Title: Volume FOIA 032

Release Date: 2014-03-20

Text: 09792

Volume 32 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

09793

1

the time of their alleged compromise.

2

prove for some of the charges that the information is classified,

3

because the government charged in some of the 793 and the 1030 class

4

-- charges that the information was classified; however, information

5

suggesting that documents in general are too highly classified has no

6

bearing on whether or not the charged documents were properly

7

classified.

8
9

Now the United States must

As the government has argued repeatedly, over original
classification authorities -- original classification authority has

10

been given to specific individuals via executive order based on their

11

positions; and this specific delegation makes sense given all the

12

information that the OCA has to take into account when classifying a

13

document; and this is why courts defer to OCAs to take into account

14

all this information, including the complex, political, historical,

15

and psychological judgments that they take into account when making

16

their classification determinations.

17

And furthermore, the accused obviously is not an OCA

18

entitled to question classification; otherwise, all holders of

19

classified information could question classification and the whole

20

system would, in effect, fold.

21

to understand the importance of safeguarding information and the

22

significance of the classification markings, he was not trained nor

23

was he ever an OCA; and in the defense's response to the government

Now although the accused was trained

5897

09794

1

motion, the defense contends that specific witnesses will say that

2

charged documents are overclassified, but as stated, Your Honor,

3

those opinions are irrelevant unless those individuals are OCAs for

4

the charged information.

5

Now certainly the defense can explore whether or not the

6

charged documents are properly classified with those OCAs, but again,

7

the defense must do so with the appropriate individual, which is the

8

individual with the authority and the knowledge to make the

9

classification determination.

10

Now in the defense's response, they focus much of their

11

argument on the government's point Number 2, which was general

12

overclassification evidence is irrelevant to whether or not the

13

charged information could be used to cause injury to the United

14

States or damage to a foreign nation or was closely held, so the NDI,

15

the national defense information.

16

overclassification forms the court's determination of what weight to

17

accord to the fact of classification itself in determining whether

18

the documents could be used to the injury of the United States or to

19

the advantage of a foreign nation.

20

The defense argues that

And, Your Honor, although proper classification is

21

probative of NDI, national defense information, the United States

22

must separately prove that the charged information is national

5898

09795

1

defense information that is -- that the disclosure of the material

2

would potentially be damaging to the U.S. ----

3

MJ:

"Would" or "could"?

4

ATC[CPT OVERGAARD]:

"Could"; thank you, Your Honor -- could

5

potentially be damaging to the United States or might be useful to an

6

enemy of the U.S. or that the material is closely held by the United

7

States Government.

8
9

Again, overclassification in general in no way -- in no way
could inform the court of whether or not the charged information was

10

NDI.

11

the United States is simply relying on classification to show that

12

charged information is NDI, but that's simply not true, Your Honor.

13

The U.S., as we've stated, must prove for each 793 charge that the

14

charged information is NDI.

15

U.S. or be used to the advantage of a foreign nation or that it was

16

closely held.

17

In making this argument, the defense has also contended that

Again, that it could cause injury to the

And for the 1030 charges, the United States must prove that

18

the charged information requires protection against unauthorized

19

disclosure for reasons of national defense or foreign relations.

20

Again, although classification is evidence of NDI, of national

21

defense information, the United States must prove still that the

22

information is indeed NDI.

23

classified information that's charged as NDI, and nonclassified

And furthermore the United States has on

5899

09796

1

information can be -- unclassified information can be NDI if it's

2

closely held due to the impact its disclosure to unauthorized

3

individuals can have on the United States or the advantage such

4

actions could give to a foreign nation.

5

Now the defense and the court merely have to look at the

6

government's witness list, as well, which clearly shows that the

7

government intends on producing witnesses to offer testimony on the

8

subject matter of each charged document and that each charged

9

document is, in fact, NDI.

10

The United States has also repeatedly acknowledged that

11

Diaz states that classification in and of itself while evidence of

12

NDI is not definitive, and this is further exemplified again by the

13

charges themselves, where one of the 793 charges is not even of

14

classified information.

15

And finally, Your Honor, in defense's response, the defense

16

contends that specific witnesses will say that charged documents are

17

overclassified.

18

individuals are OCAs.

19

could certainly be able to explore -- could certainly explore whether

20

or not the charged information was actually NDI; however, again, they

21

must do so with the proper witnesses.

22

witnesses that will say that the charged information is not NDI and

23

can lay a proper foundation for that witness's opinion testimony,

This is again -- this again is irrelevant unless the
The government acknowledges that the defense

5900

Therefore, if the defense has

09797

1

then that evidence could be relevant; however, again, a general

2

overclassification argument does not support an argument that the

3

information is not NDI.

4

And for point Number 3, Your Honor, even if the

5

overclassification evidence was relevant, there is no evidence that

6

the accused knew about any of the alleged overclassification problem

7

presented by the defense at the time of the accused's misconduct and,

8

therefore, that it had any impact on the accused's intent.

9

fact evidence is irrelevant to a person's intent and state of mind at

After the

10

the -- at the earlier time, so therefore the overclassification

11

evidence would not even raise an issue of ignorance or mistake of

12

fact on the part of the accused in relation to the charged offenses.

13

And as for sentencing, Your Honor, the United States goes

14

back to the -- overclassification evidence does not pertain to the

15

charged information nor is there any evidence that the accused knew

16

of the alleged overclassification problem at the time of the

17

misconduct.

18

explaining the circumstances surrounding the commission of the

19

offenses or assist in lessening the punishment adjudged.

20

Your Honor, it shouldn't be admissible in either the merits portion

21

of the trial or the sentencing portion of the trial.

Therefore, the information does not assist in the -- in

22

MJ:

With respect to the sentencing portion, ----

23

ATC[CPT OVERGAARD]:

Yes, ma'am.

5901

Therefore,

09798

1

MJ:

---- what is the government's read -- the government's put

2

in here that evidence of subsequent legislation for subsequent --

3

that was passed on overclassification after the misconduct would not

4

be relevant extenuation and mitigation ----

5

ATC[CPT OVERGAARD]:

6

MJ:

7

ATC[CPT OVERGAARD]:

Yes, ma'am.

---- and [pause] so tell me once again why not.
The evidence doesn't pertain to the charged

8

information.

There's no information that the accused knew of the

9

information at the time of the misconduct; and because it's not

10

relevant to the charges in this case, then it shouldn't be relevant

11

to sentencing either, Your Honor.

12

overclassification has nothing to do with whether or not the

13

documents in this case were properly classified or whether or not the

14

documents in this case damaged the United States for sentencing.

15

MJ:

A general argument of

[Pause] What would the government's view be for the merits

16

and sentencing with respect to cross-examination of government

17

witnesses whether certain information would be classified if

18

following the procedures of the current law?

19

ATC[CPT OVERGAARD]:

The defense could certainly cross-examine

20

the OCA witnesses on whether or not the proper procedures were

21

followed in accordance with the executive order.

22
23

MJ:

No, I understand that.

I guess my question is, is if the

procedures they followed at the time were changed [pause] ----

5902

09799

1

ATC[CPT OVERGAARD]:

2

MJ:

Cross-examining the ----

Well, actually, let me stop you there.

The -- just as a

3

factual matter, the classification reviews that were done in this

4

particular case, what procedures did they follow?

5

ATC[CPT OVERGAARD]:

They followed the procedures of Executive

6

Order 13526 and the relevant classification guides of their

7

organizations, and the determination of classification is made at the

8

time the document was compromised not current -- not at the present

9

time.

10

MJ:

Okay.

11

ATC[CPT OVERGAARD]:

So the present -- the present

12

classification would only go towards whether or not the courtroom

13

should be closed but not go towards the actual charge.

14

TC[MAJ FEIN]:

15

MJ:

16
17
18
19

Your Honor, may the United States have a moment?

Yes.

[The trial counsel and the assistant trial counsel conferred.]
ATC[CPT OVERGAARD]:

Just a correction, it's 13526 in the

preceding order, which was 12958, Your Honor.
MJ:

So just to make sure I'm under -- am I understanding the

20

government to say that the government doesn't have to prove that the

21

evidence was properly classified as part of their burden of proof for

22

the elements charged ----

5903

09800

1

ATC[CPT OVERGAARD]:

2

saying, ma'am.

3

MJ:

4

ATC[CPT OVERGAARD]:

No, that's not what the government is

---- the offenses charged?
The government will prove that the

5

documents are properly classified with the original classification

6

authority witness, and they will do so by having that witness testify

7

about the classification of the document at the time of its

8

compromise and that the classification was made in accordance with

9

Executive Order 13526 in the preceding executive order, and the

10

government will also have subject matter experts talking about why

11

that -- why the information in those classified documents was

12

national defense information.

13

MJ:

14

ATC[CPT OVERGAARD]:

15

MJ:

16

CDC[MR. COOMBS]:

17

[Pause] All right, thank you.
Thank you, ma'am.

Mr. Coombs?
Yes, Your Honor.

Your Honor, the evidence related to overclassification in

18

this case is relevant to two facts in issue.

19

whether or not PFC Manning had a reason to believe the information

20

could be used for prohibited purposes under both the 793 offenses and

21

also the 1030 offenses.

22

MJ:

How?

5904

First, it's relevant to

09801

1

CDC[MR. COOMBS]:

And -- and I'll go right to that; and, second,

2

it's relevant to whether or not the charged information relates to

3

the national defense.

4

So with regards to reason to believe, under both the 793

5

and 1030 offenses, the government's required to establish that PFC

6

Manning had a reason to believe that the classified records,

7

classified memorandum, the videos, the files described for each

8

specification could be used to the injury of the United States or to

9

the advantage of any foreign nation; and looking at the court's

10

instructions, proposed instructions on page 10, "reason to believe"

11

means that the accused knew facts from which he concluded or

12

reasonably should have concluded that the information could be used

13

for prohibited purposes.

14

reason to believe that the information could be used to the injury of

15

the United States or to the advantage of a foreign country, you may

16

consider the nature of the information involved; and in this

17

instance, the nature of the information involved is the classified

18

information for those charges in which the government has alleged

19

classified information was compromised.

20

instances, the issue of overclassification relates to the nature of

21

the offense, the nature of the information involved.

In considering whether the accused had

5905

So in each of those

09802

1

MJ:

That's where I'm having trouble with the how; the fact that

2

there's a general overclassification problem, how does that have any

3

nexus to the information in the specifications charged?

4

CDC[MR. COOMBS]:

Right, and this kind of goes back to the

5

problem with the earlier motion that we argued here today.

The

6

government is attempting by way of motions in limine to ask this

7

court to address issues that are better served during the actual

8

merits phase of the trial, where the court has the benefit of all the

9

testimony in order to make determinations on relevance, so we have

10

proffered in our witness list witnesses who are going to come

11

testify, and we'll use, for example, Colonel Davis with regards to

12

the detainee assessment briefs.

13

those -- that information could not be used to the harm of the United

14

States; that it is general information.

15

granted, he's not an OCA, but the government wants this court to

16

believe that OCAs' determinations are unassailable; they're the de

17

facto determination that no one can question.

18

we handle the information.

19

whether or not this information could be used to the injury of the

20

United States or to the advantage of a foreign nation.

21

MJ:

He's going to come testify that

Well, his determine --

They only control how

They do not control, in this courtroom,

How is Mr. Davis's opinion that something could or could

22

not be harmful to the United States relevant at all?

23

possible -- what's his basis for knowledge for having that opinion?

5906

I mean, what

09803

1

CDC[MR. COOMBS]:

As the chief prosecutor for the Guantanamo

2

commissions, he reviewed the detainee assessment briefs on a very

3

frequent basis.

4

declaration, he referred to those as "baseball cards."

5

essentially used by the prosecutors in his office just for general

6

background information.

7

in 2006 and 2007 released the names of all the detainees, so that's

8

part of the detainee assessment brief, but he'll also testify that

9

for the Combatant Status Review Tribunals and the ARBs that were done

As we proffered in -- and also based upon his
They were

He will testify that later the United States

10

that looked at the status of each of these detainees, those were

11

released as well by the government under the Freedom of Information

12

Act; and in those records, they had much, if not all, the information

13

that's contained in the detainee assessment briefs.

14

MJ:

I understand that; that's factual testimony.

15

here is the opinion that this doesn't cause damage.

16

relevant expertise to give that opinion?

17

CDC[MR. COOMBS]:

My concern

What's the

Well, you know, under R.C.M. 702, individuals

18

can be experts under specialized knowledge, skill, and training.

19

Colonel Davis has that specialized knowledge, skill, and training in

20

order to see, in this case, how the detainee assessment briefs were

21

used.

22

assessment briefs did not need to be classified and, in fact,

23

information contained in those had already been disclosed.

His determination is from looking at that; that the detainee

5907

09804

1

MJ:

So now we're getting into second-guessing the OCAs.

2

CDC[MR. COOMBS]:

Not second-guessing the OCAs from the standard

3

of how the OCAs in this case still maintain that the information was

4

classified at the time and to the defense's knowledge still maintain

5

that it's classified today, but it goes to the determination of

6

whether or not there was a reason to believe that this information

7

could be used to the harm of the United States or to the advantage of

8

any foreign nation.

9

MJ:

So how does the fact that Mr. Davis doesn't believe that

10

this information could be used to the harm of the United States have

11

any bearing on the accused; did he know Mr. Davis at the time?

12

CDC[MR. COOMBS]:

No, Your Honor, but when we offer evidence of

13

the accused's belief, and, again, this is asking to decide a case in

14

a pretrial motions hearing that really should be decided as we have

15

evidence that's elicited; but the reasonableness of PFC Manning's

16

belief that the information he selected could not be used to the harm

17

of the United States, then the over -- the problem of

18

overclassification in general and the opinions of other individuals

19

who have expertise dealing with this information then support the

20

reasonableness of PFC Manning's belief at that point and that's where

21

the court in this case could use the problem of overclassification to

22

determine whether or not this information truly is the type of

23

information that could be used to the injury of the United States.

5908

09805

1

MJ:

Does the Overclassification Act change anything with

2

respect to the executive order that governs how things are

3

classified?

4

CDC[MR. COOMBS]:

The Overclassification Act attempts to rein in

5

a problem that is systemic with the government, and the government

6

here today, one of their arguments is there's no evidence that PFC

7

Manning was aware of the problem of overclassification; that's

8

incredible that that's an argument that's actually being made with a

9

straight face because the problem of overclassification has been a

10

widely reported problem since the '70s in our government.

11

an issue that a 35Fox, an intel analyst, or anyone else who was

12

remotely familiar with this area would not be cognizant of.

13

the problem of overclassification has been an ongoing debate in issue

14

and this particular act was being debated in 2007, so the issue of

15

overclassification is not a secret; is not something that is

16

problematic; and in this case, if the court considers the evidence of

17

overclassification in order to put the OCA's opinion in context, we,

18

as we proffered in our arguments for the witnesses, for example,

19

Colonel Davis again, he is relevant in order to, yes, impeach the OCA

20

because the OCA has an inherent bias and prejudice in this case to

21

determine not only that the information was properly classified

22

initially but is still classified and to exaggerate the nature of the

23

harm and we under M.R.E. 608(c) should be entitled to present

5909

It is not

In fact,

09806

1

evidence of other individuals who would differ with that opinion;

2

and, again, the OCAs ----

3
4

MJ:

Well how is that true when the government gives the OCA the

authority to make that determination?

5

CDC[MR. COOMBS]:

6

MJ:

The ----

So we can get anybody under the sun in the United States to

7

come in and say, okay, do you agree with the OCA?

8

the OCA?

9

CDC[MR. COOMBS]:

Absolutely not, Your Honor.

Do you agree with

What you can do,

10

though, there's nobody that can come in here under oath, sit on that

11

stand, and be not subject to cross-examination, no one.

12

one's opinion who sits on that stand that is unassailable by the

13

defense.

14

MJ:

15

CDC[MR. COOMBS]:

There's no

I agree.
And so when the OCA gets up there and makes

16

his or her opinion that this information was properly classified, is

17

still classified, and could be expected to cause harm to the United

18

States because it's Secret or could be expected to cause serious harm

19

to the United States because it's Top Secret, that's an opinion.

20

that opinion carries weight under law only in how that information is

21

handled.

22

not that is a de facto determination on is this, in fact, a type of

23

information that could cause damage; or is this the type of

Now

It doesn't carry weight in this courtroom as to whether or

5910

09807

1

information that the accused reasonably should have known could cause

2

damage?

3

because of that, we are entitled under M.R.E. 608(c) to cross-examine

4

that witness, even an OCA witness, ----

That doesn't make the determination in and of itself, and so

5

MJ:

Uh-huh.

6

CDC[MR. COOMBS]:

---- and one of the ways that we can cross-

7

examine them is through extrinsic evidence; in this case the opinions

8

of Colonel Davis, the opinions of Mr. Hall, Mr. Ganiel.

9

information in sentencing under Ambassador Galbraith, all of that

The

10

information would undercut and impeach the opinions of the OCA, also

11

expose an inherent bias because one of the worst kept secrets in our

12

government is the fact that our government not only overclassifies

13

information but classifies it for way too long and holds on to it.

14

It was only recently that the Pentagon Papers were declassified by

15

our government, even though they've been out in the public air for

16

decades.

17

So this issue and the issue of overclassification is a

18

relevant issue for the court to consider when making an overall

19

determination on is this the type of information that PFC Manning

20

reasonably should have known could cause damage to the United States.

21

It's also in a related vein relevant to the issue on 793 on whether

22

or not it is, in fact, national defense information.

23

court's instructions, whether or not it's related to national defense

5911

Under the

09808

1

encompasses a query that has two separate questions:

2

closely held by the United States Government; and (2) whether

3

disclosure of the information would be potentially damaging to the

4

United States or might be useful to the enemy of the United States.

5

(1) was it

Now the court has indicated in its proposed instructions

6

that the fact finder may consider, quote, whether the information was

7

classified or not in determining whether the information relates to

8

national defense.

9

overclassification bears heavily on this determination.

Obviously in this situation evidence of
The

10

government's position throughout this litigation and, in fact, even

11

today has been that the fact the document is classified provides the

12

most compelling evidence that the document could, in fact, cause

13

damage to the United States or aid a foreign nation; that's their

14

position; that's been their position almost since day one.

15

they've made no secret about the method in which they intend to

16

potentially prove that point.

17

the OCA talk about the fact that, yes, I reviewed the information.

18

determined it was properly classified at X point at the time that it

19

was compromised.

20

still classified and still should remain classified; and in my

21

determination, this information could cause damage to the United

22

States.

23

that they want you to take is, Your Honor, this information was the

And

They're going to bring in an OCA; have
I

I also reviewed it again and I determined that it's

The government then will argue that from that the inference

5912

09809

1

type of information both that PFC Manning reasonably should have

2

known could cause damage and is information that's related to the

3

national defense.

4

Well Diaz says, you know, that the OCA determination or the

5

classification determination is not the end all, be all.

It's some

6

evidence, but it's not beyond reproach; and in this case, the

7

government wants this court to take this as a de facto determination,

8

and such a determination ignores the elephant in the room, and the

9

elephant in the room in this case is we have a major problem with

10

overclassification; and the fact of overclassification significantly

11

weakens the inference that the government asks this court to draw

12

from the OCA's testimony.

13

listed, but other witnesses, even the government's own witnesses,

14

will talk about, you know, the fact that information is classified

15

much longer than it should be, and when you think about it, that

16

makes sense.

17

they're not for sure, and they say, "All right, I'm going to classify

18

this," the default is let's classify it for longer.

19

get in trouble for keeping information classified longer than it

20

needs to be?

21

what does the Overclassification Act do?

22

Act addresses that problem of saying, Look.

23

too often, for much too long.

If allowed, it's not just the witnesses we

An individual, if they're looking at something and

Who's going to

No one, and the court started this by asking, well,
And the Overclassification
We classify things much

We have way too many OCAs, and that

5913

09810

1

was something that exploded really in the -- in the '90s, people who

2

are classifying things left and right.

3

got exhibits that are classified by the government for 25-plus years;

4

their responses to certain things or their notification, just because

5

it contains a particular word of it -- that is currently classified,

6

but it's classified by the government, not an OCA.

7

you look at this problem and only when the court actually takes in to

8

a contextual understanding of classification, what it means and the

9

problem of overclassification can you make a determination that's not

Even in this hearing, we've

So you look at --

10

a determination made in a vacuum of whether or not this is, in fact,

11

information that could cause harm and whether or not this is

12

information that's related to the national defense.

13

Again, this kind of dovetails with our motion to compel

14

witnesses that will be done tomorrow, but the government, again,

15

wants to ignore the fact that it is a problem, and they want the

16

court to take the quick route of its classified, an OCA says so, so

17

it must, in fact, be damaging to the United States and PFC Manning

18

must, in fact, have known that when there are other individuals who

19

make classification determinations as well.

20

classification determinations to declassify information, and he will

21

talk about the fact that information in this case did not need to be

22

classified.

5914

Mr. Hall makes

09811

1
2
3

MJ:

Does he make classification determinations on the

information -- particular information in this case?
CDC[MR. COOMBS]:

No, he doesn't, but the problem, again, here,

4

he makes declassification determinations for his agency, and, again,

5

there has to be a fine line that, at least the defense is hoping,

6

that the court agrees with and that is an OCA does, in fact, have the

7

final say on how we handle something, that is -- that's true, but the

8

OCA does not have the final say in this courtroom on whether or not

9

this information reasonably -- PFC Manning reasonably should have

10

known it could cause damage to the United States and doesn't have the

11

final say on whether or not this information relates to the national

12

defense.

13

MJ:

14

CDC[MR. COOMBS]:

Well, I agree with that; that's up to the fact finder.
Exactly, and so the government is going to put

15

up the OCA in order to present its evidence to get the fact finder to

16

agree that he did have a reason to believe and it is national defense

17

information and we're just simply trying to offer the opposite with

18

our own fact witnesses who, in fact, do have expertise to make an

19

opinion, either because like in Colonel Davis's situation, he dealt

20

with information, or in Mr. Hall or Mr. Ganiel's situation where they

21

became fact witnesses based upon the research they've done and their

22

experience as intel analysts.

5915

09812

1

MJ:

Do you have any case law to point me where in a 793(e) or

2

any other of the elements here that an OCA's determination -- that

3

another witness can come in and say, "Well, based on my experience, I

4

just disagree with him.

