Courthouse in Alexandria in the Eastern District Of Virginia, where WikiLeaks founder Julian Assange was charged with violating the Espionage Act (Photo by Tim Evanson)

The superseding indictment against WikiLeaks founder Julian Assange, which included a staggering 17 charges of violating the Espionage Act, was met with loud condemnation from news editors and press freedom groups.

But given the general reluctance to come off as supporters of Assange, very few of the statements engaged with the specifics alleged by prosecutors for the United States Justice Department.

In order to defend the First Amendment and investigative journalism itself, it is crucial to understand the timeline of events for Chelsea Manning’s disclosures to WikiLeaks and their publication in 2010.

I was one of the few reporters to travel to Fort Meade in Washington, D.C., and cover nearly every day of proceedings in Manning’s court-martial. Prosecutors pushed a contrived theory during her trial, which suggested Manning worked for Assange, as if she was an insider or spy that WikiLeaks turned against the U.S. government and recruited to steal documents for the media organization.

This theory is fundamental to the allegations in the superseding indictment against Assange, yet one massive dilemma for prosecutors exists — Chelsea Manning’s statement during her court-martial.

On February 28, 2013, Manning outlined in great detail her role in disclosing over a half million documents to WikiLeaks. She meticulously described each set of information, why she was drawn to releasing the documents to the public, and how she downloaded, prepared, and electronically transferred the documents to WikiLeaks.

Manning’s statement conflicts with the government’s theory so they are abusing the grand jury process. They are punishing her so she bends to their will and testifies in front of the grand jury, where they hope they will be able to discredit her statement.

The “Most Wanted Leaks” List From 2009

Central to the government’s conspiracy theory is the “Most Wanted Leaks List” from 2009.

The superseding indictment filed on May 23 argues WikiLeaks posted this list “organized by country and stated that documents or materials nominated to the list must ‘be likely to have political, diplomatic, ethical, or historical impact on release…and be plausibly obtainable to a well-motivated insider or outsider.’”

On May 14, 2009, WikiLeaks requested nominations from human rights groups, lawyers, historians, journalists, and activists for documents as well as databases from around the world that the media organization would work to expose.

“It was WikiLeaks saying, look, tell us, humanitarians, activists, NGOs, fellow reporters, what do you want to know in your country? What in your country is being hidden from the public that you believe the public should know? Give us a list,” David Coombs, Manning’s defense attorney, said during closing argument for her trial.

Coombs added, “We are going to compile that list, and we are going to work to obtain that list. What does this sound like? Any journalistic organization that has like a hotline or anything else says, call us. You got a story. Call us. We’ll investigate.”

Manning deployed to Forward Operating Base Hammer in October 2009, which was about 35 miles east of Baghdad. Just weeks after, military prosecutors suggested she started “working for WikiLeaks.”

But out of 78 items on the list, Coombs noted the military prosecutors were only able to “remotely” tie her to “four of the things on the list.”

On June 8, 2013, the defense heavily disputed whether Manning had ever seen a draft of the “Most Wanted Leaks” list. Manning did not mention the list at all in her statement to the court.

“Pfc. Manning had access to a lot of information — certainly on the other countries. And had [she] wanted to, and this was [her] list, you would see a lot of searches on Intelink that match up verbatim or very closely to the items requested on the list,” Coombs contended. [Intelink is a U.S. intelligence network of top secret, secret, and unclassified databases.]

Manning Never Disclosed Any Of The ‘Bulk Databases’ WikiLeaks Requested

In the superseding indictment, prosecutors emphasize the fact that the list requested “bulk databases,” including Intellipedia, a classified Wikipedia for U.S. intelligence analysts. Yet, Manning never released this database to WikiLeaks nor did she release the complete CIA Open Source Center database or PACER database containing U.S. federal court records, which were listed as “important bulk databases.”

Alleged chat logs show Manning brought up the CIA Open Source Center on March 8, 2010, and Assange informed her, “That’s something we want to mine entirely.” But Manning never engaged in any efforts whatsoever to release this information that Assange allegedly sought to obtain.

Only three “bulk databases” were specifically requested through the list. WikiLeaks never requested the databases of military significant activity reports from Afghanistan and Iraq that were available on the Combined Information Data Network Exchange system.

