Bradley Manning’s judge runs a shell game

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U.S. Army cons public with three-card monte sting in form of Bradley Manning court-martial. To have a constitutional public trial, don’t you have to let the public in?

 Public access to the Bradley Manning court-martial doesn’t exist in any meaningful sense, despite the demands of the U.S. Constitution or the Manual for Courts Martial United States (MCM) published by the U.S. Dept. of Defense, which is the prosecutor.

Court-martial judge Col. Denise Lind hasn’t exactly banned the public – or reporters, who are part of the public – from the courtroom or its extensions, but she has presided over a system that, so far, seems designed to protect the public’s right to know as little as possible.

It’s a scripted con game, a kind of judicial three-card monte in which the public is expected to keep believing it has a chance to know.  The following excerpts from the script, the unofficial court transcript, illuminate how the military plays the shell game of doing injustice while trying not to let injustice be seen to be done.

The comments here are all by Judge Col. Lind from the June 10 morning session: 

“Just for the record, while the court is not interested in getting into the area of who is credentialed and who isn’t credentialed as it’s beyond the scope of this  trial, the court does note and so advised the parties in the RCM 802 that rules of court-martial are not structured to provide a contemporaneous transcript of proceedings.”Â Â 

Nice distraction, putting attention on “who is credentialed” when the substantive issue us who gets access.  The Judge’s MCM has no index listing for “press” or “media.”Â  There is a listing for “public,” which by definition includes all reporters, as well as all military personnel.  That’s in Role 806(a), which also sets the primary expectation that “courts-martial shall be open to the public.”

That “shall” in the rule means that it’s a judge’s primary obligation to open the court-martial to the public, not an option, although the rule provides limited exceptions under exigent circumstances. Â Â  The rule’s discussion section states: “However, such exigencies should not be manipulated to prevent attendance at a court-martial.”

RCM 802 is a jargon reference to pre-trial hearings that have already been held.

The provision of a “contemporaneous transcript” is another distraction that leads attention away from the need for a meaningfully public trial.

That “the court is not interested” in all this bespeaks a disdain for the public that one would expect to be better concealed.

And that the court has, in effect outsourced its responsibility to control the courtroom and access to it, as described in Rule 806(b)(1), suggests possible dereliction of duty.

Turning to Reader Supported News’s motion, without identifying it beyond “the request for public access or in the alternative motion to intervene to vindicate right to public access,” Judge Col. Lind made findings:

“One. The proceedings have been open to the public since the start of the trial”¦.”Â 

This may be technically correct and short of a false statement, but it suggests a non-existent state of affairs sharply at odds with the widely-observed restraints put on public access by the judge, the government, or its contractors.  “The court martial of Manning,” observed the Huffington Post, “has been surrounded by secrecy and security.”

An example of what amounts to military doublespeak is that the court says it’s not “structured” to provide a daily transcript, as if that wasn’t something other courts do and the Army could do if it wanted to.  Worse, even though the Freedom of the Press Foundation is paying for its own stenographers, the judge continues to tolerate interference with the stenographers’ ability to do their job. 

“Two. Neither the court nor anyone acting pursuant to order of the court has specifically excluded any person from observing the proceedings either in court or in a designated overflow area.”Â 

One might argue that this is another technically correct statement in the furtherance of falsehood, but it’s more deceitful that that.  Dozens if not hundreds of members of the public have been excluded, by apparent design, either implemented or tolerated by the court.

But they have not been “specifically” excluded and that “specifically” has a serious lawyerly purpose in the worst sense of the word.  Rule 806(b)(1) says, in part: “When excluding specific persons, the military judge must make findings on the record establishing the reason for the exclusion, the basis for the military judge’s belief that exclusion is necessary, and that the exclusion is as narrowly tailored as possible.”

Here, where the court is allowing large-scale, random exclusions there’s no need for findings on the record of the basis for the exclusion, or concern that the exclusion is narrowly tailored.  The exclusion is not narrowly tailored and thus gives the appearance of bad faith.

“Three. Reasonable policies and procedures for media registration and credentialing have been established and published by the Military District of Washington as set forth in appellate exhibit 561.”Â Â 

That there are “reasonable policies and procedures” is not self-evident and continues to be widely challenged.

More importantly, Rule 806 does not provide for the judge to outsource her responsibility for the courtroom to a third party who is neither answerable nor accountable in reasonably timely manner within the time-pressure of a court-martial. 

“Four. 806C prohibits photography and broadcasting to include audio and video recording.”Â Â 

This is absolutely true, but only if you stop after the first sentence of Rule 806(c).

The second sentence begins, “However, the military judge may, as a matter of discretion permit contemporaneous closed-circuit video or audio transmission”¦.”

By making this finding, Judge Col. Lind effectively admits that she has chosen to use her discretion to severely limit public access to the court-martial under conditions explicitly anticipated in the rule – “when courtroom facilities are inadequate to accommodate a reasonable number of spectators.”

