Title: Volume FOIA 014

Release Date: 2014-03-20

Text: 04012



Volume 14 of 111
SJAR ROT
FOIA Version

VERBAT IM 1

RECORD OF TRIAL2

(and accompanying papers)















of
(Name: Last, First, Middie initiai) (Sociai Security Number) (Rank)
Headquarters and
Headquarters Company,
United States Army Garrison U-S- Army Fort Myer, VA 22211
(Unit/Command Name) (Branch of Service) (Station or Ship)
By
GENERAL COURT-MARTIAL
convened by Commander



(Titie of Con vening Authority)

UNITED STATES ARMY MILITARY DISTRICT OF WASHINGTON
(Unit/Command of Con vening Authority)

Tried at

Fort. Meade, MD on see below

(Piace or Piaces of Triai) (Date or Dates of Triai)







Date or Dates of Trial:

23 February 2012, 15?16 March 2012, 24?26 April 2012, 6?8 June 2012, 25 June 2012,

16?19 July 2012, 28?30 August 20l2, 2 October 2012, 12 October 2012, 17?18 October 2012,
7?8 November 2012, 27 November 2 December 2012, 5?7 December 2012, 10?11 December 2012,
8?9 January 2013, 16 January 2013, 26 February 1 March 2013, 8 March 2013,

10 April 2013, 7?8 May 2013, 21 May 2013, 3?5 June 2013, 10?12 JUne 2013, 17?18 June 2013,
25?28 June 2013, 1?2 July 2013, 8?10 July 2013, 15 July 2013, 18?19 July 2013,

25?26 July 2013, 28 July 2 August 2013, 5?9 August 2013, 12?14 August 2013,

16 August 2013, and 19?21 August 2013.

1 insert "verbatim or "summarized as appropriate. This form be used by the Army and Navy for verbatim records of triai oniy.)

2 See inside back co ver for instructions as to preparation and arrangement.

DD FORM 490, MAY 2000 PREVIOUS EDITION IS OBSOLETE Front Cover



04013

VERBAT IM TRANSCRI PT

04014

PROCEEDINGS OF A GENERAL COURT-MARTIAL



The Military Judge called the Article 39(a) session to order at Fort
Meade, Maryland, at 1258, 23 February 2012, pursuant to the

following orders:

Court?Martial Convening Order Number 1, Headquarters, U.S. Army
Military District of Washington, Fort Lesley J. McNair, District of
Columbia, dated 2 February 2011; superseded by Court?Martial
Convening Order Number 2, same headquarters, dated 22 February 2012;
[after referral and prior to assembly] superseded by Court?Martial

Convening Order Number 1, same headquarters, dated 11 February 2013.

[The case was referred to trial by Major General Michael S.
Linnington, who was succeeded in command by Major General Jeffrey S.
Buchanan on 24 June 2013. Major General Buchanan adopted the panel
members identified in Court?Martial Convening Order Number 1,
Headquarters, U.S. Army Military District of Washington, Fort Lesley
J. McNair, District of Columbia, dated 11 February 2013, in
accordance with Article 25(d)(2) and R.C.M. Uniform Code
of Military Justice, on 26 June 2013.]

OF

04015

COURT IAL
CONVENING

Conn?Martial Com-'ening Order 3 was the last ot?its Series for EDI 3

DEPARTMENT OF THE
United States Army Military District of
Fort Lesley McNair, DC 20319-5053

CON ORDER 1 February 2013
N1 UMBER

l?Jrsuant to authority contained in paragraph 1, General Order Number 3. Headquarters. Department of
tl?e Army, dated 19 January 1981.11 general court-martial is hereby convened. It may try such persons as
may properly be brought before it and shall meet at Fort Lesley J. McNair. DC. 30319. unless odicrwise
directed. The court-martial will be constituted as follows;



lr the event that the accused submits a request pursuant to Article 236:]. that the court he
composed ofnt least one-third enlisted members. the court will be composed ofthe Following of?cer and
enlisted members:



All cases referred to the general court-martial convened by Court-Martial Converting Order number 2 this
Headquarters. dated 33 February 2011. in which the court has not yet been assembled. are hereby referred
tr- the general court-martial convened by this order.

B?r? COMMAND OF MAJOR GENERAL LINNINGTON:

i?

.I. BOSTON. JR
in?ach Individual Concerned MAJ. Jr'k
"Each cop}; Record of Trial Chief. h?lilitaq' Justice

--Reeord Set
Reference Set



DEPARTMENT OF THE ARMY
United States Army Military District of Washington
Fort Lesley J. McNair. DC 20319-5053

COURT-MARTIAL CONVENING ORDEI 32 February 2012
NUMBER 2

Pursuant to authorin contained in paragraph I,Gcneral Order Number 3. Headquarters. Department of
the Army. dated l0 Januar} a general eoun~mar1ia is hereby convened. It may tr} such persons as
may properly be brought before it and shall meet at Fort Lcstey McNair. DC. 203 0. unless otherwise
directed. The court-martial will be constituted as follows:



in the event that the accused submits a request pursuant to Article 25(0). that the court he
composed ofat least one-third enlisted members. the court will be composed ofthc follou Eng of?cer and
enlisted members:



All cases referred to the general court?martial convened by Court-Martial Com-citing Order number I this
Headquarters. dated 2 liebrttar} ZOI l. in 1which the court has not yet [teen assembled. are hereby referred
to the general court-martial convened by this order.

BY OF MAJOR LINNINGTON:



DISTRIBUTION J. BOSTON. JR.
l-Each individual MAJ. JA
l?tiach copy Record of Trial Chief. Military Justice

l- Record Set
I- Reference ?Set

?v . A . ?i-r 1
Cnurt~Marual Lnnvemng Order was the lasl ol 1ts Series: for ZUIO

OF THE ARMY
L'uilcd States Army Kismet of
McNar, DC EDEN-3058

mun 1 I'm CONVENINGORDER remap. mu
.?ul 'lklliljri

'7?ur5uuni contained in pardglaph I. General Urdu; Number Headquarters. Dupartmeni Ol?
'ltc Ann}. datud i9 Januan 1931. a general cnurt-martial is; hereb} convened it may such persons as
may in: bruughl below it and shall meal at Fun leslc?rj McNair. DC, 2?33 '19. unless
{lira-uteri. The cum-martial will be clanstitutcd 35



in t'rc accused sub-min a request pursuant to Article 2551:); cnurl br-

mrnpurzcd ul?u: Imam onc-Unird cnlisrrd members, [hr cnun Will be composed nl't and
uni?ed members.



In t'm: general own-martial cnnx-cncd b3? CnurI-Mnrtial Cnm'ening Ordcr numbcr this:
Headquarters. dated 5. March in which :hc cuur'. new not yet been are herein} rcferrud to
general snuri-rrxarzlm c:m.cncd by ll?ll?

rilmhi-?l r. 3? hiMf?aP: SENSE-5. L.

ff
Bk?
[JlS'l RIHI: ASHDEN {El->4
Emu:

in". ion hum-.rr' 0' .l .
3 Cm
Sr".

i ?gut

DEPARTMENT OF THE ARMY
U.5. ARMY MILITARY DISTRICT OF WASHINGTON
10: THIRD AVENUE
a FORT LESLEY J. MCHAIR, Dc 20319-5031

ATTENTION or

2 6 JUN 2013



MEMORANDW FOR RECORD

SUBJECT: Adoption of Court-Martial Panel Members

1. I personally reviewed the panel members selected by my predecessor in command. I hereby
adopt these members as my own.

2. As the General Court-Martial Convening Authority for the MDW, I note that I personally and
carefully considered and selected to adopt each panel member using the Article UCMJ,
and ROM. I adopted panel members who are, in my judgment, best quali?ed for the
duty based on their age, education, training, experience, length of service, and judicial
temperament, and no other criteria. I did not exclude Soldiers of particular ranks, race, gender,
duty position, or any other factor for the deliberate, categorical, or systematic exclusion of
quali?ed persons for court-martial membership.

3. All members currently detailed to perform duties as a member of the general and special
court-martial panels will continue to do so in the same manner as directed by my predecessor in
command until I select new or additional panel members.

4 Encls REY S. BUCHANAN
1. Memorandum, Selection of CM Panel Major General, USA
Members. 11 Feb 13 Commanding
2. Spreadsheet, Selection of CM Members,
11 Feb 13

3. Memorandum, Noti?cation of Selection of
CM Member, 11 Feb 13
4. Memorandum for CM Nominees. 31 Oct 12

DEPARTMENT OF THE ARMY
us. MILITARY DISTRICT OF WASHINGTON
103 THIRD AVENUE
FORT LESLEY J. MOHAIR, Dc 20319-5013
To
v?



9 JUN 20?

MEMORANDUM FOR RECORD

SUBJECT: Adoption of Court-Martial Panel Members

I. I personally reviewed the panel members selected by my predecessor in command. I hereby
adopt these members as my own.

2. As the General Court-Martial Convening Authority for the note that I personally and
carefully considered and selected to adopt each panel member using the Article UCMJ.
and R.C.M. 502(A}(l}. I adopted panel members who are, in my judgment, best qualified for the
duty based on their age, education, training, experience, length of service, andjudicial
temperament, and no other criteria. Idid not exclude Soldiers of particular ranks, race, gender,
duty position, or any other factor for the deliberate, categorical, or systematic exclusion of
qualified persons for court-martial membership.

3. All members currently detailed to perform duties as a member of the general and special
court-martial panels will continue to do so in the same manner as directed by my predecessor in

command until I selec1 new or additional panel members.

may




4 Encls MICHAEL S. LIN
l. Memorandum, Selection of CM Panel Major General,
Members, 2? Jan 11 Commanding
2. Spreadsheet, Selection of CM Members,
27? Ian I i

3. Memorandum, Notification ofSelection of
CM Member, Jan I
4. Memorandum for CM Nominees, 27 Oct 10

04021

MJ: Please be seated. This Article 39(a) session is called

to order.


Your Honor, this court?martial was originally

convened by Court?Martial Convening Order Number l, Headquarters,
United States Army Military District of Washington, [Fort Lesley J.

McNair], District of Columbia, dated 2 February 2011; as superseded

by Court?Martial Convening Order Number 2, Headquarters, United

States Army Military District of Washington, [Fort Lesley J.

McNair], District of Columbia, dated 22 February 2012, copies of

which have been furnished to the Military Judge, counsel, and the
accused and which will be inserted at this point in the record.

The charges have been properly referred to this court for
trial and were served on the

accused on 3 February 2012. The 5?day

statutory waiting period has expired.

The prosecution is ready to proceed with the arraignment
in the case of United States V. Private First Class Bradley
Awnning.

The accused and the following persons detailed to this
court are present:

COLONEL DENISE LIND, MILITARY

CAPTAIN ASHDEN FEIN, TRIAL

CAPTAIN JOE MDRROW, ASSISTANT TRIAL

CAPTAIN ANGEL OVERGAARD, ASSISTANT TRIAL

MR. DAVID COOMBS, CIVILIAN DEFENSE

04022

MAJOR MATTHEW KEMKES, DEFENSE and
CAPTAIN PAUL ASSISTANT DEFENSE COUNSEL.
The members and the following persons detailed to this
court are absent:
CAPTAIN HUNTER WHYTE, ASSISTANT TRIAL
Mrs. Patricia Williams[?Butler] has been detailed
reporter for this court?martial and has been previously sworn.
All members of the prosecution have been detailed to this

court?martial by the Staff Judge Advocate, Colonel Corey Bradley,

U.S. Army Military District of Washington. All members of the
prosecution are qualified and certified under Article 27(b) and
sworn under Article 42(a), Uniform Code of Military Justice. No

member of the prosecution has acted in any manner that might tend
to disqualify us in this court?martial.
MJ: All right.

Thank you, Captain Fein.

PFC Manning, I am going to talk to you now about your
rights to counsel. You have the right to be represented by Major
Kemkes and Captain Bouchard, who are your detailed military defense
counsel. They are lawyers certified by The Army Judge Advocate
General as qualified to act as your defense counsel, and they are
members of the United States Army?s Trial Defense Service. Their
services are provided at no expense to you.

MJ: You also have the right to be represented by a military

counsel of your own choosing, provided that the counsel you request

04023

is reasonably available. If you are represented by military counsel

of your own selection, then your detailed defense counsel would

normally be excused. However, you could request that your detailed
defense counsel continue to represent you but that request would not
have to be granted.
Do you understand that?
ACC:

Yes, Your Honor.

MJ: In addition to your military defense counsel, you have the
right to be represented by a civilian counsel at no expense to the
government. Civilian counsel may represent you along with your
military defense counsel, or you could excuse your military counsel
and be represented only by your civilian counsel.

Do you understand that?
ACC: Yes, ma?am.
MJ: Do you have any questions about your rights to counsel?
ACC: No, Your Honor.
MJ: By whom do you wish to be represented?
ACC: I?ll have Mr.

Coombs, Major Kemkes and Captain Bouchard,

as my counsel, ma?am. Your Honor.
MJ: Defense counsel, please announce the detailing

qualifications of the detailed defense team.

Ma?am, all detailed members of the defense team have

been detailed to this court?martial by Lieutenant Colonel Deidra

All

Fleming, Regional Defense Counsel of the Atlantic Region.

04024

detailed members of the defense are qualified and certified under

Article 27(b), and sworn under Article 42(a), Uniform Code of

Military Justice. No member of the defense has acted in any manner
which might tend to disqualify us in this court?martial.

MJ: All right. Thank you.

Mr. Coombs, please state your qualifications for the

record, please.

Yes, ma'am. I am an attorney licensed to

practice law in the states of California, Massachusetts, and the

District of Columbia. I am a member in good standing of the bars of
each of those states. I have not acted in any manner which might
tend to disqualify me in this court?martial.

MJ: Mr. Coombs, do you swear or affirm that you will
faithfully perform the duties of civilian defense counsel in the
case now in hearing, so help you God?
So help me God.
MJ: Please be seated.

I have been properly certified, sworn, and detailed myself

to this court?martial. I am not aware of any matter that might be a
ground for challenge against me.
MJ: Does either side desire to question or challenge me,
Captain Fein?


No, Your Honor.

MJ: Mr. Coombs?

04025

Ma?am, I would have a few questions.
MJ: Proceed.


Ma?am, could you indicate what prior

knowledge, if any, you had about this case before detailing yourself
as Military Judge?

MJ: I knew there was a case. I knew the case involved
classified information and that the case involved someone named PFC
that is about it.

Manning. Other than that,

So did you read or view anything in the
media that discussed the case in any detail?

MJ: Not in the media. No.

What initial impressions did you have about
the case after hearing about it?

MJ: None.

Did you have any discussions with anyone;
friends or associates about the case prior to detailing yourself to
this case?

MJ: Not that I can recall.

So based upon your responses, I take it you
haven?t formed any opinions about the nature of this case?

MJ: I have formed no opinion about the nature of this case.



Also, have you formed any opinion about the

nature of the leaks in this case; or the alleged leaks?

MJ: No.

04026

Previously, ma?am, you served as an
assistant professor of National Security Studies at the National
Defense University?

MJ: Yes.
ma?am?

When was this,

MJ: I was a student there in 2006 to 2007; and I taught there
from 2007 to 2008.

What general topics did you teach?
MJ: National Security Strategy, and I also taught at the
Industrial College of the Armed Forces; and it is divided into
groups called Industry Studies. I was with the agribusiness
faculty. I taught an elective called Law of Armed Conflict with
another professor. I was part of a think tank seminar; part of the
faculty for that. I don?t remember the exact name of the course,
and I was co?faculty for an Asian or Australian?New Zealand regional
study.

Ma?am, either in that position or in other
duty positions that you?ve held, have you ever dealt with classified
information?
two

MJ: I have dealt with classified information in, at least,

cases that I can recall as the Military Judge. I am sure there had
to be some classified information at some point, somewhere during my
tenure either as a student or a professor at the Industrial College

of the Armed Forces, but particulars I can?t recall.

04027

Okay, ma?am. During your time either at

the college or as a Military Judge, have you received any training
on classified information?

MJ: Through classes to become certified as a Military Judge.
Part of the Military Judge?s Course involves classified information.
I have had a lot of military justice related jobs over the years, so
they have short course classified information courses at The Army
Judge Advocate General School. I don?t remember if I actually went
to one for a week long, even if they had that, but in other courses
that I have attended at The Army Judge Advocate General School, I
have received training on classified material.



And on that point, I taught classified

evidence at The Army?s Judge Advocate General School. So during the
period of 2007 to 2009, did you ever come for any of the short
courses dealing with that?

I did come

MJ: 2007 through 2008, no. In 2008 through 2009,

for a week long course. I did go for new developments related
courses in Criminal Law.


All right. So I would have taught that.

But not to say that I am memorable for you, but do you recall me
teaching any class that you attended, ma?am.
MJ: I think you might have. Your face looked familiar to me

when I met with you earlier today.

04028

And the only follow up on that is,

obviously, any class I taught based upon that, any impressions of me
as civilian counsel?

MJ: I don?t remember the classes that much.
Good.

All right, ma?am.

Well, thank you, ma?am. Based upon your responses the
defense does not have any additional questions nor do we have a
challenge for cause.

MJ: All right. Any follow up from the government based on his
questions?

No, Your Honor.

MJ: Counsel for both sides appears to have the requisite
qualifications, and all personnel required to be sworn have been
sworn.

Trial counsel will announce the general nature of the
charges in this case.

Your Honor, the general nature of the charges in
this case are:

One specification of violating Article 104 of the UCMJ,
aiding the enemy;
One specification of violating Article 134 of the UCMJ,

for wrongfully and wantonly causing to be published on the internet

intelligence belonging to the United States government, having

04029

knowledge that the intelligence published on the internet is
accessible to the enemy;

Eight specifications of violating Article l34 of
the Uniform Code of Military Justice, for having unauthorized
possession of information relating to the national defense and
willfully communicating, delivering, transmitting, or causing to be
communicated, delivered or transmitted to a person not entitled to
receive it in violation of 18 U.S.C. 793(e);

Two specifications of violating Article l34 of the UCMJ,
for knowingly exceeding authorized access on a secret internet
protocol router network computer by means of such conduct having
obtained information that had been determined by the United States
government to require protection against unauthorized disclosure for
reasons of national defense or foreign relations and willfully
communicating, delivering, transmitting, or causing to be
communicated, delivered or transmitted the said information to a
person not entitled to receive it in violation of l8 U.S.C.
l030(a)(l);

Five specifications of violating Article l34 of
the UCMJ, for stealing or willingly or knowingly converting another a record or thing of value to the United
States or a department or agency thereof of a value of more than

dollars in violation of 18 U.S.C. 641; and

l0

04030

Five specifications of violating Article 92 of

the UCMJ, for attempting to bypass security on an information system
in violation of Army Regulation 25?2, adding unauthorized software
on two different occasions to an information system in violation of
Army Regulation 25?2, unauthorized use of an information system in
violation of Army Regulation 25?2 and wrongful storage of classified
information in violation of Army Regulation 380?5.
The charges were preferred by Lieutenant Colonel Cameron

Leiker and forwarded with recommendations as to disposition by
Colonel Carl Coffman, Jr. Additionally, the charges were
investigated by Lieutenant Colonel Paul Almanza.

