On the Manning Art. 32, Court Secrecy & Nat. Sec. Cases

I somehow stumbled into an article for The Nation by Rainey Reitman entitled Access Blocked to Bradley Manning’s Hearing. To make a long story short, in a Twitter exchange today with Ms. Reitman and Kevin Gosztola of Firedoglake (who has done yeoman’s work covering the Manning hearing), I questioned some of the statements and inferences made in Ms. Reitman’s report. She challenged me to write on the subject, so here I am.

First, Ms. Reitman glibly offered to let me use her work as “foundation” to work off of. Quite frankly, not only was my point not originally to particularly go further; my point, in fact, was that her foundation was deeply and materially flawed.

Reitman starts off with this statement:

The WikiLeaks saga is centered on issues of government transparency and accountability, but the public is being strategically denied access to the Manning hearing, one of the most important court cases in our lifetime.

While the “WikiLeaks saga” is indeed centered on transparency and accountability for many of us, that simply is not the case in regard to the US Military prosecution of Pvt. Bradley Manning. The second you make that statement about the UCMJ criminal prosecution of Manning, you have stepped off the tracks of reality and credibility in court reportage and analysis. The scope of Manning’s Article 32 hearing was/is were the crimes detailed in the charging document committed and is there reason to believe Manning committed them. Additionally, in an Article 32 hearing, distinct from a civilian preliminary hearing, there is limited opportunity for personal mitigating information to be adduced in order to argue for the Investigating Officer to recommend non-judicial punishment as opposed to court martial trial. That is it. There is no concern or consideration of “transparency and accountability”, within the ambit suggested by Ms. Reitman, in the least.

Calling the Manning Article 32 hearing “one of the most important court cases in our lifetime” is far beyond hyperbole. First off, it is, for all the breathless hype, a relatively straight forward probable cause determination legally and, to the particular military court jurisdiction it is proceeding under, it is nothing more than that. The burden of proof is light, and the issues narrow and confined to that which is described above. The grand hopes, dreams and principles of the Manning and WikiLeaks acolytes simply do not fit into this equation no matter how much they may want them to. Frankly, it would be a great thing to get those issues aired in this country; but this military UCMJ proceeding is not, and will not be, the forum where that happens.

Moving on, Reitman raises the specter of “the death penalty” for Manning. While the death penalty remains a technical possibility under one of the charges, the prosecution has repeatedly stated it will not be sought and, after all the statements on the record in that regard, there is simply no reason to embellish otherwise. Reitman next states:

This case will show much about the United States’s tolerance for whistleblowers who show the country in an unflattering light.

No, it most certainly will not. In fact, the Manning criminal military prosecution has nothing whatsoever to do with “whistleblowers”. Despite the loose and wild eyed use of the term “whistleblower” in popular culture, not to mention by supporters of Bradley Manning, the concept and protection simply do not legally apply to Manning, nor to most any of the situations it is commonly invoked in regards to. Despite all the glittering generality with which the term is bandied about, a whistleblower defense does not particularly exist at common law; but, rather, is a statutory justification defense which must be affirmatively pled. In the scope of military jurisdiction, the sole availability of the defense is set out in The Military Whistleblower Protection Act, codified in 10 USC 1034, which provides, inter alia:

(a) Restricting Communications With Members of Congress and Inspector General Prohibited.—
(1) No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.
(2) Paragraph (1) does not apply to a communication that is unlawful.
(b) Prohibition of Retaliatory Personnel Actions.—
(1) No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing—
(A) a communication to a Member of Congress or an Inspector General that (under subsection (a)) may not be restricted; or
(B) a communication that is described in subsection (c)(2) and that is made (or prepared to be made) to—
(i) a Member of Congress;
(ii) an Inspector General (as defined in subsection (i)) or any other Inspector General appointed under the Inspector General Act of 1978;
(iii) a member of a Department of Defense audit, inspection, investigation, or law enforcement organization;
(iv) any person or organization in the chain of command; or
(v) any other person or organization designated pursuant to regulations or other established administrative procedures for such communications.

