The military judge in the trial of Pfc. Bradley Manning decided this week to not acquit Manning of “aiding the enemy.”

Judge Army Col. Denise Lind found the prosecutors in the case “could reasonably tend to establish that the accused actually knew he was dealing with the enemy and actually knew that by sending such information to WikiLeaks with the intent that it be broadcast to the public, he was knowingly providing intelligence to the enemy.”

All the prosecutors had to do to prevent the judge from acquitting Manning was to present “some evidence” that the judge would have to consider in “a light most favorable to the prosecution.” That was the standard for reviewing the defense motion for a “directed verdict” that had been filed because the defense argued there was no evidence that Manning had aided any of America’s enemies, particularly Al Qaeda and Al Qaeda in the Arabian Peninsula (AQAP).

The New York Times sent a reporter to cover and reported on July 18:

The judge, Col. Denise Lind, said the government had provided sufficient evidence to prove beyond a reasonable doubt that Private Manning knowingly gave information to certain enemy groups, like as Al Qaeda, when he passed hundreds of thousands of documents to WikiLeaks in 2009.

I took issue with what I considered two clear errors in that paragraph and sent a letter to the Times‘ Public Editor that also delved into some other issues I had with the coverage.

Hello,

I do not know if you are the person to contact if there is a correction that should be considered, but, as someone who has been a credentialed member of the press pool covering the trial of Pfc. Bradley Manning, I am confident in saying there are at least two glaring errors in the Times’ coverage of the trial today.

Erin Banco wrote:

“The judge, Col. Denise Lind, said the government had provided sufficient evidence to prove beyond a reasonable doubt that Private Manning knowingly gave information to certain enemy groups, like as Al Qaeda, when he passed hundreds of thousands of documents to WikiLeaks in 2009.”

Manning did not pass documents to WikiLeaks in 2009. He passed them in 2010.

More significantly, the judge did not rule that the government had “provided sufficient evidence to prove beyond a reasonable doubt that Private Manning knowingly gave information to certain enemy groups.” What she ruled is there was “some evidence” that Manning had “aided the enemy” because prosecutors had presented “some evidence” during the case.

What could probably be more clear in the story is that the judge was not asked to drop the charges. She was asked to issue a “directed verdict” where she would rule “not guilty.” Essentially, she was urged to acquit Manning of the charge because the defense argued the prosecutors had presented no evidence that Manning had “aided the enemy.”

Considering the case presented in “a light most favorable to the prosecution,” the judge concluded that, in fact, the defense request needed to be denied because the prosecutors had not failed to present evidence related to the charge. However, that does not mean prosecutors proved beyond a reasonable doubt that Manning had given information to enemy groups. And such language suggests one could expect the judge to find him guilty, since most Americans are likely familiar (based on consumption of entertainment) that a judge can only convict someone if the evidence has been proven beyond a reasonable doubt.

It would actually be more accurate to say the judge declined to acquit Manning because the judge was not being asked to drop charges.

I do not blame Erin Banco for making these mistakes. I have not met or introduced myself yet, but it appears this is one of the first stories Banco has written for the Times. It’s quite a task to have someone who has not been covering the trial all along attempt to accurately cover the trial in appropriate detail at this stage. Had the Times sent Banco to the trial on the first day so Banco could cover the entire trial, the article may not have had errors that should have been fact-checked and the written story may not have been confusing.

I’ll conclude with this note: I have publicly and sometimes regularly taken the Times to task for not being here every day of the Trial. I believe someone should have been here every day. I have been heavily critical because of the Times’ history as a reputable establishment news outlet, one with a large audience and a great capability of keeping the public informed on news stories that are of importance.

It is good to see someone from the Times here today, however, I am in the unfortunate position of wondering if it was even worth it because I do not know if the story published on the “aiding the enemy” ruling helps readers better understand the trial or simply fogs readers’ understanding.

At about 9:30 AM on July 19, I received a reply from the Office of the Public Editor that read:

Thanks so much for taking the time to write to us. I have forwarded your email along to The Times’ corrections desk and they should be following up with you in due course. Again, thanks for writing—we very much appreciate your feedback.

I received no follow-up. But, I did check the story to see if any of it had been corrected. The date of releases was changed from 2009 to 2010.

That the words “beyond a reasonable doubt” remained in the story led me to write a follow-up letter to the Times‘ Public Editor.

Hello,
Thank you for correcting the factual error on when WikiLeaks’ releases happened from 2009 to 2010. However, a separate factual error remains.

