By FLOYD ABRAMS and YOCHAI BENKLER NYT
Published: March 13, 2013
LAST month Pfc. Bradley Manning pleaded guilty to several offenses related to leaking hundreds of thousands of documents to WikiLeaks in 2010, a plea that could land him in jail for 20 years. But Private Manning still faces trial on the most serious charges, including the potential capital offense of “aiding the enemy” — though the prosecution is not seeking the death penalty in this case, “only” a life sentence.

If successful, the prosecution will establish a chilling precedent: national security leaks may subject the leakers to a capital prosecution or at least life imprisonment. Anyone who holds freedom of the press dear should shudder at the threat that the prosecution’s theory presents to journalists, their sources and the public that relies on them.

You don’t have to think that WikiLeaks is the future of media, or Private Manning a paragon of heroic whistle-blowing, to understand the threat. Indeed, the two of us deeply disagree with each other about how to assess Private Manning’s conduct and WikiLeaks’s behavior.

Mr. Abrams, who represented The New York Times in the Pentagon Papers case, has argued that both Daniel Ellsberg, who provided the documents to the newspaper, and The Times acted with far more restraint and responsibility than Private Manning and WikiLeaks have, and that both have repeatedly behaved with a devil-may-care obliviousness to genuine national security interests.

Mr. Benkler, a law professor, has argued that Private Manning and Mr. Ellsberg (himself a Manning supporter) played a similar public role, that WikiLeaks behaved reasonably under the circumstances and that the revelations, including American forces’ complicity in abuses by Iraqi allies, understatement of civilian casualties and abuses by contractors deserve recognition, not criticism.

We write together because we believe our disagreements are characteristic of many who think about the WikiLeaks/Manning affair; public feelings range from respect to deep discomfort. When it decided the Pentagon Papers case, in 1971, the Supreme Court was well aware that, as Justice Potter Stewart put it, “It is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy.”

Despite this clear understanding of the risks involved in leaks and disclosure, the court’s decision was encapsulated in Justice Hugo L. Black’s simple statement: “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”

And what could be more destructive to an informed citizenry than the threat of the death penalty or life imprisonment without parole for whistle-blowers?

Under the prosecution’s theory, because Private Manning knew the materials would be published and that Al Qaeda could read them once published, he indirectly communicated with the enemy. But in this theory, whether publication is by WikiLeaks or The Times is entirely beside the point. Defendants are guilty of “aiding the enemy” for leaking to a publishing medium simply because that publication can be read by anyone with an Internet connection.

In a January hearing the judge, Col. Denise Lind, asked prosecutors directly whether they would have brought the same charges had Private Manning leaked the materials to The New York Times instead of WikiLeaks. The prosecutors’ answer was unambiguously yes.

That yes was not courtroom bluster, but a necessary concession regarding what their theory means. And nothing in that theory would limit its application to the release of hundreds of thousands of documents. It could apply as effectively to a single abuse-revealing document.

So yes, we continue to disagree about what to make of Private Manning and WikiLeaks. But we agree that WikiLeaks is part of what the Fourth Estate is becoming, that the leaks included important disclosures and that their publication is protected by the First Amendment no less than the publication of the Pentagon Papers was.

Private Manning’s guilty plea gives the prosecution an opportunity to rethink its strategy. The extreme charges remaining in this case create a severe threat to future whistle-blowers, even when their revelations are crystal-clear instances of whistle-blowing. We cannot allow our concerns about terrorism to turn us into a country where communicating with the press can be prosecuted as a capital offense.

Floyd Abrams is a lawyer and the author of the forthcoming book “Friend of the Court: On the Front Lines With the First Amendment.” Yochai Benkler is a law professor at Harvard and co-director of the Berkman Center for Internet and Society.