Transcript | US v Pfc. Manning, Article 32 Pretrial, 12/16/11
- posted December 16, 2011
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 arrow indicates the Federal Officer who escorted me to the courthouse, and told me he was in charge of the event. The picture comes from cryptome.org
I arrived at Fort Meade, Maryland before the Visitor Control Center was open, around 6 am. I drove right up to the vehicle inspection center, and was granted entry after they had me open every door, trunk, and hood, and show them my license and registration.
One of the soldiers inspecting my vehicle did not know what I was talking about when I asked him where Bradley Manning’s pretrial was being held. Another stepped in and directed me.
Arriving near the courthouse, I saw an MP walking a bomb-sniffing dog through the wooded area behind the courthouse building. A bit later I approached him, and asked him where I needed to be as a member of the public to gain access to Bradley Manning’s trial. He said he didn’t know. He took my Passport and walked over to an SUV to make a phone call.
Soon after another SUV with four soldiers pulled up and approached me. A female soldier directed me to a theater and told me it would open at 7 a.m.
Metal barricades, like the kind the NYPD use for crowd control, lined the theater and the courthouse, two small one-story western style brick buildings that look like a grammar school and a small town church.
At the theater the barricades were arranged like a gerbil maze, and suggested they expected long lines. I asked a soldier if I could take in pen and paper, he had to check, “because they could be considered a ‘recording device'”, using his fingers to make air quotes.
At 7 a.m., I asked a soldier who had opened the theater doors, if he wanted me to walk up and down the long empty maze to get to the door I was presently 20 feet from. He smiled and said no. I said, “Cause it would be really funny if you did.”
Army MP’s performed a personal search, including metal detectors. No electronic devices were allowed in the theater. I stuck my chewing gum on the roof of my mouth. That wasn’t allowed either.
Just as they finished inspecting my belongings and person, a man in a black sports jacket, who later identified himself as a Federal Police officer, told me he would let me in, then turned to the other soldiers and said, “No one else until 8 a.m. ” Beside him stood the female soldier from before.
As I sat in the empty theater, I overheard the same Federal Police officer instructing soldiers to arrest or remove anyone making a scene or disrupted proceedings. If the people, “are doodling quietly” like this lady “that is fine.” I wrote in my notebook, “If the people are doodling quietly like this lady, that is fine.”
Ten minutes later, he returned and informed me that there were seats available for the public in the trial room. “Do you know there are currently seats available for the public in the courtroom? Cause I was wondering why you were sitting in here.” I jumped up. No, “Oh my God, can I go?”
I was told later, by the same man that the Federal Police, and he in particular, were/was responsible for orchestrating the ‘event’.
He escorted me to a trailer where I was to wait until the courthouse opened. He told the soldiers that were there that I wasn’t to be searched again; that I had been in his presence from the theater.
I remained in the courthouse, on the premises or the recess trailer for the entire day, without a cell phone or computer, and only my notebook and a pen.
I tried to transcribe the event, but not being an expert on the Uniform Military Code of Justice, or even the case at the very granular level, there may be errors and it may be incomplete.
You may also read Rainey Reitman’s transcript at the Bradley Manning Support Network.
On arriving in the courtroom, Manning was seated next to a member of his military defense counsel. He did not engage the gallery at all, and never turned around, perhaps on advice of counsel or the prison guards.
Manning was seen to smile when they spoke. His skin was soft and dusty pink, like his de-saturated green grey blue camos, which popped in the color corrected warm white florescent bulbs that washed the courtroom.
He wore black army issued spectacle. He looked healthy and did appear to have an exercised physique.
Manning’s voice was strong and respectful throughout the proceedings. At one point, during a recess, I walked to the left of the pews in the gallery behind him to try to catch his eye. He looked up, I smiled, and he smiled back, but just barely.
The courtroom was a 50 by 50 square room. There was foil behind the blinds to the left of the gallery, and foil on the windows of a door at the end of a long hallway that ran parallel to the courtroom and viewable only from the gallery.
I was told by the individual identified in the picture above, who had previously identified himself as a Federal Police officer, that the foil was there to prevent lasers from picking up the conversation in the room. But before that, he said, ‘What do you mean ‘foil’?”
He also told me, 20 members of the press were allowed into the gallery, and 30 members of the public.
Four to six Army MP’s stood at the back entrances guarding the doors. There were four mounted cameras at the front of the courtroom and two at the back. The ceiling had white frosted glass panels where the air ducts would normally be above gallery area. There was also large inset squares of carpet about three by three feet spaced evenly throughout the ceiling, also above the gallery, I assumed for audio recording quality.
