Title: Volume FOIA 022

Release Date: 2014-03-20

Text: 06472

Volume 22 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 FCDIJC Ml/er: VA 22211
(Unit/Command Name) (Branch of Service) (Station or Snip)
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-9

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 2012, 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 ?verbatirri or ?surrimari'zeo? as appropriate. This form be used by the Army and Navy for verbatim records of triai

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

DD FORM 490, MAY 2000 PREWOUS OBSOLETE Front Cover

06473

A.

1
2

request--additional request---Q.

3
4

If they sent a--I’m sure if I saw the memorandum for

Sir, can you please turn to page 8 of tab 8?

[The witness did as directed.]

5

A.

Yeah, okay.

6

Q.

Are you familiar with this document?

7

A.

Yeah, I’m familiar.

8

Q.

What is this document?

9

A.

This is a request from the defense for courier cards.

10

Q.

Did you consult with trial counsel on this request?

11

A.

Yes.

12

Q.

And what was your determination?

13

A.

To grant them courier cards.

14

Q.

Okay, sir.

So now, let’s move to the next period of delay

15

from mid-October to mid-November.

Sir, what happened after the

16

previous period of delay was near its suspense?

17

A.

I would get an additional request for an Article 32 delay.

18

Q.

Okay, sir.

Can you please turn to pages 1 through 3 of tab

19

9?

20

[The witness did as directed.]

21

A.

Okay.

22

Q.

Are you familiar with this document?

23

A.

This is the follow-on request for delay of Article 32.

2570

06474

1

Q.

And who is this document from and to?

2

A.

It is from the trial counsel to me.

3

Q.

And, sir, what’s the date of this document?

4

A.

25 October 2011.

5

Q.

Sir, I’d just like to draw your attention to paragraph 2 of

6

this document.

7

determination?

Did you consider these updates in making your

8

A.

Yes.

9

Q.

And, again, what other type of updates were you being

10

provided?

11

A.

I was provided weekly updates from defense counsel.

12

Q.

And, sir, did the defense--to your recollection, did the

13

defense object to this period of delay?

14

A.

Yes.

15

Q.

Sir, can you please turn to page 4 of tab 9?

16

[The witness did as directed.]

17

Q.

Are you familiar with this document, sir?

18

A.

Yes, it’s an email from Mr. Coombs to me.

19

Q.

And what is this document?

20

A.

It’s dated the 25th of October.

It’s his position on the

21

delay request.

He maintained his previous position that additional

22

delay should not be excluded and it should be credited to the

23

government.

2571

06475

1
2

Q.

And did you consider this objection in making your

determination?

3

A.

Yes.

4

Q.

What was your determination on the government’s request?

5

A.

I granted the delay.

6

Q.

Can you please turn to page 5 of tab 9?

7

[The witness did as directed.]

8

Q.

Are you familiar with this document?

9

A.

I am.

10

Q.

What is--what’s the date of the document, sir?

11

A.

The date of the document is the 27th of October; it’s my

12
13
14

approval of the delay request.
Q.

And did you provide this approval--or was this document

provided to--who was this document provided to?

15

A.

The IO, trial counsel, and defense counsel.

16

Q.

And what did you consider in making this determination?

17

A.

The previous memorandum, the request from trial counsel,

18

defense’s objection to it and input to the delay, and the weekly

19

updates I was having with Major Fein.

20

Q.

And after receiving--or reviewing the defense’s objection,

21

what did you do to make sure that evidence was being turned over to

22

the defense as soon as possible?

2572

06476

1

A.

Well, it was a continuing process.

We continued to update

2

in the accounting memorandums and anytime that Ashden talked to me at

3

a point--because we were getting information in, the classification

4

authorities received, you know, turned it over to the defense so they

5

could prepare for their Article 32.

6
7

Q.

Yes, sir.

So, you did prepare an accounting memorandum for

this period of time, to your recollection?

8

A.

Yes.

9

Q.

Can you please turn to page 6 of tab 9?

10

[The witness did as directed.]

11

Q.

Do you recognize this document, Colonel Coffman?

12

A.

I do.

13

Q.

What is the date of the document?

14

A.

16 November 2011.

15

Q.

And what is this document?

16

A.

This document is the accounting memorandum that accounts

17

for the delay period of 14 October to the day of this memorandum

18

which is 16 November 2011.

19
20

Q.

And was this memorandum provided to the--who was this

memorandum provided to?

21

A.

Trial counsel and defense counsel.

22

Q.

And, sir, during this time, were you provided updates on

23

the status of this case?

2573

06477

1

A.

Yes, weekly.

2

Q.

Okay, sir.

Can you please turn to page 7 of tab 9--7 and 8

3

of tab 9?

4

[The witness did as directed.]

5

A.

Okay.

6

Q.

What is the date of this document?

7

A.

4 November 2011.

8

Q.

And what, generally--what is this document?

9

A.

This is a--well, what this is is an email exchange that was

10

forwarded to me.

11

defense on what was--what we had available, then, to turn over in

12

discovery.

13

Q.

It was an email exchange between trial counsel and

And, sir, in this email that Major Fein--or that the trial

14

counsel forwarded to you, what, specifically, did trial counsel

15

notify you of?

16

A.

That we will--well, in this particular update, I believe we

17

had one left--one remaining OCA that we required to hear from in

18

order to complete their classification reviews and I believe this is

19

the time frame that we were getting prepared to restart the Article

20

32 because we thought that the OCA was going to be complete, here,

21

within a couple of weeks--complete with his classification review.

2574

06478

1

Q.

Okay, sir.

And just to clarify, is the date of this

2

memorandum on 4 November?

3

we waiting on at this point?

4
5

A.

About how many classification reviews were

On the 4th of November, I believe we had one or two left.

I can’t recall correctly, but I know we were getting close.

6

Q.

Yes, sir.

7

A.

About mid-November, I want to say, we had one left to

8
9

complete if I recall correctly.
Q.

Okay, sir.

So now I would like to just move forward to the

10

very last period of delay in this case.

11

of delay was near its suspense date, what happened?

12

A.

So, when the previous period

As it got toward mid-November, we were--the classification-

13

-the final classification authority that we had to get a response

14

back from before we could start the Article 32 had ensure us that it

15

would be in about--by the beginning of the month.

16

press on with executing the Article 32 hearing.

17
18

Q.

Yes, sir.

So, we started to

Can you please turn to pages 1 and 2 of tab 10?

[The witness did as directed.]

19

A.

Okay.

20

Q.

And are you familiar with this document, sir?

21

A.

I am.

22

Q.

What is this document?

2575

06479

1
2
3
4

A.

This document is the request by the trial counsel to

restart the Article 32 investigation.
Q.

Okay, sir.

I’d like to just draw your attention, again,

just to paragraph 2 of this document.

5

A.

Okay.

6

Q.

What, if any, updates did trial counsel provide you on the

7
8

classification review?
A.

Well, as we were getting through the classification

9

reviews--this was, as I discussed before, was where we were down to

10

one remaining--or one outstanding classification review that had to

11

be completed.

12

move on with the Article 32.

And--so we had a discussion and recommendation that we

13

Q.

Discussion with trial counsel?

14

A.

Trial counsel.

15

Q.

And, sir, what, if any, update in this request did trial

16

counsel provide you on the unclassified CID case file?

17

A.

I don’t remember specifically what.

18

Q.

On the status of discovery?

19

A.

Well, we had continuously been turning discovery over----

20

Q.

Yes, sir.

21

A.

----to the defense.

22

Q.

I’d just like to draw your attention, sir, to paragraph 2

23

subparagraph B; just the last sentence, sir.

2576

What if any update was

06480

1

provided on the status of discover and turning over information to

2

the defense?

3

A.

Well, it wasn’t included in the--in this document--in the

4

request to restart the Article 32.

5

evidence that they were seeking to disclose from the CID.

6

Q.

Okay, sir.

He just gave me an update on the

And then, in subparagraph C, what update did--

7

what, if any, update did trial counsel provide you on the status of

8

security clearances?

9

A.

He just updated and said that they had been--the defense

10

team members had received their security clearances; the requests

11

were complete.

12
13
14

Q.

Sir, in this memorandum, when did the trial counsel request

that the Article 32 investigation begin?
A.

I don’t remember the exact date.

It was, I want to say, 30

15

days from--roughly 30 days because that is what we had planned in

16

the--for the execution of the Article 32 from when we were complete

17

until able to execute the Article 32, I want to say it was the 22nd

18

of December, 20th of December, sometime, I think; I don’t remember

19

the exact date.

20

Q.

Sir, what do you mean by “execute the Article 32”?

21

A.

Well, to conduct the Article 32; to start the proceeding.

22

Q.

What, if anything, was required before the Article 32 took

23

place?

2577

06481

1

A.

We had an operation planned--an OPLAN in effect that we had

2

established.

3

know, it’s exactly what it is, it’s a plan until you execute it as an

4

order.

5

requirements that we were going to have to pull together in order to

6

conduct the Article 32 hearing.

We referred to it as OPLAN B.

So, it was a plan out there that we were--of all the

7

Q.

What--some of this----

8

A.

Well, we had several things.

9

The OPLAN was just--you

We had--well, the process--it

was kind of broken down into a couple of areas.

One is there is

10

transportation issues, security issues, public affairs issues, there

11

are facility issues, all these things that we had to pull together

12

based on the attention that the case was getting and the space that

13

was going to be required to conduct it was not available anywhere

14

else.

15

to put into effect so we could conduct the Article 32.

So, we had picked Fort Meade and we picked on operations plan

16

Q.

Sir, who was involved in actually executing OPLAN B?

17

A.

Well, there’s--in the execution of the OPLAN, I am the

18

supported unit at the time because it’s our responsibility to conduct

19

the Article 32 hearing.

20

execute the Article 32 hearing.

21

Joint Force Headquarter wrote the OPLAN and established it and so

22

they are the supporting units.

23

Q.

Our--had the facilities and capability to
The Military District of Washington

Sir, what do you mean by “supported”?

2578

06482

1

A.

Well, I don’t have the capability to conduct an Article 32

2

or prepare the facilities, transportation, security requirements--the

3

requirements for the media that was potentially going to come to the

4

Article 32.

5

and they have to provide that help.

6

from out Headquarters Battalion, a great deal from units here at Fort

7

Meade, the garrison here at Fort Meade, and Military District of

8

Washington Joint Force Headquarters.

9

Q.

So, I have to go out and ask for help from other units
That came, primarily, from--some

So, sir, why couldn’t you execute--you’re Commander of

10

Joint Base Myer-Henderson Hall, why couldn’t you have executed OPLAN

11

B without the assistance of----

12

A.

I just didn’t have the resources to do it.

You know, I got

13

a--like I said before, I mean, a TDA of Soldiers that actually

14

control on it, anywhere from a dozen day-to-day, and then I have a

15

civilian work force of, you know, 500 plus.

16

Q.

So, to execute OPLAN B were just military resources needed?

17

A.

Well, primarily military resources; we had civilian

18

resources as well, depending on what you’re working around too.

19

Q.

Yes, sir.

And why was OPLAN B necessary in this case?

20

A.

Well, because of the attention we were getting in the case.

21

Q.

Okay, sir.

So, with the prosecution’s request for a delay-

22

-or to restart, rather--for a delay and to restart the Article 32,

23

did the defense object to that request to your recollection?

2579

06483

1

A.

Defense understood the requirements for OPLAN B and they

2

objected to the time period, as I recall.

3

or Mr. Coombs requested that we start the Article 32 about a week

4

earlier than what we had planned.

5
6

Q.

Okay, sir.

I believe they wanted to--

Can you please turn to page 47 of tab 10?

[The witness did as directed.]

7

A.

Okay.

8

Q.

Sir, are you familiar with this document?

9

A.

I am.

10

Q.

What is the date of this document?

11

A.

It’s 16 November.

12

Q.

And what is--who is this document from and to?

13

A.

It’s from Mr. Coombs to me.

14

Q.

And what is this document?

15

A.

It’s his response back to my decision to restart the

16

Article 32.

He makes a recommendation, here, on the date that he

17

proposed to restart it.

18

Q.

And what was that date, sir?

19

A.

He requested to restart it on the 12 of December?

20

Q.

So, the prosecution requested a start date of 16 and he

21
22

requested a start date of 12?
A.

Of--yeah, the date was 16, yeah.

2580

06484

1
2
3

Q.

Did the defense, in its objection, ever object to whether

or not OPLAN B was necessary?
A.

No.

As I stated before, he understood that OPLAN B was a

4

requirement, he just preferred to start it earlier than 30-day period

5

of time.

6
7
8
9
10
11
12

Q.

Why did he request an--did the defense request and earlier

start period in this objection?
A.

In this particular objection, as his note states, it said

they would provide them enough time to complete the hearing prior to
the holiday period.
Q.

And, sir, how did you act on the prosecution--or the

government’s request for--to restart the Article 32?

13

A.

I approved it.

14

Q.

Okay, sir.

15

Can you please turn to page 48 of tab 10?

[The witness did as directed.]

16

Q.

Are you familiar with this document?

17

A.

Yes.

18

Q.

What is this document?

19

A.

This document is an excludable delay memorandum and I

20

approved the Article 32 investigation to restart no later than 16

21

December and account for the period of 22 April through the 16th of

22

December as excludable delay.

2581

06485

Q.

1

So, sir, earlier you testified that the trial counsel

2

notified you that there was still one outstanding classification

3

review----

4

A.

That’s correct.

5

Q.

----before the Article 32 was ordered to restart.

6

A.

Correct.

7

Q.

Why didn’t you wait until the final classification review--

A.

Well, I was comfortable that it was--with the information

8

--

9
10

and the update I was getting from the trial counsel and his

11

discussions, directly, with the individuals at the agency that the

12

classification authority was having to come from, he was comfortable

13

that it was going to be done in 2 weeks and was confident in that

14

individual’s ability to get it back, so we went ahead and moved out.
Q.

15
16

receive the final classification reviews?
A.

17
18

Well, sir, why didn’t you just wait until you actually did

No reason to wait on one if we got it and we know we have a

good time-frame of when it’s going to get there.

19

Q.

Why is there no reason, sir, to wait?

20

A.

Well, if there is no reason to wait, there’s no reason to

Q.

Yes, sir.

21
22

wait.
So, why did you----

2582

06486

1
2
3
4

A.

In other words, we were comfortable we were going to get

the information back from the OCA.
Q.

So, what did you consider in executing OPLAN B at this

point?

5

A.

Well, we were trying to----

6

Q.

Ordering to restart, rather?

7

A.

----get it done.

8

Q.

Can you explain that a little bit more, sir?

9

A.

Well, I--exactly what I said.

We were trying to move on.

I mean we have a requirement

10

for PFC Manning to get complete with an Article 32 and bring this

11

entire business to close, so we were trying to move along as fast as

12

we can and wherever we can gain time, we’re trying to gain time.

13

Q.

Yes, sir.

14

A.

If I’m--if I can gain a couple of weeks, then that’s good.

15

Q.

So, you considered the right of the accused?

16

A.

We considered the rights of the accused from the beginning.

17

Q.

And, sir, did you account for this period of delay from 16

18

November to the start of the 32?

19

A.

Yes.

20

Q.

Sir, can you please turn to tab 10, page 49?

21

[The witness did as directed.]

22

Q.

Are you familiar with this document, sir?

23

A.

I signed it; I’m familiar with it.

2583

06487

1

Q.

What is it, sir?

2

A.

It’s an accounting memorandum from the period of 16

3

November to 15 December in order to execute OPLAN B, fundamentally,

4

is what it is.
Q.

5

Okay, sir.

And during this time, do you remember any

6

other--so from 16 November until the restart of the 32, do you

7

remember any other requests made during this time?

8

A.

I don’t recall, specifically, any request.

9

Q.

Sir, would anything help refresh your memory?

10

A.

If someone sent me a document that requested a particular

11

item or individual during this time-frame and I approved it, I’m sure

12

I would recall it if I saw it.
Q.

13

Check, sir.

Can you please turn to pages 50 and 51 of tab

14

10?

15

[The witness did as directed.]

16

A.

Okay.

17

Q.

Sir, what’s the date of this memorandum?

18

A.

This date--it’s dated 28 November.

19

Q.

And who is this document to and from?

20

A.

The document is for me from the defense counsel.

21

Q.

And what is this document, sir.

22

A.

It’s request for software necessary to conduct computer

23

forensic work.

2584

06488

1

Q.

And did you act on this request?

2

A.

Yes, I granted it.

3

Q.

Can you please turn to page 52 of tab 10?

4

[The witness did as directed.]

5

A.

Yeah, I approved it.

6

Q.

This is your memorandum, sir?

7

A.

This is my memorandum, it’s my signature.

8

Q.

Okay, sir.

9

Your approval?

So, during this time, did the prosecution

provide you with updates on the status of----

10

A.

Yes, we continued to get updates.

11

Q.

Did the prosecution provide you with updates on the status

12

of this OPLAN B?

13

A.

Roger.

14

Q.

Sir, can you please turn to pages 56 through 60 of tab 10?

15

[The witness did as directed.]

16

A.

Okay.

17

Q.

Sir, what’s the date of this document?

18

A.

This memorandum is the 6th of December.

19

Q.

And who is this document to and from?

20

A.

It is to me from Major Fein.

21

Q.

And what is this email?

22

A.

Well, it’s an email telling--it’s just, basically, giving

23

me an update on when they received the final classification review.

2585

06489

1
2
3

Q.

Yes, sir.

And what other updates, if any, did trial

counsel provide you in this email?
A.

Well, including that, also, are forwarded emails that are

4

OPLAN B and fragmentary orders, if you will, to OPLAN B, where they

5

are and--the adjustments to OPLAN B and where we are in selecting--

6

primarily, the discussion revolved around movement and security and

7

confinement, here, in this particular local area.

8
9

Q.

Yes, sir.

So, sir, you testified about the periods of

delay stretching from mid-July 2010 until the Article 32 began.

10

Whether it was defense requested, government requested, there was

11

significant periods of delay in this case.

12

A.

That’s correct.

13

Q.

Sir, were you ever concerned about how long this was

14

taking.

15

A.

I remained concerned about how long it’s taking.

16

Q.

I’m sorry, sir, can you repeat that?

17

A.

Yes, we were concerned about how long it’s taking.

I mean,

18

we have a requirement to get a fair Article 32 for PFC Manning.

19

have a 120-day requirement in order to get that done.

20
21
22
23

Q.

We

So what----So, again, can you just explain, again, why you

were concerned this was taking so long?
A.

Well, the concern is that you have one of your Soldiers is

in pre-trial confinement.

And so, you’re trying to get this--trying

2586

06490

1

to move on with the Article 32 and get it complete so you can

2

continue on with whether or not there is a requirement for further

3

action.

4

this case, with the volume of information that the accused had--been

5

accused of leaking and the classification and information was very

6

important to the entire process.

7

information and getting the request from these government agencies to

8

disclose that information, I didn’t think PFC Manning would get a

9

fair Article 32 if we didn’t have that complete.

10

Q.

But, in order to do that, you’ve got to have--especially in

Yes, sir.

And without classifying that

So, a decent amount of the period of delay was

11

actually, as you just said, sir, waiting on these government

12

agencies, government organization to respond back.

13

contact these government agencies?

Did you ever

14

A.

No.

15

Q.

About classification reviews?

16

A.

No.

17

Q.

Approval to disclose classified information?

18

A.

I never, personally, contacted an original classification

19

authority.

20

Q.

And why is that, sir?

21

A.

I have--I’m confident that my trial counsel is making

22

appropriate coordination with the staffs at the agencies where the

23

original classification authorities that have to be coordinated with.

2587

06491

1
2
3
4
5
6
7
8

Q.

And, sir, in this case, why were you confident that trial

counsel was---A.

I don’t have any reason not to believe that trial counsel

is not getting at the task I’m asking him to get at.
Q.

Yes, sir.

Were they providing you with updates throughout

this case?
A.

They were providing me with updates, weekly, throughout the

process.

9

Q.

Yes, sir.

10

A.

Yes, we were seeing some progress.

11

And did you see the progress of this case?
We were getting

information back from some agencies quicker than others.

12

Q.

And did that factor into your decision?

13

A.

Absolutely.

14

Q.

So, sir, why--so you’re a senior officer, sir, why did you

15

feel like you calling up these organizations wouldn’t expedite the

16

process?

17

A.

I don’t think that any of the government agencies out there

18

were, you know, getting up in the morning and not getting at their

19

requirements.

20

receiving information from the trial counsel and the trial counsel

21

was coordinating--well, probably several members of the trial counsel

22

were coordinating with these agencies to get the information required

23

from the classification review.

I mean, they were--I was comfortable that I was

2588

06492

Q.

1

Sir, in your opinion, based on you experience, do you think

2

that having an O6, a full-bird colonel call up, do you think that

3

would have expedited the process?
A.

4

Being a full-bird colonel in Washington DC is a relative

5

term.

6

there’s certainly that aspect.

7

at a Fort Hood where you’re one of half a dozen; you’re one of many,

8

here.

9

classification authorities, they’re all senior executive service or,

10
11
12

I mean, it’s pretty important being a full-bird colonel;
But, you know, it’s not like you’re

Most of the ranks of the individuals in these agencies and the

you know, senior GOs--general officers or flag officers.
Q.

And you do have some experience working with these senior

government officers?

13

A.

Yes.

14

Q.

So, you’re aware of their case loads and what’s----

15

A.

I understand----

16

Q.

----required?

17

A.

----how a senior executive office works in the U.S.

18

government.

19

Q.

Did you consider that when making your----

20

A.

Yes.

21

Q.

And, sir, at any point in this case, did you contact the

22
23

Army G2 Office about the processing of these security clearances?
A.

No.

2589

06493

1

Q.

And why not, sir?

2

A.

I didn’t feel a requirement to.

3

to get involved.

4

to believe they couldn’t do their job.

5

Q.

I didn’t feel like I had

The trial counsel had not given me any reason not

So, sir, what was your--so, again, there’s been a lot of

6

delay in this case.

7

end-state?

What was your number one mission?

What was your

What did you want the final outcome to be?

8

A.

Well, the end-state is to get your Article 32 complete.

9

Q.

Yes, sir.

10

A.

And once the Article 32 is complete, then you determine

11

whether or not there’s enough information there, you know, to move on

12

or what you recommend to the General Court-Martial Convening

13

Authority.

14

And you can’t get at a proper and thorough Article 32 unless you have

15

done the proper research and worked on the evidence through the

16

classification reviews and, you know--I mean, once it’s classified

17

and it’s validated, then you have to go back and get requests to

18

disclose it.

19

So, that is--was the purpose throughout that time period.

ATC[CPT WHYTE]:

20

for you.

21

MJ:

22

CDC[MR. COOMBS]:

23

Sir, the United States has no more questions

The defense may, after this.

But thank you very much, sir.

Well, do you want a recess before you begin?
What the defense would suggest is this would

be a good time to do the ex parte 39(a), have the extended lunch,

2590

06494

1

that way my cross is not broken up and, if we could, just start back

2

at 1300 unless the Court thought the ex parte 39(a) would require

3

more time, then 1330 would be fine.

4
5

MJ:

No, 1300 will be fine.

before we recess the Court?

6

TC[MAJ FEIN]:

7

MJ:

8

session.

9

Anything else we need to address

No, Your Honor.

We’ll immediately proceed to the ex parte Article 39(a)

TC[MAJ FEIN]:

Ma’am, we’re going to need a few minutes for the

10

Court reporter to set up the equipment, but after that, we’ll have

11

the bailiff notify you, Your Honor.

12

MJ:

That’s fine.

13

CDC[MR. COOMBS]:

All right.

Anything else we need to address?

No, Your Honor.

14

[The witness was duly warned and the Article 39(a) session recessed

15

at 1059, 8 November 2012.]

16

[END OF PAGE]

2591

06495

Pages 2592 through 2608 of this
transcript are classified
“SECRET”. This session (8
November 2012, Session 1) is
sealed for Reasons 2, 3, and 4,
Military Judge’s Seal Order
dated 17 January 2014 and
stored in the classified
supplement to the Record of
Trial.

06496

1

[The Article 39(a) session was called to order at 1304, 8 November

2

2012.]

3

MJ:

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

Let the

4

record reflect all parties present when the Court last recessed are

5

again present in court.
Over the extended lunch recess, the Court had an

6
7

opportunity to sign the protective order that we discussed earlier

8

today.

9

Has that been marked as an appellate exhibit?

TC[MAJ FEIN]:

Your Honor, it has not been marked yet.

10

Currently it is being copied and so it could be a redacted version

11

can also be used in the appellate exhibit.

12

MJ:

All right.

So the actual protective order will be a

13

classified exhibit, the redacted version will be in the public

14

record.

15

cross-examination?

16

TC[MAJ FEIN]:

17

CDC[MR. COOMBS]:

18

MJ:

19

CDC[MR. COOMBS]:

22
23

No, Your Honor.

All right.

No, Your Honor.
Proceed.
Thank you, Your Honor.
CROSS-EXAMINATION

20
21

Anything else we need to address before we continue with

Questions by the civilian defense counsel [MR. COOMBS]:
Q.

Colonel Coffman, I want to first talk to you about the 706

board that you appointed, okay?

2609

06497

1

A.

Okay.

2

Q.

Now, you ordered the 706 board to--actually, on 3 August

4

A.

Yes.

5

Q.

And you appointed Lieutenant Colonel Almanza as the IO for

6

the----

7

A.

Investigation.

8

Q.

----Article 32.

9

A.

For the Article 32.

10

Q.

So that was a “yes”?

11

A.

Yes.

12

Q.

And on 11 August 2010, the defense requested a delay of the

3

13

2010?

Article 32 hearing, correct?

14

A.

Yes.

15

Q.

And you approved of that delay on the 12th of August?

16

A.

I believe the 12th is correct, yeah.

17

Q.

Now, in your approval, you order that the period from 11

18

August 2010 until the R.C.M. 706 board was completed would be

19

excludable delay, is that correct?

20

A.

Yes.

21

Q.

And you approved the defense’s delay request in order,

22
23

basically, to conduct the 706 board?
A.

That’s correct.

2610

06498

1

Q.

Now, you excluded the time from 11 August 2010 until the

2

conclusion of the R.C.M. 706 board because 11 August 2010 was the

3

first time that you received a request for a delay from the defense?

4

A.

That’s correct.

5

Q.

Now, on 22 September 2010, you ordered what was called, “a

6
7
8

preliminary classification review”?
A.

I ordered a preliminary classification review.

I don’t

remember the specific date.

9

Q.

Does that sound about right?

10

A.

It would have been probably close to the 22nd of September.

11

Q.

Okay.

And the preliminary classification review was

12

required and--in your mind and, therefore, you needed to delay the

13

706 board?

14

A.

That’s correct.

15

Q.

And you ordered the preliminary classification review

16

because you believed that PFC Manning might, potentially, discuss

17

classified information?

18

A.

During the 706 board, that’s correct.

19

Q.

And, at the time that you ordered the preliminary

20

classification review, you assumed that PFC Manning might discuss

21

classified information at the TS-SCI level?

22

A.

Yes.

2611

06499

1
2
3
4
5

Q.

You believed that because, at that point, you were aware of

some of the information that had allegedly been leaked?
A.

We had--the information that had allegedly been leaked was,

potentially, TS-SCI information, that’s correct.
Q.

Okay.

And you also believed that because the defense had

6

given you notice of the fact that PFC Manning might discuss TS-SCI

7

information?

8

A.

Yes.

9

Q.

Now, you indicated--I just want to bring up something you

10

talked about on direct.

You said that the defense objected to the

11

preliminary classification review, is that correct?

12

A.

Yes.

13

Q.

Now, isn’t it true that we didn’t object to the preliminary

14

classification review, we just simply objected to one of--one aspect

15

of your order that required PFC Manning to divulge what he was going

16

to share with defense counsel?

17

A.

Yes.

18

Q.

And other than that, we were not objecting to the

19

preliminary classification review, correct?

20

A.

That’s correct.

21

Q.

The preliminary classification review completed its work on

22
23

13 December 2010?
A.

I don’t remember the exact date that they completed it?

2612

06500

1
2

Q.

Why don’t you take a look at tab 1, page 44?

[The witness did as directed.]

3

A.

That’s document 13 December 2010, that’s correct.

4

Q.

Okay.

5

And it was not until 3 February 2011 that you

ordered the R.C.M. 706 board to resume its work?

6

A.

That’s correct.

7

Q.

On 13 December 2010, you did not know, at that point,

8
9
10
11

whether or not the 706 board members had been identified, correct?
A.

That’s correct--they had been identified or that they had

the appropriate security clearances.
Q.

All right.

So, just to make sure, you did not know, on 13

12

December 2010, whether or not the 706 board members had been

13

identified?

14

A.

No.

15

Q.

And did you ask the trial counsel why, as of 13 December

16

2010, the 706 board members were not identified yet?

17

A.

No.

18

Q.

Do you know how many board members were on the 706 board?

19

A.

They had three board members.

20

Q.

And do you recall when it was that the trial counsel

21
22

actually told you, by name, who those board members would be?
A.

I don’t remember the exact date, no.

2613

06501

1
2
3
4
5

Q.

Do you recall whether or not when the board members were

selected, whether they had the requisite TS-SCI clearance?
A.

I believe that--if my memory is correct, I believe one had

and two had not.
Q.

And did you ask the trial counsel why they had not

6

identified the members in advance of 13 December 2010 that had the

7

TS-SCI clearance?

8

A.

No.

9

Q.

Do you know how long it took to complete the process of

10

getting the other two members a TS-SCI clearance?

11

A.

I don’t remember the exact length of time.

12

Q.

Your trial counsel’s chronology that they provided to the

13

Court states that on 31 January 2011, all R.C.M. 706 board members

14

were granted security clearances at TS-SCI and read-on to SCI.

15

the trial counsel tell you about that fact?

16
17
18
19

A.

Did

The trial counsel let me know when they were complete with

their--that they were ready to continue with the 706 board.
Q.

And when the trial counsel told you that, were they telling

you that they had all the members with TS-SCI clearance?

20

A.

That among a couple other things, yeah.

21

Q.

And did you ask the trial counsel, at that point, why it

22

had taken from the 13 December to the 31 January time frame to get

23

all the members with a TS-SCI clearance?

2614

06502

1

A.

No.

2

Q.

Now, you indicated before that you would like to save time

3

wherever you could save time, right?

4

A.

Right.

5

Q.

Was there anything that was preventing the trial counsel

6

from identifying members prior to 13 December 2010 who had a TS-SCI

7

clearance?

8
9
10

A.

Other than trying to get--identify board members with

clearances, no.
Q.

And if they identified a board member who didn’t have the

11

requisite clearance, was anything preventing the trial counsel from

12

making sure or getting those board members a TS-SCI clearance prior

13

to 13 December 2010?

14
15

A.

Prior to the classification review being complete, we

didn’t know there was a requirement.

16

Q.

Well, you knew that that was a possibility, correct?

17

A.

Absolutely.

18

Q.

And you, earlier, said that wherever we could save time, we

19

would save time, right?

20

A.

That’s correct.

21

Q.

And, obviously, you would agree with me, sir, that if you

22

had an inclination that TS-SCI is going to be discussed, it would

2615

06503

1

behoove you to go ahead and get the members with a TS-SCI clearance,

2

correct?

3

A.

It would.

4

Q.

And you indicated that that process could take up to a

5

year, right?

6

A.

7
8
9
10
11
12
13

That process could take a long time.

6 weeks happened--was

pretty quick, though.
Q.

Correct, but my question was that you indicated that that

process could take up to a year, correct?
A.

It could, depending on the individual having to get the

investigation, yeah.
Q.

So, again, it would be a good idea, as soon as you could,

to start that process?

14

A.

Sure.

15

Q.

And had that process been started ahead of 13 December

16

2010, nothing would have prevented the board from beginning its work

17

on 13 December 2010, correct?

18
19

A.

Yes, if we had board members with TS-SCI clearances prior

to then, we could have started the board--706 board sooner.

20

Q.

We could have started it on 13 December 2010, correct.

21

A.

Right.

Like I said, we’re looking for the preliminary

22

classification to validate the fact that this was going to be a

23

requirement.

2616

06504

1

Q.

Sir, my question, though, is had you identified members

2

with TS-SCI clearance on 13 December 2010 when you got the

3

preliminary classification review back----

4

A.

Right.

5

Q.

----you could have started the board on that day, correct?

6

A.

That’s correct.

7

Q.

Now, were you concerned that the board wasn’t ready to

8

start or restart on 13 December 2010?

9

A.

Not particularly, no.

10

Q.

And you weren’t concerned because why?

11

A.

Well, I knew we had to complete a 706 board; there were

12

requirements for the board member.

13

case, we’re dealing with classified information which requires--just

14

is a lengthy process.

15

information, things are more difficult; more time consuming than

16

other, if you’re dealing with unclass information.

17
18

Q.

Okay.

We’re dealing with--in the entire

Any time you’re dealing with classified

But my question was you weren’t concerned that the

board wasn’t ready to resume its work as of 13 December 2010?

19

A.

No.

20

Q.

Now, when the board to do its work, it was quickly apparent

21

that you were going to need, at least, one meeting to take place in

22

the SCIF, correct?

23

A.

Yes.

2617

06505

1
2
3
4

Q.

And, sir, the board needed to meet with PFC Manning only on

one occasion, actually, in the SCIF, is that right?
A.

I’m not sure exactly how many meetings needed to happen in

the SCIF.

5

Q.

You weren’t briefed on that by the trial counsel?

6

A.

I didn’t go into the details of what interview was going to

7
8
9
10

happen when during the 706 board.
Q.

So, if I’m understanding your testimony right now, you knew

that a meeting would have to take place in the SCIF, but you didn’t
know how many?

11

A.

12

a SCIF.

13

Q.

How many meetings were going to require to be conducted in

And we’ll talk about Dr. Sweda’s request for delay and I

14

think that might jog your memory on that in a moment.

15

than what had to take place in a SCIF, everything else could be done

16

outside of a SCIF, correct?

But, other

17

A.

If it was going to be unclass information, it could.

18

Q.

And since it was going to be unclasss information, nothing

19

would prevent the board members from discussion that with PFC Manning

20

outside of a SCIF?

21

A.

That’s correct.

2618

06506

Q.

1

So, obviously then, the 706 board could have resumed its

2

work prior to the date that you ordered it, 3 February 2011, if they

3

were just going to discuss the unclassified information, correct?

4

A.

Yes.

5

Q.

Did you ask the trial counsel about that possibility,

6

about, “Look, we’re not ready to go at 13 December 2010, but why

7

don’t we start the unclassified?”

8

A.

No, I didn’t.

9

Q.

Did the trial counsel ever suggest that as a possibility to

11

A.

Not that I recall.

12

Q.

Did you know when the trial counsel actually began looking

10

13

you?

for a SCIF for the R.C.M. 706 board’s use?

14

A.

No.

15

Q.

But as--actually, we talked about this last week.

You said

16

you were surprised when I told you that the trial counsel didn’t

17

begin that process until after 13 December 2010.

18

A.

Right.

19

Q.

And you were, in fact, surprised by that, right?

20

A.

Right.

21

Q.

And according to the trial counsel’s chronology provided to

22

the Court on page 50 of Appellate Exhibit 330, they contacted INSCOM

2619

06507

1

to request to use their SCIF on 27 January 2011.

2

counsel inform you of that?

Did the trial

3

A.

No.

4

Q.

Did the trial counsel ever tell you why they waited until

5

27 January 2011 to attempt to locate a SCIF for the Court’s use?
A.

6

We had a discussion on--during updates of where--the fact

7

that we had to conduct a meeting or an interview in the SCIF, but I

8

never into the details of where they were actually trying to get it

9

done until they came back to me and said that they had found a

10

location.
Q.

So that answer would be “no,” then?

13

A.

No.

14

Q.

Now, according to the trial counsel’s chronology, again, on

11
12

They didn’t tell you--

--

15

page 58 of Appellate Exhibit 330, they scheduled a recon of INSCOM’s

16

SCIF on 25 February 2011.

17

fact?

18
19
20
21
22
23

A.

Did the trial counsel tell you about this

I knew that they were looking to secure a facility in order

to conduct the interview.
Q.

Did they tell you about going to the facility to do a

recon?
A.

Right, we just--there were several facilities, I believe,

reconned other than that one.

2620

06508

1

Q.

Now, again, last week you indicated you were surprised when

2

I informed you that they were scheduling that recon or trying to do

3

that recon as late as 25 February 2011?

4

A.

Of the INSCOM facility, yes.

5

Q.

And that was surprising to you, right?

6

A.

Yes.

7

Q.

Because you wanted the board to resume its work on 3

8

February 2011?

9

A.

3 February.

10

Q.

And I think your words to me were, “I would expect them to

11

be prepared to execute the SCIF aspect of that on the date I ordered

12

the board to resume”?

13

A.

Correct.

They were looking for a SCIF at the time, right.

14

Q.

Correct, but you indicated to me that you believe they

15

should be prepared to execute that on the day that you ordered the

16

board to resume?

17

A.

True.

18

MJ:

Mr. Coombs, can I stop you there for just a moment?

You’re

19

referring to a government chronology that’s an attachment of--which

20

chronology are we talking about?

21

CDC[MR. COOMBS]:

Talking about Appellate Exhibit 330, Your

22

Honor; it’s an appellate exhibit.

23

chronology.

2621

The government provided a 231-page

06509

1

MJ:

It’s that one?

2

CDC[MR. COOMBS]:

Okay.
And so, that’s why I’m giving you some page

3

numbers.

I can go back, though, to give you some of these references

4

if you want to record them so you can look at it later or right now;

5

it’s fine.

6

MJ:

7

CDC[MR. COOMBS]:

8

It’s fine.
So, ma’am, the first reference that I

referred to was on page 50 of Appellate Exhibit 330.
MJ:

9

Okay.

CDC[MR. COOMBS]:

10
11

Okay.

And the second reference, ma’am, is on page

58.

12

MJ:

Okay.

13

CDC[MR. COOMBS]:

And, now, I’m going to be referencing what’s

14

on page 60 of Appellate Exhibit 330.

15

[Examination of the witness continued.]

16

Q.

Sir, on 1 March 2011, the trial counsel’s chronology

17

indicates the scheduled a tour of the INSCOM SCIF for the 706 board.

18

Did they tell you about that?

19
20

A.

I was aware that they were reconning facilities for a 706

board----

21

Q.

Well, this one, though, was----

22

A

----but I didn’t know when they----

2622

06510

1
2

Q.

----to schedule a tour for the 706 board.

Did you know

about that?

3

A.

Yes.

4

Q.

And did the trial counsel tell you why they needed to

5
6

schedule a tour of the INSCOM facility for the 706 board?
A.

We had gone through the process--or the trial counsel had

7

gone through the process of looking at several different SCIF

8

facilities and it was related to the capability of the facility and

9

access to the facility.

Most of these facilities are not unused

10

facilities waiting for us to conduct an interview.

I mean, they’re

11

used in day-to-day operations, so, he wanted a tour so everyone knew

12

where and when they needed to be.

And in----

13

Q.

So this----

14

A.

----addition, you’ve got to get to and from the facility

15

and make plans for how you get the accused from the confinement

16

facility to the SCIF.

17

Q.

Okay.

I guess my question was a tour of the facility for

18

the 706 board members.

19

to know where to go and see the facility, or was there another

20

purpose for it?

21
22

A.

So, was this in order for the board members

Well, if the board members are going to--I’m assuming that

the board members are going to recon their facility--in order to

2623

06511

1

conduct this interview, they’re going to make sure the facility meets

2

their requirements to conduct the interview.

3

TC[MAJ FEIN]:

Your Honor, we object.

That’s not a fact that’s

4

anywhere in evidence that it even occurred; the 706 board touring a

5

facility.

6

MJ:

Which--you’re relying on a chronology by the government, is

7

that correct?

8

CDC[MR. COOMBS]:

9

MJ:

And that’s on page----

10

TC[MAJ FEIN]:

11

CDC[MR. COOMBS]:

12

I am, Your Honor.

What’s the exact---The exact page is Page 60 of Appellate

Exhibit 330.

13

MJ:

And where’s the entry you’re referring to?

14

TC[MAJ FEIN]:

Your Honor, I think the entry is probably one-

15

third down:

1 March 2011, Tuesday.

It says, specifically,

16

“Scheduled a tour of the INSCOM facility for the 706 board.”

17

Unfortunately, the defense is interpreting this to mean that the

18

board, themselves, toured versus the prosecutors touring it for the

19

board.

20

no--it’s just a misunderstanding.

That’s what--this line of questioning did not occur.

21

CDC[MR. COOMBS]:

22

what he’s been briefed on.

23

that, then he can.

There’s

Obviously, if Colonel Coffman can talk about
If he says he hasn’t been briefed on

It’s not a proper objection.

2624

06512

1
2
3
4

MJ:

It’s fine.

Just go ahead and ask the question.

Overruled.

[Examination of the witness continued.]
Q.

So, did the trial counsel tell you that the 706 board was

scheduled to do a tour of the INSCOM facility?

5

A.

Yes.

6

Q.

And from your memory, why was that tour required for the

7
8
9
10

706 board?
A.

As I stated before, so they knew whether or not the

facility met the requirements for them to conduct the interview.
Q.

And, again, another aspect of this, I believe at the time

11

that when we talked, was the wanting to schedule that facility in

12

order to provide the most privacy for PFC Manning, right?

13

A.

That’s correct.

14

Q.

And you expressed, on direct, that you wanted to do it on

15

the weekend or after hours on a weekday, is that right?

16

A.

That’s correct.

17

Q.

And did you discuss those concerns with the trial counsel?

18

A.

I did.

19

Q.

And was that one of your concerns?

20

A.

That was the guidance that I gave them; that we attempt to

21

do it after duty hours.

Like I said before, the SCIFs are not just

22

empty, open facilities.

There are several available, so we need to--

23

there are people that work in these, potentially, on a day-to-day

2625

06513

1

basis, so you need to de-conflict their schedules to--the individuals

2

that use them for a regular work-week.

3

conduct it after duty hours or on the weekends.

4

preferable because there would be less individuals around the

5

facility during the weekend.

6
7
8
9
10

Q.

And then--so, we tried to
Weekends were

And, from your memory, were you informed that the trial

counsel had secured the INSCOM SCIF for Saturdays only?
A.

I don’t recall exactly what it was, but it was a weekend,

if they were following my guidance right.
Q.

Okay.

And, obviously--what was your concern of--tell me

11

what your concern was to have it scheduled after duty hours or on the

12

weekend.

13

A.

Okay.

The first part I just discussed, I think, with de-

14

conflicting the individuals that actually work in the facility on a

15

day-to-day basis.

16

Q.

Uh-huh.

17

A.

The second part of that was, as I discussed earlier, the--

18

PFC Manning’s movement to and from the facility and then moving out

19

of vehicles into the facility and in and around the facility during a

20

weekend would have been--privacy aspect of that.

21

lot of attention in the media and we had already, potentially, had

22

some experiences with different agencies and organizations, you know,

23

coming out and voicing their opinions and I just thought it would be

2626

This was getting a

06514

1

easier on everyone concerned--on us as far as our resources and PFC

2

Manning, especially if he’s going to a 706 board, to have privacy as

3

he moves from his vehicle in and around the facility to get to the

4

SCIF.

5
6
7

Q.

And you told me you were concerned that media might find

out or other people might find out?
A.

Oh, the media finds out, other people find out, and then it

8

becomes a public event.

9

a public event.

10
11

Q.

Okay.

I’m just trying to prevent it from becoming

And, obviously, even if you schedule it on a

Saturday, media could find out about it, right?

12

A.

They could, absolutely.

13

Q.

And other people could find out about it?

14

A.

Sure, but less risk.

15

Q.

And, you know, your initial deadline--let’s talk about that

16

for a moment--for the 706 board, was to complete this on 4 March

17

2011, right?

18

A.

It was the--yes.

19

Q.

And the board didn’t submit its report on 4 March 2011?

20

A.

They did not.

21

Q.

On 14 March 2011, almost 2 weeks after the suspense date

22

set by you, Dr. Sweda sought an extension of the suspension, correct?

2627

06515

A.

1
2

suspense date.
Q.

3
4

Yes, he provided a written document 11 days following the

And did you ask Dr. Sweda why he was requesting an

extension?

5

A.

No, I didn’t personally talk to Dr. Sweda

6

Q.

I’m sorry, I didn’t finish my question.

Did you ask him

7

why he had not submitted his extension prior to the 4 March 2011

8

deadline?
A.

9

I had gotten information in discussion with the trial

10

counsel that the board was not going to be complete, through a phone

11

call and through email, and the discussion was that the board was not

12

going to be complete with the 706, they were going to need additional

13

time.

14

know--like I testified to earlier, they were trying to get an

15

appointment--the last interview done before the 10th of April----

And so, we went through a process from that point on of, you

Q.

My question, sir, though, is did you ask Dr. Sweda why he--

18

A.

I did not talk to Dr. Sweda.

19

Q.

Okay.

16
17

20

--

So, the answer, then, would be you didn’t ask him

why he did not submit----

21

A.

No.

22

Q.

----an extension prior to the deadline?

23

A.

No.

2628

06516

1
2

Q.

And, obviously, you’re not, as a commander, used to people

missing suspenses and not giving you a heads up on that, correct?

3

A.

That’s a correct statement.

4

Q.

And you would expect if someone is going to miss a

5

suspense, they give you an advanced notice, right?

6

A.

I had noticed that the suspense was not going to be met.

7

Q.

Not from Dr. Sweda?

8

A.

Not from Dr. Sweda, no; from trial counsel.

9

Q.

Now, in Dr. Sweda’s memorandum--and you probably will have

10

to take a look at it, so, if you go to tab 2, page 7 and just tell me

11

when you get there.

12

[The witness did as directed.]

13

A.

Okay.

14

Q.

So, in his memorandum, Dr. Sweda relates to you that he

15

needs an additional 57 more days from the original suspense date of 4

16

March because “the evaluators are coordinating suitable dates and

17

times for the final evaluation session to take place.

18

multiple parties.

19

in a SCIF and this has resulted in the consumption of extra time for

20

this aspect of the evaluation to be coordinated.”

21

that says that?

22

A.

This involves

Additionally, the final interview will take place

Yep, paragraph 2.

2629

Do you see where

06517

1

Q.

So, going back to an earlier thing that you weren’t for

2

sure about, they needed to meet with PFC Manning once in a SCIF,

3

correct?

4

A.

Yeah, according to this document, yes.

5

Q.

All right.

And here, Dr. Sweda was saying that he was

6

having problems coordinating suitable dates for the final evaluation,

7

correct?

8

A.

That’s correct.

9

Q.

Did you ask Dr. Sweda why he was having problems

10

coordinating suitable dates for the final evaluation?

11

A.

I didn’t talk to Dr. Sweda.

12

Q.

So that was a “no” then?

13

A.

I did not talk to Dr. Sweda.

14
15

No, I did not talk to Dr.

Sweda.
Q.

Okay.

And did you ask the trial counsel why the board was

16

having difficulty scheduling a--or coordinating suitable dates and

17

times for the final evaluation?

18

A.

I believe in the discussion of our weekly updates with the

19

trial counsel, we had that discussion.

It revolved around the fact

20

that the individuals were--several board members, like I said, worked

21

in different places.

22

had on their plate at the time, nor was it the only thing that the

They were not--this was not the only thing they

2630

06518

1

facility had to--mission the facility had at the time.

2

having difficulty coordinating those schedules and the location.

3
4

Q.

So, they were

And part of that coordination difficulty was because they

were limited to Saturdays, correct?

5

A.

Yes.

6

Q.

And did you ever ask the trial counsel, “Given the

7

coordination problems, why don’t we just have the board meet on some

8

other day besides a Saturday?”

9

A.

We had that discussion with him.

10

Q.

Do you know of any reason why the board could not meet in

11

the SCIF on any other day of the week besides Saturday?

12

A.

No.

13

Q.

Were you ever informed that Dr. Sweda actually requested

14

the ability to meet with PFC Manning on some other day besides a

15

weekend day?

16

A.

No, I don’t recall that.

17

Q.

And you received Dr. Sweda’s request on 14 March 2011,

18

correct?

19

A.

That’s correct.

20

Q.

You didn’t act on his request until 18 March 2011, is that

21

correct?

22

page 9, same tab.

23

A.

And, sir, if you need to refresh your memory, just--it’s on

Okay.

It is--yes, 18 March.

2631

06519

1

Q.

Sir, can you explain why the 4-day delay and----

2

A.

In responding to this memorandum?

3

Q.

I’m sorry, sir?

4

A.

No, I don’t know any reason in particular.

5

Q.

Now, the extension request that Dr. Sweda asked for a delay

6

until 29 April 2011, is that correct, sir?

7

A.

The original request, I believe, requested till 29 April.

8

Q.

And, sir, you set a suspense date of 16 April 2011?

9

A.

Yes.

10

Q.

You set an earlier date because you wanted Dr. Sweda to

11

move out and get the board complete?

12

A.

Finish up the board, right.

13

Q.

You conveyed your concern to the trial counsel that the

14

board needed to complete its work, right?

15

A.

By 16 April.

16

Q.

And you wanted to expedite the 706 process?

17

A.

We wanted to get it complete, roger.

18

Q.

Now, at this point, the board really just needed to meet

19

with PFC Manning in a SCIF?

20

A.

Yes.

21

Q.

Now, if needed, there were SCIFs that were within your

22
23

command’s control, isn’t that correct?
A.

Yes.

2632

06520

Q.

1
2

And did you ever explore the possibility of using one of

the SCIFs that is within your command’s control?

3

A.

Yes, we did.

4

Q.

And can you tell me about that?

5

A.

Well, we have one other SCIF facility that is in our

6

control; it’s at Fort McNair.

7

basis by the MDW and Joint Force Headquarters, so it’s--deconflicting

8

SCIF and scheduling that as opposed to the INSCOM SCIF was really a

9

wash in the analysis of which one is--which one could completed

10

That SCIF is used on a day-to-day

quicker.
Q.

11

And when we spoke earlier, you indicated that you hadn’t

12

considered other SCIFs, so if you can tell me, from your memory, now,

13

when that discussion was and who was involved---A.

14

No, I don’t remember exactly when the discussion was, but I

15

think in the discussion we had--I may be recalling it incorrectly,

16

but we did discuss the SCIF at Fort McNair.
Q.

17

All right.

Now, if there was another SCIF, either at Fort

18

McNair or, for that matter, just another SCIF within the MDW region--

19

--

20

A.

Right.

21

Q.

----that was available other than a Saturday, you could

22
23

have probably used that, correct?
A.

Yes, potentially.

2633

06521

1

Q.

Sir, let’s go to Dr. Sweda’s second extension request on 15

2

April 2011.

And that’s that same tab 2, page 8.

Now, Dr. Sweda, in

3

this request, explains that the delay was necessary because the

4

board’s limited availability to meet as a full board to discuss the

5

report.

6

three board members.

This is because of conflicting schedules and demands of the

You see where it says that, sir?

7
8

A.

On page 8?

9

Q.

Yes, sir, if you----

10

A.

Tab 2?

11

Q.

----go to paragraph 2, “We’re nearing,” and it’s a

12

sentence.

13

A.

Okay.

There you go.

14

Q.

Okay.

So you see where it says that, sir?

15

A.

Yes.

16

Q.

Did you ask Dr. Sweda why the board was having limited

17

I got it.

availability to meet as a full board?

18

A.

I, personally, did not talk to Dr. Sweda.

19

Q.

Did the trial counsel ask Dr. Sweda why the board was

20

having difficulty meeting as a full board?

21

A.

I don’t know if the trial counsel asked him that or not.

22

Q.

Was the 706 board duties the primary duty for the board

23

members?

2634

06522

1

A.

It is a primary duty for the board members, yes.

2

Q.

And that would mean, essentially, that that board--that

3

duty would take precedent over other duties?

4

A.

Depending on what else they had on their plate, correct.

5

Q.

And I just wanted to know if that was your understanding,

6

sir, that the 706 board’s duty----

7

A.

Yes, I would think that that would-----

8

Q.

----to do the 706 board was----

9

A.

----be a--right, that would be a primary duty.

10

Q.

Okay.

11

2011?

Now, you approved of Dr. Sweda’s request on 15 April

That would be the----

12

A.

I approved his request, yes.

13

Q.

Now, if you go to tab 2, page, 10, sir?

14

That’s not dated 15 April.

[The witness did as directed.]

15

A.

Okay.

16

Q.

So, you approved his request on 15 April 2011?

17

A.

That’s correct, for the 22nd of April.

18

Q.

Right.

19

A.

Yes.

20

Q.

Now, on 23 April, the 706 board submitted its final report?

21

A.

22 April, yes.

22

Q.

And--now, I want to back track just for a moment and talk

23

So, I’m just saying you approved it on this day.

about your monthly excludable delay memorandums, okay?

2635

06523

1

A.

Sure.

2

Q.

All right.

Now, on 12 October--and, in fact, this will

3

help if we just go back to that real fast--tab 1, sir, page 45.

4

[The witness examined the document.]

5
6

Q.

Okay, sir.

On 12 October 2010, you began your practice of

issuing monthly excludable delay memoranda, correct?

7

A.

Yes, to account for the delay period.

8

Q.

And you had conversations with the trial counsel about how

9

long it was taking to process the case?

10

A.

Yes.

11

Q.

And the trial counsel told you the need to account for this

12

time with excludable delay memoranda?

13

A.

That was their recommendation, yes.

14

Q.

Now, you didn’t write this 12 October 2010 memorandum,

15

correct?

16

A.

No.

17

Q.

The trial counsel wrote this for you?

18

A.

Yes.

19

Q.

Now, in the 12 October 2010 memorandum, you state that the

20

period from 12 July 2010 until the date of this memorandum is

21

excludable delay under R.C.M. 707.

22

A.

Yes.

2636

Do you see that, sir?

06524

1

Q.

Now, again, going back to what we kind of started off with,

2

on 3 August when you appointed Lieutenant Colonel Almanza as the 32

3

IO, you gave him a 10-day suspense to complete the----

4

A.

The original suspense, yes.

5

Q.

And on 11 August, when you received the defense’s delay

6

request and approved it on 12 August, that’s when you delayed the

7

Article 32 hearing, correct?

8

A.

That’s when I started the delay process, yes.

9

Q.

Now, as we previously covered in your 12 August 2010

10

approval, you excluded the time from 11 August 2010 forward at that

11

point, correct?

12

A.

I don’t know what the exact date is in your--which----

13

Q.

From your initial----

14

A.

----memorandum are you referring to?

15

Q.

----when you initially approved----

16

A.

Yes.

17

Q.

Okay.

18

A.

I’m with you.

19

Q.

Okay.

20

A.

Yes.

21

Q.

Now, on 3 August, when you directed that the Article 32

So, you approved it from 11 August 2010 forward?

22

hearing be complete within 10 days, you did not believe at that point

23

that you had a delay request, obviously?

2637

06525

1

A.

Right.

2

Q.

So, if you did not receive a delay request from the defense

3

on 11 August 2010, under your order, the delay would need to be

4

completed by--or the Article 32 would need to be completed by 13

5

August 2010, correct?

6

A.

Yes

7

Q.

So, for this--the initial approval of 12 August 2010, why

8
9
10

didn’t you start the excludable back to 12 July 2010 at that point?
A.

Because when I received the case, it was already under a

delay request.

11

Q.

Was that why you did that?

12

A.

It was--this was a continuation of delay from the 11 August

13

request and then the defense’s 11 August request, I assume

14

responsibility for the delay to 12 July.

15

Q.

Okay.

So, is that why you’re telling--you’re telling the

16

Court and myself, now, that you excluded--you didn’t exclude the

17

delay from 12 July on the 12 August date because you believed, at

18

that point, there was already a delay in place?

19

A.

There was a delay in place--when we got the case and PFC

20

Manning came from Kuwait, there was already a delay in place.

21

defense had already requested a delay from the previous court-

22

martial--Special Court-Martial Convening Authority.

2638

The

06526

1

Q.

Sir, earlier when we talked about when you ordered the 32,

2

you indicated that you ordered the 32 to take place within 10 days

3

because you didn’t believe the delay----

4

A.

No, I said I ordered----

5

Q.

----was in place?

6

A

----the Article 32 to take place in 10 days.

7
8
9
10

We’re now at

the discussion of excluding the delay to 12 July.
Q.

Correct, sir.

So, when you went ahead and approved of the

delay request on 12 August 2010, you did not take that delay request
back to 12 July, correct?

11

A.

I’d have to go back to look at it.

12

Q.

And that was because you at the time that you ordered that

13

you ordered the 32 to begin, there was no delay and the 32 needed to

14

be done within 10 days?

15

A.

I gave the IO 10 days to accomplish the Article 32.

16

Q.

And you gave that IO 10 days, because at that point, when

17

you ordered it, the case was new to you, correct?

18

A.

The case was new to me, yes.

19

Q.

And no defense counsel had asked you for any delay?

20

A

No defense----

21

Q.

No defense has asked a delay of you at that point, correct?

22
23

Until 11 August?
A.

Until 11 August, correct.

2639

06527

1

Q.

All right.

Now, let’s look at the 12 October excludable

2

delay memorandum and look at paragraph 3, sir.

3

[The witness did as directed.]

4
5

Q.

You identify the following as your basis for excludable

delay----

6

A.

Right.

7

Q.

----the original classification authority’s review of

8

classified information, the defense’s request on 11 July, 18 July, 25

9

August, 26 August, 3 September, the preliminary classification review

10

order, and the defense response to the preliminary classification

11

review order, is that correct?

12

A.

Yes.

13

Q.

And you identified all of these as the basis for the

14

excludable delay?

15

A.

Yes.

16

Q.

This is based upon the advice from your trial counsel.

17

A.

Trial counsel, right.

18

Q.

And, as we discussed earlier, the trial counsel drafted

19

this for you?

20

A.

Yes.

21

Q.

You didn’t draft this?

22

A.

No, I did not personally draft this.

2640

06528

1
2

Q.

Now, one of those bases that you listed was the OCA review

of classified information?

3

A.

That’s correct.

4

Q.

And this basis--based upon our previous discussion--correct

5

me if I’m wrong, but this basis meant two things to you:

first the

6

OCA classification review of the charged documents and, second, the

7

OCA to review information that the trial counsel wanted to release to

8

the defense?

9

A.

Disclosure requests, right.

10

Q.

So those were the two things that that meant to you?

11

A.

Those were the two primary considerations, yes.

12

Q.

Okay.

So, let’s discuss the OCA classification review of

13

the charged documents.

As of 12 October 2010, you believe that the

14

OCAs should be reviewing the charged documents in order to complete

15

their classification review?

16

A.

Right.

17

Q.

And, at that point, based upon what the trial counsel had

18

relayed to you, the review of the charged documents was the smaller

19

subset of documents that the trial counsel or the government had

20

selected to charge as opposed to all the leaked documents, correct?

21

A.

Correct.

22

Q.

And that’s what you understood the OCAs to be reviewing?

23

A.

Right.

2641

06529

1
2

Q.

Now, you did not know any of the OCAs, at this point, by

name, correct?

3

A.

No.

4

Q.

And you didn’t know any of the OCAs--what exactly they were

5

reviewing?

6

A.

No.

7

Q.

You didn’t know how many document each OCAs were being

8

asked to review?

9

A.

No.

10

Q.

And you did not know how long it would take for the OCAs to

11

complete their classification review?

12

A.

That’s correct.

13

Q.

Now, let’s talk about some of your other excludable delay

14

memorandums.

15

four separate excludable delay memorandums and these can be found on

16

pages 47 through 50 of that same tab.

17

glance at those and when you’re done you can just look up at me.

18

[The witness did as directed.]

From 10 November 2010 to 15 February 2011, you signed

Just take a moment to take a

19

A.

Okay.

20

Q.

Okay.

21

A.

They haven’t changed since this morning.

22

Q.

And before, I’m sure, sir.

23

So, these four memorandums, the

10 November 2010, the 17 December 2010, the 14 January 2011, and the

2642

06530

1

15 February 2011, exclude 105 days of time.

2

right to you, sir?

Does that sound about

3

A.

If those are the dates, it’s correct.

4

Q.

And about the length of that time, 105 days, does that

5

sound about right?

6

A.

It sounds about right.

7

Q.

And would you agree with me that each of these memoranda

8

are, essentially, the same?

9

A.

They are very close to the same.

10

Q.

The only real difference between these four is the date,

11
12
13
14
15

for the most part?
A.

There are a couple of--well between the first one and the

last one, there’s one difference.
Q.

Yeah, the first one lists the preliminary classification

review order and it’s not in the other three, right?

16

A.

That’s correct.

17

Q.

So, other than that, they’re, essentially, the same?

18

A.

Essentially the same.

19

Q.

And all these memorandums were drafted by the trial

20

counsel?

21

A.

Yes.

22

Q.

And you never made and substantive changes to any of these

23

memoranda?

2643

06531

1

A.

No.

Like I said before, no content changes.

2

Q.

You might have noted a period of out place----

3

A.

Period or punctuation error or something, right.

4

Q.

Okay.

5

A.

Right.

6

Q.

Now, when one of these excludable delay memoranda was

But no substantive changes?

7

presented to you, you would typically speak to a trial counsel about

8

10 to 15 minutes about it?
A.

9
10

10 to 15 minutes.
Q.

11
12

It depended on what the discussion was about, but probably

Okay.

And after that 10 to 15-minute conversation, then

you would sign the memorandum?

13

A.

Yeah.

14

Q.

And during the 105 days of this delay, did you know what

15

the OCAs were doing?
A.

16

Right, during the weekly updates, as I stated this morning-

17

-during the weekly updates or updates with the trial counsel, they

18

would tell me that the OCAs were continuing to press on with the

19

information, continue to work on getting their classification reviews

20

complete and the disclosure requests complete.
Q.

21

All right.

So, let’s dig down into what you were told,

22

then.

Did you know whether or not each of the OCAs had begun their

23

classification reviews?

2644

06532

1

A.

I didn’t know the status of each OCA nor the status of how

2

many documents they had and how many they were--had to review and

3

where they were in their review process----

4

Q.

All right.

So----

5

A.

----during those updates.

6

Q.

----because you didn’t know any of that, you had no idea

7

how much longer it would take for each of the OCAs to complete their

8

review?

9

A.

I didn’t have a set time, no.

10

Q.

Did you ever ask that question:

11

how much longer is it

going to take them to complete their review?

12

A.

Not particularly, no.

13

Q.

And the trial counsel never briefed you on how much longer

14

it was going to take to complete their review?

15

A.

We just knew it was probably going to take a while.

16

Q.

And you also were never briefed by the trial counsel on how

17

many people from each OCA was even working on the classification

18

review?

19

A.

No.

20

Q.

You never asked that question?

21

A.

No.

22

Q.

And the trial counsel never briefed you on how many

23

documents each OCA was reviewing?

2645

06533

1

A.

No.

2

Q.

You never asked that question?

3

A.

No.

4

Q.

I’m sorry, sir, was that a “no”?

5

A.

No.

6

Q.

And the trial counsel, also, during this time frame

7

basically just said the OCAs were continuing to press on?

8

A.

9

Is that---

Well, they--we had a discussion about the classification

10

reviews, disclosure requests, and as--come about, I think in March,

11

we started getting--well, we got some initial feedback, initially,

12

from the OCAs---Q.

13
14

And we’ll get to the March time frame, but I’m talking

about this time frame, sir.
A.

15

Well, even prior to March, there were some that came back

16

quicker than others; they had accomplished those classifications and

17

released quicker than others.

18

as I would have my updated with the trial counsel and the trial

19

counsel is interfacing with the OCAs, they were continuing to move

20

on.

21

counsel was not doing his job.

I don’t remember the exact dates, but

Like I said before, I don’t have any reason to believe the trial

2646

06534

1

Q.

All right.

Well, let’s talk about some of the other

2

things, then.

3

information to verify what the OCAs were doing, right?

4
5
6
7
8
9
10
11

A.

At this point, though, you had no independent

Independent information?

As far as what?

Me talking to

the OCAs?
Q.

No, as far as just independent information to know exactly

what the OCAs were doing, where they were at---A.

No, I didn’t have a tracking sheet by OCA, by document, by

date or anything like that.
Q.

Okay.

So, you were just assuming that the trial counsel

was doing his job and the OCAs were doing their job?

12

A.

Doing their jobs, right.

13

Q.

Now, on 13 January 2011, the defense made its first demand-

14
15
16

-actually, first of two demands for speedy trial, correct?
A.

That’s the date.

I’m sure there’s a document in here that

you sent.

17

Q.

It’s not in here, but does that sound right to you?

18

A.

I remember on, I believe, two occasions, specifically

19

stating a concern over speedy trial, yes.

20

Q.

And does 13 January 2011 sound right to you?

21

A.

I don’t know the exact date, but it could be, yes.

22

Q.

Okay.

23

Now, you reviewed the defense’s speedy trial demand,

correct?

2647

06535

1

A.

Yes.

2

Q.

And you spoke to the trial counsel about what the defense’s

3

speedy trial demand meant?

4

A.

Yes.

5

Q.

And you understood at this time, and you even said on

6

direct that you understood that, after you took out the excludable

7

delays, you needed to have the trial within 120 days?

8

A.

Right.

9

Q.

You understood that the defense was asking that the

10

government, basically, to get the process rolling quicker in order to

11

get the client to their Article 32 hearing, correct?

12

A.

That’s correct.

13

Q.

You understood that we were asking that because our client

14

was in pretrial confinement?

15

A.

Yes.

16

Q.

Now, obviously, the trial counsel, because the memorandum

17

talked about it, explained to you not only what R.C.M. 707 was, the

18

speedy trial right, but also Article 10.

19

that?

Did they talk to you about

20

A.

I don’t remember specifically.

21

Q.

Did he talk to you about the requirement of due diligence

22
23

on---A.

He did----

2648

06536

1

Q.

----their part?

2

A.

----roger.

3

Q.

I’m sorry, sir, was that----

4

A.

Yes, I’m not familiar with each individual article of the

5

UCMJ----

6

Q.

I wouldn’t expect you to be, sir.

7

A.

Yeah, hooah.

8

Q.

Okay.

9
10

So, given that PFC Manning was demanding a speedy

trial at that point, did you ask the trial counsel when they believed
they would be able to start the Article 32 hearing?
A.

11

No.

Just in our updates--I just asked him if we were

12

continuing to move forward with the OCAs.

13

particular date when we would have to start--or when we would be able

14

to start again.
Q.

15

All right.

I didn’t ask him a

Sir, if you would, go to tab 2 page 16.

16

Actually, go to page 11, first, sir, of that same tab.

17

you take a look at 11, just to see what I’m--what it is, also take a

18

look at 16, too, as well, sir, and when you’re done, just look up at

19

me.

20

[The witness did as directed.]

21

A.

11 to 16.

22

Q.

Tab 11--page 11, start, and then page 16.

23

A.

Page 16?

Okay.

2649

And so, when

06537

1
2

Q.

All right.

Sir, these are two other excludable delay

memoranda, correct?

3

A.

That’s correct.

4

Q.

One is 18 March 2011 and the other is 22 April 2011?

5

A.

Correct.

6

Q.

Now, on the 18 March 2011 memorandum, that’s the one on

7

page 11, you list for the first time as a basis for excludable delay,

8

“OCA consent to disclose classified information.”

Do you see that?

9

A.

Yes.

10

Q.

Now, what did “OCA consent to disclose classified

11
12

information” mean to you?
A.

Once the information is determined or verified to be a

13

classification, the classification authority that owns it has to

14

release it or get us permission to disclose it.

15

Q.

Now, did the trial counsel brief you on 18 March 2011 where

16

the OCAs were in the process of giving consent to disclose classified

17

information?

18

A.

Specific consent?

19

Q.

During the period from 15 February 2011 to 22 April 2011,

20

I don’t remember.

do you know what the OCAs were doing?

21

A.

They were working on the classification reviews.

22

Q.

And did you actually know that because you contacted the

23

OCAs or that’s----

2650

06538

1

A.

I did not.

2

Q.

----what you were being told by the trial counsel?

3

A.

I did not contact the OCAs.

4

Q.

I’m sorry?

5

A.

I did not contact the OCAs.

6

Q.

So, did you know that because of some independent

7

information or just because of what the trial counsel was telling

8

you?

9

A.

Because of the information I was getting.

10

Q.

From?

11

A.

From the trial counsel.

12

Q.

Okay.

13

A.

Well, we’re continuing to press on with classification

And what were they telling you, sir?

14

reviews and disclosure requests and there were a multitude of things

15

that were delaying us there.

16

Q.

Well, with regards to the consent to disclose classified

17

information, did they tell you--did they give you any specifics, like

18

they were about 50 percent of the way through?

19
20

A.

I don’t recall percentages or, like I said, I don’t--maybe

you can ask me the question again, I think I----

21

Q.

22

answer?

I just want making sure you have--are you done with your

2651

06539

A.

1

Yeah, no, I remember specifically that--I know that as we

2

were getting information disclosed or permission from the OCAs to

3

disclose information, we were turning that over.
Q.

4

Okay.

But, at this point, when you list this as a basis,

5

you didn’t receive anything from the OCAs to say that they were at 50

6

percent completion or they had x amount of documents left to review?

7

A.

No.

8

Q.

And, again, if I’m understanding correctly, you were

9

assuming based upon the trial counsel’s representations to you that

10

the trial counsel was doing their job and the OCAs were doing their

11

jobs?

12

A.

OCAs were doing their job, that’s correct.

13

Q.

Let’s look at the 25 April 2011 memorandum; that’s tab 3,

14

page 1, sir.

15

[The witness did as directed.]

16

A.

Okay.

17

Q.

All right.

18

On that date, the government submits the first

of many requests for a delay of the Article 32 hearing, correct?

19

A.

Correct.

20

Q.

And the government requested the delay, you see, for their

21

purpose there--“The United States receives consent from all original

22

classification authorities to release discoverable classified

23

evidence and information to the defense.”

2652

06540

1

A.

Yes.

2

Q.

Now, this delay was, basically, in order to obtain the OCA

3

classification reviews and the OCA’s authorization to disclose the

4

charged classified information to the defense?

5

A.

Yes.

6

Q.

Let’s talk about, first, the trial counsel’s request for

7

authorization to disclose the charged documents to the defense, okay?

8

A.

Sure.

9

Q.

Now, the government provided you, as part of this

10

memorandum--you see where it says “enclosures” at the bottom, sir?

11

A.

Yes.

12

Q.

They provided you, as part of this memorandum, with

13

redacted copies of the OCA disclosure request dated 14 March 2011 and

14

the OCA classification review request dated 18 March 2011.

15

recall that?

16

A.

17

CDC[MR. COOMBS]:

18

I don’t recall, specifically.

Do you

Is it in----

Could I have Appellate Exhibit 376b?

[The Court reporter handed the civilian defense counsel AE 376b.]
Q.

19

Sir, I’m handing you what’s been marked Appellate Exhibit

20

376b.

If you can go ahead and just hold on to that, we’re going to

21

be referring back to that a couple times.

22

just kind of glance at it and when you feel you’ve looked at it

2653

But, just for right now,

06541

1

enough to refresh your memory, just look up at me and I’ll ask the

2

remainder of my questions.

3

[The witness did as directed.]

4

A.

Okay.

5

Q.

No, sir, the OCA disclosure request, dated 14 March 2011,

6

those request authorization to disclose the charged documents to the

7

defense, is that correct?

8

A.

9

information.

10

Q.

11
12
13
14

Yes, it’s a request for a consent to disclose classified

And did you review these documents because of the fact that

they were enclosures to the delay of the 32 request?
A.

I don’t recall specifically.

I remember reviewing several

documents.
Q.

Okay.

But, for this, the 25 April delay of the 32, the

15

very first time that they asked to delay the 32, do you recall

16

looking at those documents because they were an enclosure to the

17

request?

18

A.

I don’t recall, specifically, reading these documents, no.

19

Q.

All right.

And is that because, in your mind, you think

20

too much time has gone by and you forgot, or do you think that you

21

never looked at these documents.

22

A.

I don’t recall.

23

Q.

Okay.

I mean, it’s been a while.

Who’s----

2654

06542

1

A.

I’m not----

2

Q.

It’s been a long time.

3

A.

Yeah.

4

Q.

The 14 March 2011 memorandum, there are three, particular--

I understand.

5

one, the Department of State, Army G2, and to an organization we’ll

6

just call OGA1 and they request consent to disclose classified

7

information to the defense.

8
9
10

A.

Is that correct?

Well, they’re redacted in here.

If that’s what’s in the

redaction, yes, that’s correct.
Q.

All right.

If you look at one of the 14 March 2011

11

memorandums, there’s a paragraph in which a trial counsel gives a

12

scope of the request.

13

this request consists of classified digital evidence, forensic copies

14

of digital evidence, and copies of the documentary evidence collected

15

in this case that contain classified information identified as a

16

originating from,” and then you fill in whichever organization it’s

17

addressed to.

The request is “the classified information for

Do you see where that’s at?

18

A.

That’s in paragraph 4, yes.

19

Q.

Okay.

Did you ever ask the trial counsel why they waited

20

so long to request consent to disclose the classified information to

21

the defense?

22

A.

No.

2655

06543

Q.

1

Do you know that the Department of State actually gave

2

approval to disclose the requested classified information to the

3

defense on 29 March 2011?
A.

4

Well, yes.

I didn’t know, specifically, Department of

5

State, but I knew that we were starting to get information back from

6

OCAs in March.
CDC[MR. COOMBS]:

7
8
9
10

And, ma’am, that’s in enclosure 25 of AE

339.
Q.

Did you know that the Army G2 gave approval to disclose the

requested classified information to the defense on 30 March 2011?

11

A.

Not specifically, no.

12

CDC[MR. COOMBS]:

13

Q.

Ma’am, that’s in enclosure 1 of email 0387.

And did you know that OGA1 gave approval to disclose the

14

requested classified information to the defense, also, on 29 March

15

2011.

16

A.

17

CDC[MR. COOMBS]:

18
19

I was not familiar with that, specifically, no.
Ma’am, that’s in the government’s motion on

page 11.
Q.

Did the trial counsel tell you that the OCAs gave them

20

consent to disclose the requested classified information to the

21

defense at the end of March 2011?

22
23

A.

I don’t recall the specific organization or information

that was disclosed, I just knew that we were--the information that I

2656

06544

1

got back from trial counsel was we were making progress from our

2

OCAs, we were getting information back, and we were getting

3

permission to disclose it and we were disclosing it.

4

Q.

Okay.

And so, just from your memory, do you recall whether

5

or not the trial counsel, at the end of March, said, “Hey, sir, we’ve

6

gotten authorization for a few of the main ones”?

7

A.

We’re getting--right, we’re getting evidence back we’re

8

able to disclose to the defense.

My concern was making--my concern

9

was not to each page, each agency, my concern was that we were making

10

progress toward getting the mission completed, getting the

11

classification authorities complete and disclosure requests done.

12

Q.

Okay.

So, let’s now talk about the classification reviews

13

by the various OCAs.

If you look at that packet again, Appellate

14

Exhibit 376b, if you thumb forward a little bit, you’ll see

15

memorandums that are dated 18 March 2011.

16

have to go a few because it starts off with the 14 March once and

17

then it goes to the 18 March.

You’re probably going to

18

A.

Yeah, all right.

19

Q.

And just whenever you find one, just let me know, sir.

20

A.

Does it matter which one?

21

Q.

It doesn’t, no sir.

22
23

[The witness did as directed.]
A.

Okay.

2657

06545

1

Q.

All right sir.

So, if you look at one that’s dated 18

2

March 2011, you see where the trial counsel requests the OCAs to

3

finalize their classification review of the charged documents?

4

A.

In the 18 March request, in the first paragraph, the

5

purpose, it states:

6

case requests an appropriate authority finalize their classification

7

reviews.”

8
9

Q.

“The prosecution team in the above referenced

And “finalize” is stressed in the paragraph--or in--

correct?

10

A.

Well, it’s italicized or a different font, yeah.

11

Q.

Okay.

Now, in this request for a delay memorandum to you,

12

the government represented that, since 17 June 2010, the United

13

States has been diligently working with all the departments and

14

agencies that originally classified the information and evidence

15

sought to be disclosed to the defense and the accused.

16

them making that representation to you?

17
18
19
20
21
22
23

A.

Do you recall

Yeah, but I’m not sure on what the specific dates.

I

remember the discussion, yeah.
Q.

All right.

And do you--as far as the date goes, from a--if

you--does the 17 June date sound right to you?
A.

I couldn’t tell you what the date is specifically, no, I

don’t know.
Q.

Okay.

2658

06546

1

A.

We’re dealing with about 300 dates here.

2

Q.

No, I know, sir.

A lot of time went by and a lot of

3

different dates, but--hold on one second and I’ll get a document for

4

you.

If you look back at tab 3, page 1, sir?

5

A.

Okay.

6

Q.

All right, sir, so, if you go to background, paragraph 2---

8

A.

Uh-huh.

9

Q.

Do you see the second full sentence starting off since 17

11

A.

Since 17 June 2010.

12

Q.

Okay.

7

10

13

-

June?

So, the trial counsel made the representation to you

that they’ve been working on this since 17 June 2010?

14

A.

Yes, that’s what they stated in the document right here.

15

Q.

All right.

Just about time period from 17 June 2010 to the

16

date of this memorandum, 25 April 2011--and I’m not trying to stump

17

you, here, but do you realize that covers 313 days?

18

A.

Yeah, I won’t check your math.

19

Q.

You’ll trust me on that?

20

A.

I believe you.

21

Q.

All right, sir.

So, during that 313-day time period when

22

the trial counsel then started to request that each of the OCAs

23

finalize their classification review.

2659

Did you ask the trial counsel

06547

1

what they meant when they inserted the word “finalized” in their

2

memorandum?

3

A.

No.

4

Q.

Did any of the OCAs tell you that they were close to

5

finalizing their classification reviews at the date of this

6

memorandum?

7
8
9

A.

I didn’t particularly talk to any of the OCAs on where they

were in classifying their information.
Q.

Did the trial counsel tell you that any of the OCAs

10

represented to them that they were close to finalizing their

11

classification reviews as of the date of these memorandums?

12
13
14
15

A.

I don’t recall, specifically, that they were at any

finalization of any classification reviews.
Q.

Did any of the OCAs provide you or the trial counsel with

any estimated date of completion?

16

A.

No.

17

Q.

Did the trial counsel provide you, on their own, with an

18

estimated date of completion for each of the OCA’s classification

19

reviews?

20

A.

No.

21

Q.

Did the trial counsel provide you with any information in

22

order for you to gauge how diligently each of the OCAs were working

23

in order to finalize the classification reviews?

2660

06548

A.

1

I mean, specific--you know, I got one OGA working harder

2

than the other or one classification working hard than--no, I mean, I

3

just--like I stated before, I’m receiving a general update from the

4

trial counsel on “here’s where we are in our classification reviews.”

5

I’m not--you know, they’re not giving me updates per OGA--you know

6

“this OGA or this agency is at 50 percent and expected to be at 75

7

percent on x day.”

We never had that discussion.

Q.

All right, sir.

10

A.

Well, each OGA has an OCA, but yeah.

11

Q.

Okay.

8
9

And you were saying “OGA,” I know you mean

OCA.

Got you, sir.

So, with regards to that, then, if

12

they weren’t providing you that detail, then you had no ability to

13

drill down and know how many people working on it?

14

A.

No, I didn’t know at any one time how many people in a

15

particular agency was working on the OCA request or the disclosure

16

request.

17
18

Q.

And you obviously didn’t know, then, whether or not they

were even working on it on a particular day or not?

19

A.

No, I did not.

20

Q.

Like if they were picking it up once a week or once a

21
22

month?
A.

Yeah, I didn’t know that.

2661

06549

1
2

Q.

Now, the defense opposed this delay request by the

government, correct?

3

A.

They opposed----

4

Q.

On the 25 April----

5

A.

They opposed all of them, so----

6

Q.

All right.

7
8
9
10

And if you would, sir, look at tab 3, page 3.

[The witness did as directed.]
A.

This is your 26 April response back to me opposing the

delay of the Article 32 hearing.
Q.

Now, in this delay request--this was actually--well, I’ll

11

come back to that point, that’s something on your direct--but in this

12

delay request, we’re basically opposing the delay and we’re asking

13

you, in order to minimize any need for further delay, to consider

14

substitutes or summaries for relevant classified information,

15

correct?

16

A.

Correct, absolutely.

17

Q.

And did you consider the defense’s request?

18

A.

I did.

19

Q.

And did you talk to the trial counsel about the defense’s

20

request?

21

A.

I spoke to the trial counsel about it, yes.

22

Q.

And what did the trial counsel tell you about what the

23

request for substitutions or summaries meant?

2662

06550

1

A.

Well, he just explained that the request for a--there was a

2

potential that we could use a--summarize the classification and move

3

on without the particular classification reviews and disclosure

4

request if we had a--the way I understood it, if we had an expert

5

come in and testify to the fact that a group of documents or a hard

6

drive or a particular piece of evidence was classified we just----

7

Q.

Okay.

8

A.

Right.

9

Q.

All right.

10

And let’s look now at your approval of that.

You approved of that on 29 April 2011.

That’s on tab 3, page 5.

11

A.

Okay.

12

Q.

And in that approval, you state that the Article 32

13

investigation--“the Article 32 investigation is delayed until the

14

earlier of the completion of the OCA disclosure requests and the OCA

15

classification reviews, or 25 May 2011.”

Do you see that, sir?

16

A.

Yes.

17

Q.

So, based upon your approval, you had, essentially, two

18

trigger points for the starting of the Article 32 hearing.

19

the completion of the OCA disclosure requests and the classification

20

reviews as one trigger point----

21

A.

Yeah.

22

Q.

----and the other was 25 May 2011, correct?

2663

One was

06551

1
2
3
4

A.

Roughly a month from when this memorandum was signed,

correct.
Q.

All right.

So, if you got the OCA disclosure request and

the OCA classification reviews on 12 May, the 32 would start, right?

5

A.

It could, yes.

6

Q.

And if 25 May came and nothing else was done, then your

7

order was to start the 32?

8

A.

Well--right.

9

Q.

All right.

So, let’s look now at tab 3, page 6.

On 12 May

10

you issued an excludable delay memorandum based upon this approval

11

stating that the period from 22 April 2011 until 12 May 2011 was

12

excludable delay under R.C.M. 707(c), is that correct, sir?

13

A.

That’s what’s stated there, yes.

14

Q.

And the memorandum here listed the following as a basis for

15

the delay:

OCA reviews of classified information, OCA consent to

16

disclose information, the defense’s 26 August 2010 request for the

17

results of the government’s classification reviews by the OCAs, the

18

defense’s 3 September 2010 request for appropriate security

19

clearances for the defense team, and access for PFC Manning--excuse

20

me, and access for PFC Manning and the government’s 25 April 2011

21

request for delay.

Is that correct, sir?

22

A.

Uh-huh.

23

Q.

These were the only bases you listed for the delay?

2664

06552

1

A.

That are--yeah.

2

Q.

And, again, the trial counsel is the one who typed this for

4

A.

Yes.

5

Q.

Did you have an opportunity if you wanted to?

6

A.

I could, I guess, if I wanted to.

7

Q.

As before, did you discuss this memorandum with the trial

3

8

It’s listed right there.

you?

counsel before signing it?

9

A.

Yes.

10

Q.

And one of the bases that was given by you is the defense’s

11

request for an appropriate security clearance for the defense team

12

and access for PFC Manning, dated 3 September 2010?

13

A.

That’s correct.

14

Q.

And you testified on direct that this was a basis because,

15

occasionally, a new expert was appointed to the defense team and

16

security clearances were required for them?

17

A.

Yes.

18

Q.

Now, this would not--this basis here, would not, in your

19
20

mind, hold up the 32, correct?
A.

Well, if you had a defense team member that, then, required

21

a TS-SCI clearance that wanted to participate in the Article 32, that

22

would, potentially, result in a delay if he had to get a security

23

clearance.

2665

06553

1
2
3

Q.

All right.

You would expect the defense, then, to make

that additional delay request at that point, wouldn’t you?
A.

Well, it’d be--no matter who makes the request, the

4

individual can’t participate unless they’re--unless they have a TS-

5

SCI clearance, correct.

6

Q.

All right.

7

A.

If it’s your expert, you’d probably make the request,

8
9

So, if the----

right?
Q.

Exactly.

So, if the defense’s computer expert didn’t have

10

the requisite security clearance at that point, that fact, alone,

11

would not cause you to delay the 32, correct?

12
13
14
15

A.

Well, it could if you want your expert to participate in

the Article 32.
Q.

Absent a defense request, would that fact alone cause you

to delay the 32?

16

A.

No.

17

Q.

Okay.

Now, let’s look at tab 4, page 1, sir.

This is a

18

memorandum dated 22 May 2011.

19

memorandum, it’s second request for delay of the Article 32 hearing?

20

A.

21

Q.

22

The trial counsel submits--and on this

Correct.
And in the updates section that trial counsel represents to

you that they were continuing to work with the OCAs to obtain the

2666

06554

1

necessary consent to disclose classified information and evidence to

2

the defense, correct?

3

A.

That’s correct.

4

Q.

Did you ask the trial counsel what they meant by

5
6

“continuing to work”?
A.

Not specifically.

What do you mean “continued to work”?

7

Like I said before, I mean, we got a weekly update, as I discussed

8

this morning, from the trial counsel on, you know, “are OCAs making

9

progress?

Are we continuing to move forward?

10

information back and disclosure requests?”

11

move on.

12
13

Q.

All right.

Are we getting

Yes, so we continued to

So, they didn’t explain what “continuing to

work” meant to you?

14

A.

In-----

15

Q.

With specifics; stuff you could actually nail down----

16

A.

No.

17

Q.

----and say what facts are?

18

A.

We’re continuing to work--you know, there was no discussion

19

of “we’re going to continue to work 40 documents in this agency and

20

we’re going to be done in 10 days.

21

we’re continuing to process and continued to work.

22
23

Q.

All right.

There’s non--it was just a--

Now, sir, if you look at paragraph 4 request,

you see that the trial counsel requested a delay of the Article 32

2667

06555

1

until the earlier of the completion of the OCA disclosure request,

2

the OCA classification reviews, and authorization to disclose

3

protected, unclassified information for 27 June 2011.

4

A.

Right.

5

Q.

Did the government provide you with any indication how much

6

longer, at this point, when they submitted this request----

7

A.

No.

8

Q.

----it would take to get the OCA classification reviews.

9

A.

No.

10

Q.

When you were considering the trial counsel’s 22 May 2011

11

delay memorandum, how much longer did you believe, at that point, the

12

OCAs would need in order to complete their classification reviews?
A.

13
14

was going to take for them to be done.
Q.

15
16

I didn’t have a set time in my head or what I thought it

So, you didn’t have any particular time that you were

thinking about?

17

A.

No particular time, no.

18

Q.

Did you ask the trial counsel whether the OCAs would be

19

able to finalize their classification reviews as requested within 30

20

days?

21

A.

No.

22

Q.

Did you ask the trial counsel if anything could be done, at

23

that point, to expedite the process?

2668

06556

1

A.

No, I felt like we were making progress.

2

Q.

And what factual information were you basing “we were

3

making progress on”?

4

A.

Based on the updates I was getting from trial counsel.

5

Q.

And what factual----

6

A.

Weekly discussion.

7

Q.

What as far as facts?

8

A.

I mean, like I said before, back to a number individuals we

9
10
11

were talking to in an agency; I didn’t have any of those facts.
Q.

Did the trial counsel, during this time period, ever ask

you for assistance in expediting the process?

12

A.

No.

13

Q.

Did it concern you, at this point that the classification

14

reviews had still not been completed?

15

A.

No, not at this point.

16

Q.

You told me when we talked about this that you didn’t lose

17

sleep over the fact that the classification reviews were not

18

completed.

19

fact that the classification reviews were not completed at this

20

point.

You also told me that you were not fretting about the

21

A.

Not at this point, no.

22

Q.

How many more months, at this point, were you prepared to

23

wait for the OCAs to complete their classification reviews?

2669

06557

1

A.

I didn’t have a set time frame in mind.

2

Q.

So, nothing--no time period at the--on the wall where you

3

would say, “Look, at this point, if they don’t have it done----

4

A.

No.

5

Q.

----at that point, we’re going to drive on”?

6

A.

No.

7

Q.

Did you ask the trial counsel, at this point, “If there’s

8

anything you can do to but just sit and wait for the OCAs to bring

9

the classification reviews to you”?

10

A.

No.

11

Q.

Now, sir, being in the military, we all know that everybody

12

has some above them, correct?

13

A.

Absolutely.

14

Q.

And there’s a chain of command and, so, you can avail

15

yourself to that chain of command when needed, correct?

16

A.

Absolutely.

17

Q.

And I know, sir, even though you down-play the power of an

18

O6 in the capital region, you’re still an O6.

19

A.

It’s all relative, I mean----

20

Q.

Yeah, I know, sir, and----

21

A.

----it depends on where you go.

22

Q.

Having worked at III Corps as well, I know it’s----

23

A.

Hooah.

2670

06558

Q.

1
2

outside.

3

correct?

----all--you basically salute every time you walk anywhere
But, sir, obviously you know people who are above you,

4

A.

Absolutely.

5

Q.

You could have, maybe, reached to the General Court-Martial

6

Convening Authority?

7

A.

I could have.

8

Q.

And you speak to him on----

9

A.

A regular basis; sometimes more often then I’d like to,

Q.

Yes, sir.

10
11

yes.
And if you’re speaking to him, obviously, about

12

this case, that would be something that he would listen to you, I’d

13

imagine?

14

A.

He would.

15

Q.

And even though, maybe, an O6 wouldn’t have enough juice,

16

to use the term colloquially, to----

17

A.

Right.

18

Q.

----get something done, a three-star could?

19

A.

A three-star could, yeah.

20

Q.

So, did you ever consider the possibility of using people

21

that you may know within your chain of command to start pulling some

22

strings?

2671

06559

1

A.

That’s certainly a possibility.

At this point, you know,

2

I’m back to the discussion that I had earlier this morning, I don’t

3

think--with the time frame that we’re covering down on right now and

4

the particular agencies that we’re dealing with and the individuals

5

that have--that are the classification authorities, these aren’t, you

6

know, staffers that are signing--certainly staffers have to process

7

the documents, but these aren’t just staffers that are signing the

8

classification reviews.

9

officers and, I mean, there’s more than one thing on their plate on a

These are senior executives and general

10

day-to-day basis in the NCR.

11

their staffs were appropriately working the action and the trial

12

counsel was appropriately working the action.

13

I had a requirement to start, you know, walking up the chain of

14

command and--with the magnitude of the classification review that

15

needed to happen here and the importance of this case, I didn’t think

16

that even me calling and asking a general officer for help was going

17

to move things along any faster.

18
19

Q.

So, I was comfortable that they had--

So, I didn’t feel like

So you didn’t think, because you’re dealing with--I mean,

you’re basically dealing with the government, right?

20

A.

Well, yeah.

21

Q.

I mean, we’re dealing with just another arm of the United

22

States?

23

A.

Well, we’re dealing with--roger.

2672

06560

1

Q.

So, we’re talking to ourselves?

2

A.

I don’t know what you’re----

3

Q.

Well, I mean, like----

4

A.

Different parts of the government, yeah.

5

Q.

----if you were saying, “Sir, hey, I’m dealing with

6

civilian agency or I’m dealing with something that is outside of the

7

United States government,” that would be one thing, but we were

8

dealing with the United States government in this case, right?

9

A.

Yes, the agencies are all U.S. government agencies.

10

Q.

I mean, the United States government was who was

11

prosecuting my client.

12

A.

Is, yes.

13

Q.

So, at this point, I mean, it’s just basically a

14

conversation among yourself and trying to get the OCA classification

15

reviews completed?

16

A.

Conversation with myself?

17

Q.

Among government people.

18

A.

Those are the people that are involved.

19

Q.

All right.

So, at that point, sir, you never thought that

20

you would make a difference to run the issue up the chain, put your

21

command emphasis on it, maybe get the General Court-Martial Convening

22

Authority’s command emphasis on it, in order to get this process

23

expedited?

2673

06561

1

A.

No.

2

Q.

Sir, let’s go to page 4 on tab 4.

3

[The witness did as directed.]
Q.

4
5

This is your approval of the government’s second delay

request for the Article 32, correct?

6

A.

Yes.

7

Q.

And, sir, in that approval, you, again, state that the

8

Article 32 investigation is delayed until the earlier of the

9

completion of the OCA disclosure request and the OCA classification

10

reviews or 25 June 2011?

11

A.

Yes.

12

Q.

And the defense sent an email in opposition of this

13

request?

14

A.

Yes.

15

Q.

And, again, the defense requested that this time, as they

16

did in the past, should be credited to the government?

17

A.

That’s correct.

18

Q.

Did you consider, at this point, not approving of the

19

prosecution’s request?
A.

20

Not approving this request?

I may--I took considerations

21

of trial counsel--I took their considerations and mine and approved

22

it.

2674

06562

1
2
3

Q.

Okay.

At this point, did you consider the possibility of

saying, “Government, I’m going to put the time on you, though”?
A.

It didn’t have anything to do with whether it was the

4

government or anyone else, it had to do with the fact that we had to

5

get the classification reviews complete.

6

but----

7

Q.

A government agency did,

As far excluding delay under R.C.M. 707, did you consider,

8

at this point, the possibility of saying, “I’m going to grant it, but

9

I’m not going to exclude that time”?

10
11

ATC[CPT WHYTE]:

Your Honor, I have to object.

has already testified that he already considered the defense request.

12

MJ:

Overruled.

13

A.

Back to the--I mean, I don’t understand.

14

The witness

I just thought I

answered your question, but----

15

Q.

I’m sorry, sir----

16

A.

----evidently not.

17

Q.

----I’ll repeat it.

Even though you said you considered

18

approving or not approving the delay request, did you consider, at

19

this point, even though you were going to approve the delay request,

20

saying to the government, “Hey, I’m going to approve your delay

21

request, but I am not going to exclude that time under R.C.M. 707,”

22

did you consider that second possibility at this point?

23

A.

No.

2675

06563

1

Q.

Now, at this point, if the OCA classification reviews had

2

been completed--so--at the point of 26 May 2011--if you found out

3

that all the OCA classification reviews were completed, would you

4

have ordered the Article 32 to resume?

5

A.

If we had the reviews completed and we had the permission

6

to disclose the information to the defense so you could prepare for

7

the Article 32, yes.

8
9

Q.

All right.

So, in your mind, you needed both the

classification reviews and the approval to disclose the information?

10

A.

Right.

11

Q.

And, if you had the classification reviews and the defense

12

was asking to use substitutes or alternatives for the classified

13

information, would you have still excluded the delay--I mean--excuse

14

me--still held off on the 32 or would you have said, “Hey, let’s go

15

ahead, do the 32, come up with some sort of substitution”?

16

A.

It never presented itself so I didn’t think about that.

17

Q.

Okay.

18

A.

That condition never presented itself.

19

Q.

All right, sir.

20

If that had been the case, do you think

you would have held up the 32?

21

A.

I don’t know.

22

Q.

Sir, if you look at page 5, still on tab 4--and sir, before

23

I ask this question, I know I said to you, before, if you needed a

2676

06564

1

break, you just let me know, so I just wanted to know if you needed a

2

break.

3

A.

No, I’m good.

4

Q.

Okay, sir.

5

WIT: Everybody else good?

6

TC[MAJ FEIN]:

7

MJ:

8

CDC[MR. COOMBS]:

9

MJ:

Ma’am, may we have a 10-minute comfort break?

All right.

All right.

We all set for a recess?
Yes, ma’am.

I wanted to make sure.

Why don’t we go ahead and do that?

We’ll

10

recess the Court for 10 minutes.

11

[The witness was duly warned and the Article 39(a) session recessed

12

at 1421, 8 November 2012.]

13

[The Article 39(a) session was called to order at 1439, 8 November

14

2012.]

15

MJ:

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

Let the

16

record reflect that all parties present when the Court last recessed

17

are again present in court.

18

[The cross-examination of Colonel Carl Coffman continued as follows:]

19
20
21
22
23

Q.

Please proceed.

Colonel Coffman, if you would take a look at tab 4, page 5?

[The witness did as directed.]
Q.

This is your 17 June 2011 excludable delay memorandum,

correct?
A.

That’s correct.

2677

06565

1
2

Q.

And the basis for this exclusion was the same that you gave

on your May memorandum, correct?

3

A.

It appears that way, yes.

4

Q.

And would you agree with me that, for the most part, this

5

memorandum looks identical to the May one, with the exception of the

6

day, for the most part?

7

A.

Yes.

8

Q.

Now, nowhere on this document is authorization to disclose

9

protected, unclassified information, correct?

10

A.

That’s correct.

11

Q.

And do you know why that wasn’t listed as a basis in your

12

excludable delay memorandum?

13

A.

I don’t recall, specifically, no.

14

Q.

If, from your standpoint, if the only think that was

15

holding up the 32 was authorization to disclose protected

16

unclassified information, would you have held up the 32?

17

A.

That was----

18

Q.

The only thing that was outstanding.

19

A.

----was to disclose protected unclassified information?

20

Q.

Correct, sir.

21

A.

I don’t think that would--no, I never thought about it.

I

22

mean, like I said before, the condition never presented itself as an

23

option, so I didn’t think about it.

2678

06566

1
2
3
4
5

Q.

But sitting here, now, would that have been, in your mind,

a reason to hold up the 32?
A.

I don’t know, depending on what was, you know, probably in

the information.
Q.

All right.

If you--sir, look at the government’s third

6

delay request.

This is on tab 5, page 1; it’s dated 27 June 2011.

7

[The witness did as directed.]

8

A.

Yes.

9

Q.

In your second delay approval, you required the prosecution

10

to provide you with an update no later than 25 June 2011.

11

prosecution obviously failed to meet that deadline, correct?

12

A.

Well, in written format, yes.

13

Q.

All right.

14
15
16
17
18

The

So, you’re saying they came back to you before

this memorandum?
A.

I’d say I talked to them about once a week--I talked to

Major Fein about once a week about the case.
Q.

So, with regards to written format, they failed to meet the

25 June 2011 deadline?

19

A.

Right, by 2 days.

20

Q.

And the government, in this one, is requesting yet another

21
22

delay of the 32, correct?
A.

That’s correct.

2679

06567

1
2
3
4
5

Q.

Did you ask the trial counsel why they had not submitted

their request to you in writing by 25 June 2011?
A.

No, I had, you know, like I said, received a verbal update

and we had talked and I was comfortable with where they were.
Q.

And in your memory, when you say, now, “verbal update,”

6

you’re believing that that verbal update occurred on either shortly

7

before or right at 25 June?

8

A.

I can’t tell you the specific date it occurred, no.

9

Q.

So, that could have also occurred after 27 June?

10

A.

It could have.

11

Q.

Now, the prosecution, once again, here, represented they

12

were continuing to work with the OCAs, correct?

13

A.

Yes.

14

Q.

And, at this point, did you ask the trial counsel what they

15

meant by “continuing to work”?

16

A.

No.

17

Q.

Did you ask the trial counsel why they hadn’t sent out,

18

maybe, additional memorandums to the OCAs at this point?

19

A.

No.

20

Q.

Did you consider, yourself, writing to the OCAs?

21

A.

No.

22

Q.

Now, at the end of the government’s request, the

23

prosecution states that it requests a delay of the Article 32 until

2680

06568

1

the earlier of the completion of the OCA disclosure requests, the OCA

2

classification reviews, authorization to disclose protected

3

unclassified information, and final review of the CID case file by

4

NSA and OGA, correct?

5

A.

That’s correct.

6

Q.

Sir, did you ask the prosecution why it had not obtained

7

authorization to disclose protected unclassified information at this

8

point?

9

A.

No.

10

Q.

Did the prosecution or the trial counsel indicate to you

11

how much longer they felt they needed in order to obtain

12

authorization to disclose protected unclassified information to the

13

defense?

14

A.

No, not specifically.

15

Q.

At this point, when you were signing the memorandum, did

16

you have any understanding as to how much longer it might take?

17

A.

Specifically, no.

18

Q.

What was your understanding as to the remaining steps that

19

might be needed in order to accomplish the task of disclosing

20

protected unclassified information to the defense?

21

A.

What do you mean by the remaining steps?

22

Q.

Like did the trial counsel give you any idea like, “Sir,

23

there are four steps we need to achieve before we can disclose it.

2681

06569

1

We’ve achieved step one and two, we still have got three and four to

2

complete”?

3

A.

No, like I stated before, the--what I’m tracking is a

4

general condition of where we are and the process of getting the

5

classification reviews complete, disclosure request complete.

6

Primarily, from what you’re discussing here--and I was not tracking

7

by document or by agency what was or was not, you know, about to be

8

complete.

9

Q.

10

information.

11

A.

It’s the same thing.

12

Q.

----it was the same thing; kind of mete the bones of the

13

Yeah, but this is for the protected unclassified
I was just wondering if---I might

story as to what was needed and what was remaining.

14

A.

No, not that I recall.

15

Q.

Did you ask the prosecution why it needed to obtain a final

16

review of the CID file by NSA and OGA?

17

A.

What they meant by that?

18

Q.

No, just why they needed to obtain a review by NSA and OGA?

19

A.

No.

20

Q.

Did the prosecution ever explain to you why NSA and OGA had

21
22
23

to review the CID case file?
A.

Well, what was on the CID case file was related,

potentially, directly to the two--the OGA and the NSA.

2682

06570

1

Q.

And is that what the trial counsel explained to you, sir

2

A.

Right, and then the way I understood it, from the

3

discussion was, there are elements in the--as the CID case file was

4

complete, there were elements in there that would require the NSA and

5

the OGA to review and authorize disclosure of that information.

6

Q.

Okay, sir.

And when they were explaining that to you, did

7

they tell you how much of the CID file needed to be reviewed by NSA

8

and OGA?

9
10
11

A.

No, they didn’t tell me that, you know, a particular number

of documents in there that each one had to review.
Q.

Did you ask the trial counsel when they submitted the delay

12

request, why they felt that a delay of the 32 would be necessary in

13

order for this to happen?

14

A.

I don’t particularly know.

15

Q.

Did you ask the prosecution whether or not the review by

16

the NSA and OGA of the CID file could take place after the 32?

17

A.

No.

18

Q.

Sir, if we go to tab 5, page 5.

19

[The witness did as directed.]

20

A.

Okay.

21

Q.

On 5 July 2011, you approved of the government’s request

22

for a delay?

23

A.

That’s correct.

2683

06571

1

Q.

And like all others, this was over the defense objection?

2

A.

That’s correct.

3

Q.

Now, if you look to the following page, page 6, this was

4

your 13 July 2011 excludable delay memorandum?

5

A.

Yes.

6

Q.

And the basis for the exclusion that you prove, is the

7

exact seem memorandums, correct?

8

A.

They appear to be, yes.

9

Q.

And so, really the only thing that’s changed on this

10

memorandum is, essentially, the date.

11

A.

Yes.

12

Q.

Now where on this memorandum is the authorization to

13

disclose protected unclassified information?

14

A.

No.

15

Q.

No where on this memorandum is final review of CID file by

16

NSA and OGA?

17

A.

No.

18

Q.

Do you know why not sir?

19

A.

Particularly, no.

20

Q.

Sir, if you go to tab 6, page 1.

21
22
23

[The witness did as directed.]
A.

This is the trial counsel requesting its fourth delay of

the Article 32 hearing on 25 July 2011, correct.

2684

06572

1

Q.

That’s correct.

2

A.

And the basis for their request is exactly the same as

3

their June quest?

4

A.

Fundamentally, yes.

5

Q.

And, again, here, the prosecution is requesting the delay

6

of the Article 32 until “earlier of the completion of the OCA

7

disclosure request, the OCA classification reviews, authorization to

8

disclose protected unclassified information, and final review of the

9

CID case file be NSA and OGA.”

Is that correct, sir?

10

A.

Yes.

11

Q.

Now, as with all others, of course, the defense opposed

12

this delay request.

13

A.

That’s correct.

14

Q.

And if you look at tab 6, page 4.

15
16
17

[The witness did as directed.]
Q.

Sir, this is the defense objection to the delay request.

Is that correct?

18

A.

That’s correct.

19

Q.

And, sir, I know our objection to the delay request.

The

20

defense pointed out that “The government had over a year to” complete

21

the classification review process, is that correct?

22

A.

Yes.

2685

06573

1

Q.

And so we’re basically saying, “Look, you know, it’s been a

2

year and nothing has been done and the delay request by the

3

government provide no specificity,” is that correct?

4

A.

Well, nothing--to say nothing has been done is not correct.

5

Q.

We’ll talk about that in a moment, but the delay request

6

don’t provide specificity as to what has been done, if anything?

7

A.

Yes.

8

Q.

And, at this point, we also point out that the trial

9

counsel, at least in memorandum form, has failed to explain what

10

they’ve done in order to try to require the OCAs timely response to

11

complete the classification reviews, correct?

12
13
14
15

A.

If you’re referring to them specifically contacting the

OCAs, yes.
Q.

Now, in this memorandum, the defense renews its speedy

trial request?

16

A.

Yes.

17

Q.

And, again, you understood that--what--you understood what

18

the defense was asking when they demanded a speedy trial?

19

A.

Yes.

20

Q.

And, at this point, did you understand that PFC Manning had

21

been in pretrial confinement for 362 days?

22

A.

I had--not tracking the exact number of days, but close to

23

a year, yes.

2686

06574

1

Q.

And given the amount of time and the amount of delay and

2

the fact that PFC Manning made two separate speedy trial demands, did

3

you ask the trial counsel, at this point, whether or not you even

4

needed the classification reviews in order to do the Article 32?

5

A.

No, I did not ask him that, specifically.

6

Q.

Did the trial counsel, at this point, ever express to you

7

the possibility of going forward with the Article 32 without the

8

classification reviews?

9

A.

We had discussions--like I said, I don’t--I mean, it’s been

10

so long ago.

11

speedy trial discussions frequently and where we were in getting the

12

classification reviews complete.

We had discussions about--you know, we’ve had the

13

Q.

Okay.

14

A.

I can’t tell you if it was, you know, prior to this

15
16

So----

memorandum or prior to the memorandum before this one.
Q.

In those discussions, though, did the trial counsel ever

17

talk to you about the possibility of doing the Article 32 without the

18

classification reviews?

19

A.

When--specifically, when defense requested it, originally,

20

but I made up my mind that, you know, we were going to have the

21

classification reviews done on the information and disclosure

22

requests complete before the Article 32.

2687

06575

1
2
3
4
5
6

Q.

All right.

So, when the trial counsel expressed that to

you, what do you recall from that conversation?
A.

Well, I recall making the decision to continue on the due

course--the course that I was on already.
Q.

But do you recall anything that trial counsel said to you

during that time period?

7

A.

Not particularly, no.

8

Q.

Do you recall why you made the determination that you had

9
10

Verbatim----

to have the classification reviews prior to the 32 restarting?
A.

Well, I wanted to have the classification reviews completed

11

and the disclosure request completed so the prosecution and the

12

defense both have the evidence in the proper classified format in

13

order to conduct a fair Article 32.

14

Q.

Okay.

15

A.

Right.

16

Q.

----you wanted to have those two?

17

So that was, in your mind, the reason why----

Even though the defense

was demanding speedy trial, requesting substitutions?

18

A.

Right.

19

Q.

At this point, would you agree with me that you had no idea

20
21
22

how much longer it would take for the OCAs to complete their reviews?
A.

I didn’t have a good idea of, you know, like 30 days, 45

days, 15 days, no, I did not.

2688

06576

Q.

1

And besides trusting the OCAs to do their review, sir, what

2

reference points were you using to determine that the time it was

3

taking for them to complete their review was reasonable?
A.

4

I didn’t have a specific time period in mind.

Every month

5

the conditions changed.

Every--you know, as a request came in for a

6

delay, the condition changed.

7

the same.

8

disclosure requests, but there were other things involved in there as

9

well.

You know, a lot of the conditions were

We were still requesting classification authorities

We were getting information back from these classification

10

authorities, we were getting information to disclose, so we were

11

making progress with the OCAs so I didn’t--you know, at one point I

12

recall having a discussion that, you know, I was going to change

13

command in the summer of 2012, where were we going to be in the event

14

that, you know, my change of command rolls around?

15

requirements now, as a Special Court-Martial Convening Authority?

16

You know, how does that transition from one commander to another?

17

You know, can we get this done prior to, you know, change of command

18

date?

19

What are the

But then, at that point, I’m just throwing a marker on the

20

wall and saying, “Okay, you know, that’s just some arbitrary marker

21

and it’s not based on any factual evidence or classification of

22

evidence at all.

23

date that may happen, you know, sometime between May and August

It’s just based on a, you know, change of command

2689

06577

1

sometime.”

So--I mean, that was--the only thing in my own head at

2

the time was just throwing that out there and I don’t think I ever

3

discussed it with trial counsel, but what I did discuss with them,

4

though, is, you know, if in the event that I, potentially, change

5

command before this entire--you know, before this is--before the 32

6

is complete--or how far do we, you know, get down the road with this

7

before we move on?

8

Q.

Okay.

9

A.

But I was comfortable with--we were making progress getting

10

the information back that we needed to get back.
Q.

11

All right.

And your answer gives me a couple questions,

12

but I want to go back to my question that prompted your answer.

13

reference points, sir, were you using from the OCAs to determine that

14

the time they were taking was reasonable?

15

A.

I didn’t have a reference point from an OCA.

16

Q.

All right.

What

And then, with regards to your answer of

17

saying, at least in your mind, you were debating that this stuff

18

wouldn’t be done by your change of command sometime in the summer of

19

2012?

20

A.

Right.

That was--it could, through--if the Article 32--you

21

know, depending on which way that goes and if it does go to a--what

22

happens in the long term.

2690

06578

1

Q.

I wanted to make sure I understood your answer.

Were you

2

concerned about whether or not--if the OCAs hadn’t completed their

3

stuff to where you could do the 32 by the time of your change of

4

command?

Was that your concern?

5

A.

No, I thought we were--we may potentially get there.

6

Q.

Okay.

All right.

Would you agree with me, basically, that

7

you were trusting that the OCAs were doing what they were supposed to

8

be doing.

9

A.

Yes.

10

Q.

And, obviously, you don’t always trust what other people

11

tell you, correct, sir?

12

A.

Not always, no.

13

Q.

Was there anything, at this point, preventing you from--

14
15
16
17
18

even though you trusted--verifying what they were doing?
A.

I had confidence that the trial counsel was taking care of

that process.
Q.

No, sir, my question, though, was even though you trusted,

was there anything preventing you from verifying----

19

A.

From picking up a phone and----

20

Q.

----what the OCAs were doing?

21

A.

----calling an OCA?

No.

2691

06579

Q.

1

At this point, now that we are working, essentially, on the

2

third request to delay the 32 going into the fourth, were you

3

concerned that the OCAs were not completed with their review?

4

A.

No, I was not.

5

Q.

Sir, did you know that the trial counsel sent out

6

additional requests to the relevant OCAs on 28 July 2011 requesting,

7

this time, that they complete their classification review?

8

A.

Yes, I’m familiar with that.

9

Q.

Sir, if you could, go ahead and look at Appellate Exhibit

10

376b.

11

[The witness did as directed.]

12

A.

This one?

13

Q.

Yes, sir.

And just find one of the memorandums, any one of

14

them is fine, that’s dated 28 July 2011.

15

towards the middle.

16

[The witness did as directed.]

17

A.

I’ve got one right here.

18

Q.

Okay, sir.

19

A.

Any one in particular?

20

Q.

No, any one of them will do.

21

A.

Okay.

22

Q.

All right, sir.

23

It would probably be

In the trial counsel’s memorandum to the

various OCAs, the trial counsel writes the following:

2692

“Under Article

06580

1

10, UCMJ, when an accused is in pretrial confinement, the United

2

States is required to use reasonable diligence to continue--to--for a

3

motion on resolving criminal cases. See 10 U.S.C. section 810.

4

only remedy for the--an Article 10 violation is dismissal of the

5

charges with prejudice.

6

it does not violate the accused’s Sixth Amendment right to a speedy

7

trial.

8

and future delays by your department could severely hinder the

9

prosecution.”

10

The

Additionally, the United States must ensure

See Barker v. Wingo 407 US 414 [sic] (1972).

All existing

Did you read this section of the trial counsel’s

memorandums that they sent to the OCAs?
A.

11

I remember specifically seeing this--I remember seeing the

12

memorandums, I don’t--you know, I’m sure I read it--I mean, it’s July

13

2011.

14
15

Q.

Did you--and when you say, “it’s July 2011,” that means

that it was so long ago you don’t recall?

16

A.

Right.

17

Q.

Okay.

Did you ask the trial counsel about--from your

18

memory, did you ask the trial counsel about speedy trial issues based

19

upon seeing this memorandum?

20

A.

I don’t--we had a speedy trial discussion.

I don’t know if

21

this is what exactly prompted it or not, but we had that discussion

22

frequently.

2693

06581

Q.

1

Given what you read in that memorandum and discussion that

2

you had with the trial counsel, were you concerned about the

3

possibility of violating PFC Manning’s speedy trial rights?
A.

4
5

I wasn’t concerned about violating his speedy trial rights,

I was concerned about getting him a speedy trial.

6

Q.

Okay.

7

A.

I was concerned that PFC Manning get a speedy trial, that’s

8

So, were you concerned that----

correct.
Q.

9

Were you concerned that the actions that were happening, or

10

the lack thereof, to get the classification reviews could be a

11

violation of PFC Manning’s speedy trial rights?
A.

12

I was discussing on that with trial counsel, whenever we

13

discussed speedy trial, you know, “Are we impinging on the accused’s

14

speedy trial rights?”
Q.

And so that would be “yes,” that you were concerned about

17

A.

Yes.

18

Q.

Did the trial counsel tell you that, as the date of that

15
16

it?

19

memorandum, they gave the OCAs the date of 10 August 2011 to complete

20

their classification reviews?

21

A.

I don’t recall that specifically, no.

22

Q.

Do you see that?

23

A.

Yeah, it’s stated, here, in the memorandum.

2694

06582

1

Q.

Do you recall why the trial counsel would have listed 10

2

August 2011 as the date that they thought they could tell the OCAs to

3

complete their classification reviews?

4

A.

I don’t know.

5

Q.

At this point, did the trial counsel express any

6

information to you in order to believe that that 10 August 2011

7

deadline was a reasonable one?

8

A.

I don’t remember that discussion, specifically, no.

9

Q.

At this point, did you ever express to the trial counsel

10

that that 10 August 2011 deadline would be your deadline?

11

A.

No.

12

Q.

So you never--did you ever give the trial counsel a

13

deadline--a suspense of x date and we’re going to go forward?

14

A.

No.

15

Q.

Sir, if you look at tab 6, page 5?

16
17
18

[The witness did as directed.]
Q.

On 26 July 2011, you approved of the government’s fourth

request for a delay?

19

A.

Yes.

20

Q.

And in that approval, you again state that the Article 32

21

investigation is delayed until the earlier of the completion of the

22

OCA disclosure requests, the OCA classification reviews and

2695

06583

1

authorization to grant protected, unclassified information, or 27

2

August 2011.

3

A.

Yes.

4

Q.

Now, this memorandum, even though you got a speedy trial

5

Do you see that?

request by the defense, doesn’t reference that.

Do you know why?

6

A.

No, I don’t.

7

Q.

If you would, sir, take a look at the following page, page

8

6.

9

[The witness did as directed.]

10

Q.

This is your 10 August 2011 excludable delay memorandum?

11

A.

That’s correct.

12

Q.

And, again, the basis for the exclusion was the exact same

13

as your May, June, and July excludable delay memorandums, correct?

14

A.

Yes.

15

Q.

And these were the only bases that you gave?

16

A.

In this memorandum, yes.

17

Q.

Nowhere in this document is authorization to disclose

18

protected, unclassified information?

19

A.

No.

20

Q.

Nowhere in this document is final review of CID case file

21
22

by NSA and OGA?
A.

No.

2696

06584

1

Q.

And, at the time that you signed this excludable delay

2

memorandum, did you have any idea how much longer the 32 would need

3

to be delayed?

4

A.

No.

5

Q.

Based upon what the defense had asked in their speedy trial

6

request for greater specificity, did you ever request from the trial

7

counsel, at this point, for greater specificity other than they’re

8

continuing to work the issue?

9

A.

No.

10

Q.

And because you didn’t do that, I guess you never asked

11

them to give you a list of things that needed still to be done?

12

A.

No, I did not.

13

Q.

Did you have any idea, at this point, what still was

14

outstanding in order to start the 32?

15

A.

Specifically?

16

Q.

Sir, let’s take a look at tab 7, page 1.

17
18
19

No.

[The witness did as directed.]
Q.

This is a 25 August 2011 memorandum.

It’s the government’s

fifth request for a delay of the Article 32 hearing, correct?

20

A.

Yes.

21

Q.

And, sir, the prosecution requested a delay of the Article

22

32 until, “The earlier of the completion of the OCA disclosure

23

requests, the OCA classification reviews, final determination of

2697

06585

1

derivative classifications, final review of the CID case file by NSA,

2

and release authority from relevant district court judges, or 27

3

September 2011.”

Do you see that, sir?

4

A.

What paragraph?

5

Q.

This would be in the request paragraph, paragraph 4, sir,

6

on page 2.

7

A.

Yes.

8

Q.

At the time that the trial counsel presented this to you,

9
10

Okay.

sir, did they explain to you what final determination of derivative
classifications meant?

11

A.

Not particularly, no.

12

Q.

Did they indicate why they were--a delay would be needed in

13

order to obtain final determination of derivative classifications?

14

A.

No, I don’t remember that discussion, particularly.

15

Q.

So, based upon them not explaining it or having that

16

discussion, you don’t know how long it would take to get final

17

determination of derivative classifications?

18

A.

No.

19

Q.

Did the prosecution indicate to you, at this point, why the

20

delay would be needed for release authority from relevant district

21

court judges?

22

A.

I don’t particularly--no, I don’t recall.

23

Q.

Did they ever explain, at all, what that meant?

2698

06586

1

A.

I seem to recall having that discussion, but I can’t--you

2

know, like I said, I mean, it’s been--I don’t remember exactly what

3

the details of the discussion were.

4
5

Q.

Okay.

And that’s because if--because of the amount of

time----

6

A.

Right.

7

Q.

----that’s gone by?

Okay.

So, because you can’t recall

8

the discussion, if it happened, you obviously don’t know what was

9

required to get the, I guess, release authority from the relevant

10

district court judges?

11

A.

From the district court judges?

12

Q.

Did you ask the prosecution, at this point, why it had not

13

No.

completed a final review of the CID file by NSA?

14

A.

No, not particularly.

15

Q.

Did the prosecution or the trial counsel explain to you why

16
17

OGA had completed their review, but NSA had not?
A.

They--like previously, they just stated--giving me an

18

update on the information that was coming and--or that we had

19

completed in that time period and then we were continuing to work

20

getting the information from the other OCAs and the OGAs.

21

Q.

Sir, were you concerned, at this point, that another month

22

had gone by and you still had not received the OCA classification

23

reviews?

2699

06587

1

A.

It was--we were--like I said before, we were continuing to

2

progress--we were continuing to make progress in this process.

3

was--you know, you’re always concerned about speedy trial and you’re

4

always concerned about--especially when you have an individual in

5

pretrial confinement.

6

classified for PFC Manning to have a fair, complete Article 32, based

7

on evidence--and clear evidence, I didn’t--I was not concerned that

8

it was not--I mean, I had a concern, but I wasn’t--you know, at this

9

point--you know, time to lay a date on the lawn telling them, “Okay,

10
11

So, I

But, in order to get the evidence properly

by next week, if it’s not done, we’re pressing on.”
Q.

Okay, sir.

Obviously because of the date of this, did you-

12

-being 25 August and the suspense that the trial counsel had given to

13

the various OCAs of 10 August, did you ask the trial counsels why the

14

OCAs failed to meet the 10 August 2011 suspense date?

15

A.

That--like I said before, we had, you know, weekly updates

16

from the phone.

He would call and say, “Hey, here’s where we are,

17

here’s what we’re doing,” so I wasn’t going back to a document and

18

referring to a date, specifically, and asking, “Hey, why are we--we

19

requested this on x day and they didn’t respond back to us until 2

20

days later or whatever.”

21

from the trial counsel that we were making progress, we were

22

continuing to get information, the classification authorities were

23

reviewing and validating the information and getting the disclosure

As long as I was getting information back

2700

06588

1

requests complete and moving that information on to the defense as

2

well, then I was comfortable we were moving ahead.

3

Q.

All right.

But with regards to the suspense date, did you

4

ever have a conversation with the trial counsel about why the OCAs

5

missed that date?

6

A.

I don’t recall, specifically.

7

Q.

Did the trial counsel tell you, at this point, whether or

8

not they had reached out and contacted the OCAs to ask them why they

9

had missed the suspense date?

10

A.

No.

11

Q.

What information--specific information were you relying

12

upon from the OCAs, either getting it from the OCAs or the trial

13

counsel, in order to determine that an additional 30 days was

14

reasonable?

15

A.

It was what the trial counsel was--he’d submit a request, I

16

would talk to him about it, consider the request, and with the delay,

17

I would, you know, of course, send it to you and you would give me

18

your input and then I would make a decision.

19

were continuing to make progress and we were continuing to get

20

information from the OCAs as we were moving down the road, here, so,

21

you know, I was comfortable we were moving ahead.

22

before, if you’re asking if I got a specific update from trial

23

counsel on, you know, this particular OGA or this particular intel

2701

But, like I said, we

I--like I said

06589

1

agency has 10 documents left to review and they’re going to be done

2

in 14 days or they have five documents to review and they’re going to

3

be done in 30 days, I never got to that level of detail with trial

4

counsel.
Q.

5

All right.

So, if I’m understanding your answer correctly,

6

you didn’t have specific information from any OCA in order to

7

determine whether or not another 30 days was reasonable, you were

8

just being told that it’s not done yet and they’re continuing to work

9

it?

10

A.

That’s correct.

11

Q.

So, again, you were basically, again, trusting that the

12

trial counsel----

13

A.

Trial counsel, yes.

14

Q.

----was doing what they were supposed to be doing?

15

A.

Yes.

16

Q.

And you were trusting that the OCAs were doing what they

17

were supposed to be doing?

18

A.

That’s correct.

19

Q.

Sir, if you look at page 5 of tab 7?

20

[The witness did as directed.]

21

A.

Okay.

22

Q.

This is where you, on 29 August 2011, approve the

23

government’s fifth delay request, is that correct?

2702

06590

1

A.

That’s correct.

2

Q.

And in that approval, you state that the Article 32

3

investigation is delayed until the earlier of the completion of the

4

OCA disclosure requests and the OCA classification reviews, final

5

determination of derivative classifications, final review of the CID

6

case file by the NSA, and authorization is granted to disclose

7

protected, unclassified information or 27 September 2011.

8

correct?

Is that

9

A.

That’s what it says.

10

Q.

And, obviously, sir, again, as with all other memorandums,

11

you didn’t type it?

12

A.

No.

13

Q.

It was presented to you by the trial counsel?

14

A.

Right.

15

Q.

So, do you know why each of these things was listed as a

16
17
18
19

basis for a delay?
A.

That was the discussion that we continued to have

throughout the delay process.
Q.

Okay.

So, with regards to authorization granted to

20

disclose protected, unclassified information, do you know why that

21

was listed in the memorandum?

22
23

A.

Not particularly.

I mean, I don’t recall--when--like I

said, when I got the delay memos, he showed up in person, he gave me

2703

06591

1

a back brief or he emailed it to me, I printed it out, took it to my

2

desk, set down, he called, we talked through it, and, you know, I

3

determined whether--based on the information that we received back

4

from you as well--the normal due course--I would send it to you, ask

5

for your input, you’d give me the input, and then I would make the

6

decision.

7

know, every detail of every conversation that happened----

But, you know, I don’t recall the specifics of every--you

8

Q.

So, during this time period----

9

A.

----for each delay memo.

10

Q.

----were you getting specific details like, “The OCA has

11

this much to do, we’ve got this much more of the protected,

12

unclassified information---A.

13

I never asked the trial counsel--like I stated before, I

14

never asked the trial counsel, through this process, if, you know,

15

“Okay, OGA 1 is--has--you know, how many documents does OGA 1 have

16

left to look at?

17

do you they think their date it’s going to be completed for that

18

time?”

How many files do you they have to look at?

When

I never asked for that information specifically.

19

Q.

Why not?

20

A.

Trial counsel told me they were continuing to work it and I

21

had confidence that trial counsel and the OCAs were working their

22

task.

2704

06592

Q.

1
2

So, did there come a time when you wanted to ask that

question?
A.

3

Not at this point.

Like I said, we are continuing--as each

4

one of these conditions changed.

5

from the OCA's.
Q.

6
7

What information--that is what I am trying to get at, what

information are you getting?
A.

8
9

We continued to get information

When I said--I do not know--yeah, I do not drill down into

every document that comes across here in a case file.

"Hey, here is

10

the information we got, it is 14 documents."

11

not ask, "Okay, what are the 14 documents?

12

them to us?

13

I did not get into that level of detail within the OCA's and the

14

number of documents or information that they had to process.

15

what I have a trial counsel on staff for.
Q.

16
17

Okay, I got it.

I do

And when did they release

And, when did they give us permission to disclose them?"

That is

So, you did not think that that would be a requirement for

you in order to approve excludable delay?

18

A.

Not by individual document, no.

19

Q.

Or at least getting specifics from each of the bases as to

20

what is still outstanding, what do we need to do, how much longer?
A.

21

We knew we had classification reviews that continued--that

22

we needed to continue to do, or I thought we needed to continue to

23

do.

2705

06593

1

Q.

All right, sir, if you turn to page 6 of tab 7, on 15

2

September 2011 you exclude the period from the 10th of August to the

3

15 September date as excludable delay under R.C.M. 707(c), correct?

4

A.

That is correct.

5

Q.

And again, the bases that you listed the exact same that is

6

identified in the May, June, July and August excludable delay

7

memorandum?

8

A.

That is correct.

9

Q.

On the date of 13 September 2011, at this point you had

10

approved 147 days of delay of the Article 32.

11

how much longer you would need to delay the 32?

Did you have any clue

12

A.

Not a specific day, no.

13

Q.

Did you have any idea how much was still remaining for each

14

of these things to be done that was listed as a basis?

15

A.

A particular date on all, no.

16

Q.

Sir, in your 29 August 2011 approval memorandum, you state

17

that trial counsel is required to provide you with an update no later

18

than 23 September 2011?

19

A.

Do you have a page number we are on here?

20

Q.

Yeah, if you look to, let's go to 29 August, that is tab 7,

21

page 5?

22

A.

Okay.

2706

06594

1

Q.

You see where you give the--it is in paragraph 2, the last

2

sentence, "The prosecution is required to provide me with an update

3

no later than 23 September 2011", do you see that?

4

A.

Yes.

5

Q.

All right, sir, now if you go to tab 8, page 1, what date

6

does the trial counsel give you an update?

7

A.

It is 26 September.

8

Q.

Do you know why the trial counsel failed to meet your

9
10
11
12

suspense date?
A.

I do not recall particularly, no.

formal memorialized update.
Q.

Like I said, this is a

I am talking to him once a week.

So from your memory here, much like other times, they

13

missed the suspense date for at least providing written format.

14

you recall any oral update?

15
16
17
18
19
20
21

A.

Do

I cannot tell you specifically what date a phone call came

in, you know.
Q.

So, you do not know if they missed the 23 September

deadline?
A.

I don't recall if, you know, if it happened before or after

26 September.
Q.

All right, in this memorandum, the trial counsel requests a

22

delay of the 32 until, "Earlier the completion of the OCA disclosure

23

requests, the OCA classification reviews, final determination of

2707

06595

1

derivative classifications, receipt of signed protective orders from

2

the defense and properly portion-marked classified documents from

3

NSA, or 27 October 2011."

Do you see that, sir?

4

A.

Yes.

5

Q.

Did the trial counsel indicate why the delay was needed for

6
7
8

receipt of signed protective orders from the defense?
A.

Like I said, I do not recall the discussion specifically

on----

9

Q.

On this issue?

10

A.

----Of this particular portion of the sentence, no.

11

Q.

Do you recall any discussions from the trial counsel

12

regarding why the delay would be needed for properly portion marked

13

classified documents from NSA?

14
15
16
17

A.

I do not, like I said, I do not recall the particular

discussion of that part of sentence, no.
Q.

At any point, did you have an understanding of what

properly portion-marked classified documents from the NSA meant?

18

A.

Particularly, no.

19

Q.

Sir, if you go back to, not in this one, in the Appellate

20

Exhibit 376b, this would be toward the very end then, just find any

21

memorandum that is dated 7 September 2011.

22

A.

Okay.

23

Q.

And once you find one just let me know, sir?

2708

06596

1

A.

Yeah, they are the last ones in here.

2

Q.

All right, so do you see that memorandum?

3

A.

Yes.

4

Q.

And, that memorandum kind of looks a lot like the

5

Okay.

memorandum that you sent out on 28 July, would you agree?

6

A.

Yes.

7

Q.

Basically again explaining the concern for speedy trial?

8

A.

Yes.

9

Q.

And, did the trial counsel tell you about the fact that

10
11

they sent this memorandum back out to the OCA's?
A.

Like I said before, they were having, you know, updated me

12

on their interfaces with the OCA's and they were continuing to work

13

the classification reviews.

14

Q.

Do you recall the trial counsel telling you about that?

15

A.

I don't recall this 7 September memorandum specifically.

16

Q.

Do you recall ever seeing that 7 September memorandum

17
18

before today?
A.

I remember seeing memorandums sent to the OCAs, but I do

19

not--like I said, do not remember specific dates or if this was the

20

particular one that I saw.

21

Q.

That was a year ago.

Now, in the memorandum, sir, the trial counsel provides a

22

new suspense date for the OCA's of 21 September 2011 in order for

23

them to complete their classification reviews, do you see that, sir?

2709

06597

1

A.

Yes.

2

Q.

Now, the OCA's failed to meet that day, correct?

3

A.

OCA--I mean, we are requesting information from the OCA's,

4

we do not, you know, we request.

5

requested from the OCA but we do not typically, you know, in the

6

Army, task another agency or give them a--you know, we can ask for

7

help in getting something accomplished but were not going to call the

8

director of a particular OGA and tell him I need this document on my

9

desk by X date.

10
11

Q.

I am sure the information is

But my question though, sir, was the OCA's failed to meet

that suspense date, correct?

12

A.

Yes.

13

Q.

And that the OCA's had over 15 months to complete the

14

classification reviews and missed two separate suspense dates, do you

15

recall if there ever was any----

16

A.

It's a request, not it is not a suspense date.

17

Q.

Okay, so you want to--you believed that was just a request

18

but not a suspense?

19

A.

Right.

20

Q.

Okay, so we will use your terminology.

21
22

Now that the OCA's

had had over 15 months and failed to meet the request dates.
A.

Right.

2710

06598

Q.

1
2

Did you have any discussions with the trial counsel about

maybe just going on with the 32 without the classification reviews?
A.

3

Oh, we had that discussions each time but my thinking was

4

we needed to continue on with the classification reviews and make

5

sure they were complete and thorough.
Q.

6
7

10

You said you had

it each time, so what facts do you recall from that discussion?
A.

8
9

What do you recall from the discussions?

I do not remember specific facts.

I mean, if you are

looking for, you know, we are back to the question of, you know I am
50 percent complete with 20 documents requested.
Q.

11

Not the OCA stuff, but just the facts from the discussion

12

of, "Hey, we might just want to go ahead and do the 32 without the

13

classification reviews"?
A.

14
15

I never specifically told the trial counsel that is when I

want to proceed.
Q.

16

I might have misunderstood you; you could tell me if I did.

17

I thought you indicated that you had discussions about that every

18

time with the trial counsel?

19
20
21
22

A.

We did, but I never told him that is what I wanted him to

Q.

Okay, what facts do you recall from that discussion with

do.

the trial counsel?

2711

06599

1

A.

I don't remember specifically the facts.

I mean, we just

2

discussed the conduct of, you know, getting at a speedy trial and

3

moving on with the Article 32, and, you know trial counsel

4

recommendations.

5

Q.

Did the trial counsel ever tell you whether or not they

6

researched the possibility of doing the Article 32 without the

7

classification reviews?

8
9
10

A.

We had the discussion initially when we first started the

process but it was, you know, my decision to continue on until we had
all of the classification reviews done.

11

Q.

So that----

12

A.

