There should have been little doubt this week that Army Pfc. Bradley Manning was going to spend more time in jail for initiating the largest leak of of secret government documents in U.S. history. No matter how pure the motive, there are consequences to releasing thousands of classified warzone logs, diplomatic cables and videos. Manning acknowledged as much when he pleaded guilty to several charges before his military trial began.
Still, the reaction to Tuesdays Manning verdicts illustrates again just how conflicted Americans are about the dangers of leaks and value of whistleblowers. Its why U.S. courts continue to be unsettled on the rights of the latter, and its why public opinion ranged this week from outrage that Manning could be found guilty on 20 charges to outrage that he wasnt also found guilty on the most severe charge of aiding the enemy.
Most Americans have long appreciated that its government needs to keep some secrets, especially in the interests of national security. But Americans also want to know what their government is doing, even when the government isnt keen on revealing that kind of information. Its a delicate balance, and most understand the danger of swinging too far to either side.
A notable exception, however, is the Obama administration, which has pursued leakers with an unprecedented vigor and troubling overreach. The administration already has twice as many leak prosecutions as all previous administrations combined, and investigators have used tactics that included an outrageous sweep of Associated Press reporters phone records. In another case, the Department of Justice suggested that a FOX News reporter was a co-conspirator in espionage for doing his job and soliciting information from a government source.
The Manning case had its own overreach, as prosecutors pursued the aiding the enemy charge, punishable by death. That was rightly rebuked by the military judge, Col. Denise Lind.
In response to backlash over the AP and FOX cases, Obama and Attorney General Eric Holder have since developed new rules about notifying the media before seizing phone records or emails. But the administration hasnt stopped trampling on the media in its pursuit of leakers. Federal prosecutors continue to press for New York Times reporter James Risen to testify about a confidential source in a CIA leak investigation. Last month, a U.S. Court of Appeals ruled that he must.
All of which serves not only to discourage whistleblowers from coming forth, but could make news organizations reluctant to publish information that might prompt retaliatory measures from the government.
The administrations continued aggressiveness underscores the need for Senate legislation, introduced by Republican Lindsey Graham of South Carolina and Democrat Charles Schumer of New York, that would create a national shield law for the news media. The measure would protect reporters from seizures of records or attempts to force testimony, but it also would offer courts exceptions involving imminent terrorist attacks or harm to others.
There are additional questions a shield law would need to sort through, such as who qualifies as a journalist in this digital age. But such a law could help restore the uneasy balance of the governments legitimate need for secrecy and the publics equally legitimate right to know.
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