The government has made an “absolute mockery” of Bradley Manning’s right to a speedy trial

Bradley Manning’s lawyer, David Coombs, has filed a 117-page motion calling for the dismissal of all charges with prejudice, for lack of a speedy trial. When he argues the motion at Ft. Meade, October 29 – November 2, Bradley will have been in pretrial confinement for nearly 900 days. 

By Nathan Fuller. September 29, 2012.

PFC Bradley Manning

It’s appropriate that David Coombs’ longest motion of this trial yet, which argues for dismissal of all charges, details PFC Bradley Manning’s extraordinarily and illegally long pretrial confinement. The prosecution’s repeated and unjustifiable delays point “unmistakably to the conclusion that PFC Manning’s statutory and constitutional speedy trial rights have been trampled upon with impunity.”

Introducing the motion, which he posted to his blog on September 27, 2012, Coombs emphasizes the length of imprisonment thus far for the 24-year-old soldier accused of providing WikiLeaks with classified information:

“As of the date of this motion, PFC Manning has been in pretrial confinement for 845 days. Eight hundred forty-five days…. With trial scheduled to commence on 4 February 2013, PFC Manning will have spent a grand total of 983 days in pretrial confinement before even a single piece of evidence is offered against him. To put this amount of time into perspective, the Empire State Building could have been constructed almost two-and-a-half times over in the amount of time it will have taken to bring PFC Manning to trial.”

The Rule for Court Martial (RCM) 707 affords 120 days from arrest to arraignment to constitute a speedy trial. However, Bradley was arraigned nearly two years after his arrest and will have been imprisoned for nearly 1,000 days if his court-martial begins as scheduled on February 4, 2013.

There is no reason for this delay, Coombs argues, other than mishandling throughout by members of the government and the prosecution:

“The processing of this case has been marred with prosecutorial incompetence and a profound lack of Government diligence. The combination has led to an abject failure of the Government to honor PFC Manning’s fundamental speedy trial rights… For these reasons, the Defense requests this Court to dismiss all charges and specifications with prejudice.”

Pre-arraignment delays and the Convening Authority’s role

The defense first formally filed a speedy trial protest on January 13, 2011, and has protested all delays since. But that hasn’t impeded the prosecution from slowing the process to a crawl. Throughout 2011, the government requested seven delays of the pretrial Article 32 investigative hearing, arguing it was still working to obtain the permission to turn over documents to the defense. The Army’s court-martial Convening Authority granted these delay requests so routinely that Coombs called them the government’s “get-out-of-due-diligence-free” cards, because the Convening Authority failed to acknowledge the defense’s objections and refused to credit these delays to the government, instead repeatedly deeming them “excludable delays,” often without justification.

Coombs therefore holds the Convening Authority as much to blame for the lack of a speedy trial as the prosecution, writing, “The Convening Authority abandoned any attempt to make an independent determination of the reasonableness of any Government delay request.  Instead, the Convening Authority operated as a mere rubber stamp by granting all delay requests.”

For example, when the government finally turned over to the defense the reviews of the Apache video and other documents, it neglected to explain the delay between the time they were approved and the time they were turned over, which ranged from 3 months to over a year. Then, the prosecution asked for an eighth excludable delay, citing one more classification review, despite the others’ completion several months prior. When that request was granted, the “Government unloaded a barrage of discovery and forensic evidence in the month or so before commencement of the Article 32 hearing, despite the fact the case had been ongoing for over a year and a half at that time,” which made it impossible for the defense to use that evidence at the Article 32 hearing. Instead of compelling the government to explain these elongated delays, the Convening Authority simply issued another excludable delay memorandum that let the prosecution off the hook.

Finally, Bradley was arraigned on February 23, 2012, 635 days after he was placed into pretrial confinement.

Discovery failures, government inaction, and withholding evidence

Prior to that arraignment, however, the defense made several separate discovery requests. The government eventually responded to those requests, very late, and “wholly inadequate[ly],” utterly non-responsive to the items the defense specifically requested. One reason for these lengthy delays, Coombs proffers, is a substantial amount of government inactivity. It appears that throughout the two-and-a-half years of Bradley’s confinement, there have been multiple periods in which the government did no work on his case for weeks at a time. These add up, Coombs tallies, to 323 total days of governmental inaction prior to Bradley’s arraignment – nearly half of the time that Manning was in jail.

Coombs proceeds to recount the prosecution’s long and repeated discovery delays, including its most recent withholding of hundreds of emails. “To hold that the Government’s discovery conduct has been reasonably diligent would make a complete mockery of that phrase,” he says. Despite Judge Denise Lind ordering the prosecution to account for due diligence mistakes, Coombs says some documents are still in the air. In fact, “it will not be until November 2012 that the Defense has all relevant discovery in its possession (over 900 days after PFC Manning was placed in pretrial confinement).”

The prosecution’s withholding of evidence has then forced the defense to request delays. Recall the government’s production of 84 emails the night before Coombs was to file his Article 13 motion. The government then notified Coombs that they had nearly 1,300 more emails related to Bradley’s confinement at Quantico, forcing Coombs to push back the Article 13 motion from August to November and to file a supplement motion. Had the government handed over the emails when it saw them, instead of waiting on them for six full months and producing them just hours before Coombs filed, no delay would have been needed.

Coombs predicted this very scenario would occur:

“How the Government could have waited so long to look at these emails which should have been produced as part of its discovery obligations is beyond me.  The fact that the Government is now trying to hold the Defense to a time line of today when the need for a delay is due to their lack of diligence is unbelievable.  The Defense has repeated since referral its concern that information would be dumped on us on the eve of trial.  This is [a] perfect example of the Defense’s concerns coming to fruition.”

The court-martial is currently scheduled for February 4, 2013. But what if the prosecution is hiding more documents, only to produce them on the eve of another motion? How much longer might this pretrial delay go on?

A speedy trial is a fundamental right

Explaining his legal reasoning for the motion, Coombs cites Article 10 of the Uniform Code of Military Justice (UCMJ) and the RCM 707 – the military equivalents of the 6th Amendment to the Constitution – each of which he explained back in January 2011 regarding Bradley’s right to a speedy trial. Coombs delves deeply into the various ways in which the prosecution has violated both of these legal precepts, showing how the prosecution was granted several delays that the Convening Authority should not have excluded from the speedy trial clock.

RCM 707 affords 120 days from arrest to arraignment. The government cannot dispute that at least 103 of those days have passed without excludable delays. This means that if only one or two of the many government delays are found to be illegitimate, and if those delays add up to 17 or more days, this motion by law should be successful. By Coombs’ count, up to Manning’s arraignment,

“532 days have been excluded by the Convening Authority and the Article 32 IO. This Motion does not challenge 205 days of those excluded days…. Subtracting those 205 unchallenged days from the 635 total days, the Convening Authority and the Article 32 IO excluded 327 days of the 430 remaining days. Those exclusions amount to a total of over 76% of the 430 days.”

To emphasize how unprecedented this length of pretrial confinement is, Coombs says,

“The 845 days PFC Manning has already spent in pretrial confinement dwarfs other periods of pretrial confinement that the Court of Appeals found to be facially unreasonable, and it is plainly sufficient to trigger the analysis into the remaining factors in the Article 10 framework. Indeed, the Defense has found no reported military case involving a period of delay even close to the 845 delay in this case.”

Coombs concludes that given these rampant violations and “profound disregard” of Manning’s due process rights, dismissal of charges with prejudice is the only acceptable remedy.

But Coombs knows how the government will try to oppose this motion. To excuse their delays and mishandling of evidence throughout this trial, the prosecution has often lamented this case’s extraordinary size and scope. But the way the government has charged Bradley Manning is largely to blame for this very complexity. As the ACLU argued in April, the government has aggressively “overreached” in prosecuting Bradley, so much so that they’ve created unprecedented theories that they must later defend. As Coombs explains,

“The Government cannot be given a free pass on the reasonable diligence inquiry simply by asserting the complexity of the case, especially when it has charged the case in such a complex manner that necessitated delay in the proceedings to allow the Government to mull over how it can make the proof fit its lofty and imaginative charging decision…. PFC Manning’s speedy trial rights cannot hinge upon the unfortunate circumstance of having an imaginative prosecutor assigned to his case.”

The government’s new and dangerously broad interpretations of the law, mainly Article 104 or “aiding the enemy,” have made it difficult for the prosecution to litigate and impossible for Manning to receive a fair and speedy trial.

Furthermore, the government has virtually unlimited resources in prosecuting Bradley Manning, compared with the defense’s smaller team, dwindling resources, and grassroots-donation funding – so the idea that the government, and not the defense, needs more time, is preposterous:

“PFC Manning is not being sued by some tired, overworked attorney in a shabby office; he is being prosecuted by the United States of America, which has full command of an arsenal of resources. Five full-time prosecutors are assigned to this case. Many more SJA attorneys [Staff Judge Advocates] and paralegals may be summoned for further assistance at a moment’s notice.”

