’07KINGSTON25 JAMAICA MALARIA UPDATE’, Dispatches from Fort Meade, Reporting on the secret trial of Chelsea Manning (30C3 Presentation)
At Fort George 'Orwell' Meade, home of the NSA and the U.S. Defense Information School, managing the message at Chelsea Manning's trial was facilitated by a lack of public access to most of the court filings and rulings until 18 months into her legal proceeding.
While Manning disclosed approximately 750,000 documents to WikiLeaks, only 240 of those documents were charged against her under the Espionage and Computer Fraud and Abuse Acts.
Three months after being convicted to thirty-five years in prison do we actually know the identity of most of those 240 charged documents.
Do you want to know what put Manning away for 35 years?
The truth is stranger than fiction.
Slides which accompanied my presentation:
Text from the presentation:
The text below is not a verbatim transcript, but the text of what I prepared for my presentation at 30C3 in Hamburg, Germany on December 27, 2013. Because the nature of the talk was live, it may differ slightly in parts from the actual event.
It is an honor to be here today.
Having spent the last three years witnessing, documenting, and reporting on the secret prosecution of Chelsea Manning, I feel I've a great responsibility to impart to the public the facts and circumstances of her unprecedented trial.
Manning was tried by court-martial at Fort Meade, Maryland (home of the NSA) on twenty-two offenses, including aiding the enemy, espionage, exceeding authorized access, stealing U.S. government property, wanton publication, and failures to obey lawful general regulations.
She was later found guilty of 20 of those offenses and sentenced to 35 years in prison.
The trial record totals about 45,000 pages, believed to be the longest in U.S. military law. Yet, 18 months into the legal proceeding, the public was still forbidden access to more than 30,000 pages of court filings and rulings.
During the pre-trial, military prosecutors often waived oral argument in open court, or at trial moved the court to conduct its business in closed sessions (further concealing their case from public scrutiny).
Military prosecutors even used my web site to justify closure of the court for a "test-run" witness to instruct the court on how it would handle classified testimony at trial.
On the first day of her trial on the charges, the public did not even have an official copy of Manning's formal plea to 10 lesser offenses, one of which included different dates than those alleged by military prosecutors at trial.
The failure to allow contemporaneous access to court documents caused irrevocable harm to the public's right to understand and scrutinize the conduct, case law, arguments, and opinions of both trial and defense counsel and the presiding military judge.
Even with unofficial transcripts provided to the public by the Freedom of the Press Foundation or myself, most of the critical evidence at trial is still hidden under black redactions or in 200 unreleased court exhibits.
For those who apathetically condemn Manning to her fate, because she was a low-level soldier in the U.S. military, I remind you that the charge of aiding the enemy is one of only two punitive articles under the Uniform Code of Military Justice that applies to "any person" and not solely military personnel.
This fact alone is all the more reason the public had a right to access the court record.
While the presiding military judge, Colonel Denise Lind, acquitted Manning of aiding the enemy (for which Manning faced life in prison), she rejected two defense motions to dismiss the charge altogether.
Manning's prosecution for aiding the enemy sets a chilling precedent for future whistleblowers and journalists who write about national security issues.
According to defense witness, Professor Yochai Benkler of the Berkman Center for Internet and Society at Harvard Law School, Lind's failure to dismiss aiding the enemy established a broad legal precedent.
When Lind asked the prosecution if it would have acted in the same way had the organization in question been the New York Times rather than WikiLeaks, the reply was "Yes, Ma'am."
"Leaking classified documents to... newspapers can by itself be legally sufficient to constitute the offense of 'aiding the enemy,' if the leaker was sophisticated enough about intelligence and how the enemy uses the Internet," Benkler explained.
In other words, all a prosecutor will have to prove in any future legal case against a national security whistleblower is that the accused knew that an enemy or foreign adversary of the United States used the media organization's platform to collect intelligence.
The impact of that not-guilty ruling (for Manning) for 'aiding the enemy' is somewhat negligible, because in pronouncing her guilty on 20 other counts (including six Espionage Act and one Computer Fraud and Abuse Act offenses), and condemning her to 35 years in prison, Lind rubber-stamped the Obama administration's inquisition of the press and its sources.
