Manning Tries to Keep Courtroom Door Open
FT. MEADE, Md. (CN) - Just after a military judge blocked Bradley Manning's lawyer from challenging government classifications Wednesday, a prosecutor asked the court to close the public from about a third of the upcoming trial.
Manning, 25, will stand trial in June, shortly after the three-year anniversary of his arrest for allegedly sending WikiLeaks the biggest intelligence trove in United States history.
The private first class is expected to admit Thursday to having leaked the vast majority of the documents, including diplomatic cables and incident reports from the Iraq and Afghanistan wars.
He also plans to plead not guilty to "aiding the enemy," the top charge against him, which carries a potential life sentence.
The anticipated plea could alter many of the remaining 21 specifications against him, including the Computer Fraud and Abuse Act, the Espionage Act and violations of the Uniform Code of Military Justice.
Manning's arsenal for contesting the remaining allegations lost one more tool on Wednesday, as the presiding judge, Col. Denise Lind, ruled that his lawyers cannot argue that the government generally keeps too much data under wraps.
The relevant topic is whether the specific files that Manning allegedly leaked were classified improperly, she said.
Manning can still make some narrow references, however, to the Reducing Over-Classification Act, a law that President Barack Obama signed to address the issue. It aimed mostly to encourage agencies to share sensitive information with each other, rather than the public.
Manning's lead attorney, David Coombs, wants to cite the legislation and the congressional testimony leading to its passage to argue "that the classification system is broken" and has "negative consequences for the nation."
A Senate subcommittee that convened three times in 2007 heard testimony from J. William Leonard, oversight director of the National Archives and Records Administration; Carter Morris, from the Department of Homeland Security; FBI assistant intelligence director Wayne Murphy; and various other state and federal intelligence officials.
The defense will be able to cite Leonard's findings that classification officials at NARA only made correct decisions 64 percent of the time because these were formalized findings.
Testimony from the other officials, however, represented merely irrelevant personal opinions, the judge ruled.
Lind also barred testimony by Thomas Blanton, the director of George Washington University's National Security Archive, who criticized "WikiMania" during a different congressional hearing.
"We are well into a syndrome that one senior government official called 'Wikimania,' where Wikimyths are common and there is far more heat than light. That heat will actually produce more leaks, more crackdowns, less accountable government, and diminished security," Blanton said.
Lind blasted this remark, which was a record of a comment that quoted another official, as "triple hearsay."
The defense still must prove the relevance of the admissible evidence at trial.
Nearly a Third of WikiLeaks Trial May Be Closed
The hearing Wednesday also marked the start of a Grunden hearing, named after a U.S. airman convicted of trying to sell information about U2 spy planes in the 1970s.
An attempt by prosecutors decided to try that man in secret led the military's highest court to adopt procedures that balance the right of a public trial with the protection of classified information.
The decision mandated that courts make "narrowly and carefully drawn" decisions on proceedings to the public, and warned prosecutors not to use "an ax in place of the constitutionally required scalpel."
In the Manning case, lead prosecutor Maj. Ashden Fein told the judge that he employed such surgical precision by keeping "very little" of the upcoming trial behind closed doors.
"No more than 30 percent," he said, when prompted by the judge.
Incredulous, Lind asked, "The government considers 30 percent very little?"
Fein explained that he considered that narrow based on the facts of the case.
Earlier, Fein said that slightly more than half of the government's 141 anticipated witnesses would have to testify about classified information.
For a handful, he added, "the mere fact of if they say who they are and who they work for, that would disclose classified information to the public."
He said that these witnesses could testify from behind "physical screens or disguises," and the so-called "silent witness rule" could prevent other spillage of sensitive information.
Under this rule, a witness may refer to a document known only to the judge or jury, depending on how Manning prefers to be tried. Witnesses could refer to a country, topic, event or explanation by a number or letter that the parties can refer to on a syllabus.
Fein argued that some of these substitutions could get so extensive that closing the court would not make much of a difference.
"If an individual takes the stand and every other word is on the syllabus, we have in effect closed the court to their testimony," he said.
Manning's military counsel, Capt. Joshua Tooman, said that prosecutors are complicating the process with unnecessary substitutions, such of the names of soldiers killed by improvised explosive devises, or IEDs.
Testimony of this nature might come into play because of Manning's alleged leaks of incident reports from Afghanistan, known as SigActs, which the military claims led to the deaths of soldiers fighting there.
"Soldier X was killed in an IED blast in this particular province in this country is not classified, in our perspective," Tooman said. "Those are things that are published routinely."
Lind signaled that she was reluctant to grant all of the government's requested closures.
"Assuming there are alternatives to closure, I want to consider them," she said, suggesting the declassification of some of this information.
Manning's plea tomorrow could also make some of the classified testimony the government plans to use unnecessary, she said.
At the end of the day, the parties entered into a closed session to explore other alternatives.
Army Releases Dozens of Court-Martial Documents
As the parties wrestled about court closures, the U.S. Army has released months of court orders and rulings in the Manning case under the Freedom of Information Act.
The Reporters Committee for Freedom of the Press circulated a letter signed by more than 40 news organizations last year, asking the government to grant access to these documents.
The letter stated that reporters covering U.S. courts-martial have less access to documents than cases involving terrorism suspects at Guantanamo Bay.
The Center for Constitutional Rights, or CCR, sued to open up access on behalf of WikiLeaks, Julian Assange and about a half-dozen journalists, and argued their case before the Court of Appeals of the Armed Forces in October.
The Army released 84 of the documents before the court handed down a decision, and it says that more are on the way.
"Due to the voluminous nature of these documents, it will take additional time to review, redact, and release all of the responsive documents," the Department of Defense said in a statement. "To date, more than 500 documents have been filed by the parties or issued by the military judge, totaling more than 30,000 pages."
CCR greeted the announcement of a "long-overdue step toward transparency" that still "falls far short" of what its lawsuit demanded.
"The First Amendment requires that the press and public have access to the court's orders, the government and defense filings, and transcripts or audio files of the daily proceedings in open court," the group said. "Today's release only provides some of the court rulings. Other than a small number of defense briefs published by the defense counsel on his blog (with heavy redactions by the government), the rest of the materials connected to the trial are not available to the public in any way, despite the fact that the vast majority of this material is not classified or otherwise sensitive. And some of the documents contain absurd redactions; for example, the name of the trial judge is redacted throughout.
"What is more, some of these orders are over a year old and are only now being published in written form despite the fact that many had been read out loud in open court. We have no commitment from the military that it will make court orders available to journalists and the public on a timely basis going forward."