7/16/2012 1:56:00 PM,
FORT MEADE, Md. (CN) - A military judge signaled that she would adjust the burden of proof prosecutors must meet to convict alleged WikiLeaks source Bradley Manning of "aiding the enemy."
If convicted, Manning faces life imprisonment for allegedly sending hundreds of thousands of confidential files to the secret-spilling website, which prosecutors claim could have fallen into the hands of al-Qaida in the Arabian Peninsula.
Defense attorney David Coombs says that the allegations are unproven and unsupported by private government assessments and the public statements of public officials.
In April, Col. Denise Lind, the judge presiding over the trial, allowed prosecutors to pursue the aiding-the-enemy charge at trial, but warned them to have proof that Manning leaked documents with that effect in mind.
On Monday, Coombs argued that Lind should emphasize that the jury could not convict if it concludes Manning negligently helped al-Qaida.
Allowing the jury to do so would set a precedent that holds the death penalty over the heads of soldiers who publish information that inadvertently help the enemy.
"Our society values life more than that," Coombs said. "If we take someone's life away, we'll take it for an intentional act."
Prosecutors let the deadline pass to seek Manning's execution, but this case is precedent-setting, Coombs noted.
"It's unfortunate that we're the test case for this," he added.
One of the prosecutors, Capt. Joe Marrow, repeated the charge that WikiLeaks was uniquely poised to help the enemy.
"The government doesn't allege that the enemy uses the Internet," Morrow said. "We allege that it uses a very definite place."
He claimed to have evidence that an email indicated this association.
Coombs said that he had seen no documents suggesting that WikiLeaks, which he called a "media-like organization," was "running info by XYZ enemy."
Both sides brought up these arguments in a late April hearing, when Manning tried to get the charge dismissed.
Although Lind refused to toss the charges, she said she would be mindful of the precedent in crafting her instructions.
"The court is cognizant of the constitutional issues with respect to this hearing," she said.
Lind indicated that she would not hew to language proposed by either Coombs or Morrow.
The parties also wrestled with how to instruct the jury on whether Manning "caused [intelligence] to be published."
Coombs disagreed with the prosecution's position that the phrase spoke for itself.
"If you give information to The New York Times, it doesn't mean it's going to be published," Coombs said.
Earlier in the day, Coombs tried to knock off two charges claiming that Manning exceeded unauthorized access to the Net Centric Diplomacy database in gathering the diplomatic messages that WikiLeaks exposed in "Cablegate."
Prosecutors base that charge on the notion that Manning hacked into the database by using Wget, free software that helps download content from web servers.
But Coombs says that the Army allows the use of that software for that database.
"If they admit the uncomfortable facts of this case, [they must conclude] that the NetCentric Diplomacy database has no restrictions," he said.
He added that the prosecutors are statutorily required to show Manning passed through "electronic gates" blocking his access.
"If the door's wide open, you haven't committed a burglary," Coombs said.
In this hypothetical, prosecutors could charge a larceny.
Morrow, the prosecutor, offered a different hypothetical.
"The accused had a key to the house, but he used a bulldozer to access that information," Morrow said.
Not to be outdone, Coombs compared it to someone using a bulldozer inside of a house after entering it with a key.
The bulldozer, in this variation, morphed into a backpack in which the hypothetical robber packed his bounty.
Later, the examples became more rooted in reality and legal precedent.
Morrow, for example, referred to U.S. v. Drew, in which the court found that a defendant exceeded access to a computer for which he had a password.
The defendant, in this case, used someone else's password to cover his tracks, Morrow said.
Coombs countered that this citation actually supported the defense because it is "a perfect example of a code-based restriction."
Lind reserved decision on the matter, and may issue her ruling as proceedings continue this week.