Bradley Manning Trial: Lack Of Transparency Stacks Deck Against Defendant

As of the February 23, U.S. soldier Bradley Manning has been in prison for more than 1,000 days waiting to stand trial, reportedly “longer than any accused in the history of U.S. military law.”

He is alleged to have leaked files to WikiLeaks during his time as an Army intelligence analyst, in the largest intelligence leak in U.S. history. I have written about Manning’s case previously in the context of the Obama administration’s unprecedented war on whistleblowers, highlighting Manning's inhumane treatment and his motives behind leaking the files. While pre-trial hearings began in early 2012, Manning is not scheduled to stand trial until June 3 this year. The trial itself expected to last around 12 weeks. 

The conducting of a fair and speedy trial for Manning has been impeded by the level of secrecy that surrounds much of the information in question — both the leaked files and the court proceedings — and the constant delays to his case. The trial has been characterized by an almost complete lack of transparency, which makes it is much harder to ascertain the legitimacy and truth of the charges against Manning.

On Thursday last week, a military judge ruled that Manning’s unprecedented pre-trial confinement does not constitute the denial of the right to a speedy trial and rejected the defense’s attempt to have all charges dropped on the basis that it did. The prosecution also announced this week that it plans to call 141 witnesses, including 15 who would testify that Manning aided the enemy by releasing the files to WikiLeaks, the most serious charge against him. Yet of the witnesses called, four would testify “anonymously and entirely behind closed doors, with only the judge, case lawyers and the accused present.” These include “John Doe,” the U.S. Navy Seal possibly involved in the Osama Bin Laden raid, with whose testimony the prosecution would seek to show that bin Laden actively sought access to the WikiLeaks material and thus that Manning aided the enemy. A further 33 witnesses may only be heard partially in closed session.

On Wednesday this week the judge also denied Manning the right to argue that the U.S. government is “guilty of general over-classification of information” and thus that the impact of the release of the files was minimized. This comes despite the fact that a recent report from the Public Interest Declassification Board, an advisory committee set up by Congress, argued that the “current classification system is fraught with problems. It keeps too many secrets, and keeps them too long.”

The files released by WikiLeaks represent just a small fraction of the 92 million items that are classified by the U.S. government every year. Manning’s defense team plans to argue that much of the WikiLeaks material should not have been classified in the first place given that it was primarily “open-source intelligence from publicly available sources.”

Journalists and advocacy groups did win a small victory on Wednesday when the Pentagon agreed to publish 84 judicial orders and rulings from the Manning case in response to requests under the Freedom of Information Act (FOIA), reversing its previous refusal to do so. However, the documents, which can be viewed here, constitute only a tiny segment of all the documents from the proceedings. This is despite the fact that, as the Center for Constitutional Rights (CCR) points out, the First Amendment requires that the press and public have access to “to the court’s orders, the government and defense filings, and transcripts or audio files of the daily proceedings in open court.” In addition, the small number of defense motions that have been published by the defense counsel have been heavily redacted.

As Ed Pilkington rightly argues in The Guardian, “the least Manning deserves is stringent fairness in his prosecution, and stringent fairness cannot exist in the absence of openness and transparency.”

The absence of openness and transparency makes it harder for the defense to argue its case and skews the balance of the trial in favor of the prosecution.