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Chelsea Manning Loses Wikileaks First Amendment Appeal

"[A] soldier who willfully communicates information relating to the national defense 'is not entitled to invoke the First Amendment as a shield to immunize his act of thievery.'"

Bradley (now Chelsea) Manning, as you may recall, was convicted of (among other things) violating 18 U.S.C. § 793(e), which in relevant part 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;

Yesterday, the U.S. Army Court of Criminal Appeals upheld the conviction; here's an excerpt:

Appellant asserts 18 U.S.C. § 793(e) is unconstitutionally vague in that the term "relating to national defense" as applied to classified records is not sufficiently clear as to provide fair notice and invites arbitrary law enforcement. Appellant also asserts the statute is unconstitutionally overbroad in that it prohibits a substantial amount of protected speech. We disagree on both counts....

The phrase "information relating to the national defense" is not defined in 18 U.S.C. § 793(d). Nonetheless, courts have held that " 'national defense' had acquired a well-known meaning 'as a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.'"

... ["]The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.["]

... We reject appellant's claim that the statute is too vague to provide fair notice of the criminal nature of disclosing classified documents. The facts of this case leave no question as to what constituted national defense information. Appellant's training and experience indicate, without any doubt, she was on notice and understood the nature of the information she was disclosing and how its disclosure could negatively affect national defense.

... Appellant [also] asserts her actions in disclosing classified information related to national security are protected by the First Amendment and that she did not have reason to know the records she disclosed could be used "to the injury of the United States or to the advantage of any foreign nation." We disagree. Appellant had no First Amendment right to make the disclosures—doing so not only violated the nondisclosure agreements she signed, but also jeopardized national security.

United States courts have repeatedly held that the First Amendment does not protect unauthorized disclosures of classified information.... In the face of a similar First Amendment challenge, the United States Court of Appeals for the Fourth Circuit, in U.S. v. Morison (4th Cir. 1988), upheld the Espionage Act convictions of an employee of the Naval Intelligence Support Center who had a Top Secret security clearance and had also signed a non-disclosure agreement. The accused unsuccessfully argued his conviction under the Espionage Act could not stand because he leaked the classified information to the press, rather than to a foreign power.

The Fourth Circuit stated: ["][T]hough he cannot point to anything in the legislative record which intimates that Congress intended to exempt 'leaks to the press,' as the defendant describes it, he argues that, unless such an exemption is read into these sections they will run afoul of the First Amendment. Actually we do not perceive any First Amendment rights to be implicated here .... It is a prosecution under a statute, of which the defendant, who, as an employee in the intelligence service of the military establishment, had been expressly noticed of his obligations ... is being prosecuted for purloining from the intelligence files of the Navy national defense materials clearly marked as 'Intelligence Information' and 'Secret' and for transmitting that material to 'one not entitled to receive it' .... We do not think that the First Amendment offers asylum under those circumstances ... merely because the transmittal was to a representative of the press.["]

Id. at 1068 (citing Branzburg v. Hayes (1972) ("It would be frivolous to assert—and no one does in these cases—that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.")).

We squarely reject appellant's First Amendment challenge and firmly hold that a soldier who willfully communicates information relating to the national defense "is not entitled to invoke the First Amendment as a shield to immunize his act of thievery." ...

Sounds right to me. You can say what you will about the moral merits of Manning's leaks, but the government must have the power to able to punish servicemembers who get access to classified information because they promised to keep it secret, and then break that promise. (That's true for nonmilitary employees as well, I think, but it's especially clearly true as to members of the military.)

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  • Toranth||

    The definitions of classifications explicitly state the levels of danger they represent to national security. For example: "Top Secret shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe."

    The mere suggestion that there is classified information unrelated to national security is silly - it's in the definition.

  • bernard11||

    OK, but that's a circular argument, isn't it?

    Saying, "If it's classified it's related to national security," may be legally correct, but I don't think it's true otherwise. Do you doubt that some stuff gets classified to avoid embarrassing an official, or for other reasons?

