Watching the verdict handed down against Bradley Manning Tuesday, Edward Snowden had his worst fears confirmed.
With a litany of guilty verdicts, the judge, Col. Denise Lind, all but certainly condemned Manning, the man accused of providing WikiLeaks with a huge trove of classified documents, to spend the majority of his adult life behind bars. And it’s all bad news for Snowden.
Though the military court acquitted Manning of the most serious charge — aiding the enemy — it convicted him on five charges of espionage under a legal rationale similar to the one presented by prosecutors in indicting Snowden under the 1917 Espionage Act.
In past cases in which the government pressed espionage charges against members of the intelligence community who provided classified information to the media, the government had to prove "bad faith" — that the accused intended to harm U.S. interests. If there was ever to be a legal reprieve for men like Manning and Snowden, it lay in the "bad faith" provision and the argument that these whistleblowers had in fact acted in the best interests of the nation. But that provision has been jettisoned in more recent rulings, a precedent continued by Lind.
"I think that if the government had to prove bad faith, it would be tough, and I don’t think they would be able to prove that beyond a reasonable doubt," Elizabeth Goitein, the co-director of the Liberty and National Security Program at the Brennan Center for Justice, tells FP. "That’s the one thing that could have saved [Manning and Snowden]. It’s very unfortunate that the intent requirement is being read out of the statute because it makes no sense to treat traitors and whistleblowers and everyone in between the same."
In explaining his decision to flee the United States, Snowden has explained that the treatment of Manning, who has been held in solitary confinement and, on several occasions, stripped of his clothing, served as an example of the treatment he was likely to face for leaking sensitive National Security Agency documents. Now Snowden has seen Manning not only roughed up by his military captors but also convicted under the full weight of espionage charges. Even if Manning’s acquittal on the aiding the enemy charge represents a victory for him and his legal team, he is still likely to face significant jail time. In sum, Manning was convicted on five counts of espionage, five charges of theft, a computer fraud charge, and a set of military infractions. He could face up to 136 years in jail.
Like Manning, Snowden argues that his decision to put classified documents in the public domain was done out of a desire to expose wrongdoing at the highest level of the government. But as Tuesday’s verdict in the Manning trial illustrates, that argument is no defense in the face of espionage charges, which the Obama administration has relied on heavily in its efforts to crack down on national security leaks. For the administration’s critics, the idea that providing information to journalists amounts to espionage is ludicrous on its face. But as the Manning verdict shows, it’s a line of reasoning that holds up well in a court room.
The Manning verdict also comes as a setback for WikiLeaks founder Julian Assange, who became a household name using the documents and videos supplied by Manning and slammed the court decision in a statement: "Throughout the proceedings there has been a conspicuous absence: the absence of any victim. The prosecution did not present evidence that — or even claim that — a single person came to harm as a result of Bradley Manning’s disclosures. The government never claimed Mr. Manning was working for a foreign power." If Assange’s statement reads as surprisingly defensive, it shouldn’t — after all, the WikiLeaks founder sees himself as the real target of the Manning trial.
Though the Obama administration has received heavy criticism for its pursuit under the Espionage Act of self-described whistleblowers, it has seen mixed results in securing convictions — until now. The case against NSA whistleblower Thomas Drake fell apart amid a heated legal battle, and Drake ended up pleading guilty to misdemeanor charges. The administration is currently engaged in a heated legal battle in the case against Jeffrey Sterling, a former CIA agent, and is attempting to force New York Times reporter James Risen to name Sterling as his source for the leaked information at the center of the trial. That case may very well end up before the Supreme Court. Former CIA agent John Kiriakou is currently serving a 30-month sentence. The Manning conviction, however, hands the administration a bona fide courtroom win. With that ruling, which Goitein describes as "absolutely precedent setting," the administration can reasonably argue that it will go after whistleblowers in the government with espionage charges — and emerge victorious.
"With each additional case things look worse," Goitein says, noting that the bad faith requirement was jettisoned with the Kiriakou case and, with the Manning verdict, shows no sign of returning to federal jurisprudence.
That’s something that has civil liberties activists deeply worried. In a statement, the American Civil Liberties Union described the Manning prosecution as nothing but an exercise in intimidation. "Since he already pleaded guilty to charges of leaking information — which carry significant punishment — it seems clear that the government was seeking to intimidate anyone who might consider revealing valuable information in the future," said Ben Wizner, the director of the group’s Speech, Privacy and Technology Project. If those activists are looking for confirmation of their fears, they need look no further than a joint statement from Reps. Mike Rogers and Dutch Ruppersberger, the chairman and ranking member, respectively, of the House Permanent Select Committee on Intelligence: "There is still much work to be done to reduce the ability of criminals like Bradley Manning and Edward Snowden to harm our national security. The House Intelligence Committee continues to work with the Intelligence Community to improve the security of classified information and to put in place better mechanisms to detect individuals who abuse their access to sensitive information."
Snowden’s decision to leave the United States now looks all the more prescient. Though his critics have been quick to dismiss him as a spy and a traitor, there is little evidence to indicate that is actually the case. Nonetheless, he finds himself facing a federal indictment that includes espionage charges for disclosing to the Guardian and the Washington Post the astounding reach of the NSA’s intelligence gathering capabilities. Over the long history of whistleblowers stepping forward to disclose classified information, Snowden and Manning broke ground in disclosing unprecedented volumes of material involving multiple programs and agencies. That, it is now clear, has only made them more vulnerable to prosecution. Men like Drake, Kiriakou, and Sterling struck at single programs or problems inside the intelligence community and avoided the legal assault Manning now finds himself under.
Should he ever return to the United States, Snowden now knows that federal prosecutors will throw the book at him — and win.