By Nathan Fuller, Bradley Manning Support Network. July 15, 2013. 

1030 Computer Fraud charges

Pfc. Bradley Manning, drawn by Debra Van Poolen.

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

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

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

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

Aiding the enemy charge 

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

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

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

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

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

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

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

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

Government to make rebuttal case 

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

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

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

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

The government’s rebuttal case will start Thursday.

Judicial notice of David Finkel’s entire book

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

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