Is The Military Fabricating Testimony in the Bradley Manning Trial?

Manning's former supervisor
Jihrleah Showman
Drawn by Debra Van Poolen

Activist Post

Nathan Fuller at Bradleymanning.org has given us gracious permission to reprint his daily firsthand reports, which you can find below highlighted by date. Summaries, commentary, and videos provide a comprehensive chronicle of events from start to finish.

Summary

Some rather crazy testimony came from Bradley Manning's former supervisor on Day 20. So crazy that the defense seems to be implying that it's outright fabricated ... including her recount of a "UFC" type fight that occurred between the two. Add this to her statements that the American flag "meant nothing to him," and she thought "in her gut" that Manning could have been a spy, while throwing in a slur that he appeared "faggotty" ... the prosecution seems to be going off the deep end trying to support their claims that he is enemy #1.

But it got even crazier in the afternoon session, with a witness claiming memory loss, the government trying to change the charges, the defense calling for a mistrial, and more.  Nathan Fuller's full report below is a must-read.

Military struggles to support claim of Manning’s ‘disloyalty’; Govt tries to change charge sheet: trial report, day 20

By Nathan Fuller, Bradley Manning Support Network. July 19, 2013. 

Bradley Manning’s former supervisor at Ft. Drum and then in Iraq, Specialist Jihrleah Showman, testified this morning that in a counseling session, Manning said that the American flag “meant nothing to him” and that he felt no “allegiance to this country or any people,” but that she never even wrote the statement down.

The government elicited that allegation in very brief rebuttal questioning, after which defense lawyer David Coombs spent nearly two hours drawing out her support for that statement, why she failed to document it at the time, and why she didn’t report it when first questioned for this investigation, implying throughout that Showman fabricated the allegation after Manning’s arrest. Coombs asked if Manning actually said that one shouldn’t have “blind allegiance” to a flag and shouldn’t be a blind “automaton,” which Showman denied. 

Showman said that in an August 2009 counseling session in which Manning’s body language implied he was merely “putting up” with the conversation, she asked him why he joined the military. When he gave a boilerplate reason about wanting to broaden his knowledge and experience, she said she tapped the flag pin on her shoulder and asked what it meant to him, and that’s when she alleges Manning said he felt no allegiance to the U.S. 

But she never wrote the statement down. Despite summarizing several other counseling sessions, in which she documented lesser details such as Manning’s “excessive caffeine consumption,” smoking habits, and tardiness to ‘formulation,’ she didn’t write down his statements of purported disloyalty. Showman said this was because she reported the incident to her direct supervisor, MSGT Paul David Adkins, and that he said he’d take care of it. She also said that he instructed her not to document the statement, because he was handling it from there.

Showman also said that in June 2009, she’d recommended Manning for ‘soldier of the month.’ This calls into question another claim she made, that before deploying to Iraq with him in October 2009, she had a “feeling in [her] gut” that Manning was a “spy.” That feeling apparently didn’t compel Showman to talk to anyone superior to Adkins, as he was directly above her in the chain of command, even though the unit commander had an “open-door policy.” 

Showman was interviewed upon Manning’s arrest on May 27, 2010, by Army CID investigators, and she didn’t mention the ‘disloyalty’ statements then. However, in a sworn statement a month later, the comments were included.

Coombs elicited evidence that may suggest Showman had a bias against Manning, which would further undermine the reliability of her claims. She once referred to him as “faggotty,” but while she suspected he was gay, she says the comments were about his inability to do a lot of pushups. She testified that the two got along, despite an incident in which she told him Manning to “fix your shit before you fix mine,” and then he punched her in the face. Showman held him in what she called a UFC move, a “guillotine” chokehold, and pinned him down. 

Coombs played video from the documentary We Steal Secrets, in which Showman said that she was the “last person he probably should’ve punched,” and an audio interview in which she said someone who gave classified information to a non-American source was “not a whistleblower,” despite having already testified in Manning’s pretrial hearing in December 2011 and suspecting she might testify again. Showman would not have been allowed to discuss the case, and in response to questioning about the audio interview she said she wasn’t referring to Manning specifically but about the issue generally. 

Balonek and Adkins can’t confirm Showman’s story 

In the afternoon testimony, Chief Warrant Officer 1 Kyle Balonek, who was in Ft. Drum with Manning and Showman’s unit, though not in August 2009, said he never heard about the statement, and if it were made, he’d have expected it to be written down. He also never recalled Manning making any anti-American statements.

In a bizarre and protracted afternoon session, MSGT Adkins was called to testify about whether he recalled such statements being reported up the chain. He first said he didn’t recall Manning ever making any disloyal comments or such comments ever being reported to him, and then said that he had been diagnosed with memory loss, something of which Coombs was not aware. His answers from then on where very slow, and he largely responded that he didn’t remember. He eventually confirmed in prosecution questioning that he did sign a statement in 2011, written by his lawyer, in which he said Showman had testified correctly (it didn’t say when) that Manning had made disloyal comments and that they were reported up the chain. The defense established, however, that that statement was to be sent to an appeal board in response to his reduction in rank.

Responding to defense questioning, Adkins reviewed his three sworn statements from from June 10, July 3, and July 15, 2010, in response to the Army CID investigation into Manning’s disclosures, and confirmed that nowhere in any of them did he reference disloyal or otherwise anti-American comments. He also signed a sworn statement on April 29, 2011, just two months before the reduction appeal statement, which made no reference to any disloyal statements from Manning.

Government moves to change its charge sheet

The government responded to the defense’s argument that it mischarged Manning in saying he stole entire CIDNE-I and –A and USF-I databases instead of documents within them. Following some questioning, prosecutors said they wanted to amend the charge sheet to say Manning stole “portions” of those databases, to change three of the specifications (4, 6 and 16). A minor change is allowed, but a major charge is not – the defense argues this change is major because it misled Manning about what he was charged with and because the defense can’t now go back and re-question government witnesses about the value of that property.

Coombs said that if the judge doesn’t find the change to be major and doesn’t acquit Manning of the greater “stealing government property” charges, the defense would move for a mistrial on those charges.

Joshua Ehersman on Iraqi Federal Police incident

Chief Ehersman was recalled briefly to the stand to confirm that the IED incident the defense recounted in opening arguments happened in December, which he did, but he could not confirm that fellow soldiers were celebrating about it.

Recess until closing arguments on Thursday, July 25

The judge will rule on the theft charges on the morning of Thursday, July 25, and then the parties will make closing arguments. Then the judge will go into deliberations, which could take days. Sentencing is scheduled to begin July 31, but will be pushed back if she needs more time to deliberate.

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Judge Denise Lind has denied all motions to dismiss the various charges against Bradley Manning. It's a move that Amnesty International has called a "travesty of justice."

The defense reasoned that the first charge of computer fraud simply did not apply to the type of use and access that Manning was permitted. The second charge of "aiding the enemy" was countered by the defense as based on circumstantial evidence and that the charge itself sets a dangerous precedent by suggesting that information given to the press outlets can be framed in a way to establish a link to any enemy of the U.S. who happens to access that information. Other charges were also litigated.

While Judge Lind did say a not guilty verdict could be rendered at the conclusion of the trial, she allowed the prosecution's rebuttal to proceed with three witnesses being recalled in the afternoon session.

You can read the legal reasoning behind Judge Lind's ruling in the full day-19 court report below. We also recommend reading Stephen Lendman's new article, Bradley Manning: Aiding the Enemy Charge Sticks.

Judge refuses to dismiss Aiding the Enemy and Computer Fraud charges against Manning: trial report, day 19

By Nathan Fuller, Bradley Manning Support Network. July 18, 2013.

Ruling on two defense motions to direct not-guilty verdicts, Judge Denise Lind refused to throw out the ‘aiding the enemy’ and Computer Fraud charges against Pfc. Bradley Manning. The defense filed the motions at the conclusion of the government’s case, before it began with its own witnesses, arguing that the government had failed to provide evidence to support its charges. Rules for Court Martial instruct the judge for this type of motion to view the evidence in a light most favorable to the prosecution. The judge ruled that the evidence the government provided was sufficient to not throw out the charges at this time, but at her final verdict she will weigh both government and defense evidence and could still find Manning not guilty. 

Judge Lind said that the prosecution established that in his training as an intelligence analyst, Manning learned that the enemy uses the Internet to attempt to obtain classified information and to keep such information secret. He plotted U.S. military activity, she said the government proved, and knew that the enemy would attempt to do the same. That evidence, she ruled, could tend to establish that Manning knew he was dealing with the enemy. (See here for why that evidence is weak, circumstantial, and therefore could set an extremely dangerous precedent.)

For the computer fraud charge, she ruled that the government established that Manning used unauthorized software (the automated downloading program Wget), and that her court instructions dictate that restrictions on access include “manner of access.” This evidence was enough, when viewed (per her instructions) in a light most favorable to the government, to not dismiss the charge at this time.

Stealing government property charges

The parties then litigated the defense’s other two motions to direct not-guilty verdicts, on the charges that Manning stole government property. The defense argues, as laid out here, that the government mischarged Manning in saying that he stole “databases” instead of saying the stole copies of some of the records in a database and the information contained within.

The first distinction is that Manning took copies, not original records, and therefore never deprived the government of the information. The second is that Manning stole records, and the information within, not the full databases themselves. He didn’t take the infrastructure that makes the database searchable and interconnected, so when the government worked to establish the value (the federal statute requires the stolen property be worth more than $1,000) of the database and cost of producing it, they were proving what they charged but not what Manning ever had in his possession. Defense lawyer David Coombs used the analogy of stealing merchandise from WalMart: if he stole a sweater, he wouldn’t be charged with stealing WalMart. Even if he took all of the merchandise in WalMart, he wouldn’t be charged with stealing the bricks and mortar of the store, and the value of the employees wouldn’t be used to prove the charge, as the government has essentially done in this case.

The government contends that it charged correctly, and that information contained in a record is inherent within that record. Prosecutor Capt. Von Elton said that charging Manning with a “thing of value” put him on notice that he would be charged with the information within. He also said that the distinction regarding “copies” doesn’t apply, because digital records can exist in multiple locations simultaneously, which the defense disagreed with thereafter.

Recess, rebuttal

The government recalled defense witness Chief Warrant Officer Joshua Ehersman to testify about his memory of which types of programs and files soldiers were authorized to install on or run from their work computers. He said he’d tried to install programs but didn’t have administrative privileges to do so, and he ran them from a CD while waiting for contractor Jason Milliman to install them for him.

The defense established that other soldiers used music, movies, and games, and that Milliman, as a civilian, didn’t have authority over soldiers’ use.

The government then recalled Milliman, who said that there was no physical restriction from running an unauthorized program on the work computers from a CD. The defense established that he was somewhat lax about using programs: if an unauthorized program was used and didn’t interfere with other programs or files, it was generally allowed.

This all goes to whether Manning’s use of Wget, with which he automated downloading of State Dept. cables, was authorized, and whether such use constitutes exceeding his unauthorized access.

David Shaver on Wget

Forensic examiner and special agent David Shaver returned to the stand to explain how Wget works, and how Manning used it. He said Manning’s computers are the only two military machines on which he’d ever seen Wget. Shaver found Wget in the ‘Prefetch’ area (used to help programs run faster after their first use) of Manning’s My Documents folder.

Wget is a command-line program, which means users type to run it instead of using a mouse. Shaver testified that he saw evidence that Manning copied the names of State Dept. cables, pasted the names to direct Wget to download the cables in bulk.

The defense established that it’s quite possible that Manning had the Net-Centric Diplomacy (State Department database) open while Wget was running – which goes to whether Wget gave him any new access, or helped him do something he couldn’t do otherwise (only much slower).

The defense also established that the Army was in possession of software called Host Based Security System, which could have blocked individual users from using self-contained executable files (like Wget), but did not use it.

This testimony goes specifically to whether Manning’s manner of accessing the cables constituted “exceeding authorized access,” which would violate the Computer Fraud and Abuse Act, a ten-year offense.

The government attempted to admit as evidence an email purportedly from Manning to a New York Times reporter. The defense objected, calling it irrelevant, and the government explained that it was sent April 8, 2010 (three days after the Apache video), and said it proved that Manning tried to go to the Times. Prosecutors contended that that fact showed Manning knew what a legitimate news organization was, allowing the court to infer that WikiLeaks by contrast was illegitimate. Judge Lind said she didn’t buy the connection and didn’t allow the email.

Court is now in recess. Tomorrow the government will resume with its rebuttal case at 9:30am, with two more witnesses. Then the defense may present a surrebuttal case in response.

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Summary

The defense has finished calling witnesses, and Bradley Manning will not testify. Their focus has moved toward dismissing the charges against him. The first charge is that of computer fraud, with the distinction being made between use and access. That legal distinction is recounted below.

The second charge is the most serious: aiding the enemy. The defense has moved to dismiss based on the fact that there is no evidence to suggest that Manning was using WikiLeaks as an intentional conduit to al Qaeda. The defense recounted the circumstantial evidence that has been offered, but nothing close to tangible proof that Manning was anything but negligent, perhaps. The defense is arguing that the government is attempting to draw a link between giving information to the press and directly aiding enemies of the United States. If such a conclusion is permitted, it will greatly impact the public's right to learn of the findings of investigative reporters and whistleblowers. The government even stated that they would have charged Manning the same way if WikiLeaks had instead been the New York Times. This is something we should keep in mind as the Edward Snowden/NSA spying story moves forward, as documented by The Guardian's Glenn Greenwald.

Judge Lind is expected to rule on these two charges in Thursday's session, when the government's rebuttal case will begin. The full court report from Day 18 can be read below.

Arguments over defense motions to dismiss, rebuttal case on Thursday: trial report, day 18

by Nathan Fuller, Bradley Manning Support Network

1030 Computer Fraud charges

The defense moved to dismiss the charge that Bradley Manning committed computer fraud by downloading the State Department’s diplomatic cables from the Net-Centric Diplomacy (NCD) database. The government contends that Manning violated 18 U.S.C. 1030 by “exceeding” his “authorized access” with the use of Wget, a program that automates downloading of files.

In oral argument, defense lawyer David Coombs explained that the government was attempting to turn a use restriction into an access restriction, the latter of which constitutes computer fraud and the former of which the judge has previously ruled she would not consider. The defense says that it’s a use question because, as government witness and forensic expert David Shaver testified, Wget doesn’t give a user any more access than he would have otherwise. It merely changes the manner in which the user downloads that information.

Judge Lind asked, “Did he access the cables using Wget, or did he already have access to the cables & used Wget to download them?”

The government conceded that Manning didn’t use Wget to circumvent any type of firewall, but said that because the NCD doesn’t have a process for exporting cables in bulk, the restriction is implied. Prosecutors said that merely using Wget constitutes unauthorized access, because it allowed Manning to retrieve cables faster than he could have without it.

Aiding the enemy charge

The defense moved to dismiss the aiding the enemy charge on the grounds that the government presented no evidence to show that Manning had “actual knowledge” that giving information to WikiLeaks meant giving it indirectly to the enemy. He said that at best, prosecutors might have showed that Manning had been “negligent” or “should have known” that Manning knew al Qaeda could access WikiLeaks-released cables, but nothing to show the required actual knowledge.

