In deliberations over a defense motion to dismiss the “aiding the enemy” charge, the government argued that the “enemy” had gone regularly to a “specific website and Pfc. Bradley Manning knew the “enemy” would do this when he allegedly provided information to the website.

The deliberations occurred in the second day of a pre-trial motion hearing at Fort Meade in Maryland. Manning, who is accused of releasing classified information to WikiLeaks, is charged with “aiding the enemy,” an Article 104 offense under the uniform code of military justice (UCMJ). It is a federal offense that could carry the death penalty (although the government has indicated it will not press for that in sentencing).

Judge Col. Denise Lind asked military prosecutor Capt. Joe Morrow if “the government intends to show that there is a particular website that this information was sent to and the accused was aware the enemy used that website.” Morrow said yes.

What this means is that the government is essentially arguing that “the enemy”—which the government has said is al Qaeda or any terror groups related—frequently accessed WikiLeaks and any “intelligence” provided. Manning knew that by handing over information to website he would provide assistance to “the enemy.”

The unsparing interpretation of Article 104 is why Manning’s defense lawyer, David Coombs, filed a dismissal motion. This theory would make it possible to charge any soldier, who published information to the Internet, with “aiding the enemy,” and that would be unconstitutional.

Before going into more detail on the arguments, here is what Article 104 says [and he is charged under (2)]:

Any person who—

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;

shall suffer death or such other punishment as a court-martial or military commission may direct. This section does not apply to a military commission established under chapter 47A of this title.

Coombs argued that in order to charge a soldier with “aiding the enemy” the government would have to be “alleging that he used WikiLeaks for the purpose of giving intelligence to the enemy.” They would have to show “general evil intent.” For example, he said, if he provided intelligence to FedEx with the address of “the enemy” and FedEx provided it to “the enemy,” that would indicate “evil intent.” But the charge would not cover “negligently” or “recklessly” providing information, which the government is alleging.

Coombs expanded his argument to say that under the government’s interpretation, if the government could show the enemy had access to a blog a soldier could be hit with an “aiding the enemy” charge. Any “reasonable soldier would understand posting on a website, if the enemy used the website, constitutes indirectly giving intelligence.”

Focusing in on the allegation that he knew the enemy used the Internet and would access WikiLeaks, Coombs said the same could be said of the New York Times or the Washington Post. The Washington Post frequently publishes classified information provided to them. What if the government alleged that he provided “intelligence” to the Washington Post knowing that “the enemy” frequently reads the Washington Post?

He continued by asking, what if the same was said after a soldier posted anywhere on the Internet or to a Facebook page of a family member. In all instances, the government’s theory would expose a soldier to a charge that carries the possibility of a death penalty.

Additionally, Coombs provided the example of what if a soldier is part of a unit that is about to deploy and that soldier knows the unit does not have proper body armor. The soldier goes to WikiLeaks to “bring pressure” on the unit. If WikiLeaks published this information, the soldier could be brought to trial for “aiding the enemy.” If he gave the information to the Washington Post, the same, and, if he gave the information to his father and his father was concerned so he posted it on the web for everyone to read, again, the soldier would be open to the charge of “aiding the enemy.”

The clear issue, as Coombs stated, is “no soldier subject to UCMJ would ever feel comfortable making any statement publicly to any news reporter for fear of at a later date being charged” with “aiding the enemy.”

Morrow told the judge that the interpretation would not “criminalize a substantial amount of constitutionally protected speech.” This concedes that it would “criminalize” some speech. So, the question becomes what is the government’s definition of “substantial”?

To Morrow, “talking to a reporter about PTSD or low morale in a certain unit” would not necessarily mean the soldier knew that what was posted would be accessible to the enemy. But, the theory behind the charge is that “the enemy” could access WikiLeaks on the Internet and so “the enemy” was aided. If this information were about morale or PTSD in the unit, the military could come down on the soldier for speaking out.

A legal matter expert notes the “judge hasn’t seen any evidence.” The government is “arguing purely on a statutory construction process.” That means they are focused on legal theory and less on what actually happened. The defense is using a “more fact-based process” to argue against the charge of “aiding the enemy.” Without seeing the evidence and having the government prove Manning “knew,” it is likely to be difficult for the judge to rule in favor of the motion.

It is not outlandish to suggest the “aiding the enemy” charge would be used to stifle soldier’s freedom of speech. Though another case did not involve the charge of “aiding the enemy,” a Marine was just discharged for posting anti-Obama statements to his Facebook profile. The American Civil Liberties Union (ACLU) argued this move to have the soldier dismissed was retaliation for speech protected under the First Amendment.

Furthermore, the interpretation makes it seem like the government believed WikiLeaks was bookmarked by al Qaeda and checked each and every day for any information on vulnerabilities in the United States that could be exploited. The suggestion is they were mining information on the website regularly for targets for terror attacks. And, if all they have to support this interpretation is an al Qaeda propaganda video shown in court during an Article 32 hearing in December or some PowerPoint presentation where Manning acknowledged an “enemy” could get information from WikiLeaks, the charge is even more ridiculous.

Morrow hesitated when asked to address a hypothetical. Why? Because a soldier who doesn’t have authority to talk to the press or post online would face punishment. Only soldiers authorized to speak on “government malfeasance” are authorized to speak openly. To any passing observer, this should be seen as a violation of constitutional rights. Why should someone in the military give up their rights under the First Amendment?

What the government said today appears to make the charge seem even more egregious. It suggests the way the “aiding the enemy” charge is being used is very much connected to the way the Obama Administration is prosecuting a record number of whistleblowers. And this interpretation, if it holds, is virtually guaranteed to push the defense to appeal any verdict to the US Supreme Court.

Kevin Gosztola is the co-author of the new book, “Truth and Consequences: The US vs. Bradley Manning.” He will be doing an FDL Book Salon on April 28 on the recently published book.