This is a shockingly broad interpretation of a law that was written too sweepingly. It implicates all kinds of people who publish things that could hurt U.S. interests by tarnishing our image abroad. Journalists do this routinely; So do plenty of people on social media. It’s called free speech. Most of the critics have no access to the kinds of damaging goods that Manning had. But now when they do, they will have to fear that publishing it is the legal equivalent of deliberately handing it to terrorists.
As Benkler points out, it doesn’t matter if the publishing platform is WikiLeaks or The New York Times or Twitter. And this theory of aiding the enemy “is unprecedented in modern American history.” You have to go back to the Civil War, and a case in which a Union officer gave a newspaper in Virginia rosters of Union soldiers, to find a case like Manning’s.
If Manning spends the rest of his life in prison for an act of defiance in his early 20s, this will follow upon conditions of pretrial detention that, in a major understatement, the judge found to be “excessive.” Manley was held in solitary confinement for 23 hours a day during his nine months in a military brig. He had to sleep naked, without sheets or pillows. He had no way to exercise. Supposedly, this was because he was a suicide risk, but it looks much more like another form of revenge.
At this point, not even Manning is arguing that he should go free. His case isn’t about guilt or innocence. It’s about proportionality. The government and the court are in danger of crossing the line into a dark place. There is enough room to punish Bradley Manning without going there, and more than enough reason to stay away.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids.