May 28, 2012
Two years and two days since his arrest in Iraq on May 26, 2010, Pfc. Bradley Manning still awaits the start of his court-martial, as his lawyers and other sympathizers try to take the government to task for its secrecy regarding the 24-year old, who faces 22 charges, including "aiding the enemy," a charge that, in theory, carries the death penalty, although prosecutors have said that they will not be pressing for his execution, if he is convicted.
Manning, a former US intelligence analyst, is the alleged whistleblower responsible for leaking thousands of classified US government documents to WikiLeaks, dealing with the Afghan and Iraq wars, and the prisoners in Guantánamo, as well as hundreds of thousands of diplomatic cables. Held in damaging isolation for the first eleven months of his detention — in Kuwait and then at a military brig in Quantico, Virginia, he was then moved — after pressure was exerted by his many supporters, and by legal experts — to the Midwest Joint Regional Correctional Facility in Fort Leavenworth, Kansas, where he remains. His Article 32 hearing, preparing the way for his trial, took place last December, and he was referred to a general court-martial by the judge, Lt. Col. Paul Almanza. He was arraigned on February 23 this year, when he declined to enter a plea.
Now, as the Guardian reported last week, with hearings taking place prior to his court-martial, possibly in August, a coalition of lawyers and media outlets, led by the New York-based Center for Constitutional Rights, "has petitioned the Army court of criminal appeals calling for the court-martial against Manning to be opened up to the press and public," claiming that his military trial "is being conducted amid far more secrecy than even the prosecution of the alleged 9/11 plotters in Guantánamo."
The coalition — which also includes WikiLeaks’ founder Julian Assange, Jeremy Scahill and the Nation, Amy Goodman of Democracy Now!, Glenn Greenwald of Salon, Kevin Gosztola, co-author (with Greg Mitchell) of Truth and Consequences: The US vs. Bradley Manning, and Chase Madar, author of The Passion of Bradley Manning — is specifically complaining that the way the judge, Col. Denise Lind, is handling the trial is a violation of the First Amendment of the US Constitution, whereby the public should have full access to the proceedings "unless the government can specifically demonstrate the need for secrecy."
As the Guardian proceeded to explain, the petition "lists the many ways in which the public are being kept in the dark" over Manning’s prosecution," noting that the army has not allowed the publication of a single motion submitted by the prosecution to the court-martial, and, in addition, has not allowed the publication of any replies by the prosecution to motions submitted by Manning’s lawyers — "not even," as the Guardian added, "in redacted form." It was also noted that "[n]one of the orders issued by the court have been made public, and no transcripts have been provided of any of the proceedings — not even those that were fully open to the press."
The coalition challenging the US government have also stated that "the lack of openness is all the more serious given the gravity of the charges and the high-profile nature of the court martial which they liken to the trial of Lt. William Calley for the My Lai massacre in Vietnam and the legal tussle over the publication of the Pentagon Papers," leaked by Daniel Ellsberg to the New York Times in 1971.
In addition to these criticisms, members of the Bradley Manning Support Network, who have attended all of the pre-trial hearings, have repeatedly complained about the "outrageous obfuscations" of the Obama administration regarding the trial. Jeff Paterson, who co-founded the group, has asked, "Why has the administration spent two years trying to hide basic facts from the defense, the press and the American people?"
As the Guardian also noted, the only documents from the pre-trial hearings that have been made available to the public have been published on the website of Manning’s defence lawyer, David Coombs, who "has consistently protested about the lack of transparency in the conduct of the court-martial."
On May 23, Coombs published five defence motions prior to his next pre-trial hearings, scheduled to take place from June 6-8, at Fort Meade, Maryland scheduled for 6 June. In one of the motions, "Defense Motion to Compel Identification of Brady Materials," Coombs has complained that, as the Guardian put it, "over the past two years Manning has been denied the opportunity to take part in his own defence in any meaningful way," and "has had no chance to review some 7,000 documents handed to the defence team by the army, because no arrangement has been made to allow him secure access to the files," which are held in Rhode Island and Maryland.
Another motion, "Defense Motion to Dismiss Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II," calls on the judge to "dismiss many of the most serious charges against Manning on the grounds that the language used in them is unconstitutionally vague," on the basis that phrases such as "to the injury of the US or to the advantage of any foreign nation" are "problematically broad in scope."
In another motion, "Defense Motion to Compel Discovery #2," as the Guardian noted in a second article yesterday, Manning’s legal team "has released details of what they claim is a shocking lack of diligence on the part of the military prosecutors in affording him his basic constitutional rights." Filed by David Coombs, the motion sets out a catalog of "delays and inconsistencies in the army’s handling of the case"; in particular, a failure to "disclose key evidence that could help Manning defend himself against the charges."
The production of potentially exculpatory material ("Brady materials," as specifically mentioned in one of the other motions, above) is a legal requirement — "a cornerstone of American criminal law since the US Supreme Court laid down a ruling making it obligatory in 1963," as the Guardian put it — although the US military "has not yet completed a search even of its own files" to see if there is any such material that would be helpful to Manning. Criticizing the government, Coombs wrote, "That the government cannot get its ducks in a row with respect to discovery which is clearly under its control does not inspire confidence."
In the motion, Coombs explained that he had only recently found out that, although Manning was first charged on July 5, 2010, army prosecutors waited until July 29, 2011, before they even began inquiring about Brady materials to army officials of relevance to the case, and that he only discovered on April 17 this year that "absolutely no action had been taken by any of those officials." He described this discovery as exposing the government’s "utter lack of diligence" in undertaking the search for documents. He asked, "Why would the government wait until over a year after preferral of charges to begin its search for Brady materials? How could the government not have noticed that for nine months it had not received any material from any principal officials in the army? If the government cannot even search its own files properly, how can we believe them when they say they have diligently searched the files of other organisations?"
The motion also mentions those other organizations, and suggests materials that might be held by them — 12 organizations including the FBI, the Department of Justice, the State Department, the Army Criminal Investigation Command (CID), the Defense Intelligence Agency (DIA), the Defense Information Systems Agency (DISA), US Central Command (CENTCOM), US Southern Command (SOUTHCOM), the Diplomatic Security Service (DSS) and the Office of the Director of National Intelligence.
In addition, Coombs complained that he had not been given, as requested, "any assessments compiled by heads of US embassies and missions around the world regarding the overall impact of the WikiLeaks releases," and added that he was also awaiting the finding of a State Department working group of senior officials established to review "the potential risks to individuals from the WikiLeaks disclosures," as well as reports the group submitted to Congress "concerning the impact of WikiLeaks and the steps taken to mitigate the fall-out." As he concluded, "To allow the government to restrict the defence’s access to this information is to provide the government with an unfair tactical advantage that will likely prejudice Manning’s right to a fair trial."
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in April 2012, "The Complete Guantánamo Files," a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, "Outside the Law: Stories from Guantánamo" (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new "Close Guantánamo campaign," and, if you appreciate my work, feel free to make a donation.