Bradley Manning supporter outside gates of Fort Meade (photo: Save Bradley)

The defense for Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, has moved to stop the prosecution from preventing Manning from using evidence of “harm” as part of his defense. The move is in response to a motion military prosecutors filed in March that would block Manning’s defense from referencing key damage reports in court.

A motion filed by the defense, which is to be argued in court during the upcoming July 16 hearing, requests Judge Col. Denise Lind deny the prosecution’s motion because it is overly broad, evidence of harm (or lack thereof) would be relevant to the impeachment of witnesses, lack of harm goes to element of charged offenses and whether damage was caused or not could influence whether he was convicted of causing “injury” to the United States.

As the motion contends, the government has to prove whether Manning had “reason to believe” the “charged information could be used to the injury of the United States or to the advantage of any foreign nation.” That means they have to demonstrate he knew the information “could be used” for “prohibited purposes.” Members of the panel that hear Manning’s case should “be entitled to consider whether harm actually occurred, so as to test the reasonableness” of “Manning’s belief that this information could not cause damage to the United States.”

It shows a part of the defense’s legal argument will be that if Manning did leak the material, he did it selectively:

The Defense should be permitted to argue that, by virtue of his expertise and training, PFC Manning knew which documents and information could be used to the injury of the United States or to the advantage of any foreign nation. PFC Manning had access to a great deal of very sensitive information that, if disclosed, could have caused damage to the United States. By selecting the information that he allegedly did, PFC Manning deliberately chose information that could not cause damage to the United States. The reasonableness of his belief that the information could not cause damage is buttressed by the damage assessments which say that the leaks did not cause damage to the United States. In short, the Defense submits that the damage assessments confirm that PFC Manning did not have ”reason to believe” that the information could cause damage to the United States or be used to the advantage of a foreign nation. [emphasis added]

Manning’s defense lawyer David Coombs appeared to test this argument during a previous motion hearing in April. Then Coombs had not seen damage assessment reports from the Department of State, the Defense Intelligence Agency (DIA)/Information Review Task Force (IRTF), the Department of Homeland Security, and 25 of 63 governmental agencies that conducted a review for the Office of Director of National Intelligence (ODNI)/Office of the National Counterintelligence Executive (ONCIX). Military prosecutors were still successfully withholding this information.

According to the motion, the defense claims their suspicions have been confirmed. Assessments read include factual statements, such as “no sources were compromised because all sources were referred to by initials, not names.” The assessments also “contain qualified statements concerning possible harm from the release of the charged information. For example, “If X happens, then it could cause harm to our efforts to achieve certain outcome.”

The motion indicates the next flashpoint for struggle between the defense and prosecution will be over original classification authorities (OCAs), who made determinations whether leaked information could cause damage or not. The defense believes Manning has a Sixth Amendment right to cross-examine these witnesses and “precluding” the defense from exploring the “relevant area” of “harm” would violate that right. The prosecution, however, does not believe they have to prove Manning actually caused damage to national security.

To further address this issue, the motion includes a practical example. If a damage assessment revealed Afghan sources were not compromised in the leaks because they were referred to by initials and not by name, the defense should be able to cite information from the damage assessment to question government witnesses that might argue the release of the information (like the Afghanistan War Logs) caused damage. The defense should be able to ask the witness if he or she knew this and then “probe whether this new information” might “change the witness’s view that the information could cause damage.” Additionally, if the “damage assessment conducted one or two years after the alleged leaks concluded that the released information ‘could’ affect the mission in Afghanistan (not that it “did” affect the mission in Afghanistan), this is something the defense should be able to question the government witness “on the fact that, after a significant period of time had elapsed, the most that a damage assessment was able to conclude was that the information ‘could’ affect the mission in Afghanistan.

Such a cross-examination would make it difficult for the prosecutors to introduce speculative and possibly hysterical statements as fact:

The damage or injury that is contemplated under 18 U.S.C. Section 793 [Espionage Act] cannot be too remote or fanciful, or there is a risk that the section will be converted into a strict liability offense. Anything “could” happen – the world “could” end tomorrow; Kim Kardashian “could” be elected president of the United States of America; I “could” win the lottery. These are not the types of “could” that l8 U.S.C. Section 793 contemplates. Therefore, the Defense should be able to probe whether the witness’s testimony that the information could cause damage to the United States is remote, speculative, far-fetched and fanciful by examining such witnesses on the fact that two years after the alleged leaks, the conclusion is still merely that the information “could” cause damage – not that it “did” cause damage. [emphasis added]

Finally, the defense states the prosecution has informed them impeaching an OCA would be “improper.” The defense wonders, “Why is it improper to use actual ex post knowledge (whether derived from a damage assessment or not) to challenge the reasonableness or appropriateness of the ex ante classification decision which the Government relies on to show the documents could cause damage?” The motion adds, “If a doctor, for instance, were called to the stand to testify that a certain chemical “could” cause cancer and the doctor’s own hospital or the FDA had published a subsequent report saying that a link had not been established between the chemical and cancer, why could the Defense not use that subsequent knowledge to impeach the witness’s testimony that the chemical ‘could’ cause cancer?”

Or, stated succinctly in the motion, “An OCA’s opinion is not sacrosanct.” Classification alone does not necessarily determine whether the information could cause damage to the United States.

Since Manning’s Article 32 hearing (and before), the defense has struggled to get depositions from OCAs. They have been obstructed from using the expertise of OCAs in their case. And now that the judge has ordered the prosecutors to turn over key damage reports to the defense, the prosecutors are pressing this motion to only ensure they are able to convict Manning but to also ensure what the public does not know about the government’s response to WikiLeaks’ disclosures continues to remain secret.

The prosecutors have contended all along that no “actual damage” has to be proven. Military prosecutor Maj. Ashden Fein said in April, “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.” During the upcoming motion hearing on July 16, the matter will be decided in court and the defense may be significantly restricted from discussing what many in the public likely think was the key issue with Manning’s alleged leaks—that damage was supposedly done to US national security.