Manning Defense Seeks Dismissal of Charges

At a pre-trial hearing this week in the case of Pfc. Bradley Manning, who is suspected of releasing classified records to WikiLeaks without authorization, a military judge will consider several motions filed by Manning’s defense that seek to reduce the charges against him, or to have them dismissed altogether.

The defense motions, filed by attorney David E. Coombs and made available on his blog with some redactions, assert a range of objections including these:

*  The government has so egregiously failed to fulfill its discovery obligations — i.e. its duty disclose exculpatory and other “Brady” information to the defense — that the whole case must be dismissed.  “The Government’s abdication of its basic discovery responsibilities is unconscionable and irreparably prejudicial, mandating that all charges should be dismissed with prejudice,” Mr. Coombs contended.

*  The government has specifically failed to provide defense access to the computers in the secure area where Manning worked, which might enable it to rebut charges that Manning had uploaded unauthorized software on to his system.  “The Defense’s tentative theory is that all or most soldiers in the SCIF had unauthorized software on their computers (e.g. M-IRC Chat, Google Earth, Wget, movies, music, games, etc.)… The Defense intends to show that the practice of adding ‘unauthorized’ software was so pervasive that, in effect, all ‘unauthorized’ programs were implicitly or explicitly authorized.”

*  The government has improperly multiplied the charges against Manning by treating single violations as multiple offenses.  “This creative drafting by the Government drastically exaggerates PFC Manning’s criminality and unreasonably increases his punitive exposure,” Mr. Coombs wrote.

Perhaps the most penetrating challenge presented by the defense is a motion to dismiss the charge of “aiding the enemy” (Article 104) because, the defense says, there is no evidence that Manning intended to assist an enemy of the United States, and such an intent is a required element of the charge.

“Every court interpreting Article 104(2) has held that the Government must prove general criminal intent to give intelligence to, or communicate with, the enemy;  indeed, no prosecution under this Article has ever been maintained without some allegation of mens rea [i.e. criminal intent]…. mere dissemination of information to persons unauthorized to receive it is insufficient without the necessary criminal intent.”

But, Mr. Coombs wrote, “The Government has not alleged that PFC Manning intended to give intelligence to, or communicate with, the enemy in making the alleged disclosure to WikiLeaks.  Rather, the Government has merely alleged that PFC Manning had knowledge that the information, if ultimately published, might be accessible to the enemy and that such information might help the enemy.  Such a feeble mens rea allegation is patently insufficient to establish the requisite intent under Article 104.”  (He added that “The amount of conduct that is made subject to potential capital punishment under such an interpretation is staggering… The potential for liability is endless.”)

To the contrary, Mr. Coombs argued, “PFC Manning expressly disclaimed any intent to help any enemy of the United States” in the chat logs in which he discussed his actions.  “Far from intending to aid any enemy of the United States, PFC Manning’s actions and statements illustrate a conscious rejection of any such ill motive.”

Prosecutors have declined to make their responses to Mr. Coombs’ motions available to the public, so their positions are not known in any detail.

Mr. Coombs said that both sides are in agreement, however, that the Manning case “is one of the largest and most complex cases in United States military history.”

The pre-trial hearing, known formally as an Article 39(a) hearing, will be held April 24-26 at Fort Meade, Maryland.

Why Are There So Many Leak Prosecutions?

As is often remarked, the number of individuals charged with Espionage Act violations by the Obama Administration for disclosing information to the media without authorization is unprecedented and exceeds all previous cases in all prior Administrations combined.  But why is that?

There are several possible explanations.  One answer is that the sources of unauthorized disclosures are easier than ever to identify.  The actual disclosure transaction, as well as the source-reporter relationship behind it, often leaves an electronic footprint (especially email and telephone records) that official investigators are increasingly adept at exploiting.  Another explanation is that the voluminous and sometimes reckless disclosures published by WikiLeaks triggered a predictable intensification of efforts to track and punish leakers, along with the broader tightening of information security that seems to be the most enduring legacy of the WikiLeaks episode.

But yet another factor that is usually overlooked is that Congress has pressured the Administration to vigorously pursue leaks.  Congressional leaders want leak prosecutions, and they want a lot of them.

At her May 17, 2011 confirmation hearing to be head of the Justice Department’s National Security Division (NSD), Lisa O. Monaco noted the role of the Senate Intelligence Committee in pushing the issue.  “This Committee has… pressed the [Justice] Department and the intelligence community… to ensure that unauthorized disclosures are prosecuted and pursued, either by criminal means or the use of administrative sanctions,” she said.

