Private Manning's Confidant - By Bill Keller. Bradley Manning's statement at his pretrial hearing in military court.

Private Manning's Confidant 

March 11, 2013 Monday   By BILL KELLER

In early 2010, Pfc. Bradley Manning methodically uploaded a digital mother lode of classified United States military and diplomatic documents to the Internet insurgents of WikiLeaks. As everyone knows, WikiLeaks made these secret archives available to a few major news outlets, including this one. Many illuminating and troubling stories were published, and Washington has been gnashing its teeth ever since.

The founder of WikiLeaks, Julian Assange, is, as far as we know, still hiding out in Ecuador's embassy in London, afraid that he might be extradited for his part in this hemorrhage of secrets, though the only allegations outstanding against him involve accusations of sex crimes in Sweden. Meanwhile, Manning, a 25-year-old low-level intelligence geek, is in pretrial hearings at Fort Meade, Md. He has pleaded guilty to crimes carrying up to 20 years of prison time, and the government is piling on more charges, including Article 104 of the military code, ''aiding the enemy,'' which could get him life without parole.

In his statement to the military court, Manning said that before he fell in with the antisecrecy guerrillas at WikiLeaks, he tried to deliver his trove of stolen documents to The Washington Post and The New York Times. At The Post, he was put off when a reporter told him that before she could commit to anything she'd have to get a senior editor involved. At The Times, Manning said, he left a message on voice mail but never got a call back. It's puzzling to me that a skilled techie capable of managing one of the most monumental leaks ever couldn't figure out how to get an e-mail or phone message to an editor or a reporter at The Times, a feat scores of readers manage every day.

But what if he had? What if he had succeeded in delivering his pilfered documents to The Times? What would be different, for Manning and the rest of us?

First of all, I can say with some confidence that The Times would have done exactly what it did with the archive when it was supplied to us via WikiLeaks: assigned journalists to search for material of genuine public interest, taken pains to omit information that might get troops in the field or innocent informants killed, and published our reports with a flourish. The documents would have made news -- big news.

But somewhat less of it. While in reality The Times and the public benefited from a collegial partnership with London's Guardian and other papers that took part in the WikiLeaks fiesta, I'm pretty sure that if we had been the sole recipient we would not have shared Manning's gift with other news organizations. That is partly for competitive reasons, but also because sharing a treasury of raw intelligence, especially with foreign news media, might have increased the legal jeopardy for The Times and for our source. So our exclusive would have been a coup for The Times, but something would have been lost. By sharing the database widely -- including with a range of local news outlets that mined the material for stories of little interest to a global news operation -- WikiLeaks got much more mileage out of the secret cables than we would have done.

If Manning had connected with The Times, we would have found ourselves in a relationship with a nervous, troubled, angry young Army private who was offering not so much documentation of a particular government outrage as a chance to fish in a sea of secrets. Having never met Manning (he was in custody by the time we got the WikiLeaks documents), I can only guess what that relationship would have been like. Complicated. Probably tense. We would, of course, have honored any agreement to protect his identity, though Manning was not so good at covering his own tracks. (He spilled the story of his leaking in long instant-messenger chats with an ex-hacker, who turned him in.) Once he was arrested, we'd surely have editorialized against the brutality of his solitary confinement -- as The Times has already done -- and perhaps protested the disturbing overkill of the ''aiding the enemy'' charge. (If Manning's leak provided comfort to the enemy, then so does every news story about cuts in defense spending, or opposition to drone strikes, or setbacks in Afghanistan.) Beyond that, we'd have made sure Manning knew upfront that he was on his own, as we did with the last leaker of this magnitude, Daniel Ellsberg of Pentagon Papers fame.

''When the government moved to prosecute Ellsberg, we felt no obligation to assist him,'' Max Frankel, who was The Times's Washington bureau chief at the time, recalled the other day. ''He was committing an act of civil disobedience and presumably knew that required accepting the punishment. We were privately pleased that the prosecution overreached and failed, but we did not consider ourselves his partner in any way.''

The most important thing that would not be much different if The Times had been his outlet would be Manning's legal liability. The law provides First Amendment protection for a free press, but not for those who take an oath to protect government secrets. This administration has a particular, chilling intolerance for leakers -- and digital footprints make them easier to catch these days -- but I can't imagine that any administration would have hesitated to prosecute Manning.

But if Manning had been our direct source, the consequences might have been slightly mitigated. Although as a matter of law I believe WikiLeaks and The New York Times are equally protected by the First Amendment, it's possible the court's judgment of the leaker might be colored by the fact that he delivered the goods to a group of former hackers with an outlaw sensibility and an antipathy toward American interests. Will that cost Manning at sentencing time? I wonder. And it might explain the piling on of maximum charges. During pretrial, the judge, Col. Denise Lind, asked whether the prosecution would be pressing the same charges if Manning had leaked to The Times. ''Yes, Ma'am,'' was the reply. Maybe so. But I suspect the fact that Manning chose the anti-establishment WikiLeaks as his collaborator made the government more eager to add on that dubious charge of ''aiding the enemy.''