  • Rossami||

    Do I think that some stuff gets over-classified? Of course.
    Does that give every reader of any classified document the right to second-guess the classification and to unilaterally decide that the document should not have been classified and therefore to release it to the world? Of course not. There is an established protocol for challenging the classification of a document and for getting over-classifications corrected. In the meantime, the mere fact of classification is more than sufficient to put the reader on notice of national security risks.

  • Martinned||

    So if (hypothetically) the president gets his tax returns or his birth certificate declared Top Secret, that's enough to prevent anyone from publishing them, at least until any challenge is sorted out? That seems like a bit of a stretch to me...

  • Toranth||

    Well, the President is a bit of a special case - by law, ONLY the President has the authority to determine what is and isn't classified, and at what level. He can, however, delegate, and so each agency has a small hierarchy of classification authorities, all of whom derive their authority from the President.

    Congress specified that classification is only to be used for national security purposes, but it didn't provide a lot of methods to challenge those decisions. Basically, if the Oversight committees don't take it up, I'm not sure who would have the authority to do so.

    Blame Congress for not writing the classification laws better.

  • JesseAz||

    Congress gave themselves a way to.overrule the classification of a president for a document, they just don't utilize the method.

  • Brett Bellmore||

    Not at all hypothetically, even if a President doesn't get his tax returns declared Top Secret, (He can do it himself, keep in mind, he doesn't need somebody to do it for him.) it's still an illegal privacy violation to leak his tax returns, just as it would be to leak anybody else's tax returns.

    But you seem to have missed a key distinction here: Between the leaker and the publisher. The guy in the IRS who hands Trump's return to a newspaper? Guilty as Hell.

    The newspaper that publishes it? Scott free.

    It's the leaker who has to challenge the classification, not the recipient.

  • Rat on a train||

    A recipient can be charged if he solicited the classified information.

  • Toranth||

    It's actually a violation of the classification laws to classify something that ISN'T related to national security. Doing so subjects you to potential criminal penalties, just like improperly handling classified information would.

  • bernard11||

    Sure. It's against the law. So is speeding.

  • Brett Bellmore||

    But speeding is more likely to get you in trouble.

  • Toranth||

    Yup. And as we've seen, that can be abused.
    But other than making it against the law, and punishing people when they get caught, what else can you do?

  • bernard11||

    Suppose someone is charged with releasing classified information.

    Is it a defense to claim it shouldn't have been classified to begin with?

    Among other things I seem to recall that some items that have been classified had previously appeared in newspapers.

  • Toranth||

    No, releasing classified information that should not have been classified is still a crime. Your NDA and handling regulations specifically spell out that information improperly classified, known to the public, or from public sources that was labelled classified is still classified until such time as formal declassification takes place.
    That includes things like Manning's leaks, or even Washington new articles. Just because it has been published in a newspaper does not mean it becomes unclassified.

    There are (at least) three independent chains that one can go to if one is concerned about classification being abused - your local security office, your agency IG, or the IC IG.

  • Rat on a train||

    Classified information does not become declassified because it is leaked. Cleared personnel can be prosecuted for discussing leaked information outside proper channels.

  • CryptidBrit||

    I doubt it, but perhaps there should be something equivalent to the rule (law?) which allows a soldier to not follow a direct order if they believe the order to be unlawful.

  • FlameCCT||

    There are various classification levels which are dependent on the damage that could occur. Manning was in a position and trained, which means he knew that he was violating the law when he released the material.

  • Voize of Reazon||

    793(e) relates to national defense information, which is a subset of national security information. The Department of Energy, for example, classifies lots of information that is not national defense related.

  • The Drill SGT||

    One can argue that everything that DOE classifies is at least indirectly national defense related. For example, a collection of info is labeled "Restricted Data"

    "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 142 [of the Act]."

    - Atomic Energy Act of 1954

    Further a subset of Restricted Data is "CNWDI" ;

    "Critical Nuclear Weapon Design Information"

  • NToJ||

    "One can argue that everything that DOE classifies is at least indirectly national defense related."

    What if the DOE classifies a personal email (sent from government server) from its department heads asking a friend to attend a direct sales meeting for stomach wraps? I can imagine the DOE classifying things that have nothing to do with the DOE or national defense. Can't you? Emails about pokemon?

