Emails & new warrants raise questions about investigators’ conduct in Manning criminal probe

posted July 12, 2014

UPDATE CLICK HERE

Two weeks into the former U.S. Army intelligence analyst, Chelsea Manning’s, three year long court-martial last summer, military and federal prosecutors were still seeking evidence against the twenty-six year old from Google.

Manning is currently serving a 35 year sentence at the Disciplinary Barracks in Fort Leavenworth, Kansas, after she was convicted on twenty offenses for disclosing low-level U.S. Army field reports, diplomatic cables, and other government information to WikiLeaks in 2010. Her conviction will be automatically appealed.

At her trial, Manning took full responsibility for the disclosures.

In June 2013, military prosecutors, however, were inquiring for the first time about the existence of any messages between the YouTube accounts of Manning and Wikileaks and any deleted videos that may possibly relate to the unauthorized disclosure of national defense information.

YouTube Account Eluded Investigators for Four Years

The late-coming Google search warrants and other communications between military prosecutors and law enforcement raise questions about how U.S. authorities are handling the ongoing investigation into WikiLeaks — now in its fifth year – and why it took investigators four years to discover Manning’s YouTube account.

According to an affidavit by an Army investigator, which accompanied federal search warrant applications:

“On May 29, 2013, in preparation for military courts-martial…MANNING’s Defense Attorney provided three pages of ‘Reciprocal Discovery’ to the U.S. Government. This Reciprocal Discovery included several messages MANNING had exchanged via the TARGET ACCOUNT with another YouTube user. A review of the USACIDC [US Army Criminal Investigation Command] investigation determined investigators had previously attempted to identify all electronic accounts used by MANNING, but had not identified the TARGET ACCOUNT prior to the disclosure.”

Forensic evidence regarding Manning’s multiple Gmail accounts featured in the government’s case against the young dissident at her lengthy trial.

“Unbelievable that All that Electronic Media was Missed”

Six months after the Manning’s arrest, and only after her aunt had cleaned up her room and organized her belongings, did agents happen to find the SD card which contained forensic evidence of hundreds of thousands of Significant Activity Reports from the wars in Iraq and Afghanistan that Manning had disclosed to WikiLeaks. It is “unbelievable that all that electronic media was missed,” wrote a redacted member of law enforcement with the U.S. Attorney’s Office in the Eastern District of Virginia to military prosecutors involved in the case.

Manning’s YouTube account does not feature any uploaded videos. Google did, however, provided the government with a list of six delete videos associated or favorited by the YouTube account in September 2013, two weeks after Manning’s conviction.

Manning’s YouTube account does feature a favorites playlist of 39 videos, which includes “Collateral Murder”, the July 2007 U.S. Baghdad, Iraq airstrike video charged against Manning under the Espionage Act. Up to twelve individuals including two journalists were killed in the attack and two children were injured.

The young soldier was found not guilty of espionage for disclosing “Collateral Murder” to WikiLeaks, but was convicted to a lesser included offense.

Assistant U.S. Attorney Lindsay Kelly of of the Department of Justice’s Cyber Unit in Alexandria, Virginia– who represented the agency in their defense against an appeal brought by Twitter users, whose accounts had been subpoenaed by WikiLeaks grand jury prosecutors– also submitted the affidavit which accompanied two July 2013 search warrant applications for Manning’s newly-discovered YouTube account.

Google took the position that the original June 2013 warrant did not cover the actual videos or contents of folders other than the “Personal Messages” folder and the ISP requested a second search warrant, which the government subsequently provided and was granted.

Sealed and Unsealed Warrants

The United States’ criminal probe of WikiLeaks is “unprecedented” in both “scale and nature”. Now in its fifth year, the U.S. has coordinated a joint inter-agency criminal investigation of WikiLeaks comprised of a partnership between the Departments of Defense, State, and Justice.

A Department of Justice grand jury investigating the WikiLeaks disclosures was already empaneled on September 23, 2010, two months before the Department of Justice Attorney General publicly acknowledged an ongoing U.S. criminal investigation of WikiLeaks, Assange, and other civilians associated with the online publisher of censored material.

The Department of State, Bureau of Diplomatic Security Services, FBI, and Department of Justice, including the U.S. Attorney’s Office in the Southern District of New York, U.S. Attorney’s Office in the Eastern District of Virginia, the Counterespionage Section, and the National Security Division, among other law enforcement and intelligence entities, are involved in the U.S. investigation of WikiLeaks.

According to the Department of Justice prosecutors on April 25, 2014, “The investigation of the unauthorized disclosure is a multi-subject investigation and is still active and ongoing.”