After Ms. Monaco described each of the multiple pending leak prosecutions that were pending at that time, she was nevertheless asked (in pre-hearing questions) “Are there any steps that the Department could take to increase the number of individuals who are prosecuted for making unauthorized disclosures of classified information to members of the news media?”

Ms. Monaco told the Intelligence Committee that “the NSD has been working closely with the Intelligence Community to expedite and improve the handling of such cases.”  She pledged to the Committee that it would be “my priority to continue the aggressive pursuit of these cases.”   And so it has been.

The record of Ms. Monaco’s 2011 confirmation hearing before the Senate Intelligence Committee was published last month and is available here.

Stephen Daggett, Defense Spending, and More from CRS

We note with sadness the death last week of Congressional Research Service analyst Stephen Daggett, who tutored generations of Members and congressional staff in the intricacies of U.S. military spending.  Although I did not know him personally, I read his work and learned from him for many years.  Our condolences to his family and his CRS colleagues.

A new report co-authored by Mr. Daggett, presumably his final contribution, is FY2013 Defense Budget Request: Overview and Context, April 20, 2012

Other new and updated CRS reports that Congress has not made available to the public include the following.

Army Drawdown and Restructuring: Background and Issues for Congress, April 20, 2012

Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA Modernization Act of 2010 (GPRAMA), April 18, 2012

Iraq: Politics, Governance, and Human Rights, April 19, 2012

Economic Growth and the Unemployment Rate, April 18, 2012

Multilateral Development Banks: Overview and Issues for Congress, April 18, 2012

GAO Completes an “Intelligence-Related” Review

Following years of controversy, the Government Accountability Office this week released an unclassified version of its long-awaited report on FBI Counterterrorism.

The report itself comes as an anti-climax, but it is the first GAO report involving intelligence-related matters to be completed since the issuance of an intelligence community directive last summer which authorized GAO to gain access to certain intelligence agency information.  As such, it may herald a growing role for GAO in intelligence oversight.

Given the FBI’s and the Justice Department’s stubborn resistance to this GAO review, which was suspended for two years as a result, one might have expected the resulting report to address matters of the greatest significance and sensitivity — perhaps dealing with infiltration of mosques, allegations of entrapment, unauthorized domestic surveillance, or something along those lines.

Instead, however, the new report is about as mundane as it could be.  It examines the FBI’s progress in filling vacancies in its counterterrorism division — which is part of the intelligence community — and concludes that the Bureau has indeed made reasonable progress in doing so.  Fine.  (The classified version of the report contains specific personnel numbers which have been withheld in the unclassified version because the FBI considered them sensitive.)  See FBI Counterterrorism: Vacancies Have Declined, but FBI Has Not Assessed the Long-Term Sustainability of Its Strategy for Addressing Vacancies, Report No. GAO-12-533, April 2012.

Even within the narrow context of human capital, the GAO report does not inquire whether the FBI’s mission performance has been adversely affected by the number of vacancies in its ranks, or whether in fact those vacant positions might be superfluous.

That might be an interesting line of inquiry, but GAO can only pursue the questions that Congress asks it to pursue, said David C. Maurer of GAO, and Congress didn’t ask that question.

While the substance of the new GAO report is of ephemeral interest, the report may nevertheless have long-term significance as a catalyst for, and a portent of, greater GAO involvement in intelligence oversight.  If nothing else, the multi-year controversy over this report prompted the issuance last year of Intelligence Community Directive 114 that made its completion possible.

“I hope it’s an indication that the door is open to a continuing role for GAO on intelligence matters,” said Mr. Maurer said of the new report, while acknowledging that it is still only “a data point of one.”

Secret Systems Clutter the Electromagnetic Spectrum

The difficulty that the military has in allocating the efficient use of the electromagnetic spectrum for military operations is aggravated by the fact that some of those uses — involving intelligence platforms and sensors — are secret even from military planners themselves, a new Pentagon doctrinal publication notes.

“Coordination with intelligence units and agencies can be challenging for many reasons, to include classification issues, disparate data formats, and separate technical control or reporting channels,” the publication states.

“In many cases, the JSME [joint spectrum management element] does not have adequate visibility or knowledge of intelligence sensors, platforms, or systems in order to accomplish accurate deconfliction.”

“In order to capture all aspects of intelligence spectrum use, the JSME must understand that intelligence platforms such as UAS/unmanned ground system will have spectrum requirements for both a payload (e.g., imagery or data) and control frequencies to operate the platform.”