Coombs recounted the circumstantial evidence of Manning’s knowledge of WikiLeaks, the two tweets and the 2009 Most Wanted Leak list, that the government hasn’t proven that the soldier ever saw. He addressed the 2008 Army report on WikiLeaks’ potential threat, noting that it listed whether the enemy visited WikiLeaks.org as an “intelligence gap” and was treated as something to “presume,” not something the Army had “actual knowledge of. Whether Manning “should have known” something is a dangerously low burden of proof for a capital offense, Coombs said.

Coombs argued that convicting Manning with such little, circumstantial evidence would set an extremely bad precedent, that the court should avoid the “slippery slope of punishing people for giving information to the press” and not “put the hammer down on any whistleblower” who wants to get information out.

Responding to the defense’s argument, prosecutors said that as an intelligence analyst Manning had specific knowledge that the enemy would view WikiLeaks’ site. But the defense pointed out that this would mean he should have been expected to know more than his superiors and those who trained him, who either hadn’t heard of WikiLeaks before Manning’s arrest or didn’t list it as a site known to be visited by the enemy.

The government reaffirmed that it would have charged Manning the same way had he leaked to the New York Times instead of WikiLeaks.

Addressing the issue of having only circumstantial evidence of Manning’s knowledge, prosecutors said that it would be nice if they had a taped confession, but they had to work with what they have.

But Coombs said, actually, we do have a taped confession: his chats with Adrian Lamo, wherein Manning professes a desire to make the information public, to spark debates and reforms, and says nothing about al Qaeda or letting the enemy access state secrets.

Judge Lind will rule on these two motions for dismissal on Thursday, but we’ve yet to hear oral arguments for the 641 “stealing government property” charges.

Government to make rebuttal case

The parties argued over the government’s potential rebuttal case, and ultimately the judge allowed for several witnesses to be recalled.

The prosecution will recall Specialist Jirhleah Showman to rebut testimony from Lauren McNamara regarding Manning’s “noble motives.” It will recall Specialist Marshal to rebut testimony from Sgt. Sadtler regarding Manning’s motives, and claimed that Marshal would testify that Manning said, “’I'd be shocked if you were not telling your kids about me 10 to 15 years from now.”

They’ll recall Special Agent David Shaver to discuss emails that Manning allegedly sent to media before the disclosures, to rebut portions of Yochai Benkler’s testimony, and to discuss a SigAct (war log report) from March 2010 that they say rebuts testimony from Sgt. Sadtler, regarding the timing of the Iraqi Federal Police incident, in which Baghdad police detained dissidents for distributing literature.

Finally, they’ll recall Mr. Milliman, the contractor who authorized the installation of programs to the work computers in Iraq, to discuss whether it was both physically restricted and unauthorized to run certain programs on work computers from a CD.

The government’s rebuttal case will start Thursday.

Judicial notice of David Finkel’s entire book

Prosecutors want the judge to take judicial notice of David Finkel’s entire book, The Good Soldiers. The judge previously took notice of the portion in which Finkel transcribes the Collateral Murder video incident, which Manning cited in chats with Lamo as evidence that the video was out in the public to some extent (which goes to whether the video was “closely held,” relevant for the Espionage Act charges). Prosecutors want the whole book admitted because it contains, they claim, evidence for Manning’s knowledge about releasing certain classified information.

The defense says there’s no evidence that Manning read the whole book, and will bring the excerpt from Amazon.com it says Manning read.


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Summary

Day 16 held revelations from Col. Morris Davis that the GITMO files were not only publicly available, but that the Pentagon itself had released more information that could theoretically "aid the enemy." He referred to the supposedly damaging information that Manning released as "baseball cards." Two security experts followed, and both asserted that a great percentage of the information unveiled was also available from open sources, thus calling into question the deliberate intent of Manning to reveal secret information that could do severe damage to the United States.

Day 17 featured Harvard Law Professor and scholar, Yochai Benkler, who illustrated how the nature of Internet journalism has changed, especially since the advent of WikiLeaks. He asserted that WikiLeaks must be viewed as a valid news source, rather than a subversive link to al Qaeda and other purported enemies of the United States. His testimony was fascinating, as he is one of the leading voices on the relatively short history of WikiLeaks. He highlighted that when WikiLeaks was exposing corruption in Europe and elsewhere, it was hailed as a model of journalism and transparency. However, once the focus shifted to the U.S., it was decried as essentially being terrorist sympathizers. Beyond that, the government's treatment of Manning was presented as consistent with a strategy of intimating other potential whistleblowers. Benkler asserted that source documents open to full review is the only way to independently verify data; the numbers of which have been in conflict with official government releases. Overall, it was a passionate defense of WikiLeaks and should be read in its entirety at the reports below which link to court transcripts.

The defense has rested its case after just three days of testimony, and Bradley Manning will not testify. The case resumes on July 15th with possible rebuttals, or closing arguments could begin on the 16th.

Manning’s lawyers rest case, with Yochai Benkler’s stirring defense of WikiLeaks: trial report, day 17

Read the transcript of today’s session here and all previous courtroom reports here.

By Nathan Fuller, Bradley Manning Support Network. July 10, 2013.

On the final day of Bradley Manning’s defense’s case, Harvard Law Professor and renowned scholar Yochai Benkler testified about how the Internet changes journalism’s function in a democracy, how WikiLeaks was viewed over time, and why WikiLeaks should be considered a legitimate news organization, devoted to exposing corruption.

Benkler’s testimony is crucial to undercutting the government’s core argument that Bradley Manning intended to give documents indirectly to al Qaeda by passing them to WikiLeaks. Whereas the prosecution has spent weeks characterizing WikiLeaks as a reckless collective that terrorists were known to visit, Benkler said, “WikiLeaks played that critical role of that particular critical component of what muck-raking and investigative journalism has always done.”

Professor Benkler discussed his Harvard Civil Rights-Civil Liberties Law Review article, “A Free Irresponsible Press: WikiLeaks and the Battle Over the Soul of the Networked Fourth Estate,” the most widely cited academic article on WikiLeaks. He was qualified as an expert on the ‘Networked Fourth Estate,’ a term he coined to explain how technological advances have changed journalism’s ability to check our three main branches of power.

In his research and in his testimony, Benkler recounted WikiLeaks’ origins, early leaks, journalistic awards, and major 2010 leaks, focusing largely on how perceptions of WikiLeaks changed over time.

When WikiLeaks first became known to the public, it was questioned for its ability to authenticate documents. But as it published documents on corporate corruption in Europe, rampant censorship in China, and extrajudicial killings in Kenya, WikiLeaks came to be seen as a legitimate news organization and whistleblowing resource.

Benkler started researching WikiLeaks in April 2010, upon the Collateral Murder release, and continued to track news coverage of the group throughout that year. He noticed significant shifts – in small part after the July 2010 Afghan War Log release, much more so after the October 2010 Iraq War Log disclosure, and finally upon the November 2010 State Department cable publication, government officials and media organizations shifted from portraying WikiLeaks as a transparency-motivated news organization to painting it as an anti-American, terrorist-affiliated website with blood on its hands.

The government objected to questioning about anything after May 2010, contending that what happened after Manning’s disclosures is irrelevant to his knowledge at the time he released documents. But defense lawyer David Coombs explained that the government had charged Manning with aiding the enemy much later (March 2011), with evidence of the enemy’s receipt from even later (May and June 2011).

Coombs argued that it was only after the government overreacted wildly to the disclosures and characterized WikiLeaks this way that the enemy asked for WikiLeaks-released documents.

Benkler said that he believed Manning’s abusive treatment at Quantico was consistent with the government’s core tactic, to undermine WikiLeaks and to “increase the fear, at it were, or the constraint on potential leakers.”

Iraq war logs’ value

In cross-examination, the government attempted to distinguish WikiLeaks from traditional media outlets.

“Would you agree mass document leaking is somewhat inconsistent with journalism?” prosecutor Capt. Morrow asked.

“No. Why would I agree with that?” Benkler replied

Benkler said that as long as the documents were relevant to the public interest, mass leaking could be very useful journalistically, using the Iraq War Logs to explain himself. He said that Iraq Body Count used the war reports to conduct an independent review, and found a major discrepancy between the government’s public casualty count and what these documents showed. You can’t conduct that type of investigation and show that level of inconsistency with just one document, he said. You have to take the whole body of source documents.

Journalism vs. Activism 

The government also tried to paint WikiLeaks as activists, and asked if Benkler felt there was a difference between journalists and activists. Benkler said the two aren’t mutually exclusive: there are activists who engage in journalism and journalists who do activism. He defined journalism as the “gathering of news and information relevant to the public interest for the purposes of dissemination to the public,” and activism as an effort to change institutions. But a point of his research is to show that the two overlap, that journalism is meant to act as a check on power, and the way it performs that check changes with technological innovations.

When Capt. Morrow asked if the motive to get only relevant information was journalism, Benkler said, “No, that’s what I’m resisting.” He said that ‘All the news that’s fit to print’ is merely one model of journalism, and that, for example, The Nation and Fox News represent a “mobilized journalism” model. WikiLeaks is yet another.

Benkler rebuts Army report on WikiLeaks 

One document Benkler reviewed in his research was the Manning-leaked and WikiLeaks-released copy of the 2008 Army Counterintelligence Report on whether foreign adversaries used WikiLeaks as a resource, which the government entered as evidence in an attempt to show Manning’s knowledge of WikiLeaks (see here for more on that).

Benkler called the report “speculative,” said it was of “mediocre” quality, and said it appeared largely based on open-source information. Furthermore, its executive summary and body contained the blatant falsehood that WikiLeaks doesn’t authenticate its documents. In fact, at the time of the report, questions of WikiLeaks’ verification had subsided, as critics who doubted its ability to verify had actually praised its authentication system. Benkler noted a Los Angeles Times report claiming that less than 1% of WikiLeaks’ releases were potentially inauthentic.

Benkler explains danger of “aiding the enemy” theory

Prosecutors asked Benkler to confirm that his positions on this court martial were well known, and that he’d written two op-eds – one with Floyd Abrams for the New York Times, “Death to Whistle-blowers?” and one for the New Republic, “The Dangerous Logic of the Bradley Manning Case.”

Benkler explained in full his theses in both articles, that to equate giving documents to a news organization to be published on the Internet with giving documents to the enemy “would severely undermine the way leak-based investigations” would work.

Defense rests case, return for rebuttal next week

The defense then rested its case, and Bradley Manning confirmed that he did not wish to testify. The government said it intends to present a rebuttal case.

We’ll return to court Monday, July 15, at 3:00pm ET, for the parties to argue the scope of the government’s rebuttal case and the defense’s motions to dismiss charges. If there’s a rebuttal case, that would then start next Thursday. If not, closing arguments would begin next Tuesday.

Col. Morris Davis: GITMO Files could not harm the U.S., info was publicly available: trial report, day 16

By Nathan Fuller, Bradley Manning Support Network. July 9, 2013.

Col. Morris Davis (ret.), the former Guantanamo Bay chief prosecutor whom the defense qualified as an expert yesterday, testified about the Detainee Assessment Briefs (DABs) that Bradley Manning released and that WikiLeaks published as the GITMO Files. 

In preparation for this case, Col. Davis reviewed the DABs alongside open-source information, including government-released Assessment Review Board (ARB) and Combatant Status Review Board (CSRT) documents, movies such as The Road to Guantanamo, articles, legal litigation, books, and interviews with the detainees.

Col. Davis found almost all of the significant information in the DABs elsewhere, testifying that without the DAB he could construct a nearly verbatim copy based solely on the open-source information. Therefore, he doesn’t see how their release could the harm the United States. He said that more complete information was released by the Pentagon itself, and if the enemy wanted a strategic or tactical advantage, the DABs were not the documents to look at.

Other than causing embarrassment to the country that it was released,” he said, “I don’t see the enemy could gain anything of value from reading the detainee assessment.”

This testimony is important for the Espionage Act charges, the 18 U.S.C 793(e) offenses, in which the government claims Manning released documents that he had “reason to believe … could be used to the injury of the United States or to the advantage of any foreign nation.”

As a prosecutor, Col. Davis and others referred to the DABs dismissively as “baseball cards,” as they only included biographical data. The government challenged the analogy, saying the DABs included detainees’ terrorist-organization affiliations and other important information. But Col. Davis replied that the analogy was merely intended to connote the DABs’ minimal value.

Were the Guantanamo Files “closely held”?

Whether these DABs were “closely held” is another key point of contention for the Espionage Act charges, in which the government claims Manning released “information relating to the national defense.” Prosecutors must prove the DABs were closely held in order to meet that threshold. The defense argued that because so much of the information was publicly available before the release, including information made available by the government, the judge cannot consider them to be closely held.

But prosecutors said that under military justice, the judge should be allowed to consider only government-released information – i.e., none of the movies, books, or articles, and only the ARBs and CSRTs – when determining whether documents were closely held.

The defense countered that since prosecutors used the nongovernmental publicly released information in their cross-examination, it should be considered under a military exception.

The government claimed that a D.C. circuit ruling issued this morning in U.S. vs. Stephen Kim is directly relevant to this issue, but hasn’t yet provided it to the court.

Defense security expert reviews War Logs

Cassius Hall, defense security expert and former intelligence analyst, testified about Significant Action reports (SigActs) and how Manning would have used them in his work. The defense qualified Hall as an expert on intelligence analysts and handling of classified information.

Hall examined the 102 charged SigActs in this case and found related information in open sources (e.g., news reports) for 62 of them.

Update: 2nd security expert reviews State Department Cables

Similarly, the defense’s other security expert, Charles Ganiel, reviewed the State Department cables released by WikiLeaks as Cablegate, drawing on his nearly 28 years of military experience as a security specialist. He compared the 125 charged cables with open source material, and found that all but 2 of them had corresponding data. He felt generally that “lot of information was already in the public domain.”

Recessed

The court is now in recess for the night, so the government can examine the reviewed cables, in lieu of a classified session. Ganiel will return to the stand tomorrow. Next on the witness list are one stipulated witness and Harvard professor Yochai Benkler.

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Kevin Gosztola: Behind the Scenes of the Bradley Manning Trial

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Bradley Manning's Defense team has gone on offense by filing four motions to dismiss charges and render a non-guilty verdict. Judge Denise Lind awaits the response from the prosecution and will likely rule July 11th or shortly thereafter.

Day 15 featured one of Manning's superiors being called as the first witness, with many more following. The session featured some very interesting chat logs that occurred between Bradley Manning and Lauren McNamara; they contain Manning's views on a range of issues. All of that can be viewed below.

Defense moves to dismiss charges, opens case with Manning’s superior: trial report, day 15

Day 15: The defense moved to dismiss charges after the government rested its case, and then proceeded to call its first witness, one of Manning’s superiors in the intelligence division in Iraq. See here for all previous trial and pretrial reports. We’ll update this post later today.

By Nathan Fuller, Bradley Manning Support Network. July 8, 2013.

