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In Appeal, US Military Whistleblower Chelsea Manning Challenges Constitutionality Of Espionage Act

United States military whistleblower Chelsea Manning has filed an appeal and argues a military judge’s decision to convict her of seven Espionage Act offenses violated her due process and First Amendment rights.

Nearly three years ago, Manning was convicted of offenses, which stemmed from her decision to provide WikiLeaks with over a half million U.S. government documents and a video of an Apache helicopter attack in Baghdad now known as the “Collateral Murder” video. She exposed war crimes, diplomatic misconduct, and other instances of wrongdoing and questionable acts by U.S. officials.

The appeal [PDF] submitted to the Army Court of Criminal Appeals (ACCA) challenges numerous aspects of her conviction, sentence, and the entire court martial itself. One of the most significant parts of the appeal is the challenge against the Espionage Act.

The Espionage Act is “unconstitutionally vague and overbroad,” the appeal argues. More specifically, it suggests how Judge Denise Lind defined the elements of the Espionage Act offenses did not fix the law’s “defects.” The law did not give Manning “fair warning of what is or is not unlawful.”

How Lind chose to interpret the offenses did not change how the law infringes on a “broad swath of protected speech—speech that goes to the very core of our democratic system.”

“The government will argue the Act concerns national security, an important issue to be sure,” the appeal states. “But the military’s national security interests should not trump two of our Constitution’s most cherished rights, the right to due process and the right of free speech.”

The appeal notes Lind relied on three cases: the case of Samuel T. Morison, a Navy civilian analyst who leaked photographs of Soviet ships to alert America to what he perceived as a new threat, the case of Lawrence Franklin, a Defense Department employee who leaked information on Iran to the American Israel Public Affairs Committee (AIPAC), and the case of Stephen Kim, a State Department employee who communicated with a reporter about North Korean plans for missile tests.

“No military court has ever decided this issue so these cases are at best only persuasive,” the appeal states.

It asserts the Espionage Act is “abstract and written in a manner that gives no assurance that it relates to ‘real world’ conduct, and for that reason, it violates due process.

What it meant to cause “injury” to the United States” or “advantage” a foreign nation is “even less clear.” Lind merely decided “injury must not be remote, hypothetical, speculative, far-fetched, or fanciful,” which the appeal insists did not even begin to explain what constituted an injury.

In the case against Morison, the judge “confined” national defense to matters, which were directly or reasonably “connected with the defense of the United States.” The appeal maintains that Lind defined the term much more broadly. Anything that had to do with the “military” or “activities of national preparedness” constituted “national defense.”

Morison did not go this far. When a court interprets a statute so broadly as to bring virtually any speech within its sweep, then as a matter of law it is unconstitutional,” the appeal contends.

“We have no way of knowing whether the military judge would have found Pfc. Manning guilty of all
the Espionage Act specifications had she correctly applied a more limiting standard.”

It requests the military affirm “lesser-included offenses,” which Manning already pled guilty to committing during her trial.

The Espionage Act is a law from 1917 that was intended to criminalize individuals who engaged in spying, not leakers or whistleblowers. It was not initially used to prosecute government employees who passed on information to a reporter or a media organization.

However, under President Barack Obama, the Justice Department has exercised wide discretion and interpreted the law as one that can be used to criminalize government employees who blow the whistle on corruption or share information on operations, policies, or programs with the press. The administration has used the law to prosecute whistleblowers or leakers, as if they are “insiders,” “informers,” or “spies.”

Those prosecuted—in addition to Manning—include Kim, Jeffrey Sterling, a CIA whistleblower, John Kiriakou, a CIA whistleblower, Thomas Drake, an NSA whistleblower, Shamai Leibowitz, an FBI linguist, Donald Sachtleben, an FBI agent, and James Hitselberger, a Navy linguist. NSA whistleblower Edward Snowden, who is living in exile in Moscow, was also charged with violating the Espionage Act.

As the American Civil Liberties Union argues in its amicus brief [pdf] filed in support of the appeal, “The Espionage Act is unconstitutionally vague because it provides
the government a tool that the First Amendment forbids: a criminal statute that allows the government to subject speakers and messages it dislikes to discriminatory prosecution.”

“The military judge’s application of the Act to Pfc. Manning violated the First Amendment because the military judge did not permit Pfc. Manning to assert any defense that would allow the court to evaluate the value to public discourse of any of the information she disclosed,” the ACLU asserts. “The military judge, therefore, failed to weigh the public interest in the disclosures against the government interest in preventing them, as required by the First Amendment.”

The ACLU also maintains “no person in the history of this nation had been sentenced to decades in prison for the crime of disclosing truthful information to the public and press.”

It took nearly three years for Manning’s attorneys, Nancy Hollander and Vincent Ward, to compile her appeal.

Back in April 2014, when Hollander first began to put together an appeal, she said at an event at Georgetown Law Center, “It is frightening that the Espionage Act has essentially become a strict liability crime, that intent required is the intent to disclose and we simply cannot let that continue.”

Hollander added, “The lack of criminal intent is frankly horrifying to me as a lawyer, that Chelsea was convicted and is going to spend 35 years in jail without any burden on the government whatsoever to prove that she intended or had reason to believe that this disclosure would harm the United States or advantage a foreign government.”

Senator Barbara Boxer appears on CNN. (Still from https://www.youtube.com/watch?v=0n9J0OIWAJs)
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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."