MJ: All right.

PFC Manning, I am going to talk to you now

about your forum rights. You have the right to be tried by a court
consisting of at least five officer members. That is a court
composed of commissioned and/or warrant officers. Also if you
request it, you could be tried by a court consisting of at least
one?third enlisted members, but none of those enlisted members could
come from your unit. You are also advised that no member of the
court can be junior in rank to you.
Do you understand what I've said so far?
ACC:

Yes, Your Honor.

MJ: Now, if you're tried by court members, the members will

vote by secret written ballot, and two?thirds of the members must

agree before you could be found guilty of any offense.

ll

04031

MJ: If you are found guilty, then two?thirds must also agree

in voting on a sentence, and if that sentence included confinement
for more than l0 years, then three?fourths of the members would also
have to agree.
You also may request to be tried by Military Judge alone.
If your request is approved, there will be no court members, and the
Military Judge alone will decide whether you are guilty; and if you
are found guilty, the Military Judge alone would determine your
sentence.
Do you understand the difference between trial before
members and trial before Military Judge alone?
ACC: Yes, Your Honor.
MJ: By what type of court do you wish to be tried?
Your Honor, at this time PFC Manning would
defer a forum selection?
MJ: All right. That request to defer forum selection is
granted.
The accused will now be arraigned.
All parties to the trial have been furnished
with a copy of the charges. Does the accused want them read?

Ma?am, PFC Manning will waive reading.
MJ: The reading may be omitted.

CHARGE SHEET FOLLOWS AND IS NOT A NUMBERED

l2

04032

CHARGE SHEETS



CHARGE SHEET































pd:
CHARGE II

SPECIFICATION 1:
did,

accessible to the enemy,

the armed forces.

did, at or near Contingency Operating Station Hammer,
1 November 2009 and on or about 2? May 2010, without proper authority,
knowingly give intelligence to the enemy,

In that Private First Class Bradley E. Manning,
at or near Contingency Operating Station Hammer,
1 November 2009 and on or about 27 May 2010, wrongfully and wantonly cause to
be published on the internet intelligence belonging to the United States
government, having knowledge that intelligence published on the internet is
such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring discredit upon

I. PERSONAL DATA
1. NAME OF First. 2. SEN 3. GRADE OR RANK 4. PAY GRADE
MANNING, Bradley s. PFC E-3
5. UNIT 0R ORGANIZATION 6. CURRENT SERVICE
Headquarters and Headquarters Company,
0-8. Army Garrison, Joint Base Myer?Henderson Hall
Fort Myer, Virginia 22211 2 Oct 0? 4 years
I. PAY PER MONTH s. NATURE OF RESTRAINT OF 9.
ACCUSED
3. BASIC h. SEAIFOREIGN DUTY c. TOTAL
$1,950.00 None $1,950.00 Ere-Trial Confinement 29 May 10
Legs-5Ath- II. CHARGES AND SPECIFICATIONS
10. I: VIOLATION or THE UCMJ, ARTICLE Ice.
THE SPECIFICATION: In that Private First Class Bradley E. Manning, U.S. Army,

Iraq, between on or about

through indirect means.

VIOLATION OF THE UCMJ, ARTICLE 134.

U.S. Army,

Iraq, between on or about

(See Continuation Sheet)











Ill. PREFERRAL
11a. NAME oF First. Mil b. GRADE e. ORGANIZATION or accuses
Leiker, Cameron MAR 20H





ASHDEN FEIN
Typed Name of Oi?csr

aboVe named accuser this 9+ day of

AFFIDAVIT: Before me. the undersigned, authorized by law to administer oaths in cases ofthis character, personally appeared the
. 20] l, and signed the foregoing charges and Speci?cations

under oath that heishe is a person subject to the Uniform Code of Military Justice and that heishe either has personal knowledge of
or has investigated the matters set Forth therein and that the same are true to the best of'hisiher knowledge and belief.

MDW 05 A
Organization of minor







0:3' Trial Counsel
Grade O??iciai Caper:in in Administer Oath
{See R. C. M. eerie} - must be a commissioned of?ceri

Signature



DD FORM 458, MAY 2000

PREVIOUS EDITION iS OBSOLETE.



id .I















?3 aususwme

0n 2011. the accused was informed of the charges against himiher and ofihe nameis) of

The accuseri known to me {See R. C. M. 305' (See Fit. C. M. 303 if noti?cation cannot be made.

CAMERON A . LEIKER HQ CMD EN, USA
Typed Name at immediate Commander Organization of immediate Commander
A 5
Signature
IV. RECEIPT BY SUMMARY COURT-MARTIAL CONVENING AUTHORITY

13.

The sworn charges were received at hours. Mm? 2011 at HQ CMD EN 1 USA



Designation of Command or



Officer Exercising Summary Court-Martiai Jurisdiction (See CM. #03}






















CAMERON A. LEIKER Commanding
Typed Name of Officer Otficiai Capacity of Officer Signing
A O- 5

It. SERVICE OF CHARGES

14a DESIGNATION OF COMMAND OF b. PLACE DATE
Headquarters, U.S. Army Military 20120203
District of Washinqton Fort McNair. DC

Referred forlriaitoihe General Court-martial convened by Court_Martial Convening Order



Number 1, this headquarters, dated































2 February ZWI None.
Br Command 0* MG MICHAEL a LINNINGTON
Comm and or Order
LOUIS J. BOSTON JR. Chief, Militay'Justice
Typed Name of D??icer Of?ciai Capacity of Of?cer Signing
4
Grade
-j,I -
Signature
(caused to be) sewed a copy hereof on Wine above named accused.

A I 3
Typedya?a of )[iei Caunsei Gracie or Rank of Triai Coonsei
I
Mignaturev



FOOTNOTES: i When an appropriate commander signs pereonaiiy. inappiicabie words are atn'ciren.
2 See RC. M. 601(9) concerning instructions. it none. so state.







DD FORM 458 MAY 2000

CONTINUATION FORM 458, MANNING, Bradley?s? -

Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer-Henderson Hall, Fort Myer, Virginia 22211

Item 10 (Cont'd}:

SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 15 February 2010 and on or about 5 April 2010,
having unauthorized possession of information relating to the national
defense, to wit: a video file named ?12 JUL 07 CZ ENGAGEMENT ZONE 30
GC Anyone.avi", with reason to believe such information could be used
to the injury of the United States or to the advantage of any foreign
nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted, the said information, to a
person not entitled to receive it, in violation of 13 U.S. Code
Section 793(e), such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 22 March 2010 and on or about 26 March 2010,
having unauthorized possession of information relating to the national
defense, to wit: more than one classified memorandum produced by a
United States government intelligence agency, with reason to believe
such information could be used to the injury of the United States or
to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or
transmitted, the said information, to a person not entitled to receive
it, in violation of 18 U.S. Code Section 793{e), Such conduct being
prejudicial to good order and discipline in the armed forces and being
of a nature to bring discredit upon the armed forces.

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 5 January 2010,
steal, purloin, or knowingly convert another,
a record or thing of value of the United States or of a department or
agency thereof, to wit: the Combined Information Data Network
Exchange Iraq database containing more than 380,000 records belonging
to the United States government, of a value of more than $1,000, in
violation of 13 U.S. Code Section 541, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.

CONTINUATION sneer?15A FORM 453, MANNING,

Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer-Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 5: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 9 February 2010,
having unauthorized possession of information relating to the national
defense, to wit: more than twenty classified records from the
Combined Information Data Network Exchange Iraq database, with reason
to believe such information could be used to the injury of the United
States or to the advantage of any foreign nation, willfully
communicate, deliver, transmit, or cause to be communicated,
delivered, or transmitted, the said information, to a person not
entitled to receive it, in violation of 18 U.S. Code Section 793(e),
such conduct being prejudicial to good order and discipline in the
armed forces and being of a nature to bring discredit upon the armed
forces.

SPECIFICATION 6: In that Private First Class Bradley E. Manning, 0.5.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on Or about 8 January 2010,
steal, purloin, or knowingly convert another,
a record or thing of value of the United States or Of a department or
agency thereof, to wit: the Combined Information Data Network
Exchange Afghanistan database containing more than 90,000 records
belonging to the United States government, of a value of more than
$1,000, in violation of 18 U.S. Code Section 641, such conduct being
prejudicial to good order and discipline in the armed forces and being
of a nature to bring discredit upon the armed Ecrces.

SPECIFICATION 7: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 9 February 2010,
having unauthorized possession of information relating to the national
defense, to wit: more than twenty classified records from the
Combined Information Data Network Exchange Afghanistan database, with
reason to believe such information could be used to the injury of the
United States or to the advantage of any foreign nation, willfully
communicate, deliver, transmit, or cause to be communicated,
delivered, or transmitted, the said information, to a person not
entitled to receive it, in violation of 18 U.S. Code Section 793(e),
such conduct being prejudicial to good order and discipline in the
armed forces and being of a nature to bring discredit upon the armed
forces,

CONTINUATION FORM 453, MANNING, arad1ey?t., -

Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer?Henderson Hall, Fort Myer, Virginia 22211



SPECIFICATION S: In that Private First Class Bradley S. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq, on
or about 8 March 2010, steal, purloin, or knowingly convert another, a record or thing of value of the United States
or of a department or agency thereof, to wit: a United States
Southern Command database containing more than 700 records belonging
to the United States government, of a value of more than $1,000, in
violation of 18 U.S. Code Section 641, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.

SPECIFICATION 9: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 8 March 2010 and on or about 2? May 2010, having
unauthorized possession of information relating to the national
defense, to wit: more than three classified records from a United
States Southern Command database, with reason to believe such
information could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted, the
said information, to a person not entitled to receive it, in violation
of 18 U.S. Code Section 793(e}, such conduct being prejudicial to good
order and discipline in the armed forces and being of a nature to
bring discredit upon the armed forces.

SPECIFICATION 10: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 April 2010 and on or about 27 May 2010, having
unauthorized possession of information relating to the national
defense, to wit: more than five classified records relating to a
military operation in Farah Province, Afghanistan occurring on or
about 4 May 2009, with reason to believe such information could be
used to the injury of the United States or to the advantage of any
foreign nation, willfully communicate, deliver, transmit, or cause to
be communicated, delivered, or transmitted, the said information, to a
person not entitled to receive it, in violation of 18 0.8. Code
Section 793(e), such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.

CONTINUATION FORM 458, MANNING, Bradlef-E.

Headquarters and Headquarters Company, U.S. Army Garrison, Joint Ease
Myer-Henderson Hall, Fort Myer, Virginia 22211



SPECIFICATION 11: In that Private First Class Bradley E. Manning,
U-S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 1 November 2009 and on or about 8 January 2010,
having unauthorized possession of information relating to the national
defense, to wit: a file named Phx.zip" containing a video named
PAX-wmv?, with reason to believe such information could be used
to the injury of the United States or to the advantage of any foreign
nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted, the said information, to a
person not entitled to receive it, in violation of 18 U.S- Code
Section I93ie), such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.

SPECIFICATION 12: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 28 March 2010 and on or about 4 May 2010, steal,
purloin, or knowingly convert another, a
record or thing of value of the United States or of a department or
agency thereof, to wit: the Department of State Net-Centric Diplomacy
database containing more than 250,000 records belonging to the United
States government, of a value of more than $1,000, in violation of 18
U.S. Code Section 641, such conduct being prejudicial to good order
and discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.

SPECIFICATION 13: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 28 March 2010 and on or about 2? May 2010, having
knowingly exceeded authorized access on a Secret Internet Protocol
Router Network computer, and by means of such conduct having obtained
information that has been determined by the United States government
pursuant to an Executive Order or statute to require protection
against unauthorized disclosure for reasons of national defense or
foreign relations, to wit: more than seventy-five classified United
States Department of State cables, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted the
said information, to a person not entitled to receive it, with reason
to believe that such information so obtained could be used to the
injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section 1030(a)(1), such conduct
being prejudicial to good order and discipline in the armed forces and
being of a nature to bring discredit upon the armed forces.

CONTINUATION FORM 458, MANNING, Bradley?s,
Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer-Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 14: In that Private First Class Bradley E. Manning,
U.S- Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 15 February 2010 and on or about 18 February 2010,
having knowingly exceeded authorized access on a Secret Internet
Protocol Router Network computer, and by means of such conduct having
obtained information that has been determined by the United States
government pursuant to an Executive Order or statute to require
protection against unauthorized disclosure for reasons of national
defense or foreign relations, to wit: a classified Department of
State cable titled "Reykjavik-13", willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted the
said information, to a person not entitled to receive it, with reason
to believe that such information so obtained could be used to the
injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section 1030Ea){1), such conduct
being prejudicial to good order and discipline in the armed forces and
being of a nature to bring discredit upon the armed forces.

SPECIFICATION 15: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 15 February 2010 and on or about 15 March 2010,
having unauthorized possession of information relating to the national
defense, to wit: a classified record produced by a United States Army
intelligence organization, dated 18 March 2008, with reason to believe
such information could be used to the injury of the United States or
to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or
transmitted, the said information, to a person not entitled to receive
it, in violation of 18 U.S. Code Section 793(e}, such conduct being
prejudicial to good order and discipline in the armed forces and being
of a nature to bring discredit upon the armed forces.

SPECIFICATION 16: In that Private First Class Bradley E. Manning,
U.s. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 May 2010 and on or about 27 May 2010, steel,
purloin, or knowingly convert another, a
record or thing of value of the United States or of a department or
agency thereof, to wit: the United States Forces - Iraq Microsoft
Outlook SharePoint Exchange Server global address list belonging to
the United States government, of a value of more than $1,000, in
violation of 18 U-S. Code Section 641, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.

CONTINUATION FORM 458, MANNING, Bradley??w?
Headquarters and Headquarters Company, 0.5. Army Garrison, Joint Ease
Myer-Henderson Hall, Fort Myer, Virginia 22211

1:13554?1'
asses-rem CHARGE VIOLATION OF THE UCMJ. ARTICLE 92.

SPECIFICATION 1: In that Private First Class Bradley E. Manning, 0.5.
Army, did, at or near Contingency Operating StatiOn Hammer, Iraq,
between on or about 1 November 2009 and on or about 8 March 2010,
violate a lawful general regulation, to wit: paragraph
Army Regulation 25-2, dated 24 October 2002, by attempting to bypass
network or information system security mechanisms.

SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 February 2010 and on or about 3 April 2010,
violate a lawful general regulation, to wit: paragraph
Army Regulation 25?2, dated 24 October 2007, by adding unauthorized
software to a Secret Internet Protocol Router Network computer.

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating StatiOn Hammer, Iraq, on
or about 4 May 2010, violate a lawful general regulation, to wit:
paragraph Army Regulation 25-2, dated 2% October 2007, by
adding unauthorized software to a Secret Internet Protocol ROuter
Network computer. -

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 May 2010 and on or about 27 May 2010, violate a
lawful general regulation, to wit: paragraph Army
Regulation 25-2, dated 24 October 200?, by using an information system
in a manner other than its intended purpose.

SPECIFICATION 5: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq, on
divers occasions between on or about 1 November 2009 and on or about
27 May 2010, violate a lawful general regulation, to wit: paragraph
7-4, Army Regulation 380-5, dated 29 September 2000, by wrongfully
storing classified information.







I. PERSONAL DATA





























did,

SPECIFI CATIDN 1:

did, at or near Contingency Operating Station Hammer,
1 November 2009 and on or about 2? May 2010, without proper authority,
knowingly give intelligence to the enemy,

he:
CHARGE II

In that Private First Class Bradley E. Manning,
at or near Contingency Operating Station Hammer,
1 November 2009 and on or about 27 May 2010, wrongfully and wantonly cause to
be published on the internet intelligence belonging to the United States
government, having knowledge that intelligence published on the internet is
accessible to the enemy, such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring discredit upon
the armed forces.

1. NAME OF First. Mt) 2. SEN 3. GRADE os RANK at. PAY GRADE
MANNING, Bradley E. PFC E-3
5 6.CURRENTSERWCE
Headquarters and Headquarters Company, UIERM
U.S. Army Garrison, Joint Base Myer?Henderson Hall
Fort Myer, Virginia 22211 2 Oct 0? 4 years
PAY PER MONTH . ?a NATURE or HESTRAINT DF 9.
ag?avl3 $0 ACCUSED
a. snare t" a. SENFOHEIGN DUTY e. TOTAL
?llets-025A inhuman; I . same l?
. None . Pre-Trial Confinement 29?May?eer-
?mean II. CHARGES AND
10. I: VIOLATION or THE UCMJ, ARTICLE 104.
THE SPECIFICATION: In that Private First Class Bradley E. Manning, U.S. Army,

Iraq, between on or about

through indirect means.

VIOLATION OF THE UCMJ, ARTICLE 134.

U.S. Army,

Iraq, between on or about

(See Continuation Sheet}



Ill. PREFERRAL



Leiker,

11a. NAME OF ACCUSEFE (Last, First, MU
Cameron A.

b.snnoe
0-5

c. ORGANIZATION OF ACCUSER
HQ CMD EN. USA







a.


13. DATE

1 MAR 20?





AFFIDAVIT: Before me, the undersigned, authorized by law to administer oaths in cases ofthis character, personally appeared the
above named accuser this day of (New ch.
under oath that heishe is a person subject to the Uniform Code of Military Justice and that helshe either has personal knowledge of
or has investigated the matters set forth therein and that the same are true to the best of hisl'hcr knowledge and belief.

. 20] I. and signed the fercgoing charges and speci?cations



ASHDEN FEIN MDW OSJA
Typed Name of O?icsr Organization of 0%
(0:3 Trial Counsel





Grad
t? i


V'Signature

Of?cial Capacity to Administer Oath
(See ROM. 30?{b] must be a commissioned of?cer}





DD FORM 458, MAY 2000

PREVIOUS EDITION IS OBSOLETE.





