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Bradley Manning’s July Motion Hearing, Day 2 (Live Blog)

Bradley Manning supporters at Ft. Meade in March/Flickr Photo by SaveBradley)

Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, is in court at Fort Meade for the second day of a pre-trial motion hearing. The government and defense are expected to deliberate over instructions that will influence how the court interprets charges during Manning’s trial. There will also be some pre-authentication of evidence along with litigation on a government motion to preclude the defense from discussing “harm.”

Here are some highlights from Day 1:

  • Government claims it has piece of evidence that can conclusively prove Manning “aided the enemy.” The defense told Judge Col. Denise Lind this should be “proffered” to the court. It has not been shown to the defense or the court.
  • Government challenged process involving publication of defense motions on Internet. The government argued a motion that would have certified the defense needed to acknowledge it would face some measure of accountability if it violated a protective order on information. The judge did not approve of this measure being brought before the court. She asked what this would get “us” because there is a protective order already. If the defense violates the order, the defense would be held accountable. So, why add some certification?
  • Coombs makes it clear this case, especially the “aiding the enemy” charge, sets a precedent. No military justice prosecutions in history have charged a soldier with “aiding the enemy” for passing on intelligence to a third party. All cases have involved direct contact between the accused and “the enemy.” There also has not been a case involving a soldier posting intelligence to the Internet.
  • WikiLeaks is referred to as a “media-like organization.” During the day’s proceedings, when talking about WikiLeaks, Coombs hesitated to call WikiLeaks an actual media organization.
  • Judge Lind acknowledges the court is cognizant of constitutional issues related to the “aiding the enemy” charge.

The “instructions” motions do not appear to have been cleared for publication on the defense’s website yet. The defense’s motion on “harm,” however, is posted online.

The defense’s motion responds to the government’s effort to preclude the defense from discussing “harm” during the court martial. It shows that the defense believes the government has to prove whether Manning had “reason to believe” the “charged information could be used to the injury of the United States or to the advantage of any foreign nation.” That means they have to demonstrate he knew the information “could be used” for “prohibited purposes.” And, members of the panel that hear Manning’s case should “be entitled to consider whether harm actually occurred, so as to test the reasonableness” of “Manning’s belief that this information could not cause damage to the United States.”

A full report on the motion that was previously published at The Dissenter can be read here. Essentially, this is a measure the government appears to be taking so damage assessment reports on the leaks cannot play too large of a role in Manning’s trial.

I am at Fort Meade but I am not in the Media Center today. We are in the Public Affairs Office building on the base because the building is being used for a Guantanamo military commission hearing. That means there will be fewer updates from me in the morning and afternoon. Therefore, you will want to follow me on Twitter @kgosztola for the latest.

I will be in the courtroom scribbling furiously because we are not permitted to have computers to type. I’ll also be considering what to FOIA from the proceedings so the Judge Advocate General can claim exemptions and deny my request in full. (If you don’t understand that last sentence, see here, as I am a plaintiff in a case that is challenging the court, which is denying the press access to court martial records.)

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Bradley Manning’s July Motion Hearing, Day 2 (Live Blog)

1:30 PM EST Proceedings scheduled to return from lunch recess around 2 pm EST and resume. We will probably be going for two to three hours before recessing for the day.

1:24 PM EST The government tactic being used against Manning to prevent the defense from discussing harm was similarly employed in the case of NSA whistleblower Thomas Drake.

1:18 PM EST The government appeared to be trying to back out of being required to prove the information released by Manning was classified and that is why he is being prosecuted. The defense made a few statements about fact the Espionage Act only designed to protect classified information and, if it is not classified, it should not fall under 793(e) of Espionage Act.

Why does this matter? The “Collateral Murder” video was unclassified. Coombs wanted language in the charges to make it clear that classified, not unclassified information, is only kind of information one could reasonably argue would cause harm to the US.

1:13 PM EST Defense cautioned against 793(e) charge [Espionage Act] being turned into a “state secrets statute” by the government.

1:07 PM EST Government chose to make the clarification during the proceedings that Manning is not being charged with espionage. He is charged with transmitting information under the Espionage Act but not espionage.

1:02 PM EST Coombs suggested government should have to show Manning “substantially interfered with the ownership rights of the government so he should be required to reimburse.” This suggestion was made with regards to the 641 specifications, which allege Manning engaged in the embezzlement and theft of public money, property or records.

1:00 PM EST The court proceedings this morning consisted of argument over elements and definitions in the charges. This was long and mundane. Much of the conversation centered on case citations, like what cases the defense or government were using to get their definitions. Essentially, instructions will be given to a panel (jury) during Manning’s trial for them to review before deciding whether to find Manning guilty or not guilty.

Original Post

Bradley Manning supporters at Ft. Meade in March/Flickr Photo by SaveBradley)

Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, is in court at Fort Meade for the second day of a pre-trial motion hearing. The government and defense are expected to deliberate over instructions that will influence how the court interprets charges during Manning’s trial. There will also be some pre-authentication of evidence along with litigation on a government motion to preclude the defense from discussing “harm.”

Here are some highlights from Day 1:

  •  Government claims it has piece of evidence that can conclusively prove Manning “aided the enemy.” The defense told Judge Col. Denise Lind this should be “proffered” to the court. It has not been shown to the defense or the court.
  • Government challenged process involving publication of defense motions on Internet. The government argued a motion that would  have certified the defense needed to acknowledge it would face some measure of accountability if it violated a protective order on information. The judge did not approve of this measure being brought before the court. She asked what this would get “us” because there is a protective order already. If the defense violates the order, the defense would be held accountable. So, why add some certification?
  • Coombs makes it clear this case, especially the “aiding the enemy” charge, sets a precedent. No military justice prosecutions in history have charged a soldier with “aiding the enemy” for passing on intelligence to a third party. All cases have involved direct contact between the accused and “the enemy.” There also has not been a case involving a soldier posting intelligence to the Internet.
  • WikiLeaks is referred to as a “media-like organization.” During the day’s proceedings, when talking about WikiLeaks, Coombs hesitated to call WikiLeaks an actual media organization.
  • Judge Lind acknowledges the court is cognizant of constitutional issues related to the “aiding the enemy” charge. 

The “instructions” motions do not appear to have been cleared for publication on the defense’s website yet. The defense’s motion on “harm,” however, is posted online.

The defense’s motion responds to the government’s effort to preclude the defense from discussing “harm” during the court martial. It shows that the defense believes the government has to prove whether Manning had “reason to believe” the “charged information could be used to the injury of the United States or to the advantage of any foreign nation.” That means they have to demonstrate he knew the information “could be used” for “prohibited purposes.” And, members of the panel that hear Manning’s case should “be entitled to consider whether harm actually occurred, so as to test the reasonableness” of “Manning’s belief that this information could not cause damage to the United States.”

A full report on the motion that was previously published at The Dissenter can be read here. Essentially, this is a measure the government appears to be taking so damage assessment reports on the leaks cannot play too large of a role in Manning’s trial.

I am at Fort Meade but I am not in the Media Center today. We are in the Public Affairs Office building on the base because the building is being used for a Guantanamo military commission hearing. That means there will be fewer updates from me in the morning and afternoon. Therefore, you will want to follow me on Twitter @kgosztola for the latest.

I will be in the courtroom scribbling furiously because we are not permitted to have computers to type. I’ll also be considering what to FOIA from the proceedings so the Judge Advocate General can claim exemptions and deny my request in full. (If you don’t understand that last sentence, see here, as I am a plaintiff in a case that is challenging the court, which is denying the press access to court martial records.)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."