Key details about the ‘bin Laden evidence’ in Chelsea Manning’s court-martial (UPDATED No. 2)

UPDATES ARE BELOW

This post intends to provide a detailed account of classified evidence, which the U.S. government used at Chelsea Manning's court-martial, and which it asserts was obtained during the May 2011 raid of Osama bin Laden's compound in Abbottabad, Pakistan.

Statements made about the 'bin Laden evidence' by the government in a court of law have more weight than statements or hearsay made by Executive agents to the press. Statements made in a court of law are not more likely to be truthful, but there is at least the acknowledgement that there could be serious penalty if the court discovered perjury. The Manning court-martial helps us to determine the USG statements of fact about the 'bin Laden evidence'.

The concrete details about the 'bin Laden evidence' will also aid public deliberate about information contained in a recent article in the London Review of Books by journalist Seymour Hersh.

But, more importantly, the public cannot scrutinize the fairness or reasonableness of its case against Chelsea Manning, when that case and the evidence are hidden under black redactions.

The 'bin Laden evidence' was used to support the USG's case against Manning for aiding the enemy and wanton publication. Both charges and their application in the Manning court-martial were unprecedented.

Aiding the enemy is one of two offenses that applies to "any person" (and not just military personnel). Wanton publication has never been used before, and is not tied to any existing federal statute or article in the Uniform Code of Military Justice.

Two days before U.S. army soldier, Chelsea Manning, was sentenced to 35 years in a military prison for disclosing low-level battlefield and diplomatic reporting to WikiLeaks, the prosecutor told the presiding judge: "In this case we don't have to speculate. The information was found on the digital media of Osama bin Laden."

In order to make their case for aiding the enemy and wanton publication, prosecutors had to prove receipt of intelligence by the enemy.

Intelligence encompasses more than classified and sensitive information. The court defined intelligence as "any information that is helpful to the enemy and which is true, at least in part."

Prosecutors offered:

  • an As-Shahab video published in June 2011 featuring the reported American al-Qaeda spokesman, Adam Gadahn;
  • the January 2011 issue of Inspire magazine, reported as Al Qaeda's English magazine;
  • and classified evidence, which they said had been obtained "from several items of digital media" at the May 2011 U.S. raid on Osama bin Laden's compound.

Acquitted of aiding the enemy, which carried a life sentence; the judge found Manning guilty of making U.S. intelligence accessible to the enemy on the Internet. The charge carried a maximum sentence of two years.

'Books and Papers' or 'Digital, Audio, and Video Files'

In a recent article in the London Review of Books, journalist Seymour Hersh quotes an unidentified retired senior U.S. intelligence official, whose account of the May 2011 U.S. night-raid on a compound in Abbottabad, Pakistan disputes evidence offered and accepted as fact in Manning's criminal trial:*

"'Despite all the talk,' the retired official continued, there were 'no garbage bags full of computers and storage devices. The guys just stuffed some books and papers they found in his room in their backpacks. The Seals weren’t there because they thought bin Laden was running a command centre for al-Qaida operations, as the White House would later tell the media. And they were not intelligence experts gathering information inside that house.'"

Hersh's source also disputes a May 7, 2011 account by an unnamed senior intelligence official at the Pentagon concerning the raid. The transcript of that account was accepted as substantive to the court accepting the verity of the raid and the resulting cache of digital media that produced the 'bin Laden evidence'.

"This adjudicative fact is relevant because the Government intends to introduce evidence that Usama bin Laden asked for, and received, classified information compromised by the accused," said the prosecution

"As a result of the raid," the senior intelligence official at the Pentagon told reporters, the U.S. acquired the "single largest collection of senior terrorist materials ever."

The collection, he said, "includes digital, audio and video files of varying sizes, printed materials, computer equipment, recording devices and handwritten documents."

The senior intelligence official at the Pentagon also told the press:

"We assessed that much of this information, including personal correspondence between Osama bin Laden and others, as well as some of the video footage you will see today, would only have been in his possession."

