During the first day of the defense’s case in the trial of Pfc. Bradley Manning, his defense moved for a finding of “not guilty” on the charge of “aiding the enemy.”

Manning is charged with committing multiple offenses that relate to releasing United States government information to WikiLeaks. The offenses include violations of the Espionage Act, a federal statute prohibiting the embezzlement of government property and violations of the Computer Fraud and Abuse Act.

The most serious charge of “aiding the enemy” is an Article 104 offense and, if convicted, he would face a possible sentence of life in prison.

The “aiding the enemy” charge is, as follows:

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.

The defense has filed a motion for a “finding of not guilty,” which should be granted when, “viewing the evidence in the light most favorable to the prosecution, there is an ‘absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every essential element of an offense charged.’”

It argues, “The government’s evidence fails to show in any way that by giving information to WikiLeaks, PFC Manning had actual knowledge that he was giving information to the enemy.”

According to the motion, the defense finds the government presented evidence that Manning was told in his training that “the enemy uses the internet generally.” However, it “has not proffered any evidence, however, which shows that in his training, PFC Manning was told that a particular enemy looks at or uses the WikiLeaks website.”

Mr. Troy Moul, who trained Manning on protecting classified information, gave testimony in court that he had “never heard of WikiLeaks prior to PFC Manning’s arrest in this case.” Also, Cpt. Casey Fulton testified that intelligence analysts were only warned about social networking sites like Facebook or Google Maps. They were not warned about WikiLeaks.

Army Col. Denise Lind, the military judge in the trial, drafted instructions: “If at trial, the government does not prove the accused knew that by giving intelligence by indirect means, he actually knew he was giving intelligence to the enemy, the Court will entertain appropriate motions.”

Lind also gave instructions on what it would take for the government to prove “knowingly.”

“Knowingly” requires actual knowledge by the accused that by giving the intelligence to the third party or intermediary or in some other indirect way, that he was actually giving intelligence to the enemy through this indirect means. This offense requires that the accused had a general evil intent in that the accused had to know he was dealing, directly or indirectly, with an enemy of the United States. “Knowingly” means to act voluntarily or deliberately. A person cannot violate Article 104 by committing an act inadvertently, accidentally or negligently that has the effect of aiding the enemy.

But, as the defense argues, there has been no evidence introduced to suggest that Manning was “somehow independently aware that the enemy uses WikiLeaks.”

Mark Johnson, a Computer Crimes Investigative Unit (CCIU) investigator, testified that after examining Manning’s computer he found “no searches for the enemy, anything related to terrorism or anything remotely anti-American.”

Additionally, the motion goes into detail on how an Army Counterintelligence Center (ACIC) report on WikiLeaks as a “threat” does not prove Manning had knowledge his acts would “aid the enemy,” despite what the government has claimed.

The report titled, “WikiLeaks.org—An Online Reference to Foreign Intelligence Services, Insurgents or Terrorist Groups?” has a question mark that denotes the government is not certain about this. “If the government had actual knowledge that the enemy uses WikiLeaks, then the title” of the report would not end in a question mark. And, “if the US government does not have actual knowledge of the enemy’s use of the WikiLeaks website, then neither can PFC Manning.”

The government elicited testimony from Sheila Glenn, a senior analyst with ACIC, that went to the notion that it “must be presumed that foreign adversaries will review and assess any [Defense Department] sensitive or classified information posted to the WikiLeaks.org website.” The prosecutors want this to be enough to prove Manning “aided the enemy” but the defense maintains, “The fact that PFC Manning should have presumed something may go to whether he was negligent or reckless, but it does not go to whether he had actual knowledge.”

More significantly, the ACIC report listed this question as an “intelligence gap”—”Will the WikiLeaks.org website be used by [foreign intelligence security services], foreign military services, foreign insurgents or terrorist groups to collect sensitive or classified US Army information posted to the WikiLeaks.org website?” An “intelligence gap” is “something that is not able to be confirmed.” It is something which the military lacks actual knowledge. That is what makes it an intelligence gap. It is entirely unconfirmed.

