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.
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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.
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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.
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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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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:
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:
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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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.
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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.
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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 testimonyon 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.
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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 WikiLeaks
She 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 Bradley
Specialist 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.
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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.
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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
