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January 16, 2013

In Speedy Trial Argument, Government Argues It Hasn’t Deprived Bradley Manning of His Liberty

Posted in: WikiLeaks

Speedy trial argument in the court martial of Pfc. Bradley Manning wrapped this evening. Both the government and defense presented a rather meticulous overview of activity in the case since Manning was arrested over two and a half years ago. The defense concluded the violations of Manning’s constitutional rights had been significant enough to warrant dismissal of charges with prejudice, but the government maintained it had not adopted a “waiting posture” at any point and had been working constantly on the case. Many of the delays in the process were justified.

Manning, who is being prosecuted for allegedly releasing classified information to WikiLeaks, was placed under pretrial confinement on May 27, 2010. Speedy trial clock began to tick on that day. The government had 120 days to bring Manning to trial unless the government was able to convince Special Court Martial Convening Authority Col. Carl Coffman to exclude time so that it did not count against them. In total, the government was granted a number of delay requests that resulted in 327 days being excluded.

The defense and government agree that the speedy trial clock is at 85 days. This number comes from adding the following periods:

28 May 2010 - 11 July 2010 (45 days)

16 Dec 2011 – 23 December 2011  (Article 32 hearing, 8 days)

3 Jan 2012 – 11 Jan 2012 (9 days)

15 Jan 2012 – 3 Feb 2012 (23 days)

The defense filed a motion months ago asserting Manning’s speedy trial rights had been trampled upon. Currently, Manning has been in pretrial confinement for 964 days.

Examples of when the prosecution had failed to act or acted improperly were put forward by the defense in order to convince Judge Army Col. Denise Lind that certain chunks of time should not have been excluded.

From December 13, 2010 to February 2, 2011, the defense argued this period should not have been excluded from the speedy trial clock because the government had been reactive instead of proactive. The delay came because the government was waiting for a Sanity Review Board to complete its review. However, defense attorney David Coombs noted the board had been appointed in August 2010 yet it was held up to complete a preliminary classification review.

The government claimed it had to get security clearances for everyone and that took a long time for the board to get setup. The defense did not think this was a valid argument because there was nothing stopping the military from staffing the board with individuals that all had the highest level security clearances.

This is part of the government’s justification for the board not completing its review until April 22, 2011. They believed Manning was going to be citing classified information in his testimony to the board. Yet there was only one day—April 9—when Manning talked about classified information.

The defense objected to the delays of the Article 32 hearing:

22 Apr – 12 May 2011 (17 days)

12 May – 17 Jun (37 days)

17 Jun – 5 Jul (19 days)

5 Jul – 10 Aug (37 days)

10 Aug – 29 Aug (20 days)

29 Aug  – 14 Oct (47 days)

14 Oct – 16 Nov (34 days)

16 Nov – 15 Dec (30 days)

The government believed it needed to complete classification reviews before having the Article 32 hearing. The defense, on the other hand, did not think this was necessary. According to the defense’s reply motion, “There is nothing within the Manual for Courts-Martial or in relevant case law that would require the government to complete a classification review prior to the Article 32.”

The defense stated Col. Coffman had abused his discretion by not asking “straightforward question on what was taking so long.” The prosecution was giving Col. Coffman delay requests, which were “cut-and-paste jobs,” and he was signing it after one to fifteen minutes instead of contacting agencies that had not completed classification reviews to see if they would be able to make a deadline or not.

Also, the government did not understand its discovery obligations. It did not think that certain classified information material to the punishment of the accused needed to be released. It believed the State Department and Office of the National Counterintelligence Executive (ONCIX) had not completed a damage assessment report. When that was proven to be wrong, they then said these assessments weren’t discoverable. The government argued the State Department included information from before the damage assessment was completed so it was not discoverable because it was “cumulative.” It also maintained the FBI investigative file was not material to the preparation of the defense. Finally, the government repeatedly contended it had not been given requests that were specific enough to turn over material.

In response to the defense’s argument, military prosecutor Maj. Ashden Fein said there is no case similar to the “actual timing of the offense and how Pfc. Manning was found to have committed the offense.” There were ongoing releases of information that caused “national security concerns.” Crimes are typically complete and the effects of the crime are known. The co-conspirators are known as well. But, in this case the total amount of information or evidence was not known because there was still information Manning compromised that could have been released.

“Even today, WikiLeaks has not released material that there’s evidence Manning compromised,” Fein claimed.

Fein also argued there has been no military justice case that required the amount of coordination inside the Defense Department and outside of the department that this one had.

The government had the burden to prove that it did not violate Manning’s speedy trial rights. Through a PowerPoint presentation that laid out a timeline meticulously, it argued it had not deprived Manning of his liberty.

During the final moments of argument, Coombs pointed to emails that had been sent between the defense and prosecution as evidence that could play a key role in the judge figuring out what delays had been reasonable or unreasonable. He said “if the judge doesn’t want to take the spin from government or defense, emails are objective so look at those.”

Both the defense and the judge seemed to agree there was no case in military justice history where it had taken such a long time to get to trial but there was a voluminous amount of information in the case.

Whatever the judge decides will depend upon how justified she thinks the government was in allowing agencies to take as long as they have in reviewing evidence that was to be turned over to the defense.


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