The senior intelligence official at the Pentagon further explained that a multiagency task force led by the CIA, drawing on the expertise of the department of homeland security, the defense intelligence agency, the office of the director of national intelligence, the FBI, the treasury department, the national media exploitation center, national counterterrorism center, national geospatial intelligence agency, and the NSA had "been established to triage, catalogue, and analyze this intelligence.

Hersh's source states however:

'We were told at first,' the retired official said, ‘that the Seals produced garbage bags of stuff and that the community is generating daily intelligence reports out of this stuff. And then we were told that the community is gathering everything together and needs to translate it. But nothing has come of it. Every single thing they have created turns out not to be true. It’s a great hoax – like the Piltdown man.’ The retired official said that most of the materials from Abbottabad were turned over to the U.S. by the Pakistanis, who later razed the building."

Hersh's source continues, "'Why create the treasure trove story?' the retired official said. 'The White House had to give the impression that bin Laden was still operationally important.'"

In a July 2011 article in the Washington Post, citing several anonymous U.S. officials, journalist, Greg Miller, wrote that more than 15 computers and 100 storage devices were recovered from the bin Laden compound and are in FBI custody.

According to Hersh, the WaPo report contradicted itself, because the Obama administration had previously asserted that "the Abbottabad compound had no internet connection." But, if...

"Bin Laden's messages were mostly composed on computers, then smuggled out on small disks or thumb drives by couriers, who would then copy the contents into e-mails that could be sent securely to followers — whether they were mere miles from bin Laden's compound or overseas."

... then no internet connection would be required by bin Laden.

All Your Al Qaeda Are Belong To U.S.

That bin Laden (as reportedly claimed by administration officials) did not have Internet at his compound in Pakistan, was of no moment for prosecutors who accused Manning of indirectly giving intelligence to the terrorist. By "indirect means" prosecutors specifically meant "The Wikileaks Website."

Bin Laden's lack of Internet similarly did not prevent the judge from finding Manning guilty of making intelligence accessible "on the Internet" to enemies of the U.S..

Wanton publication is an unprecedented charge, and not tied to an existing federal criminal violation or punitive article of the Uniform Code of Military Justice.

Interrogating the 'bin Laden evidence' at Manning's court-martial became moot, when weeks before her trial she accepted a stipulation concerning the facts of the raid and the evidence obtained therein.

Stipulations like the one she agreed to are binding to the defense and prosecution at trial, because they are treated as fact and cannot be impeached.

The unclassified portion of the stipulation of fact (which also contains classified portions) reads:

"During the raid on Usama bin Laden's compound in Abbottabad, Pakistan, United States government officials collected several items of digital media. From the items of digital media, the following items relevant to this case were obtained: (1) a letter from UBL 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 were all the Afghanistan significant activity reports as posted by WikiLeaks; and (3) Department of State information."

Four files, Three pieces of Digital Media

Prosecutors had notified Manning's defense as early as November 2011 about the existence of the bin Laden digital media and their intent to use it at her trial.

The evidence comprise four files extracted from the three pieces of digital media. Defense was allowed to view the metadata for all the four files on a secure computer, which is stored at the CIA.

Two of the four files are not documents. They were provided to defense in their original form. Two files, when printed out were documents. Two documents were provided to defense with redactions, and two documents without. (See also.)

Except for the four files, defense was not allowed to view other files on the three pieces of digital media. The judge described the other material on the three pieces of digital media as a "vast sum of classified information" comprised of files that are documents when printed out.

Osama bin Laden Letters

In early 2013, military prosecutors had claimed that the evidence obtained during the raid of the Abbottabad compound, consisted of a letter from Osama bin Laden to a classified Al Qaeda interlocutor requesting WikiLeaks information.

The same interlocutor, they asserted, subsequently went onto the Internet, retrieved all 75,000 low level battlefield reports from Afghanistan from the WikiLeaks website, and then sent them back to bin Laden as an attachment. The attachment was likely in compressed format.

