Yochai Benkler writes: After 1,000 days in pretrial detention, Private Bradley Manning yesterday offered a modified guilty plea for passing classified materials to WikiLeaks. But his case is far from over—not for Manning, and not for the rest of the country. To understand what is still at stake, consider an exchange that took place in a military courtroom in Maryland in January.
The judge, Col. Denise Lind, asked the prosecutors a brief but revealing question: Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?
The prosecutor’s answer was simple: “Yes Ma’am.”
The question was crisp and meaningful, not courtroom banter. The answer, in turn, was dead serious. I should know. I was the expert witness whose prospective testimony they were debating. The judge will apparently allow my testimony, so if the prosecution decides to pursue the more serious charges to which Manning did not plead guilty, I will explain at trial why someone in Manning’s shoes in 2010 would have thought of WikiLeaks as a small, hard-hitting, new media journalism outfit—a journalistic “Little Engine that Could” that, for purposes of press freedom, was no different from the New York Times. The prosecutor’s “Yes Ma’am,” essentially conceded that core point of my testimony in order to keep it out of the trial. That’s not a concession any lawyer makes lightly.
But that “Yes Ma’am” does something else: It makes the Manning prosecution a clear and present danger to journalism in the national security arena. The guilty plea Manning offered could subject him to twenty years in prison—more than enough to deter future whistleblowers. But the prosecutors seem bent on using this case to push a novel and aggressive interpretation of the law that would arm the government with a much bigger stick to prosecute vaguely-defined national security leaks, a big stick that could threaten not just members of the military, but civilians too. [Continue reading…]