July 18, 2013

A military judge on Thursday declined to dismiss a key charge against the Army private responsible for the largest leak of classified material in American history, a decision with significant implications for the future publication of secret government material, according to civil libertarians and press freedom advocates.

Judge Denise Lind decided to reject a defense motion to dismiss a government charge that Bradley Manning “aided the enemy” when he turned over 700,000 military and diplomatic documents to the anti-secrecy group WikiLeaks because some of that material was read by Osama bin Laden.

Lind cited as reasons for her decision the “accused’s training and experience and preparation” and the volume of classified information disclosed to WikiLeaks. Those factors effectively buttressed the government’s charge that Manning “knowingly provided information to the enemy,” Lind decided.

The judge said that because Manning maintained and possessed intelligence publications, he would have been aware of the use of the Internet by terrorist organizations. She noted that Manning was trained as an all-source intelligence analyst and would have learned in that training that when U.S. forces were conducting operations, critical information must be protected.

Lind also cited Manning’s chats in which he referred to WikiLeaks as “an intelligence agency without anonymous sources.”

The motion to dismiss the charge was filed July 4 by Manning’s civilian defense attorney. He argued that the government had failed to show that Manning “had ‘actual knowledge’ that by giving information to WikiLeaks, he was giving information to an enemy of the United States.” He said the government did introduce evidence “which might establish that PFC Manning ‘inadvertently, accidentally, or negligently’ gave intelligence to the enemy,” but that this was not enough to prove the most serious charge against him, known as an Article 104 offense.

On two separate occasions, Lind, an Army colonel, had questioned military prosecutors about whether they would be pursuing the charge if the information had been leaked directly to The Washington Post or the New York Times. Each time, the prosecution said it would. That troubles advocates for whistleblowers, who fear that the leaking of national defense information that appears online, as it inevitably does, can be construed as assisting the enemy.

“The aiding-the-enemy charge is not only unconstitutional, it is unnecessary,” said Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy and Technology Project. “The point of charging Manning in this way is to transform what was widely seen around the world as a valuable leak into treason. The government purports to criminalize any information that is published somewhere where the enemy can see it.”

If convicted of the charge, Manning, an intelligence analyst who served in Iraq, could face life in prison.

According to Eugene R. Fidell, a senior research scholar in law at Yale University, “the defense will have an appealable issue that could gain traction” if Manning is convicted. “The government’s case on the [aiding the enemy] charge is circumstantial, and requires (as always) proof beyond a reasonable doubt,” he said in an e-mail Thursday.

“Evidence that Pvt. Manning had been briefed on the reasons for security precautions could be key, but I’m not at all convinced the government carried its burden,” Fidell said. “The sheer volume of the leaked documents does not, to my mind, constitute evidence of intent to aid the enemy. The unfortunate result of the judge’s ruling is that if the appellate courts disagree with her, there will almost certainly have to be a rehearing on the sentence, and that could drag the case out further.”

Lind also rejected another defense motion Thursday, deciding not to dismiss charges of violating the Computer Fraud and Abuse Act.

Defense lawyer David Coombs has argued that before he was identified as the leaker, Manning, in a series of online chats, including with WikiLeaks founder Julian Assange, never articulated any intent to aid al-Qaeda or “any potential enemy that has ever, at any time, been identified by the government.” Instead, he said, Manning’s motivation was to increase public awareness “in order to spark change and reform.”

The government, however, has insisted that Manning is distinct from “an infantryman or a truck driver” and that as an intelligence analyst, he would know that terrorists make extensive use of the Internet.

“He knew exactly what he was doing,” Capt. Angel Overgaard, military prosecutor, said. “He knew exactly the consequences of his actions.”

In early 2010, Manning called reporters at The Post and the Times to tell them that he had access to a database of Army field reports in Afghanistan and Iraq. He said he was frustrated by the reporters’ apparent lack of interest and in February of that year turned to WikiLeaks, which had begun to establish itself as an outlet willing to publish secret information.

Harvard law professor Yochai Benkler testified for the defense that WikiLeaks is a “legitimate journalistic organization” that simply differs from traditional media in its platform. “Once you accept that WikiLeaks is a new journalistic organization that can be read by anyone with an Internet connection . . . that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world becomes automatically aiding the enemy,” Benkler said.

Questions about WikiLeaks’s singular journalistic mission have been raised in the weeks since disclosures by National Security Agency contractor Edward Snowden about U.S. surveillance programs. The organization helped Snowden get safe passage from Hong Kong to Russia, and it has been at the center of Snowden’s negotiations for asylum.

Coombs urged Lind on Monday not to punish “people for getting information out to the press, to basically put . . . a hammer down on any whistleblower.”

The government has outlined how bin Laden asked an associate for material from the WikiLeaks Web site.

The al-Qaeda leader did not use the Internet at his hideout in Abbottabad, Pakistan, for security reasons. Instead, he relied on a trusted courier who ferried material in and out on thumb drives. Members of the Navy SEAL team that conducted the raid on bin Laden’s hideout and killed him swept up a trove of digital material, including information from WikiLeaks, the government said.

The prosecution has struggled to show that Manning knew the information would be seen by the enemy, according to legal experts. The defense was able to elicit testimony from Manning’s superiors that they never trained Army intelligence analysts on the role of WikiLeaks or whether al-Qaeda was known to access the Web site.

The trial, which began in June, is expected to wrap up as early as this week after hearing from more than 90 witnesses.

Closing arguments could begin Friday, and the judge could issue a verdict as soon as that day. Manning elected not to ask a panel of military jurors to hear the case.

Once the verdict has been pronounced, the trial will move immediately to the sentencing phase. Manning has already pleaded guilty to 10 lesser included offenses and faces up to 20 years in prison on those charges.

http://www.washingtonpost.com/world/national-security/judge-in-brad...