On Thursday, the Guardian's Glenn Greenwald wrote a column that ran under the headline "Why are Bob Woodward's WH sources — or Woodward himself — not on trial next to Bradley Manning?" It is a provocative and interesting piece, and I urge you to read it. However: Greenwald's primary argument strikes me as dangerously extreme.
Essentially, Greenwald argues that the government's theory — that Manning is guilty of a crime for revealing classified information that eventually found its way into the hands of al Qaeda leaders — applies with equal force to the country's most prolific investigative journalist, Bob Woodward, who regularly manages to pry classified information out of his sources and almost as regularly publishes it on the front page of The Washington Post or in one of his many best-selling books. Greenwald also asserts that Woodward's sources could be prosecuted. While I agree with Greenwald that, had they been uncovered, Woodward's sources might have been subject to similar sanctions, Greenwald's claim that the logic and perhaps even the law could be extended to Woodward himself is wrong as a legal matter. I also think comparing Woodward's acts to Manning's is improper. Put simply, Bob Woodward never had a duty, and never took an oath, to protect the government's secrets or follow the orders of anyone in the government.
Furthermore, as a legal matter, the First Amendment provides robust protection to individuals like Woodward who manage to pry classified information out of their sources. The only risk journalists run — and, as Greenwald correctly points out, the risk is growing — is the possibility that they may be subpoenaed and required to reveal their source. If they decline to name names, the court can hold the silent journalist in contempt and toss him or her in prison. In any case, Woodward's job is to try to acquire and reveal government secrets for the benefit of the public at large, even though this often involves compromising government priorities.
Bradley Manning had very different responsibilities as a member of the United States Army. When Private Manning joined the service, he swore an oath:
I Bradley Manning do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.
If the charges against Manning are accurate — and the evidence suggests they are — Private Manning willfully and knowingly circumvented the entire chain of command and the policy and orders laid down by the president of the United States when he handed over droves and droves of classified information to WikiLeaks' Julian Assange. Not only that, Manning flagrantly ignored the very regulations of the UCMJ that he swore to abide by.
Pointing to the oath may seem overly legalistic or even a bit naïve, but its importance cannot be overstated. Had Manning not sworn that oath, and had the military not perhaps far too blindly believed that he intended to abide by it, the government would never have allowed Private Manning within a country mile of any of the sensitive information Manning dealt with for hours each day. In breaching that trust, Manning breached the same public trust that Aldrich Ames and Robert Hansen did. Manning himself acknowledged as much in the instant message conversations that ultimately brought him down, during which he noted that if he were more malicious, he would simply have sold the information to the Russians or the Chinese.
There is a more important point relating to the broader thrust of Greenwald's argument. To accept Greenwald's thesis — that what Manning did and what Woodward does are fundamentally similar — one must accept one of two propositions. One must either believe that leaking classified information should not be a crime, or that Woodward ought to face criminal liability for publishing the information his sources provide him. I do not doubt Greewald's genuine commitment to the First Amendment and freedom of the press, thus I anticipate he would argue for some form of the former proposition — i.e. that criminal liability ought not attach to leaking classified material because permitting prosecution chills freedom of speech and discourages insiders to share important information with the outside world. And he would be right. Insiders who know that they may be prosecuted for passing secrets to reporters will be less likely to talk. Then again, that is the point.
I agree with Greewald that the U.S. government is far too secretive and that over-classification is a real issue within the bureaucracy. But I also reject the notion that what Manning did was anything short of treasonous. Even if you believe that Bradley Manning is a kind of hero for having the bravery to shed light where there is too much darkness — and I do not — his decision constituted nothing short of an attack on the foundation of American democracy. Among the material Private Manning is alleged to have handed over for publication to the world were 250,000 diplomatic cables and 500,000 Army reports. Suffice to say, Manning did not read all of these documents. Apparently, he did not really care what the contents included or who he would bring harm to. Consider the number of individuals involved in making those reports. Consider how high up the chain of command the person who made the decision to classify the information would have been. And then consider the fact that Bradley Manning, a private with absolutely no clue about what the broader implications of such a leak might mean for American security interests, policy, and most importantly, for the safety of American troops, unilaterally decided to override all of those judgments.
In the United States, we elect leaders, who then appoint other leaders, to make these complex decisions and to exercise their judgment on issues like what secrets should be kept and which should not be. The American people elected Barack Obama in 2008, and yet Private Manning was the one who decided to hand over almost a million classified documents. In essence, Bradley Manning made national defense policy for the United States government when he decided to leak all of those cables. No one elected Bradley Manning to exercise that power. The president did not delegate the decision making power to Private Manning. He simply took it. That is why it is a federal offense to leak classified materials: Because when a person leaks classified material, he ignores the legal and constitutional order that serve as the backbone of our system of American governance. So whether you think that material should have been declassified or not is not the point, because it was not his decision to make.
In making this argument, I do not mean to suggest that the government ought to prosecute every leak. Greenwald makes an important and valid point when he observes that the government's decisions to prosecute certain leaks seem utterly arbitrary and capricious. But that Abbe Lowell — the lawyer representing Stephen Jin-Woo Kim, a senior analyst at Lawrence Livermore National Laboratory against charges of wrongfully leaking classified information relating to North Korea's nuclear program to Fox News reporter James Rosen — may well have been correct when he asserted in a letter to DOJ that given the relatively modest and unremarkable information that prosecutors accuse his client of having leaked, U.S. policy is not advanced by criminally prosecuting his client represents an argument for the thoughtful use of prosecutorial discretion, not the elimination of criminal penalties for leaking classified information.
Make no mistake: Manning staged a small scale coup d'état. His behavior merely underscores the fact that without laws against such behavior, the chain of command would cease to matter, and with it, the American people's ability to control the direction of national policy would evaporate into thin air.
Jeb Golinkin is a 3L at the University of Texas School of Law. From 2008 to 2011, he served as an editor and reporter for FrumForum. Follow Jeb on Twitter: @JGolinkin.