[net-gold] Secrecy News -- 04/23/12
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
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- Date: Mon, 23 Apr 2012 12:03:37 -0400 (EDT)
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Date: Mon, 23 Apr 2012 10:03:28 -0400
From: Steven Aftergood <saftergood@xxxxxxx>
To: saftergood@xxxxxxx
Subject: Secrecy News -- 04/23/12
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SECRECY NEWS
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from the FAS Project on Government Secrecy Volume 2012, Issue No. 37 April
23, 2012
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Secrecy News Blog:
http://www.fas.org/blog/secrecy/
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** MANNING DEFENSE SEEKS DISMISSAL OF CHARGES
** WHY ARE THERE SO MANY LEAK PROSECUTIONS?
** STEPHEN DAGGETT, DEFENSE SPENDING, AND MORE FROM CRS
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MANNING DEFENSE SEEKS DISMISSAL OF CHARGES
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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
Multilateral Development Banks: Overview and Issues for Congress, April 18,
2012:
http://www.fas.org/sgp/crs/row/R41170.pdf
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_______________________________________________
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Secrecy News is written by Steven Aftergood and published by the Federation
of American Scientists.
The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/
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_______________________
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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@xxxxxxx
voice: (202) 454-4691
twitter: @saftergood
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Other related posts:
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