Based on what trial counsel was telling me and what we

13

were, you know, getting back from the OCA's, you know as I said

14

before, as we continued on to the process we continue to get

15

information and more information back and you know, the dynamic

16

changed.

17

same but there were variable differences that happened there that

18

weighed in the decision-making process.

19
20

Q.

The request and the reason for the exclusions remained the

And you said you were getting more information back.

information were you getting back?

21

A.

We were getting information back from the OCA's.

22

Q.

And that is what I have been trying to get to.

23

information----

2712

What

What

06600

1

A.

I am not--like I said, if trial counsel tells me, "Hey, we

2

are continuing to receive information from the OCA's in disclosure

3

requests", then okay, I am not going back and asking him, "Okay, did

4

you get 100 documents back or did you get 10 documents back, or did

5

you get five documents back?

6

have got more than one thing on my plate as installation commander,

7

so the trial counsel is doing his job and I am comfortable that he is

8

doing that and we are seeking information and we are continuing to

9

press on.

10

Q.

Which OCA did you get them from?"

I

Okay, sir, so that I understand correctly, you understand

11

you are getting more information back, the more information for you

12

is just the trial counsel telling you that, "We are continuing to

13

work it"?

14

A.

And we have also got, I mean, I am getting information that

15

we are--I don't know at what point he started updating me because of

16

discussions on the disclosed--the discovery information that we

17

started to forward on to the defense.

18

Q.

Yeah, and I am just talking about the classification

19

reviews right now.

So, you are saying we are getting more

20

information and more information from the OCA's and I get it that you

21

are saying that, "I did not ask for particular documents" but, when

22

you are saying, more information, what you are saying is just from

23

the trial counsel telling you?

2713

06601

1

A.

Yes.

The discussion between me and the trial counsel, yes.

2

Q.

And when the trial counsel is having that discussion with

3

you, they are not saying facts to you like X number of documents,

4

this much longer, 50 percent done?

5

A.

Not until they started, you know, at some point in here,

6

they started forwarding me information that got into a little more

7

detail, but you know, the number and volume of papers and the number

8

of items, disk, other evidence that was, you know, before we sent it

9

to defense, they started updating me on.

10
11

Q.

Okay.

But, with the OCA's, you are not getting those facts

at this point?

12

A.

No.

13

Q.

All right, sir, if you go to Page 4 of tab 8?

14

A.

Okay.

15

Q.

Do you see that this is the 20 September 2011 approval of

16

No details, facts, from OCA's, no.

the government's request for delay of the 32?

17

A.

That is correct.

18

Q.

And, as with all others, it was over the defense objection?

19

A.

Yes.

20

Q.

Turn one more page to page 5.

21
22

excludable delay memorandum, correct?
A.

Yes, that is correct.

2714

This is the 14 October 2011

06602

Q.

1
2

And sir, the basis of this exclusion was the exact same as

that May, June, July, August and September memorandums?

3

A.

Fundamentally, that is correct, yes.

4

Q.

I mean actually it is the same?

5

A.

I mean, I could go back and look at it and verify the same-

6

-read the same, but I trust if you are telling me that that is the

7

case.

8

Q.

Well, do you have any----

9

A.

I mean--yeah----

10

Q.

----doubt that-----

11

A.

No, I don’t--there’s no doubt in my mind.

12
13

I mean, I’ve

signed them and looked at them and was familiar with it.
Q.

All right.

Now, again, because this is the excludable

14

delay memorandum, these are the only bases that you provide in the

15

memorandum?

16

A.

In the memorandum?

Yes.

17

Q.

And, again, nowhere here is final determination of

18

derivative classification or receipt of signed protective orders from

19

the defense or properly pushing more classified documents from NSA?

20

A.

No.

21

Q.

So, none of those were a basis for excludable delay?

22

A.

Not in here, no.

23

Q.

I’m sorry, I didn’t hear that?

2715

06603

1

A.

No.

2

Q.

Now, at this point, after 176 days of delay of the Article

3

32 by the trial counsel, if final determination of derivative

4

classifications, for example, was the only thing outstanding, I’m

5

confident you would have said, “Drive on with the 32,” correct?

6

A.

Well, there’s potential for that, yes.

7

Q.

And if release authority from the relevant district court

8

judges was the only thing holding it up, you would have said, “No,

9

no, no, drive on with the 32”?

10

A.

We could have, yes.

11

Q.

And would you have done that?

12

A.

I don’t know.

I can’t tell you what decision I would have

13

made under--right here under a different circumstance.

14

you the decision that I did make.

15
16

Q.

I can tell

Well--and I think the decision was really because of the

OCA classification reviews still being outstanding?

17

A.

And--well, and the rest of it--items in the document, here.

18

Q.

Did you weigh all of these equally?

19

A.

Primarily, we were concerned--the primary concerns were the

20

classification reviews and the ability to disclose that classified

21

information to the defense.

22

Q.

All right.

So, those were the main----

23

A.

Those were the two primary ones, yeah.

2716

06604

1
2
3

Q.

All right, sir, if you look at tab 9, page 1?

[The witness did as directed.]
Q.

This is your--actually, this is the trial counsel’s 25

4

October 2011 request to delay the Article 32.

5

request?

This is their seventh

6

A.

That’s correct.

7

Q.

Now, in this request, the prosecution requests a delay of

8

the Article 32 until “the earlier of the completion of the OCA

9

disclosure requests, the OCA classification reviews, the final

10

determination of derivative classifications, and receipt of signed

11

protective orders from the defense,” do you see that, sir?

12

A.

Yes.

13

Q.

Did the prosecution indicate why, at this point, they still

14

needed a delay for--to receive signed protective orders from the

15

defense?

16

A.

I don’t remember the specific discussion on that.

17

Q.

Given the--I guess the--at this point, the 187 days of

18

delay of the Article 32, did you give any consideration to denying

19

the government’s request to delay the 32?

20

A.

No, at this point, I still thought it was important that we

21

had the classification authorities’ reviews complete and the

22

disclosure request complete.

2717

06605

1

Q.

Did you give any consideration, at this point, to, even

2

though you might say, “Oh, I’m going to grant the delay; I’m not

3

going to exclude the time because I want to, basically, put the

4

pressure on you to get this done?

5

A.

No, I didn’t.

6

Q.

At this point, did you think, “You know what, I need to

7

drill down and get the actual fact as to what the OCAs are doing and

8

where they are at”?

9

A.

10

Q.

11
12
13

No.
Sir, if you look at page 5, tab 9?

[The witness did as directed.]
Q.

This is your 27 October 2011 approval of the government’s

request for delay, correct?

14

A.

That’s correct.

15

Q.

And in that approval you state that the Article 32

16

investigation is delayed until the earlier of the completion of the

17

OCA disclosure requests and OCA classification reviews and receipt of

18

signed protective orders from the defense or 28 November 2011,

19

correct?

20

A.

That’s correct.

21

Q.

Now, this memorandum looks a lot like and is, in fact,

22
23

identical to the previous memorandum?
A.

Yes.

2718

06606

1
2

Q.

Would you agree with me that, other than the date change,

that it’s essentially----

3

A.

It’s fundamentally, the same.

4

Q.

----a cut and paste job?

5

A.

Well, it’s the same information on the memorandum, but the

6
7
8
9
10

date changed.
Q.

Sir, if you look to Page 6, the following page?

[The witness did as directed.]
Q.

On 16 November 2011, you excluded the period from 14

October 2011 to the date of the memorandum; is that correct?

11

A.

That’s correct.

12

Q.

And, again, the basis for the delay was the same as your

13

May, June, July, August, September, and October memorandums, correct?

14

A.

Yes.

15

Q.

Also, on this day, 16 November, if you go to tab 10, page

16

1, the trial counsel requests, for the first time, that you order the

17

Article 32 to resume its work, is that correct?

18

A.

Yes.

19

Q.

And the trial counsel requests that you resume the--you

20

order the Article 32 to resume its work no earlier than 16 December

21

2011, in order for them to put into place what they call “OPLAN B,”

22

is that correct?

23

A.

That’s correct.

2719

06607

1
2

Q.

Now, OPLAN B was apparently a 30-day OPLAN in order to set

up the facility and support structure for the Article 32 hearing?

3

A.

That’s a portion of it, yes.

4

Q.

And then, I guess, you testified, on direct, other concerns

5

that you might have had for support?

6

A.

Roger.

7

Q.

Now, the trial counsel told you at the beginning of

8

November that they would be coming to you to request that the 32

9

resume its work; is that correct?

10

A.

Yes.

11

Q.

So, given the fact that you knew, at the beginning of

12

November, that they were going to come to you to say, “Hey, we’re

13

going to ask that you order the Article 32 to resume its work,” there

14

was nothing that prevented you from putting OPLAN B into play at that

15

point, correct?

16

A.

We could have.

17

Q.

And I think, as you said earlier, “Wherever we could gain

18

time, we would gain time;” is that correct?

19

A.

Right.

20

Q.

So, here would be a prime example of where you could gain

21

time if you knew, say, on the 2nd of November, “Trial counsel is

22

going to come to me in a couple weeks to ask, ‘Let’s go ahead and put

2720

06608

1

OPLAN B into place,’ and when they do ask, we’ve got maybe a week or

2

two left and we can start the 32.”

Would you agree with me on that?

3

A.

Well, that’s a potential, yes.

4

Q.

And more than a potential, there’s nothing preventing you

5

from doing it?
A.

6

There’s nothing preventing you from doing it.

I mean, it

7

wasn’t--it wasn’t like we held up everything in OPLAN B or everything

8

that was going to be required to execute the Article 32 just on that

9

date.

10
11
12

I mean, some things had already been moving forward that were

going to be required to do.
Q.

Well, OPLAN B didn’t go into play until 16 November 2011,

right?

13

A.

Right.

14

Q.

And I think, as you said, had it been approved earlier, you

15

could have resumed the 32 earlier?

16

A.

We could have, yeah.

17

Q.

And, you know, I was just thinking outside the box, had we

18

put OPLAN B into play 30 days before 16 November 2011, we could have

19

probably started the 32 right on 16 November 2011.

20

A.

Sure.

21

Q.

Now, if you look on tab 10, page 49, this is your 3 January

22

2012 excludable delay memorandum.

23

period from the request to resume the 32 to 15 December and that was-

2721

This, basically, excludes the time

06609

1

-there are a lot of bases listed there, but would you say that the

2

real basis was to put OPLAN B into play?

3

A.

Well, we had--through the period of 16 November on, we

4

still had an outstanding--we still had one outstanding OCA

5

classification review that we hadn’t had completed yet, but the trial

6

counsel came and said, “Hey, look, we’re--we think we got a good idea

7

that this is actually going to happen on time.

8

done by the 1st of December; they told us they were going to have it

9

done by the 1st of December, so I think we can move on.”

They should have this

The basis

10

of OPLAN B and the 30 days is that in the original planning cycle of

11

OPLAN B, when we were going through the mission planning process for

12

OPLAN B, the MDWJFHQJ3 guys--operations shop that puts this together

13

and comes back and says, “Hey, sir, we think it’s going to take, you

14

know, 30 days to execute OPLAN B.”

I said, “Okay, that’s good.”

So, when I made the determination to restart the Article 32

15
16

is when OPLAN B went into effect and, at that point, it was the--all

17

the supporting units knew that they had 30 days in order to provide--

18

well, some of them had to provide it earlier, but the bottom line is

19

all the tasks to the subordinate units and the tasks to--and the

20

coordinating instructions all had to be complete by--they had 30 days

21

to complete them--the supporting units.

22

Q.

All right.

23

A.

I mean, I don’t own all these guys.

2722

06610

1

Q.

I understand that, sir.

2

A.

Plus the facilities issues that we had.

3

Q.

And as we said before, we could have put that OPLAN B into

4

play earlier, though?

5

A.

In a week, I’m sure we could have.

6

Q.

Okay.

7

Now, that was pretty much my planned cross for you.

I do want to cover a couple things that you testified to on direct.

8

A.

Okay.

9

Q.

So now, you can see an ending in sight?

10

A.

End, you know.

11

Q.

All right, sir.

12

moment?

13

A.

You’re moving backwards on me now.

14

Q.

I’m going way back to the beginning, but this won’t take

15

Sure.

too long.

16

A.

Tab 1, page 28?

17

Q.

Yes, sir.

18

So, if you go to tab 1, page 28 for a

[The witness did as directed.]

19

A.

Okay.

20

Q.

Now, there was some confusion on whether or not, based upon

21

this 26 August 2010 request, whether we were asking for the 706 delay

22

in order to also complete the OCA classification reviews. I wrote

23

down that that's what I heard you testify to, but I wanted to clarify

2723

06611

1

whether or not that was, in fact, the case. If you look at paragraph

2

1, you see where we're asking to delay the 706 board until there's

3

some procedures in order to protect classified information.
Do you see that, sir?

4
5

A.

Yes.

6

Q.

Now, if you go down to paragraph 6, you see, we're just

7

requesting the results of the classification reviews, we're not

8

asking for the 706 board to be delayed until we get the

9

classifications reviews.

10

A.

For OCAs.

I'm not----

11

Q.

I understood your----

12

A.

----I mean, if that's what I said--that's not--I mean, what

13

the--you were requesting information from the OCA--from the OCA

14

reviews.

15

Q.

Yeah, I wasn't asking for the 706 board to be delayed----

16

A.

Yeah, right.

17

Q.

----for that. Okay. There was a couple of other points if

18

you could bear with me for one second. If you go to tab 3, page 3,

19

sir?

20

[The witness did as directed.]

21

MJ:

Where are you going?

22

CDC[MR. COOMBS]:

23

MJ:

Ma'am, tab 3, page 3.

Okay.

2724

06612

1

A.

Okay.

2

Q.

You see here, we objected to a delay request, but if you

3

look at paragraph 1, we're not asking, at this point, for the OCA

4

classification reviews in order to be prepared, we're just asking for

5

discoverable classification--excuse me, discoverable classified

6

evidence and information to the defense.
Do you see that?

7
8

A.

Uh-huh.

9

Q.

And, again, at least what I noticed on direct, it may seem

10

that you were saying we were asking for a delay in order to get the

11

classification reviews.

12

A.

I think you were asking for--you were asking to be provided

13

the results of the classification reviews so you can properly prepare

14

for the defense.

15

Q.

All right.

16

A.

It's the way I read that.

17

Q.

That paragraph 1?

18

A.

Right. You're not requesting a review, you're requesting

19

the information from the classification authorities.

20

Q.

Okay. So just----

21

A.

In order to properly prepare for the defense.

22

Q.

All right. So, not the OCA classification reviews?

23

A.

Yes.

2725

06613

Q.

1
2

Okay. Sir, if you look at tab 9, page 7.

[The witness did as directed.]

3

Q.

There should be an e-mail from, then, Captain Fein to you.

4

A.

It is.

5

Q.

Sir, do you see where Captain Fein gives you an update

6

saying, "We received final approval to turn over classified forensic

7

data and did so today.

A total of 329,055 pages."

You see that point there, sir?

8
9

A.

Yes.

10

Q.

Do you know what the classified forensic data consisted of?

11

Did the trial counsel explain that to you?

12

A.

Not particularly, no.

13

Q.

Did they explain, when they received authorization, to turn

14

that over?
A.

I'm assuming it's pretty close to the time they turned it

17

Q.

So that's your assumption that it's close to this time

18

period?

19

A.

20

CDC[MR. COOMBS]:

15
16

over.

I'm assuming so, yeah.
Okay. All right, sir, that's all the cross I

21

have, right now, for you.

22

redirect and the military judge may have some questions.

23

MJ:

The government's going to have some

Government?

2726

06614

1
2

ATC[CPT WHYTE]:

Ma'am, can we just have a 15-minute comfort

break?

3

MJ:

15 minutes?

4

ATC[CPT WHYTE]:

5

MJ:

Yes, please.

All right.

6

[The witness was duly warned and the Article 39(a) session recessed

7

at 1542, 8 November 2012.]

8

[The Article 39(a) session was called to order at 1559, 8 November

9

2012.]

10

MJ:

This Article 39(a) session is called to order. But the

11

record reflect that all parties present when the Court recessed are

12

again present in court. The witnesses also present. Government?
REDIRECT EXAMINATION

13
14
15

Questions by the assistant trial counsel [CPT WHYTE]:
Q.

Sir, I just have a few--I promise you--a few questions just

16

on the redirect. So, earlier today, sir, you testified about the

17

process for when you received these requests for a delay.

18

A.

Correct.

19

Q.

Can you, just one last time, just explain that process of

20
21

when you were---A.

If, you know, a delay was requested, I discussed it with

22

the trial counsel. If it was a delay requested by the--well, by

23

either the trial counsel or the defense, in this case throughout the

2727

06615

1

whole process, try to confer with the other and go through the

2

process of understanding what was in the delay request and either

3

approving or disapproving it.

4

you're referring to the eight delays from April to December,

5

specifically, typically what would happen is I would either get a,

6

you know, a hand-carried copy of the request for delay over to my

7

office and then Captain Fein--Captain/Major Fein in the process,

8

here, would show up and bring the delay to me, or it was emailed to

9

me.

It came in the form--well, for--if

If it was e-mailed to me, I printed it, took it back to my

10

office, I'd sit down at the desk, called Ashden or arranged, through

11

the secretary, for us to get linked up, and then I would ask Mr.

12

Coombs for his opinion for his input on the delay and then make a

13

decision.

14

Q.

Yes, sir.

So when Major Fein or a member from the

15

prosecution team would come over, they would sit down with you, with

16

the request or, I guess, you said over the phone?

17

A.

Yes.

18

Q.

And talk with you about, for the most part, each single

19
20

paragraph in this request?
A.

Oh, we would go through the request and, generally--

21

sometimes the--depending on what was in the request, if there was

22

some, you know, major changes to it, we would talk about the

23

classification authority and, specifically, the classification

2728

06616

1

reviews and disclosure requests. Those are the ones we figured were

2

going to take the longest and they did. But, other than that, we

3

would go through the document, he would say, "Okay, here are the

4

reasons for delay," and, you know, we'd talk over it and I forwarded

5

on to Mr. Coombs and Mr. Coombs would send me an e-mail back pretty

6

quickly, usually, and then I'd make a decision.
Q.

7
8

So, within the request, trial counsel included updates?

The trial counsel would you brief you on these updates?

9

A.

There are updates in the request.

10

Q.

The trial counsel would brief you on those updates in the

11

requests?

12

A.

Yes.

13

Q.

When you were determining whether or not to approve----

14

A.

Yeah, that's correct.

15

Q.

Sir, just as an example, can you just turn to tab 8, page

16

1?

17

[The witness did as directed.]

18

Q.

This is just one of the----

19

A.

I'm pretty proficient at this.

20

Q.

This is just one of the requests by the prosecution----.

21

A.

It is.

22

Q.

----by the United States. It's dated 26 September 2011.

23

A.

That's correct.

2729

Okay.

06617

Q.

1

So, sir, safe to say that when you got this request, a

2

member from the prosecution team would come over and actually talk

3

about each update in this paragraph and brief you on each update?
A.

4

Well, I would get an update--well, you know, in person or

5

over the phone depending on how it came, but, you know, I had the

6

document in front of me and I was having a discussion with Major

7

Fein.

8

Q.

Yes, sir. But a member----

9

A.

Or Captain Fein.

10

Q.

A member from the prosecution team would discuss these

11

updates with you at that point?

12

A.

Yes.

13

Q.

Okay, sir.

14

And these updates included actions of the

original classification authorities?

15

A.

Yes.

16

Q.

Okay, sir.

So, I just want to--just to clarify, so, when

17

you testified on cross-examination that you, necessarily, didn't have

18

the details from the OCAs--the necessary--the facts from the OCAs,

19

was it that you didn't actually--that trial counsel did not brief you

20

on the details, or was it that you don't remember the exact details?

21

A.

Well, I mean, I don't think that--there are some cases

22

where I didn't get into the specific details or didn't, you know,

23

require a specific details on some of these requests were some of the

2730

06618

1

OCA discussions, but, you know, it depended on the OCA and depended

2

on, you know, where we were at.

3

exactly every discussion that we had, you know, weekly on each OCA

4

and each, you know, document that was coming back from the OCA or we

5

disclosed to the defense.

6

Q.

And like I said, I don't remember

Sir, you can just, staying in tab 8, just move forward to

7

the accounting memorandum, page 5, dated 14 October 2011.

8

that memorandum, paragraph 3, you outlined the basis for your

9

decision for that period of time.

10

A.

Yes.

11

Q.

Is that correct, sir?

12

A.

Uh-huh.

13

Q.

And, sir, subparagraph E----

14

MJ:

Where are you?

15

ATC[CPT WHYTE]:

16

MJ:

17
18
19

Okay.

Tab 8, page 5.

The government request for a delay, dated 26

September.
Q.

So, sir, did you consider the government's request for a

delay in granting the delay?

20

A.

Well, yes.

21

Q.

Fair enough, sir.

22
23

And in

So, you consider the updates and the

request in granting the delay?
A.

In granting the delay, right.

2731

06619

1

Q.

Okay, sir, and just last series of questions, when we're

2

talking about OPLAN B, and what did you mean that "OPLAN B could have

3

been initiated sooner"? What did you mean by that?

4

A.

Well, that it could have been if we elected to, but, I

5

mean, we had already given all of the supported--or the supporting

6

units and the supporting individuals that were required to provide us

7

support that, you know, we would give them 30 days. Like I said, in

8

OPLAN B, the different tasks the subordinate units and coordinating

9

instructions, you know, had a different requirements on different

10

units, but, I mean--but--even in this room, right here, this--the

11

modification of this courtroom and upgrade of this courtroom--we

12

didn't wait until, you know--we didn't postpone anything. We--in

13

order to get it done and renovated, he started moving facilities into

14

the parking lot after we executed OPLAN B, but most of the soldiers

15

that you see here, supporting us, and don't belong to, you know,

16

Headquarters Battalion, USAG, a lot of them belong to MDW; some of

17

them belong to Fort Meade, so they certainly got to have the

18

opportunity to mobilize and get their--so their soldiers know what

19

they're required to do as well.

20
21

Q.

Yes, sir. So, by saying that it could have happened

earlier, could it have happened early 2011?

22

A.

Well, I mean----

23

Q.

We--could it have----

2732

06620

1

A.

It could have happened in 2010.

2

Q.

So why did it happen--why did it start in November 2011,

3
4

then, sir?
A.

Well, because when we got to the point--through the

5

planning process and developing OPLAN B, the development of OPLAN B

6

who thought they were going to have to have 30 days in order to put

7

this into place and get all the required other Soldiers support.

8

we talked about facilities and the Soldiers around the area and there

9

were a lot of other things in there to consider as well.

And

There was

10

transportation plans, confinement facilities, how we--moving PFC

11

Manning from the Regional Confinement Facility at Fort Leavenworth

12

doesn't, you know, happen, you know--we don't pick up the phone, call

13

and say, "Hey, in two hours be here to pick up, you know, the accused

14

to fly him to some confinement facility."

15

confinement facility is nor have we made arrangements there.

16

there are a lot of things factored into OPLAN B other than trailers

17

and Soldiers. You know, we could have executed it, you know, any time

18

through the process, but it just wasn't prudent to do.

19

Q.

We don't know what that
So,

Yes, sir. He testified earlier that securing classification

20

reviews were important to your decision about when to start the

21

Article 32.

22

A.

Right.

23

Q.

Classification reviews were important?

2733

06621

1

A.

Right, absolutely.

2

ATC[CPT WHYTE]:

Sorry, sir, just one second. I think that's it,

3

but let me just make sure. Sir, thank you very much.

4

have some follow-up questions.

5
6

MJ:

Defense, do you have anything further?

CDC[MR. COOMBS]:

8

MJ:

12
13

Yeah, I have no additional questions.

Colonel Coffman, I have a few questions.
EXAMINATION BY THE COURT-MARTIAL

9

11

I assume you're

finished.

7

10

The defense may

Questions by the military judge:
Q.

Can you look at tab 3 on page 3?

[The witness did as directed.]
Q.

It's the 26 April 2011 defense objection to the

14

government's request to delay the Article 32.

15

paragraph 2(a), it says that the defense is requesting you to order

16

the government to provide a substitute for a summary. Did you have

17

that authority to do that?

18

A.

If you look at

I--at the time, you know, whether or not I actually had the

19

authority to do that, I'm not sure.

20

to do that. I'm not sure, Your Honor, whether or not I had the

21

authority to authorize that or not.

22
23

Q.

I thought I did, but I opted not

I know this is a hypothetical, but let's just assume that

these delays continued past December and were beginning to approach

2734

06622

1

your change of command. I mean, was there, at all, any time in your

2

mind where you might have said, "Okay, at some point we've got to

3

go"?

4

A.

Yes, Your Honor.

Like I stated before, I mean, as we

5

continue to move through the process, I saw that we were making

6

progress, we are getting things done, more information is coming in,

7

so we were getting on with the process of getting the Article 32

8

started getting the classification review is complete. But, if you're

9

asking me if I have a specific, hard day on the wall, no, Your Honor,

10

I did not, but it was, you know--and--I'm not sure how to answer a

11

hypothetical question.

12

draw it to a close, here.

13

potential information out there that we don't know that could have an

14

impact, but we opted to go--I made the decision to go the route that

15

we did.

16

Q.

I'm sure you know, at some point we've got to
I mean, we--there are--there is still

Okay. The other thing that I am still confused about a

17

little bit--I want to ask you some questions about that. The original

18

charges, in this case, were preferred on the 29th of May of 2010.

19

Are you familiar with the original charges?

20

A.

The original charge sheet, Your Honor----

21

Q.

I'm sorry, not the dates imposed. I think I have the wrong

22

date, here, it's the 5th of July.

23

date; it was the 5th of July of 2010.

2735

I was reading the confinement

06623

1

A.

5th of July? Yes, Your Honor.

2

Q.

Were they preferred before you got jurisdiction?

3

A.

I don't recall if they were preferred before or after. I

4

know that I went in and we made some adjustments to the charges after

5

I had the case.

6
7
8
9
10
11

MJ:

I don't remember specific dates.

Counsel, can you give Colonel Coffman the original charges

as well as the charges that were preferred on the 1st of March 2011?
TC[MAJ FEIN]:

[The trial counsel just directed.]
MJ:

I'm not sure what exhibit--if they're appellate exhibits or

what they are.

12

TC[MAJ FEIN]:

13

MJ:

14

TC[MAJ FEIN]:

15
16
17

Ma'am, may we have a brief recess in place?

Yes.
Ma'am, can we have a 5-minute recess not in place

to go print the original charge sheet that was dismissed?
MJ:

All right.

Let's go ahead and recess the Court.

Come back

and knock on my door when we're ready to go.

18

TC[MAJ FEIN]:

19

MJ:

20

TC[MAJ FEIN]:

21

MJ:

22

Yes, ma'am.

Yes, ma'am.

And make a copy for everybody.
Yes, ma'am.

Court is in recess.

[The Article 39(a) session recessed at 1612, 8 November 2012.]

2736

06624

1

[The Article 39(a) session was called to order at 1629, 8 November

2

2012.]
MJ:

3

This Article 39(a) session is called to order. Let the

4

record reflect all parties present when the Court last recessed are

5

again present in court.

6

Fein?

7

TC[MAJ FEIN]:

The witness is on the witness stand.

Major

Ma'am, what has been now marked as Appellate

8

Exhibit 380 are three versions of charge sheets.

The first--all in

9

one exhibit. On the top is the unredacted original and dismissed the

10

charge sheet. Behind that is the original and dismissed redacted

11

charge sheet. And then, behind that, Your Honor, is the redacted

12

current charge sheet.

13
14
15
16

MJ:

All right. Thank you.

[Examination of the witness continued.]
Q.

Colonel Coffman, do you have a copy of the original and the

new charge sheet?

17

A.

Yes, they just handed it to me, Your Honor.

18

Q.

Now, what--you became--do you remember when you received

19
20
21

jurisdiction on the case?
A.

On the beginning of--the exact date, I believe, was the 3rd

of August.

22

Q.

So, if I look at the original charge sheet----

23

A.

Sorry, sorry, correction----

2737

06625

1
2

Q.

----with a preferral date of July 5th of 2010, was that

preferred before you got jurisdiction?

3

Q.

Yes, ma'am.

4

Q.

Okay.

5

So, when you got jurisdiction, this came along with

the original charge sheet, is that right?

6

A.

Yes, ma'am, to the best of my recollection.

7

Q.

Is there any discussions--I'm looking at the original

8

charges and the original charges talk about a classified video of the

9

military operation films that are near Baghdad, on or about 12 July

10

2007. It talks about 50 classified Department of State cables, a

11

classified Microsoft Office PowerPoint presentation, a classified

12

video--well, it looks like the same thing--a classified State

13

Department cable entitled "Reykjavic 13,"

14

State cables, and then more than a 150 diplomatic cables.

15

point there were new charges preferred on the 1st of March of 2011

16

and these have a more broad scope of charged documents. The combined

17

information data network exchange Iraq database 380,000 records, a

18

classified memorandum produced by the government agency, 20

19

classified records--more than 20 classified records from the combined

20

information network exchange Iraq database--I guess from looking at

21

this--is from--when you got the case, until the new charges were

22

referred, did the government know what--when did the government find

23

out about all this extra information that is charged in the

2738

more than 50 Department of
At some

06626

1

additional charges versus was charged in the original charges? Do you

2

have any idea?

3

A.

Okay, I'm--but--so, you're asking me----

4

Q.

Well, I'm looking at--you have the----

5

A.

I'm sorry, I didn't understand the question, Your Honor.

6

Q.

----a small--well, you have an uncertain amount of

7

information in the original charges that the government is going back

8

to get classification reviews for. At some point, the government--you

9

become aware--the government becomes aware that there is more

10

information up there because they've now withdrawn the original

11

charge--or dismiss the original charges preferred the new ones

12

containing the information. I guess at--during--when you were doing

13

these delay requests, was there any discussion there about change or

14

new information requiring classification reviews?

15
16

A.

Can--I mean--as I was going through the delay process, Your

Honor?

17

Q.

Yes.

18

A.

Yes, we had--well--specifically, on each one of these

19

different, you know, charges and specifications, like I said before,

20

I wasn't going through the process to try--I mean, I had the

21

specifications they are and generally knew what they were, but as far

22

as what the OCA's reclassifying what they were classifying, I wasn't

23

in--you know, tracking the details of, you know, "Hey, this

2739

06627

1

particular OGA has this many documents as many videos." I mean, have

2

a general understanding of what was in there, but I wasn't tracking

3

what--as far as what the OCA's had to review, I wasn't into the--into

4

discussion with the numbers of, specifically, documents that had to

5

be reviewed, when they were viewed, how many times they were--or, you

6

know the time it was going to take to review each document, if that

7

makes sense to you; maybe it doesn't.

8
9

Q.

No, I'm just asking you, I guess--and when you're-- you had

periods of delay early on in 2010 for the R.C.M. 706 board, but part

10

of that justification for those delays was also the classification

11

reviews, right?

12

A.

Well, we started the classification review process early--

13

not early--when we started--and we knew we had classified

14

information, read to get classification reviews.

15

Q.

And it is government ever come talk to you about--it's not

16

in--I don't see it in any of these delay memorandums that, "Oh no, we

17

just found out about new information that we need to go back to these

18

various agencies and get it--get the classification review of

19

information we can ask for before."

20

A.

Well, as--in the weekly updates I was having with the trial

21

counsel, he would say, "You know, as we find out--you know, as we

22

find information, then we have to go through the same process with

23

that," if that makes sense.

I mean, we had new information and with

2740

06628

1

that new information comes the requirement to, you know execute a

2

classification review and, you know, get----

3

Q.

To the trial counsel ever come back to you and say, "We are

4

continuing to work with the agencies.

5

we've got to have them look at"?

6
7

A.

We've got new information that

Those were the, you know, the weekly updates we were

receiving were included, you know, throughout the weekly updates.

8

Q.

Is there any----

9

A.

Like I said----

10

Q.

----documentation of that that you're aware of or is that

11
12

just what you remember from the conversations?
A.

The documentation of the request for delays is what was,

13

you know, exactly what we've been through today.

14

familiar with, but, you as--I'd say--is--we have phone calls and the

15

trial counsel is coming and having the discussion of, "Hey, look,

16

we're continuing to process this.

17

information--as we get this--new information comes up and we reveal

18

this as we're going through the investigation portion of this.

19

have the same requirement."

20

Q.

I mean, your

Now we have, you know,

We

Did they talk to you at some point about, "Hey, the

21

original charges aren't--don't accurately reflect what we want the

22

charge.

23

those and go forward with the additional charges"?

There's more out there so we're going to--we want dismiss

2741

06629

1

A.

That was the additional--you know, I got the additional

2

preferred charge sheet from Colonel Leiker--or the updated charge

3

sheet.

4

Honor.

I don't know what the proper legal term for it is, Your

5

Q.

Had any idea when the CID investigation was complete?

6

A.

Was completed? Oh, I could probably go back and give you an

7

exact date, but I'm not sure exactly when--what date was off the top

8

of my head.

9

MJ:

Any follow-up based on that?

10

TC[MAJ FEIN]:

11

MJ:

14
15
16
17

If I may, Your Honor, redirect?

Yes.
REDIRECT EXAMINATION

12
13

Yes, Your Honor.

Questions by the trial counsel [MAJ FEIN]:
Q.

Colonel Coffman, in reference to the Court's last question,

are you aware if CID is still investigating this crime?
A.

Yeah, I don't have a current update on what CID is

investigating.

18

Q.

Sir, are you aware----

19

A.

I've been out of command for three months.

20

Q.

Sir, did you ask the--say again, sir?

21

A.

I've been out of command for 3 months.

22

Q.

Yes, sir.

23

I'm not----

Sir, are you aware WikiLeaks is still releasing

classified information, as of today?

2742

06630

1
2

A.

I don't know if they've released any today; there is, you

know, potential for that I'm sure.

3

Q.

Yes, sir. Do you know if CID is investigating the site?

4

A.

CID is, I think, investigating a potential leak.

5

Q.

Okay, sir. And then, as far as--going back, now, to the

6

first line of questioning from the Court, and Private First Class

7

Manning was first transferred to your command, were all of the

8

disclosures in this case in the public domain at that point?

9

A.

No.

10

Q.

And was that a rolling process?

11

A.

I mean, we continue to find things out, you know, as it

12

progressed and it matured.

13

kept investigating?

GMAC and does that include, sir, that CID

14

A.

Well--roger, CID continued to investigate.

15

Q.

And, sir, how did you know that was going on?

16

A.

Because the trial counsel told me it was happening.

17

Q.

And were those updates--I mean, are those part of those

18

updates he talked about today?

19

A.

Roger.

20

TC[MAJ FEIN]:

21

MJ:

22

CDC[MR. COOMBS]:

Thank you, sir.

Mr. Coombs?
Yes, ma'am.

2743

06631

RECROSS-EXAMINATION

1
2
3
4

Questions by the civilian defense counsel [MR. COOMBS]:
Q.

Sir, the original charges were preferred on 5 July 2010.

Can you verify that?

5

A.

That's what's on the original charge sheet; it's correct.

6

Q.

And then the additional charge sheet was preferred on 1

7

March 2011, correct?

8

A.

That's correct.

9

Q.

And you took--the case, basically, fell into your

10

jurisdiction on 3 August 2010?

11

A.

Yes.

12

Q.

Now, between the timeframe of, basically, when it got to

13

you, 3 August 2010, and 1 March 2011, do you know when, in that time

14

period, and the government was aware of what information they

15

believed PFC Manning may have----

16

A.

I don't recall, exactly, a date, no.

17

Q.

Do you recall why the 1 March 2011, was the time frame in

18

which there is a decision to prefer additional charges?

19

A.

I don't recall, specifically, why that date was there.

20

Q.

So, at this point, you can't say that that 1 March 2011

21
22
23

time-frame was because of newly discovered information?
A.

That was just the date we preferred the--that we had the

new charge sheet, right.

2744

06632

1

Q.

Okay.

So, the information that you might have--from the

2

additional charges that are not present on the original charge sheet,

3

the information you could have gotten much earlier than the actual

4

referral date of the additional charges?

5

A.

Yes, we could have, I guess.

6

CDC[MR. COOMBS]:

Okay.

Then, Your Honor, with regards to a

7

question on authority for substitutions, we would ask the Court look

8

at R.C.M. 405--or, excuse me, M.R.E. 505(d).

9

TC[MAJ FEIN]:

Your Honor, if the Court is going to consider

10

this, we'd ask that this be briefed to the Court because Colonel

11

Coffman has already answered the Court's question about it.

12

MJ:

I asked him based on his knowledge.

If the parties would

13

like to submit their own views to the Court on that question, I'm

14

more than happy to take it.

15
16

CDC[MR. COOMBS]:
all the questions I have.

17

MJ:

18

CDC[MR. COOMBS]:

19

TC[MAJ FEIN]:

20
21
22

Okay, Your Honor.

Okay.

Colonel Coffman, that's

Thank you.

I think that's all I have.

Is everyone finished?

Yes, Your Honor.

Yes, ma'am.

[The witness was excused and withdrew from the Courtroom.]
MJ:

All right.

Please be seated.

[All persons did as directed.]

2745

06633

MJ:

1

Just for the record--and the purpose of my question to

2

Colonel Coffman was to ask him whether he believed he had the

3

authority or not.

4

authority or not, the Court's question is:

5

authority who doesn't have--who is not the equity holder--have

6

authority to authorize substitutes without the permission of the

7

equity holder?

8

that's a separate issue.

9

views were----

Now, the legal question on whether he has

So, if the parties want to brief that to the Court,

10

CDC[MR. COOMBS]:

11

TC[MAJ FEIN]:

12

MJ:

13

CDC[MR. COOMBS]:

14

TC[MAJ FEIN]:

15

MJ:

16

does a convening

I was just asking Colonel Coffman what his

Understood, Your Honor.

Yes, ma'am.

----it's not mandatory.

If you want to do it, go ahead.

Yes, Your Honor.

Yes, ma'am.

Okay. Anything else we need to address with respect to the

speedy trial issue or any of the witnesses' testimony?

17

CDC[MR. COOMBS]:

18

TC[MAJ FEIN]:

19

MJ:

No, Your Honor.

No, Your Honor.

The other outstanding thing I have is the government's

20

M.R.E. 505(g) motion.

I've already signed the protective order for

21

the defense to look at the information.

22

documents that are, potentially, involved; I've looked at some of

23

them.

There are a number of

There is a vast sum of classified information that I will need

2746

06634

1

to go through that I have had the government make prints for me.

I'm

2

prepared to do that this afternoon after we are complete and come out

3

with an order with respect to the relevant portion of that motion.
Defense, are you going to--I understand you're going to

4
5

have your forensics expert look at the information.

6

the relevance piece, are you going to be submitting anything further

7

in response to that?

8
9
10
11
12
13
14

CDC[MR. COOMBS]:

With respect to

No, Your Honor, just a--the exact same bases

that we gave previously for any 505(g)(2) requests just considering
the factors that the defense has listed previously.
MJ:

All right. Now, the defense--you've e-mailed me something

that you have not filed. Do you want to continue with that posture?
CDC[MR. COOMBS]:

No, Your Honor. We did not mark that as an

appellate exhibit.

15

MJ:

And that's how you want to continue?

16

CDC[MR. COOMBS]:

17

MJ:

Yes, Your Honor.

Okay. So I will consider, when I look at the relevance

18

determinations, the factors that you outlined for me in the previous

19

505(g) motions.

20

and re-raise the metadata issues should you choose to do that and I

21

will go ahead and take a look at the documents in camera for the

22

relevance piece and issue an order, email it to the parties, and

23

address it on the record at the next session.

The protective order, you can go ahead and look at

2747

06635

Is that acceptable for the parties?

1
2

CDC[MR. COOMBS]:

3

TC[MAJ FEIN]:

4

MJ:

5

TC[MAJ FEIN]:

Okay.

Yes, Your Honor.

Yes, Your Honor.

Is there anything else we need to address today?
Yes, Your Honor, the United States would move for

6

a 45-minute recess in order for the defense and prosecution to

7

finalize the chronology--joint chronology, the interrogatories, to

8

put that on the record, and answer the Court's question about the OCA

9

participation.

10

MJ:

Okay.

And, at some point, we'll have to look at the case

11

calendar.

12

with the updates that we've already had, the change in dates, the 5

13

December, etc.?

14
15

Is someone from the government doing a draft case calendar

TC[MAJ FEIN]:

Well, that one change could be made very quickly,

Your Honor.

16

MJ:

I believe that was the only change that we made.

17

TC[MAJ FEIN]:

18

MJ:

And we could have that done as well.

And the case calendar should also reflect--and it has

19

specifications for plea and maximum punishment litigation.

20

conditional plea issues--just add that in there as well.

21

TC[MAJ FEIN]:

22

MJ:

23

Yes.

Also,

For the next session, Your Honor?

As far as I understand that, the government is going

to--the government has to go through certain----

2748

06636

1

TC[MAJ FEIN]:

2

MJ:

3

TC[MAJ FEIN]:

4

MJ:

5

Yes, ma'am.

----hoops in accordance with Army Regulation 27-10?
Yes, ma'am.

Is anything else that I have neglected to address that we

need to put--or add to the case calendar?

6

CDC[MR.COOMBS]:

7

TC[MAJ FEIN]:

8

MJ:

9

I don't believe so, ma'am.
No, ma'am.

And Mr. Coombs, were you going to say something else, or

not?

10

CDC[MR.COOMBS]:

11

MJ:

12

CDC[MR.COOMBS]:

13

TC[MAJ FEIN]:

14

MJ:

15

Okay.

No, ma'am.

Any objection to the 45-minute recess?
No, ma'am.
No, ma'am.

All right.

Court is in recess till 1730.

If you need

beyond that, let me know.

16

TC[MAJ FEIN]:

17

MJ:

Yes, ma'am.

Court is in recess.

18

[The Article 39(a) session recessed at 1647, 8 November 2012.]

19

[The Article 39(a) session was called to order at 1815, 8 November

20

2012.]

21
22

MJ:

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

Let the

record reflect all parties present on the Court last recessed are

2749

06637

1

again present in court.

2

during the recess?

3

TC[MAJ FEIN]:

Major Fein, what have the parties, with

Your Honor, during the recess, first, the Court's

4

classified protective order to go along with Appellate Exhibit 368

5

was marked and that is marked as Appellate Exhibit 381.

6

also, a redacted unclassified version was also marked as 382.

7

MJ:

8

TC[MAJ FEIN]:

9
10

And then,

Okay.
Additionally, Your Honor, during the recess, both

parties agreed upon a joint stipulated speedy trial chronology that
has been marked as Appellate Exhibit 383.

11

MJ:

12

earlier?

Is it very different than the defense one that came to me

13

TC[MAJ FEIN]:

14

MJ:

15

TC[MAJ FEIN]:

It is not much different, Your Honor.

Okay.

16

explained----

17

MJ:

18

TC[MAJ FEIN]:

However, in a moment, one difference will be

Okay.
----after this for the government’s perspective.

19

Also, Your Honor, what’s been marked as Appellate Exhibit 384 is the

20

Updated Defense Interrogatories that was discussed on the record this

21

morning.

22

MJ:

23

CDC[MR.COOMBS]:

And that’s agreed to by both sides?
Yes, Your Honor.

2750

06638

1

MJ:

Okay.

2

TC[MAJ FEIN]:

And also, Your Honor, during the recess, you

3

signed the updated court calendar which has been marked as Appellate

4

Exhibit 385.

5
6

MJ:

Have both sides had an opportunity to review the Court

calendar?

7

CDC[MR.COOMBS]:

8

TC[MAJ FEIN]:

9

MJ:

Yes, Your Honor.
Yes, Your Honor.

All right.

It is my understanding that there has been some

10

change in the dates of deliverables, but there’s been no change in

11

the dates that were previously scheduled; is that correct?

12

TC[MAJ FEIN]:

13

MJ:

14

Okay.

So the next session is scheduled to begin, then, on

the 27th of May 2012 at 1300?

15

TC[MAJ FEIN]:

16

MJ:

17

TC[MAJ FEIN]:

18

MJ:

19

Is that accurate?

Your Honor, that’s 27 November.

27--what did I say?
May, Your Honor.

27 November 2012.

All right.

So it’s 1300 as was

previously scheduled?

20

TC[MAJ FEIN]:

21

MJ:

22

That is correct, Your Honor.

