June 23, 2012
The defense for Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, has filed a relief motion calling on the military judge to temporarily suspend court martial proceedings and order the prosecution to state how it has taken steps to disclose known evidence that might negate or reduce Manning’s degree of guilt or reduce the punishment he might face if found guilty.
The request to temporarily suspend proceedings, according to the motion, is being made because prosecutors have not fully conducted a due diligence search for evidence and have not handed over evidence that has been formally requested.
The motion lists what organizations they are still waiting to receive evidence from: Interagency Committee Review, President’s Intelligence Advisory Board, House of Representatives Oversight Committee, the State Department’s Chiefs of Mission review, Wikileaks Working Group "Mitigation Team," the State Department’s reporting to Congress and other files, Defense Intelligence Agency (DIA), Defense Information Systems Agency (DISA), Central Command, Southern Command, the Department of the Army Headquarters, the Federal Bureau of Investigation (FBI), Diplomatic Security Service (DSS), Justice Department, "Government," Office of the Director of National Intelligence (ODNI), Office of the National Counterintelligence Executive and sixty-three agencies or other organizations the government claims to have contacted with regards to the alleged leaks.
The defense argues the withholding of evidence will impact the defense’s ability to prepare a witness list, file future motions to compel discovery of evidence, admit or authenticate evidence that could be used in the trial, enter a plea and delay a speedy trial motion. It requests that the judge, Army Col. Denise Lind, order the production of this material under a "relevant and necessary" standard that is dictates what evidence is and is not discoverable to the defense.
Additionally, in the same motion, the defense moves to compel the discovery of four computers from the intelligence facility that Manning worked in at the Forward Operating Base Hammer in Iraq, where he is alleged to have carried out the downloading and transfer of information to WikiLeaks. The motion says the government "represented" the computers would be produced on May 18 in a statement made on April 16. On May 29, "the defense asked when it should expect to receive the hard drives." The government claimed they would have approval to hand over the drives by the end of the week. But, as of June 2, the government still had not provided the computers to the defense.
The defense also moves to compel the prosecution to turn over an "FBI impact statement" and an "ONCIX damage assessment." (The prosecution has preposterously claimed law enforcement files from the FBI are irrelevant to Manning.)
Interestingly, for anyone who wants a particular glimpse at the secrecy games the military prosecutors and government have been playing, the motion includes a timeline of when requests for evidence from the State Department were made. A bulleted list summarizes for the judge:
- There have been six pre-referral discovery requests for material within the Department ofState with respect to the alleged leaks;
- The Defense moved to compel Department of State damage assessments at the Article 32 hearing;
- The Defense moved to compel damage assessments, forensic results and investigative files from the Department of State in the Motion to Compel Discovery #l;
- The Government has knowledge that the Defense has been seeking to depose [REDACTED REDACTED] for approximately 8 months;
- The Defense’s Touhy request on 23 March 2012, which a copy was provided to the Court and Government counsel, referenced the Chiefs of Mission, Wikileaks Working Group, Mitigation Team and the DoS Reporting to Congress; and
- The Defense submitted [REDACTED REDACTED] declaration (regarding the Chiefs of Mission,Wikileaks Working Group, Mitigation Team and the DoS Reporting to Congress) to the Court on 27 March 2012.
A little over a week after WikiLeaks began to publish the US State Embassy cables a request was made for "All forensic results and investigative reports by the Department of State regarding the information obtained by Wikileaks as referenced by Assistant Secretary of State for Public Affairs Mike Hammer; any specific damage assessment by the Department of State regarding the disclosures of the diplomatic cables by Wikileaks; any assessment, report, e-mail, or document by Secretary of State Hillary Clinton regarding the disclosures of diplomatic cables by WikiLeaks; and any report, e-mail, or document discussing the need for the State Department to disconnect access to its files from the government’s classified network." (Note: Both Hammer and Clinton’s names are redacted in the motion because apparently the prosecutors and judge don’t fully understand the power of Google and the fact that who holds these positions in government is public information.)
A request for access to "all classified information" the government intended to use in the case was made on February 16, 2011. Then, on October 13, a request for all documentation related to the alleged leaks from the State Department and any damage reports on the leak was requested. On November 22, ahead of Manning’s Article 32 hearing (which determined whether or not the charges against him would move on to a court martial), the defense filed a request for production of evidence from the State Department that cited news reports on how the agency responded to the leaks. On December 1, a request to compel the production of State Department, FBI, DIA, ONCIX and CIA investigations was made. That was denied and Manning had his Article 32 hearing from December 16-22.
