Many of the trial’s crucial issues won’t be hashed out until the sentence phase—and the press and public may be shut out, reports Alexa O’Brien.
Fort Meade, Maryland—As the defense and the prosecution rested their cases in the largest leak trial in American history, the defense argued Monday that the presiding military judge, Col. Denise Lind, should dismiss “aiding the enemy” and other serious charges against Pfc. Bradley Manning, the soldier who uploaded hundreds of thousands of diplomatic cables and U.S Army reports to the organization WikiLeaks, which published the material online in 2010.
Prosecutors failed to present evidence that Manning had the requisite knowledge that al Qaeda or the enemy used WikiLeaks, argued civilian defense counsel, David Coombs, on Monday. Anything less than actual knowledge would set a dangerous precedent for a free press, he said, because military prosecutors have already stated that they would have charged Manning similarly had the organization beenThe New York Times and not WikiLeaks.
Lind, the chief judge of the U.S. Army’s First Judicial Circuit, ruled Monday that she would allow the prosecution to rebut the defense case that WikiLeaks was a respected journalistic organization at the time of the charged offenses, and that Manning had a “noble motive” to inform the public, as the defense has asserted. Prosecutors intend to recall their lead forensic expert to discuss emails to members of the press as well as WikiLeaks tweets found on digital media belonging to Manning. Prosecutors also intend to call another member of Manning’s brigade to testify that the accused told him in May 2010 that “I would be shocked if you are not telling your kids about me in ten to fifteen years from now.”
Manning, who was arrested in May 2010 and spent an unprecedented 1,101 days in confinement before his trial began last month, is charged with 22 crimes. Despite hisplea to 10 lesser included offenses carrying a sentence of up to 20 years, the government has pressed ahead on 21 of the charged offenses, which include aiding the enemy, espionage, stealing government property, and “wanton publication,” which could leave the 25-year-old facing life plus 149 years in a military prison if convicted.
Manning has opted to be tried by military judge alone, and not a panel of officers and enlisted personnel. After the closing arguments that follow the prosecution’s rebuttal case, Judge Lind will deliberate and announce her findings. Unlike in a federal criminal case where sentencing commences after the completion of a pre-sentencing report, if Manning is convicted, a sentencing case will begin immediately.
During the sentencing case, both defense and the prosecution will present evidence, call witnesses, and make arguments about appropriate punishment. The maximum sentences are outlined in the Manual for Courts-Martial and the judge’s previous court rulings.
While probation is not possible for an accused in a military court-martial, the “general convening authority,” Maj. Gen. Jeffrey Buchanan, the commander of the Military District of Washington, can dismiss Lind’s guilty findings and reduce Manning’s sentence. The general convening authority, however, cannot reverse a finding by Lind of not guilty or increase his sentence.
On Monday, Coombs referenced the testimony of a government witness from the U.S. Army Counterintelligence Center, which published a 2008 report on WikiLeaks titled “Wikileaks.org—An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?” saying, “The US Army did not know if the enemy went to WikiLeaks … but they want to ascribe that knowledge to a junior analyst.”
In a historic elocution in court last week, Prof. Yochai Benkler, co-director of theBerkman Center for Internet and Society at Harvard Law School, told Lind that “the cost of finding Pfc. Manning guilty of aiding the enemy would impose” too great a burden on the “willingness of people of good conscience but not infinite courage to come forward,” and “would severely undermine the way in which leak-based investigative journalism has worked in the tradition of [the] free press in the United States.”
“[I]f handing materials over to an organization that can be read by anyone with an internet connection, means that you are handing [it] over to the enemy—that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world, becomes automatically aiding the enemy,” saidBenkler. “[T]hat can’t possibly be the claim,” he added.
Benkler testified that WikiLeaks was a new mode of digital journalism that fit into a distributed model of emergent newsgathering and dissemination in the Internet age, what he termed the “networked Fourth Estate.” When asked by the prosecution if “mass document leaking is somewhat inconsistent with journalism,” Benkler responded that analysis of large data sets like the Iraq War Logs provides insight not found in one or two documents containing a “smoking gun.” The Iraq War Logs, he said, provided an alternative, independent count of casualties “based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences.”
Manning was charged with the unauthorized possession and willful communication of an unclassified video of a 2009 U.S. bombing in the Farah province of Afghanistan that killed at least 140 women and children. It was the only offense under the Espionage Act that he did not plead to a lesser included offense. He pleaded not guilty, and WikiLeaks never published such a video.
The Garani-airstrike video is central to the prosecution’s theory of its case connecting Manning to an ongoing federal criminal investigation of WikiLeaks and its founder, Julian Assange. (Assange, who has spent over a year inside the Ecuadorian Embassy in London to avoid the prospect of extradition to the U.S., has emerged in recent weeks as a crucial ally to Edward Snowden, the NSA whistleblower who left America before sharing with journalists at The Guardian andWashington Post highly classified documents about the spy agency’s vast collection of information about Americans and others.) But in the second week of the trial, the lead forensic examiner from the Army Computer Crimes Investigative Unit (CCIU)testified that he found “no connection” between Manning and an individual investigated by the FBI for allegedly attempting to decrypt the charged video.
Much of the trial, and the pretrial hearings that led up to it, have been conducted inmanaged obscurity. Judge Lind and the U.S. Army denied public access to over 30,000 pages of pretrial court documents in the 18 months preceding the trial, before the U.S. Army released roughly 500 pretrial records on the third day of Manning’s trial.
Even the unofficial contemporaneous transcripts of open sessions provided and published at their own expense by the Freedom of the Press Foundation do not contain the information hidden by the government underneath the black redactions of classified stipulations from eight Department of State witnesses concerning 117 charged cables.
When the director of the counterespionage division at the Defense Intelligence Agency, Dan Lewis, testified in a closed session away from the public earlier this month, aluminum-foil wrap and carpeted poster board covered the courtroom windows to prevent anyone from picking up sound vibrations from his testimony on their surface.
Since the court ruled that motive and actual damage (or “lack of damage”) evidence was not relevant at trial (except to prove circumstantially that Manning was cognizant of the fact that the enemy used the WikiLeaks website), evidence of Manning’s intent and the impact of the leaks will finally be heard by the court at sentencing. It remains to be seen, however, how much of the sentencing phase of this trial will be open to the public, since the government is expected to elicit testimony from 13 classified sentencing witnesses in closed sessions or in classified stipulations for their sentencing case.
In late May, the prosecution noted that three classified damage assessments would be used as evidence at sentencing. Two of the damage assessments from the Defense Intelligence Agency’s (DIA), Information Review Task Force (IRTF), and the Office of the Counterintelligence Executive (ONCIX) are known to be in the form of classified summaries.
While an accused has a right to see evidence used against him at trial, military prosecutors did not want Manning to have access to the original damage assessments. The form of the third damage assessment is unknown, but defensestipulated that if the third damage assessment was in its original form, only defense counsel would have access to the original. Manning would not.
The third damage assessment is likely from the Department of State, although prosecutors produced for the defense an FBI impact statement and two CIA damage assessments (including one from its WikiLeaks Task Force during the pretrial.
One month after Manning was arrested in Iraq in 2010, then–Secretary of Defense Robert Gates ordered the director of the DIA, Ronald Burgess, to assemble an IRTF to lead a comprehensive review of the documents allegedly disclosed to WikiLeaks in order to “make determinations about whether or not any TTPs [tactics, techniques, and procedures] [had] been exposed, and whether or not any adjustments need[ed] to be made, in light of that exposure,” according to then–Pentagon press secretary Geoff Morrell.
The task force—led by counterintelligence expert Brig. Gen. Robert Carr— was made up of 80 people including intelligence analysts and counterintelligence experts from the DIA; U.S. Pacific Command; U.S. Central Command; and the Under Secretary of Defense for Intelligence, which is responsible for managing the ongoing Department of Defense investigation into WikiLeaks. Other interagency partners included the FBI and the Army Criminal Investigation Command. Carr will testify for the prosecution at sentencing in a closed session or classified stipulation, as will two other individuals from the DIA: Col. Julian Chestnut and John Kirchhofer, who holds the civilian rank of defense intelligence senior level for counterintelligence and human intelligence.
In mid-summer 2010 the Department of State began working with the IRTF to “review any purported State material in the release and provide an assessment, as well as a summary of the overall effect the WikiLeaks release could have on relations with the host country,” said Ambassador Patrick Kennedy, the under secretary for management at the Department of State, when he testified before the Senate Committee on Homeland Security and Governmental Affairs in March 2011.
By the end of the summer of 2010, the IRTF had gone through 70,000 documentsalready published by WikiLeaks. According to an early pretrial defense filing, the IRTF concluded “that all the information allegedly leaked was either dated, represented low-level opinions, or was commonly understood and known due to previous public disclosures.”
At that time, Gates wrote a letter to the chair of the Senate Armed Services Committee, Sen. Carl Levin, stating that the initial assessment of the IRTF “in no way discount[ed] the risk to national security; however, the review to date ha[d] not revealed any sensitive source and methods comprised by this exposure.”
Last week, the defense tried to establish through Benkler’s testimony that “overwrought” and “shrill” rhetoric by government officials in the wake of the WikiLeaks releases was responsible for driving the enemy to the WikiLeaks website. The government’s response, said Coombs, is what changed WikiLeaks from being a “legitimate journalistic organization” to a “terrorist organization.”
