5:32 PM EST Next motion hearing is August 27-31. The Republican National Convention will be taking place as Coombs argues his client was subjected unlawful pretrial punishment. I don’t know how Manning’s court martial and the RNC are connected other than the fact that the Republican Party probably support executing Manning for treason.

5:30 PM EST Public affairs officers at Fort Meade are giving the media the bum’s rush. In any case, this motion hearing has officially concluded. There are some details from this hearing that merit further reporting. I will expand on them in the coming days (provided I can read the notes I scribbled down, which I cannot check against a court record because the military is violating press freedom and denying press access to records from the proceedings).

4:59 PM EST The defense was sure that Under Secretary of State for Management, Ambassador Patrick Kennedy,  testified before Congress on December 7 and 9 in 2010. They even have tried to depose him so they could have evidence on what he said to Congress. But the State Department apparently told the military prosecutors that they could not find any records or witnesses who appeared before Congress on those days. Major Ashden Fein told the court the testimony Kennedy gave was really just “informal conversation with staffers.” The State Department did a briefing but the military prosecutors—we are supposed to believe—”found nothing.”

Coombs stood up to respond to these surreal statements that don’t seem to be truthful at all. They “couldn’t even identify who talked to Congress” from the State Department, he said.

“State Department cannot identify who talked to Congress?” He went on, “I don’t even know how to compartmentalize that in my mind.” So, what we basically have here is a situation where they were like, “I’ll meet you at Chili’s at 6 and we’ll talk,” he suggested. Baffling.

4:50 PM EST The government requested that none of the evidence handed over from the State Department include personally identification information (PII), (which the government considers to be “any info that could be used by another to identify a specific individual.” She made one exception to this. Coombs had brought to her attention an AP article, “AP review finds no threatened WikiLeaks sources.” The article includes the names of people who the government might have claimed would be harmed. She said if their names appear in any of the State Department evidence their names cannot be censored. And, after the defense asked, she said, yes, if the defense produces any more articles that name people whose names might have been exposed by WikiLeaks documents who were surprised that the government thought they would be put at risk, those people’s names should appear uncensored in the evidence.

4:45 PM EST The judge ordered the government to produce all documents the defense has requested from the State Department with the exception of the mitigation team documents because the government does not intend to enter evidence from this team. (The team developed policy proposals for what the State Department should do to prevent future data breaches.)

4:40 PM EST The judge partially granted the government’s motion to preclude the defense from raising the issue of “actual harm” or “damage” in court. She said in her ruling that it was not relevant. Actual harm or damage is not part of the charges. However, she ruled the defense should still be allowed to impeach government witnesses for bias and would allow them to use “actual harm” evidence to impeach if they gave the court proper notice and the court approved. And she left a small window for “actual harm” to be raised if the defense could show a defense theory where the material was relevant to a viable defense.

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.

Original Post

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.