Okay.

Yes, ma'am.

And all the other dates on the calendar have

remained the same?

2751

06639

1
2
3

TC[MAJ FEIN]:

Yes, ma’am, and the times also--the standard time

of 10 o'clock starting on the record except that date on 27 November.
MJ:

So, do the parties believe that we need to meet, at all, in

4

an 802 conference with respect to the scheduling order or is this

5

pretty accurate?

I mean, is this an accurate way forward?

6

CDC[MR.COOMBS]:

7

TC[MAJ FEIN]:

8

MJ:

9

TC[MAJ FEIN]:

10

Yes, Your Honor.
Yes, Your Honor.

So we don’t need to meet?
We do not need to meet; that is an accurate way

forward, Your Honor.

11

MJ:

All right.

12

TC[MAJ FEIN]:

Anything else?
Your Honor, the only other issue from the

13

government’s perspective is, based off, now, the agreed upon

14

stipulated chronology, the government does expect to file with court,

15

probably by--it will be by the end of next week--an additional

16

enclosure to the response to the speedy trial motion.

17

specifically, it will be an unfortunately large number of emails

18

between the defense and the prosecution about the different requests

19

the defense has submitted and the responses the prosecution gave.

20

attempted to put that in the chronology that was stipulated to, but

21

it wasn’t agreed upon so----

22

MJ:

All right.

And,

We

When do you intend to have that to the Court?

2752

06640

1

TC[MAJ FEIN]:

As of now, Your Honor, because Monday is a

2

federal holiday, we expect to have it by Thursday--delivery in

3

person.

4

MJ:

Okay.

Any issues?

5

CDC[MR.COOMBS]:

No issues with that, although, under the local

6

rules, the government is free to submit a chronology of what they

7

would believe are additional days.

8

having to give you a lot of the other documents, instead, just giving

9

you the dates they wanted to provide to the Court.

10
11
12
13
14
15
16
17
18
19
20

MJ:

That might prevent them from

I think what you’re looking for is to provide some

documentation to back up the dates.
TC[MAJ FEIN]:

Is that you’re looking----

Absolutely, Your Honor; this is evidence that we

intend to use.
MJ:

Is this all in the two volumes of miscellaneous emails that

I initially got?
TC[MAJ FEIN]: No, Your Honor, this is--these are just going to
be emails between defense counsel and prosecution back and forth.
MJ:

And were the pulled from those two volumes or were they

coming from somewhere else?
TC[MAJ FEIN]:

No, Your Honor, this is--there will be a few of

21

the emails we are going to provide you--are also--we’ll identify if

22

you’ve already been provided certain emails--we’ll have that clearly

2753

06641

1

identified, but the majority of these emails you have not seen or

2

been presented before, but they will be marked.

3
4
5

CDC[MR.COOMBS]:

The defense has no issues with that, Your

Honor.
MJ:

As I said earlier in the proceedings, during the recess I

6

have been conducting my 505(g) review on the documents at issue; I’d

7

already reviewed some of them with respect to the government’s 505(g)

8

motion.

9

that will come out shortly, but my review has necessitated the need

I am almost finished reviewing them, so I will have an order

10

for another ex parte in camera session.

11

we recess the Court today?

12

TC[MAJ FEIN]:

13

MJ:

14

TC[MAJ FEIN]:

15

MJ:

16

Which--can we do that after

Yes, ma'am.

About a half an hour after we recess the Court today?
Yes, ma'am.

Is the Court reporter available to stay?

Okay.

Is there

anything else we need to address at this time.

17

CDC[MR.COOMBS]:

18

TC[MAJ FEIN]:

19

MJ:

Okay.

No, Your Honor.
No, Your Honor.

Court is in recess.

I will advise--I’ll send

20

someone out to advise the government when I’m ready to go on the ex

21

parte in camera proceeding.

22

TC[MAJ FEIN]:

Yes, ma'am.

2754

06642

1
2

CDC[MR.COOMBS]:

Your Honor, I apologize.

Just for

clarification, the OCAs--I don’t know if the government----

3

MJ:

Oh, yes, they’re right----

4

TC[MAJ FEIN]:

5

MJ:

6

TC[MAJ FEIN]:

Thank you.

The government has neglected to tell me---Your Honor, the five OCAs that--or the five

7

organizations are going to answer all the interrogatories to the best

8

of their ability.

9
10
11

MJ:

Okay.

You said five organizations.

I thought there were

only four?
TC[MAJ FEIN]:

There are, Your Honor.

The prosecution has, sua

12

sponte, added one additional one.

13

why we’ve added one additional one they did not originally ask for.

14

MJ:

Okay.

15

CDC[MR.COOMBS]:

16

MJ:

Okay.

We have explained to the defense

And are you happy with that?
I have no issues with that, Your Honor.

So everybody is going to do--we’re going to be doing

17

this by interrogatories, so, at this point, there’s no reason for me

18

to have any additional rulings on the Defense Motion to Compel Speedy

19

Trial Witnesses?

20

CDC[MR.COOMBS]:

21

TC[MAJ FEIN]:

22

MJ:

23

That is correct, Your Honor.
Yes, ma'am.

Anything else we need to address before we recess the

Court?

2755

06643

1

CDC[MR.COOMBS]:

2

TC[MAJ FEIN]:

3

MJ:

4
5

No, Your Honor.
No, Your Honor.

Court is in recess.

[The Article 39(a) session recessed at 1820, 8 November 2012.]
[END OF PAGE]

2756

06644

Pages 2757 through 2768 of this
transcript are classified
“SECRET”. This session (8
November 2012, Session 2) is
sealed for Reasons 2, 3, and 4,
Military Judge’s Seal Order
dated 17 January 2014 and
stored in the classified
supplement to the Record of
Trial.

06645

1

[The Article 39(a) session was called to order at 1319, 27 November

2

2012.]

3

MJ:

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

4

TC[MAJ FEIN]:

Major Fein?

Your Honor, all parties -- when the court last

5

recessed are again present with the following exceptions:

6

Whyte is absent and Captain von Elten is present and will announce

7

his qualifications.

8

MJ:

9

ATC[CPT VON ELTEN]:

Captain

Proceed.
Your Honor, I am detailed to this court-

10

martial by Staff Judge Advocate, Colonel Bradley, United States Army

11

Military District of Washington.

12

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

13

Justice.

14

in this court-martial.

15
16

MJ:

I'm qualified and certified under

I've not acted in any way that might tend to disqualify me

All right.

Thank you.

And the remaining parties are the

same as were present when the court last recessed?

17

TC[MAJ FEIN]:

18

MJ:

All right.

Yes, Your Honor.
Let us begin by going over everything that has

19

occurred since the last Article 39(a) session which was on the 7th

20

and 8th of November of 2012.

21

added Appellate Exhibit 379 which was the Prosecution's Request for

22

Leave until 8 December to Notify the Court of the Response to Defense

23

Original Classification Authority Interrogatories.

All right.

2769

I believe at that time we

That was dated on

06646

1

7th of November 2012 and I gave oral approval, then, on the 8th of

2

November 2012 to the government's request for a 5 December 2012

3

extension on the actual response.

4

understanding?

5

TC[MAJ FEIN]:

6

CDC[MR.COOMBS]:

7

MJ:

Is that the parties'

Yes, Your Honor.
Yes, Your Honor.

And the prosecution moved on the 25th of October for leave

8

until the 10th of December to provide a detailed plan for maintaining

9

appellate exhibits that has been marked as Appellate Exhibit ----

10
11

TC[MAJ FEIN]:

Your Honor, the Court's ruling was Appellate

Exhibit 362.

12

MJ:

All right.

13

TC[MAJ FEIN]:

14

MJ:

Okay.

And 359 was the prosecution's motion?
Yes, Your Honor.

On the 26th of October 2012, I granted that request.

15

The defense did not oppose.

16

respect to that ruling?

17

CDC[MR.COOMBS]:

18

TC[MAJ FEIN]:

19

MJ:

Anything further from either side with

No, Your Honor.
No, Your Honor.

On the 26th of October 2012, the government moved the

20

court, pursuant Military Rule of Evidence 505(g)(2), in a classified

21

filing to authorize redactions and deletions from evidence the

22

government made available to the defense and to issue an additional

23

protective order precluding the defense or its forensic experts from

2770

06647

1

accessing the redacted or deleted information.

2

motion was filed at Appellate Exhibit?

3
4

TC[MAJ FEIN]:

The government's

Your Honor, it's the classified Appellate Exhibit

368.

5

MJ:

Okay.

6

TC[MAJ FEIN]:

And, Your Honor, the unclassified and redacted

7

version was filed at -- hold on please, Your Honor -- Appellate

8

Exhibit 365.

9
10
11

MJ:

All right.

On the 8th of November, I issued a ruling with

respect to that motion and the ruling is:
On 26 October 2012, the government moved the Court,

12

pursuant to Military rule of Evidence 505(g)(2), in a classified

13

filing, to authorize redactions and deletions from evidence the

14

government has made available to the defense and to issue an

15

additional protective order precluding the defense or its forensic

16

experts from accessing the deleted or redacted information.

17

government posits that the redacted or deleted information is not

18

relevant, not favorable, not material to guilt or punishment and not

19

relevant and necessary for production under R.C.M. 703(f).

20

government further proffers that the redacted or deleted information

21

will not be used by the government during any portion of the trial.

22
23

The

The

The government intends to limit defense access to the
redacted or deleted information by a software program restricting

2771

06648

1

access by a method called "privileging."

2

the Court review the proposed redactions and deleted information

3

using the factors the defense has requested the Court to reconsider

4

in its previous M.R.E. 505(g) responses.

5

factors in arriving at this ruling.

6

The defense requests that

The Court considered those

At issue in this motion is data and metadata.

Earlier, on

7

8 November 2012, the Court issued the proposed protective order, the

8

defense and its forensic experts may review the information and

9

metadata under the parameters of the protective order.

After the

10

review, the defense may re-raise any issues concerning the metadata

11

with the Court.

12

information, the Court has examined all of the original and redacted

13

or deleted information and has held two in camera ex parte Article

14

39(a) sessions, on 8 November 2012, with the government in an

15

appropriate place for classified information proceedings to address

16

the concerns of the court with respect to that data.

17

were recorded.

18

With respect to the redacted and the deleted

The proceedings

In accordance with the guidance issued by the court at the

19

second in camera ex parte Article 39(a) session, the Court finds that

20

the redacted and deleted information is not relevant to this case.

21

The Court further finds that disclosure of this redacted, irrelevant

22

-- classified, irrelevant information risks exposing intelligence

23

activities, sources and methods, and could reasonably cause damage to

2772

06649

1

the national security of the United States.

No information or

2

evidence not disclosed to the defense by the government will be used

3

by the government or any government witness during any portion of the

4

trial.

This includes rebuttal and Rule of Completeness.

5

The redacted and deleted substitution meets the

6

government's discovery obligations under Brady and R.C.M. 701(a)(6)

7

to disclose evidence tending to reasonably negate the guilt of the

8

accused to an offense charged, reduce the degree of guilty to an

9

offense charged, or reduce the punishment.

The irrelevant classified

10

information that was redacted or deleted and not disclosed to the

11

defense is not material to the preparation of the defense or relevant

12

and necessary for production under R.C.M. 703(f).

13

is sufficient for the defense to adequately prepare for trial and

14

represents an appropriate balance between the right of the defense to

15

discovery and the protection of specific national security

16

information.

17

Ruling:

The substitution

The classified motion by the government to

18

voluntarily provide limited disclosure under M.R.E. 505(g)(2) is

19

granted in accordance with the guidance of the Court.

20

And subsequent to the 8th of November 2012, I believe the

21

government did send the Court a classified protective order, is that

22

correct?

2773

06650

1

TC[MAJ FEIN]:

Your Honor, actually, what has been marked as

2

Appellate Exhibit 381, is a classified appellate exhibit.

3

on 8 November, signed a classified protective order and then on 14 --

4

because we were up here at Fort Meade -- on 14 November 2012, the

5

government sent a digital copy of that protective order to the

6

defense security experts via SIPRNET to the Court and the court

7

security officer.

8
9

MJ:

All right.

Thank you.

The Court,

Anything further on this issue from

either side?

10

CDC[MR.COOMBS]:

11

TC[MAJ FEIN]:

12

MJ:

All right.

No, Your Honor.
No, Your Honor.
On the 19th of November 2012, the government

13

asked the Court to sign an additional court order for a mental health

14

professional to a Dr. Jonathan Richardson.

15

that motion and the Court signed that order on the 19th of November

16

2012, directing Dr. Richardson to respond to all questions asked by

17

the prosecution in United States v. PFC Manning and regarding the

18

behavior, mental health, and suicidal ideations of PFC Manning that

19

he observed or treated from 1 June 2010 to 29 July 2010, and the

20

Court's order also extends to responding to all questions asked by

21

the defense.

22

was marked as Appellate Exhibit 405.

The defense joined in

Compliance no later than 21 November 2012.

2774

And that

06651

1

TC[MAJ FEIN]:

And, ma'am, just to correct one issue, Your

2

Honor, the defense actually motioned the Court for that protective

3

order and the government did not object.

4

MJ:

Okay.

Anything further on that?

5

TC[MAJ FEIN]:

6

CDC[MR.COOMBS]:

7

MJ:

No, Your Honor.
No, Your Honor.

Also on the 19th of December, the -- excuse me, on the 14th

8

of November 2012, the government requested leave of the Court until

9

28 November 2012, to file a government motion to compel should they

10

desire to do that.

11

November 2012, as follows:

12

The Court ruled on that motion on the 19th of

On 15 November 2012, the government requested leave of the

13

court until 28 November 2012, to file a motion to compel discovery

14

and to extend the deadline for the defense response to 5 December

15

2012.

16

reply.

17

motion to compel, 16 November 2012; defense response, 30 November

18

2012; and government reply, 5 December 2012.

19

oppose.

20
21
22
23

If the motion is granted, the government will not file a
The deadlines on the current court calendar are:

Government

The defense does not

The government request for leave of the Court until 28
November 2012 with response due on 5 December 2012 is granted.
And the government's motion and this ruling are marked as
Appellate Exhibit?

2775

06652

1

TC[MAJ FEIN]:

Your Honor, the government's motion is marked as

2

Appellate Exhibit 388.

3

Exhibit 398.

4

MJ:

Thank you.

5

TC[MAJ FEIN]:

The Court's ruling is marked as Appellate

And on 9 -- excuse me, on 16 November ---Your Honor, I'm sorry to interrupt.

6

incorrect.

7

ruling is actually marked as Appellate Exhibit 389.

8

previously, 398; it's 389.

9

MJ:

I was

The Court's ruling on the previous -- for the previous

All right.

Thank you.

And thank you for helping me keep

10

track of these.

11

government requested leave of the court until 19 November 2012, to

12

file its response to defense interrogatories.

13

that and requested the Court to consider the filing as untimely for

14

Article 10 purposes.

15

redacted motion -- excuse me, the prosecution motion is?

16
17

All right.

I said,

TC[MAJ FEIN]:

On the 16th of November 2012, the

The defense opposed

The prosecution response -- or the prosecution

Your Honor, it's marked as Appellate Exhibit 399

-- is the government's request.

18

MJ:

Okay.

19

TC[MAJ FEIN]:

The defense's response is marked as Appellate

20

Exhibit 396 and the prosecution's reply to the defense's response,

21

the unclassified version, is marked as Appellate Exhibit 402 --

22

excuse me, that's the classified version and the unclassified,

23

redacted version is marked as Appellate Exhibit 401.

2776

06653

1

MJ:

2

CDC[MR.COOMBS]:

3
4
5

Okay.

Mr. Coombs?
Our response is actually Appellate Exhibit 400,

Your Honor.
MJ:

All right.

Are the remaining exhibits accurately

reflected?

6

CDC[MR.COOMBS]:

7

TC[MAJ FEIN]:

8

MJ:

9

That is correct, Your Honor.
Yes, ma'am.

All right.

On the 20th of November 2012, the Court ruled

as follows:

10

On 16 November 2012, at 2345, the government filed --

11

requested leave of the Court until 19 November 2012 to file its

12

response to defense interrogatories.

13

the Court to consider the filing as an untimely filing for Article 10

14

purposes.

15

reply and an unredacted -- and a redacted, unclassified reply.

16

government also filed the response to defense interrogatories on 19

17

November 2012.

18

Defense opposed and requested

On 19 November 2012, the government filed a classified
The

The Court has considered all the filing by the parties.

19

The government request for leave until -- of court until 19 November

20

2012, is granted.

21

the government's request for leave of the Court for the Article 10

22

speedy trial motion.

23

The Court will consider the timing and reasons for

And my ruling is at Appellate Exhibit?

2777

06654

1

TC[MAJ FEIN]:

2

MJ:

All right.

409, Your Honor.
Thank you.

This morning -- back in August, the

3

-- we litigated -- or the parties proposed draft instructions for me

4

to consider with respect to all of the charges and their

5

specifications.

6

proposed draft instructions and those have also been added to the

7

record as an appellate exhibit.

Today, this morning, I gave both sides a copy of my

8

CDC[MR.COOMBS]:

9

TC[MAJ FEIN]:

10
11

MJ:

Do both sides have a copy?

Yes, Your Honor.

All right.

Yes, Your Honor.
And it is at Appellate Exhibit -- that would be

410?

12

CDC[MR.COOMBS]:

13

MJ:

That is correct, Your Honor.

There have also been several new motions that have been

14

filed by the parties and some responses with respect to the plea

15

litigation.

16

defense had entered into proposed -- or had proposed pleas by

17

exceptions and substitutions to the Court and the Court had issued an

18

order asking the government to -- the government's position on

19

whether those were lesser included offenses or whether they were

20

different offenses or irregular pleas requiring convening authority

21

concurrence to be, in essence, referred charges.

22

asked the government to come back with the convening authority's

23

position on whether the convening authority supported the conditional

If the parties will recall, at the last session, the

2778

Also, the Court had

06655

1

plea aspect of the speedy trial issue of whether a plea would waive a

2

speedy trial under R.C.M. 707.

3

those motions are?

4

TC[MAJ FEIN]:

And the government's response to

Your Honor, what's been marked as Appellate

5

Exhibit 392, titled, "The Conditional Plea Notice to Court," the

6

government filed on 16 November, that the United States is in the

7

position, not -- though with the concurrence of the defense, not to

8

support a conditional plea at this time.

9

filing is the government's proposed way the Court can go about taking

10

the plea and that would just be to take the plea after the completion

11

of the speedy trial litigation and that would allow Private First

12

Class Manning full rights under R.C.M. 707 which is the speedy trial

13

rule.

14

MJ:

All right.

15

TC[MAJ FEIN]:

And, included in the notice

And that was at Appellate Exhibit?
Your Honor, the government's filing was at

16

Appellate Exhibit 392 and then the defense's response, Your Honor,

17

was at -- or is at Appellate Exhibit 393.

18
19
20

MJ:

All right.

And, Mr. Coombs, would you like to set, for the

record, the defense response?
CDC[MR.COOMBS]:

Yes, Your Honor.

The defense's position, which

21

is set out at Appellate Exhibit 393 is just simply that, due to the

22

fact that the R.C.M. 707 issues may not be preserved in the event of

23

a plea, that we would want to push the plea at a later date -- period

2779

06656

1

of time, after the Court, actually, has made a ruling on the speedy

2

trial motion.

3

MJ:

All right.

Thank you.

All right.

Just briefly, the

4

parties and I held an R.C.M. 802 conference before we came on today.

5

What that is, is where I discuss logistics and scheduling issues with

6

the parties before we come on the record and proceed.

7

one of the issues that we discussed was the timing of how all of this

8

would work.

9

proposed pleas are lesser included offenses that the Court can accept

10

and allow the accused to plead to or whether they are irregular pleas

11

or pleas requiring the convening authorities to concur for them to be

12

referred offenses.

13

well as the maximum punishments.

14

maximum punishments so we'll be settling all of that during this

15

Article 39(a) session.

16

And this is

The plea litigation, itself, that is whether the

That will be litigated during this session as
The sides differed on some of the

Now, with respect to the speedy trial issues, a plea of

17

guilty waives speedy trial under Rule for Court-Martial 707 for the

18

offenses to which the accused has pled guilty.

19

trial motions that are litigated prior to plea are not waived by a

20

plea.

21

trial motion is litigated, the 707 -- R.C.M. 707 piece of it will be

22

waived, so the court will entertain a request by the parties to issue

23

a speedy trial ruling before accepting a plea by the accused, should

Article 10 speedy

The defense -- if the Court accepts the plea before the speedy

2780

06657

1

the Court rule that the accused can enter those pleas, if they’re

2

regular pleas or lesser included offenses authorizing the accused to

3

so enter the plea.

4

So, at this point, it looks like -- this isn’t etched in

5

stone yet because we have to meet to discuss other logistics of the

6

trial, but if the trial calendar remains as is, then, the speedy

7

trial litigation would be finalized the week of the 10th through the

8

14th of December with the parties making their final arguments with

9

respect to the speedy trial; the court would take that issue under

10

advisement and the goal would be to have the speedy trial ruling

11

resolved by the follow-on session of the 14th through the 18th of

12

January.

13

rights were not violated, then the plea litigation -- the entry of

14

pleas would follow at that time.

15

of what we discussed?

And, should the Court rule that the accused’s speedy trial

16

CDC[MR.COOMBS]:

17

TC[MAJ FEIN]:

18

MJ:

Okay.

Is that the parties’ understanding

That is correct, Your Honor.
Yes, Your Honor.

And that assumes no additional litigation regarding

19

the speedy trial motion or any motions to compel or any of that are

20

added to the calendar because, if that occurs, then that may cause

21

for -- cause some delay to the proceedings.

22

CDC[MR.COOMBS]:

23

TC[MAJ FEIN]:

Correct, Your Honor.
Yes, Your Honor.

2781

06658

1
2
3

MJ:

In addition to that, the government has filed a motion that

the Court reconsider one of its findings in Appellate Exhibit ---TC[MAJ FEIN]:

Your Honor, the motion, itself, is marked as

4

Appellate Exhibit 395 and it's asking the Court to reconsider a

5

single line in a finding that's -- it was a finding in Appellate

6

Exhibit 58.

7

MJ:

All right.

And that line was that the prosecution

8

"disputed that it was obligated to disclose classified Brady

9

information that was material to punishment only" on the basis that

10

this finding was not supported by the record?

11

TC[MAJ FEIN]:

12

MJ:

13

CDC[MR.COOMBS]:

Yes, Your Honor.

The defense filed a response to that?
Yes, Your Honor.

One moment, Your Honor.

14

Thank you.

15

position was that the government's request under R.C.M. 905(f) was

16

untimely as well as if the Court does, in fact, grant the request for

17

reconsideration, it would obviously have a response to the

18

government's assertion.

19

MJ:

Yes, we did, Your Honor, at Appellate Exhibit 396.

Our

So, in addition to the plea litigation on the propriety of

20

the pleas, the Court will decide during this session whether it will

21

reconsider this ruling.

22

line of the ruling, the Court will build into the trial calendar an

If the Court does decide to reconsider that

2782

06659

1

opportunity for the parties to come back with a substantive response

2

to the reconsideration.

3

CDC[MR.COOMBS]:

4

MJ:

Understood, Your Honor.

And the plan for these issues is going to be -- with

5

respect to the plea, at some point during the witness presentation

6

for the Article 13, maybe at the end of one of the days, we will go

7

forward and litigate that motion so the parties have the Court's

8

ruling with respect to the plea issues well in advance of the close

9

of this session in case there are any addition discussions or changes

10

to the trial calendar that need to take place.

11

decision the Court will make during this session is whether to

12

reconsider this ruling or not.

13

TC[MAJ FEIN]:

The -- another

Your Honor, also, another correction -- it's --

14

the motion to reconsider was a finding in Appellate Exhibit 68 not

15

58.

16

MJ:

Thank you.

And the defense has filed a motion to compel

17

witnesses and I believe the government also responded to the defense

18

witness list on the 16th of November and the motion to compel was on

19

the 23rd of November 2012.

20

CDC[MR.COOMBS]:

21
22
23

The motion to compel, Your Honor, is Appellate

Exhibit 408.
TC[MAJ FEIN]:

And, Your Honor, the -- and if we may, also,

what's been marked as Appellate Exhibit 387 was the defense -- on 12

2783

06660

1

November 2012, the defense filed a witness list for sentencing only.

2

Then, the government -- and, on 16 November, what's been marked as

3

Appellate Exhibit 403, is where the government responded to the

4

defense's original witness list and then they've done a defense

5

motion to compel.

6

motion to compel.

7
8

MJ:
403.

9

Okay.

The government has not filed a response to the

So the government's response is at Appellate Exhibit

What's the defense's original witness list?
CDC[MR.COOMBS]:

It would have been Appellate Exhibit 344, Your

10

Honor, and then, as the government said, we also filed Appellate

11

Exhibit 387 which was in the event of a sentencing-only case.

12

the government filed its response -- or its denial of certain

13

witnesses and that prompted the motion to compel at Appellate Exhibit

14

408.

15

MJ:

16

CDC[MR.COOMBS]:

17

So 377 was the original sentencing-only witness ----

MJ:

19

CDC[MR.COOMBS]:

20

MJ:

Yes.

387?

Okay.

Was 387.
Good.

And, I'm sorry, one more time, the

merits and sentencing ----

22
23

No, Your Honor, 340 -- I'm sorry, sentencing-

only?

18

21

Then

CDC[MR.COOMBS]:

Yes, Your Honor, that's at Appellate Exhibit

344.

2784

06661

1

MJ:

And that was filed on the 15th of October?

2

CDC[MR.COOMBS]:

3

MJ:

That is correct, Your Honor.

And the government hasn't filed a reply, yet, to the

4

Defense Motion to Compel Production of Witnesses.

5

be litigated at the next session on the 6th -- or the 10th through

6

the 14th of December.

7

CDC[MR.COOMBS]:

8

TC[MAJ FEIN]:

9

MJ:

10
11
12
13

That motion will

Is that the parties' understanding?
Yes, Your Honor.

Yes, Your Honor.

In addition, the government has filed a motion in limine to

exclude motive evidence that was filed on the 16th of November 2012.
TC[MAJ FEIN]:

Yes, Your Honor, that's been marked as Appellate

Exhibit 394.
MJ:

All right.

And responses to motions that were filed on the

14

16th of November 2012, are due on the 30th of November 2012m and all

15

of these motions will be litigated at the next session which is the

16

10th through the 14th of December so the defense has not yet filed a

17

response to that motion.

18

judicial notice on the 16th of November 2012 as well.

19

government's motion is?

20

TC[MAJ FEIN]:

21
22
23

Both parties have filed further motions for
The

Your Honor, the Government Motion for Judicial

Notice is what's been marked as Appellate Exhibit 398.
MJ:

Now, there are numerous enclosures to that motion.

those included in the record on a CD?

2785

Are

06662

1

TC[MAJ FEIN]:

2

MJ:

3

TC[MAJ FEIN]:

4

MJ:

5

Please ensure they are.

paper in there.
TC[MAJ FEIN]:

7

MJ:

9
10

And if they're hard copy, we will do a CD.

We can do hard copy too, you're just going to have a lot of

6

8

We'll verify after this, Your Honor.

Yes, ma'am.

And the defense also filed motions for judicial notice?

They filed two?
ADC[CPT TOOMAN]:

MJ:

12

ADC[CPT TOOMAN]:

13

MJ:

14

ADC[CPT TOOMAN]:

15

MJ:

16

ADC[CPT TOOMAN]:

18

The first is at Appellate

Exhibit 390 and the second is at 397.

11

17

Yes, Your Honor.

And which one is the first?

Is that the first ----

The first one is the House Resolution 553.

And that was Appellate Exhibit -- I'm sorry?

390?

390, ma'am.

Okay.
And then 397 is judicial notice of the damage

assessments.
MJ:

All right.

And, again, those responses -- the responses to

19

those motions are due on the 30th and those will be litigated at the

20

next session.

21

prosecution did respond to the defense interrogatories for speedy

22

trial.

23

classified exhibit is at Appellate Exhibit 407.

And I also note at Appellate Exhibits 406 and 407, the

The redacted version is at Appellate Exhibit 406 and the

2786

And those were filed

06663

1

on the 19th of November 2012.

2

issues that the Court has failed to address?

3

CDC[MR.COOMBS]:

Are there any other housekeeping

One from the defense, Your Honor, Appellate

4

Exhibit 404.

5

the potential filing and motion to compel based upon the responses to

6

the interrogatories, both by the government and the OCAs.

This was just simply notice provided to the Court of

7

MJ:

8

TC[MAJ FEIN]:

9

Okay.

Thank you.
Your Honor, one new appellate exhibit, that's

Appellate Exhibit 391 that's the government's response to the Court's

10

clarification of the lesser included offenses that's being litigated

11

this week; again, Appellate Exhibit 391.

12

appellate exhibit, on the 16th of November 2012, the government did

13

file a corrected copy number two to the government's response to

14

speedy trial what is originally, and still, marked as Appellate

15

Exhibit 339 and that included adding Enclosure 81 to that -- the

16

original exhibit.

17

MJ:

All right.

And, although not a new

And one final thing that was discussed during

18

the R.C.M. 802 conference and also via some email traffic between

19

myself and the parties, the defense had asked me if -- the Court has

20

advised at the last session -- the defense had moved to compel 1200

21

emails back and forth that were maintained at Quantico for purposes

22

of the Article 13 motion.

23

camera.

The Court did review all of those in

The government had voluntarily released 600 of them and the

2787

06664

1

Court was doing an in camera review of the other 700, but the Court

2

looked at all of -- the Court has reviewed all of the emails that

3

were maintained by Quantico, to include the 84 originally given from

4

the government to the defense before any of the litigation began.

5

The defense asked if the Court would consider those emails as part of

6

the Article 13 motion in addition to just doing the in camera review.

7

The government didn't object.

The Court will do that.

8

The Court did go back to both parties, by email, with

9

respect to Appellate -- the -- Enclosure 81 to the speedy trial

10

motion which is, basically, a box of emails between the government

11

and defense as well as those 1200.

12

that the parties would like me to consider.

13

not me, to find relevance, so just point out to me what, if any, of

14

these documents are relevant.

15

searching through boxes of documents to find something that may be

16

relevant and say, "Aha, there it is."

17

CDC[MR.COOMBS]:

I will consider any documentation
It's up to the parties,

What I'm not going to do is go

Yes, Your Honor, and the defense's request on

18

this was not for the Court to go back and look at all 1274 emails,

19

but, instead, based upon what we elicit through the witnesses this

20

week, to have the general understanding, based upon your review, of

21

how involved all the individuals were and how many emails were going

22

back and forth by different members at different ranks and the

23

issues, I guess, that they were discussing.

2788

06665

1

MJ:

Okay.

And I'll do that.

2

TC[MAJ FEIN]:

Yes?

Your Honor, similarly, for speedy trial, for

3

Enclosure 81, the intent -- and the government will highlight during

4

argument -- is the amount of communication and request the defense

5

submitted over the time period that they allege is -- that was

6

apparent inactivity to show and highlight for the Court which of the

7

emails in that grouping.

8

for time period.

9

MJ:

Okay.

So, it will probably be done in groupings

Thank you.

And just to -- again, what would be

10

incredibly helpful for the Court in those kinds of things is I

11

understand you may be doing this in oral argument?

12

there's some kind of, you know, an index or something that can say,

13

"Okay, look at emails 1 through 15.

14

for such and such or look at emails in Volume 4.

15

this person was very involved or not involved by looking at emails 1,

16

7, 10, 15."

17

CDC[MR.COOMBS]:

I mean, if

This addresses defense request
You can find that

Yeah, the -- Your Honor, the defense will,

18

through the witnesses, provide you with the emails that we believe

19

are relevant so you'll have those by Bates number.

20

TC[MAJ FEIN]:

And, ma'am, the government will provide the Court

21

and, of course, the defense a key ahead of argument so it's not first

22

presented on the screen or in oral argument.

2789

06666

1

MJ:

Okay.

Thank you.

Any additional housekeeping measures

2

that we need to address?

3

TC[MAJ FEIN]:

4

CDC[MR.COOMBS]:

No, Your Honor.

5

MJ:

The bulk of the proceedings this week -- and we

All right.

No, Your Honor.

6

are scheduled to go through Sunday and if we need to go longer, we

7

will -- are going to be the Article 13 motion from the defense and I

8

believe the parties have asked for a recess before we begin on those

9

motions?

10

TC[MAJ FEIN]:

Yes, Your Honor, if we may recess until 1500 and

11

then we'll begin with the first witness and probably admitting

12

appellate record evidence for this motion.

13

MJ:

All right.

14

CDC[MR.COOMBS]:

No, Your Honor.

15

MJ:

Court is in recess until 1500.

All right.

Any objection to a recess until 1500?

16

[The Article 39(a) session recessed at 1353, 27 November 2012.]

17

[Article 39(a) session was called to order at 1504, 27 November

18

2012.]

19

MJ:

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

Let the

20

record reflect all parties present when the court last recessed are

21

again present in court.

22

CDC[MR.COOMBS]:

Are we ready to proceed?

Yes, Your Honor.

2790

06667

1

TC[MAJ FEIN]:

Yes, Your Honor.

And, Your Honor, before the

2

first witness is called, just to put on the record, the seven pieces

3

of physical evidence, for the purposes of this motion hearing, both

4

from the defense and prosecution, I'll describe each one quickly for

5

the record and the photographs have been marked by the court

6

reporter.

7

So, first, Your Honor, Appellate Exhibit 411, which is a

8

suicide blanket, it's blue in color, approximately 4 by 6 feet.

9

Honor, Appellate Exhibit 412 is a standard confinement pillow, silver

10

in color.

11

cream in color.

12

color, with a built-in pillow.

13

smock, green in color.

14

sheet noose, peach in color.

15

Exhibit 417 is a bag that has two green, metal objects and one

16

sandbag-tied noose.

17

items are green.

18
19
20

MJ:

Your

Appellate Exhibit 413 is a standard confinement mattress,
Appellate Exhibit 414 is a suicide mattress, blue in

All right.

Appellate Exhibit 415, a suicide

Your Honor, Appellate Exhibit 416 is a bed
And, finally, Your Honor, Appellate

And both of those items -- or all three of those

Any objection to photographs substituted for

the record?
CDC[MR.COOMBS]:

No objection to that, Your Honor, although the

21

defense would reserve, for the exhibits besides 416 and 417, the

22

ability to indicate or give evidence that they're not representative

23

of what PFC Manning used when he was at Quantico.

2791

06668

1
2

MJ:

So you're going to do that through testimony or through ---

-

3

CDC[MR.COOMBS]:

4

MJ:

5

CDC[MR.COOMBS]:

Okay.

Through testimony, Your Honor.

All right.

Are we ready to proceed?

Yes, Your Honor.

The defense would call

6

Colonel Daniel Choike to the stand.

7

COLONEL (Retired) DANIEL CHOIKE, U.S. Army, was called as a witness

8

for the defense, was sworn, and testified as follows:

9
10
11
12

DIRECT EXAMINATION
Questions by the trial counsel [MAJ FEIN]:
Q.

And, sir, for the record, you are Colonel (Retired) Choike,

of Stafford, Virginia?

13

A.

14

TC[MAJ FEIN]:

15
16
17

Yes.
Thank you, sir.

Questions by the civilian defense counsel [Mr. COOMBS]:
Q.

Colonel Choike, I know that you are retired, but do you

mind if I refer to you as Colonel Choike?

18

A.

I do not.

19

Q.

Could you tell the Court what you do now in your position?

20

A.

Recently retired, I have been hired in as Vice President

21

for Critical Infrastructure Development at Technology Associates

22

which is an IT firm that operates out of Stafford, Virginia.

2792

06669

1

Q.

All right, so I want to turn to why you are here today.

2

So, I am going to ask you a few questions.

If at any time you do not

3

understand my question, just ask me to repeat it and I will be happy

4

to do so.

5

comfort break at any time, just let me know and we will be happy to

6

accommodate that, okay?

And as I mentioned to you on the break, if you need a

7

A.

Okay.

8

Q.

Now, PFC Manning initially arrived at Quantico on 29 July

10

A.

Yes.

11

Q.

And, you knew that PFC Manning was coming to Quantico about

9

12

2010?

48 hours prior to his arrival?

13

A.

Yes.

14

Q.

And you found out that information through Colonel Oltman?

15

A.

Yes.

16

Q.

And, you were aware that Oltman found out that information

17

through CW5 Galaviz?

18

A.

Yes.

19

Q.

And, CW5 Galaviz was up at Plans -- PPO, plans ----

20

A.

Plans, Policies and Operations.

21

Q.

---- Policy and Operations:

22

A.

Yes.

2793

Corrections, is that correct?

06670

1
2

Q.

Now, when you got notified that PFC Manning was coming to

Quantico, you held a staff meeting?

3

A.

Correct.

4

Q.

And this meeting was held on either the 27th or 28th of

A.

It was approximately either the day before or the day that

5
6
7

July?

we received him.

8

Q.

All right, and that would be the 27th, 28 July?

9

A.

Yes.

10

Q.

And you spoke with Colonel Mortenson, the Chief of Staff

11

for Lieutenant General Flynn to let him know about the meeting that

12

was happening?

13

A.

That is correct.

14

Q.

You also asked Colonel Mortenson to let General Flynn know

15

that you were receiving PFC Manning?

16

A.

Yes.

17

Q.

And, you wanted to notify Lieutenant General Flynn that you

18

were pulling together all of the staff to ensure that things were

19

being done properly in order to receive PFC Manning?

20

A.

Yes.

21

Q.

And this meeting was held in your conference room?

22

A.

Yes.

23

Q.

And, Colonel Oltman was present for the meeting?

2794

06671

1

A.

Yes.

2

Q.

Lieutenant Colonel Greer, your Staff Judge Advocate was

3

present at the meeting?

4

A.

Yes.

5

Q.

And, you believe that Chief Averhart and some of the Brig

6
7

staff was also present for the meeting?
A.

No, Chief Averhart, I don't believe was.

And, I am not

8

really certain, in terms of Brig staff that were there, I do not

9

recall.

10

Q.

So, this was a meeting to coordinate everybody to properly

11

receive PFC Manning and you do not believe that Chief Averhart and

12

the Brig staff was present?

13

A.

This was not a meeting for the reception of PFC Manning,

14

this had to do with the fact that we were receiving somebody that was

15

not within the Marine Corps chain of command, was in the Army, and

16

that there was a different General Convening Authority, a different

17

command that owned him, different legal and medical circumstances, so

18

it was that coordination to include the public affairs coordination

19

that was done, knowing that the seriousness of the charges that were

20

faced against him.

21

him, all the other things that would affect the installation.

22
23

Q.

And, it was more or less for once we received

So your memory today is that Chief Averhart was not

present?

2795

06672

1

A.

Chief Averhart?

2

Q.

Correct.

3

A.

I thought you said Galaviz, I am sorry.

4

Q.

Chief Averhart?

5

A.

Yes, I believe he was.

6

Q.

Okay.

So, I will go back just to make sure for the record

7

that at this meeting, Chief Averhart and members of his staff were

8

present?

9

A.

Yes, I believe so.

10

Q.

Now, you talked about you were aware of the nature of the

11

charges that PFC Manning was facing, correct?

12

A.

Not in detail.

13

Q.

You were aware that they were serious charges?

14

A.

Yes.

15

Q.

And, you were told about the nature of the charges?

16

A.

Yes.

17

Q.

And, you were told of PFC Manning was considered a suicide

19

A.

Yes, according to the documentation that was received.

20

Q.

And, your staff advised you that there was substantial

18

21
22

risk?

media coverage concerning PFC Manning?
A.

Yes,

2796

06673

1

Q.

And, because you were briefed that there was substantial

2

media coverage, then obviously your Public Affairs Officer was

3

present as well?

4

A.

Yes.

5

Q.

And, that was Colonel T.V. Johnson?

6

A.

It was at the time, but I do not recall his face very

7

specifically being there, it would have been another representative

8

from the Public Affairs Office.

9

Q.

Like Lieutenant Villiard?

10

A.

Either Lieutenant Villiard or, I am trying to think of the

11

name of the civilian -- Chuck Jenks.

12

Q.

Now, it was clear at this meeting this was a high- profile

14

A.

Yes.

15

Q.

And, by having someone facing the charges that Manning was

13

case?

16

facing and by having somebody with that amount of media attention,

17

that gave you concerns specifically as an installation commander,

18

what that might mean as far as attention to the installation?

19

A.

That is correct.

20

Q.

Attention from the public?

21

A.

Attention -- I am not sure what you are ----

22

Q.

Attention from the public to the installation as well?

23

A.

Attention from the public, yes.

2797

06674

1

Q.

And you were concerned about this because your primary

2

mission as installation the commander is for the base safety and

3

security, correct?

4

A.

That is correct.

5

Q.

Now, Lieutenant General Flynn, we mentioned his name, but

6

he is the CG for MCCDEC, is that correct?

7

A.

That is correct, he has several titles.

8

Q.

And, one of those titles would be, maybe not a title, but

9

he is your direct supervisor?

10

A.

That is correct.

11

Q.

He is, in the Marine Corps parlance, he is your reporting

12

senior and your reviewing officer?

13

A.

That is correct.

14

Q.

In the Marine Corps, a reporting senior is somebody that

15

immediately reviews an officer, is that correct?

16

A.

That is correct.

17

Q.

And, a reviewing officer is the senior rater of the officer

18

and has oversight of the reporting senior?

19

A.

Yes.

20

Q.

And in this instance, unlike maybe the Army, Colonel --

21
22

General Flynn represented both of those for you?
A.

That is correct.

2798

06675

1

Q.

2

your career?

3

A.

Yes.

4

Q.

So, if he gave you a negative review that would have

5

impacted you?

6

A.

7
8
9

So, obviously, he was somebody who could have an impact on

Getting close to 30 years and retirement, there is very

little impact.
Q.

Well, and I see you are in a suit now, so -- but at the

time, obviously, he would be somebody who could impact?

10

A.

Yes.

11

Q.

Now, you received an email from Lieutenant General Flynn on

12

9 August regarding PFC Manning, correct?

13

A.

Yes.

14

Q.

And, Lieutenant General Flynn also addressed this email to

15

Colonel Oltman?

16

A.

Yes.

17

Q.

And Colonel Oltman is the Security Battalion Commander?

18

A.

That's correct.

19

Q.

And, as the Security Battalion Commander, he is the direct

20

supervisor for Chief Averhart and later, Chief Barnes?

21

A.

Yes.

22

Q.

And, the email was also addressed to Colonel Christopher

23

Miner?

2799

06676

1

A.

Yes.

2

Q.

And Christopher Miner is the SJA for Lieutenant General

3

Flynn?

4

A.

That is correct.

5

Q.

And finally, the email also had Sergeant Major Dennis Reed,

6

is that correct?

7

A.

Yes.

8

Q.

And Sergeant Major Reed was Lieutenant General Flynn's

9

Sergeant Major?

10

A.

Correct.

11

Q.

Lieutenant General Flynn sent this email to you and when he

12

sent that you, he marked it as high importance, do you recall that?

13

A.

I don't recall that.

14

CDC[MR. COOMBS]:

Could I have this marked as Appellate

15

Exhibit 418a?

16

[The court reporter marked Appellate Exhibit 418a.].

17

CDC[MR. COOMBS]:

Ma'am, what I am going to do for any email

18

is I will mark this as 418a, any additional email will just be still

19

under 418b, c, d.

20

MJ:

21

CDC[MR. COOMBS]:

22

MJ:

23

Okay.
And I will provide a copy for the Court.

That is very helpful, thank you.
Major Fein?

2800

06677

1
2

TC[MAJ FEIN]:

Yes, ma'am.

before it is handed to the witness.

3

CDC[MR. COOMBS]:

4

MJ:

5

CDC[MR. COOMBS]:

6

If the government can see a copy

I will give you the Bates number.

Let the government see a copy, please.
Sure.

The Bates number is 449894.

[The government reviewed Appellate Exhibit 418a.].

7

Q.

Colonel Choike, what I am going to do -- I am handing you

8

what has been marked as -- what will be marked as Appellate Exhibit

9

418a.

We are going to ask a few questions about this, so I will have

10

it in front of you so that you do not have to rely upon your memory

11

on this, okay?

12

A.

Okay.

13

Q.

I have handed you what has been marked as Appellate Exhibit

14

418a.

