2:43 PM EST Defense and prosecution argued over State Department (DoS) documents that have been requested in addition to the DoS’s damage assessment report. Military prosecutors made this argument that the documents requested were “cumulative.” They would likely have been used in the damage assessment. The judge asked multiple times why they would be “cumulative.” The documents contain underlying data that informed the production or drafting of the damage assessment. As Coombs said, the damage assessment is only 50 pages. The defense is requesting thousands of documents. There is no way that the 50 pages appropriately distill thousands of documents.
Lind did not appear to be won over by this argument the government was making for why the defense should not get these documents. It makes no logical sense when you break it down.
2:40 PM EST Full report on defense testimony given on witnesses and evidence that will be used to argue Manning endured unlawful pretrial punishment when he was held at Quantico.
A pre-trial motion hearing for Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, resumes for a fourth day. The defense and prosecution are expected to argue over issues related to defense requests for discovery evidence.
Here are some highlights from Day 3:
- Whether harm (or lack thereof) can be argued by the defense in the trial was deliberated. 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.” He indicated being able to discuss harm (or lack thereof) in court was critical to his client’s case and, if the judge precluded the defense from discussing “harm,” it would be like cutting the defense off at the knees.
- Government claims that its motion to prevent the defense from discussing “harm” wouldn’t prohibit reference to damage assessment reports. This was somewhat surprising because the “harm” motion was clearly introduced when the prosecution was certain the defense would be allowed to obtain reports they had requested. But the government even said the defense should be able to cross-examine original classification authorities (OCAs) on classified information.
- Coombs dismissed the government’s argument that panel (jury) members would be confused if “harm” was raised during trial. The people who are likely to serve on the panel will have Ph.Ds or other college degrees. They will be educated. They’re “not people we drive in from the streets.” They are intelligent enough to understand this should just be one of many factors panel members consider when deciding a verdict.
- The defense stated in court its belief that the government has to prove there is a “thief’s market.” This statement was made in relation to the 641 charge – the charge of embezzlement and theft of public money, property or records, which Manning faces.
The ruling on whether the defense can discuss “harm” is very critical for Manning. The judge has been cautious about approving dismissal motions or motions that would put restrictions or conditions on the trial. She is cognizant of the fact that this case is “blazing a new path” in the sense that there has been no military case like it in the history of military justice. However, she appeared to be won over by the government’s legal argument that the damage is or was not a part of the charged acts. She also seemed to be sensitive to the government’s statements on how the panel could become confused.
Additionally, it is not necessarily true that Coombs wouldn’t be able to talk about “harm” or “damage” if this passed. The motion basically would mean all arguments are posed in a hypothetical realm rather than the realm of reality. The government already has been talking about what could have happened. While the defense would prefer to talk about the facts that show “harm” or “damage” did not really happen, the defense could shift arguments to emphasis of what could not happen based on history. They could reference legal precedents to bolster their argument to support their argument that Manning would not have had “reason to believe” his act would pose a risk to national security or the national defense of the country.
I am at Fort Meade. We are in the Public Affairs Office building on the base. The Media Center where we have typically been is being used for a Guantanamo military commission hearing. That means there will be fewer updates to this blog in the morning and afternoon. Therefore, you will want to follow me on Twitter @kgosztola for the latest.