The government rested its case against Bradley Manning last week, and the defense began its case today with the announcement that it filed four motions to direct a not-guilty verdict. The defense moved to dismiss the aiding the enemy charge, a Computer Fraud and Abuse Act charge, the federal larceny charge, and specifically the charge that Manning “stole” the U.S. Forces in Iraq Global Address List. Prosecutors have until Thursday, July 11, to respond to that motion, after which Judge Denise Lind will rule.

Judge Lind asked the defense to proceed despite that motion, and the defense began by playing the unedited version of the ‘Collateral Murder’ video, of U.S. Apache gunners shooting Iraqi civilians and Reuters journalists. Defense lawyer David Coombs played the video to verify that it matched a transcript of the video, which he entered as evidence.

Then the defense called Chief Warrant Officer 2 Joshua Ehersman, security supervisor for Manning’s intelligence division in Baghdad, to the stand.

CW2 Ehersman testified that intelligence analysts were allowed to download classified information to CDs, to save information because their computers crashed several times per week. There were no restrictions on what soldiers were allowed to burn to a CD. They also put information on CDs to share it with their Iraqi counterparts and to transport files too big to keep on their computers. These CDs were supposed to be marked with their classification levels, but Ehersman admitted this wasn’t always done.

Ehersman called Manning the best junior analyst in the intelligence division (the go-to guy to help with computer problems) and said that Manning’s work products were the best in the division. Manning was in the ‘Future Ops’ division, which involved preparing assessments that would help soldiers plan for what to expect. This work included data mining, which meant searching all available databases across the SIPRnet (the military’s Secret network) to cull data for an intelligence report. He said that Manning had a lot to learn in the assessment portion of intelligence, but that this was expected of a junior analyst.

He discussed the Iraq and Afghan War Logs, known to analysts as SigActs (Significant Actions), and what they comprised. He described SigActs as a historical record, capturing past events, used for creating density plots and mapping trends over time. He said SigActs did not reveal names of key sources, because that would be Top Secret information.

He also testified about program use. Ehersman said that soldiers were allowed to run executable files from CDs without any restrictions. They weren’t allowed to add programs to the computers’ hard drives, because that would require administrative access, but they could use a shortcut on the desktop to run an executable file from a CD.

Recess

We were notified of the first ten defense witnesses. Besides Ehersman, those include Capt. Barclay Keay, Sgt. David Sadtler, Capt. Steven Lim, Ms. Lauren McNamara, Col. (Ret.) Morris Davis, Mr. Cassius Hall, Mr. Charles Ganiel, Professor Yochai Benkler, and one stipulation, referred to as ‘Exhibition B.’

Update, 5:00 PM

After lunch, we heard from three members of Bradley’s unit in Iraq. Sergeant David Sadtler testified that Manning was the only one in the intelligence section who really kept up with current events outside of the mission, and that brigade staff would go to him to find out what was going on in the world.

Sgt. Sadtler said that Manning came to him, sometime after he arrived in December 2009, concerned about the Iraqi police arresting detainees for printing “anti-Iraqi government propoganda.” He said Manning seemed upset about the evidence, but Sadtler didn’t do anything about it. He said Manning had a “deep belief in the news and what was going on, whereas other soldiers were more concerned about going about their day.”

Captain Steven Lim, under whom Manning worked, testified about Manning’s skill in data mining, statistical analysis, and trend analysis. Capt. Lim said that the TSCIF – where intelligence analysts worked with classified information up to the Top Secret level – did not have an SOP (Standard Operating Procedure), which would have let soldiers know what they could and couldn’t do in the TSCIF.

Capt. Lim said soldiers were allowed to listen to music from the shared drive or from the classified internetwork, but that playing games or movies would be against their user agreement. However, he said no official guidance was put out regarding whether running executable files (such as video games, or Wget) on their work computers or from a CD was permitted. He confirmed that computers crashed frequently and that there were no restrictions on downloading information to a CD to prevent losing it.

Good analysts were expected to use all available tools and databases, including old SigActs, the State Department’s diplomatic cables, and open source (nonmilitary) information when data mining — though the government established on cross-examination that Lim thought he wasn’t expected to surf the Afghanistan database.

Capt. Lim testified that key sources were referred to by number, but that occasionally some could be identified by name by mistake. Capt. Lim said he wasn’t sure if the war logs revealed Tactics, Techniques, and Procedures (TTPs) but said that the enemy could use data like Battle Damage Information (BDI) – which documents how a vehicle was impacted by an enemy attack. The defense established, though, that that information was already readily available to enemies who could see how vehicles were impacted out in the open.

The defense also made a point of asking, as it has for many witnesses who would know, about what an intelligence gap is. Whether foreign adversaries used WikiLeaks was listed as an intelligence gap in the Army Counterintelligence Report that the government is using as evidence of Manning’s knowledge. Capt. Lim testified, as others have, that a gap refers to information that the U.S. doesn’t have and wants to investigate further.

Capt. Lim testified that he didn’t recall any training on the enemy using WikiLeaks specifically. Asked if he saw anything on the enemy using WikiLeaks in an unofficial capacity, Lim said “only on TV and in the media.”

Lauren McNamara confirms chat logs

Lauren McNamara, who chatted with Manning (when she was known as Zach Antolak) from February through August 2009, then took the stand, confirming portions of the chat logs so that the defense could admit the logs as evidence.

The defense reviewed portions on Manning’s hopes to save lives and learn more:

8:07:20 PM bradass87: same thing with me, im reading a lot more, delving deeper into philosophy, art, physics, biology, politics then i ever did in school… whats even better with my current position is that i can apply what i learn to provide more information to my officers and commanders, and hopefully save lives… i figure that justifies my sudden choice to this

On ensuring everyone’s safety:

(8:57:06 PM) bradass87: im more concerned about making sure that everyone, soldiers, marines, contractor, even the local nationals, get home to their families

On his humanism:

(1:28:28 AM) bradass87: since i place value on people first 

(1:31:14 AM) bradass87: my personal value to things in order: dirt/rocks/ice, single-celled organisms, plants, man-made objects, various animals, mammalian animals, people

On his intent to enter politics:

(8:25:13 PM) bradass87: my plan is pretty simple but vague… get credentials, nice ones… ones that make it difficult for really creepy conservative people to attack… then jump into politics

On how he viewed the military:

(10:10:15 PM) bradass87: i actually believe what the army tries to make itself out to be: a diverse place full of people defending the country… male, female, black, white, gay, straight, christian, jewish, asian, old or young, it doesnt matter to me; we all wear the same green uniform… but its still a male-dominated, christian-right, oppressive organization, with a few hidden jems of diversity

And on nuance:

(10:40:49 PM) bradass87: sometimes i wish it were all black and white like the media and politicians present it… him, he’s the bad guy, oh and he, he’s the good guy… its all shades of blurry grey

Then the government reviewed portions as well. It had McNamara read sections on activism:

(8:26:53 PM) bradass87: activism is fun 

(8:27:13 PM) bradass87: it doesnt do much unless you get heard, however… 

(8:30:52 PM) bradass87: worringly, “terrorists” are a form of political activist, however, they recruit young people with troubled lives (a sick family member, extremely poor upbringing, etc) offer them a monetary solution, take them into a camp, give them psychoactive drugs, psyhologically drug them for many months, give them an explosive jacket or rigged vehicle, give them heavy doses of uppers and send them on their way to try and kill themselves… if they go through with it (which is what the uppers are supposed to do) 

… 

(8:35:53 PM) bradass87: we try our best to keep it from being a tragedy, thats what all the infrastructure, schools, elections, and military training out there is for

On other views on the military:

(9:03:07 PM) bradass87: military is all f’d up… contracts with closed source developers with incompatible software… drives me NUTS 

… 

(9:07:52 PM) bradass87: but, luckily i use my DC contacts from Starbucks and get the word out to those higher up in the chain…

On how he viewed Guantanamo Bay:

(10:28:59 PM) bradass87: question: guantanamo bay, the closure is good, but what do we do about the detainees =\ 

… 

(10:33:01 PM) bradass87: well, some of them are actually pretty dangerous indeed… some of them weren’t dangerous before, but are now in fact dangerous because we imprisoned them for so long (don’t quote me on that, for the love of my career), and others might, with a little more than an apology would easily fit back into society… who’s who… worryingly, you cant really tell 

… 

(10:35:45 PM) bradass87: the reason thats difficult: the things we have tried them on are classified information, connected with other pieces of classified information… so if a trial is done, it might have to be done in some kind of modified trial, where pieces of evidence which are classified are presented only in a classified environment 

… 

(10:38:59 PM) bradass87: some of them are indeed dangerous, and those that have left have, and i as a liberal and someone against gitmo will tell you… yes, many of those previously released, even though innocent before, are quickly recruited as leading figures for new wings of extremist groups

On foreign affairs:

(2:38:40 AM) bradass87: ive got foreign affairs on my mind constantly now… 

(2:39:31 AM) bradass87: mexico’s spiralling violence, pakistan’s instability, north korea’s rhetorical posturing… blah blah blah 

(2:40:20 AM) bradass87: one of the bad parts of the job, having to think about bad stuff 

… 

(2:42:00 AM) bradass87: just read a state department release…

And on sending a link:

(11:26:35 PM) bradass87: im working on an Incident Tracker for my unit, to update the current one we have from the unit’s last deployment 

He then sent this (now-broken) link: http://www.designerbrad.com/its/index.php

Col. Morris Davis as national security and Guantanamo detainee expert

Col Morris Davis (ret.) is a former chief prosecutor at Guantanamo Bay who now teaches on national security law. In late 2008, President Obama’s transition team sought his advice on Guantanamo policy. The defense moved to qualify Col. Davis as an expert on national security generally and on Guantanamo detainee policy specifically, focusing on the Detainee Assessment Briefs (DABs) that Manning released to WikiLeaks. The government contests both elements.

As the defense laid a foundation for his expertise, Col. Davis testified that the DABs were referred to as “baseball cards,” as they provided basic biographical data. He said that beyond a detainee’s name and location, the DABs were “wildly inaccurate” and therefore not useful. It was the documents used to create the DABs that were of significant use. The briefs, he said, contained no sources or methods or otherwise actionable intelligence.

Col. Davis said he worked to declassify information on detainees in order to help defense lawyers.

Prosecutors challenged Col. Davis’s qualifications as an expert, establishing that he hadn’t dealt with classified information for several years.

Following that questioning, Judge Lind ruled that Col. Davis won’t be qualified as an expert on national-security law generally but would be considered an expert on Guantanamo-detainee policy and information used, specifically the DABs.

We then recessed for the day, and we’ll resume tomorrow at 9:30 AM.

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The government has rested its case against Army whistleblower Bradley Manning. After 14 days of testimony, it appears highly circumstantial that Manning knowingly "aided the enemy" - the charge that could land him life behind bars without the possibility of parole.

The defense will begin today to outline exactly where the government has failed in its argument. It is worth a re-cap of where the case stands at this point and what holes in the story could be exploited by the defense. This case has ramifications far beyond Bradley Manning. If the government is successful in setting the precedent that whistleblowers can be locked up based on how information is revealed and distributed, it could be the death knell for journalism and the very nature of the Internet and modern-day information sharing.

Surprising lack of evidence against Manning confirms over-prosecution

A recap of the government’s evidence that Bradley Manning “aided the enemy.” Today, the defense begins its merits case. 

By Nathan Fuller, Bradley Manning Support Network. July 8, 2013.

On February 28, 2013, Pfc. Bradley Manning pled guilty to ten lesser offenses that could have put him in jail for up to 20 years, taking responsibility for releasing classified documents to WikiLeaks as an act of conscience. But that wasn’t enough for prosecutors, who decided to move forward on all counts, seeking to imprison Manning for the rest of his life, without a chance for parole. The government said it could prove Manning knew that by dealing with WikiLeaks he was dealing al Qaeda. But now that the government has rested its case, many have been shocked to see that prosecutors’ evidence is weak, ambiguous, and circumstantial. It appears that the government is more interested in trying to connect tangential dots, in order to smear a heroic whistleblower as a traitor, than seeking any type of justice.

Aiding the enemy (UCMJ Article 104)

The government must prove

actual knowledge by PFC Manning that by giving the intelligence to WikiLeaks, that he was actually giving intelligence to the enemy through this indirect means. The Court has held that PFC Manning cannot violate Article 104 by committing an act inadvertently, accidentally, or negligently that has the effect of aiding the enemy. 

To prove Manning’s knowledge at the time of the disclosure, the government has called witnesses who reviewed his computers to testify that he searched the military’s Google for “WikiLeaks,” and that he chatted with ‘press association,’ an account that prosecutors say is associated with Julian Assange.

Circumstantial tweets, documents

Prosecutors have entered a few items of evidence as well: two WikiLeaks tweets, a 2009 ‘Most Wanted Leak’ list, and an Army Counterintelligence Center (ACIC) report on WikiLeaks.

One of the tweets announces possession of an encrypted video, and requests “super computer time” to decrypt it. Prosecutors imply this is evidence that Manning gave WikiLeaks the never-released Garani airstrike video. This video was taken from U.S Central Command’s (CENTCOM) servers. But the only copy of CENTCOM’s video seen elsewhere is on the computer of Jason Katz, not Bradley Manning. Katz was fired from the Department of Energy for “inappropriate computer activity,” and had decryption software on his computer. Forensic examiners found no connection whatsoever between Katz and Manning, or that they ever even knew one another. WikiLeaks never released a Garani video.

Prosecutors say that Manning transmitted that video and accompanying documents in both November 2009 and April 2010. Manning’s defense said that there was only the latter transmission, and when the government insisted on charging the earlier one in an effort to show a months-long string of leaks, Manning pled not guilty as charged. Then in court, forensic examiners said there was only evidence of an April 2010 transmission, nothing from 2009. See Alexa O’Brien’s more detailed account of how the government’s airstrike video case fell apart.

The other tweet requests “as many .mil email addresses as possible,” meaning all military addresses. The government connects this with Manning’s downloading of the Global Address List in Iraq, comprising contact information for U.S. Forces in Iraq, which no one contends Manning transmitted.

Finally, the government entered as evidence a draft document on WikiLeaks’ website in 2009 (which forensic examiners say can’t be located on the site today), titled ‘Most Wanted Leaks.’ The list compiles desired documents – but a defense-submitted version of the document says it compiles “concealed documents or recordings most sought after by a country’s journalists, activists, historians, lawyers, police, or human rights investigators.”

If Manning had viewed all three of these items, they could be considered circumstantial evidence that hecould be working under WikiLeaks’ direction. But the government has no evidence that Manning ever saw any of them. More to the point, none suggest any connection or association between WikiLeaks and al Qaeda – nothing to suggest that giving documents to WikiLeaks meant giving indirectly to AQ or any of its affiliates.

Ambiguous U.S. Army report

The only evidentiary item tied to Manning’s knowledge and which mentions terrorist organizations is a U.S. ACIC report, titled ‘Wikileaks.org—An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?’

But as the defense established in cross-examination, as the interrogative title implies, and as Marcy Wheeler notes, the document isn’t definitive about whether these groups visited WikiLeaks.