Bradley Manning, as admirable as we may find his purported acts, did not release to and/or through a member of Congress, Inspector General, nor any other permitted/authorized person in his chain of command or otherwise. Not even close. Bandying about the term “whistleblower” in terms of Bradley Manning’s UCMJ prosecution is simply disingenuous. A whistleblower defense has neither been affirmatively pled by Manning’s defense, nor is it even remotely available.

Next, there is a complaint by Ms. Reitman that there is “No Transcript Available”. Yeah, welcome to the world of military law; this is not unusual. In fact, the answer of maybe in “three to four months” she got from some authority at Ft. Meade is actually responsive and impressive considering she was neither a party nor counsel of record. This is simply not unique to Manning, nor particularly nefarious in the least; it is the way it is in this jurisdiction. Same goes for “Computers and Recording Devices Banned”, which she also complained of.

Buck up sister, and understand whose sandbox you are playing in. You are subject to the rules, procedures and whims of the court in any given jurisdiction; and that is the way it has long been in courts martial proceedings under the UCMJ. To be honest, it is often not much, if any, better in many Article III Federal courts. Transcripts are the property of the court and court reporter unless and until filed on the docket; you can get one, but you pay a steep price for that pleasure. Further, although it has gotten much better since Marcy Wheeler and Jane Hamsher opened up the can of liveblogging worms via the Scooter Libby trial, it is still hit and miss as to whether federal court houses and rooms across the country permit computers and “recording devices” at all.

Ms. Reitman also complains that limited portions of Mr. Manning’s Article 32 proceeding were conducted in a closed court, with the public and press excluded. It is hard to discern whether she simply does not understand court process in relation to classified and protected information, or if it simply offends her rose colored view of how things would be in an utopian world. The fact, however, is that the federal government takes classified information seriously in court proceedings, and always have. And courts do too; in fact, the one place you never hear about leaks coming from are federal and military courts. That is the single best argument for limiting the use of the “state secrets privilege” in federal civil courts and the CIPA process in federal criminal courts.

In fact, without the CIPA process, it would be nearly impossible to prosecute breaches in government security and classified information that truly are legitimate and in the interest of national security; otherwise, every defendant would escape via a graymail defense. Yes, legitimate instances of appropriate posecutions do indeed exist. And, yes, the CIPA process is indeed embedded into UCMJ law via Military Rule of Evidence 505. Notably, the full panoply of Rule 505 CIPA like procedures do not vest until the trial process, after the case is referred from an Article 32 hearing; however, the direct provision for the closed proceedings utilized in Pvt. Manning’s Article 32 are so promulgated in Rule 505 (C)(3):

Article 32 proceedings, like courts-martial, are open to the public. This means that Article 32 investigations may only be closed in accordance with the procedures discussed in the next chapter. Under M.R.E. 505, the assertion of the classified information privilege may not occur at the Article 32 stage of the court-martial proceeding. Instead, under M.R.E. 505(d)(5), the convening authority may chose to withhold disclosure of the information, if disclosure would cause identifiable damage to the national security. Where the information is withheld, the investigating officer does not hold a hearing under M.R.E. 505(i) to determine the classified information’s relevance and necessity to an element of an offense. Those provisions all apply post- referral, in front of the military judge. If the convening authority provided classified information to the defense in discovery, it is entirely possible that classified information will be introduced during the Article 32 proceeding, by one of the parties or through witness testimony, without substantive discussion of their contents. This is most commonly referred to as the “silent witness” rule. Alternatively, the parties may decide to introduce the evidence in a closed session. When that happens, the IO will need to conduct a closure hearing under R.C.M. 806(b)(2), as discussed in Chapter Ten.

