08/01/13 – Alexa O’Brien – The Scott Horton Show

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Our next guest, Alexa O'Brien.
I guess first of all, can we talk about, there's so much to talk about.
I guess first of all let's talk about what's going on right now.
They're in the middle of still debating the harm done, supposedly, the mitigating factors, etc., in the sentencing of Bradley Manning.
Is that correct?
Yeah, so we're at the government's case right now.
We just started the sentencing phase yesterday, so we're talking about aggravation.
Now, the defense, of course, gets to cross-examine the government's witnesses, and that's where you'll find them trying to mitigate, essentially, the quote-unquote impact that Manning's leaks had on whatever the witnesses say.
The defense will present their own case when the government rests its own.
And now, so is there – I forget who it was who told me that some of this government's case, at least, is secret.
That's right.
You know, actually, probably I would say most of it.
Now, we have 13 witnesses that will testify by closed session or classified stipulation.
We're actually currently just in a closed session, so the press and the public don't have access to that.
Those 13 witnesses, their names and background information are published on my site.
It's one of the most recent entries that I actually just published, as well as information about the three classified damage assessments that will be used as evidence in this phase of the trial.
And then, yeah, those damage assessments – well, so there was one that was state and one that was DOD.
What was the third one?
Okay, State Department.
Then there's the Defense Intelligence Agency, which is part of the DOD.
And then there's also the Office of the National Counterintelligence Executive Damage Assessment, which is best described as – it was done along with the Information Security, ISO Office.
And it was more of a forward-looking mitigation.
It was recently reported about – its offshoot was recently reported about by McClatchy.
It's the Insider Threat National Security Staff Group we have now, headed by Clapper, who's head of ODNI, Office of the Director of National Intelligence, as well as the Attorney General, Eric Holder.
There is a National Security Staff Insider Threat Group that is actually the child of this on-fix damage assessment.
The most important thing to say before we talk about it in depth is that they all say there was no damage.
Now, we need to also define what damage is.
There's actually damage.
This is really about impact because damage is actually a particular legal term.
So what we're talking about here is impact, not damage, that there's no harm.
Well, I wonder about how they catalog all of that because according to them – in fact, I think I saw a tweet where you were asking kind of rhetorically, well, what is the national interest anyway and how do they define it?
Because certainly Hillary Clinton would complain that she lost Hosni Mubarak because of him, and that's huge damage to what she would consider America's interest, to what the government considers America's interest, even though probably for political correctness reasons they can't really claim that as damage, that we lost a puppet dictator of ours.
That's why it's in a closed session.
I'm sorry?
That's why it's in a closed session.
Let's talk about – for example, we have right now – they might have just gone to lunch, but they were in a closed session with Elizabeth Dibble, who was the principal deputy assistant secretary for the Near Eastern Affairs Bureau in the Department of State.
So they deal with all the Middle East and North African countries.
Now, the information that we do have – you know, we can connect the dots – is we know that they're going to testify in the closed session about Iran, Libya, and Lebanon.
We know that.
We also know that the cables were testified about in the trial on the merits.
So what we just finished where Manning had this really grim verdict.
And those are listed on my site under Ambassador Stephen Sashay, who was the former ambassador to Yemen.
We know from public reporting from the inspector general reports out of the Department of State that the NEA, the Near Eastern Affairs area, had the most activity related to – these are the State Department's own words – according to their inspector general report.
So, you know, clearly there was a lot of – Bradley Manning is said to be responsible for the Arab Spring.
So that's what that probably means.
They had shadow task forces dealing specifically with getting people out.
And that probably deals with any unrest in countries like Libya and the like.
But fundamentally, you know, what's important to drive home is that these are – you asked about national security, and we're talking about a very broad geopolitical term.
That means, you know, everything from the economic interests of Exxon that are ostensibly the U.S. interests to the political interests of any particular corporation that has relationships with the State Department or what the State Department reports to be the American public interest.
