3 Classified Damage Assessments to be used as Evidence in Sentencing Phase | US v Pfc. Manning

• posted July 30, 2013

Today, the presiding military judge, Col. Denise Lind found Manning guilty of 20 offenses under the Uniform Code of Military Justice including the Espionage Act, The Computer Fraud and Abuse Act, and Steal U.S. Government Property. Manning faces up to 136 years in a military prison, dishonorable discharge; and forfeiture of all pay and allowances.

Unlike a federal criminal trial, where sentencing occurs after the creation of a pre-sentencing report, if Manning is convicted of any of the charges, a sentencing case will commence tomorrow, Wednesday, July 31. During the sentencing case, both defense and the prosecution will present evidence, call witnesses, and make arguments about appropriate punishment.

The maximum sentences for the charged offenses are outlined in the Manual for Courts-Martial and Lind’s previous court rulings (specifically for General Article 134, which is designated for crimes that do not fall within the regular punitive article of the Uniformed Code of Military Justice).

The thirteen sentencing witnesses for the prosecution who will testify in closed session or by classified stipulation can be found here. I will post the names and information of additional sentencing witnesses for the prosecution later this evening and an overview on the verdict for the Daily Beast tomorrow morning. I will also post a reference for the verdict, in lieu of my tweeted image also tonight.

Since the court ruled that motive and actual damage (or “lack of damage”) evidence was not relevant at trial (except to prove circumstantially that Manning was cognizant of the fact that the enemy used the WikiLeaks website), evidence of Manning’s intent and the impact of the leaks will finally be heard by the court at sentencing. It remains to be seen, however, how much of the sentencing phase of this trial will be open to the public, since the government is expected to elicit testimony from 13 classified sentencing witnesses in closed sessions or in classified stipulations for their sentencing case.

In late May, the prosecution noted that three classified damage assessments would be used as evidence at sentencing. Two of the damage assessments from the Defense Intelligence Agency’s (DIA), Information Review Task Force (IRTF), and the Office of the Counterintelligence Executive (ONCIX) are known to be in the form of classified summaries.

While an accused has a right to see evidence used against him at trial, military prosecutors did not want Manning to have access to the original damage assessments. The form of the third damage assessment is unknown, but defense stipulated that if the third damage assessment was in its original form, only defense counsel would have access to the original. Manning would not.

The third damage assessment is likely from the Department of State, although prosecutors produced for the defense an FBI impact statement and two CIA damage assessments (including one from its WikiLeaks Task Force during the pretrial.

One month after Manning was arrested in Iraq in 2010, then-Secretary of Defense Robert Gates ordered the director of the DIA, Ronald Burgess, to assemble an IRTF to lead a comprehensive review of the documents allegedly disclosed to WikiLeaks in order to “make determinations about whether or not any TTPs [tactics, techniques, and procedures] [had] been exposed, and whether or not any adjustments need[ed] to be made, in light of that exposure,” according to then-Pentagon press secretary Geoff Morrell.

The task force–led by counterintelligence expert Brig. Gen. Robert Carr— was made up of 80 people including intelligence analysts and counterintelligence experts from the DIA; U.S. Pacific Command; U.S. Central Command; and the Under Secretary of Defense for Intelligence, which is responsible for managing the ongoing Department of Defense investigation into WikiLeaks. Other interagency partners included the FBI and the Army Criminal Investigation Command. Carr will testify for the prosecution at sentencing in a closed session or classified stipulation, as will two other individuals from the DIA: Col. Julian Chestnut and John Kirchhofer ), who holds the civilian rank of defense intelligence senior level for counterintelligence and human intelligence.

In mid-summer 2010 the Department of State began working with the IRTF to “review any purported State material in the release and provide an assessment, as well as a summary of the overall effect the WikiLeaks release could have on relations with the host country,” said Ambassador Patrick Kennedy, the under secretary for management at the Department of State, when he testified before the Senate Committee on Homeland Security and Governmental Affairs in March 2011.

By the end of the summer of 2010, the IRTF had gone through 70,000 documents already published by WikiLeaks. According to an early pretrial defense filing, the IRTF concluded “that all the information allegedly leaked was either dated, represented low-level opinions, or was commonly understood and known due to previous public disclosures.”

At that time, Gates wrote a letter to the chair of the Senate Armed Services Committee, Sen. Carl Levin, stating that the initial assessment of the IRTF “in no way discount[ed] the risk to national security; however, the review to date ha[d] not revealed any sensitive source and methods comprised by this exposure.”

Last week, the defense tried to establish through Benkler’s testimony that “overwrought” and “shrill” rhetoric by government officials in the wake of the WikiLeaks releases was responsible for driving the enemy to the WikiLeaks website. The government’s response, said Coombs, is what changed WikiLeaks from being a “legitimate journalistic organization” to a “terrorist organization.”

ONCIX, which is part of the Office of the Director of National Intelligence, together with the Information Security Oversight Office, which is responsible for oversight of the government-wide classification system, led a separate review of how federal agencies handled classified information in the wake of the 2010 WikiLeaks disclosures.

The ONCIX damage assessment was the result of a November 2010 memo by Jacob Lew, director of the Executive Office of Management and Budget, titled “WikiLeaks Mishandling of Classified Info.” The memo was addressed to the heads of every federal agency requiring that they assemble mitigations teams to conduct internal reviews of “security practices with respect to the protection of  classified information” at their agencies.

A subsequent questionnaire required these mitigation teams to audit among other items whether agencies “capture evidence of pre-employment and/or post-employment activities or participation in on-line media data mining sites like WikiLeaks or Open Leaks.”

The WikiLeaks Mitigation Team at the Department of State was one of the working groups established in response to then-OMB Director Jack Lew’s directives in November 2010 and January 2011. That team reported to Ambassador Patrick Kennedy, who is also expected to testify for the prosecution in a closed session or classified stipulation during the sentencing phase of Manning’s trial. Kennedy is the original classification authority for the 117 charged diplomatic cables, and Diplomatic Security Services that partnered with the Departments of Defense and Justice in the investigation of Julian Assange, WikiLeaks, and Manning report directly to him.

The director of Counterintelligence and Consular Support in the Bureau of Intelligence and Research (INR) was responsible for authoring the August 2011 Department of State “draft” damage assessment. In June 2012, Assistant Secretary for INR Catherine Brown testified that she edited the Department of State damage assessment and reported directly to Kennedy.

The author of the Department of State damage assessment is also the agency’s primary liaison with the FBI, a partner in the ongoing multiagency investigation of WikiLeaks.

It was Kennedy who testified before the Senate Committee on Homeland Security and Governmental Affairs in March 2011 about what steps the Department of State took in response to the WikiLeaks publication of diplomatic cables. Kennedy also testified to Congress in late November and early December of 2010.

A congressional official, who was briefed by the Department of State at that time, told Reuters that “the administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers.”

Reuters reported that internal reviews said that the release of diplomatic cables and “tens of thousands of military field reports from Iraq and Afghanistan” had “caused only limited damage to U.S. interests abroad, despite the Obama administration's public statements to the contrary.”