* Image of Farah bombing victim from rawa.org.
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 time line. Prosecutors were 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 or weeks of his arrival in Iraq to on or about January 8, 2010 the day WikiLeaks tweet
prosecutors began laying the groundwork against Manning's whistle-blower defense.
When the time came to notify the court of Manning's anticipated plea in late October 2012, defense suggested that Manning might plead guilty to unauthorized possession and willfully communication of the Garani video in April 2010, and not November 2009 as charged.
Defense had already suggested this a month after Manning's arraignment 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 pretrial court arguments concerning Manning's proposed plea, the prosecution refused to budge on a November 2009 offense date. 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 the U.S. Government could still charged Manning for the April offense. Fein stated that the charged November offense and the uncharged April offense were in fact two separate criminal acts. The defense maintained that only one transmission' occurred, and that it was in April 2010.
Prosecutorial Powers and Bolstering Conspiracy
At the Article 32 in December 2011, Special Agent Mark Mander from the U.S. Army Computer Crimes Investigative Unit (CCIU) testified that Adrian Lamo had informed CCIU in July 2010 that he was aware of someone on the Internet-- who he did not know-- who was allegedly attempting to decrypt the Garani video for WikiLeaks. The FBI, said Mander, was directing the investigation into Jason Katz, an employee at Brookhaven National Laboratory (BNL), 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, was a forensic match to the video found on the CENTCOM server charged against Manning under the Espionage Act, said Special Agent David Shaver from CCIU. The video found on Katz's computer, however, did not forensically match a 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 Shaver. "No, Sir," replied Shaver. "Different video?" asked Coombs. "Different video, Sir," said Shaver.
More provocative, is how the time line for the Garani video offense dovetails with the start date of secret 2703(d) orders for Sonic, Google, Dynadot, and Twitter to turn over information about civilians under investigation by the Department of Justice secret grand jury empanelled in Alexandria, Virginia.
On March 26 a spokesperson for the U.S. Attorney for the Eastern District of Virginia at the Department of Justice confirmed to me in an email that the grand jury criminal investigation into WikiLeaks is ongoing.
Given the lack of forensic evidence presented by the prosecution at the pretrial; in addition to the number and grievous nature of the charges against Manning; prosecutors were likely sticking to a November 2009 offense date to pressure Manning to plea out to bolster a conspiracy case against civilians being investigated by the Department of Justice, including, according to Mander at the pretrial, the "founders, owners, or managers of WikiLeaks".
Unclassified Garani Video
In the prosecution's opening statements last week, Captain Joe Morrow said,"The evidence will show...that the first transmission of classified information" by Manning was made "in late November 2009, and that transmission was the video charged in Specification 11 of Charge II."
Despite Morrow's assertion in Court, the Garani video is unclassified (as the March 1, 2011 Charge Sheet reflects).
"Words cannot describe how terrible it was," said a health worker who had witnessed the May 4, 2009 U.S. bombing that killed at least 147 women and children in the Farah Province of Afghanistan. "There is indeed video from a B-1 bomber," said then commander of CENTCOM, General David Petraeus, "[w]hat it will prove is that the targets of these different strikes were the Taliban." The Pentagon said it would release the video, but never has.
In late February 2013, Manning pled not guilty to the willful communication of the Garani video as charged by the U.S.G. It was the only espionage charge for which Manning did not plead to a lesser included offense (LIO).
In his formal plea and statement Manning said that his first offense occurred on January 5, 2010 for the unauthorized possession and willful communication of military reports concerning the war in Afghanistan -- published by WikiLeaks as the Afghan War Diary on July 25, 2010.
The prosecution casts Manning as a traitor-- indiscriminately harvesting information for Julian Assange and WikiLeaks in willful disregard of the safety of military personnel and the national security of the United States. Manning will faces
149 154 years plus life as maximum punishment if convicted on all charges.