5

CDC[MR. COOMBS]:

It shouldn't have been classified"?
Yeah, just about any -- well, I mean, fact --

6

straight on with somebody disagreeing with an OCA, no, although Diaz,

7

I think, establishes the foundation for the court to see that you can

8

question the determination of classification, ----

9

MJ:

I ----

10

CDC[MR. COOMBS]:

11

MJ:

but ----

---- I don't have any issues with that, you know,

12

cross-examining him -- cross-examining an OCA on, well, you know, be

13

aware of (a), (b), (c), (d), and (e), ----

14

CDC[MR. COOMBS]:

15

MJ:

Uh-huh.

---- yes, I was.

I did or didn't consider these things,

16

all of that, but do you have any case law where Witness B came in and

17

said, "Well, I'm a witness with intelligence expertise and I disagree

18

with the OCA"?

19

CDC[MR. COOMBS]:

20

MJ:

21

CDC[MR. COOMBS]:

22

MJ:

23

CDC[MR. COOMBS]:

Any 608(c) case where ----

I'm looking at a 793(e) case.

Have there been any ----

No, ----

---- of those cases ------- no, I meant, ----

5916

09813

1

MJ:

---- that have allowed that?

2

CDC[MR. COOMBS]:

---- Your Honor, any M.R.E. 608(c), where the

3

cases on this point are very, very clear and straightforward in that

4

the defense is entitled to explore any motive, bias, or prejudice.

5

Our opinion would be any OCA getting on the stand would have an

6

inherent motive, bias, or prejudice because of the fact, in this

7

instance, the government has declared itself as a victim of this

8

information.

9

say -- what OCA is going to get up and go, "You know what?

There is a natural tendency, then, if you're the OCA to
We

10

overclassified this.

11

No OCA is going to do that, and there is an inherent bias and

12

prejudice or motive to fabricate in this case where you would

13

exaggerate the harm and that bears out in the damage assessments and

14

that bears out in reality of what's happened since 2010 to today.

15

just about any 608(c) case would say any witness that gets on that

16

stand the defense is entitled to explore bias, prejudice, motive to

17

fabricate, and we can do that with extrinsic evidence and so that

18

would bring in witnesses.

19
20
21

MJ:

It shouldn't have been classified; our bad."

So

So what's the foundation for this opinion then; who gets to

come in and make an opinion that I disagree with the OCA?
CDC[MR. COOMBS]:

Well, again, and that's why it becomes

22

relevant and this is an issue that normally would play out when you

23

have the actual witness take the stand and testify.

5917

We have to

09814

1

establish the foundation for that witness's opinion; and, again, just

2

using Colonel Davis as the easiest, straightforward example, he would

3

say, "As the chief prosecutor, I was chief prosecutor for this time

4

period.

5

the time that I reviewed the DABs and my other prosecutors used them,

6

we used them primarily just for biographical information.

7

them 'baseball cards.'

8

not use that for intel collection and they were not based upon intel

9

collection.

I reviewed DABs on, you know, a quite frequent basis.

At

We called

They were not sensitive information.

We did

They were not updated once they were completed.

10

Subsequent judicial proceedings, subsequent documents prepared by my

11

office were much more detailed, were much more involved.

12

documents were not."

13

the fact that he can -- he can testify, "I know -- I might not have

14

seen," and that's one of the other objections by the government of,

15

well, he can't testify to the charged documents.

16

doesn't know for sure which charged documents because the government

17

hasn't given us permission to share those with him yet, but he can

18

say, "I've seen all of the DABs, so I'm sure I've seen the charged

19

documents," and I am aware of the fact that" ----

20

MJ:

21

CDC[MR. COOMBS]:

These

That would be the foundation for it, and then

Well he, yeah, he

Well as a -- he's seen all the DABs up until when?
When he -- when he stopped being the chief

22

prosecutor, but we didn't bring anyone else new there; all the DABs

23

were completed at that point.

And so not only that ----

5918

09815

1

MJ:

Just to make sure I'm clear, so it's the defense's position

2

that the DABs at issue in this case would be the same ones that were

3

pre-2007.

4

CDC[MR. COOMBS]:

Not pre-2007 per se.

They -- yes -- actually,

Yes, Your Honor.

The ones that are charged, I believe so, yes.

5

no.

6

I'll have to verify that, but I believe so, yes.

7

And our position would be that the Combatant Status Review

8

Tribunals that were part of a FOIA release by CENTCOM contains much,

9

if not all, of the information within the DABs.

Other publicly

10

released documents by the government in litigation, habeas litigation

11

contains much, if not all, of the information within the DABs.

12
13
14
15

MJ:

Publicly released before or after the alleged releases

here.
CDC[MR. COOMBS]:

Before, Your Honor.

And so because of that and with that foundation, then this

16

witness would testify, "You know what?

I understand that the OCA is

17

saying that this could cause serious damage to the United States or

18

this could cause damage to the United States.

19

there's my foundation for that.

20

entitled to present that evidence and obviously then the court would

21

take a look at everything, the inherent bias of the OCA, the other

22

evidence that the court has, the damage assessments, the documentary

23

evidence that we elicit through our witnesses in order to at that

I disagree," and

And so the defense should be

5919

09816

1

point make a determination along with now the context of knowing the

2

government overclassifies information and make a determination did

3

PFC Manning have a reason to believe or is this information related

4

to national defense.

5

MJ:

6

CDC[MR. COOMBS]:

7

ATC[CPT OVERGAARD]:

8

MJ:

9

All right, thank you.
Thank you, Your Honor.
Subject to your questions.

All right.
Because the issues in today's motions and tomorrow's

10

judicial notice motions are all intertwined, the court wants a full

11

picture of what's at issue here, so my plan is to take all of these

12

issues under advisement, we're meeting again next week, on the 16th

13

and 17th, but my goal is absent something that is unforeseen at this

14

time to at least have preliminary rulings for that session, but I'm

15

not going to have any rulings on these issues during this session.

16

CDC[MR. COOMBS]:

17

TC[MAJ FEIN]:

18

MJ:

19

Yes, Your Honor.

Yes, ma'am.

All right.
Major Fein, the only other thing that we have on the agenda

20

today is the release of the Article 13 opinion.

21

a recess or do you want to drive on?

22

TC[MAJ FEIN]:

23

MJ:

A short recess, Your Honor.

All right.

5920

Do the parties want

09817

1

CDC[MR. COOMBS]:

2

MJ:

3

TC[MAJ FEIN]:

4

MJ:

No objection, Your Honor.

Okay, how long would you like?
Fifteen minutes, Your Honor.

All right, court is in recess until 1415.

5

[The Article 39(a) session recessed at 1400, 8 January 2013.]

6

[The Article 39(a) session was called to order at 1418, 8 January

7

2013.]

8
9
10

MJ:

13

Let the

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

11
12

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

The court is prepared to rule on the Article 13 motion in
this case.
On 27 July 2012 the defense filed a motion to dismiss for

14

unlawful pretrial punishment, in violation of Article 13, Uniform

15

Code of Military Justice and the Fifth and Eighth Amendments to the

16

United States Constitution.

17

requests 10 for 1 sentencing credit from 27 August 2010 through 20

18

April 2011.

19

motion opposing dismissal and sentencing credit except for 7 days for

20

the period of 6 through 8 August and 19 and 20 January 2012 where the

21

Marine Corps Brig Quantico brig officer, which will now be referred

22

to as MCBQ for the brig and Brig O for the brig officer, maintained

23

the accused in Suicide Risk, SR, status after a medical officer

Alternatively, the defense motion

On 17 August 2012 the government filed a response to the

5921

09818

1

opined he was no longer considered to be a suicide risk, in violation

2

of Secretary of the Navy Instruction, SECNAVINST, 1640.9C, Enclosure

3

(1), paragraph 5(d).

4

on 24 August 2012 and by the government on 7 September 2012.

5

court also ordered the government to produce to the defense

6

approximately 1400 e-mails exchanged among Marine Corps Brig Quantico

7

command and staff and higher headquarters during the period of the

8

accused's confinement at MCBQ.

9

Supplemental briefs were filed by the defense
The

On 26 November through 2 December, 5 through 7 December,

10

and 10 through 11 December 2012, the parties presented testimony,

11

evidence, and argument regarding this motion.

12

briefs, heard the witnesses, and examined the e-mails and physical

13

evidence presented by the parties, the court finds and rules as

14

follows:

Having received the

15

Findings of Fact.

16

General -- Governing Regulations and Relevant Provisions.

17

SECNAVINST 1640.9C, 3 January 2006.

18

SECNAVINST 1640.9C governed corrections policy for the Navy

19

and Marine Corps during the period of the accused's confinement as a

20

pretrial detainee at MCBQ from 29 July 2010 through 20 April 2011.

21

Relevant portions of the SECNAVINST to this case are found in

22

Enclosure (1), Chapter 4, and are summarized below.

5922

09819

1

The SECNAVINST governs corrections policy for both post-

2

trial prisoners and pretrial detainees.

3

provisions must be read to apply primarily to post-trial prisoners.

4

The term "prisoners" includes both pretrial detainees and post-trial

5

prisoners.

6

1.

As such, some of the

Custody Classification Guidance.

The purpose of

7

custody classification is to establish the degree of supervision

8

needed for control of individual prisoners.

9

provides guidance for the supervision of prisoners and permits

Custody classification

10

establishment of security measures consistent with the requirements

11

of the individual.

12

variations in personality and mentality among prisoners.

13

is fair and impartial treatment, prisoners generally present no

14

serious disciplinary problems.

15

uncooperative; some have personality difficulties, which make them

16

chronic sources of trouble, such as highly aggressive -- as the

17

highly aggressive person or those acutely depressed.

18

made to identify all special cases and control measures instituted to

19

ensure the safety and orderly administration of the confinement

20

facility.

21

addresses the characteristics of the prisoners shall be used per

22

reference (t); the Correctional Management Information System,

23

CORMIS, electronic equivalent is also authorized.

The SECNAVINST recognizes there are wide
Where there

Some prisoners are deliberately

Efforts must be

An objective custody classification process which

5923

09820

1

2.

Pretrial Detainee Custody Classification.

Pretrial

2

detainees receive custody classification as either Maximum Security

3

(MAX) or Medium In (MDI).

4

MAX is appropriate for detainees who require special

5

custodial supervision because of the high probability of escape, who

6

are potentially dangerous or violent, and whose escape would cause

7

concern of a threat to life, property, or national security.

8

Ordinarily, a small percentage of prisoners shall be classified as

9

MAX.

10

The following procedures apply to prisoners classified as MAX

custody.

11

(1) Supervision must be immediate and continuous.

12

Department of Defense Form (DD) 509, Inspection Record of Prisoner in

13

Segregation, shall be posted by the cell door and appropriate entries

14

made at least every 15 minutes.

15
16

A

(2) They shall not be assigned to work details outside the
cell.

17

(3) They shall be assigned to the most secure quarters.

18

(4)

MAX prisoners shall wear restraints at all times when

19

outside the maximum security area and be escorted by at least two

20

escorts.

21
22

(5) On a case-by-case basis, the brig officer in charge may
authorize additional restraint for movement of MAX prisoners.

5924

09821

1

b.

Medium In (MDI) is appropriate for detainees who

2

present security risks not warranting MAX.

3

dangerous or violent.

4

classified as MDI custody.

5

They are not regarded as

The following procedures apply to prisoners

(1) Supervision shall be continuous within the security

6

perimeter and immediate and continuous when outside the security

7

perimeter of the confinement facility.

8
9
10
11

(2) They shall not be assigned to work outside the security
perimeter.
(3) They shall wear restraints outside the security
perimeter unless the Brig O directs otherwise; and

12

(4) They may be assigned dormitory quarters.

13

c.

Differences between MAX and MDI custody at MCBQ.

At

14

MCBQ, all detainees regardless of custody level live in individual

15

cells in Special Quarters 1.

16

cell; MDI may.

17

outside the maximum security area and must be escorted by at least

18

two escorts.

19

perimeter unless the Brig O directs otherwise.

20

members must be present when the MAX detainee is out of his cell.

21

MAX detainees must be checked on every 15 minutes with entries posted

22

on a DD 509, Inspection Record of Prisoner in Segregation.

MAX detainees may not work outside the

MAX detainees wear restraints at all times when

MDI detainees wear restraints outside the security

5925

Two or more staff

09822

1

d.

Classification Criteria.

Custody classification shall

2

be based on amount of supervision and restraint each prisoner

3

requires.

4

serious management problems, MAX, shall be assigned an MDI custody

5

classification during the reception phase.

6

custody classification results in a waste of prisoner and manpower --

7

and staff manpower.

8

classification as soon as possible.

9

All new prisoners except those specifically deemed to be

Ultra-conservative

Prisoners shall be placed in the lowest custody

(1) Non-all-inclusive factors considered in accessing

10

higher custody classifications, MDI or MAX:

11

(2) disruptive behavior; (3) serious drug abuse; (4) serious

12

civil/military criminal record, convicted or alleged; (5) low

13

tolerance of frustration; intensive acting out or dislike of the

14

military; (6) -- excuse me -- dislike of the military, and history of

15

previous escapes; (6) pending civil charges/detainer filed; (7) poor

16

home conditions or family relationships; (8) mental evaluation

17

indicating serious neurosis or psychosis; (9) indication of

18

unwillingness to accept responsibility for personal actions past or

19

present; demonstrated pattern of poor judgment; and (10) length, or

20

potential length, of sentence.

21

(1) assaultive behavior;

(2) Non-all-inclusive factors indicating lower custody

22

classifications, MDO, Minimum, or IC:

23

aside from the present offense; (2) close family ties; good home

5926

(1) clear military record,

09823

1

conditions; (3) offense charged is not serious; (4) apparently stable

2

mental condition; responsible for own actions; (5) indications the

3

individual wishes to return to duty; (6) comparatively short sentence

4

to confinement; however, length of sentence shall not be an

5

overriding factor; (7) behavior during a previous confinement; and

6

(8) completion of, or active participation in, treatment programs or

7

groups.

8
9

(3) The above factors are indicators, not ironclad rules.
The Brig O shall consider objective based overrides when applicable.

10

An evaluation of all phases of the prisoner's performance shall be

11

made prior to each custody change.

12

refers to factors considered in higher versus lower custody

13

classification.

14

Minimum Custody, or IC.

15

to determine whether MDI rather than MAX custody was appropriate.

16

Per the SECNAVINST, each staff member has the responsibility for

17

passing information concerning prisoners to the proper authority in

18

the confinement facility.

19

information may prove to be significant when coupled with other

20

information at hand.

21

berthing area, at work, in recreation, and in a classroom provide a

22

good overall indicator of problem areas and adjustment progress.

The court notes the SECNAVINST

Pretrial detainees are not eligible for Medium Out,
MCBQ considered lower classification levels

What seems to be a bit of trivial

Behavior and attitude of the prisoner in the

5927

09824

1

Continuous staff evaluation of each prisoner cannot be

2

overemphasized.

3

(3) Special Quarters.

Special Quarters is a group of cells

4

used to house prisoners who have serious adjustment problems, create

5

anxiety or disruption among other prisoners in the general

6

population, or who need protection from other prisoners.

7

preventive management tool, not to be used as a punishment, except

8

when the procedures for disciplinary segregation are followed.

9

SECNAVINST recognizes that some prisoners require additional

SQ is a

The

10

supervision and attention due to personality disorders, behavior

11

abnormalities, risk of suicide or violence, or other character

12

traits.

13

absence the Brig Duty Officers, DBO -- or BDO, excuse me, or Duty

14

Brig Supervisors, DBS, may authorize Special Quarters for such

15

prisoners for the purpose of control, prevention of injury to others

16

or themselves, the orderly and safe administration -- and the orderly

17

and safe administration of the confinement facility.

18

determine the need for continued administrative segregation of the

19

prisoner shall be conducted.

20

by a member of the confinement facility appointed in writing by the

21

Brig O and a written recommendation to the Brig O will be provided

22

within 72 hours of the prisoner's entry into segregation.

23

detainees in SQ shall be under the -- continual supervision, sighted

If required to preserve order, the Brig O or in his or her

A hearing to

This hearing may be by board action or

5928

All

09825

1

at least once every 15 minutes by a staff member, visited daily by a

2

member of the medical department and the Brig O with daily visits by

3

a chaplain encouraged.

4

Inspection Record of Prisoner in Segregation, shall be used to

5

document visits.

6

privileges restricted unless privileges must be withheld for reasons

7

of security or prisoner safety, i.e., suicide risk.

8

a prisoner is retained in SQ, the C&A board shall review and provide

9

a recommendation for the Brig O, who will determine and certify the

As with MAX custody detainees, DD 509,

Prisoners assigned to SQ shall not have normal

For each 30 days

10

requirement for continuation in SQ.

11

released to regular quarters as soon as the need for special

12

segregation is passed.

13

a.

Status.

A segregated prisoner shall be

Although the SECNAVINST does not use the word,

14

quote, unquote, status, Navy and Marine Corps corrections staff

15

routinely used the word "status" to define whether a detainee is

16

within the general population, in administrative segregation, or in

17

disciplinary segregation.

18

b.

AS.

The SECNAVINST defines "AS," administrative

19

segregation, to be the involuntary or voluntary separation for

20

specific cause of select prisoners from the general population to SQ

21

for the purpose of control, preserving order, prevention of injury to

22

themselves or others, and for the orderly and safe administration of

5929

09826

1

the confinement facility.

2

his or her absence the DBO or DBS.

3

c.

AS must be authorized by the Brig O or in

Suicide Risk and Prevention of Injury, SR and POI, as

4

AS.

Both SR and POI are subcategories of AS.

POI includes

5

prevention of injury to the prisoner and to staff.

6

retain a prisoner on POI rests with the Brig O.

7

provides that for behavior and custody problems, on rare occasions it

8

may be necessary to confine violent prisoners in cells without

9

furnishings to prevent them from injuring themselves or others.

The decision to

The SECNAVINST

Such

10

a measure shall be used only upon specific direction of the Brig O.

11

A segregated prisoner shall be released to regular quarters as soon

12

as the need for special segregation is passed.

13

additional guidance or criteria in the SECNAVINST for POI beyond that

14

of AS nor is there any specific requirement for mental health

15

provider input; however, the SECNAVINST encourages medical officer

16

participation in the C&A board where practicable.

17

SECNAVINST states in relevant part that prisoners who have threatened

18

suicide or made a suicidal gesture but are found fit for confinement

19

and prisoners with a history of suicide attempts or who are

20

considered suicidal may be placed in SR under continuous observation

21

-- excuse me -- be placed in Special Quarters, SQ, under continuous

22

observation while in the category of SR, Suicide Risk.

23

prisoners shall be immediately referred to the medical

5930

There is no

For SR, the

Such

09827

1

department/clinical services/ mental health department for further

2

evaluation and appropriate action.

3

a prisoner's clothing when deemed necessary.

4

permitted to retain implements with which they could harm themselves.

5

When prisoners are no longer considered to be SR by the medical

6

officer, they shall be returned to appropriate quarters.

7

unlike POI where authority to continue the status vests in the Brig

8

O, the SECNAVINST gives the medical officer authority to determine

9

whether and when to remove a prisoner from SR status.

10

d.

The Brig O may direct removal of

AS/SR/POI and MAX Custody.

They shall not be

Thus,

Although there are required

11

15-minute checks for both AS and MAX custody, there is nothing in the

12

SECNAVINST addressing whether MAX custody classification is required

13

for prisoners assigned to SQ under Administrative Segregation/Suicide

14

Risk or Administrative Segregation/POI.

15

5105(e) [sic] states that assignment to Disciplinary Segregation does

16

not automatically warrant a reduction to Maximum custody and

17

paragraph 5105(e)(9) states that prisoners released from DS shall

18

normally be placed in MDI custody.

19

The C&A board reviews custody classification and continuation in SQ

20

as Administrative Segregation/Suicide Risk or Administrative

21

Segregation/POI as separate determinations.

22
23

In contrast, paragraph

4. Classification and Assignment Board.

The C&A board

establishes an individual prisoner's custody classification using

5931

09828

1

objective classification/reclassification procedures.

When the C&A

2

board determines custody classifications, it shall be composed of the

3

Brig O or design -- his designate, one senior staff member from

4

security and one from programs, and any other members appointed by

5

the Brig O.

6

chaplain shall be assigned.

7

facility staff, representatives from outside the confinement

8

facility, such as a psychologist or chaplain, may be appointed to the

9

board.

At consolidated brigs, a mental health specialist and
Where practicable and not assigned to

The board meets at least weekly.

Prisoners may appear before

10

the board.

11

above.

12

C&A board may be reported in the CORMIS or DD Form 2711, Initial

13

Custody Classification; DD 2711-1, Custody Reclassification; and DD

14

27-2 [sic], Custody Initial/Reclassification Summary Addendum.

15

immediate action is necessary, the Brig O may make changes in

16

custody, classification, et cetera, without board action.

17

shall be part of the agenda for the next C&A board.

18

The C&A board uses the classification criteria described

The C&A board also reviews SQ prisoners every 30 days.

5.

Time for Sunshine/Recreation Call.

The

When

Changes

The SECNAVINST does

19

not use the term, quote, unquote, sunshine call.

It does use the

20

term, quote, unquote, recreation as a privilege.

A "privilege" is

21

defined as a benefit afforded to prisoners over and above minimum

22

statutory requirements.

23

violations but only after a due process hearing, e.g., a disciplinary

Privileges can be removed for rule

5932

09829

1

and adjustment, D&A, board.

2

limited to, commissary visits, phone calls, television, radio,

3

movies, recreation, special events, and special visits.

4

5105(e)(5) addressing policies for disciplinary segregation, the

5

SECNAVINST provides that a 1-hour exercise period shall be granted

6

daily when the prisoner's behavior is satisfactory.

7

is silent regarding a minimum amount of exercise period for non-

8

disciplinary segregated prisoners.

9

6.

Visitation.

Privileges often include, but are not

In paragraph

The SECNAVINST

The Brig O may deny visitation for good

10

cause, e.g., civilian or military protective orders; legitimate

11

rehabilitative interests; and good order, discipline, and security of

12

the facility.

13

general visiting of the confinement facility by groups or individuals

14

shall be coordinated with the local Public Affairs Office, PAO.

15
16
17

Official, Press, and Civilian Visits:

Requests for

Marine Base Quantico -- Marine Corps Base -- Brig Quantico
Base PCF Order P1640.1c, dated 1 July 2010.
The brig policies largely mirror the SECNAVINST.

Although

18

signed by CWO4 Averhart on 1 July 2010 on or about the time of the

19

brig transfer from a Level 1 to a pretrial detention facility, some

20

of the policies appear to address post-trial detainees and

21

functioning as a Level 1 facility.

22

supplements in comparison to the SECNAVINST are set forth below.

5933

Relevant differences or

09830

1

1.

Paragraph 2006 - SQ.

MCBQ has 36 single occupancy

2

cells,

3

in SQ are 6 feet wide, 8 feet long, and 8 feet high.

