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What exactly is Pfc. Manning?

Published on -8/1/2013, 9:34 AM

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Hero or traitor? Neither.

During the trial, the prosecution sought to paint U.S. Army Pfc. Bradley Manning as an anarchist and a traitor, while the defense portrayed him as naive and well-intentioned. The judge, rightly, rejected both characterizations, finding Manning not guilty of "aiding the enemy" but guilty of violations of the Espionage Act for releasing information that could cause harm and stealing government property.

Neither side got exactly what they wanted, which is often the sign of a just result. Manning may have been "well-intentioned" in the colloquial sense, but legally speaking, he intentionally violated the law. He did not steal the files "by mistake." He is a trained intelligence officer. He knew exactly what he was doing, and he knew exactly what WikiLeaks would do with the files He may have been hoping for a spirited debate, but he knew the files would be seen by both our friends and our enemies. Those who intentionally violate the law must know -- and must accept -- the consequences of doing so.

It doesn't matter whether he was seeking fame or better policy, at least not in terms of guilt.

Many in the civil liberties community, while relieved that Manning was acquitted of the most serious charges, worry that the convictions will nonetheless chill whistleblowers and leakers, who are critical sources for national security reporting. Many others, from military leaders to mothers with children serving this country in harm's way, worry that individuals, even well-intentioned ones, can endanger our country and their children when they decide they know best what should be made public.

There are, in short, legitimate concerns on both sides.

I've taught the First Amendment for decades, but I don't pretend to have any easy answers. The First Amendment is not a license to steal.

It does not empower the individual to ignore the rules, damn the majority and decide that he or she knows best. The issue here is not whether news organizations have a right to print material that was wrongfully taken (they do, with extremely limited exceptions), but whether those who steal it, knowing it is wrong to do so (as Manning certainly did), are above the law.

They aren't.

Manning's case was, in some respects, easy because it was so extreme. We are not talking about a document, not a sheaf of documents, not about leaking unlawful activity being done by the government that the government refuses to acknowledge. Manning stole 700,000 files, including 250,000 diplomatic cables, front-line reports and dossiers of Guantanamo prisoners. Did he really think there would not be serious, very serious, consequences to doing so? Did he really think he had the right to decide that everyone else in the government was wrong about the need for security, that only he knew better? Did he really think the rules didn't apply to him?

But "aiding the enemy" was going too far. Classic prosecutorial overreaching, as one of my smartest friends put it.

Technically speaking, in criminal law terms, you can be held to have intended consequences that you know will result: Manning surely knew the information he was stealing would be seen and, to the extent possible, used by our enemies. But he is not an agent of al-Qaida. If he were, he would have given the information to them -- not to the press. Had he been convicted, he would have instantly become a martyr -- endangering the very principles his prosecution was intended to vindicate. That would have been a victory for our enemies.

The only remaining question has to do with exactly how many decades Manning will be incarcerated. It will be decades. Even without the conviction for aiding the enemy, he will, as my friend put it, still have plenty of time to contemplate his actions.

Susan Estrich is a columnist, commentator and law and political science professor at USC.

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