FORT MEADE, Md. (CN) – Pfc. Bradley Manning’s defense would be “cut at the knees” if a military judge blocks his attorneys from citing evidence that disclosures to Wikileaks did not harm national security, his lead attorney argued Wednesday.
Manning, 24, could face life imprisonment if proven to have provided Wikileaks with hundreds of thousands of files, exposing secrets of U.S. diplomacy and warfare.
Prosecutors claim the 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.
“That the government is using every opportunity to prevent the evidence from coming out speaks volumes,” defense attorney David Coombs said.
Coombs rattled off the doomsday predictions he said the government made.
“They were saying that it was the end of the world,” Coombs said. “Open diplomacy as we know it is over. Nobody’s going to talk to us.”
But private assessments by dozens of government agencies and the uneventful fallout paint a different picture, Coombs said. He claimed that evidence gained during discovery indicates, “No sources and methods were compromised.”
“Then, there’s the proof in the pudding to see that life as we know it has not ended because of these leaks,” he added.
Maj. Ashden Fein, the lead prosecutor, said such arguments could not be admitted because the government crafted the charges so as not to allege actual harm.
“If it was an element, it would be relevant,” Fein said.
That position resonated with the military judge, Col. Denise Lind, who commented, “I agree.”
Manning’s attorneys hoped to use lack-of-harm arguments to impeach the credibility of Original Classification Authorities, or OCAs, who determine the sensitivity of documents and data.
Fein said that argument had a faulty premise.
“The assumption the defense would be making is that these [OCAs] had anything to do with the assessments,” the major said.
Prosecutors claimed that proof that Manning sent data to WikiLeaks is all that’s needed to convict on the most serious charges.
“Once the transmission occurs, the crime is complete,” Fein said.
“And the crime is complete only if the offense if proven,” the judge added.
Coombs urged the skeptical judge not to “cut [the defense] at the knees” by taking away its strongest argument: that Manning, as a former intelligence specialist, carefully chose broad categories of data that would “inform the public” of the secret sides of war without putting anyone in danger.
“Manning says, ‘I used my knowledge skill and training,'” Coombs said, adding, “His belief, he’ll articulate.”
It is unclear whether he meant Manning would take the witness stand, or that the defense would enter into the record statements Manning wrote.
Fein insisted that allowing testimony on this topic would “confuse” issues.
Coombs urged the judge to trust the military to empanel jurors intelligent enough to hear evidence of actual harm, without compromising their ability to understand that the alleged leaks’ potential for harm controls their verdict.
Unlike the civilian system, a military official vets potential jurors, ostensibly by education level and maturity assessments.
“Every one of our members is going to be college-educated,” Coombs said. “We call them a blue-ribbon panel.”
He said that the idea that actual harm is irrelevant to a potential for harm is academically interesting, but remote to the “everyday person.”
“A good professor can spend some time confusing his students with that,” Coombs said. “I’ve enjoyed doing that myself.”
That remark brought a smile to Judge Lind, who said at the beginning of the court-martial process that Coombs may have taught at her JAG (Judge Advocate General) School.
She reserved decision on the matter, but her resistance to the idea appeared to soften as Coombs finished his argument.
Earlier in the day, Lind ruled against the defense’s effort to block admission of evidence consisting of computer-generated data by four Pentagon contractors.
One of Manning’s military lawyers, Capt. Joshua Tooman, argued that an investigator could have organized the data with an “eye toward prosecution,” making it possible “testimony” or “hearsay.”
Admitting it into evidence, he said, could violate Manning’s Sixth Amendment right to confront the originator, or originators, of the reports.
One of the prosecutors, Capt. Angel Overgaard, rejected the parallel between man and machine.
“A person must make a statement,” Overgaard said. “A computer cannot make a statement.”
While Lind sided with the government on that issue, she allowed the defense to challenge it again later on relevance grounds.
The defense also lost a renewed motion to toss charges that Manning “exceeded authorized access,” claiming that he had the appropriate clearances.
Someone with special access could misuse that access, Lind said.
She is expected to rule on the actual harm issue, the heart of the defense’s case, before hearings end this week.