Motion hearing day 1 – March 15

Bradley Manning Support Network report

DAY ONE

(entirely reprinted from above link)

Bradley’s attorney insists all charges must be dismissed after the government’s refusal to provide vast amounts of evidence and key witnesses. Criticizing “gamesmanship,” David Coombs said the prosecution “has so hopelessly confused discovery in this case so as to prejudice my client.”

By Nathan Fuller, Bradley Manning Support Network. March 15, 2012

I’ve attended Bradley Manning’s pretrial hearing in December, his arraignment in February, and now his motion hearing – all in Fort Meade, but each time has been a little different. Notable new developments this time include a bomb-sniffing dog at vehicle inspection, an announcement prefacing the session that “attire” deemed “disruptive” would warrant ejection, and a Support Network member being denied entry to the base temporarily for wearing a Bradley Manning t-shirt.

Today began Bradley Manning’s motion hearing, a pretrial procedure designed to reintroduce and debate some issues that arose from PFC Manning’s pretrial hearing in December and his arraignment in February. The military judge is expected to announce a timeline for the court martial to come.

The foremost issues discussed today were the defense’s motions to compel discovery and to compel deposition, meaning the evidence and witnesses that were denied at the pretrial hearing.

First, military judge Denise Lind asked PFC Manning if he’d like to retain his current defense team, comprising David Coombs and military officers Bouchard and Kemkes, who was absent today. Manning confirmed that he would. Lind proceeded to summarize the RCM 802 conferences held between Lind, the defense, and the prosecution since the arraignment.

A publicity order was filed and agreed upon, which bars potential jury members from accessing media coverage relating to Manning’s case. Then the judge moved on to the protective order for classified material which is a highly contentious issue but one plagued by the prosecution’s technical issues. The military claimed to have not received vital government emails and that it’s requesting a new email address, and a spam filter had obscured a government email about the protective order. Later on we learned that all emails with the word “WikiLeaks” in them were automatically blocked.

Still, Lind said, the defense and prosecution could not agree on the protective order, as both had filed orders separately. The defense withdrew its request, however, upon learning the prosecution would not reveal “due diligence.”

Bill of particulars — specifying the prosecution’s claims

Lind moved on to the bill of particulars, which the defense filed to force the prosecution to answer questions clarifying and specifying elements of its arguments. Coombs announced that the defense did not understand which documents the prosecution intended to disclose. The prosecution responded that the government had already disclosed all documents except those protected by the classification order.

Then the post-hearing calendar was briefly addressed, but we got few answers about the actual court martial – notably, though, on Bradley Manning’s 660th day in prison without a court martial, the judge assured Coombs that she was “very sensitive” to Manning’s right to a speedy trial. She admonished him immediately after, though, saying that in filing a bill of particulars, Coombs can’t expect to have both reply filings that add time to the proceedings and request a speedier trial simultaneously. Coombs responded that he was not intending to add time but was merely requesting specificity to avoid potential surprises.

Then we moved on to the government’s responses and non-responses to the defense’s questions in the bill of particulars. Asked again, “Who is the alleged enemy?” the government responded, “Al Qaeda and Al Qaeda in the Arabian Peninsula.” Asked how Manning “knowingly” transmit information to the enemy, the government replied that it was via WikiLeaks, on WikiLeaks’ website. The government would not answer “How did Manning get access?” because they believed doing so would require them to preview their arguments to come.

Coombs replied that he was not requesting the government’s legal theory, but merely the facts they’re asserting to make them. Coombs wanted to know whether the prosecution alleged that Manning had hacked into the SIPRnet, or stolen a password, or simply used the access he already had. Before the government could respond, Lind interjected herself, pushing back against Coombs’ question, asking, “Does the government have to prove how he did it?”

Coombs responded that this type of specificity is what the bill of particulars was designed for, explaining, “I don’t want a trial by ambush.”

Members of the Bradley Manning Support Network and other supporters demonstrated outside Fort Meade Thursday.

