A US air force systems analyst who expressed support for WikiLeaksand accused leaker Bradley Manning triggered a formal military investigation last year to determine whether she herself had leaked any documents to the group.

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The investigation was ultimately closed when they could find no evidence of unauthorized leaking, but what makes these documents [Air Force investigative documents, obtained through a Freedom of Information Act request ] noteworthy is the possible crime cited by military officials as the one they were investigating: namely, “Communicating With the Enemy“, under Article 104 of the Uniform Code of Military Justice (UCMJ).

That is one of the most serious crimes a person can commit – it carries the penalty of death – and is committed when a person engages in “unauthorized communication, correspondence, or intercourse with the enemy”. The military investigation form also requires investigators to identify the “victim” of the crime they are investigating, and here, they designated “society” as the victim:

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The US government, as part of Obama’s unprecedented war on whistleblowers, has now fully embraced the pernicious theory that any leaks of classified information can constitute the crime of “aiding the enemy” or “communicating with the enemy” by virtue of the fact that, indirectly, “the enemy” will – like everyone else in the world – ultimately learn of what is disclosed.

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It seems clear that the US military now deems any leaks of classified information to constitute the capital offense of “aiding the enemy” or “communicating with the enemy” even if no information is passed directly to the “enemy” and there is no intent to aid or communicate with them. Merely informing the public about classified government activities now constitutes this capital crime because it “indirectly” informs the enemy.

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If someone can be charged with “aiding” or “communicating with the enemy” by virtue of leaking to WikiLeaks, then why wouldn’t that same crime be committed by someone leaking classified information to any outlet: the New York Times, the Guardian, ABC News or anyone else?

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International Law Professor Kevin Jon Heller made a similar point when the charges against Manning were first revealed:

“[I]f Manning has aided the enemy, so has any media organization that published the information he allegedly stole. Nothing in Article 104 requires proof that the defendant illegally acquired the information that aided the enemy. As a result, if the mere act of ensuring that harmful information is published on the internet qualifies either as indirectly ‘giving intelligence to the enemy’ (if the military can prove an enemy actually accessed the information) or as indirectly ‘communicating with the enemy’ (because any reasonable person knows that enemies can access information on the internet), there is no relevant factual difference between [Bradley] Manning and a media organization that published the relevant information.”

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It is always worth underscoring that the New York Times has published far more government secrets than WikiLeaks ever has, and more importantly, has published far more sensitive secrets than WikiLeaks has (unlike WikiLeaks, which has never published anything that was designated “Top Secret”, the New York Times has repeatedly done so: the Pentagon Papers, the Bush NSA wiretapping program, the SWIFT banking surveillance system, and the cyberwarfare program aimed at Iran were all “Top Secret” when the newspaper revealed them, as was the network of CIA secret prisons exposed by the Washington Post). There is simply no way to convert basic leaks to WikiLeaks into capital offenses – as the Obama administration is plainly doing – without sweeping up all leaks into that attack.

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The same [Obama] administration that has prosecuted whistleblowers under espionage charges that threatened to send them to prison for life without any evidence of harm to national security, and has brought double the number of such prosecutions as all prior administrations combined. Converting all leaks into capital offenses would be perfectly consistent with the unprecedented secrecy fixation on the part of the Most Transparent Administration Ever™.

The irony from these developments is glaring. The real “enemies” of American “society” are not those who seek to inform the American people about thebad acts engaged in by their government in secret. As Democrats once recognized prior to the age of Obama – in the age of Daniel Ellsberg – people who do that are more aptly referred to as “heroes”. The actual “enemies” are those who abuse secrecy powers to conceal government actions and to threaten with life imprisonment or even execution those who blow the whistle on high-level wrongdoing.