  • Voize of Reazon||

    the government must have the power to able to punish servicemembers who get access to classified information because they promised to keep it secret, and then break that promise.


    WIthout exception? Does the government have a greater need for this than, say, a private company? There are whistleblower protection laws (e.g. the False Claims Act, and Sarbanes/Oxley) that come into play when an employee divulges corporate secrets they have pledged to keep, if those secrets are coverups of misconduct. The government does need to keep secrets, but there must be a test whether the alleged secret is merely embarrassing or inculpating.

  • Don Nico||

    Yes, without exception, Moreover in this case the sheer volume of material disclosed is evidence on its face that the defendant is not a whistle blower in any recognized sense.

  • Voize of Reazon||

    In this case maybe so, but not because of the volume of material. A lot of material could mean there is some legitimately classified stuff in there, or it could mean there is a lot of embarrassing stuff in there.

  • Bruce Hayden||

    Good example of that that was recently disclosed was the redaction that the recently fired, former Deputy Director of the FBI, Andrew McCabe, had spent $70,000 on a conference room table (at a time when, apparently, the building it is in is literally falling apart).

  • Brett Bellmore||

    Yes, one of the complaints in Congress is that it's unambiguously clear that the FBI is redacting documents Congress demands to spare themselves embarrassment, NOT to protect ongoing investigations. They've been blacking out things that have no other justification for being hidden.

  • The Drill SGT||

    I used to work for the FBI (as a contractor) at the JEH Building. One learns the FBI has some basic rules.

    1. Make the FBI look good
    2. Do nothing to embarrass the FBI
    3. The FBI hates being lied to
    4. The FBI has no sense of humor

    For example, security regs forbid bring private laptops into the building, but not IPads. In the actual security briefing, the speaker explained that this was because the Director (Comey) liked IPads.

  • Rat on a train||

    Security rules are normally modified when they impact management.

  • NToJ||

    Why can't "embarrassing stuff" also be "legitimately classified stuff"?

  • Brett Bellmore||

    In theory something could be both legitimately classified AND embarrassing. But the price of the Director's conference table is only the latter. Reports are that they've been redacting a lot of things that at best are merely embarrassing, and at worse are being classified to hide malfeasance.

  • Voize of Reazon||

    It can, of course. Please pretend I wrote "merely embarrassing stuff" instead.

  • NToJ||

    I'm sympathetic to this argument but wonder whether a case-by-case rule permitting individuals to make that evaluation is practical.

  • larryseltzer||

    "his" act of thievery

  • Brett Bellmore||

    Indeed. My only complaint about the decision.

  • Eidde||

  • Allutz||

    Why would you try to hurt my ears with a bottom 10 Aerosmith song?

  • Naaman Brown||

    Manning stole the documents as Pvt Bradley and did not begin transition to Chelsea until after sentencing.

    Before the transition, all contemporaneous records in the archive were of his theft and conviction.

  • JesseAz||

    It was a he when the case started. It is still a he despite makeup and drugs. DNA didn't change.

  • DavidTaylor||

    English language pronouns have been in use for hundreds of years, long before DNA was even dreamed of, so a DNA Test for pronoun usage is probably not the best way to establish what is correct. On the other hand, you're free to use whatever pronoun you wish for Manning, just as Manning is free to use whatever pronoun she, he, or it prefers.

  • M.L.||

    Who said anything about a DNA test? No test is needed, a man is a man.

  • Oli||

    You're free to address everyone with any pronoun you like, and so is everyone else. The only thing it does is reflect back to you, which might be a positive or negative thing, depending on the social circles you're a part of.

  • DavidTaylor||

    JesseAz wrote "DNA didn't change" -- but JesseAz had no idea, short of seeing Manning's DNA test result -- what precisely Manning's DNA might reveal. As a physician I am familiar with the multiple allosomal conditions that produce more than the usual two male and female options. Individuals with 46,XX testicular disorder, for example, will appear male in every regard, including genitalia, but have two XX chromosomes -- the female pattern. Several types of intersex configurations have also been identified, and since these were usually hidden for social reasons in the past, we have no precise idea how common they might be. JesseAz and you may believe that "a man is a man," but science has a different and more nuanced view.

