Update 7/14/13: Defense replies to prosecution’s “last-ditch and schizophrenic” arguments

Attorneys Defending Bradley Manning

Attorneys Defending Bradley Manning (drawn by Debra Van Poolen)

By the Bradley Manning Support Network. July 13, 2013.

“The role of the Court is not to help the Government to clean up the mess it has created.”
–David Coombs, attorney for Bradley Manning

At the conclusion of the government’s merits case against PFC Bradley Manning, the defense filed four motions to direct not-guilty verdicts, summarizing and repudiating the prosecution’s lack of evidence to support its major charges. Both parties will present oral arguments in court on Monday, July 15, at 3:00 PM, but the government has filed a response to one of those motions, regarding the contention that Manning “stole government property in violation of 18 U.S.C. 641. Prosecutors refuse to make their filings public on their own, but defense lawyer David Coombs has published his reply to their response on his personal blog.

In his motion to dismiss, Coombs argued that the government mischarged Manning by claiming that he stole “databases” instead of “copies of records,” or “information” contained therein. Manning downloaded SIGACTs (war logs) from the Iraq and Afghanistan databases, Guantanamo Bay Detainee Assessment Briefs (DABs) from the Southern Command (SOUTHCOM) database, and diplomatic cables from the State Department’s database, but he never downloaded the actual databases themselves. 

In Coombs’s reply, he shows how the government erred in charging Manning with stealing “databases,” when they should have charged him with coping records or information from the databases.   

After reading the Government’s Response, the Defense still has no idea what the Government is saying it has charged PFC Manning with “stealing” or “converting” within the meaning of 18 U.S.C. §641.  To the best of the Defense’s ability to understand the Government’s position, it appears to be saying it has charged PFC Manning with stealing the databases and the records contained in the database (and/or their copies) and the information contained in the records. 

The Government’s last-ditch and schizophrenic attempt to argue that the word “database” encapsulates all these other things (things which have independent meaning and value) must be rejected.

Coombs uses the war logs as an example to show how much more information Manning could have taken, and to show what really taking the whole database would entail. 

Moreover, the Government’s argument that “databases = records” falls flat when one specifically considers the charged CIDNE databases.  The Government alleges, for instance, that PFC Manning stole the CIDNE-Iraq and CIDNE-Afghanistan databases because he compromised thousands of records in the databases.  What the Government fails to mention is that CIDNE-Iraq and CIDNE-Afghanistan databases had much more content than simply the SIGACTS.  They contained, according to various witnesses, other records such as Human Intelligence Reports, Counter Improvised Explosive Device Reports, Psychological Operations Reports, etc.  Thus, perhaps only 10% (for sake of argument) of the records contained within the database were copied and compromised.  This fact alone demonstrates that there is a clear distinction between “database” and “records” – and that compromising certain records within the databases does not amount to stealing or converting the database itself.

Coombs criticizes prosecutors for attempting to amend and reformulate their theory after they have rested their case on the merits of the charges.

Now, at the 11th hour, after the close of evidence by both parties, the Government seeks to concoct a charge which requires a string of assumptions: when we charged databases, we really meant the records in the databases, and when we meant the records in the databases, we really meant the copies of records in the database, and when we meant the copies of records in the database, we really meant information in the copies of the records in the databases, and when we meant the information in the copies of the records in the databases, we really meant the United State’s [sic] interest in exclusive possession of the information in the records.  See Government Motion at p. 16.  None of this is even remotely encapsulated in the Charge Sheet, the Bill of Particulars, or in the Government’s Instructions.  It is a gargantuan leap to go from “databases” to “the United State’s [sic] interest in exclusive possession of the information in the records.” 

He says that the government charged Manning with stealing the databases instead of the records within to more easily meet the criteria that the information stolen be worth more than $1,000.