12.

abu??rnss
On 2011. the accused was informed ofthe charges against himrher and DI the name(s} of
The accuser: known to me {See ROM. 308 (See ROM. 308 if noti?cation cannei be made.)







CAMERON USA
Typed Name of Immediate Commander Organization of immediare Commander
A - 5
Signature



W. RECEIPT BY SUMMARY COURT-MARTIAL CDNVENING AUTHORITY



13

The sworn charges were received at 3? HQ CMD EN, USA



Designation of Command or



Of?cer Exercising Summary Count?Martial {See M. 403.1
FORJHE



CAMERON A . LEI KER Commanding
Typed Name of Officer Of?ciai Capacity of Of?cer Signing

I.





V. REFERRAL: SERVICE OF CHARGES







Ma. DESIGNATFON OF COMMAND OF b. PLACE 0. DATE
Headquarters, U.S. Army Military 20120203
District of Washinqton Fort McNair. DC



Referred iortrialto the General Coun-maniaiconvenedby Court_MaI?tial convening Order



Number 1, this headquarters, dated























2 February 25? .5ubjecttothe following inslnimicrna:2 None .

Bi Command 0* MG MICHAEL a LINNINGTON
Commend or Order
LOUIS J. BOSTON JR- Chief, Militay Justice
Typed Name of Of?cer Oir'iciei Capaciiy 01? Officer Signing
4
Grade
Azimun
7 Signature I
1 5.
On 3 Feb ham-r 29-1-4" IL I {caused 1c: be} served a copy hereof on Mine above named accused.

0?3
Tyneyr?e or Counsei Gracie or Rank or Tn'ai Counsei




FOOTNOTES: 1 When an appropriate commander signs persunaiiy. inappiicabie words are stricken.
2? See OM. 601m) concerning insiruciinns. if none, an stare.







DD FORM 453 MAY 2000

lb?uLiE
a 5
a was

CONTINUATION SHEET, DA FORM 453, MANNING, Bradley E.
Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer-Henderson Hall, Fort Myer, Virginia 22211

Item 10 {Cont'd):
SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 15 February 2010 and on or about 5 April 2010,
having unauthorized possession of information relating to the national
defense, to wit: a video file named ?12 JUL a? C2 ENGAGEMENT ZONE 30
GC Anyone.avi", with reason to believe such information could be used
to the injury of the United States or to the advantage of any foreign
nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted, the said information, to a
person not entitled to receive it, in violation of 18 U.S. Code
Section 193{e}, such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 22 March 2010 and on or about 26 March 2010,
having unauthorized possession of information relating to the national
defense, to wit: more than one classified memorandum produced by a
United States government intelligence agency, with reason to believe
such information could be used to the injury of the United States or
to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or
transmitted, the said information, to a person not entitled to receive
it, in violation of 18 U.S. Code Section 793(e), such conduct being
prejudicial to good order and discipline in the armed forces and being
of a nature to bring discredit upon the armed forces-

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S-
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 5 January 2010,
steal, purloin, or knowingly convert another,
a record or thing_of value of the United States or of a department or



agency the Combined Information Data Network
Exchange Iraq database containing more than 380,000 records belonging
to the United States government, of a value of more than $1,900, in
violation of 13 U.S. Code Section 641, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces-

f?aejdbl3


a par/Mr:

if

CONTINUATION SHEET, DA FORM 453, MANNING, Bradley 15.,
Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base
Myer?Henderson Hall, Fort Myer, Virginia 22211



if?
SPECIFICATION 5: In that Private First Class Bradley E. Manning, 0.3.
Army, did, at or near Contingency Operating Station Hammer, aj'or nenr?
between on or about 31 December 2009 and on or about 9 February 2010, ?bLkuine?
having unauthorized possession of information relating to the national
defense, to wit: more than twenty classified records from the ?mn?lanig
Combined Information Data Network Exchange Iraq database, with reason
to believe such information could be used to the injury of the United
States or to the advantage of any foreign nation, willfully
communicate, deliver, transmit, or cause to be communicated,
delivered, or transmitted, the said information, to a person not
entitled to receive it, in violation of 18 U.S. Code Section 793(e},
such conduct being prejudicial to good order and discipline in the
armed forces and being of a nature to bring discredit upon the armed
forces.

SPECIFICATION 6: In that Private First Class Bradley E- Manning, 0.5.
Army, did, at Dr near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 8 January 2010,
steal, purloin, or knowingly convert another,
a record or thing of value of the United States or of a department or
agency thereof, the Combined Information Data Network
Exchange Afghanistan database containing more than 90,000 records
belonging to the United States government, of a value of more than
$1,000, in violation of 18 U-s. Code Section 541, such conduct being
prejudicial to good order and discipline in the armed.forces and being
of a nature to bring discredit upon the armed forces.



AL

waif"
SPECIFICATION 7: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq, a+or near
between on or about 31 December 2009 and on or about 9 February 2010, gb?kulueu
having unauthorized possession of intermation relating to the national
defense, to wit: more than twenty classified records from the (nam??mt
Combined Information Data Network Exchange Afghanistan database, with
reason to believe such information could be used to the injury of the
United States or to the advantage of any foreign nation, willfully
communicate, deliver, transmit, or cause to be communicated,
delivered, or transmitted, the said information, to a person not
entitled to receive it, in violation of 18 U.S. Code Section 793(e},
such conduct being prejudicial to good order and discipline in the
armed forces and being of a nature to bring discredit upon the armed
forces.

CONTINUATION SHEET, DA FORM 458, MANNING, Bradley 13.,
Headquarters and Headquarters Company, U-S- Army Garrison, Joint Base
Myer?Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 8: In that Private First Class Bradley E. Manning, 0.5.
Army, did, at or near Contingency Operating Station Hammer, Iraq, on
or about 8 March 2010, steal, purloin, or knowingly convert another, a record or thing of value of the united States
or of a department or agency thereof, to wit: a United States
Southern Command database containing more than 700 records belonging
to the United States government, of a value of more than $1,000, in
violation of 18 0,3- Code Section 641, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.

SPECIFICATION-9: In that Private First Class Bradley E. Manning, U-S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 8 March 2010 and on or about 2? May 2010, having
unauthorized possession of information relating to the national
defense, to wit: more than three classified records from a United
States Southern Command database, with reason to believe such
information could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted, the
said information, to a person not entitled to receive it, in violation
of 18 0.8. Code Section 793(e}, such conduct being prejudicial to good
order and discipline in the armed forces and being of a nature to
bring discredit upon the armed forces.

SPECIFICRTION 10: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about ll April 2010 and on or about 27 May 2010, having
unauthorized possession of information relating to the national
defense, to wit: more than five classified records relating to a
military operation in Farah Province, Afghanistan occurring on or
about 4 May 2009, with reason to believe such information could be
used to the injury of the United States or to the advantage of any
foreign nation, willfully communicate, deliver, transmit, or cause to
be communicated, delivered, or transmitted, the said information, to a
person not entitled to receive it, in violation of 18 U.S. Code
Section 793(e), such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.

CONTINUATION SHEET, DA FORM 453, MANNING, Bradley E.,
- Headquarters and Headquarters Company, U-S- Army Garrison, Joint Base
Myer-Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 11: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 1 November 2009 and on or about 3 January 2010,
having unauthorized possession of information relating to the national
defense, to wit: a file named PAK.zip" containing a video named
PAx.wmv?, with reason to believe such information could be used
to_the injury of the United States or to the advantage of any foreign
nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted, the said information, to a
person not entitled to receive it, in violation of 18 U.S. Code
Section 793(e}, such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring
discredit upon the armed forces-

SPECIFICATION 12: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 28 March 2010 and on or about 4 May 2010, steal,
purloin, or knowingly convert another, a
record or thing of value of the United States or of a department or
agency thereof, to wit: the Department of State Net-Centric Diplomacy
database containing more than 250,000 records belonging to the United
States government, of a value of more than $1,000, in violation of is
U.S. Code Section 641, such conduct being prejudicial to good order
and discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.

SPECIFICATION 13: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 28 March 2010 and on or about 2? May 2010, having
knowingly exceeded authorised access on a Secret Internet Protocol
Router Network computer, and by means of such conduct having obtained
information that has been determined by the United States government
pursuant to an Executive Order or statute to require protection
against unauthorized disclosure for reasons of national defense or
foreign relations, to wit: more than seventy-five classified United
States Department of State cables, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted the
said information, to a person not entitled to receive it, with reason
to believe that such information so obtained could be used to the
injury of the united States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section 1030(alil), such conduct
being prejudicial to good order and discipline in the armed forces and
being of a nature to bring discredit upon the armed forces.

CONTINUATION SHEET, DA FORM 453, WING, Bradley 12.,
Headquarters and Headquarters Company, U.S. Army Garrison, ass

Myer-Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 14: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 15 February 2010 and on or about 18 February 2010,
having knowingly exceeded authorized access on a Secret Internet
Protocol Router Network computer, and by means of such conduct having
obtained information that has been determined by the United States
government pursuant to an Executive Order or statute to require
protection against unauthorized disclosure for reasons of national
defense or foreign relations, to wit: a classified Department of
State cable titled "Reykjavik?13", willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted the
said information, to a person not entitled to receive it, with reason
to believe that such information so obtained could be used to the
injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section such conduct
being prejudicial to good order and discipline in the armed forces and
being of a nature to bring discredit upon the armed forces.

SPECIFICATION 15: In that Private First Class Bradley S. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 15 February 2010 and on or about 15 March 2010,
having unauthorized possession of information relating to the national
defense, to wit: a classified record produced by a United States Army
intelligence organization, dated 18 March 2008, with reason to believe
such information could be used to the injury of the United States or
to the advantage of any foreign nation, willfully communicate,
deliver, transmit, or cause to be communicated, delivered, or
transmitted, the said information, to a person not entitled to receive
it, in violation of 18 U.S. Code Section 793(e), such conduct being
prejudicial to good order and discipline in the armed forces and being
of a nature to bring discredit upon the armed forces-

SPECIFICATION 16: In that Private First Class Bradley S. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
ijl3 between on or about 11 May 2010 and on or about 22 May 2010, steal,
?5?19 I purloin, or knowingly convert another, a
fopwf" record or thing of value of the United States or of a department or
agency thereof, toewfc: the United States Forces A Iraq Microsoft
Outlook SharePoint Exchange Server global address list belonging to
the United States government, of a value of more than $1,000, in
violation of 18 U.S. Code Section 641, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.



a far/7'09? 0

NN NONN 453, Nadia, N.
Headquarters and Headquarters Company, U.S- Army Garrison, oin ase
Myer?Henderson Hall, Fort Myer, Virginia 22211

$2.55wa
seem CHARGE VIOLATION or THE UCMJ, ARTICLE 92.

SPECIFICATION 1: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 1 November 2009 and on or about 8 March 2010,
violate a lawful general regulation, to wit: paragraph
Army Regulation 25-2, dated 24 October 200?, by attempting to bypass
network or information system security mechanisms.

SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 February 2010 and on or about 3 April 2010,
violate a lawful general regulation, to wit: paragraph
Army Regulation 25?2, dated 24 October 2007, by adding unauthorized
software to a Secret Internet Protocol Router Network computer.

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S-
Army, did, at or near Contingency Operating Station Hammer, Iraq, on
or about 4 May 2010, violate a lawful general regulation, to wit:
paragraph Army Regulation 25-2, dated 24 October 2007, by
adding unauthorized software to a Secret Internet Protocol Router
Network cemputer.

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 May 2010 and on or about 2? May 2010, violate a
lawful general regulation, to wit: paragraph Army
Regulation 25?2, dated 24 October 2007, by using an information system
in a manner other than its intended purpose.

SPECIFICATION S: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq, on
divers occasions between on or about 1 November 2009 and on or about
27 May 2010, violate a lawful general regulation, to wit: paragraph
2-4, Army Regulation 380?5, dated 29 September 2000, by wrongfully
storing classified information.

[3'1

04049

The charges are signed by Lieutenant Colonel

Cameron Leiker, a person subject to The Code as accuser, are
properly sworn to before a commissioned officer of the Armed Forces
authorized to administer oaths, and are properly referred to this
court for trial by Major General Michael Linnington, the Convening
Authority.

MJ: All right. Before I ask PFC Manning to enter a plea, I?d

like to go over a few things on the record and I would like counsel
to supplement what I?ve discussed.

Counsel and I held what we call an R.C.M. 802 conference.
We held it telephonically on the 8th of February 2012 after The
PFC

Court received the referral package from the government.

Manning, what an R.C.M. 802 conference is it?s where I meet with

counsel in chambers or sometimes on the telephone if we are all not
and other

in the same location to discuss scheduling, logistics,

such information that arises in cases. Now in this particular case,

in the military we have a process called an electronic docketing

request. When charges are referred, counsel for both sides advise

The Court on dates that they would like for arraignment, further

proceedings and potentially, the trial. The Court offered via email

several dates for potential arraignments. Counsel for both sides

agreed with today?s arraignment date and time.
Do both sides agree?

ma'am.

Yes,

l3

04050

Yes, Your Honor.

MJ: All right. So that is an excused period of delay for any
speedy trial purposes.
a number of

At the telephonic R.C.M. 802 conference,

issues were discussed. The United States requested that this trial
be conducted in Army Service Uniform and The Court agreed with that;
the defense had no objection.

The Court advised counsel for both sides to arrive at a
proposed trial schedule for The Court to look at and both sides have
provided The Court with that proposed trial schedule.

Do we have them with the court reporter ready to be
marked?



The defense does, Your Honor.

No, Your Honor.
MJ: All right. We will proceed on with what happened at the

R.C.M. 802 conferences via telephone and via email; and then what I
will do is take a short recess to make sure we have all of the
motions that should be filed today ready to go with the court
reporter.

Your Honor. I know one issue that we

Yes,

wanted to discuss was how to actually file them. On the order;

either order by submission or order by grouping, Your Honor.

l4

04051

MJ: During the telephonic R.C.M. 802 conference, the defense
counsel proposed they would be filing a Bill of Particulars, a
Motion to Compel Discovery and a Motion to Compel Depositions.
MJ: The government would respond to those by the 21st of
February. After the defense filed those motions, the government
advised The Court via email that they would need at least 3 weeks to
be able to respond to those filings. In an email dated the 15th of
February 2012, The Court advised the government that their request
for a continuance to respond to the defense?s Motion to Compel
Depositions was denied; and that the government would provide The
Court with its basic position in response to the defense?s Motion
for Bill of Particulars and Motion to Compel Discovery on 21
February as agreed upon in the telephonic R.C.M. 802 conference on 8
February.
Government, I have not received a Motion for a Continuance
or a filing with respect to the Bill of Particulars.
Ma?am, with that information you just said, the
government realized probably what happened is what was discussed in
We never received that email.

chambers. It was likely a day that

our email was down. We?ll have to go back and look, but that is
not??none of us have seen that email which is probably why we were
confused.



Your Honor, actually when the government

responded to the email in question on 21 February, they repeated

15

04052

their position that they had earlier stated on l5 February asking

for the delay. So the 2l February email where they, again, request

a minimum of 3 weeks, that email has within that your denial of
their request for an extension of time.
And we will look at that, ma?am.
MJ: Prior to coming on the record today, counsel and I also
met to go over those proposed trial schedules; and we have set
dates. They are not firm yet because the parties need to adjust and
make sure that we can??there will be no conflicts. But right now we
are looking at the l5th and l6th of March 2012. The days may vary a
little bit earlier in the week. That will be solidified next week.
But for scheduling purposes that is what we have arranged so far.
Now also during the period between referral and
arraignment when motions were filed there was a classification
spillage issue. Government, would you like to articulate that for
the record?
ma'am. When the defense filed their

Yes,

original set of motions, the United States recognized that of what
the United States would call spillage of potentially classified
information and took the immediate steps to remedy the spillage, to
control the spillage and seek clarification from the original
classification authority about the spillage.



Originally it was on one of the three filings

and then after consultation with the original classification

l6

04053

authority, it appears it was on two out of the three filings, Your
Honor.

MJ: Mr. Coombs?

Yes, Your Honor.

As the defense responded to the

government?s alleged spillage by defense motions, the defense?s

position was there was no spillage. Our experts have opined there

was no spillage. However, based upon the government?s position,
that necessitated in the defense?s mind a need for a Protective
Order; which the defense filed with The Court. Within that
Protective Order is a process which the defense believes will avoid
this issue in the future where the government unilaterally
determines that there is a spillage in spite of the fact that the
experts, which the government has provided to the defense,
determined that there was not. I know we are going to go forward
with that, but with the hopes of avoiding this in the future, the
defense?s position is that The Court Security Officer should be the
individual who has the ultimate decision on whether or not there is
a spillage; obviously in consultation with the original
classification authorities.
MJ: All right.

Government, anything further?

No, Your Honor.

MJ: That will be one of the issues that we will be addressing

at the next session.

17

04054

Now the defense has also filed a proposed Pre?Trial

Publicity Order. That was also discussed in the R.C.M. 802

conference. The Court has modified a draft order so far based on
the defense proposal.

MJ: The government has advised The Court that they wish to add
some additional language to that Pre?Trial Publicity Order for the
potential court members and that we should be finished with that
resolve between the parties by tomorrow.

Is that correct,

Captain Fein?

Yes, Your Honor.

MJ: Mr. Coombs?

Yes, Your Honor.
MJ: It is The Court?s goal that that Pre?Trial Publicity Order
be disseminated expeditiously.
Although I have not signed an order to this effect, does
either side have any objection to the proposed Court Security
Prather?

Officer, Mr.

No, Your Honor.
No, Your Honor.
MJ: All right. I will go ahead and order that he be the Court

Security Officer. I will follow it up in writing, but from this

moment on I intend to rely on him as the Court Security Officer.

l8

04055

Your Honor, the United States assumes because he

is a Master of The Court, that there should be no ex?parte

communication between the parties with Mr. Prather?

MJ: All right. Mr. Coombs, any issues?

Yes, Your Honor.

The individual in this case, Mr. Prather,

under the defense?s protective order would, in fact, receive ex
parte communications and that would be the objection that the
defense has to what the government just stated.

MJ: All right.