  • Brett Bellmore||

    Granted, these exist, but are rare enough that the "if it looks like a man, it's a man." rule is awfully reliable.

    In any case, Manning didn't have a genuine inter-sex condition, he's just nuts.

  • aluchko||

    Awfully reliable except in the exceptions, of which this is one.

    And how do you know transgender isn't a genuine intersex condition?

    Do you consider yourself to have a legitimate male brain? Because I sure as hell do.

    And physical intersex conditions, where the body isn't clearly one thing or the other, obviously exist.

    So if the brain is gendered... and we know mismatches are possible... then why do you think a mismatch between the brain and body is so impossible?

  • DavidTaylor||

    Fine. I'll add medicine to the long list of topics on which you appear to be an authority...

  • M.L.||

    DavidTaylor,

    Intersex really has nothing to do with transgender, although the transgenderists love to pretend otherwise.

  • Sarcastr0||

    It has a lot to do with the blanket statement 'a man is a man' which seems to be the main argument from people who think courtesy doesn't matter next to the Truth they have a mainline to.

  • aluchko||

    M.L.

    So to repeat my question, do you think the brain is asexual? Because if not, a medical condition identical to transgender seems inevitable.

  • M.L.||

    aluchko,

    I am not sure I understand your question. I don't deny that transgender is a "condition."

    Sex is defined with reference to biological traits, primarily genitalia and the rest of the reproductive system, DNA, hormonal traits, and yes, also brain differences. "Scientists have discovered approximately 100 gender differences in the brain, and the importance of these differences cannot be overstated." Brain Differences Between Genders, Psychology Today. (Note, if we adopt the new left-leaning academic speak, this article should have said sex not gender).

    Intersex is a condition where there exists a certain configuration of deformities in the biological traits that define sex, such that the binary biological classification is ambiguous. That this occurs is rather unsurprising, since, as we know, any aspect of biological anatomy and physiology will sometimes manifest abnormalities and deformities in seemingly infinite variations.

    Transgender, by definition, is where a person has a clear biological classification, but identifies with the "gender" that is clearly opposite of their sex. The definition of gender being used here refers to social norms and not biology. So, rebelling against gender norms by adopting the social norms of the opposite gender. It is sexist in a way, if you think about it, to assume that someone adopting opposite gender norms should actually be treated as if they are the opposite biological sex (not to mention unscientific).

  • aluchko||

    M.L.

    Intersex is where the biological sex characteristics are ambiguous, exhibited through genital abnormalities, genes not matching the physical body, etc.

    Transgender is where the biological sex characteristics are ambiguous, ie the biological gender of the brain does not match the biological gender of the body.

  • M.L.||

    That's incorrect, I think. The definition of transgender is a person whose identity and sense of gender is that of the opposite biological sex. By definition, the sex or "birth sex" is known and fixed. This could not apply to intersex.

    Now, those are just terms. Your line of argument is heading straight for the mind-body problem and a case for hard determinism, as means of collapsing the distinctions made here. That's another discussion.

  • aluchko||

    I'm not sure I understand your objection.

    You seem to accept that the brain has a gender, do you not?

    The moment you accept that I don't understand how you can deny the existence of people where the brain has one gender and the body has another.

    I don't deny there are also people whom consider themselves transgender who are in fact mentally ill, and I don't think we have the science to distinguish them from medical transgender.

    Am I misunderstanding the point you're trying to make? Because you seem to be insisting that a person with a biologically female brain, but an otherwise biologically male body, must always be considered a man?

  • M.L.||

    I think I get what you are driving at with your focus on the brain. But here is the problem: most of the brain differences you are thinking about between men and women are just based on general averages. They don't necessarily hold in any individual case. You are suggesting a fixed idea of a "biologically female brain" --- that would be, a brain that has XX chromosomes inside of it. That's it. Unlike reproductive anatomy, it's not as if there is any science where we can look and say, oh, here is a penis brain, and there's a vagina brain, and even a two year old can see the difference.

