Criminal Elements and Definitions Aiding the Enemy and State Dept, CIA, FBI, and Classified Witnesses | US v Pfc. Manning

Manning pled not guilty to aiding the enemy. Aiding the enemy is a capital offense. Military prosecutors are recommending life in prison, but the presiding military judge has the authority to impose the death penalty. If Manning is convicted of aiding the enemy, he will spend the rest of his life in prison.

Elements

In the specification of Charge I, Manning is charged with the offense of Aiding the Enemy by 'Giving Intelligence to the Enemy', in violation of Article 104, UCMJ.

In order to find Manning guilty of this offense, the presiding military judge (Manning opted to be tried by military judge alone) must be convinced by legal and competent evidence beyond reasonable doubt:

Element (1) That at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, the accused, without proper authority, knowingly gave intelligence information to certain persons, namely: al Qaeda, al Qaeda in the Arabian Peninsula, and an entity specified in Bates Number 00410660 through 00410664 (classified entity);

Element (2) That the accused did so by indirect means, to wit: transmitting certain intelligence, specified in a separate classified document to the enemy through the WikiLeaks website;

Element (3) That al Qaeda, al Qaeda in the Arabian Peninsula, and Bates Number 00410660 through 00410664 (classified entity) was an enemy; and

Element (4) That this intelligence information was true, at least in part.

Definitions

Intelligence

Intelligence means any information that is helpful to the enemy and which is true, at least in part. To find the accused guilty of this offense, the government must prove beyond a reasonable doubt that the intelligence was given to and received by, the enemy.

Enemy

Enemy includes (not only) organized opposing forces in time of war, (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ('Enemy' is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of t11e other.)

In January 2013, the Court took judicial notice that the U.S. "Department of State lists 'al-Qa'ida' as a foreign terrorist organization as of 8 November 1999. It lists 'al-Qa'ida in the Islamic Maghreb' as of 27 March 2002. It lists 'al-Qa'ida in Iraq' as of 17 December 2004. It lists 'al-Qa'ida in the Arabian Peninsula' as of 19 January 2010."

Indirect Means

Indirect means means that the accused knowingly gave the intelligence to the enemy through a 3rd party, an intermediary, or in some other indirect way.

According to the U.S. Government's Bill of Particulars, the U.S. Government defined the 'indirect means' to be 'via WikiLeaks website.'

Knowingly

Knowingly requires actual knowledge by the accused that by giving the intelligence to the 3rd party or intermediary or in some other indirect way, that he was actually giving intelligence to the enemy through this indirect means. This offense requires that the accused had a general evil intent in that the accused had to know he was dealing, directly or indirectly, with an enemy of the United States.

'Knowingly' means to act voluntarily or deliberately. A person cannot violate Article 104 by committing an act inadvertently, accidentally, or negligently that has the effect of aiding the enemy.

Additionally the Court declined:

to give the instructions requested by the Defense regarding actual knowledge and indirect means because they add a specific intent element to Article 104 (Giving Intelligence to the Enemy) that is not required by the statute. The Court's 'general evil intent' and knowledge that the accused was dealing with the enemy language is taken from US. v. Olson, 20 C.M.R. 461 (C.M.A. 1955) and US v. Batchelor, 22 C.M.R 44 (C.M.A. 1956).

The Court further reserved "its decision on whether to instruct on mistake of fact as requested by the Defense until the close of the evidence to determine whether a mistake of fact defense is raised by the evidence."

Elements and definitions sourced from the April 10, 2013 Article 39(a) pretrial transcript and the Court's Draft Instructions in November 26, 2012.

Overview

While prosecutors have successfully prevented defense from presenting evidence about Manning's motive as a whistleblower, Judge Lind ruled that circumstantial evidence regarding Manning's state of mind could be used to prove by inference that he did not actually 'know' or believe he was giving intelligence to Al Qaeda, when he allegedly gave it to WikiLeaks.

