Notes from the courtroom: Bradley Manning’s motions hearing at Ft. Meade, 11/7/12
The government deposed two witnesses today to try to explain why it delayed Bradley Manning’s trial beyond what the military law allows. Bradley entered a plea offering that deals with lesser-included offenses, and chooses to be tried before a military judge alone. This means there will not be a jury (of military officers and high ranking NCO’s).
By Nathan Fuller, Bradley Manning Support Network. November 7, 2012.
Hurricane Sandy delivered the first delay in Bradley Manning’s two-and-a-half-year trial that didn’t come at the unconstitutional whim of the United States government. The storm left the Ft. Meade military base largely unscathed, and Bradley’s trial proceeded today.
The defense has moved to dismiss with prejudice the 22 charges against the accused WikiLeaks whistle-blower for lack of a speedy trial, and today the prosecution deposed two witnesses to attempt to justify keeping the young Army private in pretrial confinement for 900 days without bringing him to trial.
Witness 1: Lt. Col. Paul Almanza
First the government called Lt. Col. Paul Almanza to the stand telephonically. Almanza was the Investigating Officer at Bradley’s initial Article 32 pretrial hearing in December 2011. Almanza excluded the government’s delays last December and in January of this year from the speedy trial clock, and today he was asked to explain why.
Last year, the government emailed Almanza, requesting that he authorize a trial delay from December 22, 2011, to January 3, 2012, and that he exclude that delay from the trial clock. Almanza granted that request and excluded it without asking for the defense’s position on the matter.
Almanza said he excluded three days (December 24-26) for Christmas, a federal holiday, two days for New Years Day, also a federal holiday, and four days in between, though he did review evidence on a Secret-clearance laptop at the Military District of Washington on December 23. He excluded the weekend of January 7 and 8, saying he took his son to a swim meet in Pennsylvania.
Almanza sent out memos on January 4 and 11 regarding delays, but in neither did he mention that he had concurrent civilian work with the Department of Justice. Asked why he didn’t mention it, Almanza said that he should have, that omitting it was an oversight. He also said he could’ve requested leave from his civilian work, but neglected to do so. Almanza testified that had he not allowed these delays, he could’ve completed the work that he submitted on January 11 by December 29.
He also said that at last December’s hearing, he would’ve accepted witness testimony regarding the classification of documents if substituted for classification reviews. This method would have obviated the long wait for Original Classification Authorities to submit their reviews.
Witness 2: Bert Haggett
After lunch, the government called Bert Haggett to testify. Haggett promulgates information security policy throughout the Army, and has reviewed documents in Bradley’s case to determine to whom they should be referred for a classification review. Unfortunately, most of Haggett’s responses to many of the defense’s initial questions were, “I don’t recall.” That was the answer he gave to, “When were you first contacted?”, “Did you sign a referral?”, “Did the referral include a deadline?” and “How long did the Original Classification Authority take?”
Haggett suggested that it was possible, or not necessarily unreasonable, for a complex classification review process to take more than a full year. However, he said it only took him 4 days to examine 900 documents and determine to which ‘equity holder’ within the government to send them.
Upon cross-examination and Judge Lind’s questioning, and after the prosecution handed him court documents recounting past proceedings, Haggett began to reveal more about his role, the government’s inexpedience, and the review process. Though he couldn’t remember the date exactly, he agreed that it was likely he was first contacted in April 2011 – more than nine months after Bradley’s arrest. Haggett couldn’t explain why it took the government so long to contact him, but he said that during 2010, “When the WikiLeaks issue occurred, I lived and breathed it.”
Haggett didn’t know too much about the status of documents relating to Bradley Manning’s case after he recommended they be sent to various OCAs, but he spoke more generally about the classification and review process in his experience. He said it was rare that he would review information and decide to declassify it. He also said that he didn’t know if trial counsel (the prosecution) had included deadlines in their requests for classification review.
Bradley’s plea offering
The other main issue of the day was Bradley’s potential plea offering. As lawyer David Coombs has posted to his blog,
David Coombs also explained today that, “PFC Manning has also provided notice of his forum selection. He has elected to be tried by Military Judge alone.” This means that Judge Lind alone will decide both guilt and possible punishment at court martial. There will not be a military jury, comprised of officers and senior NCO’s, involved.
