A spokesperson for the U.S. Attorney for the Eastern District of Virginia at the Department of Justice confirmed today that the grand jury criminal investigation into WikiLeaks was ongoing.
Peter Carr responded to my direct inquiries yesterday to Assistant U.S. Attorneys Andrew Peterson with the National Security Division and Lindsay A. Kelly of the Cyber Unit in Alexandria, Virginia regarding the status of the grand jury criminal investigation of WikiLeaks and statements made by special agents in the military prosecution of Manning, namely that the FBI was investigating civilians including Jason Katz, Julian Assange, or the "founders, owners, or managers of WikiLeaks".
On November 29, 2010 and December 6, 2010 the U.S. Attorney General at the Department of Justice Eric Holder publicly confirmed an "active, ongoing criminal investigation" and grand jury probe of WikiLeaks.
Michael Ratner, president emeritus at the Center for Constitutional Rights and attorney for WikiLeaks and Julian Assange in the United States responded to news of today's statement saying:
This statement from U.S. federal prosecutors publicly confirms what the WikiLeaks legal team have known for a long time: that there is an active, on going federal investigation of the WikiLeaks organisation. It is upsetting to see the Department of Justice pushing such vast resources at prosecuting a publisher for simply doing its job--telling us the truth about war and the actions taken in our name. Every day the WikiLeaks investigation continues is threat to the truth and the rights of journalists and publishers everywhere.
Bypassing the First Amendment
Many see an Obama administration's recent strategy document re-framing WikiLeaks by associating the media organization with cyber-crime and intellectual property theft for the publication of "computer files provided by corporate insiders indicating allegedly illegal or unethical behavior at a Swiss bank, a Netherlands-based commodities company, and an international pharmaceutical trade association" as an attempt to bypass constitutional challenges to prosecuting publishers.
When asked by the military judge in the prosecution of Pfc. Manning if the prosecution "would have charge the case the same way if the journalistic organization was The New York Times" -- and not WikiLeaks, military prosecutor, Captain Angel Overgaard said, "Yes, Ma'am."
When Judge Lind asked the prosecution, if "the nature of WikiLeaks [is] somehow different from the New York Times?" Overgaard didn't answer, instead saying it's "not relevant" if "WikiLeaks is a legitimate journalistic organization," adding, however, that the prosecution intends to call a witness during sentencing and possibly at trial "to characterize the WikiLeaks organization" in it's case against Manning for aiding the enemy.
Over the prosecution's objection Manning's defense is seeking the testimony of Professor Yochai Benkler, law professor and co-director of Harvard's Berkman Center for Internet and Society, to testify as an expert witness on WikiLeaks, new forms of digital journalism, and the internet.
Civilian defense counsel for Manning, David Coombs said Benkler will testify that WikiLeaks was viewed as a respected journalistic organization at the time of the charged offenses and "not viewed as a terrorist organization aiding the enemy." "In 2009 and 2010 WikiLeaks received numerous awards," said civilian defense counsel, David Coombs, "and prior to the charged leaks, was a legitimate journalistic organization, albeit not mainstream."
Coombs also said that Benkler would testify that "between 2006 and 2010, WikiLeaks published on a wide range of topics and various governments, corporate malfeasance and ineptitude, and was not bent against the United States and our way of life."
Benkler's testimony, defense states, would go straight to defending Manning against the charge of aiding the enemy and the reckless disregard language found in "wantonly cause to be published on the internet intelligence," said Coombs.
"News organization take steps to verify-- and harm-minimization," said Coombs, "Once [WikiLeaks] received [the information] they collaborated with media partners to ensure the control and safe release." "These media partners put their own teams to work. They selected information that was appropriate, and WikiLeaks published the same information," said Coombs.
The Garani Video
In March 2011, additional alleged criminal offenses including aiding the enemy were leveled at Manning. Superseding indictments with additional charges are a common prosecutorial scare tactic intended to pressure defendants to plea out, writes criminal law scholar, Professor Orin Kerr, in a post about the recent suicide of Aaron Swartz.
