Notes on Bradley Manning’s motion hearing, June 7

Three State Department officials testified about the response to WikiLeaks’ releases and the damage assessment created in the aftermath. Bradley Manning’s lawyer, David Coombs, used these interviews to find more discoverable documents. Judge Denise Lind ruled against one defense motion and the defense argued three more. See notes from day one here.

By Nathan Fuller. June 7 2012.

PFC Bradley Manning in Ft. Meade, MD

On the second of a three-day motion hearing in Ft. Meade, MD, courtroom action focused largely on testimony from three State Department witnesses regarding the classification and nature of that agency’s WikiLeaks-related damage assessments.

First State Department witness: Marguerite Coffey

Marguerite Coffey, who has worked with the State Department since 1979 and now serves a merely advisory role, was first called to answer the defense’s David Coombs’s questions. Coffey, the former director of the Office of Management Policy Right Sizing and Innovation Policy, now advises the Department on “Special Projects,” one of them being her testimony today. She said she was aware of the creation of a State Department damage assessment in late November 2010, and knew that it included advising various agencies to increase their security after the release. She updated these agencies’ information management policies, adding, for example, the term “thumb drive.” She hasn’t seen the damage assessment herself and doesn’t know when it was completed.

Coffey testified that she was aware of Ambassador Patrick Kennedy’s role in the chiefs of mission review, which compiled several ambassadors’ reviews of the foreign policy implications of the release. She didn’t know if that review was completed either. She testified that she’s aware of but had no involvement in both the WikiLeaks Task Force (WTF) and the Persons at Risk working group.

Her role in the State Department response to WikiLeaks was chiefly in the mitigation team, created in late November 2010 and consisting of five assistant security officials. She doesn’t know if the team is still working today, as she left on July 29, 2011.  The mitigation team produced no final report, though Ambassador Kennedy testified before Congress on March 10, 2011 with its input. The only written mitigation team production was Kennedy’s testimony and meeting agenda and minutes. These meeting minutes and notes were filed (likely electronically) by Eric Stein, who’s still with the Department, and may be discoverable.

The prosecution’s Ashden Fein stood to ask only a few questions. Coffey told Fein that the agencies within the State Department don’t necessarily work together or overlap in their response, but that the Department does have a central filing system.

State Department witness Rena Bitter

Next to the stand was Rena Bitter, Director of the State Department’s Operations Center. The Center deals with emergency management, helping other agencies in crises “speak with one voice.” They created an around-the-clock WikiLeaks working group on November 26, 2010, to “stay ahead of the public disclosures.” The 24/7 team produced daily reports about the disclosures, but formally disbanded after three weeks, on December 17, 2011. The group still works informally, but Bitter said that the Operations Center doesn’t necessarily capture information still.

As soon as the 24/7 team closed, the Operations Center founded the WikiLeaks Persons at Risk working group, which indentified those at risk upon the documents’ release. The group asked oversea embassies to review cables in their region and decide if they needed to call attention to someone potentially at risk. Sometimes this attention was called in writing, other times by phone. The group didn’t report weekly though, and was out from under the authority of the Operations Center by May 2011. Bitter isn’t sure if the group still submits memos regularly, but those that it did are in the official record. Bitter testified that she was aware of the Chief Admissions Review but that it wasn’t under the Operations Center, and that marked the end of her testimony.

Defense motion to require identification of Brady material denied

After a brief recess, Judge Denise Lind ruled on the defense’s motion to identify Brady material, which David Coombs argued yesterday. Lind conceded that the defense files are not text-searchable, but she said that the four facilities provided for discovery and classified information are sufficient. She found no evidence of the prosecution “padding” discovery or acting in bad faith. She said the defense hasn’t requested additional staff. As was made quickly clear, the defense motion was denied.

Motion to dismiss specifications due to vagueness and overbroad phrasing

Then the defense’s Capt. Tooman stood to argue the defense’s motion to dismiss specifications of charges due to vagueness and overbroad phrasing, contending the phrases “relating to the national defense” and “to the injury of the United States or to the advantage of its enemies” are so sweeping in their scope that their meaning is unclear. The subjunctive “relating” in the first phrase could mean that no damage could occur to the national defense, and the word “injury” in the latter is vague in that it fails to specify whether the injury is physical, monetary, or something else, and that its severity is infinitely broad. Courts have applied ‘judicial gloss’ to these phrases for decades, Tooman said, by attaching limiting and restrictive phrases.

“Why can’t we apply that gloss here?” Judge Lind asked. Tooman replied that we could continue to add gloss, or realize that decades of gloss on top of gloss only blurs the meaning further.

Finally, Tooman said the phrase “national security” is unconstitutionally broad. He said national security should mean protecting the people, “not protecting the government from embarrassment.”

The prosecution’s Capt. Morrow argued in opposition, saying these phrases have been challenged and have withstood for decades. Morrow contended that the phrase “to the injury of the United States” was specified by the word “willfully” preceding it. Lind said she’d rule on the motion tomorrow.

Defense motion to dismiss lesser-included offenses

Next, David Coombs argued the defense’s motion to dismiss lesser-included offenses (LIOs), or minor offenses that were already included in simultaneously charged greater offenses. In an analogy, Coombs said that aggravated sexual assault would already be included within a rape charge, and so it would be redundant to include the former along with the latter.