I get the feeling that the gallery is being listened to and observed both technically and also by individuals in suits. As the Chinese constitution puts it, with “various channels and in various ways.”
My instinct also tells me that the individual in a suit who looks like the court bailiff is totally not a bailiff, he confers with an MP named Bradley, not Manning, seated in the corner by the prosecution next to a router looking device with an enormous antenna. The ‘bailiff’ also confers with the court clerk-like who sits in a concealed cubicle in front of the Investigating Officers bench. [I have subsequently found out that he is the Court Security Officer.]
Up front, behind the raised Investigating Officer’s bench stand the US Flag, the Army Flag, and the flag for JAG. Clark Stoeckly, the WikiLeaks Truck driver later tells me the chord and tassels indicate they are martial flags.
In the gallery sit Julian Assange’s external counsel Jennifer Robinson, and Amanda Jacobsen from the Center for Constitutional Rights, who both filed a writ that day demanding WikiLeaks lawyers be granted access to Bradley Manning’s proceedings.
Col. Jackson, military defense for Guantanamo Detainee, Omar Khadr, was also in the gallery; he sat and spoke to Ms. Jacobsen.
I had heard a discussion about Lt. Col. Jackson outside, while waiting entry to the courtroom. Lt. Hughes said, “Unless Coombs comes and says something, Jackson waits.”
Jackson, of course, is most known for collapsing in the Guantanamo Bay courtroom in the middle of conducting a cross-examination of a key government witness in his defense of Omar Khadr. By the way, he was in perfect health.
I later ask Jackson a few benign questions about the Khadr case.
“How that case go?” I asked, Jackson and then “How many witnesses was Omar Khadr allowed vis a vis the US government prosecutors.” I knew the answer to those questions. He seemed a bit uncomfortable, “I can’t talk about it.” He mentioned something about collapsing, and well the official story.
Someone in the gallery told me that Coombs taught two of the government prosecutors. Coomb’s wife said, “Maybe one of them,” but she wasn’t certain.
Outside, the Federal Police officer had said, were the hearing to become classified; we would be escorted out of the courtroom to the “recess trailer”.
I’d been told at the vehicle inspection station that photographs were not allowed on base. A white tarp tunnel was constructed at the entrance of the courtroom building, and photographers were instructed they could only photograph down the barrel.
On exiting the building a throng of pasty, out of shape camera operators fat jogged from a warm passenger van to their posts at one end of ‘the tunnel’ so they could shoot a glass door one hundred yards away.
Also in the gallery on December 16, Rainey Reitman from EFF [Electronic Frontier Foundation] and the Bradley Manning Support Network, and later in the day Clark Stoekley, the WikiLeaks truck driver, other members of occupy wall street, Mary Ann Wright, former United States Army colonel and retired official of the U.S. State Department, known for her outspoken opposition to the Iraq War, and Nate, featured in the video below, a veteran for peace, who at the end of the day’s proceedings, yelled, “Bradley Manning you are a hero,” as he exited.
The Investigation Officer is Lt. Col. Paul Almanza, an Army Reserve lieutenant colonel and Justice Department prosecutor.
Prosecution is Captain Ashden Fein, Captain Joe Morrow and Captain Angel Overgaard.
Defense is Mr. David Coombs, Major Matthew Kemkes and Captain Paul Bouchard.
Mr. David Coombs arrives, sits to the right of Bradley Manning, looking from the back.
Then the prosecution arrives.
Captain Ashden Fein has a bound stack of papers on the prosecution table with his name “FEIN” written in capital letters with ball point pen on the stacked edge, like a high school textbook.
Two MP’s in camos stand guard in the back of the gallery; one is named Wright and the other is named Bishop.
Army Reserve Lt. Col. Paul Almanza, a Justice Department prosecutor, arrives in court with a stack of papers in his hands, and sits at his raised bench.
He reminds me of Alberto Gonzalez, if Gonzalez were handsome and from California, not Texas. His soft-handed mannerisms are disarmingly photogenic, and dangerous in that straight out of casting, new American sit-commie, the totalitarianism of metro sexual friendliness.
[The Investigating Officer (IO) calls the hearing to order. ]
[He then reads a statement on the ‘dignity and decorum’ of the event and how the gallery is expected to behave. The Investigating Officer then reads a series of statements and questions to the accused and his defense counsel.]
IO: When did the accused receive notification of pretrial date?
[There is the matter of the Lt. Col transmitting the document to Manning’s defense and then defense to their client.]
