USG’s air strike conspiracy case not so air tight

In opening statements on the first day of the trial of Manning, military prosecutors alleged that the young intelligence analyst’s first unauthorized disclosure occurred within two weeks of his arrival in Iraq.

“The evidence will show that the first transmission of classified information that PFC Manning made was in late November 2009,” said Captain Joe Morrow, “and that transmission was the video charged in Specification 11 of Charge II.”

Unclassified Garani Video

Despite Morrow’s statement, the video in question is unclassified.

“Words cannot describe how terrible it was,” said a health worker who had witnessed the May 4, 2009 U.S. bombing that killed at least 147 women and children in the Farah Province of Afghanistan.

“There is indeed video from a B-1 bomber,” said then commander of CENTCOM, General David Petraeus to National Public Radio, “[w]hat it will prove is that the targets of these different strikes were the Taliban.” The Pentagon said it would release the video of the May 2009 bombing, but never has.

Not Guilty

On 28 February, 2013, Manning pled not guilty to the willful communication of the Garani video. It was the only espionage charge for which he did not plead to a lesser included offense.

In his formal plea and statement Manning said that his first offense occurred on January 5, 2010 for the unauthorized possession and willful communication of military reports concerning the war in Afghanistan — published by WikiLeaks as the Afghan War Diary on July 25, 2010.

Air strike not so air tight

The prosecution’s case casts Manning as a traitor– indiscriminately harvesting information for Julian Assange and WikiLeaks in willful disregard of the safety of military personnel and the national security of the United States. Manning will faces 149 154 years plus life as maximum punishment if convicted on all charges.

Manning’s defense strategy is as much about mitigating prosecutorial overreach as it is about reducing the 20 years of confinement he is exposed to by his current plea.

In March 2011, additional alleged criminal offenses including aiding the enemy were leveled at Manning. Superseding indictments with additional charges are a common 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 alleging that the earliest date of the charged offenses was November 1 and not November 19, 2009. By arguing at trial that Manning leaked the Garani video within days or weeks 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 and building their case for a criminal conspiracy with WikiLeaks.

Yesterday in court, military prosecutors stated that “evidence from WikiLeaks twitter feed that will be presented at trial” citing the tweet above. Military prosecutors also asserted that Manning’ admitted to Adrian Lamo that he leaked the Garani video.

What was not mentioned, however, was that when the time came to notify the court of his anticipated plea, defense recently suggested that Manning might plead guilty to unauthorized possession and willfully communication of the Garani 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.”

Military prosecutors also asserted in yesterday’s opening arguments in court that the CENTCOM SIPRnet SharePoint logs would “show the downloading of 334 files on 10 April 2010” and that “[t]he evidence will also show that none of the videos related to this investigation were downloaded on that day.”

But, at the pretrial in December 2011, Special Agent David Shaver, from the Army’s Computer Crime Investigative Unit, testified, that he could not say when the Garani air strike movie was put on the CENTCOM server.

Another agent from CCIU, Antonio Edwards, testified at the pretrial that Adrian Lamo had informed him in July 2010 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.

Today in court, military prosecutors did not ask Lamo about Katz, and Katz was not mentioned in the stipulation of testimony of Edwards read into the court record.

While military prosecutors said yesterday that the video found on Katz work computer “was a forensic match with the video charged in Specification 11 the BE22 PAX,” what prosecutors did not say was that the Garani video allegedly placed on Jason Katz’s work computer on December 15, 2009 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 November 1 time frame on the second charge sheet 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 a Department of Justice grand jury investigating WikiLeaks.

At the pretrial another agent said that the FBI was leading the investigation into Katz and at least seven civilians including the “founder, owners, or managers of WikiLeaks.

On March 26 a spokesperson for the U.S. Attorney for the Eastern District of Virginia at the Department of Justice confirmed to me in an email that the grand jury criminal investigation into WikiLeaks is ongoing.