Criminal Elements and Definitions for Wanton Publication and State Dept, CIA, FBI, and Classified Witnesses

Criminal Elements and Definitions for Wanton Publication and State Dept, CIA, FBI, and Classified Witnesses | US v Pfc. Manning

posted June 30, 2013

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

Elements

In order to find Manning guilty of this offense, the presiding military judge (Manning opted to be tried by military judge alone) must be convinced by legal and competent evidence beyond reasonable doubt:

Element (1) That at or near Contingency Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, the accused wrongfully and wantonly caused to be published on the internet, intelligence belonging to the United States Government, having knowledge that intelligence published on the internet is accessible to the enemy; and;

Element (2) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Definitions

Intelligence

Intelligence means any information that is helpful to the enemy and which is true, at least in part. To find the accused guilty of this offense, the government must prove beyond a reasonable doubt that the intelligence was given to and received by, the enemy.

Enemy

Enemy includes (not only) organized opposing forces in time of war, (but also any other hostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). (‘Enemy’ is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of t11e other.)

In January 2013, the Court took judicial notice that the U.S. “Department of State lists ‘al-Qa’ida’ as a foreign terrorist organization as of 8 November 1999. It lists ‘al-Qa’ida in the Islamic Maghreb’ as of 27 March 2002. It lists ‘al-Qa’ida in Iraq’ as of 17 December 2004. It lists ‘al-Qa’ida in the Arabian Peninsula’ as of 19 January 2010.”

Wrongful

Wrongful means without legal justification or excuse.

Wanton

Wanton includes ‘recklessness’ but may connote willfulness, or a disregard of probable consequences and thus describes a more aggravated offense. ‘Reckless’ conduct is conduct that exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved. The accused need not intentionally cause a resulting harm. The ultimate question is whether under all the circumstances, the accused’s conduct was of that heedless nature that made it actually or imminently dangerous to others.

Knowledge

Knowledge requires that accused acted with actually knowledge that intelligence published on the internet was accessible to the enemy. You may not find the accused guilty of this offense if you find that the accused should have known, but did not actually know this fact. Knowledge, like any other fact, may be proved by circumstantial evidence, including the accused’s training, experience, and military occupational specialty.

According to the Court’s ‘Draft Instructions‘ Ruling in November 2012,, “The Court tailored the definition of knowledge proposed by the Defense. The definition requires the fact finder to find beyond a reasonable doubt that the accused act with actual knowledge and not constructive knowledge.”

Caused to Be Published

Caused to be published means the action of the accused was a proximate cause of the publication even if it is not the only cause, as long as it is a direct or contributing cause that plays a material role, meaning an important role, in bringing about the publication. An act is not a proximate cause if some other unforeseeable, independent, intervening event, which did not involve the accused’s conduct, was the only cause that played any important part in bringing about the publication.

According to the Court’s ‘Draft Instructions‘ Ruling in November 2012, “The ’caused to be published’ instruction” stated above is taken from the proximate cause instruction currently in Judge’s Benchbook at 5-19.”

Prejudice to Good Order and Discipline & Service Discrediting

‘Conduct prejudicial to good order and discipline’ is conduct which causes a reasonably direct
and obvious injury to good order and discipline. “Service discrediting conduct” is conduct
which tends to harm the reputation of the service or lower it in public esteem.

With respect to ‘prejudice to good order and discipline,’ the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as prejudicial in some indirect or remote sense; however, only those acts in which the prejudice is reasonably direct and palpable is punishable under this Article.

With respect to ‘service discrediting,’ the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as service discrediting in some indirect or remote sense; however, only those acts which would have a tendency to bring the service into disrepute or which tend to lower it in public esteem are punishable under this Article.

Under some circumstances, the accused’s conduct may not be prejudicial to good order and discipline but, nonetheless, may be service discrediting…Likewise, depending on the circumstances, the accused’s conduct can be prejudicial to good order and discipline but not be service discrediting.

Elements and definitions sourced from the Court’s Draft Instructions in November 26, 2012.

Overview

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.”

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.” The Judge, however, ruled that evidence of actual damage is not permitted during the trial on the merits and is relegated to sentencing.

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 2011, while cross examining agent Mark Mander from the U.S. Army Computer Crimes Investigative Unit (C.C.I.U.) 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?

Mander: 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?

Mander: 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?

Mander: 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?

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

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

Mander: Not if he owned the site.

Defense has continued to argue this line at trial against the U.S. Government’s case for ‘Wanton Publication’. “The plan or state of mind of WikiLeaks has nothing to do with PFC Manning,” said military defense counsel, Captain Joshua Tooman, at trial concerning the U.S.G.’s assertion that two WikiLeaks tweets should be admitted as evidence for identification because the tweets showed the alleged plan of WikiLeaks to compromise U.S. military information and the alleged state of mind of WikiLeaks concerning the nature of the content military prosecutors allege Manning stole. The Court ruled that the tweets were relevant and admissible for identification purposes as circumstantial evidence with non hearsay exception.

