07/29/13 – Chase Madar – The Scott Horton Show

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Now, sorry to go on so long.
Time to welcome our first guest to the show.
It's Chase Medar.
He's a lawyer from New York and he's the author of The Passion of Bradley Manning.
Thanks for putting up with that on hold there, Chase.
Welcome back to the show.
Hey, great to be back, Scott.
Well, it's really good to have you here.
And boy, I got your line turned up way too loud.
So it turns out that the judge right now has the case.
If you can call her that.
I don't know if you do or not.
It's kind of a quote unquote judge to me.
But anyway, Bradley Manning, the admitted leaker of the State Department cables and the Iraq and Afghan war logs and some Guantanamo Bay documents as well.
He's on trial for aiding the enemy and other charges.
And so I don't know.
What do you make of the whole thing?
Well, what matters more is what the judge is going to make of the whole thing.
And we're going to find out her verdict tomorrow at 1 p.m.
Eastern time.
Oh, it's already announced, huh?
Yeah, that's what Bradley Manning's defense lawyer, David Coombs, is telling people.
And he's a smart guy and I trust him.
So here's how it's going to work.
There are 22 charges against Private Manning.
He has already pleaded or agreed to plead guilty to the 10 lesser of those 22 charges.
Things like improper use of a government computer.
Even though they're 10 lesser charges together, they still carry a maximum penalty of 20 years.
And that's, you know, that's not chump change.
The verdict for the other charges will be announced tomorrow.
And then we're going to start about a month's worth of sentencing hearing to determine what the sentence will be.
And I am pretty pessimistic.
I think it's going to be a nasty sentence of 40 to 50 years.
The real suspense right now, waiting for the verdict, is whether the most serious of the charges will stick.
I'm talking about the capital offense of aiding the enemy, as well as the charges stemming from the Espionage Act of 1917.
And if those charges do stick, they will have terrible consequences, not just for the brave young soldier named Bradley Manning, but for American journalism in general, and our whole country.
And the reason for that is, if you criminalize leaking to this high degree, making it a capital offense, then you are criminalizing a whole lot of essential journalism, which in this country has always depended on confidential sources, leaking classified information.
That's how we found out about the Pentagon Papers, Watergate, for that matter, our drone strike program, the National Intelligence estimate on whether Iran has a nuclear weapons program.
Turns out they don't.
And that was important to leak back when Bush and Cheney were rattling for a third war.
So we depend on these leaks.
We need them.
We don't want them to be made capital offenses.
And that will have terrible consequences if the judge makes that call.
Right.
Okay.
Now, there's already a lot to go over there, and I'm sure you could have kept going before I stopped you.
But just on that point right there, it's not like we ever had a perfect system of accountability and checks and balances and things like that in the USA, right?
Nobody here believes in some comic book thing.
But I wonder what used to be different.
Is it just that, I mean, sort of, you know, if somebody's blowing the whistle and they're not supposed to talk to a journalist about something like that, but it's investigatable, right?
The FBI could find out who's talking to The New York Times about this, that, or the other thing or whatever other paper.
But is it usually just the fact that if they're blowing the whistle, then that means if the government tries to prosecute them, then people will just say, no, you're just trying to distract from the bad things that you were doing that this person is blowing the whistle on.
And so don't change the subject.
Leave him alone and start acting right.
And yet, but now we don't do that anymore, because now that we've legalized, you can start a war and you can torture and you can do whatever you want.
Now they can do whatever they want.
Yeah.
Yeah.
No, that's true.
I mean, leaks have been going on forever.
Former Secretary of Defense Robert Gates said Washington has always leaked like a sieve and everyone knows it.
But what's new is this crackdown on leaks and the Bush administration, the Obama administration has just been incredibly addictive and nasty in going after leakers and whistleblowers.
They've launched seven prosecutions based on the Espionage Act of 1917, turning it in effect into an official secrets act.
And that's more than twice as many as all previous presidents combined.
Yeah.
But what I don't get is, but Bill Clinton could not have done that and he doesn't love liberty at all, but he wouldn't have even dared.
No, he wouldn't have.
In fact, he, he pardoned one of the, one of the people who was prosecuted of violating the Espionage Act.
And that was a bright spot in his presidency.
What really changed?
I mean, it seems to me like it's a change of the American people or the American system in kind of a larger way than just a decision by Obama or a decision by Bush or something that now whistleblowers are fair game where before, maybe in my imagination, anyway, the people somehow in some vague sense would have rallied to their defense and said, no, you're the bad guy, not the whistleblower.
People would have rallied against their defense.
There are a lot of moving parts of this.
First of all, whistleblowers have always been punished.
It's just that it wasn't always with these criminal prosecutions that get fired.
They get transferred to the Aleutian Islands, that kind of thing.
So that's not new.
But what's new here is, is that you have a democratic president and like all democratic presidents in the post-war period, they're just desperately eager to show how tough they are.
And they're really caught, eager to wimp-proof their right flank.
And one inexpensive way for them to do that is to throw the book at whistleblowers.
I don't think George W. Bush or a hypothetical President McCain could have gotten away with this.
There would have been too much public outcry.
So much of the media is kind of oriented towards the Democratic Party and they would have jumped all over this.
But with the democratic president in office, a lot of voices that might be very critical of Bush and Cheney doing something like this suddenly fall silent.
They go with it.
Maybe it's an embarrassed silence.
Maybe they even get a little enthusiastic in their support for the prosecution.
But the political weather changes.
One thing that's important to point out is this is not just an example of the runaway executive branch without sufficient congressional oversight.
That's something that, an argument that Americans love to make about everything.
In fact, Congress is fully on board with these aggressive prosecutions of whistleblowers.
And the heads of the Senate Intelligence Committee, Dianne Feinstein and John McCain, I think are even worse on this than the White House.
And that's pretty bad.
Yeah.
Yeah.
Well, and in other words, like you're referring to Dianne Feinstein calling Edward Snowden a traitor and that kind of thing.
Yeah.
Yeah.
That kind of thing.
I mean, they want even more prosecutions.
They've been demanding Feinstein and McCain, you know, special prosecutors be hired and probes into the leaks of, you know, information about our cyber war that we've launched against Iran, leaks about counterterrorism in Yemen and drone strikes.
And fortunately, the Obama administration has not capitulated there, but they're going, you know, balls out, guns blazing on everything else.
They're horrible enough.
Yeah.
All right.
Now, when you say he's pleaded guilty or he's offered to plead guilty when the time comes for that to 10 out of 22 charges, I want to talk about the aid in the enemy and the Espionage Act stuff in detail here in a minute.
But I'm wondering, other than those, what's the discrepancy between the 10 and the 22?
What other charges are we talking about?
Anything important there?
There's also a violation of the Computer Fairness Authorization Act, the CFAA.
That's also among the more serious charges.
And that's a law that's dangerously broad.
That's the law that was threatened against Aaron Swartz, the hacker and activist who committed suicide under heavy pressure from a federal investigation.
So the three big ones of the serious charges are the aiding the enemy, the Espionage Act of 1917, and the CFAA.
Well, so tell us about the difference between the aiding the enemy act charge and the Espionage Act charge.
Gee, I can't talk this morning.
I guess I was talking with Nathan Fuller the other day, but you're a lawyer.
So let's hear from you.
Well, with the Espionage Act charges, that's something that can be brought against any citizen.
You don't have to be a member of the military.
For aiding the enemy is just against soldiers.
And there's a higher standard of evidence, slightly higher for the Espionage Act, where prosecutors really have to prove there that the suspect gave away national security information with the conscious intent or reason to believe that doing so would harm the U.S.
Now under the Uniform Code of Military Justice, that's the main military law book governing soldiers.
All the prosecutors have to prove is that Manning knowingly gave information to, quote, the enemy.
