The military trial in the case of Wikileaker Bradley Manning continued earlier this week. An interesting legal point in the case has arisen, as Manning’s defense lawyers pushed back against tweets that the prosecution wanted introduced as evidence.
Allow me first to provide a little bit of background on why the tweets in question are even being discussed in the case.
One of the key issues in the case has been the relationship between Army Private First Class Bradley Manning and Wikileaks, and its founder Julian Assange. Prosecutors have alleged that Manning was influenced by Wikileaks to leak some of the confidential documents. (Manning has already admitted to leaking the documents, but has denied more serious accusations, including that he knowingly aided the enemy).
Previously released chat logs between Manning and ex-hacker Adrian Lamo, who earlier testified in the case, have established that Manning had been in contact with Wikileaks, but there remains contention between prosecution and defense about to what extent and when that contact occurred. They also continue to argue over whether or not Manning’s actions were influenced by Wikileaks, or if there was any collusion between the two. This has been a crucial point as well for federal prosecutors seeking to build a case against Julian Assange.
On Tuesday, prosecutors and defense attorneys argued over a couple of tweets in particular. One of those tweets, alleged to have been posted from the Wikileaks Twitter account on 7/8/2010, asks for the public to assist in providing .mil email addresses to Wikileaks. Another on 1/8/2010 posted by Wikileaks referenced having an encrypted video of a U.S. air attack (referring to what we now know was the “Collateral Damage” video, one of the items in the files leaked by Manning and later edited and published by Wikileaks). Prosecutors argue that this further emphasizes evidence of a leak, and that it should be admissible as part of its broader argument on the point.
Special Agent Mark Mander of the Army Criminal Investigative Command testified about how he went about determining the tweets were from Wikileaks’ account. In the past, he first went to the Wikileaks Twitter account directly and saw the tweet personally; then he more recently collected it from a Google cache version and the content in both was the same. Mander testified that Google cache is something that he has used regularly in his capacity as a CID agent investigating computer intrusions and computer crimes. He also explained a variety of other steps he took, in addition to obtaining cached versions of the tweets, to cross-check the authenticity of the tweets as being that of Wikileaks.
But Manning’s defense attorneys challenged the authenticity of such tweets.
“Anyone can create a Web page…that looks like WikiLeaks or that looks like Twitter,” argued defense attorney Captain Joshua Tooman when the government sought to admit a May 7, 2010 tweet from WikiLeaks seeking military Internet addresses, and the Web page of the Internet archive site archive.org that showed a 2009 WikiLeaks “Most Wanted” list of items it was seeking from the public.
Tooman said a government investigator had accessed the tweets indirectly, through Google, rather than directly through Twitter or WikiLeaks. He said the evidence failed to meet the test of authenticity since there was no way of knowing what the website looked like when the tweet or page was published.
The argument from the defense about the tweets’ authenticity raises an interesting legal point that could potentially influence similar arguments in civilian cases.
While it’s accurate that anyone can create a web page that mimics a legitimate site – in fact we’ve seen this in other circumstances that have been the subject of recent news reports, such as when Wikileaks Punked the NY Times – there surely needs to be some acceptable standard for authenticating tweets and other content that has since been archived and may no longer be available online. Most would assume that the standard tools regularly used to find archived content, like Google cache and the Internet Archive (formerly the WayBackMachine), would be acceptable in these instances, coupled of course with additional cross-checking. But the Manning defense team argues that it’s not.
If the judge determines that Google cache and other such tools are not an acceptable way to authenticate archived tweets, it poses an interesting question about how this might influence similar arguments going forward (not necessarily as precedent, but just as a general point).
You can read the entire day’s testimony in this particular argument in the unofficial court transcript for 6/18 provided by Freedom of the Press Foundation.
It will be interesting to see what the decision is on this matter. Proceedings resume in the Manning trial on June 26th.
In one of the case’s most disturbing pre-trial hearings, Judge Col. Denise Lind ruled last week that prosecutors can offer as evidence files seized from Osama Bin Laden‘s computer as well as the testimony of a Navy Seal, part of the Bin Laden assasination team, who found them. His identity will not be revealed and the defense can cross-examine him only from a very specific and limited list of court-approved questions.
