Tuesday, 03 April 2012 13:11 By Phil Fornaci and Jane Zara, Truthout | Report
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The WikiLeaks/Bradley Manning debacle provides us with a startling example of how brutally the US government treats those brave enough to provide even a glimpse of the machinations of its imperial assault on the rest of the world. Manning and the whistleblower web site WikiLeaks are credited with providing information that helped precipitate earthshaking historic events, including the Arab Spring and the recent withdrawal of US troops from Iraq. More notably, Manning and WikiLeaks are also credited with (and criminally accused of) release of the so-called “Collateral Murder” video footage of the slaughter of Reuters reporters and other civilians by the US military in Baghdad. For his alleged role in this “crime,” Manning is enduring one of the most aggressive legal prosecutions in American history.
Manning was held for more than 20 months in pretrial detention (often under brutal conditions) until he finally had the military equivalent of his first day in court, on December 2011, at the massive Fort Meade, Maryland, army installation. For the next seven days, Manning was the subject of a military Article 32 hearing, proceedings that we examine in this article. The outcome of the Article 32 hearing, announced two months later, on February 23, 2012, is that Manning will stand trial for “aiding the enemy,” among other charges, which could put him in prison for the rest of his life and possibly result in a death sentence. Typically, “railroading” a criminal defendant means that the he will be found guilty, regardless of the evidence produced. This appears to be the US government’s plan for Private Manning.
We are lawyers with significant experience in prisoners’ rights and criminal prosecution, but with minimal prior experience with military criminal procedure. We attended several days of the Manning hearings in an effort both to understand what was happening to him and to witness the proceedings in solidarity with Private Manning. The evidence we saw, and learned about, does not even justify keeping Private Manning in custody, much less convicting him at trial.
The Article 32 Hearing and the Behavior of the Investigating Officer
The Article 32 hearing is a proceeding under the United States Uniform Code of Military Justice (UCMJ) similar to a civilian preliminary hearing. The stated requirements are that no charge or specification can be referred to a general court-martial for trial without a thorough and impartial investigation of all matters. These requirements are laughable in light of the reality that unfolded at the Manning Article 32 proceedings.
Under usual circumstances, Military Rules of Evidence (MRE) establish a low threshold of relevance for turning over evidence to defendants. “[M]ilitary law has been preeminent, zealously guaranteeing to the accused the right to be effectively represented by counsel through affording every opportunity to prepare his case by openly disclosing the Government’s evidence.” In its request to compel production of evidence, Manning’s attorneys explained: “To ensure that R.C.M. 405 and 703 will have meaning at trial, ‘each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence…. The accused is entitled to inspect both exculpatory and inculpatory evidence.”
This standard requires the government to turn over relevant items that are within its control, even if that evidence is not already in its immediate possession. The prosecution and defense, “shall have equal opportunity to obtain witnesses and evidence,” and the “prosecutor will be deemed to have knowledge of and access to anything in the possession, custody, or control of any federal agency participating in the same investigation of the defendant.”
Despite these requirements, the Investigating Officer (IO) in Manning’s Article 32 hearing, Lt. Col. Paul Almanza, denied most defense requests for witnesses, as well as requests for the production of inculpatory and exculpatory evidence in the possession of the government. Almanza is a civilian reservist and senior prosecutor in the Department of Justice (DOJ). During the first day of the Article 32 hearing, Manning’s attorney made an impassioned motion for his recusal. Citing the conflict of interest in light of the DOJ’s ongoing investigation of Manning and WikiLeaks, as well as his regular employment as a Justice Department prosecutor, Manning’s attorney David Coombs made the point that Almanza’s role as IO raised issues of apparent conflict of interest. Coombs also pointed to Almanza’s pre-hearing decisions to exclude nearly all defense witnesses. Almanza refused the invitation to step down and also denied a motion to stay the proceedings until an appellate body considered the issue of bias. The Article 32 hearing then immediately proceeded forward.
