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Yesterday the military judge overseeing the court martial of Pfc. Bradley Manning, who is accused of giving government documents to WikiLeaks, heard a defense motion to dismiss the charge of 鈥淎iding the Enemy.鈥� (She is expected to rule on the motion today.) The charge, which is akin to treason and is punishable by death, is separate from the main accusation against Manning 鈥� that he leaked sensitive documents to people unauthorized to receive them. The government鈥檚 inclusion of this charge raises enormous problems, and a conviction of Manning in these circumstances would be unconstitutional.

The key to the government鈥檚 case is this simple claim: that posting intelligence information to the internet aids Al Qaeda because Al Qaeda has access to the internet.

The implications of the government鈥檚 argument are breathtaking. To understand why, it helps to recall the experience of another soldier. In December of 2004, Defense Secretary Donald Rumsfeld held a town-hall style meeting for troops who were preparing to deploy to Iraq. Following his remarks, Rumsfeld was confronted by an Army specialist who complained about the inadequacy of the combat equipment provided by the military.

鈥淥ur vehicles are not armored,鈥� said Specialist Thomas Wilson, an airplane mechanic with the Tennessee Army National Guard. 鈥淲e鈥檙e digging pieces of rusted scrap metal and compromised ballistic glass that鈥檚 already been shot up . . . to put on our vehicles to take into combat. We do not have proper vehicles to carry with us north.鈥�

The soldier鈥檚 question 鈥� and Rumsfeld鈥檚 now infamous response that 鈥測ou go to war with the army you have, not the army you might want or wish to have鈥� 鈥� were front-page news around the world. And while war cheerleaders like Rush Limbaugh accused Specialist Wilson of 鈥渘ear insubordination鈥� for embarrassing the defense secretary in a public forum, there was no suggestion in serious quarters that he face punishment 鈥� much less prosecution 鈥� for his words.

Yet the government鈥檚 decision to prosecute Manning for 鈥淎iding the Enemy鈥� threatens to make public comments like Wilson鈥檚 grounds for criminal prosecution. The government does not contend that Manning gave any information to Al Qaeda, or even that he intended that Al Qaeda receive it. Rather, it claims that Manning 鈥渋ndirectly鈥� aided Al Qaeda by causing intelligence information to be posted on WikiLeaks鈥� website, knowing that Al Qaeda has access to the internet. Specifically, the government contends that Manning violated Article 104 of the Uniform Code of Military Justice, which provides that 鈥渁ny person who . . . gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.鈥�

Article 104 is not limited to sensitive or classified information 鈥� it prohibits any unauthorized communication or contact with an enemy. So, if the government is right that a soldier 鈥渋ndirectly鈥� aids the enemy when he posts information to which the enemy might have access, then the threat of criminal prosecution hangs over any service member who gives an interview to a reporter, writes a letter to the editor, or posts a blog to the internet.

For example, there are now more than a thousand enlisted military bloggers. According to Stars and Stripes, 鈥淎rmy officials . . . encourage troops to blog as long as it doesn鈥檛 break any operational security rules, and they see it as a good release for servicemembers.鈥�

Are these bloggers aiding the enemy? Prior to Bradley Manning鈥檚 case, charging anyone with that crime in the absence of any allegation or evidence that he had intended to aid the enemy would have been inconceivable.

The crux of the government鈥檚 case against Manning 鈥� that he leaked sensitive documents without authorization 鈥� in no way depends on branding him a traitor. Indeed, some courts have held that leaks may be punished even if the leaker鈥檚 motive was purely patriotic. In its zeal to throw the book at Manning, the government has so overreached that its 鈥渟uccess鈥� would turn thousands of loyal soldiers into criminals.

Which brings us back to Specialist Wilson 鈥� and, for that matter, Donald Rumsfeld. Both men spoke openly about the vulnerability of U.S. forces in Iraq. Both men surely knew that the enemy would watch their exchange on television or read about it on the internet. The notion that Wilson and Rumsfeld broke the law by communicating this information to the media and thereby 鈥渋ndirectly鈥� aiding the enemy is absurd 鈥� but no more so than the government鈥檚 contention that Bradley Manning did so.

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