Well, Ms. Reitman, that is exactly what was done by the Convening Authority and Investigating Officer in Pvt. Manning’s article 32 process. Whether you approve or not is irrelevant; that is the well established and statutory procedure. It is what is mandated Ms. Reitman, not some nefarious conspiracy by Big Brother to deny you.

The rest of Ms. Reitman’s gripes are ticky tack, as opposed to substantive, although I would like to address briefly her beef regarding the security procedures at Ft. Meade. This simply borders on the absurd. Ft. Meade is not just a United States Army military installation, but is the headquarters of United States Cyber Command, the National Security Agency, and the Defense Courier Service. Yes, they have strict security for access and traverse of any portion of the installation. It is unclear why Ms. Reitman finds this notable, much less shocking.

One last thing that is more of a pet peeve of mine than direct point of Ms. Reitman’s, although she prominently mentions him. Daniel Ellsberg. Both Ellsberg himself, and the legion of Bradley Manning supporters, have compared Manning to Ellsberg. Mr. Ellsberg is a mythic figure to the anti-war and progressive left, and while it is easy to see how many would have that admiration for his freeing of the Pentagon Papers, in many ways it is a false paradigm to compare him with Manning. While I think they are fairly distinguishable in detail, I will leave that for another day. What they ought to keep in mind is that Daniel Ellsberg was guilty of the criminal charges filed against him and, but for the fortuitous intervention of inexplicably egregious prosecutorial misconduct causing dismissal, Ellsberg would have been convicted in 1973 and would quite likely just recently have gotten out of federal prison. Ellsberg himself admits as much. Manning supporters would do well to keep this in mind for perspective.

There is an abundance of misinformation and hyperbole regarding Pvt. Bradley Manning and WikiLeaks coursing through the internet ether already, it does neither the public, nor Mr. Manning’s enthusiastic supporters, any favor or service for Ms. Reitman to add yet more.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
40 replies
  1. Rirer Capital says:

    Great article. Needs an edit —> “Additionally, in an Article 32 heraing,” Congrats on the Lions, keep up the excellent, and focused, work.

  2. scribe says:

    Put in the same room the need to sell papers and a general societal unfamiliarity with the daily ins and outs of the military – a society with its own norms, rules and manners – and you get the kind of error-ridden rticles you’re dissecting here. Multiplying like rabbits.

  3. P J Evans says:

    Somehow I doubt that Ms Reitman’s father worked in the defense/security area. Otherwise she’d have learned a lot more about security when she was growing up.

  4. blueskybigstar says:

    You are so expletive wrong. What side are you on? Well, it does not even seem a question the way you argued their argument and ignored everything that matters about this trial. You give full support for the military and their arguments that violate the Constitution and the Geneva Convention. It is the LAW that a soldier report war crimes. This is what this is about. There are reports that much more is being attributed to his release than actually did happen, basically blame him for the things he did and while doing that, blame him for the things he did not do as well. We owe our getting out of Iraq to Bradley Manning if he did indeed release the video of the massacre of the 12 dead which included 2 reporters. That was a major crime that had to be told no matter what mumbo jumbo they read you in order to cover their butts. It was revelations of abuse such as that which is being attributed to Bradley Manning that is the real reason we are out of Iraq. It was only the threat of holding American forces accountable to the law that made us leave. Shameful.

  5. BgPelaire says:

    Smackdown of the uninformed and griping! It’s why I come here, and thanks. I read all this lightweight horsepuckey at Huffington, and often at FDL, and have to come here and to Krugman to get the, uh, facts.The telling point here is that Ellsberg knew what he was doing was illegal and he, ah, manned up and did it, but he was willing to go to jail for it. The coddled middle classers have to understand that when you say “Give me liberty or give me death” you might get death. It’s not “Give me liberty or a parking ticket and a lecture.”

  6. Benjamin Franklin says:

    I am more interested in the sentince, which seems inevitable. I wonder if there is some equivalency in Scooter Libby’s trial. I suggest 2 1/2 years with credit for time served and a commuted sentence from Barak Obama.

