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Manning Defense Seeks Dismissal of Charges
April 23rd, 2012 by Steven Aftergood
http://www.fas.org/blog/secrecy/

At a pre-trial hearing this week in the case of Pfc. Bradley Manning, who is suspected of releasing classified records to WikiLeaks without authorization, a military judge will consider several motions filed by Manning’s defense that seek to reduce the charges against him, or to have them dismissed altogether.

The defense motions, filed by attorney David E. Coombs and made available on his blog with some redactions, assert a range of objections including these:

* The government has so egregiously failed to fulfill its discovery obligations — i.e. its duty disclose exculpatory and other “Brady” information to the defense — that the whole case must be dismissed. “The Government’s abdication of its basic discovery responsibilities is unconscionable and irreparably prejudicial, mandating that all charges should be dismissed with prejudice,” Mr. Coombs contended.

* The government has specifically failed to provide defense access to the computers in the secure area where Manning worked, which might enable it to rebut charges that Manning had uploaded unauthorized software on to his system. “The Defense’s tentative theory is that all or most soldiers in the SCIF had unauthorized software on their computers (e.g. M-IRC Chat, Google Earth, Wget, movies, music, games, etc.)… The Defense intends to show that the practice of adding ‘unauthorized’ software was so pervasive that, in effect, all ‘unauthorized’ programs were implicitly or explicitly authorized.”

* The government has improperly multiplied the charges against Manning by treating single violations as multiple offenses. “This creative drafting by the Government drastically exaggerates PFC Manning’s criminality and unreasonably increases his punitive exposure,” Mr. Coombs wrote.

Perhaps the most penetrating challenge presented by the defense is a motion to dismiss the charge of “aiding the enemy” (Article 104) because, the defense says, there is no evidence that Manning intended to assist an enemy of the United States, and such an intent is a required element of the charge.

“Every court interpreting Article 104(2) has held that the Government must prove general criminal intent to give intelligence to, or communicate with, the enemy; indeed, no prosecution under this Article has ever been maintained without some allegation of mens rea [i.e. criminal intent]…. mere dissemination of information to persons unauthorized to receive it is insufficient without the necessary criminal intent.”

But, Mr. Coombs wrote, “The Government has not alleged that PFC Manning intended to give intelligence to, or communicate with, the enemy in making the alleged disclosure to WikiLeaks. Rather, the Government has merely alleged that PFC Manning had knowledge that the information, if ultimately published, might be accessible to the enemy and that such information might help the enemy. Such a feeble mens rea allegation is patently insufficient to establish the requisite intent under Article 104.” (He added that “The amount of conduct that is made subject to potential capital punishment under such an interpretation is staggering… The potential for liability is endless.”)

To the contrary, Mr. Coombs argued, “PFC Manning expressly disclaimed any intent to help any enemy of the United States” in the chat logs in which he discussed his actions. “Far from intending to aid any enemy of the United States, PFC Manning’s actions and statements illustrate a conscious rejection of any such ill motive.”

Prosecutors have declined to make their responses to Mr. Coombs’ motions available to the public, so their positions are not known in any detail.

Mr. Coombs said that both sides are in agreement, however, that the Manning case “is one of the largest and most complex cases in United States military history.”

The pre-trial hearing, known formally as an Article 39(a) hearing, will be held April 24-26 at Fort Meade, Maryland.