“Intelligence is a heavy user of sensors that employ both active and passive techniques. Active sensors are usually accounted for, but the passive sensors will also require spectrum consideration so they perform properly.”

See Joint Electromagnetic Spectrum Management Operations, Joint Publication 6-01, Joint Chiefs of Staff, March 20, 2012 (at page V-12).

The Evolving Missions of the Secret Service, and More from CRS

Though it does not mention anything about Secret Service agents hiring prostitutes in Colombia last week, a newly updated report from the Congressional Research Service provides a timely discussion of The U.S. Secret Service: An Examination and Analysis of Its Evolving Missions, April 16, 2012

Some other new or newly updated CRS reports obtained by Secrecy News include the following.

An Overview of Tax Provisions Expiring in 2012, April 17, 2012

Private Health Insurance Market Reforms in the Patient Protection and Affordable Care Act (ACA), April 16, 2012

Pension Benefit Guaranty Corporation (PBGC): A Fact Sheet, April 16, 2012

Nanotechnology: A Policy Primer, April 13, 2012

FAS Roundup: April 16, 2012

France’s nuclear forces, water security in Yemen, innovation in secrecy policy and much more.

From the Blogs

  • Secret Satellite Promptly Detected in Orbit: On April 3, the National Reconnaissance Office successfully launched a classified intelligence satellite into orbit from Vandenberg Air Force Base.  Notwithstanding the usual operations security measures, amateur satellite trackers were able to locate the satellite in orbit within a few hours and videotape its passage overhead.
  • Technological Assessment at the Congressional Research Service: The elimination of the congressional Office of Technology Assessment in 1995 was a self-inflicted wound that left Congress with diminished capacity to evaluate the challenging scientific and technological issues that continue to confront it.  Steven Aftergood writes that the need for such an enterprise to support the legislative process has not gone away, and to a limited extent it is now being addressed by the Congressional Research Service (as well as the Government Accountability Office).
  • A Closer Look at Water Security in Yemen: A few weeks ago, the State Department took advantage of World Water Day to announce the release of a National Intelligence Council report entitled “Water Security,” which assessed the possible effects of water shortages on U.S. national security over the next several decades. Mark Jansson investigates the relationship between water security and U.S. national security, and how the NIC report relates to Yemen’s current water challenges on the FAS in a Nutshell Blog.
  • Fermi Versus Some Guy from Podunk: In a new post on the ScienceWonk Blog, Dr. Y writes that the world is the way that it is and the job of science is to try to tease out the rules that describe its workings. No vote – no matter how overwhelmingly one-sided – will change the rules of nature. So why is it that a recent University of North Carolina (Chapel Hill) survey showed that belief in science continues to dwindle in the United States?
  • Institutionalizing Innovation in Secrecy Policy: Steven Aftergood writes that it is possible to imagine all kinds of changes in government secrecy policy that would make the secrecy system smaller, more efficient, more susceptible to error correction, and more attuned to shifting security requirements. But before any change could be adopted in practice, it would almost certainly need to be tested and validated for use, particularly if it involved a real departure from current procedures.
  • A New Edition of the Manual for Courts-Martial: Last week, the Department of Defense published the 2012 edition of the Manual for Courts-Martial (MCM). The Manual contains the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), and the Uniform Code of Military Justice.  The latest edition incorporates legislative amendments and other changes introduced since the previous edition was published in 2008.




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FAS in the News

“Traitor,” A Whistleblower’s Tale

Jesselyn Radack’s memoir “Traitor: The Whistleblower and the American Taliban” presents the moving story of a young attorney’s unexpected encounter with official misconduct, and the excruciating ordeal that ensued when she decided to challenge it.

In 2001, Ms. Radack was a Justice Department attorney and specialist in legal ethics.  In response to an official inquiry, she advised that the newly captured John Walker Lindh, the so-called “American Taliban,” should not be interrogated without an attorney present — which he then was anyway.  When Department officials publicly denied having received any such legal advice, and even destroyed evidence to the contrary, she exposed the deception.

Ms. Radack was not looking for a fight, but only to do the right thing. For her trouble, she was forced out of her Justice Department position, put under criminal investigation, fired from her subsequent job, reported to the state bar, and put on the “no fly” list.

“Traitor” is the story of a young professional whose career is derailed because her ethical compass will not let her be silent in the face of offical dishonesty.  It is also the story of a political system that is seemingly incapable of tolerating honorable dissenting views within the government workforce.

