Judge refuses to dismiss Aiding the Enemy and Computer Fraud charges against Manning: trial report, day 19
By Nathan Fuller, Bradley Manning Support Network. July 18, 2013.
Ruling on two defense motions to direct not-guilty verdicts, Judge Denise Lind refused to throw out the ‘aiding the enemy’ and Computer Fraud charges against Pfc. Bradley Manning. The defense filed the motions at the conclusion of the government’s case, before it began with its own witnesses, arguing that the government had failed to provide evidence to support its charges. Rules for Court Martial instruct the judge for this type of motion to view the evidence in a light most favorable to the prosecution. The judge ruled that the evidence the government provided was sufficient to not throw out the charges at this time, but at her final verdict she will weigh both government and defense evidence and could still find Manning not guilty.
Judge Lind said that the prosecution established that in his training as an intelligence analyst, Manning learned that the enemy uses the Internet to attempt to obtain classified information and to keep such information secret. He plotted U.S. military activity, she said the government proved, and knew that the enemy would attempt to do the same. That evidence, she ruled, could tend to establish that Manning knew he was dealing with the enemy. (See here for why that evidence is weak, circumstantial, and therefore could set an extremely dangerous precedent.)
For the computer fraud charge, she ruled that the government established that Manning used unauthorized software (the automated downloading program Wget), and that her court instructions dictate that restrictions on access include “manner of access.” This evidence was enough, when viewed (per her instructions) in a light most favorable to the government, to not dismiss the charge at this time.
Stealing government property charges
The parties then litigated the defense’s other to motions to direct not-guilty verdicts, on the charges that Manning stole government property. The defense argues, as laid out here, that the government mischarged Manning in saying that he stole “databases” instead of saying the stole copies of some of the records in a database and the information contained within.
The first distinction is that Manning took copies, not original records, and therefore never deprived the government of the information. The second is that Manning stole records, and the information within, not the full databases themselves. He didn’t take the infrastructure that makes the database searchable and interconnected, so when the government worked to establish the value (the federal statute requires the stolen property be worth more than $1,000) of the database and cost of producing it, they were proving what they charged but not what Manning ever had in his possession. Defense lawyer David Coombs used the analogy of stealing merchandise from WalMart: if he stole a sweater, he wouldn’t be charged with stealing WalMart. Even if he took all of the merchandise in WalMart, he wouldn’t be charged with stealing the bricks and mortar of the store, and the value of the employees wouldn’t be used to prove the charge, as the government has essentially done in this case.
The government contends that it charged correctly, and that information contained in a record is inherent within that record. Prosecutor Capt. Von Elton said that charging Manning with a “thing of value” put him on notice that he would be charged with the information within. He also said that the distinction regarding “copies” doesn’t apply, because digital records can exist in multiple locations simultaneously, which the defense disagreed with thereafter.
The government recalled defense witness Chief Warrant Officer Joshua Ehersman to testify about his memory of which types of programs and files soldiers were authorized to install on or run from their work computers. He said he’d tried to install programs but didn’t have administrative privileges to do so, and he ran them from a CD while waiting for contractor Jason Milliman to install them for him.
The defense established that other soldiers used music, movies, and games, and that Milliman, as a civilian, didn’t have authority over soldiers’ use.
The government then recalled Milliman, who said that there was no physical restriction from running an unauthorized program on the work computers from a CD. The defense established that he was somewhat lax about using programs: if an unauthorized program was used and didn’t interfere with other programs or files, it was generally allowed.
This all goes to whether Manning’s use of Wget, with which he automated downloading of State Dept. cables, was authorized, and whether such use constitutes exceeding his unauthorized access.
David Shaver on Wget
Forensic examiner and special agent David Shaver returned to the stand to explain how Wget works, and how Manning used it. He said Manning’s computers are the only two military machines on which he’d ever seen Wget. Shaver found Wget in the ‘Prefetch’ area (used to help programs run faster after their first use) of Manning’s My Documents folder.
Wget is a command-line program, which means users type to run it instead of using a mouse. Shaver testified that he saw evidence that Manning copied the names of State Dept. cables, pasted the names to direct Wget to download the cables in bulk.
The defense established that it’s quite possible that Manning had the Net-Centric Diplomacy (State Department database) open while he Wget was running – which goes to whether Wget gave him any new access, or helped him do something he couldn’t do otherwise (only much slower).
The defense also established that the Army was in possession of software called Host Based Security System, which could have blocked individual users from using self-contained executable files (like Wget), but did not use it.
This testimony goes specifically to whether Manning’s manner of accessing the cables constituted “exceeding authorized access,” which would violate the Computer Fraud and Abuse Act, a ten-year offense.
The government attempted to admit as evidence an email purportedly from Manning to a New York Times reporter. The defense objecting, calling it irrelevant, and the government explained that it was sent April 8, 2010 (three days after the Apache video), and said it proved that Manning tried to go to the Times. Prosecutors contended that that fact showed Manning knew what a legitimate news organization was, allowing the court to infer that WikiLeaks by contrast was illegitimate. Judge Lind said she didn’t buy the connection and didn’t allow the email.
Court is now in recess. Tomorrow the government will resume with its rebuttal case at 9:30am, with two more witnesses. Then the defense may present a surrebuttal case in response.