“[N]ot only doesn’t this report assert that leaking to WikiLeaks amounts to leaking to our adversaries; on the contrary, the report identifies that possibility as a data gap,” Wheeler writes. “But it also provides several pieces of support for the necessity of something like WikiLeaks to report government wrongdoing.”

When defense lawyer David Coombs asked Captain Casey Fulton, who deployed to Baghdad with Manning and who headed his intelligence section, about any specific websites that America’s enemies were known to visit, she could only cite social networking websites where people post personal information, like Facebook, and Google Maps.

Manning’s instructor from intelligence analyst training, Troy Moul, admitted in court, “I had never even heard of the term WikiLeaks until I was informed [Bradley] had been arrested.”

Enemies’ “receipt” of WikiLeaks-released documents 

In April 2013, Judge Denise Lind ruled that the government has to prove that America’s adversaries received intelligence information released by Bradley Manning. The defense had actually moved to strike that requirement, knowing prosecutors intended to bring provocative and misleading evidence that Osama bin Laden had WikiLeaks-released documents on his computer.

To prove receipt, the government submitted a stipulation of fact, declaring that on the raid of Osama bin Laden’s Abbottobad compound on May 2, 2011, U.S. agents found digital media containing a letter from bin Laden. He’d asked another al Qaeda member for U.S. defense information, and the member responded with WikiLeaks-released documents.

It also submitted a stipulation regarding Adam Gadahn, an American who joined al Qaeda as a recruiter, and a video, released on June 3, 2011, in which Gadahn cites WikiLeaks documents. Gadahn plays ‘Collateral Murder,’ and says that America’s “interests are today spread all over the place and easily accessibly as the leak of America’s State Department cable on critical foreign dependency makes so clear.”

What’s so striking and rarely mentioned about either of these items is their dates. The bin Laden evidence was discovered in May 2011, and the video was discovered a month later – both several months after the government charged Bradley Manning with “aiding the enemy,” which was on March 1, 2011. If the government contends that “receipt” is required to prove aiding the enemy, and it didn’t have proof of receipt until May 2011, why did it charge Manning with Article 104 in March?

What else does Al Qaeda find ‘useful’? 

Their final piece of “aiding the enemy” evidence did come before that charge, but it’s also incredibly flimsy. Part 6 of the Gadahn stipulation cites the Winter 2010 issue of Inspire Magazine, published online in January 2011. That issue, on page 44-45, says that “’[a]nything useful from WikiLeaks’ is useful for archiving.”

Do we really want to criminalize all of the publicly available information that al Qaeda and AQAP read and use? Doesn’t this prosecution make anything on the Internet a potential aid to the enemy?

In July 2010, Canada Free Press reported that Inspire’s first issue favorably references Noam Chomsky. In September 2011, AQ released a video in which bin Laden encouraged Americans to read Bob Woodward’s Obama’s Wars.

As Glenn Greenwald wrote earlier this year,

If bin Laden’s interest in the WikiLeaks cables proves that Manning aided al-Qaida, why isn’t bin Laden’s enthusaism for Woodward’s book proof that Woodwood’s leakers – and Woodward himself – are guilty of the same capital offense? 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.

As Michael Isikoff reported in 2010, Woodward’s book disclosed

the code names of previously unknown National Security Agency programs, the existence of a clandestine paramilitary army run by the CIA in Afghanistan, and details of a secret Chinese cyberpenetration of Obama and John McCain campaign computers.

This is certainly information that al Qaeda is interested in and which Woodward and his sources caused to be published. But does that mean Woodward “aided the enemy”? Certainly not.

Prosecutors would extend their argument at least that far. In January 2013, they claimed that they would charge Manning the same way if he had leaked to the New York Times instead of WikiLeaks.Times journalists denounced the claim and the charge more broadly, calling it “excessive.”

“Excessive” is an understatement. If Judge Lind affirms the government’s dangerous theory on exceptionally thin evidence, whistleblowing as we know it will essentially be considered treasonous.

In response to Bradley Manning’s disclosures, the government – which already over-classifies exponentially – cracked down on leaks and information security, instead of the crimes he exposed. Shining public light on secret crimes is only becoming harder and harder. It’s no wonder NSA whistleblower specifically cited Manning’s persecution in requesting asylum outside of the U.S.

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Two full weeks of proceedings have now concluded with the government resting its case against Bradley Manning. Day 14 ended with a closed-door session that extended from yesterday with DIA agent, Daniel Lewis, who was admitted as an expert in counterintelligence. At issue, was his knowledge of how valuable the information was that Manning is alleged to have released. This session was considered classified, so it remained completely closed to the public and media.

Nathan Fuller recounts additional particulars from today's proceedings below, as well as full daily reports that have chronicled the government's assertion that Manning is an enemy of America. The defense now prepares to present its case on Monday July 8th at 9:30 am EST.

Government rests its case against Bradley Manning: trial report, day 14

Bradley Manning’s trial is in a long closed session for the testimony of DIA counterintel agent Daniel Lewis. The judge ruled on the government’s motion for judicial notice, and partially qualified Lewis as a CI expert. We’ll update this post later today.

By Nathan Fuller, Bradley Manning Support Network. July 2, 2013.

Update 4:15pm ET

The government rests its case against PFC Bradley Manning. Prosecutor Maj. Ashden Fein announced that the government had submitted all of its evidence, and that it no longer intends to present evidence regarding the “classified enemy” that it referenced in its bill of particulars.

The defense will begin presenting its case on Monday, July 8, at 9:30am ET.

The announcement came directly after a two-and-a-half-hour classified session, closed off to the press and public, in which DIA’s Daniel Lewis testified about counterintelligence and his knowledge regarding the value of classified information to foreign intelligence services.

Original post

Not much to report yet on the 14th day of Bradley Manning’s court martial. Court opened at 11am for two rulings and promptly recessed for a lunch break followed by a closed session to elicit classified information.

First, Judge Denise Lind granted the government’s motion to admit three items for judicial notice: that Julian Assange was in Iceland in 2010 and working on the Icelandic Modern Media Initiative, that Lt. Col. Lee Packnett was quoted in the New York Times regarding WikiLeaks, and that a New Yorker profile of Assange (titled ‘No Secrets’) was published in June 2010.

DIA agent expert in CI, but not value of classified docs

The government has offered DIA counterintelligence and counterespionage agent Daniel Lewis as an expert in counterintelligence (CI) and valuing classified information. The defense stipulates that Lewis is an expert in CI generally, but contends that he’s not an expert in offensive CI operations or in valuing classified documents.

Lewis’ testimony, particularly if qualified as on expert on evaluating information, would be useful for the government’s 18 USC 641 (federal larceny) charges (see our day 13 report for more on Lewis and those arguments).

After brief questioning yesterday in open court, the parties moved to a classified session, closed off to the press and public, which lasted approximately two hours.

Judge Lind ruled on Lewis’s testimony in open court, but said that she also filed a classified supplement that won’t be read to the press and public. She ruled that she will consider Lewis an expert in CI generally (incorporating “all facets,” meaning including offensive operations, of CI), but that she won’t qualify him as an expert on valuing classified information. She said Lewis “may testify and offer an opinion with regard to the value of certain charged documents upon laying a proper foundation within the parameters of the oral classified supplement to this ruling.”

The court is in recess until 1:30pm, and then will be in a closed session until 3:30pm, at which point the parties expect to return to open court.

PREVIOUS UPDATE:
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Week 5 (day 13) marks the final admission of evidence and testimony of the government as they seek to solidify their case against Bradley Manning as an enemy of the state, rather than a whistleblower of corruption and war crimes.

At question is what Judge Lind will permit to be offered as final evidence, as well as the presentation of the government's final witness: Defense Intelligence Agency’s Daniel Lewis, whom the government is offering as an expert on counterintelligence with his 29 years of service in that area. Nathan Fuller's full day-by-day account appears below with some last-minute updates from today's proceedings.

Government concluding merits case against Bradley Manning: trial report, day 13

In what’s expected to be the last day of the government’s merits case, prosecutors read stipulations of expected testimony and fact, largely regarding their “aiding the enemy” charge. They’ll call their final witness today. We’ll update this post this afternoon. See all previous courtroom reports here.

By Nathan Fuller, Bradley Manning Support Network. July 1, 2013.

Today is likely the final day of the government’s merits (guilt or innocence, pre-sentencing) portion of its case against Pfc. Bradley Manning. Prosecutors read final stipulations of fact and expected testimony, and will call their final witness after today’s lunch break.

Before those stipulations, prosecutors announced that they had subpoenaed Mr. Butler from the Internet Archive, to testify about the nature of the Archive’s capturing of websites at a given point. They need his testimony to help verify a 2009 WikiLeaks ‘Most Wanted Leaks’ list, which Judge Denise Lind rejected for lack of authentication last week. Defense lawyer David Coombs said he’d spoken to Butler and will talk to him again today at the lunch break, and may withdraw his authentication objection afterward.

Judge Lind also noted that she would rule on whether to take judicial notice of several items from each party. The government wants to admit that Julian Assange was working in Iceland in 2010, a Lt. Col. Lee Packnett quote in the New York Times, and a 2010 New Yorker profile of Julian Assange. The defense objects to these on hearsay (not first-hand knowledge) and relevance grounds.

The defense wants to admit the fact that Congress believed over-classification was an issue and therefore passed legislation, which “contained not only just findings but also specific statutory initiatives to address that issue.”

The defense also wants to admit statements by J. William Leonard, director of the Information Security Oversight Office (ISOO), declaring that an ISOO report concluded that “even trained classifiers, with ready access to the latest classification and declassification guides, and trained in their use, got it clearly right only 64% of the time in making determinations as to the appropriateness of continued classification.”

Finally, the defense wants to admit correspondence between Senator Carl Levin and Defense Secretary Robert Gates regarding the impact of WikiLeaks’ releases. Sen. Levin wrote a letter inquiring about potential damage, and Sec. Gates responded, claiming “the review to date has not revealed any sensitive intelligence sources and methods compromised by this disclosure.”

Judge Lind is expected to rule on these items later today.

Aiding the enemy stipulations

Today’s stipulations are part of the government’s case for its “aiding the enemy” charge, for which it has to prove “actual knowledge by PFC Manning that by giving the intelligence to WikiLeaks, that he was actually giving intelligence to the enemy through this indirect means.”

The first stipulation was expected testimony of Youssef Aboul-Enein, a U.S. Navy commander who has advised the Department of Homeland Security on militant Islam. His testimony provided background information on Al Qaeda, a recounting of its attacks on America, and its practices.

Aboul-Enein says that Al Qaeda has used the internet since the 1990s, uses “all publicly available websites,” and specifically uses sites that research U.S. operations.

Prosecutors read a stipulation of fact regarding a July 3, 2011, video featuring Adam Gadahn, an American member of Al Qaeda. In the video, Gadahn cites material released by WikiLeaks, and plays part of the WikiLeaks-released ‘Collateral Murder’ video. He encourages his listeners to use the internet to make use of “all means possible” to carry out jihad. That stipulation also referenced the fourth issue of Inspire Magazine, Al Qaeda in the Arabian Peninsula’s (AQAP) publication. That issue says “anything useful from WikiLeaks” can be archived, and that archiving large amounts of information is useful for Al Qaeda and AQAP.

The government also read a previously read-aloud stipulation of fact regarding Osama bin Laden’s computer, affirming that in the U.S. of OBL’s compound, on May 2, 2011, agents obtained digital media. That media included a letter from OBL to another member of Al Qaeda, requesting Department of Defense information posted to WikiLeaks. That member responded in a letter, attaching the Afghan War Logs. The remainder of that stipulation is classified – as is the entirety of stipulation of expected testimony.

Notably, both pieces of evidence were found well after the government charged Manning with “aiding the enemy,” on March 1, 2011. They’ll be used to confirm “receipt” of U.S. defense intelligence by the enemy, an element required to prove that charge.

After a long lunch break, the government will call its final witness, Defense Intelligence Agency’s Daniel Lewis, whom it will attempt to qualify as an expert on counterintelligence. Part of that testimony will be conducted in a closed session to elicit classified information.

Update — closed session

The court is now in a classified session, closed off to the press and public, for two hours (expected to run until 4:30 pm ET), to continue questioning DIA’s Daniel Lewis. The parties questioned Lewis about his counterintelligence (CI) work briefly in open court first. The government had him recount his 29 years of CI experience, including offensive operations, and his awards for CI success.

The government wants to use Lewis’ testimony to support its 18 USC 641 – federal larceny – charges, specifically the claim that Manning “stole” documents worth more than $1,000.

The defense does not believe he’s an expert on valuing classified information. Defense lawyer Maj. Hurley questioned Lewis, establishing that Lewis has never had to put a specific monetary value on a classified document, and he’s had no specific training or guidance on the issue. Lewis said that he could instead tell the court, from experience, what a foreign adversary would pay for certain classified information, but couldn’t look at a document and determine its value.

The government asked to move to a closed session to continue building a foundation for Lewis’s expertise. After that questioning, Judge Lind will make a ruling, and if he’s qualified as an expert, we’ll continue in open court.

Update — 4:42pm ET — returning tomorrow at 11 AM

We’ve just been told the parties are still in closed session but won’t return for an open session today. We’ll resume in open court tomorrow morning at 11 AM.

PREVIOUS UPDATE:
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As week four began after the court has been in recess while 17 "stipulations" were being discussed, some new information has come to light which could shape the trial as it moves forward.

Summary: 

The week began with testimony from Rear Admiral Donegan’s who has claimed that the Apache (Collateral Murder) video did not reveal the Tactics, Techniques, and Procedures as previously asserted by other testimony. The following day included some critical testimony from Charlie Wisecarver, the principal deputy chief information officer and chief technology officer at the Department of State (DOS).

Although Wisecarver was not presented as an expert witness, he was involved with the internal classified network that Manning is accused of exploiting. He paints a picture of a system that had 20,000+ users and no top secret information that was contained within that database. As Nathan Fuller states in his full report below, "For Manning to have violated the 1917 Espionage Act, the information had to have been 'relating to the national defense.' Included in the government’s burden of proof is the requirement that the cables were 'closely held.'"

The testimony of David Shaver followed, which covered the forensic evidence obtained from Manning's computer and the activity that it showed regarding downloads, transmissions and browsing activity. Shaver's testimony ended in a closed session covering classified information.

Day 11 of Bradley Manning's trial began with testimony from Special Agent Mark Mander. He was called to discuss screen captures of two WikiLeaks tweets. Mander obtained these through third-party searches, calling their authenticity into question. This might demand confirmation from WikiLeaks or Twitter.

Judge Denise Lind also permitted the letter from Rear Admiral Donegan that contradicted earlier testimony regarding Techniques, Tactics and Procedures. And she also accepted items from the government, with just one exception. 

Still in question are salary amounts and whether it can be proved that Manning released items valued at more than $1,000.

On the final day to close out the week, Judge Lind found two tweets admissible involving circumstantial communications between Manning and WikiLeaks, despite the argument of the defense that these were obtained by third-party Google Cache records.