Coombs asked how a soldier could have an unauthorized possession of information, a greater charge here, without also having ‘conduct prejudicial to good order and discipline and service discrediting, eight specifications,’ a minor charge.

The prosecution countered briefly, saying that because these charges can be proven exclusively from one another – that the greater charge can be proven without the lesser charge – the latter is not necessarily included in the former. We broke for lunch.

Defense motion to dismiss specifications for failure to state an offense

Following lunch came another important semantic debate. The defense argued its motion to dismiss specifications 13 and 14 of charge 2 for failing to state an offense. Coombs takes issue with the phrase “exceeding authorized access” to describe the accusation that Bradley illegally obtained information on his own computer. He argued this phrase “exceeding authorized access,” created in 1984, was intended to criminalize hackers who broke into computers they didn’t have access to. In this case, the prosecution concedes that Bradley was using his own computer, one that he was authorized to use, but that he then used that access to violate his terms of use. The defense believes the prosecution shouldn’t be allowed to charge that he exceeded his access if they acknowledge he was authorized to use that computer. The court, he said, must distinguish between “access” and “use, and that violating the latter doesn’t require violating the former.

Plenty of other soldiers have been shown to have downloaded songs or games to their computers, which they were authorized to use. Did they, Coombs asked, exceed their authorized access?

Coombs then discussed the work of Professor Orin Kerr, a leading scholar on computer crime law, who he said supports his claim that the 1984 phrase “exceeding authorized access” was meant for outside hackers and not insiders using their legitimate access for illicit means.

Capt. Morrow argued the prosecution’s opposition, which relied on the warning banner that Bradley had to have clicked past to access his computer. In clicking past it, a soldier vows he or she won’t violate previously agreed on terms of use. He also said Bradley signed an Acceptable Use Policy, which includes promising not to obtain material and communicate it to someone without proper authorization.

Judge Lind put Coombs’ question about songs and games on other soldiers’ computers to Capt. Morrow. Would they be exceeding authorized access too? Morrow said that no, they wouldn’t necessarily, but that he didn’t fully accept the analogy because it hasn’t been established how these soldiers put that material on their computers.

Morrow admitted that case law on the matter was split about 50/50 on the matter – half agree with the prosecution’s interpretation and half agree with the defense.

He disputed Coombs’ discussion of Professor Kerr as well. Morrow said Kerr thinks the law should deal with more minor technical restrictions. Morrow said that here, “We’re talking about using a computer to take 250,000 files.”

“That’s what’s so dangerous about computers,” he said.

We recessed for the afternoon, planning to return at 4 PM for a telephonic testimony.

State Department witness Catherine Brown

We returned, and with a speakerphone in the middle of the courtroom, David Coombs called Catherine Brown to testify. Brown is the Deputy Assistant to the Secretary of State in the Bureau of Intelligence and research. Coombs started to ask about the State Department’s response to disclosures, and Brown abruptly said, “Well as a general matter, we don’t like it.”

Coombs got more specific, learning that Brown reviewed the draft of the State Department’s damage assessment on WikiLeaks. The assessment compiled input from various embassies and consulates. The damage reports were consolidated into a single document, which Brown then reviewed, edited, and clarified. She’s unaware if the version before her edits is still available. The draft she reviewed has not been updated since her edits in August 2011, and Brown said that after the unredacted disclosures in September 2011, no attempt was made to update or supplement that draft. Brown refused to give the name of the director who compiled the report and sent it to her for review. Coombs said he planned to make a formal, legal request for that information, and Brown said defensively, “Well don’t make the request with me, make it with the prosecution.”

Brown discussed other agencies’ within the Department and their responses – she said that a damage assessment from the Department of Defense “might have come in [her] inbox, but [she] didn’t look at it.”

Brown testified that the chiefs of mission review started in April 2011, with embassies submitting reports of potential damage from their posts. Brown said, “This problem hasn’t gone away.” She said we might still have ambassadors in the future say, “My life is significantly hindered because of these WikiLeaks releases.”

“It’s not like people’s lives are now ‘hunky dory,’” she said.

New discovery requests, interim hearing scheduled

After Brown’s testimony, the defense discussed an addendum to its second motion to compel discovery. Coombs said that based on today’s testimony we learned of new discoverable material. He said all of this material could include Brady, and that he’d quickly learned of this material that he’s been asking the prosecution for for nearly two years.

Fein countered this claim, saying the State Department isn’t under military authority and so the material isn’t discoverable (if it isn’t Brady material). The prosecution, he said, is “still searching” for Brady. Upon this statement of continued searching, Lind asked if Fein was asking her to delay her ruling until the next hearing. Fein said yes, he was, and asked for a 30-day delay to finish searching for this discovery.  Coombs allowed the delay, saying, “If that’s what they need, well, we need the discovery.” But he added again that this is what he’s been asking for all along, and that the prosecution should have found it long ago.

Judge Lind asked Coombs to formally apply for more discovery with specificity based on today’s testimony. She said that the first interim one-day hearing to replace the RCM 802 conference would be held on June 25 at Ft. Meade. We were dismissed for the day.

Please email Nathan Fuller at [email protected] with any questions or corrections to make. Stay tuned for more coverage of Bradley’s motion hearing in Ft. Meade.

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