Col. Morris Davis, retired Air Force colonel, he resigned as the former chief military prosecutor at Guantánamo Bay in 2007. He testified at the Bradley Manning trial this week.
Kevin Gosztola, civil liberties blogger at firedoglake.com. He is covering Manning’s trial in Fort Meade, Maryland. He is co-author of Truth and Consequences: The U.S. vs. Bradley Manning. He is a plaintiff in a lawsuit brought by the Center for Constitutional Rights that challenges government secrecy in Manning’s court-martial.
Reporter and blogger Kevin Gosztola has been one of only a handful of journalists covering the Bradley Manning trial on a daily basis. He describes the first few weeks of the historic trial. We also speak to Col. Morris Davis, the former chief prosecutor at Guantánamo, who testified for the Manning defense.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Nermeen Shaikh.
NERMEEN SHAIKH: Defense attorneys for Army Private Bradley Manning are trying this week to show that much of the information he is charged with leaking was already publicly available. At his ongoing court-martial, Manning’s lawyers filed four motions on Tuesday asking for a "not guilty" verdict, arguing the government has not been able to prove he committed espionage or other offenses.
AMY GOODMAN: To talk more about the trial, we’re joined by two guests in a post-show interview. Kevin Gosztola is civil liberties blogger at Firedoglake, attending Manning’s trial in Fort Meade, Maryland, co-author of Truth and Consequences: The U.S. vs. Bradley Manning. We’re also joined by Colonel Morris Davis, retired Air Force colonel, resigned as former chief military prosecutor at Guantánamo in 2007. He testified at the Manning trial Monday and Tuesday.
We welcome you both to Democracy Now! Let’s begin with Kevin Gosztola. You’re speaking to us from your car in the Fort Meade parking lot. That is where the court-martial is taking place, right next to the parking lot. It also is the headquarters of the National Security Agency. And, Kevin, we can’t stress enough how significant it is that you’re one of the few reporters that have been there from the beginning. How is this trial being covered?
KEVIN GOSZTOLA: It really is only being covered when the outlets in the U.S. media feel they have an obligation to cover something. So, for example, this is the first day of the trial—that’s something important; this is the first day of Bradley Manning’s defense—that’s feels like something important. Other than that, we aren’t going to see a lot of outlets. We’ve seen a small, dedicated, core group of individuals, of which I have been a part, an independent journalist named Alexa O’Brien, Courthouse News reporter who works in New York City named Adam Klasfeld. We’ve had a courtroom sketch artist named Clark Stoeckley, who also happens to be the driver of the WikiLeaks Truck, which, I have to tell you, it is quite remarkable and phenomenal to watch that drive onto the base every single day. And then we have Nathan Fuller, who is a reporter for the Bradley Manning Support Network. And these are the people who have been showing up every single day, and many of us don’t even live in D.C. It baffles me that in a city of Washington, D.C., where I assume there are thousands of journalists, there aren’t more reporters who feel like they should be here regularly. But we’ve had Associated Press here regularly. They have been doing good work as an establishment news organization. Occasionally we see The Washington Post, The Guardian. The New York Times shows up from time to time because they were shamed by their public editor, Margaret Sullivan. We just don’t have the sort of wall-to-wall coverage that the George Zimmerman trial has or some of these other more sensational trials.
NERMEEN SHAIKH: Kevin Gosztola, could you explain what the significance is of the way in which WikiLeaks is being characterized in the trial—that is, that Manning leaked these documents to the website WikiLeaks and not to a mainstream media outlet like The New York Times?
KEVIN GOSZTOLA: There’s an Army intelligence report that Manning is accused of leaking from the Army Counterintelligence Center. It suggested that WikiLeaks might pose a threat to the U.S. military. That wasn’t a question that was answered by the report. They were able to find fact that the enemy in fact would use WikiLeaks to go find U.S. government information. But in that report, it describes WikiLeaks as an organization that is intent on basically stealing proprietary data of the United States government or even corporations, and doing this because they feel they have a commitment or desire to expose wrongdoing of governments. So they see Manning as working on behalf of this organization.
And today, after we are done with this interview, Professor Yochai Benkler is going to take the stand for the defense, and he is being put on the stand to talk about what is WikiLeaks. It’s very important in this case that the defense gets out that WikiLeaks is a media organization, that when Bradley Manning engaged in his act, which I consider classic whistleblowing, based on his statement on February 28th, that WikiLeaks is in fact a media organization and not some sort of organization that would have been possibly working and doing so for the benefit of foreign intelligence services or adversaries like terrorist organizations.
