UPDATE – 2:55 PM EST I’ll have more over the next 24 hours on what happened today. I’ve noted most of the significant developments. And I have to get to RT‘s studio in DC for an appearance on “The Alyona Show.” I will be talking about Obama’s executive order on Iran and Syria in the context of US state surveillance. And maybe I will work in a mention of what I was doing here today just to give this hearing some coverage.
UPDATE – 2:50 PM EST State Department wants judge to reconsider ruling on producing a damage assessment for defense. That was deliberated. After Fein established the State Department would provide a report on why the damage assessment should not be discoverable, Coombs got up to talk about Ambassador Kennedy (presumably Ambassador Laura E. Kennedy). He mentioned in November 2010 the department established a working group. Access to netcentric diplomacy database from SIPRnet was suspended. A mitigation team was setup to address information issues, etc. Kennedy convened briefings twice for the House and Senate days after the cable release. And, Kennedy appeared before the House Intelligence Committee. Then Reuters released a story a month later that indicated the State Department had exaggerated “harm to assist the Justice Deparment’s effort to go after WikiLeaks.”
Coombs suggested Kennedy be brought in for cross-examination to help straighten out what State Department did in terms of investigation and what material should turn over.
UPDATE – 2:43 PM EST This is what Judge Lind said on the request for access to court filings. She acknowledged “common law” right to access but said it is not absolute. She invoked Nixon v. Time Warner and then she said FOIA is setup by Congress so press can use that. She added that court is not a “release authority” for filings. “Requests for access should be directed to appropriate records custodian.”
CCR lawsuit is definitely imminent.
UPDATE – 2:35 PM EST Coombs says defense received twelve pages of “unclassified discovery.” In the material, everyone of the agencies said “no harm” was caused by the leaks. Coombs says they found there was nothing that affected the agency. The documents were from 2010.
UPDATE – 2:32 PM EST Motion to dismiss all charges was litigated. Coombs made clear that the defense finds the government did not understand disclosure rules. It was only looking for “game-changing” evidence. This would mean the government likely withheld material it did not think would make a difference in the outcome of the case. They also had no idea how classified system of discovery worked and believed classified information did not fall under general military justice discovery rules.
The “only appropriate remedy” is dismissal of all charges with prejudice because this search for information improperly has gone on for two years now. Government agrees there is more information out there that could be handed over to the defense. To have them go back and look again now properly could mean Manning would be in prison for 2 more years. Speedy trial issues come up.
UPDATE – 2:30 PM EST A motion to compel discovery of grand jury testimony is litigated. Defense lawyer David Coombs describes how the government is narrowly interpreting their responsibility. They are saying this material is not within “military control.” The government has allegedly been given the access to review sworn statements in this grand jury empaneled in the East District of Virginia (probably the Alexandria-based WikiLeaks grand jury). It is the defense’s position that the government cannot have access to this material and simultaneously block the defense from having access.
“If in fact the government could have full access to other agencies for the benefit of its case and developing its trial strategy and techniques,” said Coombs, “but at the same time leave any document that it believes may be beneficial to the defense,” then this would defy discovery rules and articles of fair play.
Judge Lind asked how Coombs was sure there were documents from the grand jury to be produced. He said either there are transcripts or audio tapes that could be of use to the defense.
UPDATE - 11:40 AM EST Brief recess. The court has mostly entered into the record the outcome of matters that were handled privately by the prosecution, the defense and the judge.
The biggest news is that the Judge Col. Denise Lind has decided to force the government to provide damage assessment reports from the State Department, Information Review Task Force (run by former Secretary of Defense Robert Gates) and the WikiLeaks Task Force (run by former CIA director Leon Panetta).
The judge also has ruled that the press should not be granted any additional access to court filings. She asserts the proceedings have “remained open thus far” and press have a Freedom of Information Act process available to request documents. She invoked Nixon v. Warner, a Watergate case where press wanted to obtain the Watergate tapes but a judge denied access. She added the people requesting access - Reporters Committee for Freedom of the Press (RCFP) and Center for Constitutional Rights (CCR), etc – are not “parties” to the proceedings and have no “maximum freedom of press” under First Amendment.
…Now back in session. More updates soon…
Court will once again be in session at Fort Meade in Maryland as the long and drawn-out pre-trial process for the soldier accused of releasing classified information to WikiLeaks resumes. The hearing is expected to take three days, with the bulk of deliberations happening on the first two days.
Pfc. Bradley Manning does not have a trial date yet. He has now been in pre-trial confinement for seven hundred days.
The process that is playing out at Fort Meade is an Article 39 session. Under the Uniform Code of Military Justice (UCMJ), any time after charges have been referred for trial a military judge may call the court into session for the hearing of motions raising “defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty.”
Judge Col. Denise Lind is the presiding judge. Business on the agenda includes three motions that call for the dismissal of charges. One motion is the motion to dismiss all charges with prejudice, which the defense filed during the last motion hearing in March. Other motions include a motion to dismiss the “aiding the enemy” charge, which the defense says lacks any mention of mental intent; a motion to dismiss Specification 1 of Charge II, a motion to dismiss and or consolidate charges as there is an “unreasonable multiplication of charges” and motions on compelling discovery.
The Specification 1 of Charge II is a charge that alleges Manning “wrongfully and wantonly caused to be published on the Internet intelligence belonging to the United States government, having knowledge that intelligence published on the Internet is accessible to the enemy.” The defense considers this charge to be one that charges the same conduct as the “aiding the enemy” charge. But, as a legal matter expert explains, the government contends they are referring to “two separate and distinct crimes.” The government also says on the issue of multiplication of charges that they are charging specific acts like Congress intended.
The government has a motion that they have filed requesting discussion of harm not enter into the court martial process until sentencing. They assert that harm does not need to be proven to prosecute the charges against Manning. However, of course, the defense finds discussion of harm necessary to defend Manning.
What the government appears to be doing is creating some insurance. Already the defense is not allowed to get depositions from original classification authorities (OCAs) that reviewed the documents Manning was alleged to have released and produced reports on what damage the publication of the contents caused or could cause. The government has been withholding evidence that the defense has been seeking (which is why the defense has filed a motion to dismiss all charges with prejudice). So, this motion just protects the hysteria around the leaks, which the government needs to not have punctured with reality or else it becomes difficult to give Manning the maximum sentence.
Finally, I can report on this motion from the government because I heard this at a briefing. The motion is not publicly available like the defense’s motions.
I covered the effort by a few groups and media organizations to make court filings accessible to the press. An attorney with the Center for Constitutional Rights has requested the opportunity to address the court and talk about why records should be made public. However, it is not clear whether he will be granted an opportunity to address the court because, technically, he is not a party to the proceedings.
Secret conferencing is happening from 9 am until 10 am. This is deliberation over matters by the prosecution, defense and judge, many of which could be addressed in open court but is not and has not. The Center for Constitutional Rights has challenged this conduct by the military court.
I am at Fort Meade all week for the proceedings. I will be posting updates when court is not in session. You can also follow me for quick updates at @kgosztola. I expect the hearing today to run until the middle of the afternoon.
Kevin Gosztola is the co-author of the new book, “Truth and Consequences: The US vs. Bradley Manning.” He will be doing an FDL Book Salon on April 28 on the recently published book.