independent journalist who has covered the Bradley Manning trial extensively.
attorney for Army Private Bradley Manning.
Watch the complete interview conducted Wednesday by independent journalist Alexa O’Brien with Pfc. Bradley Manning’s attorney, David Coombs–his first time speaking to the media after Manning was sentenced to 35 years in prison, and ahead of Manning’s gender transition announcement Thursday. Portions of this interview aired Thursday on Democracy Now!.
ALEXA O’BRIEN: Mr. Coombs, Bradley Manning was convicted of 20 offenses and just sentenced to 35 years. What is your reaction?
DAVID COOMBS: Well, I look at the sentence, and I can’t believe that that was actually the sentence he received. Anyone who sat through the hearing, heard all the evidence, even in the closed sessions, there is not evidence there where you would think 35 years would be the appropriate sentence. I wonder now, if there had actually been damage, or if he had really intended to harm the United States, or if he wanted to obtain personal gain from selling classified information, just what the sentence would have been, because this was a person who had true intentions. He wanted to help America. He wanted to get people to think about what was going on in Iraq. And he didn’t have an evil motive in what he did. You heard from the sentencing his background, his story. And yet, that was the sentence he received.
ALEXA O’BRIEN: And how is Bradley Manning?
DAVID COOMBS: Interestingly, he was the person who had probably the most cheerful mood afterwards. There were a lot of people who were very upset. He said, "Hey, it’s OK. It’s all right. I know you did everything you could for me. Don’t cry. Be happy. It’s fine. This is just a stage of my life. I’m moving forward. I will recover from this." So it was odd that I wasn’t the person who was trying to comfort him. It was just—just the opposite.
ALEXA O’BRIEN: My sense—I don’t know Bradley Manning, but my sense is that he has grown up through his court-martial process. He is actually quite a strong character in the courtroom. And he is—and I’ve described him as being incredibly earnest. I really think, you know, it’s the best way I can describe the sort of sense of sincerity that I get from hearing him testify. What’s your sense of Bradley Manning? How have you seen him grow through this process? Or—
DAVID COOMBS: Oh, he definitely has matured. When I first met him three years ago, it was a young man who—still very idealistic, but, you know, when he had to explain certain things of what his thought process was, he had sometimes trouble articulating how he was feeling. It was clear he had these feelings, and it was clear he was sincere, but he couldn’t really talk about it. He also wasn’t a person who really knew how to connect with others, because he was so used to being judged. So, even though very caring, he would have difficulty whenever you got onto a personal level with them. I think over the years, the three years that I represented him, I’ve seen all those barriers break down. He is not just a client, he is a friend. And to see him mature over the last three years gives me great hope for him in the future. And that’s really why I believed an appropriate sentence would have been one that got him back to society sooner rather than later, because he has so much to offer. He is really somebody who in life didn’t have a lot of opportunities, didn’t have a lot going for him, and in spite of that, he turned out to be the type of person that he is, somebody who puts people first, who cares about people—even when these people don’t care about him. And that’s the amazing thing when you see what he does. His conduct really does back up his beliefs.
ALEXA O’BRIEN: Let’s talk about what 35 years means, the sentence, because a lot of people are talking about mitigating factors like, for example, the Clemency and Parole Board. In realistic terms, what does a 35-year sentence look like to you?
DAVID COOMBS: Well, he’ll have several opportunities to lessen that time. Because it’s more than 30 years, he’ll be eligible for parole after 10. And so, that will be the first time they’ll look at him for parole. And then every year thereafter he’ll get a look. From my perspective, he would be an excellent candidate for parole, because he’s not a risk of recidivism. He’s not going to have access to classified information, clearly. His crime was not violent. It was not for personal gain. He has no anti-person—antisocial personality problems. So, this is a person who could be put in society today and be fine. So, my hope is that at the 10-year mark, which he gets time—credit for the time that he’s served, so really that’s seven years from now, roughly—that he would be somebody who is paroled. Every year thereafter, if he’s not granted parole, then he has another hearing. Although that’s not my specialty, I’m going to make it my specialty, and I’ll be there in 10 years.
ALEXA O’BRIEN: Great.
DAVID COOMBS: Or, actually, seven.
ALEXA O’BRIEN: Yeah. And this would be part of time off for good behavior? Is that what you’re talking about? Or separate from parole?
DAVID COOMBS: Separate from that. So when he goes into confinement, he will get two dates. They will figure out his maximum release date and his minimum release date. So the 35 number really doesn’t mean that’s the number you serve. You’ll get two different dates. And he’ll find that out within the first week that he’s there. He’ll convey that to me. I’ll make sure that that’s accurate. And then I can give some more information as to the possible release dates for him.
ALEXA O’BRIEN: I really want to talk to you about this case, because this case has been obscured from the public, from closed sessions, not having a public access to court documents. And before we get into sort of aspects of the case, I want to ask you how has the way the government has prosecuted this case or Manning’s conviction been unprecedented.