Right.
And, of course, in the case – this is why it would have to be secret – is that they came out in support of the Arab Spring.
They tried to co-opt it.
They're co-opting it right now in Syria.
They co-opted it in Libya.
They praised the fall of their sock puppet dictator Mubarak in Egypt because they had to.
What were they going to say?
Yeah, Uncle Sam loves dictators, not democracy.
Oops.
So they went ahead and at least pretended to embrace it for a little while there.
And so if they were going to claim the Arab Spring and Bradley Manning being responsible for the Arab Spring as harm rather than some great act of heroism, then I guess no wonder that would have to be off the record for the public that they could ever get their hands on to examine.
I mean a sensible reason why it's classified, meaning what they're saying, is because the cables are still classified.
We all know.
We've all read the cables.
They're all online right now.
That's right, but they're still considered to be classified.
So even the closed sessions that happened in the trial on the merits, which we just finished, now we're in the sentencing phase, the CIA red cell memos, everybody knew what they were and what he was testifying about.
But, of course, it was in a closed session because the judge ruled that they weren't lawfully in the public domain.
So they're still classified.
You know, the State Department, too, here we should be very important to say is that Patrick Kennedy, the Undersecretary of Management at the Department of State, who was the original classification authority for all of the charged cables, there's 117 of them, you know, Manning got charged with espionage not for every cable but for 117 of them.
Specifically, he was charged actually with the Computer Fraud and Abuse Act, but it has an Espionage Act clause in it.
These cables, sorry, Kennedy testified before Congress in late December and early January as the cables were coming out saying that there was no damage, that they were playing up damage, this is according to two anonymous congressional aides who spoke to Reuters, and it's public information, you can find it online, that they were playing up damage in order to bolster at the time a prosecution of Assange and of Manning.
Now, on the convictions, I guess, can we talk about the aiding, he was acquitted on aiding the enemy, but he was convicted, as you said, of, I forget how many counts now, under the Espionage Act, not of espionage, but of counts under the Espionage Act.
Can you detail a little bit of that for us?
Sure, he was convicted of six counts under the Espionage Act.
He was convicted of the lesser-included offense of the Espionage Act.
It's not the Espionage Act, it's a violation under the Uniform Code of Military Justice, not tied to a federal violation, for collateral murder.
He was convicted of knowingly accessing the Reiki of X13.
Also, the Computer Fraud and Abuse Act was stripped from that.
That was related to his plea.
He was convicted of the Computer Fraud and Abuse Act violation for 116 U.S. State Department cables.
He was convicted of all five databases of stealing U.S. government property for the Afghan War Diaries, the Iraq War Logs, the Southcom Database, which contained the Gitmo files, the State Department Database that contained Cablegates, and the Microsoft Exchange U.S. Global Address List for U.S. Forces Iraq.
Now, that's very controversial because she allowed the government to change the charge sheet after the close of evidence, which is really, really, really not okay.
Yeah.
Well, you know, I just talked about that with Philip Giraldi, who is a former CIA and DIA officer, and he said that military judges have a lot of leeway to do a lot of things that sound kind of crazy to people from the civilian world, but that typically in a high-profile case where people are watching, you would think that they would not do something like that, because it really does look bad.
Because I think, as you just said, they waited until the whole damn case was over, and then she rewrote the charges for the prosecutors just so they would fit?
I mean, are you kidding me?
It's really disgusting.
I mean, and the other thing, there's a couple other things.
This has been, like, the developing track story of Judge Lind.
You know, it started out with – you could see her kind of, in the Article 13, related to the unlawful pretrial confinement at Quantico, her really doing anything and everything to have that sec-nav interpreted so that they were allowed to, you know, keep Manning in the conditions that they were allowed to keep him in.
He justifies for nine hours.
The entire press pool falls in love with him, because he's really genuinely a very endearing character.
But you see him, you know, he's very special.