Chat logs with hacker and government informant Adrian Lamo, who turned Manning into federal authorities, show, according to the defense, he had no intent to “aid the enemy.” Manning refused to sell the information to another country. He did not want “another state” to “just take advantage of the information.” He did not want adversaries to be able to use the information. He wanted the information in the public domain so “hopefully spark change and reform.”

Throughout the government’s case, evidence was presented about Al Qaeda in the Arabian Peninsula (AQAP) using its magazine, Inspire, to recommend that one of the activities that could be done to help the “mujahideen” was to “archive large amounts of information” and “anything useful from WikiLeaks” would be “useful for archiving.” A propaganda video was made with Al Qaeda spokesperson Adam Gadahn encouraging followers to not undertake any action without referencing information released by WikiLeaks. Osama bin Laden also apparently requested copies of information that was published by WikiLeaks and was given that information to him on a piece of digital media found in the raid on his compound in Abbottabad, Pakistan. But the problem with all of this evidence is that it is all after the fact.

Manning did not give the material to AQAP. He did not give the material to Gadahn. He did not give it to a member of Al Qaeda who passed it on to bin Laden. WikiLeaks also did not receive this material with the understanding that it be forwarded on to bin Laden or any members of Al Qaeda either. In fact, there is no evidence that in his review and selection of information that he ever was interested in Al Qaeda, AQAP, bin Laden, Gadahn or any of America’s enemies, who could have taken advantage of the information released.

For the record, there is no evidence that WikiLeaks aids terrorist organizations either, however, that is the flawed presumption the government hopes influences the understanding the judge has of the media organization. Nor is there any evidence that Manning’s disclosures inadvertently “aided” any enemies either. Other than being useful for propaganda, it is not clear that any strategic or tactical advantage was gained because of the release.

The government, which is relying on the ACIC report, believes in this case that WikiLeaks is an organization that “encourages the theft of sensitive or classified proprietary information or intellectual property.” It believes that WikiLeaks encouraged Manning to “harvest” or “steal” classified information.

Though this is a military trial, it is important to note that the charge of “aiding the enemy” is an any person offense. The government does not think there must be any intent to aid the enemy in order to prosecute a person for this act. Individuals who disclose information without authorization, especially classified information or “national defense information,” are to be criminalized and prosecuted for committing a capital crime.

In effect, the government’s arguments dangerously conflate publishing, which is a protected First Amendment act, with actual acts of espionage or treason. The also rely on a case from the Civil War era that is well over a century old and have said they would charge Manning the same if he had given the information to the New York Times (which in fact he testified that he tried to do).

Professor Yochai Benkler, who has produced scholarly work on WikiLeaks and will be testifying in the trial as a defense witness, has written:

If Bradley Manning is convicted of aiding the enemy, the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers. The consequences for the ability of the press to perform its critical watchdog function in the national security arena will be dire. And then there is the principle of the thing. However technically defensible on the language of the statute, and however well-intentioned the individual prosecutors in this case may be, we have to look at ourselves in the mirror of this case and ask: Are we the America of Japanese Internment and Joseph McCarthy, or are we the America of Ida Tarbell and the Pentagon Papers? What kind of country makes communicating with the press for publication to the American public a death-eligible offense?

The interconnectedness of the government’s prosecution of Manning with efforts to prosecute other leakers or whistleblowers or pursue future leakers or whistleblowers should not be dismissed. This morning the government sought to obtain a copy of a ruling in the case of Stephen Jin-Woo Kim, the former State Department employee who allegedly leaked classified information to Fox News reporter James Rosen. They want this to use in influencing how the judge interprets whether the disclosures would be potentially damaging to the United States. The ruling is under seal, but they specifically requested the court in that case expeditiously make the ruling available for the purpose of prosecuting Manning.

In conclusion, what happens here will create precedent for pursuing future whistleblowers or leakers. Depending on how WikiLeaks ends up being cast in the ruling, it may become a factor in how the US government continues its investigation and potential indictment of WikiLeaks editor-in-chief Julian Assange, WikiLeaks staffers or volunteers connected to WikiLeaks.