Lind ruled that Manning's motive and the lack of actual damage from the disclosures was not relevant at trial. Such evidence, then, could not be used to mitigate the accusation, drawn from the language in the Espionage Act and in the Computer Fraud and Abuse Act charges that Manning had "reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation."
Military prosecutors were only required to prove at trial that the information charged under the Espionage Act language was related to national defense and closely held (meaning it was not already lawfully in the public realm prior to Manning's disclosure and that the information 'could' cause damage).
Not that it 'did' cause damage.
Military prosecutors called Original Classification Authorities (or OCAs) at trial from each of the victimized agencies to testify. These witnesses (all of which were life long federal employees and/or defense contractors) testified that charged information was properly classified at the time of its release and that its disclosure 'could' cause damage (not that it did cause damage).
Manning's civilian defense attorney, David Coombs, argued that the OCA's and classification reviews failed to cite specific examples within the charged documents that could cause actually damage. Instead, he said, they used generalities and buzzwords.
So, again Manning was convicted on a probable harm standard, not actual harm. Manning was then sentenced to 35 years in prison on "expected risk" and not "actual damage".
Most of the evidence critical at trial (that relates to these two elements) still remains hidden under black-ink redactions or 200 sealed and unreleased court exhibits.
During Manning's trial, the public did not even know the identity of most of the documents charged against Manning under the language of the Espionage Act.
The secrecy reached an almost surreal quality, given that most of the charged documents are publicly available on the Internet.
The fact that most of the charged documents were legally classified, despite a defense request to declassify them for trial, prevented Manning's lawyers from citing them openly in court.
It also limited the defense's ability to call witnesses, since any potential witnesses were required to have security clearances to handle the classified (but publicly available material).
Although, Manning disclosed approximately 725,647 documents:
She was only tried and convicted under the Espionage Act language (in other words, "reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation") for 222 from the four larger datasets containing the Iraq and Afghanistan Significant Activity (The War Logs) Reports; the diplomatic cables (Cablegate); and the Guantanamo Detainee Assessment Briefs (GTMO Files).
And, then 18 other smaller disclosures.
For a total of approximately 240 documents.
The OCAs and other government witnesses also testified that enemies and foreign adversaries could use the large datasets to conduct "pattern analysis."
Yet, technically, Manning was charged under the "reason to believe" language found in the Espionage Act and the CFAA in relation to only 222 of the 725,629 documents contained within the four larger datasets she disclosed to WikiLeaks:
- specifically 116 diplomatic cables;
- 101 SIGACTS from the wars in Iraq and Afghanistan; and
- five (5) Guantanamo Bay Detainee Assessment briefs.
Military prosecutors failed to argue how the 222 charged documents could be used in any potential "pattern analysis" conducted by foreign adversaries or enemies. If military prosecutors wanted to use that argument in court, they should have charged Manning under the Espionage Act or the CFAA for more than 222 documents.
I have a few more carefully chosen words for anyone (and I don't care who they are, but especially those journalists, public intellectuals, and academics who frankly should know better) who either recklessly or pejoratively refer to publication of Manning's primary source leaks as 'dumps'.
Manning's conviction for the unprecedented offense of "wanton publication," which is not tied to any existing punitive article under the Uniform Code of Military Justice or any other federal criminal violation, is intended to interdict the future leak of large datasets capable of being mined or modeled for revelations by digital journalists and organizations like WikiLeaks.
When asked by the military prosecutors if "mass document leaking is somewhat inconsistent with journalism," Benkler said that large datasets like the Iraq War Logs provide insight that cannot be found in one or two documents containing a "smoking gun."
The Iraq War Logs, added Benkler, provided an alternative, independent count of casualties "based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences."
At a symposium on Wikileaks held at the University of Southern California in 2011, Professor Derek Shearer of Occidental College, who served as ambassador to Finland during the Clinton administration, cited the Tunisian revolution as a positive outcome from the publication of the diplomatic cables.
The revelation of the U.S. government's negative view of dictator Zine El-Abidine Ben Ali is believed to have fueled anger against the Tunisian regime:
"Some of this frank speaking, of not secrets, but just frank description of a country, had a positive outcome...But, these cables are not the secret level in which the U.S. government operates. We have a whole separate system of much more secret reporting that comes through the intelligence officers in the embassies. And then we have a whole other channel, the defense intelligence operations - defense attaches' reporting. So, the notion that some vital secrets of America were compromised by WikiLeaks, I think is not the case."
