PFC Bradley Manning court martial: Judge declines to dismiss “aiding the enemy” charge
FORT MEADE, Maryland — Private First Class Bradley Manning was dealt a setback last Thursday after a military judge declined to dismiss the “aiding the enemy charge”.
The 25-year-old former Army intelligence analyst is on trial for allegedly leaking hundreds of thousands of classified records – including the infamous Apache “collateral murder” video, SigActs (or significant activities reports) filed by troops in Iraq and Afghanistan, Guantanamo detainee assessment briefs, and State Department diplomatic cables – to WikiLeaks while he was deployed in Iraq in 2010.
One of the most serious charges filed by the prosecution is Article 104 “aiding the enemy”, which could carry the death penalty or a life sentence upon conviction. Prosecutors alleged that Manning knew that he was providing intelligence to terrorist organizations like Al Qaeda and Al Qaeda in the Arabian Peninsula by releasing classified records to WikiLeaks.
“This was his job. He knew exactly what he was doing. He knew exactly the consequences of his actions. He was trained on that repeatedly. That’s what he did as his daily job. He briefed on the enemy. He was relied upon to brief on the enemy. He briefed on the information that was in the leaked information,” said Capt. Angel Overgaard, one of the prosecutors. “The government is not contending that the accused should have known. The government is contending that the accused did know.”
Shortly after the prosecution rested its case, Manning’s defense team filed a motion under RCM 917 to dismiss the “aiding the enemy” charge, contending the prosecution had failed to present any evidence that proved Manning had “general evil intent” or “actual knowledge” that he was “dealing, directly or indirectly, with an enemy of the United States.”
Under RCM 917, a “directed verdict” of not guilty (or charge dismissal) may be granted if a judge determines that the prosecution did not present “some evidence” that “could reasonably tend to establish every essential element of an offense charged.”
However, standard set by RCM 917 is tilted heavily in favor of the prosecution and does not require the judge to consider the credibility of the evidence presented by the prosecution. As the prosecution pointed out, the “‘some evidence’ standard to survive a motion for a finding of not guilty is a low one.” Consequently, judges rarely dismiss charges or rule in favor of the defense under RCM 917.
JUDGE REJECTS DEFENSE MOTION TO DISMISS ‘AIDING THE ENEMY’ CHARGE
Judge Denise Lind rejected the defense’s motion to dismiss the “aiding the enemy” charge, stating that the prosecution did provide “some evidence from which, together with all reasonable inferences and applicable assumptions, viewed in the most favorable to the prosecution without an evaluation of the credibility of witnesses, could reasonably tend to establish that the accused actually knew he was dealing with the enemy and actually knew that by sending such information to WikiLeaks with the intent that it be broadcast to the public, he was knowingly providing intelligence to the enemy.”
To justify her ruling, Lind cited the evidence presented by the prosecution on Manning’s training as an intelligence analyst which covered the “terrorist use of the Internet” that warned soldiers to “always assume the adversary is reading” material posted online; the non-disclosure agreements signed by Manning advising that “the unauthorized disclosure of classified information could cause damage or irreparable injury to the U.S. or could be used to the advantage of a foreign nation”; Manning’s access of the 2008 Army Counter-Intelligence Center report entitled “WikiLeaks.org – An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?”; the March 2010 chats with WikiLeaks editor Julian Assange in which Manning compared WikiLeaks to “an intelligence agency minus the anonymous sources”; and the May 2010 chats with Adrian Lamo in which Manning admitted that he provided WikiLeaks thousands of classified records.
Lind also pointed out the Iraq SigAct reports that Manning sent to WikiLeaks contained the same information that he and other intelligence analysts use to map out enemy threats. “The accused was aware that the enemy also engaged in similar pattern analysis about U.S. TTPs [tactics, techniques, and practices] and movements,” Lind wrote. “The accused sent to WikiLeaks the same CIDNE-I database and SigActs he used to develop pattern analysis with the intent that it be disclosed to the public.”
Despite the prosecution’s reliance on circumstantial evidence to prove that Manning had “actual knowledge” that he was providing intelligence to Al Qaeda via WikiLeaks, Lind determined that the government has met the low “some evidence” standard needed to avoid a dismissal of the “aiding the enemy” charge.
However, Lind emphasized that she did not take into account the motive evidence presented by the defense or challenges – such as the “intelligence gap” evidence in the Army Counter-Intelligence Center’s report on WikiLeaks – to the credibility of the prosecution’s evidence, explaining that the “weight” of the evidence will be determined and considered when she’s deciding on the verdict.
DEFENSE’S ARGUMENT FOR A ‘NOT GUILTY’ DIRECTED VERDICT ON ARTICLE 104
The defense’s argument for a “not guilty” directed verdict centered on the requirement that the prosecution prove that Manning “knowingly” aided the enemy – namely, Al Qaeda – when he leaked classified records to WikiLeaks.
