Manning is charged with aiding the enemy for knowingly giving intelligence-- specified in a classified document-- to the enemy indirectly via the WikiLeaks website.
The enemy has been defined by the government's bill of particulars as al Qaeda, al Qaeda in the Arabian Peninsula, and "a classified entity specified in Bates Number 00410660 through 00410664."
According to the Col. Denise Lind, the presiding military judge's definitions and instructions:
'Intelligence' means any helpful information, given to and received by the enemy, which is true, at least in part.
'Enemy' includes (not only) organized opposing forces in a time of war, (but also any other hostile body that our forces may be opposing) (Such as a rebellious mob or a band of renegades) (and includes civilians as well as members of military organizations). ("Enemy" is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.)
'Indirect means' means that the accused knowingly gave the intelligence to the enemy through a 3rd party, an intermediary, or some other indirect way.
'Knowingly' requires actual knowledge by the accused that by giving intelligence to the 3rd party or intermediary or in some other indirect way, 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.
While prosecutors have successfully prevented defense from presenting evidence about Manning's motive as a whistleblower, Judge Lind ruled that circumstantial evidence regarding Manning's state of mind could be used to prove by inference that he did not actually 'know' or believe he was giving intelligence to Al Qaeda, when he allegedly gave it to WikiLeaks.
Aiding the enemy is a capital offense. Military prosecutors are recommending life in prison, but the presiding military judge has the authority to impose the death penalty.
If Manning is convicted of aiding the enemy, he will spend the rest of his life in prison.
Adding tragic irony to the government's allegation of "probable harm" in the face of excluded evidence at trial about the lack of actual damage from the alleged leaks; as well as the government's attempted to block over-classification evidence, and refusal to declassify any of the 300,000 pages of low-level classified publicly available information allegedly or admittedly leaked by Manning; prosecutors chose to declassify only two sets of documents for their case against Manning for aiding the enemy.
One set of was allegedly obtained at the May 2011 raid of Osama bin Laden's compound. The government also declassified "portions" of a 2008 US Army Counterintelligence Center Memo entitled, "(U) Wikileaks.org--An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?" which is charged against Manning under the Espionage Act. Manning pled to the lesser included offense of 18 U.S.C. 793(e) for the leak of that report in February.
Manning has agreed to a stipulation of fact concerning the Osama bin Laden evidence in lieu of the testimony of a classified witness, Mr. John Doe.
The unclassified portion of the 'stipulation of fact' reads:
On 2 May 2011 United States Government officials raided the OBL compounded. Located in Abbottabad Pakistan collected several items of digital media. From the items of digital media the following items were obtained. (1) A letter from Osama bin Laden to a member of Al Qaeda requesting the member gather Department of Defense material posted to WikiLeaks. 2.) A letter from the same member of Al Qaeda to UBL attached to which was the Afghanistan War Log [singular] as posted by WikiLeaks. 3.) Department of State information.
The military judge will still need to rule on whether to allow the stipulation entry as evidence.
The following classified witnesses will testify for the government in their case against Manning for aiding the enemy as per a Court ruling at the May 21, 2013 Article 39(a) session:
- James Moore, Department of State
- SSA [Supervisory Special Agent] Alexander Pott [sp.], FBI
- Dean Pittman, Department of State
- Ambassador Stephen Seche State Department
- Ambassador Don Yamamoto, Department of State
- Ambassador Marie Yovanovitch, Department of State
- Mr. Joseph Yun, Department of State
Ms. Catherine Stobel [sp.], from the CIA will also testify concerning the two CIA red Cell Memos and the 2008 USACIC WikiLeaks report, which are charged against Manning under Specifications 3 and 15 of Charge II, Article 134.
As mentioned above the USACIC report will be used in the government's case against Manning for aiding the enemy. In addition, three separate classified witnesses, will testify about the CIA Memos and USACIC report. It is likely that these three special witnesses-- whose identity and testimony will be closed in entirety-- are original classification authorities for the documents and/or will testify in the government's case against Manning for aiding the enemy.