Day 1 of Bradley Manning’s pre-trial hearing: In-depth notes from the Art. 32 courtroom
December 16, 2011: Bradley Manning Support Network sent representatives into the courtroom to take notes for the public on what happened at Bradley Manning’s hearing. No recording devices (like cell phones or audio recorders) were allowed, so all these notes are hand-written and as accurate as written notes and memory allow. Notes were taken by Rainey Reitman, any omissions or inaccuracies are entirely her fault and not reflective of the Support Network positions. Please send corrections to [email protected]
Getting into the Courtroom
Manning’s pretrial hearing (called the Article 32) began on December 16, 2011 at Fort Meade in Maryland. The weather was chilly and grey, but lightened as the day progressed. Members of the public and media who wished to attend the trial were processed through the main visitors entrance. Fort Meade prepared for an enormous turnout — designating a soccer-field sized parking lot for trial attendees and setting up an overflow spectator theater with video feed from the trial that could hold 100 people.
I was one of the first dozen individuals from the public to arrive in the visitor processing area, reaching the courthouse shortly after 7:30 AM. The courthouse was cordoned off with metal gating with guards at possible entrances. Individuals who wished to go in were told to leave electronic devices in their cars and then sent to a heated trailer to wait on folding chairs for security screening. Everyone who entered the facility went through a metal detector and had purses and bags individually searched. Of those in the trailer seeking entrance, the majority appeared to be Manning supporters coming from far and wide to attend — Toronto, New York, Boston, San Francisco.
Two of Julian Assange’s lawyers (see last page of notes) were also present, as was a citizen journalist from WLCentral.org.
Twenty members of the public were eventually processed and held in a small outdoor enclosure just outside the court. After perhaps twenty minutes, we were allowed entrance and settled quietly into the back of the room.
The Article 32
Bradley Manning sat on the left side of the courtroom, his back to the public viewers. He spoke with quiet animation to the military-appointed attorney by his side, though his words were inaudible to us. At 8:55 AM, Manning’s second military-appointed attorney arrived with David Coombs, his civilian attorney and the leader of his defense team. In the first row of seats behind Manning sat the rest of the legal defense team, including a computer forensics expert and David Coombs’ wife.
There were 9 members of the press present (7 taking notes and 2 sketch artists). It is possible additional members of the media were present but not clearly distinguishable.
At 9:04 AM, Lt Colonel Paul Almanza, the investigating officer presiding over the Article 32 hearing, entered the room. He moved quickly and carried a large sheaf of documents.
The hearing began with Almanza reading carefully from notes regarding the appropriate conduct of public attendees. He reiterated that cellular phones and interruptions were forbidden in order
“to protect the dignity and decorum of these proceedings” and warned that failure to follow these rules would result in an individual being removed from the courtroom.
Almanza spoke softly and carefully, displaying no sign of self-consciousness in these early moments of the proceeding. His eyes moved from the paper in his hands to Manning and back, not flickering over to the spectators. He began his interactions with the defense team by establishing that Manning had been appropriately notified of the pretrial hearing on November 28, 2011, and that the defense counsel had offered witnesses and evidence to include in the hearing.
Almanza then asked Manning whether he had the charge sheet in front of him. Manning, in his first spoken public statement since his arrest 18 months earlier, said “Yes sir, I do.”
Manning was then asked a series of other questions about whether he understood his rights and other administrative matters, to which Manning offered affirmative, respectful responses. His voice was unchanged except when questioned about his legal team and whether he was satisfied with his current legal representation. His answer again was “Yes, sir,” but here his voice changed in tone, adding emphasis and depth.
Almanza reviewed Manning’s rights, including his right to be present in the court throughout the length of the proceedings, the right to cross examine witnesses, the right to provide information as part of the proceedings, the right to legal counsel, the right to call witnesses for the investigating officer to examine, and the right to be silent or to speak in either sworn or unsworn statements. Unsurprisingly, any statements Manning makes in the pretrial can be used against him in the trial.
At this point, Almanza reviewed his own status in the case. A Department of Justice employee, he admitted to seeing some media coverage of the Manning case prior to being detailed to the position. The government did not have additional questions about this matter, but Coombs had a number.
Coombs rose for every statement he made in the court, and for questioning the investigating officer he actually stepped out from behind the table and approached the investigating officer. Coombs was particularly interested in learning how the convening authority had become aware of Almanza’s name. Almanza was unable to answer that question, stating that he’d received a call in August 2010.
Coombs also questioned whether Almanza had taken a course with Coombs in school (Almanza was not sure). He also questioned Almanza’s experience. Almanza had tried 6 court martials, in which all defendants plead guilty, one of which was a mixed plea. Almanza had prosecuted about 20 cases from 2002 to 2004.
Upon questioning by Coombs, Almanza also acknowledged that the Department of Justice (his employers) has an ongoing investigation around WikiLeaks. Almanza asserted that he hadn’t spoken to anyone at the Department of Justice about the investigation.
After the initial round of questioning, Coombs became more aggressive in his questioning of the investigating office. Oddly, as the questions became more probing, Almanza became more soft spoken and slightly less organized in his responses, correcting himself several times. Coombs was particularly keen on the exact dates on which Almanza was detailed to investigating officer of the Manning case, and when he left the DOJ. Almanza admitted that he was detailed on 12/2 but continued to work in his civilian position at the Department of Justice until 12/12, but stated that he did no more work for the DOJ after that. (NB: this issue comes up later (see below), when Coombs states that the defense received an email from Almanza after 12/12 from Almanza’s civilian Department of Justice email account, thus indicated Almanza was still “wearing the hat” of the DOJ.)
Coombs also questioned what impressions Almanza had formed about the case before stepping in as investigating officer. Almanza admitted he had read articles about the case, but that after he had learned he would be detailed to the case had avoided reading articles whose headlines indicated they were about Manning. Almanza said that, when he heard about he case, his initial impression was that if the allegations were true, this was a serious matter. But he insisted that he did not form an opinion based on what he read in the paper because the paper isn’t always accurate and isn’t always the full story.
At the point, Coombs outlined his full argument against Almanza and asked Almanza to recuse himself from the trial. Speaking eloquently, with broad gestures and stepping back and forth across the court room, Coombs argued that there were four primary reasons that Almanza must recuse himself from the proceedings:
- Almanza’s position at the Department of Justice, which has an open investigation into the matter of Wikileaks, could bias him in the proceedings. As a career prosecutor at the Department of Justice, a reasonable person could see that Almanza might be biased in the case against Manning. Additionally, the Department of Justice has not ruled out taking over the trial of Bradley Manning altogether. And furthermore, Almanza had denied Coombs’ request to access information about the Department of Justice’s investigation into Wikileaks.
- Almanza’s one-sided approval of witnesses. The government submitted a list of 20 people to be called as witnesses. It was merely a list – no explanation provided for why those individuals were called. Every one of those witnesses was approved by Almanza. The defense called 48 witnesses, providing a multi-page document explaining why each witness was important to the case. Of those, 10 were in common with the government and were approved. Of the remaining 38 witnesses called by the defense, only 2 were approved. NB: statements made by Almanza later in the proceedings seemed to indicate another 2 were later approved, after the original request was made and upon receiving additional legal counsel.
- Refusal to close the hearing during certain sensitive portions. Coombs requested that the hearing be closed to the public during a limited portion of the proceeding while discussing information that he felt could damage his client’s ability to receive a fair trial. Almanza refused.
- Accepting unsworn statements against objections. Coombs explained that the government had delayed the hearing again and again in order to allow for a review of certain classified information by two witnesses who could speak to how the information was classified and the potential harm it may have caused. Coombs felt it was extraordinarily important that the defense be offered the opportunity to question these witnesses in person during the proceedings. But Almanza rejected the request, allowing these two witnesses to provide unsworn statements as part of the hearing. Coombs cited RCM 405, stating that unsworn statements were inadmissible as evidence over objections.
Here Coombs spoke more broadly and passionately about the case, noting that Manning was facing the death sentence over these issues. He urged the court to let him cross examine these witnesses over the appropriate classification of documents, noting that this was of primary importance to the trial because this was the real issue. Coombs asked “Where is the damage? Where is the harm?” Without the opportunity to cross-examine these witnesses, the public and the investigating officer would never know.
Concluding his arguments, Coombs handed a rather thick typed sheaf of papers to the prosecution and Almanza, a motion asking that Almanza be removed. He sat down again, sipping water.
Almanza asked if the prosecution would like to respond, and the prosecution said it would first need to review the documents. Around 10 AM, a recess was called.
At 11:32 AM the court reconvened, Bradley Manning again escorted to his seat flanked by attorneys who towered above him. As before, he did not turn to face the audience at any point; the audience was able to catch a glimpse of his face only as he was brought in and out of the court room.
As the court reconvened, the defense asked that the investigating officer seek contact the Chief Trial Advisor for a recommendation on the issue.
The government was then allowed to question the investigating officer. The questions were simple and the answers brief. Had Almanza reviewed any material about Bradley Manning or WikiLeaks in his position at the Department of Justice? No. Had he conversed with anyone at the Department of Justice about Manning or WikiLeaks? No. Had he followed procedures in agreeing upon the 15 witnesses, considering the difficulty or expense of bringing them to the proceedings and what they would add? Yes. Had he prepared a written finding of his witness list? Yes. Had he consulted with a legal advisor on this matter? Yes. Did he consult with a legal advisor on his interpretation of the rules regarding unsworn witnesses and objections? Yes.
The government created several themes in their questioning and later arguments for keeping Almanza as investigating officer: that procedures were followed, that written findings were created that could be reviewed by judge or appellate court in the future, that legal advise was sought on important matters.
The government asked Almanza whether he felt he could serve as an unbiased judge in this matter, to which Almanza said he could. The government summarized the answers that Amanza had provided and finished by asserting that Almanza could continue to serve as an unbiased and impartial judge.
