By Adam Klasfeld – Monday, April 23, 2012
(CN) – Days before the next discovery hearing, the lead attorney for alleged Wikileaks source Pfc. Bradley Manning criticized the government’s “cataclysmic” withholding of evidence.
“This case shows a cataclysmic failing of the government to understand all aspects of the discovery process,” according to a brief authored by attorney David Coombs. “As the defense indicated in the motion to dismiss all charges with prejudice, it is not clear whether the government’s position on discovery amounted to gross negligence or willful misconduct.”
Manning has been held in pretrial detention for exactly 700 days on suspicion of transmitting the biggest leak in U.S. history, which revealed global diplomatic cables, incident reports from two wars and footage of a July 12, 2007, Baghdad airstrike that killed 11 people, including two Reuters journalists.
His detention has lasted nearly six times longer than the usual 120-day limit for a speedy trial. Prosecutors attribute that delay to the complexity of the case, and his defense attorneys trumpet it as a reason to free the 24-year-old soldier.
While prosecutors claim that the alleged leaks helped al-Qaida in the Arabian Peninsula, Manning’s attorneys have cited investigations by U.S. Secretary of State Hillary Clinton and Secretary of Defense Robert Gates that the alleged leaks did little harm to national security.
Though Manning’s defense team has long tried to get their hands on official “damage assessments,” prosecutors have called the documents classified and refused access.
At the last hearing, prosecutor Ashden Fein told military judge Col. Denise Lind that it was “classified” as to whether the damage assessments support the defense.
Coombs claimed in a filing Friday that Fein undermined this position by releasing the allegedly secret information less than a week later.
“Apparently, five days later, that fact (whether the damage assessments contained favorable information) was no longer classified as the government was able to send the requested information via a non-secure email,” Coombs wrote. “The defense believes that whether the damage assessments contained in Brady material was never classified information and thus, the government misrepresented this fact to the court.”
Brady material gets its name from the case Brady v. Maryland, in which the Supreme Court found it is a violation of due process for prosecutors to suppress evidence that could favor the defendant.
Coombs said prosecutor Fein needed a “cheat sheet” at the most recent hearing to explain Brady to the court and even then stated it incorrectly.
“While the defense appreciates that oral argument can be intense and stress-inducing, the court asked a very basic question that the government should have been able to respond to without consulting pre-written notes,” the defense memo states. “The fact that the government claims it fully understands its Brady obligations, but cannot articulate what those obligations are without a cheat-sheet, shows that the government does not actually understand its Brady obligations. Moreover, even with the cheat-sheet, the government still could not pin down the Brady standard.”
Prosecutors also botched the handling of classified discovery, Coombs claimed, noting that military law requires prosecutors to first invoke privilege before refusing to turn over information on classification grounds. Here, the military allegedly made its repeated denials without asserting privilege.
“In short, the government has usurped the role of the military judge by becoming the sole authority of when national security concerns should yield to the rights of the accused, and vice versa,” Coombs wrote. “It is startling to believe that the government would consider it appropriate for a prosecutor to balance national security with the rights of the party whom it is prosecuting.”
The 17-page memo reflects the intense secrecy surrounding the case. Nearly every line of text quoting a government memo or email has been blacked out in redactions, and the military so far has balked at requests by 40-plus news organizations to disclose prosecution memorandums and the court rulings.
The government’s counterarguments can only be gleaned from the broad summaries of the defense memo.
According to the memo, the government claimed it met discovery obligations by handing over more than a million classified documents, spanning 100 million pages. But Coombs said this shows only that the government is “burying” Manning in paperwork while withholding crucial information.
“The accused is denied a fair trial when he is not provided with constitutionally-required discovery,” the memo states. “This cannot be cured by burying the accused in a sea of other discovery.”
Eagerness to “make an example” of Manning led prosecutors to follow the missteps of other high-profile cases such as the prosecution of late Sen. Ted Stevens, Coombs added. Stevens was exonerated of a corruption conviction in 2010 because of prosecutorial misconduct that now leaves government lawyers facing calls for disbarment.
Coombs demanded the permanent dismissal of all charges against Manning.
In a separate memo, Coombs made a more modest proposal to order the government to hand over the “entire grand jury proceedings in relation to PFC Manning or Wikileaks” to the defense or an in camera inspection by the court.
The parties will argue these motions from Tuesday to Thursday.