Adding tragic irony to the government's allegation of "probable harm" in the face of excluded evidence at trial about the lack of actual damage from the alleged leaks; as well as the government's attempted to block over-classification evidence, and refusal to declassify any of the 300,000 pages of low-level classified publicly available information allegedly or admittedly leaked by Manning; prosecutors chose to declassify only two sets of documents for their case against Manning for aiding the enemy.

U.S.A.C.I.C Memo on WikiLeaks

The government declassified "portions" of a 2008 US Army Counterintelligence Center Memo entitled, "(U) Wikileaks.org--An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?" which is charged against Manning under the Espionage Act. Manning pled to the lesser included offense of 18 U.S.C. 793(e) for the leak of that report in February.

OBL Stipulation of Fact

The other set of declassified document were allegedly obtained at the May 2011 raid of Osama bin Laden's compound. Military prosecutors will use the evidence in the form of a stipulation of fact. While the stipulation of fact is to be entered next week in court, the unclassified portion that we know of contains the following text:

On 2 May 2011 United States Government officials raided the OBL compounded. Located in Abbottabad Pakistan collected several items of digital media. From the items of digital media the following items were obtained. (1) A letter from Osama bin Laden to a member of Al Qaeda requesting the member gather Department of Defense material posted to #WikiLeaks. 2.) A letter from the same member of Al Qaeda to UBL attached to which was the Afghanistan War Log [singular] as posted by #WikiLeaks. 3.) Department of State information.

There may be a classified portion. Prosecutors argue that the "bin Laden evidence" confirms receipt by the enemy. The stipulation of fact if admitted may remove the testimony of a U.S.G. classified witness John Doe, who participated in the raid.

Manning PowerPoint

Prosecutors have also used a PowerPoint presentation, entitled "Operation Security (OPSEC) PV2 Manning, , D Company, 305th Military Intelligence Battalion", dated 13 June 2008, that Manning drafted at Fort Huachuca, AZ, while training to be a military intelligence analyst.

The PowerPoint was the result of corrective training Manning received for reportedly posting personal videos on Facebook. The PowerPoint, said prosecutors, explains how to handle classified information and how foreign governments, enemies, spies, and hackers seek information about the US military on the Internet.

Over the prosecution's objection, defense is seeking the testimony of Professor Yochai Benkler, co-director of Harvard's Berkman Center for Internet and Society, as an expert witness on WikiLeaks, new forms of digital journalism, and the internet. Coombs said Benkler will testify that WikiLeaks was viewed as a respected journalistic organization at the time of the charged offenses and "not viewed as a terrorist organization aiding the enemy."

"In 2009 and 2010 WikiLeaks received numerous awards," said Coombs, "and prior to the charged leaks, was a legitimate journalistic organization, albeit not mainstream." Coombs also said that Benkler will testify that "between 2006 and 2010, WikiLeaks published on a wide range of topics and various governments, corporate malfeasance and ineptitude, and was not bent against the United States and our way of life."

Benkler's testimony goes straight to defending Manning against the 'reckless disregard' language found in "Wanton Publication" and against the charge of aiding the enemy.

"News organizations take steps to verify-- and harm-minimization," said Coombs, "Once [WikiLeaks] received [the information] they collaborated with media partners to ensure the control and safe release." "These media partners put their own teams to work. They selected information that was appropriate, and WikiLeaks published the same information," said Coombs.

State Department Witnesses

The Court admitted stipulations of testimony last week by military prosecutors from State Department witnesses concerning cables for used in the U.S.G.'s case against Manning for 'Wanton Publication' and 'Aiding the Enemy'.

James Moore, Department of State

James Moore is Deputy Assistant Secretary Bureau of South and Central Asian Affairs at the Department of State. On June 27, 2013 the following unclassified redacted stipulation of testimony was read into the court record.

