FT. MEADE, Md. (CN) - Pfc. Bradley Manning's attorney asked Friday to interview the person who allegedly found WikiLeaks-related emails written by Osama bin Laden.
On Thursday, Manning admitted his responsibility for the biggest intelligence disclosure in U.S. history, stating that he wanted to spur public debate about the conduct of two wars, international diplomacy and indefinite detention at Guantanamo Bay.
To prove that this disclosure "aided the enemy," prosecutors intend to call "Mr. Doe," who will attest that the raid of Osama bin Laden's compound turned up emailed instructions to an al-Qaida member to look for WikiLeaks files.
Doe will testify in an off-site, secure location, in an altered appearance.
On Friday, the prosecution urged the judge not to allow Manning's lawyer a pretrial interview with Doe in the interests of national security.
Lead defense attorney David Coombs argues that such a request undermines Manning's Sixth Amendment right to confront the witness against him.
"Mr. Doe should have been treated like any other government witness, where here is your left and right boundary of what you're allowed to say," Coombs said.
Typically, a government agent sits in on such interviews to warn the defense when it is in danger of crossing the classified line, Coombs explained.
He indicated that he hoped to establish "certain testimonial infirmities" through such questioning.
"Does Mr. Doe have any known memory gaps?" Coombs hypothesized. "This would go to the accuracy of the facts that he could recall."
He would also probe Doe about whether the individual saw the emails firsthand, had a history of inconsistent statement, or demonstrated any potential bias that could influence the testimony.
Attempting to undermine the sensitivity of such information, Coombs noted, "The raid has been well documented."
The lead prosecutor, Maj. Ashden Fein, replied that the information does not become less sensitive "just because a book is written by an individual" or "just because a movie's made," apparent references to "No Easy Day" and "Zero Dark Thirty."
Coombs countered that he was asking to the government to privately tell the court what facts are classified, not verify any fictional or nonfiction accounts that have been produced.
If satisfied with Doe's answers, the defense could stipulate the email's authenticity, Coombs said.
After the military judge, Col. Denise Lind, proposed a phone interview, Fein indicated that this could be feasible if Doe's voice was obfuscated and a government agent was present.
Earlier, the parties argued over whether Doe's testimony would be relevant for trial or sentencing.
The controversy centers upon whether the government must prove that an "enemy" received the WikiLeaks files to prove the "aiding the enemy" charge.
Ironically, the defense asked the judge to lower the government's burden of proof to keep the potentially explosive emails from entering the trial, and prosecutors want to increase their burden to enter them into evidence.
In making their arguments, prosecutors have dusted off Civil War case law and a 1920 reprint of a tome by late U.S. Army Col. William Winthrop, who wrote "Military Law and Precedents" before he died in 1889.
Under the section of "giving intelligence to the enemy," that edition offers a glimpse of what intelligence meant at the time it was written.
Examples included, "the furnishing to the enemy a plan of the defences of a military post; the 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; the writing and sending letters to a person in the enemy's service in which information was given of the movements of troops and of intended military operations; and the giving of similar information to scouts of the enemy."
The part of the guide relevant to the Manning trial stated that the enemy actually has to receive it, Fein said.
Contesting this interpretation, Coombs said the authors of the Uniform Code of Military Justice specifically declined adoption of this language.
The judge reserved ruling on the issue, as the parties concluded this round of hearings with a discussion of classified matters behind closed doors.
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