UPDATE – 1:30 PM ET During the morning part of the hearing, Coombs mentioned Rep. Darrell Issa, chair of the House Oversight Committee, had engaged in reviews of the damage caused by the alleged leaks. He had looked into the actions of Attorney General Eric Holder, the Justice Department and Manning in January 2011. The defense wants to see records from this review, including testimony.
Coombs said the request has been specific. This should be enough for the government to do its due diligence and look for the records. “Short of telling the government it is in a red file in Issa’s third drawer beneath his Bible,” the defense could not be more specific. And yet the defense has not received this information.
UPDATE – 1:00 PM ET Those of you have been following closely may be aware that there is a secret conference portion of the proceedings officially known as an 802 session that the judge, defense and prosecution hold in chambers almost every day of every hearing. The defense submitted a motion requesting these sessions be recorded or transcribed. That motion was denied by the judge.
Coombs said it is a “common occurrence within court martial” to hold these sessions but business discussed is usually limited to scheduling, advising what may come up in future motion hearings, logistical problems, etc. The sessions, however, have become an opportunity “for govt to relitigate a lot of the court’s rulings” and go into substantive matters. Also, the government has taken positions in 802 sessions, which they do not take in open court proceedings. There is no way for the defense to prove the government is lying or falsely representing what was said because the sessions are not recorded.
Fein said the prosecution and defense have both talked about “substantive matters” He didn’t see a problem. There is no line between procedural or substantive that needs to be drawn. The conferences are for promoting fairness and expediency. “Recording will not help” with expediency in the trial, he said.
The court found defense has not objected to the sessions previously. Substantive issues had been raised that if not addressed would delay trial. What the court would do is build in an additional motion hearing (no specific date yet). But, motion would not be granted.
UPDATE – 12:49 PM ET The court ordered the government to produce the Defense Intelligence Agency’s Information Review Task Force (IRTF) damage assessment report in part. There were substitutions made to “protect” national security. This is a privilege government has to protect classified information. The defense submitted a criteria that it wanted the judge to use to assess the material when deciding what would be disclosed. This included considering the extent of redactions, whether substitutions were narrowly tailored, whether the substitutions still allowed the defense to follow up on leads in the original document prior to substitutions, whether anything was substituted that would help defense rebut the nature of the charged leaks, whether this would prevent the examination of any witnesses or prevent the defense from pursuing avenues of impeachment, etc.
The judge asked the defense when this report would be turned over to the defense. Maj. Ashden Fein said immediately and the defense could get it from DIA headquarters. Noting the geography issue, David Coombs wanted to know, since the court had a copy of the report in possession, if that could just be turned over to the defense. This way the defense would not have to make a trip to the DIA headquarters with security experts to transport the report properly. Lind asked the government to coordinate with DIA to see if it would be possible for the defense to get the document from the court. The document is still in the court’s possession. This is just one of many examples of the legal fun and games which the government has engaged in with this case so far.
UPDATE – 12:35 PM ET The judge denied the government’s motion to reconsider its ruling on the State Department damage assessment report. The government argued on behalf of the State Department that the report was a “draft” and therefore was not discoverable because of its “speculative nature.” This was not reasonable to the judge. The government handed over this report, whether it was complete or not, to the defense some time after May 23.
UPDATE – 12:30 PM ET The defense has been seeking Brady material – which is evidence that is material to the guilt or innocence or could play role – from 63 government agencies. To date, only 28 agencies have provided material requested. Mostly the material has been 1-to-2 pages that say there was no damage or no impact or there possibly was impact to another agency in government. And the defense knows that it should be requesting information from these agencies because the Office of the National Counterintelligence Executive (ONCIX) and the Office of the Director of National Intelligence (ODNI) went to these agencies requesting information for damage assessment reports they were putting together.
UPDATE – 12:25 PM ET Judge Lind reviewed State Department, CIA and Defense Intelligence Agency damage assessment reports to determine what was discoverable to defense and what could be redacted to protect claimed national security interests.
