Bradley Manning supporters hold vigil at gates of Fort Meade (Photo by Clark Stoeckley)

A military judge granted a government motion and ruled the defense could not argue motive during the trial of Pfc. Bradley Manning, the soldier being prosecuted by the military for releasing classified information to WikiLeaks.

The decision, which is not available to the press or public, found the defense would not be able to discuss whether Manning had “good faith” when presenting argument on charges that he “wrongfully and wantonly cause[d] to be published on the internet intelligence belonging to the United States government,” or for charges where the government only has to prove Manning had “reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation.”

However, Judge Army Col. Denise Lind determined the defense could raise such evidence when addressing the “aiding the enemy” charge in order to prove he did not know passing information on to WikiLeaks would result in “dealing with the enemy.”

During argument over this motion at a previous hearing, the defense had expressed how it wanted to be able to argue Manning had the motive to “select information he believed could not be used by the enemy to harm the US.” The defense hoped to raise these subjective conclusions in court during trial. This evidence could be used during argument on the charges under the Espionage Act to show whether it was “objectively reasonable” that he should have known or had “reason to believe.” It would have made “evidence of actual harm as documented in damage assessments” relevant during trial. But the judge found Manning’s subjective conclusions were “immaterial.” Whatever his high-mindedness might have been could not be raised during proceedings.

In other words, the question during trial will not be about what Manning believed but rather what is objective. What would an objective person know about classified information that would be kept secret for twenty-five years?

Generally, motive is not admissible until sentencing. The charges against Manning were written in such a way to limit the defense’s ability to argue motive or intent in open court. As the prosecutor said during argument, there’s no “bad faith motive” element in the charges that the government has to prove.

The decision by the judge also effectively blocked the defense from having an avenue to highlight damage assessment reports from agencies during trial. Consistent with a previous July 2012 ruling on a government motion precluding the defense from discussing “harm,” she determined he could not have known what measures agencies of government would have taken to mitigate damage so such evidence was not relevant.

Military prosecutor Maj. Ashden Fein argued previously in July harm was not relevant because, if damage occurred, it would have happened “after the fact.” Manning would have had to have known that the damage would have happened (or not happened) for any discussion of harm to be relevant. Coombs contended it would be relevant to whether he had the “honest belief” that the information could cause harm. Coombs expressed concern that the government would get to discuss information that Manning allegedly released in a “vacuum.” (Note: The exact text of the judge’s ruling on this also remains secret.)

What does this mean for the defense? The Bradley Manning Support Network has expressed concern that this will make it impossible for his “whistleblower motive” to be raised during trial.

Jesselyn Radack of the Government Accountability Project wrote:

…In the pretrial proceedings for the court martial of alleged WikiLeaks source Army Pfc. Bradley Manning, the judge (Army Col. Denise Lind) ruled that prosecutors will have to prove that Manning knew he was indirectly providing information to the enemy (in this case, Al Qaeda and bin Laden) when he disclosed information to WikiLeaks. This is different than the heightened proof requirement in which the government must show that he intended to harm the United States and benefit a foreign nation.  But at least it’s a step closer to the spirit of what Judge Ellis required to prove espionage–as it should be when the government makes incendiary allegations of “aiding the enemy,” and being an “enemy of the state” against an American. [emphasis not added]

In 2009,  Judge T.S. Ellis III “grafted” an intent requirement onto the “notoriously vague and ambiguous World War I-era Espionage Act in order to keep it constitutional.”

As Radack added, “Flash forward to the Espionage Act case against my client, CIA whistleblower John Kiriakou, for disclosing the identity of two CIA officers involved in the torture program.  In his case, Judge Brinkema issued a fatal ruling on the critical issue of ‘intent to harm’–namely that prosecutors need not prove that Kiriakou intended to harm the United States or benefit a foreign nation. Her reasoning was due to the fact that Kiriakou learned the information he disclosed when he was a government employee, not in the private sector.”

This may be true except the judge cited the US v. Kiriakou in her ruling to justify holding fast to the fact that the government only has to prove Manning had “reason to believe.” She already ruled Manning’s defense could not discuss intent to harm. Motive evidence can be raised during sentencing, but by then he will have been convicted of charges. They are serious charges so it is unlikely any motive evidence would reduce a sentence significantly after conviction.

The one silver lining in the ruling for the defense is a small detail that became obvious earlier this month: the government cannot keep intent, motive and knowledge evidence straight. If they could convince a judge, they would just have the judge find all this evidence to be irrelevant. The military prosecutors are working diligently to prosecute Manning as if they have an Official Secrets Act to support their action. Some of what the judge prohibited from being raised as motive evidence may potentially be worked in when discussing Manning’s knowledge.
Finally, though seemingly minor, the citation of the Kiriakou case was remarkable because it shows the government is already benefiting from the first successful conviction of a government employee in a “leak” case under the administration of President Barack Obama. The judge aided the government in that case making it easier for the government to convict him. The goal is the same with the case of Bradley Manning: pursue innovative legal arguments to hopefully push the judge to hand down a decision that will give the government more power to go after alleged leakers.