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Author
Matthew Barakat
Date
August 21, 2013

Manning case unlikely to affect other leak probes

McLEAN, Va. (AP) — Prosecutors sought a lengthy prison term for Army Pfc. Bradley Manning to create a deterrent for other soldiers who might consider following in his footsteps.

But while the 35 years Col. Denise Lind gave to Manning for leaking thousands of documents to the WikiLeaks secrecy website is indeed a long sentence, many lawyers and analysts are skeptical that it will prevent similar actions in the future — or have any effect on two other current high-profile cases involving leaks.

The two most prominent leak investigations are those of WikiLeaks founder Julian Assange, who is under investigation by federal criminal prosecutors for publishing the documents Manning provided; and that of Edward Snowden, who has been charged with violating the Espionage Act for publicly disclosing highly classified programs used by the National Security Agency to collect millions of pieces of data. Both are under investigation by federal prosecutors in Alexandria, Va., and their cases would be handled in civilian court if they were to go to trial.

Although Manning was charged in his court-martial with violating the same provisions of the Espionage Act that are used to prosecute civilian leakers, “There’s no need for a civilian court to look to a court-martial for precedent,” said Gary Solis, a former Marine who served as a military prosecutor and judge and is now a law professor at Georgetown and the University of California, Davis.

Bruce Fein, a lawyer who has represented Snowden’s father, Lon Snowden, declined to comment specifically on how Manning’s case might affect Ed Snowden.

Generally, though, he agreed with Solis that there is little crossover between military and civilian cases, and therefore no reason to think that a long sentence in military court would carry any precedent in civilian court.

But Gabriel Schoenfeld, a senior fellow at the conservative Hudson Institute think tank, said he believes Manning’s 35-year sentence will ensure that Snowden “will do his best never to return to the United States and face a trial and stiff sentence.”

One of Assange’s lawyers, Michael Ratner, has suggested that Manning’s conviction could make it easier for federal prosecutors to get an indictment against the Wikileaks founder as a co-conspirator.

But other legal experts said the Australian’s status as a foreigner and a publisher make it unlikely he will be indicted.

Jesselyn Radack, a lawyer with the Government Accountability Project, which considers Manning a conscientious whistleblower, said that, if anything, Manning’s trial in general will help Assange because Manning himself testified that he was not enticed by the WikiLeaks founder into leaking the documents.

During the trial, the government produced evidence of online communications between Manning and a username the government said belonged to Assange. However, the government was unable to prove its allegation that Manning took direction from Assange or WikiLeaks.

Zach Terwilliger, a spokesman for U.S. Attorney for the Eastern District of Virginia Neil MacBride, declined to comment on the Assange case except to confirm that the investigation remains ongoing.

“I think the judges look at all of these cases individually,” said Ed MacMahon, who is representing a former CIA officer, Jeffrey Sterling, on charges that he violated the Espionage Act by leaking classified information about the CIA’s efforts to thwart Iran’s nuclear program to a New York Times reporter.

He noted that while Manning is receiving an “incredibly long jail session,” a federal judge in Alexandria recently imposed a term of only two-and-a-half years on former CIA officer John Kiriakou as part of a plea bargain in which he admitted leaking the identity of one of the agency’s longtime covert operatives to a reporter.

The scope of the disclosures — Kiriakou’s isolated leaks compared to Manning’s disclosure of more than 700,000 documents to the WikiLeaks website, one of the biggest leaks in American history — is one of the factors that require judges to evaluate cases individually.

Judge Lind offered no explanation Wednesday for choosing the 35-year sentence instead of the 60 prosecutors requested or the 25 or less the defense sought.

When asking for the 60 years in his closing arguments Monday, prosecutor Capt. Joe Morrow said a long prison sentence would dissuade other soldiers from following in Manning’s footsteps.

“There’s value in deterrence,” Morrow said.

Morrow didn’t get the 60 years he asked for, but Manning’s attorney, David Coombs, said 35 years are enough.

The “35 years would be a strong deterrent to doing this,” Coombs remarked after the sentencing.

“The deterrent here also started very early on with an aiding-the-enemy offense. … Certainly this was designed to be a message.”

Radack, though, said that as someone who represents whistleblowers, she has not seen a decrease in people willing to come forward. In fact, she has seen the opposite.

“They’re blowing the whistle, but they’re doing it in smarter, safer ways,” she said. “People of conscience are willing to take the risk.”

Military prisoners must serve at least one-third of their prison sentence before becoming eligible for parole. They can also earn up to 120 days a year of time off their sentence for good behavior and good job performance.

With good behavior and credit for the more than three years he has been held, Manning could be out in about 6 ½ years, Coombs said.

Coombs told a news conference that early next week he’ll file, through the Army, a request that the president pardon the soldier “or at the very least commute” the sentence to time already served.

“The time to end Brad’s suffering is now,” Coombs said.

Under military law, the verdict and sentence must also be reviewed — and may be reduced — by the commander of the Military District of Washington, currently Maj. Gen. Jeffery S. Buchanan. If Buchanan approves the sentence, the case will be automatically reviewed by the Army Court of Criminal Appeals.

Solis, the law professor, said it is much more common in military law to get a sentence reduced on appeal than it is in civilian courts, though he didn’t envision it happening for Manning.

Radack said she holds out hope that if current authorities don’t step in to pardon or reduce the sentence, future leaders will.

“If we can get away from this security-state hysteria, he would be viewed differently,” Radack said, comparing his case to Pentagon Papers leaker Daniel Ellsberg, who was viewed by many as a hero. “It may take a decade or a generation, but I do think he may be pardoned.”

———

Associated Press writer David Dishneau contributed to this report from Fort Meade, Md.

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