March 2, 2013
Daily Read: Yochai Benkler on Bradley Manning
Benkler (pictured) makes the comparisons between the New York Times and Wikileaks, drawing not only yesterday's statement by Manning but also on a January hearing.
For Benkler, the aiding the enemy offense strikes at the heart of the First Amendment:
It prohibits not only actually aiding the enemy, giving intelligence, or protecting the enemy, but also the broader crime of communicating—directly or indirectly—with the enemy without authorization. That's the prosecution's theory here: Manning knew that the materials would be made public, and he knew that Al Qaeda or its affiliates could read the publications in which the materials would be published. Therefore, the prosecution argues, by giving the materials to WikiLeaks, Manning was “indirectly” communicating with the enemy. Under this theory, there is no need to show that the defendant wanted or intended to aid the enemy. The prosecution must show only that he communicated the potentially harmful information, knowing that the enemy could read the publications to which he leaked the materials. This would be true whether Al Qaeda searched the WikiLeaks database or the New York Times'.
Benkler's contribution is a must-read for anyone following the Manning prosecution.
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