DAVID COOMBS: Well, I think that, for starters, you go with an offense of aiding the enemy, and that offense really is unprecedented. When you look at how that was used in the past and how the government tried to use it in this case, they had to go back to an 1800s case to even make an argument, a colorable argument, as to why you would go after somebody who gave information to a journalist and say that they aided the enemy. That is an unprecedented aspect of this case. Not only there, but in every other charging decision that they made, they pushed the envelope of, and even strained, any realistic reading of what the law is. And yet, they seemed to not have a problem with that. It was almost a win-at-all-costs mentality. And I think that ultimately will be something on appeal that will get reviewed, and perhaps at that point Brad will get some relief, even on appeal.
ALEXA O’BRIEN: Now, Manning wasn’t convicted of aiding the enemy. Do you think that the fact that it stood up as long as it did in the prosecution sets any kind of precedent?
DAVID COOMBS: I do. I mean, I think, if I were a journalist, or, for that matter, somebody who is a concerned citizen who has access to information, is considering being a whistleblower, I think this sends a chilling message. And that message is one in which, even when your theory is you had no intent to get this information to the enemy, it was not your belief, there’s no evidence to show that you would have actual knowledge—and that was the key aspect there—that the enemy would receive this information, and yet you’re going to be charged with this, it’s going to survive motions to dismiss, even after the government’s presentation of the evidence, which then it became clear they had no evidence. It survived a 917 motion, which is a motion to dismiss based upon a failure of proof. That, to me, was amazing. I could not believe that the offense survived that long. And it does send a chilling effect and chilling message to anyone who may think about releasing information for the betterment of America, or any journalist who might think about receiving that information, because it’s not a far step to go from the person who gave it to the person that received it, the journalist. And I think, recently, with Glenn Greenwald’s significant other being stopped—I think if Glenn was with him, he would have been stopped, as well—I think that is an indicator that just because you’re a journalist, the government is not going to turn a blind eye to the fact that you’re part of that process.
ALEXA O’BRIEN: Is Manning aware of the Snowden releases and current events around that?
DAVID COOMBS: He is. And every morning we give him what’s called the Early Bird. In the military, it is a collection of all news stories of any significance of the day, broken down by region of the world and stories of interest for the United States. That’s the intel analyst in him. He has an insatiable appetite for information. So we kept him appraised of everything, so he was fully aware of what was going on with Snowden, what was going on in the world.
ALEXA O’BRIEN: Has he ever—are you aware of his thoughts or feelings around that issue?
DAVID COOMBS: We haven’t really talked about like his personal feelings on that. I think, just from my perspective, I can say that having that occur during the trial had its pros and cons. Pros being at least the press became now aware of the case again and started paying attention to the case. And obviously the cons were that WikiLeaks was somewhat involved with Snowden, at least getting him to a safe passage, and concern of how that might influence perception of Bradley Manning.
ALEXA O’BRIEN: Do you think that it—do you think that the Snowden leaks were on the judge’s mind?
DAVID COOMBS: I don’t know. I would find it hard to believe that she’s shielded herself from all news and information during a three-month trial. So, obviously, she never would mention that to me, but I find it hard to believe that she wasn’t aware of Snowden.
ALEXA O’BRIEN: Snowden came up in a closed session. I know that because in the next day, in the open record, there was a discussion of one diplomat talking about causal effects, and then the judge actually talked about Snowden very, very briefly. So...
DAVID COOMBS: That’s correct. And in that aspect, it was some information to suggest that countries who might have forgotten about the leaks of the diplomatic cables now, because of Snowden, would remember that. So you’re correct. She was at least aware that there was something else that happened in the world regarding Snowden.
ALEXA O’BRIEN: I want to talk to you about the espionage charges, because a lot of the press focused on aiding the enemy, because it was such a grave charge, but here we have Manning convicted on six espionage offenses, or Espionage Act offenses. Manning was convicted on probable harm at trial, and it wasn’t really until the sentencing phase that we got to really discuss if there was any damage at all. So, I wanted to ask you just sort of point-blankly: Did these disclosures damage national security?
DAVID COOMBS: Not from my perspective, no. And that’s the other difficult aspect of this case. We would expect to see some damage that they could articulate, given the amount of information. Understanding the type of information—and that information usually would not have something in there that would be harmful, given that most of it’s dated. It’s looking backwards instead of forwards. The one exception might be the diplomatic cables. So, I fully anticipated seeing something that even I, from my perspective, would have to say, "Yes, that is damage," and that’s going to affect his sentence. But we didn’t see that, and didn’t see that in the open session, did not see that in the closed session. And so, because of that, that’s another reason why I have difficulty accepting the outcome in this case.
ALEXA O’BRIEN: Do you think that that issue of the lack of damage will come up on appeals?
DAVID COOMBS: I don’t know if it will. We certainly have created a good appellate record, though. I think there are plenty other issues that are going to get second-guessed and looked at, so I don’t think the lack of damage will be an issue, no. But from a outside-of-the-appeals standpoint, from just the American public looking at it, I hope there comes a day where even those people who believe today that there was damage from this see that that’s not the case. And if they see that and they believe that, because time has gone by and we can all see now this has not caused damage, then they start to question the initial cries from our government of the sky is falling and that Bradley Manning and others have blood on their hands.
