In a significant ruling, the military judge in the case of Pfc. Bradley Manning has denied a motion by his defense to preclude evidence that Osama bin Laden and Al Qaeda “received” copies of information published by WikiLeaks.
Judge Army Col. Denise Lind wholly rejected the arguments the defense had made that evidence involving receipt of information by Al Qaeda or Al Qaeda in the Arabian Peninsula (AQAP) would be prejudicial to proceedings. However, the judge found the evidence would not be prejudicial or probative.
She also found the evidence was not “cumulative” and would not cause “undue delay” or a “waste of time.” It would not cause proceedings to be “side tracked.” These were all arguments the defense had made to prevent evidence from being introduced for argument during the merits portion of the trial.
The judge concluded the government musts prove they were given to the enemy or received and “evidence of circumstances surrounding receipt is relevant to whether he did give it to the enemy.” Also, “circumstantial evidence” is “relevant to prove if he knew or did not know he was dealing with the enemy,” and “receipt” by enemy is “relevant” to whether he “caused to be published” what the government considers to be intelligence.
“Intelligence,” the judge read, is “any helpful information given to or received by the enemy, which is true at least in part.” She also said, “Any hostile body such as a rebellious mob or a band of renegades” could become construed as the “enemy.”
In the ruling, there was a “Classified Entity” that was mentioned multiple times, along with Al Qaeda and AQAP, as an “Entity” that the government alleges received the information published. This is apparently an “Entity” the government will not let us know and potentially one which is not publicly designated a terrorist organization but is treated as such by the government. And, this is Kafkaesque to think the government will be arguing an “Entity,” which the press and public are not supposed to know, received the information during trial.
The ruling makes it possible for “John Doe,” the Defense Department “operator, who was part of the raid on Osama bin Laden’s compound, to testify during both the merits and sentencing portion of the trial. This “operator” is the possibly SEAL Team member, who the government has informed the court was involved in seizing digital media that was allegedly found to contain copies of Iraq or Afghanistan war logs and US State Embassy cables published by WikiLeaks.
The operator may appear in “disguise” during trial proceedings to protect his identity if he has to give testimony that is deemed by the judge to no longer be classified.
The government has argued the defense should not have access to this “operator”—a witness—would like to limit the defense’s ability to cross-examine him for discovery because “that could reveal his true identity.” They would like to limit discovery and cross-examination on the mission where bin Laden was killed and the execution and training that led to the mission. So, while the defense is challenging this, the government currently maintains it should have no communication with the “operator” until he takes the stand probably in a closed session during the merits portion of the trial. And, this makes it hard for the defense to prepare any argument that could test his credibility as a witness.
Manning has accepted responsibility for disclosing the war logs and diplomatic cables to WikiLeaks. That does not mean the copies the government is alleging Al Qaeda had and bin Laden saw are from Manning himself.
No evidence has presented yet to indicate that Manning gave information WikiLeaks and then someone within WikiLeaks turned around and passed that information to an Al Qaeda member. The government is making its entire argument on the fact that it was published to the Internet and accessible to the “enemy” and, therefore, Manning “aided the enemy.”