Military Justice

07.19.13

Is Judge Denise Lind Bradley Manning’s Biggest Enemy?

At a hearing Thursday, military judge Col. Denise Lind refused to toss out ‘aiding the enemy’ and other weakly substantiated charges against Bradley Manning. Alexa O’Brien on her previous rulings and her history of deference to the prosecution.

On Thursday presiding military judge Col. Denise Lind denied defense motions to drop “aiding the enemy” and violating the Computer Fraud and Abuse Act (CFAA) from the litany of charges against Pfc. Bradley Manning, the soldier responsible for uploading hundreds of thousands of diplomatic cables and U.S. Army reports to the organization WikiLeaks.

Manning, who was arrested in May 2010 and spent an unprecedented 1,101 days in pretrial confinement before his trial began last month, is charged with 22 crimes, including aiding the enemy, wanton publication, espionage, “exceeding authorized access,” and stealing U.S. government property. While he pled to 10 lesser included offenses and currently faces up to 20 years, prosecutors have pushed forward on all but one offense. Manning faces life plus 154 years in a military prison if convicted on the prosecution’s case.

The legal standard for Thursday’s ruling is lower than what prosecutors would have to prove to convict Manning of aiding the enemy “beyond a reasonable doubt.” Lind concluded that the prosecution had presented sufficient evidence for each of the criminal elements challenged as deficient by the defense. In their motion to dismiss aiding the enemy, the defense had argued that prosecutors failed to produce any evidence that Manning had “actual knowledge” that he was dealing with al Qaeda when he uploaded documents to WikiLeaks. Prosecutors do not need to prove that Manning intended to give intelligence to al Qaeda; in order to convict Manning, they are only required to prove that he had “actual knowledge” or was clearly cognizant of the fact that he was giving intelligence to al Qaeda when he disclosed information to WikiLeaks.

“Here's hoping third time's a charm,” quipped civilian defense counsel, David Coombs, on Monday before arguing his third motion to dismiss the charge of “exceeding authorized access” to obtain 116 diplomatic cables.

In recent years, critics have called the statute dangerously over-broad, with the conviction and sentencing of Andrew “Weev” Auernheimer to three years in federal prison and $73,000 in restitution for what  criminal-law scholar Professor Orin Kerr describes as visiting AT&T’s public website and using a script to obtain the the email addresses of iPad owners. Another case involves the aggressive prosecution of the late Aaron Swartz, the programmer and digital activist who committed suicide in January, and who was facing 30 years in prison after being indicted on 11 counts under the CFAA for downloading academic articles in violation of JSTOR’s terms of service.

“The government could have you have to stand up and sing the national anthem before you access this information, and if you don't, that is unauthorized access,” Coombs warned Lind last summer. Like Auernheimer, Manning had authorized access. The highest-ranking intelligence officer in the 2nd Brigade Combat Team, Cpt. Steven Lim, gave Manning a link to the Net Centric Diplomacy database in a January 2010 email. “I gave the intelligence analysts a link through email,” Lim testified in December 2011. “Got from headquarters. Headquarters said pass along. Felt at time we were so focused on the ground, and needed bigger picture."

“I had hoped that Judge Lind was going to reaffirm my faith in the independence and integrity of the military justice system that I respected when I was in uniform, but she didn’t,” Col. Morris Davis said.

Despite denying the defense’s first and second motions to dismiss the CFAA charges for failures to state an offense, Lind did adopt a narrow interpretation of the “exceeding authorized access” clause, requiring prosecutors to prove that a breach had occurred to obtain the charged information. By mid-summer of last year, Lind had qualified her ruling stating that access and use are “not mutually exclusive ... Restrictions on access to classified information can arise from a variety of sources, to include regulations, user agreements, and command policies. Restrictions on access can include manner of access. User agreements can also contain restrictions on access as well as restrictions on use.”

At trial, prosecutors based their theory of “exceeding authorized access” on an acceptable use policy (AUP), which they could not produce for Manning or anyone else in his brigade. (It allegedly outlined prohibitions on the use of unauthorized software.) Prosecutors also used seven signed non-disclosure agreements, the Terms of Service for two classified work computers, and forensic evidence that Manning placed a program called Wget on his classified work computer. Wget is a program that allows users to systematically download content from web servers.

