This is a work in progress, and therefore, incomplete and in development.
The following defense strategy has been developed in the documents and proceedings:
- Article 13, Punishment Prohibited Before Trial
- Article 46, Opportunity to Obtain Witnesses and Other Evidence
- Article 37, Unlawfully Influencing Action of the Court
- Defense theories that correspond to specific charges against Manning
November 22, 2011, Defense filed the following request for production of evidence. Video of Manning being Stripped and subsequent interrogation:
"On January 18, 2011, defense was notified that PFC Manning at the direction of XXXXXXXXXX [FORMER QUANTICO BRIG COMMANDER, CWO4 JAMES AVERHART], was placed in suicide risk. This decision was made over the recommendations of XXXXXXXXXX [CAPT. HOCTER, BRIG PSYCHIATRIST] and the defense appointed XXXXXXXXXX [CAPT. BRIAN MOORE, DEFENSE PSYCHIATRIST]. 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; INSERT MARCH 2012 ARTICLE 39(a) SESSION TRANSCRIPT RELATING TO QUANTICO VIDEO)
Names were sourced from other defense documents. See:
"4.) On 18 January 2011, over the recommendation of Capt. Hocter [FORENSIC PSYCHIATRIST FOR THE BRIG] 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)
David House says he has been asked by Bradley manning's attorney not to make public assessments on Bradley Manning's deterioration while at Quantico. (Source: democracynow.org)
- Manning's defense files multiple discovery request for "Copy of all audio and video surveillance of the visitation booths at Quantico, Virginia when individuals, including defense team members, met with PFC Manning. The defense also requests a copy of all audio and video surveillance of the visitations rooms at... Fort Leavenworth when individuals including defense team members, met with PFC Manning." (See 8e of Manning Defense Request for Evidence; INSERT ALL DISCOVERY REQUESTS)
Manning files an Article 138 regarding Article 13:
"6.) My defense counsel, Mr. David Coombs (a reserve Lieutenant Colonel in the Army) and I have raised our objection to these confinement conditions on multiple occasions. On 5 January 2011, my attorney filed a formal complaint with [FORMER QUANTICO BRIG COMMANDER] CWO4 Averhart. On the same day, I also filed a formal complaint through the confinement grievance process. Both complaint requested that I be removed from POI watch and that my classification level be reduced from MAX to MDI. [FORMER QUANTICO BRIG COMMANDER] CWO4 Averhart did not respond to either complaint as required by SECNAVINST 1649.9c PP 8301 (21)."
"7.) Based on the foregoing, I believe that the action of holding me under POI watch for over five months and placing me on suicide risk is wrong under Article 138, UCMJ. I do not believe that CWO4 Averhart, as the Brig commander, has the discretion to keep me in confinement under these circumstances."
"8.) I believe the classification of me in MAX and under an assignment of suicide risk is based upon an inappropriate reason and is therefore an abuse of [FORMER QUANTICO BRIG COMMANDER] CWO4 Averhart's discretion, and a wrong within the meaning of Article 138, UCMJ. As redress, I request that you order my removal from suicide risk and POI watch and that you order my reduction of my classification from MAX to MDI." (Source: Bradley Manning, Article 138 Complaint)
- See the Rebuttal to Complaint of Wrongs Under Article 138 UCMJ by Private First Class Bradley Manning, US Army, dated March 10, 2011.
Manning's defense requested Mental Health Providers at the Quantico Confinement Facility on the Pretrial Witness List to testify unlawful pretrial confinement
"1.)...Each of these witnesses [WHO ARE THESE?] has provided statements that would support the fact PFC Manning was subjected to unlawful pretrial punishment under Article 13 of the Uniform Code of Military Justice." (Source: Defence Request to Compel the Production of the Witnesses)
Add Article 32 Pretrial Hearing day one, defenses call for Investigating Officer's recusal.
Add Article 32 Pretrial Hearing day two, defense objections on the grounds of their right to discovery at Article 32 Pretrial Hearing in response to IO overrule.