AMY GOODMAN: Well, I mean, the fact is that WikiLeaks collaborated with The New York Times, The Guardian of Britain, the El País of Spain, Der Spiegel in Germany, and many other very mainstream news organizations in releasing these documents. Now, Kevin, just that picture you described of the court artist is the one driving the WikiLeaks Truck?
KEVIN GOSZTOLA: That’s correct. In fact, there’s a story. He was stopped on base in the visitors’ parking lot on Monday, and in fact a police officer approached him and said, "We have a report that you’re disseminating top-secret information on Fort Meade base." And they went over his car, and they even asked to search it, but he said, "You have to get a warrant to do that." He’s a very fun individual to have in the press pool with us, Clark Stoeckley, and he’s done some very amazing sketches. You can see them in every single post that I do on the court-martial.
NERMEEN SHAIKH: Kevin Gosztola, what’s the significance of this being a court-martial, that is, a military trial, rather than a trial in a civilian court? How is that being played out, both for the prosecution and, in particular, of course, for the defense?
KEVIN GOSZTOLA: I think that the difference is getting blurred, because we have the national security state really taking over a lot of the legal processes in the United States. But what I fundamentally see is that Coombs has an uphill battle as Manning’s defense lawyer and that he is arguing against the government, which is making a case to a judge that is basically appointed by the government to oversee this case. So there’s a culture to this whole process that he has to overcome that I think is nearly impossible, which really increases the possibility that Manning is going to get some kind of a harsh sentence and, in fact, get convicted of some of these charges that, to an outside observer, to a regular reporter who’s been following this process for, you know, about two years now, that it looks like there’s no evidence for any of these charges, and yet one can also see the judge hedging and deciding that she’s going to split the difference and give Manning some kind of a sentence where he wouldn’t get out of jail until he was 50 or 60 years old.
AMY GOODMAN: Kevin Gosztola, can he conceivably get the death penalty, even if the prosecutors don’t ask for it?
KEVIN GOSZTOLA: I think that the judge would have that ability, although I don’t know why she would exercise that authority.
AMY GOODMAN: Then, what you were most surprised by in the prosecution’s case against Bradley Manning?
KEVIN GOSZTOLA: Well, what’s been so surprising is that they don’t have a lot of evidence. They have mostly circumstantial evidence. They can prove what Manning confessed to, that he willfully communicated this information to persons that were unauthorized to receive it, which, in a sense, is a violation of the Espionage Act, although I will say that there are other ways to prosecute and go after individuals who violate this act. You don’t have to treat them as spies, as our government is doing and how the Obama administration has gone after a record number of individuals. But there’s all of these different instances of passing on information. And they want to say he exceeded authorized access on his computer, when he didn’t do any hacking. They want to say that he stole the information, when he had regular access to the material and it was fully within his privileges as a intelligence analyst to have the information on his computer. And so, that is why, as we’re seeing in this court-martial right now, the defense is pushing to get dismissed or to get a finding of not guilty on about half of the charges.
AMY GOODMAN: Morris Davis, you’re a retired Air Force colonel. You’re the chief military prosecutor on Guantánamo, but decided to resign in 2007. We want to ask you about that in a moment, but as for this trial, how significant is it?
COL. MORRIS DAVIS: Well, let me just correct one thing that Kevin addressed, that in the military the death penalty is only authorized—you have to have a jury, a minimum of 12 jurors. You can’t go judge alone, as this case is, and have the death penalty. For instance, right now in Texas at the Fort Hood case of Major Nidal Hasan, they’re in the process of doing jury selection now, because he is facing the death penalty. Manning is, though, looking at a potential life sentence, so that would be the maximum punishment.
It’s an important trial. I mean, certainly, I think the Obama administration came into office saying they’re going to be the most transparent and open administration, you know, in the history of America, and instead they’ve indicted more people for espionage than every president combined up until the current administration. And I think what they’re trying to do is make an example out of Private Manning, because certainly in today’s era where dissemination of information is easier, I think they really want to try to make examples of people like Manning to deter folks in the future. And I think it’s a case of overcharging, like with Aaron Swartz or Tom Drake or John Kiriakou, where, again, it’s just making an example.