The government contended that their allegation that Manning accessed the SIPRnet was sufficient explanation. Both sides argued back and forth, with Coombs repeating his reasoning for the request and the prosecution ultimately saying, “It’s not a mystery how he accessed the computer.” The judge ruled in favor of the government, that the given explanation was sufficient.

The whole back and forth was repeated with regards to the ‘Wget’ software, with Coombs asking whether the prosecution alleged it was among the computer’s programs, added with a hard drive, or on the desktop temporarily. No resolution could be reached, so the judge asked the prosecution to produce a forensic expert’s report on the matter.

Next on the bill of particulars, Coombs asked the government whether it alleged Manning had “stolen,” “purloined,” or “knowingly converted” the information. More than a semantic issue, this encompasses the proof required for each theory. The prosecution said it “maintained both theories,” Lind replied that there were three at hand, and the prosecution responded that it made no distinction between steal and purloin. Coombs argued that “purloin” is different in that it requires deception. Lind requested the prosecution produce a more complete answer by March 23.

Motion to compel discovery — the defense requests vital evidence

Lind proceeded to the defense’s motion to compel discovery, starting with an ex parte filing (one which the prosecution doesn’t get to see). The government had asked if the filing was a motion or a supplement, and the defense replied that it was the latter. The government requested that Lind reconsider hearing the motion and instead deny it, which the judge granted. She did note that the defense is allowed to redact the ex parte and submit it openly.

The next motion to compel discovery produced the most extensive controversy. The defense argued that the prosecution fundamentally misunderstands the Brady rule it cites, which mandates evidence disclosure, because it cites Brady’s appellate standard where it means to cite Brady itself. Coombs reminded that he’s been requesting the government’s damage assessments, internal reviews of the alleged damage caused due to WikiLeaks’ releases, since October 10, 2011, but that the government hasn’t provided them. This is especially of concern given Secretary Clinton and Secretary Gates’ public statements acknowledging that very little if any harm had been caused.

The prosecution said it had searched thoroughly for material meeting the Brady standard and had found none it deemed relevant to the defense’s case. But Coombs parsed their argument to elucidate the standard needed: in a motion to compel discovery, the information need only be “material,” or helpful, to the defense. Helpful could mean that it reflected positively on and helped confirm the defense’s argument, or that it reflected negatively and thus informed the defense to pursue alternate arguments. Either way, Coombs said, a damage assessment would clearly be of interest, and that it more than cleared the low bar needed for discovery – a bar, Coombs quipped, so low that you could trip over it. The prosecution, he said, was misinterpreting Brady to force the defense to show how the damage assessment was necessarily relevant to its case, when the assessment only need to be deemed “material.”

Coombs also took issue with the prosecution’s “gamesmanship” regarding the damage assessments. They’re contending both that he needs to prove their relevancy and that they’re irrelevant. They referred to the “alleged” damage assessments, which Coombs said they know full well exist, and are “playing fast and loose with the word ‘completed’,” as these damage assessments could theoretically go on for years. Coombs argued the government “continues to hide behind the complexities of this case.” Deriding the prosecution for “obscuring reality,” Coombs said, “We in the military pride ourselves on not playing games with discovery.”

Vigil for Bradley Manning, outside his motion hearing at Ft. Meade.

Lind didn’t address the Brady standard distinction, and instead asked, “So you’re shifting the burden to the government? You have no burden of proof?” Observing this surprising interjection, the Support Network’s Kevin Zeese said, “the government is fighting Coombs every inch of the way and it feels like the judge really wants to rule against Manning.”

Coombs reiterated his reasoning several times, explaining that the burden of proof would only be on the defense if he was asking to produce the evidence in court. He was motioning, Coombs clarified, only to discover the material, which requires a far lower bar. Again criticizing the prosecution’s use of the Brady standard, Coombs said, “Citing the wrong standard for twelve pages is not a mistake. That’s intentional.”

