(CN) – Kim Kardashian’s ascendance to the presidency is about as likely as the notion that WikiLeaks harmed U.S. national security, lawyers for Pfc. Bradley Manning argued in a defense brief released Wednesday.
“Anything ‘could’ happen – the world ‘could’ end tomorrow; Kim Kardashian ‘could’ be elected president of the United States of America; I ‘could’ win the lottery,” Coombs wrote. “These are not the types of ‘could’ that 18 U.S.C. Section 793 contemplates.”
Military prosecutors hope to use that statute, which governs the gathering, transmission or loss of national defense information, to hold Manning liable for “aiding the enemy,” among other charges.
Manning allegedly sent hundreds of thousands of confidential files to WikiLeaks, which published them as “Cablegate” for diplomatic transmissions; “War Logs” for incident reports of the Iraq and Afghanistan wars; and “Collateral Murder” for footage of the July 12, 2007, Baghdad airstrike that killed 12 people, including two Reuters employees.
WikiLeaks supporters have credited the disclosures with exposing corruption, helping end the Iraq War and fueling the Arab Spring.
Military prosecutors, on the other hand, say that the leaks could have harmed national security.
Manning’s lawyer, David Coombs, called that idea “fanciful” in a brief dated June 21 and released Wednesday.
“The defense should be able to probe whether the witness’s testimony that the information could cause damage to the United States is remote, speculative, far-fetched and fanciful by examining such witnesses on the fact that two years after the alleged leaks, the conclusion is still merely that the information ‘could’ cause damage – not that it ‘did’ cause damage,” the brief states.
Sixty-three agencies of the U.S. government have created private “damage assessments” that show the alleged leaks caused little to no harm to national security, Coombs has repeatedly argued.
Col. Denise Lind, the military judge presiding over Manning’s court-martial, ordered prosecutors at a recent hearing to turn over several of those assessments. Lind also plans to monitor that prosecutors are sharing exculpatory evidence with the defense.
Meanwhile, prosecutors, led by Maj. Ashden Fein, have asked the judge not to let Manning use “absence of harm” as a legal defense.
“The accused’s personal decisions about whether he thought the document would be classified is irrelevant,” Fein told the court in late April. “An OCA must determine whether the document could, prospectively, could damage the national security.”
OCA stands for Original Classification Authority, an abbreviation for military official who determines classification status.
Coombs says the Constitution demands that he be allowed to test those determinations at trial.
“If Pfc. Manning is not permitted to question an OCA or other government witnesses regarding the factual statements and speculative assertions in the damage assessments, his Sixth Amendment right to confrontation will be violated,” the brief states.
In a different brief, Coombs asked the judge to raise the burden of proof prosecutors must meet to convict Manning of “aiding the enemy.”
He proposed a long paragraph instructing a judge or jury to acquit Manning of the charge if prosecutors do not show that he used WikiLeaks as a “mere conduit” to help al-Qaida in the Arabian Peninsula.
A portion of this paragraph states: “Providing intelligence to a third party with reason to believe that the enemy might receive it, could receive it, or even would likely receive it, is insufficient. Rather, you must be convinced beyond a reasonable doubt that the accused, using the third party as a mere conduit, knowingly and intentionally gave intelligence to the enemy.”
Coombs also renewed his motion to throw out charges that Manning uploaded an unauthorized software program, Wget, on his military computer to allegedly retrieve confidential documents.
“Although the program was not apparently officially authorized for the individual user, it was authorized for use on the Army server components of the system,” Coombs wrote.
A citation following this sentence refers the judge to evidence in the form of an email that has not been publicly released.
“As such, Wget is a program that is authorized to be used on certain military computers,” Coombs continued.
Lind will likely resolve these issues, and others, at the next set of hearings, from July 16 to 20, leading up to court-martial proceedings.
Since the military classifies all government and judicial filings in stateside court-martials, its arguments are not available to the public.
More than 40 news organizations have signed a petition by Reporters Committee for Freedom of the Press to push for greater transparency with court documents. The Center for Constitutional Rights also has filed a lawsuit for more press access in the Manning trial.