Courage to Resist, in collaboration with the Bradley Manning Support Network, is seeking applicants for a regional organizer in the Washington DC / Baltimore area. Approx. 20 hours per week to start. Compensation based on experience ($14-$20/hour range). This is an immediate opening. This independent contractor (1099) position is expected to continue until approximately January 2013.

ORGANIZATIONAL BACKGROUND

Courage to Resist (www.couragetoresist.org) supports military servicepersons who object to illegal war and occupation and the policies of empire. Courage to Resist is a 6-year-old program of the Alliance for Global Justice, a nonprofit organization under Section 501(c)(3) of the IRS Code, and hosts the Bradley Manning Defense Fund in collaboration with the Bradley Manning Support Network.

The Bradley Manning Support Network (bradleymanning.org) is an international grouping of individuals and organizations dedicated to supporting PFC Bradley Manning. Bradley faces life in prison for allegedly sharing the “Collateral Murder” video of a US helicopter attack that killed a dozen Iraqis, embarrassing US State Dept. cables, the “Iraq War Logs”, and the “Afghan War Diaries” with the WikiLeaks website.

POSITION DESCRIPTION

The primary role of this contract is to build grassroots support for PFC Manning in the greater Washington DC / Baltimore area.

Primary responsibilities include:

• Political and logistical support in building and promoting events at Fort Meade, Maryland, which coincide with PFC Manning’s court appearances.
• Staging support events (presentations, fundraisers, workshops) in the greater Washington DC / Baltimore area; including, organizing protest-type events to focus attention on decision-makers related to PFC Manning’s case and treatment.
• Representing the Bradley Manning Support Network at all manner of events and functions.
• Building allies among related organizations in the DC area and collecting campaign endorsements
• Recruiting and maintaining contact with regional activists/volunteers

This position functions under the direction of the Courage to Resist Project Director, with the input of the Bradley Manning Support Network Steering and Organizing Committees, and alongside current campaign staff.

QUALIFICATIONS

• A strong affinity with the organizational backgrounds described above.
• The ability to function efficiently without direct supervision.
• Strong work ethic, resilience, persistence, and the ability to multi-task.
• Strong interpersonal skills and ability to establish positive relationships with individuals from a variety of backgrounds.
• Previous, verifiable experience as a staff member and/or volunteer with a non-profit organization, or similar community organization or grassroots campaign.
• Previous experience with strategic campaign planning.
• Use of a personal automobile is a likely necessity of this position, to include valid license, registration, and insurance.

TIME & COMPENSATION

Approx. 20 hours per week to start, likely to increase to 40 or more hours per week during phases of the campaign. Compensation based on experience ($14-$20/hour range). This independent contractor (1099) position is expected to continue through the end of PFC Manning’s court martial proceedings, currently estimated to end January 2013. Reimbursement of pre-approved travel and other expenses provided. An additional $150 monthly health care stipend is provided based on proof of personal health care insurance coverage.

This organizer position may require long and irregular work hours, to include work on weekends and holidays, when necessary.

APPLICATION INFORMATION

Courage to Resist does not discriminate on the basis of race, ethnicity, age, religion, gender, sexual orientation or military discharge classification.

Three references will be requested if you are asked to interview for the position.

Send introduction and resume to dc-org-job(at)standwithbrad.org. Please paste text into the e-mail; do not send attachments. Please send as plain text if possible; keep formatting to a minimum. No phone calls please. Only applicants that articulate in their introduction both a general understanding of PFC Manning’s situation, and previous similar or applicable experience, will be considered.

Also posted on Craigslist at: http://washingtondc.craigslist.org/doc/npo/3006369744.html

By Jill Stein. May 9, 2012.

Green Party candidate Jill Stein

My name is Jill Stein and I’m running with the Green Party for President of the United States. If elected,  I will immediately pardon Bradley Manning,  the U.S. Army soldier accused of leaking classified material to the whistleblower website, WikiLeaks, while working as an intelligence analyst near Baghdad.

Many people know some of the highlights among the 3 million pages of leaked cables. Probably the most well-know is the horrifying so-called “Collateral Murder” video of the Apache helicopter attack on Reuters journalists and then on the civilians, including the children in that van, who tried to take the wounded away for treatment.

Another revelation concerned a military night raid that killed six children, followed by a U.S. air strike to destroy the evidence and cover up the atrocity.

The overall impact of the leaked information has been huge, leading indirectly to the recent withdrawal of the U.S. military from Iraq much sooner than our government intended. That’s because these revelations compelled the Maliki government in Iraq to refuse to extend criminal immunity to U.S. soldiers. It contributed to the turn of American public opinion to overwhelmingly oppose the war in Afghanistan. And it added momentum to the Arab Spring uprisings against dictatorial U.S.-backed regimes.

The war criminals whom these Wikileaks cables exposed have suffered no consequences. The only one who is suffering consequences is Bradley Manning, the one who is accused of exposing the crimes.

Whistleblowers are indispensable for democracy. They enable the people to defend themselves against government malfeasance and tyranny. Those U.S. cables released to Wikileaks contained more information on the wars in Iraq,  Afghanistan, and other countries than all the media organizations in the world combined have been able to unearth. And they are all too filled with malfeasance, tyranny and war crimes.

So it may be that Bradley Manning was actually doing his duty, since he swore in his Oath of Enlistment to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” It is, after all, the duty of every citizen to bring their government to account when it violates the Constitution and the law, including especially laws against war crimes.

Regardless of these justifications, if Bradley Manning leaked the cables, he violated the law by committing what was essentially an act of civil disobedience.   For acts of civil disobedience,  a measure of punishment is accepted as a matter of course.  But the unconscionable violations of international law that have been exposed, and the war crimes that were revealed, all compel extreme leniency in this case.

Bradley Manning will have spent more than two years in detention before his court martial begins. For the first 10 months, he was held in solitary confinement, restricted to his cell 23 hours a day, and subjected to degrading treatment, including being forbidden reading material or the right to exercise, and being stripped naked while under constant observation. The UN Special Rapporteur on Torture, Juan Mendez, accused the U.S. Government of cruel, inhumane, and degrading treatment in his report based on a 14-month investigation. It said that the U.S. might have violated laws against torture as well as Manning’s basic right to a presumption of innocence until proven guilty in a court of law.

Let me be clear. Defending Bradley Manning in this particular case, does not argue for  license for the release of classified information more generally. However, if Bradley Manning was the source of these leaks, he has served his country and the cause of liberty heroically by providing very disturbing truths to the American people that the Obama Administration sought to withhold. The time he has been imprisoned and the harsh treatment he has received are more than enough.  He should not be further punished.

In fact, the President should have brought Bradley Manning under the protections of the Whistleblower Protection Act. But the President, as well as the Chair of the Joint Chiefs of Staff, have publicly stated that Manning broke the law. Those statements from the top of the chain of command constitute unlawful command influence that prejudices the proceedings of the court martial. It is one of many reasons why Bradley Manning cannot now get a fair trial in the military justice system.

The assault on Bradley Manning’s basic rights for allegedly blowing the whistle on government misconduct comes at a time of an unprecedented assault on whistleblowers by the Obama administration. The Obama Justice Department has charged six people, including Manning, under the Espionage Act for leaking government information to a journalist. Prior to Obama, there were only three cases prosecuted under the Espionage Act since it was enacted in 1917.

If I am elected and have the opportunity to pardon Bradley Manning, I will do this as an affirmation that my country, the United States of America, strives to achieve the highest possible standards of justice, transparency, and honor.

We must strive as a nation to so conduct ourselves that we have nothing to fear if the truth of our actions should be revealed to the world. If we can aspire to that goal – to be beyond reproach – then we will earn the sincere respect of the people of the world. The cause of freedom and democracy advance through honesty and defensible action, not state secrecy and attacks on whistleblowers.

By Jayel Aheram. May 7, 2012.

Did Bradley Manning help end the Iraq War?

Bradley Manning’s trial continues with the defense succeeding in getting the judge to force the prosecution to release the government’s damage assessments:

A military judge has ordered the state department to release into her hands official documents that assessed from the viewpoint of the US government how damaging the leak of state secrets to WikiLeaks had been to American national interests.

[…]

For months Manning’s defence lawyer, David Coombs, has been pressing the soldier’s military prosecutors to hand over in the discovery stage of the trial the official damage assessments. The assessments, carried out by several federal agencies including intelligence bodies, could have a crucial bearing on any sentence handed out to Manning should he be found guilty.

There have been suggestions that the assessments show that in the official opinion of the US government, WikiLeaks did very little to harm US national interests around the world. That could prove invaluable for the defence in mitigation.

Required reading: Kevin Gosztola was at the trial and has some up-to-date information.

It is becoming increasingly clear that Manning would probably be convicted. After all, it is a trial where the judge’s boss is the Commander-in-Chief who already decided before any trial began that Manning broke the law. It is not really that far-fetched to say that best outcome out of this would be for Manning to wither away in jail instead of being executed for daring to embarrass the Empire. I would ask “Why go through all this trouble of wasting resources conducting a mock trial? Why not just execute Manning and be done with it?” but then I already know the answer.

Anyway, I had the opportunity a few of weeks ago to attend a presentation by Jeff Paterson of the Bradley Manning Support Network. Him and another staffer are traveling the country giving updates to concerned citizens about how eager the government is to make an example of Manning.

Paterson is not only a project director for Courage to Resist, but a fellow Marine artilleryman as well. As part of his presentation, he recounted his own antiwar stand during the first Gulf War as one of the first group of servicemembers who refused to fight that war. He ultimately spent several months in jail before being discharged from the military, after which he disappeared from the public eye. It must be noted that his stand was not an attempt at activism, but a lone protest motivated by a deep moral objection to war.

And because of this action, he has more credibility than most of us could ever hope to achieve. Unlike him, when I joined the Marine Corps in 2006, Iraq and Afghanistan was already well underway. My lack of knowledge is a poor excuse and that I honestly believed the propaganda is irrelevant. The fact that I was a willing cog in the war machine forever discredits me and there is nothing I can do—now or any time in the future—to redeem myself of this complicity.

Which brings me to the Army specialist who found a way to redeem himself: Bradley Manning.

Paterson’s backstory is very important, because it explains his involvement with the Manning case. As he explained in his presentation, he became involved with the military resistance movement at the beginning of second Iraq War. From those efforts came Courage to Resist, a network of veterans, military families, and activists supporting many military resisters defy the War Machine. When it came to light that an Army specialist by the name of Bradley Manning was central in the government’s investigation of Wikileaks, Paterson knew that he had to do something or as he puts it, “before they disappear [Manning].” Within two weeks of Manning’s arrest, Paterson was able to persuade several people to publicize Manning’s plight including establishing the Bradley Manning Defense Fund. To say that Paterson was “involved” with the Manning case is to understate how important he was to this cause. If it were not for his early efforts, who knows what might have happened to Manning?

Paterson’s presentation began with the infamous Collateral Murder video, the release of which firmly embedded the name “Wikileaks” in people’s radars. Manning is accused of leaking the video and also many other documents, including the Iraq War Logs and hundreds of thousands of classified diplomatic cables. If the accusations are true and that Manning is to be credited for the leaks, that would make his singular action of leaking classified information the most significant catalyst of change in modern history.

There is some evidence that the classified information Manning allegedly provided to Wikileaks influenced and might have contributed to the Tunisian uprisings, which itself became the fount from which the Arab Spring continues to flow. Could it be that Mohamed Bouazizi’s self-immolation, Khaled Mohamed Saeed’s death, and Manning’s reckless bravery are all to be equally credited for the changes sweeping the Middle East? According to Amnesty International in their 2011 report, Wikileaks’ revelations were “catalysts” in the Arab Springs:

While the “Jasmine Revolution” in Tunisia would not have happened without the long struggle of brave human rights defenders over the last two decades, support for activists from outside the country may have been strengthened as people scrutinized the Wikileaks documents on Tunisia and understood the roots of the anger. In particular, some of the documents made clear that countries around the world were aware of both the political repression and the lack of economic opportunity, but for the most part were not taking action to urge change.

So, while one cannot fully credit Manning and Wikileaks for the Arab Spring, there were fundamental to its strength and ultimate success. Additionally, the Arab Spring’s strength and success served as inspiration for the widespread protests of the Occupy Wall Street movement. Scientists might stand on the shoulders of giants, but modern revolutionaries apparently stand on the shoulders of a 110-pound Army specialist. Some might write about how Wikileaks is changing journalism, but in reality without Manning and his trove of classified information, Julian Assange and his outfit would have a lot less to leak.

So, Manning’s leak might have started revolutions in the Middle East, inspired a social movement in the United States, and changing the journalism itself, but could it have ended a war as well? Paterson asserts that the account of atrocities in the Iraq Wars Logs is what finally pushed Iraqi legislators to grow a spine and refuse granting immunity to American troops from prosecution in Iraqi courts. This refusal was the “deal breaker” that finally led to the Third End of War in Iraq (Obama’s second). If that is the case, then Manning’s Nobel Peace Prize nomination is well-deserved.

By Nathan Fuller. May 4, 2012.

You’re a civil rights lawyer, a writer on politics and civil liberties, and a contributing editor for the American Conservative. What drew you to Bradley Manning?

Few events scream to be written about like l’affaire Bradley Manning.  First there’s Private Manning himself, he’s like someone out of a novel or a heroic folk ballad.  He’s a small-town kid who’s become an international cause.  He’s gay, he’s brainy, he’s critical of his country, but he’s intensely patriotic and a deep believer in responsibility for one’s country.  He refuses to help round up Iraqi citizens and hand them over to the authorities who are, even after the U.S. occupation, still torturing prisoners right and left.   He brings us incredible knowledge of our wars and of how our foreign policy works, and he gets severely punished.  Manning is the last great Enlightenment martyr.  The chatlogs with Adrian Lamo by themselves read like a tragic novella.  I said he’s a novelistic character, but the drama is almost operatic.

A half dozen crucial issues collide in l’affaire Manning: how we assess national security threats; how we create 77million state secrets every year in this country; who we blame, and don’t blame, for civilian casualties; what the laws of war are really worth; how we punish Americans, how we punish foreigners, with solitary confinement.  The injustice in this case really stinks in the nostrils.  It’s been said a million times but I’ll say it again: if only Pfc Manning had tortured prisoners, or authorized torture, or illegally spied on Americans with warrantless wiretapping, or lied us into a catastrophic war…if the young private had done any of these things, he’d be a free man.  If he had massacred civilians in Haditha, Iraq, or in Kandahar, Afghanistan, he’d be out of jail sooner.  But bringing new knowledge to the American people, and to the world, this is unforgivable.  Suddenly we hear that “rules are rules” and need to be enforced, this after the orgy of impunity among elite officials and ordinary soldiers over the past decade.

Manning’s story, so important in itself, also says so much about our country… especially how we react to new knowledge.  We talk endlessly about education reform in this country, we love education, and credentials too, yet at the same time we have this deep distrust of knowledge and learning.  This is something the young Bradley Manning had to face daily growing up as a precocious child in America, which is a great sin, and it’s no better I suspect in New York or Los Angeles than in small-town Oklahoma.  And you also see this sulky suspicion of knowledge in the reception of the leaks. Manning has brought us this rich trove of new knowledge about our wars, it’s shed so much light on a disastrous foreign policy that has brought us and the world nothing but grief–corpses, destruction, and money down the drain.  We should be grateful, but by and large we don’t know how to accept this gift.  We distrust it, we resent it.   Our intellectuals and media are by and large sullen and weirdly pouty about this gift, and they come up with all kinds of reasons to be ungrateful.

Look at Bill Keller, former editor of the New York Times; his paper made hay out of the WikiLeaks disclosures, running hundreds of stories based on them yet he does nothing but sneer at and pour contempt on WikiLeaks, Assange and Manning.  He admits that, sure, the leaks have made for journalism but… BUT WHAT?  Keller’s a journalist for fuck’s sake and his job, his mission, is to provide news to people–but Keller just can’t bring himself to be grateful for all this news that WikiLeaks has brought him, wrapped in a bow, he’s hardwired to sneer at it, even as his newspaper prints it, he can’t help himself.  Maybe he feels guilty about the terrible job the Times did under his watch in failing to do any real reporting about the phony weapons of mass destruction in the run-up to the Iraq war, and this is his weird way of externalizing the guilty, by being an asshole to WikiLeaks.  Maybe he feels sneering at Julian Assange is a good way to suck up to Washington and maintain his cred as a “serious man”. (Here he’d be right.) Anyway, this sullen hostility to knowledge, maybe it’s human, but it’s definitely American.  We’ve overcome much of our Puritan fear of sex, now the dirtiest part of our bodies is the brain, the mind.  We need to get over this, or we will inflict more disasters on the world, and on ourselves.

Oh, and another reason I wrote about Bradley Manning is my great editor Tom Engelhardt of TomDispatch.com, whose 3x/weekly emails everyone should subscribe to.  Tom put me on the scent of this story in the fall of 2010. “Chase, you’re a lawyer, write me something about Bradley Manning, a good strong defense!”

(And about the American Conservative, I can explain! [Chuckles nervously.] My colleagues at TAC are “paleoconservatives” in contrast to “neoconservatives” who led us into Iraq and are trying to do the same with Iran.  On a cluster of important issues–foreign policy, civil liberties, the war on drugs and other criminal justice issues, the militarization of daily life in the U.S.–my paleocon pals are well to the left of the Democratic Party.  That’s where we agree.  I’m a broad-minded guy and I’m happy to work with other people towards common goals, even if we don’t agree on everything: that’s coalition politics and I wish there were more of it.  Ron Paul, by the way, is the only Presidential candidate on either side to defend WikiLeaks & Bradley Manning, which is terrific.  So despite disagreements on things like abortion, gay rights and healthcare, I’m very happy to work with the paleocons and the libertarians on matters of foreign policy and civil liberties, where they are just rock-solid.)

Your book is called The Passion of Bradley Manning. A play in Wales just finished, called ‘The Radicalisation of Bradley Manning.’ Both aim to get at Bradley’s motives, assuming he’s the whistleblower – why is it important that the public realize Bradley’s intentions? And why now?

Manning’s motives were clear and simple: to give the world, particularly the United States, the knowledge we need to make better informed decision in our foreign policy.  After the disaster of Iraq and so much failure elsewhere, it’s hard to see what’s so awful, or complicated or mysterious, about this motive.  This shouldn’t be hard to understand.