Starting at 8:00 AM ET tomorrow, the government will depose Col. Carl Coffman, who will finally be forced to explain why he signed off on enough government delays to push Bradley’s arraignment back 635 days.
By Nathan Fuller, Bradley Manning Support Network. November 7, 2012.
Hurricane Sandy delivered the first delay in Bradley Manning’s two-and-a-half-year trial that didn’t come at the unconstitutional whim of the United States government. The storm left the Ft. Meade military base largely unscathed, and Bradley’s trial proceeded today.
The defense has moved to dismiss with prejudice the 22 charges against the accused WikiLeaks whistle-blower for lack of a speedy trial, and today the prosecution deposed two witnesses to attempt to justify keeping the young Army private in pretrial confinement for 900 days without bringing him to trial.
Lt. Col. Paul Almanza, at right, as I.O. of Bradley’s pretrial hearing in December 2011. (Sketch by William J. Hennessy Jr.)
First the government called Lt. Col. Paul Almanza to the stand telephonically. Almanza was the Investigating Officer at Bradley’s initial Article 32 pretrial hearing in December 2011. Almanza excluded the government’s delays last December and in January of this year from the speedy trial clock, and today he was asked to explain why.
Last year, the government emailed Almanza, requesting that he authorize a trial delay from December 22, 2011, to January 3, 2012, and that he exclude that delay from the trial clock. Almanza granted that request and excluded it without asking for the defense’s position on the matter.
Almanza said he excluded three days (December 24-26) for Christmas, a federal holiday, two days for New Years Day, also a federal holiday, and four days in between, though he did review evidence on a Secret-clearance laptop at the Military District of Washington on December 23. He excluded the weekend of January 7 and 8, saying he took his son to a swim meet in Pennsylvania.
Almanza sent out memos on January 4 and 11 regarding delays, but in neither did he mention that he had concurrent civilian work with the Department of Justice. Asked why he didn’t mention it, Almanza said that he should have, that omitting it was an oversight. He also said he could’ve requested leave from his civilian work, but neglected to do so. Almanza testified that had he not allowed these delays, he could’ve completed the work that he submitted on January 11 by December 29.
He also said that at last December’s hearing, he would’ve accepted witness testimony regarding the classification of documents if substituted for classification reviews. This method would have obviated the long wait for Original Classification Authorities to submit their reviews.
Witness 2: Bert Haggett
After lunch, the government called Bert Haggett to testify. Haggett promulgates information security policy throughout the Army, and has reviewed documents in Bradley’s case to determine to whom they should be referred for a classification review. Unfortunately, most of Haggett’s responses to many of the defense’s initial questions were, “I don’t recall.” That was the answer he gave to, “When were you first contacted?”, “Did you sign a referral?”, “Did the referral include a deadline?” and “How long did the Original Classification Authority take?”
Haggett suggested that it was possible, or not necessarily unreasonable, for a complex classification review process to take more than a full year. However, he said it only took him 4 days to examine 900 documents and determine to which ‘equity holder’ within the government to send them.
Upon cross-examination and Judge Lind’s questioning, and after the prosecution handed him court documents recounting past proceedings, Haggett began to reveal more about his role, the government’s inexpedience, and the review process. Though he couldn’t remember the date exactly, he agreed that it was likely he was first contacted in April 2011 – more than nine months after Bradley’s arrest. Haggett couldn’t explain why it took the government so long to contact him, but he said that during 2010, “When the WikiLeaks issue occurred, I lived and breathed it.”
Haggett didn’t know too much about the status of documents relating to Bradley Manning’s case after he recommended they be sent to various OCAs, but he spoke more generally about the classification and review process in his experience. He said it was rare that he would review information and decide to declassify it. He also said that he didn’t know if trial counsel (the prosecution) had included deadlines in their requests for classification review.
Bradley’s plea offering
The other main issue of the day was Bradley’s potential plea offering. As lawyer David Coombs has posted to his blog,
“PFC Manning has offered to plead guilty to various offenses through a process known as “pleading by exceptions and substitutions.” To clarify, PFC Manning is not pleading guilty to the specifications as charged by the Government. Rather, PFC Manning is attempting to accept responsibility for offenses that are encapsulated within, or are a subset of, the charged offenses. The Court will consider whether this is a permissible plea.Judge Lind said that Manning’s plea offering deals with Specification 1 of Charge 2 (an 18 US 793(e) offense), and to Clauses 1 and 2 of the Article 134 offense. (Read Manning’s charge sheet here.)
