Could Bradley Manning be charged with espionage or treason?

[JoelUpchurch]

@John_Mace

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.

I checked and the US has a extradition treaty with Iraq. Why couldn’t we extradite him to Iraq after we finish our legal proceedings against him?

[Captain_Amazing]

@Diogenes_the_Cynic

He’s not a government, or an agent of a government or an agent any enemy. He’s the press.

Right, but people have been successfully prosecuted under the Espionage Act for giving information to the press before; the Samuel Morrison case, where Morrison gave classified government satellite photos of Soviet shipyards to Jane’s Defence Weekly. So, what distinguishes that case from this one?

[Lemur866]

@Captain_Amazing

Right, but people have been successfully prosecuted under the Espionage Act for giving information to the press before; the Samuel Morrison case, where Morrison gave classified government satellite photos of Soviet shipyards to Jane’s Defence Weekly. So, what distinguishes that case from this one?

Of course he can be charged with espionage, and he certainly violated any number of secrecy laws.

But there’s a difference between espionage and treason. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Did he levy war against the United States? No.
Did he adhere to the enemies of the United States, giving them aid and comfort? No.

Therefore, he didn’t commit treason.

[Lemur866]

@billfish678

Now, if you want to argue (or it turns out its actually a solid legal fact) that unless he took a folder of SECRET info and he personally handed it to a Russian spy on a park bench it aint treason, fine.

It is a solid legal fact that unless he directly aided an enemy of the United States (such as a declared terrorist organization), it ain’t treason.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. It’s right there in the Constitution.

He violated all kinds of other laws, though.

[Captain_Amazing]

@Lemur866

Therefore, he didn’t commit treason.

I don’t think he did, and I think the consensus here is that he didn’t. But some people, like Diogenes, are arguing that he also didn’t commit espionage.

[Lemur866]

@Diogenes_the_Cynic

He did not give information to any foreign government. There is no treason here. Sorry.

Given the above, it seems like Dio is merely arguing against the treason nonsense.

I have no idea exactly which laws against disseminating secret information he violated, and I’m sure he violated lots of them. It wouldn’t surprise me if he could be charged with espionage.

[anson2995]

@Lemur866

Of course he can be charged with espionage

He could be charged with anything, but it seems pretty clear that the things he’s accused of don’t meet the definition of espionage, either under the UCMJ (Article 106a) or the Espionage Act. (18 USC 793).

I’m not sure why there’s so much hand-wringing over this. He faces a de facto life sentence if convicted, and he clearly wouldn’t qualify for the death penalty if convicted of espionage.

@Captain Amazing

Right, but people have been successfully prosecuted under the Espionage Act for giving information to the press before; the Samuel Morrison case, where Morrison gave classified government satellite photos of Soviet shipyards to Jane’s Defence Weekly. So, what distinguishes that case from this one?

Morrison was a civilian charged under the Espionage Act. Manning was active duty military facing a court-martial. They are different laws. I disagree with Mr. Moto’s assertion that Manning could be charged under the Espionage Act. The civilian criminal court has no jurisdiction.

And you say “people,” but Morison is the only one who was successfully prosecuted. He served two years and was subsequently pardoned. Subsequent attempts at prosecution were bounced for the precise reasons we’re discussing here.

[What_the]

@UDS

“Time of war”, as has been pointed out above, requires either that there be formal declaration of war, or that the President determine, as a matter of fact, that there exist hostilities which warrant a finding that a “time of war” exists.

I don’t know whether the President has made such a determination and, if so, whether he had made it at the time Manning did the acts for whcih he might be charged.

Could he do so after the event, with retrospective effect? That seems objectionable in principle to me - retrospectively making an act a crime which was not a crime at the time the act was done. I don’t know how the courts would treat it, but I suspect they wouldn’t like it.

“Time of war” is a necessary element of a spying charge under 106. (And I think, looking at 106, that even if there is a time of war, there are other problems with prosecuting Manning. It’s clearly not aimed at servicemen and women who are abusing their positions.)

But “time of war” is not a necessary element of an espionage charge under 106a. A 106a charge would require it to be shown that Manning

• communicated, delivered or transmitted, directly or indirectly

• information relating to national defence

• to a foreign government, faction, party or military/naval force of a foreign country, or repfesentative/officer/agent etc of such.

Let’s assume that among the mass of diplomatic cables there was some identifiable information relating to national defence.

Manning didn’t deliver it directly to any foreign government, etc. Nor did he deliver it to anyone acting as an agent of such. He delivered it to somebody who would publish it generally. Is this enough to amount to “indirect” deliver to a foreign govenrment etc? Bear in mind that Manning needs to have “intent or reason to believe” that the information would be used (NB not “could be used” but “would be used”) to the injury of the US/advantage of the foreign government? The truth is that Manning had no real idea of the use which would be made of the information by those who read it through Wikileaks. Indeed, Manninig quite possibly has no idea of the information contained in the cables that he delivered to Wikileaks. You could certainly say that Manning was indifferent to whose hand the information got into, or what use they would make of it, but I don’t know that that amounts to “intent or reason to believe” that it would be used to the injury of the US.

“Time of war” … who’s the decider? Did Bush? Can Obama undecide? Can he be forced to decide one way or the other?