The controversy over Wikileaks has, at least temporarily, shifted its focus from the website’s founder Julian Assange to suspected informant Private First Class Bradley Manning.
Manning will face his accuser, the United States of America, at a pre-trial hearing, and the allegation that he delivered thousands of pages of US government documents to Wikileaks.
In this first stage of one of the biggest whistleblower cases in US history, second only perhaps to the case of Daniel Elsberg and the Pentagon Papers, Manning’s defence will have to use unorthodox tactics and think laterally to secure the best outcome for their client.
What are the charges?
Manning is facing 34 counts of violating the Uniform Code of Military Justice (UCMJ). The charges can be broken down into three categories – aiding the enemy, failure to obey orders, and finally, misuse of government information.
The first category is by far the most serious and could carry the death penalty, but prosecutors have indicated that they will not be seeking it. Still, if convicted, Manning could face a life sentence or a lengthy term of imprisonment.
A preliminary hearing under Article 32 of the code is similar to a preliminary hearing in a civilian criminal prosecution. Its purpose is to determine whether there is sufficient evidence to bind the defendant over to trial.
Although entitled to present a defence, most frequently defendants do not present their own witnesses but instead utilise the preliminary hearing as an opportunity to probe and examine the prosecution’s evidence. This tactic helps inform the defence of what to expect at the trial and also points out weaknesses that might be exploited.
But Manning’s defence team has indicated that they intend to present substantial witness testimony at the preliminary hearing – a most unorthodox strategy.
A difficult defence
Based on my own experience as a trial lawyer with some experience in military prosecutions, I think the defence team is using this tactic to lower the temperature before the situation gets any worse for their client. Keep in mind that Manning has a very difficult defence. He was a soldier in the army who had access to government records. As a Private, it is highly unlikely he had authority to disclose government documents to outsiders.
A claim already being discussed is that the documents released were not really secret and perhaps should not have been classified at all. Of course, this is not technically a defence unless the accused is authorised to declassify documents in the first place.
Nevertheless, with public tempers running relatively high, counsel may have concluded that Manning will benefit by the army and the public recognising that his disclosures did not compromise the security of the United States.
No real harm done
While the likely result of the hearing is one that sees Manning stand trial at a court martial proceeding, some of the charges might be dropped or at least the gravity of them mitigated if the defence can successfully fill the record with an abundance of evidence showing that any transgression was at worst a technical violation.
If you’re a regular viewer of TV legal dramas, the concept of conducting a defence during the preliminary hearing is familiar – often there is the dramatic confession of a guilty party that gets the defendant off the hook.
In the case of Private Manning, counsel may have the goal of at least knocking out the most serious charge – aiding the enemy. If they can establish that the documents in question were of no value to any enemy, the charge might be dropped. This leaves the government with the much less serious specifications relating to misuse of computers and unauthorised release of documents.
Pentagon papers revisited?
If the charge of aiding the enemy can be eliminated, the case against Manning begins to look more like the situation surrounding Daniel Ellsberg and the Pentagon Papers in 1971.
Ellsberg, while employed by a top secret government think tank, the Rand Corporation, photocopied thousands of pages of government memoranda documenting American involvement in Vietnam. Subsequently, Ellsberg then released the documents to the New York Times and other newspapers.
But the analogy between Ellsberg and Manning should not be pushed too far.
Ellsberg was a civilian and Manning is a soldier, they are held to different standards. Additionally, Ellsberg had the full benefit of his rights in the criminal justice system. Manning faces a board of court martial consisting of army officers and civilian courts who are extremely reluctant to interfere with military justice.
Besides, Ellsberg was prosecuted under federal criminal laws for disclosing the Pentagon Papers. The absence of a conviction may owe less to any claim of innocence than it does to the antics of the Nixon Administration. The federal judge had to dismiss all charges against Ellsberg once it became known that Nixon’s “Plumbers” unit had been hard at work breaking and entering the office of the defendant’s psychiatrist.
Had the plumbers not intervened, it is likely that Ellsberg would have been convicted and may have faced a prison sentence.
But there is something for the defence to learn from the Ellsberg playbook. While not descending to the depths of the Nixon gang, President Obama has already been dragged into the Manning case and accused the soldier of misconduct. The allegation has been made by the defence team that some of the President’s comments concerning Manning will deny the soldier a fair trial.
This is hardly of the same caliber as unlawful breaking and entering, and the fact that Manning is facing a military court martial instead of a civilian jury diminishes the potential prejudice caused by any remarks by the President.
Depending on the results of the preliminary hearing, Manning may be released or, as is the more likely result, will be bound over to face a court martial. If convicted, he may be confronted with a lengthy sentence at hard labour. Until then, we’ll have to wait and see what Manning’s defence team can do.