10:40 PM EST That is it for today’s updates. More to come tomorrow on Day 2, which will be a shorter day as there is a classified session in the afternoon.

10:35 PM EST The judge and Coombs had an exchange that merits attention. Lind asked if the defense was alleging Manning was “unlawfully” punished because his confinement caused a “mental decline.” Coombs said, “Normally,” a prisoner would “go down that road quickly.” However, “Manning did surprisingly well” in the conditions. The defense intended to call attention to “indifference to potential to cause harm.”

I note this because it seems to undercut something key the defense has going for it. The fact that Manning was likely punished for a crime at Quantico before the court martial process had even begun is a significant aspect of the case to emphasize.

10:28 PM EST Overgaard told the court that while detained in Kuwait Manning had “created nooses” and “gathered metal to harm himself.” Coombs had no reaction to this when given a chance to rebut argument that professional and records should be made available to the government.

Overgaard indicated the government wanted to use notes from Kuwait on Manning’s mental health condition to argue putting him in maximum custody, on prevention of injury status or suicide risk was justified. Coombs said material from Kuwait could be referenced if it had influenced brig psychiatrists or decisions made by commanding officers. However, it did not have any influence it was irrelevant.

The judge granted this order to look at records from evaluations after 2009.

10:23 PM EST Cpt. Angel Overgaard argued a motion for court order for mental health care professionals and records. Overgaard wanted to be able to speak to psychiatrists that had treated or had contact with Manning. She alleged the prosecution wasn’t able to question certain individuals because they claimed they needed a waiver. Coombs said none of these people had been told not to talk to the government and, if there really was a problem, he would tell these psychiatrists they should respond to government requests for testimony.

7:00 PM EST Write-up on Quantico emails the government handed over to the defense today. 600 handed over. 700 still withheld. Why did the prosecution just find these now?

1:15 PM EST Headed back to courthouse. Proceedings will resume and there will be deliberation over a government motion to access to medical files from a psychiatrist in Kuwait who evaluated Manning after his arrest. These records will be used to argue Manning wasn’t unlawfully punished at Quantico.

12:56 PM EST There was a motion to amend the court’s protective order for classified information. Thomas Hurley, a defense lawyer for Manning, wanted the area of review to be changed to accommodate his office so he could access classified information there and not be inconvenienced. He also wanted to be able to access the SIPRNetwork like the government is able to do. Typically, defense lawyers would not have access but he works for the Office of Chief Defense Counsel of Military Commissions. Hurley believed he should have access.

Major Ashden Fein of the government explained the defense had been given three laptops, one printer and a shredder to ensure information security. Those were not be connected to any network. Hurley could not use a work computer in his office that was connected to the SIPRNetwork for purposes related to his military commissions position.

A contentious scene occurred where Fein said Hurley wanted access to SIPRNet for prep. He wanted to look over material that has not been cleared for classified discovery. The judge asked if this is what Hurley was requesting. He said yes and the judge, who turned red in the face, bluntly stated, “Major Hurley, that’s denied,” as if he never should have taken up the court’s time with this request.

The key issue here is the defense knows the government can look at all kinds of classified information for their case preparation. The defense has no access. The scale of discovery issues has led the defense to be reasonably skeptical of the government’s handling of evidence requests. They are virtually certain material is being withheld that should have been provided. So, Hurley tried to use access he has for his other job.

It makes sense but, yes, a defense lawyer should not expect the judge to approve of such a request.

12:45 PM EST On September 14, the government is to turn over remaining above secret Central Intelligence Agency (CIA), Defense Intelligence Agency (DIA), Office of Director of National Intelligence (ODNI), and State Department materials to court for classified discovery. That is subject to judge’s order.

12:41 PM EST Judge granted substitution to government for FBI impact statement. Part of statement defense wanted to have access to for discovery purposes was denied. (And so, government is prohibited from using this same portion in the trial as well.)

12:37 PM EST Presidential inauguration cited as something that could pose logistical problems for prosecutors so no dates scheduled during January 15-24

12:35 PM EST —Upcoming dates on case calendar: October 1-5, October 29-November 2, December 10-14 and then there are dates in January.

12:30 PM EST The government will be sending out a panel questionnaire to potential panelists for a jury in Manning’s trial. It will be out for panelists to complete between September 4 and September 21.

12:20 PM EST Government reported the Court of Appeals of the Armed Forces (CAAF) was provided filed rulings, orders, motions & transcripts pertaining to press and public access to court records for review. CAAF is hearing the lawsuit brought by the Center for Constitutional Rights (CCR) petitioning for press and public access to records (which I am a plaintiff).

11:55 AM EST Lunch recess until 1:30 PM EST. I will be updating this blog with details on what happened during morning proceedings.

9:17 AM EST A few days ago, there was this short letter to the editor from a Vietnam war whistleblower published by Spokesman-Review in support of Manning, Assange & WikiLeaks.

9:15 AM EST I do not know when the proceedings will begin today. They will probably start at 10 am after an hour of conferencing between the defense, prosecution and judge in secret But, we have not received a media briefing and have not been told when the press pool is heading to the courthouse.