    As to the whistleblower issue, I have some problems. He did not use the conduit for release of the data which would be the LEAST likely to provide any transparency. Cops use informants who are allowed to continue in their criminal activity with the understanding that greater criminals can be prosecuted. Yes, he should have obtained a deal of some form before releasing, but who would have made such a deal? No. I think we need a braoder definition of WB. Manning sought no benefit for himself, and that is much of the reason he did not seek proper protection under the law. He did us all a service. I believe History will bear that out.

  7. Benjamin Franklin says:

    EVERYTHING is connected.

    http://consortiumnews.com/2011/12/24/americas-debt-to-bradley-manning/

    One criticism about the value of the information that Pvt. Bradley Manning allegedly gave to WikiLeaks is that most of it was known in some form and thus didn’t justify the risks to sources who might be identified from the diplomatic and military cables. However, that complaint misses the importance of detailed “ground truth” in assessing issues of war and peace.

  8. bmaz says:

    @Benjamin Franklin: I agree about the need for a broader and better whistleblower protection set. My point is only that there is no “whistleblower defense” save for that which is specifically provided by statute. In this case, Manning is not eligible for it. What should, and could, be is a different question.

    As to sentence, my best prognostication is that there is not a chance in hell of time served. If it can be kept to ten years or less with credit against it for the time already served calculated in, that will be a fantastic outcome for the defense. And I think it almost certain to be resolved via a plea agreement; if this goes through to a trial verdict, it will not go well for Manning.

  9. Benjamin Franklin says:

    @bmaz:

    Yes. They must send a strong message in order to discourage future acts. The question is; how will the status quo ever allow broader definition of WB, considering they have the most to lose.

    I hear a lot of people (center/left) say he should swing, as though he did something morallywrong, and basing their value judgements squarely in the Rule of Law, without any consideration for it’s own failings.

  10. karenjj2 says:

    Thanks, bmaz. So basically this hearing
    will determine that there is enough
    evidence to proceed to courts martial
    for “knowingly and willfully” releasing classified information.

    My major criticism of the u.s. gov is the 18 months it took to hold this straight forward hearing and my perception of “arrest 1st and search for, coerce evidence later” (based on a felon-hacker’s “chat logs”) that appears to have occurred.

  11. bmaz says:

    @Benjamin Franklin: I do not disagree; however, one problem I have always had, and that I think does lurk below the surface that many see, is that overall the leak was not selective. Assuming Manning is the actor (and with the defense failure to really challenge that, I think it is a very safe assumption at this point), he did not leak just the collateral murder video and Gitmo files exposing detention irregularities. He made a massive dump of diplomatic cables. Hundreds of thousands. Now, fact is most of them really were not shocking nor particularly harmful. Nevertheless, they were classified; irrespective of whether they should have been, they were. The military I think does have an interest in not having its line soldiers take it upon themselves to make wholesale mass dumps of classified information. There is no way Manning knew what was in all the cables, and extremely unlikely he knew what was in the Gitmo files. He just decided to dump them. Forget the “harm” and “aiding enemies” and all that rot; from a discipline and command viewpoint, I cannot see how the military does not have a legitimate interest in enforcing its rules and discipline. Yes, a few of the items released did indeed demonstrate evidence of “war crimes”, or at least can be rationally argued to. But, how many of the 250,000 to 300,000 documents and items released fall within that category? My bet is less than 5%, and that is likely generous. How do you excuse the rest? It is not an easy call either way, but I do not think the facts, nor applicable law, are quite as simplistic as many seem to believe.

  12. Jim Hicks says:

    @blueskybigstar:
    I’m just an luker & not an educated one at that but I think the crux of the argument is that BM didn’t “report” the war crimes ( “It is the LAW that a soldier report war crimes. This is what this is about.” your statement) he leaked them which isn’t the same thing. I understand that probably if he had “reported” the war crimes it would have gone up the chain probably one rung and died there (mixed metaphor?) but that is reporting. I agree that reporting anything up the chain in this country is totally useless given the criminals that are running the zoo but it would helpful to separate report from leak.

