Friday, December 16, 2011

Update on Bradley Manning's Article 32 hearing




Bradley Manning hearing – updates

• Pre-trial hearing gets under way at Forte Meade, Maryland
• Manning accused of leaking military secrets to Wikileaks
• Civilian lawyer petitions 'biased' judge to step down
• At Fort Meade: Ed Pilkington (EP) and Matt Williams (MW)
• At the Guardian in New York: Matt Wells

2.07pm: MW – The presiding judge in the Bradley Manning hearing has ruled against a defence motion that called on him to remove himself from the case.

The accused whistle-blower's lawyer, David Coombs, had argued that Lt Col Paul Almanza should recuse himself. He claimed the judge's work with the US Department of Justice – a body that is also investigating Manning's alleged crimes – gave cause to believe that he could be perceived as biased.

In making his decision, investigating officer Amanza said he did not believe a "reasonable person knowing all the circumstances" of the case would question his impartiality.

The session was again adjourned to give Manning's defence team time to file a writ to the Army Court of Criminal Appeals over the matter.

Amanza said he would not stay the current hearing while the body reviewed his decision. Instead it would continue while the appeals panel considered its ruling.

1.15pm ET: Here is a summary of events at Forte Meade today.

A military pre-trial hearing into the case of Bradley Manning, accused of the biggest leak of military secrets in US histroy, has begun at Fort Meade, Maryland. Manning is charged with passing information from a secure database containing more than 250,000 records belonging to the US government – a reference to the US embassy cables that were published by WikiLeaks through a group of international newspapers including the Guardian in November 2010.

Manning's lawyer opened by demanding that the presiding officer, or judge, stand down because of a perception of bias. Lt Col Paul Almanza is a Department of Justice prosecutor, and the DoJ is leading the ongoing US criminal investigation into the Wikileaks founder, Julian Assange.

Manning has been in court listening to proceedings. He has short brown hair, was wearing dark-rimmed glasses and military fatigues. It was the first time he has been seen in public since he was arrested in Iraq in May 2010.

In London, the Supreme Court has agreed to hear the Julian Assange's appeal against extradition to Sweden on allegations of sexual misconduct. A panel of seven judges will hear his case in January.

Supporters of Bradley Manning hold vigil outside the gates of Fort Meade, Maryland, where a pre-trial hearing was talking place. Photograph: Chip Somodevilla/Getty Images

1.08pm ET: MW – A helpful military lawyer has just been explaining what could happen if the presiding investigating officer comes back after the adjournment and decides he can continue without any perception of bias.

If Lt Col Paul Almanza does not recuse himself, the defence has indicated that it will file a writ with the army court of criminal appeals, the legal expert said. At that point the presiding office will face a choice of either continuing with the preliminary hearing while awaiting the appeal verdict, or halting proceedings until the ruling comes down.

12.53pm ET: EP / MW – We were warned this could be a stop-start affair and sure enough the hearing has now stopped for another recess while the judge, Lt Col Paul Almanza, makes a final decision on whether or not to recuse himself.

What's just happened is that he has allowed both the prosecution side – the US government – and Manning's lawyer David Coombs to make a final address to the court on the subject of whether he, the judge, is fit to preside over the hearing. The test here, under the rulebook for court-martials, is whether a "reasonable person" would believe that the judge is in a position to impartially investigate the case with no signs of bias.

The government lawyer, Ashden Fein, argued that Almanza passes the test. "The US (government) doesn't believe you display any bias," he said, only to have Almanza correct him: "It is not whether the US believes it. The test is whether the reasonable person doesn't believe it."

Fein, dressed in military fatigues and addressing Almanza as "Sir" went on to quiz the investigating officer about his dealings at the department of justice where he works as a prosecutor. Almanza said that in his work at the department he had had no contact with the department's on-going criminal investigation into WikiLeaks or Manning.

The prosecution also took Almanza through all the respective complaints made by the defence relating to the Article 32 hearing and asked the investigating officer whether he had properly followed the rules for the proceedings. He said that he had.

