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Bradley Manning’s January Motion Hearing, Day 1 UPDATED

Courtroom sketch by Clark Stoeckley

10:55 PM EST Report on argument over government’s motion to prevent Manning’s defense from discussing over-classification of the charged information during trial here.

5:20 PM EST Getting rushed off base: here’s a full report on the judge’s ruling. I’ll have more in the next few hours. Check back here later this evening.

4:41 PM EST: Per the Associated Press, “The judge said that Manning’s confinement was “more rigorous than necessary.” She added that the conditions “became excessive in relation to legitimate government interests.”

The judge also found that Manning was dishonest with Lt. Col. Robert Russell, the Quantico Forensic Psychiatrist. And although the brig commander cited a rule that did not give her the right to strip Manning naked, the court helpfully found another one for her.

4:15 PM EST:  Military court grants Bradley Manning 112 days sentencing credit for unlawful pretrial punishment.

Judge Lind in decision: Bradley Manning “not held in solitary confinement. It means alone & without human contact.” She also found no evidence of command influence that led to Bradley Manning being kept in unlawful pretrial conditions at Quantico.

It took the judge more than an hour and a half to read the ruling on whether Bradley Manning was unlawfully punished because the government doesn’t want to allow the press and public access to court filings. What a completely flagrant abuse of secrecy powers.

2:07 PM EST Big ruling coming in minutes. Before day wraps, judge is going to read decision on whether Manning was punished unlawfully when he was at Quantico.

2:00 PM EST Court just heard argument over government motion to preclude evidence of overclassification. As example of what impact this would have, defense said Col. Morris Davis, a former chief prosecutor for the Guantanamo military commission, reviewed detainee assessment briefs. They were referred to as “baseball cards” (Interesting – targets for drone strikes are baseball cards to officials too).

“He’s going to come testify that information could not be used to harm the United States,” Coombs said. The briefs contained only general background information. In 2006-07, the US released the names of all the detainees. Documents on Combatant Status Review Tribunals that looked at the status of all these detainees were released under FOIA. “They had much if not all the information contained in briefs.” The briefs did not need to be classified. More soon.

1:15 PM EST As has become clear in multiple hearings, Coombs noted the “case is unprecedented in how the government is trying to charge” Manning with “aiding the enemy.” All previous cases have dealt with soldiers who actually went to the enemy and physically handed over information.

So, Coombs said the government must prove he knew he was dealing with the enemy – directly or indirectly. He can’t violate accidently or negligently.

1:05 PM EST Coombs raised the issue of whether Manning knew he was providing intelligence or not to WikiLeaks. The government has to prove it was intelligence.

1:04 PM EST David Coombs, Manning’s defense lawyer, argued motive should be allowed to be raised during the trial. He said the defense would like to argue that Manning selected information he believed would not cause damage to the US. This “subjective belief is relevant.”

Though this is intent evidence (as the judge asked), the government argues that “intent evidence is the motive.” So the defense sees the government trying to prohibit intent evidence by saying it relates to motive.

Government has a burden to prove reasonably, Coombs said, that he should have known the information could be used to injure the US. This motion negates that burden of proof.

Subjective belief, Coombs added, could be it was reasonable to not know. That would not be enough to get a soldier out of trouble. One would consider that as part of whether it was “objectively reasonable” and make an ultimate determination.

1:01 PM EST The government acknowledged it had to show “general evil intent” with respect to the “aiding the enemy” charge. This means, Cpt. Overgaard said, the US must prove “he knew he was dealing with an enemy of the US.” There is no “bad faith motive” included.

12:58 PM EST From government argument on motion to preclude evidence: Cpt. Angel Overgaard argued for the government that it would “increase the efficiency of the proceedings.” She suggested the defense had tried to raise motive in an attempt to “excuse the accused’s conduct.”

Every charge, she said, requires “guilty knowledge.” She added, “Evidence that he was motivated by wanting information to be free does not have any impact on whether he had the requisite intent – that is he knew what he was doing when he transmitted to people who didn’t have authorization to receive.”

12:50 PM EST The judge will be issuing a ruling today on the “unlawful pretrial punishment” motion. It will be lengthy and could be overwhelming to transcribe and get down. Who knows how many pages it might be. There will be no copy for the public to read. The press will not see a copy of the ruling. It will remain concealed and the public will have to hope the collective power of the press pool gets the public all the critical details.

12:05 PM EST Lunch recess. Court completed argument on government motion to preclude motive evidence.

10:55 AM EST Technical difficulties have been delaying proceedings. When considering how regular these issues happen to be, I would hate to be covering court proceedings here after any major cuts at the Pentagon (if those ever happened). I am certain expenses that would be cut would be in the areas of maintenance of Fort Meade’s media center and technology in the courtroom.

10:50 AM EST The judge read an order urging the prosecution to submit to her how they would like to handle classified information during the trial. The defense and prosecution are to determine transitions and procedures for closed sessions. The defense is expected to list the classified information it intends to use so government can decided whether to request a closed session.

It needs to be decided if alternatives to closure will allow for the presentation of information. Whether declassifications or substitutions of information are possible so information can be presented in open court must be considered.

Stipulations, the use of code words, the use of screens with code names, “silent witness rule,” and whether to close the proceedings to the public must be proposed or considered. There are other various logistical issues like ensuring classified portions of the proceedings are captured on separate court reporting equipment that must be addressed. And the government has to determine if it objects to any of the defense’s proposed uses of classified information in the trial.

Most of this is for the benefit of the government, which intends to “safeguard” or maintain the highest level of secrecy possible in order to not disclose sensitive information.

Original Post

Courtroom sketch by Clark Stoeckley

Pfc. Bradley Manning, the soldier who the military is prosecuting for his alleged involvement in the release of classified information to WikiLeaks, is back in court at Fort Meade in Maryland today for another motion hearing.

Multiple members of the press are here in anticipation of a ruling from the judge on the defense’s “unlawful pretrial punishment” motion, which was the subject of an epic hearing last December that featured testimony from officers in the chain of command at Quantico Marine Brig who made decisions on Manning’s confinement when he was detained in the facility. However, Judge Army Col. Denise Lind is not ready to present her rule on the motion yet.

During this motion hearing, the government will be arguing two motions to limit or prevent certain evidence from being presented in the trial. One motion requests that discussion that information was overclassified be prohibited during proceedings. The other requests motive be excluded from proceedings during the trial because it is not relevant until sentencing.

The government will ask the judge to take “judicial notice” or accept as fact in the court martial executive orders, statutes and Army training manuals and regulations that could show Manning deserves to be convicted. They also intend to put forward “a US government terrorist list” and various news reports of events that have occurred as materials the judge should take note of during the trial.

A defense witness list will be argued. A summary of what each witness will be testifying about will be raised in court so the judge can decide whether the witness would be able to give relevant testimony.

Part of the proceedings will also involve the defense notifying the government of what classified information they intend to use when they cross-examine witnesses during the trial so they can make substitutions and redactions to material and prepare them if necessary.

The hearing is expected to last for the next four days. The first day of proceedings will begin around 10 am EST.

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Kevin Gosztola

Kevin Gosztola

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