ONCIX, which is part of the Office of the Director of National Intelligence, together with the Information Security Oversight Office, which is responsible for oversight of the government-wide classification system, led a separate review of how federal agencies handled classified information in the wake of the 2010 WikiLeaks disclosures.
The ONCIX damage assessment was the result of a November 2010 memo by Jacob Lew, director of the Executive Office of Management and Budget, titled “WikiLeaks Mishandling of Classified Info.” The memo was addressed to the heads of every federal agency requiring that they assemble mitigations teams to conduct internal reviews of “security practices with respect to the protection of classified information” at their agencies.
A subsequent questionnaire required these mitigation teams to audit among other items whether agencies “capture evidence of pre-employment and/or post-employment activities or participation in on-line media data mining sites like WikiLeaks or Open Leaks.”
The WikiLeaks Mitigation Team at the Department of State was one of the working groups established in response to then–OMB Director Jack Lew’s directives in November 2010 and January 2011. That team reported to Ambassador Patrick Kennedy, who is also expected to testify for the prosecution in a closed session or classified stipulation during the sentencing phase of Manning’s trial. Kennedy is the original classification authority for the 117 charged diplomatic cables, and Diplomatic Security Services that partnered with the Departments of Defense and Justice in the investigation of Julian Assange, WikiLeaks, and Manning report directly to him.
The director of Counterintelligence and Consular Support in the Bureau of Intelligence and Research (INR) was responsible for authoring the August 2011 Department of State “draft” damage assessment. In June 2012, Assistant Secretary for INR Catherine Brown testified that she edited the Department of State damage assessment and reported directly to Kennedy.
The government’s response, the defense argued, is what changed WikiLeaks from being a ‘legitimate journalistic organization’ to a ‘terroristic organization.’
The author of the Department of State damage assessment is also the agency’sprimary liaison with the FBI, a partner in the ongoing multiagency investigation of WikiLeaks.
It was Kennedy who testified before the Senate Committee on Homeland Security and Governmental Affairs in March 2011 about what steps the Department of State took in response to the WikiLeaks publication of diplomatic cables. Kennedy alsotestified to Congress in late November and early December of 2010.
A congressional official, who was briefed by the Department of State at that time, told Reuters that “the administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers.”
Reuters reported that internal reviews said that the release of diplomatic cables and “tens of thousands of military field reports from Iraq and Afghanistan” had “caused only limited damage to U.S. interests abroad, despite the Obama administration’s public statements to the contrary.”
“We were told [the impact of WikiLeaks revelations] was embarrassing but not damaging,” a congressional aide told Reuters.
In addition to Kennedy, Ambassador Michael Kozak, whose bureau was responsible for standing up the WikiLeaks Persons at Risk Group, will also testify in a closed session or by classified stipulation, as will Principal Deputy Assistant Secretary for the Bureau of Near Eastern Affairs Elizabeth Dibble and Principal Deputy Assistant Secretary for the Bureau of Western Hemisphere Affairs John Feeley.
Since January 2011, Alexa O’Brien has covered the WikiLeaks release of US State Department Cables, JTF memoranda known as the ‘GTMO files’, revolutions across Egypt, Bahrain, Iran, and Yemen, as well as the prosecution of Bradley Manning and the US investigation into WikiLeaks. She has interviewed a preeminent US foreign policy expert on the Cambodia cables, and published hours of interviews with former GTMO guards, detainees, defense lawyers, and human rights activists, as well as WikiLeaks media partners: Andy Worthington, a GTMO historian and author, and Atanas Tchobanov, the Balkanleaks’ spokesman and co-editor of Bivol.bg.
As a result of her work covering the Global War on Terror; the 2011 revolutions across the Middle East and North Africa; and her extramural activities helping to organize the original occupation of Wall Street in New York and five other American cities on September 17, 2011, the U.S. Government and private security contractors attempted to falsely link her and a campaign finance reform group, which she helped found to Al Qaeda and ‘cyber-terrorists’.
She subsequently became party to a lawsuit brought against the Obama administration for Section 1021(b)(2) of the National Defense Authorization Act FY2012 with author Chris Hedges and five other plaintiffs. Section 1021(b)(2) allows for the indefinite detention without trial or charges of anyone, who by mere suspicion alone are deemed by the Executive to be terrorist sympathizers.
Her testimony and submissions were central to U.S. District Judge Katherine Forrest’s ruling granting a permanent injunction on Section 1021(b)(2). In June, the 2nd Circuit is expected to rule on the Department of Justice’s midnight appeal of Forrest’s September 2012 injunction.
For a year and a half, she has produced the only available pre-trial transcripts of Manning’s secret prosecution. She has provided some of only analysis available on his case, a forensically reconstructed appellate exhibit list, witness profiles, and a searchable database of the available court record.
