Notes on Bradley Manning’s Article 39 hearing, April 24
In the first of a planned three day Article 39 (pre-trial) hearing this week, the judge rejected the Center for Constitutional Rights’ bid for transparency, but said three damage assessments are eligible for review by Bradley’s defense team.
By Nathan Fuller, Bradley Manning Support Network. April 24, 2012
PFC Bradley Manning’s Article 39 hearing reconvened on Tuesday at 10:00 AM ET, after a brief delay due to private conferences among Judge Col. Denise Lind, defense lawyer David Coombs, and the prosecution’s Maj. Ashden Fein.
First, Judge Lind noted a change in Bradley’s legal defense team: Capt. Joshua Tooman has replaced both Maj. Matthew Kemkes and Capt. Paul Bouchard, though reasons for the substitution weren’t given publicly.
After a discussion of a court-assigned security official who will assist with the handling of classified material, Lind addressed the various calls for transparency in Bradley’s proceedings. Just yesterday, the Center for Constitutional Rights (CCR) renewed its call for openness, requesting a public transcript and all motions to be made public. As Coombs explained, the defense motions are currently all online at his blog, though they’ve been heavily redacted. The prosecution declined to post any of its responses or motions publicly. All parties were involved in an RCM 802 conference (a telephone meeting held between hearings), in which the government requested 30 days notice before a defense motion went public and the ability to submit a protective order. The judge ruled as a ‘compromise’ that for all future postings, protective orders will be placed on discovery motions, personal identification information will all be redacted, and only initials will be used for participants involved.
However, the request from CCR and the defense for what the judge called “intervention” was denied. In Lind’s words, “These proceedings have been open and will remain open,” apparently satisfied with the level of transparency so far. Lind acknowledged “the right to common law access, but that right is not absolute.” The first and sixth amendments, she says, don’t guarantee access to all court records.
Next, the defense announced an agreement had been reached for Coombs to view classified material at the Naval War College, in his home state of Rhode Island, and that Coombs was satisfied with this deal. Also, the prosecution’s many internal email problems have been sorted out, for now.
Defense motion to compel discovery — damage assessments granted for in-camera review
Moving to the major motions of the day, the judge introduced the defense’s motion to compel discovery – evidence including FOIA requests, Quantico video allegedly documenting Manning’s abuse and interrogation there, hard drives from other soldiers in Iraq, and finally, damage assessments from several government agencies, meant to gauge the level, if any, of harm created by WikiLeaks’ releases.
Prosecutors acknowledged that a damage assessment by the “WikiLeaks Task Force” (WTF) had been completed by the Central Intelligence Agency (CIA). Another damage assessment — coordinated by the Department of Defense along with the the State Department, Defense Intelligence Agency (DIA), CIA, and the Office of the National Counterintelligence Executive (ONCIX), under the auspices of an Information Review Task Force (IRTF) — had also been completed. The State Department has claimed that its assessment is on-going.
These damage assessments were the most hotly debated element of the defense’s request. The government has long said it will disclose all “relevant” assessments, yet it’s hardly agreed upon what relevant means exactly. It has said that assessments were classified, so it couldn’t determine their relevance, but it has also argued that it was up to the defense to prove their relevance.
The judge ruled another compromise of sorts: she granted the defense’s request, but only in part. All three completed damage assessments were deemed relevant to the defense, but they’re relevant for an “in-camera review,” wherein their relevance to the case and favorability to the accused will be judged later (the government requested a delay, until May 2, for the CIA assessment, which was granted). The judge reminded the prosecution of its May 18 deadline to follow through on her ruling for all assessments. The prosecution maintained that it had followed this ruling and requested assessments from all three entities, though the Department of State requested to be excluded from this order. We would return to the State Department request later in the day.
Wrapping up this partially granted motion, the defense noted that of the fourteen hard drives requested, thirteen were from Fort Drum and one was from the CIA. Out of the fourteen hard drives seized from the Temporary Sensitive Compartmented Information Facility (TSCIF) unit where Bradley worked at FOB Hammer, all but five had been wiped clean (with one of the five partially wiped). Coombs argued that this loss of evidence harms a potential defense, because even from the remaining four intact hard drives, we have already found numerous “unauthorized” programs that were widely installed across Bradley’s unit.
The hard drives were deemed not relevant, although each will be searched for alternate programs installed. These would show that most other soldiers in Bradley’s unit also installed several unauthorized programs on their computers, including Wget, the program Bradley’s accused of using to communicate with WikiLeaks. Other unapproved programs that were mentioned included the mIRC chat client, a program called “D.O. Trans,” and “Grid Extractor.”
Defense motion to compel grand jury testimony
Then we moved to the defense’s motion to compel testimony from the grand jury investigation held between the FBI and DOJ to determine WikiLeaks’ potential illegality. Coombs railed against what he described as the prosecution’s shift in litigation on this issue – initially arguing that it would disclose anything relevant and necessary, then that it’d disclose anything “related to [Manning],” then only that which met the Brady standard for relevance, and finally that it couldn’t disclose the testimony at all because it wasn’t in its “possession, custody, and control.”
Since the FBI and DOJ aren’t part of the military, the prosecution argues that it’s not in control of the testimony, even though it has full and free access to these filings. But Coombs said that “possession, custody, and control” of the testimony didn’t require the physical documents be in the prosecution’s filing cabinet, merely that it had sufficient access to them to hand them over. He said it had been established that if a “close alignment” or “joint investigation” occurred between those holding the grand jury and the prosecution, then that constituted access. He argued that it was simply untenable for the government to have access to these other agencies to enhance its case and then “hide behind the fact that it’s not in physical possession” of their filings. He said it broke basic rules, the idea of fair play, and Article 46 of the UCMJ.
Before addressing Coombs’ point head on, though, Judge Lind wondered if the grand jury testimony was even within the limits of “possession.” Is the testimony a document? If it was an audio file that Fein had heard, could the prosecution be considered in “possession” of it? Coombs responded that if it was an audio file, he was requesting the transcript thereof – he’s requesting access to the testimony however he can get it.
But the government wants to disclose as little as possible. It said it would disclose the grand jury subpoena, but that it would only disclose the testimony if it was deemed to meet the Brady standard.
Coombs said that it was up to the DOJ, who was leading the investigation, and not the prosecution, to disclose the testimony. If the judge asks the DOJ to disclose it, and the DOJ declines, then Coombs would use a production order to force its disclosure. But that decision has to come from the DOJ, and it’s not for the government to block that request in the first place. Judge Lind will rule on this either later in this week’s hearings or before the next court date.
Mishandled discovery — defense motion to dismiss all charges with prejudice
We moved right along to the defense’s motion to dismiss all charges with prejudice, based on Coombs’ arguments at last month’s hearings that the government misunderstood its discovery requirements so badly that it would send the case back another year or two, nullifying itself on several grounds.
Coombs reiterated those arguments today: first, he says, in its initial response to the discovery request that the US never even cited Brady, the law the request was based on. Second, when it finally did cite Brady, it cited the wrong Brady standard (they cited the trial standard, instead of the pretrial standard, the latter of which is much more broad). Finally, when attempting to address the pretrial standard, it says classified information doesn’t apply. But Coombs says it does apply, since the government hasn’t invoked a classified privilege.
Collectively, Coombs says, these show the government fundamentally misunderstands the Brady requirement. He argued that dismissal is the only remedy available because of how severe and extensive the problem is. The government has mishandled discovery for two years now, and it stands to reason that a renewed discovery under the correct standard could take another two years, further eroding the idea of a speedy trial. There are more problems, though: other potential evidence could be lost, and finding new evidence would embarrass the government, each new item undermining its previous claim that no Brady material existed.
Personalizing the message, Coombs noted that this was “particularly disheartening” given in his 14 years as a lawyer, the biggest difference he’s observed between civil court and military court is how discovery is handled. “No games,” he said. “You don’t hide the ball.”
“You get discovery out there and you have a trial on the facts.”
The government countered this theme without directly challenging the claim, saying their search for Brady-level evidence has been a “thorough investigation” in an attempt to be “over-inclusive,” including in its requests a list of search terms related to Bradley Manning and WikiLeaks. Fein claimed that some of these searches remain ongoing, and that “those not turned over are classified.”
In a bit of a shift from previous litigation, the judge pushed back on the prosecution’s reasoning, remarking that there “does seem to be a disconnect” between the prosecution’s previous and current understandings of discovery.
When Fein complained that the defense believes in an “over-broad” definition of Brady, the judge asked if there was some evidence that might affect a potential sentencing. “Yes,” Fein said.
But Fein quickly returned attention to Coombs’ previous arguments, saying, “No evidence has been lost, it’s all been present and preserved.” No Brady violation occurred, he said, but he also said that even if such a violation did happen, “There’s still plenty of time and resources left.”
Pushing a little further, Lind asked how the government interprets Brady with regard to lessening punishment, and Fein acknowledged that the prosecution believes something that could affect punishment meets the Brady requirement. He also said that “relevant and necessary” was his standard for classified information.
Challenging this claim, Coombs was also able to reiterate his previous point, charging that the prosecution has “engaged in revisionist history” in its initial understanding of Brady. He says the government clearly thought the pretrial standard didn’t apply, as evinced by their initial request neglecting to cite Brady.
“The proof is in the pudding,” said Coombs. “If [the prosecution] understood their discovery obligations, they already would have provided this information. Now, they’re saying ‘if we need to go get the information regardless, we can do so quickly.’”
Returning to his request for grand jury testimony, Coombs said, “It cannot be that the prosecution can interact with other agencies and then claim it has “no control” of documents.”
“Well that’s the question I’m wrestling with,” the judge replied.
Coombs continued to say that even if the testimony isn’t physically in the prosecution’s filing cabinet, “legally it is.” Since there’s no military case law that sets precedent in this regard either way, Coombs points to federal case law as a guide.
The government’s positions before the initial discovery ruling and after it stand “in stark contrast” to one another, he said. The judge, giving the prosecution the benefit of the doubt, asked, “Wouldn’t the prosecution want to ensure a conviction would uphold in appeals?”
“We’d think so,” Coombs replied, but reminded her that Fein cited no case law and instead “took a leap of logic” to make his case. Coombs argued that the government’s overly-narrow interpretation of their discovery requirements risks exposing them to overturning any potential sentence on appeal.
The State Department’s WikiLeaks Task Force
The judge then returned to the State Department’s handling of the discovery request, referring to another RCM 802 conference wherein Ambassador Kennedy’s testimony to Congress was discussed. Kennedy there established an around-the-clock WikiLeaks Task Force (WTF), but the prosecution doesn’t consider the task force’s work as necessarily part of a damage assessment.
Coombs quoted from an anonymously sourced Reuters article stating that the State Department had felt inclined to exaggerate claims of WikiLeaks’ harm to assist the Department of Justice’s investigation. Citing this claim, Coombs argued the government has been working collectively to find harm in WikiLeaks’ releases, yet the 12 documents they produced last week, as part of the discovery request, “show no harm.”
To understand its position better, and to determine if the WTF constitutes an element of damage assessment, Coombs asked for a State Department representative to come to court to be cross examined. Without a representative, he said, it seems like they’re cooperating with the Department of Justice.
Fein challenged again the claim that a task force constitutes a damage assessment, but Coombs replied that the WTF was specifically designed to assess risks, so of course it’s damage assessment. The government’s definition of such an assessment is intentionally narrow, Coombs contends, to avoid producing evidence. Fein said Coombs’ broader definition sent the prosecution on a “fishing expedition.” Seeking clarity on the task force, Coombs said that we need Ambassador Kennedy to testify.
When the judge said that the evidence only matters if the prosecution planned to use it in court, Coombs implied the prosecution could bring it up unannounced in rebuttal. The judge replied that she was “sure they wouldn’t bring it up in rebuttal,” and Fein stood to agree. Ultimately, the judge said that “the government will disclose evidence it may be holding for rebuttal.” She added, “I would like the government to produce what the State Department has with regards to WikiLeaks.”
Finally, the judge brought up the last motion, the defense’s renewed request for a Bill of Particulars. Coombs explained that the prosecution needed to define a difference between “stealing,” “purloining,” and “knowingly converting” information, and clarify which it intends to argue Bradley did. According to Coombs, “stealing” is “taking,” while “knowingly converting” is to use authorized access for unauthorized purposes. Ultimately, the prosecution lacks a clear distinction among the three, and maintains all three theories for now.
Allowing that argument, Lind adjourned the day’s session with a plan to reconvene Wednesday morning at 10:00 AM.
This article recounts day one of three days of scheduled pre-trial hearings for PFC Manning at Fort Meade. Please email Nathan Fuller at [email protected] with any questions or corrections. Stay tuned for additional reports throughout the week, and for each day Bradley Manning is in court.