Journalism On Trial as Bradley Manning Case Nears Moment of Truth

by Alexa O'Brien Jul 16, 2013 6:59 AM EDT

Many of the trial’s crucial issues won’t be hashed out until the sentence phase—and the press and public may be shut out, reports Alexa O’Brien.

Fort Meade, Maryland—As the defense and the prosecution rested their cases in the largest leak trial in American history, the defense argued Monday that the presiding military judge, Col. Denise Lind, should dismiss “aiding the enemy” and other serious charges against Pfc. Bradley Manning, the soldier who uploaded hundreds of thousands of diplomatic cables and U.S Army reports to the organization WikiLeaks, which published the material online in 2010.

Prosecutors failed to present evidence that Manning had the requisite knowledge that al Qaeda or the enemy used WikiLeaks, argued civilian defense counsel, David Coombs, on Monday. Anything less than actual knowledge would set a dangerous precedent for a free press, he said, because military prosecutors have already stated that they would have charged Manning similarly had the organization beenThe New York Times and not WikiLeaks.

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On Monday, Coombs referenced the testimony of a government witness from the U.S. Army Counterintelligence Center, which published a 2008 report on WikiLeaks titled "Wikileaks.org—An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?" saying, “The US Army did not know if the enemy went to WikiLeaks ... but they want to ascribe that knowledge to a junior analyst.”

In a historic elocution in court last week, Prof. Yochai Benkler, co-director of theBerkman Center for Internet and Society at Harvard Law School, told Lind that “the cost of finding Pfc. Manning guilty of aiding the enemy would impose” too great a burden on the “willingness of people of good conscience but not infinite courage to come forward,” and “would severely undermine the way in which leak-based investigative journalism has worked in the tradition of [the] free press in the United States.”

“[I]f handing materials over to an organization that can be read by anyone with an internet connection, means that you are handing [it] over to the enemy—that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world, becomes automatically aiding the enemy,” saidBenkler. “[T]hat can't possibly be the claim,” he added.

Benkler testified that WikiLeaks was a new mode of digital journalism that fit into a distributed model of emergent newsgathering and dissemination in the Internet age, what he termed the “networked Fourth Estate.” When asked by the prosecution if “mass document leaking is somewhat inconsistent with journalism," Benkler responded that analysis of large data sets like the Iraq War Logs provides insight not found in one or two documents containing a “smoking gun.” The Iraq War Logs, hesaid, provided an alternative, independent count of casualties “based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences.”

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By the end of the summer of 2010, the IRTF had gone through 70,000 documentsalready published by WikiLeaks. According to an early pretrial defense filing, the IRTF concluded “that all the information allegedly leaked was either dated, represented low-level opinions, or was commonly understood and known due to previous public disclosures."

At that time, Gates wrote a letter to the chair of the Senate Armed Services Committee, Sen. Carl Levin, stating that the initial assessment of the IRTF “in no way discount[ed] the risk to national security; however, the review to date ha[d] not revealed any sensitive source and methods comprised by this exposure.”

Last week, the defense tried to establish through Benkler’s testimony that “overwrought” and “shrill” rhetoric by government officials in the wake of the WikiLeaks releases was responsible for driving the enemy to the WikiLeaks website. The government’s response, said Coombs, is what changed WikiLeaks from being a “legitimate journalistic organization” to a “terrorist organization.”

ONCIX, which is part of the Office of the Director of National Intelligence, together with the Information Security Oversight Office, which is responsible for oversight of the government-wide classification system, led a separate review of how federal agencies handled classified information in the wake of the 2010 WikiLeaks disclosures.

The ONCIX damage assessment was the result of a November 2010 memo by Jacob Lew, director of the Executive Office of Management and Budget, titled “WikiLeaks Mishandling of Classified Info.” The memo was addressed to the heads of every federal agency requiring that they assemble mitigations teams to conduct internal reviews of “security practices with respect to the protection of  classified information” at their agencies.