Each of the 21 offenses against Manning builds into the U.S.G.'s magnum theory of its case, culminating in the maximum offense of aiding the enemy-- which could put Manning away for life. Manning's defense strategy is as much about mitigating prosecutorial overreach with charges like the Garani video-- with a nexus to the federal criminal investigation of WikiLeaks-- as it is about reducing the 20 years of confinement he is already exposed to by his current plea to 10 LIO's.
In the prosecution's opening statement Morrow also said that the U.S.G. would use tweets from the WikiLeaks' Twitter feed in its case against Manning for the Garani video-- to include the January 8, 2010 tweet embedded above.
Defense established via the testimony of two CCIU agents-- lead case agent Mark Mander yesterday and lead forensic expert David Shaver today-- that the prosecution has no evidence, forensic or otherwise, that Manning actually viewed the tweets by WikiLeaks. Moreover, defense is filing a motion in opposition to the admissibility of said tweets into the evidentiary record on the grounds that they are here-say, unauthenticated, and irrelevant.
More Circumstantial Evidence
Military prosecutors also asserted both in their opening statement last week and in court today that Manning had already admitted to Adrian Lamo that he gave WikiLeaks the Garani video:
(04:33:44 PM) bradass87: idk... i only know what i provide him xD
(04:34:14 PM) [email protected]: what do you consider the highlights?
(04:35:31 PM) bradass87: The Gharani airstrike videos and full report, Iraq war event log, the "Gitmo Papers", and State Department cable database
Because the public has not had access to over 30,000 pages of court filings and rulings or proper transcripts (except my own) for more than a year and a half, the public does not know that Manning volunteered to plea to the LIO for an April 2010 (and not November 2009) transmission of the Garani video. In fact, Manning came into Court three months after Judge Lind "cut defense off at the knees" by ruling to preclude harm from the trial on the merits-- instead relegating lack of actual damage to sentencing-- and volunteered to plea to the LIO for the Garani video in April 2010-- with full knowledge that the prosecution lacked forensic evidence for a transmission in November 2009.
Shaver testified on cross examination today that he did not find any information connecting Manning to Katz:
Captain Tooman: So, when you were performing the forensics on Mr. Katz's computer you looked at everything?
Special Agent Shaver:Yes, Sir.
Tooman:You looked at emails?
Shaver:Correct. I searched the whole drive. Yes, Sir.
Captain Tooman: Searched the whole drive. And, when you were doing your forensic examination of Mr. Katz's computer, you looked for things related to my client, correct?
Special Agent Shaver:Yes, sir.
Captain Tooman:But, you didn't find anything related to my client?
Special Agent Shaver:That is correct.
Captain Tooman:There weren't emails between Mr. Katz and Pfc. Manning?
Special Agent Shaver:Correct.
Captain Tooman:There weren't chats between Mr. Katz and Pfc. Manning?
Special Agent Shaver:Correct.
Captain Tooman:In fact, your investigation revealed absolutely no connection whatsoever between Jason Katz and my client?
Special Agent Shaver:That is correct.
So far, military prosecutors have add nothing substantive to their hackneyed pretrial case against Manning. What they have added are interesting details about an internal BNL investigation of their former employee for alleged inappropriate computer use. Katz reportedly worked at BNL between February 2009 and March 2010 when he was fired.
According to the stipulations read in court today, Katz's suspicious behavior was investigated internally and reported to federal authorities. Law enforcement, however, only became interested in the Katz affair after Manning was arrested in July 2010.
Every stipulations by BNL employees stated that information related to WikiLeaks was neither sought nor found during the BNL internal investigation, and no one had even heard of WikiLeaks at the time of the Katz was being investigated by his former employer.
U.S.G. Garani 'air strike' video case bombs
There are two charges against Manning related to the Farah Province of Afghanistan. Specification 10 of General Article 134 is charged under the Espionage Act for the unauthorized possession and willful communication between April 11, 2010 and May 27, 2010 of "five classified records relating to a military operation" conducted in the Farah Province in May 2009. Manning plead guilty to the LIO for the transmission of "five classified records" between the dates of April 10 and 12, 2010.
