Incompetence or deception? Two years of evasion by the prosecution

The government maintains extreme secrecy in prosecuting Bradley Manning, but David Coombs publishes defense motions in the interest of transparency. We look at what those motions portend for this week’s motion hearing in Fort Meade.

By Nathan Fuller, Bradley Manning Support Network. June 4, 2012.

Bradley Manning at Fort Meade, MD.

There is more secrecy surrounding the U.S. military’s ongoing prosecution of PFC Bradley Manning than the much-criticized Guantanamo Bay trials.. The hearings aren’t closed-door sessions, but more insidiously, they include no public records, no transcripts, and no public motions from the government. They provide so little media access that the Center for Constitutional Rights and several media organizations are suing the military for more transparency. The lawsuit follows protests from a coalition of media figures who say that they have been blocked from accessing even basic information about the trial.

To counter this extreme secrecy, Bradley’s attorney David Coombs has been publishing defense motions on his blog, so the public and members of the media can access these documents to better understand and accurately report on Bradley’s trial. The government redacts even these motions, but they still provide a window into what will come of the hearings that the military wouldn’t otherwise provide.

Coombs posted five motions for Bradley’s next courtroom appearance, the motion hearing at Ft. Meade from June 6-8, giving us a glimpse at what to expect. The first motion denounces the prosecution’s handling of evidence, concealing obviously relevant material to maintain an upper hand over the defense. The Guardian’s Ed Pilkington summarized the motion earlier this week:

“…the government has failed to disclose key evidence that could help Manning defend himself against the charges.

Almost two years after Manning was arrested, the military has not yet completed a search even of its own files to see if there is any material beneficial to the defence – as it is legally obliged to do.”

Coombs requests the government turn over all internal damage assessments related to PFC Manning and WikiLeaks, as it should have done long ago. Two years into the case and just a few short months before the court martial, the defense still has no access to these essential pieces of evidence. Coombs concludes, emphasizing the urgency of this request:

“The trial is currently scheduled to begin on 2l September 2012. The Defense believes that timely access to this information should begin now. The Government has had over two years to cull through the charged information and review documents from the various named agencies. During this time, the Government has been permitted to select which information it believes should be used for merits and which for sentencing. The Defense has not had equal access to this same information, or the ability to factor this information into the defense’s theory on the merits or any possible sentencing case. The requested information is material to the preparation of the defense, and should be turned over immediately. To allow the Government to restrict the Defense’s access to this information is to provide the Government with an unfair tactical advantage that will likely prejudice PFC Manning’s right to a fair trial.”

In the second motion, Coombs motions to dismiss charges alleging Bradley exceeding his computer authorization, because the government has failed to explain how he exceeded his access. The prosecution cedes that Bradley was authorized to use his computer and access the files he’s accused of releasing, and incorrectly argues that the release amounts to “exceeding” that access. Coombs summarizes the basic conflict:

“The Government has not alleged that PFC Manning used his access to obtain information that he was not entitled to obtain. On the contrary, the Government will concede that PFC Manning was authorized to obtain each and every piece of information that he allegedly accessed. Similarly, the Government has not alleged that PFC Manning altered any of the information that he allegedly accessed. Instead, the Government alleges that because PFC Manning had an improper purpose in accessing the information that he had full permission to access, he has exceeded authorized access within the meaning of the statute. This is an incorrect reading of the term “exceeds authorized access” – and one which conflicts with the plain meaning of the statute.”

The third motion calls on military judge Denise Lind to instruct the government regarding “lesser included offenses,” or LIO. Coombs argues that Bradley’s charges can’t be multiplied by lesser charges that are already included in other charges. Bradley shouldn’t be charged with illegally obtaining the information if he’s already charged with illegally transmitting the information – a charge that includes within it the illegal obtainment.

Coombs moves in the fourth motion to dismiss specifications that use two phrases that are unconstitutionally vague, in violation of the Due Process Clause of the Constitution. The prosecution uses the phrases “relating to the national defense” and “to the Injury of the United States or to the Advantage of Any Foreign Nation” to describe the information PFC Manning is alleged to have released. Coombs argues these are so sweepingly broad that they fail to detail exactly what information they include.

