Transcript | US v Pfc. Manning, Appellate Exhibit 131, Court Ruling on Defense Motion to Compel Identification of Brady material, 06/07/12

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.

The following Court ruling was read into the June 7, 2012 Article 39(a) Session Court record by Judge Lind:

Defense moves the Court to exercise its inherent discretion to order the Government to identify or separate the Brady material when providing discovery to the defense. The Government opposed this. After considering the pleadings, evidence presented, and argument of counsel, the Court finds and concludes the following:

1.) Defense asserts the Government has provided the defense with 12 pages of Brady material taken from a [missed word] investigation working document review of the Office of the National Counterintelligence Executive [ONCIX], Office of the Director of National Intelligence [ODNI], the Information Review Task Force [IRTF], Defense Intelligence Agency [DIA].

Additionally the Government has provided the defense with approximately 9,000 pages from the Federal Bureau of Investigation [FBI] which contained Brady material and additional discovery. The pages are redacted. The defense asserts the FBI files are not text searchable.

2.) There are four available facilities where the defense can store and access FBI files.

1.) Trial Defense Service Office, Fort Meyers, VA available since 12 October 2010

2.) Trial Defense Office, Fort Leavenworth, KS available since 22 June 2011

3.) Trial Defense Office: Fort Meade, MD available since 10 June 2011

4.) Trial Defense Office: U.S. Navy War College, RI approximately 30 miles from Mr. Coomb's office

At the request of the civilian defense counsel, Mr. Coombs, the Government provided facilities in Rhode Island to make it easier for him to access and store classified information without having to travel to the national capital region.

3.) The Court [missed words] defense counsel representing the Accused, Mr. Coombs, civilian defense counsel; Major Hurley, individual military counsel, and Captain Tooman, detailed defense counsel.

The Accused released original individual detailed defense counsel Major Kempkes and Captain Bouchard [missed word] Article 39(a) session on 15 and 16 March 2012. Captain Tooman was detailed to the case during the Article 39(a) session 24 through 26 April 2012, and Major Hurley was added to the defense team as individual military counsel on 6 June 2012 during the Court Article 39(a) session. Defense did not request an additional staff of defense team.

4.) The Accused is in pretrial confinement at Fort Leavenworth, KS. There is a safe to store classified information at the Fort Leavenworth trial defense office.

5.) The Court is [missed word] whether the Government is required to release the non Brady portions of the FBI file under [Rules for Court Martial] R.C.M. 702(b)(2) as material to in the preparation of the defense. The bulk FBI discovery given by the Government to the defense thus far was Brady material. There is no evidence that the Government has "padded the file" or otherwise exercise bad faith in burying the Brady needle in a haystack of FBI files disclosed.

6.) Under [Rules for Court Martial] R.C.M. 701(a)(6) [missed word] require the Government to identify or separate what material it disclosed in discovery as Brady material. See United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) declining to order the Government to organize an index of discovery, when not required by Federal Rule of Criminal Procedures 16.

The Court has not been presented with any military cases addressing this issue, however the Court agrees with the 5th Circuit that there is no general duty that requires the Government to direct the defense to exculpatory evidence within a larger mass of disclosed evidence. United States v. Skilling 554 F.3d 529 [missed word] (5th Cir. 2009).

7.) The defense relies primarily on United States v. Salyer, 2010 WL 3036444 (E.D. Cal.) and United States v. Hsia 24 F.Supp.2d 14 (D.D.C. 1998). Both of those cases involve "open file" cases with far more voluminous discovery than issued in this case, and in each there was evidence that the prosecution dumped the haystack of discovery requiring the defense to find the Brady needle. In Salyer the Court accepted the general rule set forth in Skilling and Warshak that as a matter of case management ordered the Government to identify Brady material [missed word] the Court described as a massive [missed word] documentary evidence collected over years consisting of multiple Gigabytes, pages numbering in the millions, and hard copy information filling more that two pods or storage containers.

8.) Discovery is voluminous in this case, but not nearly to the extent as in Salyer or Hsia. To date the Government has provided the defense with more than 43,886 documents consisting of approximately 411, 366 pages, approximately 9,000 paged the defense alleges has been [missed word] from redacted disclosure [missed word] and the redacted FBI files are a small part of the total discovery to date. There is no evidence the Government is padding discovery to hide Brady material.

9.) The Court finds no [missed words] or general rule that the Government is not required to sift through each item of discovery to separate or identify Brady information contained in a larger mass of disclosed evidence.

RULING

The defense motion to compel identification of Bradymaterial is denied.

Correction: When this entry was originally transcribed and published it was marked incorrectly as Appellate Exhibit 141. After the US Army released the document in June 2013 it was corrected to AE 131.

Alexa O'Brien Alexa O'Brien researches and writes about national security and law enforcement. Her work has been published in The New York Times, VICE News, The Cairo Review of Global Affairs, Guardian (UK), The Daily Beast, NY Daily News, and featured on the BBC, PBS, NPR, Democracy Now!, and Public Radio International. She was shortlisted for the 2013 Martha Gellhorn Prize for Journalism in the United Kingdom and listed in The Verge 50. In 2016, she worked at The Constitution Project in Washington, D.C. as a staff researcher and writer on an independent commission studying Oklahoma's death penalty. She also provided research support to scholars of the first cost study conducted on that state's capital punishment system.