Because of her familiarity with the proceedings and investigative work, she has been able to ‘un-redact’ a selection of court documents.
She was awarded a generous grant by the Freedom of the Press Foundation for her work covering Bradley Manning’s trial, and her work there was shortlisted for the 2013 Martha Gellhorn Prize for Journalism.
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Almost three years ago, when Goldman Sachs Group Inc. (GS) paid $550 million to settle fraud accusations by the Securities and Exchange Commission, one of the claims was that Goldman misled the bond-insurer ACA Financial Guaranty Corp. in a horribly complex deal named Abacus.
Goldman settled without admitting to the accusations. The terms also prohibited Goldman from denying the SEC’s allegations in its public statements. Then, this week, a funny thing happened. A New York state appeals court, in a 3-2 ruling, dismissed ACA’s lawsuit against Goldman. ACA said Goldman misled it. The court said the insurer’s claims didn’t hold up.
The case captures perfectly why much of the public detests “neither admit nor deny” regulatory settlements. We don’t know whose facts to believe. Without trials or admissions of liability, the government’s allegations remain unproven. Sure, Goldman paid a big fine. That doesn’t establish anything. For all we know it paid the money just to make the SEC go away.
The result is surreal: Goldman still isn’t allowed to deny the agency’s claims that it misled ACA. However, a court has thrown out ACA’s claims that Goldman did, in fact, mislead it.
To make matters more confusing, there may not be anything factually inconsistent between this week’s court ruling and the SEC’s earlier allegations. To win a fraud suit as a private litigant, ACA needed to show that it justifiably relied on Goldman’s misrepresentations. (The court said the insurer failed this test.) The SEC, by contrast, doesn’t have to prove that an investor relied on a defendant’s misstatements. Plus, the SEC said Goldman defrauded multiple parties, not just ACA.
Let’s back up a bit. Abacus was a financial product known as a synthetic collateralized debt obligation. The SEC’s suit accused Goldman and a junior executive, Fabrice Tourre, of making false and misleading statements to investors about the deal, which the SEC said was designed to fail.
Goldman’s main offense, allegedly, was telling a German bank that ACA had picked the mortgage-related investments underlying the deal — when actually the selection process was heavily influenced by a hedge fund, Paulson & Co., which later made $1 billion betting against Abacus. As part of its SEC accord, Goldman said it was “a mistake” not to disclose Paulson’s role, but it didn’t admit violating the law.
Echoing the agency’s allegations, ACA accused Goldman of misleading it into believing that Paulson would take a long, or bullish, position in the equity portion of Abacus, aligning it with ACA’s interests. In its majority opinion, the appeals court said it dismissed ACA’s claims because “such misrepresentations were specifically contradicted by the offering circular’s disclosure that no such equity position was being taken.”
In other words, ACA should have known Paulson wasn’t long when the insurer sold credit protection on a $909 million slice of the deal in 2007. ACA had acknowledged in writing that it wasn’t relying on any representations other than those in the circular and in written agreements, the court said. ACA said it will appeal this week’s ruling. The company is being wound down and isn’t writing new policies.
Although Goldman settled with the SEC, Tourre, 34, is still fighting the agency. He’s now pursuing a doctorate in economics at the University of Chicago. Should his case ever go to trial, we may find out what really happened here.
The usual criticism of “no admit” settlements is that they suggest the government is soft on corporate crooks. No doubt this is often true. But there is also a flip side. Settling without admissions of liability may tempt regulators to pursue weak cases, knowing that some defendants would rather write a check than spend years battling in court.
This week, U.S. Senator Elizabeth Warren asked this question in a letter to SEC Chairman Mary Jo White, Federal Reserve Chairman Ben Bernanke and Attorney General Eric Holder: “Have you conducted any internal research or analysis on trade-offs to the public between settling an enforcement action without admission of guilt and going forward with litigation as necessary to obtain such admission and, if so, can you provide that analysis to my office?”
Back in February, Warren put the same question to Comptroller of the Currency Thomas Curry. His agency, which regulates the country’s largest banks, replied last week that it had no such research or analysis.
Warren, a Massachusetts Democrat and former Harvard Law School professor, wrote in her May 14 letter: “I believe strongly that if a regulator reveals itself to be unwilling to take large financial institutions all the way to trial — either because it is too timid or because it lacks resources — the regulator has a lot less leverage in settlement negotiations and will be forced to settle on terms that are much more favorable to the wrongdoer.”
Perhaps, too, the regulator would try harder to make sure it brings only strong cases if its goal were to actually prove its allegations. As for the SEC’s claims in the Abacus suit, we can only wonder. Did Goldman rip off ACA? This week a court ruled no.
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