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OPEN COURT

A Sneak Peek At The Defense Plan For Alleged Wikileaker Bradley Manning

Alleged Wikileaker Bradley Manning has his first court hearing coming up and his defense plans on calling 50 witnesses to challenge the army’s 22 charges against him.

Here’s a quick look at some of the charges, potential witnesses, defense costs and how his lawyers will handle the fact that Obama has already declared Manning guilty.

Here’s a quick overview courtesy of Wired:

The witnesses could include Daniel Ellsberg, famed Pentagon Papers leaker, who would talk about the benefit Manning’s alleged leaks provided to the public, as well as technical experts who would speak to the actual evidence on which the charges against Manning are based.

… [Bradley Manning Support Network organizer Jeff Paterson], said that the chat logs believed to be between Manning and former hacker Adrian Lamo, in which Manning allegedly confessed to leaking data to the secret-spilling site WikiLeaks, are “suspect as far as evidence in a military court,” and prosecutors will therefore likely have to rely on forensic evidence…

The Army has filed 22 counts against Manning, including a capital charge of aiding the enemy, for which the government said it would not seek the death penalty. Other charges include five counts of theft of public property or records, two counts of computer fraud, eight counts of transmitting defense information in violation of the Espionage Act, and one count of wrongfully causing intelligence to be published on the internet knowing it would be accessible to the enemy.

If convicted of all charges, Manning faces a maximum punishment of life in prison, the Army said in a press release.

… public comments that President Obama has made earlier this year suggesting that Manning is guilty constitutes illegal command influence on the military court from the nation’s commander in chief, and therefore should be raised as an issue in the case.

Obama told an audience in April, “If I was to release stuff, information that I’m not authorized to release, I’m breaking the law.”

“I can’t imagine a juror who wants to have a future in the military … going against the statement of [guilty] made by his or her commander in chief,” said Zeese, referring to the military judge and jury who will preside over the hearing and subsequent court martial of Manning and could be swayed to convict based on Obama’s statements. “I hope that the defense is making an issue of it.”

… The Bradley Manning Support Network… says it has raised nearly $400,000 for Manning’s legal defense so far,… [and] nearly $50,000 to cover the travel expenses for Manning’s family to visit him in prison and attend the hearing, as well as to cover the costs of organizing rallies and other support.

The hearing will be open to the public and the media—except for the parts when the court discusses top secret classified information—so expect a large crowd of observers to tweet, blog and Tumblr the whole thing. It could well be the biggest trial of our century… kinda like the O.J. Simpson trial, except with more intelligence and actual consequences.

And you thought Christmas and New Year’s was just gonna be a bunch of dress socks and hangovers.

Image via astrodynamics

By:           Daniel Villarreal
On:           Nov 28, 2011
Tagged: , , , ,
  • 26 Comments
    • Libertarian Larry
      Libertarian Larry

      Remember how Casey Anthony’s lawyers convinced a group of jurors that she was innocent, despite the mounds of evidence? Hence, witness the same strategy by Manning’s attorneys. One minute he didn’t do it, the next minute he did it but wasn’t aware of it, the next minute he did it but should be protected under whistleblower status. Take it to the bank that Manning, like most guilty defendants, won’t take the stand in his own defense.

      Nov 28, 2011 at 11:00 am · @ReplyReply to this comment ·
    • Cam
      Cam

      The issue is, Classifying documents is supposed to be used if they are necessary for National Security.

      HOWEVER, what the govt. has been doing for the last few decades is basically classifying EVERYTHING. That way anything embarrassing etc… can be held back from Freedom of Information requests.

      Pat Tillman’s death was covered up by classifying docs that shouldn’t have been classified. The fact that both Japan’s and our govt. KNEW that the nuclear reactor there was dangerously unsafe was classified. The fact that our govt. KNEW that Pakistan was taking our taxpayer money and STILL selling out our troops locations to the Taliban, and the Afghan govt. was doing similar was classified.

      None of these were necessary to classify, they were just done to cover up anything that may have made the public question the direction these generals and govt. officials wanted to go.

      Leaking it could fall under a Whistleblower defense.

