FORT MEADE, Md. (CN) – Attorneys for alleged WikiLeaks source Pfc. Bradley Manning can screen potential jurors about whether they can put aside public statements by high-ranking public officials, including President Obama, while weighing the evidence, a military judge ruled Tuesday.
Manning, 24, could face life imprisonment if proven to have shared hundreds of thousands of files exposing secrets of U.S. diplomacy and warfare.
Logan Price, of the Bradley Manning Support Network, taped Obama apparently declaring Manning guilty before trial by asserting, “He broke the law.”
Defense attorney David Coombs on Tuesday scolded the president and Joint Chiefs of Staff Chairman Michael Mullen, who allegedly said Manning that had “blood on his hands.”
Coombs called those statements “problematic comments.”
“Unfortunately, members of the government have chosen to throw out comments to members of the press that have been hurtful,” Coombs said. “They should have known better.”
When asked for comment, White House spokeswoman Caitlin Hayden sent an April 2011 statement from National Security Council spokesman Tommy Vietor.
“The president was emphasizing that, in general, the unauthorized release of classified information is not a lawful act,” Vietor said at the time. “He was not expressing a view as to the guilt or innocence of Pfc. Manning specifically.”
But the director of the video told Courthouse News that he believed that the tapes, which are still available on video, speak for themselves. He added that the president’s comments might have lasting consequences that no voir dire question can fully cure.
“The fact that the president already declared him guilty would taint a jury pool,” Price said. “My question is, ‘How would it affect a judge?'”
The topic came up Tuesday as the parties argued over how to screen and instruct jurors before trial.
In the first half of the hearing, both sides parsed how the military judge, Col. Denise Lind, should define the charges to the jury.
In some instances, the parties clarified positions without objections.
For instance, one prosecutor, Capt. Joe Morrow, corrected Coombs for saying that his client was charged with espionage.
Despite widespread reports that Manning is being prosecuted for “espionage,” Morrow said the Pfc. was charged with unauthorized transmission, a subsection of the Espionage Act.
On more contentious issues, Judge Lind made it clear that she would not do the jury’s work for them.
“I don’t like going down the road of telling the fact-finder what they should consider or not consider,” Lind said.
An important instruction concerns how the court defines “national defense” information.
“The government’s definition would turn this into a State Secrets Act, which Congress refused to enact,” Coombs said.
He said that “national defense” needs “left and right boundaries” so jurors do not think that a file pertains to national defense simply because prosecutors say so.
“The government makes it seem like a foregone conclusion based on classification,” Coombs said. “The court cannot allow that to happen.“
Capt. Morrow contended that the definitions be grounded on military case law, and that the court should not “reinvent the wheel.”
Coombs countered that military law is thin on the subject, and that the details of Manning’s case are unique, so they require the court to “blaze a trail.”
The parties scrutinized concepts such as the value of “intangible property,” alluding to the files allegedly transmitted without financial gain; “caused to be publish,” causing controversy over who is responsible for published leaked information; and “knowingly exceeding authorized access,” posing questions about which access an intelligence officer was and was not permitted.
Apparently amused by the Talmudic inquiries, Judge Lind asked whether the defense had “reason to believe” that the government’s “reason to believe” was correct.
“No, Your Honor,” Coombs replied, before proposing a different definition.
Lind reserved decision, and said that her definitions will be subject to further debate.
The second half of the hearing explored potential questions to jurors to prepare for voir dire.
Before he spoke about Obama’s statements, Coombs hoped to ask a series of broad, informal questions asking jurors, selected from a pool including higher-ranking troops, about their reading materials, television habits and engagement in activism.
“What are we going to ask the panel members next, their weight?” asked Capt. Angel Overgaard.
Lind trimmed this line of questioning, but allowed Coombs to ask some of them, on the grounds that they could indirectly uncover jurors’ hidden biases.
The defense can probe jurors’ knowledge of gender identity disorder, with which Manning was diagnosed, as he explored a transgender persona, “Breanna.”
Lind is expected to resolve today (Wednesday) whether the defense may argue at trial that the alleged leaks actually damaged national security. The defense claims they did not.