Attorneys for Wikileaks source Chelsea Manning begin working on the appeals process after the military finds her guilty under the Espionage Act, a statute the Obama administration has invoked more than all previous presidencies -

April 20, 2014



Transcript

JESSICA DESVARIEUX: The case of Chelsea Manning is back in the spotlight. Last week, a U.S. Army general rejected Manning's request for clemency, thereby upholding her 35-year prison sentence.

As you might remember, last year a military judge found Chelsea Manning, then known as Bradley Manning, guilty of 20 offenses. Despite being acquitted of the most serious charge of aiding the enemy, which carried with it a life sentence, Manning's 35-year sentence is the longest imposed on any American for leaking information to the media.

One of Manning's new attorneys, Vincent Ward, says that Chelsea is ready for the long uphill battle to appeal the court's sentence.

VINCENT WARD: She's one of those rare people that found that it was her moral and ethical responsibility to inform the public about information that she thought was wrong and bad acts by the government.

Is it proper for the government to punish somebody like Chelsea for 35 years, to put her in jail for 35 years, which, given her age, you know, it's not a life sentence, but she is going to be in jail for a really long time. And I think that the instinct of many is that the punishment doesn't fit the crime.

DESVARIEUX: The crime is the hundreds of thousands of classified documents that Chelsea leaked to the whistleblowing group WikiLeaks. Manning was then charged and convicted of violating the Espionage Act of 1917. But how did prosecutors argue that this law, meant to punish spies, was relevant to Chelsea's case?

The Real News spoke with American University professor of law Steve Vladeck to understand what the law entails.

STEVE VLADECK: So the Espionage Act was enacted by Congress in 1917, so 97 years ago in the middle of World War I. It was Congress's first effort to really make it a crime for various kinds of information to be stolen, to be disclosed, to be transmitted in a way that allowed a foreign power to benefit. And so the Espionage Act is actually written in a very old, anachronistic kind of way. It predates most of our modern First Amendment doctrine. And so it actually is a very broad, at times inconsistent and ambiguous statute that actually sweeps within its scope all kinds of conduct that we wouldn't think of as espionage.

So whatever one thinks of Chelsea Manning's conduct and of what she did, you know, she's not a spy. She's a leaker. And, you know, whether she's whistleblower or not I think is a matter of different perspectives. But that's the problem with the Espionage Act is that it's written so broadly and so imprecisely that it basically draws no distinction between leaking, whistleblowing, and espionage.

DESVARIEUX: Manning's actions were not espionage, argues her newly appointed attorney Nancy Hollander. They plan to challenge the use of the Espionage Act, since there was no intent to harm the U.S. or sell such classified information to foreign governments.

NANCY HOLLANDER: The only intent required is the intent to disclose it, not the intent to harm the U.S. or the intent to aid another country. And that's a very low standard, and that's one that we really want to fight.

Now, her case came right after another case, the Kim case, K-I-M, in federal court, where a judge also found the same thing, and the prosecution picked up on that. And that's very dangerous precedent.

DESVARIEUX: The case involving ex-State Department adviser Stephen Kim is just one out the eight times that the Obama Administration has invoked the Espionage Act. Others who have been charged include NSA whistleblowers Edward Snowden, Thomas Drake, and of course Chelsea Manning. Prior to Obama's presidency, it was only used three times in history.

In the case of Stephen Kim, not only was he sentenced to 13 months in prison, but the Fox News reporter who he leaked the information to, James Rosen, was also investigated by federal agents.

The government has never used the Espionage Act against a journalist, but back in 2012, then ABC news reporter Jake Tapper questioned White House Spokesman Jay Carney as to why the administration was going after so many leakers who were sources for investigative reporters.

JAKE TAPPER: This is the sixth time you're suing a CIA officer for allegedly providing information in 2009 about CIA torture. Certainly that's something that's in the public interest of the United States. This administration is taking this person to court. There just seems to be a disconnect here: you want aggressive journalism abroad; you just don't want it in the United States.

JAY CARNEY: Well, I would hesitate to speak to any particular case for obvious reasons, and I would refer you to the Department of Justice for more on that. I think we absolutely honor and praise the bravery of reporters who are placing themselves in extremely dangerous situations in order to bring the story of oppression and brutality to the world. I think that is commendable and it's certainly worth noting by us. And as somebody who knew both Anthony and Marie, I particularly appreciate what they did to bring that story to the American people. As for other cases, again, without addressing any specific case, I think that there are issues here that involve highly sensitive, classified information, and I think that, you know, those are--divulging that kind of information is a serious issue and always has been.

TAPPER: So the truth should come out abroad; it shouldn't come out here.

CARNEY: Well, that's not at all what I'm saying, Jake, and you know it's not. Again I can't--.

TAPPER: [It's] what the Justice Department's doing.

CARNEY: Well, you're making a judgment about a broad array of cases and I can't address those specifically.

TAPPER: It's a judgment that a lot of whistleblowers organizations and good government groups are making as well.

CARNEY: It's not one that I'm going to make.

DESVARIEUX: Manning's lawyers have asked for a presidential pardon for Chelsea, but the White House said that such a request will not be considered until all appeals are exhausted.

Journalist Kevin Gosztola has been covering the Manning trial from the onset and says that this is not the first time that the president has pushed the Manning case aside.

KEVIN GOSZTOLA: For the most part, President Barack Obama would like to just not have to deal with this at all. When there were complaints about Manning being put in solitary confinement at Quantico, his administration didn't want to answer for it. When he was at a fundraiser and was confronted by Manning supporters and then said, doing what I think is, you know, a really poor thing to do when the person hasn't even gotten to trial, President Obama actually said that Manning had broken the law. And when he opened his mouth that, then the administration doesn't want to answer for those comments from the president.