Prosecutors asserted that an army forensic examiner would testified that the hash values, file names, and file numbers of the Afghanistan battlefield reports, which they also claimed were found at the bin Laden compound, were "essentially" the same as the reports published on the WikiLeaks website and those contained on an SD card found in Manning's aunt's home.

The January 2011 Winter issue of Inspire magazine, offered as evidence by the prosecution, points out to the Western jihadist that "anything useful from WikiLeaks is useful for archiving."

This is a screenshot from 16 January 2011, Inspire magazine Issue Number 4, used as evidence against Chelsea Manning at trial for aiding the enemy and wanton publication.

This is a screenshot from 16 January 2011, Inspire magazine Issue Number 4, used as evidence against Chelsea Manning at trial for aiding the enemy and wanton publication.

"If the enemy actually went to WikiLeaks on a regular basis as the Government would like to suggest, they wouldn't have to be told to go there to get this information," defense countered, arguing that WikiLeaks was no different from U.S. Government websites or the New York Times.

Adam Gadahn: Bin Laden's Correspondent

If Osama bin Laden did not have Internet at Abbottabad, then establishing at trial that his classified correspondent was a member of Al Qaeda, who possessed knowledge of the Internet and the WikiLeaks website, would be critical to the government's case against Manning for aiding the enemy "by indirect means" and wanton publication.

Military prosecutors told Manning in March 2012, that the enemy she was accused of giving intelligence to via the WikiLeaks website and which she made intelligence accessible to on the Internet was Al Qaeda and Al Qaeda in the Arabian Peninsula.

In the final accounting, the court took notice of three adjudicative facts pertaining to two entities and two individuals, who were enemies of the U.S. (for the purpose of Manning's court-martial).

They were Al Qaeda, Al Qaeda of the Arabian Peninsula, Osama bin Laden, and Adam Gadahn.

There was also a classified enemy, which military prosecutors dropped from the charge sheet, because they hadn't offered any evidence related to this entity or person at trial.

The only enemy proffered by the court record, that fits the criminal elements, and the prosecution's criminal theory is Adam Gadahn.

Gadahn also had allegedly corresponded with bin Laden in other letters said to have been obtained during the raid and subsequently analyzed by the Combating Terrorism Center at West Point.

Department of State "Information" and the Gadahn Video

Prosecution also claimed that "Government officials also collected Department of State information released by Manning" at the raid of Osama bin Laden.

The"information", military prosecutors, claimed bin Laden possessed was likely contained in a June 2011 As-Shahab video featuring Adam Gadahn. In the video, the narrator and Gadahn cite diplomatic reporting released by WikiLeaks, accompanied by commentary.

TRANSCRIPT:"...But, by the grace of Allah, the enemies' interests today spread all over the place and easily accessible as the leaked American State Department cable on critical foreign dependencies makes crystal clear...And I advise every brother who wants to work for this religion not to undertake any action before taking advantage of the wide range of resources available today on the Internet. Particularly the are various manuals, encyclopedias, and courses which deal with the mujahedeen’s operational and electronic security and security in general."

Military prosecutors cited two uncharged cables as the basis for the Department of State information that Manning made accessible to Gadahn and subsequently bin Laden.

The former US ambassador to Yemen, Steven Seche's, classified stipulation of expected testimony used in the prosecution's case for aiding the enemy and wanton publication names 09STATE15113 and 09DOHA214.

By being in possession of the June 2011 As-Shahab video, prosecutors likely argued that bin Laden would have also been in possession of the information contained in the video.

TRANSCRIPT: "Here are a few examples from the revelations of WikiLeaks, which expose the subservient of the rulers of the Muslim world for their master America.

The tyrant of Yemen tells Obama’s assistant secretary for homeland security, "The door is open for what you want in your fight against the mujahedeen." He tells General Petraeus that he will continue to lie to his people, telling them that it is his missiles that killed them not America's.

Thirdly, when the Americans ask for permission to participate in the war against the Muslims of Yemen with their ground forces, he said, "I fear that the American forces will be exposed harm and their will be causality amongst their ranks."

