Detailed look at a show trial’s injustice
Excerpt from “Truth and Consequences: the US vs Bradley Manning,” documents recent motion hearing
By Bradley Manning Support Network. April 12, 2012.
The following is an excerpt from the new book about PFC Bradley Manning, entitled “Truth and Consequences: the US vs Bradley Manning,” published here with permission from The Nation’s Greg Mitchell and FireDogLake’s Kevin Gosztola. The book’s first half explores Bradley’s life and the impact of WikiLeaks’ releases, and the second chronicles the military proceedings against him thus far. This excerpt documents the most recent motion hearing at Ft. Meade, and it gives a glimpse into the warped ways the government is prosecuting Bradley, from deliberately filtered emails to keeping vast amounts of evidence hidden from trial. FireDogLake is holding an online discussion of the book, which is out now, on April 28, just two days after Bradley’s next court appearance.
The motion 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 six hundred 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.
Like the Article 32 hearing, media arrived before sunrise and lined up in a media parking lot nearby the visitors’ gate to Fort Meade. The military public affairs staff member on the scene recognized many of the faces of those returning to cover proceedings. The individual checked off names and confirmed media had credentials. 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 total were present. Major networks were again missing, although ABC was present. Al Jazeera English had a reporter. The Guardian was oddly absent (and ultimately decided to run the Associated Press’ 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.
The absence of media made the presence of Firedoglake all the more important. It also made it possible for Alexa O’Brien of WikiLeaks Central, a blog that has been covering all news related to WikiLeaks since November 2010, to obtain credentials. Clark Stoeckley, an artist known for driving the WikiLeaks Truck, was also able to get credentials to produce courtroom sketches of the proceedings.
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 the 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. He was still wearing black-rimmed glasses. And, when he got out of one of the SUVs, 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 matter 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 too.
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. Members of the press had become strangely accustomed to it, even though such delays rarely happened in federal courts because this conferencing, which is typically about administrative details (like scheduling and other general housekeeping issues), usually happens in open court.
The players took their seats. Captain Ashden Fein, Captain Angel Overgaard and Captain Joe Morrow, who had each been present for the prosecution during the Article 32 hearing, were seated and ready to begin. Of the three members of the defense that had been at the Article 32 hearing, David Coombs and Captain Paul Bouchard were both present but Major Matthew Kemkes was not able to attend.
Everyone in the courtroom quickly stood up. Judge Lind entered, a middle-aged blond-haired woman. She wore a judge’s gown. She had books and documents that would be entered into the court record in her hand. One of the books was a military justice manual she would use to spar with Coombs during the first day of the hearing.
The court was gaveled to order. She noted that the hearing was behind schedule.
Lind had a commanding voice. Her demeanor was very different from Almanza, who had presided over the Article 32 hearing. She didn’t mumble. One could easily understand what she was saying. She appeared to know military justice well; at least she was able to look up whatever section of the code she needed to when it was appropriate, which Almanza was not capable of doing.
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.
Emails seeking clarification on the filing were sent. The defense responded. The government again wanted to know that the filing would be reviewed by court secretary and would not contain classified information.
At some point in the exchange, emails were blocked. They did not get through because they contained the word “WikiLeaks.” The government realized emails 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 emails.
Fein addressed the problem in court and said that the IT department had been contacted. The emails did not get through the “spam filter.” The “spam filter” was now going to be “checked every day before 10 am” to ensure all emails 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 (“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.
Finally, the damage assessments requested were addressed. They “would be helpful,” Coombs said, because they would likely confirm what the defense believes, which is that as a result of the release of information “there hasn’t been any compromise of sources or methods and minimal damage.” Or, they might reveal the opposite and show the release was “terrible and x, y and z happened.”
Fein defended the refusal to provide the damage assessments saying the “one big elephant is that everything requested and not produced is classified.” But, then why wasn’t the government invoking a privilege (referred to as “505”) that could help defend against requests for material with classified information? If they invoked the privilege, the defense could challenge the denial of requests.
The prosecution informed the court that US Army CID, the FBI and a sub-portion of the State Department called the Diplomatic Security Services (DSS) were all cooperating and willing to turn over files to the defense.
Showing once again how the cancer of secrecy in government malignantly pervades the case, the judge asked why none of this material was covered under Brady.
“I don’t have the authority to answer that question,” Fein said.
“Why’s that?” Lind asked.
“Because it’s classified information,” Fein said.
As Coombs had suggested, the prosecution said “damage assessments are living documents,” during the explanation for why they had been withheld so far. The prosecution then outlined the status of assessments requested.
The State Department had not completed a damage assessment. Coombs said they were just asking for “any damage assessment done up to this point” so the defense “can see what the State Department believes.” Fein said the State Department was monitoring the impact and had “not finalized” a report on the damage.
The WikiLeaks Task Force (WTF) under the CIA had completed an assessment. It was “classified outside of military authority.”
The Justice Department had not completed a damage assessment. It doesn’t exist.
Coombs disputed this claim. The Justice Department was “part of a larger investigation that has been ongoing since the 2009/2010 time frame.” It may be true there is no “damage assessment,” but it had worked in combination with the State Department.
The FBI had produced a damage assessment. The assessment would be provided when a “judicial protective order” for classified information was finalized.
A highlight of the afternoon then occurred as Coombs reacted to the government’s posturing on how it had handled discovery requests.
“The government has so hopelessly messed up discovery that it has prejudiced my client,” Coombs declared. He pulled out documents and held them as he said the “defense is filing a motion to dismiss all charges with prejudice.” He had waited to hear the government justify its actions. Finding they were either grossly incompetent or negligent, he realized he had no choice but to press for a dismissal of charges.
Lind had a wry grin on her face. It was a mix of scorn and amazement at the motion being submitted. Before Coombs got too ahead of himself, she said, “The court would actually like a chance to read the motion.” The prosecution would also want to submit a response. So, this would not be litigated today or the second day of the hearing. It would be saved for the next leg of the pre-trial proceedings.
Court was in recess for an hour and a half lunch.