If Manning is ever released, he will re-enter a world ready to embrace him, advanced with the understanding to recognize his greatness.
Mark Wilson, Getty Images)
Zoom in on an aerial image of the Fort Meade military base and you will see miles of sprawling green fields and parking lots separating homes and administrative buildings. From that vantage point the magistrate court looks about the size of a Mack Truck. History is being made in that little building, the court martial of Pfc. Bradley Manning is being held there.
Two weeks ago, in the swampy heat, I stood outside that single-floor courthouse. A crowd of about twenty-five of us were gathered in a narrow paved area between trailers for restrooms, crowd overflow, and the security check-in. There was a man near the entrance that had to be in his eighties. I overheard him interrupt a conversation to ask, “What’s an e-reader?” A white haired woman told him it is a thin device that holds loads of books as digital files. He paused, perhaps to consider how the contents of his personal library might be encoded to fit inside something not much bigger than a calculator. I looked around again. Maybe a third of the people attending the trial as spectators could remember the bombing of Pearl Harbor as clearly as 9-11. And quite a number more looked like retired boomers. Has AARP thrown its weight behind hacktivist causes? Were they cypherpunks in elaborate disguise?
I started talking with a retired woman who drove down from Pennsylvania. I asked how she felt about the prosecution’s depiction of WikiLeaks as a terrorist abettor. “Well, I’m not as concerned with that,” she said. “I’m here because they were torturing that kid.”
I was there because they were torturing that kid.
Last winter, I read a tweet from the Guardian‘s Ed Pilkington quoting Manning’s testimony in the pre-trial hearing. I shut my phone off and stared out the window — a tiny privilege that Manning had for so long been denied:
“BRADLEY MANNING: ‘You could see the reflection of the reflection of the skylight if you angled your face on the cell door’ – Quantico” — @Edpilkington
From then on, I found myself often thinking about Manning straining to see a “reflection of the reflection” while locked away at the brig. And for what? For exposing criminality and corruption on a worldwide structural level when no one else dared. But in the courtroom, Manning looks so earnest. He appears confident, not frail. You can see in him a glimmer of the “bradass87″ that once wrote to a friend that he would like to be like his idols, “richard feynman, carl sagan, harvey milk, etc.”
The enormity of his actions sits in contrast with the work-a-day procedure of the court martial. But that is Washington for you, a city where you might meet diplomats with sweat stains under the arms of their dress shirts and stateswomen in fraying stockings. Power appears unexpectedly accessible and deceivingly provincial. The prosecutors — representing the US government — seem guided less by iron fist than egregious technical illiteracy. The people who tortured Bradley Manning do not have horns. And that makes it all much worse.
Earlier that day, I left my phone in a friend’s glove compartment and handed my umbrella to a soldier as another searched my bag in the security trailer. Anyone can walk in and observe the proceedings. It is a short train ride from Union Station and the Bradley Manning Support Network arranges pickups, but too few people are taking advantage of this opportunity. On a panel at Left Forum, Jessalyn Radack, the attorney who represented NSA whistleblower Thomas Drake, said that some days there were only six spectators. Nearing a verdict now, the courtroom is typically full, but the overflow trailer still has plenty of room. It makes a difference. They announce court attendance every morning.
How many people even know the trial is happening? Manning was held for three years without a trial. That is plenty of time for the public to mistakenly assume there was already a court decision and sentencing. And why did they try this case at all? Manning already pled guilty to 10 charges and faces up to 20 years. The remaining charges are bizarrely exaggerated. Using flimsy circumstantial evidence, the government is trying to argue that publishing documents on the internet assists terrorists. And for that they could lock him away for life.
The prosecution insists they would have pressed the same charges if Manning had gone to the New York Times instead of WikiLeaks. Daniel Ellsberg did go to the New York Times, which published excerpts of the Pentagon Papers in 1971. Before his case was thrown out as a mistrial, he faced a sentence of up to 115 years under the Espionage Act of 1917. “Everything that Richard Nixon did to me, for which he faced impeachment and prosecution, which led to his resignation, is now legal under the Patriot Act, the FISA [Foreign Intelligence Surveillance Act] amendment act, the National Defense Authorization Act,” Ellsberg told Chris Hedges in an interview. Now Manning is accused not only of espionage, but “aiding the enemy,” essentially because some WikiLeaks files were on Osama bin Laden’s computer.