Also worth noting is the Manning subpoenas were unsealed after her conviction, whereas those pertaining to the Department of Justice’s ongoing investigation of civilians associated with WikiLeaks remain sealed, and that investigation continues.

Once an indictment is unsealed or an investigation is concluded, all the secret orders and search warrants related to the case are simultaneously unsealed. All the secret orders and search warrants related to the Department of Justice’s WikiLeaks investigation that are known of publicly, remain under seal.

[UPDATE]

“Lawful” versus “Unauthorized” Possession

What is also important about the July 2013 search warrants is that they state that the items to be seized constitute the “fruits, evidence, contraband, and instrumentalities of violations of ” 793(d) under the Espionage Act, which pertains to the unauthorized disclosure of national defense information by those individuals having “lawful possession” and not 793(e) for “unauthorized possession”.

At trial Manning was charged solely under 793(e) of the Espionage Act for the “unauthorized possession” and disclosure of NDI for eight Espionage Act offenses. She was eventually convicted to six.

Particularly troublesome is how military prosecutors showed no mercy when they went to trial against Manning, accusing her of “unauthorized possession” and willful communication under 793(e) for an unclassified video, namely Collateral Murder.

They did so, even after the government’s own classification review proved before her trial on the charges that the video was unclassified and Manning herself pled to a lesser included offense.

Another theory for the use of 793(d) and not (e) is the statute might pertain to an investigative theory by prosecutors that WikiLeaks obtained the documents lawfully but did not “return them” when the U.S. government demanded, to much political fanfare in early 2011.

In November 2013, anonymous Department of Justice officials told the Washington Post that the agency would likely face difficulty prosecuting WikiLeaks for the act of publication, because of the First Amendment.

In December 2010, however, the Attorney General stated, “It would be a misimpression if the only statute you think we are looking at is the Espionage Act. That is certainly something that might play a role, but there are other statutes, other tools that we have our disposal.”

One of those statutes includes the Computer Fraud and Abuse Act. The CFAA was cited in a May 2011 letter, which accompanied the subpoena ordering one of the founders of the Private Manning Support Network to testify at the secret grand jury investigating WikiLeaks.

The July 2013 Google search warrants also cite the Computer Fraud and Abuse Act.

Manning was convicted under the CFAA for disclosing 116 U.S. diplomatic cables to the WikiLeaks organization, because she used freely acquired software, which automated downloading of material.

While the evidence against Julian Assange was circumstantial at Manning’s trial, and the soldier admitted that she acted alone, she was nevertheless convicted of a violation of a lawful general regulation for attempting to change the administrator password on her classified computer.

Military prosecutors alleged at trial that Manning received knowledge from Assange on how to do that.

Moreover, the prosecution’s theory alleging civilian involvement in a criminal conspiracy to obtain and decrypt a video of a May 2009 bombing in the Farah Province of Afghanistan, which cause mass civilian casualties, still survives Manning’s acquittal on that charge.

[END UPDATE]

Embedded Journalism

Manning’s YouTube account “Favorite” playlist also contains an Al Jazeera English Listening Post video entitled “Trading coverage for access?”

Last month, Manning wrote a New York Times Op-Ed on the role that embedded journalist played in the disparity between news coverage about the Iraq War and the on-the-ground reality in-country.

During legal proceedings, Manning’s defense successfully proved that the book “The Good Soldiers” by Washington Post journalist and author, David Finkel, who was previously embedded in Iraq, contained a verbatim transcript of the video “Collateral Murder” and that the book was published before the time-line of the charged offense against her.

At trial, Manning also explained:

“It is clear to me that Mr. Finkel obtained access and a copy of the video during his tenure as an embedded journalist. I was aghast at Mr. Finkel’s portrayal of the incident. Reading his account, one would believe the engagement was somehow justified as ‘payback’ for an earlier attack that lead to the death of a soldier. Mr. Finkel ends his account of the engagement by discussing how a soldier finds an individual still alive from the attack. He writes that the soldier finds him and sees him gesture with his two forefingers together, a common method in the Middle East to communicate that they are friendly. However, instead of assisting him, the soldier makes an obscene gesture extending his middle finger.

The individual apparently dies shortly thereafter. Reading this, I can only think of how this person was simply trying to help others, and then he quickly finds he needs help as well. To make matter worse, in the last moments of his life, he continues to express his friendly gesture– his friendly intent– only to find himself receiving this well known gesture of unfriendliness.”

