PFC Bradley Manning

(update below)

In a process where the military judge can allow facts to be introduced into evidence for trial which are well known or can be proven, the government asked the judge to take notice of multiple pieces of evidence that show how the government intends to tie Manning’s alleged leaks to aiding terrorism.

Al Qaeda and its affiliates—Al Qaeda in the Islamic Maghreb (AQIM) and Al Qaeda in the Arabian Peninsula (AQAP)—are all listed as terrorist organizations and “are in fact enemies of the United States,” military prosecutor Cpt. Joe Morrow stated.

He also stated Osama bin Laden of Al Qaeda is an enemy of the United States, which according to the government was declassified at the end of November last year. (Cpt. Morrow said something here about this being known to “the community” and actually the world.)

Morrow mentioned the government could provide the FBI’s “most wanted” list, which he was on prior to his “death.” (He was executed by SEAL Team Six in a night raid. It wasn’t like he just died. There’s a film receiving wide praise that depicts this action.)

The government indicated to Judge Army Col. Denise Lind that it had “digital media found during the UBL raid.” There was a “letter from UBL to Al Qaeda requesting a member gather [Defense Department] information.” A response to that letter had CIDNE reports—war logs from Iraq and Afghanistan—and State Department cables attached. Bin Laden had these in his possession “at the time of the raid.”

Cpt. Morrow also asked the judge to take notice of the fact that Adam Gadahn is an enemy of the US. The government intends to present a video during sentencing where he discusses WikiLeaks and al Qaeda’s response to the leaks. This shows “possession of information by the enemy.”

Finally, the government urged the judge to take notice of Inspire magazine, a magazine the government described as a magazine that “promotes violent jihad” and the “ideology” of AQAP. Cpt. Morrow said the government had witnesses who could testify about the magazine.

The judge asked if the issue referenced anything disclosed by the accused. Cpt. Morrow responded the government has a Winter 2010 issue of the magazine that references WikiLeaks. It “post-dates the accused’s misconduct and references the leak to WikiLeaks by the accused.”

The court has previously ruled damage is not relevant during the merits portion—the trial. However, during sentencing, it would be possible for the government and defense to present evidence on damage. The government intends to bring up much of this information during that part to show there truly was some danger posed by Manning’s alleged acts.

This is perhaps the clearest and most bald-faced indication of how the government intends to make an example out of Manning to date.

Previously, during a pre-trial hearing in December 2011 before the charges were referred to a court martial, the government played an Al Qaeda propaganda video from Asaha, the media production house for Al Qaeda. It featured Gadahn talking about the value of the State Embassy cables and how the cables make “foreign dependencies” clear. In the video, he says many will rely on Allah to put their plan into action but no one should take any action “before relying on the wide range of resources on the Internet” now.

The government declassified this information to enter into the record for the prosecution of Manning the fact that Bin Laden wanted to have “national defense information” to aid in the selection of US targets for attacks. The usefulness of this maneuver hinges upon whether the leaks contain “intelligence” that an enemy could actually use to attack the United States.

During proceedings yesterday, the government offered a motion to preclude the defense from discussing the over-classification of information Manning is charged with releasing. This motion, if the judge grants the motion, could make it difficult to challenge whether the information is, in fact, “intelligence.”

The defense has witnesses like Col. Morris Davis, a former chief prosecutor for the Guantanamo military commission, who it wishes to call because he reviewed detainee assessment briefs Manning allegedly released. He also wants to call former US Ambassador Peter Galbraith, presumably to testify on the nature of US State Department cables. This would serve to challenge official original classification authorities (OCAs) taking the stand on behalf of the government to state the information was properly classified, sensitive and it could be used to injure the United States. But, the government wishes to block the defense from being able to challenge the statements of OCAs, who’ll offer testimony on charged information.

Strikingly, the judge had no objection to the government having witnesses come testify about a terrorist magazine. She did, however, question whether it was appropriate to allow someone like Col. Davis come and testify in court about the nature of the information released. That was less acceptable than people coming to court to hype the role and threat of terrorist propaganda, which mentioned WikiLeaks.

From this move by the government, one can see the argument the government intends to make during trial is that Manning provided material to WikiLeaks. WikiLeaks, an info-terrorist website, posted material that was accessible to the enemy because it was online. Manning caused it to be posted online. He created the scenario where it would be easy for Al Qaeda to use the information to attack the US. (Of course, that all presumes that the information contained actionable intelligence that could be used to endanger the US. Current troop movements and locations were not in the war logs.)

Cases where soldiers are charged with “aiding the enemy” have always involved individuals going to the “enemy” and physically handing over information. There were some Civil War-era cases where people published newspaper stories with codes that the “enemy” could read and those individuals were prosecuted. There has never been a case like this one where a soldier allegedly handed over information to a media organization and that organization could be considered guilty of aiding the “enemy.”

If the government succeeds in entering all this as fact and the judge accepts this argument as reasonable, it quite clearly opens the door to prosecuting WikiLeaks editor-in-chief Julian Assange, the organization’s staffers and volunteers and others tied to the organization. It, in effect, makes permissible all efforts to target the organization’s right to publish because the government will have convinced a military judge that by publishing documents it helped aid terrorist organizations.

The government does not think there must be any intent to aid the enemy. Individuals who disclose information without authorization, especially classified information or “national defense information,” are to be criminalized and prosecuted for committing a capital crime.

Update  

This afternoon, during the hearing, testimony further informed how the government is likely to proceed.

As the defense was explaining what witnesses the defense wants to call for the trial and sentencing, the judge interrupted Manning’s defense lawyer David Coombs and asked, “What is the relevance of how WikiLeaks was viewed? What’s the difference between WikiLeaks and the New York Times?”  The defense agreed. With a little grin, Coombs said the defense would argue there is no difference.

The defense intends to call Professor Yochai Benkler, who wrote “A Free Irresponsible Press: WikiLeaks and the Battle Over the Soul of the Networked Fourth Estate.” Coombs said he had done research and was an expert, whose work had been peer-reviewed, and his testimony could undercut argument that by giving to WikiLeaks he would have knowledge of providing information to the enemy. Benkler’s work indicated at the time of Manning’s alleged leaks WikiLeaks was understood to be a legitimate news organization and wasn’t considered a terror organization that aided enemies of the United States.

The judge asked if the govt was planning to present any evidence about the nature of WikiLeaks. Is that somehow different from the New York Times? Does the government have a theory it is somehow different? To which the government replied during sentencing it would have a witness testify, who would “characterize” WikiLeaks.

Again, the judge asked, “If we substituted New York Times for WikiLeaks, would you still charge Bradley Manning in the way that you have?” Without hesitation, the government answered yes.