And that standard has been softened a bit, the military standard, in the courtroom in the prosecution against Bradley Manning, and that's very dangerous because any kind of capital charge, something that's serious, ought to be very clearly and I think narrowly defined too.
People should be able to know with a great deal of certainty whether or not they're committing a capital offense.
But this is pretty vague now, whether you're knowingly giving information to the enemy, especially in a networked blogging world where the military is encouraging its soldiers to blog and to write about things.
Now what if a lieutenant who's deployed somewhere in Afghanistan writes on his blog complaining about the lack of armored vehicles or the lack of armor for soldiers?
Could that be construed as giving a valuable tip to the Taliban and alerting them to a weak spot?
Well, conceivably it could be.
And now maybe that lieutenant is committing a capital offense.
That's why this law should be defined as narrowly and as clearly as possible.
Right.
Well, you know, it's interesting the way you describe it.
If I understand you right, you're saying that the threshold to prove a violation of the Espionage Act, you have a very high hurdle to cross as far, you know, you being a prosecutor in this case, a very high hurdle to cross in order to show the intent behind it.
But the damage done is much more vaguely defined.
Whereas in aiding the enemy, the damage done is much more specific and a much higher hurdle to cross saying that what you did actually aided, I don't know, Zawahiri, if they declared war against anybody, I don't know.
But then in order to prove it, all they got to prove is that, yeah, you would have, could have, should have known that he could benefit someday or something.
Yeah, I think that sums it up nicely.
Maybe I should be a judge.
Yeah, you've got my vote.
Now, out of all the Espionage Act cases that have been filed, the seven that Obama has presided over and the three previous ones, none of them has actually been litigated to the end and then decided on the merits until this one.
So this case is very important for that reason.
You know, the first one was to be prosecuted using this statute was Daniel Ellsberg himself.
And it was the Nixon administration that really retooled and repurposed the Espionage Act, which had a very different intent in mind and used it against domestic leakers and whistleblowers rather than bona fide spies.
And everyone else since then has either taken a plea or there's been a mistrial or the case has just collapsed as happened in the Thomas Drake prosecution.
But here they're going all the way to the end.
And that's what makes one of the things that makes this case so important.
If the judge rules that the standards have been met, then that really does open the floodgates for more prosecutions because we know where the law stands from this case law.
If, however, the law rule or the judge rules that these standards have not been met, then that's good case law that will prevent or could prevent more such prosecutions and will be kind of an obstacle for overzealous prosecutors who are trying to maintain our current dystopian levels of secrecy.
Right.
Well, and speaking of Ellsberg, he was leaking primarily to The New York Times, at least at first, and then he expanded onto The Post and other newspapers around the country.
Those are the only people that he was dealing with or leaking to were newspapers, you know, with official licenses and press passes and everything.
And they were in the middle of prosecuting him.
He was facing life in prison on Espionage Act charges.
Correct.
But then, as we've discussed before, the Nixon administration was so corrupt that the judges had to call the whole thing off after they tried to bribe him and after he found out that they had hired Cuban hitmen to murder Ellsberg.
Yeah.
Yeah.
No, they were just a bunch of ham-handed, clumsy goons.
The Nixon team.
But that's a severe precedent that they were going for, though, right?
Trying to go after the newspapers.
Yeah.
Yeah.
That was brand new.
And, you know, the whole political climate was different then, too.
And you had so much of the legal class, the media, the academics, the intellectual class rallied in defense of The New York Times and in defense of Ellsberg, which is very different from what you have today, where you have Manning and Julian Assange and WikiLeaks out there as whipping boys, taking a lot of abuse.
And liberals have, by and large, turned their backs on them.
Yeah.
A bunch of Jeffrey Toobins.
Yeah.
A bunch of Jeffrey Toobins.
That's a harsh thing to say.
I'm mean as a son of a bitch this morning.
I'm telling you what.
I can hear that.
And you'd like to drop the T-bomb anyway.
