By Annika McGinnis, McClatchy Newspapers (July 20, 2012)
WASHINGTON — Legal experts say WikiLeaks suspect Bradley Manning’s lawyers might have lost a key element of their defense because of a military judge’s ruling this week that would prevent them from using evidence to contend that there was little “actual harm” from the enormous leak of secret government documents.
Manning, a U.S. soldier, is charged with “aiding the enemy” through leaking of hundreds of thousands of classified documents – the largest in U.S. history – to the secret-exposing website. Recent evidence from dozens of government reports showed the leaks caused little “actual harm” to national security, Manning’s defense says, arguing that it should be able to use that evidence.
“Two years after the alleged leaks, the conclusion is still merely that the information ‘could’ cause damage – not that it ‘did’ cause damage,” the defense wrote in a filing to the court, calling the speculation of possible damage without proof “far-fetched and fanciful.” Defense attorneys said they’d been given an opportunity to review some of the damage assessments.
On Thursday, however, a military judge, Army Col. Denise Lind, ruled in favor of the government’s argument, saying that evidence of harm caused after the leaks were released isn’t relevant to determining Manning’s guilt or innocence and that it might confuse jurors by shifting the trial’s focus, according to the Associated Press.
Kevin Gosztola, a writer for the left-leaning news website Firedoglake who attended the four-day hearing at Fort Meade, Md., and listened to a briefing from a military public affairs legal expert, said Lind thought Manning couldn’t have known what damage would occur after the documents were leaked, so the amount of damage shouldn’t affect his case.
“The government would like this to be a case solely about whether or not Manning violated the rules, not what the consequences of what such violations would be,” said Steven Aftergood, the director of the Project on Government Secrecy in the Federation of American Scientists, a nonpartisan research center for national security issues.
Other than two narrow exceptions to the restriction, the defense won’t be able to use evidence of actual harm during the trial, which was a key portion of its argument, legal experts said. Beth Hillman, the president of the nonprofit National Institute of Military Justice, said the defense would have a “very steep hill to climb.”
But because evidence of harm still can be used during sentencing, it could help lessen Manning’s sentence if he’s convicted, said Michael Navarre, special counsel at Steptoe & Johnson LLP. Manning could face life imprisonment.
Aftergood said he thought the question of harm would become much more relevant at sentencing.
“There’s a difference between running a red light and killing a pedestrian versus running a red light and nothing else happening,” he said. “If he disclosed information that caused identifiable harm, then he needs to answer for that. If his disclosures produced only vague discomfort, then he deserves a firm slap on the wrist.”
Jesselyn Radack, the director of national security and human rights at the Government Accountability Project, an advocacy group in Washington for whistleblowers, said she thought the defense still had a strong argument, even without the inclusion of actual harm.
“I don’t know if it’s that huge of a blow,” Radack said. She said that under the law, it must be shown that the defendant had the intent to harm the United States or a foreign nation. “While it would have also been nice to show that nothing happened, I think we’ll be able to show that he had no intent to harm the United States – that’s been the big hurdle.”
Without the actual-harm portion of their defense, Manning’s attorneys might focus on possible mental stress due to the “don’t ask, don’t tell” policy on gays in the military, potential mental-health issues stemming from a problematic childhood and a possible gender-identity disorder, according to Gosztola.
Gosztola also said the defense probably would argue that Manning knew whether damage would be caused by releasing the documents.
The debate over using evidence of harm ties to the larger issue of alleged overclassification and secrecy in government, experts said. The defense had hoped to use the reported lack of significant actual harm from the leaks to argue that many of the documents shouldn’t have been classified in the first place, Hillman said.
Another pretrial hearing in late August will include discussion of Manning’s treatment while in solitary confinement at the Marine Corps base in Quantico, Va.