On January 20, 2012, defense made a request that asked, "Does the Government possess any report, damage assessment, or recommendation by the Department of State concerning the alleged leaks in this case? If yes, please indicate why these items have not been provided to the Defense. If no, please indicate why the Government has failed to secure these items." That was pretty direct, but it seems the government maintained the material being requested was not relevant to Manning.
The defense tried to get State Department witnesses in court and/or depositions outside of court. The government would not provide contact information for one of the witnesses requested because this official was not a "government witness." The defense tried to order a deposition of Under Secretary of State for Management, Ambassador Patrick Kennedy, who testified before Congress on the State Department’s response to the leaked cables.
Finally, a breakthrough for the defense: in March, the judge ordered the government to search damage assessment reports pertaining to the leaks, notify the court where any "forensic results or investigative files" might be located and ordered the government to produce key State Department damage assessments. As of April 20, the State Department was turning over information and, during the June motion hearing, three witnesses from the State Department testified on the response to the leaks and what kind of records on possible damage caused might exist. The defense intended to use the testimony to make certain the government was not hiding any evidence the defense should be able to use in their case from them.
The context for these battles is laid out in the motion.
…the bottom line is the Government is closely aligned with the Department of State. It had knowledge – at the very latest, in March 2011 – that the Department of State had created the Chiefs of Mission review, Wikileaks Working Group, Mitigation Team and that the Departmentof State had reported to Congress. It likely knew about these things much earlier. It had a duty in early 2011, not in mid-2012, to arrange for a review of these files as part of its Brady obligations. Instead, it willfully chose to ignore its Brady obligations and, even worse yet,obfuscate for the Defense and the Court what materials the Department of State had and didn’t have. The Government’s utter lack of diligence with respect to the Department of State is emblematic of its "diligent Brady search" in other closely aligned agencies.
The failure to review State Department files, however, has been seemingly justified by statements from the government that the "damage assessment has been available" to the defense" as of May 18. This the defense asserts is "half-truth." "Arbitrary limitations" have been imposed "upon the Defense’s access to the Department of State damage assessment. In particular, the Defense must give the Government at least four duty days’ notice in order to access the damage assessment." The defense’s access has alos been limited by requirement that the defense only "access the document in the presence" of defense "security experts." This restriction created difficulties for the defense because experts would have to leave the DC area where they work and come to Rhode Island. When the defense followed up with the prosecution making concerns known, the prosecution made it even more difficult. Now, the defense has to submit a formal request to the court martial convening authority to re-approve the appointment of defense experts and then the convening authority can approve or disapprove of whether it is necessary to have experts present.
This is but a fraction of the secrecy games that the military prosecutors and government have been playing in the case against Manning. All along the government and military prosecutors have insinuated or outright suggested that the defense is asking for this information to "open up the government’s files." Fein even preposterously accused the defense during the April motion hearing of "graymail," which is defined as "a tactic used by the defense in a spy trial, involving the threat to expose government secrets unless charges against the defendant are dropped." He said if the court approved the defense’s demands for information, this could lead to other soldiers trying to "graymail" the government. A soldier could then release any classified information and steps by the government to investigate the leak would be "discoverable."
The military prosecutors have also played a dual role. Not only have they been working to convict Manning, but they have also been acting as gatekeepers for the government so that information on how the government responded to the WikiLeaks disclosures and how the government has been investigating Bradley Manning and WikiLeaks is not handed over. The prosecutors have claimed they are protecting national security and blacked out full portions of documents that the defense requested. And all of these secrecy games are why the judge announced during the June hearing Manning’s trial would be moved from September to November or January of next year.
It seems deliberate. Why would President Barack Obama have wanted Manning to be convicted before his possible re-election? Post-conviction, why would he have wanted to take the chance that this would become a nuisance as grassroots supporters of Manning confronted him at stops on the campaign trail in the final weeks before Election Day? So, now, after refusing to diligently search and hand over evidence to the defense, Manning will go on trial in November at the earliest. He will have been in pre-trial confinement for nine hundred to a thousand days.