Overview of Charge of Wanton Publication and USG Classified Witnesses | US v Pfc. Manning

The language of “wantonly cause to be published on the internet intelligence belonging to the US government, having knowledge that intelligence published on the internet is accessible to the enemy” is an unprecedented charge in military law, and not tied to an existing federal criminal violation or punitive article of the Uniform Code of Military Justice. Manning’s defense calls it a “made up offense.”

Manning pled not guilty to “Wanton Publication” in February. If convicted he is exposed to a maximum punishment of two years confinement.

According to a bill of particulars from military prosecutors, Manning wrongfully and wantonly caused intelligence to be published on the internet “by leaking thousands of documents gathered from SIPRNET including several databases to the WikiLeaks organization.”

“Wantonly cause to be published” does not mean that Manning has to be the proximate publisher. The offense, however, is intended to proscribe and chill whistleblowers and publishers empowered by the Internet’s low cost, accessible means of distribution.

The offense of “Wanton Publication” interdicts the release of large datasets, which can be subsequently mined or modeled for revelations by digital journalists and organizations like WikiLeaks.

Defense has argued that the “lack of actual harm supports the view that any alleged disclosure of information was not wanton.” Defense also argued, that “[t]here is an issue of control if it be published at all, even if you give to a news organization– no guarantee that it would be published.”

At the Article 32 pretrial hearing in December in 2011, while cross examining an agent who was testifying about the FBI investigation of seven civilians including the “founders, owners, or managers of WikiLeaks”, Coombs asked:

Coombs: Whom else did you uncover doing wrongdoing?

Agent: Seven other civilians. The FBI is potentially involved. I do not know what the FBI has determined.

Coombs: Do they include the founders, owners, or managers of WikiLeaks? Was WikiLeaks in this case?

Agent: Yes they are involved in certain aspects.

Coombs: Is it your determination…would you agree that my client would have been unable to do this by himself?

Agent: Depends on charge. ‘Something by himself’ …other charges require interaction with others.

Coombs: Did my client possess the ability to upload from his cubical in Iraq?

Agent: Yes. He could have uploaded to multiple sites.

Coombs: Would he not also require the cooperation of others to post to (indecipherable)?

Agent: Not if he owned the site.

The government will use evidence allegedly obtained at the raid of Osama bin Laden in May 2011 in their case against Manning for “Wanton Publication”. Prosecutors argue that the “bin Laden evidence” confirms that the information was made “accessible to the enemy.”

The Government will also use a 2008 US Army Counterintelligence Memo entitled, “(U) WikiLeaks.org–An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?“, which was charged against Manning under the Espionage Act. Manning pled to the lesser included offense of 18 USC 793(e) for the USACIC report in February.

Prosecutors will also use 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 sought and obtained 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.

Manning has agreed to a stipulation of fact concerning the Osama bin Laden evidence in lieu of the testimony of a classified witness, Mr. John Doe.

The unclassified portion of the ‘stipulation of fact’ reads:

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.

The military judge will still need to rule on whether to allow the stipulation entry as evidence.

The following classified witnesses will testify for the government in their case against Manning for “Wanton Publication” as per a Court ruling at the May 21, 2013 Article 39(a) session:

  • James Moore, Department of State
  • SSA [Supervisory Special Agent] Alexander Pott [sp.], FBI
  • Dean Pittman, Department of State
  • Ambassador Stephen Seche State Department
  • Ambassador Don Yamamoto, Department of State
  • Ambassador Marie Yovanovitch, Department of State
  • Mr. Joseph Yun, Department of State

Ms. Catherine Stobel [sp.], from the CIA will also testify concerning the two CIA red Cell Memos and the 2008 USACIC WikiLeaks report, which are charged against Manning under Specifications 3 and 15 of Charge II, Article 134.

As mentioned above the USACIC report will be used in the government’s case against Manning for “Wanton Publication”. In addition, three separate classified witnesses, will testify about the CIA Memos and USACIC report. It is likely that these three special witnesses– whose identity and testimony will be closed in entirety– are original classification authorities for the documents and/or will testify in the government’s case against Manning for “Wanton Publication”.