FORT MEADE, Md. -- As military prosecutors wrapped up their case against Bradley Manning just before the Fourth of July, their most serious charge against the Army private first class -- aiding the enemy -- rested tenuously on circumstantial evidence.
When the government brought the charge against Manning in May 2011, the move aroused a firestorm of criticism over fears a dangerous precedent could be set. Manning is being tried in a military court martial, but some have argued that the rarely used aiding the enemy charge might also be applied against civilians. Press freedom advocates claim the charge could be used to give a severe sentence to anyone who uploads sensitive information on the Internet -- by the government's own admission, it would have made no difference if Manning had given his 700,000 files to The New York Times instead of WikiLeaks.
The government began building its case in the wake of Manning's June 2010 arrest. Criminal investigators and forensics experts swooped in to figure out how a low-level intelligence analyst stationed in a remote corner of Iraq could send thousands of files -- on subjects ranging from the State Department to Guantanamo -- to WikiLeaks.
Prosecutor Capt. Joe Morrow said in his opening statement that the investigation concluded "Pfc. Manning knew the consequences of his actions and disregarded that knowledge in his own self-interest."
Despite the three years it took to bring Manning to trial, government investigators have not been able to turn up any smoking gun to prove that Manning knew the leaks would wind up in the hands of those such as Osama bin Laden. Instead, the prosecutors lowered the bar dramatically, arguing that Manning is guilty of the aiding the enemy charge because he knew that al Qaeda has access to the Internet, and to WikiLeaks in particular.
On one level, it is a simple matter of common sense that al Qaeda has Internet access. The group publicly posts videos and messages online. And it seems just as obvious that al Qaeda officials would visit the WikiLeaks page from time to time, just as they would read Twitter, The New York Times or Al Jazeera.
The government's argument, then, is that any member of the military who leaks classified information with the knowledge that it will be posted on the Internet is aiding enemies of the United States. Under that reasoning, even civilian senior White House officials who regularly share classified information with top journalists could perhaps be charged with aiding the enemy -- a charge punishable by death, although prosecutors have not sought that sentence for Manning.
Texas Tech University law professor Richard Rosen said that to convict Manning of aiding the enemy, the government "must prove that Manning knowingly gave intelligence information to the enemy. In other words, it must show something more than Manning should have known that the intelligence might reach al Qaeda. It may, however, show actual knowledge by circumstantial evidence."
Bit by bit, tweet by tweet, the government has been trying to build up that case -- but the almost entirely circumstantial evidence makes it far from clear as to whether they will succeed. In a move made public Monday, Manning's defense lawyer motioned to have the aiding the enemy charge dismissed for lack of evidence.
Between Morrow's June 3 opening statement and when the prosecution rested on Tuesday, the government brought out a parade of supervisors and trainers to testify that Manning was told al Qaeda and other foreign adversaries use the Internet to gather knowledge.
Troy Moul, who trained Manning as an all-source intelligence analyst at Fort Huachuca in Arizona in 2008, said he told the young recruit about Islamic extremists' increasing use of the Internet as a recruitment tool.
After Manning posted a public YouTube video talking about his training as an intelligence analyst, he was also forced to write up a PowerPoint presentation on the dangers of loose lips. Manning wrote in that June 2008 report that the United States's adversaries included "terrorists" and "hackers," that common operational security leaks happened on the Internet and that soldiers should avoid posting revealing information on the Internet.
Manning underwent more than a year of training before he was deployed to Iraq. But based on the evidence presented in trial, it appears he was never specifically told that al Qaeda might use WikiLeaks -- either as a propaganda tool or an intelligence resource.
"I will be honest with you," Moul said on the second day of the trial, "I never even heard the term WikiLeaks until I was informed that the accused had been arrested for the incident he's been accused of."
Moul had never heard of WikiLeaks, but Manning sure had. In his February plea statement accepting responsibility for 10 of the 22 charges against him, Manning describes first becoming aware of the transparency organization during that 2008 training at Fort Huachuca, then growing fascinated with it as he was deployed to Iraq in late 2009.
