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September 29, 2012

Defense: Bradley Manning’s Speedy Trial Rights Have Been ‘Trampled Upon’

Posted in: Military,Whistleblowers,WikiLeaks

US Army photograph of Pfc. Bradley Manning

The defense for Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, filed a motion calling for all charges with prejudice to be dismissed because the United States government has “trampled upon” Manning’s “speedy trial rights.”

The 117-page motion concludes, “A military accused’s right to speedy trial is fundamental. The government’s processing of this case makes an absolute mockery of that fundamental right.” He noted the rule that an “accused must be arraigned within 120 days of the imposition of restraint” (confinement) has been complied with technically. However, the defense argues this is because the Court Martial Convening Authority, Carl R. Coffman, “abandoned any attempt to make an independent determination of the reasonableness of any government delay request”:

…Instead, the Convening Authority operated as a mere rubber stamp by granting all delay requests, which totaled 327 days, without being provided with or itself providing any reasons that justified the excluded delay as reasonable… [emphasis added]

Under military rules, the defense contends the delay of an Article 32 hearing, which was eventually held in December 2011, and its “inexcusable failure to understand its basic discovery obligations have completely flouted” reasonable diligence standards. “If Pfc. Manning’s right to speedy trial is indeed fundamental,” the motion further suggests, “There can be no doubt that the government’s tremendous lack of diligence in the processing of this case violated that fundamental right.”

Manning is currently scheduled to go on trial on February 4, 2013. By then, Manning will have been in pretrial confinement for 983 days. “The Empire State Building could have been constructed almost two-and-a-half times over in the amount of time it will have taken to bring Pfc. Manning to trial,” the defense notes.

The defense maintains the Convening Authority abused his discretion by “excluding” periods of delay from the “speedy trial clock.” The Convening Authority maintains the “preferral of charges” is when the clock began to tick. Yet, under military rules, the “imposition of restraint” can trigger the “clock” so, when Manning was placed in confinement, the clock started. This means 635 days passed from “imposition of restraint” until Manning was “brought to trial.”

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One of the key issues motivating delays, which have occurred before and after Manning’s arraignment, are defense requests for discovery evidence, especially evidence that is classified. In fact, the Convening Authority at one point instructed military prosecutors to “cautiously proceed with the disclosure of information” because of “national security concerns and ongoing investigations” in the case.

The government has consistently made claims that it needed more time to work with Original Classification Authorities (OCAs), individuals who are considered experts on information Manning is alleged to have released. For example, the government requested another exclusion of delay time between May 12, 2011 and June 17, 2011. This was to continue the “classification review process” that had been ongoing for 340 days. It needed to make more copies of material and “work” with the US Attorney’s office to “obtain necessary authorization to disclose unclassified portions of a US Criminal Investigation Command case file. But, the defense maintains this told the defense nothing about where the government was in their review process and, moreover, the Convening Authority was not given ample information to properly determine whether an exclusion of delay should be granted.

In June, I suggested the government was playing secrecy games with the defense that inevitably led to the postponement of Manning’s trial to February 2013. I contended prosecutors had been making it nearly impossible for the defense to obtain evidence that could be material to the guilt or innocence of Manning or that could help reduce his sentence if he was convicted for his alleged leaks because they were acting as gatekeepers for the government so information on how the government responded to the WikiLeaks disclosures and how the government has been investigating Bradley Manning and WikiLeaks would not be handed over.

The prosecutors, by then, had even accused the defense during a April motion hearing of “graymail,” which is defined as “a tactic used by the defense in a spy trial, involving the threat to expose government secrets unless charges against the defendant are dropped.” Fein preposterously contended if the court approved the defense’s demands for information, this could lead to other soldiers trying to “graymail” the government. A soldier could then release any classified information and steps by the government to investigate the leak would be “discoverable.”

The prosecutors handling of discovery has been extremely frustrating. For these reasons, the motion indicates the defense intends to call OCAs as witnesses when this motion is argued.

The defense’s motion also notes there have been periods of inactivity, where the government was apparently doing nothing on the case. It declares, “From commencement of PFC. Manning’s pretrial confinement until PFC. Manning’s arraignment on 23 February 2012, there were 323 days in which no apparent Government activity occurred.”

Between May 31, 2010, and July 5, 2010, there was no activity, and, between July 13, 2010 and July 30, 2010, there was also no activity. The government also, following decisions to exclude delays, inactive in multiple instances; for example, April 23-May 12, 2011; May 13-June 17, 2011; June 18-July 5, 2011. The defense does not think the government was doing anything productive on the case during that time, which is problematic given the fact that, on July 5, the Convening Authority granted a third request to delay the Article 32 hearing, which would eventually be held in December.

These periods of inactivity may bolster the defense’s argument. The motion cites two instances where military courts found the government bringing the process of a case to a “complete stop” was a violation of a soldier’s speedy trial rights. In a case heard by the Navy-Marine Court of Criminal Appeals, the Calloway Court did not approve of a 20-day period where the government was inactive, “There is no evidence explaining why, during the first 20 days of the appellant’s pretrial confinement, the government did absolutely nothing with a view toward prosecution.” And, the Hatfield Court affirmed a military judge’s determination that five periods of inactivity totaling 48 days had violated the accused’s rights and quoted the military judge approvingly:

…What the Government has done is just bring the processing of the case to a complete stop. It’s not like they’re gathering evidence and preparing for a[n Article] 32 [pretrial investigation]. The Government tells itself that everything is stopped, we’re not proceeding anywhere. We’re not going to proceed to the 32, we’re not going to assign counsel, we’re not going to identify an [Investigative Officer] so the appointing letter can be done, so things can get moving. What we’re going to do is we’re going to come to a complete stop in activity because we’re not satisfied we have a couple of documents that we need. You have a viable preferral which the command wants to go to a 32 and the Government says, “No, we’re not going to do anything with this until you get a couple of documents.” So, that’s the problem I have with that period of time. I mean, the Government has stopped processing the case basically…

The number of days of inactivity is six times the number of days of inactivity in the case that went before the Hatfield Court.

Periods of inactivity and the privilege of having a Convening Authority, who would grant any exclusion of delay requested, coupled with significant problems with the prosecution’s handling of discovery evidence form the basis of the defense’s case that Manning’s speedy trial rights have been violated. There’s quite a bit to support the argument in the motion, and coupled with the defense’s “unlawful pretrial punishment” motion, detailing how Manning was cruelly and inhumanely treated while imprisoned at Quantico, it is clear that the government has committed some egregious violations against Manning in this case.


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