4

cells permit inmates to converse and be seen by other staff -- all

5

staff members.

6

SQ1 consisting of 30 cells and SQ2 with 6 cells.

All cells

SQ permits --

2. Paragraph 2007 - Exercise/Recreation and Training.

7

Outdoor exercise areas for general population will be provided to

8

ensure that prisoners receive at least one hour of exercise in

9

accordance with the Plan of the Day, POD; or PCF Supervisor; or CO

10

discretion.

11

prisoners within the population who cannot participate in general

12

population recreation call due to custody or current handling

13

requirements.

14

Prisoners in segregation will receive recreation call in accordance

15

with the Plan of the Day and their handling letter.

16

3.

An additional exercise area is provided for those

This area is contained within the locking gate.

Paragraph 6004(1) - Classification and Assignment,

17

Maximum Custody.

Prisoners requiring special custodial supervision

18

because of the higher probability of attempted escape due to

19

potentia1 length of sentence or because they are charged with a

20

dangerous or violent offense and escape would cause concern for a

21

threat or life to [sic] property.

22

maximum custody because they [sic] have been determined to pose a

23

threat to their own safety or another individual's safety.

5934

A prisoner may be designated as

09831

1

Ordinarily, only a very small percentage of prisoners should be

2

classified as maximum custody.

3

4.

Paragraph 6004(11)(d) - Special Quarters/Suicide Risk.

4

Those prisoners who have either attempted or considered committing

5

suicide will be aside -- will be assigned to MAX custody. Medical

6

officer approval is required.

7

considered to be suicide risks by a medical officer, they shall be

8

returned to appropriate quarters once the PCF commanding officer's

9

approval is given.

10

When prisoners are no longer

The court finds the PCF commanding officer is the

Brig O at Marine Corps Brig Quantico.

11

5.

Paragraph 6004(11)(e) - Special Quarters/POI.

Those

12

prisoners who have given an indication they intend or are

13

contemplating harming themselves or others will be assigned Maximum

14

custody.

15

paragraph 6004(1) above, which states that POI prisoners may be

16

considered for Maximum custody.

The court notes that this paragraph is not consistent with

17

6.

18

same as the SECNAVINST.

19
20

Paragraph 8031(a) - Authorized Visitors.

States the

Background - Prior to the Accused's Transfer to Theatre
Confinement Facility Kuwait on 31 May 2010.

21

1.

22

October 2007.

23

Missouri.

The accused's Basic Active Service Date, BASD, is
He attended basic training at Fort Leonard Wood,

On 28 March 2008 in his 9th week of training, while on

5935

2

09832

1

holdover status due to medical problems, the accused was command

2

referred to mental health for, quote, unquote, fits of rage.

3

accused reported he was increasingly anxious because of graduation in

4

5 days.

5

medications.

6

2.

The

He reported no prior mental health history and he was on no

The accused graduated from basic training, completed

7

advanced individual training at Fort Huachuca, Arizona, and did a

8

permanent change of station to Fort Drum on 18 September 2008.

9

3.

On 30 June 2009 the accused was command referred to

10

mental health at Fort Drum for difficulties adapting to his unit.

11

His NCOI -- noncommissioned officer in charge, NCOIC, Master Sergeant

12

Paul Adkins, reported that upon being confronted by his supervisor

13

for missing morning formation, the accused began screaming

14

uncontrollably and clenching his fists with his eyes bulged and his

15

face contorted.

16

breath, and collected himself.

17

health provider found any evidence of a significant mental health

18

problem.

19

as he desired after JRTC.

20

He screamed three times, then stopped, caught his
Neither the accused nor the mental

The accused was invited to return only if and as frequently

4.

On l9 August 2009 the accused self-referred to Fort

21

Drum mental health reporting he was isolating himself, losing

22

bearing, going downhill, crying, and feeling vulnerable.

23

reported he was going to break down that day and described a process

5936

He also

09833

1

of bottling up emotions.

2

taking medications, had a history of family dysfunction growing up,

3

and had been on Lexapro in the past.

4

an adjustment order [sic] with mixed emotional features.

5

5.

The accused further reported he was not

The accused was assessed with

On 15 September 2009 the accused was command referred

6

to the Fort Drum mental health clinic.

The mental health provider

7

described the accused as presenting almost rigidly physically and

8

emotionally throughout the discussion when no other probable cause

9

for his being sent is developed, his demeanor is reflected as perhaps

10

being perceived as odd by others, although there does not appear to

11

be anything diagnosable about it.

12

parents were alcoholics and that since separating from his mother he

13

has had to rely on himself for survival and for that reason very

14

carefully manages his interactions with others.

15

assessed with a personality disorder, not otherwise specified; mild

16

with cluster C characteristics, obsessive but not compulsive.

17

6.

The accused reported that both

The accused was

On 23 and 29 September 2009 the accused had follow up

18

appointments at Fort Drum mental health clinic.

19

about the accused using intellectualization to avoid contacts that

20

may for some reason be emotionally difficult for him.

21

29 September 2009 assessment found the accused had adjustment

22

difficulties typical of persons in their 20s, which he was quite

23

consciously exploring and engaging.

5937

Discussion ensued

He was doing fine.

The

The mental

09834

1

health provider anticipated one or two meetings -- more meetings

2

prior to the accused's deployment.

3
4

7.

The accused deployed with his unit to Forward Operating

Base, FOB, Hammer, Iraq, on 11 October 2009.

5

8.

On 24 December 2009 the accused was command referred to

6

FOB Hammer Combat Stress Clinic for a command directed evaluation due

7

to anger outbursts over the past month and a half where he shoved a

8

chair and began yelling at his NCOIC, Master Sergeant Paul Adkins,

9

after he counseled him on the loss of a room key and yelled and

10

flipped a table when counseled by two supervisors.

11

reported that in 2005, he was prescribed Lexapro by a family

12

physician for problems he was experiencing with his stepmother and he

13

was referred to a physician by his aunt in 2007 due to anxiety

14

attacks he was having and once again put on Lexapro.

15

his current condition, the accused reported he was working the night

16

shift with three other Service Members and that it was lonely.

17

reported persistent worry and anxiety about oversleeping and being

18

late for duty and also a hypersensitivity to criticism of his

19

mistakes.

20

otherwise specified with cluster B/C personality traits and insomnia.

21

The accused had a normal mental status examination.

22
23

The accused

With respect to

He

The accused was assessed with an anxiety disorder not

9.

The accused had follow-up visits on 30 December 2009, 6

January 2010, 16 February 2010, 2 March 2010, 16 March 2010,

5938

23

09835

1

March 2010, 30 March 2010, and 6 April 2010.

2

problems he was having with a supervisor who was another E-4, his

3

difficulties in relating to people and how that manifests itself, and

4

his discomfort and guard when deflecting issues too close to his,

5

quote, unquote, comfort zone.

6

interventions to address his discomfort with discussing emotions or

7

sharing personal feelings.

8

focused on maintaining his behavior and expecting a different outcome

9

from other people.

10

10.

The accused discussed

The accused was reluctant to engage in

The accused was anxious and remained

Prior to 8 May 2010, the accused was not assessed to

11

be at risk of harm to himself or others.

12

was brought to the clinic by his NCOIC because he struck another

13

Soldier in the jaw.

14

provider that he desired to be opposite sex when grown and was coming

15

to grips about openly revealing that.

16

openly with a wig as Breana Manning for 3 days while on leave.

17

Although not assessing the accused as a threat for harm to himself or

18

others, the mental health provider placed the accused on unit watch

19

and recommended that the command bring the accused to the Combat

20

Stress Clinic daily.

21

On 8 May 2010, the accused

The accused disclosed to the mental health

He also reported he lived

On 10, 12, 13, 15, and 19 May, the accused had follow-up

22

appointments at the Combat Stress Clinic.

23

12 and 15 May 2010 appointments.

He did not show for the

The accused advised he had been

5939

09836

1

transferred to the company and was doing clerical work that was

2

beneath him.

3

concerned over what his future would be in the Army.

4

remained on unit watch.

5

12.

6
7

He also expressed remorse for the assault and was
The accused

On 17 May 2010, the accused received a company grade

A1ticle 15 for the assault.
13.

On 22 May, the accused's mental health provider opined

8

that his emotional and behavioral systems -- symptoms continue to

9

impair -- to cause impairment, the accused's progress for

10

rehabilitation was considered poor, and that a separation under Army

11

Regulation 635-200, Chapter 5-17 be initiated.

12

14.

On 26 May 2010, the accused had a follow-up visit at

13

the Combat Stress Clinic.

14

the assault and had his rank reduced.

15

modified unit watch without access to a weapon.

16

15.

He reported he received the Article 15 for
The accused remained on

On 28 May 2010, the accused's mental health provider

17

was advised that the U.S. Army Criminal Investigation Division was

18

investigating the accused for compromising secret information.

19

was assessed to be at high risk of suicide, homicide, or AWOL and

20

remained on unit watch.

21

guard by escorts.

22

contacted a colleague, Specialist Rebecca Schwab, gave her pieces of

He

The accused was also required to be under

On the evening of 28 May 2010, the accused

5940

09837

1

paper, and asked her to check his e-mail and investments for him and

2

to open the e-mails, read, and write down whatever was in them.

3

16.

The accused was placed in pretrial confinement at FOB

4

Hammer Brig on 29 May 2010.

He was transferred to the Theater Field

5

Confinement Facility, TFCF, in Ku -- at Camp Arifjan, Kuwait, on 31

6

May 2010.

7

Corps Brig Quantico on 29 July 2010.

The accused remained at TFCF until his transfer to Marine

8

TFCF Kuwait 31 May to 29 July 2010.

9

1.

On 1 June 2010, the accused's initial class -- custody

10

classification was Medium custody.

He was held in administrative

11

segregation in a cell in Echo-1 tent.

12

collapsed in his cell.

13

2.

On 2 June 2010, the accused

The accused was subsequently moved into the general

14

population 20-man tent with three to six other detainees.

15

was at 2200 and the day ended at 1300 or 1400.

16

participated with the other detainees in outdoor recreation call and

17

visits to the dining facility and the recreation tent.

18

3.

Reveille

The accused

On or about 9 June 2010, the accused announced in front

19

of a group of detainees that he was gay after he became agitated they

20

were making negative comments about gay people.

21

June 2010 by MACM Chris Moore if he felt threatened by the other

22

inmates, the accused responded he didn't feel threatened but they

23

might feel threatened.

When asked on 11

After the interview, the accused took deep

5941

09838

1

breaths as if having an anxiety attack. Captain Balfour from Kuwait

2

Mental Health Clinic arrived.

3

was sorry.

4

often became nonresponsive to verbal communications and orders from

5

cadre, followed by an anxiety attack.

6

around in circles outside the yard before finally laying down on the

7

ground and refusing to stand up.

8

to his cell.

9

The accused started crying saying he

He subsequently advised cadre he was gay and a woman.

He

During one incident he ran

The accused had to be carried back

On 14 and 8 -- 14 and 28 June 2010, the accused was seen at

10

the Kuwait Mental Health Clinic to address concerns with anxiety.

11

presented with disheveled hair, although otherwise unremarkable.

12

There was no evidence of current suicidal or homicidal ideation or

13

intent.

14

5.

He

On 30 June 2010, after an inspection by MA2 Murin, the

15

accused became unresponsive to commands and began yelling

16

uncontrollably.

17

Mental Health Officer.

18

cell.

19

shaking, babbling, and banging the back of his head into an adjacent

20

wall.

21

constant watch while he continued to mumble and bang the back of his

22

head against the floor.

MA2 Murin called Captain Balfour, the TC -- TFCF
Both of them ordered the accused into his

The accused refused.

The accused then began screaming,

The accused was then placed into a cell in Echo-03 tent with

The accused also knotted sheets into nooses.

5942

09839

1
2
3

6.

On 30 June 2010, the accused was reclassified to

Maximum Custody/Administrative Segregation/Suicide Watch 1:1.
7.

On 3 July 2010, Captain Iverson, the Commanding

4

Officer, Expeditionary Medical Facility Kuwait formally requested the

5

Commander, Theatre Field Confinement Facility, to transfer the

6

accused to a facility with a separate locked and specialized

7

psychiatric ward or psychiatric nurses, both of which would be

8

required to manage a case of this high level of -- this level of high

9

risk and complexity for any extended amount of time.

Captain Iverson

10

described the accused's condition as complex and appearing to be

11

long-term requiring close monitoring, one to one observation.

12

11 July 2010, the Commander, 1st Armored Division and U.S. Division,

13

Center sent a memorandum to Commander, Army Corrections Command

14

advising that the Commander, Third Army/ARCENT order the transfer of

15

the accused from TCF - TFCF Kuwait.

16

requested transfer of the accused to Mannheim Area Confinement

17

Facility, Mannheim, Germany, the accused was ultimately transferred

18

to Marine Corps Brig Quantico on 29 July 2010.

19

8.

On

Although the memorandum

On 5 July 2010, the accused was advised of the original

20

charges preferred against him.

Those charges were:

21

specifications of Article 92, UCMJ, violations; and eight

22

specifications of Article 134, UCMJ, violations, to include one

23

specification assimilating 18 United States Code Section 793(e);

5943

four

09840

1

three specifications assimilating 18 United States Code Section

2

1030(a)(1); and four specifications in violation of Title 18 United

3

States Code Section 1030(a)(2).

4

imposed for the charged offenses would be reduction to the grade of

5

E-1, total forfeiture of all pay and allowances, confinement for 68

6

years, and a dishonorable discharge.

7

9.

The maximum sentence that could be

On l0 July 2010, the Article 32 investigating officer

8

scheduled the Article 32 investigation for 14 July 2010.

9

2010, the accused was notified.

10
11

On 12 July

The Article 32 investigation was

subsequently delayed and did not begin again until 16 December 2011.
10.

On 30 June 2010, the accused was seen by -- seen at

12

the Kuwait Mental Health Clinic.

The providers, Drs. Weber and

13

Hutcheson, reported increased levels of regressive behavior by the

14

accused, to include rocking himself, sitting on the floor immobile

15

despite requests that he move, and making nooses.

16

interview, the accused stated he didn't intend to use the nooses but

17

wanted to have the option of hurting or killing himself, even if he

18

didn't really do it.

19

said he wouldn't tell anyone if he was thinking about doing it

20

because that would defeat the purpose.

21

sleeping poorly and was confused with mood swings.

22

and exhausted and sat almost the entire time with his knees pulled

23

against his chest and his arms hugging his chest, looking into space

During the

He wouldn't deny current suicidal ideations;

5944

The accused stated he was
He appeared thin

09841

1

as he spoke.

2

chronic suicide ideations without any delineation or plan or intent

3

currently.

4

remain in his cell with alert 1:1 watch.

5

Clonazepam for insomnia and Citalopram.

6
7
8
9

The mental health providers noted that the accused had

The mental health providers recommended the accused to

11.

They also prescribed

The accused had the following follow-up sessions at

U.S. Mental Health Kuwait:
a.

On 1 July 2010, Dr. Weber saw the accused in his cell.

His hair was disheveled, his eyes red and tearful and displayed poor

10

eye contact, staring off into the distance.

11

being scared and hopeless.

12

plan without specific intent and he would not tell anyone if he did

13

attempt -- intend to attempt suicide.

14

accused be transferred to a facility with more resources for higher

15

care, evaluation, and treatment.

16

b.

The accused reported

He again reported suicidal ideation and

Dr. Weber recommended the

On 2 July 2010, the accused was seen by Dr. Richardson.

17

In addition to the notes from 1 July 2010, this report noted the

18

accused was collecting several items that could potentially be used

19

for potential self-harm, such as metal.

20

ambiguous about discussing suicidal thoughts, stating he was still

21

confused and uncertain.

22

contract for safety or notify any staff if he decided to harm himself

23

or had increasingly -- increasing suicidal ideation.

The accused remained

The accused stated clearly he would not

5945

09842

1

c.

On 4 July 2010, the accused was again seen by Dr.

2

Richardson and Dr. Weber.

The accused's glasses had been returned.

3

During the session the accused described being seen by a psychologist

4

who thought he had obsessive compulsive disorder, possible

5

generalized anxiety disorder, and attention deficit hyperactive

6

disorder.

7

quote, I don't know how I am supposed to feel, and again declined to

8

contract for safety or inform staff if he had a suicidal ideation.

9

The accused remained in diagnostic elevated high risk of self-harm,

When asked about suicidal ideations, the accused said,

10

remained on suicide watch 1:1, and recommended to have one book in

11

his cell.

12

d.

On 6 July 2010, the accused was again seen by Dr.

13

Weber.

14

and discussed his IQ range.

15

considers suicide an option and feels a sense of relief that he is

16

able to have the option available if needed.

17

for safety and inform anyone if -- or inform anyone if he had a

18

suicidal ideation.

19

He discussed reading, quote, unquote, Hunt for Red October

e.

He appeared less anxious but reported he

He continued to decline

The accused was seen by Dr. Richardson on 8 and 10 July

20

2010.

Although his anxiety appeared to be superficially calmer, he

21

remained ambiguous about his condition and safety, starting on 10

22

July 2010 in response to a direct question about whether he wanted to

5946

09843

1

kill himself, quote, Not right now, unquote, and, quote, It is always

2

an option, unquote.

3

f.

Again, he would not contract for safety.

On 12 July 2010, the accused was seen by Dr.

4

Richardson.

He admitted he would like to die and have it all be over

5

and he would take his life if he was sure he could.

6

pain but did want death.

7

and how permanent and how long-standing the matter was, was settling

8

in.

9

dying and that he was a, quote, unquote, patient man.

He did not want

He may or may not get out of the situation

The accused further stated he was at peace with the option of
The accused

10

was found as heightened risk of self-harm and suicide watch 1:1

11

remained.

12

g.

On 14 and 16 July, the accused had further follow-up

13

with Dr. Richardson.

14

moving him to another facility.

He was frustrated and wanted to be

15

moved off suicide precautions.

On 16 July 2010, the accused said he

16

would not hurt himself but admitted that he tried to lift the pin on

17

his cell door in the past and thought he could be successful.

18

Richardson believed the accused's statements that he would not hurt

19

himself were made to get off suicide precautions.

20

h.

He was aware there was consideration about

Dr.

On 19 July 2010, the accused saw Dr. Richardson and was

21

noticeably irate and frustrated, stating he didn't have control over

22

his future.

23

stated he would not kill himself, his reliability was poor.

Dr. Richardson determined that although the accused

5947

Quote,

09844

1

His statements are taken in context of his assessment over a period

2

of time.

3

future, and would kill himself if he knew that he would die.

4

added -- he had added that he is a patient man.

5

recent statement seems to be in context of wanting a change in status

6

and what he wears.

7

talking about his emotions, such as when he disclosed his

8

helplessness.

9

community, the accused acted out and decompensated.

He previously stated he accepted his death, that he had no
He also

The accused's more

There is little depth to his conversation when

When interacting with others in the correctional
He also acted in

10

an unreliable way, making two nooses, collecting other items that

11

could be potentially used for self-harm, and seemingly deceitful

12

about that.

13

decompensated in that similar environment at this time.

14

discussion with Captain Balfour, there are limited resources at this

15

facility; that combined with the member's unpredictability would

16

create vulnerabilities about his safety.

17

The accused has a very fragile ego which could be

i.

In

On 21 July, the accused saw Drs. Weber and Richardson.

18

The accused's anxiety and frustration levels were improved; essential

19

elements of daily life, including physical care and intellectual,

20

social, and spiritual health.

21

reported exercising and eating well with an increase -- increasing

22

abilities to find meaning in moments.

23

elevated risk.

He was reading Tom Clancy novels and

The accused remained at

The possibility of transfer raises his risk and a

5948

09845

1

transitional point for him.

2

diagnosis of depressive disorder not otherwise specified requiring

3

further time and observation to make a final diagnosis.

4

j.

The accused was given a provisional

On 24 July, the accused saw Dr. Richardson.

He was

5

angry and irritated with a focus on trying to change his status and

6

1:1 watch.

7

the sense of relating to the quality of his life and was considering

8

legal action.

9

issue.

The accused stated he did not care about his safety in

Dr. Richardson explained that safety was a priority

In the recent past, the accused was with other inmates.

10

There were rules he was expected to follow and did not; and that by

11

making one or two nooses, collecting things that could potentially be

12

used for self-harm, and he did not do well emotionally in the

13

community setting.

14

placing him on suicide watch but he was a quote, unquote, different

15

person now.

16

the accused with the CO of TFCF; 15-minute checks were the next step

17

down.

18

restriction.

19

k.

The accused stated he understood the reasons for

Dr. Richardson discussed reducing the restrictions on

Both opined the risk was still too high to implement the

On 27 July 2010, the accused was seen by Dr. Weber who

20

found him to be receptive and eager to engage.

21

medications were helpful and that he felt safe.

22

improvement, Dr. Weber did not recommend decreasing the 15-minute

23

checks on the accused because of the setting and limited resources in

5949

The accused felt the
In spite of the

09846

1

Kuwait and because the accused still demonstrated a large amount of

2

mood lability, splitting, potential manipulation, and low ego

3

strength.

4

On 28 July 2010, Dr. Richardson prepared a summary of

5

mental health condition and treatment of the accused during his time

6

in confinement at TFCF.

7

disorder not otherwise specified, depressive disorder not otherwise

8

specified; Provisional, R/oMDD, Probable Gender Identity Disorder by

9

previous assessment.

10

12.

The Assessment for Anxiety I was anxiety

On 29 July 2010, the deputy commander of the

11

confinement facility at Kuwait, Lieutenant Commander Jeffrey Barr,

12

prepared a memorandum for record regarding the accused's confinement

13

in Kuwait.

14

with normal behavior during intake and for the initial few days, but

15

then began to exhibit abnormal behavior and his mental state

16

deteriorated.

17

on 24-hour suicide watch for the remainder of his detention there.

18

Prior to being placed on suicide watch, the accused announced he was

19

gay when he overheard other detainees making negative remarks about

20

homosexuals; and during the day following -- days following the

21

incident, he told cadre he was gay and a woman.

22

become nonresponsive to verbal communications and orders from the

23

cadre which were sometimes followed by an anxiety attack.

Lieutenant Commander Barr observed the accused presented

Ultimately, the confinement facility had to place him

5950

He would often

During one

09847

1

incident, the accused ran around in circles before lying down in the

2

yard and refusing to stand up.

3

During a routine cell check, cadre found the accused curled in a ball

4

with a bed sheet tied into a noose next to him on the floor.

5

health professionals evaluated him on several occasions throughout

6

his confinement.

7

quote, unquote, emotionally decompensated and was at high risk to

8

harm himself or suicide.