In this case, Lind has defined “knowingly” as requiring “actual knowledge” by Manning that giving intelligence to WikiLeaks “that he was actually giving intelligence to the enemy through this indirect means.”
“This offense requires that the accused had a general evil intent in that the accused had to know he was dealing, directly or indirectly, with an enemy of the United States,” according to the court’s instructions on Article 104. “‘Knowingly’ means to act voluntarily and deliberately. A person cannot violate Article 104 by committing an act inadvertently, accidentally, or negligently that has the effect of aiding the enemy.”
During oral arguments on July 15th, civilian defense attorney David Coombs contended that the circumstantial evidence presented by the prosecution is insufficient to prove “actual knowledge”.
“Actual knowledge is something more than the circumstantial evidence. Actual knowledge is showing that the person had actual knowledge – they knew by doing this, this is going to happen,” said Coombs. He pointed out that the government’s circumstantial evidence might, at best, establish that Manning “inadvertently, accidentally, or negligently” gave intelligence to the enemy, which does not meet the “actual knowledge” standard needed to prove the “aiding the enemy” charge.
Coombs also challenged some of the prosecution’s key evidence purporting to prove Manning’s “evil intent”. Some of the discrepancies highlighted by the defense include:
* The lack of evidence that Manning was ever “told that a particular enemy looks at or uses the WikiLeaks website” during his training as an intelligence analyst on the enemy’s use of the Internet;
* The forensic evidence collected from Manning’s computers revealed “no searches for the enemy, anything related to terrorism, or anything remotely anti-American”;
* The Army Counter-Intelligence Center (ACIC) report “WikiLeaks.org – An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?” accessed by Manning in December 2009 and March 2010 merely concluded that soldiers should assume that information leaked to WikiLeaks and other similar websites may be accessed by the enemy; the report does not state whether the assumption is true or not. Noting that the report’s title ended with a question mark, Coombs argued that “if the U.S. government does not have actual knowledge of the enemy’s use of the WikiLeaks website, then neither can PFC Manning.”
* Manning’s explanation on why he chose to disclose classified records to WikiLeaks during his online chats with Adrian Lamo in May 2010.
When Lamo asked Manning why he didn’t sell the information to a foreign government and “get rich off it”, Manning replied “[B]ecause it’s public data…it belongs in the public domain…information should be free…it belongs in the public domain…because another state would just take advantage of the information…try and get some edge…if it’s out in the open…it should be a public good”.
The defense argued that the Lamo chat logs clearly showed that Manning “expressly disclaimed any intent to help any enemy of the United States” and that his motive was to expose the information to the American public “in order to hopefully spark change and reform”, particularly on policies pertaining to the wars in Iraq and Afghanistan.
Although the prosecution primarily used the Lamo chats to present Manning’s confessions on disclosing classified information, the defense pointed out that Manning never referenced or mentioned any intent to help Al Qaeda, Al Qaeda in the Arabian Peninsula, Osama bin Laden, Adam Gadahn or other enemies that the government claimed Manning had aided.
“The government’s evidence fails to show in any way that by giving information to WikiLeaks, PFC Manning had actual knowledge that he was giving information to the enemy”, according to the defense. “There is, simply put, no evidence before this court that PFC Manning ever possessed the ‘general evil intent’ that must be shown in order to sustain a finding of guilt under Article 104.”
DEFENSE WARNS AGAINST ‘SLIPPERY SLOPE’ OF ALLOWING GOVERNMENT TO ABUSE ARTICLE 104 TO PUNISH WHISTLEBLOWERS
Given the gravity of the Article 104 charge (which can carry the death penalty or life imprisonment), the defense emphasized that unless the prosecution present sufficient evidence to prove Manning’s “actual knowledge” that his actions would aid the enemy, the court should dismiss the charge to “avoid the very slippery slope” of allowing the government to abuse the “aiding the enemy” charge to “basically punish…people for getting information out to the press”.
Reiterating the prosecution’s position that the Article 104 charge would have been filed regardless of whether the classified information was leaked to the New York Times or WikiLeaks, Coombs said that unless the government is held to the high “actual knowledge” standard, then any leak of classified information to any news organization – even the prominent ones – could be subjected to an “aiding the enemy” charge.
“The sole issue that the government really is advancing is if you give information to any news organization that is going to publish that information and put it on the Internet, now you have actual knowledge that the enemy is going to gain access to that,” said Coombs. “No case has ever been prosecuted under this type of theory – that an individual by the nature of giving information to a journalistic organization would the be subject to a 104 offense.”
Coombs warned that setting such a precedent would allow the government to “basically…put a hammer down on any whistleblower or anybody who wants to put information out.”