Add Article 32 Pretrial Hearing day two defense request on record for prosecution to hand over "all the evidence the government has."
See Defense Motion to Compel Production of Evidence, December 1, 2011, US v PFC Manning, Article 32 numbers eight through 13:
13.) Pursuant to the Fifth and Sixth Amendments to the United States Constitution, Article 46 UCMJ, R.C.M. 405,707, and 906(b)(7), the defense requests the Investigating Officer to issue an order requiring the government to obtain the requested information. Failing to obtain the information, the government should be required to provide a detailed account of its efforts for review by the Investigating Officer."
"3. 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. The defense's position has been consistent; it does not object to this location provided it has the personal appearance of all relevant and necessary witnesses. The government should not be allowed to use its own decision to conduct the investigation at Fort Meade as a way to avoid making relevant witnesses available."
"d.) Mental Health Providers at the Quantico Confinement Facility
"1.)...Each of these witnesses [WHO ARE THESE?] has provided statements that would support the fact PFC Manning was subjected to unlawful pretrial punishment under Article 13 of the Uniform Code of Military Justice."
"2.) The government objects to the defense request, stating that the alleged unlawful pretrial punishment is not relevant to the Article 32 investigation and will only serve to distract from the relevant issues. Whether PFC Manning was unlawfully punished prior to trial is a relevant matter for you to consider. The facts of his unlawful pretrial punishment is appropriate information for you to consider in forming your recommendations to the convening authority. The issue is also important for the integrity of the military justice system and the appearance of fairness in the process."
Add Dismiss on Prejudice; June Article 39(a) sessions over Government hiding damage assessments and admit they didn't understand Brady obligations; and other motions related to Brady; Due Diligence; and recording RCM 802s
"2. PFC Manning is charged with offenses that carry the maximum punishment of life without the possibility of parole. His charges are among the most serious charges that a soldier can face. The government must be prepared to accept the costs incurred by the seriousness of the charges that they have preferred against PFC Manning. Anything but the personal appearances of all witnesses requested by the defense and government would deny PFC Manning his right to a thorough and impartial investigation and turn this into a hollow exercise."
Seeking as a witness or to depose President Barrack Obama for unlawful command influence.
- See also Oltman in secret highlevel Quantico meeting re Manning's illegal pretrial confinement
XXXXXXXXXX [PRESIDENT BARRACK OBAMA] "The defense requests the presence of XXXXXXXXXX [PRESIDENT BARRACK OBAMA] in order to discuss the issue of Unlawful Command Influence (UCI). Under Rule for Courts-Martial 405(e), the defense is entitled to explore the issue of UCI. Under the Uniform Code of Military Justice (UCMJ), a superior officer in the chain of command is prohibited from saying or doing anything that could influence any decision by a subordinate in how to handle a military justice matter. As the XXXXXXXXXX [PRESIDENT BARRACK OBAMA] made improper comments on 21 April 2011, when he decided to comment on PFC Manning and his case. On that date, he responded to questions regarding PFC Manning's alleged actions by concluding that "'We're a nation of laws. We don't let individuals make their own decisions about how the laws operate. He [PFC Manning] broke the law." The comments by XXXXXXXXXX [PRESIDENT BARRACK OBAMA] are UCI. The defense intends to question XXXXXXXXXX [PRESIDENT BARRACK OBAMA] on the nature of his discussions with members of the military regarding this case and whether he has made any other statements that would either influence the prosecution of this case or PFC Manning's right to obtain a fair trial. In additional to the UCI issue, XXXXXXXXXX [PRESIDENT BARRACK OBAMA] will testify about his views on the Afghanistan SIGACTs released by WikiLeaks. He will testify that the leak did not reveal any issues that had not already informed our public debate on Afghanistan. He will also testify that the Afghanistan SIGACTs point to the same challenges that led him to conduct an extensive review of the Afghanistan policy. XXXXXXXXXX [PRESIDENT