A subsequent questionnaire required these mitigation teams to audit among other items whether agencies “capture evidence of pre-employment and/or post-employment activities or participation in on-line media data mining sites like WikiLeaks or Open Leaks.”

The WikiLeaks Mitigation Team at the Department of State was one of the working groups established in response to then–OMB Director Jack Lew’s directives in November 2010 and January 2011. That team reported to Ambassador Patrick Kennedy, who is also expected to testify for the prosecution in a closed session or classified stipulation during the sentencing phase of Manning’s trial. Kennedy is the original classification authority for the 117 charged diplomatic cables, and Diplomatic Security Services that partnered with the Departments of Defense and Justice in the investigation of Julian Assange, WikiLeaks, and Manning report directly to him.

The director of Counterintelligence and Consular Support in the Bureau of Intelligence and Research (INR) was responsible for authoring the August 2011 Department of State “draft” damage assessment. In June 2012, Assistant Secretary for INR Catherine Brown testified that she edited the Department of State damage assessment and reported directly to Kennedy.

The government’s response, the defense argued, is what changed WikiLeaks from being a ‘legitimate journalistic organization’ to a ‘terroristic organization.’

The author of the Department of State damage assessment is also the agency’sprimary liaison with the FBI, a partner in the ongoing multiagency investigation of WikiLeaks.

It was Kennedy who testified before the Senate Committee on Homeland Security and Governmental Affairs in March 2011 about what steps the Department of State took in response to the WikiLeaks publication of diplomatic cables. Kennedy alsotestified to Congress in late November and early December of 2010.

A congressional official, who was briefed by the Department of State at that time, told Reuters that "the administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers."

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Since January 2011, Alexa O'Brien has covered the WikiLeaks release of US State Department Cables, JTF memoranda known as the 'GTMO files',  revolutions across Egypt, Bahrain, Iran, and Yemen, as well as the prosecution of Bradley Manning and the US investigation into WikiLeaks. She has interviewed a preeminent US foreign policy expert on the Cambodia cables, and published hours of interviews with former GTMO guards, detainees, defense lawyers, and human rights activists, as well as WikiLeaks media partners: Andy Worthington, a GTMO historian and author, and Atanas Tchobanov, the Balkanleaks' spokesman and co-editor of Bivol.bg.

As a result of her work covering the Global War on Terror; the 2011 revolutions across the Middle East and North Africa; and her extramural activities helping to organize the original occupation of Wall Street in New York and five other American cities on September 17, 2011, the U.S. Government and private security contractors attempted to falsely link her and a campaign finance reform group, which she helped found to Al Qaeda and 'cyber-terrorists'.

She subsequently became party to a lawsuit brought against the Obama administration for Section 1021(b)(2) of the National Defense Authorization Act FY2012 with author Chris Hedges and five other plaintiffs. Section 1021(b)(2) allows for the indefinite detention without trial or charges of anyone, who by mere suspicion alone are deemed by the Executive to be terrorist sympathizers.

Her testimony and submissions were central to U.S. District Judge Katherine Forrest's ruling granting a permanent injunction on Section 1021(b)(2). In June, the 2nd Circuit is expected to rule on the Department of Justice's midnight appeal of Forrest's September 2012 injunction.

For a year and a half, she has produced the only available pre-trial transcripts of Manning's secret prosecution. She has provided some of only analysis available on his case, a forensically reconstructed appellate exhibit list, witness profiles, and a searchable database of the available court record.

Because of her familiarity with the proceedings and investigative work, she has been able to 'un-redact' a selection of court documents.

She was awarded a generous grant by the Freedom of the Press Foundation for her work covering Bradley Manning's trial, and her work there was shortlisted for the 2013 Martha Gellhorn Prize for Journalism.

http://www.thedailybeast.com/articles/2013/07/16/journalism-on-trial-as-bradley-manning-case-nears-moment-of-truth.html