Coombs has already made some of these arguments. But in this exhaustive motion, he lays out a strong case that Bradley Manning has been deprived of a speedy trial, explaining why each of the government’s justifications for delays obfuscate its own ineptitude and failure to abide by the law:

“Every conceivable excuse offered by the Government is simply a red herring designed to detract this Court’s attention from the ugly truth of this case: the Government was operating for almost two years under a profound misunderstanding of its bedrock discovery obligations and the Government was incredibly lethargic in processing this case on all fronts. All the excuses under the sun fail to justify why, after PFC Manning has spent 845 days in pretrial confinement, the Government is still not ready for trial.”

Coombs couldn’t be clearer: “A military accused’s right to speedy trial is fundamental. The Government’s process of this case makes an absolute mockery of that fundamental right.” Judge Lind has already agreed that the government hasn’t fully lived up to its due diligence obligations. With this motion, however, we can see that rather than a simple slip-up, or a forgetful occasion or two, this has been a systemic effort to neglect Manning’s due process rights. Nearly 900 days after Manning’s arrest, this trial has been anything but speedy. Coombs’ motion to “dismiss all charges and specifications with prejudice” is comprehensive, detailed, and legally sound. He’ll be back in the Fort Meade, Maryland, courtroom in front of Judge Lind October 17-18 to discuss witnesses in support of this motion, then again October 29-November 2 to make the case.

18 thoughts on “The government has made an “absolute mockery” of Bradley Manning’s right to a speedy trial

  1. As a retired USAF Captain, I feel, not only should all charges be dismissed, but that Manning should be awarded the Army’s Distinguished Service Medal. Now, in publicly taking this position, I suspect that, if not already there, I am, or will soon be, in the cross-hairs of “government surveillance.”

    • Prior to opening the debate on ethical soldiering the US hadn’t got an exit strategy from Iraq. I firmly believed that the Bradley Manning case was US intelligence getting clever using Wikileaks to create a front for a debate on ethical soldiering – as distinct from an anti-war or pacifism – in order to create the basis for a re-framing of military intervention strategies. The fact that it did just that and that we are now moving toward highly targeted, high-tech, low-impact, intelligence directed, surveillance based wars seems odd to me. Ideally war would be an extension of local policing and domestic military operations interfacing with international Allies and their global reach/capacities.
      Manning’s case is quite different from Julian Assange’s case in so far as Assange presided over a massive un-edited leak of information which jeopardized troops and operations on the ground. He ought to have reviewed material before leaking it for sensitive data. Assange is coming from a purist anti-war perspective and entitled to his views but they are quite different from Manning’s views which happen to have pre-empted the shift in military operations from conventional thinking (blast the bastards and all belong to them) to the far more selective and effective approach being pursued today.
      The real development for the Allies in terms of modern military interventions would be in making affordable smart fone packages available throughout conflict regions to women. Once you get the women chatting it’s all over bar the shouting.The truth is there’s a global gender war but nowhere more so than in the Muslim world. The fones are all traceable/trackable anyway. Win the women and you win the war. It’s that simple. Release Manning, give him the assignment and he’ll likely make the greatest intelligence officer you ever had.

  2. Actually there is precedence for the military holding people even longer without a trial, all those prisoners at Gitmo. I suspect they have already decided Manning is a terrorist so they don’t care. My biggest disappointment in Obama is that he did not close Gitmo and now he is allowing Manning to be treated this way. My only hope is that after the election, Obama will pardon Manning. Politically, I doubt that will happen until then because Obama doesn’t want to appear to be appeasing terrorists before the election. In the meantime, poor Bradley sets a new military record for pretrial confinement each day.

    • The difference is that the US government made great effort to place the Gitmo prisoners into a legal “no-rules” (or a “we make the rules as we go”) situation–the fabricated “enemy combatant” label, the holding location in Cuba, etc. PFC Bradley Manning is a US soldier being held under the rules spelled out in the Uniform Code of Military Justice (UCMJ). But will our Government follow it is own rules? We ask this question in our new feature regarding David Coombs’ “Speedy Trial Motion”, and later during the Article 13 hearing regarding the illegal pre-trial punishment Bradley was subjected to at the Marine Base Quantico.

  3. You can steal your employee’s pensions, outsource jobs and put American Citizens out of work, the big banks have no leash as to what they can do but don’t you dare inform the American People of what is really going on.

    Obama/Romney, like most of our politicians have sold their souls (literally).

    Manning is a hero and should have gotten the Nobel Peace Metal not Obama.

    And Bush Jr, instead of retiring on his 99,000 acre ranch in Paraguay should have been held accountable for 911 and the War in Iraq.

    Lady Liberty is gagged, blindfolded and ears plugged.

    America is now a Corporate Dictatorship run by the military.

  4. Having served my country for 4 years in the US Marine Corps, I demand the right to know what is being done in my name. We should be proud of these courageous whistleblowers who expose the ugly reality of our foreign policy. Semper Fidelis

  5. The US Gov’t treatment of this brave whistle-blower is reprehensible at best.

    Punish the war criminals, not the one who blew their cover.

  6. It is always good to catch up with Pvt Bradley Manning’s Soviet era show trial. So many people around the world know that the US government does not intend to give Bradley a fair trial. The Obama regime is shameless or perhaps is immune to world disapproval. The charges are preposterous and the trial procedures blatantly absurd. The trial makes the US look like a low-rent Soviet Republic. The very thought of sharing information with ‘the enemy’ is ridiculous – we, the public of the world, are the enemy of malpractice, lies and war crimes.

    Let us all think of Bradley as a strong person who is going to win in the end and let us make that happen.

  7. Welcome to the brave new world!!! Thank God for people like Bradley Manning. How many people would have been as brave as Bradley given the opportunity? Not many….. As citizens of the U.S. we are, in theory, responsible for crimes committed by our government. Speaking out and supporting Bradley are our obligations at the very least. The military is so powerful and so well funded in the U.S. that I doubt we, as citizens can ever take our country back. Even more unsettling are the recent laws- “acts” that really make it possible for “extraordinary renditions” and other degradations of our constitutional rights. Anyone who has ears to hear, eyes to see- This is just the beginning…..Look to God Almighty, where there will be the ultimate justice!

  8. He knew what he was doing when he took the data; he planned the event; he released the data without authorization; he was in violation of the oath he took and legally binding direct orders he signed. The content of the information is irelavent; the data was classified and he is responsible for safeguarding this type of information, he was not authorized ot release it. He knew when he did it, he would go to jail. How he even got access to this data is another question that should be answered. He was an E-3 who was already on his way out for behavioral issues. Why anyone below the rank of LtCol had access to diplomatic cables is the issue that needs to be explored. Another question that I have is why aren’t the people who granted him access to this information standing right beside him, they should be there just for being idiots.

    • Which makes me wonder whether the people in charge in looking for an exit strategy – which they were – did not conclude that a debate on ethical soldiering was their best option, in which case Manning was a patsy. He didn’t release the files, Wikipedia did. But either way it did prove to be a very effective exit strategy and has led to the far more effective morphing of perpetual war into perpetual policing with global oversight strategy via entire flotillas of drones which reduce your casualty rate even further not to mention taking the edge off your foreign policy interventions. It also brings the US and its Allies into a more harmonious relationship with national police and security forces. You should be giving the guy some kind of award for getting you out of the mess you were in; and if you ain’t got one invent it. Oh yea it’s called a pay-off, you know all about that one.

    • Can you name one person in public office in this so called ‘freedom loving ” country who isn’t in blatant violation of his/her/its oath of office hundreds of times per day? Even if it can be irrefutably argued that Manning did in fact “violate” his security oath, at least it was in the name of a much higher oath to the Constitution and certainly not in the name of personal self-aggrandizement as it is with anyone you could name in high office in this country now.

  9. Of course they’re holding back the trial and stalling. It will take years to undo the damage – if it’s possible, after what has been done to this young man in Guantanamo. The world would reel should they see Manning in his present state – if, as it’s been strongly suggested, he’s been tortured.

    • For nine months Bradley was subjected to pre-trial punishment that amounted to torture in clear violation of Article 13 of the Uniform Code of Military Justice. This abuse took place at the Marine brig at Quantico, Virginia. Since the military finally relented to public pressure in May 2011, and transferred Bradley to Fort Leavenworth, Kansas, he has not been abused. Bradley’s attorney David Coombs will be arguing for dismissal of all charges at a Fort Meade, Maryland, hearing beginning November 27, 2012, due to the torture Bradley was subjected to at Quantico.

    • It seems from the comments by military personnel, who cannot understand how he obtained the information in the first place, that he was being used as a patsy to float a debate about ethical soldiering/warfare by way of providing a pretext for an exit strategy from Iraq. This no doubt coincided with the realisation that drone warfare was the future of war providing the opportunity to morph the ‘Perpetual War’, modus to one of perpetual policing with global supports; a far more intelligent, affordable and defensible strategy for the US providing opportunities for partnership forming with the nations from which the security threats were emanating as well as outsourcing war to private contractors once again removing the American government from the public relations firing line. The real issue here, in my view, is having used the guy – incredibly successfully – why continue to hang him out to dry? One or two of the comments from military personnel suggest that the real motive is to imply that Gay soldiers are less trustworthy than there heterosexual counterparts. So it seems clear to me at least that having capitalized on Manning’s naivety that the Army now wish to exploit the opportunity to scapegoats Gays in general by suggesting that they are likely to compromise their comrades in the field in more ways than one.

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