The Government took almost one full year to draft the charges in this case.  It could have, and should have, conducted research into the 18 U.S.C. §641 offenses.  If it had, it would have realized that “records” and “information” are not the same thing in terms of the property allegedly taken (as discussed in more detail below); and they certainly are not the same thing in terms of valuation.  The Government undoubtedly charged “database” because it was clear to the Government that databases generally cost millions of dollars to set up and run.  Thus, the Government believed it would easily clear the $1000 valuation hurdle.  However, it failed to consider what is apparently obvious to everyone else except the Government: PFC Manning did not steal or convert the database itself.  The Government itself now appears to concede that PFC Manning did not steal the database, but rather certain records contained therein.  See Government Motion, p. 12 (“The United States charged that the accused compromised databases, to include the records contained in the databases.  See Charge Sheet.  The United States admitted evidence to provide a reasonable inference the records were stolen and converted.”; the Government did not argue that it proved that the databases themselves were stolen). 

The government cannot go back and change their charge sheet nor minimize the discrepancy, which could be the difference in a half-century of prison time, as mere semantics.

Since the Government charged PFC Manning with stealing or converting databases, it must now own what it pled and prove that PFC Manning stole or converted databases (not copies of records or information).  The Court has previously held that the Government must prove what it pled and this instance is no different. 

…whether PFC Manning stole “records” or “copies of records” is not something that the Government can simply sweep under the rug as essentially “no big deal.”  What PFC Manning allegedly stole or converted, and its value, will determine whether he will face five separate convictions carrying with them fifty years of potential imprisonment.

Coombs summarizes the government’s claims, its inability to change the offenses, and his contentions with them. 

The Government claims that there is no difference between a “database,” a “record”, a “copy of a record”, or “information.”  Unfortunately, a database does not equal a record does not equal a copy of a record does not equal information.  All of these are different things.  And the Government must own what it charged: the databases.  It is too late in the game, after the close of evidence, to explain what it “really meant.”  The Government had the Charge Sheet to explain what it “really meant.”  It had the Bill of Particulars to explain what it “really meant.”  It had the Instructions to explain what it “really meant.”  What it really meant is that PFC Manning stole certain databases.  Full stop.  If, in its mind, it conflated databases with copies of records with information, that is not the Defense’s problem.  The Defense was on notice that it had to defend against a charge that PFC Manning stole or converted certain “databases.”  PFC Manning did no such thing.  Accordingly, the Defense renews its request for a finding of not guilty.

The role of the Court is not to help the Government to clean up the mess it has created. 

13 thoughts on “Update 7/14/13: Defense replies to prosecution’s “last-ditch and schizophrenic” arguments

  1. Bradley is (and we are) stunningly fortunate to have as his principal attorney David Coombs, who has served the private (and us) with uncommon brilliance and unwavering commitment while holding aside what would be anyone’s growing cynicism and putting his meticulous, comprehensive, highly focused work–and his trust–into the U.S. Military Justice System.

    Let’s hope that his faith in the court is properly rewarded.

  2. When the soldiers who laughingly shot innocent people, including children and Reuter journalists will be put before courts? When those who caused thousands of Americans die in the war based on false claim of threat of Iraq’s weapons of mass destruction will face justice? When every SIGACT amounting to a war crime will be investigated and guilty brought to justice?

    • That’s what I want to know.
      It’s absolutely insane how focus is instantly taken away from the crucial information we’ve received and instead placed on the the people who delivered the information (Manning, Assange, Snowden, etc).
      This is powerful evidence that our mainstream media is indeed controlled by the people responsible for the crimes and atrocities that are being revealed to us by these heroic whistleblowers.

  3. It is Plain and CLEAR that the Government has something they want to hide. Not just make a case about Manning. If someone is doing something morally or otherwise illegal, WHY does the Government get away with it while the go after little guys like Manning to prove how big and Powerful, Mean and Scary they can Be. Where is Real Justice. Does anyone in Government have any True Morals, they would EXPOSE the Corruption in the Federal and Shadow Government. They will not stop their Wicked Plans, Why do they Abuse Men like HONEST ABE, Bradly Manning

  4. It is the wording of things that need to be analyzed in every part of law. It’s what people are misusing, so I agree with Russel July 14, 2013 at 3:23 a.m. that this lawyer is very meticulous and excellent representation. If all lawyers would care to observe the same details, and the Navy saying of “Pay attention to details” is proof, the government would not abuse people the way they do with the system.