And yet it’s amazing how hard the media have worked to ignore, to strenuously ignore, Manning’s motives for the (alleged, always alleged) leaks.  In the chatlogs, Manning’s motives are as clear as a bell: “I want people to see the truth… regardless of who they are… because without information you cannot make informed decisions as a public.”  Manning also writes (allegedly, the logs haven’t been authenticated yet) that he hopes the leaks will lead to “hopefully worldwide discussion, debates, and reforms.”

But instead of this clear and simple political motive, our media has left no stone unturned in trying to find another reason for the alleged leaks.  So the mainstream media has come up with all kinds of spurious motives: Personal reasons–Manning’s childhood and family life were not ideal.  Sexual reasons–Manning is gay, and was considering gender transition. Psychological reasons–Manning’s crazy.

We’re an intensely depoliticized society, we Americans, and that’s not a good thing.  Instead of looking for solutions in politics it’s usually all about individualistic self-improvement through pharmaceuticals, through self-help books, through instant-gratification kinds of religion, which I’m tempted to call pseudo-religion.  We have a hard time understanding the very concept of politics, and political convictions, and Manning is the target of a lot of misunderstanding, some of it willful, because his motives were plainly political.

The best thing written about Manning’s motives is by a U.S. infantryman, a remarkable guy named Ethan McCord, who is filmed in action in the Collateral Murder video, he’s the soldier on the ground who went into the van that got shot up by the Apache helicopter and retrieved two wounded children and got them to the hospital.  McCord’s out of the army now and he’s a big Manning supporter.  When New York magazine wrote a slick smear job about Manning last summer, alleging that the alleged whistleblower is a headcase who did what he allegedly did for psychosexual reasons, McCord wrote this magnificent letter taking the magazine to task for obliterating Manning’s plainly stated political motives.  Why can’t American media and intellectuals comprehend this?

Bradley Manning is the highest profile case, but he’s just one of many alleged whistleblowers the Obama administration is cracking down on. Why do you think the Obama admin in particular is so zealous about anti-leaking?

Our national security state is out of control.  It’s overfunded, under-supervised and it can do whatever it wants with little fear of legal consequence.  Trying to manage and control this beast is like trying to walk an enormous rottweiler that’s hopped up on steroids.  For a president to control this beast, he or she’d have to have either ruthless political skills or experience in the national security apparatus, or preferably both, than he or she might have a chance at handling our national security state, at wrestling it down and controlling it.  But anyone else–say, Barack Obama–is going to get jerked around for the ride while pretending that he’s in control.  Obama can’t control it, and he’s unwilling to spend the political capital it would take to rein it in and get it under control.  The Democratic Party, by the way, has never been all that into taming the national security state; during the McCarthy years they were against the vulgar, hysterical anti-Communist witch-hunts but they were all in favor of more professional purges, conducted say by the FBI, of Communists and fellow travelers from any position of power.

I don’t mean to absolve the President of all responsibility here, I just want to point out that this is more than a matter of an individual president deciding to flick a switch on or off.  It’s a matter of deeply entrenched bureaucratic power, and it’s not going away anytime soon, no matter who’s president.  The national security state gets what it wants, even if the lawsuits against leakers crumple upon impact with a real trial or a real judge, like the indictment of whistleblower Tom Drake all but fell apart when finally exposed to daylight and oxygen and a real judge.

And the sad thing is, most of the public doesn’t care about this issue.  Civil libertarians don’t have a party that supports their goals.  So the Democrats can get away with it without having to pay much of a price.  The only presidential candidate saying anything about these abuses is Ron Paul, who is not really electable, and also very unpalatable to many of people who care about these issues, who are left-of-center.

One issue that’s not discussed quite as much, under the rubble of Manning’s case and WikiLeaks’ releases – is overclassification. Why didn’t the U.S. learn a lesson about secrecy after WikiLeaks?  And how can we return public attention to this massive secrecy?

Government secrecy is out of control right now.  According to the NY Times, Washington classifies 77 million documents a year.  (The classified material that Manning is alleged to have released is not even 1% of that annual total.) Everyone recognizes that this is a problem, but the national security bureaucracies–Defense, NSA, and god knows CIA–are very reluctant to cede any power by granting greater transparency.

Extreme secrecy like this is a huge national security risk.  Not whistleblowers, not WikiLeaks, but extreme secrecy and overclassification are what’s harming us and putting our security in jeopardy.  When we don’t have information, we collectively make foolish and destructive decisions.  Like invading Iraq (or before than, invading South Vietnam).  What are the wages of overclassification? Over 100,000 Iraqi civilians killed, and 4,500 U.S. soldiers killed in Iraq.  $3 trillion dollars.  By contrast, not a single casualty has been credibly tied to the WikiLeaks disclosures.  We’ve killed more Americans (and god knows many more foreigners) in our idiotic response to 9-11 than the terrorists killed on 9-11.  This is where government secrecy, distortion and lies gets us.

And yet there is little uproar about this extreme secrecy and its disastrous results.  Part of it is that the government has found it worth its while to promote fear 24/7.  A decade after 9/11 and air travel gets more unpleasant every year with more and more intrusive “security theater,” not that any of it actually improve safety.  The no-fly list has expanded.  The national security budget has expanded to $75billion/year.  The neocons still set the parameters of foreign policy debate in Washington. Fear and secrecy still rule, and have only become more entrenched more routinized and “normal” under Obama–a real disappointment.

The secrecy endures.  Part of this, again, is the hostility to knowledge and learning that runs so deep in our society.  Lt. Calley, commander of the My Lai massacre, was always more popular in this country than Daniel Ellsberg.  Slaughtering foreigners is just more forgivable to many Americans than uncovering some unflattering truths about ourselves.  (Likewise, Sgt Bob Bales, the guy who massacred 17 Afghan civilians, will surely get out of prison before Pfc. Bradley Manning does.)  People in general and we American in particular have a strong will to ignorance.  This Enlightenment idea, that all you need is to add knowledge and stir and you’ll have good politics, a good society, is faulty.  I don’t say that with a smile.

Sometimes in the past, at the end of the Vietnam war for instance, a critical mass (but still a minority)  of Americans has insisted on knowing the truth about our wars and doing something about it.  Not this time.  Countervailing forces–the media, intellectuals, lawyers, the entire “liberal class”–have by and large gone along with the government on the question of WikiLeaks and secrecy.  They want to be seen as good team players, not as troublemakers.  Why has the liberal class failed so badly?  Towards the end of the Vietnam War, you had genuine critical journalism and a lot of serious antiwar ferment among academics and the professions, but not now.  I think it’s because the liberal class (such as it remains) is totally insulated from the pain of war.  During the Vietnam War, the draft was easy to get out of for middle-class kids, but it at least brought the theoretical possibility into every household that junior would have to head off to fight in Southeast Asia.  The pain of the war was not spread evenly, but it was spread much more evenly than it is today.  The middle class and its intellectuals felt like they had some skin in the game, and this, over time, made many people deeply skeptical of government propaganda about the war.

Ever since Nixon did away with the draft, our intellectuals are by and large disconnected from the burdens of war.  With the past decade of war, there’s been no draft, no tax hikes–on the contrary, we’ve had tax cuts–and no shared sacrifice.  Middle-class and god knows upper-class young people are under no risk of getting called up and deployed, and then stop-lossed, in Afghanistan.  Our middle class hasn’t had to pony up and pay for the war.  Without any skin in the game, our middle class has very little appetite for the truth about war.  And that is why so many in the media and in the professions are so blasé about the extreme secrecy and overclassification that has led to so much disaster.  The disaster is all on other people, not on middle-class journalists, academics, NGO workers or government officials.

One of your book’s many important chapters is on the rule of law. Clearly high-ranking officials, including Obama and officials that Manning’s alleged to have exposed, have broken the law, and yet it’s Manning who’s on trial. But it’s precisely Manning’s breaking the law in favor of greater justice that cause many to see him as a hero. What does Bradley’s case tell us about the place the rule of law has in American democracy? How can we use the rule of law to keep the war criminals and law-breakers on larger scales accountable?

The Rule of Law problem–is it universally a good thing? shouldn’t law be consistently applied?  but what if the laws are evil, is the rule of law a good thing then–has been a teething biscuit for intellectually-minded lawyers for literally millennia, since Cicero and before.  I’ll confess I didn’t square this circle in my 5,000-word chapter on the subject.

I don’t have much faith in the law here.  The only way to hold war criminals accountable is through building political power, not through intricate lawsuits.  The reason why Manning’s in jail and so many people who did worse are getting fat off their royalty payments from their memoirs is not so much a legal failing as a political failing.  Those of us who wanted real accountability, we don’t have the political power to force politicians to do what we want.  Obama has ignored us and he hasn’t paid any political price.  He stands a great chance of getting reelected.

We who care about civil liberties, we who would like a foreign policy based on prudence, enlightened self-interest and even a little benevolence instead of nationalist aggression, we who care about knowing what our government is doing, we need to do better in convincing others, knowing we will never convince everyone.  Professional activists and legal technocrats in the human rights industry are not going to do this for it, that’s not what they’re cut out for.  We need an antiwar movement that spans the left-right divide, that gets beyond white and Asian-American college grads, that speaks to people’s interests as well as morals, not in a self-righteous Lisa Simpson voice, but in the voice that doesn’t hector and lecture and high-minded legalism.  The rule of law is an insoluble problem, we’ll never fully have it and that’s fine.  But we need more justice, and that’s a political question first.