Do you recognize that?

15

A.

Yes, I do.

16

Q.

And, how did Lieutenant General Flynn mark his email to

18

A.

It says, “Importance:

19

Q.

Okay.

17

you?

So, he sent you this email, and obviously if it

20

said, “Importance:

21

correct?

22
23

A.
reading.

High”.

High”, he wanted you to look at the email,

Any email from General Flynn, I would be looking at and
To be honest with you, the importance on emails is

2801

06678

1

something that I rarely ever recognize as being a category of

2

importance or not.

3

correspondence directly to me meant that it was important.

The very fact that General Flynn had his

4

Q.

And that is because he is a three-star general?

5

A.

Yes?

6

Q.

Now, Lieutenant General Flynn starts off his email noting

7

that you have had one suicide of a high-risk prisoner in the Brig?

8

A.

Yes.

9

Q.

And, that suicide was one that happened earlier in 2010 in

10
11
12
13

the Quantico Brig, correct?
A.

Yes, I cannot remember the exact date or month, but I

believe it was during that timeframe.
Q.

And, Lieutenant General Flynn, in the email, tells you,

14

quote, “We need to make sure that we cover down on what we have

15

learned from that case."

Do you see that?

16

A.

Yes.

17

Q.

He wanted you to apply the lessons learned from the

18
19

previous suicide to PFC Manning's case, correct?
A.

Not directly.

I think the things that were learned was the

20

fact that he wanted us to ensure that medical staff, Brig staff, the

21

command staff, any other handlers, the chaplains, were all

22

communicating and working together.

2802

06679

1

Q.

We will get to that part, but he said, "We need to make

2

sure we cover down on what we have learned from that case."

You

3

would agree with me that he is instructing you, basically, to ensure

4

that the lessons learned from previous case applied to this case?

5

A.

Just in the manner of which I just spoke with you, no.

6

Q.

Okay.

7

A.

Nothing specifically, in terms of handling instructions

8
9
10

within the Brig.
Q.

I didn't ask that.

TC[MAJ FEIN]:

I just simply ----

Your Honor, objection, 15 minutes have gone by,

11

it has been leading questions the entire time.

12

answered the question.

13

to lead him to.

14

the response.

15

MJ:

16
17
18
19

Colonel Choike has

Mr. Coombs does not like the answer is trying

Just ask the open-ended questions and you will get

I am going to give you a little leeway but if he does not

agree with you, he does not agree with you.
CDC[MR. COOMBS]:

I’m sorry, Your Honor; first, I did not

understand the government's objection.
MJ:

Well initially, I think it is the objection is that you are

20

asking a leading question.

21

CDC[MR. COOMBS]:

Correct.

2803

06680

1

TC[MAJ FEIN]:

That is the first objection.

The second is, Your

2

Honor, he asked it, and it was answered the defense keeps asking the

3

same question.

4
5

CDC[MR. COOMBS]:
both, Your Honor.

6

MJ:

7

CDC[MR. COOMBS]:

Go ahead.

8

M.R.E. 611(c).

9

MJ:

10
11
12
13
14
15
16

So, I would like to, if I could, respond to

With regards to the leading, I would say

This is clearly a witness identified with ----

Alright, the leading I'm going to overrule.

CDC[MR. COOMBS]:

And with regards to the responses, I am

simply just clarifying the answer.
MJ:

Go ahead.

I believe ----

I will give you a little leeway with respect to that, but

the witness has answered -- can answer the way he wants to.
CDC[MR. COOMBS]:

Sure.

No, and I do not dispute that, Your

Honor.
Q.

I believe the witness was believing--and Colonel Choike,

17

correct me if I am wrong, I was not asking you whether or not he was

18

telling you to apply any particular handling restrictions to PFC

19

Manning based upon something previous, just the things that you

20

learned from the previous one apply any lessons learned to PFC

21

Manning, that is what I was asking?

22
23

A.

And my response is exactly those areas that he referred to

-- implied.

2804

06681

1

Q.

So, certain things you have learned from the previous one,

2

he wanted you to apply.

3

this case, correct?

4

A.

Yes.

5

Q.

Okay.

6

And, he said we were going to apply those to

So, in fact if you look down, he says in this email,

he actually attaches a New York Times article, do you see that?

7

A.

Yes.

8

Q.

And, based upon that article, he says, "This young man has

9

a great deal on his plate and it would be good if you impressed upon

10

all who come into contact with Private Manning the absolute necessity

11

of keeping a close watch on him".

Do you see that?

12

A.

Yes.

13

Q.

So, from that, Lieutenant General Flynn stated that his

14

direction included impressing upon the Brig, medical, chaplain and

15

transport personnel, correct?

16

A.

Yes.

17

Q.

He wanted you and Colonel Oltman to impress upon all of

18

those individuals the absolute necessity of keeping a close watch on

19

PFC Manning?

20

A.

Yes.

21

Q.

Lieutenant General Flynn thought PFC Manning was a suicide

A.

I can’t answer that.

22
23

risk?

2805

06682

1

Q.

Well, do you see where he says, "His life has completely

2

fallen apart which makes him a strong candidate, from my perspective,

3

to take his life."

4

A.

Those are his words, yes.

5

Q.

All right, so from your reading of those words, do you read

6

those to indicate that your three-star general believed he was a

7

suicide risk?

8

A.

9

At this particular point in time, based upon an article

that was read, I cannot answer that.

I do not know exactly what his

10

thoughts were and whether or not he termed him as a suicide risk,

11

which is a classification term in a Brig.

12

Q.

Okay, let me take it a different way.

I think you are

13

misunderstanding my question.

14

you, from your -- as a Colonel working for the three-star, his -- him

15

being your direct supervisor, did you interpret that phrase to

16

indicate that your general was concerned that PFC Manning was a

17

suicide risk?

18

A.

19

he says here.

20

Q.

21
22

From reading what the general wrote to

He was concerned that he could take his life, just the way

Okay.

Now, you sent an email back to Lieutenant General

Flynn on that very same day, do you see that?
A.

Yes.

2806

06683

1

Q.

And, you told General Flynn that, "Measures are in place

2

now to ensure all personnel, Brig staff, counselors, mental health

3

physicians, who come into contact with Private Manning know that if

4

he no longer meets the criteria to be detained, that he would be

5

immediately transferred to mental health ward in Walter Reed."

6

you see that?

7

A.

Yes.

8

Q.

You told Lieutenant General Flynn that you just got off the

Do

9

phone with the commanding officer of the Naval Health Clinic, that

10

was Captain Mary Neill, and you directed that she provide you with

11

weekly updates on Private Manning?

12

A.

Yes.

13

Q.

You also told Lieutenant General Flynn that you just got

14

off the phone with Colonel Oltman, and he is of course the Security

15

Battalion Commander, and you directed him to provide you with weekly

16

updates of Private Manning?

17

A.

Yes.

18

Q.

You told General Flynn that you would forward a copy of the

19

weekly reports to him personally?

20

A.

Yes.

21

Q.

You told General Flynn that these updates would be separate

22
23

from the weekly base updates that you normally give him?
A.

Yes, but they were never sent.

2807

06684

1

Q.

We will get to the question, okay?

So, you told him that

2

you would send these updates separate from the weekly base updates

3

that you provide to him?

4

A.

Yes.

5

Q.

You CCed your Sergeant Major, Colonel Mortenson, Colonel

6

Miner, Captain Neill, Colonel Oltman and Colonel Kauzlarich on this

7

email, correct?

8

A.

That is correct.

9

Q.

And Colonel Kauzlarich was your Chief of Staff?

10

A.

Yes.

11

Q.

Captain Neill we have already covered.

12

know.

Colonel Oltman, we

Colonel Mortenson was, who?

13

A.

Chief of Staff for General Flynn.

14

Q.

All right, and you sent a -- I'm going to go ahead and

15

retrieve for 414a from you.

Now, you sent a second update to General

16

Flynn later that same day concerning PFC Manning, do you recall that?

17

A.

Yes.

18

Q.

You informed General Flynn that you would provide weekly

19

updates or updates of any status changes or concerns raised by the

20

Security Battalion, Brig staff or mental health physicians?

21

A.

Yes.

2808

06685

1

Q.

Let’s talk about the weekly updates that you would provide.

2

You started these weekly reports based upon, of course, General

3

Flynn's email to you, correct?

4

A.

Yes.

5

Q.

And Chief Averhart and subsequently Chief Barnes would put

6

together and file a weekly report up to Colonel Oltman, the Security

7

Battalion Commander?

8

A.

That is correct.

9

Q.

And Colonel Oltman then after considering that, concurring,

10

would then forward that weekly update to you?

11

A.

That's correct.

12

Q.

And then you would consider that weekly update and forward

13

it directly to Lieutenant General Flynn?

14

A.

I did not forward them to him.

15

Q.

I am sorry, your testimony is that you never forwarded

16
17

these weekly updates to Lieutenant General Flynn?
A.

That's correct.

In the last email that you are talking

18

about right now ended in a phone call because there was

19

correspondence going back and forth between General Flynn and myself.

20

Q.

We will talk about that a moment, but my question was, your

21

answer, under oath now, is you never forwarded these weekly reports

22

to General Flynn?

23

A.

That is correct.

2809

06686

1
2

Q.

did forward these weekly updates to Lieutenant General Flynn?

3
4

Do you recall our conversation where you told me that you

A.

Yes, and also recall after -- we were part-way through a

conversation I said ----

5

Q.

Colonel Choike, please listen to my question ----

6

MJ:

He is trying to answer the question, I will let him do

7

that, go ahead.

8

CDC[MR. COOMBS]:

9

A.

Your Honor ----

Initially when you asked me that question, I said, "Yes",

10

because of what you were reading to me that I did not have privilege

11

to.

12

on the phone and he did not want details.

13

details or me quoting to him the SECNAV Instruction or the base--the

14

Brig SOP.

15

forward the weekly reports.

16

Then, I recalled the conversations that General Flynn and I had

Q.

He did not want the

And because he did not want those details, I did not

Your testimony is, he did not want these updates after the

17

August 9 email when you said, "Hey, I am going to send the stuff to",

18

you had a phone conversation with him and he said, "Hey Colonel

19

Choike, I do not want these updates"?

20

A.

His initial inquiry, I thought he was interested in the

21

details.

And then, exchange of emails back and forth on August 9

22

which ended in a phone call, I realized that he did not want details,

23

that he just wanted to ensure that his guidance was understood.

2810

And

06687

1

so, he did not need, at that point, I felt that he did not need or

2

want the weekly reports so I do not send them to him.

3
4

Q.

Lieutenant General Flynn did not want any details about this?

5
6

Okay, so if I am following you, you are saying that he --

A.

He did not want the details of what was in the weekly

reports.

7

Q.

Okay, and that was because, why?

8

A.

It was based upon the telephone conversation that he and I

10

Q.

And what did he say?

11

A.

He said, "I am not interested in the details.

9

12

had.

I just want

you to understand my intent".

13

Q.

And that is all he said?

14

A.

Pretty much.

15

Q.

And he did not -- did he indicate to you why he did not

16
17

It was a very short conversation.

want the details?
A.

He wanted to ensure, in his words, that there was

18

appropriate leadership to ensure that the staff members were

19

coordinating and communicating with one another.

20

[The court reporter marked Appellate Exhibit 418B.].

21

CDC[MR. COOMBS]:

I am handing you what has been marked as

22

Appellate Exhibit 418b.

A copy has been provided to the court.

23

has been previously provided to the defense by the government and

2811

It

06688

1

shown to the government.

So he did not want details.

If you go

2

ahead and look at this email chain for a moment, do you recognize it?

3

A.

Yes, I do.

4

Q.

All right, go to Page 3, if you would, of the email chain.

5

Do you see where you told General Flynn, who did not want details,

6

about David House and Jane Hamsher being denied access to the base?

7

A.

Yes.

8

Q.

You also told General Flynn, who did not want details, that

9
10

you were sending a more detailed report.

Do you recall that?

Do you

see that there?

11

A.

What page?

12

Q.

Same page?

13

A.

I am having a hard time following what your question is.

14

Q.

If you turn to Page 3.

15

A.

Page 3.

16

Q.

Do you see your email to General Flynn?

17

A.

Yes.

18

Q.

Do you see where you informed General Flynn that David

19
20
21
22
23

House and Jane Hamsher have been denied access to the base?
A.

Yes, the more detailed report is the information that is

coming in the form of a SITREP.
Q.

Exactly.

So you say that you will send more -- a more

detailed report?

2812

06689

1

A.

That's correct.

2

Q.

And then, General Flynn -- apparently told you he was not

3

concerned about details responded to you within 7 minutes of your

4

email, do you see that?

5

A.

Yes.

You are talking from August to January 23rd and you

6

are talking about an incident that took place at the front gate and

7

not the Brig.

8

Q.

9

Well, I am asking you the question.

Do you see where he

responded to you within 7 minutes?

10

A.

Yes.

11

Q.

And the two of you then exchanged several emails, correct?

12

A.

Yes.

13

Q.

And later that same day you tell General Flynn about PFC

14

Manning's cousin visiting him; do you see that?

15

A.

Yes.

16

Q.

You tell him about my call also to the Brig asking that the

17

Brig inform PFC Manning that David Hamsher, excuse me, David House

18

and Jane Hamsher have been denied access, do you see that?

19

A.

Yes.

20

Q.

And then, you tell General Flynn that this was an

21

unauthorized communication on my part and Chief Averhart is going to

22

summarize my request in an email that would be sent to the SJA, do

23

you see that?

2813

06690

1

A.

Yes.

2

Q.

You also told him that you spoke to the public affairs

3

officer, Colonel T.V. Johnson about the events of the day that he was

4

ready to respond to him?

5

A.

Yes.

6

Q.

I am retrieving 418B.

7

marked as 418C.

8

Colonel Johnson?

I am showing you what has been

Do you see that this is an email from your PAO

9

A.

Yes.

10

Q.

He includes not only you, your SJA, but also Lieutenant

11
12
13
14

General Flynn and the SJA on the email?
MJ:

Mr. Coombs, am I going to get a copy of this one or this is

something different?
CDC[MR. COOMBS]:

Your Honor, I believe I had a copy but I am

15

not seeing it in front of me, so -- can I retrieve 418C?

16

[The court reporter gave Appellate Exhibit 418C to the civilian

17

defense counsel.]

18

MJ:

19

CDC[MR. COOMBS]:

20

Q.

21
22

Thank you.
Your Honor, you have a copy now.

So as I said, he included you -- not only you, the SJA, but

also General Flynn and his SJA on this email, correct?
A.

Yes.

2814

06691

1

Q.

And, this is an email to let General Flynn, who wasn’t

2

concerned about details, know about Frontline asking to interview

3

Chief Barnes?

4

A.

General Flynn is interested in details that involve the

5

media and both this, as well as the other incident on January 23rd at

6

the front gate involved the media.

7

CDC[MR. COOMBS]:

All right.

So, I will retrieve this from

8

you and we will try another one.

9

[The court reporter marked Appellate Exhibit 418D.].

10

Q.

I am showing you what has been marked 418D.

That is an

11

email asking General Flynn to review a letter that you were going to

12

sign, correct?

13

A.

This is what the counsel recommend that I sign, yes.

14

Q.

And General Flynn, who wasn’t worried about details, took

15

the time to read the entire email and then tell you, "Hey, I suggest

16

we take out the letter ‘a’ before ‘blankets’ in the fourth

17

paragraph", correct?

18

A.

Yes.

19

Q.

I am retrieving 418D from the witness.

Colonel Choike, are

20

you still saying you never forwarded any weekly reports to General

21

Flynn because he wasn’t worried about details?

22
23

A.

There were times in which General Flynn and I corresponded.

Mostly it had to do with incidents that were -- that involved the

2815

06692

1

media or interests he had that came from the media or it was --

2

involved the details in regards to the four protests that we had; I

3

think one in August, one in September, one in January, one in March.

4

There was updates and information that dealt with the work that we

5

did prepare for the different demonstrations.

6

Q.

Okay, my question for you was, "Are you still saying that

7

you never provided weekly updates regarding PFC Manning to General

8

Flynn"?

9

A.

That is correct.

They were not consistent as what was

10

being presented to me.

11

provide but there were not weekly updates.

12

Q.

From times when he asked questions, I would

Okay, so the weekly updates that you were receiving from

13

the Security Battalion you were not forwarding them up to General

14

Flynn?

15

A.

That's correct, I was not.

16

Q.

And again, the reason why he was not concerned about the

17
18
19
20

details?
A.

Was based upon that phone call.

[The court reporter marked Appellate Exhibit 418E.].
Q.

I am handing you what has been marked as 418E.

This is an

21

email from you to General Flynn telling him that although you haven’t

22

had anyone contact you from the United Nations, but had received 43

2816

06693

1

calls from individuals requesting that PFC Manning be released or his

2

custody to change, correct?

3

A.

Yes.

4

Q.

Why did you inform him of this detail?

5

A.

It was connected back to the UN reviews Manning's treatment

6

from the Brig.

7

Q.

And that is why you informed him of the details?

8

A.

It was -- he asked, I am assuming, because I do not see it

9
10
11
12
13

here but we have not had anyone contact us from the UN but what we
received 43 other calls.
Q.

Okay.

And, I just want to know why are you telling him

about this detail?
A.

I do not recall why other than the fact that this article

14

was presented to me by Lieutenant Colonel Greer.

And that apparently

15

Lieutenant Colonel Greer and Colonel Miner may have been

16

corresponding with one another.

17

specifically why I submitted that because there is nothing that shows

18

that he requested that information.

But, I do not recall very

19

Q.

I am retrieving 418E from the witness.

I am handing the

20

witness 418F.

21

General Flynn, among others, to review the planned response to the

22

latest media inquiry regarding PFC Manning, correct?

This is an email from Colonel T.V. Johnson asking for

2817

06694

1

A.

General Flynn is CCed in on this line.

I believe this is

2

Colonel Johnson going directly to Colonel Miner and Lieutenant

3

Colonel Greer, the SJAs for their chop and not for General Flynn.

4

Everybody on the cc line is just to let them know.

5
6

Q.

Exactly.

So, General Flynn was being informed of what the

PAO was going to be potentially putting out, correct?

7

A.

Yes.

8

in the media.

9

Q.

He had interest in anything that was going to show up

I am retrieving 418F from the witness.

So, apparently he

10

had interest in what was coming from the media but absolutely no

11

interest in your weekly updates from Chief Averhart and Chief Barnes?

12

A.

Is that a question or a statement?

13

Q.

That is a question.

14

A.

Could you rephrase it.

15

Q.

Sure.

The same way.

Apparently he had interest in what

16

was happening in the media but absolutely no interest in what the

17

recommendations were coming from Chief Averhart and Chief Barnes?

18
19

A.

You were saying, "No interest", no, he had interest but not

to where it required weekly updates.

20

Q.

Or any updates?

21

A.

He received updates either by question that he had directly

22

for us or if there were other meetings that were taking place, other

23

discussions, that he would ask questions.

2818

06695

1
2

Q.

Okay, but never to where you attached the weekly updates to

an email?

3

A.

That is correct.

4

Q.

All right, you also received weekly reports from Captain

5

Neill?

6

A.

Yes.

7

Q.

And, she would basically summarize from a mental health

8
9

perspective what was happening at the Brig, correct?
A.

Yes, she would summarize.

I am not sure exactly where she

10

got the information from, I am assuming it is from one of the

11

physicians or psychiatrists that see him.

12
13

Q.

But, yes.

And Captain Neill was the commanding officer of the Naval

Health Clinic?

14

A.

Yes.

15

Q.

And, her medical specialty was as a dentist?

16

A.

That is correct.

17

Q.

She was not a forensic psychiatrist?

18

A.

No.

19

Q.

Why were you getting weekly updates from a dentist as

20
21

opposed to getting them directly from the forensic psychiatrist?
A.

She is the Commanding Officer.

2819

06696

1

Q.

2

Officer.

3

updates?

4
5

A.

Q.

The updates were provided through the chain of command,

So, you went to a dentist because she was the Commanding

Officer and not directly to the forensic psychiatrist?

8
9

Did you also go to the forensic psychiatrist to get

that is how we operate.

6
7

Now, you occasionally had -- well, she is the Commanding

A.

I went to the Commanding Officer who happens to be a

dentist.

10

Q.

Okay, did you ever talk to any the forensic psychiatrist?

11

A.

On I believe a couple of occasions, there was a meeting,

Q.

We will talk about those.

12
13
14

yes.
So, you did have, occasionally,

weekly meetings with everyone concerning PFC Manning, correct?

15

A.

Yes.

16

Q.

And, those meetings occasionally took place in person?

17

[Pause] Correct?

18

A.

I am not sure what you mean by, "in person".

19

Q.

Instead of over the phone or whatnot, people together in

20

person?

21

A.

Yes.

22

Q.

Now, in one of Captain Neill's reports, she tells you that

23

Yes.

Captain Hocter reported to you a solid line of communication between

2820

06697

1

medical and security staff, however, she has noted that the new OIC,

2

Chief Averhart, has displayed significant concerns and is anxious

3

about the high level of visibility.

Do you recall that email?

4

A.

Yes.

5

Q.

Now, Chief Averhart had been the Commander for only a few

6

months at the time that PFC Manning arrived, correct?

7

A.

Yes.

8

Q.

And, did you know what she meant when she said that he was

9
10

displaying a -- or, displayed significant concern and was anxious
about the high-level visibility and risk?

11

A.

Nothing more than what is written, what you just read.

12

Q.

And how did you interpret that?

13

A.

One in which it was apparent to everybody that there was

14

high-interest, that he had concerns of the fact that there was a

15

recent suicide and that the conditions in which we received PFC

16

Manning; the lack of information that he initially had early on; and

17

a lack of observation time.

18

would make him anxious.

19
20

Q.

Okay.

I took that as some of the things that

Did you speak with Captain Neill about her email

concerning Chief Averhart's apparent concern?

21

A.

No.

22

Q.

Did you take the time to speak to Chief Averhart about his

23

concern about the high-level of visibility and risk?

2821

06698

1

A.

Not directly.

2

Q.

How did you do it indirectly?

3

A.

Colonel Oltman.

4

Q.

Please explain?

5

A.

Colonel Oltman is the Security Battalion Commander and has

6

oversight over Chief Averhart.

7

Q.

What I meant was, please explain how you did it indirectly?

8

A.

Just, I can’t recall the specific time, but just in regards

9

to meetings and discussions that Colonel Oltman and I had had, there

10

wasn’t anything that he brought to my attention that would alarm me

11

or alarm him that Chief Warrant Officer Averhart was not capable of

12

doing his job.

13

[The court reporter marked Appellate Exhibit 418G.]

14

Q.

I am handing you what has been marked Appellate Exhibit

15

418G for the record.

16

correct?

This is the email we were talking about,

17

A.

Yes.

18

Q.

Now, you forwarded Captain Neill's email to Lieutenant

19

General Flynn, right?

20

A.

Yes.

21

Q.

Along with a general update?

22

A.

Yes.

2822

06699

1
2

Q.

And in your email you state that Private Manning's status

was changed from suicide prevention to prevention of injury?

3

A.

Yes.

4

Q.

And by saying this, you were saying that the recommendation

5

by mental health professionals was that he be taken off of suicide

6

risk, correct?

7

A.

Yes.

8

Q.

Not that he was not actually taken off of suicide risk?

9

A.

Yes.

10

Q.

So, he was still on suicide risk at this point?

11

A.

Yes.

12

Q.

Do you know why?

13

A.

Based upon the SECNAV Instruction and the Brig SOP that was

14

a part of the attachment, that Chief Warrant Officer Averhart was

15

responsible for the health and welfare of all detainees and that he

16

would take into account all information and input and that he utilize

17

his staff through the classification and assignment meetings that

18

they had on a weekly basis to make the final call.

19
20
21

Q.

So, if I am understanding correctly, he was still on

suicide risk because Chief Averhart decided so?
A.

Chief Averhart decided to take all input from the

22

classification and assignment, that he took the information from the

23

doctor and then the next time they were going to meet, they were

2823

06700

1

going to fully discuss it and determine exactly what classification

2

or assignment that PFC Manning would be in.

3
4

Q.

So, is that a, “Yes” that Chief Averhart decided to keep

him on suicide risk?

5

A.

Yes.

6

Q.

So, in this email you also say that the tentative date to

7

allow additional clothing is Wednesday and Doctor Hocter agrees, do

8

you see that?

9

A.

Yes.

10

Q.

Why do you believe that Doctor Hocter agreed with that?

11

A.

That was based upon information that I believe Captain

12

Neill and I may have spoken about, I do not see it here in this

13

email, but it is written and I don't recall very specifically where I

14

got that information, but it is written.

15

Q.

Okay, so you believed that, not recalling where you got it,

16

you believe that Captain Hocter agreed, basically, to hold off giving

17

him additional clothing?

18

A.

Yes.

19

Q.

Did Captain Neill ever brief you on the following day that

20

Captain Hocter actually complained about PFC Manning not being given

21

back his clothing?

22

A.

No.

2824

06701

1

Q.

Did Captain Neill report to you that Captain Hocter

2

complained about the Brig continuing PFC Manning on suicide risk for

3

security reasons the following day?

4
5
6
7

A.

No.

[The court reporter marked Appellate Exhibit 418H.]
Q.

I am retrieving 418G from the witness.

I am handing the

witness what has been marked as 418H.

8

Do you know what this is?

9

A.

It is emails between Captain Neill and Doctor Hocter.

10

Q.

And, do you see in this email where Captain Neill says she

11

is with you and will present Captain Hocter's recommendations

12

directly to you?

13

It would be towards the top.

TC[MAJ FEIN]:

Your Honor, objection.

This email is not even --

14

Colonel Choike isn’t even on this email, he would have never seen

15

this before.

16

MJ:

Would you ----

17

CDC[MR. COOMBS]:

Yes, Your Honor.

My response to that is I

18

am not saying Colonel Choike has seen the email.

19

I will ask Colonel Choike, Captain Neill receives a complaint from

20

Captain Hocter.

21

is Colonel Choike, "and, I will relay your concerns directly to him".

22

So, I am going to ask if she did that.

23

MJ:

In the email, which

She says, "I am with the commander right now", which

Go ahead, overruled.

2825

06702

1
2

Q.

So, do you see where she says she is with you and will

present Captain Hocter's recommendations directly to you?

3

A.

Yes, I see it.

4

Q.

And, I know it has been a long time.

Do you believe --

5

well, do you recall her doing that, now after having looked at this

6

email?

7

A.

I do not recall.

8

Q.

All right.

9

And, just so I know for clarification -- I am

retrieving exhibit from you.

I am retrieving 418H from the witness.

10

Are you saying that you do not recall or you do not believe she ever

11

did update you?

12

A.

I do not recall.

13

is with me right now.

14

me on that date and time.

15

Q.

It says in that email, it says that she

I don’t recall that meeting of her being with

All right, so I got that.

And, do you believe that she

16

ever updated you, saying that Captain Hocter actually was upset that

17

the clothes were not returned and he was not happy about him being

18

held on suicide precautions because it was not -- because of a

19

security reason status?

20
21
22

A.

As far as him being upset,

part of our conversation, no.
Q.

Okay.

So, can I ----

2826

there was no —- that was never

06703

1
2

A.

What his recommendations were, she did relay, but not in

terms of if he was upset or was frustrated.

3

Q.

And I want to make sure I have your testimony correct, all

4

right.

5

ever informing you of this or is your testimony, "I know she never

6

informed me of this".

7

Your testimony is either -- is that you do not recall her

A.

Do you see this distinction?

I do not recall her ever informing me.

If she says that

8

she is with the right now, chances are she was with me as we talked.

9

And from time-to-time we would have discussions, whether it be face-

10

to-face or over the phone but I do not recall that specific meeting.

11

Q.

Okay.

Now, actually, if we could go back to the previous

12

one.

I want to ask a few questions about 418G again for a moment

13

okay?

14

you, I am going to hand 418G back to you.

So, I want you to have the benefit of having it in front of

15

Now, in this email to General Flynn, you state that Private

16

Manning receives a daily sunshine call for approximately one hour, so

17

he is not completely clotheless [sic] all day long, do you see that?

18

A.

Yes.

19

Q.

So, you believed at the time of your email that he was

20

getting one hour of sunshine call?

21

A.

Yes.

22

Q.

And, why did you believe he was getting one hour of

23

sunshine call?

2827

06704

1
2
3
4

A.

Either based upon things that I read or information that I

received from Colonel Oltman.
Q.

Did you know that Private Manning was actually only

receiving 20 minutes of sunshine call during this time?

5

A.

During this time in August, no.

6

Q.

Correct.

7

A.

No.

8

Q.

Were you aware of the fact that Private Manning only got 20

9

minutes of sunshine call until 10 December 2010?

10

A.

No.

11

Q.

Would that surprise you if that were true?

12

A.

Based upon the weekly updates, there was information that

13

showed that he chose to end his sunshine calls and recreational time

14

early, at the 20 minute mark.

15

Q.

So, for it to surprise me, no.

I guess maybe you do not understand the question.

Would it

16

surprise you if all he was permitted from the time he got there, 29

17

July to 10 December 2010, was 20 minutes of sunshine call, would that

18

surprise you?

19

A.

Yes, it would.

20

Q.

Thank you.

I am retrieving 418G from the witness.

21

you indicated, there was a lot of media interest in this case,

22

correct?

23

A.

Yes.

2828

Now, as

06705

1

Q.

And you were concerned about the media interest?

2

A.

Yes.

3

Q.

Lieutenant General Flynn was also concerned about the media

4

interest?

5

A.

Yes.

6

Q.

The PAO, Colonel Johnson, included you, Colonel Oltman,

7

General Flynn and many others on the staff on his PAO emails that he

8

would send out?

9

A.

Yes.

10

Q.

And he would also seek, by his emails, input from you,

11

Colonel Oltman, General Flynn and other members of the staff on

12

proposed responses to media questions?

13

A.

Yes.

14

Q.

And you sometimes provided input?

15

A.

Frequently.

16

Q.

And, General Flynn sometimes provided input?

17

A.

I cannot answer that specifically.

18

Q.

You do not recall him ever providing input?

19

A.

Well, there is emails that shows that he has in the past

20

and I’m sure that he has, but his direct input did not come through

21

me.

22

other staff members.

Colonel Johnson works directly for General Flynn, as well as
So, if that input was given, the amount of time

2829

06706

1

and how frequent that he did, I can’t give you the amount but Colonel

2

Johnson worked directly for General Flynn.

3
4

Q.

No, I know.

My question was that General Flynn sometimes

provided input?

5

A.

I assume.

6

Q.

Now, Colonel Oltman also provided, sometimes, input as

8

A.

Yes, details.

9

Q.

Now, in addition to you, Colonel Oltman and General Flynn

7

well?

10

were also included on any proposed media responses and releases

11

regarding Private Manning, correct?

12

A.

Yes.

13

Q.

And Colonel Johnson also put together what he determined,

14

or called, an assessment of the overall media coverage, correct?

15

A.

Yes.

16

Q.

And, that would basically cover all the media stories that

17

were put out during a particular time period and break them down by

18

the type of media and whether the story was favorable or not to

19

Quantico, correct?

20

A.

I have seen only a couple of those reports, but yes.

21

Q.

All right, and, these assessments also tracked print and

22

online coverage, broadcast coverage, blogs, commentary and even

23

Twitter activity, correct?

2830

06707

1

A.

Yes.

2

Q.

You, Colonel Oltman, General Flynn were also included on

3

what was called PAG's, Public Affair Guidance, correct?

4

A.

Yes.

5

Q.

And these Public Affairs Guidance the PAG's, they were

6

staffed through Quantico, Headquarters, Marine Corps counsel and also

7

counsel for the Office of the Secretary of Defense, correct?

8
9

A.

I do not know above my level in terms of who was

coordinated above.

I know that internal to the base, and I knew

10

through the legal channels, information was being forwarded up, but

11

past Headquarters, Marine Corps to DoD, I wasn’t made aware of that

12

and did not concern myself with it.

13

Q.

So, let’s go with what you are aware of and concerned

14

yourself with.

15

Guidances?

16

A.

Who had to hack off on the PAG's, the Public Affairs

The members of the staff, specifically for response to make

17

sure that it was accurate in regards to date-times and then the

18

lawyers and General Flynn, his Chief of Staff, my Chief of Staff,

19

Colonel Oltman.

20

people take a look at to ensure that it was proper and it was

21

accurate.

It was shotgunned out, if you will, to quite a few

2831

06708

1

Q.

All right.

And when the PAG's were approved, then they

2

would be sent for -- to Lieutenant General Flynn just to see

3

completely?

4

A.

Yes.

5

Q.

Now, Colonel Johnson, as the PAO, his office also drafted

6

news articles for publication, correct?

7

A.

Yes.

8

Q.

And prior to releasing these articles, Colonel Johnson

9
10
11
12
13

would ask you, Colonel Oltman, General Flynn and others to review,
edit and approve the articles?
A.

Yes.

[The court reporter marked Exhibit 418I.]
Q.

I am handing you what has been marked 418I.

I would like

14

to ask a few questions about this email chain.

15

chain the dates from 27 through 30 December 2010.

16

you see the email chain includes you, General Flynn Major General

17

Ary, Mr. Geoffroy, Lieutenant Colonel Wright, Mr. Durham, Colonel

18

Shumake, CW5 Galaviz for CW4 Averhart and Colonel Oltman among

19

others, correct?

20

A.

21

involved, no.

22

where General Flynn did respond.

And, this is an email
If you look there,

This did not originate with myself or General Flynn
But later, the following days, it did include and to

2832

06709

1

Q.

Okay, so -- and I understand, it is an email chain that,

2

basically as it was forwarded, more people got put on, some people

3

got taken off, but the email chain stayed with the email, correct?

4
5
6

A.

The email started specifically between General Ary and Mr.

Geoffroy.
Q.

Yeah, let us talk about that.

7

and talk about Major General Ary.

8

the Commandant, correct?

Let us go to the last email

Major General Ary is the SJA to

9

A.

Correct.

10

Q.

He is your highest-ranking attorney in the Marine Corps?

11

A.

Yes.

12

Q.

And, he is writing to Mr. Geoffroy?

13

A.

Yes.

14

Q.

Mr. Geoffroy is the Assistant Deputy Commandant for

15

Headquarters, Plans, Policy and Operations Security, correct?

16

A.

Yes.

17

Q.

So, Mr. Geoffroy is basically, you know, the second person

18

in the level of hierarchy within the Marine Corps Corrections and

19

Security, is that correct?

20

A.

Yes.

21

Q.

And, he is somebody that CW5 Galaviz reports to?

22

A.

Yes.

2833

06710

1

Q.

And, Chief Galaviz was the individual that you requested to

2

conduct an assessment of Private Manning's confinement conditions in

3

February of 2011, correct?

4

A.

Say that again, I am sorry?

5

Q.

Chief Galaviz was somebody that you requested to conduct an

6

assessment of Private Manning's living conditions in February of

7

2011?

8

A.

That is correct.

9

Q.

Now again, this email starts on 27 December 2010?

10

A.

Yes.

11

Q.

And, in the email, Major General Ary states that Lieutenant

12

General Flynn, who we know is a very busy man, not interested in

13

details, called him to ask him about Private Manning and the press --

14

recent press articles discussing his treatment at Quantico Brig; do

15

you see that?

16

A.

Yes.

17

Q.

And Major General Ary writes, "Although Lieutenant General

18

Flynn has the utmost trust and confidence in the way the Brig is

19

being run, and that Private Manning's treatment meets DoD standards,

20

he would like to be proactive and see if there are a few steps we can

21

take to ensure we hold the moral high ground if this issue starts to

22

take hold in the press".

23

A.

Do you see that?

Yes.

2834

06711

1

Q.

So, Major General Ary then states, Lieutenant General Flynn

2

wants to bring in an outside team to give the Brig a clean bill of

3

health?

4

A.

Yes.

5

Q.

And, he ends the email repeating that General Flynn is

6

confident that we are doing everything that is right?

7

A.

Yes.

8

Q.

Mr. Geoffroy then responds to Major General Ary and he

9

includes you, General Flynn and others on the email, right?

10

A.

Yes.

11

Q.

At then he states, "Concur that we should be ahead of the

12

disinformation campaign."

Do you see that?

13

A.

Yes.

14

Q.

It tells Major General Ary that he is coordinating to have

15

a visit to the Quantico Brig to endorse the care and treatment of PFC

16

Manning, do you see that?

17

A.

Yes.

18

Q.

And then this is when General Flynn chimes in and response

19

and says, "Just what I was looking for."

Do you see that?

20

A.

Yes.

21

Q.

And, in that email, General Flynn CCs you, Colonel Oltman

22
23

and others in his response?
A.

Yes.

2835

06712

1
2

Q.

And at this point, Lieutenant Colonel Wright sends you an

email, do you see that?

3

A.

Yes.

4

Q.

And, Lieutenant Colonel Wright also works up at

5

Headquarters, PPO, correct?

6

A.

Yes.

7

Q.

And, he is CW5 Galaviz' immediate supervisor?

8

A.

Yes.

9

Q.

And, in this email, CW5 Galaviz is included on the email?

10

A.

Yes.

11

Q.

And, Lieutenant Colonel Wright tells you that Colonel

12

Shumake, Army Colonel, from the Office of the Secretary of Defense

13

has agreed to conduct a courtesy visit of the Brig?

14

A.

Yes.

15

Q.

He tells you that this will not be an official inspection?

16

A.

Yes.

17

Q.

But, due to the international attention regarding PFC

18

Manning's treatment, Lieutenant Colonel Wright tells you that, "I

19

believe it wise to have as many people possible in their official

20

capacity be witness to the conditions Private Manning is subject to

21

so they can personally attest that he is being treated in accordance

22

with regulations".

23

A.

Do you see that?

Yes.

2836

06713

1
2

Q.

This is when you tell the Lieutenant Colonel Wright that

you had your own IG conduct a visit of the Brig?

3

A.

That is correct.

4

Q.

And that IG that you are referring to is your deputy IG,

5

Major Timothy Zelek?

6

A.

That's correct.

7

Q.

And Lieutenant Colonel Wright that after you send your

8

report, the report of Major Zelek, to General Flynn, you will send

9

him a copy as well?

10

A.

Yes.

11

Q.

And in this email you elect to include Colonel Oltman, CW5

12

Galaviz, Chief Averhart and Colonel Shumake, right?

13

A.

Yes.

14

Q.

So, at that point, Chief Averhart would have the benefit of

15

all those other emails in that chain, correct?

16

A.

Yes.

17

Q.

Now, the person that is supposed to come conduct a courtesy

18

visit, Colonel Shumake, then sent you an email saying, "I know you

19

have this well in hand, but I just want to be able to give my bosses

20

a firsthand look to be sure we can manage this up from my level."

21

you see that?

22

A.

Yes.

2837

Do

06714

1
2

Q.

And, Colonel Shumake goes on to say, "I know it has all

been handled by the book I just want to say that I confirmed it."

3

A.

Yes.

4

Q.

Colonel Shumake has not come and looked at anything at this

5

point, right?

6

A.

He never did.

7

Q.

But even at that point, he was already pre-opining as to

8

what the result would probably be, correct?

9

A.

That is what his words say here in email, yes.

10

Q.

And you respond to those words, "Thanks Shawn, look forward

11

to the visit."

With an exclamation point, correct?

12

A.

Yes.

13

Q.

Let's talk about your Deputy IG for moment, Major Zelek,

14

and his report.

15

what I was looking for", and in response to Mr. Geoffroy's suggestion

16

of staying ahead of the disinformation campaign, you sent an email

17

directly to Lieutenant General Flynn, correct?

18
19

A.

Now, after General Flynn told Mr. Geoffroy, "Just

I don't recall.

[The court reporter marked Appellate Exhibit 418J.].

20

Q.

21

Exhibit 418J.

22

where you sent an email to Lieutenant General Flynn?

23

A.

I am handing the witness what has been marked as Appellate
Go ahead and look that email for a moment.

Yes.

2838

Do you see

06715

1

Q.

And in your email to Lieutenant General Flynn, you told him

2

that you just had Major Zelek conduct an unannounced visit to the

3

Brig?

4

A.

Yes.

5

Q.

And you attached a copy of the report for his review?

6

A.

Yes.

7

Q.

You also told General Flynn about your planned courtesy

8

visit by Colonel Shumake?

9

A.

Yes.

10

Q.

And finally, you told General Flynn of your plan to sit

11

down with Colonel Thomas V. Johnson, your PAO, to use Major Zelek's

12

report for, "For developing a more comprehensive Public Affairs

13

Guidance and Information Campaign."

Do you see that?

14

A.

Yes.

15

Q.

So, you planned to use this report, "In order to put things

16

into better perspective in the media"?

17

A.

Yes.

18

Q.

I am retrieving 418J from the witness.

Now, in early

19

January you got an email from Lieutenant Colonel Wright essentially

20

saying that in light of Major Zelek's report, Colonel Shumake's visit

21

may no longer be needed, correct?

22

A.

Yes.

2839

06716

1

Q.

2

recall?

3

A.

And, you responded to that email the same day; do you

I don't recall if it was the same day but I do recall

4

responding.

5

[The court reporter marked Appellate Exhibit 418K.].

6
7

Q.

This is 418K, take a look at that for a moment.

So, you

responded to that email the same day, correct?

8

A.

Yes.

9

Q.

And you CCed CW5 Galaviz and Colonel Oltman on your email?

10

A.

Yes.

11

Q.

And in your response, you attached Major Zelek's report?

12

A.

Major Zelek?

13

Q.

You attached his report?

14

A.

Yes.

15

Q.

And, you then told Lieutenant Colonel Wright that you still

16

believed, "That a visit is warranted as requested by Mr. Geoffroy and

17

Lieutenant General Flynn."

18

A.

Yes.

19

Q.

And you asked Lieutenant Colonel Wright, "For support in

20

encouraging that this visit takes place."

21

A.

Yes.

22

Q.

You said, "If you see the possibility fading, I need to

23

know so I can inform my boss, Lieutenant General Flynn."

2840

06717

1

A.

Yes.

2

Q.

Lieutenant Colonel Wright then told you that there would be

3

a dual visit from both the Marine Corps and the Army's IG Office?

4

A.

Yes.

5

Q.

And he told you that he and CW5 Galaviz would be present

6

for that visit?

7

A.

Yes.

8

Q.

He told you that Colonel Shumake's visit was tentative at

9

this point?

10

A.

Yes.

11

Q.

Lieutenant Colonel Wright tells you that he is working with

12

the Marine Corps Public Affairs on a press release concerning the

13

upcoming visits?

14

A.

Yes.

15

Q.

And finally, he tells you that, "Also, just an FYI, General

16

Casey and General Amos will probably have conversation about Manning

17

soon, if they have not already had it."

18

A.

Yes.

19

Q.

Now, General Casey was the Chief of Staff for the Army at

20

the time?

21

A.

Yes.

22

Q.

And General Amos was, and still is, the Commandant of the

23

Marine Corps?

2841

06718

1

A.

Yes.

2

Q.

Why would General Casey and General Amos have a

3

conversation about Private Manning, do you know?

4

A.

5

answer that.

6

Q.

7

These are Lieutenant Colonel Wright's words and I cannot
I do not know what ----

So, your answer would be, "I wouldn't know why they would

have a conversation"?

8

A.

No.

9

Q.

Is that a, "No"?

10

A.

No.

11

Q.

I understand that.

12

A.

He is speculating, he is speculating.

13

Q.

I understand that.

These are Lieutenant Colonel Wright's words.

My question, and you could say, "I do

14

not know."

My question is, do you know why General Casey and General

15

Amos might have a conversation about PFC Manning?

16

A.

No.

17

Q.

Thank you.

Retrieving 418K from the witness.

Now, you

18

would agree that the high level of visibility in this case was

19

something that you discussed from the very first meeting even prior

20

to PFC Manning's arrival to the Quantico Brig?

21

A.

Yes.

22

Q.

And, that high-level visibility was from the media

23

interest?

2842

06719

1

A.

Yes.

2

Q.

And, it was also a high level of visibility from the

3

command's interest?

4

A.

Yes.

5

Q.

And, you would track -- if you were to track that command

6

interest, you would track, let’s say you would track the command

7

interest from Lieutenant General Flynn, all the way up to

8

Headquarters, Marine Corps?

9

A.

What do you mean by track?

10

Q.