  5. Yeah – Waluk, you’re right. But it’s always been like this: the courageous people like Manning face torture, martial trials and murder. The real criminals are protected. But be patient, good people and good-acting people can find comfort in the truth, no matter how perverse this government is. He did the right thing and spoke the truth. Let us do the same.

  6. The government prosecutor’s defining of databases and stealing databases reminds me of my sloppy use of the word “picture”. It could be a painting, a print, a photo, a sketch.

    Send them back to remedial English.

    Arrogance often goes with incompetence.

    Go Team BRADLEY!

  7. Atty Coombs argument might be mistaken for a hollow semantical riff on: “data”, “records”, “information”, “copies of records”, “collections of data”, “databases”, etc. The substantial legal point is that what Bradley Manning stole was not valued $1000. That point must be argued directly. Coombs argument that the prosecution called what was stolen a database in order to more easily assign it a value is a weak argument. Even if Manning had stolen the database, the whole contents and structure of the database, but without erasing the database, I don’t think the theft could be assigned a monetary value. I hope the judge hears Coombs’ argument (and the whole case) with charity.

    • You are correct in that a “substantial legal point is that what Bradley Manning stole was not valued $1000.” Our summary of the motion doesn’t address that much detail, but it is an important aspect of the motion.

  8. Bradley Manning’s work has revealed insight into the prosecution of technological warby the USA. It has also exposed the mentality of those who actual enlist to pull the triggers.

    It is highly, highly doubtful that any of these things or persons will change, just as it is sure that the US NSA, CIA, FBI, will not cease to gather all electronically transmitted communications, no matter how Snowden’s revelations are discussed.

    I expect judge Lind to levy a draconian sentence, once again clearly wrong, misguided, unreflective of law or US Constitution.

    Since the military commonly heavily reduce sentences after a few years, it may be that Bradley will see the light of day in what freedom remains in the US. I do suppose that parole regulations might prevent him from ever being as outspoken as he was to those he entrusted. Having some familiarity with it, I do know that stress over what has occurred to him will affect him for a lifetime, and this is the intent of retributive “justice,”

    So, in spite of the assured failure to change for the better by US government, military, enlistees, or generally, the citizens of the USA, the remaining question has to do with what you, as an individual who has seen and understood the failure of morality by the other individuals of your nation, and the profound ethical failures of persons, governments, and other coalitions (the word means temporary alliances), what course will YOUR morality require of you, and how will you choose to follow it in the face of draconian response?

    • Since the military commonly heavily reduce sentences after a few years.

      I think this is true, but from the sample cases I know, this is true mostly for those killers.

  9. Isn,t it amazing that Obama will comment so cunninly on trayvon Martin who is a teen ager will take great length to compair himself with him and not pardon a young soldier who was protecting our country for our citizens as Bradley Manning. He should have given him a medal of Honor actually his, as he does not deserve it, what did he do?Bradley has opened our eyes to Debate our Justice System of corruption and a President does not honor that? I am so ashamed of him . He should call Denice Lind and tell her to Dismiss this case against him , and hopefully she has some type of conscious for this young man who did his best for our country.

  10. It seems so strange that President Obama knows the experience of Trayvon Martin, but cannot, or choses not, to know the offering of Bradley Manning.
    I too, am Bradley Manning.
    How could anyone live with themselves if they saw the senseless tragedy of gunning down people from a position of reckless power, a helicopter, and not wake us up to grip of control our military and its ways has on our people. Thank you Bradley for your enduring courage.
    Thank you David Coombs for your commitment to Bradley, to justice, and to defending our country from insanity. The vicious slurry of abusive power that covers my governments’ acts ooze over every aspect of this endless war of terror. Shame on you, President Obama, the Pentagon, and Congress for yet these continuous acts of terror. If through attacking Bradley Manning is your righteous vision, how low have you fallen? As a presidential candidate, you repeatedly called this a “dumb war,” so NOW prove it, and pardon Bradley Manning!

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