By the Bradley Manning Support Network. July 12, 2013

The U.S. government concluded its five-week case against PFC Bradley Manning the first week of July after providing a surprising lack of evidence that the Army soldier had “aided the enemy” by passing military and diplomatic documents to WikiLeaks. In response, Manning’s defense filed four motions to direct a verdict of not guilty on most of the greater offenses he’s charged with, including “aiding the enemy,” violating the Computer Fraud and Abuse Act, and stealing government property.

All four motions are filed under Rule for Court Martial 917 (d), which says a not-guilty verdict shall be granted in the “absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every essential element of an offense charged.” Each motion carefully lays out the ways in which the government’s own witnesses failed to confirm the prosecution’s arguments set forth in opening arguments.

“Aiding the Enemy”, Article 104

Bradley Manning faces life in prison for this charge alone. For a time, the death penalty was a possibility. Manning has been charged in this case with “Aiding the Enemy” for providing information to WikiLeaks. However, in a final pre-trial hearing this January, military Judge Denise Lind quarried the prosecutors, “Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?” Their reply: “Yes Ma’am.” In this motion, Mr. Coombs explains:

The Government has failed to adduce evidence which, together with all reasonable inferences and applicable presumptions, shows that PFC Manning had “actual knowledge” that by giving information to WikiLeaks, he was giving information to an enemy of the United States. (Sec. 3)

According to the Court’s instructions:

“Knowingly” requires actual knowledge by the accused that by giving the intelligence to the 3^rd party or intermediary or in some other indirect war, 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. “Knowingly” means to act voluntarily or deliberately. A person cannot violate article 104 by committing an act inadvertently, accidentally, or negligently that has the effect of aiding the enemy.

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. (Sec. 4)

The Government has introduced no evidence to suggest that PFC Manning was somehow independently aware that the enemy uses WikiLeaks… PFC Manning’s computer revealed no searches for the enemy, anything related to terrorism, or anything remotely anti-American. (Sec. 5)

Coombs then breaks down the arguments against the U.S. Army’s Counterintelligence Center report, which Harvard Law professor and widely cited scholar Yochai Benkler called “speculative” and “mediocre,” which he said featured prominent and glaring falsehoods, and which he said appeared to have been largely culled from open-source, publicly available information.

The Government also attempts to show that PFC Manning had actual knowledge that the enemy uses WikiLeaks by evidence and testimony related to the Army Counter-Intelligence Center (ACIC) report. (Sec. 6)

First, the title of the report is “WikiLeaks.org—An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?” The question mark obviously denotes that the question is something that the U.S. government does not have an answer to. If the government had actual knowledge that the enemy uses WikiLeaks, the title of the report would [not have] a question mark. If the U.S. government does not have actual knowledge of the enemy’s use of the WikiLeaks website, then neither can PFC Manning. (Sec. 7)

Finally, Coombs notes that in online chats with Adrian Lamo, Manning explicitly disavowed interested in providing another state with the documents, and instead wanted them available for the public good.

PFC Manning’s state of mind and professed motive for releasing the charged documents to WikiLeaks belies any argument that PFC Manning had actual knowledge that by giving information to WikiLeaks, he was giving information to the enemy. Indeed, PFC Manning refused to sell the information to another country, even though he could have financially benefited by doing so, because he did not want an enemy of the United States to “take advantage of the information.” Id. The chat logs show that since PFC Manning did not intend to aid the enemy, he also did not knowingly give intelligence information to the enemy. (Sec. 10)

 Computer fraud charges, Wget doesn’t exceed authorized access

The government says that Bradley Manning used the automated downloading program Wget to retrieve hundreds of thousands of State Department cables from the Net-Centric Diplomacy database, and that use of Wget alone constitutes exceeding his authorized access to data, a violation of the Computer Fraud and Abuse Act.

Coombs explains that Manning had authorized access to all of the information he accessed, and that the government is attempting to obfuscate that central point by charging him this way.

 The Government’s theory is legally deficient

The government has introduced evidence that PFC Manning used the program Wget to download the diplomatic cables. However, PFC Manning’s purported use of this allegedly unauthorized program to download the information specified in Specification 13 of Charge II does not change and cannot change the only fact that matters in the “exceeds authorized access” inquiry: PFC Manning was authorized to access each and every piece of information he accessed. The Government has not introduced any evidence to suggest that PFC Manning was not permitted to view the cables in question. The Government has not introduced any evidence to suggest that PFC Manning was not permitted to download the cables in question. The Government simply asserts that PFC Manning was not permitted to download them using a certain program, Wget. (Sec. 6)

The Government is simply incorrect in asserting that the use of an unauthorized program to download information automatically converts what would otherwise be authorized access to that information into “exceeding authorized access.”  Whether or not PFC Manning used Wget to download the information he had access to is irrelevant; under the language of Section 1030, as well as this Court’s ruling and all legal authorities, PFC Manning could not have exceeded his authorized access because he was authorized to obtain the information he obtained. That is, “exceeds authorized access” is not concerned with the manner in which information to which one has access is downloaded; it is rather concerned with whether the accused was authorized to obtain or alter the information that was obtained or altered. (Sec. 8)

Coombs explains why such an interpretation is unprecedented, and therefore quite dangerous.

The ridiculousness of the Government’s theory is highlighted when one really distills what the Government is saying. If PFC Manning had downloaded the cables one-by-one (or with a program like Excel which was in the baseline package for the DCGS-A machines), then PFC Manning would not be facing a ten-year prison sentence under 18 U.S.C. §1030. However, because he is alleged to have used a program not technically approved on his DCGS-A machine, he is facing a ten-year prison sentence. A decade in jail cannot turn on what programs the Army happens to put on its “authorized software” list. While the Defense concedes that releasing the diplomatic cables was a criminal offense—one for which PFC Manning has accepted responsibility—it is not, under any stretch of the imagination, a computer crime within any rational meaning of 18 U.S.C. §1030. (Sec. 11)

There is absolutely no legal precedent for the Government’s argument that the specific program with which information is downloaded can determine whether a person “exceeds authorized access” within the meaning of 18 U.S.C. §1030. A survey of the case law reveals that no criminal prosecutions have been maintained based on a theory in the nature of that advanced by the Government here (i.e. that the accessor was permitted to access the information, was permitted to download the information, but was not permitted to download the information using a certain program). (Sec. 13)

Coombs reminds the court that the prosecution could not present the Acceptable Use Policy that Manning signed. In fact, Capt. Thomas Cherepko, who managed Information Assurance in Manning’s unit, admitted that the AUP had been burned.

Critically, the Government has not even presented the AUP signed by PFC Manning or anyone in his brigade. Thus, it is impossible to determine exactly what PFC Manning knew or should have known in terms of limitations on access and/or use. Second, to state the obvious—the AUP refers to the Acceptable Use Policy, not the Acceptable Access Policy. This very fact shows that the policy focuses on use restrictions and not access restrictions. Third, the provision in the sample AUP regarding unauthorized software states, “Id. I will use only authorized hardware and software I will not install or use any personally owned hardware, software, shareware, or public domain software.” The fact that the word “use” appears twice in this sentence clearly shows that this is a “us” restriction and not an “access” restriction. (Sec. 21)

Further more, the fact that Wget wasn’t an officially approved program doesn’t mean much: soldiers were routinely allowed to listen to music, watch movies, play video games, all of which weren’t formally authorized but which superior officers didn’t condemn.

The Government has presented evidence that Wget was not on the approved list of programs for the DCGS-A computer used by PFC Manning in downloading the cables. Thus, it argues that since PFC Manning downloaded the information that he was otherwise entitled to download with “unauthorized software” he thereby exceeded his authorized access within the meaning of 18 U.S.C. §1030. (Sec. 26)

It is clear that soldiers in the S-2 shop were permitted to add executable files to their computers and did so on a regular basis. It is also clear that the chain of command knew about this rampant practice and did nothing about it. In short, soldiers in the T-SCIF were allowed to place executable files on their computer, despite the apparent on paper prohibition against adding “unauthorized software.”  In the S-2 shop, executable files were not considered “unauthorized software.” Thus, in using an executable file, Wget, to download the cables, PFC Manning did not use “unauthorized” software. Instead, he used an executable file—a practice that had been sectioned and approved of by the S-2 leadership and the chain of command. (Sec. 30)

The circumvention argument is a complete red herring. The Government’s theory is that the use of “unauthorized software” can convert what is otherwise authorized access into “exceeds authorized access” within the meaning of section 1030. The unauthorized software in this case happens to be Wget. However, the unauthorized software could be anything, including an unapproved (and more recent) version of an approved program. So, for instance, if PFC Manning had downloaded the cables in an unapproved version of Excel, under the Government’s view, he would still have exceeded his authorized access. Nothing turns on how fast or slow the download speed was—the crux of the Government’s argument is the use of unauthorized software. (Sec. 35)

It is worth noting that the Government has adopted multiple theories of “exceeds authorized access” during the course of this proceeding. If the Government cannot even figure out what the objectionable conduct is which constitutes “exceeding authorized access” how can Soldiers be expected to know which actions are considered to be a “computer crime” and which actions are not? In other words, how could PFC Manning have knowingly exceeded authorized access at the time of the alleged offense if the Government did not even identify what conduct it considered criminal until it failed in its first attempt to state an offense? The fact that the Government is clinging to a theory which hinges exclusively on the use of an apparently unauthorized program to ground imprisonment for 10 years shows just how weak this charge is. (Sec. 40)

There is not one case—not one—where any court in this country has premised criminal liability on a theory akin to the one the Government is advancing today. That fact alone speaks volumes…. It would be a sad day indeed if a decade in jail could hinge exclusively on what program an accused used to download information he was otherwise entitled to access and otherwise entitled to download. (Sec. 41)

Stealing government property, OR accessing copies of documents

Prosecutors charged Manning with “stealing,” “purloining,” or “knowingly converting” the Iraq War Logs, the Afghan War Logs, Guantanamo Bay detainee assessment briefs, and the State Department’s diplomatic cables. Coombs contends that the government mischarged Manning by saying that he stole the databases themselves instead of copies of information contained within them. Throughout its cross-examination of government witnesses, the defense repeatedly established that the Army and State Department were never deprived of these databases upon Manning’s disclosures, so they cannot be said to have been “stolen.”

The Government in this case did not charge that PFC Manning stole or converted “information” or “copies”; instead it charged that he stole or converted “databases”. Such a distinction is not, in any way, a semantic one: what PFC Manning is alleged to have stolen directly impacts not only the legal focus of the alleged theft or conversion, but also the valuation prong of 18 USC 641. That is, if PFC Manning is alleged to have stolen information, the value of the information itself (and not the database) must be established. If PFC Manning is alleged to have stolen a copy of a government record, then the value of that copy must be established. Consequently, what PFC Manning’s alleged to have stolen or converted is of crucial significance. (Sec. 7)

If the Government in this case intended to charge theft of the information itself or theft of a copy of a record, instead of theft of the database, such a charge must appear in the Charge Sheet. (Sec. 9)

To sustain a theft conviction under Section 641, the Government has the burden of proving that PFC Manning wrongfully took “property belonging to the United States government with the intent to deprive the owner of the use and benefit temporarily or permanently.” (Sec. 11)

Thus, it is clear that the Government must show that PFC Manning’s alleged actions resulted in a substantial or serious interference with the Governments use of the databases in question in order for PFC Manning to be found guilty of knowing theft or conversion of databases under Section 641. The Government has failed to offer any such evidence since it is clear that PFC Manning did not steal or covert the databases in question. (Sec.. 15)

The Government has not introduced any evidence that the property in question here—the various databases—were ever moved, altered, corrupted, change or taken away from the United States government. (Sec. 16)

The Government obviously has not charged that PFC Manning stole or converted information contained within a database. Nor has it charged that PFC Manning stole or converted copies of digital records kept by the United States Government. Instead, it has charged that he stole or converted the databases themselves. Since the Government has introduced no evidence that PFC Manning stole or converted the databases in question, he must be found not guilty of section 641 offenses. (Sec. 20)

Coombs points out that even if the prosecution had intended to charge that way, or if it wants to alter its charge sheet, it is not permitted to do so.