WikiLeaks did not request the State Department’s Net-Centric Diplomacy database containing embassy cables and published to the Secret Internet Protocol Router Network (SIPRnet), which was utilized for the dissemination of information between the State Department and the Defense Department.

Prosecutors allege Assange caused U.S. cables and military incident reports to be published without removing the names of human sources. Except under the government’s theory, it is not plausible that the publication allegedly happened as part of a conspiracy because the “Most Wanted Leaks” list never urged anyone to release these files to the organization.

The “Most Wanted Leaks” list included the “Camp Delta (Guantanamo) Standard Operating Procedure 2005–2009” and the “Camp Delta (Guantanamo) Interrogation Standard Operating Procedure 2003–2009.” It never included a request for the entire database of detainee assessment briefs on individuals captured and transferred to the U.S. military prison at Guantanamo Bay.

The Garani Airstrike Video: An Inconvenient Acquittal

Chelsea Manning (Photo by #MCB19)

Military prosecutors charged Manning with “aiding the enemy,” which covered conduct that allegedly started on November 1, 2009. They also charged her with releasing video of the Garani airstrike in the Farah province of Afghanistan and alleged that started on November 1.

Manning was acquitted of both offenses.

The unauthorized disclosure of the Garani airstrike video was the only Espionage Act offense, which Manning pled not guilty. She would have pled guilty to disclosure if prosecutors accused her of releasing the video on April 11, 2010, but the prosecutors insisted the alleged offense occurred in the first weeks of Manning’s deployment.

Journalist Alexa O’Brien, who was also one of the few reporters to cover Manning’s court-martial extensively, extensively documented how prosecutors relied on the alleged disclosure of the Garani airstrike video to create a foundation for their criminal conspiracy claims. Prosecutors even changed the date for Manning’s earliest offenses in the initial charge sheet from November 19 to November 1.

Examining this part of the case against Manning is crucial to unraveling the government’s conspiracy theory.

Jason Katz, an employee at Brookhaven National Laboratory from February 2009 to March 2010, tried to help WikiLeaks and downloaded an encrypted file with the airstrike video on to his work computer on December 15, 2009. Katz was unable to use a password-cracking tool to open the file.

From O’Brien’s reporting:

“The Garani video allegedly placed on Jason Katz’s work computer on December 15, 2009, however, did not forensically match the Garani video allegedly found on Manning’s workstation. “Was this the same video or a similar video to that seen on the .22 computer?,” Coombs asked Special Agent David Shaver (CCIU) on cross examination. “No, sir,” replied the agent. “Different video?” asked Coombs. “Different video, sir,” said the agent.

WikiLeaks apparently had an encrypted video file of the bomb attack, which killed dozens of civilians. The media organization indicated on Twitter on January 8, 2010, “We need super computer time.”

According to Shaver, Manning pulled video from a shared drive in Iraq that was in a folder labeled “Farah,” but military prosecutors still insisted Manning must have passed the video on to Katz because he had access to a supercomputer that could potentially crack the file.

The Garani airstrike video was not one of WikiLeaks’ “Most Wanted Leaks,” however, if the government’s theory is to be believed, it was the first file Manning disclosed to WikiLeaks.

Coombs pointedly addressed the implausibility of this allegation during closing argument:

Let’s go along with the government and its logic. Pfc. Manning hits the ground in Iraq in mid-November. For whatever reason, his motive, I’m now going to use the 2009 “Most Wanted [Leaks]” List as my guiding light. And I’m going to give something to WikiLeaks. I’m going to do it because I’m now a traitor. I’m now an activist. So what is the first thing I’m going to choose? What is the very first thing I’m going to give to WikiLeaks and say look, WikiLeaks, I’m for you? Well, I’m going to give you an encrypted video I can’t see, you can’t see, guess what, we don’t have a password for it. By the way you never asked for it. That’s not on your 2009 “Most Wanted [Leaks]” list. This is kind of like someone showing up to a wedding and giving you something that’s not on the list that you registered for. What do you think Pfc. Manning is doing at this point? According to the government, [she] is like, hey, you know what, I can go to the 78 things that you want, but I don’t want to give you that stuff.

There was one specific search for Farah on March 22, but the searches that the government used to argue Manning released a video in November were general searches for CENTCOM on Intelink.

Captain Joshua Tooman, a defense attorney for Manning, noted Iraq fell under CENTCOM. Any number of reasons would cover why Manning searched for CENTCOM.

