A military prosecutor in the court martial of Pfc. Bradley Manning argued before a military judge the defense should not have access to a Defense Department “operator” they intend to call during trial. The “operator” was part of the team that raided Al Qaeda leader Osama bin Laden’s compound in Abbottabad, Pakistan, and the government wants to keep his identity concealed.
The “operator” is being referred to as Mr. John Doe. Military prosecutor Maj. Ashden Fein informed the judge they would like Mr. Doe to testify under a pseudonym. They would like to limit the defense’s ability to cross-examine him for discovery because “that could reveal his true identity.” They would like to limit discovery and cross-examination on the mission where bin Laden was killed and the execution and training that led to the mission. They
Defense lawyer David Coombs, who is representing Manning, opposes this move by the government. He claimed there is no prior case that supports imposing these kind of restrictions on access to the witness. “Manning has a Sixth Amendment right to confront and thoroughly cross-examine any government witness,” Coombs asserted.
The government would like the defense to get to a closed session during trial when Mr. Doe takes the stand and not have a prepared cross-examination that could challenge his testimony. This means they may have no knowledge of whether he has memory issues, whether Mr. Doe has made untruthful statements before or whether has made statements that have made it to the press, which might support an argument that some of his testimony could be given in open court.
On February 27, the government revealed they would be eliciting testimony from this “operator,” an individual who is likely a SEAL who seized the digital media that was found to contain copies of documents published by WikiLeaks. The government would like to have at least five other witnesses on the stand to testify about the chain of custody: how the evidence was given to someone in Afghanistan then to an FBI agent who went to Quantico and then passed it on to a forensic examiner.
It has been known since January that the government intends to use “digital media found during the UBL raid” to argue that Manning “aided the enemy.” There was apparently a “letter from UBL to Al Qaeda requesting a member gather [Defense Department] information.” A response to that letter had CIDNE reports—war logs from Iraq and Afghanistan—and State Department cables attached. Bin Laden had these in his possession “at the time of the raid.”
The defense made their argument against how the government has handled Mr. Doe in open court. He commented that the raid had been “well-documented.” He doubted whether there was classified information that needed to continue to be protected because the movie, Zero Dark Thirty, had been released, a book by a SEAL involved in the raid was written and various government officials had made public statements about what happened during the course of the raid.
When Coombs raised this aspect, Fein became livid and said, “Just because a book is written by an individual,” doesn’t mean the government cannot protect him. He was upset the defense was making an argument they could not rebut because they would have to discuss details that were sensitive or classified.
“On that point, I think the President of the United States has acknowledged it,” Coombs stated. The judge asked if the government’s position was the raid had not been acknowledged. Fein said, “The President did announce the raid had occurred,” but “who went on the raid is not necessarily public knowledge.”
“There has been a book about it,” Coombs explained. “And there’s been a movie about it detailing the raid.” The government “should have to, in a filing” to the court, outline what aspects are still classified.
Fein continued to be irate, “The defense is trying to substantiate that a book by a citizen of the United States,” and a movie not made by the government means the government cannot protect information. In response, Coombs said that was not his position. His position is they should outline what is still classified and then that forms a boundary for what the defense cannot ask Mr. Doe about in a pretrial interview.
Documents released under the Freedom of Information Act show the White House, CIA and Defense Department cooperated specially with director Kathryn Bigelow and screenwriter Mark Boal, filmmakers behind the Oscar-nominated movie Zero Dark Thirty. An email from CIA spokesperson Maria Harf included the following, “I know we don’t pick favorites but it makes sense to get behind a winning horse … Mark and Kathryn’s movie is going to be the first and the biggest.” A June 15, 2011 email indicated, “Boal has been working with us and with the CIA (via George Little) for initial context briefings – at DoD this has been provided by [Under Secretary of Defense for Intelligence Michael Vickers], and at CIA by relevant officials with the full knowledge and full approval/support of Director Panetta.”
Peter Bergen wrote, Manhunt, and produced a documentary that recently premiered at Sundance. The Finish: The Killing of Bin Laden, has been written by Mark Bowden. David Sanger, a New York Times journalist, wrote Confront & Conceal, which extensively detailed the raid on bin Laden’s compound in his book.
Claiming classified information privilege is purely exploitative. The Obama administration and other government agency employees have been more than willing to discuss when they think coverage will make them look good.
The government can have legal counsel sit in on pre-trial interviews and stop the defense from asking questions it thinks the defense does not have a right or privilege to ask. The defense should be able to figure out—how the items were found, what condition the items were in when found, if he was the only person that collected the digital media, etc. But the government does not want the defense to challenge this effort to inject bin Laden and terrorism into the trial of Bradley Manning.