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.

20 Responses to “Criticism of aiding the enemy charge in United States v. Manning”

  1. SgtDad says:

    Will someone please tell me why Harvard is such a hotshot law school?  Aside from Derschowitz, there isn’t a grownup on the faculty.

  2. Peter Orlowicz says:

    Here’s Professor Benkler’s biography:
    I suspect the treatise is “obscure” to him because his research interests don’t appear to have any significant overlap with military justice. Instead, I’m guessing he’s an “expert” based on the workings of the media and information access.
    On another note, does anyone know exactly what Espionage Act charges were brought against Daniel Ellsberg for the Pentagon Papers release? Most of the online resources I found in a quick search just mention charges under the Act generally, without giving specifics. It seems like the effort to use the Espionage Act in that case (dismissed only because of gross government misconduct, rather than because the prosecution was meritless) undercuts the point here that the Manning charges are so unprecedented (setting aside the UCMJ/federal court difference between Ellsberg and Manning for the moment).

  3. Dew_Process says:

    For the trivia nuts, Colonel Winthrop died in 1899 – the 2nd edition of his tome was published in 1896.  The 1920 edition is a reprint edition of the 2nd edition which the Army had reprinted because the 2nd edition was in such short supply.
    For a fascinating account of Winthrop’s Army life, see then Major George S. Prugh, Jr.’s article, Colonel William Winthrop:  The Tradition of the Military Lawyer,42 A.B.A.J.  126 (1956).

  4. Gene Fidell says:

    Joshua E. Kastenberg, The Blackstone of Military Law: Colonel William Winthrop (2009), is the definitive work.

  5. Joseph Wilkinson says:

    I suspect everyone here already knows that Winthrop’s book is available at the Library of Congress in pdf.  Here.
    (Not sure the hyperlink worked – so here is the raw URL: )

  6. Joseph Wilkinson says:

    P.S. – It certainly gets respect in the Military Law Review up to this day – the first two articles in the last issue both cited it.

  7. Lieber says:

    Winthrop’s treatise is exactly the one being cited by the prosecution and in the courtroom.

  8. Mike "No Man" Navarre says:

    Because the authorities are unclear, any competent lawyer today would have to tell a prospective civilian whistleblower that she may well be prosecuted for the capital offense of aiding the enemy just for leaking to the press.

    I would think that not without some caveats based on Art. 2, UCMJ or the MCA juirdiction provisons in sections 948a-948d?

  9. Jennifer says:

    “Aiding the enemy” under Art. 104 is an offense that can be committed by “any person,” not just persons subject to the UCMJ per article 2. MCA jurisdiction is restricted, but aiding the enemy could theoretically be tried by a traditional military commission.

  10. Gene Fidell says:

    I encourage everyone to read Prof. Benkler’s New Republic essay with care. Its shortcomings are more profound than not knowing what powers TCs possess under the Code or where Col Winthrop stands in the pantheon of military justice.
    While I am at the store (again), SgtDad, it’s a free country and you are entitled to your opinion about my alma mater, but your assessment of Harvard Law School is not shared by the bench, the bar, and the legal academy–around the world.
    P.S. There is no “c” in “Dershowitz.”

  11. Mike "No Man" Navarre says:

    Jennifer–While admittedly I am not an expert on military commissions, is there a subset of military commissions for Art. 104 offenses that are not governed by the the MCA?  Which, based on my very rudimentary reading, says commissions can only be used in cases of “aliens.”

  12. stewie says:

    I think his main critique is worthy of discussion.  If he pled to basically wrongfully giving out classified docs, is it overkill to go forward on aiding the enemy?
    I’m not saying it is, but it’s a fair question.  I don’t know enough about what he did to say yes or no.  My admittedly limited knowledge would lead me to say it’s probably a bit much, but I could be way ignorant of information that would change my mind.

  13. Gene Fidell says:

    Jennifer/No Man, the MCA created a second species of military commission; the original (“traditional”) one, recognized by the UCMJ, remains available in theory.

  14. Jennifer says:

    Art. 104 itself says that violators can be punished as a “court martial or military commission may direct.” It then goes on to say that it doesn’t apply to chapter 47A military commissions (MCA), but presumably “traditional” military commissions under Art. 21 could still be used (assuming constitutionality).

  15. Mike "No Man" Navarre says:

    I should probably stay out of this discussion because I don’t know the MCA forwards, much less backwards.  But how does one resolve the statement in 10 USC 904 that “This section does not apply to a military commission established under chapter 47A of this title [10 USCS §§ 948a et seq.]” with the statements in 10 USC 948a – 948d which say the offenses in 10 USC 904 do apply at chapter 47A proceedings?  Again, I am sure I probably just stept in some provision elsewhere in the MCA since I am a commissions babe in the woods.  But this whole legislative shceme has always sounded like the Chewbacca Defense to me, so this is about par for the course.

  16. Jennifer says:

    The 2006 MCA added to both 10 U.S.C. §§ 904 and 906 (aiding the enemy and spying, the only two crimes “by statute triable by military commissions”), the caveat that they don’t aply to MCA military commissions. The 2009 MCA amendments enabled military commissions under chapter 47A to try violations of both, but did not amend either of these sections to reflect the change. So it’s a drafting error, which may make it impossible to try either offense before an MCA commission.

  17. Mike "No Man" Navarre says:

    Thanks Jennifer. Like I said, I should probably just stay out of this thread, so with that . . . .

  18. Phil Cave says:

  19. Rodger Drew says:

    For those who say Winthrop is dead, I cited to it in an Air Force court-martial this week, on the issue of when a fraudulent enlistment is effectuated (when the individual accepts pay or allowances — as opposed to when he/she takes the oath or makes the allegedly false statement).  The  two cases I came up with directly on point were U.S. v. Farano,60 M.J. 932 (NMCCA 2005) and U.S. v. King 27 CMR 732 (ABR 1959).  Both cited to Winthrop, as did I.


  20. Keith Hodges says:

    I am interested upon what topics Professor Benkler thinks he may testify to? Can he testify as an expert on the law and what is or is not a proper charge? I think not.