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January 08, 2013

Government Moves to Prevent Bradley Manning’s Defense from Discussing Over-Classification

Posted in: Secrecy,Whistleblowers,WikiLeaks

Cpt. Angel Overgaard, military prosecutor (Sketch by Clark Stoeckley)

The government argued two motions in the court martial of Pfc. Bradley Manning intended to constrain the defense from being able to discuss motive and over-classification of information.

Manning, who the military is prosecuting for allegedly releasing classified information to WikiLeaks, faces the following charge, which is an Espionage Act charge:

In that Private First Class Bradley E. Manning, US Army, did at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, without proper authority, knowingly give intelligence to the enemy, through indirect means.

He also faces the charge of  “wrongfully and wantonly” causing to be “published on the internet intelligence belonging to the United States government” and “having knowledge that intelligence published on the internet” would be “accessible to the enemy.”  The “enemy” as the government has defined in court is al Qaeda.

I’ll focus on the over-classification motion and address the motive motion in a future post.

Cpt. Angel Overgaard argued 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.

“Defense contends specific witnesses will say charged documents” were over-classified. 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 “irrelevant whether the charged information could be used to cause injury to the United States,” the government argued. Also, there is no evidence the accused “knew about any alleged over-classification and, therefore, that it had any impact on the accused’s intent.” The information “does not assist in explaining the circumstances in committing of the offenses” and should not be permitted in the trial or during sentencing.

David Coombs, Manning’s defense lawyer, responded to the government motion by noting whether Manning had “reason to believe could be used for prohibitive purposes”—like to injure the US—made discussion of over-classification relevant. Whether charged information related to the national defense made discussion relevant too.

Coombs read the court’s instruction, which say the court is to consider “whether the accused knew facts from which he concluded or reasonably should have concluded” that the information could be used to the injury of the US or to the advantage of a foreign nation. The nature of the information may be considered; in this case, that means whether the information is national defense information or classified information.

The judge was skeptical. Coombs told Judge Army Col. Denise Lind that it would be better if the court waited to hear all the relevant testimony before making determinations on this motion. The reason why she was skeptical was because the motion aims to obstruct the defense from making a key part of its case by eliciting testimony from certain witnesses.

For example, Coombs said Col. Morris Davis, a former chief prosecutor for the Guantanamo military commission, reviewed detainee assessment briefs and would be willing to testify that the information “could not be used to harm the United States.” They contained only general background information. And, between 2006 and 2007, the US released the names of all the detainees. Documents on Combatant Status Review Tribunals that looked at the status of all these detainees were released under FOIA.

The detainee assessment briefs “had much if not all the information contained in briefs” and they did not need to be classified.

The military judge wanted to know how Davis’ testimony would be relevant to “what the accused believed.” Also, she suggested Davis would be “second guessing OCAs.” How was he in a position to offer expertise?

Coombs argued Col. Davis had “specialized knowledge, skill and training on how briefs were used.” His testimony would support the “reasonableness of Manning’s belief” that release of the information would not cause injury to the US.

He took a moment to call out the government for suggesting Manning would not know about the problem of over-classification.

“The problem of over-classification been a widely reported problem in government since the 1970s ,” Coombs said. How could it not be an issue of which a 35FOX intelligence analyst was cognizant? Only recently were the Pentagon Papers declassified, even though they had “been in the air for decades.”

Coombs also said there are “way too many OCAs.” The number “exploded in the 1990s.” People were classifying things left and right. “Even in this hearing, he added, “We’ve got exhibits that are classified for twenty-five years” just because it contains a word or phrase the government wants to keep concealed. (The government has made this decision, not an OCA.)

As the judge continued to press him, Coombs argued evidence of over-classification would simply put OCA opinions into context. It would be relevant if the defense wanted to impeach an OCA for bias, since most OCAs would want to keep documents classified and exaggerate harm. If he was able to call former US Ambassador Peter Galbraith to the stand to address the US State Embassy cables, the defense could show the government not only over-classifies but also keeps information classified too long.

The government would like to have a trial where the OCAs have the final say on the nature of the information Manning is charged with leaking. They do not want the government’s disease of secrecy to highlighted during Manning’s trial. But, if the government is able to put up an OCA to argue that charged information was national defense information, the defense should be able to put a witness on the stand to argue the opposite.

Precluding discussion also is a shrewd maneuver to make it difficult for the defense to present argument that certain information was not “intelligence.” As suggested above, there are witnesses the defense wishes to call to the stand to show information was not “intelligence.” It would not be “helpful to the enemy.” The defense hopes to make the argument that Manning selected information he believed would not injure the US. However, the government would like to be able to arbitrarily and perhaps even retroactively designate charged documents as “intelligence,” even if they are not so they can successfully prosecute Manning to the fullest extent.

This is an unprecedented case. Historically, cases of “aiding the enemy” have always involved individuals going to the “enemy” and physically handing over information. There were some Civil War-era cases where people published newspaper stories with codes that the “enemy” could read and those individuals were prosecuted. But there has never been a case like this where a soldier allegedly handed over information to a media organization.

That said, the judge will eventually have to determine what WikiLeaks is or is not. The government clearly regards WikiLeaks as information terrorism or an entity that is capable of greatly benefiting US enemies. It wishes to address it differently than the New York Times or Washington Post. On the other hand, the defense holds the view that WikiLeaks is an organization that seeks to serve a role similar to the Times or Post. By allowing Manning to be convicted of this charge of “aiding the enemy,” the government is trailblazing a path for future prosecutions of members of the military or government employees for making it possible for news organizations to publish information on national security matters online.

Such a path—if successfully created—would make it considerably easier to prosecute whistleblowers for “unauthorized disclosures” of information, whether the information is classified or not.


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