Manning defense lawyer David Coombs. Illustration by Clark Stoeckley.

7:35 PM EST We are in recess for the day. The next session for the trial will be Thursday, July 18th.

7:34 PM EST The Judge has denied the government’s request for their witness to rebut the testimony by Prof. Yochai Benkler on how WikiLeaks is a legitimate journalistic organization.

7:07 PM EST The government prosecutors now want the judge to allow them to present evidence related to WikiLeaks that should’ve been part of case-in-chief. It has become very clear that Prof. Yochai Benkler’s testimony was very effective; it has made the government get serious about presenting their own view of WikiLeaks.

7:04 PM EST The Judge has asked the government about Benkler: “Do you mean that you do no preparation and you wait until you get the relevance ruling and then you start?” Even though the judge ruled that Professor Benkler’s testimony was relevant, the goverenment still thought they could block it. So they claim that they didn’t prepare to contest it.

7:02 PM EST Now the government in its rebuttal case would like to present evidence to challenge Prof. Benkler’s testimony that WikiLeaks is journalistic organization. The defense points out that the time to challenge whether WikiLeaks was journalistic organization or not was when Professor Benkler was on the witness stand.

6:55 PM EST The government wants the entire book, “Good Soldiers,” by David Finkel, to be admitted into evidence. They claim that reading “Good Soldiers” would have “informed the accused’s knowledge of what should and should not have been released.”  There has been no evidence presented that Bradley Manning read the entire “Good Soldiers” by David Finkel. (The book was referenced earlier in the trial and features a transcript of the “Collateral Murder” video.)

5:56 PM EST A ruling on some charges should come Thursday. Right now, the court will hear arguments over the scope of the government’s rebuttal case.

5:48 PM EST David Coombs states that Manning, once “under pressure for what at one time was a death penalty offense,” now faces life without parole for “aiding the enemy.”

5:40 PM EST The defense suggests that the way the government has charged Manning with “aiding the enemy” is that it “punishes people for getting information out to the press.”  The defense adds that the ”aiding enemy” charge is being used to “put a hammer down on any whistleblower or anybody who wants to put information out.”

5:36 PM EST The government claims that Bradley Manning put “information that he knew the enemy was seeking on WikiLeaks.”

5:34 PM EST The court heard arguments over finding Bradley Manning “not guilty” of “aiding the enemy.”  The government states that it doesn’t contend that “should have known” is included in actual knowledge, as in Manning should have known he would “aid the enemy”.

4:41 PM EST The government states, “Wget didn’t bypass some firewall,” so Manning could download cables; the government presented no evidence that he bypassed any barriers. Manning had access to the information. The government is trying to get around this reality by crafting its own incoherent interpretation of case law.

4:40 PM EST Defense tells judge that the “fundamental underpinnings” of the Computer Fraud and Abuse Act is that a “person using a computer should have some kind of notice that now they are potentially facing a 10-year offense.”

4:35 PM EST Court hears argument on the defense motion for a finding of “not guilty” on the Computer Fraud and Abuse Act offenses. The Defense maintains that Wget “not even designed to exceed authorized access.” Use doesn’t violate the Computer Fraud and Abuse Act.

4:33 PM EST The government argues Manning’s use of Wget violated his authorized access to State Department cables because he used it to speed up his downloads. The Judge asks the key question: “Did he access the cables using WGET or did he already have access to the cables and used Wget to download them?” The answer to this question should be the difference between whether Manning is found guilty or not guilty of Computer Fraud and Abuse Act offenses or not.

4:32 PM EST The defense argues that the only way the government can prove Manning exceeded his authorized access on his computer is if he violated “access restriction”.

3:05 PM EST The afternoon court proceedings have begun.

1:35 PM EST The afternoon proceedings will play out as follows: government and defense will argue over access to statements known that were made by witnesses during the trial that relate to testimony in the trial. There then will be argument over the government’s planned rebuttal case and whether it stays within the scope of the case that was put on by the defense. After that, there will be argument over the four defense motions for a finding of “not guilty” on seven charges altogether.

Original Post

Both the government and the defense have rested in the trial of Pfc. Bradley Manning, who is being prosecuted for disclosing United States government information to WikiLeaks. But, before the trial proceeds onward to a ruling by the judge on what offenses Manning is guilty of committing, the judge must rule on motions requesting a finding of “not guilty” for seven of the offenses Manning is charged with committing.

