Pvt Manning is under investigation for violated UCMJ Article 92 (Failure to obey order or regulation) and Article 134 (the “General Article”); could he be charged with Article 106a (Espionage) or Article 106 (Treason)? Both offences carry the death penalty. Regarding 106; does the “2 witnesses to the same overt act” rule apply in a court martial?
Evidently, it’s being discussed.
Seems like the right idea to me.
I never would have believed I’d live to see this day…but I agree with magellan01. :eek:
Anyway, the factual question appears to have been answered (unless there is a more subtle legal sub-question implied in the OP). We seem to be moving into GD territory (no, I’m not junior modding, just making an observation.)
Well, it’s being discussed by some lame duck congressman. So what? It’s not his decision to make, any more than the other million bloggers and commentators who have weighed in on the subject.
The OP is whether he could be charged with Spying or Espionage under the UCMJ. I think the answer is clearly “no.” Under 106a(2), he would have had to shared information with a “foreign government or a faction or party or military or naval force within a foreign country.” Under 106, he would have to have intended to convey information to an enemy during a time of war.
How is dispersing the information to a foreign national during a time of war not covered by 106?
Does the fact that we have not formally declared war against Iraq or Afghanistan affect 106?
No, according to the Rules for Court Martial (link to gigantic pdf)
Cause that’s not what it says. The relevant element under 106 is this: “(4) That the accused did so with the intent to convey this information to the enemy.” And the definition of enemy (I won’t reprint it here, read it yourself) makes it pretty clear that it would not apply to a neutral third party. The Article also says: “A person can be a spy only when, acting clandestinely or under false pre-tenses, that person obtains or seeks to obtain information with the intent to convey it to a hostile party.” I don’t think there’s anyway to argue that WikiLeaks mets the UCMJ’s definition of a hostile party.
It might be argued that a foreign national would be covered under 106a. However, it still wouldn’t meet the grounds required for imposing a death penalty:
Anything that is a federal crime to civilians is also a federal crime to service members - these prosecutions are carried out under Clause 3 of Article 134, the General Article.
And since Samuel Loring Morison was convicted of espionage for passing classified information to Jane’s Defense Weekly, there doesn’t seem to be any protections for Americans for the other party being a national of an allied country or a journalist.
Whatever happens with Manning’s prosecution, I won’t predict. But if he did the things in question, there wouldn’t seem to be much to prevent an espionage prosecution.
Did Manning levy war against the United States?
No, obviously.
Did Manning “adhere to their Enemies”?
No, he gave the secret documents to wikileaks, not to Al Qaida.
Therefore, he did not commit treason.
In my book, the reasonable man figures that releasing info to an entity like Wikileaks will lead to the enemy attaining that info.
Treason requires overt cooperation between the traitor and the enemy.
If I fall asleep at my post, and an enemy soldier sneaks in and gathers information, am I a traitor? Well, my actions certainly helped the enemy. But I haven’t adhered to the enemy, or gave them aid and comfort. I’m not a traitor, I’m just derelict of duty.
Obviously anyone who gives away documents that they agreed to keep secret is guilty of some sort of crime, and rightly so. But that crime is not treason.
This example isn’t a great one, as falling asleep at your post in wartime can be treated as a capital offense. It certainly isn’t treason, but it doesn’t lessen the severity of the offense any.
I’m not trying to lessen the severity of Manning’s offense, I’m just stating that his offense is not treason. If he went nuts and shot his commanding officer that would be a severe offense, but it wouldn’t be treason.
But that’s not how the charge of treason works in the US. Unless, that is, you have an example of this happening-- someone leaking info to the press and then being charged with treason.
I don’t think the charge of treason would stick, for this reason.
I think the charge of espionage could stick, for exactly this reason.
I wonder how many other countries laws he violated. I’m still waiting for someone names in wikileaks to be murdered and have him extradited to Iraq or Afghanistan. I wonder if he violated laws in Saudi Arabia also? It would be interesting to have him prosecuted under sharia law.
I’m not sure what that has to do with the factual information being discussed here, but suffice it to say that the US isn’t going to extradite Manning to Iraq, Afghanistan, or Saudi Arabia.
Apples and oranges. Morison was a civilian tried in criminal court. Manning was active duty military and is facing a court martial. Different sets of laws and different jurisdictions.
Besides, the Morison case was an anomaly.
Everything that is a federal crime for civilians is also a federal crime for servicemembers.
So, would that mean that he can be tried both by a military court (for those offenses that go to military conduct) and by a civil court?