I spoke to someone recently from the Washington Post, who told me they refer to WikiLeaks publications every day.
Benkler testified that WikiLeaks was a new mode of digital journalism that fit into a distributed model of emergent news-gathering and dissemination in the Internet age, what he termed the "networked Fourth Estate."
And, if WikiLeaks is part of that networked Fourth Estate, then so is Manning and the nature and methodology of her releases.
The root problem today is not style of Manning's leaks. It's the pervasive propaganda. It's the control of the media by a few.
Jeremy Scahill's book, Dirty Wars, relies heavily on WikiLeaks source documents, which were disclosed by Manning.
Dirty Wars is a perfect example of the long term public benefit of both the substance and methodology of Manning's disclosures and WikiLeaks publications.
DIA IRTF (includes State Department)
On July 28,2010, Robert Gates directed the Director of the Defense Intelligence Agency (DIA), Ronald Burgess to establish an Information Review Task Force (IRTF) to "lead a comprehensive Department of Defense (DoD) review of classified documents posted to the WikiLeaks website...on July 25, 2010, and any other associated materials."
Gates directed the IRTF to complete a report containing:
- "Any released information with immediate force protection implications"
- "Any released information concerning allies or coalition partners that may negatively impact foreign policy"
- "Any military plans"
- "Any intelligence reporting"
- "Any released information concerning intelligence sources or methods"
- "Any information on civilian casualties not previously released"
- "Any derogatory comments regarding Afghan culture or Islam"
- "Any related data that may have also have been released to WikiLeaks, but not posted"
The task force, led by counterintelligence expert Brigadier General Robert Carr, was made up of 80 to 125 people including intelligence analysts and counterintelligence experts from the DIA; Pacific Command; Central Command; and the Under Secretary of Defense for Intelligence, which is responsible for managing the ongoing Department of Defense investigation into WikiLeaks.
Other interagency partners included the FBI and the Army Criminal Investigation Command.
Carr eventually testified for the prosecution during the sentencing portion of Manning's court-martial in a closed session and by classified stipulation.
In Summer 2010 (approximately 6 months before the publication of diplomatic cables) the Department of State began working with the IRTF to "review any purported State material in the release and provide an assessment, as well as a summary of the overall effect the WikiLeaks release could have on relations with...host countr[ies]," said Ambassador Patrick Kennedy, the under secretary for management at the Department of State, when he testified before the Senate Committee on Homeland Security and Governmental Affairs in March 2011. That review was completed by the State Department in August 2010.
Which of course begs the question: "Why did it take the U.S. State Department months to shut down the NetCentric Diplomacy Database (which they did with hysterical fanfare the day after WikiLeaks began publishing the documents) if they believed the release was an actual threat to national security?
More on the State Department later.
According to military prosecutors the DIA IRTF was specifically stood up and relates to all the specifications charged against Manning for which she was found guilty or was acquitted.
The DIA IRTF reviewed:
- the CIDNE Afghanistan and Iraq SIGACTS;
- JTF-GTMO Detainee Assessment Briefs;
- CENTCOM videos from Iraq and Afghanistan (July 12 2007 U.S. Baghdad Airstrike;
- Garani Video May 2009);
- other documents (2 CIA Red Cell Memos; 2008 USACIC Memo on WikiLeaks; Farah documents); and
- diplomatic cables.
The diplomatic cables, Carr testified, were reviewed for their impact on Department of Defense and its forces.
Carr also testified that the DIA IRTF did not review any of the litigation regarding the GTMO detainees to see if such information was already contained in the WikiLeaks disclosures.
That would relate to whether or not the information was in fact "closely held" (one of two elements that military prosecutors had to prove in court).
In the Summer of 2010, Gates wrote a letter to the chair of the Senate Armed Services Committee, Sen. Carl Levin, stating that the initial assessment of the IRTF "in no way discount[ed] the risk to national security; however, the review to date ha[d] not revealed any sensitive source and methods comprised by this exposure."
The final DIA ITF report was over 100 pages. It is classified.
John Kirchofer, who was the deputy in charge of the DIA IRTF, testified regarding the DIA damage assessment.
