BY KIM ZETTER AND KEVIN POULSEN
06.16.10 | 11:52 PM
An Army intelligence analyst suspected of leaking classified information to Wikileaks has still not been charged with any crime, three weeks after being arrested and put in pre-trial confinement.
PFC Bradley Manning, 22, is being held at Camp Arifjan in Kuwait, and has been assigned a military defense attorney. The Army and State Department are investigating claims Manning made to an ex-hacker in online chats that he disclosed classified information.
An Army legal advisor in Washington, D.C., says the delay in filing charges is unusual but is not a violation of regulations.
“I think if you were able to make a timeline of all the cases, [three weeks] would be at the high end,” said Lt. Col. Chris Carrier, chief of the policy branch of the criminal law division in the Judge Advocate General’s office (JAG) in Washington, D.C.
Carrier, who has no direct knowledge of the Manning case, said the military is required to produce a charge sheet “in a timely fashion,” but the complexity of this case may be causing the delay.
“It strikes me that this [case] may be relatively complicated in terms of obtaining, handling, managing the evidence and explaining things,” he said. “They have to figure out what they’re dealing with.”
Beyond the complex nature of the case, there may be other reasons for not jumping to charge Manning too quickly.
In 2004, the Army accused a military Muslim chaplain named James Yee of espionage and sedition after investigators found a document in his possession that listed the names of Guantanamo detainees and interrogators — information deemed classified at the time. The military formally charged Yee with mishandling classified information, but later dropped those charges, claiming a trial would reveal sensitive information. Critics suspected the real reason was lack of evidence.
In Manning’s case, in his chats with former hacker Adrian Lamo last month Manning described a crisis of conscience that led him to leak a headline-making video that Wikileaks published in April. The video depicted a deadly 2007 U.S. helicopter air strike in Baghdad that claimed the lives of several innocent civilians.
Manning also boasted of leaking a separate video to Wikileaks showing the notorious 2009 Garani air strike in Afghanistan, a classified Army document evaluating Wikileaks as a security threat, a detailed Army chronology of events in the Iraq war and a database of 260,000 classified U.S. diplomatic cables.
Lamo tipped off Army investigators to Manning’s claims, prompting the soldier’s arrest at the end of May in Iraq, where he was deployed. Now investigators are searching for evidence to determine if his claims were true. On Friday, a State Department spokesman said Manning’s computer hard drives had been sent from Iraq to Washington for forensic examination.
Lamo said he met with Army and State Department investigators for 12 hours in California on Sunday to give a sworn statement, and that he also provided investigators with his computer hard drives. He said investigators gave him assurances in writing that information on his drives would not be used against any targets other than Manning — such as other hackers who might have had contact with Lamo.
Lamo said paperwork that investigators gave him to sign indicated that Manning was under investigation for possible violations of three federal criminal laws: unauthorized disclosure of classified information, espionage and the anti-hacking Computer Fraud and Abuse Act.
Any trial, regardless of whether the charges involve federal statutes or military codes, would unfold in a military court, not a civilian criminal court, said Carrier. It would be “highly unusual,” he said, for the Justice Department to be involved in the prosecution.
“Certainly somebody [from Justice] might provide advice,” he said, “but as far as [being] on the actual prosecution team, I don’t know that I’ve ever seen that.”
Carrier also said that the local military jurisdiction would be in charge of the case, and that there is great sensitivity about interference from military personnel outside that jurisdiction. That means investigators and prosecutors in Iraq would be calling the shots.
“So here in Washington, certainly people are interested in what’s going on, and there is some information passed up the chain, but … people in Washington are not going to be calling up and telling them what to do or managing this from afar,” said Carrier.
Carrier said that pre-trial confinements are not very common, since most cases involve less serious allegations. But when they do arise, there are a number of procedures for a local jurisdiction to follow.
Under the rules for military judicial proceedings, a soldier’s company, battalion or brigade commander can order his pre-trial confinement, based on information provided by Army Criminal Investigation Division officers or other investigators.