The prosecutors are in their early 30s — nominally “digital natives” — and should know better. “Do you know what Wget is?” they interrogate a witness, as if it is malicious spyware and not an everyday command line program. The government is capitalizing on asymmetric tech literacy and the failure of language when old laws are applied to the internet. At the peak of this absurdity: WikiLeaks cables are still formally classified, so despite being readily available to anyone with internet, closed sessions are required to discuss them.
Perhaps you heard the audio of Bradley Manning’s court statement earlier this year. That was leaked. No other recordings or visuals have come out of the trial, with the exception of courtroom sketches. Now imagine if there were a livestream. And imagine if everyone had tuned in to watch Yochai Benkler’s gripping expert witness testimony on July 10th. He argued on behalf of the decentralization of media in the digital age, the blurred lines between activist and journalist, and that WikiLeaks was “providing a discrete but critical component of what in the past was always integrated in a single organization.” He explained in clear language what everyone of a certain generation knows intuitively about the internet. Afterward, in the restroom, I overheard two old ladies say they plan to read his book, The Wealth of Networks.
Why did the prosecution ramp up charges against Manning? “Aiding the enemy” might have resulted in the death penalty. The answer came from Benkler under cross-examination. Summarizing an article he wrote, he explained in court, “it’s very hard to suppress information once it’s on WikiLeaks and that the core target needs to be on trust as the center of gravity. In other words, to undermine the concept that WikiLeaks is a place where a leaker can go and trust that they won’t be revealed. So in order to prevent this distributed leaking, it’s necessary to increase the fear, as it were, or the constraint on potential leakers.”
In Ellsberg’s time, the labor involved was its own risk and deterrent. Over the course of a year, he went out with a suitcase to Xerox page after page of the Pentagon Papers (with a piece of cardboard pressed against the glass to edit out the “Top Secret” stamps.) Manning’s cover was a rewritable CD marked “Lady Gaga.” He downloaded the files while listening to “Telephone.” He was tortured and he risks life imprisonment, because leaking is now so easy.
If you grow up knowing an entire library can fit inside a device in the palm of your hand, those 250,000 diplomatic cables and 500,000 army reports do not seem like an enormous bounty. What looks like “harvesting” to one generation, might seem like the obvious way to gather data to the next.
The witness for the defense who has stayed in my mind is Lauren McNamara. She read from a series of AOL chats with Manning in 2009. She was called in to defend his character and demonstrate he was in good spirits in the months leading up to the cable leaks. McNamara — who goes by Zinnia Jones in online videos and blogs — is transgender. It is possible some people in the courtroom had never met someone who is trans* — or think they haven’t. McNamara would smash any retrograde assumptions. She’s confident and witty. There is nothing strange about her gender identity. She is a woman. Manning might be too. McNamara wrote for the Hufington Post, “when I talked with people who are in close contact with Manning, they all told me he currently identifies as male.” Coombes and the Bradley Manning Support Network also say he prefers to be addressed as Bradley. Manning might be female presenting as male, Manning might be non-binary; that’s for Manning to say.
Manning was tortured in part because he signed a few letters from the brig as “Breanna Elizabeth.” Marine Corps Master Sgt. Craig Blenis defended his cruelty in a December pre-trial hearing. Coombs asked why the marine thought Manning’s gender dysphoria should factor into his “prevention of Injury” status. Blenis answered because “that’s not normal, sir.”
But it is normal. Manning’s gender identity is as normal as his computer use. Using Wget, believing WikiLeaks to be a reputable news source in 2010, listening to Lady Gaga, identifying as a gender different from your assigned sex— this is all normal. It just might take another generation to see this. What is out of the ordinary about Pfc Bradley Manning is his extraordinary courage. If Manning is ever released, he will re-enter a world ready to embrace him, advanced with the understanding to recognize his greatness.
