David E. Coombs (photo: Armyjag/wikimedia)

In the case of Pfc. Bradley Manning, who is accused of releasing classified information to WikiLeaks, the government presented a motion during court proceedings today to prevent the defense from discussing “harm” or lack of “harm” done by leaks in its case.

The government’s motion (which no member of the press will ever get to personally read because these proceedings do not have that kind of transparency) argued Judge Col. Denise Lind should not let the defense raise the issue of harm until the sentencing portion of the trial because “actual harm or damage” is “not relevant” and lack of harm is “not relevant to any defense available.”

Maj. Ashden Fein argued “no element” of the charges against Manning require “actual damage to be proven.” He added: “Whether the accused knew or thought he knew which documents and information would cause actual harm to the United States is irrelevant to his specific acts for which he is charged.”

Fein invoked the case of Matthew Diaz, a lieutenant commander based at Guantanamo Bay who was accused of committing an unauthorized disclosure when he mailed a cut-up list of detainees at the prison to the Center for Constitutional Rights (CCR) in a Valentine’s Day card. Diaz was convicted in a court martial and his thoughts were, according to Fein, found to be “irrelevant” to the “mailing of information.”

The issue of “damage assessments” was also raised. The defense thinks this material is “relevant on merit.” But, the government does not think his “personal decisions on whether he thought a document would be classified” is relevant to the charges either. He was a “junior analyst,” not an “original classification authority (OCA).” He had no “authority” to make a decision to release the material nor did he bother to consult an OCA before providing the material (allegedly) to WikiLeaks. And, also, Fein said whether or not damage occurs today or tomorrow does not mean that some day there will not be “harm” from the unauthorized release.

Manning’s defense attorney, David Coombs, in arguing for the motion to be denied, stated the motion is “premature.” The defense has not “had the benefit of seeing damage assessment reports.” The “government has seen them” but has “fought vigorously to not provide” them to the defense. It is “difficult to argue relevancy on material we have not been able to see at this point.”

He reminded the court that the government has “repeatedly” said “damage assessment reports” probably would “show harm but will not let” the defense see the reports. This conduct leads the defense to believe these reports would show there was “no harm or very little harm.” Documents the defense has seen so far supports this claim. And, “when you look at fact alleged acts occurred over two years” ago and widely known no harm pointed to that public is aware of, it leads the defense to believe the reports would be “beneficial.”

Coombs then appeared to introduce an argument on Manning’s alleged acts that had not been fully aired in court yet: he suggested Manning was “selective in what he disclosed.” He had numerous documents at his fingertips. Only a few sets of documents were released, ones he “believed could not do damage to the US.”

“Manning had access to a great deal of information that undoubtedly could cause harm to US,” Coombs declared. Since he was “charged with having reason to believe that information could be used to injure US,” the “defense should be able to argue he knew which documents could be used to injury of the US” or against the country by foreign nations.

Coombs suggested the government wants to prevent the defense from discussing in open court whether “something could cause damage.” The government is “going to show classification and training.” The defense, he said, “should be able to look at classification and training to say he actually could select information that would not cause damage.” This would go to the issue of “overclassification, the fact that we classify a lot of stuff that should not be classified.”

Additionally, “the government must still be required to prove it was potentially damaging or useful.” It “does not get a free pass on establishing whether information by classification alone could cause damage or aid any foreign nation.”

Another aspect at issue here would be that discussion of “harm” would be “relevant to impeachment.” Not being able to raise “harm” means an OCA could testify on a database, claim improperly that it had references to “sources” and the defense would have issue cross-examining the OCA to challenge his or her claims.

Not surprisingly Fein came back and argued “it is not an individual soldier or anyone in the federal government’s” right to “make a decision” on whether a document or record should be classified or not.

Fein held up a document and acted out a scenario.

If this document was classified today and no one disputed it. Today, I am holding this document and then tonight I was to give to enemy of the US and it constitutes intelligence and I was to steal and commit a regulation violation…Knowing what I know today and then tomorrow no damage occurred, that somehow no damage occurred is somehow relevant to whether some time today I had classified documents that I had no authority…

…Tomorrow’s effect is relevant at the time of commission of the crime and what government is arguing is any damage that comes after requires mens rea therefore is irrelevant to actual charges and should be precluded to merits, not sentencing.

Coombs came back and bluntly said the “fact government does not believe actual harm is relevant on merits is interesting but is wrong.” It is “interesting” the “government would box in such way. What better proof than actual damage?” Why wouldn’t they want to argue that “at time of release not only could it cause damage but we now know it caused a lot of damage?

“That they would box themselves in indicates there is [or was] minimal damage,” Coombs concluded.

Essentially, the government is conceding there is no harm as a way to prevent the defense from viewing government records that likely show there was no harm found by agencies that did investigations. It is purely aimed at concealing what the government failed to uncover and prevent them from being exposed for shouting, “The sky is falling! The sky is falling!” hysterically when the releases by WikiLeaks posed absolutely no threat to US national security whatsoever.

Then-Defense Secretary Robert Gates claimed Afghan war logs would cause “significant harm.” (Later, he said there was “little harm” from the release.) Congress was warned of the potential for the release of US diplomatic cables to do harm. McClatchy reported officials were “overstating” danger posed by WikiLeaks releases. The hysteria, however, worked. It convinced Americans that WikiLeaks “harmed public interest” and did not contribute information that was of public interest. They decided WikiLeaks editor-in-chief deserved to be arrested.

Now that one to two years has passed and the government has no basis for their hysteria, this is their strategy, to advance a ploy that prevents the public from finding out the truth of what resulted in the aftermath of Manning’s alleged leaks.