Courtroom sketch of Major Ashden Fein and other prosecutors at Ft. Meade by Clark Stoeckley

During trial proceedings for Pfc. Bradley Manning on Wednesday, his defense objected to the use of a sample Acceptable Use Policy (AUP) he had not signed, which the prosecution wanted to use to elicit testimony on whether Manning exceeded his authorized access on his government computer.

It was one of the more contentious moments of the trial so far. At one point, defense attorney David Coombs was standing to the side of the lectern in the courtroom while two military prosecutors, Cpt. Hunter Whyte and Maj. Ashden Fein, stood behind the lectern trying to make their case to the judge about the legitimacy of this sample AUP.

Coombs stated in military court at Fort Meade that the defense was objecting because three of the counts Manning faces “rise and fall” on whether he violated the AUP.

He is accused of “knowingly” exceeding “his authorized access on a Secret Internet Protocol Router network (SIPRNet) computer” in Specification 2 and Specification 3 to “obtain information” that was classified. These are both alleged violations of the Computer Fraud and Abuse Act (CFAA). (Note: Specifications are like counts.)

It also could apparently be a factor in proving another specification that alleges Manning had “unauthorized possession of information relating to the national defense”—a video file that prosecutors claim was in a Farah investigation folder on US Central Command, which Manning willfully communicated without authorization in violation of the Espionage Act.

The sample AUP did make it into evidence for identification purposes, but, based off the objections of the judge, it is unclear how much weight it will be given, if any.

For more on what has been transpiring in the trial, here are the Freedom of the Press Foundation’s transcripts.

Military prosecutors do not have the AUP that he signed before using the systems at Forward Operating Base Hammer in Baghdad, where he was stationed. His unit lost the document. His unit also lost a copy of the AUP that Cpt. Cherepko, a Brigade Automations Officer who was tasked with “maintenance and management of the brigade’s network.”

No copy of any AUP signed by other officers in Manning’s unit exists either. That is because it was, according to Cherepko, “When the network was turned off, they were burned.”

The documents were “destroyed,” which is why, as Maj. Ashden Fein declared in court, the United States was “offering to the best” of Cherepko’s memory a sample AUP that would aid him in remembering was in the AUP “when it existed.”

But, that still did not satisfy why no officer secured a copy of an AUP for a future court martial.

While cross-examining Cherepko, Coombs asked if Manning’s ability to access the SIPRNet at been limited at some point. It had been limited on the “night that he was detained” at the end of May 2010 in FOB Hammer. No one asked for a copy of a standard AUP that soldiers like Manning had signed to keep on record.

The prosecutors, to coverup up for the fact that they did not secure an exact copy of a critical piece of evidence, decided to use the sample AUP in an army regulation called AR25-2 that controls or regulates information assurance and information security. They wanted to use a sample that was not the same length as the AUP Manning signed and did not have the same terms that Manning signed.

Coombs failed to persuade military judge Army Col. Denise Lind when trying to prevent the government from using the sample AUP. It would not be used as the AUP Manning had signed, but it could be used for “illustrative purposes.”

The prosecution proceeded and this exchange occurred as Cpt. Hunter Whyte cross-examined Cherepko on the sample AUP:

WHYTE: Can you please explain to the court how this sample, to the best of your memory, compares with the actual AUP that you signed at FOB Hammer?

CHEREPKO: It’s similar. It may not look identical, but the content is similar.

WHYTE: Your Honor, we offer Prosecution Exhibit 94 as the next Prosecution exhibit.

Coombs further objected:

…In this instance, I don’t know if the witness actually read the amount of time. This seems to be similar meaning. It looks like an AUP and there might be some similar terms, but to offer this into actual evidence in this case it has no relevance to this case here because it’s not what my client signed for one.

