Cracking the First Amendment: USG builds conspiracy into the trial of Manning

For over a year, in a soundproofed courtroom located in the confined wasteland of Fort Meade, the U.S. Army is prosecuting the most consequential and unprecedented leak trial of the digital age in secrecy and managed obscurity. A twenty-five year old whistleblower, Private First Class Manning is charged with indirectly aiding Al Qaeda for allegedly providing information to WikiLeaks, who published the information on the Internet. Prosecutors have recommended life in prison; but the presiding military judge has the authority to impose the death penalty.

At issue in the Manning trial is the danger posed to democracy and the rule of law by the government’s expanding control over information in the digital age; and the use of prejudicial prosecutions that turn whistle-blowing into treason and journalism into espionage or an act of war.

The Whistleblower Inquisition

Manning’s trial extends the Obama administration’s unmatched inquisition prosecuting unauthorized disclosures to the press employing a 1917 statute originally intended for spies. The Department of Justice argues that leaks to the press are a “greater threat to society” than when spies sell classified information to a foreign government, because “every foreign adversary stands to benefit,” according to documents in the espionage prosecution of Jeffrey Sterling, a former CIA employee accused of leaking classified information to a reporter at the New York Times.

Thomas Drake, a former senior executive at the National Security Agency, began disclosing unclassified information to The Baltimore Sun in 2006, detailing billions of dollars lost to fraud and waste. He was subsequently charged with espionage. On the eve of the trial, the government dropped its case, having already stripped Drake of his job and pension. Such prosecutions, says Drake, send “the strongest possible message to those who would dare hold up the mirror from within and without regarding government misconduct, fraud, waste, abuse, war crimes, and wrongdoing, while also sending the real message to the Fourth Estate that they cannot hide behind the First Amendment as protection or refuge when printing the same.”

Journalism on the Internet is an Act of War

Manning’s prosecution is also part of the government’s larger battle for control over information in the digital age; a battle waged, in part, against what Mike Rogers, Chairman of the House Permanent Select Committee on Intelligence, called the internet’s “culture of disclosure.”

Echoing Rogers’ concern, James Clapper, the Director of National Intelligence, declared WikiLeaks disclosures a current and projected counterintelligence threat to the national security of the United States — on par with corporate espionage, drug trafficking, and climate change. “From an intelligence perspective, these disclosures have been very damaging,” he said, warning of their “chilling effect” on the “information-sharing environment”.

Yet the “chilling effect” invoked by Clapper typically connotes the immeasurable harm to First Amendment rights and democratic governance caused by prohibitions on speech, association, and publication. WikiLeaks publication of censored material has greatly benefited the fourth and fifth estates by revealing and disseminating information about, for instance, mass extra-judicial assassinations by the Kenyan police; inept and corrupt banking practices that facilitated the Icelandic financial collapse; the cover up of U.S. secret cluster bombing in Yemen ; and Shell Oil’s infiltration of the Nigerian government.

Managing Obscurity at Fort George ‘Orwell’ Meade

In a case where the First Amendment and access to public information is vulnerable to chill or prohibition, neither the public nor press have had access to over 30,000 pages of court filings and rulings, or a transcript of the legal proceedings.

“Military confinement. That’s like a term of art,” said Captain John Haberland, the former legal spokesman for the Military District of Washington, which is responsible for convening an impartial trial for the accused, “but the practical effect. He is in jail.”

By the time of his trial on June 3, 2013, Manning will have been in pretrial confinement for 1,101 days– longer than any accused awaiting court-martial in the history of U.S. military law. At the next session, the court is expected to rule on whether the government has violated Manning’s right to a speedy trial.

For five and a half months, Captain Haberland did not disclose to the anemic and anesthetized press pool at Fort Meade that he was a former member of the prosecution. Captain Haberland’s emails, however, are part of the evidentiary record concerning Manning’s unlawful pretrial punishment at the Quantico Brig, where he was stripped of his clothing against the recommendation of mental health providers.

