Bradley Manning, who could face life in prison for allegedly leaking classified military records to the website WikiLeaks, will return to Fort Meade, Maryland, on Tuesday for a pre-trial hearing in his court-marital proceedings. He has already spent almost two years in a military prison.
A military judge will consider several motions filed by Manning's defense attorney, David E. Combs, that seek to either reduce or completely dismiss the charges. A total of 22 charges have been leveled against Manning including aiding the enemy, which is typically a capital offense.
While the prosecution said it will not seek the death penalty, if convicted the former army intelligence analyst will likely spend the rest of his life in a military prison without a chance of parole. He has also been charged with wrongfully causing intelligence to be published on the Internet; theft of public property or records; transmitting defense information; and fraud and related activity in connection with computers.
The defense motions, which are available on Combs' personal blog, assert a range of objections to the government's handling of the Manning case.
In fact, according to Combs, the government has multiplied the charges against Manning to exaggerate [his] criminality by treating single violations as multiple offenses under separate sections of the Uniform Code of Military Justice.
In another motion seeking to dismiss all charges with prejudice, the defense argues the government failed to disclose exculpatory information to the defense as required by the U.S. Supreme Court's decision in Brady v. Maryland, an egregious offense it argues warrants a dismissal of all charges against Manning. Exculpatory evidence is evidence that is favorable to the defendant in a criminal trial, which can usually be used to clear the defendant of guilt.
We know now that the Government has been playing by the wrong 'rules of the game' since the beginning of the case. We know that there is Brady material out there, but that the government does know what Brady material is, Combs wrote referring to the Supreme Court verdict. No remedy short of dismissal can fix these problems.
Another motion claims the government failed to provide defense access to the computers in the secure area where Manning worked as an intelligence analyst, a move that may have enabled the defense to counter charges that Manning uploaded unauthorized software onto the military system.
Manning's defense says that it was common practice for soldiers in the secure area to download unauthorized software on their computers, from chat programs to music and games, and that this was so widespread that it was in effect implicitly or explicitly authorized, reads the motion in question.
According to Combs, if the search yields the expected results -- that it was common for soldiers to download unauthorized software -- that evidence would qualify as classic Brady material that would reasonably tend to reduce punishment.
The most formidable challenge to the government may come from the defense's motion to dismiss the charge of aiding the enemy under Article 104(2). The defense argues there is no evidence that Manning intended to assist an enemy of the United States -- evidenced by the fact that the government failed to state an offense under Article 104 -- and such intent is a requirement in order to be charged.
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 [criminal intent], wrote Combs.
Instead of having factual evidence that Manning planned to use the downloaded intelligence information to aid or communicate with the enemy when he made his alleged disclosure to WikiLeaks, the defense argues the government is simply charging that Manning had information that might be accessible to the enemy and that such information might help the enemy.
Combs wrote there are chat logs available where Manning rejects the idea of selling the classified information to another country, despite potential financial benefits, because he specifically said he did not want an enemy of the United States to take advantage of the information.
The Court's failure to state an offense of determine that the term indirectly under Article 104 is unconstitutionally vague, wrote Combs, who argues it is a violation of the First and Fifth Amendments of the U.S. Constitution -- the Fifth for obstructing Manning's right to due process and the First for rendering the Article substantially overbroad to the point of prohibiting constitutionally protected speech.
The prosecution has declined to make its responses to Combs' motions available to the public at this time.
While the military has attempted to frame Manning as a soldier whose actions demonstrate a motive to imperil United States national security, he has developed a national following of supporters who claim he is the nation's most significant whistleblower since Daniel Ellsberg leaked the Pentagon Papers in 1971.
Ellsberg himself is a member of the Bradley Manning Support Network, an international organization that raises funds for Manning's defense and advocates for his freedom. Its advisory board contains a number of former military personnel and political figures, including retired U.S. Army Colonel Ann Wright, former U.S. Democratic Senator Mike Gravel, and Icelandic parliamentary member Birgitta Jonsdottir, a prominent defender of WikiLeaks.
Several analysts and journalists have questioned whether the Pentagon can provide Manning with a fair trial. In December 2011, Ellsberg told The Guardian that while no one can disagree that the government had enough evidence to start a court martial proceeding, the process is clearly biased.
It's outrageous for two reasons. How can there be a fair court martial when the commander in chief, president Obama himself, pronounced that he is guilty [of breaking the law]? Secondly, he has been subjected to 10 and a half months of clearly abusive treatment that in my opinion was immoral and illegal, Ellsberg said.