US v Pfc. Manning | Defense Legal Filings, Defense Request to Compel Production of Article 32 Evidence

UPDATE POST COURT-MARTIAL

United States v. Pfc.Manning was conducted in de facto secrecy. The public was not granted contemporaneous access to court filings or rulings during her trial. In addition to reporting on her trial, I transcribed the proceedings, reconstructed the censored appellate list, and un-redacted any publicly available documentation, in order to foster public comprehension of her unprecedented trial.

As a result of a lawsuit against the military judge and the Military District of Washington brought by the Center for Constitutional Rights, as well as my own FOIA requests and research, an official court record for US v. Pfc. Manning was released seven months after her trial. That record is not complete.

The official trial docket is published HERE and the entire collection of documents is text searchable at usvmanning.org.

*During the pretrial proceedings, court-martial and sentencing of Pfc. Manning, Chelsea requested to be identified as Bradley and addressed using the male pronoun. In a letter embargoed for August 22, 2013 Chelsea proclaimed that she is female and wished to be addressed from that moment forward as Chelsea E. Manning.

Excerpts:

"The government responded to the defense request for production of evidence on 30 November 2011." (Source: David Coombs, Defense Compel the Production of Article 32 Evidence)

"Instead of responding to the defense request as envisioned under R.C.M. 405(g)(l)(B), the government simply treated the request as another request for discovery. Consistent with its previous responses to discovery requests, the government provided one of the following responses: (a) a general denial; (b) a statement that it had already provided all information in its possession; or (c) a statement that it was either unaware of any information or did not presently have the authority to disclose the requested information." (Source: David Coombs, Defense Compel the Production of Article 32 Evidence)

a.) "...The video is clearly within the possession of the government and should have already been produced. The government has responded that it 'will provide all matters requested that are it is possession no later than 2 December 2011.'" (Source: David Coombs, Defense Compel the Production of Article 32 Evidence)

b.) "...Thus far, the defense believes it has only received information on one of the fifteen individuals recommended for adverse administrative action. The government has responded that it 'has provided all matters requested that are in its possession.'" (Source: David Coombs, Defense Compel the Production of Article 32 Evidence)

c.) "...The lead investigative unit for the government requested preservation of these items on 30 September 2010. See Appendix C. Given the government's own preservation request, it should easily be able to determine the location of these items. 'The government responded to the defense request by stating that "it is still actively working to preserve related computer hard drives based on defense's preservation request dated 2l September 2011'" (Source: David Coombs, Defense Compel the Production of Article 32 Evidence)

d.) "...Under military law, the trial counsel has an affirmative obligation to seek out requested evidence by the defense that is in the possession of the government even if that evidence is not already in the immediate possession of the trial counsel. United States v. Williams, 50 M.J . 436,441 (C.A.A.F. 1999); United States v. Bryan 868 F.2d 1032,1036 (9th Cir. 1989), United States v. Brooks, 966F.2d 1500, 1503 (1992) (the government is considered to have possession of information that is in the control of agencies that are "closely aligned with the prosecution"). The defense specifically requested the below listed information from the government that is in control of agencies that are closely aligned with this prosecution. As is apparent from the government's responses, it has either purposefully chosen to not search for the specifically requested information, or is shirking its responsibility to do so by saying it has 'no knowledge'" (Source: David Coombs, Defense Compel the Production of Article 32 Evidence)

russell-travers-national-security-staff-senior-advisor-for-information-access-and-security-policy XXXXXXXXXX [RUSSELL TRAVERS] National Security Staff's Senior Advisor for Information Access and Security Policy was tasked to lead a comprehensive effort to review the alleged leaks in this case. See Appendix D. The government responded to the defense request by stating that it 'has no knowledge of any Brady or Jencks material .. [and] will make a determination whether to provide the information if and when it becomes aware of such records.'" (See White House December 1, 2010 Fact Sheet and David Coombs, Defense Compel the Production of Article 32 Evidence)