      Nov 28, 2011 at 11:15 am · @ReplyReply to this comment ·
    • mike
      mike

      yeah so that photo they keep using everywhere is from when he first enlisted. this is a more recent photo of Brad from during his time overseas:

      http://2.bp.blogspot.com/_NSAQjsCzwcE/TRnB-IaqDuI/AAAAAAAABjg/_x13hdTTUM4/s1600/0000manning5-250.jpg

      I bet you’re just jealous

      Nov 28, 2011 at 12:37 pm · @ReplyReply to this comment ·
    • JohnAGJ
      JohnAGJ

      @Cam: If this what Manning is using as his defense then he doesn’t stand a chance. Manning isn’t facing a civilian trial but a military one. A whistleblower defense strategy won’t get him very far at all.

      Nov 28, 2011 at 12:49 pm · @ReplyReply to this comment ·
    • Erich
      Erich

      I’m just glad he’s finally getting a trial. It’s a disgrace that he’s been sitting in jail for this long without any charges leveled against him.

      Nov 28, 2011 at 1:14 pm · @ReplyReply to this comment ·
    • mike
      mike

      For anyone interested in a real discussion, read Executive Order 13526. This is Obama’s current policy on classification. Read the section on what can and cannot be classified. You cannot classify something, according to these rules, if the purpose is to avoid embarrassment or to conceal unethical/illegal behavior. The only legit reason to classify something is to protect the national security, and only for so long as required (there’s a time horizon on this). The Obama admin has admitted the info is “embarrassing” (I’m quoting Hillary here). However, they won’t acknowledge any of the crimes and unjust behavior revealed by this information. And finally, they have not presented one piece of evidence that any harm has come to America because of these leaks.

      Also.. anybody who knows what they’re talking about will know that this same database of information (SIPRNET — secret but not top secret) had already been made available to the Iraqi Army. So I guess if you’re naive enough to believe that nobody in the Iraqi Army had already provided SIPRNET access to any bad guys, then maybe you can wrap your brain around the administration’s justification for bringing charges. However, the way I look at it, is the “bad guys” already had access to this info. The only ones kept in the dark was us — the public — to whom all power is ultimately accountable.

      Nov 28, 2011 at 2:23 pm · @ReplyReply to this comment ·
    • B
      B

      No. 6 · Pete wrote, “He will be convicted. The “defense” described above is not a defense and much of it won’t even be permitted. Daniel Ellsberg won’t testify because “leaks are good” is not a legal defense to the charge.”

      Don’t be so sure about whether he’ll be convicted or not. If they call someone like Ellsberg, that is simply “Plan B” (or maybe “Plan C”) to minimize the length of a sentence if the real defense doesn’t fly.

      My guess is that they’ll try to throw out the chat logs, claiming they are not a reliable indication of anything – Manning’s defense can claim he was feeding the guy who reported it some BS for fun to see how much of it he’d swallow. Then they’ll drag in technical experts to raise questions about who did what, whether there was any malware on Manning’s computer that could have let someone else impersonate him, whether there was any evidence of Manning actually transmitting data to Wikileaks or copying the data to a CD, etc. That sort of thing is what was meant by the phrase in QUEERTY’s article “forensic evidence” although no details were provided. Also, if others had heard Manning joking or talking about his “hacker friends,” lax security, or what-not, he can claim that someone might have pegged him as the perfect guy to frame. There’s even a possibility, no matter how slim, that the guy Manning chatted with told some other people trying to get documents leaked that “a perfect victim has been found.” All such possibilities will be raised by the defense with a goal of generating reasonable doubt – after all, if he’s innocent, Manning certainly wouldn’t know how the documents were actually leaked.

      If that defense flies, Manning should make a fortune on film rights – it would be a made-for-Hollywood story complete with the traditional conspiracy theory.

      Finally, if Manning doesn’t testify, that is not proof of guilt (as one person seemed to suggest). If the defense is a highly technical one, Manning might not have any useful testimony to contribute. If so, there’s no reason to put him on the witness stand and risk him getting into trouble from “foot in mouth” disease or mere nervousness (people who look or act nervous may appear to observers to have something to hide).

