Bradlee Manning and Julian Assange did not commit a crime and I present an argument in this diary to support my statement. I am a former criminal defense lawyer and law professor. These are my personal views based on my knowledge and experience. I will be delighted to answer any questions, as time permits.

Summary of Argument

Whistleblower sources and the journalists who publish the classified information that they receive from them form an inseparable and indivisible conjunction at the intersection of the Freedom of Speech and Freedom of the Press Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment and the selective prosecution rule. In other words, there is a sacrosanct relationship that must be protected between whistleblowers seeking to inform the public about government misconduct by revealing classified information to journalists and the journalists who acquire that classified information and publish it in service to the public’s right to know what its government is doing.

It’s reasonable to extend the protection of the Freedom of Speech and Freedom of the Press Clauses of the First Amendment to protect a journalist’s source from criminal prosecution as well as the journalist, given the importance of protecting the public’s right to know. At least since New York Times vs. United States, 403 U.S. 713 (1971), no statutes, including Section 793 of the Espionage Act of 1917, can be used to prosecute a journalist’s receipt, possession, and publication of classified information because such a statute would violate the Freedom of the Press Clause of the First Amendment. Since the purpose of that clause is to protect the public’s right to know, Congress should not be able to criminalize necessary antecedent behavior such as the transfer of classified information from whistleblower to journalist.

Equally important, however, the Department of Justice cannot selectively decide to discriminate against and prosecute whistleblowers who disclose the truth about government misconduct to journalists while at the same time ignoring all of the other copious leaking that goes on at the highest levels of government service to get journalists to disseminate propaganda designed to mislead and confuse the public with false and deceptive information. The government should not be permitted to discriminate by selectively prosecuting the whistleblower who discloses the truth to a journalist while ignoring leakers who pass classified information to journalists to disseminate as propaganda. That’s the side of the whistleblower-journalist relationship that is protected by the Equal Protection Clause of the Fourteenth Amendment and the selective prosecution rule.

History

Although Daniel Ellsberg was indicted and prosecuted for theft, conspiracy, and violating the Espionage Act of 1917, for releasing the Pentagon Papers to 18 newspapers, including the New York Times, the trial judge dismissed the case against him in mid-trial on May 11, 1973, for governmental misconduct after the government claimed it had “lost” records of unauthorized and unlawful FBI wiretapping of Ellsberg’s conversations with a colleague named Morton Halperin. According to Wikipedia, the trial judge also revealed that he met twice during the trial with John Ehrlichman, who offered him the directorship of the FBI. Ehrlichman was Assistant to the President for Domestic Affairs.

Prior to Ellsberg’s trial, the SCOTUS upheld the right of the New York Times to publish the Pentagon Papers that Ellsberg had given them. New York Times vs. United States, 403 U.S. 713 (1971). By a 6-3 majority, the Court rejected the Government’s argument that it had met its “heavy burden” of proving that the publication of the Pentagon Papers would likely cause a “grave and irreparable” danger to the United States and the American public such that it was entitled to an order prohibiting the New York Times from publishing the documents, notwithstanding that such an order would ordinarily be prohibited by the First Amendment as a prior restraint on the freedom of the press to publish information that the public had a right to know.

The Government’s argument was based on Section 793 of the Espionage Act of 1917, which provides:

“Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.”

I believe Manning is charged with violating this statute.

Concurring and Dissenting opinions in New York Times vs. United States

Wikipedia summarizes the concurring and dissenting opinions of the Justices of the Supreme Court as follows:

Concurring Opinions

Justice Hugo Black wrote an opinion that elaborated on his view of the absolute superiority of the First Amendment. He was against any interference with freedom of expression and largely found the content and source of the documents to be immaterial. Justice William O. Douglas largely concurred with Black, arguing that the need for a free press as a check on government prevents any governmental restraint on the press.

Justice William J. Brennan, Jr. wrote separately to explain that the publication of the documents did not qualify as one of the three exceptions to the freedom of expression established in Near v. Minnesota 283 U.S. 697 (1931).

Justice Potter Stewart and Justice Byron R. White agreed that it is the responsibility of the Executive to ensure national security through the protection of its information. However, in areas of national defense and international affairs, the President of United States possesses great constitutional independence that is virtually unchecked by the Legislative and Judicial branch. “In absence of governmental checks and balances”, per Justice Stewart, “the only effective restraint upon executive policy and power in [these two areas] may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government.”

Justice Thurgood Marshall argued that the term “national security” was too broad to legitimize prior restraint, and also argued that it is not the Court’s job to create laws where the Congress had not spoken.

Dissenting opinions

Chief Justice Warren E. Burger, dissenting, argued that “the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government”, that there should be a detailed study on the effects of these actions. He argued that in the haste of the proceedings, and given the size of the documents, the Court was unable to gather enough information to make a decision. He also argued that the Times should have discussed the possible societal repercussions with the Government prior to publication of the material. The Chief Justice did not argue that the Government had met the aforementioned standard, but rather that the decision should not have been made so hastily.

Justice John M. Harlan and Justice Harry A. Blackmun joined the Chief Justice in arguing the faults in the proceedings, and the lack of attention towards national security and the rights of the Executive.”

