SECRECY NEWS

from the FAS Project on Government Secrecy Volume 2012, Issue No. 37 April 23, 2012

Secrecy News Blog: http://www.fas.org/blog/secrecy/

** MANNING DEFENSE SEEKS DISMISSAL OF CHARGES

** WHY ARE THERE SO MANY LEAK PROSECUTIONS?

** STEPHEN DAGGETT, DEFENSE SPENDING, AND MORE FROM CRS

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.

http://www.fas.org/sgp/jud/manning/index.html

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.

http://www.fas.org/sgp/jud/manning/031512-dismiss.pdf

* 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."

http://www.fas.org/sgp/jud/manning/033012-disc-comp.pdf

* 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.

http://www.fas.org/sgp/jud/manning/032912-dismiss-mult.pdf

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.

http://www.fas.org/sgp/jud/manning/032912-dismiss-ch1.pdf

"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:

http://www.fas.org/irp/congress/2011_hr/monaco.pdf

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:

http://www.fas.org/sgp/crs/natsec/R42489.pdf

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:

http://www.fas.org/sgp/crs/natsec/R42493.pdf

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

http://www.fas.org/sgp/crs/misc/R42490.pdf

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

http://www.fas.org/sgp/crs/mideast/RS21968.pdf

Economic Growth and the Unemployment Rate, April 18, 2012:

http://www.fas.org/sgp/crs/misc/R42063.pdf