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.



21 Comments

Is there any truth to the rumor that Lewis Carroll and Franz Kafka are serving as consultants for the prosecution?
I don’t think the defense would stand a good chance even in normal court if the government wanted to claim “national security privilege”, much lower chance in military court
First the verdict then the trial.
That is a rhetorical question, right?
Mr. House just did a fine job on the DR Show.
Yep, sums it nicely;)
I think that emptywheel has diaried extensively on this failure in civilian courts.
It’s all Guberment Kabuki!! They want to destroy Mr Manning and don’t care that they are prostituting the Constitution and the Law of the Land!!
Does the fact that the Commander-in-Chief has already declared Manning guilty work in his favor at all? That seems to be as prejudicial as not turning over evidence.
“Fair trial” in the military? I don’t think so.
Let me get this straight.
WHISTLEBLOWERS are criminals, but BANKSTERS(WALL STREET) who crashed our economy and robbed our pensions and home prices WILL NOT BE INVESTIGATED OR PROSECUTED. They are invited to the WHITE HOUSE for STATE DINNERS.
Wonder why???$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
The Military has totally embarrassed itself due to Administration push. Manning’s trial should be abolished and he should be set free with time served. The military and government cannot provide proof. It’s a done deal in any court. No evidence, no trial. End of story.
Thanks for keeping us informed Kevin. I agree with Peasant Party, Manning should be set free for time served.
The judge should dismiss the case. The prosecution has had ample time to turn over evidence, yet failed to do so; plus the fact they are so stupid it seems they can’t even apply the proper discovery rules.
Yes, you’ve got it. You can be Underassistant Secretary of Commerce, unless, of course, you’d prefer a position in the Department of Justice.
I’ll have what you all are having.
Link to the show
http://www.youtube.com/watch?v=bdTXLxhkx2c
They are the terrorists that should be jailed, waterboarded and …
Wouldn’t it be nice if the people of this country stood up and told the court, the congress, and the presididn’t that the government cannot on one hand crush little people with the “law,” while on the other, blatantly ignore, enable, and propogate the criminal activity of the corporate/government/military cabal.
I’ve said it once and I’ll say it again: if dissent is the highest form of patriotism, conviction shopping is the highest form of treason.
Obviously even if Manning is guilty of leaking the information, his intent was not to help Al Qaeda. The intent was to expose the crimes of the government. He wanted make the government transparent and show the awful things that the government was doing to the American people. I hope the defense can make that argument.