9

with adequate specialized resources and mental health professionals

10

available to manage his case over an extended period of time, which

11

did not exist in the facility in Kuwait.

12
13

13.

Mental

They found he had mental issues, to include being,

They recommended transfer to a facility

On 29 July 2012, the accused was transferred from TFCF

to Quantico.

14
15

Cadre had to carry him to his cell.

Military -- or Marine Corps Brig Quantico 29 July 2010 to
20 April 2011.

16

1.

On or about June 2010, as a result of the Base

17

Realignment and Closure Act of 2005, BRAC, Marine Corps Brig Quantico

18

was converted from a Level 1 facility to a pretrial confinement

19

facility, PTC.

20

Quantico was not structured to be a long-term pretrial confinement

21

facility.

22

Quantico for 30 days pending transfer.

23

was not resourced to house pretrial detainees for more than 180 days;

Resourcing was cut 50 percent.

Marine Corps Brig

Post-trial prisoners could be held at Marine Corps Brig

5951

Marine Corps Brig Quantico

09848

1

see Pretrial Confinement Zero Based Review at Appellate Exhibit 280,

2

volume 3 of 6, pages 00513119 and 00513073 to 88.

3

housed at Marine Corps Brig Quantico after July 2010 were typically

4

held from two weeks to three months.

5

not resourced for long-term mental health or other treatment

6

programs.

7

detainees at Marine Corps Brig Quantico were assigned custody

8

classification of either MAX or MDI.

9

regardless of custody level were housed in individual cells in

Pretrial detainees

Marine Corps Brig Quantico was

There were no organic mental health assets.

Pretrial

All pretrial detainees

10

Special Quarters 1 that were 6 feet wide by 8 feet long by 8 feet

11

high.

12

pretrial detainees at Quantico regardless of custody level and

13

status.

14

Marine Corps Brig Quantico, the brig averaged between 5 and 20

15

prisoners staying a length of two weeks to approximately 3 or 4

16

months.

17

Corps Brig Quantico was on POI status longer than a few weeks.

18

The accused was housed in the same size cell as all other

During the 264 days the accused was in pretrial detention at

No other prisoner during the accused's tenure at Marine

2.

At the time of the accused's arrival at Marine Corps

19

Brig Quantico on 29 July 2010 CWO4 Averhart was the Brig Officer in

20

Charge, Brig O; Master Sergeant Papakie was the Brig Supervisor;

21

Master Sergeant, then Gunnery Sergeant, Blenis was the Chief of

22

Programs and Senior Counselor.

23

accused's counselor.

Master Sergeant Blenis was also the

Captain Hocter provided mental health support

5952

09849

1

for Military -- Marine Corps Brig Quantico as an ancillary duty.

2

was not an organic asset for the brig.

3

health services to the brig since 2006 and was the mental health

4

provider when Captain Webb committed suicide on or about spring of

5

2010.

6

He

He had been providing mental

From 2010 to the present -- 3.

From 2010 to the present,

7

prevention of suicide has been a top priority for the Department of

8

Defense and all of the military services.

9

prevention training is mandatory across the military services.

Suicide awareness and

10

Marine Corps Brig Quantico had a pretrial detainee suicide, Captain

11

Webb, that's a Navy captain, during the year before the accused

12

arrived.

13

Captain Hocter provided mental health support to the brig.

14

not recommend Captain Webb be placed on Suicide Risk or Prevention of

15

Injury status.

16

brig staff.

17

staff was hyper-vigilant regarding their duty to prevent pretrial

18

detainees from attempting or committing suicide.

19

mistrusted Captain Hocter's judgment as a mental health provider

20

because they believed he missed the indicators for suicide risk in

21

the Captain Webb case.

22

POI status was to err on the side of caution, even overcaution.

Many of the brig staff worked at the brig during that time.
He did

Captain Webb's suicide was a traumatic event for the

At the time of the accused's arrival, Marine Corps brig

They also

Their approach to maintaining the accused on

5953

09850

1

4.

On or about 28 July 2010, the brig was initially

2

notified of the accused's arrival.

3

accused's mental health history in Kuwait.

4

accused's pending transfer to Marine Corps Brig Quantico as a

5

potential long-term pretrial detainee, Colonel Choike, Quantico

6

Installation Commander, called Major General Horst, the accused's

7

General Court-Martial Convening Authority, to advise him of his

8

concerns about the brig's lack of resources for long-term pretrial

9

detainees.

10

5.

They were also aware of the
Upon learning of the

On or about 28 July 2010, Colonel Choike held a staff

11

meeting that included Colonel Oltman, Security Battalion

12

Commander; Lieutenant Colonel Greer -- I'm sorry -- Lieutenant

13

Colonel Greer, Quantico Deputy SJA; CWO4 Averhart, the Brig O;

14

Quantico PAO staff; and other brig staff to address management of the

15

accused upon arrival.

16

the Quantico Senior Mission Commander, did not attend the meeting but

17

was aware it occurred.

18

Colonel Choike, Lieutenant Colonel Greer, PAO, and Chief Averhart

19

were aware that the accused was a high profile detainee who would

20

bring media and other attention to the Quantico brig and base.

21

Colonel Oltman ordered CWO4 Averhart to prepare a weekly report

22

regarding the status of the accused.

23

report to Colonel Oltman who would then forward the report to Colonel

Lieutenant General Quinn -- Flynn, excuse me,

The brig staff as well as Colonel Oltman,

5954

CWO4 Averhart would forward the

09851

1

Choike.

2

received them from Colonel Choike, although perhaps not routinely.

3

Weekly reports on the accused began on 10 August 2010 and continued

4

until the accused was transferred on 20 April 20ll to Joint Regional

5

Confinement Facility, JRCF, with the final weekly report prepared on

6

13 April 2011.

7

weekly counseling notes of the accused and any significant events

8

evolving -- involving the accused that occurred that week.

9

Lieutenant General Flynn was aware of the weekly reports and

6.

The weekly reports included Gunnery Sergeant Blenis's

After the accused arrived at MCBQ, Lieutenant General

10

Flynn was engaged both with Colonel Choike and Colonel Oltman on the

11

brig side and with Captain Mary Neill, Commander, Naval Health Clinic

12

and Captain Hocter's supervisor on the mental health side.

13

9 August 2010, at 1342, Lieutenant General Flynn sent an e-mail to

14

Colonel Oltman and Choike with a 9 August 2010 New York Times article

15

about the accused.

16

suicide in the brig, the command needed to cover down on lessons

17

learned from that case.

18

absolute necessity of keeping a close watch on the accused, to

19

include brig, medical, chaplain, and transport personnel.

20

General Flynn believed the accused's life had completely fallen

21

apart, making him a strong candidate -- from Lieutenant General

22

Flynn's perspective -- to take his own life.

23

responded that Captain Neill agreed to prepare weekly mental health

On

Lieutenant General Flynn stated that with one

Lieutenant General Flynn stressed the

5955

Lieutenant

Colonel Choike

09852

1

reports from Captain Hocter regarding the accused's mental health

2

status and to forward these reports to Colonel Oltman and Colonel

3

Choike.

4

Weekly reports from the brig.

5

General Flynn responded to Colonel Choike, quote, Dan, Just want to

6

make sure that you all know my intent and concerns.

7

secure mental health ward at Walter Reed?

8

makes the call on his confinement location as well as his mental

9

fitness?

The mental health status reports were in addition to the
On 9 August 2010, at 1641, Lieutenant

Is there a

What medical authority

For how long are suicide risk -- watch in Skivvies and a

10

blanket proper?

Please make sure that there are procedures -- that

11

our procedures are correct, we have good assumptions, and we are

12

applying the regulations correctly, unquote.

13

1723, Captain Neill reported to Colonel Choike that Captain Hocter

14

opined the accused no longer needed to be on Suicide Risk as of

15

6 August 2011 and recommended changing the status to POI.

16

9 August 2010, at 1819, Colonel Choike forwarded the mental health

17

status report to Lieutenant General Flynn with an e-mail stating he

18

had spoken with Colonel Oltman earlier who advised the Brig O

19

preference was to remain on SR a few more days.

20

per the SECNAVINST the medical officer has authority to determine

21

when to remove a prisoner from SR status.

22

On 9 August 2010, at 1950, Lieutenant General Flynn responded with an

23

e-mail to Colonel Choike, asking, quote, With the status being

5956

On 9 August 2010, at

On

The court notes that

See paragraph 3.c. above.

09853

1

changed by the medical authority, what is the logic for continuing

2

other than OIC preference? unquote.

3

the SJA; and Colonel Oltman were all cc'd on these e-mails.

4

the brig staff was cc'd.

5

communicate directly with the Brig O or the brig staff.

6

order brig officials to classify the accused in a particularly --

7

particular custody classification or status.

8

brig decisions regarding the accused's custody or classification.

9

His intent was to ensure that appropriate regulations and procedures

Captain Neill; Colonel Miner,
None of

Lieutenant General Flynn did not
He did not

He did not influence

10

were being applied correctly with common sense and that the accused

11

was receiving appropriate mental health treatment, that brig staff

12

and mental health providers were coordinating, and that the accused

13

was safe.

14

O or the brig staff to reach any particular conclusions regarding the

15

accused's status or custody.

16

Neither Colonel Choike nor Colonel Oltman ordered the Brig

7.

On the evening of 29 July 2010, the accused arrived at

17

Marine Corps Brig Quantico and began the indoctrination phase.

18

completing his inmate background summary's mental health section, the

19

accused indicated he had considered suicide and wrote in the remarks

20

section, quote, Always planning, never acting, unquote.

21

was not ordered to fill in remarks or told what remarks to write.

22

wrote, quote, Always planning, never acting, unquote, of his own

23

volition.

5957

While

The accused
He

09854

1

8.

The accused scored a "5" on the management factors for

2

initial custody classification.

This would result in a custody level

3

of MDI.

4

MAX Custody/Suicide Risk.

5

reviewed the classification of the accused.

6

recommend MAX custody with indoctrination and SR status.

7

CWO4 James Averhart, approved the recommendation of the DBS and C&A

8

board.

The DBS did an override to initially classify the accused as

9

9.

Also on 29 July, the Class -- C&A board
All three members
The Brig O,

A three-member C&A board met weekly to review the

10

accused's custody level and status.

Master -- Gunnery Sergeant

11

Blenis, the accused's counselor, was normally the senior member of

12

the board.

13

recommended custody level and status before the board met.

14

results were documented in CORMIS but not on Brig Form 4200.1,

15

January 11, until after the review of 3 January 2011.

16

review, the board results were documented on Brig Form 4200.1 until

17

the accused was transferred from Marine Corps Brig Quantico.

18

board consistently remembered that the -- recommended that the

19

accused remain in MAX custody and on POI status, except for two

20

occasions where the board recommended the accused be placed in SR

21

status [pause] -- or, excuse me, except on one occasion where the

22

board recommended that the accused be placed on SR status; that would

23

be 18 January 2011.

Gunnery Sergeant Blenis prepared the paperwork and
Board

After that

The

Both Brig O's, CWO4 Averhart and CWO2 Barnes,

5958

09855

1

approved all of the C&A board recommendations.

The decision to

2

maintain the accused in MAX custody and POI status were based on

3

similar factors, the accused's history of violence toward himself and

4

others in FOB Hammer and Kuwait, his statements in Kuwait and on his

5

intake form that he was, quote, unquote, a patient man, quote,

6

Suicide is always an option, unquote, and, quote, Always planning,

7

never acting, unquote, indicating a never-ending time when the

8

accused may be considering suicide, the nature of the offenses

9

charged, the length of the potential sentence, poor family

10

relationships, low tolerance for frustration, requirement for mental

11

health treatment, and on the accused's guarded interaction and lack

12

of communication with his counselor and the brig staff.

13

18 January 2011, the C&A board and the Brig O, CW2O [sic] Barnes,

14

added factors of disruptive conduct by the accused on 18 January

15

2011, his statements to the board that his initial form, "Always

16

planning, never acting" may have been false and his current

17

reassurances to the board that he was not suicidal may also be false.

18

On 2 March 2011, the C&A board and the Brig O added factors of the

19

accused's 2 March 2011 statement to Master Sergeant Papakie that he

20

could use the waistband of his underwear to kill himself, the

21

increased stressors to the accused of the receipt of new charges,

22

including aiding and abetting the enemy with a potential sentence of

23

life without parole or death if a capital referral, and the accused's

5959

After

09856

1

almost complete withdrawal from communication with the brig staff.

2

After 6 April 2011, the Brig O also considered manipulative and false

3

statements made by the accused to Lieutenant Colonel Russell and

4

increasing incidents of minor violations of the brig SOP.

5

2 March, also the accused removing visitors from his visitation list.

6

10.

And after

Captain Hocter was the mental health provider for the

7

accused from 29 July 2010 to 18 January 2011 when he deployed.

8

Because the accused was an Army Soldier, he consulted with Colonel

9

Malone, a mental health care provider from the Army to add

10

credibility to his assessments of the accused.

Captain Hocter

11

visited the accused at least weekly and issued a one-page form to the

12

C&A board entitled, quote, Suicide Risk and Prevention of Injury

13

Assignment Review.

14

following action is recommended for subject:

15

Job.

16

The form then had four block checks:

17

a threat to himself or not; (2) whether the detainee requires further

18

mental evaluation; (3) whether the accused needs to be segregated

19

from the general population or not; and (4) whether the detainee has

20

a low or average tolerance of frustration or stress.

21

checks are lines for the medical officer's remarks.

22

submitted SR and POR -- POI AR to the C&A board on the following

23

dates:

The top line of that form stated, quote, The
Custody, Squad Bay,

The, quote, Job portion is where SR or POI was recommended.
(1) whether the detainee poses

Below the block
Captain Hocter

30 July 2010, SR recommendation; 6 August 2010, POI

5960

09857

1

recommendation; 20 August 2010, POI recommendation; 27 August 2010,

2

3, 10, 17, and 24 September 2010, Off POI recommendation/15-minute

3

checks for MAX custody sufficient; 15, 22, and 29 October 2010,

4

19 November 2010, Off POI recommendation; undated form between

5

27 September and 15 October 2010, Colonel Malone recommended the

6

accused be removed from POI; 10 December 2010, recommended POI.

7

accused was not suicidal but under a great deal of stress; 13, 17,

8

23, and 30 December 2010 and 7 and 14 January 2010 [sic] Captain

9

Hocter recommended the accused be taken off POI.

10

The

The remarks column of Captain Hocter's SR and POR -- POI AR

11

forms were usually between two and five lines.

12

Captain Hocter's recommendation but not the reasons for his

13

recommendation.

14

Hocter made scrivener's errors in the block checks on 3 and 17

15

September 2010 misstating that the accused needed to be segregated

16

from the general population and that the accused posed a threat to

17

himself.

18

believe that Captain Hocter was unreliable and was, quote, unquote,

19

covering his six.

20

The remarks provided

Some of the remarks were not legible.

Captain

These errors confused the C&A board members and led them to

11.

Captain Hocter provided mental health services as an

21

ancillary duty for the Marine Corps Brig Quantico since 2006.

22

Corps Brig Quantico officials usually followed his recommendations

23

with respect to SR/POI status, although they delayed implementing

5961

Marine

09858

1

them.

In the accused's case, the Brig O, CWO4 Averhart, delayed

2

implementing Captain Hocter's recommendations to remove the accused

3

from SR to POI from 6 to 11 August 2010, a total of 6 days, and again

4

delayed removing the accused from SR to POI from 18 to 20 January, a

5

total of 3 days.

6

Hocter's recommendations to remove the accused from POI status.

7

12.

CWO4 Averhart did not implement any of Captain

There was no meaningful communication between the Brig

8

O, the C&A board, or any of the brig staff and Captain Hocter

9

regarding the accused's mental health condition and what, if

10

anything, the conditions and his behaviors contributed to the

11

necessity of maintaining the accused on POI status.

12

brig staff mistrusted Captain Hocter because they believed he

13

provided no notice of his visits, didn't spend enough time with the

14

accused to properly assess whether he was at risk of attempting

15

suicide, didn't provide reasons for his recommendations in the SR and

16

POI ARs, and failed to assess the Suicide Risk indicators in Captain

17

Webb.

18

13.

In addition, the

During CWO4 Averhart/Captain Hocter tenure, the

19

accused remained in MAX custody and POI from 27 August 2010 through

20

18 January 2011 against the recommendation of Captain Hocter except

21

for a 3-day period between 10 and 13 December 2010 when Captain

22

Hocter recommended the accused remain on POI because of additional

23

stressors.

5962

09859

1

14.

From 11 August 2010 through 18 January 2011, Gunnery

2

Sergeant Blenis's counseling notes consistently described the accused

3

as courteous and respectful with above -- average to above average

4

work reports and no disciplinary reports.

5

suicidal findings [sic].

6

do reflect that the accused -- do not reflect the accused complained

7

about or asked about POI or MAX custody status.

8

reflect that the accused was guarded in his communication with brig

9

staff and preferred to be left alone in his cell sitting on his rack.

10

The accused reported no

He was cooperative with staff.

The notes

The notes did

The following odd behaviors were documented in the counseling notes:

11

a.

29 September 2010:

documented that on 23 September

12

2010 the accused tried to send a letter signed as Briana Elizabeth

13

Manning.

14

b.

20 October 2010:

the accused prefers to spend all day

15

sitting Indian style on his rack until taps.

16

authorized to have a book in his cell between reveille and taps, he

17

has read only two books since his arrival.

18

c.

25 November 2010:

Although he is

documents on 23 November 2010

19

Gunnery Sergeant Blenis overheard guards discussing strange and

20

unorthodox conduct observed by the accused in his cell, to include:

21

sword fighting imaginary characters in his cell; lifting imaginary

22

weights in his cell as if displaying actual strain and exertion;

23

staring in the mirror, making faces at himself for extended periods

5963

09860

1

of time.

2

his cell after taps.

3

acted as if he was just woken up and asked staff members how long he

4

was there.

5
6

d.

When questioned by the guards, the accused

1 December 2010:

the accused was observed dancing in

front of the mirror in his cell.

7
8

The accused was on occasion observed licking the bars to

e.

8 December 2010:

the accused was observed posing and

flexing his muscles in front of the mirror in his cell.

9

f.

15 December 2010:

the accused was observed standing in

10

the middle of his cell with arms spread out and staring at the floor,

11

dancing in his cell like rave dancing, and playing peekaboo with

12

himself in the mirror.

13

The behaviors observed by the guards were unusual and

14

strange and were not commonly engaged in by MAX prisoners.

15

staff and Captain Hocter never engaged to discuss the strange

16

behaviors exhibited by the accused and what, if anything, that meant

17

from a mental health perspective regarding the accused's need for

18

POI.

19

15.

The brig

On 11 August 2010, the accused was downgraded from

20

MAX/SR to MAX/POI.

The accused's special handling instructions

21

provide for the following:

22

be escorted according to custody classification when leaving his

23

cell.

the accused (1) will wear restraints and

The DBS will be notified prior to the accused moving outside

5964

09861

1

of Special Quarters.

Control Center will commence lockdown; (2) the

2

accused is authorized sunshine call, television call, library call,

3

to make and receive phone calls, weekend/holiday visitation in a

4

noncontact booth, and to speak to occupants of other cells in a low

5

conversational tone; (3) is not authorized to lie on his rack between

6

reveille and taps unless on medical bed rest, to keep any gear inside

7

his cell with the exception of:

8

mattress, one set of PT gear during the hours of reveille; (4) will

9

receive toilet paper upon request only; (5) will receive one

one rules and regulations, one

10

underwear and one POI blanket during taps; (6) will eat in cell with

11

metal spoon only; will have sick call, medication call, and chaplain

12

visits conducted at cell hatch with legal visits conducted at cell or

13

in a noncontact booth; remain in cell during fire drills, come to the

14

position of attention in front of the hatch upon entry of any

15

commissioned officer and will remain at attention until told to carry

16

on; address all enlisted duty personnel by their rank at parade rest

17

and will be required to stand at the position of attention for count

18

until duty -- until carry on is sounded.

19

instructions also applied to the accused:

20

correspondence material from 2020 to 2120, to include mail; legal

21

papers; envelopes; DD 510 forms; one pencil or pen; and one book,

22

religious or nonreligious; (2) will receive hygiene items in

23

accordance with the Plan of the Day only; (3) will receive a

5965

The following additional
(1) will receive

09862

1

20-minute sunshine call in the Special Quarters recreation yard; (4)

2

all gear will be removed from cell after taps with the exception of

3

one mattress, one underwear, and one POI blanket; (5) will wear a

4

second chance vest when leaving the facility on temporary absences at

5

all times.

6

time was increased to 2 hours from 1920 to 2120 and sweatpants and a

7

sweat top were authorized during periods of reveille.

8

10 December 2010, the accused was authorized 1 hour of recreation

9

call in the SQ recreation yard or inside recreation area in case of

Starting on 27 October 2010, the accused's correspondence

Starting on

10

inclement weather.

The accused's restraints were to be removed

11

during recreation call.

12

the -- to MAX prisoners via a cart.

13

on the amount of -- the number of MAX prisoners sharing the cart.

14

The accused frequently received more than 1 hour of TV call.

15

addition, the accused was required to be observed every 5 minutes,

16

either in person of from the guard tower.

17

occasionally asked how he was doing and required to respond.

18

not asked how he was doing with each 5-minute check.

19

2010, the Special Court-Martial Convening Authority, Colonel Coffman,

20

advised Colonel Choike that the Army required monitoring of the

21

accused's phone calls, visitation, and mail.

22

communications between the accused and his attorneys, mental health

23

providers, and brig chaplains were not monitored.

Library, TV call, and phones were brought to

5966

The amount of TV call depended

In

The accused was
He was

On 15 September

Privileged

Monitoring of

09863

1

detainee communications and visits was not normal standard operating

2

procedure at Marine Corps Base [sic] Quantico.

3

1 December 2010, the Brig O ordered that any unusual behavior be

4

logged in a logbook kept by guards solely on the accused.

5

about 10 December 2010 the accused's TV privileges were taken away

6

because of news reports that he had committed suicide.

7

subsequently restored.

8

a safety mattress with a one-piece pillow included.

9

the accused's handling instructions were changed to remove all gear

10

between reveille and taps except his mattress and two POI blankets.

11

On 7 March 2011, the accused received a suicide smock ordered by PSL

12

Branch, Headquarters, Marine Corps.

13

16.

On or about

On or

They were

On 15 December 2010, the accused was provided
On 2 March 2011,

The main distinctions in handling instructions between

14

the accused while in SR status and while on POI status are that while

15

the SR -- while the accused was on SR status from 18 to 20 January

16

2011, he was not allowed to keep one book and one set of PT gear

17

shoes during reveille and was not allowed to keep his eyeglasses

18

unless reading or moving outside the cell and was observed 1:l rather

19

than at 5-minute intervals.

