By Nathan Fuller, BMSN. August 2, 2013.

Susan Swart, formerly of the State Dept., drawn by Debra Van Poolen

Today the government called former State Department Chief Information Officer Susan Swart to testify about how the State Dept. responded to WikiLeaks’ release of diplomatic cables. Swart testified that the Net-Centric Diplomacy (NCD) database, which housed the records that Pfc. Bradley Manning downloaded and sent to WikiLeaks, was first implemented to give those on classified networks greater ease of access to those cables. No technical limitations were in place, so those with access could simply search for and find any cable they needed, as opposed to waiting for it to be pushed out through various channels as it had before.

After WikiLeaks’ releases, the State Dept. pulled the database from the Secret-level network and kept it only in the Top Secret network, and Swart reviewed possibilities for furthering limiting access to the NCD.

The government started to ask about what the State Department did to prevent future conduct similar to Manning’s, and the defense objected that this type of “aggravating evidence” was outside the scope of what should be legally allowed. 

After Swart’s testimony, the parties argued the defense’s motion to limit that very scope, under Rule for Court Martial 1001(b)(4), which says (emphasis mine), 

The trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty. Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense. 

Defense lawyer David Coombs explained that while the merits (guilt v. innocence) phase of the trial dealt with “potential damage” (Manning was convicted on six Espionage counts for disclosing information he should have known “could” harm the United States or aid a foreign nation), the sentencing phase is supposed to deal with “actual damage.” Yet the government is trying to extend that out as far as possible, calling witnesses to speculate about how limited actual damage could have a domino effect down the line. 

Yesterday in a classified session, John Feeley testified about (it was suggested, we can’t know because the court was closed to the press) how WikiLeaks’ release of the cables caused diplomatic relationships with some Latin American countries to erode. In open court, Feeley discussed estranged ties with countries like Venezuela and Nicaragua, whom he admitted have had longstanding ideological differences with the United States. But Coombs says that Feeley made few specific points about actual harm caused, and could have testified in about ten minutes instead of the hours they took yesterday. The government, he said, was attempting to lay the “many so-called ills of world” at Bradley Manning’s feet.

Furthermore, Coombs argued that if the government is allowed to present evidence of events not directly related to WikiLeaks releases, the defense should be allowed to present evidence of indirectly related events that were beneficial:

Moreover, if the Government were to be permitted to advance an attenuated chain of events that seek to place many of the ills of the world at PFC Manning’s feet, then the Court would have to allow the Defense to rebut this with evidence that PFC Manning’s disclosures actually effected meaningful change in the world.  For instance, PFC Manning’s disclosures have been credited with empowering people in the Middle East and with precipitating “Arab Spring.” See http://www.thedailybeast.com/articles/2013/06/03/how-bradley-manning-changed-the-war-on-terror.html (“Some commentators have credited Manning’s leak with providing a spark for the revolutions that toppled the governments of Egypt and Tunisia and triggered uprisings in Bahrain, Libya, and Yemen, collectively known as the Arab Spring. Files leaked by Manning disclosed a secret relationship between the U.S. government and President Ali Abdullah Saleh of Yemen, to allow drone strikes inside the country where the United States was not in a declared war. Another cable detailed the private investments and holdings of the Tunisian ruling family.”) The Defense submits that allowing the Government or the Defense to go down this road would be improper aggravation or mitigation and would run afoul of R.C.M. 1001(b)(4) and R.C.M. 1001(c)(1)(B) respectively.

The prosecution defended its approach, contending that the testimony it elicited was “directed related to or resulted from” Manning’s disclosures. It didn’t go into specifics about yesterday’s testimony.

But prosecutor Maj. Ashden Fein admitted that the government did intend to elicit information regarding future harm. He said he would call terrorism experts (likely to include Youssef Aboul-Enein) to discuss information that terrorists now have due to WikiLeaks’ releases, but also to opine on what they will do with that information in the future. 

Military judge Col. Denise Lind is taking the matter under advisement, and will rule on the defense motion on Monday.

This afternoon, the government will call Ambassador Michael Kosack (profiled here) from the Persons-At-Risk Working Group, which attempted to identify people vulnerable due to WikiLeaks’ releases and mitigate potential harm.

Amb. Kozak on “chilling effect” and protecting sources 

Ambassador Michael Kozak, from the State Department’s Bureau of Democracy, Human Rights, and Labor, led the Persons-At-Risk Working Group, which around Christmas of 2011 branched off from the broader 24/7 WikiLeaks response group. The Persons-At-Risk group reviewed the WikiLeaks-released diplomatic cables and determined if some people identified by name were at risk of death, violence, or incarceration. These people were largely human rights and democracy activists who could be vulnerable to retribution if their government or nonstate actors discovered they’d cooperated with the United States. The group determined that if the State Dept. could do something about it, it would offer to assist that person discretely, he testified. Kozak testified the group felt a “moral obligation” to mitigate potential harm to people who trusted the State Dept. to keep their work secret, but also said that the State Dept. didn’t always commit to helping out, at first merely determining what was needed. Prosecutors asked him to give a general approximation of how many such sources needed help, but Kozak said he’d have to answer that in a classified session.

This assistance sometimes involved paying airfare for the activist to relocate and then helping him or her “regularize” (meaning help with immigration paperwork and then gain employment) in the new country.

But asked about the “greatest damage” that resulted from WikiLeaks’ Cablegate release, Kozak discussed the “chilling effect” it instilled in these activists, who then felt they might not be able to trust the State Dept. to keep their work secret. He compared diplomacy to journalism, in that a newspaper similarly wants to protect its credibility: if it outs a source, he or she will probably stop talking.

Kozak said that while members of the Persons-At-Risk team have resumed their previous duties, they are still in the process of assisting some people (one of whom had slipped through the cracks in 2010-11, and a few of whom have simply needed more assistance “regularizing” in their new countries). He couldn’t say when the group would ever be done, because journalists continue to cite cables in new reporting, and so new sources and cooperative activists could be at risk in the future. Referring back to its motion and this morning’s argument over aggravating damage, the defense objected to the judge considering this speculative damage that has not occurred.

Ambassador Patrick Kennedy is expected to testify all day on Monday, beginning at 10:00am.