PFC Manning is not submitting a plea as part of an agreement or deal with the Government. Further, the Government does not need to agree to PFC Manning’s plea; the Court simply has to determine that the plea is legally permissible. If the Court allows PFC Manning to plead guilty by exceptions and substitutions, the Government may still elect to prove up the charged offenses. Pleading by exceptions and substitutions, in other words, does not change the offenses with which PFC Manning has been charged and for which he is scheduled to stand trial.”
David Coombs also explained today that, “PFC Manning has also provided notice of his forum selection. He has elected to be tried by Military Judge alone.” This means that Judge Lind alone will decide both guilt and possible punishment at court martial. There will not be a military jury, comprised of officers and senior NCO’s, involved.
Starting at 8:00 AM ET tomorrow, the government will depose Col. Carl Coffman, who will finally be forced to explain why he signed off on enough government delays to push Bradley’s arraignment back 635 days.
Notes from the courtroom: Bradley Manning’s motions hearing at Ft. Meade, 11/8/12
Col. Carl Coffman, former Special Court Martial Convening Authority in Bradley’s trial, answered questions from the defense and prosecution about his role in delaying Bradley Manning’s pretrial confinement, which has exceeded 900 days. (Read notes from Day 1 here.)
By Nathan Fuller, Bradley Manning Support Network. November 8, 2012.
Col. Carl Coffman had a lot of explaining to do today – about 6 hours worth. That’s how long the former Special Court Martial Convening Authority answered questions on the stand, in the second and final day of this week’s motions hearing for PFC Bradley Manning at Ft. Meade, MD.
Both the government and defense called Coffman to testify for the defense’s motion to dismiss for lack of a speedy trial, because Coffman signed off to approve all but one of the government’s requests to delay Bradley’s pretrial proceedings (according to the defense, paralegal Monica Carlile signed one of the delays). The defense accuses the prosecution of requesting delays that could have been avoided, it accuses various government agencies (Original Classification Authorities, or OCAs) who took months to complete classification reviews, and it accuses Coffman of both granting needless delays and unjustifiably excluding them from the speedy trial clock.
The prosecution’s Captain White questioned Coffman first for several hours, reviewing each of the government’s eight delay requests spanning August 2010, when Coffman joined the case, and December 2011, when Bradley’s pretrial proceedings finally began.
The prosecution and Coffman worked together so frequently during 2011 that Coffman referred to “my trial counsel” and to Capt. Ashden Fein by his first name during his testimony. In its questioning, the government had Coffman go through each delay request process to try to stress to the court that it frequently updated Coffman on the OCAs’ progress, it couldn’t have done anything to expedite the OCAs’ extremely long review process, and the classification reviews were necessary to conduct Bradley’s Article 32 pretrial hearing.
The defense has long objected to each of these contentions, and elicited testimony from Coffman revealing that the former Convening Authority actually knew very little about the classification review progress, instead “trusting,” in his words, that “trial counsel and the OCAs were doing their jobs.”
The government’s questioning of Coffman was very methodical, and rather long and dry. Eight times before Manning’s first court session, the prosecution requested a delay, citing the OCAs’ still-unfinished classification reviews. The defense objected to each request, arguing that Bradley’s speedy trial rights were being violated, and that the parties could proceed without waiting for the classification reviews. Coffman testified that he took the defense’s objections into consideration, but he didn’t deny a single government request for delay.
But defense questioning revealed even more about the process: we learned that the prosecution wrote all of its own delay approval memos, on which Coffman simply signed his name, after only 10-15 minutes of discussion with the government.
The problem seems to boil down to this: Coffman “trusted” the OCAs to complete their classification reviews expediently, and he “trusted” the prosecution to provide accurate updates about the reviews that in his mind necessitated delays. But the prosecution didn’t give specific progress updates – for example, that half of the documents were completed, or that they needed a certain number of days to finish – instead, the lawyers would merely tell Coffman that the OCAs were continuing to work and needed more time. (Coffman revealed that despite providing him with verbal or informal updates about the classification process, the prosecution missed its deadline to update him in writing on multiple occasions.) Coffman testified that he made no effort to contact or hurry the OCAs himself, saying that because OCAs are “senior officials,” he expected them to do their jobs without needing to be reminded to quicken their work. He couldn’t explain further why he never inquired about how many OCAs there were, how many documents they needed to review, or how much more time they needed.