But, again, we are going to address the merits

of the defense?s proposed protective order, as well as the
government has also proposed a protective order on the l5th and l6th
of March when we next convene. Until that time frame, please

refrain from ex?parte communication with the Court Security Officer.
Also as part of the Motion to Compel Discovery, the
defense has filed an ?ex?parte filing,? which means that only I get
In support of its Motion to

to see it. The prosecution does not.

Compel Discovery, when the defense has it for the court reporter, I
will file it under a Seal Order that I have prepared to make sure
that it is filed under seal because it is ex?parte.

Government, I assume you are going to want an opportunity

to address the legal basis for the ex?parte motion as relayed by the

defense as an alternative?

l9

04056

Yes, ma'am. Just to clarify. I think it was

just an ex?parte submission with the motion. Not an ex?parte
motion?
MJ: Well, it?s an ex?parte submission in furtherance of the

motion as to

Yes, ma'am.

MJ: discovery that they request, why

Yes, ma'am and in the next session, we will??
yes, ma?am.

MJ: Well, before I get there, does the government object to

the ex?parte filing?

No, ma'am.

MJ: All right. In that case, The Court will consider the ex?

parte filing.

All right. I understand that the government has made

Section disclosures to the defense.
Is that correct?

Yes, ma'am. The government has.

MJ: The defense responded in an email regarding it?

Yes, ma'am. We do not believe that the

government is in compliance with M.R.E. 304 or M.R.E. 3ll.

MJ: Why not?
has

The government has in their response,

given a date range of Bates numbers. These Bates numbers pretty

20

04057

much track??one of them, the enclosure is The Court has seen, is 29

pages long of just Bates numbers. Another is 3 pages long of Bates

numbers.

I randomly pulled just a couple of the

Bates number ranges that the government has given; and within that,

what would be required if the defense to look through the various
ranges to determine where within there is the government?s Section

Disclosure. That is not the Rule. The Rule clearly states that

they will indicate the content of any statements to the defense.

The Rule also clearly indicates they will

indicate the item seized which they intend to introduce. Both Rules

are very clear on the requirements. Giving such a range of

documents is not proper Section Disclosure. Proper Section

Disclosure would be, in fact, detailing the statements, whatever

they may be, that the government has on my client; as well as

detailing the items seized from my client that they intend to
introduce.

MJ: Government, any response?

Yes, Your Honor. First off, Your Honor,

Military Rule of Evidence 304(d) me. ?Prior

to arraignment, the prosecution shall disclose to the defense the
contents of all
oral or written,

statements, made by the accused that are relevant

to the case, known to the trial counsel, and within the control of

2l

04058

the Armed Forces.? The United States has done this in a case that

currently, as of today, has 41828 documents; and 402000 pages

produced in discovery, both classified and unclassified together.

Because of the amount of information based on that??is the basis

for this case, the government tried to find the most efficient and

clear way to identify exactly what documents out of that 41000

contained statements of the accused. In an abundance of caution,

the counsel did that. Typically in our process, the disclosure of

the contents of the statement a document we turn over; AIR from

CID, a sworn statement. Here is the document. And that is what we

have simply done here.

We do recognize that by providing Bates number,
that is unusual, but there is no meaningful way to identify these
documents because they don?t even come to the government with file
Most of them,

names. or at least meaningful file names or any

other way to reference them. So we?ve assigned Bates numbers,

unique numbers. That there should be no issue on what document we

are talking about. All of the numbers are clearly marked in the

bottom, left corner. It should be very easy for the defense to go

through, not 41000 documents based off the number we?ve given them,

to look at those statements. Additionally, we made an effort not

to??although we did produce multiple versions of documents that
as we identified

were found in other documents; we made an effort,

22

04059

in the Section Disclosures to not mark, for Section

purposes, duplicates.

Also, Your Honor, as far as the property seized by the government

and the government intends to use under M.R.E. 3ll(d), the United

States provided the most clear method of identifying individual
pieces of seized property by referencing the chain of custody form

by item number, which has the exact description. We provided that,

again, by Bates number because those documents have been produced.

So once the defense pulls up that document, as we provided the

list, they will be able to see precisely what piece of evidence is

that we intend to use that was seized from the accused.

MJ: All right. Mr. Coombs, anything else?

Yes. The defense would say that that is

not, in fact, the case of being able to see precisely what they

would use. I point to, again, two examples where I pull a random

sampling of apparent items that are seized and I am looking at 27
and none of this indicates what the government intends to

pages;

use, which the Rule specifically states. Now if the government

thinks it is very clear as to what they are referencing then they
rather than giving a 23, 24,

can earmark it in some way, 50 page

range of Bates numbers. When you look at that, and I think it

really strikes home when you take a look at the 29 pages of Bates
numbers. The

29 pages. Every line is a Bates number range.

government could have easily just simply??if that is meeting the

23

intent of the Rule,
gave you. Within there are the documents we intend.
That is not the Rule and the
should be forced to clearly state what statements and
as the Rule contemplates.

MJ: The Court has considered this before coming
today. The Court finds that if the statements of the
within the Bates numbers provided to the defense that
for the Military Rule of Evidence 304(d).

MJ:
311(d)(1),
Bates numbers that have been provided to the defense,
government may have to state with particularity which
talking about. But defense, if you see that then let
government know and we will go from there.

Yes, Your Honor. Your Honor
that I would let the government know now of that fact
have looked. When they?ve given us their Bates numbe
items seized, that is
are a range of??there
him. None of that is
trial unless they are saying the fact that a pencil,

sunglasses,

24

actually two of the items we pulled.

04060

said take a look at all of the documents we

government

what evidence

on the record
accused are

that suffices

With respect to the evidence in Military Rule of Evidence

if there is more than one piece of evidence in those

the
one it is

the

I would say
because we
rs of the

They

were multiple items apparently taken from

responsive to what they intend to use at

some paper,

a watch and a ring taken from him is something they

04061

intend to introduce at trial. That is the absurdity of the

response that I?ve received from the government.

Your Honor, we can explain this in more depth

with the defense outside of The Court, but what was provided in

enclosure 2 starts with ?document number,? which is the Department

of the Army Form 4137, Evidence Custody Document. The chain of

custody document, it gives the specific number, which is unique.

67??like for the first one, 67?10. There is only one evidence

collection voucher with that number. Then it has unique item

numbers listed on it.

Item through however many were collected on

that voucher. What we gave was, not only the document number, but

the item number, which is one item; then we gave the Bates range to

find that Form] 4137. So for instance, when you look at

enclosure 2, you can quickly glance at the first nine entries

[they] all come from the same page. Bates number 4?l?l?O?2?6

through 0?2?9. Nine entries that come from the same page, where we
listed each individual one because it is a different piece of
again,

physical evidence. So, after this we will provide with as

much clarity as possible within reasonable means, but the

government doesn?t see any way clearer other than possibly photos

of these items.

25

04062

MJ: All right. Go ahead and confer then after we recess the

proceedings today. Defense, if you disagree with the government,
you are certainly free to re?raise this at a later time.
Yes, Your Honor.
MJ: Does either side wish to supplement my summary of what
occurred in the R.C.M. 802 conferences?
MJ: I would just close by saying other issues that were
addressed were the government advised me of seating plans for
media, and people from other government agencies [and] security
plans for the courtroom today.
Government, anything else you wish to put on the record?
Could we have a moment, ma?am?
MJ: Yes.
[Trial counsel team conferred.]
Your Honor, nothing necessarily of substance.
The only outstanding issue administratively is how we will go ahead
and mark the documents after you close the session. The appellate
documents, Your Honor.
MJ: Now, let?s just identify for the record the documents
that we are going to mark and make a part of the appellate record
as Appellate Exhibits today.
We have, from the defense what do we have?

Your Honor, you have each of our motions

previously provided to the court reporter along with our case

26

04063

management order. So within that you will have the Case Management

Order, the Motion for Protective Order along with its 5 documents;
the Motion for the Publicity Order along with its relevant
documents; our Motion to Compel Discovery along with the
attachments;

Our Motion to Compel Depositions along
with the attachments; and our Motion for a Bill of Particulars.
[The court reporter handed the Military Judge the defense filings
submitted to The Court.]

MJ: Let?s make sure I?ve got it all here.

I?ve got the defense Proposed Case Management Order;
MJ: The defense Motion for Appropriate Relief for Publicity
order;
The defense Motion for Appropriate Relief Under Military
Rule of Evidence 505;
The defense Motion for Appropriate Relief Under Rule for
Courts?Martial 906(b)(6), Bill of Particulars;
The defense Motion to Compel Depositions; and
The defense Motion to Compel Discovery.
Your Honor.

Yes,

MJ: The defense has also filed its ex?parte motion; or its

ex?parte filing in supplement of the Motion to Compel Discovery.
The Court has asked the defense to hand carry that down

The Court [Security]

today. Officer currently has it for

27

04064

classification determination. So once that is finished that will
also be added to the record of trial under seal.
Government, what filings do you have for The Court today?

Your Honor, it is the United States? Proposed

Calendar for the way forward; and the Motion for Appropriate Relief

Under 505 for Protective Order.
MJ: Are those documents ready to be marked as Appellate

Exhibits?

Yes, ma'am.

MJ: Why don?t you give those to me and we will go ahead and

then take PFC Manning?s plea;

mark those; address any final matters

we need to address before we recess the court today; and recess.
[Counsel for the government did as directed.]
the defense would like to

Ma?am,

supplement part of the 802 discussion.

MJ: Let?s go ahead and mark the exhibits first, then I?ll let
you go ahead and do that.
[The Military Judge individually announced the title of each filing
then handed them to the court reporter.]
[The court reporter marked each filing per the Military Judge?s
instruction and returned them to the Military Judge.]

MJ: All right. I have the defense Proposed Case Management
Let?s have those

Order and the Prosecution Proposed Case Calendar.

as the next two appellate exhibits in line, please.

28

[The court reporter marked AEs I and

Your Honor,

04065

that stack that has a binder clip

on it are the enclosures to the Protective Order that you have in

your hand there.

MJ: All right. Those would be Appellate Exhibit I
Appellate Exhibit II.
Proposed Case Calendar. Appellate Exhibit II is the def
Proposed Case Management Calendar.
MJ:
Order as the next appellate exhibit in line.
[The court reporter marked AE
All right. I have here the defense Motion for
Appropriate Relief Under Military Rule of Evidence 505;
prosecution Motion for Protective Order and the enclosur
propose to do counsel,
themselves to make it easier to reference.
Does either side object?


No, Your Honor.

No, Your Honor.

MJ: All right. Those would be the next two appell
exhibits in line.
[The court reporter marked AEs IV and

MJ:

Appropriate Relief Under Military Rule of Evidence 505;

29

and

@1186

and a

BS.

ate

and

Appellate Exhibit I is the Prosecution?s

Let?s mark the defense motion for a Pre?trial Publicity

What I

is to file the enclosures with the motions

That would be Appellate Exhibits IV, defense Motion for

04066

Appellate Exhibit V, prosecution Motion for Protective Order and
enclosures.
Let?s have the defense Motion for Appropriate Relief,
Bill of Particulars marked as the next appellate exhibit in line.
[The court reporter marked AE
MJ: That would be Appellate Exhibit VI, the defense Motion
for Bill of Particulars.
Next will be the defense Motion to Compel Depositions.
[The court reporter marked AE
MJ: All right. And finally, the defense Motion to Compel
Discovery.
[The court reporter marked AE
MJ: And those would be Appellate Exhibits VII and
[Appellate Exhibit] being the Motion to Compel
Discovery.
Appellate Exhibit IX will be the Ex?Parte Filing Under
Seal.
[Not marked during the proceedings. Document was in the custody of
the Court Security Officer.]
MJ: Mr. Coombs, do you wish to supplement the R.C.M.
conference description that I gave?
ma'am. First ma?am,

Yes, with regards to

our conversation 8 February, we talked about the possibility of

having an open appellate exhibit to capture all of our email

30

04067

communications, essentially, to document the conversations

that we have email. The defense would request that maybe the next

appellate in order would be a good one for that where we keep it
open until The Court declares the exhibit closed.

MJ: Government, any objection to that?

No, Your Honor.

MJ: All right. Also during that 802, the logistics

of handling that was discussed.
MJ: Does the government have a procedure in place to capture
these emails?

We do, Your Honor. Assuming we receive them

which we are still going to look into. So, yes, Your Honor. The

United States will capture the emails and keep them preserved.
MJ: All right.

Captain Fein, if you find that the government

did not receive the email that was discussed earlier today, please
let me

Yes, ma'am.

MJ: and then what we will do is we will

compile all of the email that we?ve generated and make sure we have
them all recovered.

Yes, ma'am.

Secondly, ma?am, earlier today in the

802 conference when we were discussing the case management

order plans, the defense just noted that it would object to any

3l

04068

delay, certainly past its requested trial date of June. The

government referred this case on 3 February 2012 and its docket

request stated they would be ready for trial on 3 April. Now the

government states that it is going to be until 3 August 2012, at a

minimum.

3 August 2012 is 122 days after they

represented to The Court that they would, in fact, be ready. As of

today, PFC Manning has been in pre?trial confinement for 635 days.

If the government gets its way, as far as

when the trial date is set, he will be in pre?trial confinement for

a total??well, actually over 800 days before the trial begins. The

defense made several speedy trial demands. The first being on 9

January 2011, over a year ago. The government in their responses

continually cite the complexity of the case or the novelty of the
legal issues or the difficulty of coordinating with multiple

executive agencies, legal departments, or organizations. The

defense would maintain that in order to timely progress in this

case; and I know we are going to discuss this later in the

802 [conference] today; but the due process rights of my client,

certainly having been in pre?trial confinement for the length of
time that he has, and given the fact that the government has had
all of this time to coordinate with these agencies. Obviously,

they are the agency, so at the very least, if there is a problem,

certainly they can call the right people in order to resolve the

32

04069

issue. The government, itself, has indicated that they can make

things happen relatively quickly, such as receiving a

classification??not classification, but a security clearance within

48 hours. So the defense would just like to supplement what we

discussed in the 802 [conference] of its ongoing objection

to any delay past its requested date.

MJ: All right. Government, anything else.
Just to clarify, Your Honor. In the
802 [conference] the government is not asking for a delay. We?re

just simply trying to establish a reasonable calendar going forward
with the amount of legal issues that will likely evolve.

MJ: All right. Is there anything else we need to address
before we take PFC Manning?s plea?

No, Your Honor.
No, Your Honor.
MJ: All right. Accused and counsel, please rise.
[The accused and defense counsel did as directed.]

Private First Class Bradley E. Manning, how do you plead?
Before receiving your plea, I advise you that any motions
to dismiss or to grant other appropriate relief should be made at
this time. Your defense counsel will speak for you.

Your Honor, PFC Manning would like to defer
both on his plea and on motions.

MJ: All right. That request is granted.

33

04070

Please be seated.
[Accused and defense counsel resumed their seats.]
MJ: PFC Manning,

what has just happened is called an

arraignment. An arraignment has certain legal consequences, one of
which I would like to talk to you about one of them now.
MJ: Under ordinary circumstances, you have the right to be
present at every stage of your trial.
MJ: However, if you are voluntarily absent on the date that
this trial is scheduled to proceed, you may forfeit the right to be
present. The trial could go forward on the date scheduled even if

you are not here, up to and including sentencing, if necessary.
MJ: Do you understand this?
ACC:

Yes, Your Honor.

MJ: All right. And I am not suggesting in any way that you

are going to not be here. This is standard advice I give in every

arraignment that I do. I understand the circumstances that you are
in. I just bring it your attention so that you understand the

importance of keeping both of your defense team, and your chain of

command apprised of where you are through all stages of these

proceedings. Sometimes dates get set and they can change.

Do you understand that?

ACC: Yes, Your Honor.

MJ: Is there anything else we need to address before we recess

the court?

34

04071

No, Your Honor.
No, Your Honor.
MJ: The court is in recess.

[The Article 39(a) session recessed at 1348, 23 February 2012.]

35

04072

[The Article 39(a) session was called to order at 0943, 15 March
2012.]
MJ: Court is called to order.

It appears that all parties present when the court last
recessed are again present in court, with the exception of Major
Kemkes.

Is that correct?



That is correct, ma?am.

MJ: All right. Private Manning or PFC Manning, excuse me.
At the arraignment I discussed your rights to counsel with you and
you advised me at the arraignment when I told you that you had the
right to be represented by your detailed military defense counsel;
who were Captain Bouchard and Major Kemkes. Your right to request
individual military counsel and your right to be represented by
civilian counsel. At the arraignment you told me you wished to be

represented by Mr. Coombs, by Major Kemkes and by Captain Bouchard.

MJ: Is that correct?
ACC: Yes, Your Honor.
MJ: Is that still your choice?
ACC:

Yes, Your Honor.

MJ: All right. Now I notice that Major Kemkes is not here
today.

Are you waiving his presence for today?s proceedings?

ACC:

Yes, Your Honor.

36

04073

MJ: All right. Mr. Coombs, you are lead counsel on the case.

Do you also concur with waiving Major Kemkes? presence today?

Yes, Your Honor.

MJ: All right. Trial Counsel, have there been any changes to
the convening orders?
No, Your Honor.
MJ: All right. I?d like to begin by doing a little
housekeeping and recapturing for the record some of the things that
have occurred since our arraignment on the 23rd of February 2012.
After the arraignment the parties and I met in chambers
Now we talked about what that was at

for an R.C.M. 802 conference.

the arraignment. PFC Manning, that is where counsel and I get
together in chambers and talk about logistics and issues that might
arise in
cases.

And we synopsized what occurs in those conferences on the
record; which is what I am doing now.

Now at the R.C.M. 802 conference that we held after the

arraignment, the parties agreed to review the Court?s proposed
pretrial publicity order for potential members in the case and
provide input to the Court by on 24 February 2012. Mr. Coombs
agreed to advise the Court whether he could de?conflict his

schedule for the 15th and the 16th of March. Obviously he did; we

37

04074

are here. He agreed to advise the Court of that by the 27th of

February, which he did.

MJ: The parties agreed to confer and provide the Court with
amended proposed suspense, motion and trial schedule by the 29th of
February. The schedule would provide for two weeks response time
for motions filed and one week between responses and the date of
the next Article 39(a) session for the Court to consider the
filings. The parties would provide the Court with a motion for
continuance deemed appropriate for any particular motion. The
defense advised the Court of its intent to submit two proposals,
one proposing May trial dates of the trial if the defense motion
for depositions is denied. Another proposing June trial dates if
the motion is granted.

Does either side wish to state anything for the record
with what I have discussed so far?