9:10 AM EST Republican presidential candidate and congressman Ron Paul gave a speech at a rally at the University of Florida yesterday and mentioned Manning (and WikiLeaks founder Julian Assange). Michael Tracey has a fine post up at The American Conservative:

“Let me tell you, Bradley Manning didn’t kill anybody,” the Texas congressman declared at around minute 45, speaking of a “soft spot” in his heart for whistleblowers. “Bradley Manning hasn’t caused the death of anybody. And what he has exposed—he is the equivalent of Daniel Ellsberg, who told us the truth about Vietnam!” The crowd exulted. Paul then pivoted to a spirited defense of Julian Assange, chastising the government of Sweden for truckling to alleged American demands that the Aussie be extradited to the U.S. for prosecution.

Original Post

Judge Denise Lind (Courtroom sketch by Clark Stoeckley)

The court martial proceedings for Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, resumes today at Fort Meade in Maryland. Manning’s defense will be arguing a motion to compel the production of Quantico Marine brig emails for the next hearing in October on how Manning was treated while he was held in detention.

The defense has posted the motion to compel the production of Quantico emails that has been submitted for argument. It indicates the government waited “almost a year after” it began to receive documents from Quantico and “almost seven months” after it received the last of the documentation before it started to review emails that would be relevant to the defense. The government only began to review the emails when it needed to prepare for an upcoming “unlawful pretrial punishment” hearing.

The motion reports the government elected to review 1,374 emails on July 25 and 26. It selected 84 emails it believed were “obviously material to the preparation of the defense.” (That, by the way, is just over 6% of the emails reviewed.)

The emails depicted “high level discussions at Quantico concerning Pfc. Manning’s custody status.” The defense called for a continuance “to review and incorporate information from the 84 emails” into submissions for the motion hearing on Manning’s treatment. The defense also wanted “to interview (and re-interview) witnesses based on information contained and make new requests with regards to witnesses for the hearing on his treatment.

The defense made a request on December 8, 2010, for “any and all documents or observation notes by employees of the Quantico confinement facility relating to Pfc. Bradley Manning.” The prosecution requested that Quantico “preserve all documentation and their emails” as a result. Yet, the emails relevant to a hearing scheduled for August 28 were not provided to the defense until days before it was time for the defense to file its 100-page motion, which it had informed the court it would be filing at the end of July.

As the motion suggests:

…In spite of receiving the 1,374 emails in response to its preservation request, the Government elected to permit these emails to collect dust in one of its file cabinets until two days before the Defense’s Article 13 motion was due. In defending its conduct, the Government will likely try to assert that it did not believe that an emails involving the ***Redacted****and Brig personnel, or emails concerning PFC Manning’s confinement status were “documents or observations notes by employees of the Quantico confinement facility” within the meaning of the Defense’s discovery request…

…These emails are clearly “documents … by employees of Quantico confinement facility relating to PFC Manning” and should have been produced a long time ago pursuant to the Defense’s discovery request. Indeed, the Government itself recognizes that these documents are discoverable under RCM 701(a)(2) as it indicates that these emails are “obviously material to the preparation of the defense.”

The Government was clearly aware of the fact that the Defense believed PFC Manning’s confinement conditions were unnecessarily onerous. PFC Manning had repeatedly requested to be removed from MAX and POI. Additionally, the Defense made numerous requests of the United States Army Staff Judge Advocate’s Office for the Military District of Washington to assist in removing PFC Manning from MAX and POI. In the fall of 2010, Mr. Coombs and MAJ Fein had several telephone conversations about the onerous conditions of PFC Manning’s confinement. MAJ Fein assured Mr. Coombs that he was looking into the issue and would view it as one of his highest priorities…And it is clear that MAJ Fein and the Government did not advocate for the rights of PFC Manning during this period despite repeated protestations from the Defense that PFC Manning was being subjected to illegal pretrial punishment…

As such, the defense motion concludes the government “has had anywhere from 7 months to over a year to review the 1,374 emails it received from Quantico. The Defense has not had equal access to this same information, or the ability to adequately factor this information into” the motion for a “unlawful pretrial punishment” hearing that was originally slated for this week. And the government should not be able to withhold production of the 1,290 emails it has in its possession.

*

I am back at Fort Meade covering the court martial proceedings. There are a handful of people here in the media pool. A group of Bradley Manning supporters were at the visitors’ gate entrance again this morning as I drove onto the military base.

This hearing will focus on the withholding of Quantico documentation (emails) by the government. The defense is likely to add witnesses to its list of people it intends to put on the stand during the “unlawful pretrial punishment” hearing scheduled for the first week of October 1-5.

The media are not being granted access to the media center. Therefore, there will be less updates here than during prior hearings. Updates will appear at the top. Follow @kgosztola for updates during any long breaks or just after any court recesses.

I have been traveling to Fort Meade to cover these proceedings since December 2011, when Manning had his Article 32 hearing. You can view previous coverage of the court martial process and the Article 32 hearing here. I also co-authored a book with The Nation‘s Greg Mitchell on Manning and the court martial up through March of this year. The book is available here.