UPDATE – 4:10 PM Here is a full report on the arguments over the “aiding the enemy” charge. Court is in recess until the hearing concludes tomorrow morning.
UPDATE – 12:52 PM Defense argued motion to dismiss Specification 1 of Charge II 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 argument was this was a “created offense.” What is being charged should be charged under Article 104 – the “aiding the enemy” charge. It was not Congress’ intent to use this article – Article 134 in the UCMJ – to go after those accused of “aiding the enemy.”
Government disputed what was argued here. They said two charges have different intents. One charges Manning for knowingly releasing and the other charges him for being reckless, basically.
UPDATE – 12:46 PM Government stated its position on the unreasonable multiplication of charges motion saying the charge does not “exaggerate” or “misrepresent” accused’s misconduct. The government disputed the idea that databases containing “war logs” had been stolen and transmitted to WikiLeaks on the same day. They have forensic information from an SD card (that was presented in the Article 32 hearing). However, they conceded it is possible the Iraq and Afghanistan “war logs” were transmitted at the end of January in the same transmission but they would not consider this an “unreasonable multiplication of charges.”
UPDATE – 12:45 PM During arguments on unreasonable multiplication of charges, the defense said it saw a classified memo that alleges the Iraq and Afghanistan databases containing what are now known as the war logs were sent out on same day to WikiLeaks (allegedly).
“If it’s true, it shows that there was a disclosure of the Iraq and Afghanistan SIGACTS on the same day,” said Coombs. He added they are going out on the same day so government is charging this single act separately.
UPDATE – 12:35 PM In court, while arguing motion on unreasonable multiplication of charges, Coombs acted it out to show the judge what the defense was arguing. He picked up a binder on the defense desk to argue act of taking is connected to giving to unauthorized persons. It is all one act.
He added, “By charging it in this way, by creatively charging…what you do is you take a 10 year max and you now made it a 20 year max.”
UPDATE – 12:30 PM Coombs argued a motion alleging “unreasonable multiplication of charges.” He alleged that in “four separate occasions” the government has “taken a single criminal act and divided it into multiple acts.” They have “taken what happened on a single day and divided it into separate instances.”
Here’s the charge sheet. According to the defense, Specifications 4 & 5, Specifications 6 & 7 and Specifications 8 & 9 are essentially charging the same act twice.
UPDATE – 11:10 AM Unreasonable multiplication of charges motion was argued in open court. The defense argued the government cannot charge the theft and transmission of sets of documents separately. The government asserted these are separate and distinct criminal acts. More on the deliberations on this to come during lunch recess.
UPDATE – 11:04 AM Motion to compel discovery of grand jury testimony denied too. However, it almost sounded like she could have said it was granted “in part.” Why? She stated in her ruling that FBI participated with CID in the investigation of the accused and the “government has had access to one or more files that must be disclosed to the defense.” The FBI and Justice Department are “aligned agencies that have investigated.” And, so, “government has a duty to investigate and disclose exculpatory information to the defense.” She concluded “grand jury proceedings are not discoverable” under basic military rules for court martial proceedings. They are “secret.” Records cannot be turned over to the defense.
UPDATE – 11:00 AM Motion to dismiss all charges with prejudice denied. The judge finds no prosecutorial misconduct. She did not think the withholding of classified information so far had been unusual, as agencies in her opinion often wait to disclose this evidence until it is litigated. This essentially means until they are ordered or forced to disclose evidence they do not typically do it voluntary.
UPDATE – 10:55 AM Bradley Manning will be getting a trial. A date has been set: September 21 through Oct 12 of this year. It is, like all dates, subject to change depending on motions filed in the case. There will be three more motion hearings: June 6-8, July 16-20 and August 27-31.
Legal proceedings in the case of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, resumed yesterday, with the defense arguing in the military court at Fort Meade that all charges with prejudice should be dropped.
David Coombs, Manning’s lead defense attorney, argued the government did not understand basic military rules for the discovery of evidence in cases. The past two years the government had been searching only for material that they considered a “smoking gun” or “game-changing” evidence. They would not produce evidence that could lead to “reduction of punishment. “The government refused to produce damage assessment reports, hiding behind technicalities (for example, the State Department’s report on the release of diplomatic cables is allegedly incomplete so they refused to hand it over to Coombs).
He concluded the only “appropriate remedy” to “widespread discovery violations” was the dismissal of all charges with prejudice because, although the government could no go back and produce the evidence owed to the defense, this would create “speedy trial” issues. At least sixty-three agencies have to go through producing the information. They may also wish to cover up misconduct by rushing a re-review of evidence pertaining to Manning or WikiLeaks.
*For more, read this post I produced on yesterday’s proceedings.
The judge will make two rulings this morning on the motion to dismiss all charges with prejudice and the motion to compel discovery of grand jury testimony.
What will be litigated today is the following: 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 other various matters.
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.
Court is to begin at 10:00 am. I will post updates during the short breaks and recesses. 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.