No, Your Honor.
No, Your Honor.
MJ: Okay. The government advised the Court that although it
has been extensively engaged in evaluating executive branch and
sub?branch files for discoverable information prior to referral,
the government?s due diligence obligations under the Brady Williams
case law; duty to find, evaluate and disclose favorable and

material evidence to the defense will take additional time because

of the need to cull through voluminous classified and unclassified

38

04075

information contained throughout executive branch [and] sub?branch
agencies that have been involved in the classified information
disclosure investigations.

The defense advised the Court of its continuing interest
in a speedy trial and if the government could proffer to the
defense efforts the government has exercised in due diligence in
the defense would consider

seeking Brady Williams material,

waiving, on the record, the government?s duty to look for
additional Brady Williams materials to expedite the trial date.
Would either side desire to supplement the record in that
regard?
Right now I am just saying what occurred at the post?
802 conference.

trial R.C.M. I know there have been subsequent

developments.
Proceed.
No, Your Honor.
No, Your Honor.

MJ: That is my synopsis of what occurred in the post
arraignment R.C.M. 802 conference.
Does either side have anything further to add?
Just that the when government spoke about

its Brady search they stated at that time they had not found any

Brady material even though they had looked for over a year.

MJ: Is that correct?

39

04076

Your Honor, that is correct but also at the

same time [we] stated that material continues to evolve because
this is an on?going issue.

MJ: All right.
In the week following the post arraignment R.C.M. 802
conference, the Court signed a pretrial publicity order that will
be served on all potential court members basically advising them to
avoid reading accounts about the case and that such thing. The
order has been added to the record as Appellate Exhibit??I believe
it is Appellate Exhibit XI.

Is that correct?

[Neither side responded while reviewing of their materials.]

MJ: All right. Neither side had any objection to Appellate
Exhibit XI, is that right?

Yes, Your Honor.

[No response.]

MJ: As I stated earlier, Mr. Coombs advised the Court he
would be available on the 15th and 16th of March and I set those
dates for today?s Article 39(a) session. The Court advised the
parties of the issues that would be litigated at today?s session
would be:

The government and defense motions for protective order
for classified information;

The defense motion for a Bill of Particulars;

4O

04077

The defense motion to compel depositions; and

The defense motion to compel discovery; and
The trial schedule.

Now, after the arraignment the government learned that it
had not received emails from the Court and from the defense prior
to the arraignment on the 23rd of February. The government advised
the Court of this and the Court notes that the government email
issues continued until, at least, Sunday, ll March 2012. The Court
advised the government to confirm receipt of all emails to the
Court. Captain Fein requested that the parties use an alternate
email address.

MJ: Captain Fein is the lead counsel for the government, to
ensure that while their server issues were being fixed that the
government was actually receiving these emails.

Captain Fein, could you please expound a little bit for
the record on what occurred with the emails.
Yes, ma'am. After realizing that the
prosecution did not receive the Court?s emails or the defense?s
reply to that email, we worked with our information technology
department, and that department determined that certain emails
based on certain criteria had been blocked by a spam filter for
security reasons. Since that date we have set in remedial measures
that spam filter is checked on a daily basis by l0 o?clock every

morning for the past 24 hours of that date and any email that would

4l

04078

have any relationship to this case are released to the members of
the prosecution team.
MJ: All right. Thank you.
With respect to the protective order for classified
information, Mr. Prather, who is the Court?s Security Officer, sent
me an email outlining his concerns about the proposals from the
prosecution and the defense for the protective order. I sent the
email to the parties for their consideration. That email has been
marked as Appellate Exhibit XIX and both sides have received it.
Is that correct?


Yes, Your Honor.

Yes, ma'am.

MJ: And we will readdress this when we discuss the protective
order in its substance.

The parties agreed to confer and attempt to reach a
mutually acceptable protective order.

MJ: That did not happen so both sides have proposed
protective orders and we will have those subsequently marked as
appellate exhibits.

The defense requested and then withdrew its request for
the Court to order the government to articulate what due diligence

it has done to date in a search for evidence favorable and material

to the defense under the Brady line of cases.

42

04079

Mr. Coombs, would you like to place anything else on the

record with respect to due diligence?

Yes, ma'am. Once we understood the

government?s position on what they did and would not actually put
on the record the steps that they?ve taken,

we removed our request

for that list of items that the government would say, this is what

we?ve done to show due diligence. The reason why we removed that

list is basicallysubsequent response by the

government, their understanding of what Brady is. That will be a

motion that we will cover later today.


Based upon that we believe that there was

no ability for us to, with confidence, say that the government has

complied with its due diligence requirements.
Thank you.

MJ: All right. Government, anything on that?

Yes, ma'am.

As the government relayed on the email and also

during the R.C.M. 802 [conference], the government would be willing
to proffer the steps it took but only applying to motions by the
defense, not sua sponte.

MJ: All right and the defense further advised the Court that
at this point the defense is not willing to waive Brady due
diligence?



That is correct, Your Honor.

43

04080

MJ: Okay.

For the record, all of these emails that went back and
forth between the parties and the Court are being captured by the
government to be placed in an appellate exhibit that is continuing
as these proceedings go and emails continue to be exchanged, that
will be part of the record of trial.

All right. The defense also requested via email that the
government be prepared at today?s Article 39(a) session to provide
the defense any Bill of Particulars, information the Court orders
as required. The government advised the Court that the government
intended to answer the Bill of Particulars.

MJ: We?ll get to that in a few moments. The government did,
with the exception of three particulars that were asked.

Is that correct?

Yes, Your Honor.
MJ: Because of the email issues experienced by the
government, the government did not receive the email from the
defense that was dated on l5 February 2012; that was before the
arraignment; articulating the legal rationale for the defense
motion for the Court to consider an ex?parte supplement from the
defense for its motion to compel discovery. ?Ex?parte? means that
one party gives the Court the supplement and the other party does
not get to see it. At the arraignment the government was asked if

it objected to the Court?s consideration of the ex?parte supplement

44

04081

and the government?s response was, The government has
subsequently asked the Court to reconsider my ruling based on the
fact that the government didn?t object. That I would consider the
ex?parte supplement with the motion to compel discovery; and that
will also be addressed today.

On the 6th of March 2012, the parties and I held a

telephonic R.C.M. 802 conference at the government?s request. The
parties raised the following issues:

Again, the Bill of Particulars requested that the
government be prepared to respond with the Bill of Particulars at
the next Article 39(a) session; and the government said that they
would.

The ex?parte supplement;

The request by the government to revisit the Court?s
original ruling.

MJ: And we discussed the case management order and the
protective order. The defense, I believe, advised the Court that
they would only be proposing one case management as opposed to two
as they had earlier suggested.

Is that correct?

Your Honor.

That is correct,

MJ: All right. The Court advised the parties to be prepared
to address the following issues at the telephonic R.C.M. 802

conference:

45

04082

The first question I had was that the classified
information the government intends to introduce in its case?in?
chief;

Assumption in the government proposed case calendar
stated the United States has gathered more than l00,000 documents
consisting of more than 3 million pages which it intends to offer
?Has the

into its case?in?chief. The first question I asked was,

classified information that the government intends to use in its
case in chief been disclosed to the defense??

And your response was, government?

Yes, Your Honor.

MJ: Okay and defense did you agree?

They have not disclosed; no, Your Honor;

all of the information that they intend to put in their case.

They have indicated what the charged

documents are but we have not received 3 million documents, Your

Honor.

MJ: All right. Government, what have you disclosed and what

haven?t you disclosed?

Your Honor, the defense has received the

information that we intend to, at least, elicit testimony on in its

case?in?chief. There are a few pieces of information that have not

been disclosed but is not??fall within those numbers; that until we

have a case management order and procedures for 505

46

04083

established to properly protect the information. Otherwise,
defense has received the information except for whatever would be
the subject of the motion to compel discovery.

MJ: Okay, let me just make sure I am clear and understanding
what that response was. The government has disclosed the
classified information that it intends to use in its case?in?chief
to the defense in its entirety.

MJ: Is that what I am hearing?

With the exception, ma?am, of some sensitive
information that is going to require protection under the Military
Rule of Evidence 505 because it is classified information.

MJ: Okay.

Otherwise, yes, Your Honor; for the case?in?
chief.

MJ: All right. And the second question from the Court was,
?With the exception of the defense motion to compel discovery and
Brady due diligence, are there other disclosure issues involving
classified information??

And government, I believe your response was, ?There may
be depending on the Court?s ruling.?
Is that correct?


Yes, Your Honor.

MJ: All right. The third question from the Court was the

government?s proposed trial calendar has several phases of

47

04084

addressing certain issues and one of them was for classified

information. I asked, ?If the government planned to invoke the

privilege under Military Rule of Evidence 505, which is the

privilege for classified information for some or all of the
evidence in the government?s case?in?chief??
And the government?s response was?

Ma?am, at this time the government does not

intend to invoke the privilege; although there might be a need to

invoke the privilege under M.R.E. 505 based on potential defense

requests and the results of ?in?camera? ex?parte reviews of

classified information. So, of course, that is all predicated on

future court rulings.

MJ: Now, government??well, what?s the parties position, let

me ask you that.
MJ: On Military Rule of Evidence 505,

if the government

doesn?t invoke the privilege, where is my ?in?camera? review coming

from?

It doesn?t, ma?am. It is only based off of
your rulings on whether information is to be compelled to be turned
then

over to the defense; and if the defense intends to use that,

the privilege might be invoked. But, currently on the case?in?

chief for the prosecution, we do not intend to invoke the privilege

at this time with the information we have.

48

04085

MJ: So with the government?s information that you intend to

bring forward in the case?in?chief, at this point, at least, the

government is not intending to ask me to do ?in?camera? reviews of

any of that.
Is that right?
at this time.

That is correct, ma?am,

MJ: All right. Okay, my last question was, ?Does the M.R.E.

505 litigation in phase four involve disclosure of classified
information to the defense in addition to the use of classified
information during trial proceedings??

?Yes.?

And I believe you advised me,

Yes, Your Honor.

MJ: All right.

Defense, I believe I asked you in your trial plan in

phase four, the defense has government notice to defense of ?in?

camera? review request pursuant to the Military Rule of Evidence

505(i)(4). M.R.E. 505(i) involves the use of classified

information at proceedings; and I didn?t see any provision in your
time line for the government to move for limited disclosure of any
compelled discovery under M.R.E. 505(g)(2). When does the defense
envision that that occurs?

Ma?am, in response to your question, the
defense sent to you an email that laid out our response rather in

detail as far as how we view that. So it is basically dependent

49

04086

upon when the government provides the discovery, if they do provide

the discovery. But at that point that they could move for the

Court, to give notice that the Court should consider this ?in?

camera? or request that it be considered ?in?camera?. So it really
depends on how the government decides to produce or disclose the
classified information that we?re asking for.

MJ: All right. You have the extended response that you gave

me that will, again, be part of the record in the email.

All right and I also asked the government with respect to
the defense motion to compel discovery; does the government know
what evidence the defense is moving to compel whether it is
classified or unclassified?



Ma?am, the government??for what the defense has

provided specificity on; yes, we do know whether it is classified
or not.
MJ: I believe you advised me of something to the effect of
some digital and some of it was classified.
Did you have some numbers?
ma'am. the numbers and it actually

Yes, Um,

changed by one this morning, ma?am, is that one of the requests are
for discovery of ENCASE forensic images of hard drives that were
located in the TOC or and from the preservation request that
was done and I assume we will talk about later in the motions

hearing, the government did identify some drives that were located

50

04087

there that weren?t, otherwise, turned over to the defense. And

those drives have been preserved but because they were in??used in
a TOC or SCIF,

they are presumed to be classified. So that is why

at this point we consider them classified. So if it is classified
it would have to be reviewed as such.
MJ: Also, both sides had timelines for litigation concerning

?in?camera? review for Military Rule of Evidence 505, potential

substitutions by the government, or release decisions from me; and

both parties gave the Court 2 weeks for that ?in?camera? review.

The question I asked the parties is, ?Is that realistic considering
the volume of information in this case and the likelihood that I
will have to review that??
And the parties response was?


Ma?am, the United States responded that we did

not think that was reasonable or realistic.

MJ: Okay. How much time did you think was reasonable?

Ma?am, possibly 30 days to get the total
amount.

MJ: Defense?

Again, ma?am, in our email response we

laid out, what we believe, if the government actually produce this

information when they should, Your Honor, would have over 30 days

before the actual hearing to determine what information should be

5l

04088

provided to the defense. Assuming under our timeline, you would

have 30 days.
MJ: All right. The next question I had was, ?Where will I
need to travel to review this classified information??
I believe the government responded, ?Offices and SCIF in
Northern Virginia and Maryland.?

Is that correct?

And Washington, D.C.
MJ: And Washington, D.C.

All right. Is there anything else that the parties wish
to put on the record that occurred between the arraignment and
today?



No, Your Honor.

May we have a moment, Your Honor?
[Prosecution team conferred.]


No, Your Honor.

MJ: All right. Let?s move now to the defense motion for a

Bill of Particulars. May I see the defense motion, the government

response and the defense reply motion. And I?ll have those marked
as the next appellate exhibits in line.
[The court reporter handed AEs VI, XIV and XXIV to the Military
Judge.]

MJ: All right. The defense motion for a Bill of Particulars

is marked as Appellate Exhibit VI. The government?s response to

52

04089

the defense motion for a Bill of Particulars is marked as Appellate

Exhibit XIV. And the defense reply to the government?s response to

a [defense motion for a] Bill of Particulars is marked as Appellate

Exhibit XXIV .
I would like to state for the record now that the Court
had both parties in their proposed time lines had time for motions,

2 weeks; response time for motions, a response time for 2 weeks;

and then a week for the Court to consider all of the filings. The

Court had not anticipated reply briefs. I believe reply briefs are

probably going to be the norm in this case. So I am going to be

building in time in the court calendar. I received these reply

briefs on Tuesday in the afternoon. Even assuming that I have a

completely free schedule, I need more than a day to go through

filings and voluminous enclosures.

Yes, Your Honor. The defense filed the

reply briefs based upon, obviously, the government?s responses.

During our last 802 session after

the arraignment, Your Honor, talked about the fact that, obviously,

the defense could file a reply. I don?t know if the replies will

be, in fact, the norm. So it may make more sense if this is
something that we can talk about but whether or not there could be
a built time frame if you can identify certain motions that you
believe that will be a need for a reply. Then we could build in

that additional need. Otherwise, I think that would make any

53

04090

motion hearing required, at least, a month from start to finish
from additional filings to the reply to a??excuse me, to a
response, then to a reply, then the actual arraignment. The
defense would believe that that would be too much time and an
impact on my client?s right to a speedy trial.

MJ: All right. Mr.

Coombs, I understand that and I am very

sensitive that your client has been in pretrial confinement, I
believe, since May of 2010.
Is that correct?
That is correct, Your Honor.
MJ: And the Court is very concerned with this case proceeding
in a timely manner and it is very concerned about PFC Manning?s
right to a speedy trial. That said, you can?t on the one hand, ask
for a speedy trial and then on the other hand have voluminous court
filings filed with me the day before trial.
MJ: There has to be an amount of time for the Court to be
able to consider the issues that have been raised and addressed.
So I understand it is a balance and we will try to make that
balance work, but if there are going to be filings for me that are
coming in reply, which is, so far, that is what I?ve seen, then I
am going to build in time so I can consider it.


Understood, ma?am. What I would say there

is that, and we can talk about this perhaps more in the

54

04091

802 [conference] is trying to identify which motions that may be a

realistic thing. That you will actually have a reply.

MJ: Okay, and again, I am not trying in any way to constrain

the filings from either side. All I am doing is building some time
so I can consider it.


Yes, Your Honor.

MJ: All right. So we have the defense request for the Bill

of Particulars; and the government has responded; and let?s go
through with that.

We have PFC Manning has been charged, and counsel stop me
if I make any incorrect factual findings here; 5 specifications of
violating a lawful general regulation, which would be specification
3??or charge specifications 1 through 5;

One specification of aiding the enemy, charge I, The
Specification;

MJ: One specification of disorders and neglects to the
prejudice of good order and discipline and service discrediting
conduct, which would be specification 1 of charge

Eight specifications of communicating classified
[Article]

information charged under 134 but incorporating Title l8

United States Code 793(e), and that would be charge II,
specifications and
Five specifications of stealing or knowingly converting

government property, and that would also be under Article 134,

55

04092

incorporating l8 United States Code 64l, which would be charge

II, specifications 4, 6, 8, l2, and l6; and
MJ: Two specifications of knowingly exceeding authorized
access to a government computer, l8 United States Code

1030(a)(l), which would be charge II, specifications l3 and l4.

Now what a Bill of Particulars is, it is Rule for Courts?
Martial 906(b)(6) provides that the purpose of a Bill of
Particulars is to:

(A) Inform the accused of the nature of the charges with
sufficient precision to enable him to prepare for trial;

(B) To avoid or minimize the danger or surprise at the
time of trial; and

(C) To enable the accused to plead acquittal or
conviction in bar of another prosecution when the specification
itself is too vague and indefinite for such purpose.

MJ: A Bill of Particulars should not be used to conduct
discovery of the government?s theory of a case, to force detailed
disclosure of acts underlying a charge, or to restrict the
government?s proof at trial.

Now the government responded to all of the defense
requested Bill of Particulars with the exception of three items,
and their response was as follows:

There appears to be one??has the government submitted two
One was

documents in response to the defense Bill of Particulars.

56

04093

the government response which contested what you didn?t want to
respond to and the other was the actual government response that
responded to the Bill of Particulars.

Has that second document been marked as an appellate

exhibit?

Are you speaking of enclosure 1, ma?am?

MJ: Yes?

I am not sure, ma?am. I have to check with the court
reporter.

MJ: Is it supposed??you have enclosures and 3 of enclosures

I through 3. Now I would ask the parties, I have the response but

I don?t have any of the enclosures that have been marked as an

appellate exhibit. I would like all of the enclosures to whatever

responses or motions you make, please, to be filed along with the
motion, as well.
Yes, ma'am.

MJ: Do you have those at this time that are ready to be
marked?
We do.
MJ: They don?t actually have to be marked. They can be
accompanying Appellate Exhibit XIV as part of it. We just have to
repaginate.

[Prosecution team reviewed their materials.]

57

04094

One moment, Your Honor. May I have the Court?s

indulgence, Your Honor?

MJ: Captain Morrow, if you need a brief recess to find it, we

can do that.

We may need a 5?minute recess, Your Honor.

