UPDATE – 1:08 PM EST The prosecution made it clear it does not want specific details on damage that occurred to become public during Manning’s trial. All evidence presented of individuals killed, diplomats put at risk, IED attacks made possible, damage to diplomatic relations (like deals that fell through), etc, will not be part of the public record of the case if the government has its way.
UPDATE – 1:05 PM EST The government intends to call 141 witnesses during merits and sentencing. Of 73 witnesses, it intends to elicit some form of classified evidence. There are ways to keep the proceedings open: silent witness rule, code words, screen displays, a syllabus or legend, declassification, redactions, etc. For 4 “unique witnesses”—including a John Doe involved in the Osama bin Laden raid—a closed session was necessary for testimony. For 34 witnesses, there is no meaningful alternative, Fein claimed, to court closure. Without closing proceedings, it would be hard for the court to understand the testimony.
UPDATE – 1:00 PM EST Military prosecutor Maj. Ashden Fein said 30% of the merits portion of the trial should be closed to protect classified evidence. Fein said this was “very little” of the trial. The judge asked, “The government considers 30% very little?” Fein responded by saying a line that the judge said multiple times in her speedy trial ruling: “The volume of classified information” in the case would justify the closure.
UPDATE – 12:25 PM EST The judge mostly granted the government motion to preclude evidence of over-classification. Evidence of classification is “not relevant” to alleged Espionage Act or Computer Fraud and Abuse Act charges. There is “no nexus between over-classification and information allegedly communicated in case.” Allegations relate to whether the information was “national defense information” and whether it was “closely held.” However, “evidence that communication was closely held” can only go to whether it should be closely held and not that it was closely held. In other words, the judge said the defense cannot present evidence the government wasn’t protecting the information properly. Yet, it can rebut with evidence that some of the information in the material was already lawfully available to the public, however, it may not matter because it was marked “classified.”
A second day of proceedings in a motion hearing in the court martial of Pfc. Bradley Manning will be taking place at Fort Meade in Maryland this morning.
The judge is expected to issue a ruling on the government’s motion to preclude evidence of overclassification—rather, that the information Manning released was publicly available information and remained improperly classified.
As reported when the prosecution argued the motion, Cpt. Angel Overgaard asserted discussion of over-classification should be precluded because general statements of over-classification have no bearing on whether information has been correctly charged. If the defense was able to make arguments on overclassification, “All holders of classified information could question classification and the whole system would, in fact, fold.” The secrecy state would collapse.
“Defense contends specific witnesses will say charged documents” were over-classified, she added. This is irrelevant unless the individuals are original classification authorities (OCAs)—individuals responsible for making determinations on the classification of the charged documents. It is also “irrelevant whether the charged information could be used to cause injury to the United States,” the government argued. And, there is no evidence the accused “knew about any alleged over-classification and, therefore, that it had any impact on the accused’s intent.”
Manning’s defense lawyer, David Coombs, countered and argued if Manning had “reason to believe” the information “could be used for probative purposes”—like to injure the US, the discussion of over-classification is relevant. Whether charged information related to the national defense made discussion relevant too.
Coombs also suggested the nature of the information may be considered; in this case, that means whether the information is national defense information or classified information. Coombs told Judge Army Col. Denise Lind it would be better if the court waited to hear all the relevant testimony before making determinations on this motion.
The defense would like to put Col. Morris Davis, a former chief prosecutor for the Guantanamo military commission, on the stand because he reviewed detainee assessment briefs Manning is alleged to have released (“Gitmo Files”). Davis can testify the information “could not be used to harm the United States.” The briefs contained only general background information. Also, between 2006 and 2007, the US released the names of all the detainees under the Freedom of Information Act in documents on Combatant Status Review Tribunals that looked at the status of detainees.
If the judge grants the motion, the defense will be significantly hampered because Davis’ testimony might not be allowed during trial or even sentencing.