ALEXA O’BRIEN: How would you characterize the evidence that the government presented at sentencing, the aggravation evidence? How would you describe—
DAVID COOMBS: Speculative. I’d say it’s pure speculation. They got individuals to come up who were so-called subject matter experts in their field to essentially espouse their personal opinion as to some potential harm in the future. When asked to give concrete, you know, specific examples, something where we could say, OK, this person was hurt, or this person was harmed, or, God forbid, this person was killed, none of that came out from any of these witnesses. And because of that, that really kind of changed our position on what we wanted to try to do in our sentencing case. Initially, we were thinking on offering the damage assessments from the respective agencies. And our thought process behind that was, when you read the damage assessments, you get a sense of some potential harm at a particular time, but the long-term harm, when they’re looking at this from the damage assessment standpoint, is even in there speculative. And they start to say there’s a potential for this, but it’s remote, or it’s unlikely. And so we initially thought those damage assessments would be vital in order to impeach the witnesses that the government would call. At the end of the day, we saw that the witnesses that they called gave even worse testimony than what was in the damage assessments, from the standpoint of harming. And so, what looked initially to be our—one of our better mitigating circumstances, the damage assessments, actually would have been harmful, so we decided not to offer that. And I fully expected that the government then would offer the damage assessments, because it actually did a better job of capturing speculative damage in a more convincing manner than their witnesses did.
ALEXA O’BRIEN: I want to talk to you about the closed sessions. I mean, you know, I’ve sort of graphed out all the critical evidence as it relates to certain elements, for the espionage charges, for aiding the enemy, and into sentencing. And most of the critical evidence in this trial is classified. And, you know, we got into the sentencing phase, and the public sort of wanted to know: You know, was there any damage? And most of these sessions were closed, especially in the sentencing phase. So I want to talk to you about how the prosecutors may have used classification. Do you think that they used classification to hide their case from public scrutiny?
DAVID COOMBS: I don’t think so. And that might be a surprising answer. I don’t think they used classification to hid their case from the public. I think they used classification to try to convince the public that there was something in there that was harmful, so harmful that you, the public, could not hear it. But reality, there wasn’t.
Classification in this case was really used to hide information from the defense. The fact that it was a classified evidence case really hurt our ability to discover information that in any other case I would be able to have access to. When you have to rely upon the government—and this is the government counsel—to look through evidence and determine what information should the defense receive in their preparation of their defense, you have a problem. I had a security clearance. I had the ability to see any of the information. I should have had equal access to everything the government looked at. And then I could make an intelligent argument at that point why I needed certain classified information. Instead, I had to rely upon a trial counsel, whose job obviously is not to look after the best interests of Pfc. Manning, to look through information and say, "No, you don’t need to know this; this is not going to be helpful to your defense." I am certain that there was classified information that would have been helpful to the defense that we did not receive.
ALEXA O’BRIEN: You sort of answered my next question, but I’m going to ask it in a little bit of a different way. Do you think that there’s any information that you know of, or it doesn’t even have to be classified information, that—that if it were known more widely by the public or understood by the judge would have affected Manning’s sentence or even his conviction in a favorable manner?
DAVID COOMBS: I think so. And I think that—that is the type of information that, in any other case, I would have the ability to go search for within the government’s records. I am confident that there are government members who talked about the SIGACTs, the detainee assessment briefs, the cables, and said, "This stuff is not harmful. It’s embarrassing. It might put us in a bad light. But long-term effects? Not so much." And I’m confident that that stuff exists, and yet I never had access to that. And had I had access to that, and the judge saw that, maybe that would have influenced her to come to a more reasonable sentence.
ALEXA O’BRIEN: I want to talk about declassification now, because, you know, here we have 700—roughly 700,000 charged documents, and all of them are still classified, although they’re widely available in the—on the Internet. And the government chose to declassify two sets of documents—one from the raid of Osama bin Laden, and the other was a U.S. Army counterintelligence memo from 2008 on WikiLeaks that was sourced from public reporting—to use in their case for both aiding the enemy and wanton publication. And wanton publication has never been used in military law before; it’s not tied to any existing federal violation or punitive article under the Uniform Code of Military Justice. Do you think that this selective use of declassification prejudiced Manning?
DAVID COOMBS: I think so, because, again, this is another example of the government being placed in a position of determining what information can we freely talk about in a courtroom. And let’s use the two examples that you selected. The Osama bin Laden raid, declassifying certain information from that—is there any doubt why you would do that? You would certainly do that in this case so that the information gets out to the public, that Osama bin Laden had information that was leaked to WikiLeaks. That’s the only reason you wanted that to get out, to influence how people perceive Pfc. Manning and this case.
Now, with regards to the second document, the ACIC document, this was the Army’s counterintelligence report, how they viewed WikiLeaks as a threat. The defense asked on multiple occasions to declassify the information charged in this case. And the reason why that would be helpful is then we could freely talk about it, I could give it to witnesses, we could talk about it open in open court, everyone could see what was happening. The government said no consistently. Right before trial, they said they were going to declassify the ACIC report. And had they done that before, I could have covered that in more detail with Professor Benkler. But they didn’t do that. And, again, the reason why they wanted to do that was to show that the Army viewed WikiLeaks as a threat and that Pfc. Manning should have known that, and therefore he had actual knowledge that the enemy would go to WikiLeaks. The fact that the government can pick and choose what information it wants to declassify so it can use it in an easier manner shows you again the unfairness in the system when you’re dealing with classified information.