20

17.

From 29 July 2010 to 10 December 2011 [sic], the

21

accused was allowed 20 minutes of exercise rather than 1 hour because

22

of his POI status not because of his MAX custody classification.

23

10 December 2010, after Captain Hocter recommended that the accused

5967

On

09864

1

receive additional exercise time, CWO4 Averhart changed the accused's

2

handling instructions to 1 hour of recreation/sunshine call without

3

restraints.

4

18.

The accused received regular command visits.

He told

5

his chain of command he did not understand why he was on POI status

6

during every command visit except 7, 15, 21 October and 12, 10, and

7

26 November 2010.

8

he was treated professionally by the brig guards.

9

chain of command to take any action to change his MAX custody or POI

10
11

The accused consistently told his chain of command
He never asked the

status.
19.

The accused was familiar with DD 510 Request for Interview

12

forms.

On 17 November 2010, the accused submitted three DD 510s

13

regarding an LES issue, an inquiry regarding command visits and

14

monitoring, and a request for a subscription to, quote, Scientific

15

American, unquote, magazine.

16

submitted to DD 510 requests for books and an emergency phone call to

17

his defense counsel.

18

file any DD 510 requests regarding MAX custody or POI status until

19

7 January 2011.

20

status with Gunnery Sergeant Blenis during the weekly counseling

21

interviews or with the Brig O during his visits to the SQ.

22

Sergeant Blenis did not tell the accused Captain Hocter was

23

recommending he remain on POI status during the -- October/November

On 22 December 2012, the accused

The defense did not -- or the accused did not

The accused also did not raise MAX custody/POI

5968

Gunnery

09865

1

2010.

The accused also did not raise his MAX/POI status or otherwise

2

complain about his treatment at the brig with any of his visitors.

3

The accused did not request to speak with other detainees or to eat

4

outside of his cell.

5

board that he might need to be placed in protective custody.

6

not complain about his pre-15 December 2010 mattress, his post-15

7

December 2010 mattress or his POI blankets to the brig staff or when

8

asked about it during a personal visit on 26 February 2011.

9

counsel began raising the issue of the accused's continuation on POI

On 21 January 2011, the accused told the C&A
He did

Defense

10

over mental health recommendations via e-mail on 29 November 2010.

11

Defense counsel sent a memorandum to the Brig O on 5 January 2011

12

requesting reduction of the accused's -- in the accused's

13

classification from MAX to MDI and removal from POI on the grounds

14

that Captain Hocter recommended the accused's status be downgraded

15

from MAX to MDI and recommended that the accused be removed from POI.

16

On 13 January 2011, Mr. Coombs filed a Request for Release from

17

Confinement under R.C.M. 305(g) with Colonel Coffman, the Special

18

Court-Martial Convening Authority, on the same basis.

19

2011, the accused advised his chain of command of the 7 January 2011

20

DD 510 request to change his status that had not yet been acted upon

21

by the Brig O.

22

for Redress under Article 138, UCMJ.

On 14 January

On 19 January 2010 [sic] the accused filed a Request

5969

On 10 March 2011, the accused

09866

1

submitted a rebuttal to the response to his original Article 138

2

complaint.

3

10 -- excuse me -- 20.

Captain Hocter recommended that the

4

accused be removed from POI.

5

custody from MAX to MDI.

6

the accused from POI stated that 15-minute checks required by MAX

7

custody would suffice.

8

MAX/MDI is a Brig O decision based on the level of security required

9

for a particular pretrial detainee.

10

21.

He never recommended a downgrade of

Captain Hocter's recommendations to remove

The custody classification decision of

There was an increase in media, international and

11

nongovernmental organization, and individual member congressional

12

interest in the accused's confinement conditions on or about December

13

2010/January 2011 and -- concurrently with the accused and defense

14

counsel complaints and filings about the accused's MAX/POI custody

15

and status.

16

entities who were not on the accused's approved witness list to come

17

and visit him, to include Mr. Juan Mendez, U.N. Special Rapporteur

18

and Congressman Dennis Kucinich.

19

DoD Office of Congressional Representative -- Legislative Liaison

20

Affairs, not the brig.

21
22

22.

The brig received numerous requests from outside

Such requests were directed to the

On 27 December 2011, Lieutenant General Flynn called

Major General Ary, Staff Judge Advocate to the Commandant of

5970

09867

1

the Marine Corps, stating that while he had the utmost confidence in

2

the way the brig is being run, he wanted to be proactive to ensure

3

the Marine Corps held the high moral -- moral high ground when

4

responding to the media.

5

proposed outside visits to the Marine Corps brig by high level DoD

6

officials with corrections expertise and development of fact sheets

7

to compare Marine Corps Brig Quantico standards with DoD, Army

8

Corrections Association, and Bureau of Prisons protocols.

9

23.

Subsequent e-mails among HQ, Marine Corps

On 14 January 2011, there was a meeting at Marine

10

Corps Brig Quantico with the staff and Captain Hocter and Captain

11

Moore.

12

the accused remaining on POI status.

13

from a medical viewpoint.

14

component was part of the overall classification assessment and the

15

process was continually evaluated.

16

were present at the meeting.

17

Oltman and Captain Hocter.

18

call POI something else if they wanted to maintain the accused on

19

that status for security reasons because it was not warranted for

20

psychiatric reasons.

21

accused would remain in POI status and that if keeping him on that

22

status was required to get the accused to trial, that's what they

23

would do.

Among the issues discussed was Captain Hocter's concern about
He opined POI was not justified

CWO4 Averhart explained that the medical

Colonel Oltman and CWO2 Barnes

The meeting got heated between Colonel
Captain Hocter told the brig staff to

Colonel Oltman told Captain Hocter that the

5971

09868

1

24.

On 18 January 2011, the accused had an anxiety attack

2

at rec call -- recreation call.

He was being escorted by Lance

3

Corporal Tankersly, Lance Corporal Cline, and GMl Webb.

4

guards were doing their job properly.

5

accused.

6

protest that occurred at Marine Corps Brig Quantico on or before

7

18 January 2011.

8

he became anxious.

9

his history at Fort Drum, FOB Hammer, and Kuwait.

All of the

They were not harassing the

The conduct of the guards had nothing to do with any

The accused perceived the guards to be anxious so
The accused's anxiety attack was consistent with
The accused

10

recovered and continued his recreation call without incident.

Lance

11

Corporal Tankersly and Lance Corporal Cline were replaced for

12

nondisciplinary reasons.

13

was visited by Gunnery Sergeant Blenis, Master Sergeant Papakie, and

14

CWO4 Averhart.

15

what happened during the anxiety attack.

16

when discussing the comparison between his anxiety attack and what

17

happened in Kuwait.

18

yelling such things as, quote, unquote, Why are you staring at me?

19

and quote, unquote, Why are you yelling at me?

20

accused on, quote, unquote, Special Move/Suicide Risk.

21

initially refused to give his clothes to Master Sergeant Papakie

22

causing CWO4 Averhart to order a Code Blue and order that the accused

23

be videotaped.

After the accused returned to his cell, he

They asked how he was doing and questioned him about
The accused grew frustrated

He put his hands up by his head and began

CWO4 [sic] placed the
The accused

The accused gave his clothes to Master Sergeant

5972

09869

1

Papakie and continued to argue to both Master Sergeant Papakie and

2

Gunnery Sergeant Blenis that this anxiety attack was different than

3

Kuwait, that he was not suicidal, and that he should not be on POI.

4

Captain Hocter arrived and recommended the accused be taken off SR

5

and placed on POI status for 24 hours.

6

the accused off Suicide Risk until 20 January 2011.

7

25.

CWO4 Averhart did not take

On 21 January 2011, after being questioned by First

8

Sergeant Williams following his command visit to the accused -- with

9

the accused on 14 January 2011, CWO4 Averhart acted on the accused's

10

DD 510 approving his appearance before the 21 January 2011 C&A board.

11

The accused also appeared before the C&A board on 4 February 2011 and

12

25 February 2011.

13

21 January 2011, three days after his 18 January 20ll anxiety attack,

14

the accused was asked about his intake statement, quote, Always

15

planning, never acting, unquote.

16

the statement may have been false.

17

whether the board should then believe his current assurances that he

18

was not suicidal were also false, the accused replied, "They may be

19

false."

20

of the board members and exacerbated their concerns that the accused

21

may be patiently waiting to harm himself.

During his appearance before the board on

The accused advised the board that
In response to a question of

These statements by the accused caused great alarm to each

22

26.

On 24 January 2012, the brig changed command from CWO4

23

Averhart to CWO2 Barnes.

Colonel Malone replaced Captain Hocter as

5973

09870

1

the primary mental health provider for the accused following Captain

2

Hocter's 18 January 2011 visit with the accused prior to Captain

3

Hocter's deployment.

4

coordin -- had much more coordination regarding the accused's mental

5

health condition and a much better personal rapport than did Chief

6

Averhart and Captain Hocter.

7

Assignment Review mental health forms.

8

Brig Form 4200.1, January 11, to document the C&A board proceedings.

9

27.

CWO2 Barnes and Colonel Malone had a much more

Together, they revised the SR/POI
CWO2 Barnes also implemented

Beginning on 21 January 2011, Colonel Malone found the

10

accused had no suicidal thoughts or intent; that he was

11

psychologically cleared to come off POI status.

12

Colonel Malone opined that the accused remained at moderate risk of

13

self-harm, had below average tolerance for frustration, and a limited

14

ability to express or understand his feelings.

15

that the risks and benefits of POI are not further detrimental at

16

this time.

17

SR/POI Recommendation Form to a Report of Behavioral Health

18

Evaluation Form for the C&A board.

19

standard mental status examination forms used for mental status

20

examinations.

21

behavior, level of alertness and orientation, mood and affect,

22

thinking process, thought content, memory and findings as to the

23

status of the accused's mental disorder, risk for suicide/self-harm,

On 28 January 2011,

Colonel Malone opined

Starting on 18 February 2011, Colonel Malone changed the

This form is similar to the

The form contained blocks to assess the accused's

5974

09871

1

risk for violence, whether the accused has a behavioral disturbance,

2

whether he needs to be segregated from the general population due to

3

a treatable mental disorder, and whether and how frequently the

4

accused needs further examination.

5

particular status, Colonel Malone described the accused's current

6

mental health status in the remarks.

7

Malone found the accused's behavior normal, fully alert and oriented,

8

unremarkable mood and affect, clear thinking process, normal thought

9

content, good memory and found the accused's mental disorder

Rather than recommending a

On 18 February 2011, Colonel

10

resolved, risk for suicide/self-harm and risk for violence low, and

11

behavioral disturbance was not applicable and the accused did not

12

need to be segregated from the general population due to a treatable

13

mental disorder and that he required routine further examination.

14

the remarks section, Colonel Malone opined the accused's anxiety

15

disorder remains in early full remission; he is tolerating medication

16

taper off well; he understands the risk and benefit of treatment; and

17

that he responds well to intellectual stimulation.

18

-- and 18 March and 8 April 2011, Colonel Malone checked the same

19

boxes and remarked that the accused's anxiety disorder was in

20

remission, he was completely off his medications, remains at low risk

21

of suicide/self-harm, and that he would benefit from intellectual

22

stimulation.

5975

In

On 4, 8, 11, 18

09872

1

29 -- 28.

On 6 and 15 April 2011, Lieutenant Colonel

2

Russell did the mental health assessment of the accused for Colonel

3

Malone.

4

Colonel Malone, except he found the accused's mental disorder stable

5

rather than resolved.

6

Lieutenant Colonel Russell opined that the accused presented to him

7

-- that the accused's presentation to him varied significantly from

8

that observed by the brig staff.

9

that the Brig O's decision to maintain due diligence for self-harming

Lieutenant Colonel Russell checked the same blocks as

After speaking at length with CWO2 Barnes,

Lieutenant Colonel Russell opined

10

behavior was not unreasonable given the accused's recent withdrawal

11

from staff and his refusal to communicate with brig staff to give

12

them assurances of his safety if removed from POI.

13

that the accused's behavior was likely to persist.

14

29.

He further opined

The withdrawal of the accused from his medication was

15

not listed on the accused's chart until 23 February 2011.

16

Barnes thought the accused was refusing to take his medication until

17

she spoke with Colonel Malone on 23 February 2011 and learned that

18

because the accused had extra supervision, Colonel Malone was

19

comfortable taking him off his medications.

20

with Colonel Malone's decision to wean the accused off his

21

medications because of the accused's additional stressors and

22

uncertainty about his future.

5976

CWO2

CWO2 Barnes disagreed

09873

1

30.

On 2 March 2011, the accused received notice of the

2

current charges, including aiding the enemy, with a possibility of

3

confinement for life without parole or death if a capital referral.

4

He also received Colonel Choike's response denying his Article 138

5

Request for Redress.

6

command wanted Colonel Malone available to see the accused to assess

7

his mental health with the arrival of these additional stressors.

8

The accused was observed mumbling in his cell.

9

not be located and was on emergency leave.

The Marine Corps Base Quantico's chain of

Colonel Malone could

On 3 March 2011, Chief

10

Barnes got in touch with Colonel Malone who arranged to see the

11

accused on 4 March 2011.

12

not happy about this.

13

to fully engage with Captain Neill to coordinate with the Army to get

14

additional mental health support for the accused and for Marine Corps

15

Brig Quantico.

16

3l.

The Marine Corps brig chain of command was

The incident caused Lieutenant General Flynn

On 2 March 2011, shortly before taps, Master Sergeant

17

Papakie was advised by a guard that the accused did not understand

18

why he had to give up his clothes except underwear at night.

19

Sergeant Papakie spoke with the accused who continued to insist he

20

didn't understand why all of the items are taken except his underwear

21

with the elastic band that is the most dangerous piece. The accused

22

was chuckling briefly as if the conversation was absurd. Master

23

Sergeant Papakie told Chief Barnes of the comment.

5977

Master

Chief Barnes --

09874

1

CW2 [sic] Barnes ordered the accused's gear except one mattress and

2

two POI blankets be removed from his cell after taps, to include his

3

underwear, shower shoes, and eyeglasses.

4

paragraph 4-14(d)(5)(B) as authority to remove the accused's

5

underwear.

6

POI.

7

authority to the Brig O to restrict privileges for prisoners in SQ

8

when they must be withheld for reasons of security or safety.

9

would include authority to remove clothing, including underwear, in

CWO2 [sic] cited SECNAVINST

This paragraph applies only to Suicide Risk status, not

However, the court finds that SECNAVINST 4-14(a) and (b) give

This

10

cases where the Brig O has reason to believe the clothing was

11

necessary to be removed for security or safety reasons for a period

12

of time that is not excessive in relation to the legitimate

13

government interest in protecting pretrial detainees from self-harm.

14

32.

The proper mode of communication from a pretrial

15

detainee to a guard when asking a question was to address the guard

16

by his rank and then ask the question.

17

detainees to refer to themselves in the third person.

18

was aware of this through indoctrination.

19

to himself in communications with the staff in the third person as

20

reflected in his 26 February 2011 personal visit when he asked,

21

quote, Lance Corporal, can I turn on the light?, unquote.

22
23

33.

There was no requirement for
The accused

The accused did not refer

On the morning of 3 March, prior to reveille, the

accused's clothes were not in his feed tray.

5978

He stood at attention

09875

1

during count naked without covering himself with his POI blanket, as

2

was his normal practice.

3

While in POI status from 11 August 2010 until 2 March 2011, the

4

accused had his clothes removed from taps to reveille except

5

underwear and shower shoes.

6

his POI blanket.

7

attempted to stand with his POI blanket covering himself and was told

8

by a guard, Is this how you stand at parade rest?, quote, unquote.

9

The accused testified he requested clarification from the guard,

The accused had never done this before.

He stood for count covering himself with

The accused testified he intended to -- he

10

asking, Lance Corporal comma -- quote, Lance Corporal, Detainee

11

Manning asks if he has to put the blanket down, unquote.

12

testified he received a "yes" response and took it as an implied task

13

to drop the POI blanket and stand naked at parade rest and then at

14

the position of attention during count.

15

ordered the accused to stand naked at the position of attention

16

during count.

17

significant until the 4 March 2011 New York Times article entitled,

18

quote, Soldier in Leaks Case Was Jailed Naked, Lawyer Says, unquote.

19

34.

He

Nobody from the brig staff

The brig staff did not consider the incident

On 3 March 2011, after count, the accused made a

20

telephone call to Mr. Coombs.

Mr. Coombs maintains a blog on this

21

case.

22

feed tray prior to reveille -- or, excuse me, on 4 March 2011, the

23

accused's clothes were in his feed tray prior to reveille.

On 4 March 2011, the accused's clothes were removed from his

5979

Also on

09876

1

4 March 2011, the New York Times article was printed, stating in

2

relevant part, quote, A lawyer for PFC Manning has complained that

3

his client was stripped and left naked in his cell for 7 hours on

4

Wednesday, unquote.

5

blog.

6

morning, after he was required to stand naked outside his cell during

7

an inspection.

8

was without justification.

9

justice system and should not be tolerated.

The article quoted the following taken from the

Quote, The Soldier's clothing was returned to him Thursday

This type of degrading treatment is inexcusable and
It is an embarrassment to our military
PFC Manning has been

10

told the same thing will happen to him again tonight.

11

detainee in the brig is forced to endure this type of isolation and

12

humiliation, unquote.

13

was ordered to relinquish all items from his cell except his suicide

14

mattress and two POI blankets.

15

to wear starting on 7 March 2011.

16

court that the accused was ordered by anyone in the brig to stand

17

outside -- naked outside his cell at any time or to stand naked at

18

any time after the morning of 3 March 2011.

19

accused's clothes were in his feed tray prior to count.

20

35.

No other

From 4 March 2011 to 20 April 2011 the accused

The accused was given a suicide smock
There is no evidence before the

On 4 March 2011, the

On 4 March 2011, Lieutenant Colonel Wright from

21

Headquarters, Marine Corps Law Enforcement and Corrections Branch,

22

Security Division Plans, Policies, and Operations, PSL, the proponent

23

of SECNAVINST 1640.9, wrote an e-mail to Colonel Oltman, saying it

5980

09877

1

was his professional opinion at PSL -- well, excuse me, that it was

2

the professional opinion at PSL that they had concerns about recent

3

decisions made by the Brig O and to take any measures that are

4

inconsistent with -- that are consistent with suicide watch but not

5

officially place that person on a suicide watch status is

6

inconsistent with the way we are supposed to do business, unquote.

7

36.

Lieutenant General Flynn knew nothing of the handling

8

instructions regarding the accused until he read about them in the

9

New York Times on 4 March 2011.

Lieutenant General Flynn was not

10

happy to learn about them this way.

11

relay his intent that any changes in the accused's handling

12

instructions or assignment must be briefed to Colonel Choike and

13

passed on to Lieutenant General Flynn before execution.

14

General Flynn's intent was to ensure he would be prepared to address

15

political impact, media interest, legal ramifications, and senior

16

leadership reaction to any changes in handling instructions.

17

guidance came after CW2 [sic] Barnes increased the restrictions on

18

the accused.

19

Colonel Choike, or Colonel Oltman to prevent CW2 Barnes from easing

20

restrictions on the accused or to chill her discretion in making

21

custody or status determinations for the accused.

22
23

37.

He contacted Colonel Choike to

Lieutenant

The

There was no attempt by Lieutenant General Flynn,

Prior to the 4 March 2011 New York Times article,

Lieutenant General Flynn was coordinating with Headquarters, Marine

5981

09878

1

Corps; HQDA; and mental health chain of command to provide permanent

2

mental health support for both the accused and Quantico brig and for

3

additional assets for Marine Corps Brig Quantico if it continued to

4

serve as a de facto regional personnel confinement facility, PCF.

5

was also coordinating POA -- PAO, Public Affairs Office, regarding

6

confinement conditions of the accused and inviting visits from

7

outside inspectors general and officials with corrections experience

8

to visit Marine Corps Brig Quantico to ensure that the brig was

9

confining the accused properly in accordance with confinement

He

10

regulations and procedures.

11

after 4 March 211 to Colonel -- 2011 to Colonel Choike was to ensure

12

that he was briefed before any changes to the accused's handling

13

instructions occurred so he would be prepared to fully explain what

14

occurred and why.

15

influence the decisions of the Brig O regarding the accused's

16

custody, status, or handling instructions.

17

perceive Lieutenant General Flynn's guidance as a constraint on her

18

discretion.

19

38.

Lieutenant General Flynn's guidance

Lieutenant General Flynn did not intend to

The Brig O did not

On 14 January 2011, Lieutenant General Flynn ordered

20

Colonel Choike to conduct a zero base review of Marine Corps Brig

21

Quantico to assess Marine Corps Brig Quantico's resourcing and

22

viability as a designated Marine Corps Brig -- and desig -- of

23

designating Marine Corps Brig Quantico as a joint or regional PCF

5982

09879

1

with associated funding and manpower.

The review found in relevant

2

part that Marine Corps Brig Quantico was not resourced to house long-

3

term pretrial detainees for more than 180 days and was not resourced

4

to house high profile pretrial detainees requiring maximum security

5

with complex mental health issues.

6

recommended that the brig policy provision -- the following brig

7

policy provision changes:

8

SR/POI receive a custody classification of MAX should be changed to

9

provide that custody and status evaluations be conducted separately;

The zero base review further

(1) the provision mandating detainees in

10

(2) to clarify the authority of a medical officer to determine what

11

protective measures are necessary based on a mental health

12

evaluation, and of a Brig O to impose, or re-impose, additional

13

protective measures based on subsequent behavior; (3) to establish

14

separate Special Quarters and general population quarters; and (4) to

15

ensure that the Brig O returns detainees to the appropriate

16

conditions or quarters when no longer considered to be suicide risks

17

by a medical officer.

18

additional factors, the Brig O may not place, or return, a detainee

19

to SR status and impose associated protective measures.

20

the zero base review recommended that the confinement facility at

21

Quantico be closed.

22
23

39.

The SOP should also state that absent

Ultimately,

On 20 April 2011, the accused was transferred to the

Joint Regional Confinement Facility, JRCF.

5983

He was classified MDI and

09880

1

remains at the classification level to date with one disciplinary

2

review board.

3

40.

JRCF does not have POI status.
After the accused's transfer, PSL -- Headquarters,

4

Marine Corps, PSL sent guidance to the Marine Corps Brig Quantico to

5

ensure that custody and classification were separate determinations.