By Ben Wizner. May 3, 2012.

Courtroom sketch, by Marguerite Mooridan (www.margueritemooridan.com)

Yesterday the military judge overseeing the court martial of Pfc. Bradley Manning, who is accused of giving government documents to WikiLeaks, heard a defense motion to dismiss the charge of “Aiding the Enemy.” (She is expected to rule on the motion today.) The charge, which is akin to treason and is punishable by death, is separate from the main accusation against Manning — that he leaked sensitive documents to people unauthorized to receive them. The government’s inclusion of this charge raises enormous problems, and a conviction of Manning in these circumstances would be unconstitutional.

The key to the government’s case is this simple claim: that posting intelligence information to the internet aids Al Qaeda because Al Qaeda has access to the internet.

The implications of the government’s argument are breathtaking. To understand why, it helps to recall the experience of another soldier. In December of 2004, Defense Secretary Donald Rumsfeld held a town-hall style meeting for troops who were preparing to deploy to Iraq. Following his remarks, Rumsfeld was confronted by an Army specialist who complained about the inadequacy of the combat equipment provided by the military.

“Our vehicles are not armored,” said Specialist Thomas Wilson, an airplane mechanic with the Tennessee Army National Guard. “We’re digging pieces of rusted scrap metal and compromised ballistic glass that’s already been shot up . . . to put on our vehicles to take into combat. We do not have proper vehicles to carry with us north.”

The soldier’s question — and Rumsfeld’s now infamous response that “you go to war with the army you have, not the army you might want or wish to have” — were front-page news around the world. And while war cheerleaders like Rush Limbaugh accused Specialist Wilson of “near insubordination” for embarrassing the defense secretary in a public forum, there was no suggestion in serious quarters that he face punishment — much less prosecution — for his words.

Yet the government’s decision to prosecute Manning for “Aiding the Enemy” threatens to make public comments like Wilson’s grounds for criminal prosecution. The government does not contend that Manning gave any information to Al Qaeda, or even that he intended that Al Qaeda receive it. Rather, it claims that Manning “indirectly” aided Al Qaeda by causing intelligence information to be posted on WikiLeaks’ website, knowing that Al Qaeda has access to the internet. Specifically, the government contends that Manning violated Article 104 of the Uniform Code of Military Justice, which provides that “any person who . . . gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

Article 104 is not limited to sensitive or classified information — it prohibits any unauthorized communication or contact with an enemy. So, if the government is right that a soldier “indirectly” aids the enemy when he posts information to which the enemy might have access, then the threat of criminal prosecution hangs over any service member who gives an interview to a reporter, writes a letter to the editor, or posts a blog to the internet.

For example, there are now more than a thousand enlisted military bloggers. According to Stars and Stripes, “Army officials . . . encourage troops to blog as long as it doesn’t break any operational security rules, and they see it as a good release for servicemembers.”

Are these bloggers aiding the enemy? Prior to Bradley Manning’s case, charging anyone with that crime in the absence of any allegation or evidence that he had intended to aid the enemy would have been inconceivable.

The crux of the government’s case against Manning — that he leaked sensitive documents without authorization — in no way depends on branding him a traitor. Indeed, some courts have held that leaks may be punished even if the leaker’s motive was purely patriotic. In its zeal to throw the book at Manning, the government has so overreached that its “success” would turn thousands of loyal soldiers into criminals.

Which brings us back to Specialist Wilson — and, for that matter, Donald Rumsfeld. Both men spoke openly about the vulnerability of U.S. forces in Iraq. Both men surely knew that the enemy would watch their exchange on television or read about it on the internet. The notion that Wilson and Rumsfeld broke the law by communicating this information to the media and thereby “indirectly” aiding the enemy is absurd — but no more so than the government’s contention that Bradley Manning did so.

This post was first published at the ACLU’s blog.

By Michael Ratner. May 2, 2012.

Courtroom sketch, by Marguerite Mooradian (margueritemooradian.com)

On 24 April, a hearing in one of the most important court martial cases in decades will take place in Fort Meade, Maryland. The accused faces life in prison for the 22 charges against him, which include “aiding the enemy” and “transmitting defense information”. His status as an alleged high-profile whistleblower and the importance of the issues his case raises should all but guarantee the proceedings a prominent spot in major media, as well as in public debate.

Yet, in spite of the grave implications, not to mention the press and public’s first amendment right of full and open access to criminal trials, no outside parties will have access to the evidence, the court documents, court orders or off-the-record arguments that will ultimately decide his fate. Under these circumstances, whatever the outcome of the case, the loser will be the transparency necessary for democratic government, accountable courts and faith in our justice system.

In the two years since his arrest for allegedly leaking the confidential files that exposed grand-scale military misconduct, potential war crimes and questionable diplomatic tactics, army private Bradley Manning has been subjected to an extremely secretive criminal procedure. It is a sad irony that the government’s heavy-handed approach to this case only serves to underscore the motivations – some would say, the necessity – for whistleblowing like Manning’s in the first place.

The most well-known of the leaked files, a 39-minute video entitled “Collateral Murder,” depicts three brutal attacks on civilians by US soldiers during the course of just one day of the Iraq war. The footage, recorded from the cockpit of a US Apache helicopter involved in the attacks, shows the killing of several individuals, including two Reuters journalists, as well as the serious injury of two children. Beyond the chilling images of US soldiers eagerly pleading for chances to shoot, the release of this footage placed a spotlight on the military’s blatant mischaracterization of the events, in which a spokesman claimed that there was “no question” that the incident involved engagement with “a hostile force”, and underscores the vital role that public scrutiny plays in government accountability.

As an attorney with the Center for Constitutional Rights (CCR) and a legal adviser to WikiLeaks and Julian Assange, I continue to attend Manning’s hearings and can only describe them as a theater of the absurd: the trial involves numerous and lengthy off-the-record conferences, out of sight and hearing of the press and public, after which the judge provides an in-court summary that hardly satisfies standards of “open and public”. Perhaps more remarkable is the refusal even to provide the press and public with a pre-trial publicity order, which was signed by the judge – an order that details what lawyers can and cannot reveal about the case. Yes, even the degree to which proceedings should be kept in secret is a secret, leaving the public and media chained in a Plato’s Cave, able only to glimpse the shadows of reality.

The press and advocacy groups, however, have not been quiet about the trampling of their rights. The Reporters Committee for Freedom of the Press, on behalf of 46 news organizations, urged the Department of Defense to take measures that would allow the news media to view documents prior to court arguments. The committee pointed out that the trial for the “alleged leak of the largest amount of classified information in US history” is of “intense public interest, particularly where, as here, that person’s liberty is at stake”. The Center for Constitutional Rights, too, has requested access in the interest of an “open and public” trial, but neither appeal has been answered.

This is a clear violation of the law, but it will likely take burdensome litigation to rectify this lack of transparency. The US supreme court has insisted that criminal trials must be public, and the fourth circuit, where this court martial is occurring, has ruled that the first amendment right of access to criminal trials includes the right to the documents in such trials.

The greater issue at hand is why this process should be necessary at all. As circuit judge Damon Keith famously wrote in Detroit Free Press v Ashcroft, “Democracies die behind closed doors.” Yet it is evident from the many layers of secrecy around Manning’s arrest, imprisonment and prosecution that the government shows no sign of relinquishing its claimed powers to obscure rightfully transparent judicial proceedings. The doors appear to be tightly shut.

Unless we challenge the growing culture of secrecy within our government, and counter the ever-increasing, reflexive claims of “national security” by claiming our own constitutional rights, we risk finding those doors shut indefinitely.

Bradley Manning’s motion hearing comes to a close with the judge upholding the charge of ‘aiding the enemy’, and prosecution attempting to ban any reference to the lack of harm caused from future court proceedings. The military continues to delay the proceedings: extending once again the trial timeline. As such we need to raise an additional $50,000 for legal defense expenses. Please donate.

April 30, 2012. Bradley Manning Support Network. Supporters took action around the world as Bradley Manning’s most recent Article 39 motion hearing came to a close, bringing him one step closer to court martial. During the three-day hearing the defense filed motions to remove the charge of ‘aiding the enemy,’ and to combine a number of the charges filed against Bradley Manning, blaming the prosecution for having listed a single offense multiple times in order to unreasonably multiply the sentence. The prosecution also filed a motion to gag any attempt by the defense to mention the lack of harm caused by the documents.

The military has used this hearing as an opportunity to clarify that they do not care whether Bradley Manning was acting with patriotic motives, or even whether the U.S. was actually damaged in any way — they still intend to pursue life in prison.  The ACLU explains the alarming injustice of this argument and how its success would “turn thousands of loyal soldiers into criminals.”

The judge denied the defense motions to consolidate and lessen the charges, but argued that the prosecution will have the burden of proving that Bradley Manning intentionally provided material to Al-Qaeda – when alleged chat logs clearly show Bradley’s intent was to inform the public and to inspire “worldwide discussion, debates, reforms.” Also, the judge rejected renewed calls for transparency, maintaining unprecedented secrecy in the effort to send a whistle-blower to prison for life. Bradley will return to Ft. Meade for the next hearing, scheduled June 6-8.

