The defense in Bradley Manning's court martial case today submitted a motion for dismissal of the charges with prejudice, meaning the soldier could not be retried on charges he leaked government secrets.
The motion arose after a fundamental disagreement occurred between the defense and prosecution over how slowly the prosecution is in providing evidence during the discovery phase.
PFC Manning's lead defense counsel, David Coombs, said that the government has to comply and turn over all information and documents, including classified documents, that the defense has requested.
The request for discovery includes FOIA requests for the Apache Helicopter Video, which the government said they gave the defense just last night; a Quantico video of Manning's interrogation, which the government argues does not exist; encase forensic images of all computers within Manning's unit; and lastly, four damage assessment reports-Defense Intelligence Agency, CIA's WikiLeaks task force, FBI and Department of Justice.
The government's belief is that they have turned over all the information they have to by military rule, and that classified information is mandated by a separate set of rules, a standard the defense does not believe to be true.
In response to the government's position, the defense submitted the motion to dismiss charges with prejudice.
"They do not understand their discovery obligations," Coombs said. "We have a serious problem. This is beyond jury…We've had two years under which the government has (used) the wrong standard of Brady."
Brady refers to a citing case law in which the prosecution must provide evidence to the defense, including that which is beneficial to the defense.
Coombs used the analogy of being almost done baking a cake when you realize "you forgot to put the eggs in it," when referring to the government's handling of evidence. The final decision as to the legal determination will be left to the judge.
OTHER MOTION OUTCOMES:
The defense's first motion sought to refine the charges brought against Manning. Manning's legal team is asking for the means and methods that the government alleges the defendant used to commit the crimes he is charged with, including who the alleged "enemy" is in the charge "aiding the enemy."
Aiding the enemy is the most severe charge brought against Manning and holds a maximum sentence of life in prison.
The government defined the enemy today as al Qaeda. In addition, 24-year-old Manning is facing charges including wrongfully causing intelligence to be published on the Internet, knowing that it is accessible to the enemy, stealing public property or records, and transmitting defense information.
The government clarified for the defense that Manning knowingly gave information to and aided the enemy by publishing content on WikiLeaks.
The next motion addressed during today's hearing deals with the defense requesting an ex-parte witness-a witness the government doesn't get to see prior to trial, and asking the government to deliver some evidence to them.
Col.l Denise Lind, military judge for the case, denied the defenses request for an ex-parte witness saying it does not meet the requirement for unusual circumstances.
The court had previously decided a fourth motion, pre-trial publicity, to protect prospective panel members (jury) and their ability to learn about the case. The defense did not want "standing panel members," which is similar to a federal court jury pool, to read anything in the media regarding the case.
The government did not contest this motion.
Manning has not selected the forum he would like to be tried in, but this motion is pre-emptive to protect his rights, should a military jury be called.
Manning is also accused of providing online publisher WikiLeaks with hundreds of thousands of classified military action reports from Iraq and Afghanistan, as well as 260,000 classified State Department cables when he served as an Army intelligence analyst in Baghdad in late 2009 to early 2010.
It is expected that the judge will set a calendar today for the remaining court motions, witness list due date, plea and forum decision, as well as the trial.