Through out proceedings, journalists and legal observers have complained that requests for press credentials have been arbitrarily denied or lost by the Military District of Washington. The “Army Times, gets easy access while those who fund and publicize Manning’s defense are either stonewalled or misled,” says Nathan Fuller, press coordinator and courtroom reporter for the Manning Support Network.

Incitement to Misinformation and Madness

The unfounded allusions of a government informant, Adrian Lamo, that Manning had leaked top secret material, was a major piece of documentation resulting in Manning’s pretrial confinement and led to calls by prominent members of Congress and the Executive for the death penalty for Manning; the designation of WikiLeaks as a terrorist organization; and the criminal prosecution of Julian Assange.

The information allegedly disclosed by Manning, however, was either already public, unclassified, improperly classified, or marked at the lowest levels of classification and widely circulated among federal employees, contractors, and consultants. The Washington Post reports that “nearly half a million government employees and contractors with security clearances” had access to the U.S. State Department cables allegedly leaked; and, 4.2 million federal employees, contractors, and consultants have security clearances for the highest level of charged information that is actually classified in the Manning case.

President Obama has said the information revealed in the WikiLeaks publication of the Afghan War Diary was already known. Prosecutors will have to prove that the charged information– including the unclassified cockpit video of the July 12, 2007 U.S. Baghdad Apache air strike that killed at least 12 civilians, including two Reuters journalists and wounded two children was closely held information related to the national defense. The Good Soldiers by The Washington Post journalist and author, David Finkel, published before the time of the charged offenses, contains a transcript of the unclassified video charged against Manning under the Espionage Act and known as Collateral Murder.

Secretary of Defense, Robert Gates, said a Department of Defense review determined that the publication of the Iraq War Logs and the Afghan War Diary– had “not revealed any sensitive intelligence sources and methods.” The government must prove the “disclosure could be ‘potentially damaging to the United States'” and provide “independent proof of at least potential harm to the national security” beyond mere classification, writes ) law professor and author, Geoffrey Stone.

In an attempt to bolster their case, prosecutors have prevented defense from presenting any evidence about the lack of actual damage from the alleged leaks at his trial, instead relegating it to sentencing. Reuters reported that government reviews of the release of Department of State “diplomatic cables caused only limited damage to U.S. interests abroad despite the Obama administration’s public statements to the contrary.” “We were told (the impact of WikiLeaks revelations) was embarrassing but not damaging,” a congressional official, briefed by the State Department, told the news outlet. The “Obama 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 official told Reuters.

‘State Religion of National Security’

Despite the First Amendment prohibition against any law abridging the freedom of the press and the confidentiality of sources afforded by reporter’s privledge, information sharing is now encourage and source protection sacrosanct for spooks in what Drake calls the “state religion of national security”; for the press and public, information about the workings of government is on a “need to know” basis, or else.

Author Chase Madar notes that “documents that Manning allegedly released don’t amount to even one percent of the 92 million items the government classified last year.” Defense will call former Ambassador Peter Galbraith, to testify how most of the information contained within the Department of State cables was open source intelligence collected from publicly available sources. Galbraith, says defense, will also testify how the cables were improperly classified.

Over-classification, real threat to national security

Government ceases to function properly when bureaucrats arbitrarily over-classify information hiding government waste, fraud, abuse, and crimes. According to the Brennan Center for Justice at NYU School of Law, over-classification is a threat to national security and democracy.

Prosecutors have sought to prevent defense from presenting any evidence about over-classification at Manning’s trial. Over-classification evidence is vital to Manning’s defense to impeach the government’s original classification authorities (OCAs)– government witnesses who will testify that the charged information was closely held intelligence related to the national defense whose unauthorized disclosure “could reasonably be expected to cause damage to national security.” Defense says it should be allowed to challenge the OCAs about their inherent bias, prejudice, or motive to fabricate or exaggerate their determination of probable damage caused by the release of the charged information– since the government is claiming it’s the victim of Manning’s crimes.