Without an informed and free press, there cannot be an enlightened people. That’s what this trial is really about
Thursday, Colonel Denise Lind, the judge in the Bradley Manning court martial, refused to dismiss the “aiding the enemy” charge. The decision is preliminary, and the judge could still moderate its effect if she finds Manning not guilty. But even if she ultimately acquits Manning, the decision will cast a long shadow on national security journalists and their sources.
First, this case is about national security journalism, not WikiLeaks. At Monday’s argument in preparation for Thursday’s ruling, the judge asked the prosecution to confirm: does it make any difference if it’s WikiLeaks or any other news organization: New York Times, Washington Post, or Wall Street Journal? The prosecution answered: “No, it would not. It would not potentially make a difference.”
Second, the decision establishes a chilling precedent: leaking classified documents to the these newspapers can by itself be legally sufficient to constitute the offense of “aiding the enemy”, if the leaker was sophisticated enough about intelligence and how the enemy uses the internet.
Thursday’s decision was preliminary and made under a standard that favors the prosecution’s interpretation of the facts. The judge must still make that ultimate decision on guilt based on all the evidence, including the defense, under the strict “beyond a reasonable doubt” standard.
Although the decision is preliminary, it is critical as a matter of law because it accepts the prosecution’s extreme theory as legally sufficient. The prosecution’s case is that by leaking materials to the press, the source of classified materials is “communicating with the enemy” indirectly. The source gives materials to the journalist; the journalist publishes; the enemy reads the publication and, presto, the source is guilty of the offense of “aiding the enemy”. Manning is facing life imprisonment without parole for this offense.
The judge earlier held that “aiding the enemy” required that the leaker have “actual knowledge” that by handing materials over to a newspaper, he or she is giving it to “the enemy”; it is not enough that the source “should have known” that the enemy would access the materials. The critical question for Thursday’s holding was what evidence is enough, as a matter of law, to prove “actual knowledge”.
On Monday, the prosecution argued its case based on the thinnest of circumstantial evidence. It began by saying that Manning was “a trained intel analyst”, not “an infantryman or a truck driver”. The judge challenged the prosecutor as to “what is the government’s specific information … that by that publication, that al-Qaida and al-Qaida in the Arabian Peninsula would access it”? The prosecution’s answer was “[Manning] was trained specifically, that al-Qaida used the internet to get this information, that the enemy was looking for this specific type of information.”
The judge then sought further clarification:
You are basically focusing on Pfc Manning‘s individual circumstances and training and experience. And that might distinguish him from someone else in an Article 104 setting who basically had no knowledge of intelligence.
And the prosecutor’s response was, “That is absolutely true.”
By dismissing the defense’s motion, the judge effectively accepted that, as a matter of law, evidence that the leaker was trained in intelligence and received training on the fact that that enemy uses the internet to collect information about the United States is a legally sufficient basis for conviction.
Significant leaks on matters of national defense are not generally going to come from army truck drivers. Daniel Ellsberg was a military analyst at RAND. Thomas Drake was an NSA senior executive. Stephen Kim was a senior adviser on intelligence in the State Department. Jeffrey Sterling was a CIA officer. John Kiriakou was a CIA officer. Bradley Manning was a private first class in army intelligence about two years out from basic training. We can disagree about who among these is more or less worthy of respect or derision. But after Thursday’s hearing, they all fall on the wrong side of the line that the judge endorsed.
Leak-based journalism is not the be-all-and-end-all of journalism. But ever since the Pentagon Papers, it has been a fraught but critical part of our constitutional checks in national defense. Nothing makes this clearer than the emerging bipartisan coalition of legislators seeking a basic reassessment of NSA surveillance and Fisa oversight following Edward Snowden’s leaks.
National defense is special in both the need for, and dangers of, secrecy. As Justice Stewart wrote in the Pentagon Papers case, the press is particularly important in national defense because it is there that the executive is most powerful, and the other branches weakest and most deferential:
In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the first amendment. For without an informed and free press, there cannot be an enlightened people.
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.
For inquiries, please contact The Daily Beast at firstname.lastname@example.org.
