The legal proceedings in the case of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, resumed yesterday with a third motion hearing in the court martial process. At Fort Meade in Maryland, the defense argued multiple motions submitted to compel the prosecution to hand over key evidence.

The defense made a “due diligence” argument in court that the prosecution is not handing over Brady materials, which is material relevant to the guilt or innocence of Manning or material that could play a significant role in sentencing. Manning’s defense lawyer David Coombs asserted that the prosecution needs to begin to provide evidence requested in a “timely fashion.” He also called for the judge to “order immediate production of Brady discovery evidence.” Two years into the case, the government has not provided documents the defense has requested, said Coombs. There is information that the defense requested over seven months ago that still has not been handed over. The trial is months away and, he added, the prosecution and government has not made “good faith attempts” to look for many of these records.

In the afternoon, Coombs continued to argue that discovery evidence needed to be produced and that the prosecution had to search files for anything with relation to the case. Coombs stated the defense had requested evidence from 63 government agencies. To date, only 28 agencies had provided material requested. Mostly the material handed over has been 1-to-2 pages that indicate there was no damage or no impact or there possibly was impact to another agency in government. The defense put in requests to 63 agencies because they saw in a document that the Office of the National Counterintelligence Executive (ONCIX) and the Office of the Director of National Intelligence (ODNI) had gone to these agencies in late 2010 or early 2011 in the aftermath of the WikiLeaks releases and requested information for damage assessment reports they intended to put together. Given the fact that there is so much evidence the defense still is waiting to receive, Coombs demanded there be an accounting of the material.

Judge Denise Lind had the defense and prosecution go through each of the evidence requests that the defense has made and provide details on these items. The defense described what should not be disputed. Records from the Department of Army Headquarters (HQDA) are clearly in the possession of the Army. It is self-evident why the defense would want the material. Like with other agencies, Coombs said, the defense wants investigative files, working groups, damage assessments and any records on remedial measures taken in response to Bradley Manning’s alleged leaks and the releases from WikiLeaks. But, the prosecution appears to be hiding the material.

The State Department, Justice Department, ODNI and ONCIX all are closely aligned agencies involved in a joint investigation. Yet, Coombs made clear the prosecution disputes this fact. ONCIX took the lead and contacted agencies that might have been impacted by the State Dept releases. They identified cables and asked them look at cables and tell ONCIX if the releases had caused an impact. It is within the custody and control of the prosecution, but, Coombs argued, they are taking advantage of access they have to joint investigations. They are going to other agencies and cherry-picking information and then leaving anything material to the preparation of the defense and denying Manning his broad right to discovery.

Major Ashden Fein stepped up for the prosecution to respond. Fein contended the defense has not stated why this material is relevant or necessary in its requests. He said the government is ready to litigate this but the defense keeps focusing on two years of making what he called “insane requests” because they all have broad language. He claimed the information they had asked for was requested under a particular military rule for discovery and now they were asking under a different rule, which changed what the prosecution would be able to hand over. And he said that “semantics do matter.”

Fein accused the defense of “trying to open up the government’s files” by requesting all files and all information without specificity. He talked about how the prosecution had some ethical obligations to look for material. He said the “prosecution understands the severity and the broad impact that the charged offenses had on the government.” They anticipated potential discovery issues. “In order to get ahead of that, the prosecution affirmatively without a defense request sent out these memorandums.” He held up a memo and said, “This is a sample.” The memo requested that the agencies, which Coombs has been trying to get evidence from, search their records for search terms related to the investigation or “any information directly concerning Pfc. Bradley Manning.” He claimed the prosecution had proactively find records and preserve them for the defense. But then Fein added “exact language” in this memo was “now being used to define what is material to the defense.” Not all documents with Manning’s name would be relevant to the trial.

The prosecution went item by item detailing whether certain documents could be released. This was quite a revealing moment in the legal proceedings.