ALEXA O’BRIEN: And Mr. Benkler was Professor Yochai Benkler, a defense witness who testified for defense against the aiding-the-enemy charge, and he testified about the networked Fourth Estate, and he’s from the Harvard—sorry, the Berkman Center for Internet and Society at Harvard. I want to talk to you also about—before we get into a couple other things, I want to talk to you about how political the choice was for what they charged. There were five detainee assessment briefs from the SOUTHCOM database, which are known as the Gitmo Files. And three of those—I mean, you can’t tell me what they are, but it’s pretty clear from public reporting and from defense testimony that they are likely the Tipton Three. So, without asking you that directly, can you tell me, in your opinion, do you feel that what the government charged was a political choice?
DAVID COOMBS: I think that might be giving them too much credit, to be truthful. I looked to try to see some rhyme or reason in what they selected for the 793 offenses. And at the end of the day—
ALEXA O’BRIEN: The espionage offenses.
DAVID COOMBS: Exactly, the espionage offenses. At the end of the day, though, looking at it, I couldn’t come to a rhyme or reason for why they would select certain things. There was—with regards to the detainee assessment briefs, many of the ones that they charged, the five that they charged, were found on Pfc. Manning’s computer. So that would be kind of a logical connection. The other documents, though, that they selected, conceivably, you would think, would represent the absolute worst examples for the government of damage, like this is—this is the smoking gun for damage. And yet, none of them, in my opinion, showed any damage. So, why they would select those, I don’t know.
ALEXA O’BRIEN: I should say, just to sort of—for the public, that the Tipton Three are three U.K. citizens who were released from Guantánamo Bay after no charges, no trial, and they do make anti-Guantánamo Bay documentaries. And the government considers them terrorist recidivists for these documentaries.
Throughout the beginning of the discovery process, in the motions part of the trial, you know, there was an attempt by defense to get communications between Russell Travers, who was a senior official at the National Counterterrorism Center, who was picked essentially to be the National Security Staff’s senior adviser for information access and security—and the White House Press Secretary called the investigation of WikiLeaks and Manning administration-wide. So, I really want to talk to you about this case in a larger context. And have you found any evidence that the investigation or the prosecution of Manning or WikiLeaks was being coordinated by the National Security Council or the White House?
DAVID COOMBS: I haven’t, but I would have no doubt that multiple agencies, certainly Department of State, FBI and other agencies of the alphabet soup-type example, would have some involvement in this case. It was clear that every day we had a group of people behind the prosecution, that just sat there. Occasionally they would pass notes to the trial counsel. Obviously I don’t know what was on those notes. During some of the breaks, I would walk up and introduce myself, say, "Hi, I’m David Coombs. How are you? And what do you do for a living?" And they would never answer that question. So, from my perspective, clearly there were outside influences. And it would explain why the government did take the position that it did of essentially win at all cost. They never deviated from pushing the envelope, where I would think a trial counsel who’s really kind of concerned about not only getting a just outcome, but having that outcome stand up on appeal, take certain steps to eliminate appellate issues. In this case, the government was never concerned about any of those.
ALEXA O’BRIEN: Let’s talk about what—what you just said in terms of you said that there were definitely other interests around this prosecution. Can you—can you tell me what you think those are, or what purpose the trial counsel’s case or objective was in this military prosecution beyond punishing Bradley Manning or deterring other people from following in his footsteps?
DAVID COOMBS: Sure. I think you don’t really have to look any further than the 2008 ACIC, the Army counterintelligence report, to get the answer to that. It was important that once the government found a whistleblower, somebody who was leaking information to a journalist, to make an example of them. It was important that that example be a very loud message to show that you couldn’t have the belief of safe disclosures, even to an organization like WikiLeaks. And that goal was to destroy that mentality of I can give stuff in an anonymous fashion that I think is beneficial for the world to know without risk to myself. Manning’s case is the case that tries to destroy that belief in order to essentially deter any other person from ever following in his footsteps.
ALEXA O’BRIEN: In late July 2010, the FBI joined the case officially, with the Department of Defense and the Department of Justice. At the time—during the pretrial, a special agent from the Army Computer Crimes Investigative Unit said that Neil MacBride had been helping the Department of Defense from the beginning in Iraq. And MacBride, of course, is in charge of the grand jury that’s empaneled investigating civilians in this case, including the founders, owners and managers of WikiLeaks. That’s what the special agent said at the pretrial. A few weeks after the FBI joins the case, Colonel Stephen Henley, who was appointed the president of a Guantánamo military commission, designates a lifelong Department of Justice prosecutor to be Bradley Manning’s investigating officer at his Article 32. On the first day of that Article 32, which is like a military form of a grand jury, you asked him to recuse himself, and he didn’t. Almanza eventually refers all 22 charges, including aiding the enemy, to a general court-martial for Bradley Manning. Do you still believe that the way in which the government has prosecuted this case, in addition to deterring whistleblowers and destroying any kind of sense of trust between a media organization and a whistleblower—do you think that the way in which the military prosecuted this was to actually plea your client out?