Even though the witness does have personal knowledge of the AUP that was signed in this instance all it’s saying it’s similar. Most of the time it might go to weight instead of admissible,  but in this instance, because of the fact that the terms actually matter, what is relevant is the actual terms of AUP…

Additionally, allowing the prosecution to use this document would be “prejudicial” and confuse the actual issues, “that is what are the terms that Pfc. Manning had to abide by while he was deployed.”

With both Coombs and Whyte standing on the courtroom floor, the judge sustained the objection. “If you want to go through the document paragraph by paragraph and talk about the witness, since he’s coming from memory what he remembers the actual AUP said, I’ll listen,” she said.

Immediately after, they tried to have this sample AUP admitted into evidence again and Coombs objected. The judge told the prosecutors they had to go paragraph by paragraph to prove it was similar before it would be admitted. The prosecutors called a recess out of frustration.

When proceedings resumed after a short recess, Cherepko testified, “To the best of my memory the content was very similar. The sample until 25-2 covers what needs to be in an acceptable use policy and to the best of my memory the content and the subject matter is very similar.”

Cherepko looked over the paragraphs in the sample and said that the “intent” of the paragraphs was similar. One outlined that soldiers should understand it was their responsibility when on the unclassified or classified networks to “follow the rules and not make any unauthorized modifications, changes or do anything to circumvent security.” Another indicated soldiers were not to introduce “software to the network or to a system.”

Manning was not authorized to install software, Cherepko said. He was not authorized to install Wget, a program that could be used to speed up downloads of information which Manning used to pull documents from the SIPRNet.

After Whyte concluded, Coombs had an opportunity to fully cross-examine the witness. He pressed Cherepko on how he could possibly remember the AUP Manning signed was similar to this sample AUP. He was not reading it on a “daily basis” nor was he “in charge of briefing other people on the AUP” to have them sign it. He did no reviewing of the document ever. He was basing all of his statements on what he remembered reading in the document back in 2009—three to four years ago.

Coombs showed Cherepko a Fort Drum installation AUP that was used when soldiers in Manning’s unit redeployed from FOB Hammer. The two were quite a bit different, according to Coombs.

Then, this exchange happened:

COOMBS: Now, even within the AUP, the one term that the government had you look at with, you know, I will not add malicious code or whatnot, had a phrase in there without authorization, correct?

CHEREPKO: I believe so, sir. I don’t recall what it said but yes.

COOMBS: You don’t recall something you just read a few minutes ago?

CHEREPKO: Yes, sir.

COOMBS: Okay. So do you need me to refresh your memory on something you read a few minutes ago?

CHEREPKO: No, I’m fine. We’re good.

COOMBS: So, again, did it say without authorization in it?

CHEREPKO: On the sample AUP, sir?

COOMBS: Correct.

CHEREPKO I would, if you could refresh me that would be great.

COOMBS: I’ll be glad to.

The manner and tone of Coombs was a combination of condescension and disbelief. Coombs pounced because the prosecutors had maintained in front of the judge that he was capable of remembering something he signed years ago but yet he could not remember a document that prosecutors put in front of him for cross-examination minutes ago.

One should expect these sort of shenanigans throughout the entire trial. The military judge has given a lot of leeway to the prosecution and, to a slightly lesser extent, the defense. The prosecutors have taken advantage of this, while at the same time expecting the military judge will be more stringent toward the defense.

In fact, early in the proceedings on the same day, the prosecutors tried to prevent the defense from using a forensic report put together by Mark Johnson, a Computer Crimes Investigative Unit (CCIU) investigator, by arguing it consisted of “out-of-court statements” and was also “made solely for the purposes of this litigation.” They claimed it contained hearsay. Fein argued it was created “specifically for this court-martial, not necessarily in the regularly conducted business of Mr. Johnson.”

Lind overruled the objection. “It’s made as part of the regular cours of regularly conducted business activity of this entity,” she stated.

For more on what has been transpiring in the trial, here are the Freedom of the Press Foundation’s transcriptsAnd, for Firedoglake’s complete coverage, go here.