4:00 PM EST That is all I will be putting in the live blog for today. I will put together a report on the day’s proceedings that will appear in the morning tomorrow before the proceedings begin.
We are starting around 9 am EST again. Day 2 will focus on evidence the government and defense want to admit into the court now instead of later during the trial.
3:55 PM EST The government apparently has a piece of evidence it has not allowed the court to see that they feel is conclusive proof that Manning “aided the enemy.” Coombs told the court that the defense believes this should be “proffered” to the court.
3:51 PM EST Judge Lind says, “The court is cognizant of constitutional issues,” related to the “aiding the enemy” charge and the court will be very careful with any instructions that are set for the trial.
3:45 PM EST Coombs referred to WikiLeaks as a “media-like organization.” This was actually a surprising instance of timidity. He had said the government’s theory for the “aiding the enemy” charge would make soldiers who provided information to the New York Times or the Washington Post prosecutable. He also said in court that the soldier who told the media it wasn’t getting proper body armor for military vehicles would be accused of providing intelligence to the enemy because it would be published by media and available to “the enemy.” It would seem he recognizes that WikiLeaks serves a function that media organizations typically have served yet he subscribes to conventional wisdom and hesitates to call WikiLeaks an actual media organization for legal or non-legal reasons.
3:35 PM EST Defense would seem to be in agreement with government on fact that motive shouldn’t be factor in “aiding the enemy” charge. Coombs said all one has to prove is Manning was thinking about providing to “the enemy.” There are prior cases where soldiers gave information for altruistic reasons — to hopefully get them to stop fighting the United States. They were giving intelligence to “the enemy” and could be charged and convicted.
3:30 PM EST “Never been in the history of military prosecutions” a case where someone was charged with “aiding the enemy” for posting intelligence on the Internet, said defense lawyer David Coombs.
3:10 PM EST The defense and government argued the elements of the Article 104 charge, that he “wantonly” or “wrongfully” released classified information. The argument is summarized here in the defense’s motion:
The Government is incorrect that a “knowingly and intentionally” requirement for the actual knowledge element of Article 104, l0 U.S.C. $ 904, Uniform Code of Military Justice (UCMJ), would transform Article 104 into a specific intent offense. Indeed, it is the Government’s proposed definition of “knowingly” that would transform Article 104 into something that it is not - namely, an Article that punishes negligent acts. Finally, the Government’s attempt to distinguish the mens rea standard of Offense 26 of the Military Commissions Act from the mens rea required for Article 104 is meritless.
There was discussion over the phrase in the charge “caused to be published.” Coombs stated even if a person gave information to the New York Times that wouldn’t necessarily mean the information would be published.
1:12 PM EST In discussing the issue of whether Manning “exceeded authorized access,” defense lawyer David Coombs made clear that the Netcentric Diplomacy database containing diplomatic cables had no electronic barrier protecting it. It was straight HTTP. It could be imported into an Xcel spreadsheet easily if one had a password for SIPRNet.
1:07 PM EST The motion the government argued on protecting information essentially requested that the court agree to a certification that would force the defense to acknowledge that it understands it has to follow a protective order for information. Judge Lind appropriately asked, “What does this additional certification get us?” If the defense violates the protective order, they violate the protective order and can be sanctioned, etc. They can be held accountable. So, why did the government want this certification?
The defense interpreted the motion has something being put forward to setup a series of “gotcha” moments, where the government could make challenges to the defense motions published. The government was saying the defense had been redacting information well enough that holders of information may not need to be consulted. The process may not need to be as involved anymore. If this was done, the situation would be that the defense was engaging in quite a bit of self-censorship to avoid any threat of sanction. The government was basically sending a message to the defense with this motion.
Of course, the easiest way to solve any issue over defense motion filings would be to simply grant the press access to ALL court martial records or, at the very least, the MAJORITY of court martial records.
1:04 PM EST No mention in court of the Center for Constitutional Rights (CCR) challenge that is being handled by the Court of Appeals for the Armed Forces (CAAF) on the court granting the press access to court martial records. But, here’s something worth noting: in 2000, Army Col. Judge Denise Lind argued the media should have greater access to records in military cases.
1:03 PM EST The court proceedings this morning involved deliberations over whether the defense has properly been protecting information when it publishes defense motions on its website. They also involved a second round of deliberation over whether the two charges that claim Manning “exceeded authorized access” on his computer actually state an offense.
The court martial proceedings in the case of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, resumes today with a pre-trial motion hearing. Motions on the “aiding the enemy” charge, whether “harm” can be discussed in the trial and a motion to force the prosecution to expedite the provision of discovery evidence to the defense.
With regards to the “aiding the enemy” charge, the defense wants the court to give the prosecution an instruction that would require military prosecutors to prove that they have reason to be “convinced beyond a reasonable doubt” that Manning had “actual knowledge that he was giving intelligence to the enemy through the indirect means” of allegedly providing classified information to WikiLeaks. Furthermore, the defense’s instruction argues if there’s no proof that Manning knew he was giving information to “the enemy” (Al Qaeda) and not just WikiLeaks:
Providing intelligence to a third party with reason to believe that the enemy might receive it, could receive it, or even would likely receive it, is insufficient. Rather, you must be convinced beyond a reasonable doubt that the accused, using the third party as a mere conduit, knowingly and intentionally gave intelligence to the enemy. That is, the accused must have used the third party for the purpose of giving the intelligence to the enemy. If you find that the accused honestly believed that he was giving intelligence only to a third party and that he was not giving it to the enemy, you must find the accused not guilty of the offense of giving intelligence to the enemy through indirect means.
The defense is renewing its push to dismiss charges that allege Manning exceeded his authorized access on his computer. The defense maintains it does not state an offense.
In terms of discovery evidence, the defense is pushing yet again for information from the State Department to be produced. The defense requests the Court “deny the Government’s request for 45-60 days to produce relevant records or claim a privilege or move for substitutions.” They also are requesting the Court order “that for all remaining discovery the government should consult with equity holders to coordinate the claiming of a privilege (or other course of action) simultaneous with its review of the documentation such that the Government is prepared to proceed immediately upon a discovery ruling.” This is because the prosecution’s withholding of evidence requested has led to the postponement of trial.
There are a few other motions being considered that can be read here.
The legal matter expert informs the court the government is going to request evidence be admitted so can be referenced during the trial. This is typical procedure. There will also be deliberations over a panel questionnaire that can be put together and sent out to individuals who might potentially serve on a panel during Manning’s trial.
Instructions for the close of the trial that will go to a panel are likely to be developed during this week. These instructions will get into the definitions of crimes so panel members know what must be proven to find the accused guilty. And there will be discussion of pre-trial punishment Manning endured because the defense has submitted requests for witnesses to appear at the hearing to talk about possible unlawful pre-trial punishment and request the government produce relevant evidence.
I am at Fort Meade but I am not in the Media Center today. We are in the Public Affairs Office building on the base because the building is being used for a Guantanamo military commission hearing. That means there will be fewer updates from me in the morning and afternoon. Therefore, you will want to follow me on Twitter @kgosztola for the latest.
I will be in the courtroom scribbling furiously because we are not permitted to have computers to type. I’ll also be considering what to FOIA from the proceedings so the Judge Advocate General can claim exemptions and deny my request in full. (If you don’t understand that last sentence, see here, as I am a plaintiff in a case that is challenging the court, which is denying the press access to court martial records.)