MILITARY COMMISSION: Effects of Manning Leaks Irrelevant to Aiding Enemy Charge

WASHINGTON – Thursday morning at Fort Meade, Maryland, government attorneys continued day three of pretrial hearings that began April 24 in the case of Army Private Bradley Manning, awaiting court-martial after having been accused of leaking hundreds of thousands of secret-clearance documents. The government submitted reconsideration motions with two classified attachments.

Members of the public who had seen earlier parts of the trial described a video presentation by the prosecution and recounted the contents of the video, which one woman described as the speech of a man in “traditional Middle Eastern” garments, praising “Allah” for WikiLeaks’ publication of thousands of files from the State and Defense Departments.  This video fit into the prosecution’s insistence on an — relative to the former Army intelligence specialist’s other charges — egregious “aiding the enemy” charge, which a ruling yesterday evening revealed would stick.

Beginning at 10:07 a.m., in a courtroom with about 50 people, Judge Denise Lind read off a list of charges that detailed Private Manning’s alleged “injury to the United States” and having promulgated the “advantage of any foreign nation.” Although the prosecution had clearly assembled through cyberforensics a timeline of specific violations of law, the judge said that a clearer picture of when the private extracted or redistributed information would affect his number of charges. This suggests that Manning either did not offer, or the government does not believe him to have, a full account. It is clear that Private Manning’s total series of alleged violations span several months.

The only member of the prosecution to speak, Major Ashden Fein, pushed Judge Lind to preclude “actual harm or damage” from the leaks from an assessment of Private Manning’s charges. The defense’s suggestions that Private Manning, Mr. Fein argued, had performed self-redactions to mitigate damage were not material; the defendant, he said, lacked the direct knowledge as well as the original classification authority (OCA) to properly make such an assessment.  The defense’s sole speaking counsel, David Coombs, would later contend that this type of enforcement advanced by the prosecution provided unequal treatment to OCAs, making them less culpable under the bonds of secrecy to which they swear oaths.

Defense and prosecution spared in argument over the difference between “unauthorized disclosure” and “espionage” charges. Defense Attorney David Coombs tried to depict the government’s case against Manning, who formerly possessed a top secret clearance, as in one instance portraying him a substantial expert and in “another breath call him a junior analyst.”

Mr. Coombs asserted that, in assessing the serious of given leaks, classification level is “probative,” not “determinative” of harm, if any, done.  Much of the secret-classified content constituting Manning’s leak had no jeopardizing effect on national security, and the problem of overclassification, highlighted by Manning’s violation of military code, has in the past year initiated substantial media attention and legislative reform.

Major Fein argued “why he did something is irrelevant,” characterizing the defense team’s attempts to shift focus to the consequences of the leaks as the formulation of a “time machine.”

Mr. Coombs would stand and begin to discuss a WikiLeaks-published video of several killings in Iraq carried out from a U.S. Apache helicopter, a video whose April 2010 press conference release The Internet Chronicle would document.  He began – with a “co-“ – to refer to the film by its WikiLeaks title, “Collateral Murder” but stopped himself and continued with the point that the facts in the film had already faced disclosure, by, among other methods, the pen of a U.S.-embedded journalist. The court, argued Mr. Coombs, should wait to hear a damage assessment before weighing in on the nature of Private Manning’s charges.  The attorney would insinuate that the prosecution was reticent to release their own internal damage assessments, which Mr. Coombs alleged, he could easily have impeached, or demonstrate false.  Manning’s defense in the face of what are likely to be multiple decades of confinement is:  How can he be charged with aiding the enemy if the government lacks the responsibility to prove that he has?

The prosecution would successfully set the tone for charges against the private through their emphasis on the private’s aid as “mens rea,” or in his guilty mind, not in his actions’ tangible benefit to the enemy.  Themselves also citing their client’s state of mind, the defense through Mr. Coombs allege that any exercise of his own discretion in his leaking had constituted an effort toward harm reduction.  Mr. Coombs would allude to former Defense Secretary Robert Gates’ claim that the leaked State Department cables had not constituted a threat to sources and methods (though the counsel incorrectly attributed the statement to the state secretary).  Then-Secretary Gates’ statements about actual harm from the alleged WikiLeaks-Manning publications have faced repeated public skepticism from the chair of the Senate Judiciary Committee, Vermont’s Patrick Leahy.

In 2010 the Interagency Security Classification Appeals Panel of the National Archives and Records Administration, overseen by the national security adviser, issued a report at a conclusion’s review, which spoke to how the majority of the body of classified knowledge was kept under a tighter lid that need be. Since 1996, the panel revealed, it had voted to declassify at least part of 65 percent of documents it regulated.

iscap MILITARY COMMISSION: Effects of Manning Leaks Irrelevant to Aiding Enemy Charge

Since 1996, said the Interagency Security Classification Appeals Panel, it had voted to declassify at least part of 65 percent of documents it regulated

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