  13. bmaz says:

    @karenjj2: I think it is now pretty clear they had enough probable cause for arrest by the time they did so. And, yes, the way you described the Art 32 hearing is correct, it was merely to determine whether or not there was even sufficient evidence to go forward to trial. There was, and even the defense di not meaningfully challenge that so much as try to set the stage for what comes next.

    As to the time, I am pretty sure that once the detention conditions were rectified, Manning and his defense team were thrilled to have it strung out. It has given the screamers in the Administration and Congress time to calm down, realize that there far less “damage” than originally stated and generally lower the temperature by leaps and bounds. That is a very good thing for Manning actually. There were steps that could have been taken to speed the process up; the only time Coombs and Manning ever even meaningfully raised one is to force the shift in detention conditions. When that was rectified, that disappeared. There is a reason for that I think, and it is that time was their friend.

  14. bmaz says:

    @Jim Hicks: Right; but by at least attempting to “report” properly, you at least give some innoculation from, and justification for, subsequently taking more drastic measures. You get none of that by right off the bat indiscriminately handing bulk amounts of information to a foreign party. Again, there may well be arguments that was what had to be done etc., but it does not place you within the ambit of statutory whistleblower protection. That is the point I am trying to convey.

  15. jerryy says:

    I am curious about the dancing around the question of whether actual damage or not has been done. Specifically in regard to the video of the helicopter attack on civiians and journalists, etc.

    Kevin reported that BM found out about the video because his superior was watching it (they watched it together several times, with multiple people discussing it, etc.). This video is evidence of war crimes being committed, but nothing was dome in the chain of command to get those responsible for the acts held accountable. Additionally, it has been reported in several places, that many of the documents were not properly classified, if they were classified at all.

    The military does need to make sure its policies are upheld, but some of these seem to be more set up to be selectively done. (And while it is OT, do keep in mind that some of the military has policies in place forbidding its members to testify to Congress.)

  16. FrankProbst says:

    @bmaz 14

    “Assuming Manning is the actor (and with the defense failure to really challenge that, I think it is a very safe assumption at this point)…”

    I agree with this statement, but it doesn’t follow that the defense couldn’t effectively mount a defense based on this point. From what I read of the Article 32 hearing, it was clear that Manning should have lost his security clearance on numerous occasions, that he was VERY poorly supervised, and that the facility that he worked in was more of a frat house than a secure military facility. How many other people could’ve done what Manning is accused to have done? Assume someone else had his username and password. (He sent a picture of himself in women’s clothing to his CO, didn’t he? It’s not a big stretch to think that he wrote his username and password down on a Post-It that someone else got a hold of.) Could someone else have posed as Manning and committed all of these acts? Were there other people at the facility who, like Manning, should’ve lost their security clearances but were still working there? Were there other people who had access to “Manning’s” computer? Why did two of the PROSECUTION’s witnesses invoke their 5th Amendment rights? From what I read of the Article 32 hearing, my reaction was nearly identical to the way I felt at the Casey Anthony trial–I think this person is almost certainly guilty, but the prosecution’s case is so horribly flawed that there’s simply no way they can meet the “beyond a reasonable doubt” standard. I’m assuming that neither the prosecution nor the defense threw all of their cards on the table at the Article 32 hearing, so there may be more on this to come, but if I were the defense, I’d be working on my “some other dude did it” defense, starting with the two dudes who took the 5th.

  17. bmaz says:

    @FrankProbst: Frank!!! Been a long time since I have seen you; welcome home and Merry Christmas! Don’t be such a stranger.

    I may have to come back to give a more substantive answer and/or discuss; about to take wife and daughter to airport to go visit in-laws. I get the dog for next five days….