In what way are the judge’s deliberate truncating of public access not clear violations of at least the First and Fourth Amendment rights of the public and the press? 

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“Five. The two parties to this trial are the United States and PFC Manning. Unless authorized by the rules for court-martial, or in special circumstances recognized by the Court of Appeals for the Armed Forces, only parties to the

trial have standing to file motions to be considered by this court. ABC Inc. versus Powell, Court of Appeals for the Armed Forces, 1997.“ 

The opinion cited is not on point, as it deals with an investigative hearing, not a court-martial, and the issue leading to closing the hearing to the public was the protection of women whose sexual histories were likely to be explored during their testimony.

The question of parties to the trial is not at issue in the opinion cited.  The petitioners in the case were media companies (ABC, CBS, NBC, CNN, Fox, and the Washington Post). Â  They filed a Writ of Mandamus requesting the court to open the hearing in question to the press and public.

The court, in both its preliminary order and final order, ordered the hearings open to the press and public.  The court noted in passing that “we have consistently held that the Sixth Amendment right [to a public trial] does apply to a court-martial.”

So what is Judge Col. Lind talking about?  Certainly not the fact that one of the parties in the case is also her employer.

“Ruling. The court declines to consider [the request for public access] as it is from three individuals who are not parties to the trial and who under the circumstances lack standing to file a motion with the court.”Â 

Done and done.  The ruling ignores the clearly, repeatedly stated intent of both Rule 806 and the opinion cited to give primacy to the openness of the proceedings.

It might be tempting to think that petitioners who are not parties to a case might be perpetrating a fraud upon the court, but that would be a stretch.  Here, it’s much less of a stretch to consider that perhaps the court is perpetrating a fraud on the public.

“Quia volo” is a seldom-used term in legal circles for judicial decisions of this nature.  It means, “Because I want to.”

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

 

U.S. Army court martials Constitution, set to lynch Bradley Manning

Free Bradley Manning

Bradley Manning court martial underway, under-covered, not well understood. The U.S. has set about to lynch Manning Â 

The Bradley Manning court martial that began June 3 looks like another defining moment for America  – another indication of whether we are becoming the nation of supine toadies our government wants, or whether we still have enough devotion to the common good to behave in ways as decent and risky as Bradley Manning.

The U.S. government is going to extraordinary lengths to persuade us that Private Bradley Manning, 25, is a dangerous enemy of the state.

Even though Manning pled guilty to 10 of 22 charges last March, the U.S. Government is going ahead with all its charges, without providing a credible rationale.  One charge, under the 1913 Espionage Act, could carry the death penalty.

There is reasonable likelihood that the military judge presiding over Manning’s military trial will agree with her government employer, find Manning guilty as charged, and sentence him to life in prison, or possibly death (even though the prosecution isn’t seeking the death penalty, the judge might have the power to impose it).

At that point, if that’s where it goes, there will no longer be any legal doubt that Manning is an enemy of the state.

And there will no longer be any moral doubt that the state, the U.S. government, is an enemy of the people.

Manning Exposed War Crimes That the Army Wanted Covered Up

This is not yet a widely shared perception, apparently, although there are many strong voices articulating it in a variety of forms, mostly in alternative media.

But what about the American people?  What does public opinion polling show to be the public’s opinion of Bradley Manning?   An Associated Press piece filed from London June 4 begins, “It’s rare for an American to generate more sympathy abroad than at home, but Bradley Manning and his trial [sic] are unique in a host of ways.”

The AP report offers no basis for the conclusion about relative sympathy here and abroad, but a quick google search for public opinion polling about Bradley Manning turned up nothing.  Further search of the websites of the Pew Research Center, Gallup, Zogby, Nate Silver’s 538, CNN, Ipsos/Reuters, Quinnipiac, and six other polling organizations also turned up nothing.

Apparently there has been NO significant polling of the public on one of the more significant public issues of the day.   Is that because the public doesn’t care (how would we know?)?

free-manning

The Questions That Are NOT Asked Also Affect Public Opinion

Or do polling companies have some agenda on the issue?  Framing a neutral polling question poses a serious challenge.  And in any event, why ask questions about a subject the government would just as soon as few people thought about as possible?

If people did think about Bradley Manning and what he’s done, there’s always the possibility that, like readers of the Guardian in the U.K. in 2011, they might vote for him to be awarded the Nobel Peace Prize for exposing American war crimes and slowing American wars, at least in the Middle East. Â  Manning got 39.4% of that vote, followed by Julian Assange of Wikileaks with 18.9%, and Aung San Suu Kyi of Myanmar (Burma) with 11.3%, the peace activist who won the prize in 1991.

Roots Action has a current online petition to award the peace prize to Manning.  With a goal of 75,000 signatures, the petition had 59,595 signers by June 5.

