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2013-07-31

Facing Rest of Life Behind Bars, Will Bradley Manning’s Sentencing Weigh Lack of Harm to U.S.?

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Despite being acquitted on his most serious charge of "aiding the enemy," Army Private Bradley Manning still faces up to 136 years in prison for the 20 other counts on which he was convicted. The sentencing phase begins today and is expected to last a week. We speak with independent journalist Alexa O’Brien from outside the courtroom at Fort Meade, Maryland, where she has covered the trial daily since it began. O’Brien was the first to make transcripts of the court proceedings publicly available. During Manning’s trial, presiding judge Col. Denise Lind rejected a bid by defense attorneys to cite evidence showing the leaks caused no damage to the United States. Manning’s attorneys had sought to present "damage assessment" reports that contradicted prosecutors’ contention that Manning harmed national security and aided U.S. foes. "This trial has been about probable harm — there’s been no actual harm actually on the merits," O’Brien says. "Now that we are in the sentencing phase and Manning faces 136 years, we can actually start to talk about the lack of actual damage from these leaks."

Transcript

This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: We continue to discuss the verdict in the case of U.S. Army Private Bradley Manning. A military judge on Tuesday found Manning not guilty of aiding the enemy, the most serious charge he faced for handing over documents to WikiLeaks, but he faces a maximum of 136 years in prison for the 19 other counts on which he was convicted.

AMY GOODMAN: For more, we go to Fort Meade, Maryland, where independent journalist Alexa O’Brien joins us from her car outside the courtroom where the sentencing phase of Manning’s trial is set to begin. Alexa O’Brien has been at the trial daily since it began. She was the first to make transcripts of the proceedings publicly available. She’s sitting in her car because that’s the only access we have to her, Internet very difficult inside the courtroom, even though, by the way, they are at Fort Meade. That’s where the court-martial takes place, and that is the headquarters of the National Security Agency.

Alexa, thanks for being with us. This is our first time speaking to you since the verdict, Bradley Manning acquitted of aiding the enemy but found guilty on, we believe, about 20 other charges, a number of them espionage-related. Can you go through them and talk about their significance? What was your reaction yesterday?

ALEXA O’BRIEN: Well, my—I wasn’t surprised. We can talk about aiding the enemy, and a lot of the press have lately become very interested in this case because of the aiding the enemy charge, which is clearly a threat to national security reporting and to whistleblowers. Manning would have faced life in prison without parole. But being convicted of six espionage charges totaling 60 years maximum punishment, is legally interesting in terms of the difference of time, but in terms of, you know, Manning’s own fate, I don’t think there’s much of a difference. And we would also look at the way in which the U.S. government here at Fort Meade—[no audio]

AMY GOODMAN: We’re going to go to a clip as we reconnect with Alexa O’Brien. You know, I just want to make clear it’s been very difficult for journalists to communicate in the courtroom for the months that they have been covering this trial, not able to get Internet access, so they couldn’t even tweet out unless they agreed to go outside, you know, hand—take their phone, go out, tweet, come back, miss some of the trial, even though—we’re not talking about in the courtroom. That’s often the case in courtrooms around the country. We’re talking about in the media center next to the courtroom. But as we reconnect with Alexa O’Brien, we wanted to go to an interesting debate that occurred last night between Guardian journalist Glenn Greenwald, who debated CNN legal analyst Jeffrey Toobin on CNN’s Anderson Cooper 360 about the Manning verdict. It begins with Jeffrey Toobin.

JEFFREY TOOBIN: But it’s not up to Bradley Manning to make the decision to disclose this. I mean, these are people who—the people who wrote those cables have devoted their lives to trying to make the world a better place, particularly Foreign Service officers. You know, maybe you disagree about that, Glenn, but I admire the Foreign Service a great deal. And, you know, I trust their judgment about what’s a secret a lot more than I do Bradley Manning’s.

GLENN GREENWALD: Right, and, look, look, Jeff, you can make that argument in every leak case. I mean, people back in the 1960s said Daniel Ellsberg was a traitor. "Who was Daniel Ellsberg to decide what should be leaked to the American public? I trust U.S. generals way more than some Daniel Ellsberg who I never voted for." And yet what Daniel Ellsberg did was expose systematic lies on the part of the U.S. government. In the Bush years, people said, "Whoever told Dana Priest at The Washington Post that the Bush administration had secret CIA prisons, or whoever told The New York Times that the Bush administration was spying without warrants, what right did they have to disclose secrets?" This is how journalism, investigative journalism, works, Jeff, is that people inside the government with a conscience come forward when they find out things that their government is doing that are wrong, and they disclose it to the world through media outlets and journalism. If you think that’s criminal, you’re essentially calling for the end of investigative journalism. That is what investigative journalism is about.

JEFFREY TOOBIN: No, no, I appreciate your education to me of what journalism is, but, you know, releasing 700,000 cables in a completely blunderbuss way is not the same as the work of Dana Priest and Bob Woodward. I mean, I just think, you know, it is possible to draw—

GLENN GREENWALD: How about Daniel Ellsberg?

JEFFREY TOOBIN: Well, Daniel Ellsberg also wrote the Pentagon Papers. He disclosed what he wrote, which is very different than Bradley Manning disclosing hundreds of thousands of cables he didn’t even read, much less write.

ANDERSON COOPER: But, Glenn, you know—sorry, Jeff—

GLENN GREENWALD: You don’t know that he didn’t read them.

AMY GOODMAN: That was CNN legal analyst Jeffrey Toobin debating Guardian journalist Glenn Greenwald. Alexa O’Brien, we have reconnected with you in the parking lot of the Fort Meade—in Fort Meade, Maryland, where the court-martial of Bradley Manning is taking place, the sentencing phase today. Your response to that? And then, again, just go through the significance of these charges—acquitted of aiding the enemy but convicted on a number of espionage charges.

ALEXA O’BRIEN: Well, my response to that particular exchange is, you know, in the age of information, Manning’s leaks are completely proportional, these large data sets. And as defense witness Yochai Benkler from the—

AMY GOODMAN: We’re going to—

ALEXA O’BRIEN: —Berkman Center for Internet & Society testified last week, large data sets, you can glean information from them that you can’t find—you can’t glean from, you know, two or three documents as smoking guns. In terms of the espionage charges, I think that they’re just as threatening to national security reporting as the aiding the enemy charges against Manning. And, unfortunately, the press hasn’t been here to cover this trial, so they sort of forgot about the espionage charges, while they focused on aiding the enemy, when they came to the trial lately. I’m not sure if you can hear me.

NERMEEN SHAIKH: Yes, we can hear you, Alexa. Go ahead.

ALEXA O’BRIEN: Oh, sorry. So, one of the other interesting things is that she actually found Manning guilty of five—of stealing five databases. Now, what’s controversial about this sort of set of charges is that she allowed the prosecution to actually change the charge sheet after the close of evidence. The defense had actually sought to dismiss these charges, saying that the government hadn’t presented any evidence related to the theft of databases. They had merely presented evidence related to the theft of information. And according to, you know, federal statute and controlling law, there’s a distinction between databases and the information contained within. Well, Lind came back and said that there was no distinction between these two denominations of or categories of theft. And she allowed the government to change their charge sheet. The defense filed another motion, and you can expect to see that in the appeals process.

And then we had the Computer Fraud and Abuse Act charge. Here, Manning had access. He was given a link to the Net-Centric Diplomacy database in January of 2010 by the highest-ranking intelligence officer in the T-SCIF. So he had access. He didn’t violate any technical breach to get the information. What seems to be happening here is, Judge Lind is really coming down hard on the idea that if it’s classified and he leaks it, then it’s espionage.

We need to remember, you know, this trial has been about probable harm. There’s been no actual harm actually on the merits. Now that we’re in the sentencing phase and Manning faces 136 years, we can actually start to talk about the lack of actual damage from these leaks. And that’s what we’re doing today.

AMY GOODMAN: We want to play a clip of a response to the Manning verdict from Michael Ratner, one of the attorneys for Julian Assange who also spent a good deal of time at the trial. We were doing a live broadcast yesterday as the verdict came down, and he described how the military judge, Colonel Denise Lind, in the Manning case may now—has now just gotten promoted.

MICHAEL RATNER: The judge, interestingly enough, has been promised or given an appointment to the next highest military court, the appeals court, which I find extraordinary, that in the middle of a trial of the most important whistleblower in United States history, that the judge who’s presiding at it be given a higher position. And, of course, this has—it brings us right back to Daniel Ellsberg. During Daniel Ellsberg’s trial for espionage, which eventually just collapsed under all the government chicanery, hypocrisy, etc., the trial judge in that case was actually offered to be the head of the FBI. Haldeman, from Nixon’s office, went out and sat on a park bench with him, overlooking the Pacific, and said, while the trial is going on, "Hey, Judge, how would you like to be head of the FBI?" I mean, you talk about influencing a judge by the executive. You’re seeing it both in the Ellsberg case, and now you see the other crucial, major whistleblower, the same thing happening, the judge being offered a higher position. I find it pretty remarkable that they would mess around and make it look like that judge may not have a complete fairness.