If Manning had delivered his material to The Times, WikiLeaks would not have been able to post the unedited cables, as it ultimately did, heedless of the risk to human rights advocates, dissidents and informants named therein. In fact, you might not have heard of WikiLeaks. The group has had other middling scoops, but Manning put it on the map.

And, finally, if he had dealt with The Times, maybe we would better understand Bradley Manning. Lionized by WikiLeaks and his fan base as a whistle-blower and martyr, cast by his prosecutors as a villainous traitor, he has become dueling caricatures. Until the court proceedings, the only window into Manning's psyche was the voluminous transcript of his online chats with the ex-hacker, Adrian Lamo, published by Wired magazine. It portrays a young man, in his own words, ''emotionally fractured'' -- a gay man in an institution not hospitable to gays, fragile, lonely, a little pleased with his own cleverness, a little vague about his motives. His political views come across as inchoate. When asked, he has trouble recalling any specific outrages that needed exposing. His cause was ''open diplomacy'' or -- perhaps in jest -- ''worldwide anarchy.''

At Fort Meade, Manning delivered a more coherent explanation of what drove him. Appalled by the human collateral damage of counterterrorism and counterinsurgency, he says, he set out to ''document the true cost of the wars in Iraq and Afghanistan.'' Intrigued by his reading of State Department cables, he felt a need to let taxpayers in on the ''backdoor deals and seemingly criminal activity'' that are the dark underside of diplomacy. Was this sense of mission there from the start, or was it shaped afterward by the expectations of the Free Bradley Manning enthusiasts? The answer would probably make no difference to the court. But it might help determine history's verdict.

URL: http://www.nytimes.com/2013/03/11/opinion/keller-private-mannings-confidant.html

Bradley Manning's statement at his pretrial hearing in military court
https://docs.google.com/file/d/0B_zC44SBaZPoQmJUYURBUnBycUk/edit

First Up For Sotomayor: A Case With Partisan Edge

http://www.npr.org/templates/story/story.php?storyId=111614828
by Liz Halloran , August 6, 2009

Sonia Sotomayor made history Thursday, winning approval from the Senate to become the next Supreme Court justice — and the first Hispanic to sit on the nation's mightiest bench.

Sotomayor's confirmation came despite strong Republican opposition and on a mostly party line vote of 68-31. But the partisan bickering surrounding Sotomayor isn't likely to end once she is sworn in on Saturday morning. In less than a month, the court is scheduled to rehear arguments in a high-profile campaign finance case that could rewrite rules that restrict political campaign spending by corporations and unions.

And it just so happens, legal experts say, that issues of campaign finance and the ongoing struggle to balance free speech rights with the corrupting effect of big money in politics lie right in Sotomayor's wheelhouse.

"She is the only one on the court who has experience as a campaign finance regulator," says Rick Hasen of Loyola Law School in Los Angeles, referring to Sotomayor's four years as a member of the New York City Campaign Finance Board.

"Her experience is in both election law and policy, and she could bring a different perspective," Hasen says.

The Hillary Clinton Movie

At issue in the case, scheduled to be reargued Sept. 9, is whether the Federal Election Commission violated a conservative advocacy group's free speech rights when it barred the release of an anti-Hillary Clinton movie on the eve of the 2008 presidential primary season

Citizens United, which produced the movie, argued that the tenets embodied in the 2002 McCain-Feingold campaign finance law suppress political free speech by barring the use of corporate and union funds for partisan communications and limiting the time frame in which those partisan advertisements or broadcasts can be shown.

The FEC and a lower court found that the film, funded in part by corporate donations, violated the law's big money ban as well as a rule that prohibits "electioneering communications" in the 30 days before a primary for federal office — in this case, a presidential primary season during which Clinton was seeking her party's nomination.

But the Supreme Court's decision to have the case reargued suggested that justices less friendly to corporate campaign spending rules may be using the movie case to re-examine the broader law, including subsequent high court decisions that upheld corporate and union money restrictions.

"You always tremble a little bit when something like that happens," says Mary Wilson, president of the League of Women Voters, which has filed a friend of the court brief in favor of the FEC's position.

"From our perspective, we are trying to protect our political process from huge corporate expenditures in candidate elections," she says. "When something's not decided on the briefs, we wonder, what more do they need to hear on this?"

Big Changes Afoot?

Hasen is among election law experts who say that the court under Chief Justice John Roberts' guidance, and since now-retired Justice Sandra Day O'Connor was replaced by Justice Samuel Alito, has been consistently chipping away at campaign finance rules.

"They've decided four cases before this one and in each, they either held a rule unconstitutional, created an exception" or otherwise weakened the law, Hasen says.

A ruling for Citizens United "would be a significant change in its own right, and also signal that other campaign finance laws are ripe for challenge," Hasen says.

But Steven Shapiro of the American Civil Liberties Union says that predictions of great changes are overstated.

"I don't think it would be the end of campaign finance legislation as we know it," says Shapiro, who co-wrote the ACLU's friend of the court brief that supports Citizens United.

"This is not a challenge to contribution limits, nor is it a challenge to soft-money limits," he said. "This is about government revocation of core political speech, regardless of the speaker."

