First, it is also disgraceful for the New York Times to report without balance that “Prosecutors … presented no evidence that anyone was killed because of [Manning’s] leaks.” As the Times well knows, in cases involving classified information, the government frequently cannot reveal – let alone prosecute – the damage done. As a practical matter, such revelations end up disclosing more classified information and, critically, identifying other informants and countries who have covertly provided national-security assistance to the United States. That is why it is always a gimmee for apologists of the Mannings, Snowdens, and Clintons to minimize the harm they have done; it is generally impossible to provide concrete information to counter this claim absent exposing more intelligence and endangering sources for obtaining it.
Objectively, the statements above are all factual. But is that the end of the story?
If we allow for the possibility that a government official with power or influence over prosecutions might decide to “get” someone, Andrew McCarthy’s willingness to excuse the prosecution’s failure to provide specific evidence of harm done by the accused acquires a very dark cast.
This is of great importance in federal prosecutions, because it is there that classification rules and security considerations apply. No doubt there are many varieties of allegations in which the attempt to cite national security as a reason for withholding evidence would provoke laughter. But there are surely enough offenses in which national-security considerations must be granted respect...and some of those allow for a wide range of sentences.
Allow me to present an extreme case: an accusation of treason, which can carry the death penalty. The Constitution says:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. [Article III< Section 3, first paragraph.]
A government with the resources of ours has many ways to induce “two Witnesses” to testify that they observed “the same overt Act,” even if it never occurred. The defense might well demand to see confirming evidence in such a case; indeed, a competent defense lawyer would not fail to do so. But at that point up steps the Director of National Intelligence to say that no such evidence can be presented because of national security.
What then? We have the testimony of “two Witnesses to the same overt Act,” and under the Constitution the jury is permitted to find that sufficient for a conviction. That conviction might be just...but it might not be, and there’s no way for anyone who did not witness the Act to know.
This is only one of the many painful problems with a regime that’s empowered to keep secrets from the public at its own discretion. That some “matters of State” must be kept secret for the “common defense and general welfare of the United States” remains an arguable point. It becomes more arguable when one contemplates judicial proceedings such as that imagined here.