His unclassified redacted stipulation contained a list of the following charged cables:

  1. 06COLOMBO1889 DEFENSE SECRETARY EXPRESSES CONCERN ABOUT POSSIBLE MAJOR LTTE ATTACK
  2. 06KATHMANDU3023 GETTING A SECURITY COUNCIL MANDATE FOR NEPAL’S PEACE PROCESS
  3. 06KATHMANDU3024 PM KOIRALA OPTIMISTIC ABOUT PROSPECTS FOR PEACE
  4. 07ASHGABAT1359 RUSSIAN DCM PLAYS UP GREAT GAME TO EXPLAIN U.S. INTERESTS IN TURKMENISTAN
  5. 07DHAKA24 AMBASSADOR AND BRITISH HIGH COMMISSION MET WITH SHEIKH HASINA REGARDING MILITARY COUP
  6. 07NEWDELHI80 CONGRESS GOVERNMENT IN HIMACHAL PRADESH PASSES A RELIGIOUS CONVERSION BAN
  7. 09NEWDELHI267 AMBASSADOR PRESSES MENON TO IMPLEMENT CIVIL NUCLEAR COOPERATION WITH U.S.
  8. 09STATE92641 PERSUADING THE GOVERNMENT OF SRI LANKA ON FREEDOM OF MOVEMENT

Dean Pittman, Department of State

H. Dean Pittman, Principal Acting Assistant Secretary Bureau of International Organization Affairs, Department of State. The Bureau of International Organization Affairs is the primary interlocutor with the United Nations and is charged with advancing the President's agenda and the national interests of the United States. On June 27, 2013 the following unclassified and redacted stipulation of testimony was read into the Court record.

The unclassified stipulation was read and listed the following charged cables:

  1. 07USUNNEWYORK573 U.S. OFFICIALS BRIEF UNSYG ON PRESIDENT’S CLIMATE CHANGE INITIATIVE, DISCUSS DARFUR
  2. 07USUNNEWYORK575 UPDATE ON UN EFFORTS TO SET UP LEBANON TRIBUNAL
  3. 07USUNNEWYORK578 RUSSIA TRASHES MINIMALIST KOSOVO DRAFT RESOLUTION

Ambassador Stephen Seche State Department

Ambassador Stephen Seche, formerly United States Ambassador to Yemen, Bureau of Near Eastern Affairs (NEA), Department of State. The NEA deals with U.S. foreign policy and diplomatic relations with Algeria, Bahrain, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, Saudi Arabia, Syria, Tunisia, United Arab Emirates, and Yemen. Regional policy issues include the war in Iraq, Middle East peace, terrorism, weapons of mass destruction, and political and economic reform. On June 27, 2013 the following stipulation of testimony was read into the court record.

Seche had two sets of stipulations of testimony. One set relates to charged cables and another relates to uncharged cables. Two unclassified redacted stipulations were read into the court record.

Charged cables were listed in the first unclassified and redacted stipulation as follows:

