Understanding Bradley Manning’s witness requests and legal strategy
December 9, 2011. Emma Cape, Organizer for the Bradley Manning Support Network.
Since PFC Bradley Manning’s civilian defense attorney, David Coombs, made his requested witness list public on December 3rd, it has sparked confusion in the media as to what his defense team’s legal strategy will be at the court martial. While the full defense strategy will not be public until the trial itself, we can expect David Coombs to leave no stone unturned as he mounts a vigorous defense for PFC Manning. We here at the Bradley Manning Support Network would like to help the public better understand these preliminary witness choices, through the lens of military law and a military court system.
Politico wrote an article which pointed out how both President Barack Obama and Secretary of State Hillary Clinton have been requested by the defense as witnesses. Although the witness list that Coombs has posted on his website will not include names until the prosecution replies to his requests, these two figures are easily identifiable.
You may remember an incident last April, in which some Bradley Manning supporters shamed President Obama at a San Francisco fundraiser with a song about Bradley Manning’s abuse at Quantico. The creative action did more than result in international news coverage, it also led to President Obama making a pretrial declaration of guilt on camera when questioned by Logan Price, a staff member of the Bradley Manning Support Network, later at the same event. If President Obama is careless enough to make such a statement in public, he’s likely made similar statements behind closed doors.
The defense requests the presence [witness 36] in order to discuss the issue of Unlawful Command Influence (UCI). Under Rule for Courts-Martial 405(e), the defense is entitled to explore the issue of UCI. Under the Uniform Code of Military Justice (UCMJ), a superior officer in the chain of command is prohibited from saying or doing anything that could influence any decision by a subordinate in how to handle a military justice matter. As he made improper comments on 21 April 2011, when he decided to comment on PFC Manning and his case. On that date, he responded to questions regarding PFC Manning’s alleged actions by concluding that ‘We’re a nation of laws. We don’t let individuals make their own decisions about how the laws operate. He [PFC Manning] broke the law.” The comments by [witness 36] are UCI. The defense intends to question on the nature of his discussions with members of the military regarding this case and whether he has made any other statements that would either influence the prosecution of this case or PFC Manning’s right to obtain a fair trial.
As Commander in Chief, President Obama’s actions hold significant sway over military proceedings. Coombs’ legal team also calls out President Obama on his hypocrisy regarding claims of support for greater government transparency and whistle-blowing:
[Witness 36] will also testify about the problem of over-classification within the government. Specifically, that he supported and signed into law the Reducing Over-Classification Act on 7 October 2010. Additionally, he will testify that on his first full day in office , 21 January 2009, he issued two memoranda for the head of Executive Departments and Agencies that were related to transparency in government. The first memorandum focused on the administration of the Freedom of Information Act (FOIA), and the second focused on transparency and open government.
The issue of a poorly regulated government classification system which leads to many communications being improperly classified has been well-documented through statements by government officials over the past few decades. Millions of low-level government employees and contractors have the authority to classify documents, and most classification decisions will not be reviewed by a second party. An internal government review concluded that around 35% of U.S. classified documents were not classified for reasons of national security, and as such do not meet the requirements for classification as put forth in Executive Order 13526.
In fighting the most serious charge against Bradley, “Aiding the Enemy,” it seems Coombs is ready to lead with the argument that the claims about the releases hurting national security are false. Witness #38 fits the description of Secretary of State Hillary Clinton:
[Witness 38] will testify that she has raised the issue of the disclosure of diplomatic cables with foreign leaders “in order to assure our colleagues that it will not in any way interfere with American diplomacy or our commitment to continuing important work that is ongoing.” [Witness 38] will also testify, that she has not had any concerns expressed to her about whether any nation would not continue to work with the United States or would not continue to discuss important matters going forward due to the alleged leaks. As such, [witness 38] will testify, that although the leaks were embarrassing for the administration, that she concurs with the opinion that they did not represent significant consequences to foreign policy.