Finally, in the fifth motion, Coombs requests that the prosecution specify which documents constitute Brady disclosures – information that is material to either the guilt or innocence, or to the level of punishment a defendant might receive. The government provided 6,905 pages of discovery but only 12 pages of Brady material. Coombs implies the prosecution is burying the remainder of the Brady material to gain a tactical advantage. The prosecution, he writes, already has the upper hand in practical terms, with four full time lawyers, one part time lawyer, two legal administrators, and “an unknown amount of paralegal support.” All of these lawyers and advisers are in the same geographical location, easing the process of compiling their arguments. The defense, which is funded entirely by the grassroots Bradley Manning Support Network, has just Coombs, one legal administrator, Army JAG Capt. Tooman, and the newly-added Army JAG Major Hurley – all of which are spread throughout the U.S. Furthermore, Bradley is usually confined at Fort Leavenworth, Kansas, with limited access to his lawyer and no access to the discovery information that is only viewable in Rhode Island and Maryland, where classified information is shown. If the prosecution would make its Brady material known, the defense could better prepare for legal arguments to come.

These motions were filed earlier this month, so the government responded out of court. The prosecution refuses to publish its responses online, but Coombs has posted his replies to those responses on his blog. There he reiterates the urgency of producing the essential damage assessments – of which he says the government is withholding 250,000 pages – and the absurdity of the prosecution’s arguments:

Coombs paints an almost Kafkaesque world in which the military authorities play word games in order to keep deflecting his requests for disclosure.

Sometimes the government says that the defense is being “too narrow” in its requests, at other times “too broad”.

Coombs comments sarcastically: “The defence believes that no defence discovery request would ever be ‘just right’ to satisfy Goldilocks.”

We expect Judge Lind to rule on these motions next week. If past hearings are any guide, we can guess that the court will rule in favor of the prosecution – nearly all of the defense’s motions have been denied thus far, including even the motion to dismiss the unprecedentedly extreme “aiding the enemy” charge that will carry dangerous civil liberties implications for years to come. But now that we’ve passed Bradley’s two-year anniversary in jail, and as it becomes widely known that the prosecution has failed to live up to its obligations in providing the defense with the required discovery material, one would think the court would act to save face in what look increasingly like an unjust, secretive trial in which Bradley Manning won’t get a fair shake.

These pretrial hearings are extremely important in ordaining what can be argued and what evidence will emerge in Bradley’s court martial this September (or later, if the prosecution gets its way). David Coombs has very clearly laid out legal reasoning for dismissing vague specifications, consolidating unfairly multiplied charges, and demanding access to evidence the government has worked meticulously to conceal. Next week, it’ll be up to Judge Lind to take those arguments seriously.

5 thoughts on “Incompetence or deception? Two years of evasion by the prosecution

  1. Many thanks to Nathan Fuller and all of the reporters and recorders and bloggers who have been working over the past two years to get out word of what is happening in the prosecution and defense of Bradley Manning. I’ve written to the NY Times and its public editor urging that the “paper of record” should be covering the hearings, preferably with a reporter who knows something about procedure in the military justice system. Since this series of wars began, there has been a great need for unembedded reporters and unembedded media. Now the secrecy of the court martial itself is driving the story. The legal action by CCR and others is right on point. A secret prosecution can’t be part of a fair trial.

    • I am 35 yrs old. Not since Sept 11th have I been so disgusted with my country’s actions. I weep for what used to be “The Land of the Free, Home of the Brave”. We now live in a country governed by fear and terrorism at the hand of our own officials. Maybe it’s always been that way? But the actions of this country in the past decade have been so beyond blatant, that I am shocked beyond belief. We’re supposed to stand up for those who are persecuted, that’s what we’re taught as very small children. The US government has been very clear in it’s actions, if someone is a hero for truth, they will be prosecuted, for no other reason than to save face. I am a very sad American..

  2. In this disgraceful present time of Military/Industrial Complex , and Bilderburger
    control of Washington, it is going to be very hard
    for PFC Manning to get a fair trial. His brave display of conscience-over-dogma deserves a medal!

  3. Thank you so much to everyone working towards getting Bradley Manning out of this horrible unjust system. He is a hero that -if anything- has given the USA an opportunity to now stop its own war crimes and start the process of diplomatic healing. We know that Manning has been called guilty by the President, tortured and denied justice for his alleged Brave acts. FREE BRADLEY MANNING!

  4. Bradley Manning,his actions say hero,the government and military well their actions only say one thing corrupt.

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