The Bradley Manning Prosecution
Infected by Government Misconduct,
Dismissal is the Only Option
By Kevin Zeese
Global Research, March 20, 2012
URL of this article: www.globalresearch.ca/index.php?context=va&aid=29868
Last
week I spent two days in court for a pretrial motions hearing in the
court martial of Bradley Manning, the private accused of leaking
documents to WikiLeaks that showed widespread unethical and illegal
behavior by the Department of Defense and State Department. Manning has
suffered the fate the Queen put on Alice when she was in Wonderland, “Sentence first -- verdict afterwards.”
By the time his court martial is actually held he will have been
incarcerated for more than two years, one of those years was spent in
solitary confinement. But, that is only one of many obvious injustices
Manning is being subjected to.
In
fact, just before the pretrial motions were heard the UN Special
Rapporteur on Torture Juan Mendez completed a 14 month investigation and
published a lengthy report on
torture and otherwise abusive punishment. He wrote: “The special
rapporteur concludes that imposing seriously punitive conditions of
detention on someone who has not been found guilty of any crime is a
violation of his right to physical and psychological integrity as well
as of his presumption of innocence.”
Further,
Mendez concluded that the US military was at least culpable of cruel
and inhumane treatment in keeping Manning locked up alone for 23 hours a
day over an 11-month period in conditions that he also found might have
constituted torture.
The
motions hearing had some twilight zone moments. The prosecutors were
missing court orders and rulings as well as motions and documents filed
by the defense up until March 11 because in the strange world of the
‘land of the free’ when the word “WikiLeaks” appeared in an email, the
document was blocked. The government finally figured out that they were
missing filings, now every day the prosecutors check their spam box at
10 AM to see what the censors have hidden. Unlike other federal
employees in the land of constitutionally protected free speech, they
read the word “WikiLeaks,” what will be the impact!?
Taking
a lesson from the Queen in Alice in Wonderland, America’s top two
military commanders have already pronounced Manning guilty. Almost a
year ago, President Obama, the commander-in-chief, pronounced Manning guilty
saying “He broke the law.” Just recently the Chairman of the Joint
Chiefs of Staff, General Martin Dempsey, echoed that finding of guilt
before trial saying “He did break the law.” Dempsey’s comment was
published in Stars and Stripes,
the official newspaper of the Department of Defense. It seems like the
military is doing all they can to let everyone who serves on the jury
know their career is over if Manning is found not guilty.
This openly violates Article 37 of the Uniform Code of Military Justice which forbids “Unlawfully Influencing Action of Court.” This is a heavily litigated area because
the command structure of the military makes higher ranking officers
very powerful over their subordinates. In 2004, the United States Court
of Appeals for the Armed Services issued a unanimous decision that
affirmed the power of the military judge to dismiss charges and
specifications with prejudice in the face of unlawful command
influence, United States v. Gore, 60 M.J. 178 (2004).
Manning’s
attorney, David Coombs raised the issue of unlawful command influence
in the Article 32 hearing, when he sought testimony from President
Obama and other high government officials, writing: “The relevancy of
these witnesses should be obvious. Each of these witnesses has provided
statements that contradict those given by the OCA [Original
Classification Authority] witnesses regarding the alleged damage caused
by the unauthorized disclosures. Additionally, each of these witnesses is relevant in order to inquire into the issues of unlawful command influence and unlawful pretrial punishment in violation of Articles 13 and 37 of the UCMJ.” [Emphasis added.]
It
is unclear how Judge Col. Denise Lind will minimize the impact of
command influence in the Manning case. She can tell the jurors to
ignore the Commander-in-Chief and the Chairman of the Joint Chiefs
statements that Manning “broke the law,” but will that just make matters
worse?
But
this is not the end of the mess the government has created making a
fair trial seemingly impossible. Coombs pushed the government hard on
their denial of discovery. The government said there were 3 million
pages of documents related to the trial. Coombs has gotten a very tiny
fraction of those. The argument in court over discovery was about
disclosure of materials related to the Apache helicopter attack known as
the Collateral Murder Video, the damage assessment reports done by five
federal agencies on how the documents impacted national security, computer forensic images that could show what software was installed or downloaded, and video from the Quantico Marine Brig where Manning was held in solitary.