Fein concluded: "The US states that a reasonable person would believe you [Almanza] are unbiased and that by your background at the department of justice and by not having any contact with PFC Manning or WikiLeaks you may remain unbiased."

Manning's lawyer, David Coombs, addressed the court again. Coombs is pretty forceful in his presentation style, theatrical almost. He has a shaved head and though he is wearing a dark suit, that carries with him still some of his bearing as a former military officer.

At one point he turned to the public benches and said: "An Article 32 is part of the military justice system. Is this the best you can do?"

Almanza intervened. "Mr Coombs, who are you addressing?"

"The public," he replied.

Coombs added that Almanza's work for the Department of Justice should disqualify him from presiding, given that the department is currently investigating Manning. "That simple fact alone would cause a reasonable person to say, 'you know what, I question his impartiality.'

"The media has already done so. Clearly the government had hundreds of people it could have chosen from (to preside over the hearing), but they chose you, a member of the Department of Justice."

That coupled with "how you have consistently ruled against the defence" could lead to claims of bias, Coombs suggested.

The judge has now ordered a break of about an hour and a half and will presumably tell us whether he's going to carry on with the case after lunch.

Before the court was recessed, Coombs lobbed one last bomb shell. He said that if Almanza rules that he would not be perceived to be biased by that hypothetical "reasonable person", then the defence will ask for a stay in the case to allow them to consider their next move.

11.58am ET: Our investigations editor, David Leigh, has been mulling over the hearing so far. This is what he says:

It was never very likely that the young US soldier Bradley Manning that he would gain anything substantial from today's military hearing on the grave charge that he "aided the enemy" as the world's biggest Wikileaker.

The proceedings at Fort Meade are similar in some ways to an old-style British committal hearing, which hears the prosecution evidence and decides whether it is strong enough to send the defendant for trial – or, in Manning's case, to a full-scale court-martial.

The attempts by David Coombs, Manning's lawyer, to have the judge recuse himself, as well as being legal theatre, have so far thrown up two striking features.

The first is the disclosure that the defence team unsuccessfully asked for the hearing to be held in secret. Coombs is signalling that a torrent of unwelcome prosecution claims are likely to be poured over Manning's head in public, with little chance for him to rebut them.

The second point of interest is that Coombs has started to air the popular conspiracy theory, which may indeed be well-founded, that his client has been locked up and harshly treated for the past 18 months, in the hope that he would agree to "go over" and testify against Julian Assange, the Australian hacker to whom he allegedly sent the leaked diplomatic cables, causing an international furore.

Claiming the investigating officer, Lt-Col Paul Almanza, has links to the Justice Department's attempts to build a case against Assange, Coombs told the court: "If the Department of Justice got their way, they would get a plea in this case, and get my client to be named as one of the witnesses to go after Julian Assange and Wikileaks.""

Meanwhile, across the Atlantic in London, Assange himself won a further stay of execution today, in his year-long battle to avoid extradition to Sweden on sexual misconduct allegations. The Supreme Court, the highest British legal authority, agreed to hear his case early in the New Year in front of a panel of 7 judges. This allows him to stay on bail at Ellingham Hall, the home of a wealthy supporter, at least until February.

British prosecutors raised the possiblity today that, even if Assange loses in February, he could still prolong his stay in Britain, possibly for years, by appealing to the European Court of Human RIghts in Strasbourg. He claims that the pursuit of him for Swedish sex allegations is politically-motivated, and his extraidtion would be a preliminary to a further extradition to the US.

David concludes:

Assange and his supporters will therefore be closely watching today's proceedings against Manning, to see what further is said that could prove Manning had a conspiratorial link with Assange.

11.18am ET: MW – The hearing has resumed at at Fort Meade, and we are not able to report from the court until the next break. Oustside the gates, supporters of the accused soldier report a heavy security presence at the site of their protest.

Zack Pesavento, spokesman for the Bradley Manning Support Network, told us he could see "several busloads" of military police personnel, while other officers have been positioned inside the perimeter fence.

