Government tries to block Bradley Manning’s defense from interviewing classified witness

Pretrial hearing ends with a closed session. The government wants to call a witness that the defense says is both irrelevant and prejudicial. But the government doesn’t believe the defense should be allowed to interview him before he testifies. 

By Nathan Fuller, Bradley Manning Support Network. March 1, 2013.

Government prosecutor Angel Overgaard and defense lawyer David Coombs. Sketch by Clark Stoeckley, Bradley Manning Support Network.

Government prosecutor Angel Overgaard and defense lawyer David Coombs. Sketch by Clark Stoeckley, Bradley Manning Support Network.

This week’s pretrial hearing for PFC Bradley Manning has ended, at least for the press and public. The court moved to another closed session after about an hour of open-court litigation over elements of the “aiding the enemy” charge.

Prosecutors want to introduce evidence from the May 1, 2011, raid on Osama bin Laden’s compound in Pakistan to prove its charge that Bradley “aided the enemy.” They say bin Laden requested national defense information found on WikiLeaks’ website and that an Al Qaeda member responded with cables he found. They argue this is proof that America’s enemies “received” the unauthorized transmission from Bradley Manning, through WikiLeaks.

The defense opposes the move, because ‘receipt’ is not a required element of the charge (UCMJ Article 104). Rather, defense lawyer David Coombs said, the offense is committed as soon as the communication issues from the accused.

Though this may appear an effort to lower the burden of proof for the government, because it removes an element that prosecutors would have to prove, the defense opposed the evidence because it’s irrelevant and prejudicial. Coombs says that prosecutors are using bin Laden’s name in a politically charged effort to implicitly malign Bradley’s character. As he observes, the government charged Bradley with “aiding the enemy” on March 1, 2011 — two full months before the Abbottabad raid even occurred.

If the judge rules against the defense, the government wants to call a classified witness referred to as ‘John Doe.’ Prosecutors say ‘John Doe’ retrieved digital media from bin Laden’s compound, and many speculate that he’s a member Navy Seal Team 6.

The Secretary of Defense has invoked a privilege on ‘John Doe,’ which means that his identity and other elements of his prospective testimony are classified or are to remain concealed. The prosecution contends this privilege means that the defense shouldn’t be allowed to interview the witness before he testifies.

But invoking a privilege doesn’t negate Bradley’s 6th Amendment right to talk to a witness, Coombs says.

The defense could learn plenty of relevant information without eliciting classified information – for example, whether ‘John Doe’ has had memory issues, or has relevant biases, or has made inconsistent statements that would undercut his credibility.

Coombs also said the defense should be allowed to ask about the digital media allegedly found at the raid: where were they located, how were they found, what their condition was, whether he was the only person who collected them, and whether he decided to collect some and not other information. Hypothetically, Coombs said, “John Doe” could’ve found the media at the bottom of a trashcan. These are the types of things he could determine in an interview before testimony. Coombs agreed to speak to the witness telephonically if he was allowed to testify, to protect his identity.

The government says there are still classified facts regarding the raid – in response, Coombs observed that books have been written and a movie has been made about the raid. The prosecution’s exasperated Ashden Fein said the books and movie were made by private citizens, not the government.

Once again this week, litigation became too difficult to proceed in open court, as the government wanted to make arguments that required discussing, if not divulging, classified information. Judge Denise Lind moved to a closed session and adjourned the court to the press and public until Bradley’s next hearing, April 10-12.

6 thoughts on “Government tries to block Bradley Manning’s defense from interviewing classified witness

  1. With this new clandestine government witness, all of a sudden the Bradley team is forced to cooperate with the prosecution to support an unproven event. If the so called witness was a Navy Seal who retrieved computer drives, which could have happened electronically anywhere, that still does not mean the event where he retrieved the drives happened according to the way the government said it did. Many are questioning whether Osama was alive at the time of the “raid” and the so called wives of “Osama” were never examined as to who they were – and their children. Osama’s wives had been well known.

  2. Those who have followed the Manning case over the past year or so, maybe since about April 2012 when the pre-trial hearing began in earnest know that last November the defendant offered to plead guilty to a few lesser included charges in his indictment, basically taking legal and political responsibility for the leaks to WikiLeaks that had been the subject of some of the government’s allegations against him. Without getting into the arcane legal maneuvering on this issue the idea was to cut across the government’s pretty solid case against him being the leaker of information and to have the now scheduled for June trial be on the substantial question of whether his actions constituted “material aid to terrorism” which could subject Private Manning to life in prison. On February 28, 2013 in open court as part of the continuing pre-trial hearings down at Fort Meade in Maryland Private Manning pled guilty to those lesser charges (unauthorized use of Internet, disclosing secret information, etc.) before Judge Lind and has left himself open for up to twenty years of imprisonment. Right now the June trial issue will be on the major charges only. We need to stay with Bradley on this and make sure people know that what he admitted to was that he disclosed that information about American military atrocities in Iraq and Afghanistan and other diplomatic high crime and misdemeanors. He is in trouble, big trouble, and needs our support more than ever.

  3. Will someone please explain how he could have aided Bin Laden when Bin Laden was not convicted of anything, but rather executed without trial?

    • Man…you hit right on the spot. I never thought of that before. Your point just point out how ridiculous the trial is and will be.

  4. Deborah is actually correct that Osama Bin Laden was never convicted of anything.

    Furthermore, the FBI never listed Osama Bin Laden as “most-wanted” for anything related to 911. Why? Because they said there was not enough evidence to do so. Incredible, but true. Furthermore, the first Osama Bin Laden immediately following 911 disclaimed any connection to the 911 attacks.

    Many point to a Benazir Bhutto interview taped in 2007 with David Frost about a month before she was assassinated, where she mentioned that Osama BinLaden was dead.

    Are we to believe the “testimony” from an anonymous prosecution “witness” about a 2011 raid that killed Bin Laden? How credible is testimony from a disembodied voice? In a courtroom? Regarding easily fabricated digital media?

    Can this tribunal be made even less credible as a court of justice?

    I would say the proceedings are the very definition of a kangaroo court.

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