IO: What is the receipt?
November 20, 2011 November 28, 2011 [See Manning Article 32 Almanza Script]
IO: PFC Manning do you have a copy of the charges?
Manning: Yes, sir.
[IO reads charges. Next IO recites the accused, Bradley Manning, his rights.]
IO: You have a right to be present [with qualifications regarding Manning’s behavior]…right to call witnesses…right to legal representation…if non-military counsel, not at expense of government…right to make a statement, or to remain silent, or to make an unsworn statement…any statement can be used against you. Military counsel can and will be provided to you at no charge. Do you understand your rights?
Manning: Yes, sir.
IO: Who do you wish to represent you?
Manning: Major Kemkes, Captain Bouchard, and Mr. Coombs.
[IO repeats his own duties, using phrases such as “I will impartially evaluate, and I will “consider the evidence impartially” like a mantra.]
IO: I am an impartial fact finder…at time I was appointed I knew very little about case…no substantive knowledge…no known correspondence except with counsel regarding administrative functions. Are there any challenges?
[Coombs rises and walks to the podium in the center of the courtroom, facing the IO.]
Coombs: How did you become aware of the case as the Investigation Officer?
IO: Col. Henley asked if I was available, after I said yes, I was informed.
[Colonel Stephen R. Henley is an American lawyer and an officer in the United States Army. He is notable for having been appointed the President of a Guantanamo military commission.]
[I missed one question related to when the IO was informed.]
Coombs: Who is your legal advisor?
IO: …Lt. Col. Mark Holzer
[Lt. Col. Mark Holzer is the author of “Economics of National Security: ‘Unfunding’ Terror. Download PDF. As the Command Judge Advocate of 5th Special Forces Group, Major Mark Holzer reviewed rules of engagement and briefed and de-briefed SOF teams mostly in the Baghdad environs during his March to May 2003 deployment in support of Operation IRAQI FREEDOM. See here. ]
Coombs: Which issues did you seek legal advice on?
IO: By email and conversation…one…the transfer request disclosure. Two…statement. Three…rules of the defense for extenuating or mitigating evidence. That is what I recall.
Coombs: Did you receive any other advice?
IO: Not that I recall.
Coombs: When did you undertake the Judges course?
IO: April 2010 course. [He answered twice, correcting himself. This was his first answer.]
Coombs: I was an instructor there. Did I ever teach you?
IO: No, not that I recall.
Coombs: How many court-martials have you performed?
IO: Six…all guilty. That is EC, all guilty.
[Coombs then asks IO how long he has been in civilian employment with the DOJ.]
IO: 2002 to 2004 2022 trial attorney…20 cases prosecuted.
Coombs: Are you aware the DOJ has a case against my client?
Coombs: Discussed this information with anyone [referring to pretrial hearing]?
Coombs: Did you inform him you would be the IO for Manning’s pretrial?
IO: Yes. I did.
[Coombs asks when the IO was mobilized, put on orders.]
IO: December 12, 2011.
Coombs: So up until Dec 12, 2011 you were working at the DOJ?
Coombs: What prior knowledge do you have of the matter?
IO: Aware of some articles, some TV coverage Since Dec. [did not specify year]…made a point of not reading anything.
Coombs: Any impressions prior?
IO: Recall that I thought if allegations were true, serious matter.
Coombs: Any discussions?
IO: Not that I recall.
Coombs: Any opinions?
IO: No…generally, no. Just because something reported in paper, doesn’t mean its true.
Coombs: Under R.C.M. 902(a) the defense asks that you recuse yourself. R.C.M. 902(a)…just the mere existence of bias’ as follows: Number one…your position as a prosecutor for the DOJ, a ‘career prosecutor’ since 2002 coupled with an ongoing criminal grand jury…they would get a plea to go after Julian Assange. DOJ has not ruled out fact they would not rule out taking this case… you deny…but listening to the facts, you are not impartial.
Number two…every one of the government’s witnesses was granted. In their request they listed just the names, and no basis, yet you granted all the witnesses they requested. Defense had 19 pages of relevance for each of the 38 names it requested, 10 were government witnesses and they were granted. Of the 38, only two witnesses for the defense were granted. Then this morning two more were approved to the detriment of the defense to prepare in a case that involves death penalty.
A ‘reasonable individual ‘would consider that biased.
Number three…ruling on ‘closure’ [of trial] unchanged. Defense has argued harm would come to client if certain details were made public…affect fair trial for PFC Manning. Three times defense has asked; and three times you have refused.
