Perhaps having seen one too many second-tier Oscar contenders, the government may call a Navy SEAL from the Osama bin Laden raid to provide digital evidence as part of a strained effort to prove the most serious charge against Bradley Manning, that he "aided the enemy." It's a weird, complicated, and flamboyant step in the military trial of the Wikileaks case this week, aimed at demonstrating that bin Laden himself accessed the material Manning sent to Wikileaks — though if that actually proves his crime remains unclear.
The Guardian explains what the government hopes to accomplish:
Prosecutors intend to bring to the witness stand an anonymous man they are calling "John Doe" who would testify how he entered a room in the al-Qaida leader's hideout in Pakistan, grabbed three items of digital media and removed it. Later, four separate files of information were off-loaded with WikiLeaks contents on them.
The testimony would be used, the prosecution said, to show that Bin Laden had actively sought access to the material Manning had passed to WikiLeaks. That in turn would provide supporting evidence for the most serious charge against the soldier -- that he had "aided the enemy".
It's not trivial to prove that the media examined by the FBI was actually once at bin Laden's house. Journalist Kevin Gosztola outlines how the chain of evidence would be established:
They would like to have at least five other witnesses on the stand to testify about the chain of custody: how the evidence was given to someone in Afghanistan then to an FBI agent who went to Quantico and then passed it on to a forensic examiner.
The government also wants three witnesses on top of those six to testify about “what those documents were.” The documents on bin Laden’s digital media were, according to the government, the same as the ones found on WikiLeaks and also the documents found on an SD card at Manning’s aunt’s house. On top of that, they also would like a witness to testify on “what the letters said.”
That's nine witnesses to establish that Osama bin Laden requested and then had in his possession documents that could be downloaded from the internet — showing that Manning aided at least one particularly notorious enemy.
But proving that doesn't necessary make the government's case. The Uniform Code of Military Justice covers aiding the enemy in its 104th Article:
Any person who--
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly
That "knowingly" is key. Did Manning knowingly and indirectly give "other things" to "the enemy" because bin Laden associates downloaded leaked material from Wikileaks at his behest? Last summer, the government asserted that it had evidence that he did; presumably the evidence from the bin Laden raid. As reported at the time by the UPI, Manning's defense was skeptical.
Lead defense lawyer David Coombs countered by requesting that the government produce any evidence it possesses that backs up the allegation Manning knew the documents would become available to enemy forces such as al-Qaida.
"We haven't seen any evidence that the government has provided by discovery that supports any knowledge that the information would be obtained by the enemy," he said.
Coombs made an additional point:
Coombs said the release of information to an organization such as WikiLeaks was no different from going to a respected newspaper with concerns.
"If I'm a government official and I'm concerned by some aspect of government practice, and I go to The New York Times with information, and the newspaper publishes it, have I now aided the enemy?" Coombs asked the presiding military judge, Col. Denise Lind.
At some point, Bradley Manning's case will go to a jury trial. The defense will suggest that Manning acted as a whistleblower, like Daniel Ellsberg giving the New York Times the Pentagon Papers. The government will try to prove a stronger charge than even Ellsberg faced, but with a possible trump card: one of the War on Terror's few celebrities, making a minor point about digital data but with all of the glamor and intrigue of a hit Hollywood picture.