He's not like other people.
He really, you know, he's so straightforward and so earnest.
It's almost like watching your kid brother, you know, being put away for 136 years.
He, you know, she comes out with her ruling, and it's essentially, it accounts for every single mental health visit he made and the fact that he told people in the confinement facility that he was gay.
And just really, like, it was – many of the journalists in the press pool remarked after that, hearing that ruling, that it was almost like the antithesis of his testimony, that she wanted to make sure that that got out there.
You know, there was no need to make all those accountings legally in her order for only 112-day sentencing credit.
And then, you know, she just got promoted to ACCA, which is the Army Court of Criminal Appeals, where this case will go.
Certainly she won't sit on that, but there's no question that Manning has this entire prosecution stacked against him, and the judge has enabled that prosecution to do that.
Well, and, you know, I'm sure it's just fine with her, but it's also, I think, you know, doubtless that she had much choice in the matter either.
When – I don't know exactly what the rules are in the military, but when they hold – under any system of American law, you hold somebody for three years without trial, they get to go home after that.
That's it.
Or to have the kind of command influence being pronounced by the president, the secretary of defense, and the chairman of the Joint Chiefs of Staff, the highest three men in the chain of command, in the military chain of command, pronouncing Manning guilty before this, if she was just going by the book, she'd have had to dismiss the entire case for misconduct and told the president, tough, you shouldn't have said that, you know?
Yeah.
So she's obviously just – this is a political thing, like a trial in some foreign country where trials are political things rather than legal matters.
Adam Clashfield made a great point earlier this morning about – he's a journalist who's been here, and he's been here very consistently throughout this entire process, and he does excellent pieces for the courthouse news.
And he was talking about the plea, and he made a great point this morning about, you know, had the government accepted the plea, or this could have been such a different trial.
Now, we're talking in the hypothetical now, in the current political environment.
None of us is surprised, but it doesn't change the difference between what would have been more advantageous for the American public vis-à-vis what's happening now.
And, you know, it would have been a great trial because it really would have allowed the American public to be educated about what exactly happened here and how he took responsibility for what he did wrong or he feels he did wrong, and then also what is just simply the hot air of the government.
Like, for example, yesterday, the, you know, Brigadier General Robert Carr, who was tasked by Secretary of Defense – then-Secretary of Defense Robert Gates to set up this information review task force to review basically the Iraq war logs, the Afghan war diaries, and then they ended up revealing the Guantanamo files and State Department information.
You know, he had to drop in this sort of fact that the Taliban had killed somebody that wasn't related to the Afghan war logs.
And, you know, this guy is basically a salesperson for Northrop Grumman.
His area of – you know, his regional area is the Fort Meade area, which is experiencing, you know, unprecedented growth from private security contractors.
And none of that has really been able to – none of that has really been exposed in the public's mind to be able to have a proper discussion about, coming back to your original question, national security, what's in the American public's interest.
Defense did start to question people about that.
It will probably be more developed in the closed session, which we won't have access to.
Yeah, it's too bad that they're having any closed session at all, but I guess couldn't expect better than that.
Let me ask you about specifically – not to get too deep into the weeds here, but it's kind of important to me – is the accusation that Manning had downloaded and uploaded to WikiLeaks the video of what's been called the Gharani massacre from Afghanistan.
If I understood the story right, this was a big part of the government's conspiracy theory against Manning, was that he was lying about when he started leaking and, therefore, his entire thought process and everything about why he leaked and when and everything that led up to it and everything else, because here he was leaking the Gharani video way back before, which meant, I guess, supposedly that he was a secret agent of Julian Assange, which means this isn't journalism, it's espionage or whatever their ridiculous thing is.
Except the way I believe it was reported by Nathan Fuller on the show was that the prosecution witnesses completely blew up on him on the stand, and they, in fact, couldn't prove at all that that was the case.