DAVID COOMBS: I don’t know if it was necessarily to plead my client out. You would expect, if that were the goal, that you would have a reasonable government on the opposite side offering a reasonable outcome to the case. When I first came on to this case back in 2010, I knew many of the key players from the government side. And at that point, rather foolishly, I had the optimistic belief that I could obtain a very favorable outcome for Bradley. Reality, though, set in pretty quickly after that. They were not interested in pleading the case, certainly not when they made the offers to us of what they would support. Those offers were so far out in the stratosphere that even today’s outcome looks outstanding compared to what they were offering us. So, from my perspective, I don’t believe they ever wanted to plead this case. I believe they wanted to make an example of Pfc. Manning.
ALEXA O’BRIEN: How important was it to defend Bradley Manning against the Garani airstrike video, which was a video of a May 2009 airstrike or cluster bomb bombing in the Farah province of Afghanistan? Manning was found not guilty of this charge. The government came forward with trying to assert a November transmission date.
DAVID COOMBS: That was—it was pivotal to our defense that the judge did not believe that Pfc. Manning was working for WikiLeaks, because he wasn’t. It was pivotal for our defense that the judge did not believe that he started to do his leaks in November of 2009, because he didn’t. The government wanted to show that he started at that timeframe for their argument that within two weeks of coming to Iraq he turned his back on his soldiers, his fellow soldiers, and went to work for WikiLeaks. That could not be further from the truth.
The reality of the situation was, nothing happened in November. He did find out about WikiLeaks, like a lot of other people, when they released the 9/11 pager messages, and he paid attention to WikiLeaks at that point. He did go on to IRC chats and spoke with other people both working for and with WikiLeaks and other people who were just interested in WikiLeaks. And he found fellow like-minded people there that could talk about issues of not only computers and programming, but also important issues that are important for the world to be discussing. And that’s the December time frame.
So, in January is the first time that he actually discloses anything, and that’s the SIGACTs, the significant activity reports. From our perspective, it was pivotal that the judge believe that, because had the judge believed that he went to work for WikiLeaks in November 2009, I think the chances of being found guilty of aiding the enemy would have been significantly higher.
ALEXA O’BRIEN: Did public statements by U.S. government officials affect the treatment of Manning or influence the handling or outcome of this trial?
DAVID COOMBS: I think they certainly impacted the treatment of him. You know, if you go back to the time when he was at Quantico, you have the president, prior to that, saying that Pfc. Manning broke the law. You also have the president saying, "I’ve been briefed as to his conditions. I’ve been assured that they’re lawful." And he essentially blesses off on the conditions that Pfc. Manning was held in. Well, reality, even with the judge that we have here, the reality of the situation, she found that to be unlawful, how he was being held. Certainly, the marines at Quantico, when they hear from the commander-in-chief that they’re holding him in a proper fashion, that certainly impacts his treatment. They took the perspective there that they were not going to have anything happen to him on their watch, and the best way of assuring that was to hold him in his cell 23 hours out of the day and essentially deprive him of the very basic rights that a detainee should have, when—especially when they haven’t been found guilty of anything. So, certainly the treatment has been impacted.
I think also, from the trial perspective, yes, it impacted how this case was tried. I’ve tried over a hundred court-martial cases. I’ve gone against trial counsel that, in my mind, are unreasonable. But there’s always been someone in that process that’s the voice of reason, the voice of common sense. And in this situation, there was no one. And the reason why is you had a groupthink and a group buy-in as to what they were doing. And I think the only reason you would ever have that is if it was something that was blessed all the way to the highest levels.
ALEXA O’BRIEN: Everyone was expecting you to do a motion related to unlawful command influence. Manning opted to be tried by a military judge. Is that the reason why that motion didn’t go forward?
DAVID COOMBS: In part. I would have filed an unlawful command influence motion if I thought we actually had evidence of that. I certainly wasn’t shy about filing motions, so I would have filed that motion, as well. But I’ll tell you that when I knew we were going with a judge alone and not a panel, it basically eliminated the issue from the defense’s perspective. Now, you can still have unlawful command influence when it deals with a military judge, but I did not believe that we had any evidence of that in this case.
ALEXA O’BRIEN: Let’s talk about the choice to go by military judge. In the pretrial record, there was evidence of the government basically objecting and blocking to defense putting questions in, or additional questions in, to determine the bias of any potential panel member towards gays in the military or towards transgender people. Was there a sense that Manning could get a fair trial with a panel?
DAVID COOMBS: I would say no. No. And from my perspective, the reason why is twofold. The first is, a panel—granted, I have had very favorable outcomes with military panels, but there are certain types of charges where you just don’t want to take that in front of a military panel. For starters, they don’t have a lot of experience. Usually a typical panel will do a couple cases before they’re replaced. So, from their perspective, this would represent the worst case they’ve ever seen. And so, I was fearful that you would have a very harsh sentence if we went in front of a panel.