After more than three years in custody, Pfc. Bradley Manning’s trial finally began on June 3. The 25-year old Oklahoma native has already pled guilty to ten charges, but faces prosecution on 12 more relating to the 2010 release of restricted government documents to Wikileaks.
For his ten guilty pleas, Manning can face up to 16 years in prison. But the 12 additional charges could send Manning to jail for the rest of his life. Although he is charged with “aiding the enemy,” a capital offense, prosecutors will not seek the death penalty. While Manning’s actions were in defiance of U.S. government secrecy, his trial will be almost completely shrouded in it.
Less Access Than Guantanamo Bay Proceedings
Court documents are being withheld and redacted and pretrial hearings have been closed off from public view. It is estimated that 30% of the trial’s proceedings will be conducted in secret to protect witness identity and national security information. Other, more ridiculous secrecy measures have also taken place. Photographers are denied a clear shot of the defendant and his supporters were forced to turn their pro-Manning t-shirts inside out.
The government has even refused to provide transcripts of the proceeding. In response, the Freedom of the Press foundation attempted to hire stenographers to attend the public portions of the trial in order to give the world the most accurate possible picture of the events. This measure was denied at first but the government relented after a few days.
This level of secrecy at trial is not surprising if one examines the history of the case. After being arrested, Pfc. Manning was held in solitary confinement for 11 months at the Marine Corps base in Quantico, Virginia under conditions which led the UN Special Rapporteur on Torture to say that the U.S. government was guilty of cruel, inhuman and degrading treatment.
While Manning was locked away, the government gave minimal access to his lawyers and other concerned groups. In May 2012, the Center for Constitutional Rights filed a petition for extraordinary relief filed with the Army Court of Criminal Appeals, and a subsequent writ-appeal filed with the Court of Appeals for the Armed Forces, arguing that the First Amendment ensured public and press access to the government’s motion papers, the court’s own orders, and transcripts of proceedings, which had remained hidden from view. The petition was denied in a 3-2 decision.
A letter signed by more than 40 news organizations was sent to Pentagon General Counsel Jeh Johnson claiming that less access was given to reporters in the Manning case than cases involving Guantanamo Bay detainees.
Constitutional Protections for Speedy and Public Trial Flouted
This begs the question of the appropriate level of secrecy in such a high profile case. The 6th Amendment demands that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Military law generally requires a trial within 120 days. The court martial of Bradley Manning is certainly a criminal trial, yet the military is allowed to deny access to significant portions of it. This has led some to question the constitutionality of the proceedings.
According to the Rule of Court Martial 806, the 6th Amendment guarantee of a public trial is preserved but is “not absolute.” Closure is possible if, (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and found inadequate; and (4) the military judge makes case-specific findings on the record justifying closure. But why do we accept this watered down version of the Sixth Amendment for members of the military accused of crimes? The Sixth Amendment exists in order to protect defendants from “malicious prosecutions, corrupt judges and dishonest jury members.” Military service men and women are as deserving of these protections as everybody else.
Military judge Army Col. Denise Lind, who also presided over the closed pretrial hearings, has denied public access to testimony by some of the 24 witnesses in order to protect “classified information.” Defense lawyers offered alternatives to closing public accesses, but Judge Lind found those alternatives to be insufficient to guard the overriding interest of secrecy. Others have argued that Judge Lind’s confidentiality measures are designed to “minimize distractions and maintain law-and-order.” Eugene Fidell, who teaches military law at Yale Law School stated “people do occasionally act out in courtrooms, both spectators or witnesses or the accused, but I’m sure that the Army knows how to maintain order, and I’m not sure that it’s necessary to do it with as heavy a hand as seems to be implied here.”
What is the Government Afraid Of?
Even if we accept that criminal cases in military courts can be closed more easily than civilian courts, it does not appear that there is strong justification for closure in the Manning trial. Chase Madar of The Nation, pointed out seven myths that have surrounded Manning’s release of sensitive documents, his prosecution, and the media’s coverage of these events. He reports the fact that none of the documents Manning released were “top secret.” In fact, “more than half of the diplomatic cables are not classified in any way, and neither was the infamous helicopter gunfight video that shows an Apache gunship slaughtering a dozen Iraqis, including two Reuters news agency employees.”
