Judge Colonel Denise Lind also ruled that long pre-trial delays had not violated Manning’s right to a speedy trial, dealing twin setbacks to Manning’s defense team.
Meanwhile, journalists and academics on Wednesday won a small victory on the transparency front as the Department of Defense released 84 judicial orders and public filings related to the case. The move came in response to press outrage over Freedom of Information Act requests that had been denied. But transparency watchers say the effort is too little, too late.
Manning, a U.S. Army private, was arrested in Iraq in May 2010 on charges that he shared hundreds of thousands of classified Department of Defense and State Department documents. Prosecutors are trying to convict him for “aiding the enemy,” a charge that could carry a life sentence.
Civilian defense attorney David Coombs asked for the case to be dismissed, saying prosecutors had delayed progress in the case for a total of more than 600 days.
But Lind decided on Tuesday that the vast majority of the delays were justifiable, and did not constitute a reason to dismiss the charges. She said military justice rules surrounding speedy trials only require that the prosecution “acted with reasonable diligence. It did.”
Under military law, someone accused of a crime should not spend more than 120 days in jail between arrest and arraignment. Lind granted six days of credit toward the trial clock for undue delays in the government’s progress, but said prosecutors had otherwise been diligent.
Lind said most of the delays were excluded because of the “unique complexity” of the case, the volume of information considered as evidence, and the “almost unfathomable amount of coordination and manpower” involved.
She also said that the slow trickle of information from Wikileaks had created extra work for prosecutors while the investigation was still underway.
After reading out justifications for each of the excluded delays for two hours, the judge found that a total of 90 days had passed between his arrest and his arraignment. Manning has already spent more than 1000 days in jail, and his trial is scheduled for June 3rd.
Lind also decided that all but one of the witnesses the defense wanted to call to testify about inappropriate classification of leaked material would not be allowed to do so. “There is no nexus between general over-classification and the information allegedly communicated in this case,” she said.
Lind decided to allow findings from the 9-11 Commission’s report to be considered during the trial, however, which found excessive secrecy in the government had hampered security. She will decide later about whether to let J. William Leonard testify that his agency, the Information Security Oversight Office, had determined that only 64% of the documents it reviewed had been properly classified.
During the hearing, lead prosecutor Ashden Fein argued asked the court to use a definition of “giving information to the enemy” that did not require receipt of that information by the enemy.
He said the government would call as a witness a forensic examiner who would “show connections between Bradley Manning’s SD card found at his Aunt’s house, information he had access to in Iraq, and information found connected to Osama bin Laden.”
Steven Aftergood, director of the Government Secrecy program at the Federation of American Scientists, downplayed any far-reaching implications of the case, saying Manning’s case was uniquely complicated.
“There is a certain amount of drum-beating that ‘the future of the first amendment is at stake, the future of freedom of speech is at stake,'” he said. “I think that’s exaggerated and manipulative.”
But he said the case is a symptom of a growing culture of secrecy in the U.S. government.
“All of these disclosures are in a way a response to the over-classification of information in government, and that’s also why Manning has a sizable contingent of supporters among the public, because they support some of the disclosures he made possible.”
A Manning backer in the courtroom, 72-year-old retired Central Michigan University sociology professor Blaine Stevenson, said the closed sessions and secrecy in the hearings had given the impression that court was “trying to silence people and intimidate reporters and academics.”
Lind previously issued a judicial order barring the release of court documents, forcing attendees to transcribe what they hear during court.
“Academics and citizens need information about what’s going on,” Stevenson said.
Meanwhile, the Center for Constitutional Rights issued a stern statement in response to the Army’s release of court documents, saying the 84 court filings were incomplete and more than a year old.
“Today’s release only provides some of the court rulings. Other than a small number of defense briefs published by the defense counsel on his blog (with heavy redactions by the government), the rest of the materials connected to the trial are not available to the public in any way.”
Elizabeth Goitein with the Brennan Center for Justice at New York University School of Law called the case a “real test of how we view the legal significance of classification.”
Goitein points out that in deciding Manning’s guilt, the government has argued that Manning’s intent is irrelevant, whether or not he caused harm is irrelevant, and assessments about the classification of the information are irrelevant.
“If all of these things are irrelevant, then it appears that the government’s theory of the case is the simple fact that he [allegedly] disclosed classified information means that he had reason to believe that the information could be used to harm the United States.”
Another supporter in the courtroom, 66-year-old Vietnam War veteran Chuck Heyn, said
“What would happen if he didn’t do what he did? The consequences of not doing it are perhaps more severe.”
Heyn said he sympathizes with Manning on a personal level because he witnessed wrongdoing during his service, and struggled with what to do about it. He said his dilemma even caused thoughts of suicide. He’s glad that Manning didn’t take that route.
“It is a real burden that it puts on you,” Heyn said.
Chad Bouchard