  1. 05ALGIERS1836 DESPITE SOME EARLIER CONCERNS, GOA TAKING POSITIVE STANCE ON LUGAR MISSION AND ITS AFTERMATH
  2. 06ALGIERS1961 SKIKDA RAMPING UP REFINING, LNG CAPACITY WITH EYE ON EUROPE
  3. 06BAGHDAD2646 HUNGER STRIKE BY AD-DUJAYL DEFENDANTS
  4. 06BAGHDAD4205 SCIRI LEADERS BEMOAN LACK OF STRONG SUNNI PARTNERS IN IRAQI GOVERNMENT
  5. 06BEIRUT3603 UN OFFICIALS ON COORDINATION, TRIBUNAL, OVERFLIGHTS, HIZBALLAH
  6. 06BEIRUT3604 FORMER PM MIKATI INSISTS HE SUPPORTS SINIORA
  7. 06BEIRUT3703 LAHOUD REJECTS PATRIARCH’S CALL TO QUIT
  8. 06KUWAIT4430 FREEDOM AGENDA: RUMBLINGS OF ANOTHER PARLIAMENT DISSOLUTION
  9. 06KUWAIT4438 IRAQ DEBT FORGIVENESS: “A BLOODY, UPHILL BATTLE"
  10. 06RIYADH8811 UNPRECEDENTED MEETING BETWEEN USG AND SAG ON PETROLEUM INFRASTRUCTURE PROTECTION
  11. 06TRIPOLI645 LIBYAN DEMARCHE ON CHINA SUMMIT WITH AFRICAN NATIONS
  12. 06TRIPOLI648 LIBYAN CENTRAL BANK ESTABLISHING NEW TRAINING INSTITUTE
  13. 07BAGHDAD35 MALIKI’S GROWING WILLINGNESS TO TAKE ON JAM
  14. 07BAGHDAD36 AMBASSADOR’S JANUARY 5 MEETING WITH IRAQI PM ADVISOR AL-ASKARI
  15. 07BAGHDAD37 IRAQI POLITICAL LEADERS EMPHASIZE IMPORTANCE OF BAGHDAD SECURITY AND MODERATE FRONT, AT DINNER WITH DEFENSE SECRETARY GATES
  16. 07BAGHDAD42 MOI BOLANI SLOW TO DEVELOP REFORM PLAN
  17. 07BAGHDAD53 KURDISTAN PRESIDENT BARZANI DISCUSSES PESHMERGA, REGIONAL ADMINISTRATION AND MEDIA FREEDOM
  18. 07BAGHDAD56 PRT TIKRIT: DOES THE CENTRAL GOVERNMENT’S REACH EXTEND TO SALAH AD DIN?
  19. 07BAGHDAD63 IRAQ’S SUNNI VP DISCUSSES BAGHDAD SECURITY PLAN, MODERATE FRONT, SADDAM AND IRAN
  20. 07BAGHDAD64 COR FINANCE COMMITTEE CHAIR BEGINS 2007 BUDGET REVIEW
  21. 07BAGHDAD70 KURDISTAN PRESIDENT DISCUSSES OIL REVENUE SHARING, PRIVATE SECTOR DEVELOPMENT, RECONSTRUCTION AID
  22. 07BASRAH3 AN AMERICAN KIDNAPPED IN BASRAH
  23. 07BEIRUT1958 LEBANON: CHRISTIAN LEADERS DISCUSS BG HAJJ ASSASSINATION, PRESIDENTIAL ELECTION
  24. 07RIYADH21 DEMARCHE DELIVERED: SECURING REGIONAL BORDERS AGAINST INFLUX OF FOREIGN FIGHTERS AND WEAPONS TO SOMALIA
  25. 07RIYADH22 FOLLOW UP ON AL MANAR AND AL AKSA TELEVISION; ARMS FOR LEBANESE ARMED FORCES
  26. 07RIYADH23 SAG STATES NO HIGH-LEVEL ENGAGEMENT OF SYRIAN OFFICIALS
  27. 07TUNIS47 SCENESETTER FOR VISIT OF DAS CARPENTER
  28. 08AMMAN535 AS NEW POLITICAL PARTY RULES LOOM, JORDANIAN POLITICIANS MANEUVER
  29. 08CAIRO569 ARAB LEAGUE’S HISHAM YOUSEF ON SUMMIT AND “YEMENI INITIATIVE"
  30. 09BAGHDAD2390 MALIKI ADVISOR SAYS PM UNLIKELY TO JOIN SHI’A COALITION; FEARS IRAN WILL FOMENT VIOLENCE IN RUN-UP TO ELECTION
  31. 09RIYADH1156 SAUDI MINISTER OF STATE MADANI ON UAE, YEMEN, SAUDI-ARMENIAN RELATIONS
  32. 10RABAT294 (Not listed in the publication of Cablegate)

Uncharged cables were listed in the second unclassified and redacted stipulation as follows:

  1. 09STATE15113
  2. 09DOHA214

Ambassador Don Yamamoto, Department of State

Ambassador Don Yamamoto is the former Principal Deputy Assistant Secretary within the Bureau of African Affairs, currently serving as Assistant Secretary of State for African Affairs, Department of State. On June 27, 2013 the following unclassified and redacted stipulation of testimony was read into the court record.