The defense has moved for a “not guilty” finding on the “aiding the enemy” charge—that he did “knowingly give intelligence to the enemy, through indirect means.” It moved for a “not guilty” finding on charges that he exceeded his authorized access on a government computer. It also moved for a “not guilty” finding on charges that he stole, purloined or knowingly converted a “thing of value” and the charge related to his alleged stealing of a US military global email address list.

It is standard for defense attorneys to file motions like this at this point in the process. Those charged face individual violations or “specifications,” which represent individual events or courses of conduct that were in violation of the law or the military code of justice. The defense addresses where it believes the government failed to present evidence on an individual element or “specification.”

The filed motions are required to indicate where the evidence was insufficient. The judge will grant the motions only if the government cannot show that it presented evidence on each element. (She also will not evaluate the credibility of witnesses that testified in the case but will assume all testimony was true and accurate.)

On July 9, I covered the motion to pertaining to the “aiding the enemy” charge against Manning. The motion alleges, “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.”

The government is specifically required by the judge to prove “knowledge.” The charge, as written, 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 judge’s instruction reads, “A person cannot violate Article 104 by committing an act inadvertently, accidentally or negligently that has the effect of aiding the enemy.” If the government cannot prove Manning had “knowledge,” he cannot be convicted of “aiding the enemy.”

Manning is charged with stealing or knowingly converting the Combined Information Data Network Exchange Afghanistan (CIDNE-A) database containing 90,000 records (released as the Afghan War Logs) and the Combined Information Data Network Exchange Iraq (CIDNE-I) database  containing 380,000 (released as the Iraq War Logs). He also is charged with stealing or converting a US Southern Command database containing over 700 detainee assessment reports (released as “The Gitmo Files”). And he is charged with stealing or knowingly converting the State Department’s Net-Centric Diplomacy database, which contained over 250,000 US State Embassy cables.

The defense argues there has been no evidence presented that the databases were stolen or converted because Manning did not steal the databases themselves. He made copies of the information in them and at no point were the databases rendered inoperable because he copied the information.

The government charged Manning with stealing a copy of the global email address list for members of US forces that were stationed in Iraq. But, according to the defense, ”The government called no witnesses to testify that they compared the addresses found in the unallocated space of Pfc. Manning’s computer to the USF-I GAL [global address list] ass it existed on a certain date.” One of its own witnesses also testified that the USF-I GAL had 160,000 email addresses. The total number of email addresses that were found on Manning’s computer only totaled 24,000.

As to the charges that Manning exceeded his authorized access on a government computer—the Computer Fraud and Abuse Act violations, the defense argues that the theory the government has is irrelevant in lieu of the fact that Manning was “authorized to access each and every piece of information he accessed.”

“The government has not introduced any evidence to suggest that Pfc. Manning was not permitted to view the cables in question. The government has not introduced any evidence to suggest that Pfc. Manning was not permitted to download the cables in question. The government simply asserts that Pfc. Manning was not permitted to download them using a certain program, Wget,” the motion argues.

This is the government’s theory:

In order for a person to access or obtain a diplomatic cable on the [Net-Centric Diplomacy] website, the person has to individually “click” or “save” the diplomatic cable after searching for the cable or navigating to the cable in some manner. As the evidence will show, the accused bypassed the ordinary method of accessing information by adding unauthorized software to his SIPRNET computer and using that software to rapidly harvest or data-mine the information. Wget was not available on the computers used by the accused or authorized as a tool to download the information. Thus, the accused violated a restriction on access to the information – he bypassed a code-based restriction – by using Wget to obtain the cables in batches.

The defense’s reply to this, however, is that Wget did not in any way expand his access giving the ability to pull information he would not have normally been able to view.

*

There is more media than usual here today – at least 14 reporters here.

Outlets that have not been here often like CNN, the Los Angeles Times, and the Wall Street Journal. Of course, reporters who make up what I will call the Fab Four of the Manning court martial: Alexa O’Brien, Adam Klasfeld of Courthouse News, Nathan Fuller of the Bradley Manning Support Network and this journalist are present. The Washington PostReuters, RT, Associated Press and Agence France Presse are here. Court sketch artist and WikiLeaks Truck driver Clark Stoeckley is here too.

I do not see anyone from the New York Times here. That Manning’s defense is going to deliver critical arguments to possibly get the judge to find Manning “not guilty” of seven charges, including “aiding the enemy,” apparently was too straightforward to cover. Or, they just did not want to come to Fort Meade today.