Manning defense team and judge Lind. Pic by C. Stoeckley.

12:45 PM EST  Lt. Col. Kerns, who served as 2nd Brigade Officer in Bradley Manning’s unit, took the stand as the second defense witness.

Lt. Col. Kerns made critiques of the unit during an Army investigation that he was hesitant to repeat in court.

11:35 AM EST  The Judge addresses the leak of a 16-second video that was posted by someone in the public overflow trailer at Bradley Manning’s trial.

Because the leaked video came from the overflow trailer, the judge says that “additional security rules will be imposed for overflow trailer only.” Judge knew video was recorded on the day prosecutors gave closing arguments in the trial.

Judge Lind: “The overwhelming majority of the media and spectators have behaved with decorum befitting of courtroom and respect for the court’s rules.”

The 16-second video taken had no news value. It merely showed the military that there had been a security breach that needed a response. Had it given any real measurable transparency to a process that the public deserved from the military, I think there would have been a different reaction.

11:30 AM EST  Col. David Miller, Brigade commander in Bradley Manning’s unit, takes stand as first defense witness.

Col. Miller’s testimony focuses on what authority he had to decide not to deploy soldiers; failures of officers in Manning’s unit.

9:55 AM EST David Coombs and the defense submitted a list of witnesses they expect to call. There are seven listed for today, including Col. David Miller. The other six names have been redacted in the copy of the document made available to the public.

9:35 AM EST We’re going into session now.

Original Post:

The defense in Bradley Manning’s trial is scheduled to start its case for the sentencing phase today. Manning is expected to give a statement in military court at Fort Meade at some point before the defense rests on Wednesday.

For eight days, the government called witnesses to present evidence of alleged actual damage or harm that had been caused by Manning’s disclosures of information to WikiLeaks. Somewhere around twenty hours of proceedings took place in open court while just over eleven hours of the sentencing was closed for classified testimony given by government witnesses. So, approximately a third of the government’s sentencing case was closed.

Anything meaningfully connected to the offenses the judge convicted him of committing was presented in secret, concealed from the press and public because it involved information not declassified for the process. Declassifying information could have made the process seem much more fair and open.

Ultimately, the preponderance of evidence prosecutors believe they have against Manning will not be known to the public when he is sentenced. The press will have what came out in open court, but won’t know what in closed sessions influenced the decision. (This is a prime feature of a national security leaks case.)

During sentencing, the military judge, Army Col. Denise Lind, adopted a highly unusual procedure where she was allowing testimony that was potentially improper or inadmissible to be given in court by government witnesses. The defense would object and she would take note. She would then issue a ruling on the evidence and whether it was admissible or not a day or two later.

Jesselyn Radack, an attorney who has represented whistleblowers and works for the Government Accountability Project, reacted, “Prosecutors presenting evidence in court even though Judge Lind may rule it inadmissible the next day is prejudicial and inflammatory. I know she believes that she can erase things from her memory if she decides later it’s impermissible, but the press surely cannot.”

She added, “I can’t believe I’m saying this, because far too much of this trial has been in secret, but this is the sort of thing that should be worked out in closed session.”

Because Manning decided to be tried by a judge and not a panel (which is like a jury), the judge has played two roles throughout the trial: one as the fact-finder and one as the interlocutor. As an interlocutor, she reviews whether evidence is admissible. The evidence can then be legitimately considered when determining her ultimate verdict on Manning’s sentence. [cont’d.]

Kevin Gosztola

Kevin Gosztola

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