“The judge, Col. Denise Lind, said the government had provided sufficient evidence to prove beyond a reasonable doubt that Private Manning knowingly gave information to enemy groups like Al Qaeda when he passed hundreds of thousands of documents to WikiLeaks in 2010.”

This is what the judge said in the conclusion of her ruling:

“The accused’s training and experience as an all source intelligence analyst, his preparation of intelligence products while deployed in Iraq, a combat zone, using the CIDNE-1 database while contemporaneously sending the entire database to WikiLeaks for public disclosure and worldwide publication, the volume of classified information from the Department of Defense and the Department of State that the accused admitted to disclosing to WikiLeaks, and the accused’s search for and downloading of counterintelligence documents reporting the threat posed by WikiLeaks, considered together, provide some evidence from which, together with all reasonable inferences and applicable assumptions, viewed in the light most favorable to the prosecution, without an evaluation of the credibility of witnesses, could reasonably tend to establish that the accused actually knew he was dealing with the enemy and actually knew that by sending such information to WikiLeaks with the intent that it be broadcast to the public, he was knowingly providing intelligence to the enemy. The “intelligence gap” evidence in the ACIC report as well  as laudable motive evidence by the accused goes to the weight of the evidence, a decision properly determined by the fact-finder.” [emphasis added]

At no point in the ruling did the judge say anything about there being “sufficient evidence to prove beyond a reasonable doubt that Private Manning knowingly gave information to enemy groups like Al Qaeda.”

As suggested in a previous letter to the NYT’s public editor, “beyond a reasonable doubt” is language that a reasonable person with minimal familiarity with trial processes would likely think indicated the prosecution had proven the charge and the judge was giving notice to the defense that Manning would probably be convicted. That’s because “beyond a reasonable doubt” is a common standard for convicting a person of a charge. However, that is not what the judge said in her ruling yesterday, and her ruling should not be misconstrued as something that one can reference and say this shows he “aided the enemy.”

Furthermore, the judge’s ruling contains a critical nuance that Erin Banco missed — which is that she concluded he intended it “be broadcast to the public.” Nothing about intent is mentioned in the story when that is possibly the most critical issue with this offense. It is what has led experts like the ACLU’s Ben Wizner to argue that the charge is unconstitutional and, if he is convicted, it would not survive appeal. (Note: Banco quoted Wizner in a Times story published a day before the ruling.)

Here is a copy of the ruling.

As of 9 am EST on July 20, the language “beyond a reasonable doubt” remains in the Times‘ coverage and I have received no response from anyone at the Times on why they did not consider the language to be a mistake worth correcting.

*

It is not the first time the news organization has produced subpar coverage of Manning’s court martial. After the Times‘ public editor, Margaret Sullivan, criticized the organization for not having a reporter at a major pretrial hearing on Manning’s pretrial confinement, the Times‘ Scott Shane showed up to the proceedings.

The story produced incorrectly reported that the defense was seeking relief for “unlawful pretrial punishment” at the Quantico Marine Brig and Kuwait. The defense was only seeking relief for punishment at Quantico. It suggested that prosecutors had refused a “deal” when Manning offered to plead guilty to lesser offenses.

Shane incompletely reported on Chief Warrant Officer Denise Barnes, who had been a commanding officer at Quantico during the last four months of Manning’s confinement. He covered the testimony she gave during a cross-examination by military prosecutors on how Manning had grown “less communicative and more monosyllabic” and would not “clearly communicate” to her that he didn’t want to kill himself in prison. But he left court before the defense brought during their cross-examination that Barnes was the officer that had taken Manning’s underwear after he intellectualized his feelings about his confinement conditions. His words were used against him, which Coombs argued was why Manning became less communicative.

The Times benefited from publishing stories on information, which Manning has admitted he disclosed to WikiLeaks. A federal appeals court ruled yesterday that Times reporter James Risen must testify against his source in a leak case and is not covered by reporter’s privilege. Presumably, the Times has also been under investigation because one of their reporters, David Sanger, published stories on sensitive information related to cyber warfare against Iran. It should have concluded it was in their interest to cover this trial more thoroughly and more accurately because, if Manning is convicted of “aiding the enemy,” the outcome could have significant implications on freedom of the press that very well could affect the Times.

In one way, the error is understandable. The military public affairs officers do not have copies of rulings issued by the judge available to hand out to the press after they are read into the record. The press have to keep up with the judge’s reading and it can be difficult to get down what she said without losing important nuances that should be in any breaking news reports. However, the Times now has a copy of the ruling she issued and has not done anything to correct the fact that she never said anything about there being “sufficient evidence to prove beyond a reasonable doubt that Private Manning knowingly gave information to enemy groups like Al Qaeda.”