MJ: Court is in recess.

[The Article 39(a) session recessed at 1016, 15 March 2012.]

[The Article 39(a) session was called to order at 1022, 15 March

2012.]

MJ: This Article 39(a) session is called to order.

Let the record reflect all parties present when the court
last recessed are again present in court.

All right. I now have the complete government response

to the motion for a Bill of Particulars. Which

Your Honor, I am sorry. You do not have the classified

enclosure, Enclosure 3 as well as the supplement to Enclosure 3.

MJ: Thank you for correcting me.

Yes, Your Honor.

MJ: All right. I am going to go through the Bill of

Particulars.

Specification 1, charge I. PFC Manning is charged with

at or near Contingency Operating Station Hammer, Iraq, that would

be the aiding the enemy charge and the Bill of Particulars question
That answer would be ?Al?Qaeda,

was, ?Who is the alleged enemy??

58

04095

Al?Qaeda in the Arabian Peninsula;? and the United States will
supplement this response in a separate classified document.

I assume the defense got both of the classified and
is that correct?

unclassified documents,

That is correct, Your Honor.

MJ: All right. Does the government have a copy of the
redacted charge sheet?
We can get that, Your Honor. We don?t have it here at
the table.
MJ: All right.

The second question for The Specification of charge I
was, ?How did PFC Manning knowingly give intelligence to the

enemy?? The answer was, ?By transmitting certain intelligence
specified in a separate classified document to the enemy through

the Wikileaks website.?

Question 3 was, ?What was the indirect means allegedly
used in order to aid the enemy?? Answer, ?The Wikileaks website.?
[Question] 4, ?What ?intelligence? is the government alleging PFC

Manning gave to the enemy??

MJ: Answer, ?The United States will respond in a separate
classified document.?
Specification 1 of charge II,

again, ?Who is the enemy??

Same response as specification 1 of charge and ?In what manner

did PFC Manning wrongfully and wantonly cause intelligence to be

59

04096

published on the internet?? Answer, ?By leaking thousands of
documents gathered from the SIPRNET including several databases to

the Wikileaks organization.?

Specification 3 of charge II, the question was, ?Identify
the exact number and specific records?? The answer was, ?Two
records found at Bates number 00378084 and 00378087. The United

States produced these records and their associated classification
review beginning at Bates 00378148 on 8 November 20ll.?
what are Bates numbers?

Captain Fein,

Your Honor, Bates numbers are unique numbers

that are assigned to documents we use in discovery. They are
sequential numbers and a document will only have one Bates number.
As a new document is produced, the next sequential is added to
that.

MJ: Are these numbers used when there are a lot of documents
in the case?
Yes, ma'am. It?s used when you have voluminous
amounts of data in a case or documents.

MJ: Okay.

TC

Each page has its own unique number.

MJ: All right. Defense, do you agree?

Yes, Your Honor.

MJ: All right.

60

04097

For specification 5 of charge II, the question was,

?Identify the exact number and specific records?? The answer was,

?53 records found in one file beginning at Bates 00377912. The

United States produced these records and their associated
classification review beginning at Bates 00376879 on 8 November
2011.?

Specification 7 of charge II, same question, ?Identify

the exact number and specific records?? [The] answer, ?37 records

found in two files beginning at Bates 00377846 and 00377890. The

United States produced these records and their associated
classification review beginning at Bates 00376879 on 8 November
2011.?

Specification 9 of charge II, ?Identify the exact number

and specific records?? [The] answer, ?5 records found and files

beginning at Bates 00378123, 00378125, 00378126, 00378127, and

00[3]78130. The United States produced these records and their

associated classification review.?

Your Honor, I believe on the last Bates, it?s 00378130.
MJ: Oh.
Sorry, Your Honor.

MJ: Did I say something different?
I think you said something different.

MJ: All right. That is the correct one.

61

04098

Specification 10 of charge II, ?Identify the exact number

and specific records?? The answer, ?14 records found at Bates

00377425, 00377498, 00377627, 00377672 through 00377675, 00378029

through 00378083. The United States produced these records and
their associated classification review beginning at Bates 00376879
on 8 November 2011.?

?Identify the exact number

Specification 13 of charge II,

and specific records?? The answer was, ?116 records found at Bates

range 00376974 through 00377404. The United States produced these

records and their associated classification review beginning at
Bates 00376903 on 8 November 2011. The classification review
specifies which documents and the Bates range are still
classified.?
For specification 1 of charge the question was,
?What is the alleged conduct the government believes was an attempt
to bypass network or information systems security mechanisms??

MJ: The answer was,

?The accused attempted to secure the

password to the account on one of his SIPRNET computers.

On 4 November 2011, the United States provided the defense with the

computer forensic report beginning at Bates 00199494. That

explains the conduct for any of the basis for this charge.?

Specification 2 and 3 of charge ?What is the

unauthorized software alleged to have been added to the SIPRNET

computer?? [The] answer, ?The program named ?Wget?. On 4 November

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04099

2011, the United States provided the defense with a computer
forensic report beginning at Bates 00211037 that details the
presence of

?Wget? on the accused?s computer.

The next question was, ?Which computer is the government

alleging the software was added to?? The answer was, ?The accused
primary SIPRNET computer with the internet protocol address
22.225.41.22. On 4 November 2011, the United States provided the
defense with the computer forensic report beginning at Bates
00211037 for this computer.

Specification 4 of charge ?How does the government
allege PFC Manning used an information system in a manner other
than its intended purpose??

MJ: The answer, ?By downloading the United States Forces?Iraq
Microsoft Outlook/share point exchange server global address list
(GAL) for an improper purpose while using a non?secure internet
protocol router network computer to perform this task. On 4
November 2011, the United States provided the defense with the
computer forensics report beginning at Bates 00199556 that explains
the conduct forming the basis of this charge.?

And I believe??yes?


Your Honor, I have a copy of the redacted charge sheet.

MJ: May I have it please. Has that been marked as an
appellate exhibit at all for this case?


I don?t believe so, Your Honor.

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04100

MJ: Why don?t we go ahead and have it marked as the next
appellate exhibit in line.

[The court reporter marked AE and handed it to the Military
Judge.]

MJ: All right. Now let?s go to the questions the government
disputes having to answer. I believe those questions involve
specifications l3 and l4 of charge II.

did, at or

MJ: Specification l3, in that PFC Bradley Manning,

near Contingency Operating Station Hammer, Iraq, between on or

about 28 March 2010 and on or about 27 May 2010, having knowingly
exceeded authorized access on a SECRET internet protocol router
network computer; and by means of such conduct having obtained
information that has been determined by the United States
Government pursuant to an executive order or statute to require
protection against unauthorized disclosure for reasons of national
more than 75 classified

defense or foreign relations, to wit:

United States Department of State Cables; willfully communicate,
deliver, transmit or caused to be communicated, delivered or
transmitted the said information to a person not entitled to
receive it with reason to believe that such information if so
obtained could be used to the injury of the United States or to the
in violation of l8 United States

advantage of any foreign nation,

Code, l030(a)(l); such conduct being prejudicial to good order

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04101

and discipline in the Armed Services??Armed Forces and being of a
nature to bring discredit upon the Armed Forces.
in that PFC Bradley Manning, U.S.

MJ: Specification l4, Army,

did, at or near Contingency Operating Station Hammer, Iraq, between
on or about l5 February 2010 and on or about l8 February 2010,
having knowingly exceeded authorized access on a SECRET internet
protocol router network computer; and by means of such conduct
having obtained information that has been determined by the United
States Government pursuant to an executive order or statute to
require protection against unauthorized disclosure for reasons of
a classified

national defense or foreign relations, to wit:

Department of State Cable entitled ?Reykjavic?l3?; willfully

communicate, deliver, State Cable entitle ?Reykjavic

me. Willfully deliver, transmit or caused to be communicated,
delivered or transmitted the said information to a person not
entitled to receive it with reason to believe that such information
if so obtained could be used to the injury of the United States or
in violation of l8 United

to the advantage of any foreign nation,

States Code, l030(a)(l); such conduct being prejudicial to good
order and discipline in the Armed Forces and being of a nature to
bring discredit upon the Armed Forces.

Now the question posed by the defense in the Bill of
Particulars was, ?How did PFC Manning knowingly exceed authorized

access on a SECRET internet protocol router network computer??

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04102

MJ: Government, you do not want to respond to that question.

Why?
Your Honor, I believe it requires the government to
provide a detailed disclosure of the acts underlying the charge.
Specifically of the alleged??of the alleged overt act which is
exceeding authorized access; which would also require us to provide
the government?s theory of the case??which would also require us to
provide the government?s theory of the case.

MJ: All right. I believe from the defense response, you are
looking for facts.

Is that what it is telling me here?

That is correct, Your Honor. We?d like to
argue on that point?

MJ: Go ahead.

Very well.
Your Honor, with regards to our Bill of Particulars, we
are not looking for the legal theory of the government. Instead we
are just simply asking for the facts that they allege that my
client to have committed. When you look at the specification l3
and l4 of the charge charge II, exceeding authorized
access, the government states in its response that the defense
seeks the manner in which PFC Manning exceeded his authorized

access and that is exactly correct.

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04103

That is what we are seeking. When we

asked how he committed an offense or in what manner in which he
we are not asking for their theory.

committed the offense,

We are asking for the facts. For

instance, does the government allege that he hacked into the net
diplomacy database in order to obtain access to the diplomatic
cables? Does the government allege that he used someone else?s
password in order to gain access to the net diplomacy diplomatic
cables?

MJ: Mr. Coombs, does the government have to prove how he did
it for these specifications?

Well, the government has to, at least, put
the defense on notice as to the conduct that they are saying my
client committed so that we understand in what manner of which they
are saying he exceeded authorized access. That is what the Bill of
Particulars is designed to do. We are not asking for their theory.
We are asking for what they are saying he did. So when you look at

906(b)(6) that is what exactly what the Bill of

Particulars is designed to do. Provide the accused and the defense
with sufficient understanding of the facts, so when they look at
that they know what they need to defend against. The specification
refers to by means or such conduct but does not describe what
So that we

conduct. What conduct are you talking about?

understand what we need to defend against when we come to trial.

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04104

We shouldn?t be faced with trial by ambush

or trial by surprise and this doesn?t placed an onerous task on the
government to say this is why we believe he exceeded his authorized

access. Here are the facts.

It could be as simple as they believe that

even though he had SIPRNET access, he did not have authorization to

go to the net diplomacy database. If that is the case, then that

is all they need to say. But that is exactly what a Bill of
Particulars is designed to accomplish; and that is exactly what
they answered with regards to specification 1 of charge I. How and
in what way, how did he get information to the alleged enemy? It
is not different.

MJ: Once again, Mr. Coombs, my question is does the

government have to prove for a violation of this offense, how he
did it?

The government has to prove that he did
it.
MJ: Yes. I know that.

Yes, so when you are saying you exceeded

authorized access within that by means or such conduct, when you
look at the specification, they have to prove by means or such

conduct. Whatever such conduct that is, that is what the defense
is trying to obtain.

MJ: Government, let me ask you a question here.

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04105

Does the government have or is the government alleging

any particular way that this occurred?

The allegation, Your Honor, is that he used a SIPRNET
computer; and by using the SIPRNET computer he exceeded authorized
access.

MJ: Yes.

Is there a particular way? No. I think it is a legal

theory of why his access is??his access to the SIPRNET computer on
those two occasions was exceeding authorized access.
MJ: I guess, well look at the defense reply. The defense
reply talks about did he electronically bypass a security or
firewall; did he not have security privileges; these are just
examples.
Does the government have a way that they are alleging? I
am not necessarily sure you have to but does the government have a
theory in that regard?

We have a theory for why when he logged on to a
computer with a user name and a password; when he logged into a
SIPRNET computer with a user name and a password, why that conduct
on these two particular occasions, with respect to these two sets

of data was exceeding authorized access.

MJ: Okay. What are you looking for in addition to that?
Well, what we are looking for is the by
means or such conduct, so we know what they are saying he did. I

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04106

know, Your Honor, wasn?t aware of the Article 32 testimony, but the

Article 32 testimony clearly states that PFC Manning as a 35F had
his

authorization to go to the net diplomacy database. In fact,

boss gave him the location to go there.


So the exceeding authorized access when

they allege in the specification by means or such conduct, what

conduct are they alleging exceeded authorized access. Just so that
we understand what we are defending against. That way we can
adequately prepare in advance of trial. So if their theory is you
exceeded authorized access. If the conduct that they are saying
exceeded authorized access was just going to the net diplomacy
database you went??that is the by means or such

and they say, okay,

conduct? He went to the net diplomacy database. Then the defense

knows how it can prepare to address that charge. But if we are
planning that that must be the way they are doing this that they

are saying by means or such conduct means that you just went there;
and then at trial they say, no actually we have proof that he

cracked into the net diplomacy database in order to gain access;
and presumably, that would be proven by some expert testimony.
Then the defense is in the position of having no knowledge that
for one; in a position of not

that is the allegation, and then two,

being able to prepare for that allegation. We would have to get
our own expert. We would have to see what evidence is??forms the

basis for that allegation. It is just straight preparing to

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04107

address a charge against the accused. And one of the fundamental

requirements in preparing is to tell the accused what you did that
was a violation of the law.

In this case, by means or such conduct is the vague

aspect of it and I go back to it is no different than the Article

104 offense, indirect means. All right, well, what does that mean?

How did he do it? That?s [the] exact same question, which they did

answer by giving the information to Wikileaks.
MJ: Okay.

Government, do you have a theory of a means by

which he knowingly exceeded the unauthorized access?

ATCI: The means?
MJ: Yes.
Your Honor, the government would maintain that PFC

Manning had a user name and a password to a SIPRNET computer while
deployed. On certain occasions when he accessed that computer for

certain, you know, to obtain these documents, he was exceeding

authorized access. I can't??there is no means. I mean, there is
no??I don?t think it?s??it?s not a mystery how he got onto the
computer. I think Mr. Coombs is focusing on the Net?Centric
Diplomacy aspect of it when the focus should be on when he accessed
the computer to do certain things.

MJ: So your means is the fact that he accessed the computer
to do certain things?
ma'am.

ATCI: Yes,

7l

04108

MJ: All right. Are those things that he did part of the

investigation or

They are part of the specification, Your Honor.

Obtaining these cables and transmitting to Wikileaks.

MJ: Mr. Coombs, I am going to rule in favor of the government

on this one. I think the specification gives you enough

information to prepare a defense for specifications 13 and 14.
The second question was specifications 2 and 3 of charge

Specification 2 of charge in that PFC Bradley E.

Manning, U.S. Army, did, at or near Contingency Operating Station

Hammer, Iraq, between on or about 11 February 2010 and on or about

3 April 2010, violate a lawful general regulation, to wit:

paragraph Army Regulation 25?2, dated 24 October 2007,

by adding unauthorized software to a SECRET internet protocol
router network computer.

Specification 3, in that PFC Bradley E. Manning, U.S.

Army, did, at or near Contingency Operating Station Hammer, Iraq,

on or about 4 May 2010, violate a lawful general regulation, to

wit: paragraph Army Regulation 25?2, dated 24 October

2007, by adding unauthorized software to a SECRET internet protocol
router network computer.
And the question was, ?How is the government alleging the

software was added to the SECRET internet protocol network

computer??

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04109

All right. Mr. Coombs, you are not asking what, you are

asking how?

In this instance, right; because we
already have the response to what. Apparently, that is the ?Wget?
program.

MJ: Okay.

So here, I am not asking for the mechanics

of it. The government in its reply says we have our own computer
forensic experts that can talk about the mechanics of how one might
do that. What I am asking is, and this is also because we are
limited in the amount of the computer forensics we have been given;
we have only been given computer forensics that deal with our
client having a user profile on the computer and not other
computers within the same where we believe this exact same
program would be on those computers. What we are asking for is how
Not the

are they saying he added this unauthorized software?

means, but are they saying that, again, he hacked into the
administrative privileges on the computer in order to add the
software; or are they saying that he ran the software from the CD
drive of the computer and somehow that means it is added to the
SIPRNET computer; or are they saying that he put it on the desktop
of the computer as an executable file?

Therefore, that is how he has added the unauthorized

software to the computer. Again, this goes back to being able to

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04110

prepare the defense. To understand what we have to prepare

against. So all we want to know is in what manner are you saying

that he added the unauthorized software to the computer?

How are you saying that? Not the mechanics of it, but

are you saying it was added to the computer?s programs, a list of

programs within the computer? Are you saying it was only because

he used that as an external CD or as an executable file on the

computer? But the actual act of adding unauthorized software, the

government has to say that this is the act you did and therefore,
this is what you need to defend against. It goes back to just
simply unfair surprise. We need to understand what are they saying
he did? We are not asking for their entire proof and the mechanics
of how it might be done, but when they say he added unauthorized
software, how so?

MJ: All right. Is that an element the government has to
prove?

Again,

yes. They need to prove that he?s

added the unauthorized software. That the software, whatever it

was, was not authorized and it has been added to the computer in
violation of the regulation.

MJ: I agree that the government has to prove that it has been
added but does the government have to prove how he did it?


Well, the government has to show??how

about??the government has to show that it has been added.

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04111

MJ: Yes.

So we want to know how do they say it has

been added. Not necessarily how my client, I guess, if hearing

what the Court is asking now. You?re saying it is added so how was

it added? Is it part of the computer programs that are on that

computer? That is what they have to prove and so we should be able

to know how they are saying it was added. Not how my client did

it. Not the mechanics of doing it. But how are they saying it was

added.

MJ: Okay. Government, do you, through your forensic team, do

you know that?

How it was added?

MJ: Um?hmm.

I don?t think we can say??I don?t think we can provide

the mechanics of how it was added. I know, you know, Mr. Coombs?

initial question how, at least speaks to me, you know, he is asking

the mechanics and he sort of clarified what he was asking in his

reply brief. But again, we are not required to show exactly how he

did it; only that it was added to the computer in some manner.

MJ: Okay, I understand that.

Yes.

MJ: And I agree with that. Do you know how he did it? I

mean, does the government have an idea don?t think we do, Your Honor.

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04112

MJ: Okay,

I mean, the file was an executable file. It was

physically present on the computer. We can say that. I don?t know

if we can explain how it was added.

But again, I don?t need to know the how.

I just need to know the added??how do they say it is added. Not

the mechanics of doing that but are they saying that it is now a

list of programs on the computer? Are they saying that it is

actually on the computer? That is what I am asking for? Does that

make sense to Your Honor?
MJ: No.