In a memorandum for the Article 32 IO titled, “Witness Justification” and dated December 8, 2011, Coombs noted:
If the defense does not have the opportunity to question the case agents about evidence they developed, witnesses they interviewed, leads they pursued, leads they elected not to pursue, and other relevant matters, the defense will also be denied an important function that the Article 32 investigation is designed to accomplish …
Among the witnesses Almanza excluded were several government figures involved in investigating the very allegations of aiding the enemy and causing tangible harm to national security at issue in the case. Critical documents and witnesses the defense sought, but to which it was denied access, include reports from DOJ, FBI, the Defense Intelligence Agency (DIA), the State Department and other government agencies investigating Manning and WikiLeaks. On November 22, 2011, the defense submitted a formal request for production of this evidence. The government responded on November 30, 2011, essentially refusing to hand over any of the requested documents, stating incredibly that it “has no knowledge of any Brady or Jencks material … [and] does not presently have the authority to disclose damage assessments, if any, cited by the defense and will make a determination whether to provide the information if and when it becomes available.”
Under the Rules for Courts-Martial, (RCM) 405(g)(1)(B), the IO must make an initial determination whether the information requested is reasonably available, based on the military courts’ recognition that there exists, “much more direct and generally broader means of discovery by an accused than is normally available to him in civilian courts.” According to the rules, if requested information is available, the IO must order production at the Article 32 hearing. Otherwise, the IO must include a statement of reasons for the determination of unavailability. In the Manning proceedings, the IO and the prosecution failed to adequately disclose reasons for denying witnesses or production of inculpatory and exculpatory evidence already in its possession. Without the production of requested and pertinent discovery, the Article 32 investigation is flawed and deficient, as is the case here.
Coombs characterized the government’s response to defense requests as “yet another example of its failure to exercise due diligence in obtaining requested information. The government failed to provide a detailed account of its efforts to comply with its discovery obligations.” And by claiming it does not have the present authority to disclose damage assessments, if any, and will make a determination whether to provide the information if and when it becomes available, the government is either “intentionally obstructionist” or simply fails to exercise due diligence.
The prosecution’s blanket refusals to turn over relevant evidence (most of it well-known to be in government possession) indicate flaunting of the rules around discoverable materials that must be made available to the defense.  Under RCM 405(g)(1)(B), the prosecution must disclose exculpatory information to the defendant, which never happened here. Nor did it produce any inculpatory evidence; that is, the prosecution provided no evidence that the information allegedly leaked by Manning caused any damage to national security.
Manning’s Pretrial Confinement
As is well known, Manning had been subjected to at least nine months of torturous conditions of confinement, including sleep deprivation, complete isolation from human contact, forced nudity and humiliation, before being transferred to reportedly more humane conditions in the wake of global outrage. Manning’s attorneys pointed out that the subject of Manning’s pretrial confinement was relevant for consideration by the IO at the Article 32 hearing:
Whether PFC Manning was unlawfully punished prior to trial is a relevant matter for you to consider. The fact[s] of his unlawful pretrial punishment is appropriate information for you consider in forming your recommendations to the convening authority. The issue is also important for the integrity of the military justice system and the appearance of fairness in the process.
According to the defense, government witnesses would testify that their weekly status reports on Manning indicated that precautions used to justify his deplorable detention conditions were unnecessary. The IO did not allow these witnesses to testify. To add insult to injury, the IO even denied witnesses who could introduce mitigating evidence about extenuating circumstances in Manning’s life while he was in the military, as well as describing instances of bullying and the hostile environment he endured.
Inexplicably, the government ignores RCM 405(f) and controlling case law which clearly states an accused has the right to present evidence in defense, mitigation, and extenuation at the Article 32. See RCM. 405(f). Article 32(b), Uniform Code of Military Justice (UCMJ) (stating an accused may “present anything he may desire in his own behalf, whether in defense or mitigation, and the investigation officer shall examine available witnesses requested …”).
