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