Disclosure Tactic in WikiLeaks Case Seen as Defense Strategy
FT. MEADE, Md. (CN) - Professors of military law offered various theories as to why lawyers for WikiLeaks source Bradley Manning chose not to challenge testimony that could undermine the young soldier's central defenses.
Perhaps appropriately for a case involving the biggest intelligence leak in U.S. history, Manning's attorneys embarked upon a strategy of sweeping disclosures in the lead-up to trial.
In February, the 25-year-old soldier freely admitted to leaking more than 700,000 files including diplomatic cables, incident reports from wars in Iraq and Afghanistan, profiles of Guantanamo detainees, and a video of an airstrike in Baghdad that WikiLeaks titled "Collateral Murder."
With small exceptions, he has agreed to the underlying facts of the case, but disputed the government's claim that the disclosures make him guilty of "aiding the enemy" and violating the Espionage Act, Computer Fraud and Abuse Act, and other statutes.
Manning testified, in a statement offered with his proposed plea, that he only leaked files he believed were safe for release and could "spark a domestic debate on the role of the military and our foreign policy."
In particular, he asserted that the leaked "significant action" reports, or SigActs, from Iraq and Afghanistan contained mostly data released within 72 hours, and did not name sources. He also said he believed that the military wrongly withheld footage of a Baghdad airstrike video from a request. The attack killed 12 civilians, including two Reuters employees.
The military delayed and rebuffed Reuters' repeated requests to view the footage under the Freedom of Information Act.
It surprised some observers then that Manning's lawyers chose not to confront government witnesses asserting that the video and the SigActs revealed sensitive tactics, techniques and procedures.
Instead of taking the stand, these witnesses had their views entered the record through so-called "stipulations of expected testimony," which state what testimony a witness would likely offer if called into court.
Lt. Cmdr. Thomas Hoskins , of the Navy Reserves, said in his stipulation that his review of the Afghanistan logs showed sensitive information about IED attacks and "details of movements of U.S. friendly forces," as well as "limitations and vulnerabilities of US forces in combat area."
Retired Lt. Col. Martin Nehring , a trained meteorologist for the U.S. Air Force, inspected the Iraq reports marked "Secret." These, he said, contained dozens of categories of compromised sensitive information, such as a "previously reliable source" and information about the "threat of attack in an area by a specific group."
Chief Warrant Officer 5 John Larue, an Army pilot with 22 years of experience, set his sights on the "Collateral Murder" video.
"The Apache video shows the high-action display," La Rue said. "The high action display shows the use of a laser for ranging, altitude and air speed. The laser also shows angles of engagement. The ranges and attack approaches are TTPs [tactics, techniques and procedures]."
Eugene Fidell, a visiting lecturer at Yale Law School, interpreted the defense strategy of agreeing to this type of testimony as a form of damage control.
"I would speculate that the defense concluded live testimony would be more explosive than mere stipulations," Fidell said in an email. "This may be an effort to turn down the volume in general."
Richard Rosen, of Texas Tech University, also believed that live testimony could appear "more damning."
Scott Silliman, a Duke University School of Law professor, suspected that the defense did not intend to challenge the witnesses' assertions, and so had little to gain from having the testimony presented in court.
"It is a trial strategy decision only," Silliman said.
Victor Hansen, of New England Law Boston, offered a different view.
"There are a couple of issues at play," he speculated.
"First, because this case is being tried before a judge not a military panel there is less need and less value in confronting the witnesses because the confrontation is unlikely to score real points before the judge," Hansen said.
"Second, the real issue for the defense is the intent or lack thereof in why Manning released this information," he added. "The substance of this evidence really does not get to that issue and so the defense is attempting to streamline its case to the issues that really matter to them."
Indeed, the top charge requires prosecutors to prove that Manning had "reason to believe" that the leaks could damage the national defense or aid a foreign nation. Simply showing that this was a possible effect is not sufficient.
Another stipulation by Manning's aunt, Debra Van Alstyne, supports Manning's stated intentions and timeline for the disclosures. Manning asserts that he started leaking documents in early February 2010, after he became disillusioned with his mission in Iraq. He said a blizzard rocked the area of his aunt's home, and he slipped out to a nearby Barnes and Noble to start uploading documents.
His aunt's account mostly corroborates this.
"When Brad returned, we got hit with a big snow storm on Friday night, the 5th of February, so we ended up not doing very much other than playing board games," her stipulation states. "After the snowstorm, we were without power until Sunday, the 7th of February. I recall Brad leaving during this time by walking out to the main road and telling me that a friend was going to pick him up. I do not know where he went, as it was not my usual practice to ask him where he was going."
Prosecutors contend that Manning started, in essence, working for WikiLeaks almost immediately into his deployment in November 2009.
But Van Alstyne says her nephew was proud of his Army service, and she related that to the authorities.
"One of the agents asked me about how Brad felt about the Army," her stipulation states. "Based upon our discussions, I knew that Brad was proud of his job and of being in the Army. However, Brad seemed to be very quiet when he returned from Iraq for his mid-tour leave. He also seemed depressed to me."