Secondly, Madar asserts that there is no evidence to prove that Manning’s leaks resulted in the death of any American or damage to national interests. If the information released by Manning was not so secret and did not result in any destruction of American lives or interests, why must his trial involve evidence so secret that it warrants public closure?
The government can always offer the same line of national security interests to justify keeping the public blissfully ignorant of the crimes it commits. The same argument was proffered by the government to stop the release of the Pentagon Papers which included explosive revelations about the U.S. war in Vietnam. The release of the papers did no harm to American interests, but rather informed people of the crimes perpetrated in their name and the lies told to the public by the administration of Lyndon Baines Johnson.
First Amendment law expert Floyd Abrams, who represented the New York Times in the Pentagon Papers case and Yochai Benkler of Harvard Law School, wrote about the significance of the Manning trial for whistle blowers in America in a Times op-ed entitled “Death to Whistle-Blowers?”
If found guilty on serious charges, “the prosecution will establish a chilling precedent: national security leaks may subject the leakers to a capital prosecution or at least life imprisonment,” the two wrote. “Anyone who holds freedom of the press dear should shudder at the threat that the prosecution’s theory presents to journalists, their sources and the public that relies on them.”
The Freedom of the Press Foundation continues to provide crowd-funded professional stenographers for the Manning trial. Learn more here and access the transcripts here. Also related to this story CMD’s SourceWatch articles on Wikileaks and Julian Assange.
America honors its worst. It persecutes its best. Manning is heroic. He risked great personal harm. He did so to reveal vital truths. People have a right to know. Washington has no right to conceal them.
Secrecy, lawlessness, and contempt for humanity define US policy. Evidence vital to Manning’s defense is prohibited. Information refuting charges of “aiding the enemy” is barred from trial proceedings.
Claiming it’s not relevant or harmful to national security doesn’t wash. Excluding it reflects police state justice.
On June 3, United States v. Bradley Manning court-martial proceedings began. Pre-trial, Obama pronounced him guilty by accusation. Doing so denies any possibility of judicial fairness. His word is final.
“We are a nation of laws,” he claimed. “We don’t let individuals make decisions about how the law operates. (Manning) broke the law.”
No nation spurns inviolable laws more egregiously than America. Obama reflects the worst of US governance. He rules by diktat authority. He does so secretly. He’s waging war on humanity. He does so at home and abroad.
With a stroke of his pen he could free Manning. Pronouncing guilt by accusation assures his conviction. Doing so publicly leaves no doubt.
So do secret trial proceedings. They violate constitutional law. The Sixth Amendment states:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The Constitution mandates ALL criminal prosecutions. Pentagon ones aren’t exempt. Especially high-profile cases like Manning. If convicted, he faces possible life in prison. At issue is convicting him for doing the right thing.
Manning’s trial proceedings will be secret, not public. Doing so violates constitutional law.
It mandates the right to a speedy trial by an impartial jury. He’s denied both. The Uniform Code of Military Justice (UCMJ) calls for trial within 120 days of restraint and arraignment.
The Rule for Court Martial (RCM) 707 mandates the same thing. It’s to assure speedy trial proceedings. Manning’s been held over three years without trial.
He’s been isolated throughout much of it. Doing so violates Eight Amendment protection against “cruel and unusual punishments.” US statute laws were violated.
So was UCMJ’s Article 13. It prohibits pre-trial confinement conditions “any more rigorous” than what’s minimally needed to ensure the accused appears for court hearings.
America should be on trial, not Manning! He revealed war crimes too egregious to be kept secret. He should be honored for doing so. Top culpable civilian and military officials should be held fully accountable. Justice demands no less.
Manning faces 22 charges. He pleaded guilty to 10 lesser ones. He denied 12 greater ones. He called war logs given WikiLeaks “some of the most important documents of our time.” He chose ones he believed “wouldn’t cause harm to the United States.”
He hoped a national debate would follow his revelations. It’s sorely needed more than ever.
America’s “obsessed with capturing and killing people,” he said. “Collateral murder” is policy. US helicopter pilots gunned down innocent civilians.