At this point, Almanza hesitated, then corrected the prosecuting attorney, stating that the standard was not whether he was unbiased but whether a reasonable person, knowing all the facts, could believe that he was not likely to be biased. The prosecution parroted Almanza’s language back to him, stating that the prosecution believed a reasonable person would find Almanza to be free of any potential bias.
David Coombs was quick to argue the issue of perceived bias, noting that Almanza’s interpretation of the standard (“that a reasonable person, knowing all the facts, would believe”) and asserted that no reasonable person would believe that someone working for the Department of Justice would be free of the specter of bias. In fact, Coombs noted that the defense had received emails from Almanza from the Department of Justice email address even after 12/12. Almanza countered that the Department of Justice was large and he worked in an area focusing on child exploitation and obscenity, not anything to do with WikiLeaks.
Coombs responded that the standard did not take into account whether the Department of Justice was large, merely whether or not a reasonable person could believe, knowing the facts, that Almanza could be biased. Coombs then pointed out that the media was already questioning the possibility of impartiality.
He noted that the defense had received emails from Almanza from the Department of Justice email address on 12/12 and after, indicating the Almanza was still wearing the hat of the DOJ.
Almanza also noted that he was not a trial attorney currently, focusing on policy and legislation in his current position. He restated his concerns about closing the trial for “very limited pieces of information that could taint my client’s ability to get a fair trial.” And Coombs noted again that the case “rises and falls” on whether information is correctly classified.
Coombs was passionate in his defense, perhaps indicating that his courtroom style would be expansive, well-organized arguments that constantly related the trial of Bradley Manning to larger issues of government secrecy. At one point, he turned and spoke directly to the courtroom behind him. Almanza quickly interrupted, “Mr. Coombs, who are you addressing?”
“The public,” replied Coombs, “Because this is a public trial.”
After this mild reproof, Coombs kept his eyes forward in addressing Almanza. The court broke for another recess, Coombs ending by urging Almanza to recuse himself and mentioning that he would in fact be asking
Defense Appellate Division Army Court of Criminal Appeals (ACCA) to review the case. He asked Almanza to stay the hearing until Defense Appellate Division ACCA could make a decision.
We were recessed again, and would not have another lengthy speech from Coombs today.
1:38 PM We reconvened briefly. The rules for behavior in the court were reviewed. Then Almanza dove right in.
He explained that the Chief Trial Judge wasn’t able to be reached. They defense team urged Almanza to hold off on deciding whether to recuse himself until speaking with the Chief Trial Judge.
Almanza then denied the request to recuse himself. He stated that he would prepare a written documentation of his decision and send that the
Defense Appellate Division ACCA along with a full transcript of the morning’s proceedings. The prosecution had to call for the full transcript to be prepared (apparently only a summarized transcript had been previously called for), and that the verbatim transcript would then go to the Defense Appellate Division for their consideration. This transcript wasn’t going to be available to the public, unfortunately, only to Defense Appellate Divisin ACCA and only for the portion of the proceedings up until this point.
We recessed. At 2:17 PM, David Coombs stated there would be at least 10 more minutes of recess. At 2:47 PM, Coombs again said there would be at least 10 more minutes of recess.
At 3:06 PM, we reconvened very briefly for Almanza to state that we would not recuse himself and summarized his earlier points: that while he was a deputy chief of the Department of Justice, he worked in child exploitation and obscenity and not on matters related to WikiLeaks; that he had spoken to his legal advisor and added witnesses based on a more-informed understanding of the legal rules; that he felt a reasonable person, knowing all the facts, would not believe he was biased. He concluded that a verbatim transcript was being prepared for the writ only.
At 3:25 PM, we reconvened for the last time that day. Almanza may have been a bit flustered; he left his charge sheet in the judge’s quarters and had to go get it. Almanza reiterated that his sole function was to serve as an impartial judge in these proceeding. He reminded Manning of his rights, and asked Manning if he would like the charges read aloud.
As the hearing drew to a close, Almanza brought up the issue of classified documents. He stated that certain classified information might be brought up in the course of the hearing and that a determination would need to be made about whether to close the hearing at that time. He specifically mentioned, but did not elaborate upon, “three protective orders.”
The proceedings ended. Al
amanza asked for the hearing to begin again on Saturday at 10 AM. Individuals who sat through many long hours of recess seemed reluctant to leave, lingering in the pews. One Manning supporter, a veteran named Nate Goldschlag, shouted as he left the court room “You’re a hero.” Manning didn’t turn around but the others in the room shot nervous looks to the military police, who did not visibly react. One of the MPs followed the man outside and asked him not to return the next day. See video describing incident: https://www.youtube.com/watch?v=ZYj5Bi_Kg_Q
Other things to note: Two lawyers for Assange were in attendance. At some point during the proceeding, they filed a writ for extraordinary relief or access to the proceedings. The document is here at the Center for Constitutional Rights (HT Kevin Gosztola for finding the writ online).
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