Bradley Manning’s Leaks Irrelevant to “Aiding Enemy” Charge, States Military Commission

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

Via the Internet Chronicle:

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, and key, a sole judge asserted that the effects of Private Manning’s leaks do not bear on his receiving an “aiding the enemy” charge.

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.”

Read more at the Internet Chronicle

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  • http://generaldepravity.blogspot.com/ dragline

    “Why he did something is irrelevant.” Why someone does something is irrelevant. If a dismissal of
    causality isn’t the quickest summary of everything wrong in the world, I don’t know what is.

    • Liam_McGonagle

      Tangent here, but:

      Cool avatar.  I find the Stanczyk legend very appealing.  You deep into it or Matejko?  Or just something cool you picked up along the way?

      • http://generaldepravity.blogspot.com/ dragline

         Actually, I’m big into humor and this particular painting is pretty expressive of the concept. I’ve been meaning to look more into it and will be reading up on the names you’ve provided. (Thank you.)

  • Redacted

    This is just a shitty situation. I don’t agree with what Manning did, but I also think he should get a light punishment. We have guys who have done much worse things, and they get off with a slap on the wrist and a talk show on Fox News.

    • MoralDrift

      I agree with what he did and I’m glad he did it. Unfortunately they wont go light on him. This case also reveals something else rather interesting, clear evidence that classified documents more often than not, should not be classified. 

    • Monkey See Monkey Do

      I guess you’d prefer if things were censored for our happiness.

      • Redacted

        Obviously.

        • Monkey See Monkey Do

          Until you realize that true happiness can only be obtained by constantly seeking out the truth.

    • Haystack

      *cough* Valerie Plame *cough*

    • rtb61

      The real questions is still to be answered was Bradley Manning compelled by law to do what he did as the result of the failure of others to adhere to the law.
      Was Bradley Mannings only access to justice, to fulfilling the requirements of the law to report the witnessing of criminal activity, by resorting to full public disclosure.
      Remember this, his superiors, those that wilfully and with full knowledge, the true experts by the courts statements, did seek to pervert the course of justice by not only hiding criminal activity but by also publicly lying about it.
      All the way from various military headquarters and ambassadorial stations up to and including the whole White House Administration.
      I fully support the actions of those who adhere to the principles of justice, who are driven by honour and integrity to ensure the spirit of the law. Bradley Manning is accused of being a true American hero and is put on trial for it. This to protect the cowards, deceivers, the true criminals that flout justice by hiding the crimes their country’s military commits, the country’s diplomatic service participates in.
      How many criminals that were exposed in that public release that were protected by those seeking to pervert the course of justice, ‘ZERO’.
      The most horrific thing, these exposure only scratches the surface, the lowest security restrictions, far worse crimes are still hidden.

      • Redacted

        There are many crimes in War.

        I am guilty of a few myself. This is why I am so conflicted on Manning.

        What is without question is that the current system deserves to die.

        Any system that brings dishonor to a Warrior as a so called cost of doing business is not anything I want to support.

      • Anon

         It’s so refreshing to see an analysis of Manning’s circumstances which recognises the actual legal principles at stake (cf the ‘he’s emotionally fragile and mentally unfit and should never have been put in the position he was in’ line run by the defence at his Art32 hearing).

        The jurisprudential debates post-Nuremberg produced a clear understanding with respect to the question of whether the positive law could ever have the force of legitimacy if separated from the moral basis of law.  Despite the arguments of the positivists that the fact of a law (irrespective of its content) having been duly passed means that it automatically carries the full force of law, and with it a legal and moral obligation to follow it (again, irrespective of its content), the ‘natural law’ proponents won the day – it is on this basis that the ‘Nuremberg defense’ of ‘only following orders’ was disallowed for most purposes.

        The argument was that individuals who perpetrated atrocities could not be held legally accountable for their actions when they were authorised by law to undertake them.  The upshot of the acceptance of the natural law insistence that law was inseparable from morality was to recognise in such individuals a countervailing legal and moral imperative to disobey the terms of the positive law insofar as it differed from ‘moral law’. 

        Perhaps description of this outcome as a ‘clear understanding’ is fraught, but in practice it means that a lawful order to be complicit in the cover-up of crimes must be disobeyed – and given Manning’s experience with reporting illegal conduct to superiors in the past, he had every right to conclude that the only way he could fulfill his legal and moral obligation to disclose the institutional criminality to which he had been made a party was to seek the full public release of the pertinent information by whatever means he could.

  • Liam_McGonagle

    The writing style of this piece seems a little dense for my Saturday-morning hangover, but I think I get the gist:  The court seem to be taking seriously the notion that, given the classification categories of the documents leaked, charges of ”aiding and abetting the enemy” may be unsustainable.

    That’d be great, but it still sounds like Manning could do hard time for charges related to breach of protocol, even if the effects of his leaks don’t rise to the level of “aiding and abetting the enemy”.

    This article seems very unclear on a number of points.  Quote:

    ” . . . a sole judge asserted that the effects of Private Manning’s leaks do not bear on his receiving an “aiding the enemy” charge.”

    “A sole judge?”  Not “THE sole judge?”  “ASSERTED?”  Not “Ruled”?  What does all this mean?  Is this judge’s remark represent a binding ruling or a dissenter’s observation?

    I appreciate being kept up to date about developments, but this piece left me with more questions than answers.  Which is probably a fair depiction of the state of play at this preliminary stage, but a little frustrating all the same.