They murdered anyone trying to help them. Shooting wounded victims was like “a child torturing ants with a magnifying glass,” he said.
He wanted everyone to know. It’s their right. At issue are high crimes of war and against humanity. They’re too grave to ignore.
Manning’s charges include 1917 Espionage Act violations. Doing so contradicts the law’s intent. It doesn’t deter Justice Department or Pentagon officials from using it. It passed shortly after America’s entry into WW I. Over time, it’s been amended numerous times.
Originally it prohibited interfering with US military operations, supporting the nation’s enemies, promoting insubordination in the ranks, or obstructing military recruitment.
In 1921, its most controversial provisions were repealed. In 2010, Manning was wrongfully charged under the Act. Technically its under Articles 104 and 134 of the Uniform Code of Military Justice (UCMJ). It includes parts of the US Code.
Colonel Denise Lind is both judge and jury. Official transcripts of proceedings will be kept secret. Weeks earlier, Freedom of the Press Foundation “launched a campaign to crowd-fund a court stenographer.”
Manning’s trial “will have an enormous impact on press freedom and the rights of future whistleblowers,” it said. “The government refuses to make its transcripts available to the public.”
Floyd Abrams is a constitutional law expert. Yochai Benkler is Harvard Law School’s Berkman Professor of Entrepreneurial Legal Studies.
In March 2013, their New York Times op-ed headlined “Death to Whistle-Blowers?”
At issue is Manning’s trial. If found guilty on serious charges, “the prosecution will establish a chilling precedent: national security leaks may subject the leakers to a capital prosecution or at least life imprisonment.”
“Anyone who holds freedom of the press dear should shudder at the threat that the prosecution’s theory presents to journalists, their sources and the public that relies on them.”
Former Supreme Court Justice Hugo Black one said:
“The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”
What’s more destructive than imposing capital penalties or imprisoning heroic whistleblowers for life for doing the right thing.
According to Abrams and Benkler, Manning’s “leaks included important disclosures (and) their publication is protected by the First Amendment no less than the publication of the Pentagon Papers was.”
“We cannot allow our concerns about terrorism to turn us into a country where communicating with the press can be prosecuted as a capital offense.”
Both contributors agreed. WikiLeaks is part of the Fourth Estate. It’s right to publish is no less than any other media organization or contributor.
Over 350 media sources submitted applications to witness Manning’s trial. Only 70 got permission. In other words, those considered safe may do so. Others are prohibited.
Claiming space limitations denies others doesn’t wash. Proceedings can be held anywhere. According to the Freedom of the Press Foundation (FPF):
“In previous hearings, the Army has opened a public overflow theater with live audio and video streaming of the hearing.”
“Additionally, the Army has sole discretion over which room(s) to designate as media rooms – including how many rooms to make available.”
FPF enlisted a reputable court stenographer firm. With permission, its stenographers will work in shifts.
Doing so will provide a public record. All media sources will have access. Independent alternative ones are most important. People will learn what otherwise they won’t know.
On June 1, FPF headlined “Crowd-funded Stenographers Denied Press Passes to the Bradley Manning Court Martial.”
It said three of its media partners were denied them. It remains to be seen if FPF’s request discussed above will or won’t fare better.
Manning’s trial will be held at Fort Meade, MD. On June 2, Bradley Manning.org headlined “Nearly two thousand rally for Bradley Manning at Ft. Meade.”
They did so on June 1. Washington charged Manning with indirectly “aiding the enemy.” Saying so defies reason. It mocks fundamental constitutional rule of law principles.
Manning’s a political prisoner. Amnesty International (AI) claims otherwise. It refuses to name him a prisoner of conscience. From January 2012 – January 2013, former Hillary Clinton aide Suzanne Nossel headed AI USA. She’s an imperial insider.
Interim co-executive directors Bob Goodfellow and Frank Jannuzi replaced her. They’ve acted no less irresponsibly than she did.
According to Francis Boyle:
“Amnesty International is primarily motivated not by human rights but by publicity. Second comes money.” It relies on corporate foundations and other dubious sources to provide it. Services rendered in return are expected. Conflicts of interest are rife.
