David Coombs, Manning’s defense lawyer (Sketch by Clark Stoeckley)

The soldier the United States military is prosecuting for releasing classified information to WikiLeaks, Pfc. Bradley Manning, faces twenty-two charges. The most significant charge, which carries the potential of life in prison without parole if he is convicted, is the “aiding the enemy” charge.

Military prosecutors would like to present evidence that Al Qaeda leader Osama bin Laden received the information Manning allegedly released. On January 9, 2012, 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.”

The government argues it has to prove the “enemy” received the information in order to convict him of the charge:

In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, without proper authority, knowingly give intelligence to the enemy, through indirect means.

It would seem a defense would want that threshold, but the government wants to put a Defense Department “operator”—probably a SEAL—who was part of the raid on bin Laden and seized the digital media, which contained copies of documents published by WikiLeaks, on the stand. They would like to have at least five other witnesses on the stand to testify about the chain of custody: how the evidence was given to someone in Afghanistan then to an FBI agent who went to Quantico and then passed it on to a forensic examiner.

The government also wants three witnesses on top of those six to testify about “what those documents were.” The documents on bin Laden’s digital media were, according to the government, the same as the ones found on WikiLeaks and also the documents found on an SD card at Manning’s aunt’s house. On top of that, they also would like a witness to testify on “what the letters said.”

In order to keep the government from sensationalizing the trial with evidence involving the raid on Bin Laden, SEAL Team 6, Bin Laden, Al Qaeda and its affiliates that could be prejudicial to Manning, the defense has chosen to argue the evidence is not relevant to the “aiding the enemy” charge.

David Coombs, defense lawyer for Manning, stated in court, “Actual receipt by the enemy with regard to that specification would not be relevant.” He pointed out that nowhere in the offense does it say “actual receipt by the enemy is required.”

He acknowledged normally the defense would argue for a “greater burden.” The fact is “any unauthorized communication” with the “enemy” is prohibited.

What “Manning’s actual knowledge at the time imparted to the WikiLeaks organization” is what is key to the charge, not the time period when bin Laden or another member of Al Qaeda received the information. Unless Manning “had some ability to know” it would be received by bin Laden, it is “after the fact” evidence and irrelevant.

Coombs appropriately compared the government’s request to present terrorist evidence in the trial to the military judge’s previous rulings to block the defense from having an avenue to highlight damage assessment reports from agencies during trial. The judge has precluded the defense from discussing “harm.” She ruled in July 2012 evidence of harm was not relevant to whether he was guilty or innocent. As I told McClatchy, “She thought Manning couldn’t have known what damage would occur after the documents were leaked, so the amount of damage shouldn’t affect his case.”

The judge has also determined he could not have known what measures agencies of government would have taken to mitigate damage so such evidence is not relevant.

The government opposed “after the fact” evidence related to alleged damage or harm, but now, because military prosecutors want to argue Manning’s charged acts helped bin Laden, they are perfectly fine with “after the fact” evidence. In fact, they believe they are somehow doing a favor to the accused by striving to prove receipt of the information during trial.

Military prosecutor Maj Ashden Fein argued the evidence was “relevant” because it would prove he had caused the “intelligence” to be “published on the Internet.” He stated there were “many avenues to be used to show it was on the internet” and “not all the information that was compromised was necessarily in one location and accessible.”

Appropriately, the judge said to Fein that is not the “only way the government can prove it was on the internet.” Fein responded, “There are many avenues the government can choose on what it uses and tailor to use.”

Why can’t military prosecutors show the “intelligence” was “caused to be published” on the WikiLeaks website to prove the charge?

The reason is the government went to the trouble of declassifying information for the purpose of convicting Manning and they want the statement of facts in the case to be Manning released information that bin Laden received.

The date of the bin Laden raid was May 2, 2011. The charge of “aiding the enemy” was issued in an indictment on March 3 of that year. Therefore, the government did not know it was going to find evidence that it could use to try and link Manning, however, they still charged him.

As Coombs noted, the government has made arguments that never suggested they lacked evidence to argue he is guilty of the offense. They have what he learned in training. They have a PowerPoint presentation he made as part of corrective training, where he outlined why information had to be protected from rivals, enemies, NGOs and “anyone else.” It also highlighted how discussion boards, chat rooms and social networking sites were the easiest places to violate information security and that he should avoid public conversations, posting information or talking to journalists.

All it looks like bin Laden did is say, “We think this is on WikiLeaks. Let’s look at it.” That is no different from anyone in the world going online to WikiLeaks to access the information. It also has no “bearing on the knowledge of Manning” unless there is some connection to the receipt. And, certainly, Coombs stated, “The government has other information to make the argument of actual knowledge.”

Finally, on the nature of the charge of “aiding the enemy,” Judge Lind and Coombs had an exchange where she asked, “Going back to constitutional questions – if someone wants to go interview someone from Al Qaeda, they are potentially violating the statute with the first email, ‘Are you available next week?’”

Coombs answered, “If the person was subject to the US Military Code of Justice.” The judge reminded him it is an “any person” offense. Now, he did not really have an answer for her. With a nervous smile, he seemed to acknowledge there is wide latitude for the government to bring the charge and realized a journalist could be committing an offense, but he said those are not the facts of the case. Manning was not a journalist seeking to arrange an interview with a member of Al Qaeda for a news story.

*For previous coverage of the “aiding the enemy” charge, go here.