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Espionage Charges In Wikileaks Case. What's Next?
July 31, 2013 1:11 p.m.
Gary Barthel, Military Law Attorney, Higgs Fletcher & Mack, San Diego
Gabriel Conaway, Organizer San Diego Coalition to Free Manning
Related Story: What's Next For Wikileaks Espionage Case?
CAVANAUGH: Last night in Hillcrest, a group of supporters of private first class Bradley Manning celebrated his not guilty verdict on aiding the enemy. But the group also decried the fact that he was found guilty on a number of other charges, including several counts of espionage. The charges stem from his army assignment in Iraq in 2009 when he was arrested for downloading and transmitting classified databases to the website WikiLeaks. The reasons why Manning transmitted the information, the damage done, and the larger implications of this prosecution are all still unresolved. Joining me to shed some light on this complicated case is my guest, Gary Barthel, a military law attorney with Higgs, Fletcher, and Mack here in San Diego.
BARTHEL: It's a pleasure to be here.
CAVANAUGH: Remind us what kind of information Bradley Manning sent to WikiLeaks.
BARTHEL: Well, some of the information he sent to WikiLeaks included some videos, there were also reports that were done pertaining to several operations that have been done. And I think more importantly, there were documents that identified people who were giving us intelligence on Al-Qaeda in the area. And I think some of that information was probably the information that had a negative impact on military operations in the area.
CAVANAUGH: Now, part of this information was video of footage of a U.S. Army helicopter attacks in Iraq?
CAVANAUGH: Now, this case has never been a whodunit. Hasn't he pleaded guilty to transferring this classified information?
BARTHEL: Yes, he did plead guilty to ten charges, including a lawful violation of a general order. And he pled not guilty to ten others. The judge went through all the evidence and in a military court martial -- a court martial is different than a civilian criminal case in that there's two phases to the trial. During the first phase, the fact-finder, in this case a judge, listens to all the evidence, and then makes a decision as to guilt or innocence as to those charges. And then the second phase of the trial is the sentencing phase.
CAVANAUGH: Which we're in now.
BARTHEL: That's correct.
CAVANAUGH: Now, he was found not guilty of aiding the enemy. That was the most serious charge. Tell us the government's legal theory behind that charge.
BARTHEL: The government's theory on that charge was that he knowingly gave this information out and knew that it was going to into enemy hands. And I think the judge found after listening to all the evidence that there was not sufficient evidence, in other words the government did not prove beyond a reasonable doubt that manning knew that the information that he was releasing was going to go into enemy hands. So for that reason, the judge found him not guilty.
CAVANAUGH: In other words, most of the time someone would be accused or tried on this particular charge, aiding the enemy, is it they gave classified information to an enemy?
BARTHEL: Sure. And a good example is some of the other espionage cases that have been tried in the past, you have somebody who's handing information to a -- somebody from the other side, or an enemy spy or whatever the case may be. In this case you have information that's being dumped into a database, then it's being disseminated from there. So it's not like manning was handing this information to Al-Qaeda. But it should be noted that some of the charges that he was found guilty of, although there was not a specific intent element in those charges, the charges did allege that he had reason to believe that that information would end up in enemy hands. So that's the distinction between aiding the enemy and the espionage charges that he was found guilty of it.
CAVANAUGH: Was it reason to believe or he should have known?
BARTHEL: It's reason to believe.
CAVANAUGH: Okay. And that's a higher burden, isn't it? A stiffer charge?
BARTHEL: It's a little stiffer charge. But it's more of a negligence sort of offense than a specific intent.
CAVANAUGH: Now, as I say, that was the charge that got most attention, not only because it would have meant a life sentence but because critics say it would have created a chilling effect on journalists because what journalists do is they get information and they publish it. They have don't hand it over to the enemy, but every once in a while, I guess the enemy could go on your website or pick up your paper or listen to your broadcast. Do you agree that that was an implication in that charge against Manning?
BARTHEL: I don't necessarily agree with that. I think that there's always going to be leaks of information. But in a situation when you're at war with somebody and you've got classified information, secret information, and people are entrusted to protect that information for the sake of national defense; I think it's wrong for those individuals to, for whatever reason, to release that information. In this case, Manning had a personal agenda for doing it. He felt that what was going on was wrong. Right or wrong, he should not have taken it upon himself to release this information that he was entrusted to protect. And as a result of doing that, he jeopardized the lives of not only American troops in the area but others who were helping us in the war effort.
CAVANAUGH: Well, I think now is probably a very good time to bring in a guest who has a different opinion. Last night the group San Diego Coalition to Free Bradley Manning rallied in Hillcrest. Joining me on the group is Gabriel Conaway. Welcome to the program.
CONAWAY: Thank you.
CAVANAUGH: Can you tell us your reaction to yesterday's verdicts?
CONAWAY: I guess we weren't too surprised. We were pleasantly surprised that the aiding the enemy charge was dropped. But the behavior of the judge in this case, we haven't been really -- we were expecting the worst the whole time to be honest.
CAVANAUGH: So can you tell me, can you synthesize when you're supporting Manning? You heard Gary talk about the fact that since we're talking about someone who was entrusted with state secrets, not a journalist, not just someone on the street, but someone who basically had taken an oath to defend the United States, transmitting confidential documents to another source that shouldn't have had them, where do you find the idea that this is a whistleblower situation, that Manning is in a sense a hero?
CONAWAY: Well, I urge your listeners to go and read the chat looks been Manning and Adrian hat low, that he had no idea this person was going to release these chats. And they pretty much show the motive and the reasoning behind what Manning did. I don't have a list in front of me, but these leaks include war crimes, the fact we have a policy of knowingly turning over detainees to people who torture, Daniel El burg who is a big supporter of Manning himself did just what your guest says you shouldn't do, release things because you think it's right. That's the whole content of whistleblower as I understand it.