ii) "A copy of any e-mail, report, assessment, directive, or discussion by XXXXXXXXXX [WHO IS THIS? OBAMA?] to the Department of Defense concerning this case in order to determine the presence of unlawful command influence. See R.C.M. 405(e). Additionally, defense requests any e-mail, report, assessment, directive, or discussion by to the Department of State or Department of Justice concerning this case. The government responded to the defense request by stating that it "has no knowledge of any Brady or Jencks material...[and] will make a determination whether to provide the information if and when it becomes aware of such records.'" (Source: David Coombs, Defense Compel the Production of Article 32 Evidence)

iii) "The damage assessment conducted by the Information Review Task Force and by XXXXXXXXXX [WHAT IS THIS?]. See Appendix E and F. The government responded that it ' has no knowledge of any Brady or Jencks material ... [andJ does not presently have the authority to disclose damage assessments, if any, cited by the defense and will make a determination whether to provide the information if and when it becomes available.'" (Source: David Coombs, Defense Compel the Production of Article 32 Evidence)

iv.) The collateral investigations by the Department of State, the Federal Bureau of Investigation, the Defense Intelligence Agency, the Office of the National Counterintelligence Executive and XXXXXXXXXX [CIA See Defense Reply to Government Response to Defense Motion to Compel Discovery No. 2, May 10, 2012] The defense is entitled to receive any forensic results and investigative reports by any of the cooperating agencies in this investigation. United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999); United States v. Bryan, 868 F.2d 1032, 1036 19th Cir. 1989); (United States v. Brooks,966F.2d 1500, 1503 (1992);Article 46, Uniform Code of Military Justice (UCMJ). The government responded that it 'has no knowledge of any Brady or Jencks material ... [and] has provided all forensic results and investigative reports requested that are in its possession and that the United States has authority to disclose.'"

v.) The Department of Justice investigation into the alleged leaks by WikiLeaks as referenced by XXXXXXXXXX [WHAT IS THIS?] to include any grand jury testimony and any information relating to any 18 U.S.C. 2703(d) order or any search warrant by the government of Twitter, Facebook, Google or any other social media site. Brady v. Maryland, 373 U.S. 83 (1963);Jencks v. United States,353 U.S. 657 (1957). The government responded that it 'presently has no knowledge of any Brady or Jencks material ... and will furnish said records to the defense should it become aware of such records.'"

vi.) "The Department of State damage assessment review conducted by its task force of over 120 individuals. This task force reviewed each released diplomatic cable. See Appendix G. The government responded that it 'has no knowledge of any Brady or Jencks material .. [and] does not presently have the authorize to disclose damage assessments, if any, cited by the defense and will make a determination whether to provide the information if and when it becomes available'"

e. "The Damage Assessment of Compromised Information that is required to be submitted to the Special Security Officer (SSO) under DoD 5105.21-M-1 once an SCI Security Official determines that a security violation has occurred. The defense also requested a copy of the final security violation investigation report submitted to the SSO DoD Defense Intelligence Agency under DoD 5105.21-M-1. The government had not previously responded to the defense discovery requests for this information. The government's response confirms that the alleged disclosures in this case did not involve any sensitive compartmented information. While this fact alone is not dispositive of whether the alleged disclosures caused harm, it is an additional factor supporting the defense request for production of the above damage assessments. In response to the defense request for production of evidence, the government responded that it 'there is currently no evidence supporting a compromise of sensitive compartmented information (SCI).'"

Alexa O'Brien Alexa O'Brien researches and writes about national security. Her work has been published in VICE News, The Cairo Review of Global Affairs, Guardian UK, Salon, The Daily Beast, and featured on the BBC, PBS Frontline, On The Media, Democracy Now!, and Public Radio International. In 2013, she was shortlisted for the Martha Gellhorn Prize for Journalism in the UK and listed in The Verge 50..