Wednesday, January 18, 2017

Was Harm Hidden Or Fabricated?

     At last! Something from the Right that I can quibble with!

     First, it is also disgraceful for the New York Times to report without balance that “Prosecutors … presented no evidence that anyone was killed because of [Manning’s] leaks.” As the Times well knows, in cases involving classified information, the government frequently cannot reveal – let alone prosecute – the damage done. As a practical matter, such revelations end up disclosing more classified information and, critically, identifying other informants and countries who have covertly provided national-security assistance to the United States. That is why it is always a gimmee for apologists of the Mannings, Snowdens, and Clintons to minimize the harm they have done; it is generally impossible to provide concrete information to counter this claim absent exposing more intelligence and endangering sources for obtaining it.

     Objectively, the statements above are all factual. But is that the end of the story?

     If we allow for the possibility that a government official with power or influence over prosecutions might decide to “get” someone, Andrew McCarthy’s willingness to excuse the prosecution’s failure to provide specific evidence of harm done by the accused acquires a very dark cast.

     This is of great importance in federal prosecutions, because it is there that classification rules and security considerations apply. No doubt there are many varieties of allegations in which the attempt to cite national security as a reason for withholding evidence would provoke laughter. But there are surely enough offenses in which national-security considerations must be granted respect...and some of those allow for a wide range of sentences.

     Allow me to present an extreme case: an accusation of treason, which can carry the death penalty. The Constitution says:

     Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. [Article III< Section 3, first paragraph.]

     A government with the resources of ours has many ways to induce “two Witnesses” to testify that they observed “the same overt Act,” even if it never occurred. The defense might well demand to see confirming evidence in such a case; indeed, a competent defense lawyer would not fail to do so. But at that point up steps the Director of National Intelligence to say that no such evidence can be presented because of national security.

     What then? We have the testimony of “two Witnesses to the same overt Act,” and under the Constitution the jury is permitted to find that sufficient for a conviction. That conviction might be just...but it might not be, and there’s no way for anyone who did not witness the Act to know.

     This is only one of the many painful problems with a regime that’s empowered to keep secrets from the public at its own discretion. That some “matters of State” must be kept secret for the “common defense and general welfare of the United States” remains an arguable point. It becomes more arguable when one contemplates judicial proceedings such as that imagined here.


Tim Turner said...

12 people deciding guilt is rather an arbitrary number, isn't it? There's probably some historical justification for that number, but, hey, "We're a democracy and this is the age of the internet, so why isn't every case brought to a jury trial on the internet for a REAL vote of ALL the people?"

That's one extreme. Another is, the government presents its case (involving sensitive national security information) to the defense lawyers and THEY decide if it warrants sentencing.

To me, both those scenarios leave a heck of a lot to be desired. I understand Fran's concern, here. But in the case of espionage, treason and a nation's security, there must be some other guideline than, "If one defendant might be unjustly accused then the whole idea of accusation must be forfeited."

(Fran was not making that argument. But if there ARE "some 'matters of State' [that] must be kept secret for the 'common defense and general welfare of the United States,'" this is where the argument leads.)

It seems to me that, ideally, we would trust our House and Senate committees on foreign relations (etc.) to adequately represent U.S. interests such that they could be presented with evidence in such cases and make a judgement that would best protect the interests of justice AND the interests of the United States - without partisan politics playing a role. (Meaning that the members of those committees would not only decide impartially, but they would also STFU and not leak information.)

I realize that's asking a lot, these days. But I'd trust a committee of 13 democrats more than I'd trust one Obama.

Mark Clausen said...

IMHO, the issue of "harm" has very little to do with the verdict and punishment -- and it shouldn't. The only thing that matters is that he illegally obtained, copied, and released classified information. And not just a few pieces, but many thousands of pages of it.

Like the guy who fires a weapon randomly into the air, the simple potential for great harm is sufficient to merit severe sanctions. Whether immediate harm can be substantiated or not is irrelevant. Of course, as you said, the indication of harm might be even more highly classified than the original information stolen.

More likely, the extent of the harm may not even be noticeable or apparent to us for many years to come -- if ever. Sure the death or loss of agents/contacts is quantifiable in the short term, but how does one assess the future impacts (lost opportunities)?

The release of this miscreant is a direct indication of what this president thinks of national security, the US military, and the US, in general. This is not the action of one who loves this country.

Francis W. Porretto said...

Try to address the question in the general setting, please. You're quite sure that Manning deserves his 35 years sentence, that's clear. You're probably right. But try to look past the specifics of that case. There's more potential here for harm -- and not only to particular individuals -- than most people are willing to contemplate.

Mark Clausen said...

Yeah, maybe my response has certain emotional undertones... With my defense background, it is difficult to maintain an objective detachment -- but I'll try. ;)

I thought I was stating a general setting where:

Evidence of the action, but not the actual content or results, is sufficiently unclassified to present to the defense.

Sanctions against those responsible are warranted, regardless of the ability to show harm (either because that information would be too highly classified, or because it's not readily apparent).

However, re-reading your post, I think I see where you're heading (of course, I could be wrong... ;) )

If you positing a situation where legally sufficient "evidence" for conviction could merely be two appropriately-cleared individuals "persuaded" to testify that they observed this individual (who might be, in truth, innocent) engaged in treasonous acts... Then, I'd have to agree. There is great potential for abuse of this power.

10-20 years ago, I couldn't imagine this happening in the US (maybe I'm not as cynical as I think). Today? Perhaps more likely than ever before, but still difficult to consider.

Still, to be convicted of treason requires a civilian trial or court-martial, where the defense would be permitted to question the veracity of the witness testimony. A jury would still have to convict based on these claims. Could this still happen? Of course, but there is always the potential for an unjust conviction based solely on eye-witness testimony.

The fact that we now even consider such a possibility is greatly disturbing, and a clear demonstration of how much faith we have lost in our government's ability to not abuse their powers.

So, in the context discussed, I understand your concern about secrets in "matters of state." However, information in "matters of state" frequently overlaps that regarding "common defense and general welfare of the US." Capabilities, intents, and actions in defense (i.e., warfare) go hand-in-hand with diplomacy.

Thus, the real potential for abuse is not in having matters of state that are kept secret. Rather, it's WHAT matters of state have been made secret, and why... As of late, it's usually to keep the citizenry (and our representatives) unaware of the shenanigans engaged in by the Executive Branch.

Hmmm, it seems I've argued myself into agreeing with you.