6

As a matter of correctional practice, similar factors are considered

7

to determine MAX custody and POI status.

8

The Law:

9

1. Article 13, UCMJ, prohibits the imposition of (l)

10

punishment prior to trial and (2) conditions of arrest or pretrial

11

confinement that are more rigorous than necessary to ensure the

12

accused's presence for trial.

13

to punish determined by examining the intent of detention officials

14

or by examining the purposes served by restriction or condition and

15

whether such purposes reasonably relate -- reasonably relate to

16

legitimate government objective.

17

an accused is in pretrial confinement.

18

conditions are significantly -- or sufficiently egregious to give

19

rise to a permissive inference that the accused is being punished or

20

the conditions may be so excessive as to constitute punishment.

21

United States v. King, 61 M.J. 225, Court of Appeals for the Armed

22

Forces 2005.

Prong one involves a purpose or intent

The second prong applies only when

5984

Prong two examines whether

09881

1

2.

Under both prongs, the burden is on the defense to show

2

that military officials intended to punish the accused or that the

3

restrictions imposed were excessive and otherwise not reasonably

4

related to legitimate government objections -- objectives.

5

States v. Harris, 66 M.J. 166, Court of Appeals for the Armed Forces

6

2008.

7

3.

United

Sentence credit is the appropriate remedy for Article

8

13, UCMJ, violations in accordance with R.C.M. 305(k).

9

Williams, 68 M.J. 252, Court of Appeals for the Armed Forces 2010.

10

Dismissal is also a possible remedy that is rarely appropriate and

11

should be exercised only under the most egregious circumstances so as

12

not to exonerate an accused for reasons unrelated to guilt or

13

innocence and thereby preclude the public's interest in deterring the

14

commission of serious misconduct.

15

Force Court of Criminal Appeals 2000.

16

4.

U.S. v.

U.S. v. Fulton, 52 M.J. 767, Air

Conditions of confinement relate to both ensuring the

17

accused's presence for trial and the security and needs of the

18

confinement facility.

19

second-guess the security determinations of confinement officials.

20

United States v. Crawford, 62 M.J. 411 at 414, Court of Appeals for

21

the Armed Forces 2006.

22

the institution in a manageable fashion are particularly within the

23

province and professional expertise of corrections officials, and in

Military courts should be reluctant to

Maintaining security and order and operating

5985

09882

1

the absence of substantial evidence in the record to indicate the

2

officials have exaggerated their response to these considerations,

3

courts should ordinarily defer to their expert judgment in such

4

matters. Id., quoting Bell v. Wolfish, 441 U.S.

5

520 at 540, note 23, 1979.

6

punish or stigmatize a person awaiting a disciplinary action; and (2)

7

if not, were the conditions reasonably related -- reasonably in

8

furtherance of a legitimate nonpunitive objection?

9

-- objective United States v. Starr, 53 M.J. 380, Court of Appeals

The test is (1) is there an intent to

United States v.

10

for the Armed Forces 2000.

11

includes an analysis of whether the restrictions taken by military

12

officials are excessive in relation to the legitimate government

13

interest involved.

14

5.

The court finds that "reasonably"

The Eighth Amendment protection against cruel and

15

unusual punishment does not apply to prisoners who have not been

16

convicted and sentenced, or in other words, punished.

17

detainees challenging pretrial confinement conditions as unlawful

18

pretrial punishment do so via the Due Process Clause of the

19

Fifth Amendment to the United States Constitution.

20

Bistrian, 2012 WestLaw 4335958, Third Circuit 2012.

21

Article 13, UCMJ, the Fifth Amendment Due Process Clause protects

22

pretrial detainees who have not been convicted and sentenced from

23

being punished.

Pretrial

United States v.
Like

Conditions reasonably related to a confinement

5986

09883

1

facility's interest in maintaining jail security are not unlawful

2

pretrial punishment.

3

Amendment for whether a particular measure amounts to unlawful

4

pretrial punishment is whether there is an express intent to punish,

5

when the restriction or condition is not reasonably related to a

6

legitimate, nonpunitive government purpose, or when the restriction

7

is excessive in light of that purpose in light of the totality of the

8

circumstances.

9

court finds that the "excessiveness" in relation to government

Like Article 13, the test under the Fifth

Bell v. Wolfish, 441 U.S. 520 at 19 -- 1979.

The

10

interest is included in the Article 13 analysis of whether a

11

condition of confinement is reasonably related to a legitimate

12

government interest.

13

evidence that sentence credit is a remedy for Fifth Amendment

14

violations of unlawful pretrial punishment.

15

under the Fifth Amendment Due Process Clause is appropriate only when

16

the rare instances when the government has engaged in outrageous

17

conduct.

18

Circuit 2012.

19

challenge in its Article 13, UCMJ, findings of fact and conclusions

20

of law.

21

The court has not been presented with any

Dismissal of charges

United States v. Djokich, 2012 WestLaw 3711536, First

6.

As such, the court encompasses the Fifth Amendment

Confinement in violation of service regulations does

22

not create a per se right to sentence credit under Article 13, UCMJ.

23

United States v. Williams, 68 M.J. 252, Court of Appeals for the

5987

09884

1

Armed Forces 2010 citing United States v. Adcock, 65 M.J. 18, Court

2

of Appeals for the Armed Forces 2007.

3

requirements of a regulation, such as the SECNAVINST as it relates to

4

the conditions of pretrial confinement, is not determinative on the

5

issue of a violation of Article 13.

6

168, Court of Appeals for the Armed Forces 1997.

7

7.

U.S. v. McCarthy, 47 M.J. 162 at

De minimis impositions are not cognizable under Article

8

13, UCMJ.

9

for the Armed Forces 2002.

10

Failure to follow the

United States v. Corteguera, 56 M.J. 330, Court of Appeals

8. Long-term confinement [sic] of a pretrial detainee in

11

MAX custody is not automatically a violation of Article 13.

12

McCarthy, 47 M.J. at 168.

13

pretrial detainee for a long time, he is not allowed to dictate the

14

conditions of his confinement.

15

671, Army Court of Criminal Appeals 2001.

16

pretrial detainees into MAX custody status based on arbitrary

17

policies that do not examine the individual circumstances of the

18

accused or based solely on the charges rather than a reasonable

19

evaluation of the facts and circumstances in a case can violate

20

A1ticle 13.

21

Armed Forces 2006; U.S. v. Evans, 55 M.J. 732, Navy/Marine Court of

22

Criminal Appeals 2001; U.S. v. Anderson, 49 M.J. 575, Navy/Marine

23

Court of Criminal Appeals 1998, stating brig policy requiring custody

Even if the accused is confined as a

United States v. Willenbring, 56 M.J.
Decisions to place

U.S. v. Crawford, 62 M.J. 411, Court of Appeals for the

5988

09885

1

level of MAX for detainees who face more than 5 years' confinement is

2

arbitrary and constitutes unlawful pretrial punishment in violation

3

of Article 13.

4

and the potential length of sentence are relevant factors the brig

5

considers -- brig officials may consider in determining custody

6

level.

7

Court of Criminal Appeals 2007.

United States v. Harris, 2007 WestLaw 1702575, Navy/Marine

8
9
10

However, the nature and seriousness of the offense

9.

Preventing suicide is a legitimate government interest.

United States v. Williams, 68 252 [sic], Court of Appeals for the
Armed Forces 2010.

11

10.

Failure of the accused to contemporaneously complain

12

is strong evidence that Article 13 was not violated.

13

behavior does not serve to revise the facts as they existed and were

14

known to brig authorities.

15

quoting United States v. Huffman, 40 M.J. 225 at 227, Court of

16

Military Appeals 1994.

17

counsel does complain does not prove that an Article 13 violation

18

occurred.

19

the Armed Forces 2005.

20

Subsequent good

United States v. Crawford, 62 at 415,

However, the fact that an accused or defense

United States v. King, 61 M.J. 225, Court of Appeals for

11.

The views of United States -- United Nations

21

officials, such as the special rapporteur in this case, may serve as

22

a useful interpretative aid, but do not possess the force of law

23

unless Congress has endowed them with such authority and are not

5989

09886

1

controlling of legal determinations in American courts.

2

Aguirre-Aguirre, 526 U.S. 415, 1999.

3

presented that Article 13, UCMJ, was enacted to implement any

4

international obligations of the United States.

5

554 U.S. 759, 2008.

6

Conclusions of Law:

7

1.

INS v.

There has been no evidence

Medellin v. Texas,

The defense challenges the periods the accused remained

8

on Suicide Risk over Captain Hocter's recommendation as unlawful

9

pretrial punishment.

The government concedes that maintaining the

10

accused on Suicide Risk after a mental health provider determined he

11

was no longer a suicide risk constitutes unlawful pretrial punishment

12

under Article 13.

13

day of confinement credit starting the day after Captain Hocter

14

recommended the accused be removed from Suicide Risk.

15

will receive sentence credit for pretrial confinement in violation of

16

Article 13 from 7 through 11 August 2010 and 19 and 20 January 2011,

17

for a total of 7 days.

18

2.

The court agrees.

The court [sic] will receive 1

The accused

From on or about December 2010 until the accused was

19

transferred to the JRCF on 20 April 2011, the accused's conditions of

20

confinement generated a lot of media, nongovernmental organization,

21

international entity, and individual congressional attention.

22

Individuals from these organizations, to include Mr. Mendez, U.N.

23

Special Rapporteur and Congressman Kucinich, requested to visit the

5990

09887

1

accused.

Marine Corps Brig Quantico did not deem these as, quote,

2

unquote, official visits and elevated inquiries from such individuals

3

or entities to visit the accused in an unmonitored status to higher

4

headquarters Marine Corps, Army, or Department of Defense.

5

appropriate.

6

other member of an NGO or international entity were on the accused's

7

visitation list.

8

of international or NGO entities and individual Congressmen acting on

9

their own recognizance is within the executive -- the discretion of

This was

Neither Mr. Mendez nor Congressman Mr. Kucinich nor any

What, if any, visitation between individual members

10

the executive branch.

11

Article 13, UCMJ, was enacted to implement any U.S treaty or other

12

foreign affairs obligation of the United States.

13

the agency interpretation of its own regulations.

14

monitoring of visits by NGOs, international bodies, or Congressmen

15

acting in their individual capacities is does not constitute illegal

16

pretrial punishment under Article 13, UCMJ.

17

3.

There has been no evidence presented that

The court defers to
Denial of or

The accused was not held in solitary confinement.

18

"Solitary" means alone and without human contact.

Although the

19

accused was confined by himself in a similar -- in a cell similar to

20

that of other detainees at Marine Corps Brig Quantico, he had daily

21

human contact.

22

accused's cell from the main hallway.

23

going on in the hallway.

There were no additional doors separating the
He could view all activity

He had weekly visits with his counselor and

5991

09888

1

mental health professionals as well as daily walk-through visits by

2

the Brig O.

3

4.

Throughout the duration of the accused's pretrial

4

detention at Marine Corps Brig Quantico, the C&A board met weekly to

5

assess the accused's custody level and classification.

6

there was some confusion in the brig policy over whether POI status

7

requires MAX custody, the C&A board independently determined the

8

accused should be detained in MAX custody relying on factors set

9

forth in the SECNAVINST independent of POI, primarily the nature of

Although

10

the accused's offenses, the potential length of sentence, low

11

tolerance for frustration, continuing need for mental health

12

evaluation, and poor family relationships.

13

prepared and presented his recommendations as to custody and

14

classification as the accused's counselor while simultaneously

15

serving as the senior board member.

16

ideal, the court finds that each member of the C&A board reached his

17

determination independently and the board procedures were conducted

18

and reported within the SECNAVINST guidance.

19

that Chief -- CWO4 Averhart and CWO2 Barnes made independent

20

judgments with regard to each of the accused's custody/classification

21

determinations.

22

Averhart and CWO2 Barnes' determinations, he made no attempt to

23

influence their decisions.

Gunnery Sergeant Blenis

Although this procedure was not

The court further finds

Although Colonel Oltman concurred with both CWO4

Colonel Oltman concurred after the

5992

09889

1

determinations were made.

Neither Colonel Choike nor Lieutenant

2

General Flynn attempted to influence the decisions of either CWO4

3

Averhart or CWO2 Barnes with respect to custody or classification of

4

the accused.

5

Colonel Oltman and Captain Hocter.

6

necessary for the accused to appear at trial, the accused would stay

7

on MAX/POI while under his watch.

8

did not attempt to influence CWO2 Barnes in her custody/status

9

decisions.

On 14 January 2011, heated words were exchanged between
Colonel Oltman stated if

By these comments, Colonel Oltman

He did not in fact influence her custody and status

10

decisions regarding the accused.

11

at Marine Corps Brig Quantico, when Colonel Oltman was briefed by

12

CWO4 Averhart or CWO2 Barnes regarding the accused's custody,

13

classification, or handling instructions, the briefing occurred to

14

advise Colonel Oltman of the decisions after they had been made.

15

5.

Throughout the accused's detention

As early as the arrival of the accused, Lieutenant

16

General Flynn's intent was to ensure Marine Corps Brig Quantico was

17

following regulations and procedures properly with common sense in

18

detaining the accused.

19

Lieutenant General Flynn was consistently engaging with the mental

20

health chain of command, Headquarters, Marine Corps Corrections, and

21

the Army at the HQDA level to obtain additional mental health to

22

enable Marine Corps Brig Quantico to effectively maintain the accused

23

as a long-term pretrial detainee.

He wanted to hold the moral high ground.

5993

As the Senior Mission Commander

09890

1

equivalent of Marine Corps Quantico, Lieutenant General Flynn had a

2

need-to-know of any changes in handling instructions, custody/status,

3

or other confinement conditions for the accused so he was properly

4

prepared to engage and inform higher headquarters, PAO, and others

5

who were informing the public about the Marine Corps Brig Quantico to

6

ensure adequate [sic] information was being relayed about the

7

accused's conditions of confinement.

8
9

6.

There was no intent to punish the accused by anyone on

the Marine Corps brig's staff or in the Marine Corps Quantico chain

10

of command.

11

hurt or kill himself, and was present for trial.

12

brig staff was also concerned about the security of the Marine Corps

13

brig, its staff, and other prisoners there.

14

7.

Their intent was to ensure the accused was safe, did not
The Marine Corps

The charges are serious in this case and there was no

15

intent to punish the accused.

16

appropriate remedy for any Article 13, UCMJ, violations in this case.

17

8.

Dismissal of charges is not an

Preventing a pretrial detainee from injuring or killing

18

himself is a legitimate government interest.

19

status is a reasonable tool for advancing that interest.

20

where the decision to remove is made by the medical officer, the

21

SECNAVINST leaves the POI removal decision to the Brig O.

22

case, the accused was held in long-term POI status based largely on

23

his mental health history and his mental health condition with

5994

The use of POI as a
Unlike SR,

In this

09891

1

restrictions approaching those of Suicide Risk.

2

continuing POI over the recommendation of mental health professionals

3

becomes excessive in relation to the legitimate government interest

4

absent changes in circumstances.

5

9.

At some point,

With respect to CWO4 Averhart -- the CWO4

6

Averhart/Captain Hocter tenure, there was no meaningful engagement

7

between the brig staff and Captain Hocter.

8

trust Captain Hocter.

9

removed from POI on 27 August 2010.

The brig staff did not

Captain Hocter recommended the accused be
The Brig O had discretion to

10

maintain the accused on POI after that recommendation for a

11

reasonable period of time.

12

consideration of the accused's history of suicidal ideation and

13

violent behavior in Kuwait, the ambiguous statements made by the

14

accused regarding suicide as an option indefinitely, and the

15

accused's continued guarded communication with brig staff.

16

finds that continued maintenance of the accused on POI status over

17

mental health recommendation after 1 November 2010 was excessive in

18

relation to the legitimate POI interest resulting in the accused

19

being held in conditions more rigorous than necessary except for the

20

period of 10 through 13 December 2011 where CPT Hocter recommended

21

the accused remain on POI.

22

credit from 1 November to 17 January 2012, minus those 3 days for a

23

total of 75 days.

The reasonableness of time includes

The court

The court will award 1 day of sentence

5995

09892

1

10.

The accused's panic attack on 18 January followed by

2

his comments on 21 January 2011 and 2 March in light of his behavior

3

and comments in Kuwait caused reasonable concern for the brig staff.

4

Continuing the accused on POI, notwithstanding the recommendations

5

from mental health professionals, was not excessive in relation to

6

the legitimate government interest in preventing the accused from

7

injuring himself or others.

8

18 January through 3 March and a reasonable period thereafter --

9

2011.

10

11.

There was no Article 13 violation from

CWO2 Barnes had authority to remove the accused's

11

underwear when he made a direct comment about the ability to commit

12

suicide with the waistband.

13

Suicide Risk restrictions, and at some point the accused's comment

14

must -- comments must be considered in context and in connection with

15

his mental health diagnosis even if brig officials disagree with the

16

diagnosis/treatment plan of the mental health professional.

17

court sets that point at 1 April 2011.

18

POI status over the recommendations of mental health professionals

19

when his mental health condition was in remission and without

20

considering the context of the 2 March 2011 communications by the

21

accused became excessive in relation to the legitimate government

22

interest.

23

the accused removed visitors from his visitation list, withdrew

However, this removal does approach

Maintaining the accused in

This decision is a very close call.

5996

The

In March/April 2011,

09893

1

completely from communications with brig staff even after being

2

advised that if he provided assurances to the Brig O and explanations

3

of his behavior he would be -- he could be taken off POI status, was

4

engaging in a subtle increase in rules violation, and was not

5

truthful in statements to Lieutenant Colonel Russell.

6

are balanced by the fact that the Brig O was aware that the accused

7

believed his comments of 21 January 2011 and 2 March 2011 were being

8

used against him to continue his POI status and the history of

9

maintaining the accused on lengthy POI status without meaningful

These factors

10

mental health provider input.

11

sentence credit from 1 April -- 1 to 20 April 2010, for a total of 20

12

days.

13

12.

The court will grant day-for-day

Although the SECNAVINST does not affirmatively state

14

that 1 hour is required exercise time for all prisoners, the

15

testimony from CWO5 Galaviz, CWO2 Barnes, and Lieutenant Colonel

16

Hilton, as well as the Disciplinary Segregation section of the

17

SECNAVINST and Marine Corps Brig Quantico policy indicate that 1 hour

18

of exercise is the standard for all prisoners unless limited because

19

of prisoner behavior or staff resource constraints.

20

neither existed to systematically limit the accused to 20 minutes of

21

exercise call from 29 July 2010 to 10 December 2010.

22

although not de minimis, is minor.

5997

The court finds

This violation,

One for one day sentence credit

09894

1

is excessive and disproportionate to the Article 13, UCMJ, violation;

2

the court grants 10 days of sentence credit.

3

13.

Any comments that may be perceived as derogatory

4

statements made about the accused in e-mails between the brig staff

5

are de minimis, were not communicated to the accused or any other

6

prisoner, and were not humiliating to the accused.

7

credit is warranted.

8
9

14.

No sentence

Monitoring the accused's communications and visitation

under circumstances where the accused is charged with disclosing a

10

huge volume of classified information is a legitimate government

11

interest and does not violate Article 13.

12

15.

The court recognizes that R.C.M. 305(k) could provide

13

an independent basis for additional credit.

14

Williams, 68 M.J. 252, Court of Appeals for the Armed Forces 2010.

15

Having considered the totality of the circumstances as set forth

16

above, R.C.M. 305(k) and the granted Article 13 credit, the court

17

does not believe additional credit is warranted.

18
19

Ruling:

United States v.

The accused will be granted with 112 days of

sentence credit for Article 13 punishment.

20

So ordered this 7th day of January 2013.

21

And that will be at the next appellate exhibit, which is?

22
23

CDC[MR. COOMBS]:

Your Honor, I believe we might have an

appellate exhibit that's been marked twice, so I wanted to --

5998

09895

1

[conferred with court reporter] -- so we have one exhibit, Your

2

Honor, that was marked twice, and the second time it was marked was

3

at Appellate Exhibit 461, so if this is marked -- the court's ruling

4

is marked as Appellate Exhibit 461, then that would eliminate that.

5

MJ:

6

TC[MAJ FEIN]:

7

All right, does the government have any objection?
No, Your Honor.

about Appellate Exhibit 456 is the same as 461.

8

CDC[MR. COOMBS]:

9

MJ:

10

That's correct.

All right, why don't we do that then; this will be ----

TC[MAJ FEIN]:

And -- I'm sorry, Your Honor -- just one other

11

- there's a clerical issue.

12

ruling.

13

"U.S. Navy captain."

14

I assume the defense is talking

MJ:

-

I don't if -- not substantive with your

When you talked about Captain Webb around page 6, you said
It is actually a U.S. Marine Corps captain.

Oh, yes, Marine Corps captain, okay.

My purpose in that

15

was distinguishing between C-A-P-T, the O-6 level captain, versus the

16

O-3 level captain.

17

TC[MAJ FEIN]:

18

MJ:

19
20
21

Yes, ma'am.

All right, Marine Corps captain, thank you.
As is evident, I have several typos to fix, so I will do

that as well.
Is there anything else we need to address today?

22

CDC[MR. COOMBS]:

23

TC[MAJ FEIN]:

No, Your Honor.

No, Your Honor.

5999

09896

1

MJ:

2

morning?

All right, what time would you like to start tomorrow

3

CDC[MR. COOMBS]:

4

TC[MAJ FEIN]:

5

MJ:

6

[The trial counsel conferred with co-counsel.]
TC[MAJ FEIN]:

8

MJ:

9

morning.

11

May I have a moment, Your Honor?

Yes.

7

10

If we could start at 1000, Your Honor?

10 is fine, Your Honor.

All right, court is in recess until 10 o'clock tomorrow

[The Article 39(a) session recessed at 1607, 8 January 2013.]
[END OF PAGE]

6000

09897

1
2

[The Article 39(a) session was called to order at 1117, 9 January 2013.]

MJ:

3
4

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.

5

First off, I received the e-mails that were sent last night

6

by the parties with respect to the Batchelor case for Article 104.

7

will certainly consider that case as well as the commentary in the e-

8

mails when I am looking at the motive motion.

9

Does either side desire to address this?

10

CDC[MR. COOMBS]:

11

TC[MAJ FEIN]:

12

MJ:

All right.

No, Your Honor.

No, Your Honor.
I have one additional finding for the Article

13

13 motion that I made yesterday, and that is that the brig O’s

14

decision to maintain the accused in max custody throughout his

15

confinement at military -- Marine Corps Brig Quantico was based on

16

the individualized consideration of the accused and the SECNAV

17

Instruction factors.

18

violation of Article 13.

