FORT MEADE, Md. -- Pfc. Bradley Manning's lawyer argued on Monday that the most serious charge against the Army intelligence analyst -- aiding the enemy -- threatens the freedom of the press and should be dismissed.
Speaking in the first court session after Manning's team rested its case last week, defense attorney David Coombs said the judge overseeing the court martial should "avoid the very slippery slope" of "putting a hammer down on any whistleblower." Manning is on trial for giving WikiLeaks hundreds of thousands of documents, some sensitive.
Monday's oral arguments concerned a pair of motions Manning has made to have serious charges against him, aiding the enemy and violating the Computer Fraud and Abuse Act, dismissed for lack of evidence. As the trial draws to a conclusion with closing arguments likely this week, the judge overseeing the case will rule on the defense contention that the government has not produced a bare minimum of evidence that Manning aided the enemy.
For now, Col. Denise Lind, the judge overseeing the case, will consider only whether the government has failed to present any evidence that Manning aided the enemy. She will employ the higher standard of guilt beyond a reasonable doubt on the charges that remain after she considers the defense motions.
Running down the entirely circumstantial case the government has produced to put Manning away for life on the aiding the enemy charge, Coombs said the prosecution had presented "no evidence" that his client actually knew that the files he sent to WikiLeaks would wind up in al Qaeda's hands.
Showing that Manning knew his leaks would wind up in al Qaeda's possession is a crucial element of the government's charge against him. But there is no smoking gun where Manning admits he wants the information he gave to WikiLeaks to wind up in Osama bin Laden's hiding spot. Instead, in chat logs with a confidant, Manning spoke about wanting to raise the public's awareness of the actions the government was making in its name.
Coombs expressed his disbelief that Manning could be sent away for life, solely for allowing information to be put on the Internet for anyone to read. "No case has ever been prosecuted under this type of a theory," he said.
"It would be nice if we had a videotaped confession," the prosecutor, Capt. Angel Overgaard, retorted. Instead, she said, the government had offered a "mountain of circumstantial evidence" about Manning's training and showed he knew al Qaeda would find sensitive government documents placed on WikiLeaks.
But Overgaard was less confident when asked by the judge whether Manning would have been charged differently on aiding the if he had leaked to The New York Times instead of WikiLeaks. Overgaard was asked the question before, during a pretrial hearing in January, and her response then -- no -- had been greeted with indignation from press freedom advocates.
Coombs said on Monday that the government wanted to have it both ways by presenting evidence during its case "trying to vilify WikiLeaks," to show that Manning was particularly reckless.
But after conferring with her fellow government lawyers, Overgaard returned to the podium and faced the judge to answer the question about whether it would make a difference if the soldier had leaked to the well-known newspaper, instead of the upstart website.
"As I said last time when you asked this question, no it would not," Overgaard said.
UPDATE: This post has been updated to clarify the military prosecutor's position on the aiding the enemy charge.