As for the Saudi kind, who cannot even speak clearly, he demanded from the Americans that they plant tracking devices similar to those planted inside wild animals inside the bodies of the prisoners in Guantanamo so that it may be possible to monitor them once they are released.

Similarly the family of Saud offered to assist America in the occupation of Lebanon in the same way that they assisted them in the occupation of Afghanistan and Iraq earlier.

Among the endless scandals of the tyrants of the Muslim world is the compliance of the Pakistani government to kill and displace millions of Pakistani Muslims on the orders of the American ambassador in Islamabad, the real ruler of Pakistan.

The WikiLeaks documents expose the competition between [inaudible] of [inaudible] and Kayani to please the Americans.

In fact, some of those who portray themselves as opposition also compete with the rulers in showing servitude to America. These documents also expose the free concerts organized by American consulates in Pakistan which aim at spoiling the minds of the youth and ruining their religion and morals so that they may not divert their energies to rescuing their unmah from the catastrophic state it is in.

WikiLeaks exposed the free concerts organized in Jetta by the American consulate. Officials belonging to the department of promoting virtue and prohibiting vice turn a blind eye to these events because they enjoy the patronage of the family of Saud through the participation of its members in these events.

These documents also reveal that most of the wealth of the Muslim world is stolen through corruption and bribery, while million of Muslims live in abject poverty.

WikiLeaks also sheds light on the dubious deals with the Gulf countries for the purchase of American weapons to the tune of billions of dollars. The last of which was the current deal whose worth exceeded 60 billion dollars.

This deal was struck to rescue the American economy from the crisis it is passing through and to create 75,000 jobs for American citizens. This was done at a time when Muslim masses were suffering from hunger and most of its youth were neglected and unemployed...and if anyone protests against this situation, then the weapons obtained from these deals are used against them. These deals show clearly that the Americans and the rulers of the Muslim world are just two sides of the same coin.

Seche's classified stipulation cites 32 charged diplomatic cables, which prosecutors likely sourced for the quotes and commentary in the As-Shahab video.

The 32 charged cables can be found here.

Portions of five of the 32 were declassified after Manning's arrest in May 2010.

An classification review by the department of state found that one of the 32 charged cables,07BAGHDAD64, remained classified in full because: "Department of State equities are no longer sensitive; but release would require Department of Treasury concurrence."

The June 2011 As-Shahab video also showed images of a July 2007 U.S. Apache airstrike in Baghdad, Iraq, published by WikiLeaks in April 2010:

TRANSCRIPT: "These clips released by WikiLeaks show the extent of Americans crimes against Muslims. The clips show American forces following a group of ordinary pedestrians. Among them are two journalists. American soldiers wait until a large number of innocent civilians get together and then begin their spree of cold-blooded murder. It is what follows that reveals the hideous nature of American crime. As a car belonging to an ordinary person approaches the scene one of the pedestrians asks the driver to transport the wounded to a hospital. Despite the fact that two little children can be clearly seen on the front seat, orders are issued by the Americans to kill everyone inside the car. In this massacre the only survivors where the children, who were badly wounded and continue to suffer from physical and psychological wounds of this attack to this day..."

Alexander Otte

Alexander Otte, the FBI agent, who testified about evidence from three pieces of media said to have been obtained from the force that raided Osama bin Laden's compound, which was use in the terrorism case against Abid Naseer, had also been proffered as a government witness at Manning's trial. Military prosecutors said Naseer would attest to the chain of custody for four files extracted from the same three pieces of digital media.**

Naseer was eventually convicted in March of supporting terrorism and conspiring with Al Qaeda to bomb a shopping center in Manchester, England.

