Here’s a link to a New Republic piece by Harvard Law Professor Yochai Benkler criticizing the decision to charge PFC Bradley Manning with aiding the enemy. Professor Benkler explains that he’s an expert witness in the case — presumably for the defense — and will testify about why PFC Manning’s now-admitted act of providing a cache of electronic documents to Wikileaks should be treated the same as a whistleblower providing documents to the New York Times. He argues that prosecuting PFC Manning for aiding the enemy presents “a clear and present danger to journalism in the national security arena.”
Professor Benkler’s argument is marred by apparent confusion over who in the military justice system decides whether to seek a death penalty. (See, e.g., his reference to “whether prosecutors in their discretion decide to seek the death penalty in any particular case.” In the military justice system, prosecutors don’t make that choice; convening authorities do.) Also, does anyone have a link to the government’s opposition to the defense motion challenging the aiding the enemy charge? Professor Benkler refers to the prosecution’s reliance on an “old and obscure” “1920 military law treatise.” I’d love to know if that “obscure” treatise is, as I suspect, Winthrop’s Military Laws and Precedents (2d ed. 1920) — you know, the treatise cited more than 45 times in various opinions in Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Yes, that “obscure” tome that Justice Stevens referred to as “[t]he classic treatise penned by Colonel William Winthrop, whom we have called ‘the “Blackstone of Military Law,”‘ Reid v. Covert, 354 U.S. 1, 19, n. 38, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion).” Id. at 597. But perhaps Professor Benkler was referring to another 1920 treatise on military law.