(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."
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."
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:
The military's elaborated explanation appeared to satisfy Silliman, the Duke professor.
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.
Rosen, the Texas Tech professor, said the military's explanation did "not change my original thoughts."
In an earlier email, he explained:
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.