    See e.g. this Stanford article: "All these measured differences are averages derived from pooling widely varying individual results."

    With that in mind, my point above was that if you think someone's "biological sex characteristics are ambiguous" - including brain etc - then that person isn't really a TRANSgender, because transgender means you have or had a certain sex, and switched (TRANSferred) to an identity that does not correspond with your sex.

    Say you have Team Red and Team Blue. The teammate who was on Team Red, but then switched and donned a blue jersey, is trans. The inter wasn't picked yet for either team, or just somehow wound up with a jersey that is yellow, or red and blue polkadots or something.

  • M.L.||

    I would also wonder what you are talking about with your attempt to distinguish between "mentally ill" and a "medical" condition. Surely you realize that mental illness is a medical condition? One that is generally rooted to varying degrees in, even though not wholly determined by, biological and even genetic factors?

  • aluchko||

    I'm not saying that we've identified the exact characteristics in the brain that give it a gender. I'm saying that there is something biological in the brain that determines gender identity.

    Look at sexuality, clearly there's a reason beyond nurture that the majority of people are heterosexual. And there's good evidence that homosexuality is at least partially based in biology.

    And I remind you of your original position, "Who said anything about a DNA test? No test is needed, a man is a man."

    You're not just saying that we don't know if the brain has a biological gender identity. You're asserting that there isn't one, either that or it's impossible that it mismatches when the rest of the biology is otherwise consistent.

  • TwelveInchPianist||

    " ... a soldier who willfully communicates information relating to the national defense "is not entitled to invoke the First Amendment as a shield to immunize his act of thievery."

    citing US v Morrison, 4th circuit (1998)

    Apparently Samuel Morrison is a man.

  • FlameCCT||

    Not to mention Manning was a he when he committed his act of thievery.

  • Brett Bellmore||

    Still is, for that matter. He's just a mutilated he now.

  • Martinned||

    Keep it classy, Brett!

  • M.L.||

    Remember, to be classy you must normalize chopping your dick off.

  • Brett Bellmore||

    That was classy, I didn't mention that he was insane, and mutilated at his own request.

  • Careless||

    Yes, and the parts of the decision quoted here consistently refer to Manning with female pronouns

  • aluchko||

    "I am bigot, hear me troll!"

  • Sarcastr0||

    Manning's act was pretty fraught.
    But that's not what a bunch on here seem to care about.

    It's funny what triggers some people.

  • Bruce Hayden||

    I think that the bottom line here is that if you are going to protect national defense secrets and the like, then they have to be mostly exempt from the 1st Amdt. We, as a country need to be able to protect our nuclear weapons designs, our military encryption, operational plans, etc, and the only way to do that is centralized control over the dissemination of the information (descending from the President). Leaving the decision about its dissemination up to the several million federal employees, military, and contractors, and their personal consciousnesses just won't work. And the way that the govt gets around the 1st Amdt here, for the most part, is that those who are allowed access to classified information, have essentially waived their 1st Amdt rights to disclose it, through signing NDAs as a precondition of having access to the information.

  • Bruce Hayden||

    Manning here tries to avoid the NDAs that they signed, through claims of ambiguity. The problem there is that millions and millions of people have gone through the process of gaining and maintaining access to classified information, and had no problem understanding the rules and guidelines that they had agreed to. If 99% understand the limits and constraints, and 1% don't, which is probably the case here, you don't have vagueness. You more likely have subterfuge. Vagueness implies some level of reasonableness, that some significant number of reasonable people would misunderstand the constraints and provisions of the contract. Here, the government goes to great lengths to negate and overcome this with repeated and intensive training.