In lieu of any establishing a clear prohibition via its witnesses on the installation of Wget, prosecutors have attempted to characterize Manning’s systematic procurement of information from the Secret Internet Protocol Network (SIPRnet) as “harvesting.” Prosecutors have also relied on Manning’s security clearances as a fallback in trying to prove that access was exceeded or breached. On Thursday, Lind seemed to give way to the prosecution when she denied the defense motion to dismiss the offense stating, “This case involves classified info. Access restriction on classified information are more stringent.”

Lind is largely unknown to the public, except for a journal article on media rights to access to military criminal cases and her presiding over the case of a “birther” Army medical officer who refused to deploy to Afghanistan because he believed the conspiracy theory that President Barack Obama was not born in the United States, and was therefore an illegitimate commander in chief. But with a spate of major rulings against the defense, her courtroom manner has come into pointed relief.

Despite Manning having been held longer than any accused awaiting court-martial in U.S. military history, Lind ruled in February that the government had not violated his speedy trial rights. While she ruled that portions of Manning’s confinement at Quantico were unlawful pretrial punishment, Lind only granted him “one-for-one” days sentencing credit and a 112 days of total relief in the face of life plus 154 years.

Despite the oppressive obfuscation and secrecy that shroud the proceedings—the public was denied access to over 30,000 pages of court documents by the U.S. Army, the Military District of Washington, and Lind until the third day of Manning's trial, 18 months into the legal proceeding—some observers managed to maintained a sense of hope early while awaiting Lind’s ruling Thursday.

“Courtrooms demand optimism,” said a stenographer for the Freedom of the Press Foundation, an organization responsible for crowd-funding and publishing the only available transcripts for the trial. But after Thursday’s rulings, an expert witness for the defense, Col. Morris Davis, the former chief prosecutor of the Guantánamo Bay Military Commissions who testified that the five Gitmo detainee assessments Manning accessed were not a sensitive national-security matter, said, “I had hoped that Judge Lind was going to reaffirm my faith in the independence and integrity of the military justice system that I respected when I was in uniform, but she didn't.”

The outcome of the Manning trial will have wide ramifications for the First Amendment because Manning is charged with aiding the enemy and espionage for disclosing government information to the public via a media organization. Michael Ratner, president emeritus for the Center for Constitutional Rights and an attorney for WikiLeaks and Julian Assange in the U.S, warned that aiding the enemy “turns publishers, all publishers, into indirect aiders of the enemy because publications especially on the Internet are read by all.” Last week, Yochai Benkler, codirector of the Berkman 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.”

The defense has filed two additional motions to dismiss five charges of stealing U.S. government property, contending that prosecutors have presented no evidence of the theft of databases, and they should not be allowed to equate databases with the information contained within them. In her ruling on Thursday denying the defense motion to dismiss aiding the enemy, Lind stated that Manning was downloading intelligence reports about WikiLeaks, while “contemporaneously  uploading databases” to the organization.

During last week’s testimony by Benker, Lind interrupted him after he testified that a 2008 Army counterintelligence memo on WikiLeaks was “a relatively mediocre effort.” “This witness is not an expert in intelligence,” Lind responded in annoyance. “That is not relevant.” Earlier Benkler had testified that the document in question contained a mistake of fact by asserting that WikiLeaks did not engage in authentication. Lind’s insistence was peculiar, since the prosecution is required to prove the criminal element that the document is in fact intelligence, meaning it is “helpful to the enemy” and “true, at least in part.” Benkler’s testimony was intended to go straight to defending Manning against the criminal elements of aiding the enemy, wanton publication, and the respective espionage charge for the document in question. After defense explained that it did not consider the document intelligence, Lind compose herself and let defense proceed.

Manning has opted to be tried by military judge alone, and not by a panel of officers and enlisted personnel. After the closing arguments that follow the prosecution’s rebuttal case and a possible rebuttal by the defense, Lind will deliberate and announce her findings of guilt of innocence.

Since the court ruled that motive and actual damage (or “lack of damage”) evidence was not relevant at trial—except to “prove” circumstantially that Manning was cognizant of the fact that the enemy used the WikiLeaks website—evidence of Manning’s intent and the impact of the leaks will finally be heard by the court at sentencing. “Her ruling today not only criminalizes an act of conscience by someone seeking to hold those in power accountable to the rule of law,” said Chris Hedges, Pulitzer Prize–winning journalist and author, “but defines such acts of conscience as an act of treason.”

It remains to be seen, however, how much of the sentencing phase of this trial will be open to the public. The government is expected to elicit testimony from 13 classified sentencing witnesses in closed sessions or in classified stipulations for their sentencing case.