BARRACK OBAMA] will also testify about the problem of over-classification within the government. Specifically, that he supported and signed into law the Reducing Over-Classification Act on 7 October 2010. Additionally, he will testify, that on his first full day in office , 2l January 2009, he issued two memoranda for the head of Executive Departments and Agencies that were related to transparency in government. The first memorandum focused on the administration of the Freedom of Information Act (FOIA), and the second focused on transparency and open government. XXXXXXXXXX [PRESIDENT BARRACK OBAMA] will testify that the transparency memorandum he wrote committed the administration to "an unprecedented level of openness" and to the establishment of "a system of transparency, public participation, and collaboration" XXXXXXXXXX [PRESIDENT BARRACK OBAMA] will testify that on 8 December 2009 his administration released a third memorandum - an Open Government Directive (OGD). The OGD included detailed instructions for departments and agencies on how they are to "implement the principles of transparency, participation, and collaboration." Finally, on 29 December 2009, XXXXXXXXXX [PRESIDENT BARRACK OBAMA] will testify, that he issued Executive Order 13526 in an attempt to improve the system for classifying, safeguarding, and declassifying national security information, including the establishment of the National Declassification Center. (Source: Defense: Witness List)
Defense seeking current and former members of the US Government regarding Article 37
"1.) ...Each of these witnesses [WHO ARE THESE?] has provided statements that contradict those given by the OCA witnesses [WHO ARE THESE?] regarding the alleged damage caused by the unauthorized disclosures. Additionally each of these witnesses [WHO ARE THESE?] is relevant in order to inquire into the issues of unlawful command influence and unlawful pretrial punishment in violation of Articles 13 and Article 37 of the UCMJ..." (Source: Defense Request to Compel the Production of the Witnesses, December 8, 2011, US v PFC Manning, Article 32)
"3.) The defense objects to the witnesses not being produced at the Article 32 based solely on the determination by the government that they are too important to be made available. Assuming the witnesses are not produced, the defense will request a deposition of these witnesses if charges are referred, pursuant to RCM 702 and the holding in United States v. Chuculate, 5 MJ 143 (CMA 1978)." (Source: Defence Request to Compel the Production of the Witnesses, December 8, 2011, US v PFC Manning, Article 32)
Article 104, SPEC, Gave US intel to enemy by indirect means; and Article 134, SPEC 1, Caused the publishing of US intel on Internet, knowing accessible to enemy on Internet.
Defense suggests Manning was unable to publish the content himself, without the explicit cooperation of WikiLeaks.org in terms
Defense: Is it your determination, would you agree that my client would have been unable to do this by himself?
Mander: Depends on charge. “Something by himself"...other charges require interaction with others.
Defense: Did my client possess the ability to upload from his cubical in Iraq?
Mander: Yes. He could have upload to multiple sites.
Defense: Would he not also require the cooperation of others to post to (indecipherable)? (Source: Article 32, Pretrial Hearing, December 17, 2011)
At the Article 39(a) Session on June 7, 2012 Coombs states that WikiLeaks cause to be published the un-redacted State Department Cables. The State Department officials were more precise and responded that they didn't know who caused the un-redacted cables to be published on the Internet. ADD TRANSCRIPT
Article 92, SPEC 4 Wrongfully storing classified info; Article 92 SPEC 2 Add unauthorized software to SIPRNet; Article 92, SPEC 3 Add unauthorized software to SIPRNet; Article 92, SPEC 4 Unauthorized use of information system.
Defense establishes the T-SCIF had no SOP; others added software or introduced non classified applications and content onto classified systems; negligent command; and poor operational security.
See defense cross examination of Lim on Article 32 Pretrial Hearing< Dec 17, 2011.
See defense cross examination of Fulton and Madaras Article 32 Pretrial Hearing, December 18, 2011
- Add transcript and discovery requests for forensic images at March 2012 Article 39(a) Sessions
Specifications 13 and 14 of Charge II (Article 134) "exceed authorized access"
Add transcript from Article 39(a) Session on June 8, 2012