Like Coombs said, all of the above is inconvenient for prosecutors because they need Manning to be working for WikiLeaks within weeks after she was deployed to Iraq. They need her to be an agent of WikiLeaks, not the naive but good-intentioned she comes off as in her statement.

Obscuring Manning’s Disclosure Of ‘Collateral Murder’ Video To Argue Conspiracy

Prosecutors contend Manning’s searches on November 28 for “retention+of+interrogation+videos” and “detainee+abuse” were consistent with the “Most Wanted Leaks” list. Because WikiLeaks was apparently interested in copies of any of the 92 CIA torture tapes that were destroyed and “detainee abuse photos withheld by the Obama administration.”

What prosecutors overlook is the fact that Manning never disclosed any detainee abuse photos or torture videos to WikiLeaks for publication. If she really was looking for these items because she saw them on the list, why didn’t she download and transfer copies of any files connected to these search terms over the next few months?

Additionally, prosecutors attempt to link Manning’s disclosure of rules of engagement for U.S. military forces in Iraq to the “Most Wanted Leaks” list. It included “Iraq and Afghanistan U.S. army Rules of Engagement 2007–2009.” They suggest Manning provided the files to WikiLeaks in late March after Assange allegedly said “curious eyes never run dry” during a chat.

Yet, according to Manning, the rules of engagement documents were disclosed in connection to video of an aerial weapons team engaged in an attack in Baghdad in July 2007, which violated the rules of engagement. She provided rules of engagement documents (from only Iraq) and a copy of the video to WikiLeaks on February 21, 2010.

WikiLeaks called the video, “Collateral Murder.”

Screen shot from the “Collateral Murder” video published by WikiLeaks

Manning became familiar with the video because it was discussed among targeting analysts within her division. She learned Reuters requested a copy of the video, which showed two Reuters employees who were killed.

The military would not voluntarily release the video under the Freedom of Information Act. That, along with the contents of the video, troubled Manning. So, the release of rules of engagement documents had nothing to do with the “Most Wanted Leaks” list on the WikiLeaks website.

Abuse By Iraqi Federal Police Led To Disclosure Of Guantanamo Files, Not Assange

Manning said in her statement she came across the Guantanamo detainee assessment briefs in 2009 “but did not think much of them.”

On February 27, 2010, Manning learned the Iraqi federal police detained “15 individuals for printing anti-Iraqi literature.” She investigated the incident and learned none of the individuals were tied to “anti-Iraqi actions or suspected terrorist militia groups.” She received some evidence that included a “scholarly critique” of Iraqi Prime Minister Nouri al-Maliki, which apparently led to the individuals’ detention.

Manning alerted a commanding officer, but this officer insisted she “drop it” and help the Iraqi federal police find the print shops putting out “anti-Iraqi literature.”

“I knew that if I continued to assist the Baghdad Federal Police in identifying the political opponents of Prime Minister al-Maliki, those people would be arrested and in the custody of the Special Unit of the Baghdad Federal Police and very likely tortured and not seen again for a very long time — if ever,” Manning told a military court in February 2013.

Manning hoped WikiLeaks would publish documents related to the Iraqi federal police’s crackdown on political opponents of al-Maliki. However, WikiLeaks chose not to publish the information and partly because Manning was concerned U.S. military officers would identify her if the media organization published copies of the documents she disclosed

It was during this time period in early March that Manning thought the federal police might turn over political opponents of al-Maliki to the U.S. for transfer to Joint Task Force Guantanamo. She decided to look over the detainee assessment briefs again and realized the U.S. military held “an increasing number of individuals indefinitely,” who they believed were innocent, “low-level foot soldiers that did not have useful intelligence and would be released if they were still held in theater.”

Contrary to Manning’s version of events, prosecutors insist it was Assange, who convinced Manning to find the detainee assessment briefs and release them in alleged chats on March 7, 2010.

FBI Special Agent Megan Brown, who was assigned to the “counterespionage squad” at the Washington Field Office in the District of Columbia, recounted:

…Manning asked Assange, “how valuable are JTF GTMO detention memos containing summaries, background info, capture info, etc?” Assange replied, “time period?” Manning answered, “2007–2008.” Assange responded, “Quite valuable to the lawyers of these guys who are trying to get them out, where those memos suggest their innocence/bad procedure…also valuable to merge into the general history. Politically Gitmo is mostly over though.”…

But in the chat messages referenced, Assange never specifically asks Manning to provide the reports to WikiLeaks nor does he indicate WikiLeaks would publish the documents. All Assange allegedly did was confirm to Manning that they were in the public interest.

