Uh huh.
PROF. GEOFFREY STONE: A much different standard than the one that applies to publication of the information. I don’t think it would be hard for the government to prove that some of the information leaked by Bradley Manning would satisfy that standard.
BROOKE GLADSTONE: Do you think that Americans and the American media should be watching this case more closely than it has so far?
PROF. GEOFFREY STONE: Absolutely, I mean, the greater deterrent the government can impose upon people who would be tempted to give information to the media, the more difficult it would be for the media to disclose it. And the problem here is that a lot of information looks in two directions. Think of the Pentagon Papers case. One type of information revealed was that the United States had made secret deals with some of the countries around Vietnam to allow us to have bases there. And it was important that this be kept secret because if we can't keep those secrets, then other nations in the future may be reluctant to make similar arrangements with us.
So the disclosure of that information is eventually harmful but, on the other hand, it's valuable information to understand that were making these underground deals, that what we’re giving up in return for this is something that might be important. And so, the public does have a legitimate interest in knowing this.
So, in those cases, and this is what basically, as far as I can tell, the Bradley Manning information is, it may be harmful to disclose the information, but it's also valuable to disclose the information. And that’s what makes this a, a tricky and interesting problem.
BROOKE GLADSTONE: Geoff, thank you very much.
PROF. GEOFFREY STONE: My pleasure, as always.
BROOKE GLADSTONE: University of Chicago law professor, Geoff Stone.