The Bradley Manning Support Fund is “100%” responsible for his legal expenses. Around 20,000 supporters contributed over $1.25 million.
David Coombs represents Manning. On June 2, he said:
“On behalf of both myself and PFC Manning, I would like to thank everyone for their continued support over the last three years.”
“I especially appreciate the the tireless fundraising and awareness efforts of Courage to Resist and the Bradley Manning Support Network.”
“Finally, a special thank you to those journalists who have been reporting on PFC Manning since the beginning and who have brought worldwide attention to this important case.”
“I AM BRADLEY MANNING.”
We’re all Bradley Manning! His fate is ours!
Stephen Lendman lives in Chicago. He can be reached at lendmanstephen [at] sbcglobal.net.
In media mythology, the years from the mid-1960s to the mid-’70s were the classical age, a heroic time of moral clarity.
Mainstream journalism marinated in adversarialism. Little Southern newspapers infuriated their own readers by staring down segregation. Foreign correspondents forced upon an unwilling public the realities of a brutal war. Network news ignored official disdain and showed the bottomless suffering the war inflicted on the innocents it was supposed to save. With the Pentagon Papers, newspapers defied secrecy rules to expose government lies. With Watergate, reporters forced out a corrupt president.
True, that retelling is a bit of myth-spinning; the media never were quite that gutsy. But myths illuminate. They remind us of values and aspirations. What we’d like to think was true then reflects what we hope might still be true now.
And over the past decade or so, it’s as if that classical formula of defiance and struggle has been turned upside down. Instead of halting war, the news media helped lead the charge into battle, stoking jingoism and spreading half-truths. Instead of unmasking civilian suffering, the media have kept the thousands of innocent Iraqi and Afghan war dead off-screen, pandering to the idea that the only victims worth compassion wear U.S. uniforms.
Even Watergate is upended, with Bob Woodward, one of the two Washington Post reporters who exposed the scandal, now the target of scathing revisionism because of a trivial dustup with a thin-skinned White House.
And looming above those breathtaking role reversals is the media’s disgraceful abandonment of the boldest news source of his generation, Pvt. Bradley Manning, a soldier who in 2010 defied secrecy restrictions to feed the most influential media in the world with leaks they gratefully published, which exposed corruption and duplicity, identified torturers, energized the Arab spring, and embarrassed officialdom worldwide.
The ferocity of the Obama administration’s attack on Manning and on Wikileaks, the online anti-secrecy organization that brokered his leaks to the media, has been withering. Manning spent the better part of a year in solitary confinement, undergoing maltreatment plainly intended to get him to finger Wikileaks founder Julian Assange as not just a conduit, but a co-conspirator.
Manning, now 25, is before a court martial in Maryland. After 1,000 days behind bars, he recently pleaded guilty to charges that could leave him there for another 20 years.
So the trial could end now, with Manning facing two decades in prison. Instead, the government is pushing ahead with a charge of “aiding the enemy,” technically punishable by death, likely to bring him life without parole.
According to Yochai Benkler, a Harvard law professor who’s assisting his defense, this is the first time in 150 years that anybody has been charged with aiding the enemy for leaking information to the press for general publication. Benkler says that makes secrecy breaches — an indispensable routine of journalism in the national security realm — a capital offense, if they annoy the wrong people.
The government hasn’t said what harm, if any, Manning’s leaks did to this country. The military court has indicated it doesn’t care.
Manning’s own explanation of what motivated him to leak the thousands of dispatches and cables is what you’d expect from an idealistic, thinly educated young man, at the time barely into his 20s:
“The more I read, the more I was fascinated with the way that we dealt with other nations and organizations. I also began to think the documented backdoor deals and seemingly criminal activity that didn’t seem characteristic of the de facto leader of the free world . . . The more I read the cables, the more I came to the conclusion that this was the type of information that should become public.”
The world’s most powerful news media agreed, and turned Manning’s leaks into riveting stories. (Just this month The Guardian and the BBC broke a sensational 15-month story about sectarian death squads in Iraq; it was prompted by reports he provided in which shocked U.S. soldiers described seeing Iraqi detainees who’d been tortured by their countrymen.)
