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Bradley Manning's Next Court-Martial Hearing Arrives Tomorrow | The Nation

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Greg Mitchell

Greg Mitchell

Media, politics and culture.

Bradley Manning's Next Court-Martial Hearing Arrives Tomorrow

Bradley Manning, facing twenty counts, including “aiding the enemy” (which potentially carries the death sentence), for allegedly leaking sensitive military and government documents to WikiLeaks, returns to Fort Meade tomorrow for the next hearing in his court-martial proceedings, leading to his trial, perhaps starting in August. Manning has already been confined to prison for nearly two years.

My new book and e-book, Truth and Consequence: The U.S. vs. Bradley Manning, tells the full Manning story, right up to his latest hearing, a little more than one month ago. The book was written with my former aide at The Nation, Kevin Gosztola, one of the few reporters who has covered all of the key hearings since last December, who will be back in court tomorrow. Here is an excerpt from our book, written by Gosztola, to bring you up to date, covering the March 15 hearing. Part II tomorrow.

* * *

The hearing for Manning on March 15–16 provided a glimpse of how prolonged the process could be before he finally receives the trial. The judge even told the defense at one point that she was concerned about how long Manning had been in pre-trial confinement—more than 600 days—but the defense had to understand that they could not continue to make “voluminous filings” that she had to look over and also expect a trial date to come very soon.

A military police officer pulled out the ID scanner once more and a canine moved among the cars sniffing wheel wells as press sat ready for the go-ahead to follow a military van to the Media Operations Center (MOC). Three convoys were escorted to the MOC. There were very few media this time; perhaps twenty people in all. Major networks, beyond ABC, were again missing. Al Jazeera English had assigned a reporter. The Guardian was oddly absent (and ultimately decided to run the Associated Press’s coverage of the hearing). But Politico’s Josh Gerstein did show up, which was significant because he was part of a media coalition that was pressing the military for more media access to court records during Manning’s court martial.

Manning arrived at 8:45 am, about fifteen minutes before the hearing was scheduled to begin. An SUV motorcade pulled up. Manning got out of a vehicle. He was wearing a dark blue Army Service Uniform instead of the Army Combat Uniform, which he had worn during the Article 32 hearing. When he got out of one of the SUV, he simply looked forward as he headed into the courthouse, not paying much attention to the photographers lined up to get shots of him.

Media were told by a legal expert (the same military prosecutor who was present during the Article 32 hearing) that three defense motions would be litigated during the hearing: a motion for a “bill of particulars,” which the defense submitted to obtain specific details on the means or methods the prosecution believes Manning used to commit alleged crimes; a motion for the discovery of evidence; and a motion to obtain depositions, out-of-court testimony that could help the defense discover evidence to be used in court later. A calendar for the rest of the pre-trial proceedings and then a trial date was likely to be established.

The start time was delayed. The prosecution, defense and the judge were conferencing in the judge’s chambers. This was the secret part of the pre-trial process—the portion the prosecution and judge did not want the media or public to observe. Finally the players took their seats. Capt. Ashden Fein, Capt. Angel Overgaard and Capt. Joe Morrow, who had each been present for the prosecution during the Article 32 hearing, were ready to begin. Of the three members of the defense who had been at the Article 32 hearing, David Coombs and Capt. Paul Bouchard were present but Maj. Matthew Kemkes was not able to attend.

Judge Denise Lind, a middle-aged blond-haired woman, entered. She wore a judge’s gown. She had in her hand books and documents that would be entered into the court. One of the books was a military justice manual she would use in sparring with Coombs during the first day of the hearing. The court was gaveled to order. She noted that the hearing was already behind schedule.

The first motion brought up in court was the bill of particulars motion. The government had decided to answer many of the questions the defense had submitted. They officially confirmed that the “alleged enemy” Manning “aided” was Al Qaeda and Al Qaeda in the Arabian Peninsula (AQAP). He “indirectly” provided “intelligence” through the “WikiLeaks website.” He communicated to the enemy “indirectly through the WikiLeaks website.” All of this had seemed obvious at the Article 32 hearing after the prosecution screened an Al Qaeda propaganda video during their closing argument but had not been spelled out exactly.

The answer to the defense’s question on the identity of the “enemy” that Manning allegedly aided still carried a shock, even if it had been reported last December. The government was essentially arguing the mere posting of information on a website constituted a communication to Al Qaeda. Manning did not have to send an e-mail to some high-ranking member of Al Qaeda or get on a jihadist Internet message board and discuss US foreign policy to be considered a person who communicated to Al Qaeda. Manning had given Al Qaeda material it could use to launch attacks on the United States when WikiLeaks published key documents.

The prosecution refused to answer three of the questions. One had asked how Manning knowingly exceeded his authorized access on a SIPRNet computer; the government contended answering would provide details on the act underlying the charge and require them to provide the basis for their case. They refused to provide an answer to how they believed Manning added “unauthorized software” to his work computer because they only needed to prove he did it. And they refused to answer a question about the legal theory being relied on for charges on the stealing, conversion or purloining of information. (The words may be used interchangeably in everyday conversation, but legally they have different definitions.)

