Government secrecy reaches a new level this week in the court-martial of Army Pfc. Bradley Manning, an intelligence analyst who sent 700,000 classified U.S. documents to the WikiLeaks website.
A military judge, Col. Denise Lind, has ordered what prosecutors say is an unprecedented closed hearing Wednesday at Fort Meade to help her decide how much of Manning's upcoming trial should be closed to protect national security.
An unidentified prosecution witness will testify during that closed hearing in a "dry run." Defense attorneys say that could allow the judge to find ways to avoid closing the courtroom to the public during the presentation of classified evidence. Lind and attorneys for both sides have suggested there are a number of options to shield sensitive material, including closing parts of the trial; redacting documents; using written summaries as evidence to omit sensitive details; or even using code words for classified information.
The sensitive evidence includes Iraq and Afghanistan battlefield reports and State Department cables Manning has acknowledged leaking, along with official communications about those classified documents. The government says the leaks in 2009 and 2010 endangered lives and security. Manning's lawyers contend there was little to no damage.
Lind's decision to hold the practice run out of public view has drawn mixed reactions from national security and legal experts. Air Force Reserve Lt. Col. David Frakt, who teaches at the University of Pittsburgh law school, called it a "great idea" for minimizing disruptions such as those at U.S. military commissions' cases involving terrorism detainees at Guantanamo Bay, Cuba. Frakt defended Guantanamo detainees Mohammed Jawad and Ali Hamza al Bahlul in 2008 and 2009.
"The judge wants the trial, when it happens, to go smoothly, and the last thing you want is some inadvertent disclosure," Frakt said.
"What they don't want to do is to have a yo-yo effect — let the public in, send the public out, let the press in, send the press out," he said. "We have had that kind of circus atmosphere at Guantanamo, and it just looks very bad."
But Jesselyn Radack, national security and human rights director of the Washington-based Government Accountability Project, said there has already been too much secrecy in the Manning case. Until February, more than 2 1/2 years after his arrest, the military refused to publicly release written court filings and rulings in the case. The military's highest appeals court last month rejected the Center for Constitutional Rights' petition seeking timely access to those records, ruling it lacked authority to consider the question.
Radack, who helped defend former National Security Agency official Thomas Drake against federal charges that included illegal possession of classified NSA documents, said the "dry run" sounds like a dress rehearsal for a secret trial.
"The more they do behind closed doors and the more they do through secret codes or anything else that shields the public from information, like not providing transcripts, those things are all antithetical to the democratic idea of having a free and open trial," Radack said.
Drake pleaded guilty in 2011 to a misdemeanor charge of exceeding authorized use of a computer. The case against him collapsed after the judge ruled that summaries of four classified documents couldn't be used in the trial. Prosecutors said the originals would disclose a telecommunications technology targeted by NSA eavesdropping.
The government has shown no willingness to reach a plea deal with Manning. He is charged with 22 offenses, including Espionage Act violations and aiding the enemy, which carries a possible life sentence. He pleaded guilty in February to reduced charges that could send him to prison for 20 years, but military prosecutors said they would still try to convict him of the greater offenses.
Defense attorney David Coombs requested the closed hearing to test all reasonable alternatives to closing large portions of Manning's trial, scheduled for June 3. Lind agreed April 10 to the dry run, despite prosecutor Maj. Ashden Fein's objection that such a hearing was unprecedented. Fein also argued that lessons learned from a single sample witness wouldn't necessarily apply to 27 others he has lined up.
Fein said at Feb. 26 hearing that more than half of the government's 141 anticipated witnesses would testify about classified information, necessitating closure of up to 30 percent of the trial. On March 15, prosecutors gave the court its list of 28 such witnesses, mostly military and State Department officials.
They include a member of the team that raided Osama bin Laden's compound, presumably a Navy SEAL, who collected digital evidence prosecutors say proves the al-Qaida leader requested and received from an associate some of the documents that Manning leaked and which WikiLeaks published.
Lind took steps to protect that witness' identity and details of the mission. She ruled in April that the man, identified by the pseudonym, "John Doe," would testify during the trial in civilian clothing and "light disguise." Furthermore, he will take the stand in a closed session at an alternate, secure location.
She said the trial also would be closed during the entire testimony of three other unidentified "special" prosecution witnesses who will discuss classified information.