Manning's commander at the time, Col David Miller, spoke to the effect on morale after the released documents. He stated that, morale "took a hit." However, in an apparent bombshell, he stated that the "secret level internet" - SIPRNet - was actually not restricted, thus not precluding the need for any special downloaded software to access it. This calls into question exactly what Manning had access to and what type of information he potentially could have released with the same access as more than 20,000 others within that system. 

More stipulations are forthcoming. The trial resumes on Monday. For full details of the minute-by-minute, day-by-day proceedings now concluded at day 12, please read the chronicle provided by Nathan Fuller below. 

Judge admits two WikiLeaks tweets, rejects Most Wanted Leak list: trial report, day 12

By Nathan Fuller. June 28, 2013.

To open Bradley Manning’s 12th day of trial at Ft. Meade, military judge Col. Denise Lind ruled that two WikiLeaks tweets from 2010 are admissible for Identification, and that a 2009 Most Wanted Leak list is not.

Judge Lind ruled that the two tweets, one of which stated that WikiLeaks was in possession of an encrypted video and the other requested “.mil email addresses,” were properly authenticated, despite defense arguments that because the tweets were retrieved from Google Cache and not WikiLeaks’ Twitter account directly, they couldn’t be verified. 

She said that these tweets were both relevant to the “aiding the enemy” charge, the claim (spec. 1 of charge 2) that Manning “wantonly caused [U.S. defense intelligence] to be published on the internet,” and the charge that Manning downloaded a Global Address List in Iraq. The government has provided no evidence that Manning saw either of these tweets, but Judge Lind ruled that they were relevant as circumstantial evidence, due to their timing and public availability, and the fact that Manning was known to have searched Intelink (the military’s Google) for ‘WikiLeaks.’

Judge Lind denied a third item, a 2009 WikiLeaks Most Wanted Leak list, ruling that while it would be relevant to show Manning’s knowledge of WikiLeaks and its intentions, it hasn’t been properly authenticated and therefore is not admitted for identification. The document was obtained via Internet Archive’s Wayback Machine, which largely uses third-party donors to crawl the web, and the government didn’t present a witness with first-hand knowledge of how it was retrieved. 

Manning’s commander in Iraq

Col. David Miller, Bradley Manning’s unit commander in Iraq, testified about the effect that Manning’s disclosures had on the unit morale. He said he was “stunned” to learn of an information compromise, because the “last thing I anticipated was an internal security breach from one of our own.” He said unit morale “took a hit,” and that a “funeral-like atmosphere fell over that crowd.”

On cross-examination, Col. Miller testified that there were no restrictions on surfing the SIPRNet, the military’s Secret-level internet, where he perused the State Department’s Net-Centric Diplomacy Database. He also said that soldiers were allowed to download files to their computers and to digital media, such as CDs, and there were no restrictions on the ‘manner’ in which a soldier could download. This refutes the claim that by using the download-automating Wget program, Manning exceeded his authorized computer access.

Recess

We’re scheduled to hear one more live witness, someone from the State Dept. whom prosecutors will attempt to qualify as an expert on counterintelligence and espionage. The government is expected to read three stipulations of expected testimony, though one full one and part of another will be read in closed sessions, and two stipulations of fact.

I’ll update this post later today.

Update 2:45pm ET

Change of plans: the parties are working on more stipulations, so we’re done for today and will resume on Monday at 9:30am ET. They’ll aim to finish the remaining government witnesses Monday, but will continue Tuesday if needed. Either way, the court will be closed Wednesday–Friday, July 3-5.

Judge accepts letter rebutting government testimony, other prosecution and defense items: trial report, day 11

Brief testimony gave way to a long recess today, after which we’ll hear several more stipulations of expected testimony. Judge Lind accepted numerous government and defense items for judicial notice. We’ll update this post later today, recapping the remaining testimony.

By Nathan Fuller, Bradley Manning Support Network. June 27, 2013.

Bradley Manning’s 11th trial day started at noon, with brief testimony from Special Agent Mark Mander. The prosecution called Mander to discuss his screen captures of two WikiLeaks tweets, one which asked for “.mil email addresses” and one which announced possession of an “encrypted video,” and both of which the defense has previously disputed. (See Day 8 for those disputes.)

Mander testified that he searched Google for keywords he thought would bring him those tweets, and then he copied the URLs of those search results. The defense established that Mander did not go through WikiLeaks’ actual Twitter feed to retrieve them. This calls into question their authenticity, and if Judge Denise Lind doesn’t accept them, the government might have to call someone from WikiLeaks and/or Twitter to further confirm them, or drop them as evidentiary items.

Judicial notice 

Judge Lind ruled on defense and government motions to admit items for judicial notice (see day 9 for arguments over those items). She accepted a letter that the defense presented, in which Rear Adm. Donegan says that the ‘Collateral Murder’ Apache video does not divulge “techniques, tactics, and procedures,” (TTPs). The letter rebuts testimony from government witness John LaRue, the former Apache pilot who said the video did disclose TTPs.

She also took judicial notice of other defense items: WikiLeaks-released pager and text messages from September 11, 2001, an audio transcript of the Collateral Murder video, and the fact that Reuters made a FOIA request for the video in July 2007 and that U.S. Central Command responded in 2009.

Judge Lind took notice of all the government’s items as well, except for a key that defined common internet “chat lingo” because it wasn’t verified from a reliable source. The items she did accept included WikiLeaks major 2010 releases, which she said were relevant to show the alleged path of documents from Bradley Manning to WikiLeaks to publication, and therefore relevant to the “aiding the enemy” charge and to whether Manning “caused [documents] to be published.”

She took notice of some military salaries of service members who created the Global Address List and Guantanamo detainee assessment briefs, which go to whether documents Manning is accused of releasing were more valuable than $1,000, a criteria for 18 USC 641.

Recess and stipulations

We’re now in recess until 2:30pm, at which point we’re expected to hear 11 stipulations of expected testimony.

Content, access, and value of the State Department cables: trial report, day 10

Trial day 10: today’s testimony thus far has all dealt with the State Department’s diplomatic cables that Bradley Manning released to WikiLeaks, dealing with questions of his access to the database and what information it contained. Click here for all previous courtroom reports.

By Nathan Fuller, Bradley Manning Support Network. June 26, 2013.

This morning, principal deputy chief information officer and chief technology officer at the Department of State (DOS) Charlie Wisecarver testified about the Net-Centric Diplomacy database, the set of DOS cables that Bradley Manning leaked to WikiLeaks. He was not established as an expert on the matter, since he wasn’t involved the database’s creation, but he discussed his first-hand knowledge of its use. Wisecarver said that the NCD was created to share information beyond the State Department, within the classified network SIPRNet.

No additional restrictions prevented user access: if you could get on SIPRNet, you had access to the NCD by default, he said. Wisecarver knew that significantly more than 20,000 people (the number of State Dept. workers then) could access the interagency database. Defense lawyer David Coombs asked, given that sized audience, if he’d agree that “closely held” secrets should be placed there. Wisecarver said, “Not necessarily,” but that it contained no Top Secret information and that certain other high-level markings kept categories of documents off of the database. For Manning to have violated the 1917 Espionage Act, the information had to have been “relating to the national defense.” Included in the government’s burden of proof is the requirement that the cables were “closely held.”

Wisecarver testified that while names were kept on the cables, all other Personal Identifying Information was purged. He also said that no mechanism was in place to prevent the downloading of cables from the NCD.

The government asked Wisecarver about the budget for the maintenance of the NCD, because they’re working to prove that items they claim Manning did “steal, purloin, or knowingly converted” were worth more than $1,000, to meet the threshold required to violate the federal larceny statute 18 USC 641. He testified that the 2010 NCD budget would have well exceed $1,000, but the defense established that Wisecarver was shown budget requests for approval, and those requests were almost always inflated overestimations. Knowing they’d get cut down, those asking for money would “shoot for the sky” and “pad” their requests.

Stipulations

Prosecutors read several stipulations of expected testimony, including from Gerald Mundy, from the DOS’s Information Resource Management, who pulled firewall logs from the DOS’s server, recording Manning’s computers’ activity. Those logs show what users searched for and clicked on the NCD. Mundy testified that there was no evidence that Manning “used any tools to defeat the firewall protection” – which goes to the question of whether he “exceeded authorized access,” an important element of the Computer Fraud and Abuse Act charges.

Afternoon testimony — David Shaver

Prosecutor Maj. Ashden Fein read stipulations from DOS Special Agent Ronald Rock, Army CID Special Agent Kirk Ellis, and James Downey to discuss their capturing of server, firewall, and CENTAUR logs from Manning’s computers, chiefly verifying that they transferred the logs appropriately and didn’t tamper with them. These sets of logs capture various transmissions and other computer activities, including Manning’s accessing the State Department’s NCD.

They called Special Agent David Shaver to testify in person, who reviewed these logs and testified that they showed the downloading of the program Wget and contained significant gaps, likely caused by CENTAUR failures.

Shaver said the logs showed one day with 149,000 transmissions between Manning’s computer and the State Department’s database, likely automated. The defense established that this could include failed attempts to account for the vast number of transmissions.

The defense also established that the firewall would have prevented Manning’s computer from accessing the DOS database if he wasn’t authorized to access it – which again goes to the Computer Fraud and Abuse Act charges.

Shaver said that the Bradley.Manning user account one on computer had configured Mozilla Firefox to browse privately, so it didn’t save web history.

He also testified about a screenshot he took of a folder of videos on Manning’s computer. It contained a file containing the 12 July 2007 Apache video and it also contained a shorter video that we know as Collateral Murder. He said the former video appeared to be the source for the latter, as the latter was cut down and had subtitles, an introductory quote, and graphics. The latter video was created on April 12, 2010.

Shaver testified that logs showed Manning downloading Wget, the automated downloading program, twice on his NIPRNet (unclassified) computer, and that it showed up on his SIPRNet (classified) computer shortly after one of those downloads.

The government then moved the court to a closed session, so Shaver could discuss classified information, which prosecutors said related specifically to Specification 3 of Charge 2 (see charges here).

After closed session

The live video feed returned mid-testimony (we also had multiple audio-video cutouts this morning), and we heard Shaver testify that two accounts associated with Bradley Manning searched the Open Source Center for ‘WikiLeaks’ more than 20 times and ‘Iceland’ about 25 times, and he searched it for items relating to Iraq and other subjects many times.

Court is in recess until tomorrow at noon, because the parties are continuing to work on additional stipulations of expected testimony.

Collateral Murder’s contents, Reuters’ FOIA request, and other evidentiary debates: trial report, day 9

Today the government and defense asked the court to take judicial notice of several items, including evidence that could rebut the claim that the Collateral Murder video exposed sensitive tactics. 

Tomorrow we’ll resume with the government’s witnesses. See all previous courtroom reports here.

By Nathan Fuller, Bradley Manning Support Network. June 25, 2013.

Bradley Manning’s ninth day of court-martial proceedings at Ft. Meade, MD, was brief, with less than two hours of oral arguments over defense and prosecution motions for judicial notice.

The defense asked the court to take judicial notice of several items, starting with Rear Admiral Donegan’s letter to the Secretary of the Army claiming that the Apache (Collateral Murder) video didn’t include Tactics, Techniques, and Procedures (TTPs). This directly rebuts earlier testimony, from former Apache pilot John LaRue, who said the unclassified video did contain TTPs. Prosecutors objected, contending that Rear Adm. Donegan’s letter constituted his opinion, not fact, and that the purpose of the letter was to discuss the classification status of the video. The defense responded that regardless of the purpose of the letter in full, that portion directly contradicts testimony from government witnesses, and thus should be taken into consideration.

The government stated and then later withdrew its objections to the defense’s proffering of a transcript of the Apache video, Reuters’s FOIA request for the video and subsequent investigation, and U.S. Central Command’s response to the FOIA request.

Prosecutors asked the court to take notice of WikiLeaks’ major releases: the Iraq and Afghan war logs, the diplomatic cables, an Army counterintelligence report, the Apache video, and Guantanamo detainee assessment briefs. The defense countered that what WikiLeaks did with the documents was irrelevant to what Bradley Manning did with them. In Specification 1 of Charge 2, Bradley isaccused of “wrongfully and wantonly caus[ing] to be published on the internet intelligence belonging to the United States government,” so the government contends that whether the documents were published is relevant to that element. The defense said its argument was similar to that for the “aiding the enemy” charge, for which it argued that “receipt” by the enemy was not relevant to whether the transmission had occurred. Here, lawyers said, whether WikiLeaks published the files doesn’t prove that Bradley transmitted the information or prove anything about the way it was transmitted.

Next, the government asked Judge Lind to take notice of the salaries of the military service members who created Guantanamo detainee assessment briefs and the Global Address List. They said these salaries were relevant to prove that Bradley had stolen government property that was worth more than $1,000. Defense lawyers objected, saying that the government had failed to show exactly how much time had been spent into creating those files, and that yearly salaries was insufficient to determine their work products’ monetary value.

Prosecutors moved for the court to take notice of paragraphs of Army Regulation (AR) 25-1, even though Bradley is charged with violating AR 25-2. The 25-1 paragraphs discuss government ownership of property and why it should be kept secret and to issues of authorized access, so prosecutors want Judge Lind to take them into account when ruling on 25-2 violations. The defense objected that the paragraphs weren’t relevant to the charges.

Judge Lind will rule on these items likely sometime this week, as well as on the admissibility of the WikiLeaks tweets and ‘Most Wanted Leak’ list that the government produced with Google Cache and the Internet Archive. Tomorrow, we’ll proceed with the government’s witnesses.

PREVIOUS UPDATE:
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Government has been under heavy pressure by activists to open up the trial to the routine scrutiny of any criminal trial, but have been stonewalling for more than a year. The Center for Constitutional Rights initiated a lawsuit on behalf of a group of journalists seeking better transparency from government. As the CCR reports, to date it has only been the work of activist groups such as Bradleymanning.org that are bringing reports of court proceedings into the public arena.

In a last-minute move, the government uploaded thousands of pages of case documents on the day prior to a legal response to the lawsuit. The presiding judge, in turn, dismissed the need for "emergency relief," as requested by CCR, since the government has now "volunteered" access to journalists.

Nevertheless, this move -- while welcome -- highlights the overall attempt to keep the public as far away from the full range of information as possible. As CCR Senior Managing Attorney Shayana Kadidal, stated:

It should not take a federal lawsuit to force the Pentagon to allow journalists to have access to unclassified documents in the most important whistleblower trial since the Pentagon papers.

Please read the full article from the Center for Constitutional Rights below and support their work if you can.

Judge Rules Further Court Intervention Not Necessary Where Government Voluntarily Acquiesced to Journalists’ Demands

By the Center for Constitutional Rights. June 20, 2013.

press@ccrjustice.org

June 20, 2013, Baltimore – Last night, a federal district court denied a request for emergency relief in a lawsuit by the Center for Constitutional Rights after the U.S. government voluntarily agreed to provide ongoing access to documents in the court martial of Pfc. Bradley Manning. The suit, bought on behalf of a group of journalists, asked the court for a preliminary injunction under the First Amendment ordering the military judge in the court-martial of Bradley Manning to grant the press and public ongoing access to documents in the proceedings as done in ordinary criminal trials. In addition, the suit challenged the fact that substantive legal matters in the court martial have been decided in secret.

