The defense filed a motion to dismiss all charges with prejudice against Bradley Manning after concluding the government had violated Manning’s rights by failing to turn over evidence.
After more than an hour of deliberation in court over a motion to compel discovery, defense attorney David Coombs declared that the defense would be filing a motion. The defense decided the way the government was using Brady, which is a rule that mandates the disclosure of evidence. The defense urged the military judge, Col. Denise Lind, to examine the request to compel discovery, the standards cited by the government and what they relied upon to provide evidence thus far needed when reviewing the motion.
Captain Ashden Fein of the prosecution maintained that under the rule they had to disclose only unclassified material and classified material could be prevented from being disclosed. But, this interpretation led Coombs to ask, “How in the world do you ever cite Brady as something that is only required if it would only substantially undercut the verdict?”
Coombs used a cake metaphor to describe how he believed the government had failed. Basically, he said what the government has been doing is baking a cake that takes forty-five minutes to cook and forty minutes into the baking it has now realized they forgot the eggs. The prosecution cannot take out the cake and put the eggs in it now. The government has to start over in order to bake the cake properly.
Essentially, Coombs asserts the government has been operating with the wrong set of rules for disclosure and thus has refused to disclose certain information. The defense’s motion for discovery calls for the disclosure of FOIA requests related to the 2007 Apache helicopter attack incident (“Collateral Murder” video), damage assessment reports assessing how leaked information impacted national security, computer forensic images that could show what software was installed or downloaded and a video from the Quantico marine brig of Manning (which the government claims does not exist).
The defense has been asking for damage assessments since October 2010. The government has made many justifications for why it will not provide the information. And, in some cases, there have been contradictions, such as when they have said they do not know what the defense is looking for but then they say they will look under another rule to see if they have to disclose the evidence.
The government has used the word “alleged” when referring to damage assessments. Coombs charged they are playing “fast and loose with the word ‘completed.’” Damage assessments are assessments that can “go on for years and could be done ten years later.” So, to Coombs, it appears the defense is trying to skirt “discovery obligations” by saying the assessments are not “completed.”
Fein acknowledged in court that assessments exist. He went through one by one noting that the State Department has one but “has not finalized the result of the damage.” The WikiLeaks Task Force under the Central Intelligence Agency (CIA) has completed an assessment but it is classified outside military authority. The Defense Intelligence Agency (DIA) has completed an assessment but it is classified. The Justice Department has, according to the government, not completed an assessment. The Federal Bureau of Investigation (FBI) has completed an assessment and a judicial protective order is being discussed so that it can be disclosed.
But, this isn’t the limit to the problems with trying to compel the disclosure of evidence. The government has told the defense that they are “unaware of any forensic results or reports” in certain agencies. However, they do not bother to look and see if the materials exist or are there. They just write this out with no citation.
The government also contends if a discovery is ordered it will take forty-five to sixty days to coordinate with original classification authorities (OCAs). Coombs could not understand why they would not have been coordinating with OCAs before now so that upon request information could be released. The answer is that the government does not believe some of this information should be disclosed and so it has done nothing to consult stakeholders or OCAs that would need time to disclose the evidence.
The government will now respond to the motion and submit a response to the judge. This kind of motion is typical of a military trial. But, nonetheless, they are critical and the judge has provided an example of how critical it is that evidence be provided in a timely fashion when requested so the defense can prepare.
Judge Lind said to Coombs that the defense “cannot on one hand ask for a speedy trial and then on the other hand have voluminous filings.” This was in regards to reply briefs in relation to motions. But, this could also be said with regards to discovery requests.
Manning is now in the position of having to decide whether he wants to go another fifty, hundred or one hundred and fifty days in pre-trial confinement or if he would like to just move along to trial and deal with the problems that might stem from not having certain evidence. That is, at least, why Coombs is filing a motion to dismiss charges.
Finally, a bill of particulars motion yielded further confirmation in court today that the “enemy” is al Qaeda, al Qaeda in the Arabian Peninsula (AQAP) and other affiliated terror groups. The way he indirectly provided intelligence to the “enemy” was by providing information to WikiLeaks. These were the answers the government provided to the defense.
This makes knowing the contents of damage assessment reports even more necessary to the defense. Manning is accused of aiding terrorists. And, that is severe charge that most people would agree every soldier should have an unimpeded ability to challenge.
*For more on the Bradley Manning motion hearing, here’s Firedoglake’s live blog.