BARACK OBAMA: I have to abide by certain classified information. If I ever leaked something that I'm not authorized to leak, I'm breaking the law. We are a nation of laws. We don't individually make our own decisions about how the laws out there

(No, he's doing fine, he's doing fine. I mean, he's being courteous when he's asking a question.)

UNIDENTIFIED: [incompr.]

OBAMA: No. He broke the law.

GOSZTOLA: And then now you have this happening here with this presidential pardon and Obama just basically not wanting to deal with people who think that Manning should at minimum not be sentenced to 35 years in jail.

DESVARIEUX: Critics of the use of the Espionage Act against Manning have also pointed to how journalists could be prosecuted under the very same law.

MICHAEL RATNER: You know, there's always been this supposedly clear division between going after the person who had the secure access to the documents and who reveals them and then the journalist who the whistleblower gives the documents to. That line is being blurred.

DESVARIEUX: Michael Ratner is the attorney to WikiLeaks founder Julian Assange. Assange's site published the documents that Chelsea Manning provided, and he's now under criminal investigation.

RATNER: Journalists and others called him, Julian, a high-tech terrorist, and yet he's a journalist, so that the government as well as some of the media are trying to push together those two categories. That's not the only case. When Glenn Greenwald was on TV in the last year or so, he was basically accused of not being a genuine journalist.

DAVID GREGORY: To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn't you, Mr. Greenwald, be charged with a crime?

GLENN GREENWALD: I think it's pretty extraordinary that anybody who would call themself a journalist would publicly muse about whether or not other journalists should be charged with felonies. The assumption in your question, David, is completely without evidence, the idea that I've aided and abetted him in any way. The scandal that arose in Washington before our stories began was about the fact that the Obama administration is trying to criminalize investigative journalism by going through the emails and phone records of AP reporters, accusing a Fox News journalist of the theory that you just embraced, being a co-conspirator in felonies for working with sources. If you want to embrace that theory, it means that every investigative journalist in the United States who works with their sources, who receives classified information, is a criminal. And it's precisely those theories and precisely that climate that has become so menacing in the United States. It's why The New Yorker's Jane Mayer said investigative reporting has come to a "standstill" (her word) as a result of the theories that you just referenced.

RATNER: --you're seeing, in an effort to merge journalists in with the whistleblowers that the government is prosecuting. My view, of course, is neither the whistleblowers nor the journalists should be prosecuted for giving us truths.

DESVARIEUX: But Professor Steve Vladeck says that if the administration went after journalists with the Espionage Act, it would be a tough case for the them to prove.

VLADECK: I mean, the Espionage Act is so broad that it's possible, you could argue, that when a journalist publishes a story about classified information, that he or she might be violating the statute. You know, at that point I think you would have very serious First Amendment concerns. You know, I think any any news organization, journalist, even a private person would have a very strong First Amendment claim if ever they were to be prosecuted in such a case.

I think that's part of why we've never seen it, right, not because the statute doesn't encompass the conduct of putting on the front page of The New York Times the text of a classified diplomatic cable, but rather because I think the government is incredibly wary of crossing the line from the leaker, whose culpability is, I think, relatively easy for us to accept, to those who receive the leak and then turn around and redistribute it, because if The New York Times is liable for that, why aren't we when we read The New York Times, when we talk about it to our friends, when we save the files on our computer? And so I think even though the statute would allow the government to take that step, politics, prudence, and common sense have required it and sort of kept it from ever doing so.

DESVARIEUX: Another part to Chelsea Manning's appeal will be looking at the over-classification of documents by the government. Hollander says due to over-classification it's even harder to construct a defense.

HOLLANDER: The government of the United States has overclassified so much, so it makes it easier, because once the government classifies something, it's very hard to go into court and say, this shouldn't be classified. The judges take the position, the government takes the position, the courts take the position that that's a decision that the executive makes. The executive gets to decide that something is classified.

DESVARIEUX: Though Manning did release classified documents, Professor Vladeck says many of those documents should never have been classified to begin with.

VLADECK: One of the things we learned from Chelsea Manning is that there were all these materials that were classified that really should never have been classified. I mean, maybe they were embarrassing, maybe they were sensitive, but they certainly weren't revealing any national security secrets.

And the problem is is that the way the system is set up, there's no incentive for the government to not classify. No one loses their job if they classify something that they shouldn't have. The only sanction if and when we find that out that a document was classified that shouldn't have been is that it gets declassified. And there's every incentive to overclassify, to, you know, keep secret anything that there's a plausible claim to keep secret. So, you know, I think part of the problem that is implicated in cases like Chelsea Manning's is that there's all this information out there that really shouldn't be classified in the first place. Is it then fair game for the government to turn around and prosecute those who disclose this information on the basis that it shouldn't have been hidden in the first place?

DESVARIEUX: Bringing those hidden documents to the public's attention is what Manning admits to doing. In her pretrial testimony, she read out a personal statement to the court in Fort Meade. It was the first time the public was hearing Manning in her own words about why she decided to release a video showing a 2007 attack by Apache helicopters. The pilots killed a dozen people, including two Reuters staff members.

CHELSEA MANNING: I wanted the American public to know that not everyone in Iraq and Afghanistan were targets that needed to be neutralized, but rather people who were struggling to live in a pressure cooker environment of what we call asymmetric warfare.

After the release, I was encouraged by the response in the media and general public, who observed the aerial weapons team video. As I hoped, others were just as troubled if not more troubled than me by what they saw.

DESVARIEUX: Those in the public who have rallied behind Manning by creating support groups like this one say that they are in it for the long haul. And its certainly clear that it will be a long journey, as the case could reach as far as the Supreme Court.

For The Real News Network, Jessica Desvarieux, Washington.



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