Coombs argued that the government had to tell the defense the “manner” in which Manning violated his authorized access on his work computer to avoid “trial by surprise.” The defense should know how the prosecution thinks Manning added unauthorized software because it was necessary to preparing a defense against this charge. He said the prosecution needed to share which legal theories they used when charging Manning because the government was playing “hide the ball” and over-charging Manning with stealing, purloining or converting as a catch all.

Judge Lind concluded there were no grounds for her to force the government to share information on how Manning exceeded access on his computer or how he added the software. She didn’t think that information was necessary to putting together a defense. However, she did find the government needed to share with the defense details on legal theories being relied upon. The government was to answer this question by March 23.

* * *

Following a short recess, the discovery motion was addressed. Lind had the defense go over the ex parte supplement to the motion first. This supplement was filed so the defense could obtain access to evidence without the prosecution knowing what they were trying to obtain. While this part of the hearing was very technical, a key detail involving the supplement came out that provided some humor.

Some time ago, e-mails seeking clarification on the filing were sent back and forth by the prosecution and the defense. At one point in the exchange, e-mails were blocked. They did not get through because they contained the word “WikiLeaks.” The government realized e-mails were not being received around the time of the arraignment. Issues continued until March 11, when the court urged the government to “confirm the receipt” of e-mails.

Fein addressed the problem in court and said that the IT department had been contacted. The e-mails did not get through the “spam filter.” The “spam filter” was now going to be “checked every day before 10 am” to ensure all e-mails were received.

WikiLeaks reacted on Twitter saying, “Assange’s WikiLeaks plan is working. Government is censoring itself, making secretive orgs clumsier than open alternatives.” Jesselyn Radack, who blew the whistle on violations committed by the FBI during the interrogation of John Walker Lindh (the “American Taliban”), wrote, “The government’s own WikiLeaks policies are now hampering the prosecution’s work in the case against Manning.” As Josh Gerstein of Politico noted, it was Coombs who explained exactly “why the emails about evidence issues in the Manning case never made it.” The prosecution and judge wanted to keep this amusing truth secret.

In any event, Lind found there were no “unusual circumstances” that demanded remedying and denied the ex parte filing. Coombs then stepped up to argue why a discovery of evidence motion was necessary for Manning’s defense.

Each of the arguments called the prosecution out for not “understanding” their “discovery obligations.” He said they don’t “understand Brady [rules for disclosure] because they haven’t turned over any damage assessments,” which the defense has been requesting since October 2010. These are assessments that would likely confirm what Secretary of State Clinton and Secretary of Defense Gates have said, which is that “no sources or methods have been compromised, largely embarrassing.”

“In our judicial system, we pride ourselves on open file and discovery,” declared Coombs. “We pride ourselves on not playing games with discovery.” Coombs explained how the government has held a contradictory position. It has said that it does not know what information the defense is talking about in its requests while at the same time saying the evidence requested is “not relevant or necessary.”

Additional games have also been played. The government has used the word “alleged” when describing damage assessments. Coombs said they know very well the assessments exist. But the government is “playing fast and loose with the word ‘completed.‘ ” Because damage assessments can take ten years or more to complete, they are deciding that these assessments should not be provided because they’re “incomplete.” On top of that, Coombs added, the government has said they could not find certain “forensic results or reports” by specific agencies often without any indication that they even looked for the material.

The government “obscures” their obligations by saying they have “provided 400,000 pages” of material. The “number doesn’t mean you’ve complied with discovery,” Coombs added. “We are now two years basically into the case,” Coombs added. With regards to the forensic computer images requested, if the government “were to provide that discovery information to us in a timely fashion our computer forensic experts would need at least three months to go through that information and that’s depending on the number of images provided.”

Coombs tried his best to communicate to the judge how the government was using the wrong rules for discovery of evidence. The judge, however, was unmoved. Although Coombs believed they were “literally on the wrong page of the manual for court-martial” proceedings, she snarkily argued Coombs was saying they could ask the government to have any agency provide information and there were no “no relevance or materiality standards.” If the defense thought the information would be “helpful,” it had to be provided.

“I believe you have to articulate relevance and materiality for me to compel production,” stated Lind. “What do I look for that tells me this evidence is relevant, favorable or material? Just the fact that you ask for it doesn’t mean you can have anything that you want.”

Lind had Coombs explain why each piece of evidence being requested was necessary. This was noticeably difficult for Coombs to do, as he believed by answering the judge’s questions he was letting the prosecution win here and continue to use the wrong rules on discovery of evidence. Nonetheless, the stern nature of Lind basically forced Coombs to submit.

Coombs suggested FOIA requests pertaining to investigations into the 2007 Apache helicopter attack shown in the “Collateral Murder” video would be “helpful” in the “theory” and “presentation” of the defense’s case. Back and forth followed on the legal grounds for compelling discovery of these requests. Suddenly, the prosecution interrupted to say the defense now had the FOIA requests. CDs with the requests had been dropped off the night before around 7:30 pm.

No person on the defense was aware of this fact. Lind said: Look during lunch recess to see if they were in fact given to the defense.

Greg Mitchell has written more than a dozen books, including the latest, on Manning.

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