The Judge in the case, Ellen Lipton Hollander, ruled that a First Amendment decision was unnecessary since the government voluntarily acquiesced to the journalists’ demands and stated that the remaining issues in dispute were not significant enough to justify her intervention on an expedited, emergency basis. Her decision came only after the military uploaded to the Internet several thousand pages of case documents on the day before it had to file its opposition brief in this case, vowed under oath to continue doing so throughout Manning’s court-martial, and permitted privately-funded stenographers to produce daily transcripts of the trial.

“The fact that the government released a huge number of documents after suit was filed, and has committed to the release of documents from the court-martial going forward, and on an expedited basis, seriously diminishes the likelihood of irreparable harm to plaintiffs,” wrote Judge Hollander in her decision.

Media coverage of the Manning trial remains burdened by the lack of access to court documents and transcripts that attended the last year and a half of proceedings. The hundreds of documents dumped on the Internet the day before the government had to respond to the lawsuit were posted three days into the trial, when journalists were preoccupied with covering events in court. Moreover, daily transcripts are now being funded by Internet activists rather than provided by the government.

“The last fourteen months of stonewalling have done incalculable damage to the reputation of the military justice system. Three military courts chose to ignore or avoid our claims over the course of a year before the government suddenly conceded most of what we asked for after we filed in federal court,” said CCR Senior Managing Attorney Shayana Kadidal, who argued the motion on Monday in federal court. “It should not take a federal lawsuit to force the Pentagon to allow journalists to have access to unclassified documents in the most important whistleblower trial since the Pentagon papers. We are confident of two things: first, that the restrictions on media access imposed thus far have rendered Manning’s trial fundamentally unfair, and second, that if Manning is convicted and appeals, there will be no way for the government to avoid having a day of reckoning in the military courts on the full scope of media access to courts-martial.”Attorneys are considering all options for further relief.

Plaintiffs in the case, in addition to the Center for Constitutional Rights, are journalists Glenn Greenwald of The Guardian, Amy Goodman of Democracy Now!, The Nation and its national security correspondent Jeremy Scahill, and Wikileaks and its publisher, Julian Assange. Also included are Kevin Gosztola, a civil liberties blogger covering the Manning court martial, and author Chase Madar.

Jonathan Hafetz of Seton Hall Law School is co-counsel with CCR, along with Bill Murphy and John J. Connolly of Zuckerman Spaeder LLP’s Baltimore office.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.

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PREVIOUS UPDATE:

We have spoken to Nathan Fuller at Bradleymanning.org who has given us gracious permission to reprint his daily firsthand reports, which you can find below with additional updates, commentary, and video.

Summary 

Days 7 and 8 of Bradley Manning's trial have highlighted the government's reliance on circumstantial evidence such as third-party websites in order to support their contention that Manning deliberately released confidential information to WikiLeaks, and that he knew that information (if he even did release it) would wind up in the hands of America's enemies. The government is claiming "hearsay exceptions" to make their case stick, while the defense asserts that cached WikiLeaks Tweets amount to "double hearsay" and raise the question of proper authentication.

The court will be in recess while the issues of admissibility and 17 "stipulations" are discussed before the trial can move forward. Nathan Fuller's full coverage below helps tie together the tenuous strands upon which the U.S. government's arguments seem to rest. The government will likely not call anymore witnesses until July 8.

Circumstantial evidence against Manning might lack authentication: trial report, day 8

By Nathan Fuller, Bradley Manning Support Network. June 18, 2013

The eighth day of Bradley Manning’s court martial lasted just an hour and a half, and we’re now in recess until Tuesday morning, June 25, so the defense and government can continue to hammer out 17 stipulations of expected testimony over the long weekend. Today the parties litigated the admissibility of three pieces of the government’s proffered evidence: the use of the Wayback Machine, an Internet archive tool that investigators used to retrieve a 2009 version of WikiLeaks’ ‘Most Wanted Leaks’ list, and two WikiLeaks tweets from 2010, which were recovered using Google Cache.

In one tweet, WikiLeaks announces possession of an encrypted video, which the government says is the Garani/Farah airstrike video and which it claims Bradley provided them:

Have encrypted videos of US bomb strikes on civilians http://bit.ly/wlafghan2 we need super computer time http://ljsf.org/
— WikiLeaks (@wikileaks) January 8, 2010

The defense points to Bradley’s chats saying merely that WikiLeaks has an encrypted video, not that he gave it to them. The only video proven to match hash-values with the U.S. Central Command’s version can be found on Jason Katz’s computer, and no connection has been found between Katz and Manning. 

In the other tweet, WikiLeaks requests “.mil email addresses,” and which the government cites when claiming Bradley worked at WikiLeaks’ behest, following their direction:

We would like a list of as many .mil email addresses as possible. Please contact editor@wikileaks.org or submit
— WikiLeaks (@wikileaks) May 7, 2010

But the defense says Bradley never saw that tweet, and what he’s said to have downloaded to his computer doesn’t quite match the request: defense lawyers imply he downloaded the U.S. Forces-Iraq address list, not all military email addresses. Investigators could not find the Most Wanted Leaks list via WikiLeaks’ website – they only found versions of it by searching with Google.The defense objected to the use of these items on hearsay, relevance, and authentication grounds.

The defense said the Google Cache-retrieved tweets are ‘double hearsay’ evidence and therefore unreliable: essentially, it claims, Google is “saying” what another website “said” at a certain point in time. Defense lawyer Capt. Tooman said that the judge would need to hear directly from someone from WikiLeaks itself to be able to hear personal knowledge of when those tweets were sent and what they say. 

The government claimed the evidence meets a hearsay exception that allows for evidence that has an effect on the listener for an element – they say the evidence goes to Bradley’s knowledge of what WikiLeaks would do with information that he gave them. But the defense countered that there’s no proof Bradley even looked at these tweets, and it has to be established that he did for the evidence to qualify for that exception.

That same argument was made for the government’s attempt to admit a Wayback Machine-retrieved version of WikiLeaks’ 2009 Most Wanted Leaks list. The defense contests the government’s production of that list because it can’t be proven that the Wayback Machine didn’t rely on a third-party web-crawler to obtain it, and if a third-party crawler did, we’d need to see personal knowledge from that crawler that the information wasn’t manipulated.

The defense has already admitted a different version of that list; one that calls for journalists, lawyers, police, and human rights activists to contribute to the list to ask for documents that would aid their work. But, the defense says, the government only provided one version because it better supports their case theory. The government only offered one version and they only use the Wayback Machine to authenticate it. There are versions of the list here, here, and here.

The government wants to prove that he viewed these tweets and lists before disclosing documents for the Article 104 Aiding the Enemy charge, so in the absence of less-circumstantial evidence, the admissibility of these documents could go a long way to supporting or eroding their contention. 

Court is in recess and will resume for a status conference on Tuesday, briefly updating the court on the 17 stipulations of testimony in progress. In addition to those 17, the government intends to call 12 more sentences in its merits case. On Wednesday, court is scheduled to resume with those stipulations and more government witnesses.

Guantanamo detainee briefs and the global address list: trial report, day 7

By Nathan Fuller, Bradley Manning Support Network. June 17, 2013

The third week of Bradley Manning’s court martial began with testimony about Guantanamo Bay detainee assessment briefs (DABs) that WikiLeaks released as the GITMO Files, and the Global Address List (GAL) that the government claims Bradley stole. The GAL is a collection of military email addresses. In February, Bradley pled not guilty to illegally obtaining that list.

This morning, after a long recess during which the parties continued to confer privately, we heard only stipulations of agreed-upon expected testimony.

Guantanamo detainee briefs 

Prosecutors read testimony from Jeffrey Motes, a senior counterterror analyst at Guantanamo Bay, who led the team that created the DABs and spoke to why they were classified. The DABs include detainees’ background information, details of their capture, their affiliation with terrorist groups, indicators of their threat level, and Motes’ team’s analysis of that threat level. While Motes says that the detainees and their affiliates likely already knew all of that information, they didn’t know the U.S.’s assessment and the extent of its knowledge.

The five briefs that Motes reviewed for the investigation into Bradley’s release, he said, included or mentioned Techniques, Tactics, and Procedures (TTPs) of enemy movements, enemy recruitment activities, and engagements with enemy forces – the disclosure of which, he said, could alter enemy practices.

The government also read stipulation of expected testimony for Rear Admiral David Woods, an Original Classification Authority who reviewed the Guantanamo DABs and, following Executive Order guidelines, determined they were properly classified at the Secret level. Woods also said that when reviewing the DABs, he did not consider “open-source material” in the public realm.

We also heard stipulations for Navy Vice Admiral Robert Harward, who reviewed CENTCOM documents, and former Army NCO Louis Travieso, a Defense Intelligence Agency intelligence analyst at CENTCOM. Travieso conducted a line-by-line review of the charged documents in the Iraq and Afghan war logs, as well as documents from the Farah incident and investigation.

All of this testimony likely goes to whether Bradley had reason to believe he was releasing “closely held” information “relating to the national defense,” a threshold not met by mere classification level alone.

Global Address List background

The government says Bradley Manning did “steal, purloin, or knowingly convert” the GAL in violation of 18 U.S.C. 641, a ten-year offense. It contends Bradley had a list of some 74,000 military email addresses on his unclassified NIPRNet computer, which he used in the supply annex.

The government has pointed to WikiLeaks’ tweet requesting ‘.mil email addresses’ as evidence that Bradley was acting under Julian Assange’s direction. Forensic expert Mark Johnson testified last week that on the unallocated (deleted) portion of one of Bradley’s computers, he found evidence of a ‘tasker’ in which someone allegedly requested Bradley “exfiltrate” or extract the global address list, and evidence that the list was on his computer and had been deleted, but no specific request for it to be sent to WikiLeaks. He found no evidence on that computer that the list was extracted or transferred.

Afternoon update – GAL Testimony 

CWO4 Nixon testified about access to the Global Address List, which he described as a function of the ‘active directory.’ He distinguished between ‘access’ and ‘visibility’ – those with user accounts could search for a name within the Iraq GAL and have access to it, but the list of addresses and names wasn’t visible in full (though it was to those with administrative accounts). Someone logged on to a user account couldn’t simply download the list of addresses for their brigade, s/he would have to manually copy and paste each one individually. He didn’t confirm the government’s earlier number of 74,000 addresses – when he was handed a CD and asked how many addresses were on it, he said about 24,000.

The government read testimony for Special Agent Alfred Williamson, from the Army Criminal Investigations Unit, who forensically examined the supply-annex computer that Bradley used but which belonged to Staff Sergeant Peter Bigelow, supply-room supervisor. Williamson said user account ‘Bradley.Manning’ searched Google News for ‘WikiLeaks’ and ‘nonjudicial punishment,’ and he found encrypted emails between Bradley and Adrian Lamo. He also said it appeared that Bradley, or someone on his account, was using the ‘Peter.Bigelow’ account, as he viewed Bradley’s gmail account and other personal documents. Williamson found five files related to the GAL, and several ‘blah-named files’ (Bradley said he compressed two documents into a file named Blah.zip), created and deleted on May 13, 2010.

Prosecutors read testimony from Peter Bigelow, confirming that Bigelow allowed Bradley to use his personal computer after he noticed Bradley was checking his Gmail on a NIPRNet (non-Secret, military) computer, and that he didn’t conduct searches for WikiLeaks and didn’t create the ‘Blah’ folder.

GAL value and access

Chief Warrant Officer 4 Armond Rouillard testified about the GAL’s value, which he divided into monetary and cyber-threat categories, the latter of which the Army focuses on. With the GAL email addresses, an adversary could target ‘spearphishing’ campaigns against specific users and gain access to their military computers.

But the defense objected to the government offering Rouillard as an expert on GAL’s monetary value, because Specification 16 of Charge 2 specifically alleges Bradley stole or converted the list “of a value of more than $1,000, in violation of 18 U.S. Code Section 641.”

When pressed, the government withdrew its presentation of Rouillard as an expert on the GAL’s value, and he was instead accepted only as an expert on the GAL itself and cyber-security more generally.

The defense established on cross-examination that there was no directive prohibiting the downloading of the address list.

More stipulations and recesses

The parties are continuing to agree to more and more stipulations of expected testimony, currently working on 17 more behind the scenes. This brings another long recess. Tomorrow at 9:30 AM, they’ll present oral arguments on the admissibility of certain prosecution exhibits. After that, the court will be in recess until Tuesday, when we’ll hear an update on the stipulations, and on Wednesday the government’s case will resume. The parties also agreed that the government will not call any sentencing witnesses earlier than July 8.
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PREVIOUS UPDATE:

Bradley Manning’s chats and emails; authorized access: trial report, day 6

Several more government witnesses testified today about Bradley Manning’s online activity, access to various programs, and what the Apache video revealed. Court is in recess until Monday, June 17.

By Nathan Fuller, Bradley Manning Support Network. June 12, 2013.

Another long, witness-packed Wednesday made room for another long weekend in Bradley Manning’s trial: after today’s session, court is in recess again until Monday morning.

Army CCIU special agent Mark Johnson testified for the entire morning session at Ft. Meade, discussing his forensic examination of Bradley Manning’s personal MacBook Pro and his search for connections to WikiLeaks.

On the unallocated (deleted) portion of the laptop, he discovered chats between an account associated with Bradley Manning and an account with the handle ‘pressassociation,’ which the government contends is connected to Julian Assange (along with the alias Nathaniel Frank), ranging from March 5, 2010, and March 18, 2010.

The two discussed government information, and prosecutors focused on ‘pressassociation’s comment about the United States’ Open Source Center, “that’s something we want to mine entirely.”

But on cross-examination, Johnson confirmed that ‘pressassociation’ never actually asked Manning for anything, and never asked him about his direct access to any information.Johnson also found emails, encrypted and un-, between Bradley and Eric Schmiedel, discussing State Department cables, the Iraq War Logs, the Collateral Murder video, and on the unallocated portion, WikiLeaks. The defense established that Bradley never looked at websites associated with terrorism or anti-American beliefs – more testimony going against the government’s claim that Bradley had knowledge that WikiLeaks releases would end up in the hands of the enemy.

Defense lawyers also gleaned that the only evidence of a connection between Bradley and WikiLeaks’ submission page can be found for April 10-12, 2010. They also confirmed that files referencing Farah (see yesterday’s revelation on that video) on his MacBook Pro would have to have arrived after January 31, 2010, because that’s when Bradley wiped his computer, including its free space, and everything predating that would be gone. This lends itself further to the defense claim that Bradley sent the Farah video to WikiLeaks in April 2010, not November 2009.

Collateral Murder reveals Apache techniques

The government read stipulated testimony from Jon LaRue, a former Apache helicopter pilot who reviewed the infamous ‘Collateral Murder’ Apache video after its release. He said the release of the video, which is unclassified, revealed TTPs, or Techniques, Tactics, and Procedures. TTPs, he said, are “pieces of a puzzle,” so with other pieces, a potential adversary could put together that puzzle and be able to learn about how U.S. Apaches operate.