Supporters raised funds to place 21 ads throughout the Washington DC metro in time with the hearings, and demonstrations were organized internationally. Protests were held in Chicago, Ann Arbor, Salina, Cleveland, Portland, Washington DC, Brea, Dallas, Oakland, San Diego, Las Vegas, Kansas City, Minneapolis, Sydney, Vancouver, South Glamorgan, Gloucestershire, and of course Fort Meade. Over the course of the week the National Theatre Wales was also performing “The Radicalisation of Bradley Manning,” a play inspired by Bradley’s life and story.

Legal Proceedings

New public domain photo of Bradley Manning

Tuesday, April 24: Judge Denise Lind rejected a renewed request for transparency and the defense argued its motions to compel grand jury testimony and to dismiss all charges with prejudice. However, she granted in-camera review access to three damage assessments the defense requested – these assessments evaluate the harm, if any, caused by WikiLeaks’ releases.

Wednesday, April 25: The judge laid out a tentative schedule for the remaining pretrial hearings and the court martial itself, set to begin September 21. Then she denied the defense’s motions to compel grand jury testimony and to dismiss all charges. The defense argued two more motions to dismiss, and the ‘aiding the enemy’ charge and Bradley’s intentions were discussed. Supporters in the courtroom wore ‘Truth’ t-shirts and announced messages of support for Bradley.

Thursday, April 26: The prosecution motioned to gag any reference to the lack of harm caused by the released documents from further courtroom discussion. Closing the hearing, the judge denied the defense motion to dismiss the “aiding the enemy” charge. However, the prosecution’s burden of proof is raised: the government will have to prove Bradley knew America’s enemies would visit WikiLeaks.org specifically. Again, supporters thanked Bradley aloud for his steadfast courage.

New Trial Timeline

The judge laid out a tentative timeline for the remaining proceedings, again extending the trial timeline. This follows a long pattern of unreasonable trial delays whereby Bradley Manning has been in prison over 700 days. It will have been over two years before he reaches the actual court martial.

• June 6-8 Article 39 pre-trial hearing
• July 16-20 Article 39 pre-trial hearing
• August 27-31 Article 39 pre-trial hearing
• September 19-20 Article 39 pre-trial hearing
• September 21 – First day of court martial
• October 12 – Estimated completion of court martial

*all dates subject to change at the discretion of the military.

Demonstrations of Support

And with the help of over a hundred donors, supporters were able to place 21 metro ads in Washington DC in time for the hearings. They help bring Bradley’s case back to Washington DC, and into the public eye, as do the legion of supporters organizing demonstrations around the world.

M-1 of Dead Prez & Kevin Zeese from the Bradley Manning Support Network

Occupy the DOJ:

On April 24th, 2012, protesters gathered in front of the Department of Justice in Washington, DC, to protest against the brutal treatment of a number of political prisoners, including Mumia Abu-Jamal and Bradley Manning. The protest was organized by several community groups who shared the common goal of sending a strong message to Eric Holder to end solitary confinement, to stop torture, and to free all political prisoners. Bradley Manning was abused for 11 months in solitary confinement.

Guest speakers included Mumia Abu-Jamal who spoke by telephone from prison, M-1 of Dead Prez, Kevin Zeese of the Bradley Manning Support Network, and many others.

Supporters at Fort Meade

Occupy the Courtroom:

On Wednesday, April 25, Bradley Manning supporters amassed at the front gate outside Ft. Meade, where Bradley’s motion hearing continued. Some advocates for the Nobel Peace Prize nominee remained outside holding signs, while others filled the courtroom, wearing “Truth” t-shirts to symbolize that which has been withheld from the proceedings thus far.

ABC News reports on the action inside:

Approximately 20 supporters of PFC Bradley Manning spilled over both sides of a small courtroom at Fort Meade, Md., the venue for a pre-trial hearing in the WikiLeaks case this afternoon at which Manning’s defense argued for dismissing charges against Manning.

About half of the Manning supporters had “truth” emblazoned across their shirts. Although their shirts spoke for them, at the very end of the hearing a few voices made their opinions audible.

A man yelled out, “Thank you, Bradley,” followed by, “Please free Bradley Manning.”

One woman yelled, “I think the military should go on trial.”  Then another joined in, saying, “We need to know what our government’s doing.”

]]> http://bradleymanning.org/news/hearings-at-ft-meade-protests-around-the-world/feed 2 http://bradleymanning.org/featured/notes-from-bradley-mannings-article-39-hearing-april-26 http://bradleymanning.org/featured/notes-from-bradley-mannings-article-39-hearing-april-26#comments Fri, 27 Apr 2012 03:05:17 +0000 Jeff Paterson http://bradleymanning.org/?p=23329

Defense attorney David Coombs addressed supporters during a court recess. “Thank you for continuing to bring the issue into the public eye. It means a lot to me, it means a lot to my client.”

One of 21 ads throughout the Washington DC Metro subway funded through the efforts of the Bradley Manning Support Network to coincide with the April 24-26 hearing

By Nathan Fuller, Bradley Manning Support Network. April 26, 2012.

As scheduled, today’s proceedings opened at 10 AM. Judge Denise Lind ruled immediately on the defense’s motion to dismiss and/or consolidate charges based on an unreasonable multiplication of charges. She read through the various charges levied against PFC Bradley Manning, including several counts of seemingly redundant charges, such as two counts of unauthorized procurement of documents, and multiple counts of an unauthorized transmission.

As the judge read, the law says that what is substantially one crime cannot be charged as two crimes. However, in her analysis, Lind found that Bradley’s alleged crimes were “distinctly separate criminal acts.” The defense’s argument that the theft should be considered the first step of the transmission “has been discounted in U.S. v. Chapman (2003).” Further, Lind believes the number of charges doesn’t misrepresent the nature of the criminal acts or “unreasonably increase [Bradley’s] punitive exposure.” In fact, the judge says the prosecution could have broken the Article 104 charge into even more separate charges if it so chose. The crux of the judge’s ruling is that the size of the leak renders no number of charges “unreasonable.” She noted that the government concedes two alleged crimes, charges 5 and 7, occurred at the same time and may be merged at a later time, and that it’s still factually in dispute as to whether charges 6 & 7 and 10 & 11 occurred on separate days. Today’s defense motion was denied, but Coombs may re-raise this issue after that factual dispute is resolved.

The judge then asked both parties for input on U.S. v. Wilcox. The defense believed that case wouldn’t apply to the Article 134 charge in this case, and so it wouldn’t be advancing any theory to that effect. The prosecution stated that its interpretation of Article 134 deemed it punitive, saying it calls for “sanctions.” The defense stood again to note that it believes this aspect of Article 134 deals with disclosures “that don’t arise to espionage.” This conversation is important for the judge’s later ruling on the defense’s motion to dismiss the Article 104 charge based on preemption.

We moved on the government’s motion to reconsider compelling the discovery of the State Department’s damage assessment. Instead of standing to argue the case, the prosecution’s Ashden Fein said the government “relies on its written motion.” The defense didn’t stand for long, speaking briefly to “give the court background” instead of arguing the point.

Next the government was forced to provide a definition of the terms ‘damage assessment’ and ‘investigation.’ The prosecution submitted a brief explaining its position. The ultimate conclusion, Fein said, is that the two were distinctly different. Coombs said the defense agrees the two are different, which is why the defense had requested both in its initial discovery request. The judge said that for future reference, the court would officially consider both terms separately.

The next motion was the government’s call to preclude any discussion of damage assessments from the merit phase of the court martial. Fein said he wanted to prevent discussion of harm in arguments related to merit (guilt), as it is only relevant to sentencing (severity of punishment). Fein said harm is irrelevant to all the charges at hand and the defense’s potential arguments, because the government doesn’t have to prove harm was caused to prove the crimes occurred. “Any harm would have come after crimes were committed,” he said, and “whether the accused knew or thought he knew” that harm would come is irrelevant to his act.

Fein did say it would be relevant as mitigating evidence for sentencing, but says as PFC Manning wasn’t an Official Classification Authority (OCA), he couldn’t determine whether the release of the documents would cause harm, and couldn’t have accurately predicted the harm to come. Fein said the harm argument was “prospective,” since harm could still come tomorrow.

The defense stood to request the judge deny the motion, arguing the prosecution’s claims are premature since we’ve yet to even see the damage assessments in court, and that the government has fought to prevent them every step of the way. Coombs also said the motion was over broad in attempting to preclude not only assessments but any discussion of harm at all. Damage, he said, was relevant for the defense’s argument that Bradley had knowledge that the release of these documents wouldn’t cause harm. He was selective, Coombs said, in releasing these documents and not others. He noted internal inconsistencies in the government’s logic: on one hand it says Bradley had the necessary training to know this information could be seen by the enemy, and on the other it says he’s merely a junior analyst who couldn’t know what harm might be caused.

The damage assessments confirm, according to Coombs, that Bradley didn’t act “wantonly” as he selected documents he believed would not bring harm to sources or the United States. He referred to President Obama’s classification order as evidence of the government’s serious over-classification problem. Coombs noted that far more classified documents could have been released, but were not.

