07/19/2013 09:12 am ET

Bradley Manning Prosecutors Can't Reveal New York Times Email, Judge Rules


FORT MEADE, Md. -- The government is apparently so worried about the testimony of a Harvard University professor who said that WikiLeaks was viewed as a legitimate news organization when Bradley Manning offered it information that it has now tried twice -- and failed both times -- to rebut his testimony.

On Thursday, prosecutors attempted to slip into the court record a never-revealed email that Bradley Manning apparently sent to The New York Times on April 8, 2010, just days after WikiLeaks released a video of a U.S. Apache helicopter strike that killed Reuters journalists in Iraq. Manning is being court martialled for sending that video, and hundreds of thousands of other sensitive government files, to WikiLeaks.

Capt. Ashden Fein claimed the email would "rebut the inference that Pfc. Manning thought WikiLeaks was a legitimate news organization." The email showed, Fein said, that "if he would have identified something that was newsworthy he would have actually gone, or tried to go," to The Times.

Manning's prosecutors have repeatedly stated that they would have still charged him with aiding the enemy -- which carries a life sentence -- had he leaked to The Times instead of WikiLeaks. Nevertheless, they have taken pains during the course of their case to "vilify" WikiLeaks, in the words of Manning's defense attorney David Coombs, in an effort to show that Manning knew releases from that organization would wind up in al Qaeda's possession.

But just what Manning said in that email, and whom he sent it to, may never be known -- at least during the course of Manning's trial. Defense attorney Capt. Joshua Tooman immediately objected to its introduction onto the record.

Tooman said the email was outside the scope of Thursday's limited testimony, which was meant only to offer the government a chance to rebut the courtroom conclusions of Harvard Law School Professor Yochai Benkler. Agreeing, Judge Denise Lind sustained the objection.

In testimony on July 10, Benkler said that the claims of "complete political neutrality" that The Times makes was simply "one model" of journalism, and that WikiLeaks -- or Fox News -- represent others.

Benkler's testimony, which stretched over most of the day, was apparently so damaging to the government that government prosecutors also attempted on Monday to introduce their own, unnamed witness to rebut it.

"The government did not know how much testimony the court would allow from Professor Benkler," Major Ashden Fein said. "What we are asking for is, in order to, in rebuttal, is to potentially, is to get the evidence, the right witness, with a knowledgeable witness. That allows us to counteract the testimony of Professor Benkler."

Judge Lind was incredulous.

"I'm not going to allow the government to do that," she said at the end of session. "You had months to figure this out."