Bradley Manning’s acquittal on the charge of “aiding the enemy” signals a welcome bit of rationality in an otherwise misfocused three-year executive branch endeavor that ultimately fails to address the real national security challenges revealed by this case. Conviction on that charge of an individual lacking specific intent to actually aid an enemy would have established dangerous precedent. Under the literal language of the Uniform Code of Military Justice (and historical practice pre-dating the Constitution) it can be applied by a court-martial to “any person,” not just those otherwise subject to military justice. Even more important, in my opinion, is the fact that Manning’s trial distracts us from the real national security issues raised by this incident.
I do not dispute the government’s right to prosecute Manning for leaking validly classified information. If the government is to be able to keep truly sensitive intelligence information from disclosure, it necessarily follows that it must be able to hold those who violate their obligation not to disclose such information accountable. Manning might have reasonably believed that a few of the materials he disclosed reflected efforts to cover up legal violations, in which case he should have pursued classification review within the system rather than unilaterally leaking them. But the same cannot be said of the roughly 700,000 State Department cables and war reports that he could not possibly have even had time to read, let alone have had the ability to judge the potential harm from their disclosure. So there is no basis to doubt that Manning can fairly be punished for revealing this data. But if we really care about our national security, we should ultimately be much more concerned about the systemic issues revealed by this case than the punishment of one misguided individual.
First, why was it possible for a junior soldier to access this treasure trove of information? Why did we field a classified computer system so wide open that one user could access so much information without a legitimate “need to know”? There are reportedly 4 million worldwide users of the Secret Internet Protocol Router Network where Manning got documents he admitted leaking. We know about Manning’s violations because he publicized the information he stole. How many other users might be currently abusing their access to steal and secretly pass on information they have no legitimate reason to know to foreign entities? This is a massive security vulnerability that we should be urgently addressing, and questioning why no one has been held accountable for its existence.
Second, how much faith should we have in our national security clearance process if the required background investigations could not ferret out any of the difficulties Manning was dealing with in his private life? Even a cursory Internet search today indicates Manning faced many troubling issues during the period leading up to his enlistment and ultimate decision to leak this information. Any credible investigative process should have detected enough warnings that Manning could at least have been steered into a less sensitive position. If the clearance process we collectively spend many millions of taxpayer dollars operating each year cannot keep Manning from holding a top-level clearance, we’re seriously deluding ourselves about any prospect it might find those actually intent on harming the United States.
And what about those who should have been the last line of defense, his immediate superiors who had clear warning signs in front of them that Manning was experiencing significant personal turmoil? They reportedly were giving serious consideration to having him processed for a psychological discharge yet did nothing to revoke his clearance or terminate his access to classified information until his arrest. Has there been any accountability for this failure?
Finally, the fact that many of the documents leaked did not, in fact, cause any harm to our security suggests that the government is engaged in routine overclassification. This practice is harmful from a number of perspectives, including undermining the public right to know essential to the functioning of a viable democracy, relaxing the guard of those charged with maintaining classified data who come to conclude that classified information is really not that sensitive, and compounding security challenges by multiplying the quantity of information that must be maintained in secure storage systems.
Given that the executive branch has shown no evident interest in redressing these important systemic issues in the three years since Manning was identified as the source of this data, congressional action seems called for. Congress should either investigate these systemic issues itself or create an independent panel to conduct a thorough review of information security practices across the U.S. government, and it should consider whether it might be appropriate to replace the significant reliance on executive orders as the source of most overarching classification guidance with statutory mandates.
David Glazier is a professor of law and Lloyd Tevis fellow at Loyola Law School, Los Angeles, where he teaches Foreign Relations Law and the Law of War. He is a retired U.S. Navy surface warfare officer.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.