I also thought, once we got the case here at Fort Meade—which was no mistake. Fort Meade is the home of intelligence and intelligence products for the military. You have the NSA here at Fort Meade. So any potential panel member would likely have a security clearance, for sure, and probably be handling classified information on a daily basis. So, from my perspective, one could argue that any unlawful disclosure of classified information would make these panel members essentially victims of that crime. And so, you would be asking somebody who, from their perspective, might be a victim to judge the outcome in this case. So, I—we never really seriously entertained the option of a panel. We always knew we would probably go with a judge.
But that voir dire process really was used not to see what potential panel member we might get, but to influence the thinking of the military judge. Many of the motions that we filed, many of the things that we did, was to try to get information in front of the judge that would hopefully educate her in some way about a nuance of the case that she otherwise would not see. So, for the voir dire example, she had to read the questions that we put there. I knew most of those questions weren’t going to survive, but she had to read them, and we have to argue them. And so, when we do that, hopefully we’re educating the judge, as well.
ALEXA O’BRIEN: Let’s talk about your feelings or your reaction to her ruling on Manning’s treatment at Quantico, only giving him 112 days sentencing credit. What’s your sense of that?
DAVID COOMBS: Too little. A hundred and twelve days doesn’t do anything, when you think about that. If you are a commander of a confinement facility, and you hold somebody for nine months in the conditions that they held Pfc. Manning in, and at the end of the day you hear that he gets 112 days, what does that do for you? Does that cause you to lose any sleep? No, it doesn’t. The outcome in this instance should have been something that either gave him years—not days, but years—of credit, or it should have eliminated certain offenses. I think a prime offense at that point would have been the aiding-the-enemy offense. That’s when you get the attention of those who would in the future potentially do this. The government always argues about deterrence. "We need to do deterrence. You need to give a harsh sentence to convince others not to do the same crime." Well, the same argument would apply in something like this. If you know somebody has unlawfully punished an individual prior to trial, you need to give substantial credit for deterrence. A hundred and twelve days is not deterrence.
ALEXA O’BRIEN: What issues are going to come up on appeal, as you see them? What are the sort of major mistakes of fact or legal understanding that are going to come up on appeal?
DAVID COOMBS: I think the biggest one is speedy trial. The fact that we demanded speedy trial relatively early on in the case and yet still had to wait well over a year to get Pfc. Manning to his day in court, I think will be one of the bigger issues.
ALEXA O’BRIEN: And Manning was held longer than any accused awaiting court-martial.
DAVID COOMBS: To my knowledge, yes. And, you know, when you look at the speedy trial issue, the government avoided that problem by just simply going to their—the first-level commander and asking for him to just say, "I’m going to exclude this time. This time will not count against you for any future speedy trial issues," and did that time and time again. And when you think about that, if that’s all it takes to wipe the slate clean for the clock, the speedy trial clock, then there is no speedy trial clock. And in this instance, that’s all the government really had, and yet it was condoned. So I think speedy trial will be a huge issue.
I think the unlawful pretrial punishment will be a big issue. I think the judge’s rulings on the 1030 offense, the exceeding authorized access on a computer, will be a huge issue. Her last-minute allowing the government to change the larceny offenses, the 641 offenses—
ALEXA O’BRIEN: To change the charge sheet.
DAVID COOMBS: To change the charge sheet—
ALEXA O’BRIEN: After the closing of it.
DAVID COOMBS: —to change the nature of the offense, to change what was charged, after the close of evidence, will be a huge appellate issue. So there are several issues that I think will give the potential for relief on appeal.
ALEXA O’BRIEN: What’s your sense—I mean, in the middle of this trial or towards the end of it, Colonel Denise Lind, the military—the presiding military judge, was promoted to the Army Court of Criminal Appeals, which will be the court of appeals that this case will go to. What’s your sense of that?
DAVID COOMBS: Well, it is a promotion from the standpoint of going from a trial level to the appellate level, although it’s not atypical. So, I’ll say that in the past judges have gone from the trial level to the appellate level, and then they go even back down to the trial level. So, she wasn’t promoted from the standpoint of rank. I don’t think it had really any bearing on the case. She certainly won’t be the appellate judge listening to the case. So I’m hopeful that the other judges that are on the Army Court of Criminal Appeals will look at the issues and see what we litigated and hopefully come to a different conclusion.
ALEXA O’BRIEN: Was Manning scapegoated for any kind of leadership or policy failures within either his 2nd Brigade Combat Team or within the Department of Defense or even the U.S. government?
DAVID COOMBS: I don’t know about scapegoated, but he was a—and in my opinion, when I argued, also in sentencing, he was a victim of a very poor chain of command. One of the things that you would expect from a chain of command, especially from the non-commissioned officer side, is that they take care of soldiers. That is the very first thing that any NCO learns, and that’s the first thing that they think of every given day that they get up, put the uniform on: How do I take care of my soldiers? In this case, Pfc. Manning was not taken care of by his unit. Had they taken care of him, they would have realized that he was struggling with something, struggling with issues, and they would have addressed those issues. I’m not to say—and that’s not to say that this wouldn’t have happened still, but it’s certainly, if he had a caring command, if he had an NCO leadership that looked out for him, they would have recognized, at least in December of 2009, that there were some issues with what—his behavior and what he was struggling with, that—
ALEXA O’BRIEN: Which was?