He added that despite their presence, the atmosphere has been "cordial" throughout the morning. Members of the Occupy Wall Street movement have been joined by local veterans at the vigil, Pesavento said.

11.01am ET: A producer for Al-Jazeera English, Camille Elhassani, complains on Twitter about the US army's draconian rules for media coverage.

Camille Elhassani @celhassani

Once the #Manning hearing starts again, I'll have to shut down my computer. Army rules. A veneer of openness but not transparency.

16 Dec 11

10.55am ET: Ed Pilkington tweets that reporters are being called back into the court room now. When the court is in session, journalists are not able to able to file updates, nor even to be in contact with the outside world. This means that we don't know when the next update from the courtroom will be. But when Ed or Matt are next in contact, we'll file an update here.

The Guardian US @Edpilkington

Reporters being called back into courtroom at #BradleyManning hearing so will be in black-out again before long #WikiLeaks

16 Dec 11

10.43am ET: MW – We have just had a briefing from a military lawyer as to the options facing the investigating officer. If he agrees to the defence motion to recuse himself, the Article 32 hearing – the official name for this process – will be postponed.

There is no indication as to length of delay, but there is no immediate replacement who can step in. A military spokeswoman said the likely delay would not be as long as it took to get to the preliminary stage in the first place.

If he doesn't recuse himself, the defence team can appeal, but it would not stop the Article 32 hearing proceeding as stands. Any objections can be taken up by the judge if the case does go to a court-martial.

10.31am ET: MW – Aside from press and legal counsel, a small group of members of the public were allowed inside the courtroom.

Admittance was decided on a first-come, first-serve basis. Those who got in had queued at the military base since "predawn", a military media liaison officer said.

PBS reporter Arun Rath attests to the intense media interest in the case, posting a picture of the pre-dawn traffic at the gates of Forte Meade.

Arun Rath @ArunRath


16 Dec 11

A vigil in support of Manning was due to take place outside the main gates of Fort Meade to coincide with the start of the hearing. Around 60 supporters were expected to attend. This afternoon, the group is due to be joined by members of the Occupy Wall Street movement, who are travelling by bus to the military base.

10.11am ET: EP – Manning supporters are sitting in the public gallery remaining silent, during the opening session. They were warned by the investigating officer at the start that they will be removed if they interrupt the hearing.

Manning himself has been taking notes intermittently. He was asked by Almanza a series of procedural questions.

"Yes sir", he replied in a quiet voice on being asked if he understood the charges, his entitlement to representation and whether he was satisfied with his counsel.

10.05am ET: EP – The hearing has just opened with a dramatic statement by Bradley Manning's civilian lawyer, David Coombs. In effect, he's demanded that the presiding judge – known in an Article 32 hearing like this as the investigating officer – takes himself off the hearing because he is biased and a stooge of the defence department.

Coombs turned tails on the court and started cross-examining the judge in astonishing scenes. The lawyer gave four reasons why the invesigating officer, Lt Col Paul Almanza, should recuse himself.

First, Almanza has worked since 2002 as a prosecutor for the US department of defence, in which time he's prosecuted about 20 cases. Coombs argued that that puts Almanza into a conflict of interest, because the defence department is involved in the on-going criminal investigation into Julian Assange and WikiLeaks.

"You have been at the Department of Justice since 2002, by your own admission you have prosecuted 20 cases. And the DoJ has an on going investigation in this case.

Mr Coombes added: "If the Department of Justice got their way, they would get a plea in this case, and get my client to be named as one of the witnesses to go after Julian Assange and Wikileaks."

Second, Coombs complained about the way his desired list of defence witnesses was rebutted by the judge. The prosecution, he said, asked for 20 witnesses and was granted every one.

By contrast, Coombs asked for 48 witnesses and had only two approved. "Two out of 48!" he exclaimed. "In a case in which the government has charged [Manning] with aiding the enemy which carries the maximum sentence right now of death!"

