FORT MEADE, Md. (CN) - Emails harvested from the raid on Osama bin Laden's compound can be used in the trial of WikiLeaks source Bradley Manning, a military judge ruled Wednesday.
Manning, a 25-year-old private first class, admitted in late February to having sent the secret-busting website the largest intelligence trove in U.S. history.
The leaked files included hundreds of thousands of incident reports from the Iraq and Afghanistan wars, Guantanamo detainee profiles, and, most famously, footage of a Baghdad airstrike.
Manning testified that he chose files, and categories of files, that he believed would provoke public debate about how the U.S. conducts war and diplomacy, without putting national security at risk.
The admission covers 10 lesser included offenses of the 22 charges against him, but prosecutors still intend to pursue all original counts: including "aiding the enemy," which carries a potential life sentence.
Prosecutors have identified the "enemy" in this case as al-Qaida, al-Qaida in the Arabian Peninsula and a classified entity that the State and Treasury Departments designated as an enemy.
Col. Denise Lind, the military judge, has said that the enemy could include "organized opposing forces" and "other hostile body," such as "a rebellious mob or a band of renegades."
The deep secrecy of the upcoming trial, about a third of which could be held behind closed doors, came to the fore again as the parties discussed testimony regarding the Abbottabad raid.
To convict on that count, the government intends to use emails that purportedly show Osama bin Laden sent WikiLeaks files to an al-Qaida member.
A confidential witness, presumed to be a Navy Seal, is scheduled to testify about discovering the emails on hard drives, thumbs drives or other devices found in the compound.
The press and public will not be able to watch any part of the testimony, which the witness will give in a closed session, from a secret location and in disguise.
On Wednesday afternoon, Col. Lind specified that the witness's disguise must be "light" enough not to cover facial expressions and body language for Manning's lawyers to test him or her during cross-examination.
Three other witnesses will be testifying entirely behind closed doors, and 24 witnesses will have partially closed testimony.
Defense attorneys had wanted the government to provide more detailed summaries of the classified testimony, but Col. Lind shot this request down Wednesday.
Manning's attorney David Coombs had complained on March 1 that it would be irrelevant for the trial to feature testimony from the secret witness, and bin Laden's emails, because the statute merely requires prosecutors to prove that the leaked files could potentially have fallen into the hands of an "enemy."
"Nowhere does it state that actual receipt by the enemy is required," Coombs said at the time.
Lind's rejection of that argument Wednesday cites a dusty tome of U.S. Army Col. William Winthrop, who wrote "Military Law and Precedents" before he died in 1889.
The Supreme Court called the 1920 reprint of the book "the blackstone of military law," she noted.
Showing its age, that edition cites a Civil War example of "Giving Intelligence to the Enemy" that involved "pointing out to enemy's cavalry the road by which a herd of government cattle had been driven to avoid capture, and stating that the same was without a guard."
Winthrop emphasized: "It is necessary that the enemy shall have been actually informed. If therefore the intelligence fails to reach him, this offence is not completed, though the offence of holding correspondence may be."
On the other hand, an earlier ruling blocks Manning's attorneys from fighting the "aiding the enemy" charge by using evidence that the leaks did not harm national security.
An apparent charging misstep raised the burden of proof prosecutors must meet to gain a conviction on the top charge.
Prosecutors can choose to charge someone with violating the Espionage Act under the "document clause" or the "information clause."
The charges against Manning were drafted under the "information clause," which, unlike the "document clause," compels prosecutors to prove an accused has a "reason to believe" the information could harm the United States.
Manning shared tangible files, not intangible information like a verbal tip, Lind noted.
She forced prosecutors to use the burden of proof that came with the charges as crafted.
By using the "information clause," prosecutors could have prevented an appeal on the grounds that Manning sent "electrons" rather than physical documents, a military legal spokesman explained.
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