      Nov 28, 2011 at 3:00 pm · @ReplyReply to this comment ·
    • Cam
      Cam

      @JohnAGJ: said..

      “@Cam: If this what Manning is using as his defense then he doesn’t stand a chance. Manning isn’t facing a civilian trial but a military one. A whistleblower defense strategy won’t get him very far at all.”
      __________________-

      Actually the Pentagon has extremely strong whilstleblower protections.

      Nov 28, 2011 at 3:04 pm · @ReplyReply to this comment ·
    • JohnAGJ
      JohnAGJ

      @Cam: Manning isn’t a civilian employee of DoD but is a soldier. That makes a world of difference between what is allowable for him to do and what a civilian can do. He is also facing trial in the military justice system and not civilian. All the noise his attorneys are making now might do him well in civilian court but won’t have much of an effect when he faces a jury of his fellow soldiers.

      Nov 28, 2011 at 3:54 pm · @ReplyReply to this comment ·
    • mike
      mike

      I think many soldiers would disagree with you

      Stars and Stripes: http://www.stripes.com/instead-of-attacking-wikileaks-fix-what-it-exposed-1.155086

      Nov 28, 2011 at 11:16 pm · @ReplyReply to this comment ·
    • Ted C.
      Ted C.

      A previous article that Queerty ran on Manning said that Manning identifies as transgendered.

      If that’s the case, shouldn’t Queerty respect Manning’s choice of gender and refer to Manning as “she”?

      Nov 28, 2011 at 11:23 pm · @ReplyReply to this comment ·
    • Riker
      Riker

      @Ted C.: Pfc. Manning hasn’t begun to transition yet. People who identify as transgendered need counseling, and then they begin the transition with clothing, chnging their name, hormones etc. and finally surgery on their boy parts (which would be a shame, Bradley is wicked cute). Manning hasn’t begun this process of living as a woman yet, so he is still a he for now.

      Nov 29, 2011 at 1:41 am · @ReplyReply to this comment ·
    • Riker
      Riker

      It is a valid defense that none of the documents were actually classified. The current law on this is Executive Order 13526, which indicates that documents cannot be classified that do not directly threaten national security, even if they are embarassing or show evidence of a crime. If these documents marked SECRET were so marked illegally, then the classified status is null and void, and no crime was committed.

      It is telling that the government has yet to demonstrate that even one of the 300,000+ documents compromised national security. If it had, they President or some high-ranking official would have shown us which one (there’s no sense in not disclosing which one, since the entire world including our enemies has seen the documents). In fact, most of the diplomatic cables were completely routine and there is no indication that they could possibly pose any sort of security risk, so they had absolutely no reason to be marked SECRET.

      Others, such as the Collateral Murder gun camera footage, are an attempt to cover up a crime. That video both enraged me and made me literally sick to my stomach while watching it. Everyone who thinks they have an informed opinion on Pfc. Manning should watch it, the entire thing from beginning to end. That video is what made Manning allegedly make the leak. Watch the entire video and tell me what each of you would have done? Personally, if I saw that sitting in a folder somewhere and saw that the soldiers involved no only were still in the military, but still serving in Iraq with no disciplinary measures, I might have wanted the world to see it.

      Of course, all of this assumes that Pfc. Manning actually did leak the files. I’ve done my research, and the evidence is very sparse. All that seems to exist are some PGP-signed emails (which are not easily compromised, so are probably actually between Brad and Lamo) and some cleartext IM transcripts. If Brad learned anything from his hacker friends, he would have wiped and destroyed his hard drive platters after leaking the files, so all that is likely to exist is a copy of the logs on the computer of notorious hacker/cracker Adrian Lamo. Lamo is an extremely shady character who is known for breaking into the networks of several Fortune 500 companies as well as his skill in social engineering. It wouldn’t be at all beyond his ability to forge those logs and plant the evidence to cover up someone else making the leaks, so that evidence is extremely shaky.

      I think i’ve gone on too long already, so i’ll just close with this: whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

      Nov 29, 2011 at 2:12 am · @ReplyReply to this comment ·
    • Interesting
      Interesting

      The fact the government waited to so long tells me their case is weak. The analysis above is interesting in that I ha not realized why until now that their case had to be weak given the government’s delaying tactics.

