25 November 2010

PFC Manning Case Update

My office has received several media inquiries regarding the current status of PFC Manning's case.  The entry below explains the current case status and the process forward. 

I.  The Military Process:  The basic structure of the military process is similar to any criminal trial in a civilian court.  Once allegations are made, the government begins to investigate the alleged crime.  The government’s investigators are usually either Military Police Investigators (MPI) or Criminal Investigation Division (CID) officers.  These individuals interview the key witnesses, secure all available evidence, and create a report that details the nature of their investigation.

Based upon the investigation by MPI or CID, the government prosecutor (Trial Counsel) then discusses the case with the soldier’s chain of command.  The trial counsel will typically recommend to the command the possible charges that could be preferred against the individual soldier and discuss the likelihood of success at trial.

II.  Charges have been Preferred:  Once charges are preferred against a soldier, each level in the chain of command will make a recommendation as to what level of court-martial should hear the soldier’s case.  The command can recommend a Summary Court-Martial, a Bad Conduct Discharge Court-Martial, or a General Court-Martial.  Each level of court-martial has different maximum punishments that it is authorized to impose.

If the charges against a soldier are serious, such as in this case, then they will be most likely be heard by a General Court-Martial.  In any case where the command has recommended trial by General Court-Martial, the Brigade Commander will direct that the case be first investigated by an Article 32 Investigating Officer.

III.  Article 32 Hearing:  Unless a soldier waives this right, no charge may be referred to a general court-martial until a thorough and impartial investigation into the basis for the charge(s) has been made by an investigating officer.  This pretrial proceeding is known as an Article 32 investigation and essentially serves the equivalent function of a grand jury indictment in a civilian jurisdiction.

At the Article 32 investigation, a soldier is able to call witnesses on his behalf and to cross examine the government’s witnesses.  The Article 32 hearing is a means to evaluate the strengths and weaknesses of a case as well as to determine the appropriate disposition of any specific offense.  At the conclusion of the Article 32 hearing, the investigating officer will make a recommendation to the convening authority.  This recommendation is not binding on the convening authority.  The recommendation is simply for the purpose of giving advice to the convening authority.

** PFC Manning’s case is currently awaiting an Article 32 hearing.  Based upon several defense motions in this case, the government has put the Article 32 hearing on hold until it can determine the classification level of the case.  A preliminary classification review is currently being conducted to determine the highest classification level of any relevant information involved in the case.

The preliminary classification review is expected to last an additional three to six weeks.  Once this review is complete, the government will need to take the necessary steps to ensure everyone associated with the case has the requisite security clearance.  This process, depending upon the classification level, can be a lengthy one.  Once every member of the government and defense has the requisite security clearance, the government will likely begin the Article 32 hearing.

IV.  Court-Martial:  If the case is not dismissed after the Article 32, or if there is not some other alternative disposition, then the case will go to a trial.  At trial, a soldier may elect to have his case heard by a military judge alone or by panel members (jury).

A court-martial has two basic phases: the “findings” phase and (if necessary) the “sentencing” phase.  In the findings phase, the trial counsel presents witnesses and other evidence in attempt to prove that a soldier is guilty of the charged offenses.  The defense is then able to cross-examine the witnesses and make other challenges to the evidence in an effort to discredit the witness or show why they are mistaken.  After the government has presented all its evidence, the defense is given an opportunity to present evidence.  The evidence presented by the defense is designed to either prove that the soldier is innocent or to raise reasonable doubt as to the soldier’s guilt.  The government is entitled to cross examine any witness that is called by the defense.  After the defense case is completed, the government has a limited right to submit rebuttal evidence to matters that were raised during the presentation of the defense’s case.

Once all the evidence has been presented and closing arguments are made, the panel members meet privately to determine whether the government has proven guilt beyond a reasonable doubt.  The panel members are generally a mix of officers and enlisted.  They vote by secret-written-ballot, and in most cases, conviction on any offense require a two-thirds majority, unlike civilian courts, which generally require a unanimous verdict for everything.  If a soldier is found not guilty of all the charges, then the case is over.  If, however, the soldier is found guilty of any offense, then the next stage is the sentencing phase.

V.  Sentencing Proceeding:  If a soldier is found guilty of any offense, the case proceeds immediately to the issue of sentencing.  This is different from most civilian courts, where sentencing is delayed several weeks pending the completion of a presentencing report.  In military cases, there is no presentencing report.  Rather the prosecution and defense are expected to be prepared for this possibility and to be ready to present evidence about the soldier and the offense.

At the sentencing proceeding, the defense’s goal is to receive the most lenient sentence possible.  Sentencing evidence includes the impact of the crime (both on a victim and on a unit’s discipline and morale), the soldier’s duty performance history, and any extenuating or mitigating circumstances surrounding the offense or offender.  The defense and government are allowed to call sentencing witnesses.  After the witnesses testify, the soldier will be given at opportunity to testify.  The soldier may testify under oath or may instead make an unsworn statement. I f the soldier testifies under oath, the government and the military judge and/or panel members may ask the soldier questions.  If the soldier elects to make an unsworn statement, then the government and military judge and/or panel members may not ask questions.