This was neither an abuse of discretion or a

19

Today the government has filed a request for leave until 8

20

February 2013, to submit its plan for storing any Appellate Exhibits

21

not accompanying the record of trial.

22

ruled orally granting the government an extension already until 10

23

January 2013.

Just for the record, I had

Major Fein, would you like to address this?

6001

I

09898

1

TC[MAJ FEIN]:

Yes, ma'am.

What has been marked as Appellate

2

Exhibit 463 - on 7 January of this week the United States submitted

3

its written storage plan for final approval to the Office of the

4

Clerk of the Court for them to do their final sign off.

5

that although we’ve been coordinating for the last 2 months with the

6

Office of the Clerk of Court.

7

decided that it would be best to get input from the Defense Appellate

8

Division Chief and from the leadership at the U.S. Army Legal

9

Services Agency.

When we did

The Clerk of the Court actually

On behalf of -- well, the Clerk of the Court asked

10

that the prosecution could ask for more time in order to properly --

11

to give the clerk more time to vet the plan with the leadership and

12

therefore the government has requested that time until 8 February,

13

Your Honor.

14

MJ:

All right.

15

CDC[MR. COOMBS]:

16

MJ:

All right.

Any objection?
No, Your Honor.
This is not an issue that has anything to do

17

with the trial schedule, so the Court is going to grant the

18

government’s motion for leave until 8 February 2013.

19

Counsel and I met in an R.C.M. 802 conference this morning.

20

If everyone will notice the trial got started a little bit late

21

today.

22

the defense had been conferring about before we met in the R.C.M. 802

23

conference.

There were a lot of logistics issues that the government and

A lot of it involved scheduling.

6002

We will have some

09899

1

changes in the trial calendar.

2

complete right now, but we do have some firm dates.

3

some more additional dates and suspenses plugged in there. I’m going

4

to meet with counsel after we’re completed with these proceedings to

5

work further out some of those logistics.

6

January is the same.

8

dates.

10
11

There may be

For the record, the next proceeding on the 16th and 17th of

7

9

Those changes are not actually

The speedy trial argument will occur on those

Major Fein, if you would like to summarize what the parties
conferred about and the trial calendar changes to date.
TC[MAJ FEIN]:

Yes, ma'am.

The parties met this morning prior

12

to meeting with the Court and then reiterated the conclusions or

13

findings that both sides agreed upon with the Court.

14

reference to Military Rule of Evidence 505(h) notice, defense notice

15

of what classified information it intends to use at trial.

16

This was in

Prior to our discussion there were multiple filings, Your

17

Honor, that occurred by both parties since the last session.

18

first, Your Honor, on 14 December 2012, what’s been marked as

19

Appellate Exhibit 450 was the defense’s notice under M.R.E. 505(h).

20

What has been marked as Appellate Exhibit 454 is the government’s

21

response to the defense M.R.E. 505(h) notice on updated government

22

witness list number two that was filed on 21 December 2012.

6003

The

09900

1

What was mentioned yesterday, what’s been marked as

2

Appellate Exhibit 455 was a government’s notice to the Court of

3

inability to comply with paragraph 2(c) of the Court’s scheduling

4

order for Grunden that was filed on 21 December 2012.

5

What has been marked as Appellate Exhibit 458 was the

6

defense’s response to the government’s notice of its inability to

7

comply with paragraph 2(c) of the Grunden order.

8
9
10
11

Also, what’s been marked as Appellate Exhibit 457 is
defense’s reply to the government’s response to the defense’s M.R.E.
505(h) notice dated 4 January 2013.
The parties met this morning, Your Honor, to discuss M.R.E.

12

505(h) notice in light of the 18 October 2012, filing by the

13

government.

14

number of agencies, witnesses and documents and evidence that both

15

sides intend to use during this trial, that the defense would need

16

some more time in order to complete the interviews and provide that

17

505(h) notice.

18

timeline that both parties came up with was that the final 505(h)

19

notice from the defense would be submitted on 22 February of 2013.

20

Although, as different organizations are completed, the defense

21

submits those in a rolling fashion and the prosecution will process

22

them as we receive them.

The conclusions by both sides were that based off the

The government absolutely supports that, and so the

6004

09901

1
2
3

MJ:

For the record, how many -- what’s the period of time the

government envisions necessary to process these filings?
TC[MAJ FEIN]:

Yes, ma'am.

The government, from the start of

4

this trial, has envisioned for a standard notice for classified

5

information 45 to 60 days.

6

days on the long end.

7

government’s 505 response filings, including the Grunden requirements

8

under paragraph 2(c) alternatives that the Court has ordered would be

9

due on 22 April 2013.

10

The planning factor we’ve used here is 60

If the filings are done by 22 February, the

We would have -- the defense would have a response to those

11

filings due on 6 May 2013.

12

responses, if at all, on 11 May 2013.

13

any outstanding M.R.E. 505 issues and Grunden for defense evidence

14

would be held between 21 and 24 May 2013.

15

motions hearing, the new trial date would be set for 3 June 2013.

16

The government would have reply to those
The Article 39(a) session for

Based off of that last

Let me ask a question, we can talk about this later, since

17

the reply is coming in on the 11th of May, was there a reason that

18

the 21 through 24 May date was set as opposed to maybe a week

19

earlier?

20

CDC[MR. COOMBS]:

Ma’am, as I recall it’s just the routine

21

amount of time that we go from the last filing to the actual 39(a)

22

sessions.

6005

09902

1

TC[MAJ FEIN]:

The reason is is that 11 May is a Saturday and so

2

21 May is the Tuesday of the following week.

3

a full week to ----

4

MJ:

5

TC[MAJ FEIN]:

6

Okay.

Got it.

It’s to give the Court

And the trial date would be?

Sorry, ma’am.

The trial date would be 3 June,

Monday, 3 June, 2013.

7

Also, ma’am, during this time it would allow both parties,

8

if the parties desired, to work together for any stipulations of

9

expected testimony.

10

MJ:

Now, one of the other things that was discussed -- well,

11

first all, Mr. Coombs, do you agree with everything that Major Fein

12

said?

13

CDC[MR. COOMBS]:

14

MJ:

15

CDC[MR. COOMBS]:

16

Yes, Your Honor.

Yes, I do, Your Honor.

Do you have anything else to add?
The only other date we didn’t add was the 27

February to 1 March, but that can be out at a later date, ma’am.

17

MJ:

All right.

For the record, that’s my next plan is to put

18

that out now.

19

session that we had originally scheduled on the 16th and 17th of

20

January, which would be the speedy trial argument.

21

the Court calendar was scheduled to be the 5th through the 8th of

22

February.

23

date.

I told you earlier we’re going to have the same

The next date on

That will be no longer -- that will no longer be a court

The accused’s plea as well as additional issues that were

6006

09903

1

scheduled for that date are going to move to the next scheduled court

2

date, which was 27 February through 1 March.

3

Government, one thing we may -- one thing we may want to

4

look at is the 27th is a Wednesday.

5

that up to the 26th.

6
7

TC[MAJ FEIN]:
the 26th.
MJ:

9

TC[MAJ FEIN]:
MJ:

We might as well just start planning

We originally had it for 4 days.

8

10

Yes, ma'am.

We may want to look at backing

Any objection to that?
No, Your Honor.

So it will be 26 February will be the start of that: 26

11

February to 1 March of 2013, and then that will be followed by the

12

dates that Major Fein just discussed.

13

parties, there may be an additional date in there.

14

final court calendar by -- when we next convene on the 16th of

15

January.

16
17

Again, when I speak with the
We’ll know the

So 16/17 January followed by 26 February through 1 March,
followed by 21 through 24 May. Is that correct?

18

CDC[MR. COOMBS]:

19

TC[MAJ FEIN]:

20

MJ:

All right.

Yes, Your Honor.

Yes, Your Honor.
One thing the parties may want to look at is if

21

we need to schedule just an additional Article 39(a) session, maybe a

22

short one somewhere in between -- there’s a pretty big gap there

6007

09904

1

between the March and the May just in case we’ve got some issues that

2

arise.

3

TC[MAJ FEIN]:

4

MJ:

Yes, ma'am.

We’ll look at that during lunchtime.

I also received this morning a note -- well, first of all,

5

before we get there, is there -- the pleadings that the government

6

just described, asked for a lot of things from the Court.

7

that discussion that you all just had and the agreed upon suspense

8

dates and trial dates, is there anything further that we need to

9

address or litigate with respect to the filings that Major Fein just

10

Based on

described?

11

TC[MAJ FEIN]:

No, ma'am.

12

ADC[CPT TOOMAN]: Ma’am, from the position of the defense during

13

its conversation with the government this morning there are certain

14

things that we agreed to do with respect to an M.R.E. 505(h) filing

15

in the near term to clear up a matter of ambiguity in a couple of our

16

recent notices.

17

We’ll do that before the week is out.

TC[MAJ FEIN]:

Yes, Your Honor.

And the government owes

18

clarification of one government organization and access to those

19

witnesses and we committed to providing that to the defense as soon

20

as possible.

21
22
23

MJ:

All right.

So with respect to those motions, does either

side desire any further action from the Court?
TC[MAJ FEIN]:

No, Your Honor.

6008

09905

1

ADC[CPT TOOMAN]:

2

MJ:

3

Also, this morning I received a revised defense

notice of plea and forum.

4
5

All right.

No, ma'am.

Mr. Coombs, would you like to address that?
CDC[MR. COOMBS]:

Yes, Your Honor.

Your Honor, this morning

6

the defense provided to the Court and government and Appellate

7

Exhibit 464.

8

essentially captures the previous offers of pleas to the lesser-

9

included for the 793 offenses and the outcomes based upon the Court’s

It’s a revised notice of plea and forum.

It

10

rulings with regards to our previous proffers for LIOs.

Now, in

11

addition to that it offers a plea to Specification 13 and 14 of

12

Charge II, which are the 18 U.S.C. 1030(a)1 offenses, but in this

13

case to the LIOs of those, at least what we are proffering as LIOs.

14

In addition to that it also details what we believe to be

15

the maximum punishment for both of those specifications and the basis

16

for that.

17

and the government in order for the Court and government to plan a

18

way forward.

19

MJ:

Based upon that, we’ve provided this notice to the Court

All right.

So with respect to the additional two

20

specifications, Specification 13 and 14 of Charge II that when

21

charged in its totality was also charging a violation 18 United

22

States Code Section 1030(a)1.

23

understand the defense’s proffer, is the same as for the lesser-

The lesser-included offense, as I

6009

09906

1

included offenses for the 793(e), lesser-included offenses

2

specifications that’s Army Regulation 380-5, dated 29 September 2000,

3

information security program establishes the custom of the service

4

penalizing disclosures of classified, sensitive information;

5

therefore, the maximum punishment would be reduction to the grade of

6

E1, total forfeiture of all pay and allowances, confinement for 2

7

years and a dishonorable discharge for each specification?

8

CDC[MR. COOMBS]:

9

MJ:

That is correct, Your Honor.

So the maximum punishment then should the Court accept all

10

of the accused’s plea would be reduction to the grade of E1, total

11

forfeiture of all pay and allowances, confinement for 20 years and a

12

dishonorable discharge, correct?

13

CDC[MR. COOMBS]:

14

MJ:

15
16

That is correct, Your Honor.

Government, did you want some additional time to review

this and decide if you want to have any kind of objection?
ATC[CPT MORROW]:

That’s correct, Your Honor.

We’d ask that

17

we either get back to the Court tomorrow or at the next session, 16

18

January, after the speedy trial.

19

MJ:

Why don’t we just make it 16 January?

20

ATC[CPT MORROW]:

21

MJ:

22

ATC[CPT MORROW]:

Yes, ma'am.

Please have that built into the trial calendar.
Yes, Your Honor.

6010

09907

1
2

MJ:

Are there any other housekeeping issues or supplements to

the R.C.M. 802 conference that we just had?

3

CDC[MR. COOMBS]:

4

TC[MAJ FEIN]:

5

MJ:

6

motions?

No, Your Honor.

No, Your Honor.

Are the parties ready to proceed with the judicial notice

7

TC[MAJ FEIN]:

Yes, Your Honor.

8

MJ:

9

ATC[CPT MORROW]: Actually, Your Honor, the parties have

Let’s begin with the government.

10

discussed it and the defense is going to go first.

11

actually was going to request that they -- after the defense was done

12

request a 5-minute break to print something.

13

MJ:

14

ADC[CPT TOOMAN]: Ma’am, we will begin with the over-

15

That’s fine.

The government

Which one do you want to do, first?

classification if that’s okay with you.

16

MJ:

That’s fine.

17

ADC[CPT TOOMAN]:

Ma’am, the defense believes that judicial

18

notice of the requested documents on over-classifications is proper

19

in this case.

20

yesterday as to the relevance.

21

over that again as to why it’s necessary -- or why it’s relevant.

22

today I’ll just ----

The defense will rely on Mr. Coombs’s argument from
I don’t think it’s necessary to go

6011

So

09908

1

MJ:

Let me ask you one more question, just like I asked you

2

yesterday, for the over-classification document that you have, are

3

you asking that I take judicial notice that they exist, or take

4

judicial notice of what’s in them?

5

ADC[CPT TOOMAN]:

6

MJ:

7

ADC[CPT TOOMAN]:

What is in them, Your Honor.

Okay.
We feel that the relevance argument has

8

already been made by Mr. Coombs, so we’ll rely on that.

What I will

9

focus on are just the hearsay exceptions where applicable and then I

10

guess I’ll begin with HR 553, which we think falls squarely under

11

M.R.E. 201(a).

12

the President, so it’s appropriate for judicial notice.

13

that’s pretty straight forward.

14

It is a law that has been passed and signed off by
I think

I’ll address the issue of legislative fact versus

15

adjudicative fact that the government brought up.

16

Court to the analysis of 201(a).

17

how there are some procedural requirements that may be -- the Court

18

should go through if it’s a legislative fact, but when you’re in the

19

sphere of 201(a), it’s up to the Court’s discretion whether or not

20

you follow those things.

21
22
23

I would direct the

In there the analysis talks about

The defense would also point out that, and it’s A22-5 in
the Manual, ma’am.
MJ:

Mm-hmm.

6012

09909

1

ADC[CPT TOOMAN]: That provision or that discussion in the

2

analysis only applies if the law includes only legislative facts. The

3

defense’s position is while the law in this case may include some

4

legislative facts, it’s not only legislative facts.

5

are adjudicative facts in the law, it’s appropriate for judicial

6

notice.

7
8
9
10

Because there

As far as the statements from Mr. Blanton ---MJ:

Well, what facts in the law are adjudicative and what facts

in the law are legislative?
ADC[CPT TOOMAN]:

The defense’s position would be that they

11

are adjudicative facts.

12

with that.

13

MJ:

14

ADC[CPT TOOMAN]:

I suspect that the government would disagree

So they’re all adjudicative facts?
That would be our position.

I’m sure they

15

will have an argument for why some of them are legislative facts, but

16

it’s our position that they are adjudicative.

17

adjudicative, Your Honor -- sorry.

18

doesn’t matter under the discussion of 201(a), because they’re not

19

exclusively legislative facts.

20

Even if they are

If they are legislative, it

Judicial notice would be appropriate.

The comments for Mr. Blanton, we think that 803(8)(a) is

21

the appropriate hearsay exception from his testimony.

Again, that

22

was before Congress.

23

motion on October 18th, that if relevant, congressional testimony

This Court ruled on a previous judicial notice

6013

09910

1

could be admissible under that exception.

2

relevance argument from yesterday.

3

classification relevant and you think it would be appropriate to take

4

judicial notice of Mr. Blanton’s comments as well as the

5

congressional hearing attachment as well.

6

MJ:

Again, we’ll rely on the

So if the Court finds over-

Even if over-classification by itself could be relevant,

7

why is the -- why are the individual views of people testifying

8

before Congress relevant?

9

ADC[CPT TOOMAN]:

Your Honor, those are relevant because these

10

are individuals who have expertise in the area.

11

experts because they’ve been asked by Congress to come testify as

12

they’re hashing through this issue.

13

know, an expert on the issue, than their opinion would be, from the

14

defense’s prospective, a valuable one.

15

questions on over classification, ma’am.

16

MJ:

If Congress views them as, you

Subject to any further

No, I think I’ve got the issues.

17

Government?

18

ATC[CPT MORROW]:

They’re obviously

Thank you.

Your Honor, the government asks that you

19

deny the defense motion to take judicial notice of the over-

20

classification materials.

21
22
23

MJ:

We’ll begin with ----

Well, before we get there, defense is moving for both

merits and sentencing on those?
ADC[CPT TOOMAN]:

Yes, ma'am.

6014

09911

1

MJ:

Okay.

Go ahead.

2

ATC[CPT MORROW]:

I think the argument is the same, Your

3

Honor.

4

law, but it is not a fact of consequence to the determination of the

5

action in this case.

6

the state of mind of the accused as it was signed in December 2010.

7

Additionally, M.R.E. 201(a) does not permit the taking of judicial

8

notice of certain statements or findings within a law.

9

It’s essentially a relevance argument.

HR 553 is a domestic

Specifically, the law could not have affected

As for the Congressional testimony of Thomas Blanton, you

10

did rule in your last judicial notice ruling that Congressional

11

record could be admissible under M.R.E. 803(8)(a) if relevant.

12

government maintains that the Congressional record in this case,

13

specifically Mr. Blanton’s testimony, is not relevant because it

14

consists entirely of Mr. Blanton’s opinions on over-classification.

15

The statement reflects his personal conclusions and additionally the

16

personal conclusions of others, which would be hearsay within

17

hearsay.

18

both merits and sentencing.

19

The

The government maintains that that would be irrelevant on

Those opinions belong -- expressed belong to Mr. Blanton

20

and Mr. Blanton alone and have no bearing on the accused’s state of

21

mind at the time of the misconduct.

22

discusses over-classification generally and was delivered after the

6015

Moreover, that testimony

09912

1

accused’s misconduct and does not speak at all to the evidence in

2

this case.

3

MJ:

Did HR 553 change anything about the way original

4

classification authorities -- the procedures for original

5

classification authorities to classify information?

6

ATC[CPT MORROW]:

I don’t believe so, Your Honor.

It did not

7

amend the Executive Order 13526 or any proceeding.

It was -- as I

8

understand HR 553, it was really a directive to DHS, Department of

9

Homeland Security, to work on ways to ensure that information was not

10

over classified and that it was shared appropriately between law

11

enforcement agencies, both at the state and federal levels.

12

MJ:

Why wouldn’t it be relevant for sentencing?

13

ATC[CPT MORROW]:

Again, Your Honor, I think it wouldn’t be

14

relevant for sentencing because it occurred after the accused’s

15

misconduct, those hearings.

16

over-classification of any information that’s part of this case, Your

17

Honor.

18

be unhelpful to the Court.

Additionally, it didn’t address the

Frankly, it’s the -- the testimony itself is so general as to

19

MJ:

All right.

20

ATC[CPT MORROW]:

As for the House of Representative hearings

21

from 2007, those proffered transcripts document the activities of

22

Congress.

Excuse me, sorry, Your Honor.

6016

09913

1

I’m sorry, the Congressional hearings, again.

You ruled

2

earlier a Congressional record could be admissible under 803(8)(a) if

3

relevant.

4

we are really talking about a record that consists almost entirely of

5

statements made by members of Congress, various state and federal

6

officials relating to the apparent over-classification of

7

information.

8

officials regarding their perspective on over-classification

9

information, in general, is irrelevant to any issue of material

When we’re talking about the 2007 congressional hearings,

Those statements and personal opinions of various

10

factor in the merits or sentencing.

11

testimony, it does not speak at all to the charged information in

12

this case.

13

of any over-classification issue, if any.

14

Again, as with Mr. Blanton’s

Further, there is no evidence that the accused was aware

I would refer the Court back to its own ruling on judicial

15

notice, specifically the way it ruled with respect to the statement

16

made by Representative Conyers that the defense sought to have

17

admitted under M.R.E. 803(8)(a).

18

that that -- those personal opinions on the Espionage Act and on the

19

government over reactions to leaks, was irrelevant.

20

-- the government asks the Court to rule in the same way in this

21

case.

22
23

MJ:

At a previous session you ruled

I would ask that

What’s the government’s position with respect to Mr.

Coombs’s argument yesterday on M.R.E. 608(c), extrinsic evidence?

6017

09914

1

ATC[CPT MORROW]:

2

MJ:

3

ATC[CPT MORROW]:

4

MJ:

5

[Pause.]

6

Exploring bias, Your Honor?

Yes.
Can I have one moment, Your Honor?

Yes.

ATC[CPT MORROW]: I guess the government would reiterate, Your

7

Honor, that there’s no evidence of over-classification in this case;

8

and therefore, the use of any extrinsic evidence of over-

9

classification generally would necessarily speak to the bias of any

10
11
12
13
14

particular OCA in this case.
MJ:

What’s the government’s position on the defense using HR

553 to cross-examine an OCA?
ATC[CPT MORROW]:

Again, Your Honor, I would reiterate that

that would not be proper evidence of bias.

15

MJ:

Why?

16

ATC[CPT MORROW]:

The problem of over-classification -- first

17

of all, I’d have to go back to the actual law itself.

18

title of the law -- I have to pull it up.

19

maintain that the actual title of the act is a bit misleading.

20

Although it’s called the reducing over-classification act, really the

21

substance of the law is the acknowledgement by members of Congress

22

and ultimately the President that there is a problem -- there is an

23

information sharing problem with respect to law enforcement agencies,

6018

I mean, the

The government would

09915

1

DHS and state federal authorities, in the context of what occurred on

2

9/11 and acts or attempted terrorist attacks on the country.

3

MJ:

4

ATC[CPT MORROW]:

Thank you, Your Honor.

5

ADC[CPT TOOMAN]:

Thank you, Your Honor.

6

All right.

Thank you.

If I may, I’ll just

touch on a couple of things that Captain Morrow addressed.

7

The first, I guess, would be the timeliness of, I guess,

8

when this law was passed and defense would just point to Attachment A

9

to the motion, which lays out that this was in the public discourse

10

well before any of the charged misconduct here.

11

MJ:

12

ADC[CPT TOOMAN]: Yes, Your Honor.

13
14

It was introduced in January 2009, is that it?
So subject to any questions

you have on that, I’ll move to damage assessments.
MJ:

Before you do that, Captain -- I need to ask Captain Morrow

15

one question and I neglected to that on the distinction between

16

legislative and adjudicative facts.

17

ATC[CPT MORROW]:

Your Honor, the government can see that that

18

distinction is rather difficult to understand, but essentially

19

legislative facts would be the type of fact that would contribute to

20

the legal reasoning or the making of a law.