The unclassified and redacted stipulation listed the following charged cables:

  1. 10PRETORIA636 (Not published in Cablegate)
  2. 08KHARTOUM246 UNAMID COMMANDER: BUILDING UP WHAT WE HAVE SHOULD BE THE PRIORITY
  3. 08KHARTOUM428 LIAR’S POKER: SUDANESE “CALL AND RAISE" ON USG NON-PAPER
  4. 07LAGOS719 NIGERIA: NEW RIVERS GOVERNOR REINVENTS HIMSELF BUT FACES CHALLENGES IN TRIBUNAL
  5. 09ADDISABABA1063 SCENESETTER FOR VISIT OF AMB. RICE TO ETHIOPIA
  6. 07ADDISABABA2197 (C-AL7-01035) ETHIOPIA: WFP OFFICIAL DISCUSSES ONLF AND COUNTERINSURGENCY IN OGADEN
  7. 09BAMAKO85 IS THE REBELLION OVER? MALI BEATS BACK BAHANGA AND PREPARES FOR PEACE IN KIDAL
  8. 08DARESSALAAM206 TANZANIA: MINISTER MEMBE BRIEFS AMBASSADOR GREEN ON COMOROS PLANS, ZIMBABWE ELECTIONS

Ambassador Marie Yovanovitch, Department of State

Ambassador Marie Yovanovitch is the Acting Assistant Secretary of State for European and Eurasian Affairs, in addition to her role as Principal Deputy Assistant Secretary, Department of State. On June 27, 2013 the following unclassified and redacted stipulation of testimony was read into the court record.

The unclassified and redacted stipulation listed the following charged cables:

  1. 10REYKJAVIK13 LOOKING FOR ALTERNATIVES TO AN ICESAVE REFERENDUM
  2. 06BELGRADE1681 ICTY ACTION PLAN SCORECARD, OCTOBER 2006
  3. 06MADRID2955 SPAIN DOES NOT AGREE WITH KOSOVO TIMEFRAME
  4. 06MADRID2956 SPAIN: ACTIVE SUPPORT ON TURKEY/EU; WILL SEEK LEAST DAMAGING OPTION
  5. 06PRISTINA947 KOSOVO: UNMIK GETTING OUT OF THE RETURNS BUSINESS
  6. 06PRISTINA948 KOSOVO: PLANNING FOR POSSIBLE SERB REFUGEE MOVEMENTS POST-STATUS SHOWS GAPS IN ABILITY TO HANDLE LARGE MIGRATIONS
  7. 07ANKARA23 TURKEY: ERDOGAN IMPATIENT FOR U.S. ACTION AGAINST PKK
  8. 07ANKARA2468 TURKEY: POLITICAL REFORMS STALLED AS GOT FOCUSES ON NEW CONSTITUTION
  9. 07BRATISLAVA665 SLOVAKIA: DCM REINFORCES KOSOVO, IRAN POINTS WITH DEPUTY FOREIGN MINISTER
  10. 07MINSK1024 AMBASSADOR VISITS HOSPITALIZED YOUTH LEADER FEDARUK
  11. 07MOSCOW5824 U.S., RUSSIA, AND EUROPEAN COOPERATION: FIRST WE NEED TO REMOVE OBSTACLES
  12. 07MOSCOW5825 RUSSIAN ELITES AHEAD OF RULING PARTY CONFERENCE
  13. 07PARIS4722 GERMAN DIPLOMAT AT FRENCH MFA DESCRIBES CAUTIOUS, CONSTRUCTIVE RELATIONS
  14. 07PARIS4723 FRANCE AND THE WTO AG BIOTECH CASE
  15. 07REYKJAVIK203 Icelandic MFA announces inquiry into alleged CIA detainee flights
  16. 07VILNIUS13 LITHUANIA STRUGGLING TO MEET SCHENGEN REQUIREMENTS
  17. 09PARIS217 FRENCH FEEDBACK ON KOSOVO RECOGNITION STRATEGY
  18. 09PRAGUE88 CZECH REPUBLIC: RESPONSE TO DEMARCHE ON DISCUSSION OF MEDVEDEV SECURITY PROPOSAL
  19. 09PRISTINA58 KOSOVO: CONTINUED PROGRESS, CHALLENGES AT KOSOVO PROPERTY AGENCY
  20. 09STATE92632 AFGHANISTAN TRANSIT - REQUEST FOR GENERAL AUTHORIZATION
  21. 09STATE92657 JCIC-DIP-09-010: U.S. RESPONSE TO RUSSIAS START FORMAT 81 NOTIFICATION REGARDING INCOMPLETENESS OR INSUFFICIENT QUALITY OF THE RECORDING OF TELEMETRIC INFORMATION PROVIDED REGARDING THE TRIDENT II SLBM FLIGHT TEST OF DECEMBER 10, 2008
  22. 10BRUSSELS382 (Not published in Cablegate)
  23. 10GENEVA347 (Not published in Cablegate)

