By Chad Bouchard
FORT MEADE — A military judge on Wednesday said that Bradley Manning’s motive for allegedly leaking documents could not be considered during his June 3rd trial, but that his defense may try to prove that Manning chose documents whose release, he believed, would not harm the U.S.
Manning is accused of leaking hundreds of thousands of classified files, the largest leak of its kind in U.S. history, while working as an Army intelligence analyst in Iraq. He faces 22 charges including aiding the enemy — which carries a life sentence.
Judge Colonel Denise Lind said that only Manning’s intent, not his motive, would be allowed in arguments surrounding the most serious charge.
Lind likened the situation to that of a man who steals a loaf of bread to feed his family: what matters is that he knowingly took something that wasn’t his, not that he did so in order to nurture others.
Nathan Fuller, spokesman for the Bradley Manning Support Network, called the ruling “a direct attack on [Manning’s] whistle-blower defense.”
“The military does not want the press and public to hear that Manning wanted not to aid the enemy but that he wanted to aid the public, that he believed Americans deserved to know what their government was doing behind their backs,” he said.
But Lind allowed a key exception that would open the door for Manning’s defense team to show that he’d been selective in what he allegedly leaked. The judge also ruled that his motive could be a factor in his sentencing if he is convicted.
In order to convict Manning on the “aiding the enemy” charge, Lind said prosecutors would have to prove that he had reason to believe that the leaked military reports and State Department cables could be used to harm the U.S.
The ruling on motive was handed down during a one-day pretrial hearing over whether Manning’s right to a speedy trial had been violated. Wednesday marked Manning’s 964th day in jail since he was arrested in May 2010.
Civilian defense attorney David Coombs argued that prosecutors had dragged their feet on a host of tasks and showed “apparent inaction” for weeks during the pretrial process.
Prosecutor Major Ashden Fein responded with a lengthy account of the team’s work since Manning’s arrest, and argued that prosecutors showed “constant movement, and at a minimum, reasonable diligence,” particularly given the complexity of the case.
If Lind finds that Manning’s 6th Amendment constitutional right to a speedy trial has been violated, the case will be dismissed. But in addition to the constitutional right to a speedy trial, there are two military rules governing the speed of a trial’s progress. Violation of those rules would not mean dismissal, but could result in other remedies, like time off of his possible sentence.
New England Law School professor and military justice expert Victor Hansen said that, given the complexity of the case, it would be hard to argue that Manning’s right to a speedy trial had been violated.
“The assumption that [prosecutors] could immediately or instantaneously call up all the specific information and documents that might be in the possession of other government agencies — that’s not the reality.”
Hansen does not see Manning as a whistle-blower in the tradition of Daniel Ellsberg, the former military analyst who leaked documents about the Vietnam War known as the “Pentagon Papers.”
He says Manning didn’t show the same kind of drive for justice that other whistle-blowers have shown. He added that the incident raises sticky security questions for the military.
“How in the heck did a kid that was 21 years old, a private in the Army, have such unfettered, unrestricted and uncontrolled access to this information?” he said. “That’s a real embarrassment for the Army.”
Eugene Fidell, who teaches military justice at Yale University law school, said it was hard to analyze the case for a speedy trial motion, because Lind has issued a protective order that is keeping documents and trial transcripts from being released.
“So much of this case has been kept behind closed doors. It’s the absolute antithesis of transparency. In a way, it’s like a metaphor for the case itself.”
In defending the government’s pace, prosecutors revealed that the case had already involved 30,000 individual filings from the defense and prosecution. In a civilian court, those filings are usually made public.
“I can’t imagine a federal district court conducting business this way. I think it’s a scandal, and I’m extremely frustrated by it,” Fidell said.
Last May, the Center for Constitutional Rights filed a petition with the Army Court of Appeals to order Lind to make court documents and transcripts available to the public. The petition outlines way that the Manning trial has been less transparent than proceedings at Guantanamo Bay. The court is still deciding if it has jurisdiction to rule on that petition.
Last week, Lind asked prosecutors if they would charge the case in the same way if the information had been leaked to The New York Times instead of WikiLeaks.
That question, along with the lack of transparency and the pretrial confinement, has gotten the attention of human rights groups and media organizations.
“We’re concerned about the coercive conditions under which Manning was held, and the ramifications of this prosecution,” said Dinah PoKempner, general counsel for Human Rights Watch, “and about the way the government seems poised to attack not simply Manning but potentially the media.”
Fuller, of Manning’s support group, says the outcome of the trial has far-reaching ramifications for the country’s future.
“If making information public is inherently aiding the enemy, then we’re in real trouble as an informed democracy,” Fuller said.