WASHINGTON — Legal experts say WikiLeaks suspect Bradley Mannings lawyers might have lost a key element of their defense because of a military judges ruling this week that would prevent them from using evidence to contend that there was little actual harm from the enormous leak of secret government documents.
Manning, a U.S. soldier, is charged with aiding the enemy through leaking of hundreds of thousands of classified documents the largest in U.S. history to the secret-exposing website. Recent evidence from dozens of government reports showed the leaks caused little actual harm to national security, Mannings defense says, arguing that it should be able to use that evidence.
Two years after the alleged leaks, the conclusion is still merely that the information could cause damage not that it did cause damage, the defense wrote in a filing to the court, calling the speculation of possible damage without proof far-fetched and fanciful. Defense attorneys said theyd been given an opportunity to review some of the damage assessments.
On Thursday, however, a military judge, Army Col. Denise Lind, ruled in favor of the governments argument, saying that evidence of harm caused after the leaks were released isnt relevant to determining Mannings guilt or innocence and that it might confuse jurors by shifting the trials focus, according to the Associated Press.
Kevin Gosztola, a writer for the left-leaning news website Firedoglake who attended the four-day hearing at Fort Meade, Md., and listened to a briefing from a military public affairs legal expert, said Lind thought Manning couldnt have known what damage would occur after the documents were leaked, so the amount of damage shouldnt affect his case.
The government would like this to be a case solely about whether or not Manning violated the rules, not what the consequences of what such violations would be, said Steven Aftergood, the director of the Project on Government Secrecy in the Federation of American Scientists, a nonpartisan research center for national security issues.
Other than two narrow exceptions to the restriction, the defense wont be able to use evidence of actual harm during the trial, which was a key portion of its argument, legal experts said. Beth Hillman, the president of the nonprofit National Institute of Military Justice, said the defense would have a very steep hill to climb.
But because evidence of harm still can be used during sentencing, it could help lessen Mannings sentence if hes convicted, said Michael Navarre, special counsel at Steptoe & Johnson LLP. Manning could face life imprisonment.
Aftergood said he thought the question of harm would become much more relevant at sentencing.
Theres a difference between running a red light and killing a pedestrian versus running a red light and nothing else happening, he said. If he disclosed information that caused identifiable harm, then he needs to answer for that. If his disclosures produced only vague discomfort, then he deserves a firm slap on the wrist.
Jesselyn Radack, the director of national security and human rights at the Government Accountability Project, an advocacy group in Washington for whistleblowers, said she thought the defense still had a strong argument, even without the inclusion of actual harm.
I dont know if its that huge of a blow, Radack said. She said that under the law, it must be shown that the defendant had the intent to harm the United States or a foreign nation. While it would have also been nice to show that nothing happened, I think well be able to show that he had no intent to harm the United States thats been the big hurdle.
Without the actual-harm portion of their defense, Mannings attorneys might focus on possible mental stress due to the dont ask, dont tell policy on gays in the military, potential mental-health issues stemming from a problematic childhood and a possible gender-identity disorder, according to Gosztola.
Gosztola also said the defense probably would argue that Manning knew whether damage would be caused by releasing the documents.
The debate over using evidence of harm ties to the larger issue of alleged overclassification and secrecy in government, experts said. The defense had hoped to use the reported lack of significant actual harm from the leaks to argue that many of the documents shouldnt have been classified in the first place, Hillman said.
Another pretrial hearing in late August will include discussion of Manning's treatment while in solitary confinement at the Marine Corps base in Quantico, Va.