He said, "We did not use the term damage. We were very careful. That's a statutory authority within the ONCIX [Office of the National Counterintelligence Executive]. We were just trying to look at impact on DOD."
Brig. Gen. Robert Carr, the counterintelligence expert, who directed the DIA IRTF (appointed by Burgess), is currently corporate lead executive (CLE) for Northrop Grumman business in Fort Meade and Aberdeen, Maryland.
Despite Carr having testified that the impact of the disclosures continue to this day, Carr also testified that no assessment has ever been made to quantify the impact of the disclosures on cooperation between Iraqi or Afghani's and armed service members.
Carr testified that the disclosures did not contain direct references to HUMINT (Human Intelligence) or "sources".
The Afghan SIGACTS, Carr testified contained around 900 names. But, Carr also testified that, "Many of those names were of people who were already dead, had died at some point in the battlefield."
William Arkin of the Washington Post recently tweet, "#learnedtoday #WikiLeaks Information Review Task Force created July 29, 2010 within @DefenseIntel. Damage assessment? 'Moderate' to 'Low'."
Today we at least know the 'titles' of the approximately 238 charged documents.
We do not know the names of:
Two (2) of the five (5) charged GTMO Detainee Assessment Briefs; and
10 or 11 of the 101 charged SIGACTS from Iraq and Afghanistan.
Military prosecutors failed to actually provide defense with the identity of 10 of the 101 SIGACTS charged against Manning, despite multiple defense requests for them to do so.
Why do I say the identity of "10 or 11" SIGACTS are still unknown?
Because, an unclassified declaration of the classification review for the SIGACTS has a duplicate entry in one of the Afghan SIGACTS listed therein, hence I say "10 or 11".
We know the actual substance of 198 charged documents out of the approximately 240 charged under Espionage Act language, because they are published on the Internet:
76 of the 101 SIGACTS from Iraq and Afghanistan;
116 diplomatic cables (so all the diplomatic cables charged under the Computer Fraud and Abuse Act which contains the "reason to believe" language found in the Espionage Act);
Three (3) of the five (5) SOUTHCOM Guantanamo Detainee Assessment Briefs;
One (1) 2008 USACIC Memo on WikiLeaks;
Two (2) CIA Red Cell Memos;
We have the titles, but do not have access to copies of:
24 of the 101 SIGACTS charged against Manning (that means I could not find them on the WikiLeaks website);
Approximately 15 to 18 official CENTCOM documents pertaining to mass casualties from a May 4, 2009 U.S. cluster bombing in the Farah Province of Afghanistan, which were never published by WikiLeaks.
101 were charged under the Espionage Act.
They are classified SECRET.
62 of the charged SIGACTS contain reporting already in the public realm at the time of their disclosure, according to a defense witness at trial.
Before deploying to Iraq, Manning had worked on worldwide intelligence briefs for the commander of the Second Brigade Combat Team at Fort Drum in Upstate New York, home of the 10th Mountain Division of the U.S. Army.
The 2nd Brigade formed part of the army's global response force, on call in case troop surges were needed anywhere in the world. In the garrison's intelligence shop, Adkins also tasked Manning with rebuilding the "incident tracker."
This required Manning to back up hundreds of thousands of military field reports called Significant Activities, or SIGACTS, from the war in Afghanistan, where the 2nd Brigade was expected to deploy.
After Manning's unit was reassigned to Forward Operating Base Hammer, a few miles east of Baghdad, Iraq, she followed suit and created another backup of SIGACTS from the war in Iraq.
The backups were made on read-writable CDs and stored in the intelligence shop's shared conference room at FOB Hammer. Analysts could access the backups during periodic interruptions to network connectivity that occurred during deployment.
SIGACTS are normally housed in a U.S. Central Command database called the Combined Information Data Network Exchange (CIDNE), which was accessible on a Department of Defense classified network called SIPRNet. SIPRNet contained information classified up to the level of SECRET.
Almost all the information the military presents to the White House and Congress about the wars in Iraq and Afghanistan originates in the CIDNE database. Thousands of military personnel, government employees and contractors have access to CIDNE's various types of reports, including human intelligence reports, or HUMINT, as well as the SIGACTS.
Manning disclosed 483,563 SIGACTS from the CIDNE-Iraq and the CIDNE-Afghanistan databases. WikiLeaks later published the material as the Iraq War Logs and the Afghan War Diary.
