Notes from Bradley Manning’s Article 39 hearing, April 26
Defense attorney David Coombs addressed supporters during a court recess. “Thank you for continuing to bring the issue into the public eye. It means a lot to me, it means a lot to my client.”
By Nathan Fuller, Bradley Manning Support Network. April 26, 2012.
As scheduled, today’s proceedings opened at 10 AM. Judge Denise Lind ruled immediately on the defense’s motion to dismiss and/or consolidate charges based on an unreasonable multiplication of charges. She read through the various charges levied against PFC Bradley Manning, including several counts of seemingly redundant charges, such as two counts of unauthorized procurement of documents, and multiple counts of an unauthorized transmission.
As the judge read, the law says that what is substantially one crime cannot be charged as two crimes. However, in her analysis, Lind found that Bradley’s alleged crimes were “distinctly separate criminal acts.” The defense’s argument that the theft should be considered the first step of the transmission “has been discounted in U.S. v. Chapman (2003).” Further, Lind believes the number of charges doesn’t misrepresent the nature of the criminal acts or “unreasonably increase [Bradley’s] punitive exposure.” In fact, the judge says the prosecution could have broken the Article 104 charge into even more separate charges if it so chose. The crux of the judge’s ruling is that the size of the leak renders no number of charges “unreasonable.” She noted that the government concedes two alleged crimes, charges 5 and 7, occurred at the same time and may be merged at a later time, and that it’s still factually in dispute as to whether charges 6 & 7 and 10 & 11 occurred on separate days. Today’s defense motion was denied, but Coombs may re-raise this issue after that factual dispute is resolved.
The judge then asked both parties for input on U.S. v. Wilcox. The defense believed that case wouldn’t apply to the Article 134 charge in this case, and so it wouldn’t be advancing any theory to that effect. The prosecution stated that its interpretation of Article 134 deemed it punitive, saying it calls for “sanctions.” The defense stood again to note that it believes this aspect of Article 134 deals with disclosures “that don’t arise to espionage.” This conversation is important for the judge’s later ruling on the defense’s motion to dismiss the Article 104 charge based on preemption.
We moved on the government’s motion to reconsider compelling the discovery of the State Department’s damage assessment. Instead of standing to argue the case, the prosecution’s Ashden Fein said the government “relies on its written motion.” The defense didn’t stand for long, speaking briefly to “give the court background” instead of arguing the point.
Next the government was forced to provide a definition of the terms ‘damage assessment’ and ‘investigation.’ The prosecution submitted a brief explaining its position. The ultimate conclusion, Fein said, is that the two were distinctly different. Coombs said the defense agrees the two are different, which is why the defense had requested both in its initial discovery request. The judge said that for future reference, the court would officially consider both terms separately.
The next motion was the government’s call to preclude any discussion of damage assessments from the merit phase of the court martial. Fein said he wanted to prevent discussion of harm in arguments related to merit (guilt), as it is only relevant to sentencing (severity of punishment). Fein said harm is irrelevant to all the charges at hand and the defense’s potential arguments, because the government doesn’t have to prove harm was caused to prove the crimes occurred. “Any harm would have come after crimes were committed,” he said, and “whether the accused knew or thought he knew” that harm would come is irrelevant to his act.
Fein did say it would be relevant as mitigating evidence for sentencing, but says as PFC Manning wasn’t an Official Classification Authority (OCA), he couldn’t determine whether the release of the documents would cause harm, and couldn’t have accurately predicted the harm to come. Fein said the harm argument was “prospective,” since harm could still come tomorrow.
The defense stood to request the judge deny the motion, arguing the prosecution’s claims are premature since we’ve yet to even see the damage assessments in court, and that the government has fought to prevent them every step of the way. Coombs also said the motion was over broad in attempting to preclude not only assessments but any discussion of harm at all. Damage, he said, was relevant for the defense’s argument that Bradley had knowledge that the release of these documents wouldn’t cause harm. He was selective, Coombs said, in releasing these documents and not others. He noted internal inconsistencies in the government’s logic: on one hand it says Bradley had the necessary training to know this information could be seen by the enemy, and on the other it says he’s merely a junior analyst who couldn’t know what harm might be caused.
The damage assessments confirm, according to Coombs, that Bradley didn’t act “wantonly” as he selected documents he believed would not bring harm to sources or the United States. He referred to President Obama’s classification order as evidence of the government’s serious over-classification problem. Coombs noted that far more classified documents could have been released, but were not.