But we do have something that's a little similar, it seems to me, with Nixon's attempt to sway the outcome of Ellsberg's criminal prosecution.
I mean, Nixon had offered the directorship of the FBI to the judge presiding over the Ellsberg trial.
And that was absolutely a bribe.
The judge, in his vanity, didn't really catch that until a few days later when he had to report it.
And then he declared a mistrial.
Now what we have in this case is the judge, Denise Lind, has been promoted to an appellate court one degree up, which is if should the case be appealed, that's where it would go.
And it's just a little fishy.
It's not as fragrant and foul as what Team Nixon did trying to sway the Ellsberg trial.
But I have some questions about the propriety of promoting the judge in this case, whether there's an implicit quid pro quo.
And I'm not impugning the judge more than that.
But I think there's some explanations in order here.
Yeah, well, implicit and explicit and whether it's written down on a piece of paper or not.
I mean, after all, Nixon was, you know, three quarters drunk as hell all the time.
So you could understand how he might it might be a ham-handed kind of effort.
But in her case, you know, Denise, your career is doing really good.
It's a great bribe.
You know, look at all the advancements.
We're very proud of you and all the great work you've been doing.
Oh, by the way, the president, United States, the secretary of defense and the chairman of the Joint Chiefs of Staff have already pronounced the defendant guilty.
So you're going to go ahead and find that, right?
Yeah.
Yeah.
I mean, it's whether implicit or explicit, it's almost, you know, the same way.
We really don't know how she's going to rule, though, when it comes to aiding the enemy and the Espionage Act of 1917 charges.
I don't think she's a rubber stamp.
But I am a little bit optimistic.
I mean, I hope I'm not drunk on my own bleeding heart flavor right here.
But I think it's possible that she will not convict on those charges.
And even if she doesn't, there's still plenty to lock up Bradley Manning for, you know, a sentence of 100 years or so.
So the outcome for him might be pretty much the same.
But I think that the threshold of knowingly aiding Al-Qaeda by passing things on to WikiLeaks and through them to The Times and The Post is just on its face kind of absurd.
I mean, it's a bit like arguing that Nike shoes has aided the enemy if it turned out that bin Laden or Zawahiri, you know, has a closet full of Air Jordans and that they're somehow responsible for that.
I mean, it doesn't make a lot of sense.
Yeah.
I mean, for that matter, any senator who's ever opposed the policy that the executive has decided is the right thing to do.
Yeah, there you go.
Yeah, I mean, it could be stretched quite a bit, and I think that would be dangerous to happen.
So let me ask you this, because it seemed to me from talking with Nathan Fuller and also with Alex O'Brien and I guess with you, too, that the prosecution has really done a lousy job on this.
Like they didn't, it seems to me, especially talking with Nathan Fuller about it on a pretty regular base here, it seems like they didn't even red team their own damn case.
And they just went out there and like, yeah, watch us.
We're about to prove this and we're about to prove that.
And then every one of their own witnesses completely blows up in their face.
But that's happened in a few instances.
I think the proof of whether the prosecution has done a good job or not will be, though, in the verdict more than the theater.
And it's very hard to separate one's own opinions and beliefs when you follow a courtroom closely, whether you're at Guantanamo or at a murder trial in any city or here at Fort Meade, watching this go down.
Whether or not the prosecution has done a good job or a bad job, I think that Bradley Manning's defense team has done a very good job.
And I think David Combs has been very capable, both as a strategist, it seems, in drawing things out and letting time be on his side, but also as a tactician and as a courtroom lawyer who's persuading people, who's who's very clear, very affable and seems always on top of things.
Well, yeah, I mean, the the closing argument was so overblown.
Really, the whole case is so overblown about what a terrible person Bradley Manning is for doing what he did.
It seemed like they're they're not able to see themselves very well.
They don't you know what I mean?
Like if I was the prosecutor and I was really trying to put Manning away, my case would have been, look, he may have meant well, but what he did wasn't a good thing or what, you know, something like that.