DAVID COOMBS: At that point, it was his gender identity, I believe. And you have him reaching out for help, actually crying out for help. And those cries go unnoticed. I don’t think his gender identity had any bearing on his actions. I think his actual actions were the product of firmly held moral beliefs of what is the right thing to do. But if you see somebody struggling, you need to take some action. And the chain of command should have taken action, and they didn’t.
ALEXA O’BRIEN: Why do you think they didn’t.
DAVID COOMBS: I think he had a poor chain of command. And it also does bring up other issues of an Army that’s stretched to its limits, fighting two wars at the time. You’re in a position where you’re taking everybody, not everybody that should deploy. You’re just taking everybody. And that’s problematic, because we owe it to basically every other soldier that everyone who deploys should deploy. When we’re taking sons and daughters to the battlefield, there should be no concern about anybody there having any issues that would detract from their ability to do their job, because their job is life and death. And that’s where a strong chain of command comes into play, saying, "Look, if we have somebody who shouldn’t deploy, and even if we need the numbers, even if we need that person to deploy, if they should not deploy, we’re not going to deploy them." That takes strength of character. That takes a strong leadership. Those were things he did not have.
ALEXA O’BRIEN: I want to talk to you about your client. Your client has—you know, in the court record, has had personal issues that they have struggled with that are a part of this case. They’ve also had gender identity issues or—that have come up at the sort of the climax of the sentencing case. And Bradley Manning came forward and offered an apology to the presiding military judge. Could you give the public a context for all of those issues and how you saw they fit into the case, and your concerns as a defense attorney as to how you were going to handle those issues?
DAVID COOMBS: Sure. I mean, I think to minimize Brad and say he is one thing and only one thing is not to do justice to him and how complex he is as a person. I think, from the defense’s perspective, we had to look at the entire picture of why he did certain things. And it was clear—and you can see that from the Lamo chats—why he would leak certain information, believing that this information was important for the public to know, believing that it might spark reforms, it might spark debate, it might make a difference in the world. Those are firmly held beliefs that we embraced, obviously, as part of his defense. But you wouldn’t do justice to what he was going through without recognizing that he had those beliefs at the same time that he was struggling with a very, very personal issue that was really at the center and core of who he was and who he hoped to be. And he was in a position now of dealing with that in a deployed environment, where he couldn’t reach out for help, where he couldn’t turn to the next person and say, "Hey, I’m struggling with this issue. Can you help me?" because if he did that, he would no longer be in the military. So, early on, we had to address that issue. And even though it was uncomfortable for him, and even though at the time he didn’t want it to come to the forefront, I told him that we needed to embrace that part, because that was part of the narrative, that was part of what was happening, and that was the truth, and we needed to bring it out.
But at the same time, we also really wanted to make sure that people knew that we weren’t offering that as an excuse. We weren’t saying that because of the struggles, he chose to leak this information; because of his personal issues, that that led him to share information with WikiLeaks. The two are not related. But because they happened at the same time, it’s important to understand that, because that provides context. And certainly, as we all know, when you’re under a lot of stress, and when you’re under a lot of pressure, and when you’re dealing with personal issues, that does affect your judgment. That does affect how you might internalize things. And so I think it had an impact on him. It didn’t cause him to do his actions. But it was important, from the defense’s perspective, that the military judge got that full picture. And our hope was, if she got that full picture, she would understand that who she was sentencing was a good young man, a moral young man, a man with probably one of the stronger moral compasses of what is right and wrong. And he has that compass in spite of his childhood, in spite of his upbringing, in spite of how other people treat him. And this is the type of person that you have in front of you.
ALEXA O’BRIEN: How did other people treat him?
DAVID COOMBS: Well, you have people treating him as essentially a pariah, as an outcast. They recognized from the beginning he doesn’t fit the typical mold. And so he has very little friends. And one of the aspects that came out, through some of the people who would talk about him, was even those people who were rude to him, even those people who belittled him, made fun of him, he was still kind to, he was still respectful to. So, you see a person like him, and you think, you know, if only he had somebody who was a strong leader, if only he had somebody that he could go to and talk to, things might have been different.
ALEXA O’BRIEN: Do you think things might have been different meaning that these would not be released as they were released?
DAVID COOMBS: I don’t know. I mean, I think even if Brad didn’t have these issues, I think when he deployed and he started to see the things he was seeing, and when he started to read about the things that were being done, I think, from a moral standpoint, he would have had that problem and still would have had that issue. And I think that’s where we get to the apology, where he says, "Look, you know, I could have done other things." I think if he had a strong leadership, he would have explored other options. He would have explored what the mainstream would say you would need to do: go through your traditional channels, through your elected leaders, through your internal inspector general who would investigate anything that you believed was unethical or illegal. He would have at least explored those. I don’t know if he would have gotten any relief going through that, and so ultimately he might have done the same thing. But it would have maybe delayed his actions.
