Circumstantial evidence against Manning might lack authentication: trial report, day 8
By Nathan Fuller, Bradley Manning Support Network. June 18, 2013.
The eighth day of Bradley Manning’s court martial lasted just an hour and a half, and we’re now in recess until Tuesday morning, June 25, so the defense and government can continue to hammer out 17 stipulations of expected testimony over the long weekend. Today the parties litigated the admissibility of three pieces of the government’s proffered evidence: the use of the Wayback Machine, an Internet archive tool that investigators used to retrieve a 2009 version of WikiLeaks’ ‘Most Wanted Leaks’ list, and two WikiLeaks tweets from 2010, which were recovered using Google Cache.
In one tweet, WikiLeaks announces possession of an encrypted video, which the government says is the Garani/Farah airstrike video and which it claims Bradley provided them:
The defense points to Bradley’s chats saying merely that WikiLeaks has an encrypted video, not that he gave it to them. The only video proven to match hash-values with the U.S. Central Command’s version can be found on Jason Katz’s computer, and no connection has been found between Katz and Manning.
In the other tweet, WikiLeaks requests “.mil email addresses,” and which the government cites when claiming Bradley worked at WikiLeaks’ behest, following their direction:
But the defense says Bradley never saw that tweet, and what he’s said to have downloaded to his computer doesn’t quite match the request: defense lawyers imply he downloaded the U.S. Forces-Iraq address list, not all military email addresses.
Investigators could not find the Most Wanted Leaks list via WikiLeaks’ website – they only found versions of it by searching with Google.
The defense objected to the use of these items on hearsay, relevance, and authentication grounds.
The defense said the Google Cache-retrieved tweets are ‘double hearsay’ evidence and therefore unreliable: essentially, it claims, Google is “saying” what another website “said” at a certain point in time. Defense lawyer Capt. Tooman said that the judge would need to hear directly from someone from WikiLeaks itself to be able to hear personal knowledge of when those tweets were sent and what they say.
The government claimed the evidence meets a hearsay exception that allows for evidence that has an effect on the listener for an element – they say the evidence goes to Bradley’s knowledge of what WikiLeaks would do with information that he gave them. But the defense countered that there’s no proof Bradley even looked at these tweets, and it has to be established that he did for the evidence to qualify for that exception.
That same argument was made for the government’s attempt to admit a Wayback Machine-retrieved version of WikiLeaks’ 2009 Most Wanted Leaks list. The defense contests the government’s production of that list because it can’t be proven that the Wayback Machine didn’t rely on a third-party web-crawler to obtain it, and if a third-party crawler did, we’d need to see personal knowledge from that crawler that the information wasn’t manipulated.
The defense has already admitted a different version of that list, one that calls for journalists, lawyers, police, and human rights activists to contribute to the list to ask for documents that would aid their work. But, the defense says, the government only provided one version because it better supports their case theory. The government only offered one version and they only use the Wayback Machine to authenticate it. There are versions of the list here, here, and here.
The government wants to prove that he viewed these tweets and lists before disclosing documents for the Article 104 Aiding the Enemy charge, so in the absence of less-circumstantial evidence, the admissibility of these documents could go a long way to supporting or eroding their contention.
Court is in recess and will resume for a status conference on Tuesday, briefly updating the court on the 17 stipulations of testimony in progress. In addition to those 17, the government intends to call 12 more sentences in its merits case. On Wednesday, court is scheduled to resume with those stipulations and more government witnesses.
Col. Denise Lind, drawn by Debra Van Poolen (click for source)
In one tweet, WikiLeaks announces possession of an encrypted video, which the government says is the Garani/Farah airstrike video and which it claims Bradley provided them:
The defense points to Bradley’s chats saying merely that WikiLeaks has an encrypted video, not that he gave it to them. The only video proven to match hash-values with the U.S. Central Command’s version can be found on Jason Katz’s computer, and no connection has been found between Katz and Manning.
In the other tweet, WikiLeaks requests “.mil email addresses,” and which the government cites when claiming Bradley worked at WikiLeaks’ behest, following their direction:
But the defense says Bradley never saw that tweet, and what he’s said to have downloaded to his computer doesn’t quite match the request: defense lawyers imply he downloaded the U.S. Forces-Iraq address list, not all military email addresses.
Investigators could not find the Most Wanted Leaks list via WikiLeaks’ website – they only found versions of it by searching with Google.
The defense objected to the use of these items on hearsay, relevance, and authentication grounds.
The defense said the Google Cache-retrieved tweets are ‘double hearsay’ evidence and therefore unreliable: essentially, it claims, Google is “saying” what another website “said” at a certain point in time. Defense lawyer Capt. Tooman said that the judge would need to hear directly from someone from WikiLeaks itself to be able to hear personal knowledge of when those tweets were sent and what they say.
The government claimed the evidence meets a hearsay exception that allows for evidence that has an effect on the listener for an element – they say the evidence goes to Bradley’s knowledge of what WikiLeaks would do with information that he gave them. But the defense countered that there’s no proof Bradley even looked at these tweets, and it has to be established that he did for the evidence to qualify for that exception.
That same argument was made for the government’s attempt to admit a Wayback Machine-retrieved version of WikiLeaks’ 2009 Most Wanted Leaks list. The defense contests the government’s production of that list because it can’t be proven that the Wayback Machine didn’t rely on a third-party web-crawler to obtain it, and if a third-party crawler did, we’d need to see personal knowledge from that crawler that the information wasn’t manipulated.
The defense has already admitted a different version of that list, one that calls for journalists, lawyers, police, and human rights activists to contribute to the list to ask for documents that would aid their work. But, the defense says, the government only provided one version because it better supports their case theory. The government only offered one version and they only use the Wayback Machine to authenticate it. There are versions of the list here, here, and here.
The government wants to prove that he viewed these tweets and lists before disclosing documents for the Article 104 Aiding the Enemy charge, so in the absence of less-circumstantial evidence, the admissibility of these documents could go a long way to supporting or eroding their contention.
Court is in recess and will resume for a status conference on Tuesday, briefly updating the court on the 17 stipulations of testimony in progress. In addition to those 17, the government intends to call 12 more sentences in its merits case. On Wednesday, court is scheduled to resume with those stipulations and more government witnesses.
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