FT. MEADE, Md. (CN) - Charging WikiLeaks source Bradley Manning with "aiding the enemy" is a "very slippery slope" that threatens to put the "hammer down on any whistle-blower," his defense attorney told a military judge on Monday.
The former intelligence specialist faces 22 charges connected with the disclosure of more than 700,000 military and diplomatic files, including battlefield reports from Iraq and Afghanistan, U.S. embassy cables, and footage of airstrikes that killed civilians.
Manning said he hoped the publication of this information would spark widespread debate, reforms and reportage about the way the U.S. conducts warfare and diplomacy.
Although the "aiding the enemy" charge against him is a possible capital offense, prosecutors are seeking a life sentence in this case rather than the death penalty. The charge has ignited controversy for having journalistic sources risk their lives by approaching journalists with information they believe to be in the public interest.
News outlets from the New York Times and the New Republic condemned the charge as dangerous overkill, and Amnesty International recently called upon
the U.S. military to withdraw it.
Manning's attorney David Coombs noted Monday that the statute is typically used to punish cases when "the accused goes to somebody that he believes or she believes to be an enemy."
This includes the case of former National Guardsman Ryan Anderson whose efforts to help al-Qaida were intercepted by undercover agents; former FBI agent Robert Hanssen who secretly spied for the USSR and Russia; and Antonio Guerrero, a member of the so-called Cuban Five arrested in Miami for espionage. All three are serving life sentences.
Capt. Angel Overgaard, one of the prosecutors, hearkened back to the Civil War case of Pvt. Henry Vanderwater who leaked a roster of Union soldiers to an Alexandria, Va., newspaper.
The military judge, Col. Denise Lind, asked whether Vanderwater was trying to help the Confederacy, in that instance.
Overgaard replied that she did not know. Vanderwater served three months of hard labor and a dishonorable discharge for his leak to the press.
Prosecutors accuse Manning of aiding al-Qaida and al-Qaida in the Arabian Peninsula through his leaks. They do not contend that he intended to do this, only that he allegedly knew that disclosure could have had this effect and ignored that threat.
Coombs countered that Manning actually wanted "to spark reform, spark debate, to get a discussion on what we're doing and why we're doing certain things."
Responding to this with one of the most serious charges in U.S. jurisprudence is a "very slippery slope," Coombs said.
"Basically, [it's] putting a hammer down on any whistle-blower, on anybody who wants to put information out," he added. "In order to avoid that, there should be an intent requirement."
Overgaard said that it "would be nice if we had a videotaped confession" of Manning stating that he knew his leaks could have aided the enemy. Instead, she said that the government provided a "mountain of circumstantial evidence" that Manning's training alerted him to the risks of disclosure.
Coombs countered that the government already has its sought-after confessions in the form of online chats with Adrian Lamo, a former hacker who turned Manning into law enforcement, and a WikiLeaks contact thought to be its chief, Julian Assange.
These conversations centered on informing the public, not helping terrorists, Coombs said.
Judge Lind indicated that she would rule Thursday on whether she would exonerate Manning on this charge, as well as a more minor charge of "exceeding authorized access" to his computer.
Afterward, prosecutors can call three witnesses for a rebuttal case, but they cannot use an unnamed witness they tried to shoehorn in Monday, Lind said.
The government witnesses will attempt to undermine testimony defending WikiLeaks as a legitimate news outlet and casting Manning as driven by the public good.
One witness will purportedly testify that Manning told him, "I would be shocked if you were not telling your kids about me 10 to 15 years from now."
Prosecutors hope to use the remark to depict Manning as driven by "notoriety."
Maj. Thomas Hurley, who is one of Manning's military defenders, slammed the rebuttal witnesses as an "ambush."
Prosecutors have known for several months that Manning planned to call Yochai Benkler, a Harvard professor whose study "A Free Irresponsible Press: WikiLeaks and the battle for the soul of the networked fourth estate" contains his well-known thoughts on the whistle-blowing website.
Hurley particularly bristled at an attempt to refute Benkler's testimony with the unidentified witness.
"The defense will express its frustration that we're talking about a mystery guest that we can't identify with any specificity," Hurley complained, with visible agitation.
Overgaard said that prosecutors had not pursued their rebuttal earlier because they did not know whether Benkler's opinions would be admitted.
Lind asked pointedly: "That means you do no preparation [until you] get your relevance ruling, then start?"