According to documents in Naseer case, Otte:

"deployed to Afghanistan on April 28, 2011 in order to ensure the appropriate acquisition, documentation, and establishment of chain of custody of any items seized during a planned Department of Defense (“DOD”) operation to raid the compound of Usama bin Laden." SSA Otte was told by DOD officials upon his arrival in Afghanistan that they planned to raid a compound at which Usama bin Laden was believed to be hiding on the evening of May 1, 2011 (Afghanistan time). At approximately 3:50 a.m. Afghanistan time on May 2, 2011, an aircraft containing members of the DOD raid force landed at the base in Afghanistan where SSA Otte was stationed. SSA Otte took custody of and began processing several items, including media and electronic evidence, that members of the raid force had in their possession. Among those items are three pieces of media from which the documents at issue were recovered. SSA Otte will further testify that at approximately 4:00 a.m. Afghanistan time, the raid force brought the body of Usama bin Laden into the hangar at the base where SSA Otte was stationed. SSA Otte catalogued, processed and vouchered all of the media recovered by the raid force and personally transported that media to the FBI Laboratory in Quantico, Virginia on May 2, 2011. The media was placed into evidence storage vault at the FBI Laboratory, and its every removal from that vault has been documented in FBI business records, specifically FD-1004 Chain of Custody forms."

Details of the account in part were echoed in the Manning pretrial.

Quantico is also the location of the Operational Technology Division, which provides the U.S. Intelligence Community and U.S. Attorney's Offices with advanced electronic surveillance, "Covert entry/search capability for all authorized Title III and Title 50 court orders, as well as Executive Branch orders", counter-encryption, digital forensics, and tracking capabilities.

The Quantico FBI collection team then passed the evidence to a forensic examiner.

Mary Horvath, a forensic examiner from the FBI's Computer Analysis Response Team, was listed on a prosecution list related to classified evidence.

After that the 'bin Laden evidence' was passed onto an army criminal investigation command forensic examiner.

John Doe

With an endorsement from the commander of special operations command, Admiral William McRaven, the Secretary of Defense, claimed an information privileged over information related to the identity of the Department of Defense operator, called John Doe, who was said to have collected the evidence during the raid.

The Central Intelligence Agency claimed a classified information privilege over information related to the still classified details from the raid.

The court had ruled that John Doe could testify under a pseudonym, in civilian clothing and a light disguise, at an offsite location, in a closed session; but his testimony was remote once Manning's defense accepted the bin Laden stipulation of fact.

Below is an unclassified version of an interrogatory between Manning's defense and John Doe concerning details surrounding the reported raid of bin Laden's compound.

UPDATE NO. 2 - DEVELOPING, May 21, 2015 10:00 p.m. EST

On May 20, 2015, the Office of the Director of National Intelligence declassified and published 103 documents, which they say were obtained during the raid of Osama bin Laden's compound in Abbottabad, Pakistan in May 2011.

One of the declassified and published letters (dated August 07 2010) seems to echo a portion of the unclassified stipulation about the 'bin Laden evidence' used at Manning's court-martial for aiding the enemy (unsuccessfully) and wanton publication (successfully).

For more details on all that, read the article below.

I spent a considerable amount of time liasoning between the CIA, the Office of the Director of National Intelligence, the Office of the Secretary of Defense, and the U.S. army concerning the declassified letter dated August 07 2010.

Generally speaking, I was seeking a confirmation or denial that the declassified August 7, 2010 letter was used in Manning's prosecution.

The CIA and ODNI directed me to the Department of Defense. The Department of Defense directed me to the army; and the army directed me back to ODNI (and ultimately the CIA, which "owns" the information said to have been obtained during the raid of Osama bin Laden on May 2011 and subsequently used as evidence at Manning's court-martial).

My conversation with the army public affairs office was a bit humorous (for both of us). The army kept referring me to the unclassified court record. The army then told me the they can't do my research for me. That made me laugh.

I told the army, I don't need them to do my research. I already know the unclassified record, hence my ability to ask them for confirmation about the letter.

I then said I would be more than happy to send citations to help the army locate exactly where the 'bin Laden evidence' occurs in the court record. The army said that they don't need my citations, because they are familiar with the information I am seeking.

At one point the army suggested that I may be the only person who could determine if the letter was in fact used as evidence. My confirmation, it appears, is obstructed by the segregation between the classified information used by the army at trial and information as it exists at the CIA or ODNI.