All right, I am using your words, that you would track the

11

command interest from General Flynn.

When you say, "High visibility

12

of command interest", from General Flynn all the way up to

13

Headquarters, Marine Corps having an interest.

14

A.

I am not sure what you mean by, "Track".

15

Q.

All right.

When you say, "High level of command interest",

16

you would say the command interest would start, maybe from General

17

Flynn, the high-level and go all the way up to Headquarters, Marine

18

Corps, correct?

19

A.

Yes.

20

Q.

And then, from Headquarters, Marine Corps to the Secretary

21
22
23

of the Navy and his staff?
A.

Yes.

[The court reporter marked Appellate Exhibit 418L.].

2843

06720

1

Q.

I am handing you 418L.

Go to the oldest email in the

2

chain, so that will be toward the last page.

3

2011 from Mr. Carlyle Shelton?

It is dated 3 January

4

A.

Yes.

5

Q.

And, Mr. Carlyle Shelton was the Deputy Inspector General

6

for Marine Corps?

7

A.

Yes.

8

Q.

And this is an email from him to General Amos?

9

A.

Yes.

10

Q.

Mr. Shelton includes several people on this email, to

11

include Brigadier General Lee, who is the Inspector General for the

12

Marine Corps; is that correct?

13

A.

Yes.

14

Q.

General Dunford who is the Assistant Commandant of the

15

Marine Corps?

16

A.

Yes.

17

Q.

And of course, Major General Ary who is, as we know, the

18

SJA to the Commandant?

19

A.

Yes.

20

Q.

Now in this email he discusses the United Nations and

21

Amnesty International are taking an interest in PFC Manning and his

22

confinement conditions, correct?

23

A.

Yes.

2844

06721

1

Q.

The email discusses also Major Zelek's inspection?

2

A.

Yes.

3

Q.

It also discusses the fact that General Casey has directed

4

the Army's Inspector General to assess the quality of life for

5

Private Manning?

6

A.

Yes.

7

Q.

General Amos responds to this email and he states that he

8

had not heard from General Casey yet, but, "We will fully comply, as

9

it is in everyone's best interest to do so."

10

A.

Yes.

11

Q.

General Amos also says, "I know that General Flynn is

12

paying particularly close attention to the suicide matter, not

13

wanting to give Manning any opportunity to do such a thing."

14

A.

Yes.

15

Q.

General Amos then instructs Mr. Shelton to keep him and

16

General Dunford informed of the situation?

17

A.

Yes.

18

Q.

And, the Inspector General for the Marine Corps, Brigadier

19

General Lee then responds to General Amos; do you see that?

20

A.

Yes.

21

Q

And, he includes Lieutenant General Flynn on this email?

22

A.

Yes.

2845

06722

1

Q.

And in the email, he states that the Army IG was satisfied

2

with the assessment and the quality of life and treatment of Private

3

Manning?

4

A.

Yes.

5

Q.

He states that, "It appears no further investigation or

6

assessment is required at this point."

7

A.

Yes.

8

Q.

And Mr. Shelton then sends this entire email traffic to you

9
10

and Lieutenant Colonel Wright telling you that Brigadier General Lee
wants to close the issue out with the Army IG?

11

A.

Yes.

12

Q.

This would mean, obviously, that the Army IG would not come

13

inspect the quality of life for Private Manning at the Brig, correct?

14

A.

Yes.

15

Q.

And you respond to Mr. Shelton stating that you were not

16

sure if this met General Flynn's intent?

17

A.

Yes.

18

Q.

I am retrieving the exhibit from the witness.

19

to discuss another email chain with you.

20

[The court reporter marked Appellate Exhibit 418M.]

21

Q.

I am handing the witness 418M.

I would like

Let us discuss these emails

22

starting from the earliest on 10 January.

23

sends CW4 Averhart and Colonel Oltman an email and informs them that

2846

On that date, CW5 Galaviz

06723

1

Mr. Greg Stroebel from the Army's Correction Command would conduct a

2

review of the custody classification process and decisions regarding

3

PFC Manning.

4

A.

Yes.

5

Q.

And, Colonel Oltman then sends you an email about Mr.

6

Do you see that?

Stroebel's pending visit, correct?

7

A.

Yes.

8

Q.

Colonel Oltman tells you he has some reservations about an

9

independent assessment of PFC Manning?

10

A.

Yes.

11

Q.

He says, "We should expect that if their opinion is

12

different from ours, Manning's defense counsel will get that

13

information and exploit it in the press."

14

A.

Yes.

15

Q.

You then respond to Colonel Oltman stating, "We need to

16

stress the importance of concurrence in what we are doing in light of

17

all attention received.

18

Wednesday.

CW5 Galaviz is still coming by to visit this

We might need to discuss this beforehand."

19

A.

Yes.

20

Q.

Colonel Oltman then informs you that he will share your

21
22

concerns with CW5 Galaviz?
A.

Yes.

2847

06724

1
2

Q.

And Colonel Oltman later tells you that he will have no

problem pushing off the visit by Mr. Stroebel?

3

A.

Say that again, please?

4

Q.

Colonel Oltman tells you later that he'll have no problem

5

pushing off the visit by Mr. Stroebel?

6

A.

I cannot find that.

7

Q.

Go to a later email.

8

A.

What page?

9

Q.

I am retrieving the exhibit from the witness.

What I am

10

going to do, Colonel Choike, is I am going to read this to you.

11

works in the Army Correction Command.

12

off.

"He

I have no problem pushing him

Easily done with an email."

13

A.

That is fine.

14

Q.

Do you see that?

15

A.

Yes.

16

Q.

I am returning the exhibit to the witness.

This is when

17

you respond to Colonel Oltman and you state, "Armchair quarterbacks

18

are not welcome.

19

and local SOP under the existing procedures."

Need experts that understand our service procedures
Do you see that?

20

A.

Yes.

21

Q.

What did you mean by that?

22

A.

I meant that the individuals that were coming to visit

23

needed to have expertise to give an appropriate assessment.

2848

06725

1

Q.

And that wasn't Mr. Stroebel?

2

A.

I did not know Mr. Stroebel so I did not know, at the time,

3
4

what his credentials were.
Q.

Okay.

And then, sometime between this email and early

5

February, you appointed CW5 Galaviz to conduct this independent

6

investigation into the Article 138 complaint filed by Private

7

Manning, correct?

8

A.

Yes.

9

Q.

Retrieving the exhibit from the witness.

Now after

10

receiving the Article 138 complaint on 19 January, you decided to

11

request CW5 Galaviz involvement in the process?

12

A.

Yes.

13

Q.

Can you tell me how and when you got him involved in the

14

138 process?

15

A.

In order for a thorough review, I went to the senior

16

individual -- corrections officer with Marine Corps and that was

17

Chief Warrant Officer Galaviz.

18

Q.

And that is why you went to him?

19

A.

Yes.

20

Q.

Did you appoint him to conduct an independent investigation

21

or to reaffirm the correctness of your decisions with respect to

22

Private Manning?

2849

06726

1

A.

It was a command directed.

There was a letter that was

2

provided to him specifically to look at what was in the letter.

3

I cannot recall very specifically what was written in the letter to

4

him but I know I wrote a letter to him.

5

Q.

Okay, now Chief Galaviz was included in all of these

6

previous emails, so did you expect him to do an independent

7

investigation or just to give you the green seal of approval.

8
9
10

A.

And,

I expected him to do his job which is independent

investigation and to submit whatever his findings were.
Q.

You expected that even though his bosses had already opined

11

that they were confident that everything was perfectly fine with how

12

Private Manning was being treated?

13

A.

His bosses may not have known the details.

14

to go down there to look into the details.

15

[The court reporter marked Appellate Exhibit 418N.]

16

Q.

He was expected

I am handing the witness what has been marked as 418N.

17

This is an email from you to Mr. Durham dated 7 February 2011,

18

correct?

19

A.

Yes.

20

Q.

Mr. Durham is one of CW5 Galaviz' bosses?

21

A.

Yes.

22

Q.

In your email, what do you say -- or excuse me, why do you

23

say that CW5 Galaviz would assist us in the 138 process?

2850

06727

1

A.

What are you referring to, here, specifically?

2

Q.

I am referring to your email where you say, CW5 Galaviz

3

would, "Assist us in the Article 138 process."

4

that?

5

A.

That he would do a review.

6

Q.

Okay.

What did you mean by

Can you also explain what you meant by, "This

7

inquiry by USMC Corrections expert is instrumental in showing,

8

documenting due diligence on my part"?

9

A.

That's correct.

10

Q.

What did you mean by that?

11

A.

Somebody independently coming in that did not have day to

12

day interaction or is not a part of the Brig staff would come in to

13

do a thorough review.

14

Q.

All right, on 7 February 2011, your Chief of Staff, Colonel

15

Kauzlarich wrote to you saying, "Wholeheartedly believe that CW5

16

Galaviz is the best guy for the investigation.

17

without prior approval from his boss?"

18

A.

Can you task him

His boss was within the chain, Mr. Jan Durham.

He was --

19

Jan Durham is the assistant to Mr. Geoffroy who is above Lieutenant

20

Colonel Wright.

21

Q.

Do you see where Colonel Kauzlarich writes what he said?

22

A.

Yes.

2851

06728

1
2
3
4
5
6

Q.

And, do you know why Colonel Kauzlarich wholeheartedly

believed that CW5 Galaviz with the best guy for the job?
A.

I can only speculate that he knew that he was the senior

individual within the Marine Corps that was a corrections officer.
Q.

Now you write back, "He is already approved -- or, already

have approval".

7

A.

Yes.

8

Q.

With an exclamation point?

9

A.

Yes.

10

Q.

Why do you use that?

11

A.

Because that conversation that I had with Mr. Durham was a

12

request.

13

discussed on the phone last week, the attached letter is an advanced

14

copy for Galaviz."

15

Chief of Staff was not aware of that conversation that I had.

16

assessed that Chief Warrant Officer Galaviz would be the best man for

17

the job and my reply back to him was, I already had the approval from

18

his boss.

19
20
21

Q.

The email that I sent to them, it states, "As previously

The

He

Right, but when I use an exclamation point, I am excited

about something.
A.

And so, that was based upon that discussion.

Were you excited about this?

The terms of the Chief of Staff being about a step or two

22

behind me, the different dialogue that we have had between the two of

23

them, he was normally very good, but that was one that I would say

2852

06729

1

that there was staff work that was done by me directly to Mr. Durham

2

because I was responsible for the 138.

3

was, that task is complete, I completed it.

So, that exclamation point

4

Q.

Okay, so you meant it as, it is done?

5

A.

It is done.

6

Q.

Okay.

7

moment.

8

one, correct?

9

[Pause].

10
11

Q.

I would like to talk more about CW5 Galaviz for

Now, CW5 Galaviz was involved in this case from really, day

He was involved in getting PFC Manning even to Quantico

Brig?

12

A.

Yes.

13

Q.

In fact, he was involved in and copied on some of the most

14

-- many of the significant events involving PFC Manning?

15

A.

Yes.

16

Q.

And he was included on the emails where his bosses

17
18
19
20

obviously opined that Manning was being treated fairly?
A.

The number of emails and how much, I cannot say, but from

some of the emails I have seen, he was, but not all.
Q.

Okay.

And, he was also included on emails where General

21

Amos, Major General Ary and others opined, including Lieutenant

22

General Flynn, that the Quantico Brig was doing everything right?

23

A.

Yes.

2853

06730

1

Q.

Did you believe that, based upon all that, he was really

2

somebody who, as you just said, was kind of an outsider of the

3

pretrial confinement facility and could give you an independence

4

assessment?

5

A.

As the senior corrections officer in the Marine Corps, yes.

6

Q.

Well, explain that to me because, I am not following.

I am

7

retrieving 418N from the witness.

8

give you an independent assessment if all of his bosses are -- he is

9

included on emails from his bosses saying that everything is fine at

10
11

Why would you think that he could

Marine Corps Base Quantico with regards to PFC Manning?
A.

Seeing things on an email and seeing things in person are

12

two different things and I felt that if he came down and saw it

13

firsthand, he would give an honest assessment.

14

Q.

And, you thought he would give an honest assessment in

15

spite of the fact that that Major General Ary, General Amos, General

16

Flynn, his three bosses all opined that everything was fine at

17

Quantico?

18

A.

In terms of looking in hindsight and reviewing all of that,

19

that was not something that I would consider -- considered at the

20

time to have any impact and I still do not.

21
22
23

Q.

Oh, so you would still not consider him to be somebody who

might be conflicted out of this?
A.

No.

2854

06731

1
2

Q.

Now, he certainly was not somebody that you would refer to

as an armchair quarterback, right?

3

A.

No.

4

Q.

Let us talk about the Article 138 complaint.

5

January 2011 ----

6

MJ:

7

TC[MAJ FEIN]:

8
9

On, 19

Yes?

Hold on just a minute.

Yes.

Your Honor, the government only asks for probably

a 10 or 15 minute recess, it has been about an hour and a half.
CDC[MR. COOMBS]:

10

MJ:

11

TC[MAJ FEIN]:

12

CDC[MR. COOMBS]:

13

MJ:

I have no objection, Your Honor.

All right, so a quarter of, then
Yes, Your Honor.
Yes, Your Honor.

All right, court is in recess until 4:45 or 1645.

14

[The Article 39(a) session recessed at 1632, 27 November 2012.]

15

[The Article 39(a) session was called to order at 1650, 27 November

16

2012.]

17
18
19

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.

20

Mr. Coombs?

21

CDC[MR. COOMBS]:

22
23

Yes.

Colonel Choike, I remind you, you are

still under oath.
WIT: Yes.

2855

06732

1
2

DIRECT EXAMINATION (continued)
Questions by the civilian defense counsel [MR. COOMBS]:

3

Q.

Colonel Choike, we left off talking just about -- we were

4

about to get into the Article 138 response.

5

that.

6

Article 138 complaint, correct?

So, let us talk about

On 19 January 2011, you were provided, from the defense, the

7

A.

Yes.

8

Q.

And you read that complaint?

9

A.

Yes.

10

Q.

And you responded to the complaint on 1 March 2011?

11

A.

Yes.

12

Q.

Did you draft your own response?

13

A.

My Staff Judge Advocate, Lieutenant Colonel Greer drafted

Q.

All right.

14
15

it.
And, Colonel Greer actually on the following

16

day, on the 20th January, sent you an email telling you that, "I

17

think our time is better spent, meeting to discuss the response once

18

I have had a chance to get a draft in front of you", correct?

19

A.

Yes.

20

Q.

And by this, is it accurate for me to say that Lieutenant

21

Colonel Greer drafted your response at least initially without your

22

input?

23

A.

Yes.

2856

06733

1

Q.

And, when did he provide you with that draft?

2

A.

I don't recall.

3

Q.

All right, can you tell me, once he gave you the draft,

4
5
6

what you did with it?
A.

Read it thoroughly, had several meetings and discussions to

get it to the final product.

7

Q.

Did you make any changes yourself to the draft?

8

A.

Yes.

9

There was some verbiage in a few paragraphs where

specifically I know that I spent time typing in wording in my words.

10

Q.

Okay, so it was word-smithing just as far as the tone of

11

the response?

12

A.

Content.

13

Q.

Can you tell us what content you changed?

14

A.

No, I can't recall very specifically but I know I spent

15

time at my computer looking in detail at some of the information that

16

he had listed in there that was not either completely accurate or

17

didn't fully describe the situation because he was not privy to that

18

information or did not have the details of that.

19

Q.

Can you provide us with one example of that?

20

A.

I can't without looking at the document.

21

Q.

All right.

22
23

Did you independently investigate any of the

facts that were within your -- the defense's Article 138 complaint?
A.

Described, "Independent investigation".

2857

06734

1

Q.

Yourself.

2

A.

Reading weekly reports and talking to Colonel Oltman, if

3
4

you consider that independent investigation, yes.
Q.

So after receiving the 138 complaint response -- or,

5

complaint, what I am asking is did you then, on your own, start

6

asking questions of people.

7

Q.

And who did you ask questions of?

8

A.

Colonel Oltman.

9

Q.

Did you ever speak to Chief Averhart about the 138

10

complaint?

11

A.

No.

12

Q.

How about Doctor -- Captain Hocter or Colonel Malone?

13

A.

No.

14

Q.

And why didn't you speak to Captain Hocter or Colonel

15

Malone?

16

A.

I was getting weekly updates from Captain Neill.

17

Q.

No, I meant once you got the 138 complaint, why didn't you

18

go speak to Captain Hocter or Colonel Malone about what was inside

19

the complaint?

20

A.

I didn't.

21

Q.

And, could you tell us why?

2858

06735

1

A.

I spoke with Captain Neill in terms of getting information,

2

in her weekly updates for information I'd had too.

3

requirement, I felt, to go talk to those two individuals.

4
5

Q.

There was not a

Can you tell us why you didn't speak to Chief Averhart

after receiving the 138 complaint?

6

A.

Because his response would be thorough and in writing.

7

Q.

So, instead of speaking to him about it, you believed that

8

you would just wait until he did a response?

9

A.

That is correct

10

Q.

Now, he did response on 24 January, did you actually then,

11

afterwards, speak to him?

12

A.

No.

13

Q.

And, why not?

14

A.

His response spoke for itself.

15

Q.

So, you thought he addressed all the issues in his 24

16

January response?

17

A.

Yes.

18

Q.

Now, you found that Chief Averhart did not abuse his

19

discretion and keeping PFC Manning in maximum custody and prevention

20

of injury, correct?

21

A.

Yes.

22

Q.

And, why do you believe that he did not abuse his

23

discretion?

2859

06736

1

A.

It is his authority to ensure the health and welfare of all

2

of the detainees and to provide a proper, safe and secure

3

environment.

4

Q.

That’s what he does.

That is what his job is.

No, but you had a 138 complaint to you saying that PFC

5

Manning was saying, "Hey, I am in max and POI and I shouldn't be."

6

And, you determine that Chief Averhart did not abuse his discretion.

7

Why do you believe that he did not abuse his discretion in keeping

8

PFC Manning on Max and POI?

9
10

A.

In part from his response and also from what Chief Warrant

Officer Galaviz had wrote in his response.

11

Q.

Why did you believe that Max and POI was appropriate?

12

A.

I believe that the Chief Warrant Officer Averhart was in

13
14

the best position to make that decision.
Q.

Okay, but do you have any reason on your own why you

15

believed the Max and POI was appropriate based upon your 138

16

response?

17

A.

Based upon the weekly updates that I received.

18

Q.

Anything in, you know, specifics that you can give us?

19

A.

Comments from the actual content from the reports from

20

Gunnery Sergeant Blenis or Staff Sergeant Jordan.

21

Q.

And, what do you recall from that?

22

A.

Their daily and weekly interaction with PFC Manning.

23

Q.

Okay, and can you tell us what you recall?

2860

06737

1
2
3
4
5

A.

Comments in regards to his actual behavior, interaction or

lack of interaction.
Q.

Okay, and can you give us a specific, like what -- so I

know why you thought Max and POI was appropriate?
A.

From the weekly reports, very specifically, what was

6

contained within there was information regards to the process.

Not

7

only the interaction that they had specifically with PFC Manning but

8

also the process of the classifications and assignments process.

9

But, very specifically, Chief Warrant Officer Averhart utilizing the

10

staff and utilizing the classification and assignment process to gain

11

all information to make that decision.

12

Q.

All right, let me approach it this way.

What did you have

13

that you heard that you said to yourself, "These facts, in my mind,

14

warrant that he should be in Max and POI"?

15

A.

His erratic behavior, the initial classification in regards

16

to the process in which they evaluate based upon the seriousness of

17

the charges, and these were bits and pieces from -- or information

18

from the SECNAV Instruction, the Navy Corrections Manual that talks

19

about the seriousness of the offense, the behavior, anything that

20

dealt with poor judgment from the past and poor or strained family

21

relationships.

2861

06738

1

Q.

2

some details.

3

behavior?

4

A.

So, let's take some of those, because it seems like we have
You said, erratic behavior, what was the erratic

In his cell, acting out, playing peek-a-boo, licking the

5

bars on the cell itself, different dancing, erratic dancing.

6

are the ones that I recall.

7

Q.

All right, so let us take those.

Those

The dancing and playing

8

peek-a-boo, do you know whether or not Colonel Malone or Captain

9

Hocter looked at those?

10

A.

I can only assume that the interaction and dialogue that

11

they had between the staff and the physicians -- psychiatrists coming

12

in, yes.

13

Q.

Did you ever receive a report that Captain Hocter and

14

Colonel Malone believed that that behavior was done by -- due to

15

boredom, being in his cell 23 hours a day?

16

A.

No.

17

Q.

Can you see, even being a layperson, can you see how

18

somebody in a six by eight cell, out of boredom, might dance or do

19

various things to keep his mind occupied?

20

A.

It's possible.

21

Q.

And you said the, "licking the bars".

22
23

from that?
A.

Just the description of that.

2862

What do you recall

06739

1

Q.

Do you recall when that was alleged to have occurred?

2

A.

November timeframe.

3

Q.

Of 2010?

4

A.

Yes.

5

Q.

And, with regards to that, do you recall Captain Hocter

6

opining that, if it did in fact occur, that was when he was

7

sleepwalking?

8

A.

No.

9

Q.

Did you ever receive any information that he was on

10

medication that caused sleepwalk?

11

A.

No.

12

Q.

Did you receive information as to the fact that the guards

13

who believe they saw this, saw it at night and woke him up and he

14

appeared startled at the time he was woken up?

15

A.

No.

16

Q.

So, you did not have any context to licking the bars other

17
18

than, licking the bars?
A.

That's not the only thing.

In that regard, the initial

19

information in terms of classification for maximum custody came with

20

the documentation that -- in which we received him early on.

21

you are talking about that process of determining, there is a

22

timeline that we are talking about here.

2863

So when

So, anywhere within those

06740

1

incidents that I am talking about right now happened within a

2

specific timeline.

3

Q.

Okay, and what time under those incidents happen?

4

A.

I assume -- or, I recall, in the November timeframe.

But,

5

when you are talking about maximum custody, initially, as far as his

6

assignment to and whether or not it is justified, had to do with the

7

seriousness of the charges, the behavior in which he displayed at the

8

previous location in Kuwait, the fact that he was already on suicide

9

risk when we received him and the fact that the doctor saw him on a

10

daily basis for the first 10 or 11 days that he was received and

11

agreed that he should be in maximum custody/suicide risk.

12

Q.

All right, so, let us break all of these down.

So, we'll

13

do this in two ways:

stuff that you knew before he came to you that

14

might warrant being in max and even suicide risk when he first gets

15

there, and stuff that happens since he has arrived.

16

looked at the weekly reports?

You said you

17

A.

Yes.

18

Q.

Did you see where week after week it was reported that he

19

had no disciplinary reports?

20

A.

Yes.

21

Q.

Did you see week after week where it was reported where he

22
23

had no adverse spot evaluations?
A.

Yes.

2864

06741

1
2

Q.

Did you see week after week where it was reported that he

had an average work performance and training?

3

A.

Yes.

4

Q.

Did you see week after week when it was reported that he

5

was polite, respectful and courteous to the staff?

6

A.

Yes.

7

Q.

Did you see week after week where it was reported that he

8

was adjusting well to confinement and was having no issues?

9

A.

Yes.

10

Q.

Did you see week after week where the mental health

11

professionals were recommending that he be taken off of POI?

12

A.

Yes.

13

Q.

All right, so, what did you see after looking at all that

14
15

that, in your mind, said, "You know what, he needs to be on POI"?
A.

Detailed descriptions from Gunny Blenis, the Programs

16

Chief, stating conversations or lack of conversations that he has

17

had, him being depressed, withdrawn.

18

Q.

19

period?

20

A.

Throughout his entire stay for the most part.

21

Q.

All right, so you, from your memory, the entire stay, Gunny

22

When is this, I mean can you give me a context for the time

Sergeant Blenis is saying that he is depressed, withdrawn?

2865

06742

1

A.

Not in each -- not in each case.

There were times that he

2

wrote that he was more talkative.

That there were different events

3

but then there were other times where there were dips in that regard.

4

Q.

Okay.

5

A.

Dips in his attitude or his willingness to be able to

6
7
8

participate in conversation.
Q.

All right, so dips in somebody not wanting to talk, and

then, was there something else from Blenis?

9

A.

No.

10

Q.

All right, so the fact that he was not so much of a

11

talkative detainee, that was one of your reasons why you are going to

12

put him in POI?

13

A.

No, I am not the individual that puts him in POI.

14

Q.

One of the reasons for you believed POI was appropriate?

15

A.

One of the reasons that POI is appropriate has to do with

16

the evaluation that you get from the classification and assignment

17

board.

18

process in which the C and A Board meets.

19

journals, which I did not how privy or copy to, his day-to-day

20

actions.

21

that are written down in a weekly report, but the process of a C and

22

A board meeting and advising Chief Warrant Officer Galaviz,

23

collectively, what he feels the assignment should be.

It is not strictly just from the weekly updates.

There is a

They discussed the

I am only referring to things that I recall and only things

2866

06743

1

Q.

And, I am just trying to get at your specifics of why you

2

believed Chief Averhart did not abuse his discretion.

3

some "odd behaviors".

4

talkative".

5

was documentation that he was depressed?

We talk about those.

So, we got

We have got, "not so

You also said, "depressed", where did you think there

6

A.

Comments from Gunny Blenis within the weekly reports.

7

Q.

And how frequently, from your memory, do you think Gunny

8

Blenis said he was depressed?

9

A.

It was probably more frequent than not.

10

Q.

And that is your memory?

11

A.

Yes.

12

Q.

Okay.

13

Anything else during this time when he was at the

Quantico Brig?

14

A.

No.

15

Q.

Okay.

16

he got there.

17

you on suicide risk?

Now let us talk about the stuff that happened before

You said you were aware of the fact that he came to

18

A.

Yes.

19

Q.

And you said, "Hey, the doctors looked at him for, you

20

know, 10 or so days consecutively and they were making

21

recommendations that he stay on maximum and suicide risk"?

22

A.

Yes.

23

Q.

And, you were listening to the doctors?

2867

06744

1

A.

Yes.

2

Q.

And, these same doctors then within a couple of weeks

3

started making recommendations to pull him off of POI?

4

A.

Yes.

5

Q.

And, you were not listening to the doctors?

6

A.

It was not my position to listen to them, that was Chief

7
8
9
10
11
12
13

Warrant Officer Averhart's responsibility.
Q.

Sure, but he was briefing that up to you that he wasn't

listening to the doctors then?
A.

No, he did not brief that to me.

He was taking that into

account.
Q.

Well, in his weekly reports to you he would say what the

doctors recommended and what his ultimate disposition was, right?

14

A.

Yes, after conferring with the C and A board.

15

Q.

Sure.

16
17
18

And that C and A board is made up of some of the

guards at the Facility?
A.

Not the guards; the staff NCOs, the Program Chief, the

Operations Chief, the Security Chief, the Admin Chief ----

19

Q.

At the Facility?

20

A.

At the Facility, yes.

21

Q.

Okay.

So, what -- after getting the doctors making the

22

recommendation to take him off of POI, did you ever ask Averhart why

23

that recommendation did not cause him to remove him from POI?

2868

06745

1

A.

2

Instruction.

3

the same time that there was correspondence between myself and

4

General Flynn.

5

point.

6

as well as looked at with the Brig SOP stated.

7

forwarded to General Flynn.

8

Brig OIC has the authority to take all information and to make the

9

decision in terms of ultimately what his classification and

10
11
12

Never asked him directly but looked at the SECNAV
When we are talking about the August time-frame it was

I had no knowledge previously up to that particular

I did my own research in terms the SECNAV Instruction stated
And, the Brig SOP was

And, Brig SOP clearly stated that the

assignment is.
Q.

Yeah, that is true, but in the 138 complaint you're being

asked to review that decision, right?

13

A.

Yes.

14

Q.

Okay, so, what did you look at other than the SECNAV

15

telling you that hey this -- the OIC can make this call.

16

you look at to see if he had abused his discretion?

17

A.

The comments coming from Chief Warrant Officer Averhart in

18

the weekly reports.

19

Galaviz information.

20

Q.

What did

Okay.

And I also looked at Chief Warrant Officer

All right, so the weekly reports now, let us talk

21

about -- we talked about in relation to suicide risk or POI, let's

22

talk about in relation to max.

23

Instruction is you are aware of, probably, after reviewing it, is for

Maximum custody under the SECNAV

2869

06746

1

the violent and dangerous detainees or escape risk detainees,

2

correct?

3

A.

Yes.

4

Q.

And the SECNAV Instruction talks about the fact that only

5

very few detainees should be on max because of the fact that it is a

6

resource drain on the Brig?

7

A.

Yes.

8

Q.

And, also talked about the fact that max detainees are

9
10

again, are for those that are very violent, very dangerous or high
escape risks, correct?

11

A.

Yes.

12

Q.

Now, during the time that PFC Manning got there, from 29

13

July, and let's just go to the date of December.

14

six-month period of time almost.

15

to your knowledge?

So, there is a good

Did PFC Manning ever try to escape,

16

A.

No.

17

Q.

Did PFC Manning ever assault any guards to your knowledge?

18

A.

No.

19

Q.

Did he ever try to assault anybody to your knowledge?

20

A.

No.

21

Q.

Was he disrespectful to anyone to your knowledge?

22

A.

I think I recall one occasion where it was in a report,

23

yes.

2870

06747

1

Q.

Tell us about what you recall?

2

A.

Where he was given instructions and he acted out.

3

Q.

Oh, you are talking about the 18 January incident?

4

A.

Yes.

5

Q.

Okay, I am talking, up to December?

6

A.

No.

7

Q.

So, any place where he was disruptive at all?

8

A.

No.

9

Q.

So, what were you looking out between basically the time

10

that he got there to the time that you got the complaint to say that

11

those month time periods where he was there that max was an

12

appropriate classification for him?

13

A.

The seriousness of his charges, the past behavior where he

14

showed the possibility of inflicting harm on himself.

15

in terms of what was associated with the charges as well as issues

16

that dealt with information in terms of his relationship with his

17

family.

18

Q.

19
20

Okay, so let's break those down.

Poor judgment

So, his seriousness of

the charges, why was that an important factor for you?
A.

It was not an important factor for me, it was for the most

21

part what he was being charged with.

22

he did and what he was facing.

2871

I mean, the very fact of what

06748

1
2

Q.

Well, I'm going through factors you have just listed for

why you thought max appropriate?

3

A.

Yes.

4

Q.

So, seriousness of the charges, why did you think that was

5

a factor for max being appropriate?

6

A.

SECNAV Instruction says that is one of the criteria.

7

Q.

Okay.

8

A.

Yes.

9

Q.

All right.

10

And, that was your only basis?

And then, you then said also, his family

relations, what was that?

11

A.

That is also the SECNAV Instruction.

12

Q.

No, but, tell me what was that factor for you?

13

A.

That factor was for me, it was just information that was

14
15
16
17
18
19
20
21

presented at the time that he was received.
Q.

Okay.

And then, what were the other two factors?

I know

you had two more?
A.

His display of poor judgment and poor behavior that led to

suicide intentions.
Q.

Okay, so poor judgment and poor behavior, that is all

talking about stuff that happened before he got to you?
A.

It is associated with charges.

2872

06749

1

Q.

No, I know, but you are not saying poor behavioral or poor

2

judgment during the time period that he is in your confinement

3

facility?

4

A.

Correct.

5

Q.

All right, so that is all before.

So, I'm looking at those

6

factors, I see the seriousness of the charges; you would agree with

7

me that he can't do much about that?

8

A.

That's correct.

9

Q.

The poor family relationships, you would agree, I guess he

10

might be able to do something about that but some people have poor

11

family relationships, right?

12

A.

Correct.

13

Q.

And, the conduct in Kuwait, that was stuff that got him in

14

suicide risk, appropriately so, and probably kept him in that when he

15

first got to you but he cannot really do anything about what he did

16

in the past?

17

A.

Yes.

18

Q.

So, those are the factors you are looking out for max?

19

A.

Yes.

20

Q.

Okay.

21

All right, so let's continue.

Did you inform

Lieutenant General Flynn about the Article 138 complaint?

22

A.

Yes.

23

Q.

And, what did you tell him?

2873

06750

1

A.

There was not any specific conversation.

He knew through

2

legal channels.

3

with Colonel Miner but there was no personal conversation that I had

4

with General Flynn that I recall.

5

[The court reporter marked Appellate Exhibit 418O.].

6

Q.

Colonel Greer talked, I am sure, quite frequently

I am handing you what’s been marked as Appellate Exhibit

7

418O; if you would look at that for a moment.

8

[The witness reviewed the exhibit.]

9

Q.

This is an email from Mr. Geoffroy, one of CW5 Galaviz'

10

bosses to you, dated 21 January 2011.

And, at the the very top and

11

it simply states, "As discussed", do you see that?

12

A.

Yes.

13

Q.

Do you know what you discussed with Mr. Geoffroy?

14

A.

I don't recall.

15

Q.

All right, can you look down at the email below, apparently

A.

That is what, I just spent a lot of time reading it.

16
17

---I am

18

having a hard time finding the connection between Major General Ary

19

speaking directly to General Flynn who has Mr. Geoffroy and the

20

lawyers, yours and Colonel Miner.

21

Q.

Let's talk about that lower email.

Do you know why major

22

General Ary would be discussing the PFC Manning Article 138 complaint

23

with General Flynn?

2874

06751

1

A.

No.

2

Q.

And Major General Ary apparently received his copy of the

3

138 complaint from the Lieutenant General Chipman, do you see that?

4

A.

Yes.

5

Q.

And, Lieutenant General Chipman is the Judge Advocate

6

General of the United States Army, do you see that?

7

A.

Yes.

8

Q.

Do you know why Lieutenant General Chipman would be

9

dropping off a copy of the complaint to Major General Ary?

10

A.

No.

11

Q.

Was there any discussion between you and General Flynn

12

about the 138 complaint after this email?

13

A.

No.

14

Q.

Did you talk to Lieutenant Colonel Greer about this?

15

A.

I did in the manner in which I wrote the email.

16
17
18

It says,

"Has Colonel Miner brought you in the loop", in this email.
Q.

Yeah, what did you talk to Lieutenant Colonel Greer about,

with this?

19

A.

I don't recall.

20

Q.

Now, Lieutenant Colonel Greer is your SJA, right?

21

A.

Yes.

22

Q.

So at this point, you do not recall what you discussed with

23

Mr. Geoffroy or what you discussed with Lieutenant Colonel Greer?

2875

06752

1

A.

No, I do not.

I mean, Lieutenant Colonel Greer and I have

2

worked -- as previously stated on the Article 138.

What the lawyers

3

did behind the scenes in terms of sharing information, I was not

4

privy to.

5

this as discussed", other than the fact that there was an email that

6

I did send Mr. Geoffroy that I recall very specifically about

7

assisting in the sharing -- or the funneling of information because

8

we were getting hit from many different angles and that the request

9

for information that I asked for from Mr. Geoffroy's assistance to be

I don't recall why Mr. Geoffroy would have said, "Sent

10

able to -- to at least funnel things through, to let me know.

11

this could be as a result of that email that I sent him.

12

email of me sending it to Chris it asking if he was brought into the

13

loop, probably because just as I was not included in terms of why

14

General Ary would talk to General Flynn directly and Mr. Geoffroy, I

15

am not sure why.

16

not something he spoke to me about.

17

Q.

Okay.

In this

And I wanted to know if Chris did because that is

And so, you say -- I am retrieving 418O from the

18

witness.

19

that you do not recall because it has been a long time?

When you say you cannot recall, it would be fair to say

20

A.

That email chain does not make any sense.

21

Q.

And that is because it has been a long time?

22

A.

It is, in part, yes.

23

And,

But in reading it, doesn't make any

sense in terms of the flow.

2876

06753

1
2

Q.

Sure, but at the time though of receiving that email, it

would have made sense though?

3

A.

It would have at the time, yes.

4

Q.

Now, one of the issues in the Article 138 complaint is the

5

fact that on two separate occasions Chief Averhart kept PFC Manning

6

on suicide risk over the recommendations of Captain Hocter, correct?

7

A.

Yes.

8

Q.

And you believed at the time that Chief Averhart, by doing

9

that, he had the authority to do so?

10

A.

Yes.

11

Q.

And, at the time of your 138 response, you believed that it

12

was appropriate for Chief Averhart to have kept PFC Manning on

13

suicide risk over the recommendations of Captain Hocter?

14

A.

Yes.

15

Q.

And, even now, I guess, as you sit there on the stand, you

16

still believe it was appropriate?

17

A.

Yes.

18

Q.

But, I guess between -- at the time of Chief Averhart doing

19

this and now, you may have been made aware of the SECNAV Instruction

20

on this, haven't you?

21

A.

Yes.

22

Q.

And, you were told, and it is under the SECNAV Instruction

23

1640.9(c), and it states, "When prisoners are no longer considered to

2877

06754

1

be a suicide risk by a medical officer, they shall be returned to

2

appropriate quarters"?

3

A.

Yes.

4

Q.

You are aware of that, right?

5

A.

Yes.

6

Q.

And, if I understand you correctly, you believe that just

7

because the SECNAV Instruction says, "shall be done", that that does

8

not mean immediately?

9

A.

Those are the words that Chief Warrant Officer Galaviz used

10

was, "immediately", and I non-concurred with that in my Article 138

11

response.

12
13

Q.

So, is your answer that because the SECNAV Instruction

says, "shall be done", that that does not mean immediately to you?

14

A.

Yes.

15

Q.

You believe that that leaves some interpretation as to when

16
17

a detainee needs to be taken off of suicide risk?
A.

Not interpretation, it left it to the process that Chief

18

Warrant Officer Averhart was using the classification and assignment

19

board to meet to get information.

20

recommended and observations from his board, to make -- ultimately

21

make the decision.

22
23

Q.

It included what the doctor had

All, CW5 Galaviz said that, "shall be" means immediately,

right?

2878

06755

1

A.

That is what he said.

2

Q.

You believed immediately, or "shall be done" does not mean,

3

immediately?

4

A.

That is correct.

5

Q.

So, that would leave it open to interpretation in your

7

A.

Yes.

8

Q.

And Chief Galaviz concluded that CW4 Averhart violated the

6

9
10
11

mind?

SECNAV Instruction by not immediately removing PFC Manning from
suicide watch?
A.

He was not following solely the SECNAV Instruction.

He was

12

following the Brig SOP which stated that he has the authority to take

13

that information into account, then to make the decision.

14

Q.

Listen my question.

My question was, "Chief Galaviz

15

concluded that CW4 Averhart violated the SECNAV Instruction by not

16

immediately removing PFC Manning from suicide watch?"

17

A.

He did not adhere to it.

18

Q.

So that is a yes?

19

A.

Yes.

20

Q.

And, as we covered, you disagree with Chief Galaviz?

21

A.

Yes.

2879

06756

1

Q.

And, even at this time, and even after having the ability

2

to see the 138 response, you still believe that Chief Averhart did

3

nothing wrong?

4

A.

Correct.

5

Q.

Now, on 2 March 2011, you were informed by Lieutenant

6

Colonel Greer of additional charges being referred against PFC

7

Manning, correct?

8

A.

Yes.

9

Q.

And, Lieutenant Colonel Greer found out about these new

10

charges on the same day that he informed you?

11

A.

Yes.

12

Q.

And you believed that you did not have sufficient notice

13

from the Army regarding these additional charges?

14

A.

That's correct.

15

Q.

And why did you feel that way?

16

A.

In an effort to ensure that all of the appropriate medical

17

staff, as well as Brig staff, were advised because it could

18

potentially mean that there was going to be an outbreak and change in

19

behavior in PFC Manning.

20

Q.

Okay.

And, you were also, in addition to the charges, you

21

were aware your Article 138 response was going to be served on PFC

22

Manning?

23

A.

Yes.

2880

06757

1
2

Q.

And based on your review of the 138 response, you knew that

that was going to be denying the relief that PFC Manning was seeking.

3

Q.

I am not sure the connection.

4

Q.

What I am saying is based upon the fact you knew what your

5

138 response was, you knew that the 138 response would notify PFC

6

Manning that his requested relief was being denied?

7

A.

Yes.

8

Q.

And that he would remain on max and POI?

9

A.

Yes.

10

Q.

You then sent an email saying that you believe that the new

11

charges and the 138 response would cause the Brig Marines to be on a

12

heightened state of awareness, do you recall that?

13

A.

Who wrote that?

14

Q.

You.

15

A.

I do not recall that.

16

[The court reporter marked Appellate Exhibit 418P.]

17

Q.

I am handing the witness what has been marked as Appellate

18

Exhibit 418P.

19

A.

Yes.

20

Q.

You see where you state there that you believe the new

If you would take a look at the bottom email?

21

charges and your 138 response would cause the Brig Marines to be in a

22

heightened state of awareness?

23

A.

Yes.

2881

06758

1

Q.

And, this is when Lieutenant Colonel Greer informed you

2

that Chief Barnes had determined that she would remove PFC Manning's

3

underwear due to comments made by him to Brig staff?

4

A.

Yes.

5

Q.

Lieutenant Colonel Greer, your SJA, then writes, as Dr.

6

Seuss would say:

"I can wear them in a box, I can wear them with a

7

fox.

8

can't wear them at night, my comments gave the staff a fright."

9

you see that?

I can wear them in the day, I can wear them so I say, but I
Do

10

A.

Yes.

11

Q.

Did you believe that the removal of PFC Manning's underwear

12

was something to be joked about?

13

A.

No.

14

Q.

When Lieutenant Colonel Greer told you about the decision

15

to strip Private Manning at night, he said, "This may become another

16

media issue as Manning may bring it up with his attorney."

17

see that?

18

A.

Yes.

19

Q.

I am retrieving 418P from the witness.

Do you

Now you wanted

20

Colonel Rick Malone to be present when PFC Manning was informed of

21

the new charges and your 138 response, correct?

22

A.

Yes.

2882

06759

1
2

Q.

And Colonel Rick Malone was at that time, the forensic

psychiatrist for the Brig?

3

A.

Yes.

4

Q.

He had replaced Captain Hocter?

5

A.

Yes.

6

Q.

And you said in an email to Colonel Kauzlarich, your Chief

7

of Staff, stating that we need to, "Get a full court press from our

8

medical professionals to assist us in getting Colonel Malone down

9

here ASAP"?

10

A.

Yes.

11

Q.

Do you recall that?

12

A.

Yes.

13

Q.

And what did you expect Colonel Kauzlarich to do?

14

A.

To be able to make contact with his chain of command to

15
16
17

figure out the whereabouts of Doctor Malone.
Q.

And Colonel Malone, to your knowledge, was scheduled to see

PFC Manning on March 4th?

18

A.

Yes.

19

Q.

And you wanted him to be seen on the 3rd, right?

20

A.

I wanted him to be seen on the day that the charges were

21
22
23

preferred.
Q.

And, why were you so concerned in getting Colonel Malone to

see PFC Manning on March 3rd?

2883

06760

1

A.

Because of the seriousness of the charges and the charges -

2

- I believe one of the charges had either life or death as a part of

3

the maximum punishment.

4
5

Q.

Okay, and so, you believe that the fact that Colonel Malone

wasn't present was problematic?

6

A.

Yes.

7

Q.

And you also believe that this was due to not receiving

8

sufficient advance notice of the additional charges?

9

A.

Yes.

10

Q.

Now, on 4 March, you sent Lieutenant General Flynn an email

11

notifying him of the decision to remove PFC Manning's underwear at

12

night, do you recall?

13

A.

Yes.

14

Q.

And along with your email, you sent a copy of the New York

15

Times article that discussed the requirements of PFC Manning to stand

16

outside of the cell naked, do you recall that?

17

A.

Yes.

18

Q.

And you informed General Flynn that Colonel Malone would be

19

seeing PFC Manning on that day?

20

A.

Yes.

21

Q.

And Lieutenant General Flynn responded to you to within 6

22

minutes of you sending your email that, "It would be good to have the

2884

06761

1

leadership have a heads-up on these types of things before they are

2

read in the Early Bird."

Do you recall that?

3

A.

Sure do.

4

Q.

And he used an exclamation point on that?

5

A.

Yes.

6

Q.

And the Early Bird is basically a military synopsis of all

7

of the news stories from various press releases, right?

8

A.

Yes.

9

Q.

And that is what commanders usually would use to see what

10

the news is of that day?

11

A.

Yes.

12

Q.

