06.06.12

Is U.S. Undermining the Manning Case?

Lawyers for alleged leaker Bradley Manning say the government is doing everything it can to subvert their ability to provide a fair defense to their client, reports Denver Nicks.

First Quantico, then Fort Meade. Is the government bungling the prosecution of Bradley Manning?

Manning’s pre-trial confinement, at Quantico Marine Base in Virginia, became an international scandal after his unduly harsh confinement inspired outcry from Amnesty International, former State Department spokesman P.J. Crowley, and the United Nations’ Special Rapporteur on torture, among others. After Manning was moved to Fort Leavenworth in Kansas, an internal investigation by the Marines found that Quantico officials had erred in keeping him in conditions tantamount to solitary confinement.

Manning’s next hearing is June 6. The court is expected to consider a series of motions his defense team has filed suggesting that the government may be overreaching once again.

The 24-year-old soldier is awaiting court-martial on charges of leaking hundreds of thousands of pages of classified material to WikiLeaks, which ultimately released the information to The New York Times, The Guardian, and other major media organizations in 2011. The publication of the leaks rocked the U.S. national-security establishment, eliciting condemnation of and praise for Manning from around the world.

The peculiar circumstances of Manning’s case make his confinement at the Fort Leavenworth brig—a facility that, by all accounts, he finds otherwise agreeable—problematic as a place from which to conduct his legal defense, his lawyers say. Because so many of the documents under consideration are classified, the small defense team, led by civilian attorney David Coombs, has had to look over the evidence in a secure facility, requiring substantial travel for the attorneys spread around the country.

Due to these same restrictions, the defense says, “Private Manning has no opportunity to participate in his defense in a meaningful way.” One such secure facility exists at Fort Leavenworth, but the attorney stationed there was only assigned strictly to Manning’s case in April.

Perhaps more disconcertingly, the defense complains that simply meeting with Manning is unjustifiably difficult. The facility provided in the brig for their meetings “is not soundproof and lacks Internet and printing capabilities,” presenting impediments in a case involving so much classified discovery. Requests to meet in a more suitable location have been repeatedly stymied, Coombs says.

Finally, the defense claims in its motions, the government is violating the law by delaying—or worse, withholding—Brady material, or evidence that could help Manning’s case.

Coombs describes Kafkaesque exchanges in which government attorneys dodge Brady requests with ever-shifting semantics; is the proper term “damage assessment” or “investigation” or “working paper”—or something else entirely?

Manning’s lawyers say they have spent months requesting access to reports from damage assessments conducted by various government agencies in the wake of the WikiLeaks releases. Coombs describes Kafkaesque exchanges in which government attorneys dodge Brady requests with ever-shifting semantics: Is the proper term “damage assessment” or “investigation” or “working paper”—or something else entirely?

The prosecution also complained that the initial defense request was overly narrow, and when the defense widened it the prosecution said it was overly broad. Citing a footnote in a government filing (the only court documents available to the public are those filed by the defense, because Coombs posts them in redacted form on his website), Coombs concludes there are at least a quarter million pages of documents in the government’s possession that relate to Manning’s case that the defense has not seen.

In an email to The Daily Beast, a military spokesman said, “The Government has complied with the discovery obligations and procedures for disclosure under the discovery rules including obligations according to [the rules for courts martial], Brady v. Maryland and other ethical obligations.”

That this discussion is happening right now may, in itself, represent a miscarriage of justice, Manning’s lawyers say. Manning’s court-martial is now just months away, with an expected start date in late September. According to a defense filing, Coombs recently learned that on July 29, 2011, the government sent a memo to the Department of the Army requesting that officials search for and preserve information to be given to the defense. Nine months later, according to an Army memo Coombs cites, no action had been taken.

Coombs calls “the government’s position almost laughable,” and it would be if it weren’t beginning to look just sad. The evidence presented by the government at Manning’s Article 32 investigation, the initial public hearing at which he was formally charged, was extensive. It’s unlikely that the government needs to use the tactics it appears to be using to connect Manning to the leaks he’s accused of perpetrating.

When he was confined at Quantico, Manning was kept in conditions that seem clearly to have been punitive and unnecessary, and that ultimately undermined the government’s own position in the case, as Crowley said after he resigned following his condemnation of Manning’s treatment. The government’s current stalling tactics may be common in criminal cases, but its approach in prosecuting Manning may prove to be self-defeating. In trying too hard to undermine the defense’s position, the government may be undermining its own. 

The story has been updated to reflect the response from the government.