Manning did not, however, disclose the other kinds of reporting from the CIDNE database, like HUMINT, which contained intelligence sources and methods.
The SIGACTS that Manning disclosed, military prosecutors admitted at trial, only represent 24 percent of CIDNE.
Manning told Lind that she believed that the classification determination of the SIGACTS (most of which were marked SECRET) was based primarily on their being housed on SIPRNet.
While she knew the reports were "sensitive at the time of their creation," she told the court that she believed that their sensitivity decreased "within 48 to 72 hours, as the information [was] either publicly released, or the unit involved [was] no longer in the area and not in danger."
Manning regularly researched and reviewed the ground-level accounts of events in Iraq and Afghanistan during her long shifts at FOB Hammer and became deeply troubled by them.
The SIGACTS that Manning uploaded to WikiLeaks are filled with references to the ubiquity and seeming triviality of death in wartime Iraq.
At her trial, Manning said she released the SIGACTS because she believed that a:
"detailed analysis of the data over a long period of time by different sectors of society might cause society to reevaluate the need or even the desire to engage in counterterrorism and counterinsurgency operations that ignore the complex dynamics of the people living in the affected environment each day."
She further testified:
"In attempting to conduct counter-terrorism or CT and counter-insurgency COIN operations, we became obsessed with capturing and killing human targets on lists and not being suspicious of and avoiding cooperation with our host nation partners, and ignoring the second and third order effects of accomplishing short-term goals and missions.
I believe that if the general public, especially the American public, had access to the information contained within the CIDNE-I [Iraq] and CIDNE-A [Afghanistan] tables this could spark a domestic debate on the role of the military and our foreign policy in general as it related to Iraq and Afghanistan."
Manning removed the read-writable CD backups from the conference room.
In her containerized housing unit, she transferred the files to an SD card, and transported them home on her mid-tour leave.
Prior to uploading the material to WikiLeaks, she called the Washington Post. She spoke with a reporter, who expressed skepticism about Manning's claims and said that she would check with the Post's senior editors.
Manning then called the telephone number for the public editor at the New York Times and left a voicemail message, but received no response.
In all, Manning downloaded documents between February and April in 2010, and uploaded them to WikiLeaks at various times in the same period (both during her mid-tour leave and while at FOB Hammer in Iraq).
The titles of 37 Afghan SIGACTS are contained in an unclassified declaration concerning the unreleased classification review. Those 37 Afghan SIGACTS charged against Manning cover a period from October 2006 to November 2009.
The identity of 32 of the charged Afghan SIGACTS are available on the Internet. Most of them (at least 15) concern IED explosions for the years 2008 and 2009.
Incidentally, 20 of the Iraq SIGACTS charged against Manning also concern IEDs explosions or clearings.
Adam Klasfeld who covered Manning's trial for Court House news, has written that allegations of expected damage from government officials during the sentencing portion of Manning's trial do not correlate with public data.
"Overall, these numbers reflect a steady decline in the number of U.S. fatalities resulting from [IED] attacks in the aftermath of the leaks. Though injuries rose slightly in 2011, they dropped by nearly half a year later."
One of the more interesting of the 101 SIGACTS charged against Manning under Espionage Act language concerns the kidnapping of an U.S. Army soldier, Bowe Bergdahl of Idaho, from Afghanistan.
Bergdahl is allegedly still in the custody of his captors. His family said that they received a letter from him in June of this year.
According to a 2012 report, by the late Michael Hastings in Rolling Stone, Bergdahl became a pawn in the Pentagon's negotiation's to end the war in Afghanistan.
In Bergdahl's last email home before he was captured he wrote:
"The future is too good to waste on lies...And life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong. I have seen their ideas and I am ashamed to even be american. The horror of the self-righteous arrogance that they thrive in. It is all revolting."
His email continues:
"In the U.S. army you are cut down for being honest...but if you are a conceited brown nosing shit bag you will be allowed to do what ever you want, and you will be handed your higher rank...The system is wrong. I am ashamed to be an american. And the title of U.S. soldier is just the lie of fools.
The U.S. army is the biggest joke the world has to laugh at. It is the army of liars, backstabbers, fools, and bullies. The few good SGTs are getting out as soon as they can, and they are telling us privates to do the same.