The ruling is important not only because it shows the almost unimaginable absurdity of the Manning case but because it reveals the true intent of the Obama Administration in pursuing it.
Bradley Manning and the Video — fragment of a leaflet from the Georgia Green Party
The hearing was about the “standard of proof” necessary to prove two charges: espionage and aiding the enemy. It also took up what kinds of evidence would be permitted in the trial to support those charges.
According to the prosecutors, Manning committed espionage and aided the enemy by giving them important intelligence and he did that by putting it on the Internet. That’s it; that’s the crime. His real intent is irrelevant. The government is arguing that, if you put something on the Internet that some nefarious rascal downloads, you are effectively aiding that person materially in any “relevant” crime he or she might commit. It doesn’t matter if there’s no evidence that the person read it and no need to prove that you intended for him or her to retrieve it. Effectively, it makes the use of the Internet a potential crime.
Judge Lind ruled that to prove “espionage” you have to show that the defendent actually intended for this material to be read by the enemy; that was a defeat for the prosecution. But, she ruled, the government can pursue its theory to support the “aiding the enemy” charge.
One up and one down for Pvt. Manning. Two down for the rest of us. The Judge’s decision is important for the trial but what’s most important for all of us is what the Obama Admininstration is thinking and doing. It’s not clear that the Administration believes that these very same acts and standards apply to both crimes. While the “aiding the enemy” charge only relates to military personnel, the “espionage” charge can be levelled at everyone and, while it failed to win the ruling in this case, it’s clear that President Obama believes he can charge any of us with “espionage” for using the Internet as it’s currently used.
For those who aren’t familiar with this case or need an update, Pvt. Bradley Manning is a whistle-blower. Sometime in 2010, when he was working as an information technologist with the Army, Manning sent about 750,000 computer files to Wikileaks.
These included a shocking video of a U.S. Air Force helicopter firing at a wedding party in Bagdad, killing several people, and then firing at an ambulance there to evacuate the injured. All the while, ground support and helicopter personnel laughed and encouraged the pilot to “kill” and “shoot” the people, as if playing a video game with real humans as targets. The video became a major embarassment to Washington and, while there was a lot about the Wikileaks revelations that made Washington very unhappy, this video provoked the final pull on the trigger. The U.S. government determined to go after Wikileaks and the source of this classified material.
A short while after turning over the material, Manning began corresponding and chatting on-line with Adrian Lamo, a technologist who had built a reputation for hacking into corporate servers, telling the company about it through an intermediary and then offering to fix the vulnerability for money. Lamo befriended Manning, spending hours with him in on-line chat rooms and email talking about the difficulties Manning was having. Manning is gay, he told his new friend, and he found the often homophobic military culture punishing. But, he also told Lamo, he had all these documents that made clear how wrong the war in Iraq was and holding that truth from the world was eating at him so he finally published them.
Upon reading that, Lamo turned Manning in and the torturous case began.
Manning doesn’t deny he leaked the files and, in fact, he has already pleaded guilty to that charge, a plea the judge is still considering. He’s explained his actions in an audio tape smuggled out of jail and published by Democracy Now. The tape is stunning for what it says about the information and about Bradley Manning.
This is a case, after all, in which homophobia has already played a major role. It’s hard to think of any public figure who has been as “preference-maligned” as Manning by both the government and the media. Almost every article published about the case pictures him as a confused, frightened gay man, an emotional cripple and weakling who was pushed to the point of near-suicide by a military system he couldn’t adjust to. That condition, the mainstream media tells us, was exascerbated by the tortourous treatment Manning received during his time in jail, much of it spent in solitary confinement.
This largely unchallenged gay-bashing, sketching an image that meshes just about every homophobic bias plaguing our culture, took an uglier step when pundits started asking an over-loaded question: why was a kid who was on the verge of a crack-up allowed access to such sensitive information?
This attack campaign encountered a devastating challenge when Manning finally spoke to us in that tape, emerging as a completely controlled, thoughtful, highly principled and courageous hero. Despite the brutal treatment he had endured, he sounded confident and strong as iron.
“I believed that if the general public, especially the American public, had access to the information,” he explained, “this could spark a domestic debate on the role of the military and our foreign policy in general, as well as it related to Iraq and Afghanistan.” Sounds like a real jelly-bean, huh?