Emphasizing the dire nature of this misuse, Coombs said, “We’re now at a very late stage in the game, with at least two years of applying the wrong standard.” Even if the prosecution were to now hand over the documents, totaling three million pages in all, the defense would need at least an additional six months to review them, further delaying Bradley’s already extremely long pretrial confinement. As Zeese noted, “this discovery battle is critical to the case.  If the government can hide the evidence there is no way for there to be a fair trial.”

But Lind didn’t engage that argument either, saying, “I don’t agree that you can ask for anything,” meaning she agreed with the prosecution’s interpretation of the Brady standard.

She then reintroduced the Quantico videos – videotapes of Manning’s abuse at the marine brig, which incurred international outrage. The prosecution stated they did not believe such video exists. Coombs said he’d been given some videotapes but that they were not the tapes he’d requested.

Lind also asked for Allen Milliman’s testimony. Milliman is a network engineer who, at the Article 32 pretrial hearing, discussed his work fixing soldiers’ computers. Without hesitation, Coombs replied, “If we had a verbatim transcript, we could provide that.”

Returning to the damage assessments, the judge asked Coombs why he thought they’d be helpful. He reiterated that the assessments would be of use whether they were positive or negative, and that they would be used with regards to the merits of the case or a potential sentencing argument. He added again that Defense Secretary Robert Gates had publicly claimed no sources were compromised as a result of WikiLeaks’ releases. He took his argument a step further, contending that this was such a fundamental misunderstanding of Brady that it had become “irreversibly” detrimental.

Asked to respond, Ashden Fein claimed that everything the defense is requesting is classified, and thus isn’t subject to discovery disclosure. Fein said the prosecution has options – it could turn the material over, redact it, or invoke the classification privilege – but only if it was deemed relevant could it make a decision.

Lind pressed him on this: “Is there any Brady?” Fein said he didn’t have the authority to answer that question. Lind asked why not, and Fein’s response provoked audible chortles in the courtroom: “Because it’s classified.”

Elaborating, Fein said the prosecution couldn’t comment on the relevance of classified documents, attempting to send the burden of proof back to the defense. He continued, saying the defense had requested four damage assessments, and some of those were “not complete.” Coombs said he requested those that were complete, and pushed back again on the use of “complete,” because “if they’re never completed, they can never be requested.”

Coombs said the government is incorrect in arguing that classification requires proffering necessity or relevance, observing that the prosecution has provided other classified material without the relevance established in court. He said the prosecution’s misunderstanding of their obligations is “beyond curing,” and that the government “has so hopelessly confused discovery in this case so as to prejudice my client.”

“Therefore, I motion to dismiss all charges with prejudice.”

Coombs submitted the motion to dismiss, bringing copies to the judge and the prosecution.

Motion to compel deposition — defense witnesses improperly denied from Article 32 hearing

Lind then carried on to the motion to compel deposition – the defense’s filing protesting the denial of witnesses at the pretrial hearing and re-requesting their testimony. He argued these witnesses, Original Classification Authorities (OCA), should be reconsidered for three reasons – (1) their testimony is essential, (2) they were improperly denied from the hearing in December, and (3) the government has impeded the defense’s access to them.

Coombs said these “vital witnesses” were determined to be unavailable for the hearing, despite the fact that two of them were located here at Fort Meade, and weren’t even asked to attend. Instead of asking them, the government had decided independently that they weren’t available, and that the defense’s requests were “premature.”

Coombs explained that he’d asked for the contact information for the two civilian OCAs, to contact them on his own. A month passed with no response, so he asked again — Coombs said the government provided one indirect point of contact, and nothing else.

The prosecution stood to announce several, somewhat disparate explanations for their response to the defense’s request. The prosecution disagrees with the defense on the Investigative Officer’s findings, namely that the deposition denials were improper. Also, the prosecution promised to “endeavor to find” proper witnesses for the defense, and military “housekeeping rules” prevented giving information for those outside the military.