At the conclusion of the presentation of evidence, the government and defense are given an opportunity to argue for an appropriate sentence.  After the arguments, the military judge or panel members will deliberate on the appropriate sentence.  If the sentence is determined by a panel, they will again vote by written-secret-ballot, and in most cases, it will require a two-thirds majority to agree upon any sentence.  If the sentence is greater than 10 years, then it will take three-fourths to agree.

VI.  Post-trial Matters:  After the trial is complete, the court-reporter will type a verbatim transcript of the record.  A copy of the record will be served on the soldier and the defense attorney.  The soldier will then be given an opportunity to present clemency matters to the convening authority.

The convening authority will consider the record, the sentence, the Staff Judge Advocate’s advice, and the matters that the defense presents before taking action on the case.  The convening authority has extensive discretion when taking action on a case.  In taking action, the convening authority either approves the findings and sentence or may change either or both of them.  The only limitation on the convening authority is that he may not increase the sentence. I n general, the appellate process does not begin until the convening authority has taken action.

VII.  Appeal:  If there is an approved sentence which includes a punitive discharge (Dishonorable Discharge or Bad Conduct Discharge), or confinement for one year or more, the Army Court of Criminal Appeals will automatically review the case.  The Army Court of Criminal Appeals can correct any legal error it finds, and it can reduce what it considers to be an excessive sentence.  Under Article 66(c) Uniform Code of Military Justice (UCMJ), the Court may only affirm findings of guilty and the sentence or such parts of the sentence that it finds correct in law and fact.  In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine disputed questions of fact, recognizing that the trial court saw and heard the witnesses.

After review by the Army Court of Criminal Appeals, the case may be reviewed by the Court of Appeals for the Armed Forces (CAAF).  CAAF is responsible for overseeing the military justice system.  CAAF chooses upon petitions for review which cases it will consider, similar to Federal courts of appeal.  If the CAAF does not see any issue in a case, then it will not grant review.  If the CAAF does grant review, then its decision is subject to review by the United States Supreme Court.  A soldier whose case is reviewed by CAAF would have to petition the Supreme Court for a writ of certiorari.


  1. Attorney Coombs, thank you for all you are doing for Bradley, courageous attorneys like yourself are so important. Following is an FYI, an article on the "van thing" posted at oped.news and across the web. That was such a blatant war crime. Thanks for your work again.


    Losing the Real Bradley Manning Story
    by Ralph Lopez

    The Bradley Manning case is approaching. When we think of Bradley Manning, many of us tend to think of either a Wikileaks document dump or the attack in the video in which two Reuters reporters are killed after a group of Iraqi men are fired upon by an Apache attack helipcopter. Already dismissed as justifiable by many due to the presence of a rocket launcher found on the scene, these associations may be losing the essence of Manning's actions and his strongest defense. Manning was not shocked by the initial attack on the Iraqi men, and wrote to Adrian Lamo:

    "At first glance it was just a bunch of guys getting shot up by a helicopter...No big deal ... about two dozen more where that came from, right? But something struck me as odd with the van thing, and also the fact it was being stored in a JAG officer’s directory. So I looked into it.""

    Unlike the initial attack, the follow-up attack captured in the Wikileaks video, "the van thing," was a strictly illegal and prohibited attack upon the wounded during wartime, which is why it was being buried in the military Judge Advocate General's office (JAG,) which is a military prosecutor. There is no other explanation for the video being stored there. It seals the case, in one clear, specific, and identifiable instance, that Bradley Manning was not committing a crime. He was reporting one.

    Manning virtually predicts that given he will probably be held incommunicado and without a chance to speak for himself as he is tried in the media, his biggest problem to be to tell his side of the story. Adrian Lamo asked him in an email: "What would you do if your role [with] Wikileaks seemed in danger of being blown?"

    Manning answered:

    "Try and figure out how I could get my side of the story out, before everything was twisted around to make me look like Nidal Hassan (the Fort Hood shooter.)"

    Humane treatment of the wounded is one of the oldest laws of war. It came into being after a lifelong personal campaign by Henri Dunant, after the Battle of Solferino in 1859, during the Napoleonic Wars, after Dunant witnessed the horror of 40,000 wounded men dying upon the field. Dunant was founder of the Red Cross, and though he finished out his old age in ascetic poverty, he never lacked for people eager to care for him or take him into their villages across Europe. A poor but educated man, Dunant convinced the royal houses of Europe that a law of the wounded was in their own best interests. Observers remarked in later wars that wounded Frenchmen were often treated like royalty by all sides.

    Article 12 of the Geneva Convention of 1864 states that,

    "...Members of the armed forces and other persons (...) who are wounded or sick, shall be respected and protected in all circumstances. They shall be treated humanely and cared for by the Party to the conflict...Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated...".


  2. David, wishing you all the best in defending Bradley. He deserves a sound defense.
    He may be hated now (by some), but history will paint a very different picture IMO.

