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February 26, 2013

Bradley Manning Motion Hearing: Speedy Trial Ruling, Possible Plea (Updates)

Posted in: WikiLeaks

6:15 PM EST Getting rushed off base because it is closing time in the media center. More updates from today soon.

6:09 PM EST Here’s report on Bradley Manning’s planned plea in court on Thursday. He will be reading from a statement and part of it will get to what was on his mind when he decided to release information to WikiLeaks.

6:00 PM EST Hearing has wrapped for the day. There was argument on whether the government has to prove the “enemy” received “intelligence” Manning “caused to be published.” Military prosecutor Maj. Ashden Fein gave a kind of history lesson to the court. You know, as a public service, because he said Manning should know the nature of the charges. He is going to be pleading guilty to offenses on Thursday.

The main issue was the relevance that Osama bin Laden received an email with the charged information attached. More soon because it is important to explore.

12:20 PM EST This afternoon the defense will be challenging the prosecution’s intent to use evidence found on Osama Bin Laden’s digital media, which was declassified particularly for this court martial. This involves State Department cables and war logs that were found attached to a letter. The defense does not think this evidence is necessary to prove the “aiding the enemy” offense was committed. Evidence that the “enemy” received the information does not have to be proven. Also, this evidence would be prejudicial to Manning.

That is the intent, isn’t it? Bin Laden himself had the information disclosed by WikiLeaks. The government wants to present this to the judge and get her emotions going about terrorist threats and national security and make her more likely to convict Manning of this charge.

12:10 PM EST The military judge did not even finish the ruling. It took about an hour. Recall, reading of the ruling on whether Manning was punished “unlawfully” took about one hour and a half. She will be reading her ruling on Sixth Amendment alleged violations.

What she read was a mind-numbing list of dates and government agency alphabet soup, like preservation requests completed June 14 for DIA, DIS and ODNI and on June 23 FBI, DoJ and DISSA completed and classification reviews were completed on these dates and…

This an abuse of secrecy powers. The military expert keeps going on about how press can submit Freedom of Information Act (FOIA) requests and the Department of Army is reviewing documents for FOIAs submitted or to setup a database. This is what we’ve heard for the past four months. It is obscene. They are not going to be letting the press see records while the court martial is still ongoing. They should admit that to us, but there’s a case trying to force access to records before the Court of Appeals of the Armed Forces (CAAF) and the military knows it has to mislead the press to influence the judges to dismiss the case before CAAF.

12:o5 PM EST The judge read part of the speedy trial motion ruling – the part addressing allegations of RCM 707 (military rule) violations of speedy trial rights. This went directly to speedy trial clock.

The judge found from December 27-30 of 2011 and from January 7-8 of 2012 that Investigative Officer Paul Almanza had not met the “good cause requirement” and excluding those days from the speedy trial clock constituted an “abuse of discretion.” He had excluded the days for civilian work and personal travel, not because he could not access a facility to do work. He gave the defense no opportunity to oppose the day. He did it to attend his son’s swim meet in Pennsylvania and also because he had civilian work conflicts.

Other than that, the judge found in favor of the government. All delays for classified information reviews were acceptable given “voluminous” amount of information in the case. She denied the defense’s motion alleging RCM 707 violations. When you add those days up, it brings the clock to 90 days and it has to go over 120 days in order for speedy trial rights to have been violated under the military rule.

10:40 AM EST Waiting for speedy trial ruling. Housekeeping wrapped.

We went over motions that were filed by the government and defense. Bradley Manning signed off on a stipulation of testimony to the court. The judge asked Bradley Manning if he approved of the content of the stipulation and how it will be used. It apparently comes from a Fort Leavenworth witness and is being approved so the witness does not have to testify in court.

9:55 AM EST On November 9, 2012, Reuters posted this analysis from legal experts on the benefits and drawbacks of Manning’s possible or proposed plea.

Original Post

Supporters outside gates of Fort Meade (Photo by Nathan Fuller of the Bradley Manning Support Network)

Court martial proceedings at Fort Meade for Pfc. Bradley Manning, the soldier the United States military is prosecuting for allegedly releasing classified information to WikiLeaks, resume today. The military judge is expected to announce a ruling on the defense’s motion arguing Manning’s speedy trial rights have been violated. A four-day motion hearing is also expected to include deliberation over a possible plea.

Manning’s defense called for all charges with prejudice to be dismissed if the Army Col. Judge Denise Lind rules speedy trial rights were violated.

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)

A soldier in the military has had his or her speedy trial rights violated when the days exceed 120 days (up to arraignment).

Manning has been imprisoned without trial for over one thousand days now. It may seem like it would be obvious that his rights have been violated. However, military prosecutors are able to go to a court martial convening authority and request an “excludable delay.”

The defense motion called attention to how “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.” The defense objected to delays of the Article 32 hearing that was ultimately held in December 2011 to decide whether to refer charges to a court martial. The government contended it had to complete classification reviews before the Article 32 could be held. The government also claimed to be struggling to organize a Sanity Review board to determine if Manning was fit for trial.

Back in November of last year, Manning indicated he would accept responsibility for transferring some information to WikiLeaks and plead guilty to lesser offenses. David Coombs, his defense lawyer, stated, “PFC Manning is attempting to accept responsibility for offenses that are encapsulated within, or are a subset of, the charged offenses.  The Court will consider whether this is a permissible plea.”

It was not a plea deal with the government. It was what is called a naked plea. It was both designed to possibly curry favor with the judge because he would not force the government to prove all twenty-two charges he faces had been committed and intended to make the government prove the most serious charges, which may be more difficult to argue at trial.

On November 29, 2012, the judge accepted some of Manning’s proposed and anticipated pleas. She determined that eight of those pleas were proper pleas to lesser-included offenses in the charges and specifications.

Manning did not plead guilty to aiding the enemy, stealing an unclassified global address list or committing any computer crime offenses under the Computer Fraud and Abuse Act (CFAA). The judge found to be acceptable lesser-included offenses Charge 2, Specification 2, which was the unauthorized possession of video and willful communication of it to a person not entitled to receive it. She accepted lesser-included offenses of Specifications 2, 3, 5, 7, 9, 10 and 15 of Charge 2. And the judge accepted the plea to Specification 5 of Charge 3 as written.

Manning is not pleading guilty to the original offenses under the Espionage Act and CFAA. He would like elements that make those offenses federal statutory violations to be stricken so he can plead guilty to mere military code violations.

If the plea to lesser offenses is accepted by the judge, the government will still have to prove a sentencing case. The plea would be a limited guilty plea so the government could proceed with having the trial that is scheduled for June 3.

For a thorough analysis of the anticipated plea, read Alexa O’Brien’s thorough accounting of what charges or lesser offense he could plead guilty and not guilty.


The motion hearing is scheduled to go on for four days, however, it is likely to wrap before Friday, March 1.

I am in the media center at Fort Meade. The New York TimesThe Washington PostAFP, Telegraph, The  GuardianCourthouse News, Alexa O’Brien and Nathan Fuller of the Bradley Manning Support Network are all here to cover proceedings—along with Firedoglake. (RT has a reporter in the public gallery.)

I’ll be posting updates on Twitter @kgosztola during the shorter breaks and during long breaks or lunch recess there will be updates posted here.

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