Bradley Manning prosecution incurably infected by government misconduct

Attorney argues that prosecution’s misconduct leaves dismissal as the only option

By Kevin Zeese. March 20, 2012

Courtroom sketch, Bradley Manning's pretrial hearing

Last week I spent two days in court for a pretrial motions hearing in the court martial of Bradley Manning, the private accused of leaking documents to WikiLeaks that showed widespread unethical and illegal behavior by the Department of Defense and State Department.  Manning has suffered the fate the Queen put on Alice when she was in Wonderland, ” Sentence first — verdict afterwards. ” By the time his court martial is actually held he will have been incarcerated for more than two years, one of those years was spent in solitary confinement. But, that is only one of many obvious injustices Manning is being subjected to.

In fact, just before the pretrial motions were heard the UN Special Rapporteur on Torture Juan Mendez completed a 14 month investigation and published a lengthy report on torture and otherwise abusive punishment. He wrote: “The special rapporteur concludes that imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence.”

Further, Mendez concluded that the US military was at least culpable of cruel and inhumane treatment in keeping Manning locked up alone for 23 hours a day over an 11-month period in conditions that he also found might have constituted torture.

The motions hearing had some twilight zone moments.  The prosecutors were missing court orders and rulings as well as motions and documents filed by the defense up until March 11 because in the strange world of the “land of the free’ when the word “WikiLeaks” appeared in an email, the document was blocked.  The government finally figured out that they were missing filings, now every day the prosecutors check their spam box at 10 AM to see what the censors have hidden. Unlike other federal employees in the land of constitutionally protected free speech, they read the word “WikiLeaks,” what will be the impact!?

Taking a lesson from the Queen in Alice in Wonderland, America’s top two military commanders have already pronounced Manning guilty.  Almost a year ago, President Obama, the commander-in-chief,  pronounced Manning guilty saying “He broke the law.”  Just recently the Chairman of the Joint Chiefs of Staff, General Martin Dempsey, echoed that finding of guilt before trial saying “He did break the law.” Dempsey’s comment was published in  Stars and Stripes , the official newspaper of the Department of Defense.  It seems like the military is doing all they can to let everyone who serves on the jury know their career is over if Manning is found not guilty.

This openly violates  Article 37  of the Uniform Code of Military Justice which forbids “Unlawfully Influencing Action of Court.” This is a  heavily litigated area  because the command structure of the military makes higher ranking officers very powerful over their subordinates.  In 2004, the United States Court of Appeals for the Armed Services issued a unanimous decision that affirmed the power of the military judge to dismiss charges and specifications with prejudice in the face of unlawful command influence, United States v. Gore, 60 M.J. 178 (2004).

Manning’s attorney, David Coombs raised the issue of unlawful command influence in the Article 32 hearing, when he sought testimony from  President Obama and other high government officials, writing: “The relevancy of these witnesses should be obvious. Each of these witnesses has provided statements that contradict those given by the OCA [Original Classification Authority] witnesses regarding the alleged damage caused by the unauthorized disclosures. Additionally, each of these witnesses is relevant in order to inquire into the issues of unlawful command influence and unlawful pretrial punishment in violation of Articles 13 and 37 of the UCMJ.” [Emphasis added.]

It is unclear how Judge Col. Denise Lind will minimize the impact of command influence in the Manning case.  She can tell the jurors to ignore the Commander-in-Chief and the Chairman of the Joint Chiefs statements that Manning “broke the law,” but will that just make matters worse?

But this is not the end of the mess the government has created making a fair trial seemingly impossible. Coombs pushed the government hard on their denial of discovery. The government said there were 3 million pages of documents related to the trial. Coombs has gotten a very tiny fraction of those.  The argument in court over discovery was about disclosure of materials related to the Apache helicopter attack known as the Collateral Murder Video, the damage assessment reports done by five federal agencies on how the documents impacted national security,  computer forensic images that could show what software was installed or downloaded , and video from the Quantico Marine Brig where Manning was held in solitary.

Supporters hold huge banner over I-80 near San Francisco 3/15/12. Photo J Paterson

The damage assessments are particularly important to both the underlying offenses as well as sentencing. Regarding the underlying charge, Manning’s most serious charge is aiding the enemy, who the government disclosed in court was al Qaeda of the Arabian Peninsula. The damage assessments would surely describe whether and how al Queda was aided by the released documents.

