Judge Army Col. Denise Lind

The military judge in the trial of Pfc. Bradley Manning heard oral argument over where to draw the line on what evidence to hear during the sentencing phase. The argument was in response to a motion filed by the defense arguing that certain “chain of events,” “could cause damage” or “monetary damage and expense of resources” testimony was too far removed from the immediate aftermath of his disclosures to WikiLeaks to be properly admissible.

Manning’s civilian defense attorney, David Coombs, acknowledged in the beginning of his oral argument that there had been litigation that decided “actual damage” evidence would only be relevant in the sentencing phase. Now, the government wants to present testimony about what could or might happen in the future that should have been presented prior to the verdict.

He argued the court should only consider evidence that can be “directly related” to the disclosures. There should be a link that shows the evidence is “closely related in time,” type and outcome.

Coombs said, “When you start saying for example this leak, we believe people didn’t talk to us as well” after and because of that some initiative didn’t go well and if that initiative had gone well, we would have had other opportunities to explore things, then that is evidence that would been proper during the merits portion but not sentencing when dealing with “what actually happened, what is actual harm.”

Judge Army Col. Denise Lind asked what if a relationship with a country was degraded.

“If that’s in a vacuum,” Coombs answered, then it would be admissible. However, “In diplomacy, there are so many factors that come into play in relationships.” They are “very complex” and it is hard to “draw a straight line and say that’s why somebody did something.”

Many so-called ills of the world are laid at my clients feet,” Coombs stated, but “really there are a lot of factors that are influencing” them. Countries may look for many reasons to engage in an act. A decision to do that act would be “totally unrelated to my client’s conduct.”

Coombs suggested that witnesses should be able to testify about any “actual harm that a witness can say” happened. Had yesterday’s witness (from the State Department) testified during a closed session to “just actual harm, that testimony would have taken ten minutes instead of hours.” He said “six specific things” were at least his opinion of harm that was done.

“Been three years to think about” what is the “actual harm,” and the government has time to think about that. “Witnesses should be able to state,” Coombs added.

The judge asked, so this is really about where to draw the line? Coombs answered that she would have to determine what is “directly related to or resulting from.”

Maj. Ashden Fein of the government argued only steps taken to “mitigate harm to national security directly resulting from Pfc. Manning’s charged misconduct” was “appropriate aggravation evidence.”

He said that Michael Kozak, Acting Principal Deputy Assistant Secretary, Bureau of Bureau of Democracy, Human Rights, and Labor, would be testifying about his work with the Persons at Risk working group established to “mitigate risks” to individuals from the release of diplomatic cables. On Monday, Ambassador Patrick F. Kennedy, Under Secretary for Management, would reference the WikiLeaks working group and what the State Department had done.

“Where does the government believe the line is?” Lind asked. She noted that the court had heard testimony there had been immediate effects and because of these we think there may be a ripple effect.

Fein answered that the line should be “natural and probable consequences.” The judge followed up with a question about whether to consider evidence about the degradation of a relationship with a country and additional things that might have been effected. On this, Fein said she would have to go case-by-case to decide whether evidence was admissible. He believed “opportunity costs” resulting from dealing with the impact to national security and diplomacy would be reasonable to consider.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."