Lind asked if there was a joint investigation between the FBI and CID. Fein said yes. The judge then asked, “What relevant files do they have?” Fein replied there is a law enforcement arm and then a main FBI headquarters. There is a case file that is a law enforcement investigation and the case file had, according to Fein, been reviewed. Potential Brady material had been turned over w/ redactions.

She asked Fein if this was a joint investigation with CID. He said information had been shared and Army CID was investigating Manning’s charged misconduct and the FBI had a broader investigation that involved Manning. This led Lind to ask a key question: If the FBI is investigating Manning, how would that not be relevant? Why would the prosecution be challenging the defense’s request for material?

The judge then wanted to know what was left in the file that was turned over to the defense. “Are you telling me there is broader file and this is piece of it?” Fein replied, “Yes.”

“Of that piece, how much has been turned over? What remains that has not been turned over?” Lind asked.

The law enforcement file is much broader. Fein said the prosecution had turned over “all documentation germane to Pfc. Manning” or with respect to witnesses they intend to request for the trial.

The judge then asked, “Out of discovery you got, what percentage is redacted?” The defense showed an example of a file turned over unredacted and then two examples of information from the FBI where a “very large portion” had been redacted. Coombs said the “lionshare is black” and some pages are entirely black. This is a key problem, he said, because the prosecution is redacting files based on what they think is important to us. And, in the cases where we get snippets, it is hard to put those snippets into context because of redactions. (He handed the judge thirty pages of grand jury material that were all black.)

The judge then asked, “How voluminous is the FBI investigation?” The prosecution said it consisted of 636 documents that made up 8,800 pages.” “What percentage of total file that might be?” she asked in a follow-up. “Fifty percent,” answered Fein.

Now, she said she was confused. Where the prosecution is disclosing portions of the FBI file, she wanted to know if other pieces were as “heavily redacted as what I just witnessed.” Fein said yes and that is because the FBI’s investigation is broader than Manning. It’s also classified information and multiple authorities are stakeholders and have the authority to hold it back. Plus, the “defense has not made showing as why unredacted portions would be relevant.”

The judge countered, “Let’s assume for purposes of litigation that ruling that I made before that evidence is material for preparation” and is relevant and necessary, how is “a law enforcement file against the accused” not relevant? I’m “having trouble not seeing how that’s relevant.” Fein said he was not trying to be “flippant” in his circular argument. Lind added, how is Manning going to make “particularized assertions when he doesn’t know what’s in the file”?

Here was where it became clear. The prosecutors are not only fulfilling duties as prosecutors who are charged with convicting Manning but they are also acting as gatekeepers for the US government. They are, in the name of protecting national security, preventing the defense from getting key evidence because they do not want the press or public to know how the government actually responded to the aftermath and how there really wasn’t any damage from the leaks at all. And, though they aren’t saying it, they are invoking state secrets privilege so they do not have to turn over the information.

What is interesting is before this exchange the judge asked Coombs about the Libby case involving the leak of CIA agent Valerie Plame’s identity. She asked if it was reasonable for the defense to want all this evidence and asked if it was reasonable. Coombs thought it was appropriate for the judge to mention this and noted the prosecution in that case had the full advantage of cooperation and had also claimed evidence was not in the custody or control. In that case, the judge did not allow the prosecution to go to various agencies and then claim it was in someone else’s file cabinet so they could not turn over evidence.

Finally, NSA whistleblower Thomas Drake reacted to this development yesterday and said something similar to what is happening with Manning happened in his case. There had been “egregious withholding of exculpatory information & discovery favorable” to his defense. He, too, had asked for “damage assessment” in his Espionage Act case because the government accused him of endangering the lives of soldiers and the government would not produce the assessments.

I’ll have more to add on this soon. After the FBI, they went through other agencies of which the defense has requested evidence. The Bradley Manning Support Network posted a complete rundown that includes details on these other agencies. You can read it here.