Bradley Manning is accused of releasing a treasure-trove of documents to Wikileaks that threaten U.S. national security. Supporters of Manning say the documents are proof of war crimes committed by the United States. I have said, since the beginning, that the documents, available on-line through Wikileaks “mirrors”are not so damaging to U.S. national security as they are embarrassing to the State Department. A military judge has ordered the state department to release into her hands official documents that assessed from the viewpoint of the US government how damaging the leak of state secrets to WikiLeaks had been to American national interests. The order of the judge, Colonel Denise Lind, came at a hearing in Fort Meade, Maryland, in the court-martial of Bradley Manning. The US soldier has been charged with 22 counts on suspicion of being the source behind the WikiLeaks publications.
For months Manning’s defense lawyer, David Coombs, has been pressing the soldier’s military prosecutors to hand over in the discovery stage of the trial the official damage assessments. The assessments, carried out by several federal agencies including intelligence bodies, could have a crucial bearing on any sentence handed out to Manning should he be found guilty. There have been suggestions that the assessments show that in the official opinion of the US government, WikiLeaks did very little to harm US national interests around the world. That could prove invaluable for the defense in mitigation. Technically, Manning faces a possible death sentence under the charges, one of which accuses him of “aiding the enemy” by acting as the alleged leaker. However, army prosecutors have indicated they will not invoke the death penalty and instead aim for a prison term that could involve life imprisonment.
The judge’s demand to see the assessments does not mean that they will be made public. Lind will decide having read them whether or not they should be made available to the defence, and even then they may be classified. The army prosecutors have consistently resisted any attempt to release the assessments, citing national security. Following the judge’s ruling, the state department repeated its insistence that the WikiLeaks trove – including a video of a US helicopter attack on civilians in Iraq and hundreds of thousands of US embassy cables published jointly by the Guardian and other international papers – had been detrimental. “Our view of the entire WikiLeaks incident has not changed at all in terms of the negative effects. There was enormous turbulence in many of our bilateral relationships when this happened and there have been impacts on individuals,” the state department spokeswoman Victoria Nuland said.
Lind said that she would rule on Manning’s defense motion to have all the charges against him dismissed on Wednesday. The defense has filed a motion with the military court arguing that the process of the court-martial has been so woefully conducted by the prosecution that none of the charges should be brought to trial. In his filings, Coombs is scathing about the way the military authorities have gone about the pre-trial preparations. He talks about what he calls the “government’s ritual incantations” and says that it has taken two years since the case began for the defense to be handed just 12 pages of discovery materials.
Those materials, he writes, “are dated as of November 2010. Why is the defence receiving these in April 2012, a year and five months after they were prepared?” As a further demonstration of his low opinion of the military prosecutors, Coombs publishes on his blog all the defense motions that he will be arguing in court this week, stating that in his view “the vast majority of the parties’ filings should be made public”. This goes against the military prosecutors’ request that no motions should be filed for security reasons – Coombs has redacted his filings himself to remove references in the documents that the army has said should not be released.
At the heart of the disagreement over procedures is Coombs’s longstanding request for key documents under discovery from the prosecution which he says are crucial to Manning receiving a fair trial. In particular, the lawyer has tried to obtain access to damage assessments by US intelligence experts. These gave an expert opinion on whether or not the confidential documents that were handed to WikiLeaks, allegedly by Manning, did any harm to US national interests. It is Coombs’s apparent suspicion that the assessments found that the leak was not of great significance in terms of its impact on American interests – a fact that would certainly be relevant in legal argument over an appropriate sentence for the soldier should he be found guilty.
Coombs also wants to see transcripts of grand jury proceedings held in Virginia where it is believed the department of justice has been considering bringing a criminal case against Julian Assange, the WikiLeaks founder. One theory widely held among Manning’s supporters is that he has been singled out for harsh treatment in order to force him to testify against Assange who is seen by the US government as their main target. It is strange that the government is still trying to withhold trial documents that can be read on-line. In my opinion, this is more about “showing” the supposed “threats” to national security than it is about producing the facts.