With that, Judge Lind dismissed the court for the day, and scheduled tomorrow’s hearing for 10 AM.

Photos

WL Central

Speaking to RT on Thursday about that afternoon’s hearing, Zack Pesavento of the Bradley Manning Support Network said that the prosecutors in the case continue to defend their right to withhold material from the defense, something he says is just “one more absurd allegation in a long train of absurdities.”

Coombs says he has repeatedly asked the government to supply him with documents that pertain to the case, but the military is defaulting to the claim that the material in question is classified and therefore must be shielded from civilian eyes. For two years, Coombs says, he has asked for documents that the government has still refused to deliver and, at this point, he believes the US should forfeit their case.

Capt. Ashden Fein, a prosecutor for the US military, defended the military’s role by saying they have tried to produce “as much as possible” and that the defense has waged a “fishing expedition” for information, according to the Associated Press.

Pesavento adds to RT that in addition to the court keeping the files out of the hands of the defense, reporters covering the case are often shielded from documents that are discussed before the judge but not introduced to the media. “The defense team really pleading with the prosecution to produce these impact assessments,” he tells RT, adding that even basic court dockets and transcripts are being purposely withheld from the press.

“These are mainstream organizations and outlets saying that were not getting the basic access that we ought to have here.”

“Coombs was really making a point today that it appears that by any clear assessment of the situation that the prosecution is basically sort of deliberately misunderstanding what it means to produce this evidence so that’s why they went ahead to file a motion today to dismiss all charges with prejudice,” he says.

David House, friend of Bradley Manning and a co-founder of the Bradley Manning Support Network speaks out on The Dylan Ratigan show on MSNBC, about the retaliation against the accused WikiLeaks whistle-blower. House had met with his friend Brad in prison before he was moved out of inhumane conditions that have now drawn the condemnation of United Nations investigators.

Uploaded by on Mar 15, 2012

House: Sounds like something that would happen in China.” Yeah, it sure the fuck does….

Live Blog: Bradley Manning Pre-Trial Motion Hearing

By: Kevin Gosztola Thursday March 15, 2012 8:27 am

exerpted from Kevin’s blog at firedoglake.com

UPDATE – 9:00 PM

Art Superhero @WikiLeaksTruck drew this courtroom sketch of Col. Denise Lind – the judge

UPDATE – 8:55 PM This the exact quote from Judge Lind on Lamo: “Please remember I just joined this case. Who is Adrian Lamo?” She officially became the judge on February 23. It is March 15 and she didn’t know of Lamo.

What is she doing? How has she prepared for this case? This motion hearing? She has little awareness of what was said during the Article 32 hearing. Why?

UPDATE – 3:53 PM I have to get to Washington, DC, to do “The Alyona Show” on RT. But, here is a quick update on what just happened when the court reconvened—

Coombs got up and stated that OCAs were essential witnesses, they were improperly denied at the Article 32 hearing and the government has “impeded access” to them. He pointed out that the witnesses should testified at hearing as this was why the court martial process was delayed. They were waiting on the OCA reports up until the last one was filed in November 2011.

The prosecution has had access to these witnesses to produce sworn declarations. However, the defense has not had the same access to the OCAs. And, in fact, Coombs claims they have not been allowed to contact the OCAs because the government has denied them access to such contact information improperly.

UPDATE – 3:09 PM There is a possibility that Manning testifies. Coombs says his client knows there is video that exists because he was being videotaped in Quantico Marine brig. The government says the video does not exist. Judge wants the defense to prove it exists. So, for limited purpose, Manning could take the stand.

UPDATE – 3:07 PM Full report on the defense’s motion for dismissal of charges posted here.

UPDATE – 2:03 PM The defense is trying to get disclosed damage assessments, FOIA requests for documents containing an investigation into the Apache helicopter attack in 2007 (“Collateral Murder”), computer forensic images and a Quantico video, which the government contends does not exist.