The Charges Against Manning, and the Evidence
Based on the information produced (and not produced) at the December Article 32 hearing and subsequent rulings, the IO referred Manning’s case to a general court martial. On February 23, 2012, Judge Denise Lind, Chief Judge, 1st Judicial Circuit of the US Army Trial Judiciary, and Manning’s trial judge, read 22 charges for which Manning will stand trial, the most serious of which is violation of Article 104 of the UCMJ, “Aiding the Enemy,” claiming that Manning did, “knowingly give intelligence to the enemy, through indirect means.” Although the prosecution has asserted that it will not seek it, the death penalty is available under this charge. Most of the other charges against Manning involve “improper” handling of “classified” material and a range of offenses, involving downloading unapproved software on his military and personal computers.
The identity of the “enemy” whom Manning is accused of aiding was revealed on the last day of the Article 32 hearing to be “Al Qaeda, Al Qaeda in the Arabian Peninsula, and ‘classified’ enemies.” Although there are allegations that Manning made thousands of secret documents available to WikiLeaks, there are no allegations that Manning had any contact whatsoever with the shadowy al- Qaeda bogeymen. His alleged crime is merely that he made information embarrassing to the US government available to anyone with access to the Internet, including the American people.
Manning’s defense team has focused on the lack of harm caused by the alleged leaks, as well as on Manning’s alleged “diminished capacity.” The latter focuses on Manning’s interest in sexual identity issues, with claims that this isolated, gay soldier was contemplating a sex change while on duty in Iraq. While both claims may have some merit toward mitigation, they are off point. It is far from established legally that Manning actually leaked any classified information to anyone.
RCM 405(e) supports an accused’s rights to challenge the legality of searches, the admissibility of confessions and the unlawfulness of pretrial punishment (under Article 13 of the UCMJ). Up until now, very little time has been devoted in these proceedings to challenging the validity of warrants used to gather evidence, ascertaining proper chain of custody of crucial forensic evidence or challenging the credibility of so-called “confidential informants” relied upon for the government’s case in chief. These issues are key to Manning’s defense.
The only supposed “evidence” linking Manning to the leaked documents, and, by extension, to WikiLeaks, are the infamous chat logs provided to the government by Adrian Lamo. Lamo is a computer hacker and a convicted felon for computer fraud, as well as a recovering addict, confirmed government informant and a sometime contributor to Wired magazine. Manning allegedly contacted Lamo in May 2010, under the screen name, “BradAss87,” revealing a wide range of personal and political views and praising the “Collateral Murder” video released by WikiLeaks in March 2010. The day after his first of six days of electronic chats with “BradAss87,” Lamo contacted military officials. Two weeks later, Manning was taken into custody.
The chat logs produced by Lamo (and subsequently published in Wired magazine) raise more questions than they answer, yet they are the primary basis for Manning’s prosecution. Lamo told “BradAss87” that he was a journalist and a minister, assuring his new friend that their discussions would remain private, even admitting that he told BradAss87 that he could treat their conversation like a confession. Even if the chat logs can somehow be verified as accurate and involving actual communication between Manning and Lamo, this evidence should be suppressed on privilege grounds.
Other evidentiary problems became apparent at the Article 32 hearing. For example, Special Agent Toni Graham testified that she had secured the warrant to collect Manning’s belongings in Iraq, amassing an assortment of computers, memory cards and discs, and materials not only from Manning’s housing unit, but from areas where he had only been known to visit. She admitted that much of her affidavit for the original warrant was based on information from commanders at Ft. Belvoir, who had received intelligence from a confidential informant (most certainly Lamo) and from an article in Stars and Stripes, a military publication. At the hearing, Graham swore again to the veracity of the affidavit she submitted for the search warrant, which stated that Manning had been penetrating secret military accounts for over a year, although Manning had only been deployed in Iraq for seven months at that point.
Special Agent Antonio Edwards, a forensic investigator, provided testimony that strained credulity. He testified that he spoke to a third party, who spoke to someone (Lamo), who had spoken to a US Army analyst, who was speaking to an Australian allegedly involved with WikiLeaks. Edwards eventually met Lamo on June 11, 2010, in Sacramento, California, nearly two weeks after Manning had already been taken into custody. At this meeting, Edwards claims to have collected Lamo’s computer equipment for analysis, and gained Lamo’s consent to serve as an informant (again). Edwards testified that Lamo was so interested in being a snitch that he needed no specific guidance, only the general admonition not to “do anything that would be illegal.”