These people need help, yet what they get is the most conceited country in the world telling them that they are nothing and that they are stupid, that they have no idea how to live."
Hasting writes that Bergdahl's parents believed their son witnessing a Mine-Resistant Ambush Protected vehicle running over an Afghan child is what may have caused their son to snap and desert the army before being captured:
"'We don't even care when we hear each other talk about running their children down in the dirt streets with our armored trucks,' Bergdahl wrote, 'We make fun of them in front of their faces, and laugh at them for not understanding we are insulting them.'
According to Hastings, Bergdahl responded to his son's last email message with the subject line, 'OBEY YOUR CONSCIENCE!':
"'Dear Bowe,' Bergdahl's dad wrote. 'In matters of life and death, and especially at war, it is never safe to ignore ones' conscience. Ethics demands obedience to our conscience. It is best to also have a systematic oral defense of what our conscience demands. Stand with like minded men when possible.'"
"Ordinary soldiers, especially raw recruits facing combat for the first time, respond to the horror of war in all sorts of ways. Some take their own lives: After years of seemingly endless war and repeat deployments, activeduty soldiers in the U.S. Army are currently committing suicide at a record rate, 25 percent higher than the civilian population. Other soldiers lash out with unauthorized acts of violence: the staff sergeant charged with murdering 17 Afghan civilians in their homes last March; the notorious "Kill Team" of U.S. soldiers who went on a shooting spree in 2010, murdering civilians for sport and taking parts of their corpses for trophies. Many come home permanently traumatized, unable to block out the nightmares."
Bowe Bergdahl had a different response. He decided to walk away."
One senior U.S. official told Hastings, "Panetta and Hillary don't give a shit about getting [Bergdahl] home. The official added, "They want to be able to say they COINed their way out of Afghanistan, or whatever, so it doesn't look like they are cutting and running."
We are still waiting for the Military District of Washington to release the court-ordered unclassified and redacted 'expedited' transcripts of the closed sessions.
A similar problem arises when military prosecutors (and their witnesses) argued at trial and during the sentencing phase that the information Manning disclosed could potentially be used in future propaganda efforts by the enemies of the U.S.
Elizabeth Goitein of the Brennan Center for Justice at New York University Law School writes that the absence of a 'limiting principle' to the U.S. government's expanding justifications for classification and the government's prosecutions of whistleblowers, who disclosed it, is "alarming".
"This justification for secrecy will be strongest when the U.S. government's conduct most clearly violates accepted international norms," writes Goitein in a piece published by Al Jazeera America in October 2013. "The reasons why people choose to align themselves against the United States -- or any other country -- are nearly as numerous and varied as the people themselves."
The Brennan Center published a study asserting that over-classification itself is a threat to American national security.
The argument is that democratic governance ceases to function when terabytes of information hide government waste, fraud, abuse and crimes.
"Government secrecy has slipped its traditional moorings and is venturing forth into dangerous waters, where accountability and the rule of law cannot readily follow," concludes Goitein.
Manning was charged under the Espionage Act language of the Computer Fraud and Abuse Act for 116 diplomatic cables.
The diplomatic cable document set that Manning released contain, 251,287 records.
Within the complete dataset:
- over 130,000 are unclassified;
- some 100,000 are labeled "confidential";
- about 15,000 documents are classified as SECRET; and
- none are classified as TOP SECRET.
The State Department initially handed over an even smaller number of cables to military prosecutors for use at Manning's trial, trial counsel had to reportedly go back to the Department of State and tell them that they needed more cables to prosecute Manning.
The number of individuals actually moved by the WikiLeaks Persons at Risk Group at the Department of State is classified, but it is somewhere between 20 and 30 people.
The State Department was aware for months that WikiLeaks was in possession of cables from the NetCentric Diplomacy database.
Prior to publication, WikiLeaks gave the State Department an opportunity to privately elect, "specific instances (record numbers or names) where it consider[ed] the publication of information would put individuals persons at significant risk of harm that has not already been addressed."
The State Department legal adviser, Harold Koh, responded in a letter that the diplomatic cables "were provided in violation of U.S. law...as long as WikiLeaks holds such material, the violation of law is ongoing."
The letter as many of you know was used as the basis of the suspension of services by PayPal. A former vice president at PayPal, Osama Bedier, said on December 8, 2010 that PayPal's decision to suspend service to WikiLeaks was the result Koh's November 27, 2010 letter to Assange.