Further, Coombs explained that he should be able to use damage assessments to undermine the arguments of government witnesses. Basing his knowledge of these assessments on Secretary of State Robert Gates’ statements that no great harm had been caused by WikiLeaks’ releases, Coombs said he could show that no sources were compromised if a government witness claimed this was the case. If an expert witness takes the stand to describe how significant damage occurred, shouldn’t he have the ability to use the actual impact to challenge that expert, he asked. He’d need these damage assessments to do so.

Coombs previewed the government claim that introducing these damage assessments would contribute to “confusion” in the court proceedings, that doing so would challenge the integrity of the case. He said clearly the judge is capable of controlling the courtroom and clarifying confusion, and that if the judge was unsure about her ruling on the case, she could at least defer a ruling until after her in-camera review of the damage assessments.

The government immediately picked up on Coombs’ most recent point, saying, “There’s incredible confusion right now,” since all charges against Bradley regard potential damage. Fein repeated his claims that assessments are irrelevant to debates of Bradley’s guilt. You can’t look at a “snapshot,” Fein said, and say that because no damage had come in that window, that these crimes caused no damage. “If someone gives the enemy nuclear launch codes today, and nothing happens tomorrow”, that doesn’t diminish the crime urged Fein. Regarding Coombs’ request for a deferment, Fein played into previous calls against the prosecution for a speedy trial, saying eliminating damage assessments now would “save time in the judicial proceedings.”

The defense said this “snapshot” claim was a misrepresentation, since two full years have gone by and no damage, or very little damage, had been caused. He says the government’s early move to preclude the assessments proves that they’ll emerge as favorable to the defense in revealing no harm.

Getting the last word since it called the motion, the prosecution stood to merely reiterate its previous claims. The judge didn’t rule on the motion but said she’ll take in “under advisement,” and called a short recess.

Supporters gather outside Fort Meade courtroom during break in Bradley Manning hearing 4/26/12

During this recess, while waiting to return to court in a small Ft. Meade chamber, defense attorney David Coombs came out to speak to the spectators waiting to reenter the courtroom. He thanked supporters on behalf of himself and Bradley, for “continuing to bring the issue into the public eye. It means a lot to me, it means a lot to my client.” He specifically thanked Courage to Resist for its consistent support. The spectators collectively thanked Coombs for his work, and one supporter handed him a “Thank You” card that had been signed by most of the attendees. [The defense could show the card to Bradley, but he would not be able to possess it as it did not go through the authorized mail channel.]

Shortly thereafter, we returned to court for the judge to rule on the defense motion to dismiss the Article 134 charge based on the Article 104 preemption. Judge Lind said that Article 134 adequately addresses the crime, and she disagrees with the defense that Article 104 covers it entirely. She denied the motion, and called for a recess.

The judge was supposed to be able to rule on the dismissal of the “Aiding the Enemy” charge then, but she said that Ft. Meade’s “working automators” (Internet) were down, and she needed the Internet before being able to issue a ruling [more than likely in order to including proper case law citations to support her conclusions]. A four-hour recess was called, and we returned at 4 PM.

Finally, after an apparent correction of Internet issues, we came back to court. Lind introduced the defense motion to dismiss the Aiding the Enemy charge, and said “actual knowledge” is required but that it may be proved with circumstantial evidence. One cannot “inadvertently, accidentally, or negligibly” commit this offense since it deals with knowledge of the enemy’s ability to receive the contact. In a shift from the prosecution’s claim, she said the government must be prepared to prove that Bradley knew he was giving intelligence to the enemy. She defined “indirect” as knowing he was communicating with the enemy, through a third party. She said the charge, though, was not overly broad given this raised level of the government’s burden of proof. Thus, the motion was denied.

The government says that they are not calling into question releases of information made to just any website, as Coombs had cited examples such as The New York Time and Facebook in making his point as to the First Amendment implications of this charge. The government says that they are only charging this one specific website release–WikiLeaks. Of course the government could declare this same theory regarding any particular website after-the-fact. However, the judge cited this in her ruling.

Court was in recess. As happened yesterday, as soon as the court adjourned several spectators spoke aloud to thank Bradley for his courage and that they hoped he stays strong throughout the process. Also like yesterday, but spectators wore black shirts that simply read “truth”.

We’ll be back to Ft. Meade for the next Article 39 hearing June 6-8. Please join us.

By Nathan Fuller, Bradley Manning Support Network. April 25, 2012.

Bradley Manning supporters gather at Fort Meade Main Gate for morning vigil, 4/25/12

Predicting more private conferences to preface today’s hearing, Judge Denise Lind scheduled court to open at 10 AM. In this morning’s private RCM 802 conference, the judge, defense counsel David Coombs, and prosecutor Ashden Fein laid out a tentative schedule for PFC Bradley Manning’s court martial and the remaining pretrial hearings before that. All proceedings are expected to take place at the Fort Meade courtroom. Bradley is transported back to Fort Leavenworth between hearings. The parties have agreed on the following schedule:

• June 6-8 Article 39 pre-trial hearing
• July 16-20 Article 39 pre-trial hearing
• August 27-31 Article 39 pre-trial hearing
• September 19-20 Article 39 pre-trial hearing
• September 21 – First day of court martial
• October 12 – Estimated completion of court martial

All dates are subject to change, especially the late September start of the court martial. Given the amended motions and delays thus far, we expect possible additional Article 39 hearings, with the court martial pushed back to the end of the year.

Judges rules on defense motions to dismiss charges and to compel testimony

After announcing those court dates, Judge Lind ruled on the two defense motions argued yesterday. On the defense’s motion to dismiss all charges with prejudice, the judge determined that the government had properly investigated Brady material in searching for discovery documents. [“Brady” rules of evidence outline that prosecutors must disclose evidence or information that benefits the defendant.] Judge Lind found no evidence of prosecutorial misconduct, and agrees with the prosecution that it can’t be considered in control of other agencies’ information. Therefore, the motion was denied.

Next up was the motion to compel grand jury testimony—the prosecution has benefited from access to the content of the ongoing WikiLeaks–focused grand jury hearings being held in Alexandria, Virginia. Coombs outlined how without access to this same information, the defense was at an unfair disadvantage in preparing its case.

Lind said that grand jury testimony is not discoverable because it is classified, and the prosecution doesn’t have control over the FBI’s investigation. She said the defense had failed to prove the testimony’s necessity, but did say that it could be disclosed in other ways. Still, this motion was also denied.

Defense argues prosecution unreasonably multiplied charges

Following these swift denials, Coombs stood to argue a new motion to dismiss and/or consolidate based on an unreasonable multiplication of charges. Coombs holds that the prosecution took a single disclosure that happened at one time, on one day, and separated it into several charges simply to multiply punishment. The government alleges Bradley illegal procured these documents and illegally transmitted them, but Coombs argues that he couldn’t have done the latter without doing the former. Stealing the documents, Coombs says, should be considered part of the unauthorized transmission. Furthermore, the government is charging Bradley separately for releasing both the Iraq War Logs and the Afghan War Diary, even though these releases happened at the same time, according to Coombs. He cited case law Queros as precedent for precluding the double punishment of the same crime. Each theft and each transmission carries a maximum of ten years in prison, so Coombs believes the prosecution is attempting to turn a ten-year sentence into a forty-year sentence.

The judge asked Coombs if a soldier could commit a 641 violation, the unauthorized procurement, and then “stop,” or in other words take the information without releasing it. Coombs said that yes, this was possible, but if that were the case the government would have to charge Bradley under 793, a different violation. Under 641, he says, one cannot have the disclosure without the initial stealing.

To support his claim that the Iraq War Log release and the Afghan War Diary release were one and the same, Coombs cited another case law, Gilcrest, in which it was determined someone could not be punished for two larcenies for stealing both pills and money. Likewise, Coombs argued, Bradley shouldn’t be charged twice for releasing two sets of documents at once.

The government responded in two parts: one, it doesn’t believe the Queros standards have been met, and two, it plans to prove that the unauthorized Iraq and Afghanistan war log procurements occurred on different days, and therefore constitute two different violations. It plans to prove that these logs were released three weeks after they were stolen, further separating the crimes, and that they were “likely” transmitted together, included in the same file. For clarity, the prosecution’s timeline says Bradley stole some documents January 5, 2010, some on January 8, 2010, and then released both sets January 30, 2010.

Briefly responding, Coombs said that Queros deals with specific transactions, and not the overall charge sheet, so he believes it does apply in this case. He referred to the prosecution’s “arbitrary splitting” of the charges in order to punish Bradley more than is required.

Defense motion to dismiss Specifications of Charges 1 and 2

After a twenty minute recess, the judge said it’d been brought to her attention that, “There has been some noise in the gallery during oral argument.” She continued, “This is a public hearing,” and that spectators must respect the dignity of the proceedings. It was unclear what “noise” the judge was referring to, as no more than a loud cough had been uttered from the spectator benches throughout the morning.

Judge Lind then moved on to ask Coombs to argue his next motion, which calls for the dismissal of Specification 1 of Charge 2. In that specification, the prosecution alleges Manning “wrongfully and wantonly caused to be published on the internet intelligence belonging to the United States government, having knowledge that intelligence published on the internet is accessible to the enemy.” Coombs believes the Article 134 charge is “preempted” by Article 104, which uses much broader language to define “aiding the enemy.” Coombs cited case law Anderson to argue the prosecution’s charge was “like combining larceny and wrongful appropriation” into a hybrid charge of “wrongful taking.”