Special Agent Mark Mander, a member of the Army’s Computer Crimes Investigative Unit (CCIU), described how, on June 18, 2010, he contacted and eventually visited Manning’s aunt, Deborah van Alstyne, of Potomac, Maryland. This was Manning’s home mailing address. Accompanied by other agents from CCIU and the State Department, Mander said they searched the Van Alstyne home without a warrant, specifically, a basement room where Manning’s things were allegedly located. They collected a computer that van Alstyne said belonged to Manning and had been kept on and connected to the Internet. A few months later, Mander returned to the van Alstyne home, searching Manning’s belongings, apparently without Manning’s consent or a warrant. Prior to this second visit, Manning’s aunt had rearranged his belongings, putting them in plastic boxes in the basement, which were then collected by Mander, who retrieved memory cards, a hard drive and memory devices. Van Alstsyne claimed to verify that the items in question belonged to Manning. Obvious concerns about the chain of custody of evidence arise here. It is also worth noting that this search occurred months after Manning had already been taken into custody.
Special Agent Calder Robinson, with the Computer Crimes Investigative Unit (CCIU) in Germany, traveled to Baghdad in May 2010 to take control of digital evidence, conduct a preliminary forensic examination and transport it elsewhere for further forensic examination. He went to Camp Liberty in Baghdad and obtained forensic images of evidence and conducted preliminary examinations on hard drives, etcetera. Robinson testified that, (1) Manning’s computer was not password protected, (2) he could not verify if the computer devices were even Common Access Card accessible (which would prove who had accessed the machine), and (3) Manning’s personal computer was not password protected. His testimony raised the obvious problem of definitively linking Manning to any materials allegedly sent from any computer if other people also had unfettered access to these machines.
March 2012 Motions Hearing
On March 15-16, Judge Lind heard arguments on a range of discovery disputes, notably the prosecution’s failure to provide several million pages of discoverable materials and its refusal to make numerous relevant witnesses available for depositions. The defense also filed a bill of particulars, seeking clarification on the basis for the government’s charges and the general theory of its prosecution. Judge Lind denied the defense arguments that the specifics provided by the prosecution were so vague as to hinder Manning’s defense, although she ordered the prosecution to file a more complete answer to the defense filing within the week.
As noted earlier, in a January 20, 2012, filing, the defense had submitted a supplemental motion for discovery, requesting specific information regarding any available reports or damage assessments related to the alleged disclosures by Manning, as well as continuing efforts to locate and depose relevant witnesses. During the March 15 hearing, argument focused primarily on the government’s failure to provide Brady materials to the defense, in particular, internal government reports and assessments of damage to national security alleged to have occurred as a result of the leaks at issue in the case. Such assessments would clearly be material to the defense’s case, the standard for discoverable information under Brady, and the existence of such reports was tacitly admitted by the prosecution. When questioned by Judge Lind about whether there was unproduced Brady material, the prosecution counsel replied that he could not respond to the question because the answer itself was “classified.” In response, claiming that the prosecution’s mishandling of discovery requirements was “beyond curing,” the defense moved for immediate dismissal with prejudice of all charges against Manning.
During a brief public hearing (following closed hearings all morning), Judge Lind announced she would defer her decisions on the defense discovery requests and a wide range of other matters. As defense counsel noted, after Manning had spent 661 days in prison, the government had still failed to provide Manning with basic discovery information crucial to his defense. Most notably, it still refused to provide useful assessments of how the information allegedly leaked by Private Manning had in fact harmed national security interests,”the very basis of the Manning prosecution. Defense counsel formally submitted its motion for dismissal of all charges.