OBL Stipulation of Fact

Military prosecutors will also use evidence obtained at the raid of Osama bin Laden in May 2011, in the form of a stipulation of fact. While the stipulation of fact is to be entered next week in court, the unclassified portion that we know of contains the following text:

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.

There may be a classified portion. Prosecutors argue that the “bin Laden evidence” confirms receipt by the enemy, that the information was made “accessible to the enemy.” The stipulation of fact if admitted may remove the testimony of a U.S.G. classified witness John Doe, who participated in the raid.

U.S.A.C.I.C Memo on WikiLeaks

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

Manning PowerPoint

Prosecutors have also used 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 is seeking 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.

State Department Witnesses

The Court admitted stipulations of testimony last week by military prosecutors from State Department witnesses concerning cables for use in the U.S.G.’s case against Manning for ‘Wanton Publication’ and ‘Aiding the Enemy’.

James Moore, Department of State

James Moore is Deputy Assistant Secretary Bureau of South and Central Asian Affairs at the Department of State. On June 27, 2013 the following unclassified redacted stipulation of testimony was read into the court record.

His unclassified redacted stipulation contained a list of the following charged cables:

Dean Pittman, Department of State

H. Dean Pittman, Principal Acting Assistant Secretary Bureau of International Organization Affairs, Department of State. The Bureau of International Organization Affairs is the primary interlocutor with the United Nations and is charged with advancing the President’s agenda and the national interests of the United States. On June 27, 2013 the following unclassified and redacted stipulation of testimony was read into the Court record.

The unclassified stipulation was read and listed the following charged cables:

Ambassador Stephen Seche State Department

Ambassador Stephen Seche, formerly United States Ambassador to Yemen, Bureau of Near Eastern Affairs (NEA), Department of State. The NEA deals with U.S. foreign policy and diplomatic relations with Algeria, Bahrain, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, Saudi Arabia, Syria, Tunisia, United Arab Emirates, and Yemen. Regional policy issues include the war in Iraq, Middle East peace, terrorism, weapons of mass destruction, and political and economic reform. On June 27, 2013 the following stipulation of testimony was read into the court record.

Seche had two sets of stipulations of testimony. One set relates to charged cables and another relates to uncharged cables. Two unclassified redacted stipulations were read into the court record.

Charged cables were listed in the first unclassified and redacted stipulation as follows:

Uncharged cables were listed in the second unclassified and redacted stipulation as follows:

Ambassador Don Yamamoto, Department of State

Ambassador Don Yamamoto is the former Principal Deputy Assistant Secretary within the Bureau of African Affairs, currently serving as Assistant Secretary of State for African Affairs, Department of State. On June 27, 2013 the following unclassified and redacted stipulation of testimony was read into the court record.

The unclassified and redacted stipulation listed the following charged cables:

Ambassador Marie Yovanovitch, Department of State

Ambassador Marie Yovanovitch is the Acting Assistant Secretary of State for European and Eurasian Affairs, in addition to her role as Principal Deputy Assistant Secretary, Department of State. On June 27, 2013 the following unclassified and redacted stipulation of testimony was read into the court record.

The unclassified and redacted stipulation listed the following charged cables:

Mr. Joseph Yun, Department of State

Joseph Yun is Acting Assistant Secretary for East Asian and Pacific Affairs, Department of State. On June 27, 2013 the following unclassified and redacted stipulation of testimony was read into the court record.

The unclassified stipulation listed the following charged cables:

C.I.A.

Further, the Court also admitted the stipulation of testimony from Ms. Catheryne Strobl at the CIA, concerning the two CIA Red Cell Memos and the 2008 U.S.A.C.I.C. WikiLeaks report, which are charged against Manning under Specifications 3 and 15 of Charge II, Article 134.

Classified Witnesses

As mentioned above the U.S.A.C.I.C. report will be used in the U.S.G.’s case against Manning for ‘Wanton Publication’ and ‘Aiding the Enemy’. In addition, at least two of three separate classified witnesses will have their stipulations of testimony presented to the Court next week about the CIA Memos and USACIC report.

F.B.I.

Finally, according to an unpublished pre-trial transcript by this author from May 21, SSA [Supervisory Special Agent] Alexander Pott [sp.], FBI is to testify in a closed session or have a stipulation of testimony entered by the U.S.G. in its case against Manning for ‘Wanton Publication’ and ‘Aiding the Enemy.’ It is possible that he would testify to what military prosecutors sought to take judicial notice of in January 2012: namely, “The United States FBI has named Adam Yahiye Gadahn as a “most wanted terrorist” and states he is associated with AI Qaeda.”