Defense Attorney David Coombs

The defense in the military trial against Pfc. Bradley Manning at Fort Meade in Maryland argued multiple motions directing the judge to find Manning not guilty of committing greater offenses.

Four motions were filed challenging charges that allege Manning “exceeded authorized access” on his computer, stole, purloined or knowingly converted databases containing United States government information and that he “without proper authority, knowingly give intelligence to the enemy, through indirect means” and “aided the enemy.”

Manning’s defense attorney, David Coombs, argued the only way this offense makes sense is if there is an “intent requirement.” There has to have been “general evil intent” to “aid the enemy.” Since the judge, Army Col. Denise Lind, did not adopt this instruction, the other requirement is “actual knowledge.”

This has to occur to avoid the “very slippery slope of basically punishing people for getting information out to press,” or, “basically putting a hammer down on any whistleblower or anybody who wants to put information out,” Coombs declared.

Coombs argued much like “when dealing with individuals who have sold information for profit,” there must be clear indication of what you are doing. That must be the standard for punishing someone “with a sentence that can take away your life.”  

It would be “extremely bad precedent,” Coombs said, for the government to be able to convict someone of “aiding the enemy” with circumstantial-type evidence that essentially said you had training, you read something that an entity might potentially pose a threat and you were a “go-to analyst,” so based upon that you are guilty of this offense.

Coombs went on to describe a scenario where a soldier could know he had classified information, know the non-disclosure agreement he signed and know he should not release the information but decide to “accept the responsibility or possible consequences” because he wanted the information out. He might know he would be guilty of certain violations and be accused of stealing or exceeding access on his computer (depending upon how he got the information), but he would not expect to be charged with “aiding the enemy.”

The government, during its argument, was asked by the judge if the government was focusing on Manning’s individual circumstances, such as his training and experience and how that “might distinguish someone else” charged with “aiding the enemy” from someone who “basically had no knowledge of intelligence.”

Military prosecutor Cpt. Angel Overgaard said Manning was “distinct from an infantry man or a truck driver” because he was trained as an intelligence analyst. He “knew exactly” what would be the “consequences of his actions.” He was briefed on “the enemy.” He was briefed on “information in this leaked information.”

Overgaard also argued that it could prove the “aiding the enemy” offense with “circumstantial evidence.”

The defense suggested this case was a “first impression-type” case. No case had ever been prosecuted where it was going after a soldier for giving information to a journalistic organization. But, Overgaard contended it was “not an issue of first impression.” There was a “precedent for charging this type of case.”

The judge asked if this was the case from the Civil War where a soldier was attempting to get information to the enemy by publishing troop whereabouts. ”In that case, was the accused actually trying to reach the enemy?”

Overgaard said the government was not prepared to brief that.

The government addressed what they about an Army Counterintelligence Center report on WikiLeaks being a “threat” put together in 2008. These defense had said it showed Manning could not have had “actual knowledge” he would “aid the enemy” because it said an intelligence gap was that the US Army did not know if the enemy would go to WikiLeaks. Overgaard referenced another section of the report and argued that he would have known he was “putting information” out there “that he knew the enemy was seeking on WikiLeaks.”

Expressing a bit of frustration, she stated that it would be nice if the government had a recorded confession with Manning admitted that he knew giving information to WikiLeaks would get to the enemy. They did not have such a confession.

Coombs countered later that such a “confession” did exist—chats Manning had with hacker and government informant Adrian Lamo, chats between a person the government believes to be WikiLeaks editor-in-chief Julian Assange, emails between Manning and others where he talked about charged releases. And in those communications it is clear that he was releasing the information to spark discussion or reform, not to get the information to a terrorist group.

The judge again asked the government if it made any difference if the organization Manning had provided information to had been the Washington Post, The New York Times or The Wall Street Journal. She said one moment. Then, after consulting the lead prosecutor, Maj. Ashden Fein, Overgaard said, “No, it would not potentially make a difference.”

In January, the judge asked during a pretrial hearing, “If we substituted New York Times for WikiLeaks, would you still charge Bradley Manning in the way that you have?” Without hesitation, the government answered yes.

The government intends to put on a rebuttal case. It wanted to challenge a lot of the testimony given by Harvard Professor Yochai Benkler last week, which was relevant to the “aiding the enemy” charge. However, the government maintained that none of his testimony was relevant even after the judge approved him.

Because of this stance, they did not prepare a cross-examination where they challenged his views by citing what appeared on the WikiLeaks website and how they believed this showed WikiLeaks was not a legitimate journalistic organization.

Even though the judge ruled that Professor Benkler’s testimony was relevant, the government still thought they could block it. So they claim that they didn’t prepare to contest it.

The judge said, “Do you mean that you do no preparation and you wait until you get the relevance ruling and then you start” to prepare a witness and evidence for a rebuttal?

She ruled against the government and denied their request to call a witness, who could testify on WikiLeaks. “You had months to figure this out,” the judge said. A continuance could be granted to the defense to address the situation or she could not allow the evidence. Not allowing the evidence was the best way to handle it.

*For updates from today’s proceedings, go here.

Image by Clark Stoeckley under Creative Commons license