Okay. So they?ve charged with, my client

with adding unauthorized software to the computer. One of the

elements they are going to have to prove is that the unauthorized
software is on the computer.
MJ: Yes.

That?s all we want to know. So how do

they have proof that it is on the computer? Not the mechanics of

getting it on the computer but now, apparently, there is a computer

that they say has ?Wget? on it; okay. How does it have it on

therebut how does it have because it is listed as a program within
that is my answer. Or it

the administrative privileges. Okay,

doesn?t really have it on the computer. It has it??it shows that

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04113

it was run from a so it was never really on the computer.

Okay, that gives me my answer.

Or the program is sitting on the desktop

as an executable file but it is not really within the base programs

of the computer. That gives me my answer.

MJ: Okay. Government, is there some kind of a forensic

investigation that has been done?

There is a forensic report for this computer, Your

Honor. It?s actually??it was cited for the Bill of Particulars for

the other, I believe, paragraphs, I guess would be l3??the computer

forensic report beginning at Bates 002ll037. That would be the

accused?s primary SIPRNET computer; the [dot] .22 computer; with

the IP address ending in [dot] .22. I know the short version of
that is probably confusing. The presence of that??of ?Wget? on
that computer is detailed in that forensic report. I actually

couldn?t tell you off the top of my

MJ: Okay.

exactly it was
MJ: Before you released??well, you know where that Bates
report is, is that correct?
We do
MJ: Or the Bates number for that report?


Yes, we do have the Bates report.

MJ: Yes.

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04114

And the question is then, how is it on the

computer? That is all I am asking? How is

MJ: If you have that information from the forensic report, I
don?t think you need it again from the Bill of Particulars. You
can look at the forensic report.



But the forensic report doesn?t indicate

how that is on the computer. Is it in what location; what manner;

is it, in fact, a file that is part of the program? So in this
instance, again, I am not asking for the mechanic of how it gets
there. I am just asking for them to say that it is there and how

is it there as far

MJ: Well, how is it there

Not how it gets there. How is it there as

far as is it in the programs of the computer? Is it on the desktop

of the computer? Or does it forensically show that it was, at one
point, run on the computer and is not on the computer? All I am
asking for is how they are saying that it was added. Not the

mechanics, but just how it was added.
MJ: Does the forensic report address that?
ATCI: I believe it does, Your Honor, but I can't say for
certain because I do not have the forensic report in front of me
here.
MJ: Is there a government expert that has prepared that

forensic report?

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04115

Yes, Your Honor.

MJ: Is that

He?ll be available to testify.
MJ: to the defense?
Available to the defense? Yes, Your Honor.

MJ: Can the defense give this expert a telephone call and ask
him that question?

Absolutely.
MJ: All right. I am not going to require it in the Bill of

Particulars. There is a forensic report out there and if you have

any problems calling this expert and asking these questions, you
can re?raise it before the Court.


Very well, Your Honor.

MJ: Now the last one was Specifications Charge II. And those are the Section 64l specifications.
Is that correct?



That is correct, Your Honor.

MJ: And the specifications are charged in the disjunctive in
that PFC Manning stole, or converted.

purloined, The question was,

?If the government relied, what theory is the government relying
on?? and the second question was, ?If the government relies on all
three theories, does each theory of culpability apply equally to
every charged item??

Mr. Coombs, do you want to further elaborate on that?

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04116

Yes, Your Honor. Again, here we are not

attempting to restrict their theories.

All we are attempting to do is it looks

like the government has brought in 64l and has charged 641

under the three theories that are listed there: steal, purloin, or

knowingly convert. The government responded saying there is really

no difference between steal and purloin. And while the defense

does not necessarily agree with that, they seem to have limited it

to steal or knowingly convert. What we are asking is, are they

alleging that he stole the databases? Or are they alleging that he

knowingly converted the databases? Or are they alleging that he

both stole and knowingly converted the databases and if so, does

that apply to each of the offenses. Again, we are not trying to

limit them but they have charged 22 separate specifications for
what is essentially one act and what they?ve done at this point,

they are playing, essentially, hide the ball. We may be saying

it?s stealing, we may be saying it is knowingly converting. Or if

they do believe that purloin is different than stealing, we may be

saying that it?s stealing or purloining. Well, all we are asking

for is if they do, in fact, have an allegation that he stole or he

converted, or he stole and converted, just to let us know so we

know what to prepare against. Because when you look at the
requirements for stealing or the requirements for purloining under

federal law; or the requirements for knowingly converting under

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04117

federal law, which we would incorporate given the fact that this is

a clause offense, there is a big difference.

There is a big difference with the required proof; and

therefore, there is a big difference with what the defense has to

prepare against. If the government is, in fact, saying we believe

he stole, purloined and knowingly converted, then we?ll go with

that. But if there is, in fact, this is in artful drafting and

there is, in fact, a theory that they are saying, that we are

saying he stole these items, then there is no reason to hide the

ball. Allow the defense to know what is alleged. I know you can

charge things in the alternative but this doesn?t seem to be that,

Your Honor. This just seems to be an incorporation of the [Title]
l8 U.S.C. language.
MJ: Okay.

I looked at the various pattern jury instructions for the
Federal Circuit with respect to this offense; and looking at them
they appear to distinguish between embezzle; which is not charged

here; and steal or convert. I don?t really see any definitions for
purloin in here.

Am I missing something in your review?

You?re not, but there is case law and you

actually have to go through the case law to find the difference

with purloin. I could provide that at a later date to the Court.

But purloin basically is through deception. So it is essentially

8l

04118

the same as stealing, but then it has the added element of through

deception; and that would be purloin.

MJ: All right. Now what about steal and convert? It seems

like the definitions in most of the pattern jury instructions, and
I?m just looking at the Circuit off here. To ?steal and
convert? means to wrongfully, intentionally take money or property
belonging to someone else with the intent to deprive the owner of
the use or benefit either permanently or temporarily. So that jury
instruction seems to be making the definition the same.
It does and the Circuit is not a good

Circuit to use, ma?am. The other Circuits that have defined it

have done a better job. But aside from that there is also case

law, federal case law, that lays out what conversion is and what is

required to show conversion. It basically goes to the common law
toward a conversion. So in that regard what you would have to show
is that the individual has taken the property in such a way that it
has deprived its true owner of the use and benefit of it while
stealing would have??it does have under the federal law a very
similar definition to our Manual definition.

MJ: I?m also looking here at the 5th Circuit. They use a
similar definition to the Circuit.

Government,

do you agree that there is a distinction

between steal, convert and purloin that the defense is discussing?

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04119

There is in some Circuits, Your Honor. You hit the

nail on the head. I think in the 5th Circuit and Circuit,
there is??they?re basically the same and they are instructed the
same way. But there is a Circuit split and so I??some of this??
some of this dispute probably could be solved by instructions??um,
discussing the elements in the instructions when we get to that
later on.

MJ: Does the government have a particular theory upon which
it is proceeding on these two specifications?



We would maintain that we are proceeding on both

theories and that the instructions would be in the disjunctive.

MJ: Well, there?s three. So the government is proceeding on
all three?
We would consider steal and purloin be the same. We

don?t think there is a distinction between steal and purloin, but

we do not know the case law that Mr. Coombs is referring to.

MJ: All right. Why don?t we do this at this point.

Government, I am going to??Mr. Coombs, the case law that

you are discussing, the difference between those three terms, if
you would provide that to the government and then the government

can take a look at that; and if there is a clear theory upon which
you are proceeding with respect to those three words, let the

defense know. If you are proceeding on all three of them, let them

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04120

know. I think that second question was whether you?re proceeding

equally on all of the different specifications.
So if you have one theory that you are only relying on

for one of the specifications, but not the other ones, would you

let the defense know, please?

Yes, ma'am.

MJ: Okay.

Ma?am, I think this could probably be solved with

instructions, but, again, I don?t know how you would rule on that

piece later on.

MJ: Well, I think the issue is if each of the terms is
different?
Yes.

MJ: Then I think what the defense, and I don?t want to put

words in your mouth, is asking is if it?s like in the military

where steal can mean taking or withholding or an obtaining. All
three of those are different theories of stealing. If you are
obtaining something, you are fraudulently getting something. If
you?re withholding something, you haven?t already but you are

fraudulently keeping it. If you are taking something, you?re going

into somebody else?s house and grabbing it. Those are three
distinct theories of the offense. So if you have that here with
these words and there is a distinct manner that the government is

alleging in these particular specifications, that is what I would

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04121

like for you to tell the defense; if there isn?t a distinct one

that you are going under.
Am I being clear?
You are. We?ll look at the case law, Your Honor, and
talk to the defense.
MJ: Okay.

Can we do that by??what is today? The l5th, so

perhaps by the 23rd.

Is that doable?

Yes, ma'am.
Yes, Your Honor.
MJ: Okay.
All right. That is one thing that when we do the

instructions, I would like both side

Perhaps some people would have a question on it. If
there was a minor amendment, it was and how would you instruct the
panel. I believe that is something we would want some
clarification on as it gets closer.
MJ: Okay.

Well, I believe the parties are proposing

instructions for me, is that correct?

That is correct, Your Honor. We will have
some instructions for you.
MJ: All right.
Is there anything else we need to address with the Bill

of Particulars?

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04122

No, Your Honor.

No, Your Honor.

MJ: All right. Let?s move on to the defense motion to compel

discovery. Now, let?s begin with the ex?parte filing.

Mr. Coombs, could you articulate for the Court what the

defense has asked me to do and what I agreed to do at the
arraignment?

Yes, Your Honor.

MJ: First of all, let me just announce for the record that

the defense motion to consider an ex?parte supplement??once, again,

?ex?parte? means the government doesn?t get to see it.
MJ: That is Appellate Exhibit IX and it has been filed under
seal.

Your Honor, with regards to the ex?parte

filing, the defense filed an ex?parte filing with the Court. Gave

notice to the government of the fact that we were filing this ex?

parte filing. And the government sought clarification of that from

the defense saying is this an ex?parte motion or is this an ex?

parte supplement to your discovery motion. And we gave them

clarification of that prior to our 802 [conference].

During the 802 [conference], the government, again, sought

clarification to ensure that it was an ex?parte supplement; and

also that the Court Security Officer would review that before Your

Honor would.

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04123

Then during the actual proceeding, the

Court indicated that it had the ex?parte supplement to our compel

discovery motion, that the Court Security Officer had, in fact,

reviewed it and it did not contain classified information. And

then asked the government if they objected to the Court considering

the ex?parte filing. Captain Fein stood up and said, ?We have no

objection, Your Honor.? Afterwards, we hear that the government

obtained emails that were previously blocked. Apparently they were

blocked because the word ?Wikileaks? was somewhere within the email

and the government servers would block emails that had the word
Setting aside the problem of trying this case

?Wikileaks? in it.

with that restriction, the government did receive that email. That

email was really just the Court asking the defense what authority
can you provide me to indicate that I can consider an ex?parte
The defense provided that to the Court.

filing? The government

was not prejudiced by that at all. The government was fully aware
of what we were providing, how we were providing it and the manner
in which we were asking you to consider it. What they didn?t know
is, perhaps, if the Court was maybe not for sure if it could
consider an ex?parte filing; or was at least asking the defense to

provide the authority. So now, they seek a second bite at the
apple or the ability to ask you to revisit it.
One of the things that the Court asked

though, is that the government provide justification for the

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04124

revisit for you to look into it again; and they?ve really skipped

that step. They?ve gone directly to why they think that you should

not consider the ex?parte filing. And so, the defense would ask
that you deny the government?s request for three reasons.
First, the government has failed to provide justification

for you to revisit your ruling;

Second, the government cites inapplicable authority for
its request; and
Third, the government acknowledges even in their motion

that there are unusual circumstances that would warrant you to
consider the ex?parte filing.

First, the government has failed to provide you with any
justification for you to reconsider your ruling. As I stated,
they?ve skipped the entire step of how they were prejudiced by this
and why you should reconsider this ruling. What they?ve jumped to

is, that, hey, we haven?t seen this email and because of our
blocked email problems we were not on the appropriate ground to
determine whether or not we should or should not object. First of
all, the government doesn?t need any prompting to determine whether
or not they should object on anything.

And they certainly would not have needed
anything in that email that they did not receive in order to know
that if they had an objection, they should?ve filed an objection.

All they saw in that email was the Court asking the defense to

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04125

provide its authority for the ex?parte filing. They don?t take

issue with the authority, necessarily. They just simply wanted,

now, a second bite at the apple realizing that the Court may be

reconsidering that at that time; or at least, had questions about

your authority at the time. So they don?t give you any reason for
why you should revisit the order but when they look at the

authority for why you should deny the ex?parte filing, they rely

upon R.C.M. 703. They say that the defense has not stated the

relevancy necessary or a necessity for you to look at this

information or consider it. R.C.M. 703 does not apply to this

issue. This is a discovery issue, not a production issue. And so
their entire basis for opposing the defense?s request isn?t??
But even setting now the third

inapposite. It doesn?t apply.

reason that the government, even in their own reply motion
indicates that there are unusual circumstances that they would
agree with where you would consider an ex?parte filing. And I
quote, ?The defense contemplates no unusual circumstance such as
disclosing the defense?s theory on how the defense is going to use
the information or disclosing privileged information.?



Well, if the Court has had the opportunity

to review the defense?s ex?parte supplement, you would see that?s
exactly what we do in the ex?parte supplement. We disclose our
defense theory on how we would use this information. So even under

the government?s request now for you to revisit your consideration

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04126

of the ex?parte filing, they acknowledge that that would be an

appropriate basis for you to consider an ex?parte filing. So

again, for those reasons, the defense asks that you deny the

government?s request to revisit the ex?parte issue.
MJ: Okay.

Government?

ATCZ: Ma?am, the bottom line is if the government had the

emails on 23 February, we would have objected at that time.
ATCZ: As you accurately stated and Captain Fein clarified, we
did not get those emails
MJ: But you did know the defense was filing an ex?parte
supplement?
ATCZ: We did know the defense was filing an ex?parte
supplement, ma?am.
MJ: Well, what did you think that was?
ATCZ: The government thought that what the defense was filing

would have been ?the how? instead of ?the why.?

MJ: Um, tell me more about that.

ATCZ: Yes, ma'am. As an example??there?s an example from this
case.

ATCZ: The defense has requested the ENCASE forensic images
for some of the computers. Now the ?the how? but??or ?the why?

would be to show materiality or to show relevance depending on if

we are under 70l or 703. ?The why? would be

proffering that seven other individuals have ?Wget? on their

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04127

computers so we want??we want those computers. And ?the how? would

be defense is going to use those information to cross?examine the

accused?s supervisors, for example, of what his Soldier?s were

authorized to do on those computers. So when the government didn?t

object, it was assuming ?the how?; but after the government saw

defense?s justification which it had emailed to you it became clear

that they were trying to skirt around 70l and

703. ?The why? is it relevant or why is it material to the case.

MJ: So the government is not objecting to me considering the
legal theory piece of the ex?parte supplement.
Is that what you?re telling me?

ATCZ: Well, the government would, based on the case law, the

government would recommend the defense initially make a??attempt
to, at least, make a preliminary showing of materiality or

relevance. And if that is not sufficient, the defense needs to,

you know, perhaps proffer their??their??privileged information or

theory of the case, then at that time the Court consider whether

the ex parte motion would be necessary given the clear advantage
that an ex parte motion gives ex parte filing it.

MJ: Okay. Anything else defense?

All I will say, Your Honor, on that is the

government never cited 70l. But even if it had cited the

correct Rule in its motion, there would be no requirement to

establish or to state the relevance of it. It would just be are

9l

04128

you asking it under Brady or are you asking it for a specifically
requested and that it?s helpful to the preparation of the defense.

So there, the burden that they would have you??you can require the

defense do in order to consider the ex parte filing, again, is in
opposite.

MJ: All right.

ATCZ: Your Honor, if I may address that?

MJ: Yes.

ATCZ: The government looked at 703 because the

defense cited in their motion [point] number 5 that??or in point

number six of their motion which they emailed that they did not
which is

want to state how each request is relevant and necessary;

the 703 standard. Then they also in the two supporting

cases they cited were both 703(d) cases requiring or

requesting expert or additional assistance. And the government
would also like to supplement their argument with this??it doesn?t
give the government the opportunity to object to what defense has
stated as their materiality or, you know, as their relevant and
necessary information if we don?t even know what the information
is. And we do have that opportunity under


MJ: All right. The court has had an opportunity to consider
this before oral argument today. I?ve listened to oral argument

and I?ve also incorporated that in my ruling. I am prepared to

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04129

rule on this now because as I have said before, I?ve had an

opportunity to consider the filings and the pleadings; and the
Court rules as follows:

The defense moves this Court to consider an ex?parte
supplement to its motion to compel discovery. The government

opposes. After considering the pleadings, evidence presented, and

argument of counsel, the Court finds and concludes the following:
Factual findings.
On 14 February 2012, the defense submitted motions to the
Court and the government, to include an ex?parte supplement to its
motion to compel discovery.
Two, on 15 February 2012, the Court, via email, requested
the defense to provide authority for the Court to consider the ex?
parte supplement. Also via email on 15 February 2012, the defense
provided the following authority that is also contained in the ex?
parte supplement.
The defense, in unusual situations is entitled to an ex
parte hearing to justify a motion for appropriate relief.
United States V. Garries, 22.MJ 288, 291, Court of
.Military Appeals (1986) recognizing the inherent authority in the
Military Judge to permit an ex?parte proceeding in the unusual
circumstance where it is necessary to ensure a fair trial. In
United States V.

Kaspers, 47.MJ 176, Court of Appeals for the Armed

Forces (1997), holding that a Military Judge has broad discretion

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04130

to protect the rights of the military accused to include conducting
an ex?parte hearing.
In the instant case,

the defense is not requesting an ex?

parte hearing. Instead, the defense simply desires to present the
Court with an ex?parte supplement to its motion to compel
discovery. Due to the government's refusal to provide the
requested discovery, the defense is placed in the position of
having to disclose to a partisan opponent why it believes certain
evidence is relevant and should be produced at trial. If the
defense is required to disclose its theory of relevance, the
government will receive an advance notice of the defense's theory
and the opportunity to prepare to rebut and counter the requested
discovery. The government simply has to refuse to provide
requested discovery in order to force the defense to stand in open
court and explain how each request is relevant and necessary.