CAVANAUGH: How many people turned out for the really last night?
CONAWAY: I didn't get a head count. This is our third rally in the past six months or so. The first two had about 80-100 people, and I'd say we had a little under that, considering it was just a 24-hour notice.
CAVANAUGH: How does the fact that Bradley Manning is gay work into these rallies? Does it mean anything at all?
CONAWAY: I guess that's a good question. For me, yes, for a lot, yes. I honestly think because of the revelations and what happened to due to these leaks from aiding in the revolution in Tunisia and the Arab Spring to the withdrawal of troops from Iraq, I would say that Manning is the most significant queer person of my time. But I think what he did and the whole concept behind revealing wrongdoing that our leaders are doing is a concept that I think we all agree and support as well.
CAVANAUGH: Now, how would you like to see this case turn out? As I said, we are now beginning this sentencing phase of the trial. What kind of sentence do you hope he'll get?
CONAWAY: I hope that he's released tomorrow.
[ LAUGHTER ]
CONAWAY: Honestly, I think time served and the disgusting treatment that Manning was held under should definitely be time-served. Immediate release is what we're calling for. Unfortunately, because of like I said, some of the behavior from the judge, and what the prosecution has gotten away with doesn't make us too optimistic, honestly.
CAVANAUGH: Are you planning more rallies?
CONAWAY: Yeah, we're following the case just like you are. So whenever there's a call to come to the streets and raise awareness and put pressure on the powers that be, absolutely.
CAVANAUGH: Gabriel Conaway with the San Diego coalition to free Bradley Manning. Thanks a lot.
CONAWAY: Thank you so much.
CAVANAUGH: So the sentencing hearing is underway now, Gary. Can you give us some kind of idea of the time in prison that Bradley Manning is facing?
BARTHEL: Right now, he's looking at a total of 136 years in prison. If he's awarded a substantial amount of time, usually over ten years, he'll do that time either at Fort Leavenworth or a federal penitentiary somewhere here in the United States.
CAVANAUGH: What do you expect the defense to try to show the judge in this case in order to get the lowest possible time in prison for Manning?
BARTHEL: I think what the defense is going to show -- and I just want to note that in the military on the sentencing stage, it's an adversarial proceeding, just like the first phase of the trial. So each side is going to present their evidence, the prosecution will present evidence, showing the negative impact that this has had. And they'll probably be arguing for the maximum punishment possible. The defense on the other side, they're going to try and humanize PFC Manning, and they're going to refer to his age, his inexperience, the fact that the theory has been all along that he never intended to harm anybody as a result of these leaks. And that he was doing it for an altruistic reason. It should be noted that in the military, the defense is entitled to ask the Court to relax the rules of evidence. And that allows them to bring in character evidence and other types of evidence on behalf of the Defendant to present to the Court to show that, hey, he's not a monster that the prosecution is trying to make him out to be.
CAVANAUGH: Gary, to your knowledge has the prosecution ever proven that there was anything terrible that as a resulted from the leak of this information?
BARTHEL: I believe that there is some evidence that some of the individuals, the local civilians who were providing us with intelligence, have been killed as a result of the leaks. And some of their families threatened. I'm not exactly sure how much of that came out during the first phase, but I anticipate that we're going to see more of that type of evidence in the sentencing phase.
CAVANAUGH: Now, observers have been trying to find similarities between this prosecution and the potential prosecution of Edward Snowden. He is the CIA contract employee who leaked information about the government's massive phone and data surveillance program. Are there similarities?
BARTHEL: I think there are similarities. I think in both cases, you have an individual who is entrusted by the government to protect government secrets, classified documents, and just like Manning, Snowden had a personal reason why he felt it was necessary to release that information. And the problem I have with Manning being a whistleblower is that there are mechanisms in place, both in the military as well as in the NSA that if somebody sees something that they don't like, there's other avenues that they can pursue. But to take it upon themselves and release this information, having some idea or no idea what the impact of that release is, I think is criminal.
CAVANAUGH: And of course Manning is being tried in a military court as opposed to a civilian court, where Snowden would presumably end up.
BARTHEL: Correct. And there's a distinction there. Because if Snowden is ever brought to trial, he'll be brought to trial in a federal district court. And the federal court system has sentencing guidelines. The military has no sentencing guidelines. So whatever evidence is presented at the sentencing phase, are that's the evidence that the judge is going to rely on in coming to a sentence in the case.
CAVANAUGH: Did Manning's case shine a light on an area that the military hadn't addressed in trying to keep its classified information classified?
BARTHEL: I think the Manning case presents a unique situation where we have today with the technology we have and the worldwide websites out there, and things like WikiLeaks that are available, that it has opened up a door. And I think as a result of the Manning case, we could potentially see changes in the Uniform Code of Military Justice where the aiding the enemy could be modified somewhat from the specific intent crime, in other words that you knew that the information that you were releasing was going to the enemy. It could be changed to something that could require that you should have known was going to go to the enemy. So there may be changes coming down the road with regard to the uniform code of military justice.
CAVANAUGH: And finally, Gary, we had just started the sentencing phase. How long do you expect it to be until we see the final outcome of this, at least before the appeals, the final outcome of sentencing for Bradley Manning?
BARTHEL: I think it potentially could wrap up by the end of this week. I understand the defense is planning on calling 21 witnesses. So it's going to depend a lot on how long it takes to get through the witnesses. But probably next week sometime I would think at the latest.
CAVANAUGH: Okay. Thank you so much.
BARTHEL: Thank you.