I told the army that I wanted a confirmation or denial and that I was patient. I also emphasized that most defense counsel would be unlikely to talk to me about the topic, for fear of losing their security clearance if the material was still classified.

The final result: the army told me they will attempt to track down an active duty person familiar enough with the court record and the evidence to answer my three questions:

  1. Can your agency confirm that portions or information from the August 7, 2010 letter published by ODNI was used in the prosecution of US Army mil intelligence analyst Manning in 2013?

  2. There were two UBL letters in the Manning prosecution based on an unclass stipulation in that trial. Was a second letter released as well?

  3. Has any material from the UBL raid that was used at Manning's trial been declassified post conviction?

After that conversation I contacted the CIA and ODNI again and informed them that army will require their coordination in order to answer my three questions.

I have also provided the CIA and ODNI with information about their agencies' role in the evidence from the unclassified court record. I did that to help them find the offices or officers who liaisoned with trial counsel about the 'bin Laden evidence' used at Manning's trial.

More on this as it develops.

UPDATE NO. 1 - DEVELOPING, May 20, 2015 10:48 a.m. EST

On May 20, 2015, the Office of the Director of National Intelligence declassified 103 documents that they alleged were obtained during the raid of Osama bin Laden's compound in Abbottabad, Pakistan in May 2011.

The cache includes documents that are marked with an asterisk, and identified as "previously declassified for federal prosecutions." Manning was court-martial and not tried in a federal court.

One of the letters is dated August 07 2010 and states:

obl

"Please dedicate some brothers to translate the documents on Afghanistan and Pakistan that were leaked from the Pentagon because these documents contain the strategy of the enemy in the area. The US secretary of defense stated that the leak of these documents will negatively affect the war. The Website that published these documents revealed 92,000 documents and then another 15,000."

The letter is signed, "Your brother, Azmarai." Azmarai is said to be a nickname for bin Laden.

A CIA spokesperson described the letter as being "from Bin Ladin." He said the letter is "likely to Atiyah, who was is a senior AQ figure. They use kunyas in the letter."

According to Brian Hale, the director of public affairs at ODNI, the yellow highlight was "done by an analyst who just wanted to flag an interesting point" and had "no significance beyond that." The cache were translated by the CIA from their original Arabic. Hale also said, "There may be other documents released in future tranches that have been used in criminal prosecutions."

I have sought confirmation from ODNI, CIA, Department of Defense, and the U.S. Army that the August 7, 2010 purported letter was used in the Manning prosecution. The CIA and ODNI directed me to the Department of Defense for confirmation. The Department of Defense directed me to the Army.

According to a CIA spokesperson the documents released by ODNI today "are being released in full," and they do not contain substitutions.

Military Rules for Evidence 505, which is derived from the Classified Information Procedures Act defines how classified information may be used at trial.

A "substitution" means to "replace the classified information with a substitute" that lowers the classification of a document.

At Manning's trial two documents out of four of the OBL evidence were turned over to defense with redactions.

Prosecutors also had sought substitutions or alternatives to using the original classified information that constituted the government's "bin Laden evidence" (in addition to the redactions discussed below).

END UPDATE


*Seymour Hersh describes his sources:

""The major US source for the account that follows is a retired senior intelligence official who was knowledgeable about the initial intelligence about bin Laden's presence in Abbottabad. He also was privy to many aspects of the Seals’ training for the raid, and to the various after-action reports. Two other US sources, who had access to corroborating information, have been longtime consultants to the Special Operations Command. I also received information from inside Pakistan about widespread dismay among the senior ISI and military leadership – echoed later by Durrani – over Obama’s decision to go public immediately with news of bin Laden’s death. The White House did not respond to requests for comment.""

**"(U) SSA Alexander Otte will testify as a chain of custody witness for classified information concerning four files extracted from digital media found in the possession of Usama bin Laden on 1 May 2011." (Appellate Exhibit 480)

"24. Otte, Alex discussing the chain of custody for four files extracted from digital media outlined in BATES #: 00505250-00505252."(Appellate Exhibit 530)

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..