by Kevin Gosztola 

Legal proceedings in the case of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, resumed yesterday, with the defense arguing in the military court at Fort Meade that all charges should be dropped with prejudice.

David Coombs, Manning’s lead defense attorney, argued the government did not understand basic military rules for the discovery of evidence in cases. The past two years the government had been searching only for material that they considered a “smoking gun” or “game-changing” evidence.

They would not produce evidence that could lead to “reduction of punishment. “The government refused to produce damage assessment reports, hiding behind technicalities (for example, the State Department’s report on the release of diplomatic cables is allegedly incomplete so they refused to hand it over to Coombs).

He concluded the only “appropriate remedy” to “widespread discovery violations” was the dismissal of all charges with prejudice because, although the government could no go back and produce the evidence owed to the defense, this would create “speedy trial” issues. At least sixty-three agencies have to go through producing the information. They may also wish to cover up misconduct by rushing a re-review of evidence pertaining to Manning or WikiLeaks.

Coombs alleged analysts’ hard drives with evidence had been wiped because the government had delayed preserving the hardware. He also explained that material he was now receiving all of a sudden showed agencies had found “no harm” from the cable releases. Why the government was just now sending this over and why it had taken this long for prosecutors to get their hands on it was unknown to Coombs.

The withholding of evidence that appears to have taken place has been compounded by the fact that the military is handling discovery of evidence like a public official in charge of Freedom of Information Act (FOIA) requests. Coombs contends the government has been using a narrow definition of “investigations.” They have had a special definition for “damage assessment reports.” Like in the case of the Service Women’s Action Network (SWAN) versus the Defense Department, where the Army Crime Records Center would not produce records on “sexual assaults” because the records are organized under specific criminal offenses such as “rape,” the government has refused to conduct a liberal search for evidence the defense has requested.

The defense has requested grand jury testimony. The government has argued it is not within their “possession, custody or control” so it is not evidence that is discoverable. They have, according to Coombs, narrowly read a military rule and decided it means only agencies “under military control” can be compelled to hand over evidence. But, the defense has reason to believe the prosecutors have been able to look at this grand jury testimony themselves. They have been able to have “full access to other agencies” for the benefit of their case, because they have been part of or privy to details on what is happening with other investigations. In contrast, the defense has had to repeatedly request access to certain documents from agencies, and sometimes make requests for evidence based on what unnamed officials said in news stories on WikiLeaks or Manning.

There is some good news for the defense. Judge Denise Lind ruled the government has to produce damage assessments yesterday that the defense had been seeking for months. The State Department is challenging this ruling by the judge, but it appears reports from the WikiLeaks Task Force (setup under then-CIA director Leon Panetta), the Information Review Task Force (set up under then-Defense Secretary Robert Gates) and the State Department will be given to the defense. The judge also ruled the government must do a search of hard drives in their possession from FOB Hammer, where Manning was based, and inform the defense of whether any of the drives have programs that Manning is charged with downloading without authorization.

Finally, the judge denied requests for press access to court filings, which the press has in military proceedings for Guantanamo prisoners but does not have in the case of Bradley Manning. She contended the proceedings had “remained open thus far.” She invoked Nixon v. Time Warner, Inc., a case where the press was denied access to Watergate tapes. She explained the court was not a “release authority” for documents in the proceedings and so it could not provide them upon request, even if the government found transparency in the proceedings acceptable.

The judge also cited the FOIA process that Congress established as a system that was available for anyone that wanted documents. But this is disingenuous, because the case is ongoing. The Defense Department would stall requests for a long period of time. The press is unlikely to get any documents from these proceedings until at least two years from now. Any interest media outlets have in requesting documents is likely to be gone once a verdict is reached. The government is scheming to conceal the full extent of the legal fun and games that the prosecution has played in the proceedings thus far.

The Center for Constitutional Rights sent an attorney to address the court and argue why the proceedings should be opened. The judge would not let the attorney make an argument because CCR is not a “party to the proceedings.”

The defense has responded to requests for press access by working to make their motions publicly available. They have put documents on a website. But, all documents have any significant responses to the defense from the government censored. The judge and government have forced the defense to submit to a process of redaction that greatly limits the value of the public postings. (The defense is already very open about its legal strategy and what it knows about evidence in the case.)

Additionally, every morning now, the government, defense and the military judge meet in the judge’s chambers to discuss matters that are not necessarily administrative (e.g. dates of future hearings, etc) for at least an hour. They discuss what should be deliberated or litigated in open court. It is a secret conference and we, the press and public, are not invited.

President Emeritus of CCR, Michael Ratner, wrote yesterday that the refusal to grant the press access to court filings is a “clear violation of the law, but it will likely take burdensome litigation to rectify this lack of transparency. The US supreme court has insisted that criminal trials must be public, and the fourth circuit, where this court martial is occurring, has ruled that the first amendment right of access to criminal trials includes the right to the documents in such trials.”

He also condemned the “layers of secrecy” in this case:

The greater issue at hand is why this process should be necessary at all. As circuit judge Damon Keith famously wrote in Detroit Free Press v Ashcroft, “Democracies die behind closed doors.” Yet it is evident from the many layers of secrecy around Manning’s arrest, imprisonment and prosecution that the government shows no sign of relinquishing its claimed powers to obscure rightfully transparent judicial proceedings. The doors appear to be tightly shut.

In the final moments of the hearing yesterday, military prosecutor Major Ashden Fein became agitated at the defense’s push to find out details on what the State Department has done to investigate WikiLeaks. He accused the defense of helping Manning commit “graymail,” which is defined as “a tactic used by the defense in a spy trial, involving the threat to expose government secrets unless charges against the defendant are dropped.”

If the court approved the defense’s demands for information, this could lead to other soldiers trying to “graymail” the government. A solider could then release any classified information and steps by the government to investigate the leak would be “discoverable.”

So, now, not only is Manning accused of “aiding the enemy,” which is al Qaeda and any terrorist groups related, even though there is no mention of his intent in the charge against him, but he is also considered an espionage actor who is using the legal proceedings to unveil the inner workings of government for nefarious purposes.

This is what the lack of transparency does to people who work for and on behalf of the government. They are so used to being able to use their power to conceal what they do that when someone succeeds in using the system to get just a little peek at what goes on behind closed doors people begin to throw out hysterical charges of evildoing.

Manning, like all soldiers accused of crimes, is entitled to a fair trial. There are still months of legal proceedings to go before the trial even commences. All of this secrecy, which invites challenges from the defense, just means Manning stays in pre-trial confinement for one hundred or more days. He already has been held in prison for 700 days.

The bottom line is media that decides to cover the case should not be blocked from seeing documents from the proceedings (which they heard read into the record in court). They should not have to rely on redacted defense motions to get some semblance of understanding of what is happening (again, because these are motions read into the record in court). And, obvious legal fun and games, which the military judge has acknowledged by forcing the government to hand over damage assessments, should not be played either.

I am at Fort Meade all week for the proceedings. I will be posting updates when court is not in session. You can also follow me for quick updates at @kgosztola. I expect the hearing today to run until the middle of the afternoon. Live blog of proceedings is here.

Kevin Gosztola is the co-author of the new book, “Truth and Consequences: The US vs. Bradley Manning.” He will be doing an FDL Book Salon on April 28 on the recently published book.