FORT MEADE, Md. (CN) – With limited exceptions, Pfc. Bradley Manning cannot argue that the hundreds of thousands of documents he allegedly sent to WikiLeaks did not damage U.S. national security, a military judge ruled Thursday.
On Wednesday, Manning’s lead attorney David Coombs told the judge, Col. Denise Lind, that the defense would be “cut at the knees” if she barred that argument from the trial.
The ruling quashes the central defense of Manning, 24, who could face life imprisonment for “aiding the enemy” if prosecutors prove he sent WikiLeaks hundreds of thousands of files exposing secrets of U.S. diplomacy and warfare.
Prosecutors say release of the cables could jeopardize international relations and endanger U.S. sources, but they have fought for months not to allow evidence of actual harm to enter into the trial.
Coombs said prosecutors adopted this stance because evidence from dozens of government agencies consistently showed “little to no harm.”
But Lind sided with the government Thursday, finding that prosecutors crafted the charges in a way that did not accuse Manning of actually causing harm.
“What, if any, damage occurred after the date of disclosure is not relevant,” Lind said.
Lind carved out a thin exception, allowing Manning’s attorneys to use information from damage assessments outside the context of the “actual harm” argument.
She said she may allow the defense to argue actual harm to probe the potential biases of Original Classification Authorities, or OCAS, who determine the sensitivity of data and documents.
Neither side contests that lack-of-damage arguments can be used in Manning’s defense at sentencing, if he is convicted.
Though it lost its key argument, the defense gained access to thousands of State Department documents and data, which the judge granted them.
The information gleaned from this material will shed light on the fallout of WikiLeaks’ release of more than 250,000 diplomatic cables, allegedly sent by Manning.
Coombs said it also will let him test statements by Ambassador Patrick Kennedy, the State Department’s Undersecretary of State for Management, that he has no records of a meeting between his staffers and Congress.
“Ambassador Kennedy cannot identify who talked to Congress?” Coombs asked. “That’s just amazing to me.”
He pointed out that such briefings usually take planning.
Congress does not say, “I’ll meet you at Chili’s at 6, and we’ll talk,” Coombs said.
The parties discussed what evidence would be admitted at a future hearing, probing “unlawful pre-trial punishment” at a Marine Corps brig in Quantico, Va.
In the military justice system, such hearings fall under the rubric of Article 13 hearings, which can result in credit toward sentencing reductions.
Coombs claimed that Manning’s mistreatment was unique among his clients.
“This one should shock the conscience of this court,” Coombs said.
Quantico Base Commander James Averhart ordered prison officials to place Manning in maximum-security confinement from July 29, 2010 to April 19, 2011. Manning spent 23 hours a day in solitary confinement, Coombs said. He had only 20 minutes of outside recreational time on some days, which was eventually “graciously extended to an hour,” Coombs said.
Manning’s attorneys said he occasionally was put under “Prevention of Injury” watch, even though a mental health official called it unnecessary.
That status forced Manning to wear a smock and sleep on a special mattress with a tear-proof blanket.
Prosecutors wanted the judge to see pictures of these object, but Coombs said photos are no substitute for the objects.
“It’s basically a large piece of sandpaper,” Coombs called the blanket. He said it left Manning with burns and skin rashes.
“Had he not been subject to that order, he would have been given a normal blanket, a normal smock,” Coombs said.
Manning said he was forced to strip naked in front of video surveillance.
The government denies that tape exists.
News reports of Manning’s treatment sparked an inquiry by the United Nations Special Rapporteur on Torture, Juan E. Mendez, who produced a report calling Manning’s confinement “cruel, degrading and inhuman.”
Mendez declined an interview with Manning, however, because the brig refused to give him unmonitored access to the soldier.
That decision made his testimony inadmissible at the hearing, Lind ruled.
She indicated that the defense could submit the U.S. government’s letter to Mendez, which allegedly states that Manning’s isolation stemmed from the serious nature of his crimes.
The judge will allow testimony from Lt. Col. Dawn Hilton, the commander of Ft. Leavenworth prison, to which Manning was transferred.
Coombs said that Hilton would say that she cleared Manning to be placed in general population after his 2-week processing.
He said this determination was inconsistent with the Quantico officials’ decision to place him on suicide watch.
“Either the water at Leavenworth has amazing mental health healing properties,” or he was subjected to “unlawful pre-trial punishment” at Quantico, Coombs said.
Hilton and five other witnesses will take the stand for the defense at the Article 13 hearing, slated for Aug. 27 to 31 at Fort Meade.