ALEXA O’BRIEN: What was the most damage done in this case?
DAVID COOMBS: I—personally, I think the most damage done in this case was the sentence that my client received. If you’re talking about damage from a standpoint of what he released, embarrassment. Embarrassment was the most damage. It’s not—when you look at the SIGACTs, when you look at the other charge documents, all that stuff is, as I said before, something that looks to past acts. It’s kind of an historical record. I don’t believe any of that gave away anything that was sensitive.
The diplomatic cables, on the other hand, I think the damage there was an embarrassment of having other people see that we don’t always do the right thing for the right reasons as the United States, which might come as a surprise to some people. You would think that when we deal with other countries, when we deal with people who are less fortunate than our country, that we’re doing so in a way that helps everybody, that’s in everyone’s best interest. But that’s not always the case. And, in fact, frequently we do things that are in our own national interests, and sometimes that is to the detriment of people who are struggling to have what we have here in America—a democracy, a free and open press. And that’s a little disheartening when you see that. And I think that’s probably the biggest damage, because if people actually look to these documents, they will see that we don’t always do what we should do, and we are not always the country that we should strive to be.
ALEXA O’BRIEN: What drove Manning to release these documents?
DAVID COOMBS: I think what he was seeing, and the amount of time that he had to deal with this. If you’re in a deployed environment, which I have been several times, you have nothing else but your job, and perhaps going to the gym to work out, to eat, to sleep, then you go back to your job. And for him, I think what probably caused this to accelerate was that’s all he had to think about. And because of his moral compass, because of what he was hoping to achieve when he went there—you look back at the Laura McNamara chats, the now—back then she was called Zachary Antolak—you look at those chats, and you see a young man hoping that when he gets there, he can make a difference, he could hopefully save lives, hopefully get people back safely. How disheartening it must have been when he got there to see that that really wasn’t always the mission. And we didn’t always just kill bad people. Sometimes we just killed people because they were in the wrong place. And no one asks questions. And no one investigated to see did we do something wrong. And when we did do something wrong, we didn’t come forward with that information. We didn’t readily admit the mistake, say we’re sorry, and show how we’re going to prevent this from happening again in the future. We owe that to American public. We owe that to the publics that we go to protect and to help them build a good country. And yet we didn’t do that. And so, for Brad to see that, I think that probably is what accelerated his belief that the public needed to see this information.
ALEXA O’BRIEN: This is my last question for you. You have said in the past that a court-martial is the best, most fairest courtroom for Bradley Manning. Has this trial, in your experience through it, changed your perspective on the military justice system?
DAVID COOMBS: It hasn’t changed my perspective on the justice system, but what it has done is it has brought to the forefront—for me, at least—problems with our justice system, things that need to change. And the first thing that needs to change is Rule for Court-Martial 806. That’s the rule that prevents cameras from coming into the courtroom. We need to change that rule. We need to have cameras in the courtroom. We need to have the media have access to see what happens at every moment inside the courtroom. Hopefully this could be aired on C-SPAN or some other network where the average public person could tune in and see what is going on in a court-martial. And the reason why I think that’s important is, majority of the things that happened in this trial I don’t think would have happened if you had the eyes of the public firmly fixed on it. And in this case especially, if you had cameras in the courtroom, you would have had more media. You would have had journalists there. You would have had Nancy Grace, I’m sure, would have been live from Fort Meade every day talking about this case. It would have been on the front page of newspapers.
And people would then see for themselves what I know, and that is there is a good young man who received 35 years, and he didn’t need to receive 35 years. There’s a good young man who did what he thought was morally right, and for the right reasons, and he was sentenced the way we would sentence somebody who committed murder, the way we would sentence somebody who molested a child. That’s the sentence he received. So, yes, I still believe military justice is fair. I still am very proud to be a member of the military. But I can recognize where there are problems. And cameras in the courtroom, we need to have that. We need to change that aspect of the system.
And then, secondly, classified evidence cases—the rules are not balanced. The government has too much power over what is discoverable, over what will be shared, over how things are given to the court and not to the defense. Those rules need to change. Also in this case, you get a situation where I’m asking for witnesses that are clearly relevant. I’m asking for people to come testify that would be beneficial to my client, and yet I have to go through the government to ask for that. I have to get their permission. And when they deny it, then I have to go seek relief from the judge. That’s wrong. We shouldn’t have that aspect of the system. We should have equal access to witnesses, the ability to bring them in without having a trial counsel say yes.
ALEXA O’BRIEN: Did Bradley Manning receive a fair trial?
DAVID COOMBS: I think Bradley Manning received a trial in which people will look at it and say, "I don’t think so." And that’s really the question that people should be asking now: Did he receive a fair trial? In my perspective from his legal representation, I would like to think he received a fair trial. But I have to admit, when you look at this and you see the outcome and you see what came out, it would be hard for somebody to say that this was fair. And at the end of the day, whether or not it’s fair, perception is what matters. And the perception is, no, he didn’t receive a fair trial. And that should be problematic for people. That should be problematic for our military, and hopefully that will be problematic for the president of the United States, and he’ll do something about it.