Bradley Manning knew exactly what he was doing, had a good reason for doing it and appears ready to do his time (up to 20 years if the plea is accepted) as an act of conscience and civil disobedience. Such actions form a critical component of the history of this country — the kind of actions that drove the civil rights movement that, among other things, made Barack Obama’s election possible. But that’s a chapter of our history the President apparently hasn’t read.
Instead of recognizing this act of conscience, the government churlishly continues to charge Manning with two criminal acts that are among the most serious any citizen faces. Manning denies them both and that’s what the trial is about.
In truth, it’s tough to take the “espionage” charge seriously in this case. Nobody has presented one fact that indicates that he’s guilty of any such thing and the Judge rejected the argument that all Manning had to do to be found guilty was put this material on the Internet. But it’s the evidence that U.S. prosecutors say would support both charges that should send a chill up our collective spine. They claim that Manning gave this material to Wikileaks knowing that it could be picked up by terrorists, particulary Bin Laden-led Al Quaida. That, the government argues, is giving the enemy material and informational aid and is also an act of espionage.
What does that mean for the rest of us? We all put information on the Internet. Some of us, seeking to shine light on the truth, publish information the government doesn’t want us to. This can be “whistle-blowing” or it can just be good journalism or fact-finding. Journalists often do that and, in fact, they have often been encouraged to. In the age of the Internet, the number of people doing that has exploded. The Internet makes us all potential journalists.
Now, if a criminal downloads information we publish, we may be considered complicit in that person’s crimes.
How the government will apply this theory remains to be seen and courts, judges and lawyers will be thrashing it out for a long time as the rest of us watch with more than “observer status”. But there is a greater threat that lurks behind the very concept involved here. The Obama Administration seeks to curtail the very functionality that makes the Internet the effective source of communication it currently is. It wants to destroy the Internet as we know it.
Once you put something in a public place on-line everybody has access to it. That isn’t an abuse or weakness of the Internet; it’s the very essence of its power and purpose. It was developed as an unfettered, free and world-accessible system of information gathering and exchange. It’s why you use the Internet the way you do — because you can get information on virtually every topic imaginable.
Think about it. Before the Internet, if you had a question about something or some information you needed, you would plow through books and articles and call people hoping they knew what you needed to know. You might try to remember what television program made mention of the sought-after info and then have to figure out how to retrieve it. Much of the time, you would scratch your head and, if you’re like me, give up. Our access to information was restricted because information was not yet fully collaborative. The world was still informationally divided into naturally restricted cells of competence or access to information.
The Internet changed all that. Where do you start if you need information? You use an on-line search engine and the websites your searches uncover. Then you click links on those sites to others that might deepen your knowledge. You can keep going almost infinitely, deeper and wider, because the knowledge and experience of the world’s entire population is available and accessible to you. We have collectivized knowledge and, because knowledge is the seed of social change, the Internet is a critical tool in the struggle for our future.
President Obama, however, contends that it is effectively dangerous and the position his minions have articulated is rabidly repressive. Anything you put on the Internet, at any time, could be read by a terrorist or criminal and, if the government can prove that information had some potential relationship to that crime and the criminal got access to it, you are an accessory. If the criminal has been designated as an enemy of the United States, even if your information pre-dates that designation, you can be considered a traitor.
Some might argue that there is a limit: Obama lawyers are contending that this material was illegally released and materially helpful to a terrorist. But can you really predict what information will be used in a crime in the future? How do you know, when you publish information, that some nut-case isn’t going to download it later on? And who in the world is going to decide that any information is illegally released? What happens if you’ve published information that some government functionary decides, at some later date, to label “top secret”? Or some University official or a corporate employee stamps “not for public consumption”?
That, by the way, is what they were trying to throw Aaron Swartz in jail for 35 years for.
Who decides? Well, the government does and that is something we can’t abide. Making a government the final arbiter of what should and shouldn’t be seen on the Internet is corrosive of democracy. Claiming that merely publishing information is effectively terrorism is a nightmarish trashing of protected communications. This case demonstrates that, when it comes to world-wide communications. the U.S. government is a very dangerous force.