  • Bruce Hayden||

    Let me add the political angle here. There is a very good probability that one of the big reasons that Hillary Clinton is not President, is that a large number, millions, if not tens of millions, of voters, who have had security clearances, know the training that their security clearances required, etc, and therefore found her excuses for mishandling the highest levels of classified information non credible. She had had 10 years of security clearances (6 in the Senate, and 4 as Sec of State), which required yearly training, esp given her ability to access the most sensitive, most highly classified, information that our govt possesses. If these millions who have had security clearances know what (c), etc, means, then so did she. And they knew that it didn't matter if the information wasn't marked classified YET, but very likely would be in the future (which was routinely the case for her, seeing the information in real time, before the classifiers could formally classify it). There are really only two alternatives: either she was lying, or was too stupid to understand the obligations that she had agreed to. The latter is unlikely given her two top tier college degrees, and that the training she had had and agreements she signed were aimed at probably someone with a high school diploma, and not a Yale law degree. These millions of current and past security clearance holders take, and took, their obligations very seriously. And many likely reasonably believed that she had not.

  • DavidTaylor||

    You may well be right. But when we look at the areas in which there are high concentrations of voters with security clearances -- D.C., Maryland, Virginia, California -- the majority of voters went for Clinton in 2016.

  • The Drill SGT||

    "And they knew that it didn't matter if the information wasn't marked classified YET, but very likely would be in the future (which was routinely the case for her, seeing the information in real time, before the classifiers could formally classify it)."

    Add to that, Clinton was one of those select: "Original Classification Authorities" , as such she was considered by law to be especially trained and empowered in order to understand the importance of safeguarding.

    I always thought that the phrase "wasn't marked classified" meant that her minions had not put paragraph markings into her emails for the explicit purpose of avoidance. The material was always classified, I can hardly imagine using the word NSA in conjunction with a "bit of information" without the entire sentence being at least SECRET NOFORN. Always classified, just not marked as such does not declassify it. Its the content that is sensitive, not the markings...

  • Brett Bellmore||

    They actually stripped classification markings OFF already marked documents, for purposes of avoidance. On her direct orders.

    "WASHINGTON — On a Friday morning in June 2011, after Secretary of State Hillary Clinton had waited more than 12 hours for a set of talking points to be sent to her, a top aide told her the delay was because staff members were having problems sending faxes that would be secure from probing eyes.

    "If they can't, turn into nonpaper w no identifying heading and send nonsecure," Mrs. Clinton responded in an email released early Friday by the State Department, one of about 3,000 newly released pages of Mrs. Clinton's emails during her time as secretary of state. Of those, 66 documents contained classified information.

    Anybody who has the slightest acquaintance with how classified information is handled knows she's a criminal. It's just a lot of these people are Democrats who don't care.

  • Voize of Reazon||

    I hesitate to wade in here, but if that information was originally classified by someone in State then Hillary, as their superior with original classification authority, was empowered to declassify it. On the other hand, if it was originally classified in some other department or function then she did not. I don't know enough about these "talking points" and their origins to draw a conclusion one way or the other.

  • bernard11||

    Interesting, but we don't know what the talking points actually were, or whether they needed to be classified.

    Still nice to see consistent application of the Bellmore Rules:

    1. Anything Clinton does is to be seen in the worst possible light, or even worse if at all possible.

    2. Anything Trump does is to be seen in the best possible light, or even better, if at all possible.

    What do you think of Trump's cell phone practices? Do you share the opinion that they are a clever ploy to mislead foreign intelligence agencies?

  • Brett Bellmore||

    I happen to actually appreciate Wikileaks' work, but the people who are supplying them with leaks are none the less committing crimes.

    The worst possible light in the case of Clinton's violation of the laws concerning handling of classified information would be that she was engaging in espionage on behalf of the foreign powers that were 'donating' to her foundation, that the 'careless' behavior was just a deniable way of handing them the secrets.

    I don't think that's the case.

    Rather, it fits into her long term policy of secrecy. She learned long ago that records you don't keep can't come back and bit you. She set up the private server to keep her emails out of the government archiving system, so that she could do exactly what she DID do: Delete them if they were subpoena'd.

    That this exposed classified information to the intelligence services of various hostile nations was just incidental. I'm quite sure that, if she'd seen some simple way to avoid that without her emails ending up accessible to domestic law enforcement, she'd have used it.

  • bernard11||

    And Trump?

  • Careless||

    Wow, it's like an involuntary reflex with you.

  • Voize of Reazon||

    I do find her avoidance of mandatory record keeping and, potentially, of FOIA requests more disturbing than the seemingly overblown classified data mishandling.