Anyone who has practiced for more than a day…if individual hears something… if an individual hears something in the press, with ‘again the exception of a career prosecutor’…
Number three…[Coombs repeats number three]…ruling with regard to sworn statements. Government has asked for a delay after delay because the government needed to figure out classification. So the government has finally figured out what is classified…inexplicably so it doesn’t want to produce witnesses.
Unsworn statements from witnesses R.C.M. 405 cannot consider unsworn statements over defense. And, the IO has gone out independently to find two cases that support the government. Three cases… went out to find 3 cases. Defense is now arguing against government and prosecutor.
You made up a test all on your own…eliminating Original Classification Authorities (OCA). All this has been leaked. Where is the damage or harm? And, yet government again ruled, no. The fact that you are a prosecutor [at the careerDOJ] independently supports your recusing yourself.
Defense is filing a motion that you recuse yourself…defense requests that you consider recusing yourself.
[IO paused before responding then seemed to bumble procedure.]
IO: We should hear from the prosecutor.
Prosecution: We will need to review the motion.
[IO called a recess so he and the prosecution can review the motion.]
[At recess I walked near David Coombs, looked at him and ventriloquized, “Gooood jooob!” He smiled. We went to recess at 9:40 a.m. Pretrial called to order at 11:30 a.m. ]
IO: Government have you reviewed the motion? Do you wish to be heard?
Coombs: IO, you have not made your determination?
IO: Um…no. I will speak to my adviser.
Coombs: Did you not contact a chief trial judge as I had recommended? [Coombs had made a request and recommendation that the IO speak to a chief trial judge before the IO make his determination.]
Coombs: Are you currently a deputy chief at the DOJ?
IO: I recommend policy and legislation for child exploitation and obscenity section of the criminal division of the Department of Justice…I advise trial attorneys occasionally, but not day to day.
[Confusion arises in the courtroom as to how IO should proceed. Should the judge rule prior to prosecution response to the defense motion, or before he has consulted with a chief trial judge as requested by defense?]
[IO rules not to recuse himself.]
[IO brings up the matter of the witnesses.]
IO: Significance does not outweigh military and governmental operations…
[IO talks about telephonic being fine. Coombs and IO engage in parlay regarding what Coombs labels ‘important people’.]
IO: I believe that a ‘reasonable’ person looking at all the facts would find myself able to be impartial.
[IO then brings up his reasoning regarding closure defense. Defense 405N806 [case number needs verification] test.]
IO: Main issue of determination for closure, ‘Other measures besides closure were adequate.
[Regarding statements, he brings up 405G and 28USC1746, [case number needs verification]
IO: Witnesses ‘not reasonably available.’
Coombs: Did you make a written rule that is findable?
IO: Yes, I believe I documented.
[IO says Coomb’s cited case was a court martial, not pretrial, regarding bias…]
IO: Court-martial not a pretrial, but a court-martial where the judge was openly biased…
Prosecution: US government does not think you have any bias IO. [Prosecution then rephrases.] US believe than a reasonable person would believe that you are impartial.
[Prosecution then rests.]
[IO says something about connectivity. His military email doesn’t work.]
Coombs: Coupled with your consistent rulings against defense. You rule for unsworn testimony for the government, but defense gets none of that…As of December 12 have you, or have you not, used your DOJ email for correspondence? Do you sit there and see how a ‘reasonable’ person could determine bias? This case rises and falls on classification, yet, ‘these people’ are ‘too important’ to come here.
[Coombs turns to the gallery and lifts up his hands. He says in measured tone with a dramatic beat…]
Coombs: Yet this [he points to the unimpressive, freshly painted courtroom] is the best we can do.
IO: Mr. Coombs, who are you addressing?
Coombs: The public, Sir. The government has said my client has ‘blood on his hands’ and that my client ‘should be executed.’ That is unacceptable.
[The IO rules against recusing himself. Coombs warns him prior that if he does, he will have a writ filed to a judge of appeal. Recess is called.]
IO: This hearing in session.
[Coombs asks that a transcript of proceeding be made to accompany the IO’s written report concerning his non recusal. This would be a transcript up to this point in the court proceedings. There is a discussion that transcripts of court proceedings are normally summaries. This request is later granted by the US government. ]
Prosecution: Defense requests a verbatim transcript for ACCA, but the IO can’t order it. It needs the US government’s permission.
IO: I join in a transcript but I do not have the authority.
IO: …previous stated fact…intend to append to report…I said I was not aware of DOJ case…I explained witnesses…explained closure…any reasonable person would not question bias.