UPDATE – 9:45 AM ET Author of Private: Bradley Manning, WikiLeaks, and the Biggest Exposure of Official Secrets in American History, Denver Nicks, writes about how the government is “bungling” its case against Manning. It cites many of the defense’s concerns with how the government is failing to cooperate with the defense’s request for evidence, etc. But, I don’t know if I’d call what the government is doing bungling. This is calculated. What they are doing they intend to get away with doing too because they want the public to have little to no information on how the government responded to WikiLeaks since it will expose how hysterical they were when the WikiLeaks releases happened.
UPDATE – 9:40 AM ET Nathan Fuller, reporter for the Bradley Manning Support Network:
UPDATE – 9:30 AM ET Nothing said in briefing ahead of hearing about the petition submitted by the Center for Constitutional Rights (CCR) to the Army Criminal Court of Appeals (ACCA), which demands the press and public be given access to court filings. Last month, I signed on with Amy Goodman, Glenn Greenwald, Chase Madar, Jeremy Scahill, The Nation, Julian Assange and WikiLeaks to challenge secrecy in the proceedings. I wrote about why I signed on here.
The third motion hearing in the case of Pfc. Bradley Manning, the soldier who is being prosecuted by the US government for allegedly releasing classified information to WikiLeaks, commences today. It is taking place at Fort Meade in Maryland and is expected to last for three days. Manning’s defense, led by David Coombs, will push to get ten charges under the Espionage Act dismissed. The defense contends that the charges are overly broad and vague and the law being used to prosecute Manning did not intend to make the alleged conduct in the charges criminal.
The defense also intends to argue for the dismissal of two charges that relate to whether Manning “exceeded authorized access” when he engaged in the alleged act. They believe Manning could not have exceeded access in the way alleged.
There are at least five defense motions that will be up for deliberation. The Bradley Support Network’s Nathan Fuller put together a good primer on what the defense plans to argue in each of the motions.
Here are the motions:
The first motion relates to the withholding of evidence.
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. 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 second pertains to the government’s contention that Manning “exceeded authorized access.”
The Government has not alleged that PFC Manning used his access to obtain information that he was not entitled to obtain. On the contrary, the Government will concede that PFC Manning was authorized to obtain each and every piece of information that he allegedly accessed. Similarly, the Government has not alleged that PFC Manning altered any of the information that he allegedly accessed. Instead, the Government alleges that because PFC Manning had an improper purpose in accessing the information that he had full permission to access, he has exceeded authorized access within the meaning of the statute. This is an incorrect reading of the term “exceeds authorized access” – and one which conflicts with the plain meaning of the statute.”
Fuller explains, “The third motion calls on military judge Denise Lind to instruct the government regarding ‘lesser included offenses,’ or LIO. Coombs argues that Bradley’s charges can’t be multiplied by lesser charges that are already included in other charges. Bradley shouldn’t be charged with illegally obtaining the information if he’s already charged with illegally transmitting the information – a charge that includes within it the illegal obtainment.” And, the fourth motion relates “to dismiss specifications that use two phrases that are unconstitutionally vague, in violation of the Due Process Clause of the Constitution. The prosecution uses the phrases ‘relating to the national defense’ and ‘to the Injury of the United States or to the Advantage of Any Foreign Nation’ to describe the information PFC Manning is alleged to have released. Coombs argues these are so sweepingly broad that they fail to detail exactly what information they include.”
The remaining motion deals with a defense request to identify material in discovery evidence that is handed over that is Brady, meaning it is relevant to whether Manning is guilty or innocent and could play a significant role in sentencing. Coombs has been given 6,905 pages of discovery material but only 12 of the pages have been identified by the government as Brady material. That means the defense has to go through and try and determine where there might be critical evidence in these thousands of pages. And, this gives the government an advantage over the defense in the case.
I am here at Fort Meade reporting from the media center. I will be here throughout the week. I’ll be posting updates here during breaks and lunch recess. Updates will appear at the top of this post. During short breaks, when I am unable to get something up here, follow @kgosztola on Twitter for quick updates.
I’ll be on RT at 5 pm ET and then on “The Alyona Show” on RT at 6 pm ET. That means I will be leaving the proceedings (if they are still ongoing) just after 3 pm ET.
Kevin Gosztola is the co-author of the book, “Truth and Consequences: The US vs. Bradley Manning.”