  • ThomasD||

    "I think that the bottom line here is that if you are going to protect national defense secrets and the like, then they have to be mostly exempt from the 1st Amdt. "

    Exempt is perhaps not the word. Any more than what a client communicates to his attorney or physician is said to be exempt.' The issue is that there are higher standards at play '

  • Naaman Brown||

    So much classified information is such out of context untestable bullshit that releasing any of it is a form of pollution, not enlightenment.

  • jdgalt1||

    Whoever having unauthorized possession of, access to, or control over any document, writing, [etc.]

    Doesn't this clause make the law inapplicable to Manning precisely because he was originally authorized to possess the information in question?

  • The Drill SGT||

    Removing it from the SCIF turned it from authorized possession to unauthorized at a minimum

  • ThomasD||

    Or even misuse while remaining on site.

  • The Drill SGT||

    agree of course

  • FlameCCT||

    "That's true for nonmilitary employees as well, I think, but it's especially clearly true as to members of the military."

    It is true for nonmilitary government employees and contractors too!

  • The Drill SGT||

    I think the greatest distinction is between folks that infrequently handle classified, such as infantry types and those folks, like Manning and Clinton, who are neck deep in the intel business, and who create, use, store, disseminate classified material. Everybody that touches the stuff gets the basic briefs and signs the form, but Manning was a (MOS) 35F, intelligence analyst. Manning received hundreds of hours of training that dealt with handling classified material.

  • JonFrum||

    That's five weeks full time. How much does it take to learn this stuff? Or do they just keep saying it over and over?

  • Toranth||

    The initial training, briefings, NDAs, and being read onto a program are lengthy, but not nearly that long. A couple hours total at the start of your career.

    But the regular training makes you review everything you learned then. Over and over again. And then again. Once more after that.

    A typical intel worker will take 4-5 training modules on handling classified information, sensitive information (PPI, medical, etc), or EO 12333 (intel about USPER), etc, every year. Each training is about an hour long, and each training requires both a quiz/test and a signed acknowledgement that they took the training.
    Plus after each major security incident, everyone has to re-take the training courses as a 'reminder'. So, after Manning's leaks, after Snowden's leaks, after the Clinton case, after Martin was caught, or for a more recent example - after Weed's case.

  • The Drill SGT||

    I was referring to the fact that as an "Intel Analyst", nearly every hour of classroom instruction he received at the Intel Training Center would have been on how to create, mark, store, transmit, use or destroy classified material.

    Then at each new assignment, he would get another couple of hours.

  • Mark E Deardorff||

    The issue is a woman who takes an oath then violates it willingly, enjoys her day in the sun, her accolades, and later, when her fame is on the wane, chooses to eschew martyrdom.

    The real hero is Ross Ulbricht, a martyr for libertarian entrepreneurship that threatened the state monopoly on it's control of the international drug trade; yet Ross sits alone entombed for life in a concrete monolith.

    Manning is the coward, Ulbricht, the sainted hero.

  • Voize of Reazon||

    Yes, Ulbricht received life without parole. A very harsh sentence for operating the Silk Road online marketplace, but i will reserve my sympathy for people who stop there and don't also contract for the murders of 5 people.

  • MightyMouse||

    Not much can be said for the moral merits, based on the facts of the case. It appears there wasn't any "terrible things" revealed that were not already public knowledge. Without a sound justification, what s(he) did was a betrayal of trust. But it is about more than trust, I think. The larger issue, in my mind, is "who watches the watchman", or likewise "who will police the police". IANAL, but from what I gather, a typical NDA is not enforceable if there is "gross negligence", and definitely not if the contract is illegal. Would an agreement to not to reveal any knowledge of an unlawful act be illegal, in the military?

    For example, if a servicemember -- maybe a lawyer -- has knowledge of a military coverup of illegal executions, would the servicemember not be free of the NDA?

  • MightyMouse||

    Found this article interesting about the "good soldier defense", as it relates to the question of who watches the watchman.

    John Kelly and the 'Good Soldier' Defense

  • kangana||

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