In its brief, the ACLU asserts that McCain-Feingold's broad prohibition on "electioneering communications" and its ban on corporations' and unions' paying for such communications violate the First Amendment on its face. The FEC defines electioneering communications as any broadcast, cable or satellite communication that refers to a "clearly identified candidate" for federal office, is publicly distributed shortly before an election for office that candidate is seeking, and is targeted to voters who will decide the race.

Sotomayor's Role

So how might the country's newest justice figure in the clearly polarizing debate?

Wilson of the League of Women Voters says she believes that Sotomayor's experience and her personality will help advance arguments made by those who favor keeping restrictions intact.

"She was on the New York City Campaign Finance Board, so she certainly has familiarity with these kinds of issues," Wilson says. "We also know that she's very good at asking pointed questions and getting to the heart of the matter."

Sotomayor was a founding member of the nonpartisan finance board in 1988, and she served until 1992, when she was named a District Court judge. The board administers the city's public matching campaign funds program, monitors candidate contribution limits and disclosures, publishes a voter guide and oversees debates.

In his assessment of Sotomayor's record on campaign finance, Hasen says he found that her decisions mirror those made by Justice David Souter, the high court jurist whom she is expected to replace.

So though she brings experience to the issue, her presence on the court won't wrest control of the issue from the court's majority conservative wing.

"It's a very high-profile case, and one about which she is likely to have a strong opinion," Hasen says. "But whether she can sway the conservatives? I doubt it."

The Gates Case: A Legal Look At Opening Your Trap

http://www.npr.org/templates/story/story.php?storyId=106988261&sc=emaf

by Emma Coleman Jordan, July 24, 2009

The arrest of professor Henry Louis Gates outside his house in Cambridge, Mass., is hotly disputed in part because it brought about a murky interaction of three competing legal principles.

1) The fact that the arrest took place on the porch of Gates' home invokes a well-established American legal tradition of recognizing that the home is the castle of its owner with certain legal protections that are not available in any other space.

2) We depend upon police officers for our safety, so our legal rules necessarily give police officers on duty protections above and beyond normal citizens. Even so, heated verbal exchanges with police officers do not constitute a crime.

3) Vaguely worded statutes (such as the one Gates was arrested under) that criminalize assertive, even aggressive speech as "disorderly conduct" after "exhibiting loud and tumultuous behavior" are vulnerable to constitutional attack for their vagueness.

To begin with the first pivotal element: Gates was in and around his home during the entire incident. Our legal system gives a homeowner a lot of protection to act in defense of the sanctity of the family home. For example, in both criminal and civil law we allow the occupants of a residence to stand their ground against an intruder and defend the home up to and including the use of deadly force. These rules are an acknowledgment that the home is the center of privacy and identity. In our home we locate our deepest aspirations and emotions. For African-Americans, who have experienced residential discrimination, the ownership of a home and the defense of that achievement are of singular importance. But one need not incorporate race as a factor to recognize that any person might become agitated when challenged about his right to be in his own home.

Officer Crowley ordered Gates to "step outside," and Gates followed Crowley onto the porch. Once he was on the porch Gates lost some of the protected legal status of a homeowner, because his behavior could be heard and observed in public.

How far can you go in conveying frustration and anger to a policeman? The answer to this question has a legal limit, and a common-sense limit — but they aren't the same.

According to the police report, Gates accused the investigating officer of being racist and told him he had "no idea who he was messing with." It may come as a surprise to many that the First Amendment protects heated, even abusive speech to a police officer. These constitutional developments come from the fractious 1960s when Vietnam War protests brought a wave of civil disobedience from young people who stretched the bounds of the First Amendment.

At one extreme, the Supreme Court extended First Amendment protection to the words of a man who physically resisted arrest during an anti-war protest at a draft induction center. When the officers sought to arrest the defendant he told them, "White son of a bitch, I'll kill you. You son of a bitch, I'll choke you to death. You son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces." Wilson v. State, 223 Ga. 531 (1967) overturned in Gooding 405 U.S. 518 (1972). While the Supreme Court upheld the conviction for resisting arrest, the part of Wilson's sentence for disorderly conduct was stricken because the vague statute reached both protected and not protected speech and as a result could not legally be upheld.

Gates' words, all agree, fell well short of threatening death. So today, Gates' comments seem mild by comparison and would clearly be protected.

In the end the Middlesex County district attorney dropped the charges. My guess is that the fact that this incident occurred in and around Gates' home dramatically decreased the likelihood of a conviction. Juries understand the special place of the home in our culture and legal system. And more important, challenging a policeman's racial good faith is not a crime. In fact, as the First Amendment cases from the '60s make clear, a lot worse things have been said to officers without losing the protection of that first among amendments.

Talking back to a man with a gun, however, is always a risky proposition. So, I end this essay with the wisdom of a mother who knows that sometimes it's wiser to cooperate, regardless of who is right and who is wrong.

But then again, I also remind my daughters that neither Martin Luther King Jr. nor Gandhi were particularly cooperative with legal authority.