  3. Catch 22 ?
    If they bring him to trial, the court will need weigh up whether he was a genuine whistleblower - ie everything he exposed will need be debated, officially. Enormous consequences! If they don't, they're accused of acting immorally and of having something to hide. This is a lose-lose situation for US Government and Military.

    If they have secrets to hide . . . it makes sense that the best option for them would be delay his trial and keep him hidden from view. A prolongued and very isolated "pre-trial". As appears to be happening.

    What a sickening situation.

    His treatment - using isolation officially to protect him but ultimately to break him - is no less a crime than the crimes he exposed. Its just cover up.

    I'd want to look at his treatment as being criminal. Take a new angle.

    Under who's orders has he been locked up in this way? This needs become public. Where has the order been passed down from.

    Who are the soldiers carrying out the order to guard him in isolation (inhumanely). They are all implicated in this. If I was a soldier guarding him - I'd want to be sure I was treating him very well and not just "following orders".(Are they aware that their treatment of Bradley is being scrutinised by the public and that all the details of his inhumane incarceration are coming out? Its a matter of time till they themselves are named).

    Not just in USA but around the world - Public anger over the treatment of this whistleblower case is building and will only increase the longer he is held. . . firt there are peaceful protests, then we'll see less peacful, then riots . . . .then ?

    The US govt and military might think hiding him away is the best solution, but the longer he is held, the messier this is going to get !

  4. United States v. Keenan
    The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal"
    Brad knows the actions being committed by the US army is illegal, and goes against Geneva Convention statutes. He is absolutely the only innocent individual in this case.

  5. firt there are peaceful protests, then we'll see less peacful, then riots . . . .then ?
    "firt there are peaceful protests, then we'll see less peacful, then riots . . . .then ?"

    In regards to the looming "protests and riots" one poster refers to... Can he/she name ANY examples? I think we should let things take their course. PFC Bradley seems to have exemplary Counsel to defend him in Court Martial and before. I was a Panel Member on a Drug case during my career, so I've seen how they work.

  6. I'm just catching up on this...
    "we should let things take their course." An astounding example of lack of foresight and ignorance about the snowball effect of ugly truths in the minds of those living in a non-Democratic state. Tunesia, Egypt and now Libya... how about those examples less than 6 month later? That poster has a clue, the government needs to deal with this now, like grown-ups, and making this thinking soldier stand around naked reeks of middle school gym class humiliation, not adult patriotic heroics.

  7. David, Thanks for your work on pfc Bradley Manning's behalf. May all your hard work liberate pfc Bradley Manning, a true hero of our times who had the integrity to speak up against injustice.

  8. I heard about this case from code pink. I like to research law and I can;t believe what they are doing to this poor soldier.
    Ramoda Anand, Advocate

  9. Sir,
    As a lawyer defending a client I can see where you are coming from. However as a Lieutenant Colonel, military personnel, and an American I don't understand your defense of a suspected traitor. If found guilty (I'm not saying he is, or is not) he then has committed an unforgivable crime against his country, and more importantly his fellow soldiers and should get the maximum sentence. I have spent eight years in the Navy and recently joined the NG, and I take great offense to someone who would put the enemy and himself above this nation.

  10. Private Manning is obviously a victim of a high level conspiracy to punish him for introducing a weapon of political mass destruction: truth. Now Saddam Hussain Obama has charged him with a capital offense. There is, however, a rich irony here, in that the Indian and Pakistani press has reported that Raymond Davis was helping the Taliban plan bombings on civilian targets in Pakistan; if proven, this could result in impeachment and possibly capital felony charges against those in the highest places.

    Don't think it's impossible. Republicans control the House, and if Obama and Biden were implicated, as they certainly would be, Boehner would become president if the Senate convicted them, as public opinion would force them to do. Democrats could demand a pardon for Pvt. Manning as a condition for impeaching and convicting the real war criminals.

  11. It's really too bad Bradley will be tried in a military court. An open trial with a fair jury would educate the public to the crimes and hypocrisy in their name, and would surely result in an acquittal by a sympathetic jury. The capital charges are just an attempt by the loathsome Jeh Johnson and his master Obama to force a plea bargain and avoid a trial.

    I really fear for Bradley, but perhaps the rapidly accumulating evidence of crimes by those at the highest levels will awaken the stuporous electorate and result in the election of the first morally decent president since Carter, who would surely pardon this courageous, principled young man.

  12. Engineers build relief valves into machinery to vent excessive pressures that would otherwise wreck the system, but President Obama, a man of immense narcissism, little talent and appalling judgment, is welding shut our government's relief valves. He conflates his political fortunes and ability to conceal wrongdoing with national security, to the detriment of democracy and the rule of law.

    Bradley Manning has the misfortune to have actually believed the things he was taught in American government courses and Sunday school and is being persecuted by a man of inspiring rhetoric and despicable deeds.

  13. Sirs: I'm sorry but in my opinion, PFC B. Manning's actions were no different than the actions of our current politicians. Capital Hill can't wait to pass judgement and point fingers at our enlisted men and women..when they take taxpayers monies party and finance their own interests...but DON'T ever question them..


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