The March 2011 charge sheet was accompanied by an amended timeline. Prosecutors were now alleging that the earliest date of the charged offenses was November 1 and not November 19, 2009. By arguing at trial that Manning leaked an unclassified video of a May 2009 U.S. bombing in the Farah Province of Afghanistan, which massacred 86 to 140 civilians, including women and children, within days of his arrival in Iraq to on or about January 8, 2010 the day WikiLeaks tweet:
prosecutors began laying their groundwork against a whistle-blower defense.
In November, when the time came for Manning's defense to notify the court of his anticipated and proposed plea, defense suggested that he might not plead guilty to espionage for the unclassified Garani video, but that he might plead guilty to unauthorized possession and willfully communicating the video in April 2010, and not November 2009 as charged. Defense had already suggested this in a March 2012 legal filing.
Specifically, defense wrote that although prosecutors alleged two different date ranges for the disclosure of records relating to a military operation in the Farah Province, Afghanistan on or about 4 May 2009 and the Garani video between on or about 1 November 2009 and on or about 8 January 2010, "in reality the classified records and the video were disclosed at the same time on the same day, 11 April 2010."
During court arguments in November 2012 concerning Manning's anticipated and proposed plea, prosecutors refused to budge on a November 2009 offense date for the transmission of the Garani video.
Major Fein even alleged that the government had forensic evidence for both a November 2009 and an April 2010 transmission of the Garani video, and that prosecutors could still charged two separate criminal acts, but decided to only charge Manning once. The defense maintained that only one transmission' occurred.
At the most recent hearing, Manning pled not guilty for the Garani video. Specification 11 of Charge II was the only offense under 18 USC 793(e), part of the Espionage Act, that Manning did not plead guilty to lesser included offenses for, based on the time line of the offense.
Manning plea to nine other lesser included offenses of 18 USC 793(e) and one violation of failure to obey a lawful general order with a substituted time frame except the words and figures '1 November 2009' substituting therefor the words and figures '8 January 2010'.
Military prosecutors stated that they are moving forward on all charges despite Manning's plea.
Prosecutorial Powers and Bolstering Conspiracy
At Manning's pretrial in December 20112 an agent from the Army's Computer Crimes Investigative Unit (CCIU) testified that a confidential informant for the Government, Adrian Lamo, told them in July 2010 that he was aware of someone on the Internet that he did not know, who was allegedly attempting to decrypt the Garani video for WikiLeaks.
The FBI, testified Special Agent Mark Mander of Army Computer Crimes Investigative Unit, was directing the investigation into Jason Katz, an employee at Brookhaven National Laboratory between February 2009 and March 2010, who was later fired for engaging in inappropriate computer activity.
The Garani video allegedly placed on Jason Katz's work computer on December 15, 2009, however, did not forensically match the Garani video allegedly found on Manning's workstation. "Was this the same video or a similar video to that seen on the .22 computer?," Coombs asked Special Agent David Shaver (CCIU) on cross examination. "No, Sir," replied the agent. "Different video?" asked Coombs. "Different video, Sir," said the agent.
The timeline of the Garani video offense against Manning dovetails with the November 1, 2009 start date of information sought by grand jury prosecutors in the secret 2703(d) orders for Sonic, Google, Dynadot, and Twitter to turn over information about users to include Manning, WikiLeaks, Julian Assange, Jacob Appelbaum, Birgitta Jonsdottir, and Rop Gonggrijp.
On February 28 Manning testified that no one associated with the WikiLeaks pressured him to disclose documents. Manning stated, "The decisions that I made to send documents and information to the WLO [WikiLeaks Organization] and the website were my own decisions, and I take full responsibility for my actions."
Given the lack of forensic evidence presented by the prosecution to the court or defense; and the number and grievous nature of the 22 charges against Manning which prosecutors intend to bring to trial despite Manning's recent plea; the United States Government is likely sticking to a November 2009 offense date in order to pressure a plea to bolster a conspiracy case against civilians being investigated by the Department of Justice, including the "founders, owners, or managers of WikiLeaks."