But then I read a Charlie Savage piece, and I didn't get to go back and check the written statement, but I read a Charlie Savage piece that said that he pleaded guilty to that charge.
So I wonder whether he was convicted of that, whether any of this is shaken out, or what's the deal?
It's no offense to Charlie Savage, because I know he's a great reporter in other areas, but he's definitely wrong on that if he said that in the New York Times, and there should be a correction on that.
I think he said it pretty vaguely, but it sounded like that was what he was referring to.
Anybody who's been following this case from the beginning, I mean, when I read the first charge sheet and I started to look at this case at a very close level, I knew that the government had charged the Gharani airstrike video, which is a video of a 2009, May 2009 bombing in the Farah province of Afghanistan that killed 140 women and children.
Now, back then, it was Human Rights Watch observers described it, it was like Judgment Day.
Now, the Pentagon came out because there was such an outrage about this particular incident and said that they were going to release a video, and they never did.
So, flash forward.
The government tried to build a case against Manning using the Gharani airstrike video because they wanted to say, essentially, that Manning was leaking from touchdown Iraq, so the minute he got into Iraq, he was leaking, they could build a conspiracy.
They had no forensic evidence.
We should also distinguish that there was another charge related to Farah documents that he was convicted of.
He was found not guilty of the Gharani airstrike video, but he was found guilty, and he admitted to the lesser-included offense of the Farah documents, which included the U.S. Army investigation, called the 15-6 investigation of the incident.
It also included pictures.
On his computer were found pictures of burned victims and the like.
So, the U.S. government comes to trial with this flash forward.
Back in the pretrial, Manning pled to ten—he pled to, actually, legally correctly, nine lesser-included offenses and one violation of Article 92, which is a failure to obey a lawful general order.
And he had tried to plead guilty to the Gharani airstrike video, but he said he transmitted it in April with the Farah documents, not in November, as the government alleged.
And, to tell you the truth, if you look at the defense filings, we all knew this back in, actually, just in February, at the arraignment, February 2012, because the government—sorry, the defense actually put that statement in a defense filing, that the transmission of the Gharani video and the Farah documents was at the same time, April 11, 2010.
So, defense goes to court and tries to plead to this, and the government comes back and says, guess what?
That's a separate offense.
We could charge you two times, so another ten years.
So, that's why Manning pled not guilty to the Gharani airstrike video.
And, in court, the government came forward using a tweet.
If you look at the timeline of the Gharani airstrike, it was, like, November 19, 2009 to January 8, 2010.
And that's the day WikiLeaks' tweet, have encrypted video, need supercomputer time.
And it linked to the Gharani—information about the Gharani massacre.
So, the government was trying to build a case with a tweet, and with the fact that they had information about an internal Brookhaven National Laboratory investigation into an individual that was alleged to be their employee named Jason Katz, who had tried to decrypt the Gharani video.
And, if you look at all of the timelines for the Twitter 2703D secret warrant for information from people from the WikiLeaks grand jury, they all start on the same timeframe.
So, it was a way that the government wanted to basically loop the Manning case into their overarching prosecution of, you know, imminent or what they hope would be a prosecution of Julian Assange and people from WikiLeaks.
And they failed.
The main government forensic expert was being questioned by defense, and basically said, yeah, you're right.
It didn't come—this video didn't come from the CENTCOM server, as the government had alleged.
It actually came—the one that Manning transmitted in April, it actually came from the T-drive, where Manning got collateral murder.
You're right.
It was really funny that day.
Yeah, well, and they had a lot of problems like that, didn't they?
The prosecutors?
I mean, I'm actually surprised at some of her—I'm not surprised based on her track record, but I think that there is a lot of questions that we need to ask about these other espionage charges.
Like, for example, the fact that he was found guilty of the U.S. Basic Memo, which is the U.S. Army Counterintelligence 2008.
That's 10 years maximum.
If you look at that, it's actually pretty much a correlation or an aggregation of public reporting.
