2012-03-16 Full Transcript #Manning Motion Hearing Fort Meade, MD March 16, 2012 Day Two

Full Transcript March 16, 2012

This transcript was typed from the press pool at Bradley Manning's motion hearing on March 16, 2012 at Fort Meade, MD.

This transcript may have errors and is incomplete in that there was no way for me to capture every word, or every sentence.

Please send corrections to carwinb@hushmail.com.

Bradley Manning's motion hearing is held in same court room as his Article 32 Pretrial Hearing.

You can also read:

Names:

  • General Court Martial Convening Authority: Maj. Gen. Michael S. Linnington
  • Commander of the U.S. Army Garrison, joint Base Myer-Henderson Hall: Col. Carl R. Coffman
  • Commander of U.S. Army Headquarters Command Battalion: Lt. Col. Eric Fleming
  • Military Judge: Col. Denise R. Lind
  • Prosecution: Captain Ashden Fein, Captain Joe Morrow, Captain Angel Overgaard, Capt. Hunter Whyte
  • Defense: Mr. David Coombs, Major Matthew Kemkes and Captain Paul Bouchard

Proceedings were delayed until 13:00 because Defense and Prosecution were in Chambers with Judge Denise Lind hashing out a Court Protective Order.

All Rise.

Court is called to order.

Judge Lind We are starting late today, because the parties and Court were going over a Protective Order regarding the handling of classified information. Both parties had filed orders marked as Appellate Exhibits...

...

Judge Lind: Looking at Appellate Exhibit 4, under 505...Appellate Exhibit 5 [The Prosecution's Motion for Protective Order] and I believe supplements as well... Alright, I am looking at Appellate Exhibit 22, Supplement for Military Relief...Supplement for Prosecution...Appellate Exhibit 18 is the Supplement...Appellate Exhibit 23...any additional Government response to 505?

Prosecution: Captain Ashden Fein: Yes, the Prosecution's...

Judge Lind: Appellate Exhibit 13, under 505...

Fein (Prosecution): Appellate Exhibit 22, Supplement to 505... Also Appellate Exhibit 18, Supplement to the Prosecution's Motion for Protection...

Judge Lind: I have 18...Appellate Exhibit 18, 13, 22, and 23...correct?

Fein (Prosecution): Yes.

Defense: Mr. David Coombs: Yes.

Judge Lind: As I said earlier, we have spent a good part of day going over all of these motions for Protective Orders, as well as Protective Orders proposed by both sides, and we have finalized a Protective Order that I believe best balances protection of classified info for national security and the rights of the accused.

Secretary hands Judge Lind a document.

Judge Lind: I need to sign it. That would be Appellate Exhibit 32. The other two outstanding things are a ruling on Motion to Compel Depositions, the Motion to Compel Discovery is under advisement. Defense is submitting further evidence...send it via email to parties...and it will be addressed in open court at next session. Other evidence...?

Fein (Prosecution): Government might also submit evidence.

Judge Lind: Defense Moves to Compel Deposition...

Judge Lind reads her ruling which is broken down into sections that explain the motion, the defense argument, and her ruling.

[Judge Lind reads very quickly and so I could not type out every word or sentence that she said. Here is what I captured:

Defense has asked for the oral deposition of the following individuals:

The Judge continues reading background information in her ruling.

  • She states that Culky (sp.) and Rolland (sp.) were considered "essential witnesses" by the Defense for the Article 32 Pretrial Hearing.
  • Judge Lind then reads the lists of charges.
  • Lind reads excerpts from the Article 32 Pretrial Investigating Officers previously unavailable rulings on Defense's Witness List [See Numbers 39 to 45, then 48 could be Robert Rolland (sp.)] and Motion to Compel Witnesses from the Article 32 Pretrial Hearing.
  • Judge Lind reads that Paul Almanza, the Investigating Officer at the Article 32 Pretrial Hearing did not find Culky (sp.) a "relevant" witness for that hearing.
  • Lind continues, and cites the Investigating Officer's ruling that the question as to whether or not the three Apache videos were classified or the fact that the Government is not alleging that they are classified was not "relevant" for the Article 32 Pretrial Hearing.
  • Lind then cites the Pretrial Investigating Officer's ruling that Rear Admiral Kevin Donegan, USCENTCOM, Director of Operations was not reasonably available.
  • Lind continues as cites Almaza's ruling that Mr. Betts, U. S. Cyber Command, Chief Classification Officer was also "not reasonably" available and that the testimony did not "outweigh" his appearance.
  • Lind continues and reads that the Pretrial Investigating Officer, Paul Almanza, also considered Robert E. Schmidle, Deputy Commander, U. S. Cyber Command testimony to not outweigh the difficulty of expense to government operations.
  • Lind continues and reads the Article 32 Pretrial Investigating Officer's ruling on Vice Admiral Robert S. Harward, deputy commander, U.S. Central Command, saying "not reasonably available; and also Almanza's ruling on Mr. Patrick F. Kennedy, Under Secretary, Management, Department of State and Rear Adm. David B. Woods, Commander, Joint Task Force Guantanamo.
  • [NB Robert Rolland (sp.) is never mentioned again, which likely means Rolland was redacted from open Court. It is my opinion that Rolland (sp.) is witness Number 48 on the Defense's Pretrial Witness List.]

Judge concludes by denying Defense Motion to Compel Depositions.

  • Line rules that the Investigating Officer's determination of the witnesses reasonable availability in Article 32 Pretrial was not Improper, as the defense had argued.
  • Lind says she bases her own ruling on the Pretrial Article 32 rules in that the Investigating Officer, Paul Almanza, performed the "correct balance test, depositions only allowed in cases used to preserve essential testimony."
  • Lind says that affidavits can be considered sworn statements under Section 28, 1746.