Mr. Joseph Yun, Department of State

Joseph Yun is Acting Assistant Secretary for East Asian and Pacific Affairs, Department of State. On June 27, 2013 the following unclassified and redacted stipulation of testimony was read into the court record.

The unclassified stipulation listed the following charged cables:

  1. 07BANGKOK111 AMBASSADOR PRESSES CNS SECRETARY GENERAL ON MARTIAL LAW
  2. 06TAIPEI3830 MTAG: UNSCR 1718 AND EXPORT CONTROL
  3. 07KUALALUMPUR40 MALAYSIA STILL WAVERING ON BURMA RESOLUTION
  4. 07RANGOON22 THAN SHWE REPORTEDLY RETURNING TO BURMA
  5. 07VIENTIANE12 REPRESENTATIVE MCCOLLUM MEETS NATIONAL ASSEMBLY LEADERS
  6. 06SEOUL3882 ROK TO ANNOUNCE POSITION ON PSI NOVEMBER 13, 2006
  7. 06SEOUL3885 PRESIDENTIAL CANDIDATE KOH GUN ON NORTH KOREA, ALLIANCE AND DOMESTIC POLITICS
  8. 06SUVA489 FIJI UPDATE 11/13: GCC TRIES TO MEDIATE; NO STABLE OUTCOME IN SIGHT
  9. 07SUVA18 FIJI UPDATE 1/8/07: INTERIM GOVERNMENT MINISTERS; CHAUDHRY TO FINANCE; INTERNATIONAL INFLUENCES; APPARENT MURDER IN RFMF CUSTODY
  10. 10TOKYO627 (Not published in Cablegate)
  11. 07BEIJING152 CHINA URGES UNITED STATES TO BAR MEDIA, PUBLIC EVENTS FOR CHEN SHUI-BIAN TRANSIT STOPS

C.I.A.

Further, the Court also admitted the stipulation of testimony from Ms. Catheryne Strobl at the CIA, concerning the two CIA Red Cell Memos and the 2008 U.S.A.C.I.C. WikiLeaks report, which are charged against Manning under Specifications 3 and 15 of Charge II, Article 134.

Classified Witnesses

As mentioned above the U.S.A.C.I.C. report will be used in the U.S.G.'s case against Manning for 'Wanton Publication' and 'Aiding the Enemy'. In addition, at least two of three separate classified witnesses will have their stipulations of testimony presented to the Court next week about the C.I.A. Memos and U.S.A.C.I.C. report.

F.B.I.

Finally, according to an unpublished pre-trial transcript by this author from May 21, SSA [Supervisory Special Agent] Alexander Pott [sp.], FBI is to testify in a closed session or have a stipulation of testimony entered for the U.S.G's case against Manning for 'Wanton Publication' and 'Aiding the Enemy.' It is possible that he would testify to what military prosecutors sought to take judicial notice of in January 2012: namely, "The United States FBI has named Adam Yahiye Gadahn as a "most wanted terrorist" and states he is associated with AI Qaeda."

Alexa O'Brien Alexa O'Brien researches and writes about national security. Her work has been published in VICE News, The Cairo Review of Global Affairs, Guardian UK, Salon, The Daily Beast, and featured on the BBC, PBS Frontline, On The Media, Democracy Now!, and Public Radio International. In 2013, she was shortlisted for the Martha Gellhorn Prize for Journalism in the UK and listed in The Verge 50..