The government came back and said, well, the analysis of it is actually what adds the value and makes it classified.
And Bankler, one of the defense witnesses, Yochai Bankler from the Harvard Berkman Center for Internet and Society, said, you know, this is actually not very good analysis.
So we have to also question, like, why he was found guilty of espionage, not a lesser-included offense for a lot of these documents.
Right.
Well, yeah, it's just because they want to trump it up as high as they can anyway, right?
Yeah, absolutely.
But there are other issues.
There are other legal issues that will come up on the appeal.
Like, for example, the government charged these as information, meaning— and then I'm going to stay high, but I won't go too much into the release, but this will come up.
This is important.
It added an extra requirement on the charge sheet that Manning had the reason— had to have the reason to believe that this would cause injury to the United States.
And the government tried to get rid of that clause right before trial.
They're like, we don't really need these.
These are actually, you know, we don't need that extra what they call scienter requirement.
And the judge actually came back and said, no, no, you pled it.
You put it in the charge sheet.
You own it.
It's yours.
So he gets that.
And then that's going to tie into the database issue because he— you know, like I told you, she allowed the government to change the charge sheet.
There are a lot of, like, legal irregularities going on here, and that's why defense asked for what's called special findings last week because they want the judge to explain for every criminal element how she based her ruling to see if it will harmonize and if there are any legal mistakes that she made.
So in the appeals process, they can try to help knock down the sentence that he has or throw things out.
I don't know.
I guess there's no chance that the fact that the judge got a promotion during the trial or right before the trial would be enough to appeal based on that to the court that she's being promoted to.
Well, I don't know.
I mean, it's funny.
I was talking to another American whistleblower from the military, Matt Diaz, who actually leaked the names of the Guantanamo detainees and was convicted of espionage and is out of prison now and who's been following the case.
He's a wonderful American.
He's a great guy, and he deserves millions of pats on the back.
He's incredibly humble.
But he talked about the fact that his own judge was also promoted in his case to the Navy Marine Court of Criminal Appeals after his case.
So here we have an example of her being promoted during the case, and if we just look at the track record of the U.S. government in the last 10 years, they don't even care about the appearance of corruption.
Let's look back at the beginning of this trial.
You mentioned unlawful command influence by Obama, Martin Dempsey.
And Leon Panetta.
And Leon Panetta.
Let's talk about the investigating officer at the Article 32 who was responsible for referral, you know, deciding which charges to refer to actually a court-martial, which is the proceeding we're in now.
It's a military form of a grand jury.
This guy was a civilian employee with the Department of Justice, which had an open criminal investigation into Manning and into Julian Assange.
And in this function, because he's Army Reserve, he was sitting as the judge in this case.
I mean, so many problems with this trial, and it's unfortunate, you know, and perfectly not surprising that the military district of Washington and Fort Meade have done everything to prevent the public from actually seeing anything about this trial.
Because if Americans knew what was going on at Fort Meade, if they got to hear Bradley Manning, if they got to see what was going on in this trial, they would be outraged.
Right.
Yeah, there's been such a lie by omission about this thing.
I think Jake Tapper summed it up very well for all the Washington press people, which is, oh, well, you know, he's widely seen as guilty and bad and whatever, which means, you know, we don't care at all about that.
And so, therefore, the American people are basically led to believe that really nobody does, right?
When I was 14 and they had the war in the Gulf, I didn't know that there was a single protest.
TV never told me that anyone was against the war at all, really.
So, yeah, that works on people, that lie by omission.
That helps.
That's a big part of the narrative, a big black hole in it, you know, so very powerful.
Anyway, sorry.
Thanks very much for your time.
It's great to talk to you, as always.
Thank you so much.
Good to have you here.
Everybody, that's Alexa O'Brien.
I don't know.
As always, it sounds like I've interviewed her more than once before, right?
But, anyway, see you all tomorrow.
Thanks.
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