Manning and password decryption 

The government recalled its forensic expert David Shaver to talk about Bradley’s ability to access the administrative privileges on his computer, which are more broad than his user rights and which he’d need a password to access. That password is broken up, for security’s sake, into a SAM file and a system file. While the government spent significant time proving Bradley’s installation of a Linux operating system, which allowed him to access the SAM file, the defense quickly showed on cross-examination that he never accessed the system file and therefore couldn’t have accessed any passwords.

Wget and Bradley’s “authorized access”

More and more testimony on Wget didn’t provide the final word on whether Bradley “exceeded authorized access” by adding programs to his SIPRNet computer. He added software called Wget to rapidly increase downloading of files from the network, and Wget wasn’t on a list of pre-authorized programs that soldiers could have on their work computers. However, soldiers frequently added movies, music, and (more importantly, since they’re similar to Wget in file type) video games to the shared drive. Captain Thomas Cherepko, who managed Information Assurance for Bradley’s unit, testified that even after he deleted those unauthorized files from the shared drive, soldiers would re-add them, due to a “command laxity” about enforcing those rules.

Court resumes Monday, June 17, at 9:30 AM.
____________________________________________________________________________PREVIOUS UPDATE:

With the newest media storm over Edward Snowden, it is becoming clear that whistleblowers will increasingly be taking center stage as the war continues between the forces of tyranny and forces of truth. This war, like all wars, is filled with the full range of tactics from both sides, which will command our discernment like never before. The great news is that a new type of open dialogue has been established.

Day 4 of the Bradley Manning trial started the week with a focus on the programs that Manning had access to, and those he might have used as a tool with which to supply data to the enemy. So far, nothing but refutation has been forthcoming. Forensic experts and analysts highlighted that the programs Manning used were not expressly prohibited.

It was also stated by Army CID Special Agent Mark Mander that the investigation of Manning was “probably one of the largest and most complicated investigations we’ve ever had.” This should say something about much of the corporate media that would make this case out to be a cut-and-dried example of a scheming traitor against America. Many more questions have been posed as week two begins, as recounted below:

No connection between Manning and Jason Katz, CENTCOM video: trial report, day 5

Today’s afternoon session revealed more substantive and consequential testimony, so it precedes the morning session here. The defense, via forensic expert David Shaver, established that there was no evidence of a connection between Manning and Jason Katz, and that there is no evidence Manning downloaded a video from the CENTCOM database.

By Nathan Fuller. June 11, 2013.

No connection between Jason Katz and Bradley Manning

The live witnesses – as opposed to read-aloud stipulations – in this afternoon’s session discussed the investigation of Jason Katz’s computer, where a Farah video was found that the government believed to be connected to Bradley Manning. The Farah incident was a horrifying massacre on May 4, 2009, in Afghanistan, in which a U.S. airstrike killed scores of innocent Afghan women and children. Katz was fired from the Department of Energy for having password-evading programs.

The video, a version distinct from the one found on Bradley’s computer but matching the one hosted on the U.S. Central Command’s (CENTCOM) website, was encrypted, and investigators found decryption software on Katz’s computer. Adrian Lamo learned about Katz’s possession of the video and also turned him into the authorities. [See Lamo’s and Shaver’s December 2011 testimony on Katz and the video.]

The government wanted to connect Katz and Manning, but today forensic expert David Shaver confirmed that he found no connection whatsoever – no email, chats, or any other connection – between the two.

No proof that Manning downloaded Farah video from CENTCOM

Prosecutors were also unable to establish what they promised they’d prove in their opening statement (pg. 46, lines 11-15),

The evidence will also show that on this work computer was a forensic match of the video charged in specification 11 of charge two, the BE 22 PAX dot zip video was on this computer. And forensic examiners will testify that that video was on the computer on 15 December 2009.

The video file found on Bradley’s computer, under a folder titled ‘Farah,’ was titled TGT1.wmv, and it couldn’t be matched to the charged video, because it was corrupted and couldn’t be viewed.

The TGT1.WMV doesn’t match the name of a file found on CENTCOM’s server, which is the charged video, BE22PAX.zip. That file matches the one found on Jason Katz’s computer, and was encrypted. Katz was known to have decryption software, and the government has tried to tie WikiLeaks’s January 8, 2010, tweet about an encrypted video to Bradley and the Farah incident.

That tweet also predates the only time Bradley is known to have downloaded a Farah video. The defense established that Bradley downloaded the TGT1.wmv video from the T drive – a shared drive among intelligence analysts in his unit, to which he was authorized access – in April 2010. There’s no proof that Bradley downloaded the zip file from CENTCOM, and no proof that he downloaded a Farah video in November 2009 as the government has charged.This lines up with Bradley’s proposed substitution to the government’s charges and his subsequent plea and statement.

The government has long contended there were two disclosures of a Farah video, in November 2009 (Spec 11 of Charge 2 says between 11/09 and 1/8/10) and April 2010, but it chose to charge him with the earlier disclosure. The defense has contended that there was only one transmission, in April. (See Alexa O’Brien’s transcript of that claim here.)

The prosecution said it had the forensic evidence to prove that contention, but Shaver’s testimony does not support it. He said that data transmission logs show no transfer of the CENTCOM zip file to Bradley’s computer – there was only the transfer from the T drive in April.

Since the prosecution refused to accept Bradley’s plea on that charge with changed dates, he pled not guilty to Specification 11 as charged. Now it can’t go back and charge for the April offense, and thus far they can’t prove the November offense. Perhaps it should’ve charged Jason Katz for that video instead.

Original post, morning session

Yesterday at Ft. Meade, we learned that the government and defense have agreed to 19 new stipulations of expected testimony, but didn’t hear them in court. We heard several of those stipulations today, of Army criminal investigators who collected the charged documents, classification specialists who reviewed whether the documents were properly marked and classified, and from a U.S. Central Command officer who reviewed the classification of the Farah investigation.

The first live witness was Staff Sergeant Matthew Hosburgh, who monitored military networks and evaluated their potential threats and vulnerabilities. He testified largely about his report from a November 2009 conference in Berlin, called Here Be Dragons and hosted by the Chaos Communication Congress. The conference included presentations on net neutrality, hacking, security, and WikiLeaks.

Julian Assange gave the WikiLeaks presentation, attempting to elicit support for and raise awareness about the site’s launch and goals. SSG Hosburgh confirmed that WikiLeaks requested anonymous submissions of classified and sensitive documents withheld by governments and corporations, but that Assange never mentioned or indicated support for terrorists.

In his report, SSG Hosburgh’s noted terrorists’ use of the internet in his summary of the net neutrality presentation but not in the WikiLeaks portion. WikiLeaks, he confirmed, was focused on keeping the public informed, and wasn’t focused on the United States in particular.

Did Manning see Hosburgh’s report?

The prosecution contends Bradley accessed that report (along with the 2008 Counterintelligence special report) but has yet to prove that in court. The government again called Army Special Agent Mark Mander, who reviewed Intelink (the military’s Google) logs to view searches made on Bradley’s computers. He found results for Stf. Sgt. Hosburgh’s report, but as the defense established on cross-examination, he can’t determine if Bradley saved the report, printed it, or even was the one using his computer to view it.If he did, the report would be relevant to Bradley’s knowledge of WikiLeaks at the time of his release, and therefore whether he “knowingly [gave] intelligence to the enemy.” But that he was the one on that computer, viewing that report, has not been definitively established.

As was established yesterday, there’s similar ambiguity about Bradley’s knowledge of the 2008 Counterintelligence report on WikiLeaks.

Stipulations on Farah investigation testimony

Prosecution lawyer Maj. Ashden Fein read expected testimony from Lt. Commander Thomas Hoskins and retired Lt. Colonel Martin Nehring, who both reviewed war documents, and spoke about the investigation of a massacre in Farah province. Lt. Com. Hoskins determined the war logs were properly classified at the time, while Lt. Col. Nehring explained more about what made them sensitive.

The Significant Activities (SigActs) reported on IED attacks, tactics and procedures for responding to those attacks, casualties, small arms fire, and “sources and methods of intelligence collection.”

Programs that Bradley Manning used weren’t prohibited: trial report, day 4

By Nathan Fuller, Bradley Manning Support Network. June 10, 2013.

The second week of Bradley Manning’s court martial began with forensics experts returning, testimony from someone who shared Bradley’s computer, and updates on stipulations of expected testimony, but that all came after more questions about media access.

Stenographers deserve trial access

Judge Denise Lind received a motion from a third-party to allow for the Freedom of the Press Foundation’s crowd-funded stenographers to be credentialed for the media center at Ft. Meade, to provide an unofficial transcript of the proceedings. Judge Lind wouldn’t rule on the motion since it didn’t come from the defense or government, but defense lawyer David Coombs stood briefly to support it. He said the motion assists Bradley’s Sixth Amendment right to a public trial and the First Amendment right to a free press.

Forensic expert: Wget not explicitly prohibited

David Shaver, head of forensic investigations for the Army Criminal Investigations Unit, has been called a few times and will likely be called back frequently to discuss the investigation of Bradley’s computer. He testified today about his review of Bradley’s searches on Intelink, the military’s secure version of Google.

Shaver testified about Bradley’s searches for ‘WikiLeaks,’ which started on December 1, 2009, and for ‘Julian Assange’ and ‘Iceland.’ A few times, his searches for WikiLeaks brought him to the Army’s 2008 Counterintelligence Special Report, but Shaver could only confirm that he successfully reached that report once.

He also talked about the program Wget, which automates downloading from the internet. Shaver said the program wasn’t specifically authorized with a Certificate of Net Worthiness (CON), but that it wasn’t prohibited either, and not having a CON didn’t mean it wasn’t allowed.

Fellow analyst: mIRC chat, other programs not prohibited

Chad Madaras was in the 2nd Brigrade 10th Mountain division along with Bradley Manning, so they were together in Ft. Drum before deploying and then together in FOB Hammer in Iraq. In Baghdad, they worked in the same unit and used the same computer but on opposite shifts: Bradley worked at night, Chad during the day.

Their shared computer was frequently slow and required ‘reimaging’ – wiping the computer fully and starting over new – multiple times. Therefore, analysts were expected to save files to CDs or to a shared drive to prevent losing any data.Madaras testified that everyone else in their Sensitive Compartmented Information Facility (SCIF) used mIRC, a chat program Bradley said he used. Madaras also confirmed that music, movies, and video games were on the shared drive that all analysts could access. They weren’t explicitly allowed, but they weren’t banned either. This lends itself to the question of whether Bradley “exceeded authorized access” – the government contends he added programs that he wasn’t allowed to have.

He also confirmed that it wasn’t prohibited to explore the SIPRNet, the Secret-level, military-wide internet, for other regions of the world beyond mission scope. Bradley perused the State Department diplomatic database, and while others may not have done so, it hasn’t been established that this was a violation.

Stipulations continue 

We also heard the stipulations of expected testimony of Steve Buchanan, an NSA contractor who confirmed some basic facts about Intelink, which Shaver delved into further.

The defense and government took a two-hour lunch break to continue working on more stipulations. The military’s subject matter expert tells us that twelve stipulations have been agreed to, eight more are under negotiation, and several more may be on the way.

Afternoon session 

Update: 7:00

Tweets on trial 

After nearly a three-and-a-half hour lunch break, Army CID Special Agent Mark Mander testified about his contribution in the investigation of Bradley Manning, which he called “probably one of the largest and most complicated investigations we’ve ever had.”

Mander said he used Archive.org to find a 2009 version of WikiLeaks.org that allegedly shows a ‘Most Wanted Leaks’ list of desired documents, and used Google Cache to retrieve WikiLeaks’ 2010 tweets asking for ‘.mil addresses’ and for ‘super computer time’ upon receipt of an encrypted video. The prosecution wants to authenticate these documents as relevant to Bradley’s mindset at the time of the 2010 disclosures.

But the defense established that Mander has no personal knowledge of how Archive.org or Google Cache works, whether either had been hacked, whether tweets can be deleted, or whether Bradley had viewed those pages and tweets at that time.

The defense also presented an alternate version of the ‘Most Wanted Leaks’ page, which was similar but which introduced the list as the concealed documents most sought after by journalists, lawyers, police, and human rights investigators. Judge Lind accepted both versions as evidentiary exhibits.

Sheila Glenn: Army Counterintel couldn’t confirm that enemies used WikiLeaks

Ft. Meade’s Sheila Glenn works on Army cyber counterintelligence, and she testified about the 2008 Army Counterintelligence Special Report, which she reviewed and which speculated whether foreign intelligence services or terrorist groups used or could use WikiLeaks.org to gather U.S. defense information.

She mostly confirmed important elements of the report. She read aloud,

some argue, Wikileaks.org is knowingly encouraging criminal activities such as the theft of data, documents, proprietary information, and intellectual property, possible violation of national security laws regarding sedition and espionage, and possible violation of civil laws. Within the United States and foreign countries the alleged ―whistleblowers are, in effect, wittingly violating laws and conditions of employment and thus may not qualify as ―whistleblowers protected from disciplinary action or retaliation for reporting wrongdoing in countries that have such laws.

She confirmed,

Wikileaks.org supports the US Supreme Court ruling regarding the unauthorized release of the Pentagon Papers by Daniel Ellsberg, which stated that ―only a free and unrestrained press can effectively expose deception in government.

A primary point of contention regarded ‘intelligence gaps,’ a subsection of the report under which it’s asked,Will the Wikileaks.org Web site be used by FISS, foreign military services, foreign insurgents, or terrorist groups to collect sensitive or classified US Army information posted to the Wikileaks.org Web site?

Glenn testified that intelligence gaps could fall within a range of certainty, from points of knowledge that the Army wanted to confirm, to subjects about which it knows very little. At the time, she said, Army Counterintelligence could not confirm that foreign intelligence services, adversaries, or terrorist groups did collect information from WikiLeaks.org.

This week

Remaining on the list of upcoming witnesses is Matthew Hosburgh, an intelligence analyst, who’ll testify about a ‘computer chaos club’ document; Ken Moser from CENTCOM who’ll testify about the Farah investigation; and Chief Warrant Officer 5 Jon Larue.

______________________________________________________________________________
PREVIOUS UPDATE:

At the heart of Day 3 was the inability of Bradley Manning's supervisor, Captain Casey Fulton, to issue the same statement of authority as the U.S. government that WikiLeaks = Al Qaeda. In fact, she couldn't mention WikiLeaks as a specific source at all, but only that social media was a known general hangout of America's enemies. As Amy Davidson at The New Yorker, illustrates: social media, Google, Google Maps and other news outlets could easily be "aiding the enemy" in much the same way.

“The prosecution has specified Al Qaeda and one of its affiliates, as well as a third organization whose identity, also disturbingly, it classified. (Overclassification is one of the scandals of this story.) At what point could “enemy” mean anyone who doesn’t like us? Can it mean us ourselves, at moments when we think that something has gone wrong, and has to be exposed?” 