Judge Lind continues:

Judge Lind: Government had offered OCA by telephonic. Regarding Discovery Request for three civilian witnesses [missed]...Regarding Defenses request of 1 February 2012, Defense received on 29 Feb 2012 the contact info of Mr. Betts....Defense disputes 2E applies...Article 9, R.C.M. 702...in the interest of justice the motion is denied.

Judge Lind concludes with business of the Court:

  • Date for next proceeding is April 24 to 26 at 9:00 a.m. at Fort Meade, MD.
  • Lind says that "what is to be worked on there not decided" but based on her previous remarks this day concerning the Motion to Compel Discovery:

    Motion to Compel Discovery is under advisement. Defense is submitting further evidence...send it via email to parties...and will be addressed in open court at next session."

    It is therefore reasonable to assume that will in fact take place at the next session. A spokesperson for Public Affairs Office at Fort Meade said in Q&A that would mean Manning might testify concerning the Quantico video of his interrogation and stripping that Defense files a preservation request on January 19, 2011; but that Prosecution claims does not exist.

    Notes on the Quantico Video of Manning Stripping and Interrogation:

    • January 18, 2010: Defense alleges that PFC Manning is interrogated and stripped by Guards at Quantico, and that the incident is videotaped. (See Manning Defense Request for Evidence and Article 138 Complaint and Article 138 Complaint Rebuttal)

      • "4.) On 18 January 2011, over the recommendation of Capt. Hocter [BRIG PSYCHIATRIST] and the defense psychiatrist, Capt. Brian Moore, [FORMER QUANTICO BRIG COMMANDER] CWO4 Averhart placed me under suicide risk. The suicide risk means that I sit in my cell for 24 hours a day. I am stripped of all clothing with the exception of my underwear. My prescription eyeglasses are taken away from me. I am forced to sit in essential blindness with the exception of the times that I am reading or given limited television privileges. During those times, my glasses are returned to me. Additionally, there is a guard sitting outside my cell watching me at all times." (Source: Bradley Manning, Article 138 Complaint)

    • January 19, 2011: Defense files preservation of evidence request with the government and a request for the production of the video of Manning being stripped and interrogated. (See: Manning Defense Request for Evidence and Defense Compel the Production of Evidence for Manning Article 32

      • "On January 18, 2011, defense was notified that PFC Manning at the direction of XXXXXXXXXX[FORMER QUANTICO BRIG COMMANDER] [CWO4 AVERHART], was placed in suicide risk. This decision was made over the recommendations of XXXXXXXXXX [CAPT. HOCTER] [BRIG PSYCHIATRIST] and the defense appointed XXXXXXXXXX [PSYCHIATRIST] [CAPT. BRIAN MOORE]. When PFC Manning was being ordered to surrender his clothes as part of the unnecessary suicide risk, the Brig made the decision to videotape this event along with an interrogation of PFC Manning by XXXXXXXXXX [WHO IS THIS?] and others. On 19 January 2011, the defense filed a preservation of evidence request with the government and a request for the production of the video. The government has yet to respond to the defense request. The defense believes the video will support PFC Manning's claim of unlawful pretrial punishment." (Source: Manning Defense Request for Evidence)

    • November 30, 2011: Government responds to request for Quantico video that it "will provide all matters requested that are it is possession no later than 2 December 2011."

      • "a. The video of PFC Manning being ordered to surrender his clothing at the direction of and his subsequent interrogation on 18 January 2011. Given the fact the defense filed a preservation of evidence request on 19 January 201 1 - nearly one year ago - the government has no excuse for not providing the video . See Appendix A. The video is clearly within the possession of the government and should have already been produced. The government has responded that it 'will provide all matters requested that are it is possession no later than 2 December 201 1.'" (Source: Defense Compel the Production of Evidence for Manning Article 32)

    • March 15, 2012: At the Motion Hearing, we learn that the Government provided two videos to Defense, but that according to Defense they are not the right videos.
    • [April 24 to 26, 2012]: The Court will take up the issue of the Quantico video:

      • Judge Lind: Government says Quantico video doesn't exist.

      Coombs (Defense): How my client was treated, we believe the relevancy. Does not exhaust. We believe it does exist. Being video taped at the time this was happened. Government says we were provided two video, but we were not provided the correct videos.

      Judge Lind: Now I don't have any evidence.

      Coombs (Defense): We can provide evidence your Honor...

      In discussions after this proceeding in the Press Pool, there was discussion with the Forte Meade, MD Public Affairs Officer about Manning taking the stand in this particular instance.

      Judge Lind: I can't order something to be produced that the Government says doesn't exists.

      The matter is put for later review by the presiding Judge. (Source: Full Transcript March 15, 2012, Motion Hearing, Day One)

    • March 16, 2012: Judge Lind says that the Motion to Compel Discovery which concerns the Quantico video is under advisement (See above).

      • Judge Lind: Motion to Compel Discovery is under advisement. Defense is submitting further evidence...send it via email to parties...and will be addressed in open court at next session. Other evidence...?

      Fein (Prosecution): Government might also submit evidence...

    Other Notes:

    • The Government chose Fort Meade, MD as the location of the Manning legal proceedings. "The government's claim that the cost and burden is too great to require the production and personal appearance of relevant and necessary witnesses is not justified. It was the government's decision to conduct this Article 32 investigation at Fort Meade." (Source: Request to Compel the Production of the Witnesses)