Manning Prosecutor Breaks Silence on WikiLeaks Case

     Ashden Fein reflects on the case that capped his career as a military prosecutor in the second installment of a Courthouse News series about cybersecurity in the Pentagon and corporate America.
     

     MANHATTAN (CN) – Nearly two years have passed since Chelsea Manning was convicted of what had been the largest intelligence leak in U.S. history.
     Opening up for the first time on the landmark court-martial he led, former Army Maj. Ashden Fein said in an exclusive interview that he had believed Manning’s disclosures merited the military equivalent of treason.
     At trial, Fein’s team argued that WikiLeaks solicited specific U.S. military and diplomatic files from Manning, and that the Osama bin Laden raid illustrated the dangers of such intelligence disclosures.
     “Once we realized that Osama bin Laden had the information sitting off the net in the dark, and yet he asked for the WikiLeaks information and received it, and we had the evidence in our hands of the material that was found in his possession in Abbottabad, we definitely felt beyond a reasonable doubt that her actions had aided the enemy,” said Fein who moved to the private sector last year after 13 years in the Army.     
     Manning ultimately got 35 years for violating the Espionage Act, among other laws, but she was acquitted of the top charge Fein had championed.
     “Now, whether the judge thought so or not, we know that she did not,” said Fein, now an associate with Covington & Burling. “She found [Manning] not guilty, which was a just result.”
     At 36, just nine years older than Manning, the D.C. attorney has stacked an already-hefty resume.
     Before serving as the Military District of Washington’s lead prosecutor, Fein worked as judge advocate for the 4th Combat Aviation Brigade in Iraq, heading legal services for a 3,000-strong deployment with a fleet of Black Hawk, Chinook, Medivac and Apache helicopters.
     The job had Fein advising on a “full spectrum” of legal services, including “law-of-war issues.”
     “Can you shoot, should you shoot?” Fein said. “What is permitted under the rules of engagement? That type of advice.”
     WikiLeaks would later spark a global debate on these questions by releasing footage of an Apache helicopter’s July 12, 2007, airstrike in Baghdad, under the title “Collateral Murder.”
     Where WikiLeaks saw gunners itching to open fire on two Reuters reporters and others, Fein perceived “the complexities behind split-second decisions that a soldier [makes] who has a finger on the trigger.”
     Deployed to Iraq a year after that airstrike, Fein said he never saw the video until the Manning case.
     The footage was part of the hundreds of thousands of files Manning uploaded to WikiLeaks – a trove that also included Department of State cables, Iraq and Afghanistan battlefield reports, and Guantanamo Bay detainee profiles.
     Before Manning, Fein’s highest-profile case had been the court-martial of Terrence Lakin, the ex-Walter Reade doctor whose belief that President Barack Obama is not a U.S. citizen made him a cause célèbre for the birther movement.
     Col. Denise Lind, the judge who ultimately convicted Manning, presided over this case as well, sending Lakin to prison with a dishonorable discharge for refusing to deploy under the Hawaiian-born commander-in-chief.
     In terms of visibility, Fein said “nothing compared to Manning later,” a spectacle that drew international press and throngs of WikiLeaks supporters to the modest courtroom in Ft. Meade, Md., near the National Security Agency’s headquarters.
     But trial may never have happened if Manning accepted a plea deal offered in the fall 2011, shortly before the first public hearing.
     “We actually sat down in Ft. Leavenworth, Kan., with Chelsea Manning at the table and presented her about a three-hour presentation that looked very similar to our closing arguments with PowerPoint slides,” Fein said.
     Confidentiality shrouds the meeting, but Manning’s lawyer claims his client chose wisely.
     “The ultimate sentence was better than what they were offering,” attorney David Coombs said in an interview.
     While the lawyers dispute the government’s willingness to return to the table, Coombs believed any deal would have required his client’s testimony against WikiLeaks founder Julian Assange.
     Fein declined to either confirm or deny this was a condition.
     If Manning flipped, Coombs said, the government would have been disappointed to find there was no conspiracy beyond a publisher-source relationship.
     Pretrial haggling over certain evidence issues ultimately brought the stipulation that the Abbottabad raid uncovered bin Laden’s possession of “the Afghanistan war log” and “Department of State information.”
     Since the public record offers little insight as to what, if anything, the terror leader did with such information, Coombs said this stipulation had been so “vanilla” that “nothing really hurt us.”
     After plea talks, Fein next interacted with Manning at pretrial hearings in late 2012 regarding Manning’s detention at Quantico, Va.
     Reports of forced nudity and 23-hour stretches of isolation in an 8-by-6-foot-cell led a United Nations investigator to denounce Manning’s “cruel, degrading and inhuman” treatment, but the Pentagon maintained that the Marine Corps had only tried to protect the WikiLeaks source from herself.
     The hearings probed Manning’s earlier thoughts of suicide, and courtroom sketches captured Fein brandishing a noose that Manning acknowledged having made shortly after her arrest.
     Findings by psychiatrists that Manning’s depression was under control, however, did not end the hawklike watch on the high-profile detainee.
     When Manning sarcastically remarked that she could use the elastic of her flip-flops and underwear to kill herself, guards ordered those articles removed.
     Manning found their orders misguided rather than malicious, however, testifying in 2012 that the guards had been “very professional.”
     Reflecting on these hearings, in which Manning agreed that there may have been confusion over what she perceived to be an order to drop the suicide-proof blanket covering her at morning call, Fein said “she was generally truthful.”
     “When she admitted that, I thought it was very genuine, and we had a good rapport,” he said. “And that’s probably why she felt comfortable admitting that under oath, with the judge to consider.”
     Despite the grim subject matter, Fein’s questioning of Manning included surprising moments of levity with jokes about the stench of Iraq military bases and struggling through predawn wake-ups for “reveille.”
     Judge Lind ultimately gave Manning a slim 112-day credit for “unlawful pretrial punishment.” Manning came out as transgender and shed the name “Bradley” one day after her sentencing, telling the world: “I am a female.”
     A notably productive prisoner, Manning successfully sued U.S. Disciplinary Barracks for hormone therapy and earned a coveted columnist spot at a British newspaper, where she recently remarked that prosecutors did not really think she was a traitor.
     “I appreciate Chelsea Manning’s candid op-eds for The Guardian,” Fein said, though he emphasized the prosecution had an ethical responsibility to believe in its case.

Click the hyperlinked text to return to Part I of this series, “WikiLeaks Prosecutor Charts Rise of Insider-Threat Boom,” or visit Part III, “Corporate America Enters the Cyber War Room.”

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