Against the government’s objection, Manning’s defense sought the testimony of Colonel Morris Davis, who resigned as the chief prosecutor for the Guantanamo Bay military commissions in 2007 over the use of evidence obtained by torture in terrorism cases. Davis will testify that the Guantanamo Bay Detainee Assessment Briefs (DAB’s)– charged against Manning under the Espionage Act and published by WikiLeaks as the GTMO Files– could not be used to the “injury of the United States or to the advantage of any foreign nation” because much of the information– including the names of individuals contained within– were already publicly released by Central Command (CENTCOM) through Freedom of Information Act requests (FOIA) and habeas corpus cases. The court is expected to rule on whether it will allow defense to present over classification evidence at the next session on February 26.

Osama bin Laden is Dead

Adding tragic irony to the government’s allegation of “probable harm” in the face of excluded evidence about the lack of actual damage from the alleged leaks; and the government’s attempt to block over classification evidence, while refusing to declassify any of the 300,000 pages of low-level classified, unclassified, or publicly available information allegedly leaked and “cause[d] to be published…on the internet” by Manning– and arguably WikiLeaks, The New York Times, The Guardian, and Der Spiegel— prosecutors have chosen to declassify only one set of documents obtained at the May 2011 raid of Osama bin Laden’s compound for use at trial in it’s case against Manning for aiding the enemy. The declassified evidence includes a letter from bin Laden to a member of Al Qaeda requesting Department of Defense information and a letter back to bin Laden attached to which were all the Afghan War Logs and “Department of State information”.

The government did not mention a video of Osama bin Laden reported by the AFP, recommending Obama’s War by Bob Woodward. Former constitutional lawyer and journalist Glenn Greenwald asks, why Woodward and his high level sources have not been similarly charged with aiding Al Qaeda. Writes Greenwald, “This question is even more compelling given that Woodward has repeatedly published some of the nation’s most sensitive secrets, including information designated “Top Secret” – unlike WikiLeaks and Manning, which never did.”

‘Finding *MORE* Detainees’ at the Printing Press

“[I]f there was a moment in which PFC Manning may have snapped, this would have been it,” said an unidentified male Army specialist about the alleged arrest of “Iraqis” at a printing press facility, according to a defense legal filing. In what was published as purported chat logs between a government informant, Adrian Lamo, and someone prosecutors allege is Manning, ‘bradass87’ describes an incident in which 15 Iraqi dissidents were arrested by the Iraqi Federal Police for printing ‘anti-Iraqi literature.’ When bradass87 had the ‘anti-Iraqi literature’ translated, he discovered it consisted of a scholarly treatise on public corruption in Prime Minister Nouri al-Maliki’s cabinet, entitled, “Where did the money go?” Informing his command that the detainees were actually dissidents, a conscience afflicted bradass87 writes he was told “to shut up and explain how we could assist the FPs [Iraqi Federal Police] in finding *MORE* [sic] detainees.”

The mission in Iraq was to train the Iraqi Federal Police, testified Captain Steven Lim, the highest ranking intelligence officer (S2) in the 2nd Brigade Combat Team, 10th Mountain Division. The partnership between the 2 BCT, 10 MTN Div. and the Iraqi Federal Police included both intelligence and information sharing. Computers in the Sensitive Compartmentalized Information Facility (S.C.I.F.) at Forward Operating Base (F.O.B.) Hammer, Iraq– where Manning worked– were equipped with CD R/W drives, solely “to share information with Iraqis,” testified the assistant S2, Captain Casey Fulton.