    Agree completely about the clusterfuck that was his forward base and command supervision there. My understanding is there is a lot better evidence tying it to Manning than was put up for public consumption. Now, not all of that may be in the form that is ever put up in a trial, we just don’t know yet. But the circumstantial case is pretty damning; if I were prosecuting him, I would feel pretty good. Glad you mentioned the two who took the 5th., they are great places to point the finger for Manning’s defense. My guess is, however, they would be given immunity and compelled to testify if ever really needed at trial.

  18. Benjamin Franklin says:

    @bmaz:

    I agree it is unlikely Manning knew everything he dumped, but I find it hard to believe he did not peruse the data and see that most was just embarassing to diplomats. I think the foreign diplomatic embarrassments were the crux of the outrage, as it was our (US) security failure that resulted in their disrobing. I think Christopher Boyce has some relevance as well. He was disillusioned in much the same way as Manning. His
    response is even less responsible, but I think the outrage is better directed at the prescribed behaviors of intel gatherers and bureaucrats who inspire such anger, wherein such behaviors should be proscribed.

  19. earlofhuntington says:

    Ms. Reitman’s AP-like condescension, that you could “use” her work, ignores that by its publication, she makes it freely available under the “fair use” exceptions under US and similar international copyright laws. Her magnanimity, while welcome, distracts from the question of how much of her work was worthy of uncritical incorporation.

  20. Jim Hicks says:

    @bmaz: Good point. I don’t get the impression that BM was very calculating in his behavior. I don’t think he thought it thru or had the chops to think the legal issues thru. He was just the right person at the right time cuz without him we wouldn’t have all evidence against the criminals.

  21. Benjamin Franklin says:

    Not to muddy the water further…..the outrage over Manning and the selective perceptions surrounding his activity seems shrill when viewed in relation to the lack of inquiry, investigation, prosecution of ANYONE
    connected to the destruction of 2.5 terabytes of data compiled through Abel Danger.

    Perspective and context, notwithstanding….

  22. Benjamin Franklin says:

    From GG @salon

    http://www.nytimes.com/2011/08/25/opinion/why-is-that-a-secret.html?_r=2

    “The Obama administration has misguidedly used the Espionage Act in five such cases of news media disclosures; previously there were no more than four in all of White House history. This comes as officials classified nearly 77 million documents last year — a one-year jump of 40 percent. The government claim that this was because of improved reporting is not reassuring.”

    Flecks of BS dot the landscape.

  23. The Tim Channel says:

    I’m not going to quibble with your analysis of the law, as I am sure you have done your research well. How nice of you to explain to the 99% the intricate vagaries of the laws designed to protect the 1%.

    I expect your treatise on the rationalization for the ongoing illegality of marijuana will be forthcoming. Oh, the horrors.

    Free Bradley Manning and give him the Presidential Medal of Honor. It could be the last thing Obama does as president before they ship him off with Bush for violations of the Geneva convention. Bush for torture (admitted) and Obama for ignoring and not prosecuting same.

    Enjoy.

  24. pdaly says:

    When I first heard that this was just a pretrial, I was surprised later when it took all day and not 45 minutes.
    When the pretrial stretched on to 7 days, I had to keep reminding myself that this was only a pretrial but kept wondering what trial would look like.

    Did the prosecution have to show all its cards to the defense? (it seems it did) or just enough to satisfy the low bar to proceed to the trial (which I understand neither party really wants, as a plea agreement may be to everyone’s liking).

  25. pdaly says:

    I’m interested in reading bmaz’ take on the false comparison of Manning and Ellsberg.