Manning even started to engage in discussions on WikiLeaks-linked chat forums, which he said "allowed me to feel connected to others even when alone." But Manning also said the "decisions that I made to send documents and information to the (WikiLeaks organization) and the website were my own decisions, and I take full responsibility for my actions."
Did Bradley Manning know the files he gave to WikiLeaks would also wind up in Abbottabad? The government has been endeavoring to show that Manning had "evil intent." That dramatic-sounding phrase appears in Judge Denise Lind's pre-trial instructions to the parties about the aiding the enemy charge. She wrote that the government will need to prove that Manning had "evil intent" to convict him of aiding the enemy.
But the phrase may not be as damning as it sounds: University of Pittsburgh visiting law professor David Frakt cautioned as the trial was starting that those words are "being used simply to denote wrongfulness, as opposed to a purely innocent intent."
Showing evil intent is where Manning's own understanding of putting files on WikiLeaks, rather than just anywhere on the Internet, really comes into play, Frakt said. Evil intent means the government will need to show "the accused had to know he was dealing, directly or indirectly, with an enemy of the United States [via WikiLeaks]," he said.
A government forensics investigator testified that a computer Manning accessed on Dec. 1, 2009 called up an Army Counterintelligence Center report called "Wikileaks.org -- An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?"
“Manning’s research warned him of the enemies’ use of WikiLeaks," Morrow, the prosecutor, said in his opening statement, pointing to the Counterintelligence Center document. But as the question mark in the document's title suggests, its actual text is far more ambiguous about enemy use of WikiLeaks.
Under cross-examination on June 10, Sheila Glenn, a senior Army Counterintelligence Center analyst who initially reviewed the report for publication, admitted that whether terrorist groups actually were using WikiLeaks was listed as an "intelligence gap" in that report.
As Manning said in his plea statement, his dealings with WikiLeaks were at times far more direct: he chatted with people who supported the group on Internet relay chat and the instant messaging service Jabber. One computer forensics expert was even able to recover chat logs between Manning and a contact at WikiLeaks that a government forensics expert said Manning had nicknamed "Julian Assange."
In those logs, Manning chatted with the alleged "Julian Assange" about Iceland, Iraq, Afghanistan and Guantanamo. But forensics expert Special Agent Mark Johnson allowed that there was no evidence "Julian Assange" actually asked Manning directly to hand over any leaks -- and the government has not tried to prove that "Julian Assange" was actually Julian Assange.
Proving Manning coordinated with WikiLeaks, and didn't just use it as a simple receptacle to dump documents for his own reasons, is crucial to the prosecution's larger case on the aiding the enemy charge. They want to show that Manning knew what would happen when he gave the transparency organization his many files.
And that took the trial to two tweets by WikiLeaks in early 2010. The timeline of those tweets is in dispute. But the prosecution suggests that in each case, Manning downloaded sensitive government files after seeing the WikiLeaks tweets: one, seeking video of a devastating Afghanistan airstrike that killed civilians, and the second, requesting a list of as many military email addresses as possible.
A government prosecutor said in a brief that the tweets show WikiLeaks had a "plan to compromise military information" -- a plan Manning knew about.
Yet the government can't prove that Manning ever actually saw those tweets. In its brief asking the judge to allow them as evidence in the case, the government pointed out that the law allows it to "meet its burden of proof with direct or circumstantial evidence."
Over the three and a half weeks of its case, the government repeatedly sought to meet the burden of proof with the latter: circumstantial evidence. The aiding the enemy charge has always been controversial, but now that the government's case has been laid out in full, the seeming reliance on circumstantial evidence is further infuriating critics.
Jesselyn Radack, who has defended National Security Agency whistleblowers in her work at the non-profit Government Accountability Project, calls the charge "excessive prosecution at its worst."
"It's a huge stretch to apply this to Manning," she said, "and the theory the government is using to prove it is downright frightening."
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