While Secretary Clinton will be called upon to testify that American diplomacy has not been concretely injured by the releases, Dr. Robert M. Gates, who served as United States Secretary of Defense from 2006 to 2011, is being called upon to reiterate a previous public statement he made indicating soldiers in Iraq or Afghanistan had not actually been endangered by WikiLeaks as administration officials had originally claimed:
[Witness 37] will testify that the Afghanistan and Iraq SIGACT releases did not reveal any sensitive intelligence sources or methods. He will also testify that the Department of Defense could not point to anyone in Afghanistan or Iraq harmed due to the documents released by Wikileaks. He will testify that the Afghanistan and Iraq SIGACTs are simply ground-level field reports that document dated activities which do not disclose sensitive information or our sources and methods. [Witness 37] will also testify that the initial public descriptions of the harm to foreign policy due to the publication of diplomatic cables were “fairly significantly overwrought.”
The quote “fairly significantly overwrought” comes from a Pentagon briefing Robert Gates gave in November of last year. As part of the briefing he also made the revealing statement,
“Let me just offer some perspective as somebody who’s been at this a long time. Every other government in the world knows the United States government leaks like a sieve, and it has for a long time. And I dragged this up the other day when I was looking at some of these prospective releases… The fact is, governments deal with the United States because it’s in their interest, not because they like us, not because they trust us, and not because they believe we can keep secrets. Many governments — some governments — deal with us because they fear us, some because they respect us, most because they need us.”
While the military may seek to make examples of low-level soldiers who seek to be whistle-blowers, such as Bradley Manning, the reality is that U.S. officials frequently reveal technically classified information, especially if it can benefit U.S. interests. The American Civil Liberties Union recently published the results of their Freedom of Information Act request for a number of key WikiLeaked cables. By comparing the redacted documents granted to them by the U.S. government with the unredacted documents published by WikiLeaks, they conclude that secrecy decisions are continuing to be made on the basis of what information paints U.S. actions in a favorable light, as opposed to revealing information the U.S. public needs to know.
In addition to pointing out the contradictions between our top leaders’ claims about the dangers of WikiLeaks and their statements and actions which demonstrate a different reality, Coombs requests witnesses that can testify to Bradley’s mistreatment at the Quantico military prison.
Of witness # 46, he says:
He will testify that during a meeting in early January of 201 1, the Security Battalion Commander in charge of the Quantico Brig, [redacted], clearly stated to the Brig Staff that “I will not have anything happen to Manning on my watch…. So, nothing is going to change…. He won’t be able to hurt himself and he won’t be able to get away, and our way of making sure of that is that is he will remain on Maximum Custody and POI indefinitely.” He then will testify that one of the other Brig psychiatrists said “You know Sir, I am concerned because if you are going to do that, maybe you want to call it something else because it is not based upon anything from behavioral health.” In response, [Witness 46] will testify that [redacted] said “We will do whatever we want to do…”
Based on this witness’s observations, concerns about the treatment of Bradley at Quantico clearly went beyond those of a couple individuals.
[Witness 46] will testify that… he spoke with others at the Brig to see if they knew why the Brig was so heavy handed on PFC Manning. He will testify that others at the Brig told him that they have never seen anything like this before. [Witness 46] will testify that others told him that they were afraid to speak out about the situation given the concern of what would happen as a result of any complaint about PFC Manning’s treatment.
Witness 47 is being called for a similar purpose as witness 46.
[Witness 47] will testify that he gave weekly status reports stating that he felt the POI precautions were unnecessary. [Witness 47] will testify that he recalls a meeting where [redacted] stated that PFC Manning would remain in his current status Maximum Custody and POI unless and until he received instructions from higher authority to the contrary. [Witness 47] cannot recall exact words, but he does recall that [redacted] made it clear that nothing would change with PFC Manning regardless of his behavior or the recommendations of behavioral health.
