FORT MEADE, Md. (CN) – Pfc. Bradley Manning made headway Tuesday in his bid to prove that Wikileaks’ publication of more than 700,000 confidential files did not damage national security.
The anti-secrecy website divided the trove into “Cablegate,” for diplomatic cables; “War Logs,” for incident reports of the Iraq and Afghanistan wars; and “Collateral Murder,” for footage of the July 12, 2007 Baghdad airstrike that killed 11 people, including two Reuters journalists.
Investigations from the Department of State’s Information Review Task Force and Central Intelligence Agency’s Wikileaks Task Force reportedly indicated that the leaks caused little damage.
Facing a court-martial for allegedly sending the documents to Wikileaks, Manning has long sought access to those damage assessments. If convicted of “aiding the enemy,” the 24-year-old soldier could spend the rest of his life in prison.
Claiming that the documents are classified, however, prosecutors have refused to give Manning access. Military judge Col. Denise Lind ordered the government Tuesday to turn the documents over to the court by May 2.
After inspecting the files for classified information, Lind will decide whether to release them to the defense.
Lind also plans to review damage assessments from the Department of Defense, Federal Bureau of Investigation, Defense Intelligence Agency and Department of Justice, which allegedly reach similar conclusions.
Maj. Ashden Fein, the recently promoted lead military prosecutor, told Lind that he would forward her a letter from the Department of State urging her to reconsider her ruling.
Meanwhile, prosecutors agreed to comply with Lind’s separate order regarding a storage unit for classified information known as the Tactical Sensitive Compartmented Information Facility (T-SCIF).
The government must reveal the programs that soldiers in Manning’s unit uploaded onto T-SCIF computers.
In December, Coombs argued that Manning’s unit was “lawless” about uploading unauthorized movies, music, games and other software onto T-SCIF hard drives, but only Manning faced charges for the alleged uploads.
Of the 14 hard drives in the T-SCIF, only four have been completely preserved, and one was partly wiped out, the parties agree.
While prosecutors will tell defense attorneys what programs were on the remaining computers, Coombs says that information is too little, too late, because his client has been in pretrial custody for two years.
“Now, at least two years have gone by, and you have a very real possibility of Brady material being lost,” Coombs said, referring to a court doctrine about exculpatory evidence.
The Supreme Court found in Brady v. Maryland that it is a violation of due process for prosecutors to suppress evidence that could favor the defendant.
From the beginning, Coombs says that prosecutors fatally misunderstood the evidence they had to turn over under this standard, violating the spirit of military law.
“In the military, we pride ourselves on open discovery,” Coombs said.
Instead of citing the military’s Manual for Courts-Martial, prosecutors allegedly withheld evidence under civilian appellate court rules, the much higher standard. Coombs said it could take years to repeat the process under the correct standard.
In other instances, prosecutors allegedly refused to hand over documents that they said were in the “possession, custody or control” of other agencies.
Coombs criticized this maneuver as “hiding the ball.”
“The government should not be able to stash away documents within other agencies,” he said.
Fein rejected the implication of a bad faith.
“The defense has been alleging that just because information has not been turned over, the government must be suppressing it,” he said.
Regardless of whether the government suppressed information earlier, Coombs argued that prosecutors now have “every incentive to do a quick review, a very cursory review” so as not to contradict their prior conclusions.
The judge responded that prosecutors also have an incentive to conduct proper discovery to make sure a possible conviction survives on appeal.
Coombs countered that the government has not been acting like that is the case.
“The proof’s in the pudding,” Coombs said. “If they really understood discovery, they would have been able to do that, and they’re not able to do that today.”
As the hearing wore on, Fein’s voice grew louder and his mannerisms became more agitated.
He eventually accused the defense of engaging in “the newest way to graymail the government,” using a term referring to threatening to reveal state secrets to manipulate a court proceeding.
Coombs coolly denied the charge, saying, “We’re not going to be trying to graymail them in any way, shape or form.”
For the time being, Lind appeared to side with Coombs’ position that it has a legitimate need to review the State Department assessments.
She declined, however, to grant media outlets open access to government records and judicial opinions in the Manning case.
The Reporters Committee for Freedom of the Press and the Center for Constitutional Rights have criticized the military for withholding government memos and judicial rulings from the public eye.
Only redacted defense memorandums have been made available on Coombs’s website.
“One of the common criticisms that has been lodged so far about this case is that it hasn’t been sufficiently public,” Coombs noted.
Lind said that she was not the proper party to make the decision.
Press and other organizations seeking this information should seek relief under the Freedom of Information Act, she added.
Judge Lind will rule Wednesday on whether to dismiss the case or order the prosecutors to turn over grand jury information.