Can a government employee be convicted of espionage for leaking classified information to the media? The Obama administration has charged at least seven individuals with violations of the Espionage Act, but so far none of those cases have been ruled on by a judge or jury. The military trial against WikiLeaks source Bradley Manning could therefore set an important precedent about the legal treatment of leakers.
"No Espionage Act charge brought by this administration in connection with media leaks has ever been resolved on its merits by a judge or jury," said Elizabeth Goitein, the top national security lawyer at New York University's Brennan Center for Justice.
The 25-year-old is the fifth person to be charged by the Obama administration under the Espionage Act, a 96-year-old statute. It's this law that President Obama's been using to accuse civilian leakers of betraying the state. But while it's been used many times before in complaints, none of these cases have reached the legal merits.
That's because previous trials involving the Act have always been resolved in other ways. For example, in the case of Thomas Drake, who leaked information about NSA spending, the government's case fell apart. Some leakers have gone to jail, but that has been the result of plea bargains, not a conviction by a judge or jury. For example, espionage charges against John Kiriakou, the CIA employee who leaked details of the agency's waterboarding practices, were dropped after he agreed to plead guilty to violating the Intelligence Identities Protection Act.
It's unlikely Manning would be altogether acquitted of his espionage charges, since he already pleaded guilty to a watered-down version of them earlier this year. (This process, known as pleading guilty by exceptions and substitutions, means Manning acknowledged some responsibility without directly answering the specific charges brought against him by the government.) If it did happen, however, it would be a major blow to the White House, which has already invoked the Espionage Act twice since Manning.
The more serious allegation — aiding the enemy — is something that's unique to military law. The presiding judge, Col. Denise Lind, enraged Manning's supporters when she refused to throw out the charge. But, she said, keeping the charge alive didn't necessarily mean Manning would be convicted. Even if he is convicted of aiding the enemy, the fact that it's a charge under military law means the Justice Department wouldn't be able to apply the same law to civilian government workers who are considering becoming leakers themselves.
While there's no direct analogue to the "aiding the enemy" charge in civilian law, the Espionage Act does contain roughly similar language. The main difference is that the Espionage Act (under 18 USC 794) sets a slightly higher standard for evidence. Prosecutors have to prove that a suspect gave away national security information with the "intent or reason to believe" that doing so would harm the United States. Under the UCMJ, all the prosecutors have to prove that Manning "knowingly" gave information to "the enemy."
All that is to say that if Manning escapes conviction under this charge, convicting future civilian leakers could become that much harder. At the same time, an opposite finding by the presiding judge would make the administration's job easier.
"The hurdle [for 18 USC 794] is a little bit tougher," said Goitein. "But if the judge were to rule that evidence sufficient to convict ... it would not be unreasonable to concerned about the implications for how this part of the Espionage Act" might be used.
Manning's verdict will have implications for future leak cases. Manning has been compared to NSA leaker Edward Snowden. And NBC host David Gregory last month asked The Guardian's Glenn Greenwald — to his face — whether he ought to be charged with a crime for working with Snowden. The outcome of Manning's case will affect how leakers are treated in the future, and could even affect the legal status of future journalists, though the Obama administration doesn't appear ready to cross that line just yet.