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On December 2, 2011, the defense filed a request for the production of 48 witnesses for the Article 32 hearing. The government responded to the defense's request on December 7, 2011. In the government's response, it opposed the presence of all defense requested witness (with the exception of ten witnesses who were also on the government's witness list)...The defense filed a request to compel the production of the witnesses on December 8, 2011. The Investigating Officer will consider the government and defense requests, and make a ruling sometime later this week. |
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Name(s:) |
David Coombs |
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Title: |
civilian defense counsel |
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Concerning: |
United States v. Pfc. Bradley Manning |
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Url: |
Url Link
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Archive: |
Archive Link
http://archive.is/xMqnH |
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Regarding Defense requested witness, an agent involved with Department of State and FBI investigation on original 7 July 2010 prosecution witness list, but denied:
One agent that the defense requested as a witness on Dec. 2, 2011 for Bradley Manning's Article 32 Pretrial Hearing was on the prosecution's original government witness list dated Jul 7, 2010. 'The defense has requested the attendance of XXXXXXXXXX [See Defense's Dec. 2, 2011 Request for Witnesses (PDF)] in order to provide the Investigating Officer with testimony concerning the joint investigations being conducted by both the Department of State and the Federal Bureau of Investigation. Notable XXXXXXXXXX was on the original government's witness list filed on 7 July 2010. According to the government's memo dated 7 December 2011, the other agents 'XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX can provide the needed testimony.' Their testimony, however, will in large part be hearsay evidence about what other agents have done on the case and what witnesses have told these other case agents[_]
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[Regarding defense request for Key Leaders of 2nd Brigade Combat Team:]
2.) [_] in its response to the defense witness request, the government states that the defense's proffered testimony regarding the total breakdown in command and control within the S-2 Section and the multiple failures by the unit to take basic steps in response to clear mental health issues being suffered by PFC Manning is somehow 'not relevant to the Article 32 investigation and will only serve to distract from the relevant issues' The government cites to RCM 405(a) Inexplicably, the government ignores R.C.M. 405(f) and controlling case law which clearly states an accused has the right to present evidence in defense, mitigation, and extenuation at the Article 32. See R.C.M. 405(f) (stating an accused has the right to present evidence in defense, mitigation, and extenuation); Article 32(b), Uniform Code of Military Justice (UCMJ) (stating an accused may 'present anything he may desire in his own behalf either in defense or mitigation, and the investigation officer shall examine available witnesses, requested...'); United States v. Garcia,59 M.J. 447,451 (C.A.A.F. 2004)(ruling that an accused has the right to present anything he may desire in his own behalf at an Article 32 in defense or mitigation). Each of the above requested witnesses will have relevant and independent information of the events that transpired, and all of these witnesses should be produced in order to accomplish the purposes of the investigation. Simply reading the sworn statements of some of these witnesses and hearing from a few others will not allow either party or the Investigating Officer to explore the relevant information. The listed witnesses need to be questioned personally and individually about what they saw, heard, and experienced if there is to be a thorough and impartial investigation. (Footnote: It is troubling that in the government's response dated 7 December 2011, it objects to every listed witness by the defense that is not also on the government's list. The government does not seem to be interested at all in providing a thorough and impartial investigation. The government indicates that it is going to go to the expense and trouble of bringing two civilian witnesses and other military witnesses from multiple duty locations in the United States and overseas, and yet the government claims that it is too costly and troublesome to bring any of the defense requested witnesses. Such a position defies logic and common sense.)
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[Regarding defense request for Key Members of 2nd Brigade Combat Team's S-2 Section:]
In its response to the defense witness request for relevant S-2 section witnesses [WHO IS THIS (PLURAL)?], the government states that the testimony of these witnesses is somehow 'not relevant to the Article 32 investigation and will only serve to distract from the relevant issues.' The government also opines that the breakdown in command and control, the decision to deploy PFC Manning, and the decision to not suspend his security clearance earlier 'is not relevant to the Article 32 Investigation and will only serve to distract from the relevant issues.' The government cites to R.C.M. 405(a). Again, the government ignores R.C.M. 405(0 and controlling case law which clearly states an accused has the right to present evidence in defense, mitigation, and extenuation at the Article 32. See R.C.M. 405(0 (stating an accused has the right to present evidence in defense, mitigation, and extenuation); Article 32(b), Uniform Code of Military Justice (UCMJ) (stating an accused may 'present anything he may desire in his own behalf either in defense or mitigation, and the investigation officer shall examine available witnesses requested...'); United States v. Garcia,59 M.J. 447,451 (C.A.A.F. 2004)(ruling that an accused has the right to present anything he may desire in his own behalf at an Article 32 in defense or mitigation)
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Regarding defenses request for Mental Health Providers:
The government states the testimony of these mental health providers 'is not relevant to the Article 32 investigation and will only serve to distract from the relevant issues.' Additionally, the government points to the fact that a R.C.M.706 board concluded that 'PFC Manning did not have a severe mental disease or defect at the time of the alleged criminal conduct that resulted in him being unable to appreciate the nature and quality or wrongfulness of his conduct' as a basis to ignore any mental health testimony. Such a position is indefensible. The fact PFC Manning did not have a 'severe mental disease or defect' only indicates that he does not have a basis to claim an insanity defense. Such a conclusion does not speak to any diminished capacity or mitigating and extenuating circumstances[_]
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[Original Classification Authorities (OSA)]
2.) The government objected to the defense request for any of these witnesses. The government, without any justification, requested that you find the requested witness were not reasonably available given the importance of their respective position. The government seems to argue that in matters of justice, if you have too important of a position, you should not be bothered. Military justice should not be controlled by the importance of your duty position. Each individual took the time to provide an unsworn affidavit. The defense should be provided with the opportunity to examine these witnesses at the Article 32 hearing[_]
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[Current and Former Members of the US Government and Article 37]
1.) ...Each of these witnesses has provided statements that contradict those govern by the OCA witnesses regarding the alleged damage caused by the unauthorized disclosures. Additionally each of these witnesses is relevant in order to inquire into the issues of unlawful command influence and unlawful pretrial punishment in violation of Articles 13 and Article 37 of the UCMJ[_]
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3.) The defense objects to the witnesses not being produced at the Article 32 based solely on the determination by the government that they are too important to be made available. Assuming the witnesses are not produced, the defense will request a deposition of these witnesses if charges are referred, pursuant to RCM 702 and the holding in United States v. Chuculate, 5 MJ 143 (CMA 1978).
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[Mental Health Providers at the Quantico Confinement Facility:]
1.) [_]Each of these witnesses has provided statements that would support the fact PFC Manning was subjected to unlawful pretrial punishment under Article 13 of the Uniform Code of Military Justice
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2.) The government objects to the defense request, stating that the alleged unlawful pretrial punishment is not relevant at the Article 32 investigation and will only serve to distract from the relevant issues. Whether PFC Manning was unlawfully punished prior to trial is a relevant matter for you to consider. The facts of his unlawful pretrial punishment is appropriate information for you to consider in forming your recommendations to the convening authority. The issue is also important for the integrity of the military justice |
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Name(s:) |
David Coombs |
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Title: |
civilian defense counsel |
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Concerning: |
United States v. Pfc. Bradley Manning |
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Url: |
Url Link
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