In the wake of the WikiLeaks publication of the Iraq War Diary, Amnesty International and then United Nations Special Rapporteur on Torture, Manfred Nowak, urged President Barack Obama to order an investigation into the complicity of U.S. forces in handing over detainees to Iraqi Security Forces who subsequently tortured them. The Guardian reports that, “U.S. authorities failed to investigate hundreds of reports of abuse, torture, rape and even murder by Iraqi police and soldiers whose conduct appears to be systematic and normally unpunished.” “[E]verything started slipping after that,’ bradass87 allegedly writes in the purported chat logs, ‘i [sic] saw things differently […] i [sic] was actively involved in something that i [sic] was completely against.”

Knowledge cum Motive and Aiding the Enemy

Prosecutors say they don’t need to prove that Manning intended to give intelligence to Al Qaeda to convict and sentence him to life in prison or to the death penalty for aiding the enemy. Judge Lind agreed, ruling that aiding the enemy is a general, and not a specific intent crime. The prosecution is only required to prove that Manning had actual knowledge or that he was clearly cognizant of the fact that he was giving intelligence to Al Qaeda through the WikiLeaks website. “For the death penalty,” lead civilian defense counsel, David Coombs, told Judge Lind, “you cannot have a reckless standard.” “Our society values life more than that,” said Coombs, “[It’s] unfortunate that we are the test case [for ‘aiding the enemy’ indirectly] through a third party.” Captain Morrow of the prosecution retorted, “Reckless is punishable by death for a sentinel,” referring to Article 113 of the Uniform Code of Military Justice (U.C.M.J.) for the misbehavior of a sentinel or lookout. “That offense doesn’t have First Amendment issues.” said Judge Lind. 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.

Prosecutors will likely base Manning’s alleged knowledge on a 2008 PowerPoint he authored about operational security risks, while training to be a military intelligence analyst at Fort Huachuca, Arizona. Prosecutors say Manning “was taught that you have to be careful because many enemies have access to the internet.” Prosecutors will also presumably use the 2008 low level classified Department of Defense counterintelligence analysis report entitled, “ – An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?” that Manning allegedly leaked to WikiLeaks and for which he is charged with espionage.

‘Wantonly Causeto be Published’ and Aiding the Enemy

The language of “cause to be published on the internet intelligence belonging to the U.S. government, having knowledge that intelligence published on the internet is accessible to the enemy” is an unusual charge against Manning and dovetails right into aiding the enemy. Military prosecutors say, the ‘evil’ of the offense is unrelated to any current existing federal criminal statue or punitive article in the U.C.M.J. Coombs calls the charge a “creation of the government” and a “made up offense.” “There is an issue of control if it be published at all,” says Coombs, “even if you give [information] to a news organization [there’s] no guarantee that it would be published.”

While prosecutors say the offense is unlike any existing federal statute or U.C.M.J. punitive violation, they assert that the ‘seriousness’ of the charge is analogous to espionage. Similar language is found in the federal indictment of Sterling for espionage– for the unauthorized disclosure of national defense and classified information: “Defendant Sterling’s Attempt to Cause the Disclosure of Classified Information through the Publication of a Newspaper Article,” reads Sterling’s indictment; and, Sterling “did willfully cause to be communicated, delivered and transmitted the same information to any person of the general public not entitled to receive said information, including foreign adversaries, through the publication, distribution and delivery of Author A’s book”– who The Washington Post reports is The New York Times journalist and author, James Risen.

The term ’cause to be published’ means Manning doesn’t have to be the proximate publisher, but the question remains why military prosecutors avoided charging Manning with espionage, instead linking the language of ’cause to be published’ to the language of ‘aiding the enemy’. Jennifer Elsea, a legislative attorney who provides policy and legal analysis to committees and members of the U.S. Congress writes that aiding the enemy is “one of two offenses under the UCMJ that apply to ‘any person,’ rather than those subject to the UCMJ, “which raises the possibility that civilians who are not connected with the military could be similarly charged.” “Such a prosecution”, writes Elsea, “would likely be subject to constitutional challenge.”

