Bearing Witness - Bradley Manning motion hearings, June 6

We are in Fort Meade, MD for the latest of PFC Bradley Manning’s motion hearings before his trial begins on September 21.

As unauthorized recording on NSA property is illegal, I unfortunately do not expect to be able to provide pictures or video from on-site.

The overwhelming feeling one may get throughout the course of these hearings is that there are undue burdens being placed on the Defense which deny PFC Bradley Manning the right to due process, therefore endangering his life. Speaking to the Guardian, Manning’s aunt said that he has “tremendous confidence in David Coombs,” his civilian attorney.  On May 10, Coombs filed 5 motions, which Judge Denise Lind is expected to rule on during these hearings.

Detailed by Nathan Fuller of the Bradley Manning Support Network, the Defense motions are as follows:

1. Defense Motion to Compel Discovery #2 (pdf): on the Government’s handling (read: failure to disclose) key evidence necessary for PFC Manning’s defense. Coombs is requesting access to all 250,000 pages of internal damage assessments, which the Government has had for the last two years.  Coombs argues that access to this evidence is essential and immediately necessary, as its continued withholding is detrimental to the defense and provides the Government with an “unfair tactical advantage.”
2. Defense Motion to Dismiss Specifications 13 and 14 of Charge II for Failure to State an Offense (pdf): motion to dismiss charges against Manning for exceeding access authorizations. Defense states that the Government has failed to provide evidence that explains how PFC Manning exceeded access, especially as the Government concedes PFC Manning “was authorized to obtain each and every piece of information” allegedly accessed, and the Government is not alleging PFC Manning altered the files in any way. Coombs disagrees with the Government’s reading of 18 U.S.C. § 1030(a)(1) and PFC Manning’s accessing the files with “improper intent” does not constitute exceeding authorized access.
3. Defense Motion for Instructions on Lesser Included Offenses (pdf): requesting Judge Lind instruct the Government on LIO (lesser included charges), specifically that charging PFC Manning with illegally obtaining information multiplies the more severe charge of illegally transmitting information, since the first is already included in the transmission charge.
4. Defense Motion to Dismiss Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II (pdf): a move to dismiss these specifications, which Coombs argues are unconstitutionally vague. Defense argues that the phrases, “relating to the national defense” and “to the Injury of the United States or to the Advantage of Any Foreign Nation” are so broad that the Government cannot detail “exactly what information they include,” which violates PFC Manning’s right to due process.
5. Defense Motion to Compel Identification of Brady Materials (pdf): requests that the Government “specify which documents constitute Brady disclosures”. The Supreme Court ruled in Brady v. Maryland, 373 U.S. 83 (1963) it is a violation of a Defendant’s right to due process for the Prosecution to suppress evidence that may aid the defense, if the Defense has requested such information. In PFC Manning’s case, the Government has provided over 6,500 pages of discovery evidence, but has only disclosed 12 pages of Brady material. Coombs argues that this gives the Government a “tactical advantage,” since the Defense is spread throughout the country and PFC Manning, largely confined to Fort Leavenworth, cannot have reasonable access to the 6,500 pages of discovery evidence, of which the classified evidence can only be viewed in Rhode Island and Maryland. Nathan Fuller explains, “if the prosecution would make its Brady material known, the defense could better prepare for legal arguments to come.”

Per Alexa O’Brien, Judge Lind ruled on Wednesday against Defense Motion to Record R.C.M. 802 conference sessions (pg. II-76). These are off-record, secret sessions where only Judge Lind and lawyers for the prosecution and defense are permitted to attend, . The Government argued against the recording and transcription based on “fairness and efficiency,” while the Defense claimed the Government was using it to “re-litigate rulings by the court because they were not recorded.” Kevin Gosztola of FireDogLake notes:

[T]he government has taken positions in 802 sessions, which they do not take in open court proceedings. There is no way for the defense to prove the government is lying or falsely representing what was said because the sessions are not recorded.

Gosztola also reports on two other rulings:

1. The Government argued that the State Department damage assessment report, which Judge Lind had previously ruled was discoverable, was a draft when submitted in May and therefore speculative. Judge Lind denied the Government’s motion to reconsider her previous ruling.
2. The Government was ordered to turn over the Defense Intelligence Agency’s IRTF damage assessment report to the Defense.

 

 

 

– xx

Joanne

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