Manning’s Key Defense Arguments in Limbo

     FT. MEADE, Md. (CN) – Military prosecutors started Pfc. Bradley Manning’s first pre-trial hearing of the year with motions to disarm the alleged WikiLeaks source of two of his main trial defenses.
     Manning, 25, is accused of sending WikiLeaks the biggest disclosure of U.S. military and diplomatic intelligence in history.
     Prosecutors claim that Manning aided the enemy. His supporters call him a whistle-blower who gave the public an uncensored view of warfare and diplomacy.
     In Internet chats with Adrian Lamo, Manning said he hoped the exposure of the documents would inspire global reforms and dialogue.
     Wired magazine printed the conversation as the “Manning-Lamo Chat Logs.”
     During the conversations, Manning told Lamo that he could have sold the data to Russia and China, but he never considered doing so because “it belongs in the public domain” and “information should be free.”
     On Tuesday, a military prosecutor, Capt. Angel Overgaard, told the military judge that these statements should not be admitted at trial. She compared arguments about motives to the plot of the Victor Hugo “Les Miserables,” in which Jean Valjean steals a loaf of bread to feed his family.
     Lead defense attorney David Coombs said that the government was oversimplifying his arguments into one, about general altruism.
     Manning plans to argue that he believed that the disclosures would help inform the public without putting at risk U.S. officials, citizens and sources, Coombs said.
     Coombs cited the Cold War-era case of Richard Miller, an FBI agent assigned to Soviet Foreign Counterintelligence, who was charged with giving documents to a Soviet agent.
     An appellate court found that the trial judge failed to instruct the jury that it could consider Miller’s argument that he passed on the information to recruit the Soviet as an informant for the United States.
     Unlike the Manning case, Miller’s espionage prosecution involved a direct encounter with an enemy.
     Manning’s attorneys called it unprecedented for the government to charge someone with “aiding the enemy” for publishing documents through a journalistic outlet. But prosecutors said it has happened before.
     Coombs claimed that the cases the government cited date back to the Civil War-era, in which defendants placed coded ads transmitting messages to the Confederacy.
     “There’s been no case in the entire history of military jurisprudence that involved sending information to a legitimate journalistic organization” which resulted in an aiding-the-enemy prosecution, Coombs said.
     To prove that Manning “aided the enemy,” prosecutors must show that his “training, knowledge, and experience” as a former intelligence specialist made him aware that leaking the files would have that effect.
     Manning seeks to prove at trial that he used his experience to conclude that the documents were safe for publication, Coombs said.
     To succeed, the defense will have to argue that the hundreds of thousands of documents Manning is accused of exposing were improperly marked as sensitive.
     That task will be even more difficult if prosecutors prevail in another motion to preclude evidence, dealing with the general over-classification of government data.
     While she did not concede that the government excessively classifies data, Capt. Overgaard argued that even if that were true, such a general finding would not show that the WikiLeaks disclosures were marked incorrectly.
     But Coombs called it “incredible” that the government proffered that argument “with a straight face.”
     “Such a determination ignores the elephant in the room, and the elephant in the room in this case is we have a problem with over-classification,” Coombs said.
     He said the problem has been acknowledged since the 1970s, when former military analyst Daniel Ellsberg shared the Pentagon Papers with The New York Times, in the country’s most famous act of whistle-blowing.
     Despite the wide publicity and profound impact of that leak during the Vietnam War, the government did not declassify the document until 2011, Coombs said.
     Taking over-classification arguments off the table might hamstring proposed defense witnesses.
     One proposed expert, Col. Morris Davis, served as chief prosecutor at Guantanamo Bay from 2005 to 2007. He plans to testify that the so-called “detainee assessment briefs” that Manning allegedly sent to WikiLeaks did not contain sensitive information.
     “He referred to those as baseball cards,” Coombs said. “He used those for general prosecutorial information.”
     The parties will argue today (Wednesday) whether Col. Davis and other defense witnesses will be allowed to take the stand at trial, which is slated to begin on March 6.

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