      Nov 29, 2011 at 2:37 am · @ReplyReply to this comment ·
    • B
      B

      No. 13 · Riker wrote, “Of course, all of this assumes that Pfc. Manning actually did leak the files. I’ve done my research, and the evidence is very sparse. All that seems to exist are some PGP-signed emails (which are not easily compromised, so are probably actually between Brad and Lamo) and some cleartext IM transcripts. If Brad learned anything from his hacker friends, he would have wiped and destroyed his hard drive platters after leaking the files.”

      For what it is worth, I once received a blackmail letter from a friend about some
      compromising photos of a sexual nature. I sent back a reply telling him that he could have all my Ferraris if he’d burn the negatives, which he though was very funny, knowing that I had a compact, fuel efficient car. I told some friends who knew both of us about the letter exchange, and someone with us who didn’t know me very well asked me how many Ferraris I had had. I told him it was the same number as the number of negatives, which might of went over his head but the others thought it was funny. Of course, you wouldn’t want the D.A. to see those letters – the fool might think they we were being serious!

      You have to wonder if Manning was simply joking with Lamo, but even if he wasn’t, I’m sure he would want to claim he was. If Manning did it, they are going to need more proof than some emails – something showing the actual documents being sent in some way.

      As to the disks, erasing them is not enough – with a lot of effort you can read old data from disks that have been overwritten multiple times. The reason is that the disk heads don’t follow exactly the same path each time, so with some careful measurements, you can pick up traces of older data at the edges of a track. You need special hardware to do that – standard disk drives are designed to hide such old data. It’s probably a time-consuming process, and might account for why the investigation has taken so long. The open question is whether they found anything.

      Nov 29, 2011 at 3:57 am · @ReplyReply to this comment ·
    • Riker
      Riker

      @B: The PGP-encrypted and signed emails are pretty much guaranteed to be between the people they claim to be. PGP is extremely difficult to forge. The only possible vulnerability is a man-in-the-middle attack, but a decent web of trust prevents even that possibility.

      That said, the emails aren’t really evidence of anything. The real damning evidence is contained in AOL Instant Messenger chat logs, which someone as skilled and unethical as Lamo could easily have falsified.

      As far as erasing the disks, in order to completely eradicate the data, is to destroy the physical hard drive platters. There are a variety of ways of doing this, including physically submerging the drive in acids and other chemical compounds, but in a pinch it can be done with a small screwdriver (to open up the drive casing) and an ordinary hammer to shatter the plates. Common sense indicates that if you’re going to make the most important leak of illegally classified information in 40 years, you’re going to want your laptop to have an unfortunate accident immediately after. Considering that the government hasn’t released a statement indicating that they had the computer in their possession, this is probably what happened. Either that, or they found the computer but it didn’t have any evidence of wrongdoing because Pfc. Manning didn’t actually do it.

      If they DID find the hard drive and used forensic analysis on it, it is true that that is a time-consuming process. It can’t be done in 5 minutes even with the best modern technology. However, it shouldn’t take more than a few days, maybe a week or two at the outside, to piece together any remnants that they were going to find. This also suggests that they don’t have the evidence to secure a conviction.

      I think Pfc. Manning probably did leak the files (and should be given a fucking medal for it) in violation of the law, but I don’t think the government is going to be able to secure a conviction based on the available evidence and my (non-lawyer and non-military) analysis of what they probably have.

      I’m a proud Republican and I love my country (not suggesting that Democrats don’t love their country, but Republicans seem overwhelmingly against Manning), but my government scares the HELL out of me sometimes.

      Nov 29, 2011 at 5:39 am · @ReplyReply to this comment ·
    • JohnAGJ
      JohnAGJ

      @mike: No doubt, just like many would agree with me. Regardless, the fact remains that all the praises by folks from the “Advisory Board for the Bradley Manning Support Network” are not going to add up to much when Manning is before a military court facing charges. Given how the government has thrown every charge imaginable at Manning, including the ol’ favorite of violating Art. 134 of the UCMJ, some are bound to stick. If I had to guess right now, I’d say that some of the more serious charges will be dismissed but enough will stick that he is facing years at Ft. Leavenworth followed by a dishonorable discharge.