NERMEEN SHAIKH: So what do you think, Colonel Davis, is the likely outcome of this trial? And what would you like to see happen?
COL. MORRIS DAVIS: Well, I’m hopeful. I mean, I think there are a number of us that feel that Private Manning has pled guilty to the offenses that represent his misconduct, and he ought to get a reasonable sentence for what he’s admitted that he did. But this trying to add on that, you know, he had the intent or will to aid al-Qaeda is, in my view, absurd. Now, I think what happened here—I mean, this case reminds me of Y2K, because, if you recall, back in 1999, as New Year’s approached, everybody was like, "Oh, my god! You know, planes are going to crash, and computers are going to go down, and banks are going to be in chaos," and then midnight came, and nothing much happened. And I think this WikiLeaks case is kind of that same type of analogy, where initially it was, "Oh, my god! These documents are going to be catastrophic to the U.S. government," and they went out, and not a lot happened. But I think once the government got on that horse, that this is a big deal, it’s going to be a significant event, they haven’t been willing to back down. And so they’re still going down that path where, in my view, Private Manning has pled guilty to the offenses that represent what he ought to be responsible for.
AMY GOODMAN: You mentioned, Colonel Davis, John Kiriakou, and I wanted to ask Kevin about John Kiriakou, because you have been in communication with him in prison. First, Kevin, explain why John Kiriakou is in jail, and then talk about your communications.
KEVIN GOSZTOLA: Well, first off, for his safety and protection, I have not had any communication with John Kiriakou. His lawyer, Jesselyn Radack of the Government Accountability Project, who has the attorney-client privilege to have these letters in her possession and then do with them what she would like, has provided those letters to Firedoglake to share.
John Kiriakou is convicted of—or he pled guilty to violating the Intelligence Identities Protection Act and communicating to a reporter the name of an intelligence agent that he was not supposed to disclose. And he pled guilty to this because he was being prosecuted under the Espionage Act, and he wanted to get out of jail before some of his younger children had grown up and he missed seeing that as a father. And so, now he’s in prison. And Firedoglake believes that somebody in the Bureau of Prisons system should be able to exercise their First Amendment rights. Generally, Kiriakou has been sharing what it’s been like to be in Loretto, Pennsylvania, in the correctional facility there, where actually Cameron Douglas—in the Douglas family, Michael Douglas—is, and he has been in that facility, as well. And Kiriakou has been talking about what it’s like with the medical unit, how even at one point he was set up, that they tried to go after him and claim that another prisoner was a terrorist. And then he said, "No, I don’t think that’s true, because I can speak Arabic, and I talked to him, and he’s not related to the Times Square bomber." And so, we believe that he has free speech rights, and Firedoglake is standing up for his right to share what it’s like to be in prison.
AMY GOODMAN: And his description of what’s happened to him—for example, is it true he broke his finger?
KEVIN GOSZTOLA: That’s correct. And I don’t know how he broke his finger. That information hasn’t been shared, whether it was just an injury or if someone else in the prison did that to him. For personal reasons, he’s chosen not to disclose that information at this point. But we know that when he asked for the medical attention, he was initially denied the ability to have an X-ray. And then, 18 days later, he eventually was taken, but taken in shackles with something attached to his shackles that he said was the size of a hard drive, so that he could not pick a lock and get out of his shackles. And he was loaded into a vehicle, taken to a place nearby. And this is important for people to understand that when the Bureau of Prisons made a deal for him to go to Loretto, Pennsylvania, they were going to put him in a minimum-security camp, which meant he would have had much more movement and would not have been treated in the way that he’s being treated right now.
AMY GOODMAN: Kevin Gosztola, civil liberties blogger at Firedoglake, is a reporter covering the Bradley Manning trial at Fort Meade, Maryland, from the beginning, speaking to us from his car in the Fort Meade parking lot before the trial. He’s co-author of Truth and Consequences: The U.S. vs. Bradley Manning and a plaintiff in the lawsuit brought by the Center for Constitutional Rights that challenges government secrecy in Bradley Manning’s court-martial. We’ve also been speaking with Colonel Morris Davis, who was the chief military prosecutor at Guantánamo Bay but resigned in 2007. He testified at the Manning trial Monday and Tuesday. I’m Amy Goodman, with Nermeen Shaikh.
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