***

Most of the Espionage Act charges involve the disclosure and publication of military incident reports and diplomatic cables. However, as far as the government’s theory of conspiracy is concerned, Manning did not upload the military incident reports until February 3, when she was at her aunt’s house in Potomac, Maryland during mid-tour leave.

Later in March, she downloaded hundreds of thousands of diplomatic cables and uploaded them to WikiLeaks on April 10.

Once one recognizes the timeline is depends upon fabrication, the theory for criminal conspiracy crumbles.

WikiLeaks founder Julian Assange in 2009 (Photo by New Media Days / Peter Erichsen)

All that is left is the Justice Department’s clear contempt for a publisher who should be protected by the First Amendment and not expected to adhere to U.S. secrecy laws or guidelines.

“At the time he entered into this agreement, Assange knew, understood, and fully anticipated that Manning was taking and illegally providing WikiLeaks with classified records containing national defense information of the United States that she was obtaining from classified databases,” the indictment proclaims.

“Assange was knowingly receiving such classified records from Manning for the purpose of publicly disclosing them on the WikiLeaks website.”

Indeed, Assange, who was WikiLeaks editor-in-chief, allegedly established a relationship with Manning, a source, via encrypted chat. She submitted materials that were reviewed. They engaged in discussions of the materials, and she asked for help from WikiLeaks to protect her identity. They employed privacy tools to try and avoid detection by military or government authorities.

What Assange did with Manning is fairly standard in journalism. Perhaps that is why media organizations and press freedom groups unanimously opposed the decision to charge Assange with Espionage Act offenses.

John Demers, assistant attorney general of the Justice Department’s National Security Division, asserted, “Julian Assange is no journalist. This is made plain by the totality of his conduct as alleged in the indictment.”

Yet, Matthew Miller, former director of the Justice Department’s public affairs office between 2009 and 2011, labeled the indictment “dangerous and probably unconstitutional.”

“DOJ doesn’t get to decide who is deserving of First Amendment protections and who isn’t. There’s a reason we wouldn’t charge this in the Obama administration,” Miller added.

Miller correctly pointed out the legal theories in the indictment could easily be used to prosecute a reporter for the New York Times. “Despite DOJ’s assurance, the Espionage Act doesn’t make any distinction between reporters and other actors.”

Unfortunately, while Miller disagrees, the legacy of President Barack Obama’s administration looms over the prosecution against Assange.

The Obama administration prosecuted more current and former government employees under the Espionage Act than all previous presidential administrations combined. They launched the grand jury investigation into WikiLeaks and never recognized they were wrong to empanel a grand jury in the first place.

Although the administration never charged a reporter, it treated journalists like co-conspirators. Officials pursued a subpoena against journalist James Risen in an effort to force him to testify against his alleged source.

Deputy Attorney General James Cole approved a request in February 2013 to subpoena the phone records for 30 different telephone numbers associated with the Associated Press’ offices. Officials targeted seven reporters and editors over a six-week span from April to May in 2012. Officials briefly considered targeting the records of The Washington Post, The New York Times, and ABC News.

The subpoenas were obtained during a leak investigation and also were aimed at the “trunk lines of major AP offices — lines which could [have] potentially reveal[ed] confidential sources across all of the AP’s newsgathering activities,” according to the Columbia Journalism Review.

Now, citizens are faced with a presidential administration that has an even greater zeal for investigating leaks than the Obama administration, and the harsh reality is the Trump administration largely picked up where the Obama administration left off.

Trump officials have carried the war on whistleblowers to its logical extension: finding a test case that may force journalists to think twice about publishing classified information in an age when technology for accepting leaks has proliferated.

Evidence showing Assange recruited Manning to act as an insider for WikiLeaks does not exist. Yet, that is exactly why the government will not withdraw the subpoena against her.

The government knows it is unlikely to succeed in prosecuting Assange unless they undercut the truth Manning asserted in a military court. They must abuse the grand jury process and use confinement and steep financial penalties to force her testimony. She has to be tripped up or baited into making statements useful against Assange or else all they have is a preposterous conspiracy theory that not even the anti-leaks Obama administration was willing to pursue.