Bypassing the First Amendment, Cracking the Constitution

The Obama administration’s attempt in a strategy document to re-frame WikiLeaks by associating the media organization with cyber-crime and intellectual property theft for the publication of “computer files provided by corporate insiders indicating allegedly illegal or unethical behavior at a Swiss bank, a Netherlands-based commodities company, and an international pharmaceutical trade association” is an attempt to bypass such constitutional challenges to prosecuting publishers.

When asked by the military judge if the prosecution “would have charge the case the same way if the journalistic organization was The New York Times” — and not WikiLeaks, military prosecutor, Captain Angel Overgaard, conferred in whispered tones with lead military prosecutor, Major Ashden Fein, returned to her podium, bent into the microphone, and said, “Yes, Ma’am.” Judge Lind asked the prosecution, if “the nature of WikiLeaks [is] somehow different from the New York Times?” Overgaard didn’t answer, instead saying it’s “not relevant” if “WikiLeaks is a legitimate journalistic organization,” adding, however, that the prosecution intends to call a witness during sentencing and possibly at trial “to characterize the WikiLeaks organization” in it’s case against Manning for aiding the enemy.

Over the prosecution’s objection defense is seeking the testimony of Professor Yochai Benkler , law professor and co-director of Harvard’s Berkman Center for Internet and Society, to testify 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 would 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 would go straight to defending Manning against the charge of aiding the enemy and the reckless disregard language found in “wantonly cause to be published on the internet intelligence,” said Coombs. “News organization 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.

The Garani Video

In March 2011, additional alleged criminal offenses including aiding the enemy were leveled at Manning. Superseding indictments with additional charges are a common prosecutorial scare tactic intended to pressure defendants to plea out, writes criminal law scholar, Professor Orin Kerr, in a post about the recent suicide of Aaron Swartz.

The March 2011 charge sheet was accompanied by an amended time line. Prosecutors were now alleging that the earliest date of the charged offenses was November 1 and not November 19, 2009. By arguing at trial that Manning leaked an unclassified video of a May 2009 U.S. bombing in the Farah Province of Afghanistan, which massacred 86 to 140 civilians, including women and children, within days of his arrival in Iraq to on or about January 8, 2010 the day WikiLeaks tweet

prosecutors began laying groundwork against Manning’s whistle-blower defense.

When the time came to notify the court of his anticipated plea, defense recently suggested that Manning may not plead guilty to espionage for the unclassified Garani video, but that he might plead guilty to unauthorized possession and willfully communicating the video in April 2010, and not November 2009 as charged. Defense had already suggested this in an early 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 recent court arguments concerning Manning’s proposed plea, the prosecution, however, refused to budge on a November 2009 offense date. Major Fein even alleged that the government had forensic evidence for both a November 2009 and an April 2010 transmission of the Garani video, and that prosecutors could still charged two separate criminal acts– but decided to only charge Manning once. The defense maintained that only one transmission’ occurred.

Prosecutorial Powers and Bolstering Conspiracy

At Manning’s pretrial an agent from the Army’s Computer Crimes Investigative Unit (CCIU) testified that Adrian Lamo had informed them in July that he was aware of someone on the Internet that he did not know, who was allegedly attempting to decrypt the Garani video for WikiLeaks. The FBI, said the agent, was directing the investigation into Jason Katz, an employee at Brookhaven National Laboratory between February 2009 and March 2010, 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, however, did not forensically match the Garani video allegedly found on Manning’s workstation. “Was this the same video or a similar video to that seen on the .22 computer?,” Coombs asked the agent on cross examination. “No, Sir,” replied the agent. “Different video?” asked Coombs. “Different video, Sir,” said the agent.

The amended time line also 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.

Most striking, given the lack of forensic evidence presented by the prosecution to the court or defense; in addition to the number and grievous nature of the charges against Manning; prosecutors are likely sticking to a November 2009 offense date in order to pressure Manning to plea out to bolster a conspiracy case against civilians being investigated by the Department of Justice, including, according to one agent at the pretrial, the “founders, owners, or managers of WikiLeaks”.