While a handful of “whistleblowers” become figures of popular acclaim, or heroes of movies such as The Insider or Erin Brockovich, they are the exception rather the rule, Ms. Radack writes.

“The media glorifies those who risk everything to expose corruption and illegal activity and rightly so; these lionized individuals deserve every ounce of praise they receive.  But their happy outcomes are not typical– for every success story, there are a hundred stories of professional martyrdom.  Mine is one of them.”

Ms. Radack eventually found a measure of redemption as an attorney with the Government Accountability Project where she has turned her own experience to advantage in promoting whistleblower rights.  She was among the most stalwart and effective defenders of Thomas Drake, the former NSA official and whistleblower whose dubious prosecution under the Espionage Act ended with the dismissal of all felony charges against him.

The Bush administration (in which she worked) was hostile to whistleblowers, according to Ms. Radack, but the Obama administration is even worse.

“The Bush administration harassed whistleblowers unmercifully,” she writes.  “But it took the Obama administration to actually prosecute them.”

I don’t think it is true, however, that the prosecution of Thomas Drake “was a test case for the Justice Department to try a novel legal theory… that the Espionage Act could be used to prosecute leakers” (p. 159).

Far from being novel, the use of Espionage Act to prosecute unauthorized disclosures of classified information predates the Drake case by decades.  At least since the conviction of Samuel L. Morison in the 1980s for providing classified intelligence imagery to Jane’s Defence Weekly — and the Supreme Court’s refusal to review the case — this application of the Espionage Act has been seemingly well established.

And there is some ambiguity about who qualifies for the appellation “whistleblower.”  It is a loaded term both because it presumes the pure intention of the individual challenger, and because it takes for granted the corruption of his target.  These need to be demonstrated, not simply asserted.  It cannot be the case that a strong sense of personal conviction, untethered from legal or ethical constraints, is enough to entitle anyone to be called a whistleblower.  If that were so, then Jonathan Pollard and other disreputable figures could claim the title.

Ms. Radack states twice that the Obama Administration has prosecuted leakers “who more often than not were whistleblowers” (p. 69, 92).  This suggests that she thinks at least some of the six leak defendants to have been prosecuted by the Administration may not have been whistleblowers.  But if so, she does not specify which ones they were, or why she came to that conclusion.

I would say that “whistleblowers” are not a separate category of people in any essential sense.  Anyone can act with integrity under some circumstances.  The whistleblowers that we honor are people who act with integrity under extreme duress and sometimes at great cost.  Jesselyn Radack’s memoir is an eloquent account of one such case.

U.S. Energy Overview, and More from CRS

Newly updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

Millennium Challenge Corporation, April 12, 2012

The G-20 and International Economic Cooperation: Background and Implications for Congress, April 12, 2012

U.S. Trade Deficit and the Impact of Changing Oil Prices, April 13, 2012

Teenage Pregnancy Prevention: Statistics and Programs, April 12, 2012

U.S. Energy: Overview and Key Statistics, April 11, 2012

New Article: French Nuclear Modernization

A new report describes worldwide nuclear weapons modernization efforts

By Hans M. Kristensen

The organization Reaching Critical Will has published a collection of articles about the nuclear weapons modernization programs that are underway in the various nuclear weapons states around the world.

My modest contribution is the chapter on France (pages 27-33).

The report – Assuring Destruction Forever – illustrates that although the Cold War nuclear arms race has ended, a global effort to modernize and improve nuclear weapons is in full swing. For some regions (India-Pakistan and India-China) this effort has elements of an arms race, but for most countries it is about extending and improving a nuclear weapons capability indefinitely.

This should remind us why it is increasingly meaningless to assess nuclear arms control progress in numerical terms by comparing the sizes of today’s arsenals with those of the Cold War. Progress increasingly must be measured in constraint: yes, by reducing arsenals further, but perhaps more importantly by curtailing deployments, operations, missions, life-extensions, modernizations and improvements.

Otherwise, the dynamic efforts to extend and modernize the remaining nuclear arsenals may end up working against the nuclear arms control process. Because life-extension and modernization efforts are accompanied by declarations by the nuclear weapon states and alliances about the continued importance of nuclear weapons to national and international security, there is a risk that they will combine to reaffirm and prolong the nuclear weapons era instead of delegitimizing and shortening it.

This publication was made possible by a grant from Carnegie Corporation of New York and Ploughshares Fund. The statements made and views expressed are solely the responsibility of the author.