He added: "A reasonable person would see the investigation officer as biased", he added in regards to the witness list.

Third, Coombs complained that he had asked for the entire Article 32 hearing to be conducted in private, but the judge had again rebutted the request. He said that media reporting of the proceedings would prejudice the minds of any future jurors in a full court-martial.

Fourth, he protested that he was not allowed to call witnesses who would challenge the nature of the material that was leaked to WikiLeaks and question the harm that it caused the US national interest.

"Why are we here a year and a half later?" the lawyer asked. "The government has asked for delay after delay after delay."

Coombs said that Almanza's decision to allow unsworn statements about the WikiLeaks documents, against the wishes of the defence, was a clear breach of the Rules of Court-Martial that governs the Article 32 hearing. He said, referring to WikiLeaks, that "all of this has been leaked, and a year and a half later this is what you are doing? What's the damage? What's the harm?"

He concluded: "We request that you consider this motion and after doing so recuse yourself in this case."

Faced with this extraordinary bombardment directed against himself, Almanza has now called a break in the proceedings to consider whether he should remove himself from the judge's seat. We knew this hearing was going to be strange, but already this has entered the realm of the surreal.

Manning himself has been in court listening to all this. He has short brown hair, is wearing slightly Joe 90-style dark-rimmed glasses, and military fatigues.

10.02am ET: EP – The full charge sheet for Manning was released for the first time before the start of proceedings. It includes a total of 23 counts against the soldier, the most serious of which is that Manning knowingly gave "intelligence to the enemy, though indirect means".

The idea that WikiLeaks constituted an "enemy", or a conduit to an enemy of the US state, will in itself be subject of much debate and legal argument. A second charge follows a similar theme and accuses of Manning of causing information to be published "having knowledge that intelligence published on the internet is accessible to the enemy".

Manning is charged with passing information from a secure database containing more than 250,000 records belonging to the US government – a reference to the US embassy cables that were published by WikiLeaks through a group of international newspapers including the Guardian in November 2010.

Another count refers to the first act of publication by WikiLeaks in February 2010 of a US embassy cable known as Reykjavik-13.

10.00am ET: EP – Bradley Manning will be seen in public for the first time since he was arrested in Iraq in May 2010 for allegedly leaking hundreds of thousands of secret US state documents to WikiLeaks.

Security will be exceptionally – some say bizarrely – tight at the opening on Friday of the pre-trial hearing of the WikiLeaks suspect at Fort Meade in Maryland. Though a small number of seats in the military courtroom have been reserved for members of the public, rigid reporting restrictions will be in place that will prevent any live coverage of the proceedings.

Only 10 journalists will be allowed into the courtroom for Bradley #Manning hearing. All others will be watching on CCTV in media center.

16 Dec 11

The army has come under criticism for taking so long to bring Manning to trial, and faces further questions over how it is conducting the start of deliberations. The hearing is a preliminary stage, known as an Article 32, equivalent to a civilian pre-trial hearing and is designed to assess whether the US soldier should be sent to a full court-martial.

Manning was charged in March with 37 counts relating to the leaking of hundreds of thousands of secret documents to WikiLeaks from secure US databases that he allegedly accessed while working as an intelligence officer at the Forward Operating Base Hammer outside Baghdad. The documents included Afghan and Iraq war logs, a trove of US embassy cables from around the world and video footage of a US helicopter fatally firing on a group of civilians in Iraq including two Reuters employees.

It was the largest leak of US state secrets in history and Manning faces a maximum sentence of life in custody with no chance of parole. Technically he could also face the death penalty on the count of "aiding the enemy", but prosecutors have made clear they will not seek the ultimate punishment.

Supporters of the soldier will be outside Fort Meade at noon to protest against his prosecution, and a further rally will be held at the military base on Saturday to mark Manning's 24th birthday. Daniel Ellsberg, who leaked the Pentagon Papers on the Vietnam war, will be addressing the protesters.

© 2011 Guardian News and Media Limited or its affiliated companies. All rights reserved.

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