Manning and Assange

Since the Pentagon Papers were classified as “Top Secret,” a higher security classification than “Secret,” which is the security classification for all of the materials that Manning is alleged to have transferred to Wikileaks and because many people in the Obama Administration, including Secretary of State Hillary Clinton, have admitted that there isn’t anything new in the materials and no one has been harmed by their release, New York Times vs. United States strongly supports the right of Wikileaks to publish the materials.

Whistleblower sources, and the journalists who publish the classified information that they receive from them, form an inseparable and indivisible conjunction at the intersection of the Freedom of Speech and Freedom of the Press Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment and the selective prosecution rule. In other words, there is a sacrosanct relationship that must be protected between whistleblowers seeking to inform the public about government misconduct by revealing classified information to journalists and the journalists who acquire that classified information and publish it in service to the public’s right to know what its government is doing.

The Freedom of the Press Clause of the First Amendment exists to protect the public’s right to know what’s going on. While the Freedom of Speech Clause typically is applied to protect an individual’s right to express opinions, the SCOTUS also has interpreted it to protect the public’s right to know in the context of libel laws in New York Times vs. Sullivan, 376 U.S. 25 (1964). The court held that to protect the public’s right to know, public officials and public figures cannot recover damages from journalists who publish false stories about them unless they can prove that the journalists knew or recklessly failed to know that the statements were false when they published them. Put another way, public officials and public figures injured by false statements published by journalists have no remedy against the journalists, if they negligently published the false statements. To support the public’s right to know, the Court acknowledged a journalist’s need to be the first to break a story and supported it by raising the burden of proof for injured plaintiff public officials and public figures. In other words, in practice the press can publish a story without conducting a lengthy investigation to verify everything in the story out of fear of being sued.

I believe it’s reasonable to extend the protection of the Freedom of Speech and Freedom of the Press Clauses of the First Amendment to protect the journalist’s source from criminal prosecution as well as the journalist, given the importance of protecting the public’s right to know. At least since New York Times vs. United States, no statutes, including Section 793 of the Espionage Act of 1917, can be used to prosecute a journalist’s receipt, possession, and publication of classified information because such a statute would violate the Freedom of the Press Clause of the First Amendment. Since the purpose of that clause is to protect the public’s right to know, Congress should not be able to criminalize necessary antecedent behavior such as the transfer of classified information from whistleblower to journalist.

Equally important, however, the Department of Justice cannot selectively decide to discriminate against and prosecute whistleblowers who disclose the truth about government misconduct to journalists while at the same time ignoring all of the other copious leaking that goes on at the highest levels of government service to get journalists to disseminate propaganda designed to mislead and confuse the public with false and deceptive information. The government should not be permitted to discriminate by selectively prosecuting the whistleblower who discloses the truth to a journalist while ignoring leakers who pass classified information to journalists to disseminate as propaganda. That’s the side of the whistleblower-journalist relationship that is protected by the Equal Protection Clause of the Fourteenth Amendment and the selective prosecution rule.

Note that the selective prosecution rule is not limited to the inherently suspect categories of race, gender, and religion. The rule provides,

“police and prosecutors may not base the decision to arrest a person for, or charge a person with, a criminal offense based on “an unjustifiable standard such as race, religion, or other arbitrary classification” (United States v. Armstrong, quoting Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 [1962]).”

The critical language is “other arbitrary classification.” I contend that whistleblowers constitute an arbitrary classification within the much larger category of people who leak classified information and that selectively prosecuting whistleblowers like Ellsberg or Manning while ignoring all of the other people in government like, for example, the people in the White House who leaked top secret information to Woodward who included it in his most recent book about the Obama presidency, constitutes an “arbitrary classification” and form of discrimination (i.e., selective prosecution) that is an indefensible and impermissible violation of the Equal Protection Clause of the Fourteenth Amendment.

Therefore, I conclude that the United States Military and the Department of Justice should decide not to prosecute Manning, despite the fact that he may have technically violated Section 793 of the Espionage Act of 1917, because that statute is unconstitutional as applied to him and, of course, Assange should not be prosecuted because he hasn’t violated any law. If we assume for the sake of argument that he did, however, he still shouldn’t be prosecuted because his actions are clearly protected by the First Amendment.

Finally, just as the protection of the Freedom of Speech and Freedom of the Press Clauses of the First Amendment necessarily must protect both journalist and whistleblower to protect the public’s right to know, the Equal Protection Clause of the Fourteenth Amendment and the related prohibition against selective prosecution also must protect both whistleblower and journalist from arbitrary and unreasonable discrimination.

I’ll leave y’all with this statement by Daniel Ellsberg to consider.

“The public is lied to every day by the President, by his spokespeople, by his officers. If you can’t handle the thought that the President lies to the public for all kinds of reasons, you couldn’t stay in the government at that level, or you’re made aware of it, a week. … The fact is Presidents rarely say the whole truth—essentially, never say the whole truth—of what they expect and what they’re doing and what they believe and why they’re doing it and rarely refrain from lying, actually, about these matters.”
See: “Presidential Decisions and Public Dissent”, Conversations with History, July 29, 1998

EDIT: I corrected my misspelling of Hillary.