Bradley Manning defense team. Image by C. Stoeckley.

A military judge issued a ruling in the trial of Pfc. Bradley Manning today where she declined to acquit Manning of the “aiding the enemy” charge.

His defense had filed motion requesting what is called a “directed verdict” because they believed the government had presented no evidence that Manning had “aided” any enemies when it presented its case during the trial.

The judge, Army Col. Denise Lind, applied a standard that she must follow in this process. “Only in the absence of some evidence” that by reasonable inference could “reasonably tend to establish an offense charged” was she to rule that Manning was not guilty.

Applying the standards she was to follow, it was probably to be expected that the judge would not acquit Manning at this stage. The key issue is, as American Civil Liberties Union’s (ACLU) Director of the Speech, Privacy and Technology Project, Ben Wizner, told Firedoglake, the judge continues to apply the wrong legal standard to considering the charge.

The charge lacks an intent requirement to make it constitutional and not violate a person’s First Amendment rights. It fails to state an offense, which is what the defense argued during the pretrial phase of the court martial when pushed for dismissal of the charge.

The defense’s motion stated, “Courts have uniformly held that the government must allege and prove a general criminal intent to give intelligence to, or communicate with, the enemy.” No prosecution has “maintained without an allegation that the accused intended to give intelligence to, or communicate with, the enemy in some way.”

Lind decided, to prove he “aided the enemy,” the government would have to show he acted without authority and had actual knowledge he was “giving intelligence to the enemy, whether the giving” was by “direct or indirect means.” She believed this ensured the charge was not “unconstitutionally overbroad and would not prohibit a substantial amount of constitutionally protected speech. (The defense had also argued the charge was “substantially overbroad” and should be “void for vagueness.”)

Wizner suggested that adding a requirement that the military prosecutors prove “knowledge” did not make the charge constitutional. “Knowledge is not protective in the information age,” Wizner added.

It is now “impossible to communicate to the public without communicating to the enemy.” Anyone from the Pentagon could get up and answer questions about the military and that information would become known to the enemy simply because it was broadcast on television or the video was posted online. So, in terms of Wizner’s example involving then-Secretary of Defense Donald Rumsfeld holding a town hall with soldiers and answering a question from a specialist that military vehicles were not properly armored, that could be construed as “aiding the enemy.”

Sharing any information with the press becomes “aiding the enemy.” According to Wizner, “any member of the military including the Pentagon press secretary” could be guilty of committing an offense because they would have known the information would get to the enemy.

“All of this has a legal novelty,” Wizner stated. If he is convicted, it would be more difficult for the charge to stand up on appeal because it lacks the intent requirement. And lost in all of this is whom Manning intended to disclose the material: the public.

Amnesty International senior director for international law and policy, Widney Brown, reacted, “The charge of ‘aiding the enemy’ is ludicrous.” And, “What’s surprising is that the prosecutors in this case, who have a duty to act in the interest of justice, have pushed a theory that making information available on the internet — whether through Wikileaks, in a personal blog posting, or on the website of The New York Times – can amount to ‘aiding the enemy.’”

Brown noted that “the prosecution’s own witnesses repeatedly told the court that they found no evidence that Manning was sympathetic towards al Qaeda or other terrorist groups, that he had never expressed disloyalty to his country, that they had no evidence that he had ties to any government other than his own.”

“It’s abundantly clear that the charge of ‘aiding the enemy’ has no basis and the charge should be withdrawn,” Brown asserted. “This makes a mockery of the U.S. military court system.”

On July 12, Amnesty International officially called for the US government to drop the “aiding the enemy” charge against Manning.

During oral argument on July 15, Manning’s defense attorney, David Coombs, declared the only way this offense makes sense is if there is an “intent requirement.” It has to be there to “avoid the very slippery slope of basically punishing people for getting information out to the press, to basically put, I guess, a hammer down on any whistleblower or anybody who wants to put information out.”

That the charge was not dismissed by the judge and is part of this trial should continue to be the focus of any attention given to proceedings. As the prosecutors are arguing it, a successful conviction would go a long way toward aiding the government in their efforts to control the flow of information and criminalize leaks to the press.