In the two years since his arrest for allegedly leaking the confidential files that exposed grand-scale military misconduct, potential war crimes and questionable diplomatic tactics, army private Bradley Manning has been subjected to an extremely secretive criminal procedure. It is a sad irony that the government’s heavy-handed approach to this case only serves to underscore the motivations – some would say, the necessity – for whistleblowing like Manning’s in the first place.
The most well-known of the leaked files, a 39-minute video entitled “Collateral Murder”, depicts three brutal attacks on civilians by US soldiers during the course of just one day of the Iraq war. The footage, recorded from the cockpit of a US Apache helicopter involved in the attacks, shows the killing of several individuals, including two Reuters journalists, as well as the serious injury of two children. Beyond the chilling images of US soldiers eagerly pleading for chances to shoot, the release of this footage placed a spotlight on the military’s blatant mischaracterization of the events, in which a spokesman claimed that there was “no question” that the incident involved engagement with “a hostile force”, and underscores the vital role that public scrutiny plays in government accountability.
As an attorney with the Center for Constitutional Rights (CCR) and a legal adviser to WikiLeaks and Julian Assange, I continue to attend Manning’s hearings and can only describe them as a theater of the absurd: the trial involves numerous and lengthy off-the-record conferences, out of sight and hearing of the press and public, after which the judge provides an in-court summary that hardly satisfies standards of “open and public”. Perhaps more remarkable is the refusal even to provide the press and public with a pre-trial publicity order, which was signed by the judge – an order that details what lawyers can and cannot reveal about the case. Yes, even the degree to which proceedings should be kept in secret is a secret, leaving the public and media chained in a Plato’s Cave, able only to glimpse the shadows of reality.
The press and advocacy groups, however, have not been quiet about the trampling of their rights. The Reporters Committee for Freedom of the Press, on behalf of 46 news organizations, urged the Department of Defense to take measures that would allow the news media to view documents prior to court arguments. The committee pointed out that the trial for the “alleged leak of the largest amount of classified information in US history” is of “intense public interest, particularly where, as here, that person’s liberty is at stake”. The Center for Constitutional Rights, too, has requested access in the interest of an “open and public” trial, but neither appeal has been answered. This is a clear violation of the law, but it will likely take burdensome litigation to rectify this lack of transparency. The US supreme court has insisted that criminal trials must be public, and the fourth circuit, where this court-martial is occurring, has ruled that the first amendment right of access to criminal trials includes the right to the documents in such trials.
The greater issue at hand is why this process should be necessary at all. As circuit judge Damon Keith famously wrote in Detroit Free Press v Ashcroft, “Democracies die behind closed doors.” Yet it is evident from the many layers of secrecy around Manning’s arrest, imprisonment and prosecution that the government shows no sign of relinquishing its claimed powers to obscure rightfully transparent judicial proceedings. The doors appear to be tightly shut. Unless we challenge the growing culture of secrecy within our government, and counter the ever-increasing, reflexive claims of “national security” by claiming our own constitutional rights, we risk finding those doors shut indefinitely.
This journalist, a military veteran who served on board the National Emergency Airborne Command Post, remains torn on the subject of Bradley Manning. As a journalist, is believe in the freedom of the press to challenge and refute absolute government authority. It is our job to question the objectivity and fairness of the state. Do I completely trust the federal government? No…I don’t because at its foundation, it is supposed to be of, by and for the people and the idea of state secrets smacks the face of a free and open society. At the same time, in the same breath, I swore an oath to protect this country so the idea of releasing classified information is also repugnant. Regardless though, Manning deserves a fair and impartial trial which he is not likely to get. It is incumbent upon the government to step up and provide unrestricted access to what it thinks it has.
The Guardian contributed to this report.