Since October 2010 Coombs has been asking for the damage assessments. The State and Justice Departments claim not to have finalized their assessment (Will they ever?  Will they before the Manning trial?). The Defense Intelligence Agency and the Central Intelligence Agency have completed their assessments, but they are classified. The Federal Bureau of Investigation has completed their assessment but it has not been made available.  Coombs pointed out that leaks and statements by top officials like Secretary Clinton and former Secretary Gates indicate there was no significant damage from the release.

The government says that if they are ordered to produce the materials they will have to go to the Original Classification Authority to review them and that this could take up to 60 days to complete.  Coombs was surprised that this had not already been done.  And, the government claimed that any documents ordered released would be reviewed for relevancy, they said it could be that one paragraph is relevant out of 100 page document where the remainder will be redacted.  It is evident that discovery will be an ongoing battle as the prosecution seems intent on hiding information from the defense. When I practiced law and the government opened their files and showed everything, I realized there was not much evidence on my side, but when the government hid documents it almost always would mean — they had something that could lose their case.

After arguing the discovery motion for an hour, where he repeatedly criticized the government lawyers for not understanding their responsibilities under the discovery rules, Coombs heightened the argument by filing a motion to dismiss because of the government’s failure to provide discovery.  He argued that he did not know how this could be fixed; comparing it to baking a cake and 45 minutes into the baking realizing you forgot to put in the eggs.

Coombs also sought a Bill of Particulars, seeking more specificity of the facts the government intends to prove.  Coombs specifically wanted to know whether the prosecution alleged that Manning had hacked into the SIPRnet, or stolen a password, or simply used the access he already had. Judge Lind interjected herself, asking an Alice in Wonderland-Queen like question: “Does the government have to prove how he did it?” Coombs responded that this type of specificity is what the Bill of Particulars was designed for, explaining, “I don’t want a trial by ambush.”

It is not only the defense that is not being given information, but the media and public are also being kept in the dark. The government is even hiding court filings from the media. The Reporters Committee for Freedom of the Press sent a letter signed by 46 media outlets urging the military to adopt at least the same level of media access as extended to trials at Guantanamo Bay , amazingly those terrorist trials provide more information to the media than the trial of Private Bradley Manning.

From pretrial abuse through prosecutors not living up to discovery obligations and commanders declaring Manning guilty it seems like the government is trying to send a message — blow the whistle on war crimes and we will incarcerate and torture you, prosecute you in a kangaroo court and put you away for life.  It is almost a “we can do anything we want to you” message to troops that if they let the truth be known, they will be severely punished regardless of the law.

The case is once again reminiscent of the prosecution of Daniel Ellsberg for leaking the Pentagon Papers and faced up to 115 years’ incarceration.  During the trial it came out that the White House had broken into Ellsberg’s psychiatrist’s office and the judge ordered those documents released to the defense.  John Ehrlichman twice met with the judge during the trial and offered him the directorship of the FBI.  The FBI also taped numerous conversations involving Ellsberg and did not disclose this in discovery. After a four month trial, just as the case was going to a jury  the judge dismissed all charges after the government claimed it had lost records of wiretapping against Ellsberg.  Judge Byrne dismissed the case ruling: “The totality of the circumstances . . . offend a sense of justice. The bizarre events have incurably infected the prosecution of this case. ”

The bizarre and unfair behavior of the government in the prosecution of Bradley Manning likewise offends a sense of justice and has incurably infected the possibility of a fair trial and a just result. Short of outright dismissal it is hard to see how justice can be done.

Kevin Zeese is a member of the Bradley Manning Support Network steering committee.

10 thoughts on “Bradley Manning prosecution incurably infected by government misconduct

  1. Our government and military are acting like five and six year old kids that got taddled on,now they’re punishing the one who taddled.Are they not in their fifties and sixties.They can’t be men and pardon him. They say he broke the law.They need to think how many times they broke the law.The people of the united states,the99%,need to tell Obama to step down for the war crimes committed,he is unworthy to be called President.And if the rest of our military were half the soldier Bradley is,they would force Obama and the rest of the government out of office.They took the same oath I did,protect the people,that would be the 99%!