How long could this have gone on? If the OCAs were still completing those reviews today, would Bradley still be awaiting arraignment? Coffman said he had no deadline in mind: the only time frame he considered problematic was the potential event that the pre-arraignment period continued until the summer of 2012, when Coffman was expecting to change positions, and didn’t know how to proceed in that event.
But even further questioning challenged the idea that Coffman had to wait for the classification reviews at all. In each objection, the defense proffered that instead of waiting on OCAs to complete reviews, the prosecution could have provided summaries or substitutes of the classified material. Coffman rejected this idea repeatedly, saying he needed the reviews to proceed, despite the defense’s multiple demands for a speedy trial.
Coffman also talked about Op Plan Bravo, the plan to prepare Ft. Meade’s logistics and security for PFC Manning’s trial, given the expected media attention and classification information to be discussed. The plan took 30 days, but Coffman didn’t order it until November 16, 2011, so Ft. Meade was ready by the December 16 hearing. But this plan didn’t depend on any classification reviews, and Coffman acknowledged it could have been executed months or a year prior. This is important because the defense requested the Article 32 hearing start on December 12, and Coffman rejected that date because Op Plan Bravo was still in effect. That’s four more days of senseless delays, four more days of Bradley’s already grueling pretrial confinement, and four more days that should count against the government on the speedy trial clock.
When asked flat out by the defense whether he ever considered denying the prosecution’s delay request, Coffman said no. When asked if he ever considered granting the delays but not excluding them from the speedy trial clock, Coffman said no. Despite his stated concern for Bradley Manning’s constitutional right to a speedy trial, Coffman decided that trusting government officials to act expediently was sufficient due diligence on his part.
Judge Lind asked Coffman, who joined the case August 3, 2010, between the first set of charges against Manning on July 5, 2010, and the second set on March 1, 2011, if the newly discovered information and charges played any part in the delay. Coffman seemed to know nothing about how that new information was discovered and how it led to new charges. He said he only conferred with the prosecution for status updates.
She also asked when Army CID completed its investigation, because the CID’s completion of a review was another, though comparatively minor, basis for delay. Coffman answered that he wasn’t sure exactly, but that he could provide a date. This ruffled the prosecution’s feathers. Government lawyer Ashden Fein got up quickly to re-direct questioning to Coffman. He asked if Coffman was aware that Army CID was “still investigating this crime,” and Coffman said, “No.” Fein asked if Coffman was aware that WikiLeaks was “still releasing classified information,” and Coffman wasn’t sure. (A federal judge also said this week that the investigation is still ongoing.)
Perhaps because this was a speedy trial hearing, this session was the first in recent months that didn’t delay the court calendar to come: all dates currently scheduled remain intact, so we’ll return for the Article 13 litigation and continuation of this motion at Ft. Meade November 27 through December 2.
By Nathan Fuller, Bradley Manning Support Network. November 8, 2012.
Col. Carl Coffman, former Special Court Martial Convening Authority.
Both the government and defense called Coffman to testify for the defense’s motion to dismiss for lack of a speedy trial, because Coffman signed off to approve all but one of the government’s requests to delay Bradley’s pretrial proceedings (according to the defense, paralegal Monica Carlile signed one of the delays). The defense accuses the prosecution of requesting delays that could have been avoided, it accuses various government agencies (Original Classification Authorities, or OCAs) who took months to complete classification reviews, and it accuses Coffman of both granting needless delays and unjustifiably excluding them from the speedy trial clock.
The prosecution’s Captain White questioned Coffman first for several hours, reviewing each of the government’s eight delay requests spanning August 2010, when Coffman joined the case, and December 2011, when Bradley’s pretrial proceedings finally began.
The prosecution and Coffman worked together so frequently during 2011 that Coffman referred to “my trial counsel” and to Capt. Ashden Fein by his first name during his testimony. In its questioning, the government had Coffman go through each delay request process to try to stress to the court that it frequently updated Coffman on the OCAs’ progress, it couldn’t have done anything to expedite the OCAs’ extremely long review process, and the classification reviews were necessary to conduct Bradley’s Article 32 pretrial hearing.
