Judge Army Col. Denise Lind (Courtroom sketch by Clark Stoeckley)

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 must 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 been 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.”

As previously reported, bin Laden allegedly requested an Al Qaeda leader go get him some copies of information published by WikiLeaks. The government would like to have at least five witnesses, in addition to the Defense Department “operator,” take 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 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.”

Manning’s defense attorney, David Coombs, had argued previously that  “Manning’s actual knowledge at the time imparted to the WikiLeaks organization” was 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 was “after the fact” evidence and irrelevant.

He had 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.” But, the judge thinks Manning’s knowledge of whether Al Qaeda, AQAP or other “enemies” would actually receive the information is relevant.

This ruling pertains to the “aiding the enemy” charge, which is the following:

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 is an offense that carries the potential of life in prison without parole if he is convicted. And, also, how the charge is being argued has ramifications for press freedom.

Both Bob Woodward and Noam Chomsky have been read by terrorist groups like Al Qaeda. Writer William Blum notes Al Qaeda suggested it might be useful for those following the group to read his book if then-President George W. Bush continued with his “lies and oppression.”

Presumably, there are a long list of writers, reporters and others, whose work has been read by terrorists or terrorist groups and considered when deciding what operations to engage in against the United States. None of these writers, reporters and others nor the media organizations, which published this work, have control over what America’s enemies do with such writing or reporting. They have a First Amendment right to publish and this press freedom should not be chilled by prosecuting people for “aiding” enemies when no evidence has been presented to suggest this happened.

Floyd Abrams and Yochai Benkler wrote last month in a column for the New York Times, “WikiLeaks is part of what the Fourth Estate is becoming, that the leaks included important disclosures and that their publication is protected by the First Amendment no less than the publication of the Pentagon Papers was.”

Firedoglake was one of the first to report that the judge had asked one of the military prosecutors, “If we substituted New York Times for WikiLeaks, would you still charge Bradley Manning in the way that you have?” Without hesitation, the prosecutor answered yes.

Before this question, the judge asked if the govt was planning to present any evidence about the nature of WikiLeaks. Is it 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.

The defense would like to call Benkler to testify on WikiLeaks and present evidence that Manning would have had no reason to think disclosing information would be given or communicated to the enemy by WikiLeaks and as a result “aid the enemy” because WikiLeaks was a known and respectable media organization that was doing work that was garnering praise and awards.

As is increasingly apparent, the outcome of this case could have chilling First Amendment implications. If the government is able to use circumstantial evidence related to Al Qaeda that does not prove a chain of events that directly implicates Manning and that is accepted as enough to convict him of this, the publishing of information will have been criminalized by the military judge. It would escalate the power, which the government or military, has to prosecute alleged leakers or even whistleblowers.