Generally, a probable-cause review must be conducted within 48 hours to determine if the reasons for confinement are valid, said Carrier. The informal review is conducted between the commander who ordered the confinement, the JAG officer representing the government, the defense counsel and a “neutral and detached” officer. If the confinement was ordered by someone other than the soldier’s immediate commander, the soldier has the right to also have his commanding officer review the information within 72 hours to determine that his confinement is appropriate.
A military magistrate who is independent of the soldier’s command must then conduct a more formal review within seven days of the start of the confinement to determine if the soldier should continue to be held.
According to Army spokesman Lt. Col. Eric Bloom, Manning had this latter review on May 30, and the military magistrate determined that “continued pretrial confinement was warranted.”
Once prosecutors have finished gathering evidence, a military court will hold a hearing to determine if the case should proceed to a court martial. The so-called Article 32 hearing involves a judge, prosecutors and defense counsel.
If the case involving Manning proceeds to trial, it’s unclear where the proceedings will occur. Lamo said officials have not told him where a trial would be held. Carrier said that generally a court martial is held where the soldier’s unit is based.
Manning’s unit is currently in Iraq. But the 10th Mountain Division, in which Manning serves, is headquartered at Ft. Drumm in New York, which could also become a venue for trial if Manning’s attorney were to argue that his defense could be more easily conducted in the United States, where witnesses (such as Lamo) live. Manning’s friend Tyler Watkins, who could also be called as a witness, is in Massachusetts. Last April, according to Watkins, Manning indicated to Watkins that he was responsible for leaking the Iraq helicopter video to Wikileaks.
Although Manning was deployed at Forward Operating Base Hammer near Baghdad, Iraq, he’s been confined in Kuwait because that’s where the detention facility is for the U.S. Central Command, Carrier said. Detention facilities in Iraq are for prisoners of war, he said, and military prisoners cannot be confined with them or with foreign nationals.
Although Manning was assigned a military lawyer at the time he was detained, he can opt to hire a civilian defense attorney at any point.
Wikileaks has claimed in an e-mail to Lamo and in e-mail to supporters that it has commissioned a defense team for Manning, although the organization has not acknowledged Manning was a source. Wikileaks founder Julian Assange said in a fundraising plea this week that he needed donations to cover the unspecified cost of “flying a legal team to Kuwait.”
Assange’s move to defend Manning was regarded with curiosity by some members of the media who were scheduled to appear on a journalism panel with him last Friday in Las Vegas, before Assange canceled due to “security concerns.”
“There is this question of, is he, by offering to defend the source, acknowledging the source?” asked panelist Rhonda Schwartz, senior investigative producer for ABC News, about Assange’s fundraising appeal. “And does he make it worse [for Manning]?”
An Army representative did not indicate whether Manning had retained civilian counsel, but said on Wednesday in an e-mail that Capt. Paul Bouchard, senior defense counsel at Camp Liberty in Iraq, was still Manning’s attorney of record. Manning’s family members have not responded to calls seeking comment about the matter. Bouchard would not answer questions and referred inquiries back to the Army’s public affairs office.
Any attorney representing Manning might need to have a security clearance, if evidence in the case contains classified information. The attorney would also be required to agree not to pass classified information to Wikileaks or anyone else, Carrier said. To safeguard such information, the attorney might be allowed to inspect classified evidence only in a secure room, but not be given copies of the evidence. Information could also be provided in such a way that “its disclosure would be recognizable,” Carrier said.
Should the case proceed to trial and Manning be convicted, it’s unclear what kind of sentence would be handed down.
In 2007, former Navy lawyer Lt. Cmdr. Matthew Diaz was court-martialed for providing classified information to an unauthorized party. While stationed at Guantanamo Bay, Diaz mailed a 39-page document that contained the names and details of detainees being held at the camp to the Center for Constitutional Rights, which was suing the government to have the names of the secret detainees disclosed. Diaz was sentenced to six months in the Navy brig for his leak.
Manning, however, is potentially facing more serious charges if prosecutors find evidence that he did indeed leak 260,000 classified cables to Wikileaks.