Beider described the letter as stating that, "WikiLeaks activities were deemed illegal in the United States."
In September 2011, the AP conducted an unofficial review of the State Department cables published by WikiLeaks.
"found several of them comfortable with their names in the open and no one fearing death. Others are already dead, their names cited as sensitive in the context of long-resolved conflicts or situations. Some have publicly written or testified at hearings about the supposedly confidential information they provided the U.S. government."
The AP also reports:
"the total damage appears limited and the State Department has steadfastly refused to describe any situation in which they've felt a source's life was in danger. They say a handful of people had to be relocated away from danger but won't provide any details on those few cases."
One cable charged against Manning under the Computer Fraud and Abuse Act, entitled, "07KINGSTON25 JAMAICA: MALARIA UPDATE" has left commentators confused as to how military prosecutors or the government could argue that this cable relates to the national defense or was useful to the enemy.
When I asked national security commentator, Marcy Wheeler, about the Kingston cable, she noted, that an October 2007 update on the outbreak of malaria in Jamaica was removed from the Center for Disease Control website on January 14, 2011 (around the time that the diplomatic cables were being published by WikiLeaks).
Wheeler speculates that the cable might have been charged, because military prosecutors want to argue that it gives a roadmap for how a country would respond to a case of bio-terrorism.
Military prosecutors called witnesses to testify that the leaks affected diplomatic reporting and relationships with foreign governments.
Manning's defense maintained that any impact on bilateral relations was short term and temporary.
Reuters reported that government reviews of the release of diplomatic cables caused only:
"limited damage to U.S. interests abroad, despite the Obama administration's public statements to the contrary. A congressional official briefed on the reviews said the administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers."
The SOUTHCOM database consists of 779 Detainee Assessment Briefs.
Manning was charged with only five (5) documents under the Espionage Act.
We know that three of these profiles concern are the Tipton Three, British citizens from Tipton, England, who were held at Guantanamo for two years and then released without charges or trial.
They are Shafiq Rasul, Ruhal Ahmed, and Asif Iqbal.
Some of you may remember how Brandon Neely, a former GTMO prison guard and Iraq war veteran from the U.S., flew to the UK in January 2010 to make amends to Ahmed and Rasul.
A recent publication by The Constitution Project reports that the U.S. government considers Rasul, Ahmed, and Iqbal 'terrorist recidivists' because they are "former detainees involved in anti-American propaganda or criticism."
We do not have access to the 15 to 18 documents that Manning was tried and convicted under the Espionage Act for disclosing, because they were never published by WikiLeaks. The documents relate to a May 2009 U.S. cluster bombing in the Farah province of Afghanistan.
But we know their names, and we know that Manning likely disclosed them along with pictures of burn victims from that incident, because an agent at the pretrial found "hundreds" of files related to the Granai airstrike, including deleted .pdf's and .jpg's on Manning's computer.
In September 2013, The Nation published an article by journalist Bob Dreyfuss. Although the report never mentions Manning or WikiLeaks, the fragmentary orders and inferences that Dreyfuss relates are likely the very documents Manning disclosed to WikiLeaks, which were subsequently never published.Writes Dreyfuss:
"[T]hree incidents in particular led the U.S. command to issue a series of so-called tactical directives, other guidances and what the military calls fragmentary orders (FRAGOs) designed to restrict military operations and reduce civilian casualties.
The three incidents, which collectively resulted in as many as 300 civilian deaths (and possibly more), were airstrikes in the provinces of Herat (2008), Farah (2009) and Kunduz (2009); the strike in Herat is commonly known as "the Azizabad incident," after the village in which it occurred. In this article, each one is described in some detail, along with the aftermath and military fallout.
Though well-intentioned, each of the tactical directives and other guidances didn't stop mass-casualty incidents from taking place. They generated controversy within the military's own ranks, and troops at all levels often chafed under what they felt were overly severe restrictions that handcuffed them in dangerous situations. Whether the directives were taken seriously at all often depended on how much emphasis the senior command put on them; after all, similar directives had been in place since at least 2007 but were often ignored in practice.