Presumably the U.S. government prosecuting Manning wants to do what it can from

becoming a popular hero or noble martyr – someone others might emulate. Â  His treatment since May 2010 is consistent with a determined effort to diminish or break him, holding him in isolation in conditions that were “cruel, inhuman, and degrading” according to a United Nations Special Rapporteur on torture.

What Did the People Know, and When Did They Know It? 

Maybe a polling question could be:  Do you believe it’s constitutional for the U.S. Army to torture one of its own soldiers because he revealed the truth about U.S. war crimes to the American people?

Like the void in polling, mainstream media coverage has been thin and frequently counter-factual to the point of resembling government propaganda.  For example, anchor Brian Williams framed the story this way on the NBC Nightly News on June 3:

The court martial of the man who may have put U.S. military secrets in the hands of Osama bin Laden started today, the so-called WikiLeaks trial.”Â 

This is, indeed, the prosecution’s point of view, but there is as yet no persuasive showing that that there were any militarily useful secrets, or that they got into the hands of Osama bin Laden.  For major networks to call it the “Wikileaks trial,” is misleading, since Wikileaks is not on trial – but it is, very likely, targeted by the U.S. government.

ABC News gave a similarly slanted, 15 second report on the trial, headlined: “Bradley Manning Wikileaks Trial Begins.”Â  The Drudge report just calls the whole thing “Wikitrial.”

Detailed comment on mainstream media coverage, its failings and biases, is available from FAIR (Fairness and Accuracy in Reporting, fair.org) on the FAIR blog.

This Military Trial Threatens Basic American Freedom

Writing in the New York Times on March 13, celebrated First Amendment lawyer Floyd Abrams said in an op-ed column, in reference to the Manning case:

“And what could be more destructive to an informed citizenry than the threat of the death penalty or life imprisonment without parole for whistle-blowers?”

Abrams, who represented the Times in successfully defending the paper’s constitutional right to publish the Pentagon Papers in 1971, was arguing that Manning’s guilty plea to a set of charges that could put him in prison for 20 years should be sufficient for the government’s needs:

“Private Manning’s guilty plea gives the prosecution an opportunity to rethink its strategy. The extreme charges remaining in this case create a severe threat to future whistle-blowers, even when their revelations are crystal-clear instances of whistle-blowing. We cannot allow our concerns about terrorism to turn us into a country where communicating with the press can be prosecuted as a capital offense.”

This was Abrams’ final paragraph, one that the government obviously ignored.  It is a measure of Abrams’ timidity – and the pallid coverage the Times has given the Manning case – that he introduces “our concerns about terrorism” to blur the issue.

If there was terrorism in the well-known helicopter killing video, it was the effort by Americans to gun down children sitting in the front seat of a civilian van that was serving as a make-shift ambulance responding to the earlier carnage Americans had wrought on non-threatening civilians, killing twelve, including three journalists.

The video of this event on July 12, 2007, is called “Collateral Murder” by Wikileaks and can be found online on YouTube, on The World Can’t Wait, and other websites.

If this were actually a free country, then we would be able, at a minimum, to watch the court martial of Bradley Manning, live, on C-SPAN.

 

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

 

Bradley Manning motion hearing scheduled for March 15

The dry language of the US Army press release is onimous for Bradely Manning.

Pfc. Manning is charged with aiding the enemy; wrongfully causing intelligence to be published on the internet knowing that it is accessible to the enemy; theft of public property or records; transmitting defense information; fraud and related activity in connection with computers; and for violating Army Regulations 25-2 “Information Assurance” and 380-5 “Department of the Army Information Security Program.”

If convicted of all charges, Manning would face a maximum punishment of reduction to the lowest enlisted pay grade, E-1; total forfeiture of all pay and allowances; confinement for life; and a dishonorable discharge.

Computer forensic experts were able to decyrpt damning documents on Manning’s personal Macbook. I don’t see how he can avoid prison. Saying he did it for a higher reason, to oppose our insane wars, isn’t a legally justifiable defense, especially in military court. Most any country on the planet would prosecute, given what he allegedly did, and would probably also throw the book at him.

This is the opposite of spy thriller movies, where an innocent gets sucked into a murky world and eventually somehow triumphs. Manning is an innocent too but this isn’t a movie and he got in way over his head. The best that can probably he hope for is a few years in prison.

Bradley Manning’s arraignment scheduled

From a U.S. Army Military District of Washington press release. Bradley Manning’s arraignment will on Feb 23. in Maryland

Pfc. Manning is charged with aiding the enemy; wrongfully causing intelligence to be published on the internet knowing that it is accessible to the enemy; theft of public property or records; transmitting defense information; fraud and related activity in connection with computers; and for violating Army Regulations 25-2 “Information Assurance” and 380-5 “Department of the Army Information Security Program.”

Interestingly, I didn’t sign up for the press release so I guess the US Military must be a Polizeros reader!

Manning is probably screwed, especially since he reused an important password and they were thus able to decrypt crucial files on his Macbook. His only defense is that he did it for a greater good, which probably won’t work in military court.