Manning and WikiLeaks
Alleging links between Manning and Julian Assange of WikiLeaks through the use of highly questionable electronic intercepts of online chats between Manning and “an individual associated with WikiLeaks,” the prosecution asserts that the mere posting of secret government documents on WikiLeaks suffices as aid to “Al Qaeda” and to “Al Qaeda in the Arabian Peninsula.” Regardless of whether these entities actually qualify as “enemies” under the UCMJ, and despite the lack of any demonstrated connection between WikiLeaks and al-Qaeda (beyond a bizarre video produced by the prosecution in their closing argument of a “classified enemy” alleged to have accessed WikiLeaks), the government claims that release of classified information aids the enemy flavor of the day.
The ultimate goal of the Manning prosecution seems to be less the incarceration of Manning than the continued witch-hunt against Julian Assange and WikiLeaks. The impact of the leaks attributed to Manning has already been absorbed. They were focused on historical events and, although they have had (and continue to have) important impacts, the real concern of the US government is the continued existence of WikiLeaks as an outlet for (unauthorized) leaked information. It’s hard to find any other explanation for the flimsy case brought against Manning with such fanfare, and his torturous and humiliating confinement, than as a way to force him to give evidence against Julian Assange. It appears that the US government wants to use the threat of life imprisonment to scare Manning into giving up evidence against Assange, evidence that very likely does not exist, even if he were successfully compelled to cooperate.
The federal grand jury investigation of WikiLeaks was first revealed in May 2011, seeking prosecution of Julian Assange under the Espionage Act  and/or the Computer Fraud Act . Prosecution under either statute would require evidence of direct influence by Assange to persuade Manning to release classified information, or evidence of a conspiracy between the two. Prosecution of Assange under the Computer Fraud Act requires actual direct involvement by Assange accessing a government computer, utilizing a stolen computer password or similar access. The government needs direct evidence not only that Manning provided classified information to WikiLeaks, but that he was encouraged (and aided) by Assange in providing it.
If Manning is unable, or unwilling, to provide testimony against Assange, the tenuous case against WikiLeaks is likely doomed. Despite prosecution allegations that Manning had been in direct email contact with Assange, the evidence to prove these assertions is based on so-called “intelligence sources” and other dubious claims. There appears to be no actual evidence that Manning (or anyone else) was in direct email contact with Julian Assange and, indeed, such assertions would be nearly impossible to prove without one of these men verifying them. This is why the government is relying so heavily on the chat logs between Manning and the government informant, Adrian Lamo, which by themselves cannot prove the alleged Assange-Manning communications and which should be suppressed in any case. If there is no proven link between an American source (such as Manning) and WikiLeaks, Julian Assange should be no more liable to prosecution for leaking confidential information than The New York Times.
The Manning trial will likely occur in August 2012, more than two years after Manning’s arrest. Manning is only 24 years old and appears much younger. He is bravely enduring some of the most grueling conditions that the American imperial system can impose. The Bradley Manning Support Committee has already designated him a hero and, indeed, he has been nominated for the Nobel Peace Prize, but he is a criminal defendant fighting for his life, first and foremost. It has yet to be proven that he is responsible for the acts for which he is accused, and it is incumbent upon his legal team to make the government prove its case. If indeed Manning did release the “Collateral Murder” video and thousands of secret documents to WikiLeaks, we must honor and support him as a true hero, but the first task is to defend his legal rights and his personal safety.
 Relevant evidence is any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. M.R.E. 401.
 Id. at p. 2, citing Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Kern, 22 M.J. 49, 51 (C.M.A. 1986). Coombs reminds the prosecution: [t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material, either to guilt or punishment, irrespective of the good faith or bad faith of the prosecutor. Anything that tends to assist the defense, cast doubt on the government’s case, or impact on a potential punishment is ‘evidence favorable to an accused’. Citing Army Reg. 27-26¶3.8(d); United States v. Kinzer, 39 M.J. 559, 562 (A.C.M.R. 1994); United States v. Adens, 56 M.J. 724 (A.C.C.A. 2002).
 United States v. Manning, Defense Request to Compel Production of Evidence, Dec. 1, 2011, citing United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989); United States v. Williams, 50 M.J. 436, 441 (C.A.A.R. 1999).