    Also what to make of this statement by Ellsberg, that he was surprised to learn from his defense lawyers that (at least in the 1970s) it was not against the law to leak top secret documents to newspapers to educate the American public as he had done:

    “…Congress had never passed a law that provided criminal sanctions against what I had done: copying and giving official “classified” information without authorization to newspapers, to Congress, and to what our constitutional principles regard as our “sovereign public.” …[snip]…

    [Most countries] don’t have constitutions with our First Amendment, which prevents Congress from passing such a law….[snip]…

    The regulations governing documents classified confidential, secret, and top secret constitute an administrative system under which employees of the executive branch who have signed secrecy oaths or agreements are subject to administrative penalties for unauthorized disclosures, from losing access to such information to being fired.”
    p. 429 of the book Secrets: A Memoir of Vietnam and the Pentagon Papers by Daniel Ellsberg, 2002.

  26. pdaly says:

    Ellsberg’s defense lawyer Leonard Boudin: “As far as we can tell, Dan, you haven’t violated any law.”

    I said, “That’s great! So I’m home free!”

    But Boudin said, “I’m afraid it’s not as simple as that. When the U.S. government goes into a courtroom and says to a jury, ‘The government of the United States versus Daniel Ellsberg,’ and presents twelve felony counts…you can’t be sure you will walk out of that courtroom a free man.”

    I chewed that over. Then I asked, “Well, what are my odds?”

    “Fifty-fifty.”

    Fifty-fifty? And I haven’t broken any law?”

    Leonard said, “Well, let’s face it, Dan. Copying seven thousand pages of top secret documents and giving them to the New York Times has a bad ring to it.”

    Secrets by Ellsberg, pages 431-32.

  27. rugger9 says:

    The key thing as well to take away from this is that Manning is finally going to get his day in court, ending one of the most shameful aspects of holding a citizen without charges and trial for years.

    The Article 32 hearing discussion was indeed quite accurate, one needs to remember that one of the prices of serving is the exchange of certain civilian rights. That’s what good order and discipline means, and having done many Article 32s myself for minor stuff, decisions aren’t made there except to dismiss.

  28. FrankProbst says:

    @bmaz 20

    Always lurking. Just didn’t have much to say until now. :)

    Seriously, though, I don’t see how the prosecution gets past reasonable doubt here. Could Manning’s account have been compromised? Yes. Were they aware of the possibility that his account could’ve been compromised? Yes, a photo of Manning in women’s clothing was sent to his CO on his account. Did this trigger a WTF moment and a confrontation with Manning? Not as far as I’ve seen. Did anyone have reason to impersonate him? Of course, as what he is accused of doing is highly illegal. Any good candidates for who the “real leaker” might be? Yes, as two people have already taken the 5th when called by the prosecution and walked away.

    The defense questioning here can be utterly devastating. There was very clear evidence that Manning was pretty nutty. “Were there other people anywhere near as nutty as Manning at that facility? Did they have as much as, or perhaps even more, access to information that Manning did? Were they as poorly monitored as Manning was?” etc.

    Again, I think he’s PROBABLY guilty, and in fact I really HOPE he’s guilty, because if we’re going to violate someone’s Constitutional rights, I’d prefer that we do it do a guilty person rather than an innocent one. But I haven’t seen anything remotely convincing yet, and I see a lot of room for the defense to maneuver here. From what I’ve seen so far, I wouldn’t want to be prosecuting this case.

  29. bmaz says:

    @FrankProbst: Fair points. However, from my understanding, the prosecution has a whole lot more evidence directly linking Manning that has not been made public, whether for reasons that it is classified in some regard, or that they simply did not feel it necessary to put their entire evidence set on the record yet. I also believe that if the case ever gets to a trial, which I highly doubt, the two witnesses will be immunized and forced to testify. I am not sure of the last part, as I do not know the basis of their invocation; but I think it is a pretty fair bet. The other thing I think overlooked is the memory card found in the unopened box at the aunt’s house. That is pretty direct evidence, and the defense had nothing to counter it – at least that they have offered up yet. If I were Coombs, and I could knock that nasty fact out at the Art 32, I would have done so. That he had nothing, to me, is pretty telling.