Further, Coombs explained that he should be able to use damage assessments to undermine the arguments of government witnesses. Basing his knowledge of these assessments on Secretary of State Robert Gates’ statements that no great harm had been caused by WikiLeaks’ releases, Coombs said he could show that no sources were compromised if a government witness claimed this was the case. If an expert witness takes the stand to describe how significant damage occurred, shouldn’t he have the ability to use the actual impact to challenge that expert, he asked. He’d need these damage assessments to do so.
Coombs previewed the government claim that introducing these damage assessments would contribute to “confusion” in the court proceedings, that doing so would challenge the integrity of the case. He said clearly the judge is capable of controlling the courtroom and clarifying confusion, and that if the judge was unsure about her ruling on the case, she could at least defer a ruling until after her in-camera review of the damage assessments.
The government immediately picked up on Coombs’ most recent point, saying, “There’s incredible confusion right now,” since all charges against Bradley regard potential damage. Fein repeated his claims that assessments are irrelevant to debates of Bradley’s guilt. You can’t look at a “snapshot,” Fein said, and say that because no damage had come in that window, that these crimes caused no damage. “If someone gives the enemy nuclear launch codes today, and nothing happens tomorrow”, that doesn’t diminish the crime urged Fein. Regarding Coombs’ request for a deferment, Fein played into previous calls against the prosecution for a speedy trial, saying eliminating damage assessments now would “save time in the judicial proceedings.”
The defense said this “snapshot” claim was a misrepresentation, since two full years have gone by and no damage, or very little damage, had been caused. He says the government’s early move to preclude the assessments proves that they’ll emerge as favorable to the defense in revealing no harm.
Getting the last word since it called the motion, the prosecution stood to merely reiterate its previous claims. The judge didn’t rule on the motion but said she’ll take in “under advisement,” and called a short recess.
During this recess, while waiting to return to court in a small Ft. Meade chamber, defense attorney David Coombs came out to speak to the spectators waiting to reenter the courtroom. He thanked supporters on behalf of himself and Bradley, for “continuing to bring the issue into the public eye. It means a lot to me, it means a lot to my client.” He specifically thanked Courage to Resist for its consistent support. The spectators collectively thanked Coombs for his work, and one supporter handed him a “Thank You” card that had been signed by most of the attendees. [The defense could show the card to Bradley, but he would not be able to possess it as it did not go through the authorized mail channel.]
Shortly thereafter, we returned to court for the judge to rule on the defense motion to dismiss the Article 134 charge based on the Article 104 preemption. Judge Lind said that Article 134 adequately addresses the crime, and she disagrees with the defense that Article 104 covers it entirely. She denied the motion, and called for a recess.
The judge was supposed to be able to rule on the dismissal of the “Aiding the Enemy” charge then, but she said that Ft. Meade’s “working automators” (Internet) were down, and she needed the Internet before being able to issue a ruling [more than likely in order to including proper case law citations to support her conclusions]. A four-hour recess was called, and we returned at 4 PM.
Finally, after an apparent correction of Internet issues, we came back to court. Lind introduced the defense motion to dismiss the Aiding the Enemy charge, and said “actual knowledge” is required but that it may be proved with circumstantial evidence. One cannot “inadvertently, accidentally, or negligibly” commit this offense since it deals with knowledge of the enemy’s ability to receive the contact. In a shift from the prosecution’s claim, she said the government must be prepared to prove that Bradley knew he was giving intelligence to the enemy. She defined “indirect” as knowing he was communicating with the enemy, through a third party. She said the charge, though, was not overly broad given this raised level of the government’s burden of proof. Thus, the motion was denied.
The government says that they are not calling into question releases of information made to just any website, as Coombs had cited examples such as The New York Time and Facebook in making his point as to the First Amendment implications of this charge. The government says that they are only charging this one specific website release–WikiLeaks. Of course the government could declare this same theory regarding any particular website after-the-fact. However, the judge cited this in her ruling.
Court was in recess. As happened yesterday, as soon as the court adjourned several spectators spoke aloud to thank Bradley for his courage and that they hoped he stays strong throughout the process. Also like yesterday, but spectators wore black shirts that simply read “truth”.
We’ll be back to Ft. Meade for the next Article 39 hearing June 6-8. Please join us.