To the extent that the Government will now argue that it intended to charge PFC Manning with knowing theft or conversion of the information contained within the databases or theft of copies of government records (rather than charging PFC Manning with theft or knowing conversion of the databases themselves), the Defense submits that the Government is not permitted to do this, as it is outside the scope of the Charge Sheet. (Sec. 24)

That the Government intended to charge and prove that PFC Manning stole the databases and not information is apparent by looking at the evidence that the Government has introduced on valuation. The Governments witnesses all discussed in detail in their stipulations of expected testimony how much it costs to establish and maintain the relevant databases and associated infrastructure in various years. This clearly shows that the Government meant to charge theft of the databases—and not the information—and accordingly should be required to prove the charges in the manner charged. (Sec. 25)

Changing the charge from stealing a “database” to stealing “information” or “copies of records” is a fundamental change which alters the very substance and identity of the offense as well as the accused opportunity to defense against the charge. (Sec. 30)

The Government is not able at this late date to change the Charge Sheet to reflect what it perhaps should have charged PFC Manning with. This Court, in other words, cannot make the Charge Sheet fit the evidence. (Sec. 32)

If the Government instead were to rely on a theory that PFC Manning stole “information” (a charge which is outside the Charge Sheet), it still has not introduced competent evidence of the value of the information allegedly stolen or converted. (Sec. 46)

Finally, to meet the threshold of a federal stealing charge instead of a lesser one, the government has to prove that Manning “stole” something valued at more than $1,000. Its own expert cannot attest to the cables’ value, and therefore there’s no available evidence of the documents’ worth.

The Government’s proffered “expert,” Mr. Lewis, candidly admitted that he did not consider himself to be an expert in valuation; had never valued information before; had not even seen the charged documents until last; had spent only a few hours “researching” in preparation for this testimony; and until last week, did not even understand why he would be testifying. (Sec. 49)

Stealing government property, an Outlook email Global Address List

Here the defense separates the charge of “stealing” the USF-I Global Address List (GAL), a collection of email addresses for U.S. soldiers in Iraq that where a part of the networked Outlook email application, apart from the other items in question. The government does not contend that Manning ever sent the GAL to WikiLeaks, it merely charges that he stole it.

The Government has adduced forensic evidence that email addresses containing the term “.mil” were found in the unallocated space in PFC Manning’s personal Macintosh computer. (Sec. 5)

The Government’s own witness testified that the USF-I GAL contained 160,000 email addresses and that the number of email addresses found in the unallocated space of PFC Manning’s computer totaled 24,000. (Sec. 7)

Perhaps the Government intends to argue that PFC Manning stole or converted part of the USF-I GAL or that PFC Manning stole or converted the Division GAL. However, the Government has not charged PFC Manning with stealing or converting part of the USF-I GAL or with stealing or converting the Division GAL—it has charged him with stealing the USF-I GAL itself. (Sec. 8)

The Government has not adduced any evidence that the .mil addresses on the unallocated/deleted space on PFC Manning’s computer were transmitted to anyone, much less anyone not authorized to receive it. In particular, the Government has not present any evidence that the .mil addresses were transmitted by PFC Manning to WikiLeaks. (Sec. 10)

The Government has not adduced any evidence that PFC Manning was not permitted to look at, save, or download the .mil addresses. (Sec. 11)

Viewed in the light most favorable to the Government, the evidence could show that PFC Manning lawfully downloaded .mil addresses from what appears to be the Division GAL and subsequently deleted the document.  This would be equivalent to, say, an attorney downloading the AKO addresses of other attorneys in the JAG Corps, doing noting with that information, and then subsequently deleting that information. The Government’s own witness, CW4 Rouillard, testified that this was perfectly acceptable. (Sec. 16)

Dangerous precedent

Bradley Manning has been up front about his actions, taking responsibility for releasing documents as an act of conscience, in a declaration that could put him in jail for up to 20 years.

This wasn’t enough for military prosecutors – under pressure from an administration that has overseen an unprecedented attack on whistleblowers and already deemed Manning guilty – who instead egregiously over-charged Manning in an effort to set an example and instill a chilling effect on potential future leakers.

 The lack of evidence supporting this over-prosecution gives Manning’s supporters hope that military judge Col. Denise Lind will follow the law  and reject these greater offenses that would otherwise set dangerous precedents for military service members and our democracy.

Its worth noting that even if some or all of these charged are not dismissed outright as a result of these motions, Judge Lind could still find  Manning not guilty of these same charges during the normal ruling process.

This overview was prepared by Nathan Fuller and Jeff Paterson for the Bradley Manning Support Network.