The prosecutors intend to bring in a witness from the Navy Seals to testify that he found a published document from the WikiLeaks website in Osama Bin Laden’s compound in Abbotabad. But just how can one news agency, or public online forum control who their readers are and how can they avoid the government’s harassment if their readers are considered the “enemy” ? (Source)

Furthermore, it appears that some of what Manning was collating and preparing for distribution were specific assignments from his superiors and not a premeditated plot. This is fundamental in the government's central "aiding the enemy" argument. Rather, it seems that Bradley Manning had been cited often by other intelligence analysts for his extraordinary natural abilities. As Fuller states below, that means it is likely that Manning "was simply doing his job" -- and excelling at it. In short, he was working for the Army, not for WikiLeaks.

Many more essential details are provided by Nathan Fuller's excellent coverage of this trial, as it enters Day 3, and will recess until the 10th. This trial will determine whether telling the truth should be punishable by life in prison. It is a determination that is guaranteed to affect us all.

Manning supervisor undercuts aspect of aiding the enemy charge: trial report, day 3

By Nathan Fuller, Bradley Manning Support Network. June 5, 2013.

On day 3 of Bradley Manning’s court martial, one of his supervisors didn’t mention WikiLeaks when asked about specific websites the military warned that the enemy might visit. Bradley’s fellow soldiers relayed that Iraq War Log documents didn’t reveal source names and that an Excel spreadsheet he created was done for intelligence work, not for WikiLeaks. Read reports from day 1 and day 2.

Captain Casey Fulton testified at the end of today’s Bradley Manning trial proceedings that there were no specific websites, other than social media sites, that intelligence analysts knew that America’s enemies visited. Capt. Fulton deployed to Iraq with Bradley in November 2009 and was in charge of Bradley’s intelligence section.

The government’s aiding the enemy charge relies on the claim that Bradley knew that giving intelligence to WikiLeaks meant giving it to Al Qaeda. Prosecutors have cited several times this Army Counterintelligence Special Report, which asks,

Will the Wikileaks.org Web site be used by FISS, foreign military services, foreign insurgents, or terrorist groups to collect sensitive or classified US Army information posted to the Wikileaks.org Web site?

But when defense lawyer David Coombs asked Capt. Fulton what websites the enemy was known to visit gathering intelligence, she merely said that it was general knowledge that the enemy goes to “all sorts” of websites. Pressed to name something specific, Capt. Fulton said that they were briefed on social media sites like Facebook, where people generally post lots of personal information, and Google and Google Maps. Once more Coombs asked if there were any specific websites that she and her fellow analysts had “actual knowledge” that the enemy visited, and Capt. Fulton said no.

Intelligence work for Army, not WikiLeaksShe also provided more information on an Excel spreadsheet that Bradley created as an analyst in Baghdad, which included all of the Significant Activities (SigActs) later released in the Iraq War Logs. The government has referred to this spreadsheet as an indication that Bradley was culling information and preparing it to be sent to WikiLeaks. But Capt. Fulton said that the spreadsheet was used for an intelligence analyst assignment: she had asked him to compile all SigActs from the entire Iraq War to discern any patterns and increases or decreases in violence throughout the war. Bradley was simply doing his job.

That testimony corroborates what we heard from other witnesses today. Chief Warrant Officer 3 Hondo Hack and Warrant Officer Kyle Balonek testified to Bradley’s exceptional organizational abilities and impressive work for such an inexperienced analyst.

CW3 Hack rarely saw Bradley since they had opposite work shifts, so he looked into the shared drive where analysts posted reports and files they were researching. He called Bradley’s folder perhaps the most organized he’d ever seen, providing far more detail than more experienced analysts.

That revelation came after government questioning that attempted to paint Bradley as neglectful of his duties, presenting an email from him to CW3 Hack providing the name of a high-value target several months after he started his work. Prosecutors admitted when prompted by Judge Denise Lind that they were trying to show a dereliction of duty, and Coombs recalled their effort to characterize him as working for WikiLeaks when he should have been doing his job.

But CW3 Hack told the defense that he was frustrated with the entire intelligence analyst squad, and didn’t expect Bradley, as a junior analyst, to provide “actionable” information and in fact expected more from his more senior colleagues.

War Log reports didn’t reveal source names

CW Balonek was one of those more experienced analysts, who worked in Bradley’s division. He testified about keeping classified information secret, since he witnessed Bradley’s signing of the Non-Disclosure Agreement vowing to protect sensitive documents. He told government lawyers that it wasn’t common practice for those in Iraq to look at Afghanistan SigActs or other files, but he told the defense that there wasn’t any provision that he knew of prohibiting it.

He gave more insight into what those SigActs or HUMINT (Human Intelligence) files contained. The SigActs typically provided the 5 Ws: who, what, when, where, and why an incident occurred, documenting basic information about incidents like IED attacks. Both types of files didn’t name U.S. sources by name—HUMINT reports cited sources by number, and SigActs would protect the source from identification as well. SigActs have some names, but those are witnesses, for example, to violent incidents, and not reliable sources with exact information.

Supervisor Showman’s conversations with BradleySpecialist Jihrleah Showman was Bradley’s team leader at Ft. Drum before he deployed to Iraq, interacting with him daily. She testified with slight but visible disdain about their personal conversations, which she said typically involved “his topic of choosing,” and that he talked about social interests including “martini parties” in the D.C. area, having friends with influence in the Pentagon, and his interest in shopping.

She also said he liked to talk about politics, and that he would often debate with others about broad U.S. policy and that she found him “very political” and on the “extreme Democratic side,” responding affirmatively to Coombs’s phrasing.

When she oversaw him at Ft. Drum, most soldiers uploaded video games, movies, and music to their computers, which weren’t explicitly authorized but which she believed her superiors knew about. Bradley was so “fluent” with computers, she said, that she asked him to install the military chat client mIRC to her computer, and that he once mentioned that military portals’ passwords “weren’t complicated” and that he could always get through them.

Because the government moved through its witnesses so quickly, court is recessed for the week and will return on Monday, June 10.

You can donate to the Bradley Manning Defense Fund Here.
______________________________________________________________________________
PREVIOUS UPDATE:

As a part of today's update, we are also including this new trailer released that includes various celebrities and well-respected media such as Chris Hedges and Matt Taibbi. "I am Bradley Manning."



Nathan Fuller's new report, as well as our previous update, are available below...

Bradley Manning’s InfoSec write-up never mentioned WikiLeaks: trial report, day 2

by Nathan Fuller, Bradley Manning Support Network. June 4, 2013.

Day 2 of Bradley Manning’s court martial covered his training in information security, his chats with Adrian Lamo, and the forensic investigation of his digital media. Day 1 report here.

Witnesses in Bradley Manning’s trial today testified about the hardware retrieved from Manning’s workstation and housing unit in Iraq, the process for examining forensics of that hardware, his training on classified information, and his online chats with hacker and informant Adrian Lamo.

The proceedings moved quickly – the military’s subject matter expert told us that the government is two days ahead of schedule – because the defense continues to stipulate to expected testimony, which allows the government to simply read what a witness would have testified to without the need for cross-examination. Bradley took responsibility for releasing documents to WikiLeaks in late February 2013, so the defense doesn’t contest much of the basic forensic information for those releases.

Manning’s PowerPoint on Information Security doesn’t mention WikiLeaks

In the first pretrial hearing in December 2011, when the government claimed that Bradley Manning knew that giving documents to WikiLeaks meant giving them to Al Qaeda, it often referred to a PowerPoint presentation that Bradley created while in Army training, implying if not stating outright that in the presentation Bradley mentioned WikiLeaks specifically as a site America’s enemies use to collect information.

But today we saw that PowerPoint, while the parties questioned Troy Moul, the instructor from Bradley’s intelligence analyst training, and nowhere did it mention WikiLeaks – it merely claims that adversaries use the Internet generally to harvest information about U.S. operations.

In fact, Moul admitted, “I had never even heard of the term WikiLeaks until I was informed [Bradley] had been arrested.”Moul testified at greater length about the instruction Bradley received at Advanced Individual Training (AIT) before he became an intelligence analyst, including the potential damage releasing Secret information could cause and the Non-Disclosure Agreement he signed, vowing to keep classified information secret. But the government has to show that he knew that passing information to WikiLeaks meant he was indirectly passing documents to Al Qaeda. This PowerPoint clearly doesn’t make that connection. In yesterday’s opening arguments, the government discussed an Army Counterintelligence Special Report, which delves into whether WikiLeaks.org is used by adversarial organizations – but as Marcy Wheeler writes,

The report itself is actually ambiguous about whether or not our adversaries were using WikiLeaked data. It both presents it as a possibility that we didn’t currently have intelligence on, then presumes it.

Adrian Lamo confirms chat log comments, Manning’s humanist values

Computer hacker and government informant Adrian Lamo testified about his instant messages with Bradley Manning from late May 2010, which he turned over to the authorities, WIRED magazine, and the Washington Post, leading to Bradley’s arrest.

Both lines of questioning tracked opening arguments. Responding to prosecutor questions, Lamo said his chats with Manning were encrypted, that no one tampered with or manipulated them before he handed them over to Army CID, and that Manning discussed disclosing classified information and communicating with Julian Assange. Lamo frequently gave maximalist and formal responses to government questions – explaining for example that Facebook is a ‘very popular social media website where lots of people connect.’

In cross-examination, defense lawyer David Coombs reviewed several lines of chats that Lamo then confirmed. He recalled that Bradley was a humanist, someone who wanted to investigate the truth, and someone who wanted to disclose information for the public good. He acknowledged that Bradley never indicated an intention to help America’s enemies or intimated any anti-American sentiment.

Lamo was then permanently excused from testifying.

Evidentiary and intelligence analyst witnesses

Army Computer Crimes Investigative Unit Special Agents David Shaver and Mark Johnson testified briefly about their expertise with forensically investigating and handling digital media. They were established as experts and then temporarily excused, and I expect they’ll be called back multiple times. The government read more stipulations of expected testimony from those who stored Bradley’s hard drives and computers, and from a fellow student in the AIT.

The government is working its way through the chain of command and through Bradley’s time in the Army, in an apparent effort to show a history of disregard for classified information. But one such example turned up rather fruitless: in Moul’s testimony, prosecutors asked about his need to counsel Bradley for posting a video to YouTube in which he referenced “buzzwords” like “Top Secret,” and “SCIF” (Sensitive Compartmented Information Facility). But when asked by the defense whether Bradley divulged (or even knew of any) classified information in the video, Moul said no.

Tomorrow, Warrant Officer 1 Kyle Balonek (whom Alexa O’Brien profiled here), Specialist Jihrleah Showman (O’Brien’s profile) and Chief Warrant Officer 3 Hondo Hack (O’Brien’s profile) will testify, and then we’ll be recessed until Monday – likely because the proceedings moved too quickly to schedule witnesses any sooner.

You can donate to the Bradley Manning Defense Fund Here.
______________________________________________________________________________
PREVIOUS UPDATE:

The extremely disturbing video below started it all. The video was made public through WikiLeaks, and was retitled to be now commonly known as "Collateral Murder." Since then, former Army intelligence analyst, Bradley Manning, has given new voice to the issue of how far the government is willing to go to silence whistleblowers and make an example out of them through relentless hounding and prosecution.

Bradley Manning's case and treatment is at the heart of a new U.S. government mission that equates the revealing of truth as aiding and abetting the enemy. It is a tactic which might end up backfiring.

His trial, which could conclude with Manning spending the rest of his life in prison, started today with opening statements by the prosecution and defense.

The defense asserts that Manning sought to expose the horrific collateral damage of the war in which he was enlisted, and that he did so on humanitarian grounds. For this, he has been charged with transmitting over 700,000 classified documents, logs, and videos to the Internet via WikiLeaks and putting the troops and the nation in grave danger.

Manning was arrested at forward operating base Hammer outside Baghdad on 27 May 2010 on suspicion of being the source of the biggest leak of confidential state documents in US history. He faces 22 charges . . . 

Under the US military rule book, a soldier must be arraigned and his trial officially started within 120 days of him being put into captivity. (Source)

Manning has now been held for well over 1,000 days. The slow trial was called by Manning's lawyer "an absolute mockery" of his rights. His treatment while in custody led 250 legal scholars to sign a letter to the Obama administration that what Manning was being subjected to was tantamount to torture.

Under the terms of his detention, he is kept in solitary confinement for 23 hours a day, checked every five minutes under a so-called "prevention of injury order" and stripped naked at night apart from a smock. (Source)

The Army has essentially been treating Manning as an enemy combatant. Statements by the Army's prosecuting attorney clarify the military's view of the seriousness of Manning's alleged crimes, and presumably have justified his harsh treatment.

“This is a case about a soldier who systematically harvested hundreds of thousands of classified documents and dumped them onto the Internet, into the hands of the enemy—material he knew, based on his training, would put the lives of fellow soldiers at risk,” said Army Capt. Joe Morrow, who is prosecuting the case. (Source)

Manning already has pleaded guilty to 10 charges of espionage, computer fraud, and violation of additional laws for which he could receive up to 20 years in prison.

The current trial will determine the far greater crime of deliberately aiding the enemy, for which he could face life in prison without the possibility of parole. The prosecution emphasized that Osama bin Laden obtained some of the information that Manning released, demonstrating aid to the enemy.

The government's hardline in pursuing Manning as an enemy of the state might show more about the level of embarrassment the Obama administration has endured, as opposed to a sincere effort to assure Americans that Manning indeed put the nation at great risk. Especially since, as noted by the Washington Post, this military trial will be the biggest since the My Lai massacre of the Vietnam War in which 504 unarmed men, women, and children were killed by American soldiers after many were raped and tortured.

Michael Ratner, president emeritus of the Center for Constitutional Rights, said he was shocked the government proceeded after the plea offer. “It is like hitting Manning with a sledgehammer,” he said. “They have him for 20 years, and then they go for life. Twenty years is enough for a pound of Manning’s flesh.” (Source)

There will be no public oversight of this trial due to its classified nature, which should only enhance the secrecy for which the government has been criticized throughout Manning's captivity. Unless there is a plea arrangement, the trial is expected to last for 3 to 4 months. Interestingly, Manning today reasserted his wish to a trial by Judge Denise Lind, and not a jury.

We will update this post as more information about Manning's trial becomes available.

Please leave your thoughts below if you believe Manning was presenting a threat to America, or if you agree with Manning that he wanted only to “spark a domestic debate over the role of the military and our foreign policy in general.”

The Freedom of the Press Foundation has hired a court room stenographer to record transcripts of the proceedings.

Week 1

June 3. Day 1. Morning session. 06-03-13 AM session

June 3. Day 1. Afternoon session. 06-03-13-PM-session

June 4. Day 2. Morning session. 06-04-13-AM-session

June 4. Day 2. Afternoon session. 06-04-13-PM-session

June 5. Day 3. Morning session. 06-05-13-AM-session

June 5. Day 3. Morning session. 06-05-13-PM-session

Relevant videos:




Other sources:
http://rt.com/usa/bradley-manning-live-updates-163/
http://iam.bradleymanning.org/

Updated July 20th, 2013

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