Specification 11 under General Article 134 is also charge under the Espionage Act for the unauthorized possession and willful communication of the Garani video between November 1, 2009 and January 8, 2010. As stated above, Manning pled not guilty because the U.S.G. refused to accept Manning's plea to it's LIO for an April 2010 (and not a November 2009) transmission.
Instead of accepting Manning's pretrial LIO plea-- made in full knowledge that prosecutors lacked the forensic evidence-- and by which Manning would have voluntarily exposed himself to a maximum of two years punishment if convicted on that plea-- the U.S.G. arrogantly forged forward with a flawed and circumstantial case in an attempt to frame Manning in a conspiracy to both bolster their magnum case for aiding the enemy and the federal prosecution of WikiLeaks.
To put it mildly, the prosecution's Garani air strike case, is bombing in court.
In the prosecution's opening statement last week, Captain Joe Morrow, asserted that CENTCOM SharePoint server logs would show that 334 files were downloaded by Manning on 10 April 2010. "The evidence will also show," said Morrow, "that none of the videos related to this investigation were downloaded on that day"-- alluding to Manning's pretrial colloquy concerning a possible plea to the LIO for the unauthorized possession and willful communication of the Garani video in April 2010 and not November 2009 as charged.
Today, defense came into Court and established that Manning did not obtain the Garani video from the CENTCOM server. Manning obtained the Garani video from a shared "T-drive" at F.O.B. Hammer, Iraq-- the same drive the video of a July 2007 Apache air strike in Baghdad, Iraq-- known as Collateral Murder-- was found by a co-worker, Jihrleah Showman.
Defense also established through Shaver testimony on cross and via the U.S.G.'s Intelink logs that the only time Manning's computers accessed Intelink for the search terms Farah and CENTCOM was on March 22, 2010-- after the time frame of the offense charged against him by the U.S.G.
Defense also established by comparing the U.S.G.'s Intelink logs with the CENTAUR logs (known as NetFlow logs-- they capture the date, time, and packet size of data transfers between two computers or servers) that no evidence exists that any of Manning's computers accessed or ever downloaded the videos on the the CENTCOM server.
Captain Tooman: Agent Shaver you would agree with me that there were no instances-- that there is no evidence of any data being transfered from the CENTCOM servers to the .22 or the .40 machines in the volume large enough to have transferred one of the videos that the CENTCOM server hosted? And you would agree with me that the only instance of a video that is in any way associated with Farah that was found on the .22 or the .40 machine was actually-- actually came from the T-drive?
Special Agent Shaver: Yes, Sir.
Tooman: And that was on 17 April?
Shaver: I don't remember the date.
Tooman: But it was in April?
Military prosecutors in a last gasp re-examination to save their case-- resurrected the Lamo logs saying Manning already acknowledged that the video that WikiLeaks had was encrypted:
(2:15:57 PM) bradass87: they also caught wind that he had a video... of the Gharani airstrike in afghanistan, which he has, but hasn't decrypted yet... the production team was actually working on the Baghdad strike though, which was never really encrypted
(2:16:22 PM) bradass87: he's got the whole 15-6 for that incident... so it wont just be video with no context
(2:16:55 PM) bradass87: but its not nearly as damning... it was an awful incident, but nothing like the baghdad one
(2:17:59 PM) bradass87: the investigating officers left the material unprotected, sitting in a directory on a centcom.smil.mil
(2:18:03 PM) bradass87: server
(2:18:56 PM) bradass87: but they did zip up the files, aes-256, with an excellent password... so afaik it hasn't been broken yet
(2:19:12 PM) bradass87: 14+ chars...
What prosecutors were saying today was that the video on Manning's computer would have been unencrypted, and that in the Lamo chat logs, Manning acknowledges that the video said to be in WikiLeaks' possession was encrypted. Defense replied that Manning may have known that WikiLeaks possessed an encrypted video of the Garani air strike, because on January 8, 2010, WikiLeaks tweet: