Notes from Bradley Manning’s Article 39 hearing, April 25
“Approximately 20 supporters of PFC Bradley Manning spilled over both sides of a small courtroom at Fort Meade, Md., the venue for a pre-trial hearing in the WikiLeaks case this afternoon at which Manning’s defense argued for dismissing charges against Manning. About half of the Manning supporters had “truth” emblazoned across their shirts.”—ABC News
By Nathan Fuller, Bradley Manning Support Network. April 25, 2012.
Predicting more private conferences to preface today’s hearing, Judge Denise Lind scheduled court to open at 10 AM. In this morning’s private RCM 802 conference, the judge, defense counsel David Coombs, and prosecutor Ashden Fein laid out a tentative schedule for PFC Bradley Manning’s court martial and the remaining pretrial hearings before that. All proceedings are expected to take place at the Fort Meade courtroom. Bradley is transported back to Fort Leavenworth between hearings. The parties have agreed on the following schedule:
- June 6-8 Article 39 pre-trial hearing
- July 16-20 Article 39 pre-trial hearing
- August 27-31 Article 39 pre-trial hearing
- September 19-20 Article 39 pre-trial hearing
- September 21 – First day of court martial
- October 12 – Estimated completion of court martial
All dates are subject to change, especially the late September start of the court martial. Given the amended motions and delays thus far, we expect possible additional Article 39 hearings, with the court martial pushed back to the end of the year.
Judges rules on defense motions to dismiss charges and to compel testimony
After announcing those court dates, Judge Lind ruled on the two defense motions argued yesterday. On the defense’s motion to dismiss all charges with prejudice, the judge determined that the government had properly investigated Brady material in searching for discovery documents. [“Brady” rules of evidence outline that prosecutors must disclose evidence or information that benefits the defendant.] Judge Lind found no evidence of prosecutorial misconduct, and agrees with the prosecution that it can’t be considered in control of other agencies’ information. Therefore, the motion was denied.
Next up was the motion to compel grand jury testimony—the prosecution has benefited from access to the content of the ongoing WikiLeaks–focused grand jury hearings being held in Alexandria, Virginia. Coombs outlined how without access to this same information, the defense was at an unfair disadvantage in preparing its case.
Lind said that grand jury testimony is not discoverable because it is classified, and the prosecution doesn’t have control over the FBI’s investigation. She said the defense had failed to prove the testimony’s necessity, but did say that it could be disclosed in other ways. Still, this motion was also denied.
Defense argues prosecution unreasonably multiplied charges
Following these swift denials, Coombs stood to argue a new motion to dismiss and/or consolidate based on an unreasonable multiplication of charges. Coombs holds that the prosecution took a single disclosure that happened at one time, on one day, and separated it into several charges simply to multiply punishment. The government alleges Bradley illegal procured these documents and illegally transmitted them, but Coombs argues that he couldn’t have done the latter without doing the former. Stealing the documents, Coombs says, should be considered part of the unauthorized transmission. Furthermore, the government is charging Bradley separately for releasing both the Iraq War Logs and the Afghan War Diary, even though these releases happened at the same time, according to Coombs. He cited case law Queros as precedent for precluding the double punishment of the same crime. Each theft and each transmission carries a maximum of ten years in prison, so Coombs believes the prosecution is attempting to turn a ten-year sentence into a forty-year sentence.
The judge asked Coombs if a soldier could commit a 641 violation, the unauthorized procurement, and then “stop,” or in other words take the information without releasing it. Coombs said that yes, this was possible, but if that were the case the government would have to charge Bradley under 793, a different violation. Under 641, he says, one cannot have the disclosure without the initial stealing.
To support his claim that the Iraq War Log release and the Afghan War Diary release were one and the same, Coombs cited another case law, Gilcrest, in which it was determined someone could not be punished for two larcenies for stealing both pills and money. Likewise, Coombs argued, Bradley shouldn’t be charged twice for releasing two sets of documents at once.
The government responded in two parts: one, it doesn’t believe the Queros standards have been met, and two, it plans to prove that the unauthorized Iraq and Afghanistan war log procurements occurred on different days, and therefore constitute two different violations. It plans to prove that these logs were released three weeks after they were stolen, further separating the crimes, and that they were “likely” transmitted together, included in the same file. For clarity, the prosecution’s timeline says Bradley stole some documents January 5, 2010, some on January 8, 2010, and then released both sets January 30, 2010.
Briefly responding, Coombs said that Queros deals with specific transactions, and not the overall charge sheet, so he believes it does apply in this case. He referred to the prosecution’s “arbitrary splitting” of the charges in order to punish Bradley more than is required.
Defense motion to dismiss Specifications of Charges 1 and 2
After a twenty minute recess, the judge said it’d been brought to her attention that, “There has been some noise in the gallery during oral argument.” She continued, “This is a public hearing,” and that spectators must respect the dignity of the proceedings. It was unclear what “noise” the judge was referring to, as no more than a loud cough had been uttered from the spectator benches throughout the morning.
Judge Lind then moved on to ask Coombs to argue his next motion, which calls for the dismissal of Specification 1 of Charge 2. In that specification, the prosecution alleges Manning “wrongfully and wantonly caused to be published on the internet intelligence belonging to the United States government, having knowledge that intelligence published on the internet is accessible to the enemy.” Coombs believes the Article 134 charge is “preempted” by Article 104, which uses much broader language to define “aiding the enemy.” Coombs cited case law Anderson to argue the prosecution’s charge was “like combining larceny and wrongful appropriation” into a hybrid charge of “wrongful taking.”
The government’s Captain White stood to argue the motion, saying he believed the motivations for Articles 104 and 134 were different, and therefore required different charges. He said the prosecution would have to prove this disclosure was “wanton.”
This discussion elicited a prosecutorial rift between definitions of “intelligence” and “sensitive information.” While the defense considers them the same, the government believes intelligence is broader, comprising information that was “true at least in part and useful to the enemy,” and that sensitive information, more narrow, fell under the intelligence umbrella. The judge pressed Cpt. White to give an example of intelligence information that was not deemed sensitive. The prosecution couldn’t come up with a definitive example, and asked to answer following the lunch recess.
Before lunch though, the defense was allowed to respond. Coombs reiterated his argument that because the defense contends sensitive information includes any documents would pose a danger to national defense if lost or modified, the Article 104 charge should be sufficient and preempts the Article 134 charge. We broke for lunch.
Following recess, the prosecution was called to explain its sensitive information distinction. Cpt. White said the July 12, 2007, Apache engagement video [released under the title “Collateral Murder” by WikiLeaks]– which was not classified when released – constituted intelligence that wasn’t sensitive. Coombs immediately challenged this distinction, as the video was later deemed to warrant classification.
The next motion was the defense’s call for dismissal of specification 1 of charge 1, Article 104—“Aiding the Enemy”. Coombs reminded the court that this charge has no historical precedent whatsoever as charged for a public disclosure of information, and thus the government has a very “expansive theory”. Coombs says the prosecution has failed to provide the requisite intent to give information to the enemy. He argued that under Article 104, the prosecution must allege Bradley used WikiLeaks specifically to get the information to the enemy, instead merely that Bradley gave information to WikiLeaks and that the enemy retrieved the information as anyone with Internet access might have done.
Coombs gave an analogy: if he gave a package with the enemy’s address on it to FedEx, then that would constitute indirect aid with intent. Clearly he would have intended it to get to the enemy given the address, but it would be indirect because he used a third party to transmit the package. Coombs says instead, the prosecution’s argument should be that Bradley was grossly negligent – since it alleges he knew the enemy could access WikiLeaks – but that negligence doesn’t fall under Article 104. He says the government’s argument constitutes negligence, so the Article 104 charge should be dropped altogether.
As the judge pressed him further, Coombs gave another example. “What if a soldier posted something on his blog?” he asked. The enemy uses the Internet, and therefore under the prosecution’s current argument, the soldier should assume the enemy could see it. Could anything he posted about his Army unit on his blog be considered aiding the enemy?
Even if the government proved the enemy received the information, Coombs says that would be an aggravation argument for harsher penalties under the negligence charge. Coombs argued this exact same policy could be applied to the New York Times or Washington Post. If he gave information to the Washington Post, Coombs said, would that be “indirect aid,” since the enemy knows the Washington Post is online? The standard for Article 104 is using an intermediary with intent, not mere negligence, Coombs argued.
He got more specific with the hypothetical: if a soldier’s unit had no body armor and was going into battle, and that soldier publicized that information via his blog, or WikiLeaks, or the New York Times, did he aid the enemy simply because he wanted the information to get out in the public? What if he told a reporter that a high percentage of soldiers in his unit suffered from PTSD and/or had low morale? He argued that this government definition of “indirectly” would contrast with the First Amendment, because that soldier would be barred from speaking out to the public for fear that he could unwittingly “aid the enemy.”
Highlighting the importance of this ruling of a charge without precedent, Coombs said, “If accepted, 104 would be alarming in its scope.”
The judge asked Coombs to refrain from using hypothetical examples that distract from the focus of the argument at hand.
What was Bradley’s intent?
Coombs returned attention to “intent,” and referred to the chat logs attributed to Bradley Manning. He clearly wanted the public to know this information, Coombs says, and “that’s not aiding the enemy.” Coombs asked, “If Bradley really wanted to give information to the enemy, why not try to give it to them directly? Why not ask WikiLeaks to refrain from publishing them for the world to see?”
The government is trying to argue that Bradley specifically knew that Al Qaeda could access WikiLeaks based on his research in Iraq. But Coombs says everyone knows the enemy can access the Internet. With Google and the Internet’s vast reach, nearly everything online is accessible.
The prosecution responded by saying that Bradley acted “knowingly,” and emphasizing Bradley’s “awareness,” or knowledge that America’s enemies could access this information if he leaked it online. The judge asked if “knowledge” included awareness that the enemy would access the website, and the prosecution said yes. The judge asked if it included awareness that the enemy might access the website, and the prosecution responded that awareness meant that it definitely would access. This means the government will have to prove that Bradley Manning knew ahead of time that the enemy would access WikiLeaks specifically, not merely that he knew it was possible. Therefore, the prosecution says Coombs’ New York Times hypothetical argument doesn’t apply, because it isn’t arguing for anywhere on the Internet, it is specifically alleging the charge for WikiLeaks.org.
Interestingly, Coombs noted earlier in an argument that WikiLeaks had not been vilified when Bradley is alleged to have sent them the data.
Though this raised the government’s burden of proof, Coombs still challenged the Article 104 further. He said that even knowing the enemy would access the website is still reckless negligence, because it doesn’t constitute the intent of communicating. Coombs acknowledged that “the enemy” gained access to the information, but only in the context of the enemy being “a subset of everybody.”
He explained why intent of action, and not motive, was at hand: if you communicate with the enemy and say to them that war is bad, you may have a great motive but it’s still a 104 violation – you still intended to communicate with the enemy, which is what the article forbids. The judge looked up at the clock and back at Coombs. She’ll said rule on this tomorrow, and adjourned the hearing for the day.
This article recounts day two 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.