The government’s Captain White stood to argue the motion, saying he believed the motivations for Articles 104 and 134 were different, and therefore required different charges. He said the prosecution would have to prove this disclosure was “wanton.”

This discussion elicited a prosecutorial rift between definitions of “intelligence” and “sensitive information.” While the defense considers them the same, the government believes intelligence is broader, comprising information that was “true at least in part and useful to the enemy,” and that sensitive information, more narrow, fell under the intelligence umbrella. The judge pressed Cpt. White to give an example of intelligence information that was not deemed sensitive. The prosecution couldn’t come up with a definitive example, and asked to answer following the lunch recess.

Before lunch though, the defense was allowed to respond. Coombs reiterated his argument that because the defense contends sensitive information includes any documents would pose a danger to national defense if lost or modified, the Article 104 charge should be sufficient and preempts the Article 134 charge. We broke for lunch.

Following recess, the prosecution was called to explain its sensitive information distinction. Cpt. White said the July 12, 2007, Apache engagement video [released under the title “Collateral Murder” by WikiLeaks]– which was not classified when released – constituted intelligence that wasn’t sensitive. Coombs immediately challenged this distinction, as the video was later deemed to warrant classification.

The next motion was the defense’s call for dismissal of specification 1 of charge 1, Article 104—“Aiding the Enemy”. Coombs reminded the court that this charge has no historical precedent whatsoever as charged for a public disclosure of information, and thus the government has a very “expansive theory”. Coombs says the prosecution has failed to provide the requisite intent to give information to the enemy. He argued that under Article 104, the prosecution must allege Bradley used WikiLeaks specifically to get the information to the enemy, instead merely that Bradley gave information to WikiLeaks and that the enemy retrieved the information as anyone with Internet access might have done.

Coombs gave an analogy: if he gave a package with the enemy’s address on it to FedEx, then that would constitute indirect aid with intent. Clearly he would have intended it to get to the enemy given the address, but it would be indirect because he used a third party to transmit the package. Coombs says instead, the prosecution’s argument should be that Bradley was grossly negligent – since it alleges he knew the enemy could access WikiLeaks – but that negligence doesn’t fall under Article 104. He says the government’s argument constitutes negligence, so the Article 104 charge should be dropped altogether.

As the judge pressed him further, Coombs gave another example. “What if a soldier posted something on his blog?” he asked. The enemy uses the Internet, and therefore under the prosecution’s current argument, the soldier should assume the enemy could see it. Could anything he posted about his Army unit on his blog be considered aiding the enemy?

Even if the government proved the enemy received the information, Coombs says that would be an aggravation argument for harsher penalties under the negligence charge. Coombs argued this exact same policy could be applied to the New York Times or Washington Post. If he gave information to the Washington Post, Coombs said, would that be “indirect aid,” since the enemy knows the Washington Post is online? The standard for Article 104 is using an intermediary with intent, not mere negligence, Coombs argued.

He got more specific with the hypothetical: if a soldier’s unit had no body armor and was going into battle, and that soldier publicized that information via his blog, or WikiLeaks, or the New York Times, did he aid the enemy simply because he wanted the information to get out in the public? What if he told a reporter that a high percentage of soldiers in his unit suffered from PTSD and/or had low morale? He argued that this government definition of “indirectly” would contrast with the First Amendment, because that soldier would be barred from speaking out to the public for fear that he could unwittingly “aid the enemy.”

Highlighting the importance of this ruling of a charge without precedent, Coombs said, “If accepted, 104 would be alarming in its scope.”

The judge asked Coombs to refrain from using hypothetical examples that distract from the focus of the argument at hand.

What was Bradley’s intent?

Coombs returned attention to “intent,” and referred to the chat logs attributed to Bradley Manning. He clearly wanted the public to know this information, Coombs says, and “that’s not aiding the enemy.” Coombs asked, “If Bradley really wanted to give information to the enemy, why not try to give it to them directly? Why not ask WikiLeaks to refrain from publishing them for the world to see?”

The government is trying to argue that Bradley specifically knew that Al Qaeda could access WikiLeaks based on his research in Iraq. But Coombs says everyone knows the enemy can access the Internet. With Google and the Internet’s vast reach, nearly everything online is accessible.

The prosecution responded by saying that Bradley acted “knowingly,” and emphasizing Bradley’s “awareness,” or knowledge that America’s enemies could access this information if he leaked it online.  The judge asked if “knowledge” included awareness that the enemy would access the website, and the prosecution said yes. The judge asked if it included awareness that the enemy might access the website, and the prosecution responded that awareness meant that it definitely would access. This means the government will have to prove that Bradley Manning knew ahead of time that the enemy would access WikiLeaks specifically, not merely that he knew it was possible. Therefore, the prosecution says Coombs’ New York Times hypothetical argument doesn’t apply, because it isn’t arguing for anywhere on the Internet, it is specifically alleging the charge for WikiLeaks.org.

Interestingly, Coombs noted earlier in an argument that WikiLeaks had not been vilified when Bradley is alleged to have sent them the data.

Though this raised the government’s burden of proof, Coombs still challenged the Article 104 further. He said that even knowing the enemy would access the website is still reckless negligence, because it doesn’t constitute the intent of communicating. Coombs acknowledged that “the enemy” gained access to the information, but only in the context of the enemy being “a subset of everybody.”

He explained why intent of action, and not motive, was at hand: if you communicate with the enemy and say to them that war is bad, you may have a great motive but it’s still a 104 violation – you still intended to communicate with the enemy, which is what the article forbids. The judge looked up at the clock and back at Coombs. She’ll said rule on this tomorrow, and adjourned the hearing for the day.

This article recounts day two of three days of scheduled pre-trial hearings for PFC Manning at Fort Meade. Please email Nathan Fuller at nathan@bradleymanning.org with any questions or corrections. Stay tuned for additional reports throughout the week, and for each day Bradley Manning is in court.

By Nathan Fuller, Bradley Manning Support Network. April 24, 2012

Credit: JIM WATSON/AFP/Getty Images

PFC Bradley Manning’s Article 39 hearing reconvened on Tuesday at 10:00 AM ET, after a brief delay due to private conferences among Judge Col. Denise Lind, defense lawyer David Coombs, and the prosecution’s Maj. Ashden Fein.

First, Judge Lind noted a change in Bradley’s legal defense team: Capt. Joshua Tooman has replaced both Maj. Matthew Kemkes and Capt. Paul Bouchard, though reasons for the substitution weren’t given publicly.

After a discussion of a court-assigned security official who will assist with the handling of classified material, Lind addressed the various calls for transparency in Bradley’s proceedings. Just yesterday, the Center for Constitutional Rights (CCR) renewed its call for openness, requesting a public transcript and all motions to be made public.  As Coombs explained, the defense motions are currently all online at his blog, though they’ve been heavily redacted. The prosecution declined to post any of its responses or motions publicly. All parties were involved in an RCM 802 conference (a telephone meeting held between hearings), in which the government requested 30 days notice before a defense motion went public and the ability to submit a protective order. The judge ruled as a ‘compromise’ that for all future postings, protective orders will be placed on discovery motions, personal identification information will all be redacted, and only initials will be used for participants involved.

However, the request from CCR and the defense for what the judge called “intervention” was denied. In Lind’s words, “These proceedings have been open and will remain open,” apparently satisfied with the level of transparency so far. Lind acknowledged “the right to common law access, but that right is not absolute.” The first and sixth amendments, she says, don’t guarantee access to all court records.

Next, the defense announced an agreement had been reached for Coombs to view classified material at the Naval War College, in his home state of Rhode Island, and that Coombs was satisfied with this deal. Also, the prosecution’s many internal email problems have been sorted out, for now.

Defense motion to compel discovery — damage assessments granted for in-camera review

Moving to the major motions of the day, the judge introduced the defense’s motion to compel discovery – evidence including FOIA requests, Quantico video allegedly documenting Manning’s abuse and interrogation there, hard drives from other soldiers in Iraq, and finally, damage assessments from several government agencies, meant to gauge the level, if any, of harm created by WikiLeaks’ releases.

Prosecutors acknowledged that a damage assessment by the “WikiLeaks Task Force” (WTF) had been completed by the Central Intelligence Agency (CIA). Another damage assessment — coordinated by the Department of Defense along with the the State Department, Defense Intelligence Agency (DIA), CIA, and the Office of the National Counterintelligence Executive (ONCIX), under the auspices of an Information Review Task Force (IRTF) — had also been completed. The State Department has claimed that its assessment is on-going.

These damage assessments were the most hotly debated element of the defense’s request. The government has long said it will disclose all “relevant” assessments, yet it’s hardly agreed upon what relevant means exactly. It has said that assessments were classified, so it couldn’t determine their relevance, but it has also argued that it was up to the defense to prove their relevance.

The judge ruled another compromise of sorts: she granted the defense’s request, but only in part. All three completed damage assessments were deemed relevant to the defense, but they’re relevant for an “in-camera review,” wherein their relevance to the case and favorability to the accused will be judged later (the government requested a delay, until May 2, for the CIA assessment, which was granted). The judge reminded the prosecution of its May 18 deadline to follow through on her ruling for all assessments. The prosecution maintained that it had followed this ruling and requested assessments from all three entities, though the Department of State requested to be excluded from this order. We would return to the State Department request later in the day.