UPDATE –  1:58 PM I will be appearing on “The Alyona Show” on RT at 6 pm ET. I’ll be in studio to talk about Bradley Manning’s hearing today.

UPDATE – 1:45 PM Lunch recess now. Significant development—

Hearing the government’s explanation for why it was not producing information that the defense has tried to compel through discovery, Coombs decided to file a motion for all dismissal of charges prejudiced by the fact that certain information has not been provided. The explanation for why was not sufficient to Coombs. He waited for the response to his testimony on why he thought the government was utterly failing and then decided Manning has probably been prejudiced. So, the motion was handed to the judge.

UPDATE – 11:33 AM We heard during the arraignment that emails had been blocked. The government was complaining that it had not received emails. The problem was that some of them included the word “WikiLeaks” and were blocked by the spam filter. This is what Coombs said. It is part of the reason why the government was asked by Lind to address how it is going to ensure it is not missing communications between the judge, defense and others involved in the case from this point forward.

UPDATE – 11:20 AM Back-and-forth on proposed timelines for “time for motions.” Lind says response would be two weeks and then a week to consider all filings (after each hearing). She says “court had not considered reply briefs,” suggests those will be a “norm” for proceedings. Coombs mentions this may not be necessary and could infringe upon his client’s right to “speedy trial.” Lind answers by saying she is concerned, too, and knows Manning has been in confinement since May 2010. But, “the defense cannot request a speedy trial and then also make voluminous filings.”

UPDATE – 10:15 AM Five minute recess so the prosecution can locate some documents they cannot find. (evidently almost 700 days wasn’t enough)

UPDATE – 9:42 AM We are beginning now.

Original Post and summary

A two-day motion hearing for Pfc. Bradley Manning, accused of releasing classified information to WikiLeaks, is scheduled to conclude today (March 16). Three motions involving discovery of evidence, depositions and particular details surrounding the case were deliberated over in court yesterday and Col. Denise Lind, the judge, is expected to rule on those motions. She also is expected to release a calendar for upcoming dates, including when the trial will begin.

Key details from the first day of the hearing, March 15:

—The government was not receiving certain emails because “WikiLeaks” appeared in them. The government experienced issues involving emails up until March 11 because the word “WikiLeaks” was appearing in them. A “spam filter”—or, perhaps, a security block, was not letting the emails through. The prosecution worked with tech and now, of course, instead of ensuring emails with “WikiLeaks” do get through, they are just going to have a tech person check spam every day at 10 am to see if there are emails related to the Manning case. [POLITICO's Josh Gerstein had a good short write-up.]

—The defense outlined the information they are trying to get the government to disclose. The damage assessments, FOIA requests for documents containing an investigation into the Apache helicopter attack in 2007 (“Collateral Murder”), computer forensic images and a Quantico Marine brig video, which the government contends does not exist. The government claimed the FOIA requests were actually delivered to them at 7:30 pm on Wednesday night. (Of course, that suggests some shenanigans were happening. Because, why are they delivering evidence the night before motion hearings? No justification for withholding from the defense?)

Manning could potentially testify on the existence of the Quantico video. Specifically, the defense could put Manning on the stand as a witness to testify and present evidence that he, in fact, knows for certain a video exists. The government denies the video exists. The defense believes it does because Manning says he knows he was being recorded. This means an upcoming hearing is likely to see the first cross-examination of Manning on the stand.

Coombs continued to challenge the government’s denial of access to OCAs. Manning defense lawyer David Coombs has repeatedly requested access to original classification authorities (OCAs), who reviewed the material alleged to have been released to WikiLeaks and produced reports on the information in the documents that would potentially harm the United States. He said OCAs are essential witnesses, they were improperly denied at the Article 32 hearing and the government has “impeded access” to them. He pointed out that the witnesses should have testified at the hearing as this was why the court martial process was delayed. They were waiting on the OCA reports up until the last one was filed in November 2011.

