Chelsea Manning

The Trial Counsel has rested in PFC Bradley Manning’s Article 32 hearing at Fort Meyer, VA. Today the Defense may begin to rebut the Trial Counsel’s case. This is not a trial, but more like a Grand Jury hearing (with a jury of one), except that the Defense has the right to call witnesses, present evidence, and cross examine Trial Counsel’s witnesses. The Defense is under no obligation at all to put on a Defense, but given the vigorous defense and cross examination of Government witnesses so far, there is no reason to believe that PFC Manning’s defense team will slow down now.
MSNBC has a story about how lawyers and counselors who specialize in gender identity issues have been concerned with the Defense’s focus on PFC Manning’s apparent gender identity disorder.

Yesterday, as the Government concluded their presentation, their final witness was former SPC Jihrleah Showman, who testified that she was Manning’s immediate supervisor in his work and that she witnessed his deterioration and reported it multiple times to the company First Sergeant, (E-8) Paul Adkins.  Adkins has since been administratively demoted to Sergeant First Class (E-7).  They demoted him administratively for his failures of leadership in this episode.  The more I learn about this story, the more I am convinced that Manning’s chain of command failed him at multiple levels.  Adkins, in particular, had multiple episodes in which he is shown to have known or believed that Manning had no business being downrange or handling classified information.  He was reduced administratively, which pretty much torpedoes his career, but I believe he should’ve been court-martial’ed.  As a senior NCO, he cannot be given any punishment under Article 15, UCMJ, so the only criminal proceedings he could face would be a full court-martial.  I do believe that a case could probably be made that his negligence rises to a the level of criminality, but the Convening Authority for him probably didn’t agree and so went with administrative punishment.

NONE of that–the gender identity issues, the mulitple failures of his chain of command to properly supervise and discipline, the failures of the other Soldiers, Officers, and NCOs in the T-SCIF in Iraq excuse Manning’s knowing behavior.  The RCM 706 board returned a finding that Manning was able to assist in his own defense, and that will mitigate against a case of insanity.  It seems that is the direction that Manning’s defense team is heading.  They haven’t cross examined the technical witnesses extensively or at all except to ask one of them whether or not anything on Manning’s portable hard drive seemed “strange” to which the investigator replied “it’s a computer drive, Sir.”  They have, however, extensively cross-examined the witnesses who interacted with Manning on a daily basis, and introduced documentation regarding his supposed gender identity disorder as well as the multiple failures of leadership that I’ve mentioned above.

The hearing is expected to continue through the week, and at some point in the next thirty to sixty days, the Investigating Officer, who is presiding at this hearing, will make a report to the Convening Authority regarding what disposition he recommends.  It is entirely within the purview of the CA to dispose of these charges as he sees fit, and that decision is not subject to review.

 

UPDATE:  According to Joe Gould, the Army Times reporter covering the hearing, Mr. Coombs, PFC Manning’s attorney, has called only two witnesses of the 48 he had on his list, and has rested his presentation.  He made a motion to continue the hearing directly to closing arguments, but the Trial Counsel requested adjournment until tomorrow.  Coombs apparently agreed to this (if I read his tweets correctly) and both sides will present final arguments tomorrow.  The Investigating Officer will have until the 16th of January to present his findings and recommendations to the Convening Authority, the Commanding General of the Military District of Washington, unless he requests more time to prepare.  I have found nothing at this time regarding the two witnesses Mr. Coombs called.  Apparently, according to Mr. Gould, 10 of the Government’s witnesses were also on the Defense list.

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PFC Bradley Manning’s Article 32, UCMJ hearing is currently ongoing at Fort Meade, MD.
Unlike a civilian Grand Jury proceeding, to which the Article 32 process is consistently compared,  in an Art. 32 hearing, the Defense gets to put on witnesses, introduce evidence, and to cross-examine Prosecution witnesses.  Many military defense attorneys consider the Article 32 hearing to be a freebie in that they get to see the Trial Counsel’s hand, and they are under no obligation to do anything at this point.  Others see it as a mini-trial, at which to take a stab at reducing the number of charges against the accused, and possibly preventing referral altogether.  Mr (LTC, AR) David Coombs, MAJ Matthew Kemkes, appear to be taking the second course of action, including petitioning the Army Court of Criminal Appeals to remove the Art. 32 Investigating Officer, LTC Paul Almanza from the case.  The ACCA summarily dismissed the petition on Friday.

The most reliable source I’ve found has been the Army Times.  Army Times is an independent paper owned by Gannett.  In addition to their own staff writers, they have included coverage from the Associated Press, have used Reuters for other things in the past, and so might use them here as well.  The Manning coverage in Army Times has all been in front of the paywall.   NBC/MSNBC ran a story by Jim Miklaszewski yesterday in which they stated that Manning was charged with Treason and was facing the death penalty.  Neither of these statements are true.

On a side note, any time the word ‘wikileaks’ appears in the URL, it’s blocked on a government computer.  I understand the reason for this–if there is any classified information that the user were to open, then he has introduced classified onto an unclassified platform, and how do you prove, 100% absolutely reliably that it came from outside and is not the result of an actual “spill”?  You can’t.  I understand that.  I just think that the implementation was clumsy.

I’m at work and getting ready to go to a soul-sucking staff meeting, to say nothing of actually being at work, so I won’t be taking the usual level of activity in this thread that I try to take until later.

 

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According to his lawyer’s blog, PFC Bradley Manning’s case will finally get an Article 32 hearing.  It is scheduled to start on the 16th of December and run for five days at Fort Meade, MD.

The Article 32 hearing for PFC Bradley Manning will begin on December 16, 2011 at Fort Meade, Maryland. The hearing is expected to last approximately five days. With the exception of those limited times where classified information is being discussed, the hearing will be open to the public.

Additionally, Mr. Coombs gives a pretty good description of what an Article 32 hearing is:

The primary purpose of the Article 32 hearing is to evaluate the relative strengths and weaknesses of the government’s case as well as to provide the defense with an opportunity to obtain pretrial discovery. The defense is entitled to call witnesses during the hearing and to also cross examine the government’s witnesses. Each witness who testifies is placed under oath; their testimony can therefore be used during the trial for impeachment purposes or as prior testimony should the witness become unavailable.

This will not happen in front of a judge, and unlike a civilian Grand Jury, which the Article 32 process replaces, the prosecutor, called the Trial Counsel in military parlance, will not run the hearing.  It will be presided over by an Investigating Officer.  The IO will be a commissioned officer who is not JAG corps, but will have a legal advisor.  The IO will prepare a report to the Convening Authority, the general officer under whose authority this case proceeds.  The report will advise the CA as to which proffered charges should proceed to Court Martial, which ones should be dropped, and what level of Court Martial should be convened.  The advisory capacity of the IO cannot be overstated.  It is at the Convening Authority’s sole discretion as to whether or not to charge a Soldier under UCMJ.  The CA can choose to not charge vice his IO’s report, but this is rare.  Conversely, the CA can choose to charge even when the IO recommends against it.  This happens frequently in sexual assault/rape charges and drug charges.

I am not a lawyer.  I do know lawyers who are members of the military bar, however, and they tolerate my questions and try to answer in such a way that I can understand them.  There are other sources of information about the process and events out there, and I encourage you all to go out and seek out knowledgeable sources.

 

NOTE–edited to change the title of the Article 32 IO from “Investing Officer” to “Investigating Officer”.  Hat tip to commenter sherparick.

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