AMY GOODMAN: That was Michael Ratner, one of the attorneys for Julian Assange, responding to the Bradley Manning verdict that just came down yesterday just after 1:00 Eastern time. He was acquitted of aiding the enemy but convicted on about 20 other espionage and other charges, faces 136 years in prison. And that sentencing hearing begins today. And, Alexa O’Brien, if you can talk about what this sentencing hearing is about? It’s different than a civilian court. Actually, new evidence can be presented here, is that right?

ALEXA O’BRIEN: That’s right. So, since the court ruled that motive and actual damage, or lack of damage, evidence was not relevant at trial, essentially, here we enter the sentencing phase where these two concepts can be discussed—whether or not there was any damage from these releases and what Manning’s motive was. And what we’re going to see happen is, the government is going to bring out 13 witnesses in closed sessions or with classified stipulation, so under black redactions, to talk about the lack of damage from these leaks.

And why do I keep saying "lack of damage"? Because in the pretrial record and in public reporting, we know, for example, that Brigadier General Robert Carr, who was the head of the Defense Intelligence Agency’s Information Review Task Force, determined that, you know, there were no sources and methods in these—in the Afghan War Logs or the—sorry, the Afghan War Diary or the Iraq War Logs. Robert Gates wrote a letter to Senator Levin in August of 2010 telling him as much, and that letter is part of the court record. We also know that the Department of State has another classified damage assessment. What’s interesting from the pretrial record of three State Department witnesses is—and also public reporting, is that Kennedy was responsible for testifying to Congress back in December of 2010 and early 2011, and two congressional officials, anonymous congressional officials, told—congressional aides told Reuters that the State Department was—that the impact of the revelations was embarrassing but not damaging.

And then there was another classified damage assessment from the National Counterintelligence Executive, which is part of the Office of the Director of National Intelligence headed by Clapper. And this was really a mitigation team set up in every federal agency, and it’s headed by a newly established national security staff insider threat group, headed by Clapper at ODNI and Eric Holder at the Department of Justice. And this was recently reported about by McClatchy, these insider threat groups within the federal government.

So, it’s going to be a very, very interesting time. We’ll also have unit witnesses. The question, of course, remains, is how much of this part of the trial—the heart of, you know, the trial, in many cases, to try to knock down this 136 years—the public will have access to.

NERMEEN SHAIKH: Alexa O’Brien, one of the charges for which Bradley Manning was found guilty was what they called "wanton publication." Could you explain the significance of this, especially with respect to military law and with regard to WikiLeaks?

ALEXA O’BRIEN: Absolutely. So, wanton publication, Manning was found guilty of. He faces two years maximum for it. Now, this particular offense has never been used in a military court-martial before. It’s not tied to any existing federal violation or punitive article under the Uniform Code of Military Justice. Now, what’s interesting about this is oftentimes whatever witnesses testified for aiding the enemy also testified for wanton publication. And what the government, essentially their case, what it was based on—wanton publication, the release of large data sets—was essentially that WikiLeaks was not a legitimate journalistic organization. That was one of their sort of theories that propped this up. And the other one was that evidence about receipt by the enemy of intelligence could be used to show that Manning’s leaks were wanton. So this is meant to proscribe disclosures of large data sets that—you know, that are made available by the Internet. It’s very cheap for people to publish right now. And while Manning doesn’t have to be the proximate publisher, it certainly is a chill or prohibition against anyone who—in the military or in the national security arena who wants to publish something, you know, on the Internet that will make the government angry.

NERMEEN SHAIKH: Alexa O’Brien, very quickly, before we conclude, could you explain how much you know about how many press and under what conditions the sentencing hearings will be covered, starting today at 9:30, just half an hour after our broadcast concludes?

ALEXA O’BRIEN: Well, we don’t have the press pool that we had here yesterday. It was a media circus here yesterday. But we have—our stalwarts are here. Reuters is here, and a couple other mainstream American news organizations are here. The conditions are probably going to be the same: arbitrary. They change every day. And the Internet probably won’t be working.

AMY GOODMAN: And, Alexa O’Brien, a final question: What were you most surprised by yesterday in this verdict? You have been there every day since the trial began.

ALEXA O’BRIEN: To tell you the truth, I wasn’t surprised by any of it. I had expected that she would come down on the espionage charges. What shocked me is how much press showed up for essentially the day the guillotine goes down on Manning.

AMY GOODMAN: I want to thank you for being with us and for your diligent reporting, Alexa. Alexa O’Brien is an independent journalist who has closely covered the Bradley Manning trial and will continue to cover the sentencing phase. She was the first to make transcripts of the proceedings publicly available, shortlisted for the 2013 Martha Gellhorn Prize for Journalism in Britain. And that does it for our show. You can read the transcripts, watch, listen to this broadcast, as well as our special broadcast yesterday when the verdict broke. Just go to democracynow.org.

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