The defense for Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, has compared the United States government’s effort to preclude the defense from referencing information in damage reports to a similar tactic that the government attempted in the case of Thomas Drake, a National Security Agency whistleblower.

A reply motion arguing the defense should be able to raise the issue of “harm” (or lack thereof) during Manning’s trial mentions the fact that the government tried to “preclude the evidence during the merits” in the Drake case. As the defense characterizes the case, the court was not willing to “foreclose a potential line of argument, especially given that the court had the inherent power to control the courtroom.” The court declared:

THE COURT: — but my point is that, to preclude them from going down that path, I think, essentially prevents them from presenting a defense, that we can control the matter of whether or not there is reference to necessity or justification, and I’m fairly confident I’ll be able to control the courtroom to do that. It’s just a matter of where else we go with this motion, and it seems to me they’re certainly entitled to get into this.


THE COURT: As I interpret the Government’s motion. or as I intend to interpret it, it doesn’t mean that that evidence is — although the Government seems very concerned with it amounting to a higher calling, necessity, or justification defense, I’m fairly confident that I can keep this case on track to correct you if you happen to make an inadvertent mistake in that regard, but you’re certainly free to have at that in terms of the intent element, and that’s how I see it.

Transcript of Record at M-100, M-703, United States v. Drake, No. RDB-10-181 (D. Md. Mar. 31,201 l)

Similarly, the defense says Manning should be able to try and prove that he “knew which documents and information could be used to the injury of the United States or the advantage of any foreign nation.” And the court should “conclude that PFC Manning is entitled to use information and conclusions from the damage assessments.”

When the government was put on the spot during the June motion hearing for withholding evidence from the Federal Bureau of Investigation, Thomas Drake reacted saying something similar had happened in his case. There had been “egregious withholding of exculpatory information & discovery favorable” to his defense. He, too, had asked for “damage assessments” in his Espionage Act case, because the government accused him of endangering the lives of soldiers and the government would not produce the assessments.

For more on the defense’s argument for why it should be able to discuss “harm,” go here. For a live blog on Day 2 of Bradley Manning’s latest motion hearing, go here.