Government Defends Admissibility of Evidence That It Thinks Shows Manning Conspired with WikiLeaks
Pfc. Bradley Manning, who is on trial at Fort Meade for releasing United States government information to WikiLeaks, does not face any conspiracy charges. However, this morning there were arguments on a motion that related to defense objections over evidence the prosecution would like to have admitted into the trial to help further their case that Manning was working on behalf of WikiLeaks.
One piece of evidence is a Google cache copy of a 2009 “Most Wanted” list that the media organization compiled by asking “journalists, activists, historians, lawyers, police, or human rights investigators” from around the world to submit examples of “concealed documents or recordings” they would like to see leaked. The copy was taken off of the “Wayback Machine” or Archive.org website.
Another is this tweet:
Prosecutor Cpt. Alexander von Elten argued the tweets were authentic. Special Agent Mark Mander had gone to the WikiLeaks Twitter account. He had seen the tweet online. Then, he went to the Google cache version and located the tweet. The contents were similar. He pulled a copy of the tweets.
The tweets would “explain Pfc. Manning’s course of action,” Von Elten suggested.
Special Agent Alfred Williamson found five files on Manning’s computer created and deleted on May 13, 2010. They apparently contained .mil addresses. That would make the tweet requesting .mil addresses relevant. It would show that Manning’s intent “was to compromise the .mil addresses.”
WikiLeaks said they had an encrypted video of bomb strikes of civilians and they needed a supercomputer. This would “explain the nature of WikiLeaks’ possession,” Von Elten said.
The organization admitted to having the video and needed to decrypt, which is “evidence they don’t have lawful possession of it.” Plus, Manning had mentioned the video WikiLeaks needed decryption in his chats with hacker and government informant Adrian Lamo.
It would be relevant to the “aiding the enemy” charge, because Manning may have had “knowledge of WikiLeaks’ plan to compromise classified information.”
“When there’s evidence of a plan, that evidence can also be used as proof of subsequent act,” Von Elten claimed. It’s “evidence they will compromise classified information in the future going forward.”
Cpt. Joshua Tooman for the defense stated that the “plan or state of mind of WikiLeaks has nothing to do with Pfc. Manning. They can plan or do whatever they want. That doesn’t affect Pfc. Manning.”
“Manning is not charged with conspiracy. What WikiLeaks intends to do, it doesn’t matter. It has no impact on Pfc. Manning,” Tooman asserted.
The other issue is whether Manning ever actually viewed the “Most Wanted” list or the two tweets that prosecutors want to use to make claims about Manning working on behalf of WikiLeaks.
“Did he actually see any of this? Did he ever actually see it?” asked Tooman. “There has to be a connection with Pfc. Manning and these documents and there’s not a connection between Pfc. Manning and these documents.”
Military judge Army Col. Denise Lind asked if she had to resolve this issue before deciding to admit the evidence. Does there have to be proof that he saw any of the evidence? Tooman maintained it did otherwise it could not be admitted as evidence that had an “effect on the listener.” If he did not actually “hear” or view the evidence, it could not have had any effect.
Lind also pressed the prosecutors on the system for which Wayback Machine uses to archive records. She focused on the fact that information is coming into the website from third-party donors. How can the accuracy of the material be guaranteed?
Von Elten said the archive adopts them. The judge wondered if they just take whatever anyone gives them. To which, Von Elten replied that it’s an automated process. That left the judge wondering if the Wayback Machine had an even lower standard for authenticating material.
The judge later asked if the material is captured by Internet archive or received by a third party.” That would mean it is impossible to know how exactly the material winds up posted at Archive.org. “There’s no definitive evidence,” Von Elten replied.
Prosecutors had Chris Butler, an office manager for Wayback Machine, submitted an affidavit on how the archive works. According to Tooman, it did not indicate whether the archive is the custody of the records, whether anyone with the archive has personal knowledge of the records, whether they are created in the regular practice or duties of the archive and whether what they collect constitute complete records.
The defense argued the cached copy of the “Most Wanted” list was quadruple hearsay — individuals submitted leaks they’d like to see to WikiLeaks, WikiLeaks compiled a list. A third-party or Google provided the list to the archive. The archive posted the list.
Also, the defense highlighted how they had submitted a different copy of the “Most Wanted” list than what the prosecutors want to be accepted as authentic evidence. The prosecution’s version does not contain the language “journalists, activists, historians, lawyers, police, or human rights investigators” contributing to the list.
Tooman said the defense’s version “really talks about state of mind and the intent and plan of WikiLeaks. That’s not the one they’ve offered because it’s not consistent with their theory.” He suggested the government should have submitted both versions.
The judge, smiling, replied, “That’s why we have an adversarial process.”