Through the efforts of allies and groups that have worked in solidarity with the Bradley Manning Support Network, and especially the persistence with which UN Special Rapporteur on Torture Juan Mendez has tried to investigate the matter, the mistreatment of Bradley at Quantico has been brought to the forefront of the public’s attention.
Politico helped break the story several months ago of how an internal marine inquiry into Bradley’s extreme “Prevention of Injury” treatment conditions stated they were unnecessary, yet brig psychiatrists’ expertise was overruled by a brig commander. If illegal management of Bradley’s harsh pretrial imprisonment conditions can be demonstrated, then the case can be made that the trial has already been unfairly influenced, and if he is convicted of any charges that he has already served part of his sentence.
Many of the lesser charges faced by Bradley relate to installing software on government computers and downloading classified documents onto his personal computer. To fight these charges, Coombs is requesting several witnesses who can testify that both were common practice in Bradley’s unit, and among intelligence analyst’s in Iraq in general.
Another category of witness that has drawn considerable media attention are those requested by Coombs who would testify that Bradley was facing emotional stress while serving in the military and had sought counseling to work out his issues. Without first seeking clarification from Bradley’s lawyer, the UK Guardian published a misleading article about the witnesses titled “Bradley Manning team to highlight WikiLeaks suspect’s fragile mental state.”
While there is ample evidence to suggest Bradley Manning was coping with considerable emotional stress while serving in the Iraq War, as do many soldiers, we do not believe that this will play a large role in Coombs’ strategy of fighting the 22 charges against Bradley. Rather, as Courage to Resist Project Director and military veteran Jeff Paterson explains,
“The defense has to be prepared from the beginning for mitigation. In military court, there is no pause between “the guilt phase” and “the punishment” phases of a court martial. If found guilty in the morning, basically a second trial begins in the afternoon to determine punishment. If you don’t have your witnesses sitting there, then it’s already too late.”
David Coombs is financed by the Bradley Manning Support Network, and entrusted by Bradley and his family to protect Bradley to the best of his abilities. Bradley will be facing a jury of high-ranking military officials at court martial, and as such it’s quite possible he will be convicted of at least some of the charges. We believe David Coombs to be preparing all methods he can think of to reduce Bradley’s sentencing in the event of a conviction.
The existing list of 48 witnesses represent the witnesses which will be the most challenging to call upon, because of their potentially conflicting political allegiances. Witnesses who are more openly supportive of Bradley can be requested later, as their chances of refusing are low. This leaves open the possibility that witnesses can still be called before the court martial who will testify as to international human rights laws and the Nuremburg Principles of correct conduct during war. In other words, this initial list of 48 witnesses in no way rules out the possibility that Bradley’s alleged actions will also be defended as acts of whistle-blowing in court.
Regardless of whether this perspective is used as a legal argument in court, the Bradley Manning Support Network and our allies will continue to educate the public as to Bradley Manning’s alleged whistle-blowing. To a military tribunal such as the one Bradley will be facing, the possibility of endangerment to U.S. soldiers is likely to be their highest priority. Calling witnesses to testify that no significant harm has been caused to the safety of U.S. soldiers and other citizens will be crucial in convincing these officers that the most serious charges against Bradley are unwarranted. However, raising awareness and outrage about the broader political issues at play in this case is also critical to holding our leaders accountable, and putting indirect pressure on military decision-makers to lessen any potential punishment upon conviction of lesser charges. What WikiLeaks has revealed includes irresponsible decision-making by military leaders, violations of international human rights laws by countries around the world, and a poorly-regulated U.S. government classification system allowing officials to deceive the American people. Aggressive foreign policies which use American taxpayer dollars to violate rights of foreign citizens can breed anti-American sentiment abroad, and make average Americans less safe. These controversial issues deserve public debate, and without information, we cannot make informed decisions as a public. These lessons will not be forgotten as the grassroots movement to support Bradley Manning, and all government whistle-blowers, continues to grow.
December 17th, Bradley’s second day in court and 24th birthday, is our International Solidarity Day of Action. Check out events.bradleymanning.org to find or organize an event near you.