Alex Constantine - June 25, 2013
" ... There has not been an 'aiding the enemy' charge for a leak to the press since the Civil War-era case of Pvt. Henry Vanderwater, who was punished with three months of hard labor for giving an Alexandria, Va., newspaper a command roster of Union soldiers. ... "
(CN) - The "classified enemy" designation attached to one of the three entities that WikiLeaker Bradley Manning is accused of aiding has perplexed and divided professors of military law.
Manning, a 25-year-old former intelligence specialist, has been incarcerated for more than three years in connection with the largest intelligence disclosure in U.S. history. He recently admitted that he leaked hundreds of thousands of diplomatic cables, incident reports from the Iraq and
Afghanistan wars, Guantanamo detainee profiles, and, most famously, footage of a Baghdad airstrike.
In a statement he prepared in prison, Manning said that he exposed what he believed to be low-sensitivity files to promote a global dialogue about how the United States conducts war and diplomacy. Prosecutors accuse him of "aiding the enemy," and three in particular: al-Qaida, al-Qaida in the Arabian Peninsula and a "classified enemy" referred to by a Bates number, which is a form of legal document identification.
Three professors of military law - Yale Law School's Eugene Fidell, Duke University School of Law's Scott Silliman and Texas Tech University School of Law's Richard Rosen - told Courthouse News they had never heard of a case involving a "classified enemy." After being informed that the phrase stumped the professors, a military spokeswoman insisted that the confusion stemmed from a misunderstanding, because "who the enemy 'is' is not classified."
"What 'is' classified is that our government has confirmed that this enemy is in receipt of certain compromised classified information, and that the means and methods of collection that the government has employed to make that determination are classified," the spokeswoman said in an email.
Illustrating the concept with an historical example, she cited the controversial thesis of British Royal Air Force Group Capt. F.W. Winterbotham's book 'The Ultra Secret."
"It has been alleged that Churchill refused to warn Coventry of an impending Nazi blitz attack because he did not want to tip the Germans about the UK's signal intelligence (Ultra), which could decipher German codes using Enigma," the spokeswoman said.
She added that both parties agreed on the shorthand "classified enemy" to describe the identity of the enemy allegedly aided and the "full set of information covered in those classified pages of discovery."
Adding more ingredients to the stew, the military judge presiding over Manning's case, Col. Denise Lind, wrote in her Nov. 26 "draft instructions" that she will decide who qualifies as an "enemy." According to that document, an enemy can include both "organized opposing forces in a time of war," and any "hostile body," such as a "rebellious mob or band of renegades."
Referring to this language, the military's spokeswoman added: "Thus the court will consider whether the 'enemy' element is met based on the evidence provided, including, for example, if a State Department designation is presented, but that might just be persuasive, not conclusive."
The military's elaborated explanation appeared to satisfy Silliman, the Duke professor.
"It does not raise constitutional questions, and dealing with classified issues such as this is commonplace in military trials and in trials in our federal district courts," Silliman said. "All this is to say that I think it's a non-issue."
Constitutional questions aside, Silliman acknowledged that the facts of the case that led to the "classified enemy" moniker were sui generis.
"I have not heard of any similar cases," he said.
Eugene Fidell, a senior research scholar at Yale Law School, was far more ambivalent about the military's rationale.
"Well, I guess [the spokeswoman] has somewhat clarified matters, but it still seems mighty strange," Fidell said in an email. "I cannot think of a prior case in which this precise issue has come up."
Rosen, the Texas Tech professor, said the military's explanation did "not change my original thoughts."
"With respect to whether the case is unprecedented, I have never seen one like it; however, that does not mean that there have not been others like it," Rosen said.
In an earlier email, he explained: "Nearly all modern aiding the enemy cases deal with misconduct by American prisoners of war - the most famous being Robert Garwood, who assisted the North Vietnamese in their dealings with other POWs, including serving as an informer. He disappeared in Vietnam for 14 years [and], when he ultimately returned to the United States, was court-martialed for his offenses."
The court-martial ended in Garwood's dishonorable discharge from the Marines, reduction to the rank of private and forfeiture of all back pay.
There has not been an "aiding the enemy" charge for a leak to the press since the Civil War-era case of Pvt. Henry Vanderwater, who was punished with three months of hard labor for giving an Alexandria, Va., newspaper a command roster of Union soldiers, according to an Associated Press article.
Manning, by contrast, faces life imprisonment without parole if convicted on his aiding the enemy charge. He has admitted to 10 lesser counts of 22 against him, in a revised form that would reduce his sentencing exposure to two decades. Prosecutors have accepted only one of his guilty pleas, and will try to convict him on all counts.