  2. It is sad, but true that our judiciary and the political climate have changed so much since the Ellsberg case, that Bradley Manning is not able to get a fair trial at this time. But in the long sweep of history he will be looked upon as a hero standing up for the noble principles underlying our constitutional framework. Sadly the courts and the current political and military bureaucrats will be seen for the disgrace they have brought to their country’s real long term interests.

  3. I just called the number to to General Dempsey and I talked to a Sgt Palmer and he referred me to 703-697-5151. He told me that all Bradley Manning’s questions or comments was to be directed to that number. I told him that I was instructed that he would do this and it didn’t faze him.

    I called that number and the guy told me that General Dempsey was not at this office and I told him is this another coverup by the military? I told him that I had call 703-697-0900 and they told me to call this number for all of Bradley questions or comments. He OK. I told him the message:

    Tell him:
    1. He needs to retract his declaration of Bradley Manning’s guilt, as it violates the Uniform Code of Military Justice.
    2. The administration has precluded all possibility of a fair trial. They have no choice but to drop the charges against Bradley Manning.
    3. If General Dempsey is unable or unwilling to stand up for Bradley Manning’s rights, then he has a duty to resign.

    I forgot to get his name before we hung up.

  4. Funney someone wrote the Military acting like Kids tatteling on one another , I have said for a verry long time how Imature and Childish the entire Military System of Justice realy is , I am retired Navy and Know only too well the injustice they hand down every day to Enlisted indaviduals they think are Guilty behind there closed door hearings and hand down there sentence before ever even meeting the acused ..Ranking Officers just regularly Tell the prosicuter what is expected of them . And sadly they obey there orders .
    Nurenburg Executed people for obeying those same cercumstances of following there orders given by Superiors , Seems the U S Military is not a fast learner and are still doing the exact same things .Just folowing orders is not a defense , or reason to prosicute the inocent ,.
    However as stated the Militarys attitude is do what they want and Never mind any evadence to please the Generals and Comander in Chief ..
    Manning will get nothing frome the Military except what they want him to get …Sad but the defense is So Weak they do not have a chance in the court of Military law .
    All the Civilian Out Cry is going on Deaf Military Ears Sad is it Not …The Military is so Imature so as to Not care what the Citizens think …Frank Blackstone

  5. The Bradley Manning story reminds me very much like the story of Joseph Padilla. The long period being incarcerated, the torture, the isolation, guilty before charged or put on trial etc. Remmember Padilla was called the “dirty bomber” by John Ashcroft before brougth to the United States and it seems to me that much the same is being directed towards Manning. Never mind the leaks from Wikileaks and their importance, it is about the whistleblowing with the crooks caught with their hands in the cookie jar and being found out. It is for this reason their are too many “secrets.”

  6. Interesting that Cheney and Rumsfeld walk free when they are proven liars and alledged war criminals, definately guilty of crimes against humanity should be considered, while a young man who let the truth be known, faces prison…he is the real hero..if we lived in the Canada of 40 years ago, he would be welcome here.

  7. “…urging the military to adopt at least the same level of media access as extended to trials at Guantanamo Bay , amazingly those terrorist trials provide more information to the media than the trial of Private Bradley Manning!”

    – Suspected “terrorist trials”, please!

    But if you care to dig around the surreal Guantanamo business, then it may help to clarify how our excellent Mr Manning is facing something other than the disinterested pursuit of truth.

    My heart goes out to him, and to all victims of this time of illiberal ideologies.

  8. One of the best reasons why our military and civilians only take oaths to the U.S. Constitution is because an oath to the United States alone would be an oath to any current administration.

    The main point here is that the Constitution is the supreme power, not Obama, Bush, Clinton, nor any other corporate profit-taking thief of our constitutional freedoms.

  9. How much is all of this getting out to the general public in the US and the rest of the world? It is as Bradley said,” The people need to know.”

    If WE THE PEOPLE are “the enemy,” as seen by the military (Bradley is seen as giving aid to the enemy.), then there can be no justice from the military.

    Although, there are some in the military, who understand they have taken an oath to uphold and defend the constitution, and therefore the people. Therein lies some hope and possibility for redemption of the military. Are there not more
    Bradley Mannings out there?

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