U.S. v. Manning

There’s an interesting piece on Salon about how the Manning “story” got uncovered and . . . The piece is actually about the ethics of some of the reporting about the case, in particular by Wired, and some effort to deconstruct the case against Manning.

Here is an interesting tidbit that apparently has not been publically released until now.

Just consider some of what Wired concealed. First we have this, from very early on in the first Manning-Lamo conversation (emphasis added): MANNING: uhm, trying to keep a low profile for now though, just a warning LAMO: I’m a journalist and a minister. You can pick either, and treat this as a confession or an interview (never to be published) & enjoy a modicum of legal protection. In a subsequent conversation, Lamo again promised him: “i told you,none of this is for print.” So Lamo lied to and manipulated Manning by promising him the legal protections of a journalist-source and priest-penitent relationship, and independently assured him that their discussions were “never to be published” and were not “for print.”

Assume that Lamo did make those “promises,” truthful or not. Now, is is fair to ask the question:

Does Manning have a reasonable expectation that he is engaging in a privileged discussion under Mil. R. Evid. 503? If he does, does that mean that he may be able to have some of the evidence excluded from any trial, based on that privilege.

The reporter privilege may be, or may not be, more murky.

The military rules of evidence do not have a reporter privilege. That “privilege” is an ongoing issue with the rulemakers and Congress.

1. We know that NMCCA rejected a reporters privilege in Wuterich. United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. Aug. 31, 2009) (en banc).

2. We know that the NTJAG certified three issues to CAAF.

3. And in United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2010), CAAF said:

Petitioner-CBS relied on principles related to the newsgathering process and did not claim that Appellant’s statements were made under conditions of confidentiality. . . . In the past, this Court has considered but has not resolved the question of whether a newsgathering privilege applies in the military justice system. See United States v. Rodriguez, 50 M.J. 38, 38 (C.A.A.F. 1998) (summary disposition). . . . we do not decide here whether such a privilege should be recognized in the military justice system.

The Reporters Committee for Press Freedom has an educational piece on the reporter privilege, suitable for some general background. Johnathon Peters, has a piece, Wshush Would Not Qualify to Claim Federal Reporter’s Privilege in Any Form, 63 FED. COMMS. J. 667 (?). Likely Wired falls in the same situation? Could be an interesting issue of online journalism’s boundaries compared to bloggers, and FB and such.

In Manning it appears there would be a legal issue of whether there is a reporter’s privilege in a court-martial, and if so, do the facts support a claim of privilege in this case.

Federal Evidence Review, one of my favorite blogs on evidence has this information about the status of a federal privilege.