Two witnesses called to testify have been deemed “unavailable” to give testimony by the presiding investigative officer of Pfc. Bradley Manning’s pre-trial hearing after invoking their rights under Article 31 of the US Code of Military Justice.

Both SFC Paul Adkins and WO-1 Kyle J. Balonek refused to give testimony. They did so under advice of legal counsel. They were able to escape providing information to the court despite the fact that David Coombs, a member of the defense, wholly objected and read off codes of military justice that are supposed to be followed during the hearing, which should have prevented the witnesses from invoking their rights under Article 31.

Article 31 basically states, “No person subject to this charge may compel any person to incriminate himself or to answer any questions the answer to which may tend to incriminate him.” But, Coombs contended that Adkins could not invoke his rights because he is not involved in any criminal matters and he moved to have the IO grant Adkins immunity and then order him to testify.

Immediately after Adkins was allowed to leave the court without testifying, Balonek was called to testify over the phone. He, too, invoked his Article 31 rights, which Coombs objected to for reasons similar to why he objected to Adkins invoking his rights.

Neither objection was seen as reasonable by Almanza, who said after both objections: “I find that this witness is unavailable.”

Adkins’ significance in the case is that he was the highest-ranking officer who set the tone for what was acceptable and unacceptable in Manning’s unit. He also is one of the officers that was disciplined by the army for failures that put Manning in a position to leak information to WikiLeaks.

He received an email in April 2010 from Manning saying he was suffering from gender identity disorder, which included a picture of him dressed up as a woman. Adkins kept this to himself, which led Cpt. Steven Lim, a top intelligence officer in Manning’s unit, to counsel Adkins in writing in June 2010 for not informing him of Manning’s problems.

Lim was “shocked” Adkins didn’t share this information with the chain of command. Lim also was one of fifteen officers disciplined after an investigation into what happened with Manning. Lim was admonished in a letter marked March 3, 2011, which indicated Lim should have been aware that Adkins usurped his responsibilities when dealing with enlisted soldiers.

Lim found out Adkins didn’t share this information because he thought he was trying to handle it himself plus he thought the medical system would take its course. But, Lim admitted the right answer would have been to give the information to someone whose paygrade could make a decision about disciplining Manning.

Adkins conducted a counseling session on December 12, 2009, that led to an incident where Manning became emotional and shoved a chair and began yelling, “I don’t think so.” This was not acceptable behavior. Adkins wrote several memos on Manning’s emotional problems but they were not shared until after Manning’s arrest.

Furthermore, Coombs questioned Lim on Adkins’ training. Apparently in one hour, after 100 slides, Adkins was considered trained to keep the SCIF secure.

Process was violated. Manning should have been immediate removed from the secured compartmentalized information facility (SCIF) where he was working as an analyst and he should have been “derogged” meaning derogatory information should have been shared that would likely have led to Manning’s security clearance being revoked.

It is clear what is able to be brought out in court on Adkins’ role in what happened with Manning is critical to the case. What is less clear is how Balonek factors into the possible outcome. His name had not come up before today, though after he refused to testify his name was mentioned by Sgt. Chad Madaras, who served side-by-side with Manning as an analyst. Madaras testified Balonek would ask for support in finding Shi’a military targets in Iraq.

The defense has not called any witnesses yet. The hearing is still in the portion where the government calls witnesses. Because the defense has only had a handful of witnesses approved by Almanza, the prosecution witnesses are critical. It is in the defense’s interest to fight any prosecution witness’s efforts to invoke their Article 31 rights, especially if they are being invoked on dubious grounds.

The prosecution has up to this point called witnesses that can attest to the fact that the importance of information security is taught to junior intelligence analysts. The prosecution outlines the different aspects of the systems analysts work on in the SCIF, like SIPRnet or the Combined Data Network Exchange (CDNE), thoroughly and sometimes even extraneously. They ask whether any soldiers were ever to search for WikiLeaks, Julian Assange, Reykjavik, detainee assessment reports, CYDNE Iraq report, CYDNE Afghanistan reports, etc. The line of questioning is to show that under no circumstances should Manning have thought it was acceptable to take classified information and disclose it or put it on his personal computer.

The defense usually has tried to focus on the behavioral health issues and emotional problems Manning has had. Yet, when prosecution witnesses have been asked to comment on incidents they saw involving Manning, it has become common for the prosecution to object with the line of questioning. They claim behavioral health professionals will be taking the stand and testify on this aspect. And each time Almanza has gone along with the objections refusing to give Coombs latitude for questioning.