In meeting this challenge, the defense is forced to
explain why the requested discovery is needed, how the requested
discovery is relevant to a fact in issue, and why the requested

discovery is necessary to the defense. In doing so, the defense
must balance how much of its trial strategy it will disclose to
justify the production of the requested discovery. This mandated
disclosure of the defense's case theory provides an unfair
advantage to the government. In order to avoid this unfair

advantage, the defense believes that this is one of those unusual

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04131

situations where an ex?parte hearing would be appropriate. United

States V. Garries, 22.MJ 288, 291, Court of.Military Appeals,

(1986); United States V. Kaspers, 47.MJ 176, Court of Appeals for
the Armed Forces (1997).
the defense filed its ex?

Three, on 23 February 2012,

parte submission under seal as Appellate Exhibit TX. The Court
asked the government if it objected to the ex?parte submission.
The government advised the Court it did not object. At the
arraignment, the government learned that it had not received emails
from the Court and from the defense sent prior to arraignment.
After arraignment, the government learned it had experienced email
server problems and had not received emails from the defense or the
Court between 14 February and 23 February 2012.

On 24 February 2012, the government received the emails
that it had not received from the defense and the Court between 14
and 23 February 2012. The same day the government received the
above emails the prosecution emailed the Court and then requested
the opportunity to object. Also on 24 February 2012, the defense
sent the Court emails from the government dated 15 and 16 February
2012 indicating they knew the defense was filing an ex?parte
supplement. The government renewed their request for
reconsideration at the telephonic R.C.M. 802 conference that we

discussed earlier that we held on the 6th of March of 2012.

The Law.

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04132

One, there is no express authority in R.C.M. 701,

discovery, for the Court to consider ex?parte filings by the
defense when determining whether evidence is relevant, material, or
R.C.M. protective and

favorable to the defense. 70l(g)(2),

modifying orders, does authorize the Court to allow ex?parte
showings by either party when moving the Court to restrict or limit
703,

discovery. There is also no express authority in R.C.M.

production of witnesses and evidence, for the Court to consider ex?
parte filings by the defense. The parties dispute whether R.C.M.

703(f)(3) or R.C.M. 70l applies.

Number two, the Court of Appeals for the Armed Forces in

United States V. Garries, and United States V. Kaspers, the cases

that were referenced in the defense submission, recognized that
although an accused has no right to an ex?parte hearing, military
courts have inherent authority to grant the accused an ex?parte
hearing to demonstrate relevance and necessity for an expert
witness under Rule for Courts?Martial 703(d) if the circumstances
are unusual.

This case involves an ex?parte supplement rather than an
ex?parte hearing and the ex?parte supplement is in furtherance of a
motion to compel discovery rather than a motion to compel an expert
witness.

Thus,

it is an open question whether the Court has

inherent authority to consider an ex?parte supplement from the

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04133

defense in furtherance of a motion to compel discovery under R.C.M.
70l or a motion to produce evidence under R.C.M. 703.

Analysis.

Although the Court is aware that the defense intended to
file an ex?parte submission in support of its motion to compel
discovery before 23 February 2012, when it informed the Court it
had no objection to the ex?parte submission, the government had not
received the l5 February 2012 email from the defense setting forth
authority for the filing.

I will disclose prior to the government?s not having any
objection, I had considered this motion and had planned initially
on ruling that I would not consider it. The government had no
objection, so I ruled that I would consider it.

Assuming the Court does have inherent authority to
consider an ex?parte filing from the defense in support of a motion
to compel discovery, the Court has examined the defense?s ex?parte
submission to determine whether it demonstrates unusual
circumstances. I find it does not.

The parties disagree on whether the motion to compel
701 requiring the Court

discovery involves discovery under R.C.M.

to make findings of relevance, materiality, and whether potentially
discoverable information is favorable to the defense and material
703

to guilt or punishment; or production of evidence under R.C.M.

requiring the Court to make findings of relevance and necessity.

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04134

In either case, the position of the parties for such initial

determinations should be made on the record. The Court should have
the full benefit of hearing both sides positions on materiality,
relevance, necessity and any other findings that I may be required
to make during this trial.

This case involves classified information. Should the
Court determine that any of the information or evidence in the
motion to compel is discoverable by the defense, the government may
invoke the privilege for classified information under M.R.E. 505

and move the Court to conduct an ?in?camera? review. Should that

occur, the defense may renew its request for the Court to consider

its ex?parte supplement when conducting any ?in?camera? reviews.
Ruling.
The government motion to reconsider is granted; and the
defense motion for the Court to consider the ex?parte supplement is
denied for the purposes of the motion to compel discovery.
Is there anything else we need to address with that issue
at this time?
Your Honor.

NO,

ATC2: No, ma'am.

MJ: All right. Do we need to recess before proceeding with

the actual motion to compel discovery itself or are you ready to

go.

98

04135

We actually would ask for a 10?minute

comfort break, Your Honor.


We join the defense, Your Honor.

MJ: All right. Anything we need to address before we recess
the court?
No, Your Honor.
MJ: Court is in recess.
[The Article 39(a) session recessed at 1122, 15 March 2012.]
[The Article 39(a) session was called to order at 1145, 15 March
2012.]
MJ: This Article 39(a) session is called to order.
Let the record reflect all parties present when the court

last recessed are again present in court.

All right. Mrs. I am going to ask
that you make the ruling on the defense?s ex?parte supplement the

next appellate exhibit in line. I will add it as soon as I fix a

typo.
[The court reporter did as directed and marked AE

MJ: All right. Next on the agenda, we have the defense
motion to compel discovery.

Have those been marked as appellate exhibits?
[The court reporter handed AEs XVI and XXV to the Military

Judge.]

99

04136

MJ: All right, I have the defense motion to compel discovery

as Appellate Exhibit the prosecution response as Appellate

Exhibit XVI with enclosures; and the defense reply to the

prosecution response to defense [motion to compel] discovery dated

[l3 March 20l2][as] Appellate Exhibit XXVI.

Your Honor, additionally this morning, the

United States gave the court reporter a supplement that should have
been included in the enclosures; also previously provided to the
defense, a sworn statement that we referenced but actually wasn?t
in there after we audited in our records. We?d like that to be

marked, if it is possible, right after.
MJ: Is that one of the enclosures that you would like be
included in the exhibit?
Your Honor.

In the response. Yes,

MJ: In the response. Is there a reason to mark that
separately or can we go ahead and add it to the exhibit?
We could just add it in citing that under
enclosure 3 which references it.
MJ: All right. Is there any objection from the defense to
adding that to enclosure 3?
No objection to the government adding
that, Your Honor.
MJ: All right. Do you have a copy for me?

Yes, ma'am.



04137

[The court reporter handed the Military Judge the additional
document.]

MJ: All right. The sworn statement by Mr. Bryan Papakie, is

that who that is?

Yes, Your Honor. Master Sergeant.

MJ: Oh, Master Sergeant Papakie, dated l7 February 2012 is

added to Appellate Exhibit XVI at Enclosure 3.

Defense, let?s begin by stating for the record what it is

that you are requesting me to compel.

Yes, Your Honor. For the defense?s

motion, we indicate both 70l(a)(2) items that we are

requesting that you compel. This is compel discovery of, not

compel production at trial under

MJ: I don?t mean to interrupt you. I was told there was a
Manual on the bench and I don?t see one. Is there a Manual for

Courts?Martial available? I know there is one in chambers.

Oh, never mind, I see it. I am sorry.

Proceed. And you are viewing this under M.R.E. 701?
Under
MJ: Or R.C.M. 70l, excuse me.
Yes, Your Honor. So under R.C.M. 70l we

asked for this Court to compel discovery, both under R.C.M.

70l(a)(2) discovery; that is specifically requested by the defense

that would be helpful in the preparation of the defense. And under

lOl

04138

R.C.M. 70l(a)(6), which is the military?s version of Brady. With

regards to the specifically requested items, we detailed those
within the motion to compel discovery. We also as part of our
attachments, gave the Court the l2 separate discovery requests.

If I could, I would like to argue why I

believe we have a problem in this case based upon the government?s

response.
MJ: Okay. Um, proceed.
Yes, Your Honor. Your Honor, the defense

believes we have a very serious problem here and the government
does not seem to understand its discovery obligations. They don?t

understand the three basic discovery requirements within our

system.

First, Brady under R.C.M. 70l(a)(6);

Second, specifically requested discovery under R.C.M.
70l(a)(2); and

Third, classified discovery and how it is handled. With

regards to the first. The government does not seem to understand

its Brady requirements under R.C.M. 70l(a)(6); and we know that

because you can look at the government?s response to the defense?s

request. Under R.C.M. 70l(a)(6), Brady is incorporated into the

military, which is a much more broader standard than the federal

standard of Brady. When you look at R.C.M. 70l(a)(6), it states

that, ?The trial counsel must provide information that is favorable

l02

04139

to the accused.? And the Rule goes on to say, ?Favorable to the
accused is any information that reasonably tends to reduce guilt,
negate guilt, or reduce punishment.? The requirements under the
military version of Brady is substantially broader than the federal
version. But the government in its reply motion relies upon the
wrong standard.

They believe favorable to the accused means this; and I
quote, ?When it could reasonably be taken to put the whole case in
such a different lights as to undermine confidence in the verdict.?
That is not the Brady standard in the military. That is not even
the Brady standard in the federal system. What they quoted is the
Brady appellate standard in the federal system. What a Court will
do based upon a Brady violation and whether or not they will
reverse a conviction due to a Brady violation. That is the
standard that the government indicates in its motion or actually,
in their

states in its motion that it is relying upon. Not once

motion do they cite R.C.M. 70l(a)(6). You will not find that

within the government?s motion. Nor not once do they rely upon any
military case law with regards to their Brady obligations. Instead
the only case law that they cite is in reference to the defense.
Citing Williams, indicating the extent in which they must look.

And that is not regarding Brady, that is regard R.C.M. 70l(a)(2).
But we know that the government doesn?t understand Brady and we

know that definitively because they haven?t turned over any of the

l03

04140

damage assessments that were requested by the defense. We?ve been

asking for damage assessments, really, since October of 2010

forward. And based upon very public statements, we have a good
idea of what those damage assessments state.

MJ: When you?re public statements??is that in the enclosure
for the??what you gave to the Article 32

It is, Your Honor.

MJ: Is that??and that?s the evidentiary basis that you are
relying on to show me that these are material and favorable?

That,

Your Honor; and also unfortunately,

the ex?parte filing. So we would have
MJ: If you want a chance to look at your ex?parte filing
redacted, and file some of it openly, I will certainly consider
that.
Very well, Your Honor. But regardless, on
the issue of the Brady requirement being favorable to the accused;
when you look at the public statements; and it can be easily

verified. In fact, the Judge probably could take judicial notice

of some of these statements; both Secretary Clinton and Secretary
Gates have made very public statements about the assessments in
this case saying that no sources and methods have been compromised.
Saying that it is largely embarrassing.

MJ: Well, what enclosure is that in your motion to compel?

lO4

04141

For the motion to compel discovery, Your
Honor?
MJ: Yes.

I don?t have that readily available in
front of me.

MJ: I have it. It is enclosure, well, I am not sure exactly
what the enclosure??oh, Appendix which is the??are you talking
about the articles here in the washington Post for December 22nd,

2010 and that series

Yes, Your Honor.
MJ: Okay. Go ahead.
Yes, Your Honor.

And even if you set aside for a moment the damage
assessments and you just go back to the statements by the
government in our R.C.M. 802 session indicating they had been
looking high and low for Brady.

Even going so far as going to the Department of
And

Agriculture to see if they had potential information there.

then they stated; and they even state it here, that they have not

found any Brady material; and it is no wonder they have not found
any Brady material because they literally think it has to be the
smoking gun in order to qualify as Brady. And that is not the

standard in the military and that is not the standard in the

federal system.

l05

04142

Second, the government does not seem to understand its

discovery obligations under R.C.M. 70l(a)(2). Under R.C.M.

70l(a)(2), the government must disclose specifically requested
discovery if that item is material to the preparation of the

defense. When you read the word, ?material? case law which the

defense has cited indicates material in this instance means
helpful.

And to aid the Court, we also cited a very
timely article on this issue by Lieutenant Colonel Eric Carpenter,
the Chief of Criminal Law at the Judge Advocate General?s Legal
about the difference between discovery

Center and School; who wrote

obligations under R.C.M. 70l and production under R.C.M. 703.

Under R.C.M. 70l(a)(2), specifically requested items, all that is
required is that it is helpful to the preparation of the defense.
It doesn?t have to be relevant.

MJ: Ah did you
As far admissible into
MJ: States V. Graner?
it does have to be helpful to the
defense as far as being something that the defense will be able to
say is tied to the case; but it does not have to be admissible into

evidence. It could actually be hurtful to the defense. It could
be something that is very negative to the preparation of our case

as far as a good case that we need to have anyways in order to

lO6

04143

adequately prepare. So when you look at the standard under R.C.M.

70l(a)(2), it is a very broad standard. Then there are l2 separate

discovery requests dating from October 2010 forward. We?ve asked

for things and the government has continually denied them by

stating the following, ?The United States will not provide the

requested information. The defense has failed to provide any basis

for its request. The United States will reconsider this ruling

when provided with an authority that obligates the United States to

provide the requested information.? Well, that authority is R.C.M.

701(a)(2). Finally, once we get here, Your Honor, and we can file

a motion to compel discovery, we get to see the government?s now

further justification for why they have not provided this

discovery. And you look at their ruling??excuse me. You look at

their motion and what do they rely upon? What do they cite as why

they are not providing the requested discovery under R.C.M.

70l(a)(2)? They cite R.C.M. 703 and indicate that the defense has

not shown that it is relevant and necessary. That?s a production

rule. R.C.M. 703 deals with when we are at trial and we are trying

to force whoever has these documents to come and bring them. It is

not a discovery rule. Discovery is R.C.M. 70l. Discovery gives us

information that we then can develop our case to decide what we

want to have actually produced at trial. The government has been

holding us to the standard of R.C.M. 703, not the correct standard

of R.C.M. 70l. If the government thinks that something is not

l07

helpful to the defense, they have to come to Your Honor under

R.C.M. 70l(g)(2) and state we want to be relieved of our obligation

to provide this because of They haven?t done that. They

haven?t done that because they just consistently relied upon the
wrong rule.

MJ: Well, let me just follow this argument. So you asked the

government for discovery. They don?t believe it is material. They

have to come to me before they deny your discovery?

No, Your Honor. This is how it works.

Under R.C.M. 70l(a)(2), if I ask for a specifically requested item;

MJ: Yes.


They must produce that item if it is

helpful to the defense. And helpful to the defense, again, is

anything that may be assisting us in preparing our case. When they
look at that, if they believe that it is not relevant and necessary

under the R.C.M. 703 standard, that is the wrong standard to be

applying. The right standard is helpful to the defense and in this
case, the items that we are requesting are helpful to the defense,

clearly. That is such a low hurdle, you can trip over that. So

now you are faced with if you don?t want to provide that, and

you?re the government, you can't just say no. You can't say no we
are not providing that if it is helpful to the defense.
MJ: That?s assuming that they agree that it is helpful to the

defense?

lO8

04145

Right, but when you take a look at the

case law for what is helpful to the defense, that is such a low

burden. Because in our judicial system, we pride ourselves almost

on what we call open?file discovery.

We pride ourselves on not playing games

with discovery by allowing the defense to have adequate access to

discovery; and if you were to allow this to happen where you make a

specific request under R.C.M. 70l(a)(2) and the government decides

we are just not going to provide that. We are going to wait until

the eve of trial; and they should along that way, once there is a

Judge, if they want to be relieved of that, go to R.C.M. 70l(g)(2)
and say, Judge, we don?t think that is qualifying or that?s
helpful; and that is why we are not going to produce that. But

what they can't do is wait until the actual trial and then say, now

the standard that the defense has to show is relevant and necessary

under R.C.M. 703. That is not how our discovery system works.

MJ: Have you read United States V. Graner?

Yes, Your Honor.

MJ: That cases conflates both?

And that is the problem, I think, with??

unfortunately, courts sometimes get it wrong too. We are human but

our rules are our rules; and they are very clear. There is Brady

under R.C.M. 70l(a)(6); and specifically requested items under

R.C.M. 70l(a)(2). Courts that kind of confuse that, they confuse

lO9

04146

it because you get to the trial stage and then they start thinking
that this is a production issue; and it is not a production issue.
It is a discovery issue and they are very different standards.

Again, I would ask if the Court hasn?t had the ability??
and I understand because of timing, but Lieutenant Colonel
Carpenter?s article does a very good job of going through not only
the correct rules and standards, but sometimes how Courts,

unfortunately, conflate the two inappropriately. Also sometimes

even the defense doesn?t understand what they are entitled to. But

that is not the issue here today. The issue here today is, what is

the government obligated to do under the discovery rules?
MJ: Let me hear the defense?s position.

I understand your

position on the Brady, the discovery and material to the

preparation of the defense; as well as the R.C.M.

MJ: codification of Brady.
Yes, Your Honor.
MJ: What I am struggling with is R.C.M. 70l(a)(6) says that

the government has to disclose the existence of the evidence to

you. Now, I understand Williams says the government has a duty to
search police entities and entities associated with the government.
Now I think there is some split among the courts on how far that

for

duty goes. So if you are looking at the Department of Justice,

example, I would agree that that is probably closely enough

llO

04147



INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL





USE OF FORM Use this form and MOM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court?martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court?martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court?martial cases in
which a summarized record is authorized.
lnapplicable words of the printed text will be
deleted.

COPIES See MOM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

ARRANGEMENT When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.

2. Judge advocate's review pursuant to Article
64(a), if any.

3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.

4. Briefs of counsel submitted after trial, if any
(Article

5. DD Form 494, "Court?Martial Data Sheet."

6. Court?martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.



8. Matters submitted by the accused pursuant to
Article 60 (MOM, 1984, RCM 1105).

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).

10. Congressional inquiries and replies, if any.

11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

13. Requests by counsel and action of the
convening authority taken thereon requests
concerning delay, witnesses and depositions).

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.

b. lndex sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.

c. Record of proceedings in court, including
Article 39(a) sessions, if any.

d. Authentication sheet, followed by certificate
of correction, if any.

e. Action of convening authority and, if appro?
priate, action of officer exercising general court?
martial jurisdiction.

f. Exhibits admitted in evidence.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

h. Appellate exhibits, such as proposed in?
structions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.



DD FORM 490, MAY 2000

Inside of Back Cover



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