Ethical Imperative

Another video found in Manning’s YouTube favorites playlist contains a emotive animation created by Joaquin Baldwin about a voodoo doll who “must find the courage to save his friends from being pinned to death.” In the video the voodoo doll sacrifices itself to save the life of its fellows.

The playlist also contains a satirical rap cartoon by Brad Neely about George Washington, the first president of the United States.

Evolutionary Psychology and Terrorism

Her favorites playlist is replete with videos on the topics of reason, evolutionary biology, the history of the cosmos, and talks by prominent scientists and atheists. While deployed to Iraq, Manning worked as a military intelligence analyst, who specialized in Shiite militias. At trial, Manning revealed that she is also an atheist and a humanist.

Two presentations by Dr. Andy Thomson, an evolutionary psychiatrist, explore the origins, history, psychology, and motives behind “suicide terrorism”. In one of his talks Thomson states that there has been more “suicide terrorism” in Iraq during the U.S. occupation than at any other time in modern history.

Thomson’s presentation also discusses the role that gender plays in violence and how religion “hijacks” the cognitive and “kin” psychology of individuals who conduct suicide terrorism.

In Iraq, Manning exhibited an intense interest in the topic of gender. Among the items found in her room was a scholarly treatise entitled, “Transexuals in the Military: Flight Into Hyper-masculinity” by George R. Brown, M.D., Captain, U.S. Air Force, which argues that “[c]urrent military policies, in association with the proposed hyper masculine phase of transexual development, may actually result in a higher prevalence of transsexualism in the military than in the civilian population.”

Prior to her arrest, Manning was diagnosed with gender dysmorphia by an Army mental health provider. Manning is currently being represented by her previous criminal defense attorney David Coombs and the A.C.L.U. in her legal battle to compel the Army to treat her for gender dysmorphia. Hormone Replacement Therapy is recommended by doctors to treat the condition.

In May of this year, Pentagon officials “who were not authorized to speak on the matter” leaked to the AP that the Department of Defense was planning to move Manning to a civilian facility, Coombs wrote:

“The military’s refusal to provide necessary medical treatment to Chelsea is flat out transphobia. Rather than deal with the reality that transgender persons are currently serving in the military, the military would seek to pawn off any responsibility for these individuals to other entities…Chelsea has been asking for medical treatment from the military for the past ten months. So far, the military has outright ignored her requests. The military absolutely needs to revisit its ‘policy’ on transgender medical care adapt it to 21st century standards. It cannot continue to bury its head in the sand any longer.”

Scientific Method and Politics

Her favorites playlist is imbued with leitmotifs found throughout the public record of her trial: from censorship, to the role of the scientific method in humanity’s search for its origins, to the role of reason and the ethical imperative in maters of justice and governance.

Two other videos in her favorites playlist are from the series “Welcome to the Universe” and display images of the cosmos with the following narration:

“Thankfully some have devoted their lives to discovering our place in the universe, and retracing the events that have shaped the cosmos into what we can see today. Their combined efforts have resulted in a scientific and beautiful history of all things…which traces our origins to the stars.”

The narrators continues:

“Although this knowledge is freely available, primitive religious myths and irrational practices such as astrology permeate our cultures to such an extend that a significant number of people cannot distinguish fact from fiction– and this belittles our species, because we fail to promote real knowledge and understanding worldwide.

In this series, I hope to show you the success of such ideas today, really amounts to nothing more than a failure of the imagination when compared with the true story of the universe as forged by actively seeking and studying evidence.”

During testimony given against her unlawful pretrial confinement at Quantico, where she was stripped of her underwear against the advice of brig mental health providers, Manning explained why she had instructed her defense counsel to only communicate with the press using text based and factual documents on his website. Manning said, “I am more of a scientific person. I like things to be more factual, and as objective as possible.”

At the time of Manning’s disclosures, the military was undergoing policy debates about the U.S. caused mass civilian causalities in Afghanistan and the effectiveness of Counter Insurgency operations. At trial, Manning stated the reason for leaking the low-level battlefield reports from the wars in Iraq and Afghanistan was to provide the American public with the kinds of facts that would enable such a debate:

“I believe that if the general public, especially the American public, had access to the information contained within the CIDNE-I and CIDNE-A tables this could spark a domestic debate on the role of the military and our foreign policy in general as well as it related to Iraq and Afghanistan.”

I also believed the 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 effected environment everyday.”

Manning’s theory that the American public was capable of such reasoning and deliberation is still very much being tested. Let’s hope, she is proven right.

Go to Manning’s YouTube Favorited Playlist