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, acknowledge 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 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.

The judge wondered if there would be any testimony coming on how the disclosures exposed forces opposing America to “x, y and z.” Fein replied the government does intend to “elicit from terrorism experts, whether they believe this evidence being available, what terrorists and enemies of the United States would use.”

“Any evidence this was in fact used?” Lind asked.  Fein said he could not discuss types. The judge said that was not what she asked. She wanted to know if expert opinions would be on what could happen or what is happening and has happened. Fein told the judge the government wanted to elicit both. The government would have “some experts testify about their opinions on continuing future impact of this information.”

When Fein said officers from US Central Command would testify on “how future plans could be affected,” she asked how that was not speculative. 

“These people are experts in the field and based off expertise and their knowledge of information compromised,” Fein stated. “Their knowledge on what terrorists can or cannot do,” would be their testimony.

Would the government be bringing in any evidence on former NSA contractor Edward Snowden’s disclosures and whether that had “retriggered” anything caused by Manning’s disclosures?

Fein told the judge no. He also said just before that any evidence on preventing “the next PFC Manning occurring” would not be “permissible.”

In response to what Fein said during argument, Coombs told the judge, ” To say three years later,” there is “still a potential in the future” damage could happen and “in my expert opinion in future” it could happen, that should not be admissible. He added this is why prosecutors believe the witnesses should be “fact witnesses” and not “expert witnesses.”

Fein contended the defense wants to be “able to argue his conduct only caused or didn’t cause certain amount of harm but when experts say in expert opinion it will cause future harm,” the government “should be precluded” from presenting such testimony. There is a “real effect” from his disclosures and there will be a “continuing effect” and that can come out “through proper expert testimony.”

The defense made clear they were not trying to avoid accepting responsibility for the harm causes, however, the government should have to use a scalpel to figure out what was actually spent in response to harm. The evidence should be limited to what is actually demonstrable and provable, if anything happened.

After argument, the judge said she would rule on the motion next week. The sentencing phase would continue and any evidence from witnesses that was not admissible would still come out on the record and the judge would disregard later if it was found to be improper.

Illustration by Clark Stoeckley. Used with permission. 

Kevin Gosztola

Kevin Gosztola

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