The Manning Wikileaks Defense - Is It Free Speech?

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Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on The Brian Lehrer Show  Floyd Abrams, a visiting professor of First Amendment Law at the Columbia Graduate School of Journalism, gave his legal perspective on Private Bradley E. Manning, an Army intelligence analyst who is suspected of disclosing hundreds of thousands of classified cables, intelligence reports and a video of a gruesome helicopter attack to WikiLeaks.

There are those who consider Private Manning a hero, and there are those who consider him a villain.

We know which side the Army is taking—they've put Manning in maximum security solitary confinement in Quantico, Virginia. But Manning has his defenders, and a group of them have set up a Bradley Manning Defense Fund that's lobbying for the government to ease the conditions under which he's being held. Allegedly Manning “is made to sleep in his boxer shorts with no pillow and no sheets and a heavy blanket so rough that he must turn carefully beneath it to avoid rug burn." Floyd Abrams doesn't understand that treatment.

Is there reason for some suspicion that people are so angry at what they think he's done that he's getting much tougher treatment then he deserves? Yes I think there is, it's certainly something that has to be looked into, because there are a great number of credible sources who are expressing doubt about the legitimacy of the conditions in which he is being held.

The Manning champions view him as a whistle blower who shed light on insidious behavior by the U.S. Army. They claim he exposed a war crime—a helicopter attack on civilians which killed 11 people including two Reuters employees—and other information the world has a right to see. His critics see him as someone who has endangered national security and put years of diplomatic relations at risk.

But was it within his first amendment free speech rights to release these documents? No. "He doesn't have much in the way of legally protected right to disseminate classified information that he obtained in his soldierly role," Abrams concedes.

I consider it reckless as well as illegal to just hand out tens of thousands of internal government documents whether they're cables within the State Department or military reports.

Assuming Manning did actually hand over the documents to WikiLeaks, some have compared his act to that of Daniel Ellsberg, who leaked the Pentagon Papers in 1971. But Abrams says this is fundamentally different, because Ellsberg purposely withheld from the New York Times the diplomatic documents he obtained because he feared they might interfere with the negotiations to end the war in Vietnam. Abrams doesn't sign on to the notion that Manning's act is admirable, he believes the leakage of diplomatic cables has jeopardized the ability of officials to get business done.

It is a form of non-violent resistance but it still might have violent consequences. That's why the question quickly becomes not one of law. If he did this, any government, any government—however dedicated to free speech—would punish him, and probably punish him severely.

But Abrams does concede that there's vast overclassification of documents in Washington. "The fact that something is classified does not mean that it is in and of itself harmful to national security," he said, pointing out that even the White House menu was classified under President Nixon. If Chairman Mao had known that he liked pot roast...