  30. FrankProbst says:

    @bmaz

    I don’t see any reason for the prosecution to “hold back” at the Article 32 hearing. I’m assuming the defense should get everything in discovery (could be wrong, since this isn’t a civilian trial). Granted, they “won” at the hearing, so it’s a bit moot, but I thought it was a PR disaster for them. The take-home message for me was that if his superiors had done their jobs, he would never have been able to do what he’s alleged to have done. And two prosecution witnesses invoked their fifth amendment rights and were not immediately granted immunity. From a legal standpoint, they can make their immunity deals whenever they want to, but from a PR standpoint, this looks like a bunch of prosecutors who still don’t have their ducks in a row.

    The memory card at the aunt’s house might clinch this for me, or it might not. Depends on what was on it and when he supposedly left it at her house. At this point, it wouldn’t surprise me if it was seized in March and contains a bunch of classified documents written in May.

  31. bmaz says:

    @FrankProbst: I often see prosecutors hanging all kinds of material back at prelims; however your point on discovery disclosure under the UCMJ is well taken from what I can tell. Which is why I keep harping on the fact Coombs did not attack the heart of the evidence more. Well, either way, we shall see in time I suppose.

    As to the memory card, the evidence adduced so far seems to indicate that Manning did not transport it, but rather it was sent in a pox of personal effects from his forward base back to the aunt’s house and the box package was unopened when the investigators took possession of it from the aunt. It would be nice to get a lot better background on this issue, because it is a killer if the foundation is really there for credibility and veracity on it.

  32. Timbo says:

    bmaz, thanks for your cogent and clearheaded analysis of this case from a legal standpoint. Yeah, the military needs to have information security. So, yep, there is going to be a military judging of this case, given that the alleged criminal in this case is a soldier.

    It is interesting to see people on the left here trying to tear down your argument that the law in this case doesn’t involve a moral component to their liking. Maybe the problem here is that many people in the US today have somehow gotten it into their head that ‘the law’ should be ‘on my side’. Sigh. The law should be on the side of what makes sense, given the circumstances. The fact that it does not do that is an indictment of the law and the people who are supposedly upholding it. But, as you clearly point out, it’s not a magic bullet to solve wishful thinking.

    Or, well…maybe I could have worded that better!

  33. Frank33 says:

    Daniel Ellsberg was guilty of the criminal charges filed against him and, but for the fortuitous intervention of inexplicably egregious prosecutorial misconduct causing dismissal, Ellsberg would have been convicted in 1973 and would quite likely just recently have gotten out of federal prison.

    It was not “inexplicable”. It is called COINTELPRO, by the CIA and FBI.. COINTELPRO is also being used against Bradley Manning. To be accurate the Ellsberg case was dismissed because of government warmonger crimes, “improper Government conduct shielded so long from public view,” .

    Just as you revise history for Ellsberg, you slander Bradley Manning and declare him to be a criminal. No, Dan Ellsberg and Bradley Manning are not criminals. They exposed criminals. This is the Trial Of The Century. For that reason the Government will shut if off. Everything about this war is classified because everything is criminal from the Niger Forgeries through the Bradley Manning Kangaroo Court.

    Free Bradley Manning NOW!

    Bmaz will you ever say anything in support of this hero, or at least condemn his torturers?

    However, from my understanding, the prosecution has a whole lot more evidence directly linking Manning that has not been made public

    If it can be kept to ten years or less with credit against it for the time already served calculated in, that will be a fantastic outcome for the defense.

    if I were prosecuting him, I would feel pretty good.

  34. sona says:

    @blueskybigstar:
    it’s not really an issue of ‘taking sides‘ as you put it but more an issue of legalities in the process of law that has been in place
    people do have emotional reactions to events, including in this one, and i for one, acknowledge manning’s role in blowing the cover open on ‘war crimes’ as ellsberg described
    nonetheless, it doesn’t help manning’s defence to ignore the legalities

  35. FrankProbst says:

    bmaz @36

    Now I’m even more confused. Who sent the box with the memory card in it to Manning’s aunt?

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