Wrapping up this partially granted motion, the defense noted that of the fourteen hard drives requested, thirteen were from Fort Drum and one was from the CIA. Out of the fourteen hard drives seized from the Temporary Sensitive Compartmented Information Facility (TSCIF) unit where Bradley worked at FOB Hammer, all but five had been wiped clean (with one of the five partially wiped). Coombs argued that this loss of evidence harms a potential defense, because even from the remaining four intact hard drives, we have already found numerous “unauthorized” programs that were widely installed across Bradley’s unit.

The hard drives were deemed not relevant, although each will be searched for alternate programs installed. These would show that most other soldiers in Bradley’s unit also installed several unauthorized programs on their computers, including Wget, the program Bradley’s accused of using to communicate with WikiLeaks. Other unapproved programs that were mentioned included the mIRC chat client, a program called “D.O. Trans,” and “Grid Extractor.”

Defense motion to compel grand jury testimony

Bradley Manning supporters at Occupy Dept. of Justice rally in DC 4/24/12

Then we moved to the defense’s motion to compel testimony from the grand jury investigation held between the FBI and DOJ to determine WikiLeaks’ potential illegality. Coombs railed against what he described as the prosecution’s shift in litigation on this issue – initially arguing that it would disclose anything relevant and necessary, then that it’d disclose anything “related to [Manning],” then only that which met the Brady standard for relevance, and finally that it couldn’t disclose the testimony at all because it wasn’t in its “possession, custody, and control.”

Since the FBI and DOJ aren’t part of the military, the prosecution argues that it’s not in control of the testimony, even though it has full and free access to these filings. But Coombs said that “possession, custody, and control” of the testimony didn’t require the physical documents be in the prosecution’s filing cabinet, merely that it had sufficient access to them to hand them over. He said it had been established that if a “close alignment” or “joint investigation” occurred between those holding the grand jury and the prosecution, then that constituted access. He argued that it was simply untenable for the government to have access to these other agencies to enhance its case and then “hide behind the fact that it’s not in physical possession” of their filings. He said it broke basic rules, the idea of fair play, and Article 46 of the UCMJ.

Before addressing Coombs’ point head on, though, Judge Lind wondered if the grand jury testimony was even within the limits of “possession.” Is the testimony a document? If it was an audio file that Fein had heard, could the prosecution be considered in “possession” of it? Coombs responded that if it was an audio file, he was requesting the transcript thereof – he’s requesting access to the testimony however he can get it.

But the government wants to disclose as little as possible. It said it would disclose the grand jury subpoena, but that it would only disclose the testimony if it was deemed to meet the Brady standard.

Coombs said that it was up to the DOJ, who was leading the investigation, and not the prosecution, to disclose the testimony. If the judge asks the DOJ to disclose it, and the DOJ declines, then Coombs would use a production order to force its disclosure. But that decision has to come from the DOJ, and it’s not for the government to block that request in the first place. Judge Lind will rule on this either later in this week’s hearings or before the next court date.

Mishandled discovery — defense motion to dismiss all charges with prejudice

We moved right along to the defense’s motion to dismiss all charges with prejudice, based on Coombs’ arguments at last month’s hearings that the government misunderstood its discovery requirements so badly that it would send the case back another year or two, nullifying itself on several grounds.

Coombs reiterated those arguments today: first, he says, in its initial response to the discovery request that the US never even cited Brady, the law the request was based on. Second, when it finally did cite Brady, it cited the wrong Brady standard (they cited the trial standard, instead of the pretrial standard, the latter of which is much more broad). Finally, when attempting to address the pretrial standard, it says classified information doesn’t apply. But Coombs says it does apply, since the government hasn’t invoked a classified privilege.

Collectively, Coombs says, these show the government fundamentally misunderstands the Brady requirement. He argued that dismissal is the only remedy available because of how severe and extensive the problem is. The government has mishandled discovery for two years now, and it stands to reason that a renewed discovery under the correct standard could take another two years, further eroding the idea of a speedy trial. There are more problems, though: other potential evidence could be lost, and finding new evidence would embarrass the government, each new item undermining its previous claim that no Brady material existed.

Personalizing the message, Coombs noted that this was “particularly disheartening” given in his 14 years as a lawyer, the biggest difference he’s observed between civil court and military court is how discovery is handled. “No games,” he said. “You don’t hide the ball.”

“You get discovery out there and you have a trial on the facts.”

The government countered this theme without directly challenging the claim, saying their search for Brady-level evidence has been a “thorough investigation” in an attempt to be “over-inclusive,” including in its requests a list of search terms related to Bradley Manning and WikiLeaks. Fein claimed that some of these searches remain ongoing, and that “those not turned over are classified.”

In a bit of a shift from previous litigation, the judge pushed back on the prosecution’s reasoning, remarking that there  “does seem to be a disconnect” between the prosecution’s previous and current understandings of discovery.

When Fein complained that the defense believes in an “over-broad” definition of Brady, the judge asked if there was some evidence that might affect a potential sentencing. “Yes,” Fein said.

But Fein quickly returned attention to Coombs’ previous arguments, saying, “No evidence has been lost, it’s all been present and preserved.” No Brady violation occurred, he said, but he also said that even if such a violation did happen, “There’s still plenty of time and resources left.”

Pushing a little further, Lind asked how the government interprets Brady with regard to lessening punishment, and Fein acknowledged that the prosecution believes something that could affect punishment meets the Brady requirement. He also said that “relevant and necessary” was his standard for classified information.

Challenging this claim, Coombs was also able to reiterate his previous point, charging that the prosecution has “engaged in revisionist history” in its initial understanding of Brady. He says the government clearly thought the pretrial standard didn’t apply, as evinced by their initial request neglecting to cite Brady.

“The proof is in the pudding,” said Coombs. “If [the prosecution] understood their discovery obligations, they already would have provided this information. Now, they’re saying ‘if we need to go get the information regardless, we can do so quickly.’”

Returning to his request for grand jury testimony, Coombs said, “It cannot be that the prosecution can interact with other agencies and then claim it has “no control” of documents.”

“Well that’s the question I’m wrestling with,” the judge replied.

Coombs continued to say that even if the testimony isn’t physically in the prosecution’s filing cabinet, “legally it is.” Since there’s no military case law that sets precedent in this regard either way, Coombs points to federal case law as a guide.

The government’s positions before the initial discovery ruling and after it stand “in stark contrast” to one another, he said. The judge, giving the prosecution the benefit of the doubt, asked, “Wouldn’t the prosecution want to ensure a conviction would uphold in appeals?”

“We’d think so,” Coombs replied, but reminded her that Fein cited no case law and instead “took a leap of logic” to make his case. Coombs argued that the government’s overly-narrow interpretation of their discovery requirements risks exposing them to overturning any potential sentence on appeal.

The State Department’s WikiLeaks Task Force

The judge then returned to the State Department’s handling of the discovery request, referring to another RCM 802 conference wherein Ambassador Kennedy’s testimony to Congress was discussed. Kennedy there established an around-the-clock WikiLeaks Task Force (WTF), but the prosecution doesn’t consider the task force’s work as necessarily part of a damage assessment.

Coombs quoted from an anonymously sourced Reuters article stating that the State Department had felt inclined to exaggerate claims of WikiLeaks’ harm to assist the Department of Justice’s investigation. Citing this claim, Coombs argued the government has been working collectively to find harm in WikiLeaks’ releases, yet the 12 documents they produced last week, as part of the discovery request, “show no harm.”

To understand its position better, and to determine if the WTF constitutes an element of damage assessment, Coombs asked for a State Department representative to come to court to be cross examined. Without a representative, he said, it seems like they’re cooperating with the Department of Justice.

Fein challenged again the claim that a task force constitutes a damage assessment, but Coombs replied that the WTF was specifically designed to assess risks, so of course it’s damage assessment. The government’s definition of such an assessment is intentionally narrow, Coombs contends, to avoid producing evidence. Fein said Coombs’ broader definition sent the prosecution on a “fishing expedition.” Seeking clarity on the task force, Coombs said that we need Ambassador Kennedy to testify.

When the judge said that the evidence only matters if the prosecution planned to use it in court, Coombs implied the prosecution could bring it up unannounced in rebuttal. The judge replied that she was “sure they wouldn’t bring it up in rebuttal,” and Fein stood to agree. Ultimately, the judge said that “the government will disclose evidence it may be holding for rebuttal.” She added, “I would like the government to produce what the State Department has with regards to WikiLeaks.”

Finally, the judge brought up the last motion, the defense’s renewed request for a Bill of Particulars. Coombs explained that the prosecution needed to define a difference between “stealing,” “purloining,” and “knowingly converting” information, and clarify which it intends to argue Bradley did. According to Coombs, “stealing” is “taking,” while “knowingly converting” is to use authorized access for unauthorized purposes. Ultimately, the prosecution lacks a clear distinction among the three, and maintains all three theories for now.

Allowing that argument, Lind adjourned the day’s session with a plan to reconvene Wednesday morning at 10:00 AM.

This article recounts day one of three days of scheduled pre-trial hearings for PFC Manning at Fort Meade. Please email Nathan Fuller at nathan@bradleymanning.org with any questions or corrections. Stay tuned for additional reports throughout the week, and for each day Bradley Manning is in court.