Notes on Bradley Manning’s motion hearing, June 25
By Zack Pesavento. June 28, 2012.
PART ONE
The Public is Restricted to Analog
Bradley Manning leaves the court June 25
At one o’ clock, members of the press and supporters were brought into the court room. Journalists had been told earlier that day that the usual media center facility would not be available for their use. This separate media facility has been made available at every other pre-trial hearing for Bradley Manning. It has included an audio-visual feed that has a notorious reputation among reporters for inexplicably going dark during open proceedings. The media center space was pre-occupied with a retirement party that had been scheduled for the same time as Brad’s hearing. Every member of the press and public would be restricted to pen and paper. The administration has steadfastly refused to respond to multiple petitions from journalists for access to hearing transcripts.
These notes are an attempt to provide the public and the press with insight into these proceedings, in spite of the government’s burdensome restrictions. Corrections may be made to this information on an ongoing basis. These notes should not be construed to cover every aspect of every item that was discussed in court.
The Session Gets Underway
At 1:05 PM, the Article 49 (a) session was called to order. Brad stood promptly at attention as the room came to its feet. After we were seated, Major Fein stated for the record that Captain Overguard would be substituting for Captain Blake on the team of military prosecutors.
Judge Denise Lind began by explaining that this afternoon-long session “is one of the interim hearings we’ve been inserting into the trial calendar.” She added that some rulings had been reached since the last hearing. A request by the government made June 8 regarding a 30-day delay regarding what I believe the judge said was “DOD evidence” had been allowed without objection by the defense. Another government request for an extension relating to a search for Department of State (DOS) evidence was also granted without any objection.
She noted that three DOS witnesses had testified at the previous round of hearings from June 6 through June 8. These witnesses referenced specific records. These included:
1) Written assessments by the Chiefs of Mission in August 2011
2) WikiLeaks Working Group situation reports
3) Written agenda from the DOS “Mitigation” Team
4) A DOS “Persons at Risk” Working Group report
5) A DOS “Persons at Risk” Working Group matrix
6) Guidance issued by DOS to embassies
7) Information from the Office of the National Counter Intelligence Executive (ONCIX) regarding a DOS impact assessment
8) DOS reports to Congress in December 2010
On June 7, the defense had submitted a request to the court relating to these records.
The judge then proceeded to her order. The government will search through all of the materials outlined above. By July 8, the government will notify the court whether the records exist, and if necessary, file their responses.
Regarding Defense Addendum #2 to Request for Witnesses
Judge Lind states for the record that the defense submitted this addendum to the court on June 18.
Lead defense counsel David Coombs then addressed the court. He stated that the defense had submitted two requests for witnesses. He began by talking about a recent one that was related to a request for witnesses from ONCIX, FBI, and DHS. Based on the court’s denial of the request, the defense submitted a request to reconsider. Coombs had stated on his blog that the defense has not received authority to publish this motion.
This request to reconsider was necessary because the court needed to clarify when and how the government had become aware of various impact statements. The parties needed to be able to assess how statements made in court at various times added up. Coombs said that statements made by the government on May 18, 24, and 31 do not appear to comport with information they are now receiving. It would be important to have access to these witnesses “to verify representations that have been made my the government” said Coombs.
Major Fein said that the United States had objected to this request for witnesses for two reasons. The first reason was that these witnesses were not necessary to fulfill the government’s due diligence requirements. Secondly, said Fein, the government objected to the “timeliness of the request.”
Housekeeping Issues
Judge Lind identified a number of orders for the public. The court had denied the request for witnesses with respect to the due diligence motion on June 21. The defense request to reconsider the court’s response was entered as Appellate Exhibit 153. The government’s response was marked as Appellate Exhibit 154. The court’s ruling is Exhibit 155. Neither party had anything further to discussion on this issue.
The judge moved on to briefly discuss the prosecution’s motion for “liminy.” The government has requested a delay of filing until the August hearings. The parties will address the instructions at the July hearings. The court accepted the government’s request, seeing no objection by the defense. The liminy order is Appellate Exhibit 149.
The judge briefly mentioned a need “to resolve what witnesses to consider” with regards to upcoming hearings.
