The government continues to withhold evidence that Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, should be able to use to defend himself in court, according to his defense team.
In a motion filed on May 10, the defense argues that the government has not been conducting a search for evidence discoverable to the defense in a diligent and timely manner. The motion notes a government memo from July 29, 2011, that was sent to the Department of the Army headquarters (HQDA) requesting it to task “principal officials to search for, and preserve, any discoverable information.” An April 17, 2012, memo finds, “No action had been taken by HQDA pursuant to the July 29, 2011, memo” from the Department of Defense Office of the General Counsel (DOD OGC). This means the government has failed to take action “in response to the government’s request” for discoverable materials for nine months.
Or, as restated in the motion:
…The government has not yet completed a Brady search of its own files (i.e. files which are clearly in the possession, custody, and control of military authorities) even though two years have elapsed since PFC Manning was arrested. That the Government cannot “get its ducks in a row” with respect to discovery which is clearly under its control does not inspire confidence that the Government has diligently conducted a Brady search of other agencies [*Note: Brady refers to a rule that mandates the disclosure of evidence]…
The government’s failure has led the defense to renew its request for files that “have not yet been produced,” which include the “entire CID, DIA, DISA, and CENTCOM and SOUTHCOM files related to PFC Manning, Wikileaks, and/or the damage occasioned by the alleged leaks.” The motion indicates these files might be “documents, reports, analyses, files,investigations, letters, working papers, and damage assessments.”
There are sixty-three agencies of which the defense has sought documents, files, assessments, working papers, reports, etc, that are relevant to the case. To date, according to the motion, the defense has received “only 12 pages of Brady material.” Some of the material received has also been handed over with redactions that are inexplicable and unjustifiable to the defense.
For example, the government handed over a file from the Federal Bureau of Investigation (FBI) that was “heavily redacted.” This violates an agreed upon requirement in court, as discovery and production of evidence is the same for classified and unclassified information.” The government has the power to invoke “limited disclosure” under a special rule known as MRE 505. This can be used to protect classified information that the government does not want to release, but the government did not assert this privilege on behalf of the FBI. Therefore, it is not permissible for the government to “unilaterally redact information.”
The motion requests that the government “be prepared to state, on the record, that its search of the sixty-three relevant agencies and other organizations it has contacted has not yielded any Brady material (i.e. material that is favorable to the accused, in that it reasonably tends to reduce guilt, negate guilt, or reduce punishment In making such a statement, the government should provide a statement of exactly what it asked for from these agencies.” The defense believes material from these agencies would reveal whether the leaks Manning is alleged to have committed resulted in any harm. And forcing the government to go on the record is one way the defense could potentially hold the government accountable for violating its obligation to provide discovery evidence to the defense.
The defense has known for some time that the government was acting improperly and obstructing efforts to obtain discoverable evidence. This is why the defense, led by David Coombs, moved to dismiss all charges that had been prejudiced as a result of discovery violated in March. A motion to dismiss was argued in open court in April and then Coombs made it clear the government had been searching only for material that could be considered a “smoking gun” or “game-changing” evidence. The government would not produce evidence that could lead to “reduction of punishment. The government would not produce damage assessment reports and were hiding behind technicalities (e.g. whether certain files were, in fact, investigations or not). And the government was not properly coordinating with original classification authorities (OCAs) so, if a judge ordered the discovery of evidence, agencies would be prepared to turn over evidence to the defense in a timely fashion.
The government has argued that information the defense is requesting is not technically in their control. This is why the motion filed by the defense clearly articulates the military organizations/entities, joint investigations, closely aligned organizations and unrelated law enforcement files, which the defense finds to be relevant to efforts to obtain discovery evidence.
Finally, this statement made by the defense holds the key to understanding the legal fun and games being played:
…the Government still seems to believe that it is the arbiter of what should or should not be disclosed in the interests of national security. It states that the prosecution will continue to provide as much information as authorized…As previously argued, it is not the role of the Government to balance the rights of the accused with national security… [emphasis added]
The government would like to limit the case to whether Manning committed the act or not and convict Manning without having to address the actual effect of his alleged leaks. This is why the government moved to preclude the defense from discussing the harm done by Manning’s alleged leaks during an April motion hearing. The team of military prosecutors pursuing the case has been given the task of protecting the government from further transparency or embarrassment.
This case is extremely sensitive to the US government. It centers on an act that exposed the inner workings of American superpower and subjected the US military and US diplomacy to a degree of scrutiny that no member of any institution in Washington would ever find allowable. The response to the massive leak that showed the world the bribery, corruption, coverups, fraud, misconduct, war crimes, etc—the way the US government really works—has been to sharply push back in the other direction. This is why the military now wants to monitor soldiers’ keystrokes, downloads and Web searches when they are using a computer.
The US government’s response to WikiLeaks has been to be more secretive, to further restrict soldiers’ activity and to escalate efforts to target WikiLeaks and all individuals believed to be involved in the leaks. Some consider this a failure of WikiLeaks and a vindication that the radical act of transparency, which transpired, was not worth it and wrong. However, the government’s inclination toward employee restrictions, retribution and secrecy, including the refusal to grant the press and public access to court filings in the legal proceedings against Manning, are symptoms of massive US government corruption, which must be kept concealed from the public and stage managed behind closed doors otherwise the gears of bureaucratic institutions might stop turning momentarily and interrupt government operations that officials publicly claim to be critical to national security so they do not have to change policies or reform.
Kevin Gosztola is the co-author of the book, “Truth and Consequences: The US vs. Bradley Manning.”