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. 

Danny Lewis, DIA. Sketched by Debra Van Poolen.

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 4:30pm 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.