 The defense’s subsequent request to compel production of evidence on Dec. 1, 2011 included the following: the National Security Staff’s Senior Advisor for Information Access and Security Policy review of the alleged leaks; emails, reports, assessments, directives, and discussions by the Department of Defense concerning the presence of unlawful command influence under R.C.M. 405(e); emails, reports, assessments, directives, or discussions by the Department of State or Department of Justice concerning this case; damage assessments conducted by the Information Review Task Force; the collateral investigations by the Department of State, the FBI, the Defense Intelligence Agency, and the Office of the National Counterintelligence Executive; any forensic results and investigative reports by any cooperating agencies in this investigation; the Department of Justice investigation into the alleged leaks by WikiLeaks, including grand jury testimony and any information relating to any 18 U.S.C. sec2703(d) order or any search warrant executed/issued by the government toTwitter, Facebook, Google or any other social media site; the Department of State damage assessment review conducted by its task force of over 120 individuals; the Damage Assessment of Compromised Information that is required to be submitted to the Special Security Officer under DoD 5105.21-M-1 once an SCI Security Official determines that a security violation has occurred; a copy of the final security violation investigation report submitted to the SSO DoD/Defense Intelligence Agency under DoD 5101.21-M-1; See also United States v. Manning, Defense Request for Art. 32 Witnesses, Dec. 2, 2011.
On Jan 20, 2012, Manning’s defense requested the following information: Any reports, damage assessments , recommendations by: WikiLeaks Task Force or any other [entity] concerning the alleged leaks in the case; as well as such documents as a result of any joint investigation with FBI or any other government agency concerning the alleged leaks in the case by the Information Review Task Force, the Department of Justice, the department of State, the Office of the Director of National Intelligence, the Defense Intelligence agency, and the National Counterintelligence Executive.
 Shelton v. United States, No. 02-CF-1197 (D.C. Nov. 12, 2009), addressing the government’s deliberate failure to disclose exculpatory information, and likened to “an admission that the government thought its case was weak.”
 Id. at p. 6. The government, in its refusal, provided the flawed rationale that Manning did not have a severe mental disease or defect. Manning’s defense noted the government’s hypocrisy “The fact PFC Manning did not have a severe mental disease or defect only indicates that he does not have a basis to claim an insanity defense.”
 See Def. Req. for Art. 32 Witnesses: Art. 32 Witness List, Dec. 2, 2011, esp. at p. 17. Defense challenges to the prosecution’s allegations regarding leaks of classified information were denied by rendering requested witnesses unavailable or irrelevant to the proceedings. Witnesses pertinent to the defense in challenging the misuse and mischaracterization of “classified” materials allegedly released by Manning were also denied. The defense requested witnesses who would testify to the problem of over classification within the government, which is one of the most crucial issues to the government’s case. The testimony would address the signing into law the Reducing Over-Classification Act (Oct. 7, 2010), the issuance of two memoranda related to transparency in government for the head of executive Departments and Agencies on Jan. 21, 2009, one of which was a commitment to “an unprecedented level of openness” and to establishing a “system of transparency, public participation, and collaboration;” a Dec. 8, 2009 memorandum which was an Open Government Directive with detailed instructions for departments and agencies on how to “implement the principles of transparency, participation, and collaboration;” and an Executive Order 13526 on Dec. 29, 2009, for improving the system for classifying, safeguarding, and declassifying national security information, including establishment of the National Declassification Center. Perhaps more profound is the irony of the government’s apparent reliance on Lamo’s initial assessment that “classified” materials had been leaked by Manning. It apparently was Lamo’s assessment, not one conducted by the government, that was cited in originally obtaining a warrant for investigating Manning.
 The “chat logs” are available on the Wired magazine web site:
 Despite repeated requests by the defense, the I.O. and the government refused to hand over any notes produced from interviews with at least 6-7 relatives and/or acquaintances of Manning by agents from the State Department and other agencies, which is clearly required under Brady and Jencks.
 However, according to leaked emails from the private security firm, Stratfor, released on the Wikileaks website on February 29, 2012, the grand jury issued a “sealed indictment” for Assange in early 2011. The Stratror email noted: “Assange is going to make a nice bride in prison. Screw the terrorist. He’ll be eating cat food forever.”