4:55 PM EST Severe storm has been hammering area in and around Fort Meade for past half hour. Public affairs is telling us we have to leave so they can use the room where we are working for something else that is planned. So, getting in car to brave this severe weather. More updates later.
4:47 PM EST Coombs chose to compare Manning’s case to actual cases of physical assault in his argument on harm. Lack of harm or harm he said was critical to these cases. Essentially, he was saying the same applies to his client’s case. What harm occurred should be a key factor (one of many) in whether Manning is found to be innocent or guilty.
4:40 PM EST The defense made a statement that distinctly showed how critical the ruling on this will be: if court decides to approve the motion, it would diminish a “viable defense.” They would be “cut at the knees.” It would significantly impair their ability to cross-examine an original classification authority (OCA).
4:30 PM EST Harm (or lack thereof) was argued. Military prosecutor Ashden Fein argued for the government that harm was not relevant because, if damage occurred, it would have happened “after the fact.” Manning would have had to have known that the damage would have happened (or not happened) for any discussion of harm to be relevant. Defense attorney David Coombs argued it would be relevant to whether he had “honest belief” that the information could cause harm. He expressed concern that the government would get to discuss information that Manning allegedly released in a “vacuum.”
1:00 PM EST Finally, after it’s been pushed back multiple times, we are deliberating over the issue of “harm” when proceedings resume at 1:30 PM EST.
12:38 PM EST Here are some the cases that are being referenced or cited by the defense and government in court—US v. Anderson, a case involving a soldier who had contacted Muslim extremists with emails that contained details on US troops in Iraq; US v. Beaty, a case involving the wrongful and knowing possession of child pornography; US v. Drew, a case brought under the Computer Fraud & Abuse Act (CFAA); US v. Leonard, a case involving whether the maximum punishment for a customs of service charge could be determined by a federal statute “that proscribes and criminalizes the same conduct.”
12:25 PM EST The government has tried to admit evidence ahead of the trial that is a screen shot of Manning’s user profile. The profile comes from his use of the Army Training and Certification Tracking System. WillCo Technologies is a company that the military uses to handle the systme. This is a informational .PDF on the company. It says that in 2008 the US Army purchased a million licenses of IASTAR, WillCo’s DoD 8570 solution. The system tracks IT trainings/certifications, exam vouchers, and maintains a dynamic hierarchy of the Army’s complex structure.” It is a Defense Department contractor that claims to offer “advance technical standards in the areas such as the Enterprise Information Web (EIW).”
12:05 PM EST The defense stated in court its belief that the government has to prove there is a “thief’s market” in existence for the 641 charge – the charge of embezzlement and theft of public money, property or records.
11:45 AM EST There was deliberation over lesser-included offenses (what could be charged if there’s no evidence to support charge) for Specification 1 of Charge 2 which is the following:
SPECIFICATION 1: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, wrongfully and wantonly cause 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 , such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.
The government argued this is close to section (d) or (f) of the Espionage Act — similar to espionage-type crimes. The defense argued the LIO should be under the the US Code of Military Justice—customs of service. Going to a section of the Espionage Act was disputed because it would carry the same maximum of 10 years and one could argue it would not be a lesser charge.
For referencing purposes, here’s (d) & (f) of the Espionage Act:
…(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to
communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or…
…(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer - Shall be fined under this title or imprisoned not more than ten
years, or both.
A pre-trial motion hearing in the court martial of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, resumes for a third day this morning. Proceedings this morning will open with deliberation on whether the defense should be allowed to raise the issue of “harm” in court. (It was pushed to today yesterday afternoon.)
Following this deliberation, the proceedings will move on to address motions dealing with outstanding requests or issues related to defense discovery evidence, maximum punishment for lesser-included offenses and an FBI impact assessment report.
Here are some highlights from Day 2:
- During argument over a defense questionnaire for potential panel (jury) members, Manning’s defense lawyer David Coombs expressed concern about President Barack Obama’s public comments on Manning. This concern stemmed from a question that was ultimately allowed to be included in the questionnaire: “Do you believe military justice should be influenced by outside civilian pressures?” He explained there had been “public comments widely noted” and this question was necessary to find out if any potential panel members had been influenced by these comments from Obama or even Hillary Clinton. ”People should’ve known better.” And he alleged the statements prejudiced his client.
- “My client is gay. He [was] serving in a time of prohibitive ‘Don’t Ask, Don’t Tell,’” Coombs declared. A block of questions he attempted to get into the defense jury questionnaire asked potential panel members whether they opposed gay marriage so he could discern what their views might be toward “anyone who amy be gay.” He also raised the issue of whether potential panel members were familiar with gender identity disorder. Judge Col. Denise Lind allowed one question on whether one was familiar with gender identity disorder but not the other questions on homosexuality. (According to the government, the defense and government had already agreed to a block of questions on homosexuality.)
- The government argued it should not have to prove the information released by Manning was classified. But, isn’t this why he is being prosecuted? The defense made a few statements about the fact the Espionage Act only designed to protect classified information and, if it is not classified, it should not fall under 793(e) of Espionage Act. Why does this matter? The “Collateral Murder” video was unclassified. Coombs wanted language in the charges to make it clear that classified, not unclassified information, is only kind of information one could reasonably argue would cause harm to the US.
- Government chose to make the clarification during the proceedings that Manning is not being charged with espionage. He is charged with transmitting information under the Espionage Act but not espionage.
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.