When the time came to notify the court of Manning's anticipated plea in late October 2012, defense suggested that Manning might plead guilty to unauthorized possession and willful communication of the Garani video in April 2010 (not November 2009 as charged).
Defense had already suggested this a month after Manning's arraignment in a March 2012 legal filing.
Specifically, defense wrote that although prosecutors alleged two different date ranges for the disclosure of records relating to a military operation in the Farah Province, Afghanistan on or about 4 May 2009 and the Garani video between on or about 1 November 2009 and on or about 8 January 2010, "in reality the classified records and the video were disclosed at the same time on the same day, 11 April 2010."
During pretrial court arguments concerning Manning's proposed plea, the prosecution refused to budge on a November 2009 offense date.
The time line for the Garani video offense dovetails with the start date of secret 2703(d) orders for Sonic, Google, Dynadot, and Twitter to turn over information about civilians under investigation by the Department of Justice secret grand jury impanelled in Alexandria, Virginia.
At the Article 32 in December 2011, Special Agent Mark Mander from the U.S. Army Computer Crimes Investigative Unit (CCIU) testified that Adrian Lamo had informed CCIU in July 2010 that he was aware of someone on the Internet-- who he did not know-- who was allegedly attempting to decrypt the Garani video for WikiLeaks.
The FBI, said Mander, was directing the investigation into Jason Katz, an employee at Brookhaven National Laboratory (BNL), who was later fired for engaging in inappropriate computer activity.
The Garani video allegedly placed on Jason Katz's work computer on December 15, 2009, was a forensic match to the video found on the CENTCOM server charged against Manning under the Espionage Act, said Special Agent David Shaver from CCIU.
The video found on Katz's computer, however, did not match the video allegedly found on Manning's workstation.
Manning was acquitted of the charge.
Despite Manning's acquittal, the prosecutorial theory of a conspiracy related to civilians survives her prosecution.
Manning's prosecution is part of the largest criminal and national security investigation ever conducted into a publisher and its sources.
That investigation continues today.
U.S. Department of Justice emails recently released show that a grand jury was already impanelled in September 2010.
The WikiLeaks investigation is being lead by the U.S. Attorney for the Eastern District of Virginia. According to recently released documents from the Manning court-martial the investigation includes the U.S. Attorney's Office in the Southern District of New York.
A declination of a national security investigation by a prosecutor requires the approval of Assistant Attorney General or higher in the Department of Justice.
All the search warrants, that I know are associated with the WikiLeaks grand jury and the FBI investigation of at least seven civilians in this case remained sealed.
The government has said that they would unseal them as soon as the investigation was discontinued or an arrest is made.
Manning is confined at the U.S. Disciplinary Barracks at Fort Leavenworth in Kansas.
Her case must be reviewed and approved by the Convening Authority, Major General Jeffrey Buchanan.
This process is referred to as "taking action" on a case. Buchanan has the power to disapprove any conviction and/or reduce Manning's sentence. Once Buchanan takes action, the case will automatically be reviewed on appeal by the Army Court of Criminal Appeals (ACCA).
Such a review by ACCA could take years. Manning's defense attorney has filed an application seeking a presidential pardon from President Obama. Coombs says it is unlikely that the request will be granted. Obama has only granted nine pardon requests during his presidency, and he has never granted a pardon for someone that he has previously said "broke the law."
For her part, Manning appears to have appreciated the risks when she decided to release classified information. In her classified chats with Lamo, she expressed hope that the information would make a difference.
She stated that she was willing to pay a heavy price for her decision, telling Lamo: "I wouldn't mind going to prison for the rest of my life..."
Manning's story is the greatest war story of our generation.
It is our All Quiet on the Western Front.
"I am young, I am twenty years old; yet I know nothing of life but despair, death, fear, and fatuous superficiality cast over an abyss of sorrow. I see how peoples are set against one another, and in silence, unknowingly, foolishly, obediently, innocently slay one another."
Our Thin Red Line.
"Maybe all men got one big soul everybody's a part of, all faces are the same man."
Our Catch 22.
"It was miraculous. It was almost no trick at all, he saw, to turn vice into virtue and slander into truth, impotence into abstinence, arrogance into humility, plunder into philanthropy, thievery into honor, blasphemy into wisdom, brutality into patriotism, and sadism into justice. Anybody could do it; it required no brains at all. It merely required no character."
It is also our Trial.