Coombs added he believes the OCAs would say there was no “compromise of sources or methods and minimal damage.” He also conceded that “it could be the opposite.” They could say it has been “very terrible and x, y and z happened.” Regardless, this testimony from OCAs is critical to formulating a defense for Manning.

Defense filed a motion to dismiss all charges with prejudice. After hearing the government defend their denial of defense discovery requests, Coombs found he had no choice but to conclude that the government has wholly failed. He believes they do not understand the rules for discovery evidence requests. Because of denials of access to key evidence, he filed a motion to dismiss. The judge said she would need time to look it over. The government may respond today. This will be the subject of a future hearing and will not be deliberated over today.

A handful of Bradley Manning supporters were at the gates of Fort Meade when I arrived.

I am here to cover the pre-trial motion hearing and will be reporting on day two of the hearing. Updates will be posted at the top. There isn’t a lot of media here at all. That makes the coverage Firedoglake is producing even more important. And, it means FDL is getting attention that it might not typically receive if other outlets happened to be present.

I cannot find my RT America appearance last night. I’m going to ask if they plan on posting it at all.

In case you didn’t get to see it, this is my appearance on “The Alyona Show.”

2012-03-15 Live Blog and Transcript in Process #Manning Motion Hearing Fort Meade, MD

Exerpted from WLCentral.org go there regularly for updates. Note that this may be the only transcript of this historic trial since the people in charge of the December Article 32 Hearing evidently produced no transcript. Fucking mind boggling.

Submitted by Alexa O’Brien on Thu, 03/15/2012 – 13:04

Live Blog March 15, 2012

  • 9:05 a.m. I am situated in the press pool at Fort Meade, MD, preparing to transcribe a live transcript of Bradley Manning’s Motion Hearing. WiFi is not allowed during proceedings. I will compose throughout and post, when I am able.
  • 9:38 a.m. proceedings begin.

Live Transcript March 15, 2012

This transcript was typed from the press pool at Bradley Manning’s motion hearing on March 15, 2012 at Fort Meade, MD.

Please send corrections to carwinb@hushmail.com.

Bradley Manning’s motion hearing is held in same court room as his Article 32 Pretrial Hearing. You can read transcripts from the first three days of that proceeding, as well as transcriptf of his arraignment here.

This transcript may have errors and is an incomplete work in progress that I am updating LIVE. Once the proceeding is finished, I will edit and correct.

Military Judge: Col. Denise R. Lind After the arraignment the Government learned that it had not been receiving emails. And the court notes…Government will use of an alternate email address. Government had a server issue. Prosecution: Captain Ashden Fein please explain.

Prosecution: Captain Ashden Fein After realizing that the Prosecution did not receive emails…worked with the IT department…certain emails were blocked because they were marked as spam…the spam filter is now checks every day He specifics regime for spam filter checking.

Exerpted from Alexa’s blog on WLCentral.org go there regularly for updates

Blocking WikiLeaks emails trips up Bradley Manning prosecution

By JOSH GERSTEIN

3/15/12 11:48 AM EDT

The federal government’s vigilance at preventing anything relating to WikiLeaks from appearing on a government computer has tripped up military prosecutors, causing them to miss important emails from the judge and defense involved in the case against an Army intelligence analyst accused of leaking hundreds of thousands of diplomatic cables and military reports to the web-based transparency organization.

At a hearing last month, prosecutors in the case against Pfc. Bradley Manning noted that they didn’t receive the messages but could not explain why. Chief prosecutor Capt. Ashden Fein said at a hearing Thursday that the messages had been “blocked by a spam filter for security.” However, it fell to defense attorney David Coombs to explain precisely why the e-mails about evidence issues in the Manning case never made it.

“Apparently, they were blocked because the word ‘WikiLeaks’ was somewhere in the e-mail,” Coombs said.

Fein said there is now a procedure in place to check the spam filter on a daily basis for errant e-mails. In addition, military Judge Col. Denise Lind said prosecutors had set up an alternate e-mail account that shouldn’t encounter the same problem.

- continued here at Politico.com

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