The defense has long objected to each of these contentions, and elicited testimony from Coffman revealing that the former Convening Authority actually knew very little about the classification review progress, instead “trusting,” in his words, that “trial counsel and the OCAs were doing their jobs.”
The government’s questioning of Coffman was very methodical, and rather long and dry. Eight times before Manning’s first court session, the prosecution requested a delay, citing the OCAs’ still-unfinished classification reviews. The defense objected to each request, arguing that Bradley’s speedy trial rights were being violated, and that the parties could proceed without waiting for the classification reviews. Coffman testified that he took the defense’s objections into consideration, but he didn’t deny a single government request for delay.
But defense questioning revealed even more about the process: we learned that the prosecution wrote all of its own delay approval memos, on which Coffman simply signed his name, after only 10-15 minutes of discussion with the government.
The problem seems to boil down to this: Coffman “trusted” the OCAs to complete their classification reviews expediently, and he “trusted” the prosecution to provide accurate updates about the reviews that in his mind necessitated delays. But the prosecution didn’t give specific progress updates – for example, that half of the documents were completed, or that they needed a certain number of days to finish – instead, the lawyers would merely tell Coffman that the OCAs were continuing to work and needed more time. (Coffman revealed that despite providing him with verbal or informal updates about the classification process, the prosecution missed its deadline to update him in writing on multiple occasions.) Coffman testified that he made no effort to contact or hurry the OCAs himself, saying that because OCAs are “senior officials,” he expected them to do their jobs without needing to be reminded to quicken their work. He couldn’t explain further why he never inquired about how many OCAs there were, how many documents they needed to review, or how much more time they needed.
How long could this have gone on? If the OCAs were still completing those reviews today, would Bradley still be awaiting arraignment? Coffman said he had no deadline in mind: the only time frame he considered problematic was the potential event that the pre-arraignment period continued until the summer of 2012, when Coffman was expecting to change positions, and didn’t know how to proceed in that event.
But even further questioning challenged the idea that Coffman had to wait for the classification reviews at all. In each objection, the defense proffered that instead of waiting on OCAs to complete reviews, the prosecution could have provided summaries or substitutes of the classified material. Coffman rejected this idea repeatedly, saying he needed the reviews to proceed, despite the defense’s multiple demands for a speedy trial.
Coffman also talked about Op Plan Bravo, the plan to prepare Ft. Meade’s logistics and security for PFC Manning’s trial, given the expected media attention and classification information to be discussed. The plan took 30 days, but Coffman didn’t order it until November 16, 2011, so Ft. Meade was ready by the December 16 hearing. But this plan didn’t depend on any classification reviews, and Coffman acknowledged it could have been executed months or a year prior. This is important because the defense requested the Article 32 hearing start on December 12, and Coffman rejected that date because Op Plan Bravo was still in effect. That’s four more days of senseless delays, four more days of Bradley’s already grueling pretrial confinement, and four more days that should count against the government on the speedy trial clock.
When asked flat out by the defense whether he ever considered denying the prosecution’s delay request, Coffman said no. When asked if he ever considered granting the delays but not excluding them from the speedy trial clock, Coffman said no. Despite his stated concern for Bradley Manning’s constitutional right to a speedy trial, Coffman decided that trusting government officials to act expediently was sufficient due diligence on his part.
Judge Lind asked Coffman, who joined the case August 3, 2010, between the first set of charges against Manning on July 5, 2010, and the second set on March 1, 2011, if the newly discovered information and charges played any part in the delay. Coffman seemed to know nothing about how that new information was discovered and how it led to new charges. He said he only conferred with the prosecution for status updates.
She also asked when Army CID completed its investigation, because the CID’s completion of a review was another, though comparatively minor, basis for delay. Coffman answered that he wasn’t sure exactly, but that he could provide a date. This ruffled the prosecution’s feathers. Government lawyer Ashden Fein got up quickly to re-direct questioning to Coffman. He asked if Coffman was aware that Army CID was “still investigating this crime,” and Coffman said, “No.” Fein asked if Coffman was aware that WikiLeaks was “still releasing classified information,” and Coffman wasn’t sure. (A federal judge also said this week that the investigation is still ongoing.)
Perhaps because this was a speedy trial hearing, this session was the first in recent months that didn’t delay the court calendar to come: all dates currently scheduled remain intact, so we’ll return for the Article 13 litigation and continuation of this motion at Ft. Meade November 27 through December 2.
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