In the previous June hearings, Judge Lind recalled, the court had asked for targeted briefings from both parties. According to my recollection, these briefings pertained to the issue of debates over interpretations of case law. The prosecution (Appellate Exhibit 163) and defense (Appellate Exhibit 164) both submitted their briefings to the court on June 21. Without objection, the judge stated that this issue will be dealt with at the July 12 session.
The judge noted that there would be two rulings from the court today. The first one, marked Appellate Exhibit 147, was the ruling on the defense motion to compel discovery. Another one, Appellate Exhibit 146, dealt with a motion to compel discovery of the WikiLeaks Task Force report.
On June 2, the defense filed a motion for modified relief. On June 18 the defense filed another motion. On May 31 the government had filed a motion.
My notes for the rest of this section are somewhat spotty. The judge essentially proceeded to list out a set of documents and files for which she would allow a 30 day search by the prosecution. By July 9, the government will need to reply whether these various documents exist. The judge referred to “full investigative files by CID [US Army Criminal Investigative Command], DIA [Defense Intelligence Agency], DISA [Defense Information Systems Agency], CENTCOM and SOUTHCOM related to PFC Bradley Manning, WikiLeaks” and another item pertaining to the 701 (a) 2 issue. There followed another item I could not transcribe. She then referred to another defense request that dealt with FBI, Diplomatic Security Service (DSS), DOS, Department of Justice (DOJ), Office of the Director of National Intelligence (ODNI), and ONCIX files regarding PFC Bradley Manning and WikiLeaks.
The court notes that the defense alleges that the government produced redacted FBI files, and requests more information.
The judge then said, with regards to an impact statement, and a document from the DSS, the defense had filed a motion to compel. However, the government claims the full file has been produced.
The court had also compelled the production of a chief of mission review.
She then referenced all of the DOS WikiLeaks Working Group documents from its time of full operation between November 28 and December 17, 2010.
The judge went on to reference “mitigation team documents.” She mentioned “efforts focused on counter-terror” issues.
She again referenced the DOS guidance to embassies. She also noted some collaboration of ONCIX with DOS to update an August 2011 damage assessment.
Regarding the congressional testimony by Ambassador Patrick Kennedy on March 11, 2011, DOS reports to Congress, and two briefings for members of the House and Senate, these items are part of the 30 day search ending July 9.
My notes may be unclear on this point, but it is in relation to ONCIX paperwork. On either May 31, or June 13, the government acknowledged the existence of relevant materials from ONCIX. There are 12 pages to this set of material. I think that the government’s acknowledgement occurred May 31, and ONCIX agreed to provide the materials on June 13.
The judge then moved to the set of documents referenced above from CID, DIA, DISA, CENTCOM, and SOUTHCOM pertaining to Bradley Manning and WikiLeaks. She noted that the defense alleges these are appropriate “because they would show any leaks…” and my notes cut off here. I remember wondering whether she was talking about “leaks” with regards to Bradley, or if she was talking about potential leaks from these agencies.
Judge Lind then mentioned a man by the name of Russell Travers. The judge said that the defense alleges that he was asked to lead a review of WikiLeaks. A Reuters blog post indicates that a Russell Travers moved from the National Counter Terrorism Center (NCTC) to lead a White House interagency panel around December 2010.
She referenced the President’s Intelligence Advisory Board review of the WikiLeaks impact, chaired by Senator Chuck Hagel.
I noted that she mentioned Congressman Darrell Issa, who is the chairman of the House Oversight and Government Reform Committee. I assume that the judge was referring to hearings on WikiLeaks that were conducted by Congressman Issa.
Findings of Law
Judge Lind discussed a few other items before moving on to her findings on the law with regards to what she had discussed. She began by reiterating that due process requires a search for “Brady material” — essentially, information that would benefit the defense’s case. Under the military justice system, the process of discovery of evidence is governed by the Uniform Code of Military Justice (UCMJ) Article 46, and Article 701 provides additional guidance.
She noted that the government has a due diligence duty under Brady and Article 701 with regards to evidence in three key areas. This requirement is generally limited to information contained within a law enforcement investigation. However, due diligence requirements also extend to agencies closely aligned with the prosecuting agency. Furthermore, specified types of information (typically including specific requests by the defense) may also be comprised within this realm. Outer parameters for the scope of potential evidence, said the judge, are typically dealt with on a case-by-case basis. She noted that the burden is on the defense with regards to the production of evidence that is outside the control of the government. This type of information can also be considered “relevant and necessary” under Article 701.