The
damage assessments are particularly important to both the underlying
offenses as well as sentencing. Regarding the underlying charge,
Manning’s most serious charge is aiding the enemy, who the government
disclosed in court was al Qaeda of the Arabian Peninsula. The damage
assessments would surely describe whether and how al Queda was aided by
the released documents.
Since
October 2010 Coombs has been asking for the damage assessments. The
State and Justice Departments claim not to have finalized their
assessment (Will they ever? Will they before the Manning trial?) The
Defense Intelligence Agency and the Central Intelligence Agency have
completed their assessments, but they are classified. The Federal Bureau
of Investigation has completed their assessment but it has not been
made available. Coombs pointed out that leaks and statements by top
officials like Secretary Clinton and former Secretary Gates indicate
there was no significant damage from the release.
The
government says that if they are ordered to produce the materials they
will have to go to the Original Classification Authority to review them
and that this could take up to 60 days to complete. Coombs was
surprised that this had not already been done. And, the government
claimed that any documents ordered released would be reviewed for
relevancy, they said it could be that one paragraph is relevant out of
100 page document where the remainder will be redacted. It is evident
that discovery will be an ongoing battle as the prosecution seems intent
on hiding information from the defense. When I practiced law and the
government opened their files and showed everything, I realized there
was not much evidence on my side, but when the government hid documents
it almost always would mean – they had something that could lose their
case.
After
arguing the discovery motion for an hour, where he repeatedly
criticized the government lawyers for not understanding their
responsibilities under the discovery rules, Coombs heightened the
argument by filing a motion to dismiss because of the government’s
failure to provide discovery. He argued that he did not know how this
could be fixed; comparing it to baking a cake and 45 minutes into the
baking realizing you forgot to put in the eggs.
Coombs
also sought a Bill of Particulars, seeking more specificity of the
facts the government intends to prove. Coombs specifically 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.
Judge Lind interjected herself, asking an Alice in Wonderland-Queen
like question: “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.”
It
is not only the defense that is not being given information, but the
media and public are also being kept in the dark. The government is even
hiding court filings from the media. The Reporters Committee for Freedom of the Press
sent a letter signed by 46 media outlets urging the military to adopt
at least the same level of media access as extended to trials at
Guantanamo Bay, amazingly those terrorist trials provide more information to the media than the trial of Private Bradley Manning.
From
pretrial abuse through prosecutors not living up to discovery
obligations and commanders declaring Manning guilty it seems like the
government is trying to send a message – blow the whistle on war crimes
and we will incarcerate and torture you, prosecute you in a kangaroo
court and put you away for life. It is almost a “we can do anything we
want to you” message to troops that if they let the truth be known, they
will be severely punished regardless of the law.
The
case is once again reminiscent of the prosecution of Daniel Ellsberg
for leaking the Pentagon Papers and faced up to 115 years’
incarceration. During the trial it came out that the White House had broken into Ellsberg’s psychiatrist’s office
and the judge ordered those documents released to the defense. John
Ehrlichman twice met with the judge during the trial and offered him the
directorship of the FBI. The FBI also taped numerous conversations
involving Ellsberg and did not disclose this in discovery. After a four
month trial, just as the case was going to a jury the judge dismissed all charges after the government claimed it had lost records of wiretapping against Ellsberg. Judge Byrne dismissed the case
ruling: “The totality of the circumstances . . . offend a sense of
justice. The bizarre events have incurably infected the prosecution of
this case.”
The
bizarre and unfair behavior of the government in the prosecution of
Bradley Manning likewise offends a sense of justice and has incurably
infected the possibility of a fair trial and a just result. Short of
outright dismissal it is hard to see how justice can be done.
Kevin Zeese is co-chair of Come Home America which brings people across the political spectrum together who oppose war and empire. He is one of the organizers of the National Occupation of Washington, DC which begins on March 30.