Now, how do you interpret Lieutenant General Flynn's email

13

to you that it would be nice for the leadership to have a heads up on

14

these types of things?

15
16
17
18
19
20
21
22

A.

Because he was not informed.

He read it in the newspaper.

That was his first account.
Q.

All right.

So, he wanted to be informed of those details

ahead of time?
A.

He wanted to be informed from the chain of command before

he read it in the newspaper, yes.
Q.

All right.

And, what did you believe Lieutenant General

Flynn was concerned about at this point?

2885

06762

1
2

A.

His concern was not being able to answer from senior

officials asking questions, senior officers asking questions of him.

3

Q.

Okay, so he was getting questions from people above him?

4

A.

Yes.

5

Q.

And so, I imagine that he was caught blindsided not knowing

6

what the issue was?

7

A.

Yes.

8

Q.

Now, later that same morning, you received an update on the

9
10

status medical support for PFC Manning from Captain Neill, do you
call that?

11

A.

On what day?

12

Q.

That same morning, that would be on March 4th?

13

A.

Yes.

14

Q.

And she informed you that she was able to speak with

15

Colonel Malone on 3 March to express the command's concerns regarding

16

PFC Manning?

17

A.

Yes.

18

Q.

She also informed you that Colonel Malone told her that,

19

"From a medical perspective, there was no cause for urgency or

20

emergency"?

21

A.

Yes.

2886

06763

1

Q.

And, he basically said what was conveyed to him from the

2

Brig Duty Corpsman did not cause him to be concerned as the forensic

3

psychiatrist?

4

A.

5
6
7

He was not there personally and he was basing that upon a

phone call.
Q.

Okay, but my question was, he informed Captain Neill that

he was not concerned based on what he was told?

8

A.

That is correct, yes.

9

Q.

Now, Captain Neill conveyed to you that she was not

10

satisfied with Colonel Malone's response?

11

A.

Yes.

12

Q.

And she told you that she was diligently working through

13

the medical channels to convey this sense of urgency, the heightened

14

risk and the visibility of this case?

15

A.

Yes.

16

Q.

Did you understand what Captain Neill meant by, "Sense of

17
18

urgency and heightened risk"?
A.

The sense of urgency was a sense of urgency that I had

19

placed upon her to try and get Doctor Malone or someone that was

20

qualified to come down to see PFC Manning.

21

Q.

And what about the heightened risk?

22

A.

The heightened risk had to do with his behavior and the

23

potential risk for suicide.

2887

06764

1
2

Q.

Okay.

And, did you understand what Captain Neill meant by,

"visibility of this case"?

3

A.

No.

4

Q.

20 minutes after receiving Captain Neill's email, you sent

5
6
7
8
9

a follow-up email to Lieutenant General Flynn, do you recall that?
A.

Well, it will be that visibility, the visibility of senior

officials, yes.
Q.

Okay, you informed Lieutenant General Flynn that Colonel

Malone had not arrived yet at the Brig?

10

A.

Correct.

11

Q.

You also informed him that Colonel Coffman had not returned

12

your calls or your messages from the previous day or the message that

13

you sent on that day?

14

A.

Yes.

15

Q.

And Colonel Coffman was the Army Convening Authority for

16

the case of the time?

17

A.

Yes.

18

Q.

You told General Flynn that Colonel Malone did not believe

19

that the perceived issue with PFC Manning was either a pressing or

20

emergent issue, correct?

21

A.

Yes.

2888

06765

1

Q.

And, you then told Lieutenant General Flynn that Captain

2

Neill's assessment captured the essence of the issue dealing with the

3

Army medical health support?

4

A.

Yes.

5

Q.

At this point, you were even considering transporting PFC

6

Manning to Walter Reed?

7

A.

I could not make that call.

8

Q.

Didn't you indicate that you were considering transporting

9
10
11
12
13

him to Walter Reed at that point?
A.

If we could not receive a psychiatrist to come down to

provide the appropriate mental health care, yes.
Q.

And so, when you were considering that, Walter Reed would

be the site for it -- at Walter Reed?

14

A.

Yes.

15

Q.

Now, you did inform General Flynn when Colonel Malone

16

actually did go see PFC Manning, right?

17

A.

When who did?

18

Q.

When Colonel Malone.

19

A.

Yes.

20

Q.

And you told General Flynn that Private Manning was doing

21

well, appeared in good spirits and had been taken off of medication

22

for anxiety disorder due to its improved status?

23

A.

Yes.

2889

06766

1
2

Q.

You also informed General Flynn that PFC Manning, "Recent

actions and statements are not related to any mental disorder?

3

A.

Yes.

4

Q.

And what did you mean by that?

5

A.

That was just based upon the information that came from

6

Doctor Malone.

7

Q.

And what did you understand that information to mean?

8

A.

To be honest with you, I do not know.

9

psychiatrist.

10
11

I am not a forensic

I am just relaying the information that was relayed to

me through the staff.
Q.

Okay, so when Colonel Malone says the recent actions and

12

statements were not related to any mental disorder, you weren't for

13

sure what he was talking about?

14

A.

Well, there was ongoing treatment the entire time and I

15

wasn't privileged to exactly the treatment that he was given, the

16

prescriptions were taking place, the dialogue that took place between

17

Colonel Malone and Captain Hocter prior to.

18

information between the information between the doctors and the

19

patient.

20

Q.

I was not privy to this

I understand that, but you are being informed the recent

21

actions and statements are not related to any mental disorder.

22

did not understand what they meant by that?

2890

You

06767

1

A.

Yes.

For the outburst and from PFC Manning and then for

2

the doctor to be able to take him off the medication, the way I took

3

it that there was no connection between that type of treatment that

4

he was receiving and his outburst from receiving the additional

5

charges.

6
7

Q.

Okay.

You told General Flynn that PFC Manning's recent

comments and behavior have the entire Brig staff concerned?

8

A.

Yes.

9

Q.

And why did you believe that the entire Brig staff was

10
11
12

concerned?
A.

They would be concerned because they were words about how

to commit suicide.

13

Q.

And, what did you understand the words being?

14

A.

To use the waistband of his underwear or flip flops.

15

Q.

Okay, and what were you told that PFC Manning said and how

16
17

he said it?
A.

That, if I recall specifically, I have everything that I

18

need right here to be able to harm myself.

19

underwear can do this.

20

Q.

The waistband of the

Were you told that at the time of the conversation that

21

this statement came out that PFC Manning speaking to Master Sergeant

22

Papakie?

23

A.

Yes.

2891

06768

1
2

Q.

And, actually if you could correct me on this and see if it

is right, is it P-A-P-A-P-K-I-E or P-A-P-A-K-I-E?

3

A.

P-A-P-A-K-I-E.

4

Q.

P-A-P-A-K-I-E, okay thank you.

So, at the time, were you

5

informed that Master Sergeant Papakie was speaking to PFC Manning and

6

PFC Manning was saying, "Hey, I just want to know why I am still on

7

POI and what I can do to get off of POI."

Were you told about that?

8

A.

Yes.

9

Q.

And, that's when PFC Manning said, "Look, you know, this is

10

kind of absurd, but if I wanted to, if I really wanted to harm

11

myself, I could do so with the waistband of my underwear or my flip-

12

flops?

13

A.

Yes.

14

Q.

And, were you informed that at the time that PFC Manning

15

said that he was smiling?

16

A.

No, I was not.

17

Q.

Okay, were you informed at the time PFC Manning said that,

18

it was just a general conversation?

19

A.

No.

20

Q.

Were you informed at the time that PFC Manning said that,

21

that Master Sergeant Papakie did not say anything to him to indicate

22

that he was alarmed or troubled by the statement?

2892

06769

1

A.

He was alarmed because he went to Chief Warrant Officer

2

Barnes and her thoughts were, the fact of the original statement when

3

he was brought in, where he said -- asked about suicidal thoughts or

4

ideations, "always planning, never acting".

5

Q.

Again, listen to my question though, Colonel Choike, were

6

you informed that at the time that PFC Manning made that statement to

7

Master Sergeant Papakie, that he did not indicate to PFC Manning in

8

any way that he was alarmed or upset?

9

A.

No, I was unaware of that.

10

Q.

And so, then after apparently getting this statement

11

reported to you, did you speak to Chief Barnes about the statement?

12

A.

No.

13

Q.

Did you speak with Master Sergeant Papakie?

14

A.

No.

15

Q.

Did you speak with Colonel Oltman about the statement?

16

A.

Yes.

17

Q.

And, what did you say to him?

18

A.

His comments were more of one briefing to me to put content

19

or context to what was being reported.

20

Q.

Okay, and what context or content did he report to you

21

A.

Just describing the fact that it was reported to Master

22

Sergeant Papakie and he informed and contacted Gunny Blenis and they

23

had briefed Chief Warrant Officer Barnes on the information, the

2893

06770

1

actions that were taking place, the things that were said.

2

actions and conduct also that led up to those -- that discussion

3

between him and Master Sergeant Papakie.

4

in, I guess, the information in terms of what took place between the

5

staff at the Brig.

6
7

Q.

His

Colonel Oltman had filled

So am I correct in saying that the knowledge that you had,

you only got from Colonel Oltman?

8

A.

Yes.

9

Q.

And then, do you know where Colonel Oltman got his

10

information?

11

A.

Directly from the Brig staff.

12

Q.

And that would be?

13

A.

Chief Warrant Officer Barnes, Master Sergeant Papakie and

14

Gunny Blenis, he would frequently go down there and visit or talk to

15

them on the phone.

16

Q.

And again, just for our edification, the reason why Colonel

17

Oltman would do that was because he was the Security Battalion

18

Commander, right?

19

A.

Security -- Within the chain of command, yes.

20

Q.

And so, he had oversight of the Brig, correct?

21

A.

Yes.

22

Q.

Now, did you believe that Colonel Malone, the forensic

23

psychiatrist, was also concerned about these comments?

2894

06771

1

A.

The comments from who?

2

Q.

The ones we are referring to, the comments about the

3

underwear from PFC Manning?

4

A.

Yes.

5

Q.

You believed that he was also concern about it?

6

A.

No, I do not believe that.

7

Q.

And what do you -- what knowledge do you have to say ----

8

A.

I don't have any knowledge of him having a statement or

9
10

making a statement that he would be concerned.
Q.

Okay, were you informed that Colonel Malone said that that

11

statement was just PFC Manning intellectualizing the absurdity of the

12

POI conditions?

13

A.

No.

14

Q.

Now, you did know -- so you were never told about that?

15

A.

No.

16

Q.

Would that have made a difference to you if you knew that

17

the forensic psychiatrist was saying that this was just a statement

18

about the absurdity of the conditions?

19

A.

It was not absurd to the people there at the Brig who spent

20

24 hours a day, 7 days a week, and from the person, the Brig OIC that

21

is in charge, no.

22

comments and their concerns.

I wouldn't say it was absurd because of their

2895

06772

1

Q.

No, no, no, what I said was, would it be significant to you

2

if the Brig psychiatrist told you that, "Look this was just PFC

3

Manning commenting on how absurd the conditions were and not

4

indicating an intent to do anything"?

5

A.

Again, you are asking me, the absurdity of the conditions

6

of people being there 24/7, being a part of what was actually in the

7

act of happening and someone that was coming in after a later point

8

in time and assessing that it is not that bad.

9

saying?

10

Q.

Did you see what I am

I don’t, but let me rephrase it to see if maybe my

11

confusion -- my question is confusing.

12

difference to you if you heard from the Brig psychiatrist, you know,

13

the subject matter expert, that the statements that were made were

14

not a statement of intent to harm one's self but simply a statement

15

of intellectualizing the absurdity of the conditions.

16

make a difference to you if that’s the report you got from the

17

forensic psychiatrist?

18
19
20
21

A.

For you, would make a

It wouldn't make a difference to me.

Would that

The important thing

is would it make a difference to Chief Warrant Officer Barnes?
Q.

Well, you are also reviewing this under the 138 complaint,

so I am asking you, from your perspective.

22

A.

Yes.

23

Q.

Would that make a difference to you?

2896

06773

1

A.

No.

2

Q.

And, why not?

3

A.

Because of the amount of information that came from staff,

4
5

the Brig staff.
Q.

Okay.

So that information, in your mind, would outweigh

6

the forensic psychiatrist telling you that it was not a statement of

7

intent to harm?

8
9

A.

Would not weigh, it would be taken into account.

be taken into account.

It would

Again, I am going off of exactly how the

10

actions took place, who observed it, how it was reported and where

11

Doctor Malone was in this whole process.

12

Q.

Okay, we will talk about the doctors in a moment more, I

13

guess.

14

You indicated, or at least you saw an email, where PFC Manning was

15

being removed from his medication.

Let me go back to some other facts to see if you are aware.

Do you recall that?

16

A.

Yes.

17

Q.

And, that was a medication for any anxiety, correct?

18

A.

Yes.

19

Q.

And, do you know why he was being removed from his

20

medication?

21

A.

No.

22

Q.

Were you informed that he was being removed because of the

23

fact that, you know, he no longer needed it?

2897

06774

1

A.

It may have been written in the weekly update, yes.

2

Q.

Now, you informed Lieutenant General Flynn that PFC Manning

3

would remain in the same status, Max and POI, correct?

4

A.

Yes.

5

Q.

You also informed Lieutenant General Flynn that PFC

6

Manning's handling instructions would remain the same?

7

A.

Yes.

8

Q.

This meant that he would be required to strip at night?

9

A.

Yes.

10

Q.

And you did not change the handling instructions after

11
12
13
14
15

Colonel Malone's assessment?
A.

Is not my position to change the handling instructions,

that is the Brig OIC's responsibility.
Q.

Well, as an installation commander, you have the authority

to tell the Brig OIC what to do, right?

16

A.

No, I do not.

17

Q.

You believe you have the authority?

18

A.

I am overall responsible for, but I wouldn't act upon that

19
20
21
22
23

authority because I am not there.
Q.

Again, listen to my question.

As the Base Commander, you

have the authority to tell Chief Averhart or Chief Barnes what to do?
A.

I have the responsibility, but the authority, the

authority, I don't believe I have that, to direct specifically the

2898

06775

1

Brig OIC for classification and assignment instructions because I am

2

not there.

3

authority, personally I feel I did not have the authority to make

4

that call.

5
6
7

Q.

Now whether or not it is written that way, that I had the

Do you recall telling me that just the opposite; that you

believed you personally had the authority to make that call?
A.

I recall telling you very specifically that I was

8

responsible as the Installation Commander but not having the

9

authority to make that call.

10
11
12

Q.

Okay, so, now your testimony is you have the responsibility

but not the authority?
A.

Overall I am responsible.

Overall I am responsible, but to

13

actually make decisions that deal with a detainee in the Brig, I did

14

not act upon or think that I had that authority to be able to do

15

that, no.

16

Q.

So, if I understand your testimony that your testimony, as

17

the Marine Corps Base Quantico Installation Commander, you could not

18

say to the Brig OIC to do something because you did not have the

19

authority when it came to a detainee?

20

A.

If it was something egregious, yes.

21

Q.

So, if it were egregious, if the Brig OIC was chaining

22

somebody up naked to a radiator, you would believe you have the

23

authority to order him to remove that?

2899

06776

1

A.

Yes.

2

Q.

So in this instance, because it was not egregious in your

3

mind, you did have the authority?

4

A.

I did not act upon that.

5

Q.

So you had the authority?

6

A.

Yes.

7

Q.

All right.

So, do you know if the conditions for PFC

8

Manning were ever changed during his remainder of time, from March

9

3rd or March 2nd, to April 20th when he left Quantico?

10

A.

No.

11

Q.

No, meaning you do not know, or no, his conditions were not

12

changed?

13

A.

His conditions were not changed.

14

Q.

Now, on the morning of 3 March 2011, PFC Manning was

15

standing naked outside of the cell for morning count, did you know

16

that?

17

A.

Yes.

18

Q.

And, what was your understanding of the situation?

19

A.

The description to me was the fact that he was given either

20

blankets or smock to cover himself and he chose not to.

21

Q.

Who told you that?

22

A.

Colonel Oltman.

2900

06777

1

Q.

Okay, so Colonel Oltman told you that he was given stuff

2

and he chose not to cover himself and that is why he was standing

3

naked?

4

A.

On that one particular day, yes.

5

Q.

All right.

Walk me through this then, okay, we will assume

6

that that is true.

7

stand naked then for morning count?

8

A.

9

the morning.

Why in the world would a Brig allow somebody to

They were inside the cell.

They have morning roll call in

And, he had the appropriate clothing or blankets to be

10

able to cover himself and my understanding is that he chose not to

11

that morning.

12

Q.

Well, we do not live in a democracy in an installation nor

13

do we live in a democracy necessarily when it comes to military

14

command and control.

15

TC[MAJ FEIN]:

Your Honor, objection.

16

MJ:

17

CDC[MR. COOMBS]:

18

MJ:

19

CDC[MR. COOMBS]:

20

Q.

Finish the question.
If I could complete my question.

Finish the question.
Thank you.

So, if PFC Manning was standing naked in his cell, why

21

wouldn't the -- and it wasn't at the direction of the Brig, why

22

wouldn't they step in and correct that immediately?

2901

06778

1
2
3

MJ:

Mr. Coombs, I am -- how this is -- this witness is pure

speculation at this point, he was not there.
CDC[MR. COOMBS]:

This witness, ma'am, is the witness that the

4

138 complaint was made to about this very incident.

5

both Chief Galaviz, his you know, the person from PPO investigate but

6

also his Deputy IG look into it.

This witness had

This witness is fully informed.

7

MJ:

All right.

I will allow you a little latitude, go ahead.

8

Q.

So, again, why wouldn't a Brig DBS say ----

9

TC[MAJ FEIN]:

Your Honor, objection.

That fact is not -- the

10

inspections that occurred happened before this incident.

There was

11

two Article 138 complaints.

12

told the court happened before the incident of this questioning of

13

someone who does not even have direct knowledge.

And, everything that Mr. Coombs just

14

MJ:

Let us see what the answer is, go ahead.

15

Q.

Why wouldn't the DBS, when an inmate -- or a detainee ----

16

MJ:

What is a DBS?

17

CDC[MR. COOMBS]:

18

WIT: Duty Brig Supervisor.

19

CDC[MR. COOMBS]:

20
21
22

Sorry, ma'am.

Duty Brig Supervisor, the individual

responsible in lieu of the commander being present.
Q.

Why wouldn’t a DBS, at that point, immediately correct the

situation?

2902

06779

1

A.

Again, I can only speculate.

I am sure he has other duties

2

in regards to looking at and checking on the other detainees.

That

3

this is just one individual within.

4

spot would have detracted him from his other duties that he had

5

within the Brig and it was not anything that was causing immediate

6

harm to PFC Manning.

7

he hadn’t done it any other time after that that I am aware.

8

regards to why he did not correct it right on the spot, I can only

9

speculate, but I can tell you he probably had other duties and

Correcting it immediately on the

He had not done this on any other occasion and
So, in

10

responsibilities and that this was something that PFC Manning chose

11

to do and was something that did not have to be immediately attended

12

to.

13
14
15
16
17
18

Q.

All right, so you believed he chose to do this based upon

what you were told by Colonel Oltman?
A.

Colonel Oltman, from Chief Warrant Officer Barnes and from

the staff, it was relayed to her.
Q.

Did the staff, Chief Barnes or Colonel Oltman inform you of

whether or not PFC Manning had clothing at that time?

19

A.

Yes.

20

Q.

And, what did they tell you?

21

A.

That they had -- he had articles to be able to cover

22

himself, a blanket and a smock.

2903

06780

1
2

Q.

Okay, so what he had, you believe, was a blanket and a

smock at that point?

3

A.

Yes.

4

Q.

Do you know that the smock was not given to him until 7

5

March, five days after this?

6

A.

It very well could be, I could be mistaken.

7

Q.

All right, let us talk about some other things then maybe

8

you might be mistaken on.

9

to him at that point?

10
11

A.

Did you know that he had no clothing given

At that point, what time are we talking -- timeframe are we

talking about?

12

Q.

At the point that he is standing naked in front of his

14

A.

Yes, for 10 minutes.

15

Q.

All right, and for that 10 minutes, did you know that he

13

16

cell?

initially grabbed his blanket but was told, "Put the blanket down"?

17

A.

No.

18

Q.

You did not know that?

19

A.

No.

20

Q.

And, if he is told, "Put the blanket down", and he has no

21
22

clothes, what choice does he have?
A.

You are talking hypothetical.

2904

06781

1
2

Q.

No, I am talking, were you informed that he was told to put

the blanket back?

3

A.

No, I was not.

4

Q.

And, if he has no clothes, can’t put the blanket, his

5

choice is to, what?

6

A.

And, again, you are asking me to comment on something that

7

I do not know and you do not know to be true.

8

opportunity on other occasions to cover himself and he chose not to

9

this time.

Because, he had the

10

Q.

And how do you know that to be true?

11

A.

Because there were no other reports of him standing naked

12

other than that day

13

Q.

All right, and that was because, what; do you know?

14

A.

No.

15

Q.

He was given his clothes.

So, again, what you have, if he

16

doesn't and he is told to put his blanket away, what choice does he

17

have but to stand naked?

18

MJ:

Mr.

Coombs, the witness has advised you that that was not

19

what he was told, so you are asking him to draw a conclusion on

20

something the witness has said he was not aware of.

21

on.

2905

So please move

06782

1

CDC[MR. COOMBS]:

All right.

Well, again, Your Honor, what I

2

am trying to convey here is here saying that he is told -- he is not

3

there, so he doesn't know.

4

MJ:

5

CDC[MR. COOMBS]:

6

Yes.

MJ:

8

CDC[MR. COOMBS]:

9

MJ:

And then I am asking him if he

Yes, and then you are assuming them to be true, so ---Correct.

And that I am asking him ----

Let us move on.

10

CDC[MR. COOMBS]:

11

MJ:

13

All right.

is aware of other facts, he said no.

7

12

He is told certain facts.

---- what choice he would have.

Let us move on.

The witness has advised -- has answered

that that is not the facts that he is aware of.
Q.

All right.

So, please move on.

Well, on that vein, then, would you agree with

14

me that if he is told to stand naked outside of his cell, that that

15

would be wrong?

16

A.

If he was told to stand naked, yes.

17

Q.

Okay, and why would that be wrong?

18

A.

It serves no purpose.

19

Q.

Exactly.

20

Now, was the decision to remove PFC Manning's

underwear at night eventually briefed up to you?

21

A.

Yes.

22

Q.

And, how so?

23

A.

Through Colonel Oltman.

2906

06783

1

Q.

And what did he tell you?

2

A.

That, based upon comments that were made to Master Sergeant

3

Papakie that were relayed up through Gunny Blenis and Chief Warrant

4

Officer Barnes that she had taken the statement seriously and acted

5

within her authority.

6
7
8
9
10
11

Q.

And did you concur with the decision to remove PFC

Manning's underwear at night?
A.

There was no concurrence.

I was briefed and I did not do

anything to change it.
Q.

All right, so I guess you did not inform them then that you

did not concur with that?

12

A.

That's correct.

13

Q.

Now, was General Flynn, at this point now, based upon him

14

saying that it would be nice not to read this in the Early Bird, was

15

he briefed on the decision to continue to remove PFC Manning's

16

underwear?

17

A.

Yes.

18

Q.

And, how was he briefed?

19

A.

I don't recall.

20

Q.

Do you recall if General Flynn indicated that he non-

21
22

concurred with?
A.

No.

2907

06784

1
2

Q.

So, by not concurring, by I guess, not non-concurring then

he made no opinion on that issue?

3

A.

I do not recall an opinion from him.

4

Q.

All right.

5

Do you recall if he said anything back to you

once he was briefed?

6

A.

I don't recall.

7

Q.

Do you recall why you were briefing him?

8

A.

No, no at this point.

9

Q.

And that is because it has been so long, right?

10

A.

I just do not recall.

11

[The court reporter marked Appellate Exhibit 418Q.]

12

Q.

All right, let's talk about another email on the subject.

13

I am handing the witness what has been marked as Appellate Exhibit

14

418Q.

15

Go ahead and take a moment to glance at that.
TC[MAJ FEIN]:

Your Honor, objection.

Again, this is an email

16

that Colonel Choike is not even on; he would have never been privy to

17

until today.

18
19
20
21

MJ:

Let me look at it first.

Hold on.

I have your objection,

let's hear the line of questioning and I will decide.
CDC[MR. COOMBS]:

Thank you, Your Honor.
[END OF PAGE]

22
23

2908

Go ahead.

06785

1
2

Questions continued by the civilian defense counsel [MR. COOMBS]:
Q.

Are you aware that Lieutenant Colonel Wright sent an email

3

to Colonel Oltman about Chief Barnes' decision to remove PFC

4

Manning's underwear at night?

5

A.

Not until now.

6

Q.

So, Colonel Oltman never told you about that?

7

A.

I don't recall, no.

8

Q.

So he never told you that Colonel Wright stated, "I wanted

9
10
11

to pass on to you a professional opinion from PSL."

And, what does

PSL stand for?
A.

It is physical security, the law enforcement branch, so we

12

had the oversight of Chief Warrant Officer Galaviz.

13

Oltman did speak to me, now that I am looking at this, yes.

14

Q.

All right, so let us talk about it.

Yeah, Colonel

So, he says, "I wanted

15

to pass on to you a professional opinion from PSL that we have some

16

concerns about recent within the last 2 to 3 days, decisions made by

17

the Commanding Officer of the Quantico Brig to take measures that are

18

consistent with suicide watch but not officially place that person in

19

suicide watch status is inconsistent with the way we are supposed to

20

do business.

21

taking actions which might result in another 138 complaint, but if we

22

are doing business the way we are supposed to, there is nothing to

We understand that there may be some concern about

2909

06786

1

worry about."

2

you?

Now, you said Colonel Oltman shared this fact with

3

A.

We discussed it, that he received it.

4

Q.

And did Colonel Oltman also discuss with you the fact that

5

Lieutenant Colonel Wright did not believe it was proper to remove PFC

6

Manning's underwear at night and not place him on suicide risk?

7

A.

Yes, yes.

8

Q.

And, were you aware that Colonel Oltman asked Chief Barnes

9
10

then to synopsize for him the rationale behind her decision or her
authority to do that?

11

A.

No.

12

Q.

He never briefed you on that?

13

A.

Not that he asked her to write this email, no.

14

Q.

Did he ever back brief you on, I guess when you found out

15

Colonel Wright, who -- again, Colonel Wright is one of the main

16

subject matter experts in Marine Corps Corrections, correct?

17

A.

Yes.

18

Q.

And, he’s saying, "Hey, look, I do not think this is the

19

way we should be doing business."

20

on what Barnes' reply was?

21

A.

Colonel Oltman never briefed you

He never forwarded it to me but he we did discuss it, the

22

fact that he had a conversation with her and felt that she was within

23

her authority to do so.

2910

06787

1

Q.

And, did he tell you that she told him that it was hard to

2

justify assigning him to suicide status, so it was easier to explain

3

why we left him in POI and removed underwear as opposed to placing

4

him on suicide risk without adhering to the guidance of the SECNAV?

5

A.

No, that is the first time I am seeing and hearing this.

6

Q.

Does that sound like a proper basis to you?

7

A.

No.

8

Q.

I am retrieving 418Q from the witness.

9
10

Now, on 10 March

2011, Colonel Oltman sent you an email where he stated that his XO,
Major E-E-B-I-T-T-S; is that how you say her name?

11

A.

E-B-B-E-T-T-S.

12

Q.

Major Ebitz was just informed that any changes in PFC

13

Manning's status must be approved by you.

Do you recall that?

14

A.

Yes.

15

Q.

And, I want you to have the benefit of the emails in front

16

of you so I’m just going to mark these.

17

[The court reporter marked Appellate Exhibit 418R.]

18

Q.

I am handing the witness what has been marked Appellate

19

Exhibit 418R.

20

Oltman's response -- or, initial email to you, correct?

If you go to the second page, you see that is Colonel

21

A.

Yes.

22

Q.

And then the first page is your response to him?

23

A.

Yes.

2911

06788

1

Q.

And, on Colonel Oltman's email to you, he indicated that he

2

was upset with the assumption that CW2 Barnes was acting alone and

3

unafraid in her decision process with regards to the status of PFC

4

Manning, correct?

5

A.

Yes.

6

Q.

He told you that every decision by CW2 Barnes and her

7

predecessor, Chief Averhart was discussed with him?

8

A.

Yes.

9

Q.

He also told her that he concurred with every decision made

10

by Chief Barnes and Chief Averhart?

11

A.

Yes.

12

Q.

In fact, he states that he was not sure how much more

13

involved the command could be, given the fact that he is involved in

14

every change and then every change then is discussed with you?

15

A.

Yes.

16

Q.

He says, with the "boss", and the boss means you.

17

Is that

correct?

18

A.

Yes.

19

Q.

And, you told Colonel Oltman that the instructions that

20

were given to you from General Flynn were best passed on personally

21

to CW2 Barnes?

22

A.

Yes.

23

Q.

Do see that in your email?

2912

06789

1

A.

Yes.

2

Q.

And, these instructions, again, were given from Lieutenant

3

General Flynn?

4

A.

Yes.

5

Q.

And, you stated that your instructions were based upon two

6

lengthy meetings with Lieutenant General Flynn?

7

A.

Yes.

8

Q.

And you told Colonel Oltman that any decisions to change

9
10

the handling instructions or assignments or assignment status needed
to be briefed first before executed?

11

A.

Yes.

12

Q.

You also told Colonel Oltman that you, and I will quote you

13

here, "You and I supporting/concurring with the Brig OIC's decisions

14

that change handling instructions or assignment status without

15

passing that info to CG MCCDEC", and CG MCCDEC is Lieutenant General

16

Flynn, right?

17

A.

Yes.

18

Q.

"For consideration is no longer acceptable," is that

19

correct?

20

A.

Did not say -- you put in the word, "consideration".

21

Q.

Excuse me?

22

A.

You said for his consideration.

2913

06790

1

Q.

"For consideration is no longer acceptable," do you see

3

A.

Yes.

4

Q.

Now, did Chief Barnes understand that the General Flynn

2

that?

5

would have to be briefed prior to any change in the handling

6

instructions or assignment status?

7

A.

I am sorry, say that again?

8

Q.

Did CW2 Barnes understand that Lieutenant General Flynn

9
10
11

would have to be briefed prior to any change in the handling
instructions or assignment status of PFC Manning?
A.

She knew that that was not the case because I personally

12

called her.

And, that personal phone call directly down to her, that

13

resulted in this email from Colonel Oltman to me, had to do with the

14

fact that he felt that I was calling directly to the Brig OIC and did

15

not go to him.

16

specifically talked to her about had to do with the events that were

17

in the media in which the General read in the blue -- you know, the

18

Early Bird the incident at the Brig prior to being briefed.

19

conversations with me at that time was to ensure that any changes

20

that were taking place, he was at least being notified, so that he

21

could properly deal with it.

22

the tail end of this email.

And, that that phone call that I called and

His

And, that of course is summarized in

2914

06791

1

Q.

All right, let's -- Maybe you did not hear my question

2

correctly so I will ask again.

3

that, "You and I supporting/concurring with the Brig OIC's decisions

4

that change handling instructions or assignment status without

5

passing that info to CG MCCDEC for consideration is no longer

6

acceptable"?

7

A.

Yes.

8

Q.

All right, so then my question is, did Chief Barnes

9

And, maybe -- I mean, you told Oltman

And, can you ----

understand that prior to changing any handling instructions or

10

assignment status, it had to be passed up to Lieutenant General Flynn

11

for consideration?

12

A.

The word, "consideration", I wrote it but that is not what

13

I meant in the final paragraph.

14

received a phone call from me that it wasn’t for General Flynn to

15

consider as much as it was for him to be notified.

16

Q.

Okay.

And Chief Warrant Officer Barnes

So, if I am correct then, I have to read this

17

saying, "You and I supporting/concurring with the Brig OIC's decision

18

that change handling instructions or assignment status without

19

passing that information to CG MCCDEC, for his knowledge is no longer

20

----

21

A.

Yes.

22

Q.

So why would you supporting/concurring with the Brig's

23

decisions have to be briefed to CG MCCDEC?

2915

06792

1

A.

That has been -- because that is been -- that had been the

2

process -- or had not been the process, up to this particular point

3

in time in which he saw a change in handling instructions and read

4

about it for the first time in the news.

5

Q.

So your testimony today understand is that CG MCCDEC did

6

not have to make any consideration of it, he just wanted to be known

7

[sic] about it?

8

A.

That is correct.

9

Q.

That is it?

10

A.

That is correct.

11

Q.

And that is why you had to personally pass that on to Chief

12

Barnes?

13

A.

Yes.

14

Q.

Really?

Okay, let us look down more at that email then.

15

You tell Colonel Oltman that you and Colonel Oltman would not get

16

anything in writing from Lieutenant General Flynn if he rejected or

17

modified a recommendation?

18

A.

Yes.

19

Q.

Did you accidentally put, "recommendation", there to?

20

A.

Yes -- no, I wrote that.

21

Q.

But, I mean, you didn't mean, "Recommendation", you meant,

22
23

"Consideration"?
A.

Yes.

2916

06793

1
2

Q.

General Flynn for consideration?

3
4

So, why would you get anything in writing from Lieutenant

A.

Colonel Oltman had mentioned that.

And, I am only

responding to what he wrote.

5

Q.

But, I mean, if you were only responding to what he wrote,

6

you would say, "Hey, Colonel Oltman, you got it all wrong.

7

doesn't want to do anything in writing or consideration, he just

8

wants to be told about this stuff?

9
10
11

CG

A.

That is correct, and that is what the summary paragraph

Q.

That is not what it says.

says.
It says here that you would not

12

get that in writing because Lieutenant General Flynn, in this

13

situation, would not put anything in writing the rejected or modified

14

recommendation."

15
16
17
18

A.

That is what you wrote.

That is what I wrote.

But, the summary paragraph gives the

real intent of what I meant.
Q.

So, the real intent of what you meant is not expressed in

that -- the words I just read to you?

19

A.

That's correct.

20

Q.

And, that is what you want us to believe?

21

A.

That is correct.

That General Flynn asked to be notified.

22

General Flynn was not in the decision-making chain in terms of what

23

the actual classification and handling instructions were in the Brig.

2917

06794

1

Q.

All right, then you have to explain to me why you are going

2

to sit down and talk to him about documenting any non-concurrence.

3

What is all that about?

4
5

A.

So, he could be notified.

General Flynn never once

influenced anybody.

6

Q.

Not my question.

Why do you write in there ----

7

A.

But, it is relevant to the point you are trying to make.

8

The point you are trying to make is, is does General Flynn influence

9

the classification and assignment in the Brig.

10
11

And the answer is,

"no."
Q.

No, my question is, why did you write in there that you and

12

I are going to sit down and talk about the way forward if CG MCCDEC

13

rejects or modifies the recommendation?

14

A.

I said that he would not put anything in writing because he

15

was not going to make those decisions.

16

himself to do that.

17
18
19
20
21
22

Q.

Okay.

He was not going to place

And why -- take me down this logic then.

Why would

he not place himself in the position to do this?
A.

Because, he had trust and confidence in the people at the

Brig who were there 24/7 to do their job, the same as I did.
Q.

All right, so why would you then say, "We are not going to

get anything in writing"?

2918

06795

1
2

A.
decisions.

Because, he was not going to place himself in to make those
We’re talking about a three-star general.

3

Q.

I know we are.

4

A.

And, we are not talking about him putting himself as the

5

Brig OIC when he has got a complete chain of command to make the

6

appropriate assessments.

7

Q.

All right, so explain to me why, then, you write in there,

8

"I had to pass these instructions on personally to her that any

9

decision changing his handling instructions had to be briefed prior

10

to executed."

11

in writing if he rejects or modifies and we will talk about the way

12

forward if he chooses to do that."

13

with what you are now saying that he just wanted to be notified?

14
15
16

A.

And, "That we are not going to get anything from him

How does that at all, marry up

The very fact that he was not happy that he got notified

from the press first.
Q.

Okay, so you interpret this email -- let us go through this

17

line by line and you can interpret this email for me, what you meant.

18

I know what you wrote ----

19
20

A.

Well, you have to go back to the timeline in terms of what

is outside of that email to have an understanding of what that means.

21

Q.

So we can’t look at the words that you wrote.

22

A.

You can look at the words and then you can also take into

23

account that on 2 March is when Chief Warrant Officer Barnes made the

2919

06796

1

decision to remove his underwear.

The general had read about it in

2

the newspaper as the first time that he was notified about that.

3

what he wanted to know was why he was not briefed in that particular

4

regard.

5

Q.

All right, define this to me that, and then you tell me if

6

I am reading this right.

7

discussion and concurrence".

"Recommendations forwarded to me for

8

A.

Yes.

9

Q.

Concurrence is a word that means you’re in agreement or

10

And

not, right?

11

A.

Yes.

12

Q.

And then, "Recommendation forwarded to CG MCCDEC," that is

13

Lieutenant General Flynn?

14

A.

Yes.

15

Q.

"Before implementation"?

16

A.

Yes.

17

Q.

Now, on this here what did you expect the process to mean?

18

A.

"And blindly forward a recommendation to CG instead of

19

discussing with you and I ----

20

Q.

Yeah, you can read the rest to me, go right ahead.

21

A.

"Will not blindly forward a recommendation to the CG.

22

Instead, I will discuss it with you so that we will know exactly what

23

I will forward on to him".

2920

06797

1

Q.

Okay.

2

A.

All of that is information pushed to the Commanding

3

But, so, how do you interpret number two?

General.

4

Q.

For him not to do anything with and then just be known?

5

A.

That is correct.

6

Q.

Know about it, that is it?

7

A.

That's correct.

8

Q.

So, interpret number three for me; can you read that?

9

A.

"Non-concurrence in writing.

We need to discuss and

10

determine the best way to document the decision, final actions, for

11

the record.

12

media interest, legal ramifications and the senior leadership

13

reactions and we can't do so without him being in the loop up front.”

CG wants to be able to determine the political impact,

14

Q.

Okay, and how is that interpreted?

15

A.

Strictly informing the general what the decisions were

16

being made by Chief Warrant Officer Barnes and being briefed up

17

through to Colonel Oltman and myself.

18

Q.

Okay, so, "The CG wants to be able to determine the

19

political impact, media interest, legal ramifications and senior

20

leadership reactions."

21
22

A.

What did he want to do with all of that?

He did not want to be in -- he did not want to be in the

react mode.

2921

06798

1
2

Q.

A.

Those are just comments that I made in regards to the media

interest and interest that came down from Congress from the UN.

5
6

So, what was the political impact that he was

concerned about; do you know?

3
4

All right.

Q.

Okay.

So, you are telling Colonel Oltman the political

impact is the media interest and ----

7

A.

Congressional interest, UN interest.

8

Q.

And, what does the media interest part mean?

9

A.

The media interest is how it is going to be covered in the

10

news.

It goes directly back to what took place on 2 March.

11

Q.

What is the legal ramifications?

12

A.

Legal ramifications -- you know, I can't recall what or why

13

I would put that in writing at this point.

14

Q.

How about senior leadership reactions?

15

A.

From the Commandant on down.

16

Q.

And, what does that mean?

17

A.

Just their involvement.

General Flynn, you have seen and

18

introduced past correspondence were senior leaders were engaged and

19

involved.

20

able to be in the loop of information in case there were any issues

21

in those categories.

22
23

Q.

And, that is all General Flynn wanted.

Okay.

He wanted to be

So, if I am understanding everything, and I will

read -- tell me if I am reading this correctly.

2922

I am again showing

06799

1

you what has been marked 418R.

2

saying, for number two, "Based on conditions, etc., we, Security

3

Battalion, will make a recommendation request to implement the

4

change.

5

given, we would like to have it in writing in order to annotate the

6

file and set up whatever paperwork is required.”

7

interpret Colonel Oltman to mean by that?

8
9

This is Colonel Oltman to you.

He is

Should there be a non-concurrence and different guides

A.

Frustration.

What did you

He felt that me calling directly down to

Chief Warrant Officer Barnes, that the chain of command was being --

10

was cut.

11

trying to second-guess or to try and take away the authority of the

12

Brig OIC.

13

Q.

And I had to convey him that it was not and that no one was

So why didn't you just say to him, "Hey, Colonel Oltman,

14

you got it all wrong.

The CG does not want to make any changes or

15

recommendations or anything like that.

16

just be informed and, guess what, I am not going to make any changes

17

or recommendations either.

18

all."

19

here?

All the CG wants to do is

So, you don’t have to worry about that at

Wouldn't that be an easier thing to say that what you said

20

A.

It would be.

21

to him.

22

of command is important.

That was my intent to be able to portray that

Because, it says clearly in point number one that the chain

2923

06800

1
2
3
4
5

Q.

Okay.

It also says, "You and I doing anything without

concurrence from the CG is not going to happen anymore."
A.

That's correct.

Correct?

That is what is written.

[The court reporter marked Appellate Exhibit 418S.]
Q.

All right.

Let's talk about another email.

I am handing

6

the witness what has been marked as Appellate Exhibit 418S.

7

is a 14 March 2011 email.

8

having a meeting at the Quantico Brig to discuss obtaining a

9

dedicated mental health support at the Brig?

Now this

And, on 14 March 2011, do you recall

10

A.

Yes.

11

Q.

And you apparently wanted a full-time president -- presence

12

at the Brig, correct?

13

A.

Yes.

14

Q.

And why did you a full-time presence of the Brig?

15

A.

Because of the length of time that PFC Manning was being

16

detained that I felt it was important that someone was there as a

17

part of the staff.

18
19

Q.

That was a -- somebody that was a mental health provider,

full-time?

20

A.

Yes.

21

Q.

And what did you expect the full-time mental health

22

provider to do?

2924

06801

1
2
3
4
5

A.

To be able to provide service to PFC Manning and at the

same time work closely with the Brig staff.
Q.

And, how did -- I guess, why were you looking to get a

full-time mental health provider?
A.

As time has gone by and the length of time, it was not

6

clear exactly how long that we were going to be detaining PFC

7

Manning.

8

meetings that we had in regards to the Brig, in and of itself, going

9

from a level I post-trial confinement facility to a pretrial

And, that there had been a lot of discussions and staff

10

confinement facility.

That process was underway and it was not yet

11

complete when we received PFC Manning.

12

regards to the TO -- the Table of Organization for the Brig, which

13

included medical support staff was still not clear exactly what the

14

requirements were.

15

that, it is not within the chain of command.

16

not -- it was only by luck that Doctor Hocter was there as a forensic

17

psychiatrist.

18

not dedicated very specifically the Brig.

19

the pretrial confinement facility being reduced to pretrial

20

confinement, that it was really envisioned as short-term in nature

21

and not a long-term detainee.

22

required, in my mind, the need for someone to be the dedicated there

23

as a part of the staff.

So, the discussion was in

In Quantico, the Naval Health Clinic is just
I don't own it.

He did

He had other responsibilities and duties, but that was
And, so when you look at

So, the length of the detainment

2925

06802

1
2

Q.

Okay, and you wanted somebody full-time.

Why did you want

somebody full-time?

3

A.

For the reasons I have just explained.

4

Q.

Present in the Brig full-time as opposed to what you

5

receiving from Captain Hocter?

6

A.

Yes.

7

Q.

And later Colonel Malone?

8

A.

Yes.

9

Q.

And that was just for PFC Manning or was that for somebody

11

A.

No, that was for the Brig overall.

12

Q.

Did anyone ever say to you that they wanted full-time

10

else?

13

presence because they thought PFC Manning was behaving differently

14

with the Brig psychiatrist as opposed to the Brig staff?

15

A.

No.

16

Q.

So, that was never a calculation in your mind?

17

A.

No.

18

Q.

Let's talk about the Brig psychiatrist that he did have.

19

You had both Captain Hocter and Colonel Malone, correct?

20

A.

Yes.

21

Q.

Did you trust the expert medical opinions of Captain

22

Hocter?

23

A.

Yes.

2926

06803

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 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
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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.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
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1. Front cover and inside front cover (chronology
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counsel, or waiver/withdrawal of appellate rights,
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at the point of arraignment in the record).
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conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index 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 appropriate, action of officer exercising general courtmartial jurisdiction.
f. Exhibits admitted in evidence.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
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g. Exhibits not received in evidence. The page
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evidence (real or documentary), and briefs of
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DD FORM 490, MAY 2000

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