But instead, they go, oh, he's in league with the Assange and and he was leaking things.
He's a liar, too.
Yeah, he pleaded guilty to these facts.
But what about the Garani massacre video that was leaked months before?
Yeah, but he didn't leak that and they couldn't prove that he did.
So they could not prove that.
No, that that part really collapsed on them trying to prove they got greedy.
And it's because they're trying to line up their next shot, which is Julian Assange.
And they thought the most efficient way to do that would be to convict Manning of leaking things earlier.
And that way they could establish that Assange was running him and giving him guidance and bossing him around.
But that turns out not to be the case.
They just did not have the evidence for that, that the that Manning's leak started so early back in September of 2010.
Yeah, they're just a bunch of conspiracy kooks.
Yeah, yeah, they came off that way.
And I don't think they I think they're in their own bubble world, too, where I'm sure, you know, their spouses, their families, their friends are all eager to, you know, string string Bradley Manning up.
And I think they would have been much smarter to use the approach that that you just mentioned about, you know, not trying to consign Bradley Manning's soul to hell for eternal damnation, but just establish guilt.
And after all, the the rat Lambo admitted on the stand on a cross-examination that, yeah, you're right, he was just a good kid who meant well and no, he never said anything anti-American.
And yes, I did try to tempt him with the dark side to go and sell and make a personal fortune selling the information to Russia and China.
And he told me to go to hell over that.
And, you know what I mean?
Like they prove the defense, as you mentioned, this great defense team of David Coombs and whoever else, they destroyed that line of argument during the trial for the government to go back to that in the in their closing statement.
I think they really are, yeah, like you said, in a bubble, they're just they're really scraping it.
It just all comes down to the judge, to Judge Denise Glynn and what she decides and how the adverb knowingly is key here.
I mean, and whether that means he definitely knew or whether he should have known or could have known, that's a bit vague.
And a lot depends on her individual judgment, which is a bit scary.
Now, Manny could have had a jury, what's called a panel of experts in the military system, but he opted not to be.
Juries can be a little more unpredictable.
And that was his call and his call alone to make.
Well, they only need two thirds to convict you.
Yeah, they only need two thirds.
It's different from the civilian system, for sure.
Seems like probably a good gamble there, although I don't know enough about the judge really to know.
But I would trust Coombs judgment on that one.
Yeah.
Yeah, me too.
But we're going to see how this this plays out tomorrow.
And then that's just the beginning, at least for Bradley Manning, because in the sentencing hearings, you're going to have lines of argument that were not permitted in the trial phase by both sides.
And those are arguments like as to what Manning's real motive was that's going to be fleshed out more.
And really, more importantly, what was the impact of the leaks?
I mean, it's been more than three years since most of these leaks came out and all the people who were screaming Armageddon, bloody murder, then they still have not been able to come up with any concrete damage, if any, that these have done to American security, to foreign civilians, anything like that.
On the other hand, in the past three years, we've had a lot of activists, a lot of scholars, a lot of journalists make great use of these leaks.
And the impact hasn't always been sexy or splashy or dramatic.
But, you know, that's how knowledge and progress advances.
It's usually incremental, little by little.
And you've had several guests on your show who have made great use of the leaks, whether it's the Leveretts or Jeremy Scahill.
And so it's just entered the bloodstream of, you know, of political writing.
And that's a good thing.
Right.
Yeah, it's too bad we don't have time to talk today, although it's all right.
We can get back to it.
But just about the importance of all the stories.
And, you know, I've done interviews that are just on those lines, the importance of the particular documents that he leaked.
But we're out of time for today.
But thank you so much, Chase.
We'll talk to you again, maybe later, even in the week when we find out what's going on here.
Oh, yeah.
Pleasure talking with you, Scott.
Take care.
Thanks very much.
That's the great Chase Menard.
He's a lawyer from New York and he's the author of The Passion of Bradley Manning.
Read that.
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