But still, the media leave Manning to face his accusers in a tribunal that is barely public, and by and large the media that were his beneficiaries can’t be bothered to staff the trial that will determine his fate.
He was a great source. His information was solid. The world’s best news organizations believed it was of immense public value. So now he goes to jail, perhaps for life, and the media stand in silence?
The columnist who looks back from 40 years hence will have to squint hard to find reason to be inspired by the courage of today’s media the way we still are by the media of that long-ago classical age.
LAST month Pfc. Bradley Manning pleaded guilty to several offenses related to leaking hundreds of thousands of documents to WikiLeaks in 2010, a plea that could land him in jail for 20 years. But Private Manning still faces trial on the most serious charges, including the potential capital offense of “aiding the enemy” — though the prosecution is not seeking the death penalty in this case, “only” a life sentence.
If successful, the prosecution will establish a chilling precedent: national security leaks may subject the leakers to a capital prosecution or at least life imprisonment. Anyone who holds freedom of the press dear should shudder at the threat that the prosecution’s theory presents to journalists, their sources and the public that relies on them.
You don’t have to think that WikiLeaks is the future of media, or Private Manning a paragon of heroic whistle-blowing, to understand the threat. Indeed, the two of us deeply disagree with each other about how to assess Private Manning’s conduct and WikiLeaks’s behavior.
Mr. Abrams, who represented The New York Times in the Pentagon Papers case, has argued that both Daniel Ellsberg, who provided the documents to the newspaper, and The Times acted with far more restraint and responsibility than Private Manning and WikiLeaks have, and that both have repeatedly behaved with a devil-may-care obliviousness to genuine national security interests.
Mr. Benkler, a law professor, has argued that Private Manning and Mr. Ellsberg (himself a Manning supporter) played a similar public role, that WikiLeaks behaved reasonably under the circumstances and that the revelations, including American forces’ complicity in abuses by Iraqi allies, understatement of civilian casualties and abuses by contractors deserve recognition, not criticism.
We write together because we believe our disagreements are characteristic of many who think about the WikiLeaks/Manning affair; public feelings range from respect to deep discomfort. When it decided the Pentagon Papers case, in 1971, the Supreme Court was well aware that, as Justice Potter Stewart put it, “It is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy.”
Despite this clear understanding of the risks involved in leaks and disclosure, the court’s decision was encapsulated in Justice Hugo L. Black’s simple statement: “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”
And what could be more destructive to an informed citizenry than the threat of the death penalty or life imprisonment without parole for whistle-blowers?
Under the prosecution’s theory, because Private Manning knew the materials would be published and that Al Qaeda could read them once published, he indirectly communicated with the enemy. But in this theory, whether publication is by WikiLeaks or The Times is entirely beside the point. Defendants are guilty of “aiding the enemy” for leaking to a publishing medium simply because that publication can be read by anyone with an Internet connection.
In a January hearing the judge, Col. Denise Lind, asked prosecutors directly whether they would have brought the same charges had Private Manning leaked the materials to The New York Times instead of WikiLeaks. The prosecutors’ answer was unambiguously yes.
That yes was not courtroom bluster, but a necessary concession regarding what their theory means. And nothing in that theory would limit its application to the release of hundreds of thousands of documents. It could apply as effectively to a single abuse-revealing document.
So yes, we continue to disagree about what to make of Private Manning and WikiLeaks. But we agree that WikiLeaks is part of what the Fourth Estate is becoming, that the leaks included important disclosures and that their publication is protected by the First Amendment no less than the publication of the Pentagon Papers was.
Private Manning’s guilty plea gives the prosecution an opportunity to rethink its strategy. The extreme charges remaining in this case create a severe threat to future whistle-blowers, even when their revelations are crystal-clear instances of whistle-blowing. We cannot allow our concerns about terrorism to turn us into a country where communicating with the press can be prosecuted as a capital offense.
Floyd Abrams is a lawyer and the author of the forthcoming book “Friend of the Court: On the Front Lines With the First Amendment.” Yochai Benkler is a law professor at Harvard and co-director of the Berkman Center for Internet and Society.