Judge Lind concluded that prosecution counsel must turn over material that is “obviously relevant” to the defense when they come across it. The defense, meanwhile, is responsible for making requests to search through things that are outside the scope of the Brady requirements.
Orders to the Parties
The judge then stated that the government will search for any investigations, damage assessments, or mitigation assessments related to the WikiLeaks disclosures. The government may request limited disclosure by July 25. If any agency requests privilege to withhold information, the government may move for an in camera review by the court. Any files for which there are no claims of privilege must be submitted to the defense or to the court for an in camera review by August 3.
With regards to the DOJ damage assessments, the court finds that the files are not discoverable. Judge Lind argued that the defense has not demonstrated their relevance to the case.
She then said that the DSS (she may have meant to say DISA?) and CID documents are relevant. She said that there was FBI information related to the (presumably, WikiLeaks) grand jury testimony that is relevant. The government will review the FBI assessment, along with an additional file, and an impact statement. By July 25, the government must notify the court regarding the status of any agency claiming privileged information to redact. By August 3, the government will disclose any materials without claims of privilege to the defense, or to the court for an in camera review.
With regards to ONCIX materials, the government has stated that it is not an aligned agency. However, the government has not asked to reconsider the court’s decision.
With regards to CIA materials, the court’s ruling is being issued as a separate Appellate Exhibit.
With regards to DOS materials, the court has agreed to a 30 day delay request from the prosecution, moving the deadline until July 9.
Regarding the “HQDA memo” that was discussed at the last hearing, the government alleges that there is no particular file referenced by the communication. However, the judge noted, this dispute would be addressed later in today’s hearing.
The judge turned to the interagency review that was conducted by the Presidential Advisory Board. She stated that these are non-aligned agencies that do not have any interaction with the prosecution. The court finds these files are too attenuated. However, she went on to add, the government will be required to search these records for Brady materials.
According to my notes, the court will not compel a similar search of House or Senate testimonies related to WikiLeaks. It was unclear to me, based on earlier notes suggesting that at least some of these materials will be searched, what the exact order was to the prosecution.
Disputing the HQDA Memo
A memo from the Headquarters of the Department of the Army (HQDA), dated April 17, had been inadvertently sent to one of Bradley Manning’s lawyers. The attorney happened to have been one of the recipients of the HQDA’s instructions to search for WikiLeaks related materials. In previous hearings and filings, the defense team has argued that this memo indicates a significant lack of due diligence on the part of the prosecution in searching their own records for evidence.
Major Fein rose to speak for the government. He began by stressing that “this was a staffing letter” that tasked heads of various Army offices to collect evidence and provide materials to the prosecution. These materials, he claims, were then accumulated and given to the prosecution. Major Fein stated that he has confirmed that HQDA does not have its own “central file” but has merely compiled what was given to them.
Judge Lind asked Major Fein what materials were accumulated. I was able to transcribe some of these materials. They include PowerPoint briefings, public affairs guidance, “SIP threats,” and reports on mitigation efforts in each department. Fein also alleged that the defense already had a copy of responses regarding the “15-6′s” (pertaining to a CID investigation).
Judge Lind asked if these materials were collected in response to the April 17 HQDA memo, or the prosecution’s initial request from over a year earlier?
Major Fein went on to say that “the tasker went out because there was no central file.” Once that went out, the materials were bound and given to the prosecution. He noted that the Office of the Judge Advocate General (OTJAG) was the “conduit” from the Army to the prosecution.
Coombs rose to note that we were referencing an Attachment A to Appellate Exhibit 96. I am not sure what document this refers to.
Major Fein continued that “it was confirmed to me yesterday that there was an original letter sent to DOD.” He said this was Lt. Gen. Troy’s memo. Judge Lind asked Major Fein whether the defense had a copy of this letter. Fein responded that the defense hasn’t asked for it. He added that “we also have received documents from the Department of the Army that are separate from DOD” materials.
Coombs then rose for the defense.
“The only reason we know about this memo was that we got it inadvertently,” said Coombs. “It’s the only way we know that nothing was done — as the court knows — nothing was done for nine months” with regards to evidence discovery requirements in this area. He added that, since there is a file now, the defense would like to know its size.
Judge Lind stated that the motion to compel already applies to the April 27 HQDA memo and the DOD letter.
“So the government will be searching those files accordingly, right?” asked the judge.
“Yes, your honor,” said Major Fein, adding that there was nothing else to discuss on the memo.
Requesting Clarification on Discovery Requirements
David Coombs rose to address Appellate Exhibit 171. This is a request by the defense for clarification of statements made by the government with regards to what materials are considered in the possession or control of military authorities. He said that the defense had requested clarification because of conflicting claims made by the government since the initial exchange between the court and government. The defense cited an exchange where Major Fein added a requirement that he only needed to produce materials related to specific requests by the defense. The court then clarified to the government that they have to turn over any materials that are obviously beneficial to the defense, regardless of how they came across them. Coombs said that the government later went on to re-state their “specific request standard.”
The defense, said Coombs, is requesting clarification on five points:
1) The court needs to clarify that its order applies both prospectively and retroactively. “If they see something that’s material to the preparation of the defense,” said Coombs, “they have to turn it over.”
2) If the government has not reviewed materials with the correct standard — namely, material that is “relevant and helpful to the defense” — then the government cannot claim that they need to have specific requests for these materials.
3) The government spoke about some sort of log or database of items. The government needs to get back to the court about whether they are withholding something based on their incorrect interpretation of their duties.
4) If the government has relevant files, then regardless of the context of how they came across them, they have an obligation to hand them over.
5) The court needs to clarify what is “material to the preparation of the defense,” said Coombs. This clarification is needed in light of the fact that the material has to be not only relevant, but also helpful, to the defense.
Judge Lind asked Major Fein whether the government had a position on the issue.
“Yes,” said Major Fein. “There seems to be some confusion on what is discoverable,” he began, adding that “the government is ready to act on the court’s order.”
He went on to explain the government believes that they are required to review material both prospectively and retroactively. He added that they keep material separated between what is discoverable and what is not, down to the level of individual documents. He then claimed that the government has provided all materials that are obviously needed for the defense.
“What’s your understanding of your obligations now?” asked Judge Lind.
From this point forward, responded Fein, the government knows that it is required to turn over any materials that would be obviously beneficial to the defense.
The judge then instructed Fein to read the next paragraph from her ruling aloud. This dealt with the need to search for all files pertaining to Bradley Manning and WikiLeaks. Fein began to explain that “this gets back to the confusion” over their discovery obligations. The judge remarked about how we were returning to the same circular arguments as before.
“Absolutely there was a circular argument going on between me and the court,” conceded Fein. “We will execute the order as written.”
Fein then expanded to cite the Meadows precedent, in which searches are only triggered by defense requests.
“Are you going to give us the case law?” asked Judge Lind.
“Yes,” said Major Fein. He added that the government would go back and review previous materials as well. The government’s position, he explained, is that this order only applies to requirements under 701 (a) 6, and not 701 (a) 2. With regards to the defense’s fifth question above, absent specific requests by the defense outlining what is considered to be “material” the government will retroactively go back and look at the evidence as ordered.
Coombs rose to respond. Based on Major Fein’s statements, said Coombs, he does not understand his duties under 701 (a) 2. Fein is now placing too much emphasis on the term “obviously” in his argument. The government is still incorrectly trying to stress the specificity requirement under 701 (a) 2, but under the 701 (a) 6 requirements, there’s “no ‘obvious’ standard,” said Coombs. The standard is simply: “Is it relevant and helpful to the defense?”
Coombs complained that the government is taking definitions of words and stretching their meanings to avoid their obligations. On the other hand, the government is also engaging in a practice whereby, if they know there’s relevant information in a certain location, they choose not to look there in order to avoid turning over the material.
“That’s not how this works” said Coombs. “At this late date,” Coombs went on, Major Fein was trying to litigate this notice issue.
“Yes, the government is picking at the words,” admitted Major Fein. “We’re relying on what we see in the case law with regards to the threshold standards.”
Judge Lind then declared that “the court will take this matter under advisement” before attempting to proceed to an item concerning a 505 (g) 2 issue. Major Fein stated that their relevant disclosure was completed on June 22, along with notice of a national security interest.
The judge asked about a protective order that the government had intended to file regarding the defense’s postings on their website. Major Fein noted that the request was contained within Appellate Exhibit 163.
Coombs then rose to address the 701 (a) 2 “threshold requirement” discussed a few minutes earlier by Major Fein.
“Aren’t they asking whether they have to go back and look?” asked Judge Lind.
The 701 (a) 2 standard, reiterated Coombs, applies as one is going through their files. “As long as his request isn’t adding additional specificity requirements, the defense doesn’t object.” Coombs added that the defense needs clarity on this point from the government.
“Well, why do I have to wait?” asked Judge Lind, as she turned to Major Fein, asking for an explanation.
Fein responded by saying that the government does not have a “hold file” of items being kept from the defense.
Coombs then said that the government was still not being clear.
“Your Honor, maybe we’re talking past this,” said Major Fein. “The issue is what’s in our files. The issue is whether we should go search for additional material.” If the rule for open file discovery only pertained to the government’s own files, then there is no objection. But the defense, said Fein, is arguing that every document and electronic file in the United States government is subject to this discovery obligation.
“We have turned over everything in our own files,” stated Major Fein. He said that the defense has everything except three files that are already scheduled to be dealt with in court.
Coombs sounded somewhat exasperated. He once again reiterated that the 701 (a) 2 standard does not require the prosecution to go look for items. The standard, he said, pertains simply to any information that the government comes across that would be material to the preparation of the defense.
“You have to hand it over,” said Coombs. “They’re saying ‘we don’t need to hand it over because it’s not in our possession, custody, and control.’”
“Let me see your case law,” said Judge Lind to Major Fein, “and I’ll take it under advisement.”
“Yes, Your Honor,” Major Fein responded.
New information has come to light
“We’ve learned additional information since the last hearing,” said Coombs as the court moved on to the next item. At the last hearing, he recalled, the defense had requested specificity with regards to the due diligence requirements. The government’s response, he complained, contained no facts in regards to the defense’s issues.
“They said ‘we won’t give you answers unless the court orders us to produce something’,” said Coombs, referring to the government. “That shows they’re hiding something.”
With respect to the HQDA memo, said Coombs, the government claims they now have three or four disks that they will now look through.
“It’s problematic that they didn’t explain how and when they got the disks, and why they never followed up on their request from over a year ago,” said Coombs. “This fact alone should be enough for the court to ask them what they’ve been doing.”
“The Department of State shockingly said that they haven’t looked at anything other than their damage assessment,” Coombs went on. “It took us getting witnesses here to see that there was more Brady material. They’re basically saying that they haven’t done a Brady search at State. The defense counts 22 witnesses — one-fifth of the government’s request — is from DOS. But the government hasn’t looked at anything else? That defies logic.”
With regards to the FBI impact statement, demanded Coombs, “When did you find out about it?” Other than the FBI, no other government agency has used the specific term “impact statement” with regards to WikiLeaks. “It’s clear,” said Coombs, referring to a government filing, “that the government knew about the FBI impact statement by March 22, then threw it in as an afterthought in a later response.”
Moving on to the DHS assessment, Coombs noted that Major Fein had simply come up to him after the conclusion of the June 8 hearing and said that DHS had an assessment.
“When did you find out about it?” Coombs says he then asked Major Fein.
Major Fein, said Coombs, had merely stated that the prosecution had just received authorization to release it. The document was 160 pages long. Coombs wondered aloud why this wasn’t done in 2010. He said that the DHS assessment was addressed to ONCIX. He noted that the main headline on the document says it’s intended for a “damage assessment” so there should be no confusion.
“They just said ‘we got authorization on June 8′ — but they had it for months,” protested Coombs. “They knew DHS was doing as assessment for ONCIX and didn’t tell the court. There are problems with the government’s beliefs regarding their obligations. An accounting would clarify what they believe.”
Coombs went on to explain that the government keeps parroting the theme of “in the process of reviewing” as a way to avoid their obligations.
“The court needs to pull at the string of this argument, because if you do, it falls apart,” said Coombs. “Their representations do not ring true.”
ONCIX poster
On February 16, Coombs noted, Major Fein had said he had asked ONCIX, and ONCIX had said that there was no damage assessment. However, added Coombs, Major Fein told the court that ONCIX had not completed a damage assessment. On the defense’s request, the court had told the government to go find out whether there was an assessment. Major Fein then called ONCIX again. This time, Fein had said that ONCIX told him that it had not produced an interim or final report. On March 21, Major Fein’s filing to the court then repeated this claim. Coombs went on, saying that Major Fein then went on to recount a conversation he had had with ONCIX, where he had asked them the difference between terms like “draft” and “interim” reports.
“There’s no other reason to have this conversation than to find terms to avoid discovery obligations,” said Coombs. Coombs explained further that the prosecution’s claims require an unlikely scenario where they are essentially only taking the court’s orders to ONCIX and not other agencies, before suddenly having “a Eureka moment” and finding out about the assessment.
Coombs recounted that on May 18 and again a week later, Major Fein twice said of ONCIX that, “we need to look at the most recent version” of their assessment.
“He should have said, ‘we just found out about the existence of the ODNI report’,” said Coombs. “If the government was totally unaware of the assessment, then the letter would read differently.”
Coombs then said that the court is being left to believe that, from the time of the government’s initial request in 2010, until March 2012, ONCIX didn’t do anything with regards to a WikiLeaks damage assessment. According to the government’s implied version of events, a draft assessment was created only between March 21 and May 18 of this year. Finally, we have to believe that between May 18 and July 8, the agency will produce a final assessment.
“You don’t have 18 months of inactivity, then go to draft and final this fast,” said Coombs. “It defies logic.”
Moving on, Coombs recounted an 802 telephonic session from February, where “the government said they’d looked high and low and didn’t find anything.” Only then did the government reach out to 63 agencies, saying they needed to see what they had with regards to Bradley Manning. The court, said Coombs, needs to know what agencies the government was contacting prior to that 802 session, and which ones they have spoken to since then.
“Most troubling of all,” Coombs continued, was Major Fein’s admission that they always knew ONCIX was doing a damage assessment. “They said ‘we knew all along.’”
The first time the defense became aware about the ONCIX assessment was when they received 12 pages of Brady material. Coombs offered that it’s quite clear that ONCIX has been working on these matters since 2010.
“We have a pattern of issues that should alarm this court,” said Coombs. “This type of discovery battle is almost unheard of in military court… Normally, these games are not played and it’s a fair fight. You don’t play ‘hide the ball’ and that’s what they’ve been doing. And we ask the court to put a stop to that.”
Coombs then returned to his seat.
“The defense is trying to take facts and assume facts to create additional obligations,” retorted Major Fein. “The prosecution never claimed that we have completed our search, but that we are completing our search, which is what we’ve been doing since then and will continue.” Major Fein went on to state that there is no evidence that the defense is not receiving required information.
Major Fein then disputed the defense’s citation of Chapman due diligence requirements, claiming they did not apply to this case. In the Chapman case, said Fein, the government did not provide necessary information three times. This was so clearly problematic that the court had no choice but to dismiss the charges. The prosecution, he said, requests that the court deny the defense request to use this standard.
“The Chapman case does apply, because the court didn’t want to rely on the government’s representations,” Coombs replied. “We’re asking the court ensure for itself, and anyone watching this case, that the prosecution is complying with its discovery obligations. They say it’ll be done soon — but what have they been doing for the last two years?”
“If the government doesn’t have anything to hide,” said Coombs, “then what’s the problem?” Coombs continued that the defense is simply asking the government to put forth what they did, and when they did it. That way, the court could ask logical questions. If the court was satisfied with the explanations, said Coombs, “then that’s good enough for the defense.”
“If you have 22 DOS witnesses,” Coombs reiterated, “Why didn’t you tell the court that a closely aligned agency wasn’t providing relevant information?” There were significant questions related to the HQDA memo, he reminded the court.
“We have too many problems to take them at their word,” said Coombs. “It doesn’t appear that they know what they’re doing.”
Judge Lind then declared the court in recess until 4:00 PM.
Bradley Manning supporters march during the San Francisco Pride parade on June 24
PART TWO
Ruling on Damage Assessments
At 4:20 PM court was back in session. Judge Lind began by saying that the court would like to read its June 22 ruling regarding the damage assessments (Appellate Exhibit 146). This ruling, which supplements a June 6 court ruling on the matter, references a June 1 defense motion with regard to questions on the classification of any damage assessments provided to the court by the government. The court said that the government had found no unclassified information favorable to the accused. The court has conducted an in camera review of the classified material, and does not find the substitute provided by the prosecution to be sufficient. During a June 7 recorded proceeding, the government advised the court of additional material.
“Nothing from the WikiLeaks Task Force will be used by the government in court.,” said Judge Lind, repeating the government’s assertions to her. It was unclear whether a different substitute will be presented.
Ruling on Defense Motion for Due Diligence
On May 10, the defense had moved to suspend the proceedings until the government could state with specificity the steps it had taken to comply with their discovery requirements. On May 20 and June 7 the government filed motions opposing the defense.
The judge then offered her findings on the law. She noted that there have been two motions to compel discovery — one under the rubric of 701 a (2) and another under 701 a (6).
“This is a complex case,” said Judge Lind, adding the court was not entirely clear what files may exist pertaining to PFC Manning, and which ones may have been accessed by the prosecution. She would not present, today, any findings on whether the prosecution’s efforts constituted a lack of diligence. This issue would be dealt with at an upcoming hearing on the “right to speedy trial” motion by the defense.
By July 25, the government is ordered to provide clear information to answer a series of questions marked A through I. I was not able to transcribe all of them, but some of them were: What agencies of the government have been contacted to review for Brady material? When were they contacted? What has the prosecution reviewed? By July 25, the government must also provide a timeline of their communications with ONCIX. I’m not sure of the term, but this material will be “ex parte.” The court will continue with the July and August hearings as scheduled. Any additional revisions to the trial schedule will be made during the July hearings. The court will also grant a reasonable time extension, should one be requested later by the defense, to handle any additional information.
“The motion is granted in part,” said Judge Lind. She had granted the key aspect — the production of requested materials, including due diligence explanations from the prosecution. She modified the defense’s request for an immediate suspension of proceedings until the production of requested materials, with her ruling allowing for additional time to be requested later as needed. The due diligence explanation and timeline will be particularly helpful in pinning down government prosecutors with regards to conflicting statements they have made to the court.
The judge then asked the prosecution if the July 25th deadline would be ample time for them to comply.
“In light of the other requirements, can we get back to you later today?” asked Major Fein, for the government.
Judge Lind responded that she would maintain the July 25th deadline. She suggested that the government could file for an extension if they need additional time.
Regarding the Defense Motion to Compel Discovery #2
Judge Lind began this section by explaining that “this is not a ruling” on the Defense Motion to Compel Discovery #2. However the court has considered the case law with regards to the matter. The judge said that the government must provide to the defense — beyond their existing obligations — anything that would be “obviously helpful” to the defense. She reminded to the defense that, as they have been doing, the government also needs to be told what information the defense considers relevant as well.
“That’s all I have for today,” concluded the judge. The defense and prosecution rested for the day and court was adjourned at 4:35 PM. David Coombs appeared to be pleased with the outcome of the day’s rulings.
A Moment of Truth
After exiting the court room, supporters held something of an impromptu press conference with some wire reporters and other journalists. As military public affairs officers hovered about us outside the court house door, we welcomed the rulings for greater transparency as something that could only help Bradley’s case.
I expressed to reporters my belief that the “truth is ultimately on Bradley’s side.” Soldiers then began politely but decisively ushering us away from the court house. A few parting words were exchanged with reporters across a metal fence as they were corralled into a van.
Zack Pesavento is a press liaison to the Bradley Manning Support Network. Any corrections to these notes, along with general press inquiries, may be directed to: [email protected]
Thank you very much for this informative article with important facts to help explain what is going on “behind the behind,” so to speak.
The resistance to discovery, abuse of discovery, and “spoliation with prejudice” by the U.S. government prosecutors against PFC Manning are being well documented in the trial-court record by David Coombs, lead attorney for PFC Manning. That factual evidential record will be available for Mr. Coombs to eventually at the right time demand sanctions by the Court (Judge Lind presiding) against the prosecution. The most severe sanction appropriate in the present case may be dismissal of all charges against PFC Manning, based on the UCMJ rules and case law.
Whether such sanctions are the maximum severity or less, they will expose the U.S. military “kangaroo court” proceedings in which the principles of law and justice (rule of law, due process of law, due process of discovery of evidence, fairness) are consciously disregarded and perverted.
PFC Manning is fortunate to have such an admirable, skilled, talented, creative, resourceful, persistence, intelligent, knowledgeable legal team. Thanks and gratitude to the Bradley Manning Support Network for doing so much to make this possible.
Peace.