      Nov 29, 2011 at 9:51 am · @ReplyReply to this comment ·
    • Interesting
      Interesting

      It looks like the governments case is extremely weak as they are now withholding evidence: http://www.americablog.com/2011/11/wired-feds-accused-of-withholding.html

      Nov 29, 2011 at 12:07 pm · @ReplyReply to this comment ·
    • Interesting
      Interesting

      @JohnAGJ: How are some bound to stick if there is not evidence to back up the argument? I know the miltiary justice system is different, but it still must follow basic due process laws.

      Nov 29, 2011 at 12:10 pm · @ReplyReply to this comment ·
    • JohnAGJ
      JohnAGJ

      @Interesting: Right now we are hearing nothing but the claims of Manning’s defense team and supporters. Yes, the government will have to produce evidence on the most serious charges which will be weighed at trial. Yet Manning has all-but-admitted to taking classified material and releasing it without authorization. Claiming a higher purpose in doing so is not going to matter at trial. He may escape some of the most serious charges, some of which are bound to be questionable anyways since the government has taken the “all-but-kitchen-sink” approach to charging him, but I cannot see how he will escape all of them. Just a conviction under Art. 134 is enough to get him jail time and a less-than=honorable discharge. Manning isn’t facing a civilian jury but one of his fellow soldiers. It isn’t as easy for the defense to manipulate their sympathies, especially given the seriousness of these charges.

      Nov 29, 2011 at 1:29 pm · @ReplyReply to this comment ·
    • Lefty
      Lefty

      @JohnAGJ: “Yet Manning has all-but-admitted to taking classified material and releasing it without authorization.”

      Where?

      Nov 29, 2011 at 1:37 pm · @ReplyReply to this comment ·
    • mike
      mike

      you should also read the defense filing that came out yesterday. the DIA ran a damage assessment of the leaked materials and found no threat to national security. by definition according to EO13526 this renders them improperly classified

      Nov 29, 2011 at 1:50 pm · @ReplyReply to this comment ·
    • JohnAGJ
      JohnAGJ

      @Lefty: The strategy his defense team seems to be taking, as reported in the link above, indicates that Manning is admitting to releasing classified material for a higher purpose. They are attempting to portray him as a modern-day Daniel Ellsberg, even floating the idea of calling Ellsberg himself to the stand. Now all of this could be nothing more than a defense strategy of “trial balloons” before their day in court, but it probably is what Manning’s team sees as his best option given the number of charges. We’ll know for sure in a few weeks once the trial starts.

      Nov 29, 2011 at 2:53 pm · @ReplyReply to this comment ·
    • Interesting
      Interesting

      @JohnAGJ: The government’s stalling on the case is also what we hearing.

      Nov 30, 2011 at 12:34 am · @ReplyReply to this comment ·
    • Interesting
      Interesting

      @JohnAGJ: Again, reality check: If the government’s case was strong they would have pushed for the trial sooner than now.

      Nov 30, 2011 at 12:35 am · @ReplyReply to this comment ·
    • B
      B

      No. 16 · Riker wrote, “@B: The PGP-encrypted and signed emails are pretty much guaranteed to be between the people they claim to be. PGP is extremely difficult to forge. The only possible vulnerability is a man-in-the-middle attack, but a decent web of trust prevents even that possibility.”

      I know about the technology – the point was not about PGP but the reliability of what was in those messages – Manning can claim he was feeding Lamo a pile of BS to see how much of it he’d believe, or that Manning was just trying to impress Lamo in some twisted sort of way and was just making things up. It’s the “BS-artist” defense (part of the defense, actually).

      There’s one thing else I should have added about reading old disk drives – hysteresis. As you change the magnetization of the disk to encode data, what you get depends on the disk’s history – how it was magnetized before. The disk hardware hides that from you, of course, to make the disk function usefully, but it is possible to exploit that to get an idea of what was on the disk previously.

      Nov 30, 2011 at 9:11 pm · @ReplyReply to this comment ·

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