21

that the -- specifically, the facts that the defense seem to be

22

interested in are the findings of fact in the beginning of the HR

23

553, which of course, contribute to the laws enacted.

6019

In this case the facts

The government

09916

1

would say that those were legislative at that time are necessarily

2

appropriate for judicial notice.

3
4
5
6
7
8
9

MJ:

And you’re talking about here they’re Attachment B, the

findings.
ATC[CPT MORROW]:

One moment, Your Honor.

[Pause.]
ATC[CPT MORROW]: That’s correct, Your Honor.

Attachment B, the

first page, the findings, “Congress finds the following…”
MJ:

And if I understand the government’s position right, the

10

attachment D -- Attachment C and D, what’s the government’s position

11

with respect to those?

12

facts or no facts?

13

ATC[CPT MORROW]:

14

MJ:

Thank you.

Are they legislative facts, adjudicative

They’re not facts, Your Honor.
Captain Tooman, would you like to address

15

anything I just raised with the government?

16

ADC[CPT TOOMAN]: No, Your Honor.

17

MJ:

18

ADC[CPT TOOMAN]:

Okay.
Your Honor, the defense’s motion for

19

judicial notice of the damage assessment is Appellate Exhibit 397,

20

Government’s response is 432.

21

admissibility for the damage assessments.

22

803(d)2(d), the admission of a party opponent.

23

turns to ----

The defense has three theories of

6020

The first theory is under
Here the defense

09917

1

MJ:

You’re looking for me to take judicial notice that

2

everything in there is an adjudicative fact, everything in the damage

3

assessment.

4

that’s different than taking judicial notice that these things are

5

factual.

6

admissibility as a party opponent to my taking judicial notice of the

7

substance of the damage assessment?

8
9
10

If it’s admissible as an admission by a party opponent,

I guess I’m wondering how do we get from the leap to

ADC[CPT TOOMAN]:

I’m not sure I understand your question,

Your Honor.
MJ:

There’s a difference between me taking notice that the

11

damage assessments exist.

12

therefore, you can consider them.

13

them as an adjudicative fact, they are actually factual.

14

ADC[CPT TOOMAN]:

Yes, I notice that A, B and C exist;
In my taking judicial notice of

Yes, Your Honor.

The defense’s position is

15

that the damage assessments are a compilation of facts collected by

16

various government agencies.

17

the inquiry is is there -- obviously they’re hearsay, so if they’re

18

hearsay, what exception is there.

19

ruled they’re relevant based on the discovery process, so we look to

20

the hearsay exceptions.

21

MJ:

22

ADC[CPT TOOMAN]:

23

question, Your Honor.

That’s the defense position.

We think

We think the Court has already

Okay.
I don’t know if that answers you’re

6021

09918

1

MJ:

It doesn’t, but go ahead.

2

ADC[CPT TOOMAN]:

Okay.

Well, I guess, Your Honor, the

3

defense’s position is those are facts.

Those damage assessments

4

contain facts.

It’s an after the fact look at what has happened.

5

This happened.

We’re Agency A and this is what has happened.

6

MJ:

Well, what’s the difference between that and say a DNA

7

analysis or something like that?

8

notice of a DNA analysis that that is factual, this is exactly what

9

happened.

A Court would never take judicial

That’s a question for the trier of fact.

10

ADC[CPT TOOMAN]: Can I have a moment, Your Honor.

11

MJ:

12

[Pause.]

13

Yes.

ADC[CPT TOOMAN]:

Your Honor, I think -- the defense believes

14

the distinction is that this is a statement by a party opponent and

15

that’s a -- a DNA test would not be a statement by a party opponent.

16

MJ:

Okay.

17

ADC[CPT TOOMAN]:

The reason we feel -- the defense believes

18

this is a statement of party opponent is the court determined that

19

they are a party opponent or they are adverse or closely aligned with

20

the government.

21

Then going through the three step -- or the three factor test the

22

Court adopted from Branum, obviously this is a position inconsistent

23

-- the government is going to take an inconsistent position.

I believe that that makes them a party opponent.

6022

The

09919

1

defense is going to say there was no damage; the government is going

2

to say there was damage.

3

two positions.

4

MJ:

5
6

That’s an obvious inconsistency between our

So I’m going to take judicial notice as fact that there was

no damage?
ADC[CPT TOOMAN]:

If that is what was concluded by a party,

7

the allegedly aggrieved party.

8

opponent and you say, “Nothing happened,” yes, the defense’s position

9

is that’s appropriate for judicial notice.

10

If you’re Agency A and you’re a party

The second factor, the indicia of reliability.

Again,

11

these are assessments created internally by these organizations.

12

These organizations have every incentive to do a good job, honestly

13

present the facts, and then even as the government pointed out in

14

their response, these damage assessments are drafted by subject

15

matter experts.

16

this is the situation.

17

You have expert -- an internal expert saying that

The defense believes that the third factor is there an

18

innocent explanation for the inconsistency.

19

would be.

20

We don’t believe there

As always, as the Court pointed out in its ruling under

21

Belamy, if the government doesn’t like the conclusion that a damage

22

assessment drew or the conclusion that the defense is proffering,

6023

09920

1

they are welcome to rebut it with their own evidence, and we are

2

confident that they will attempt to do so.

3
4

Subject to your questions, ma’am, I’ll move on to our next
three.

5

MJ:

That’s fine.

6

ADC[CPT TOOMAN]:

Which would be 803(6).

It’s the defense’s

7

position that these damage assessment are kept in the ordinary course

8

of business.

9

disclosure, this is what agencies do, they assess the damage.

This is a report that is -- if there is an unauthorized
The

10

government suggests that unauthorized disclosures are not part of

11

regularly conducted activity, the defense would suggest that

12

unauthorized disclosures happen all the time, in a number of

13

capacities, a number of ways and agencies react to them and this is

14

the way they react. They create a damage assessment and they

15

memorialize it and they discuss what happened.

16

forward.

That is a business record.

17

MJ:

Let me ask you a question.

They discuss the way

The government’s response

18

states that the defense is relying on Army Regulation 380-5, which

19

requires information holders to notify OCA’s of information

20

compromise.

21

whether records prepared by other agencies or the Department of

22

Defense qualify as public records.

Because this only applies to the Army, it doesn’t govern

6024

09921

1

ADC[CPT TOOMAN]:

Right.

Your Honor, the defense would have

2

to concede that the Army regulation doesn’t control at least two of

3

the other agencies that created damage assessments in this case.

4

not sure if it’s of a classified nature if I can say the agency, so

5

at least two of the agencies would not be under the control of an

6

Army regulation, one of them would be.

7

control of the Army regulation would create the damage assessment.

8

The defense’s position is even if there isn’t a regulation that

9

states it, the fact that they created the assessment and they went

I’m

Clearly, the agency under the

10

through it, that’s the regular course of business.

11

situation pop up; you react to it as an organization, that’s what you

12

do.

13

MJ:

You have a

Is the defense aware of anything similar to AR 380-5 or

14

whether AR 380-5 emanated from a larger piece of legislation or

15

executive order or policy that applies to the Department of Defense

16

or other government agencies?

17

ADC[CPT TOOMAN]:

18

MJ:

19

[Pause.]

May I have a moment, Your Honor?

Yes.

20

ADC[CPT TOOMAN]:

21

Reg. the 5200 series.

22

MJ:

23

ADC[CPT TOOMAN]:

Ma’am, Executive Order 13526 as well as DoD

The EO, what?
I’m sorry, ma’am.

6025

135 ----

09922

1

MJ:

Okay.

2

ADC[CPT TOOMAN]:

3

MJ:

4

ADC[CPT TOOMAN]:

---- 26.

All right.

5

Defense.

6

MJ:

7

ADC[CPT TOOMAN]:

All right.

As well as the 5200 series of Department of

Thank you.
Finally, Your Honor, the last theory of

8

admissibility would be under 803(8), which is a record kept in the

9

course of -- a record or report that’s maintained or created by a

10

government office setting forth the activities of the office.

Again,

11

we think the damage assessments fall squarely into here.

12

assessments clearly are record or report. These government agencies

13

are obviously public offices and they set forth the activities of

14

those agencies.

15

these reports, and so the fact that they’re doing is setting forth

16

their activities.

Damage

One of the things the agencies have to do is create

17

MJ:

All right.

18

ADC[CPT TOOMAN]:

So you’re relying on 803(8)(a) only?
As well as b based on, I guess, the same

19

regulations that would impose the duty under 803(6) that would make

20

it a business record. I guess alternatively the defense would say

21

that it’s a -- that’s imposed by law; it’s a duty imposed by law, so

22

803(8)(bravo) as well, ma’am.

23

MJ:

All right.

Thank you.

6026

09923

1

Captain Morrow, before you begin, does the government

2

object -- again, there are two different ways that I can take

3

judicial notice.

4

assessments exist and come from these agencies, or I can take

5

judicial notice of whatever is in the substance of the damage

6

assessments.

7

of the existence of the damage assessments?

I can take judicial notice that these damage

Does the government object to my taking judicial notice

8

ATC[CPT MORROW]:

9

MJ:

No, Your Honor.

So that would mean the defense has not prior -- no

10

additional authentication requirements with respect to those damage

11

assessments?

12

ATC[CPT MORROW]:

That’s correct, Your Honor.

We wouldn’t

13

object to -- the government wouldn’t object to you taking judicial

14

notice of the existence or that they were created by a respected

15

agency.

16

MJ:

Okay.

17

ATC[CPT MORROW]:

Your Honor, the government’s plan was just

18

to really address the theories of admissibility by the defense.

19

Again, we would say -- the government would maintain that these

20

damage assessments are inadmissible under both M.R.E. 801 and M.R.E.

21

803(6) and 803(8).

22

wasn’t highlighted in the government’s brief, the Court must start by

23

acknowledging that there is no indication that the damage assessments

To begin with M.R.E. 801(d)2, although this

6027

09924

1

in this case were adopted by the respected agency or organization.

2

They can hardly be characterized as speaking for the entire agency or

3

organization.

4

MJ:

5

become final?

6

Don’t they have to go through a review process before they

ATC[CPT MORROW]:

That’s correct, Your Honor, but if you

7

actually look at the assessments themselves they’re not signed by the

8

head of the agency or the organization.

9

statements of the President in the Rose Garden that you ruled as

These are not like the

10

admissible under 801(d)2 at the last -- or at a previous session over

11

the Secretary of Defense, or even a press secretary who puts out a

12

formal DoD opinion or press release asserting facts.

13

statements were meant to convey factual information to the public;

14

damage assessments are not that.

15

Those types of

In fact, in the case of the IRTF, that was a separate body

16

all together and it was signed by an individual without the authority

17

to speak for the Defense Intelligence Agency or DoD.

18

In the case of the Department of State, and this is really

19

-- frankly very significant for this case, it was a draft document

20

itself.

21

2011.

22

this should be admitted as a statement under 801(d)2.

It hasn’t been signed; it hasn’t been worked on since August
That fact really should address any -- any issue with whether

6028

09925

1

As the defense noted, you laid out a three part test in

2

your judicial notice ruling, or actually it’s really kind of

3

misleading to call it judicial notice, when it was more a ruling

4

about the admissibility of public statements -- theories of

5

admissibility.

6

assessments do not convey unambiguous factual information.

7

be some unambiguous factual information in there; for example, these

8

documents were released on this date; these documents were released

9

on this date; this person was removed by “x” agency on this date,

But the government would maintain that these damage

10

something to that effect.

11

opinions assessing the state of affairs.

12

maintain that they are speculative in nature, similar to the

13

speculations of counsel in an opening statement.

14

There may

They are mostly the compilation of expert
The government would

On that note the government referred to your judicial

15

notice ruling, in fact, the McKean case, which analyzed whether the

16

use of prior opening statements were admissible against the

17

government in subsequent criminal trials, speculations of counsel,

18

advocacy as to the credibility of witnesses, arguments as to

19

weaknesses in the prosecution’s case or invitations to a jury to draw

20

certain inferences should not be admitted.

21
22
23

We discussed ad nauseam that -- the government’s maintained
that damage assessments are speculative from the beginning.
MJ:

All right.

What about the 803(6) and (8)?

6029

09926

1

ATC[CPT MORROW]:

2

argument for us on 803(6).

3

internal to the Army.

4

Defense, Department of State or NCIS.

5

for establishing that damage assessments are routine business

6

activity for these various organizations.

7
8
9
10
11
12

MJ:

Yes, Your Honor.

You sort of made our

AR 380-5 is the regulatory authority

It has no authority over the Department of
That cannot be the linchpin

What about -- what’s the government’s position with respect

to the defense proposition ---ATC[CPT MORROW]:
MJ:

That the executive order speaks to that?

---- that the executive order and the DoD 520 serious would

apply to the Department of Defense?
ATC[CPT MORROW]:

The executive order certainly would speak to

13

the Department of Defense as well as any DoD instruction or

14

directive; however, the government has not had an opportunity to

15

actually review that executive order to see whether it speaks to the

16

creation of a damage assessment as part of the regular course of

17

business.

18

by nature reactive and ad hoc in that a compromise of classified

19

information is not a regular business activity, nor is a damage

20

assessment a regular business activity conducted in response to a

21

compromise.

22

the next break 13526 and can get back to the Court.

The government would maintain that damage assessments are

Of course, the government will review or can review at

6030

09927

1
2

MJ:

All right.

Thank you. I appreciate that.

The next item if

you would.

3

ATC[CPT MORROW]:

803(8).

Just shortly, briefly on 803(8),

4

Your Honor.

5

activities of departments or public offices.

6

not set forth the activities of the Department of State, NCIS or the

7

IRTF.

8

ruling on this matter, the only statement that will be admissible

9

under M.R.E. 803(8) was the 16 August 2010, letter from Secretary

803(8)(a), of course, speaks to records of the
Damage assessments do

In fact, as this Court recalls from its last argument and its

10

Gates setting forth the activities of DoD in response to WikiLeaks in

11

a sense, which became known as the information review taskforce.

12

That was a clear statement or record of the public activities of the

13

Department of Defense.

14

In this case the damage assessments are less like that

15

letter and they’re more like the other statements ruled inadmissible

16

under M.R.E. 803(8).

17

MJ:

Well, let me ask a question here, because now I’m getting a

18

little confused.

The government doesn’t object to me taking judicial

19

notice of the existence of the damage assessments, but now you’re

20

arguing to me that they’re not admissible under any of these rules,

21

so why would I take judicial notice of something that’s not

22

admissible?

6031

09928

1

ATC[CPT MORROW]:

That’s not -- we haven’t asked -- I don’t

2

know how to answer that, Your Honor.

3

judicial notice.

The government hasn’t asked ----

4

MJ:

5

ATC[CPT MORROW]:

6
7

We haven’t asked to take

You just told me you didn’t object.
---- the Court to take judicial notice of

these damage assessments.
MJ:

I thought you just told me you didn’t object to my taking

8

judicial notice that they exist and they’re created by the particular

9

agency.

10

ATC[CPT MORROW]:

11

MJ:

That’s correct, Your Honor.

I guess maybe I’m being confusing.

There’s two judicial

12

notice steps I can take.

13

“Fact Finder, I’m taking judicial notice that this regulation

14

exists.” There’s something -- then I can say, “I take judicial notice

15

that everything in this regulation is an adjudicative fact.”

16

ATC[CPT MORROW]:

I can say, like I would with a regulation,

That’s correct, or you could take judicial

17

notice of that regulation under M.R.E. 201(a), which -- for

18

regulation.

19
20

MJ:

So is the government contesting the admissibility of what’s

in the damage assessments under M.R.E. 803(8), 803(6)?

21

ATC[CPT MORROW]:

22

MJ:

23

ATC[CPT MORROW]:

Yes, Your Honor.

All right, because I see ---We are objecting that fact that it’s ----

6032

09929

1

MJ:

---- a big distinction between my taking judicial notice of

2

something as an adjudicative fact and my taking judicial notice that

3

this exists.

4

Here it is; you can consider it.”

5

“Members, you don’t need to further authenticate it.

ATC[CPT MORROW]:

I agree, Your Honor.

And the way the

6

government understands the defense argument is, you know, the Court

7

-- what they want is the Court to take judicial notice of the

8

existence of the damage assessment and essentially the contents of

9

the damage assessment, and then say, okay, once you’ve taken judicial

10

notice of the contents of this damage assessment, please admit the

11

contents as non hearsay or as an exception to hearsay.

12

MJ:

13

ATC[CPT MORROW]:

14
15

Yes.
So the government objects to that second

part.
MJ:

So then you are objecting to my taking -- maybe I’m

16

confused.

17

the fact finder can have it and consider it.

18

If I take judicial notice of something, that that exists,

ATC[CPT MORROW]:

I guess the government’s position would be

19

you could take judicial notice of the adjudicative fact that a damage

20

assessment exists.

21

MJ:

22

ATC[CPT MORROW]:

23

What purpose would that serve?
I don’t know, Your Honor.

It would be like

-- when we get to the government’s motion, Your Honor, and maybe we

6033

09930

1

aren’t being clear, but if we provide, for example, a news report

2

that says that -- the easiest example is if we provide the Department

3

of State list of foreign terrorist organizations, we would ask the

4

Court to take judicial notice of the fact that the Department of

5

State listed Al-Qaeda as a foreign terrorist organization.

6

could rely on the source that we provided you in terms of determining

7

whether you’re going to take notice of fact.

8
9

MJ:

All right.

Let’s talk -- I’m going to ask the defense to

come back and address this too.

10

relaxed versus non relaxed.

11

ATC[CPT MORROW]:

12
13
14

Then you

In sentencing, if the rules are

The government would concede that they would

be admissible then.
MJ:

All right.

So it’s the government’s position that all

these damage assessments are hearsay?

15

ATC[CPT MORROW]:

16

MJ:

17

ATC[CPT MORROW]:

Yes, Your Honor.

And there’s no exception that applies?
No, Your Honor.

Of course, any -- even with

18

the rules relaxed, it would be subject to any M.R.E. 505 litigation,

19

the substance of the damage assessments, but that’s a separate

20

issues.

21

are authentic essentially.

22

MJ:

The government can -- we would concede that the assessments

All right.

Thank you.

Captain Tooman?

6034

09931

1

ADC[CPT TOOMAN]: Yes, Your Honor.

Just a few things, Your

2

Honor.

The government concedes that the damage assessment exists and

3

the government concedes that a government agency created the damage

4

assessment.

5

report of that agency and fall under the exception 803(8).

6

government’s acknowledging that it exists and that it was made by a

7

government agency, it’s a report and it sets forth the conduct of

8

their activity and it would be admissible under that hearsay

9

exception.

10

The defense doesn’t understand how it could not be a
If the

The defense would also like to touch on this idea of

11

finality that the government talked about.

12

aren’t signed, they’re not final, they haven’t been worked on since

13

August 2011.

14

finality of the assessment.

15

build a house and your pour the foundation and you run all the wiring

16

and all the plumbing and hang all the drywall, you put a roof on it

17

and put a door on it and windows, you start living in it, but you

18

never hang the crown molding, the house is still done.

19

we’re at with any damage assessment that doesn’t have a signature.

20
21

These damage assessments

The defense’s position is that fact alone speaks to the
To draw an analogy, Your Honor, if you

That’s where

Your Honor, has access to the damage assessments.
you to look at them.

22

MJ:

23

process?

They’re final.

We’d ask

This is what they are.

Don’t things that are final have to go through an approval

6035

09932

1

ADC[CPT TOOMAN]:

The defense’s position would be that it has

2

gone through an approval process.

3

signature that’s -- then the signature must not be part of the

4

approval process.

5

MJ:

If it hasn’t gone up for a

So an agency can’t start something and say, “You know, I

6

really don’t need to do this anymore.

7

a drawer somewhere,” and that’s the final product?

8
9

ADC[CPT TOOMAN]:

I’m just going to throw it in

We think that as some point, 15 months

later, that becomes -- that’s what you produced.

According to your

10

obligation to produce it, harkening back to the business records

11

exception, you have this obligation to produce it.

12

follow through, at some point that becomes your final product.

13

That’s what you did.

14

If you don’t

Just finally, Your Honor, to touch on the government’s

15

point about regularly -- again, talking about the business records

16

exception.

17

regularly conducted business, it’s important we think for the Court

18

to draw a distinction between, I guess, what regular means.

19

doesn’t mean that you go in every day and it’s something that you do.

20

Regular means that if this scenario comes up, this is what you do.

21

This is how you react to it; this is your response.

22

subject to your questions, Your Honor, that is the defense’s

23

position.

When they talked about this isn’t in the course of

6036

Regular

So that’s --

09933

1

MJ:

Is either side familiar with the Foerster case,

2

F-O-E-R-S-T-E-R.

It’s the case involving -- it’s a case about

3

testimonial -- it’s about testimonial hearsay, but involved a bank

4

affidavit by someone who had claimed fraud.

5

the top of my head here, but ----

I don’t have the case on

6

ADC[CPT TOOMAN]:

I’m not familiar, Your Honor.

7

ATC[CPT MORROW]:

Neither are we, Your Honor.

8

MJ:

9

ADC[CPT TOOMAN]:

All right. Thank you.
Thank you, Your Honor.

10

MJ:

Anything further on the defense judicial notice motions?

11

ADC[CPT TOOMAN]:

No, Your Honor.

12

ATC[CPT MORROW]:

No, Your Honor.

13

MJ:

All right.

Do you want to proceed on with the government’s

14

judicial notice or do you want to take lunch and then start that

15

afterwards? I mean, we started late today, so it’s ----

16

ATC[CPT MORROW]:

17

MJ:

18

ATC[CPT MORROW]:

Yes, Your Honor.

I don’t care either way.
The government would just prefer to go print

19

and push through, but I think the defense wants to take a lunch

20

break.

21

CDC[MR. COOMBS]:

22

MJ:

23

ATC[CPT MORROW]:

All right.

We’ll go ahead and push through.
How long of a recess do you need?
About 5 minutes, Your Honor.

6037

09934

1

MJ:

All right.

Why don’t we do it for 10?

Court is in recess

2

until 1225.

3

[The Article 39(a) session recessed at 1215, 9 January 2013.]

4

[The Article 39(a) session was called to order at 1229, 9 January

5

2013.]

6

MJ:

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

Let the

7

record reflect all parties present when the Court last recessed are

8

again present in court.

9

ATC[CPT MORROW]:

Your Honor, the government requests you take

10

judicial notice of the following Army Field Manuals, Executive

11

Orders, and various news articles.

12

would like the Court to take judicial notice of for those news

13

articles.

14

MJ:

15

ATC[CPT MORROW]:

16

MJ:

17

ATC[CPT MORROW]:

We’ll clarify exactly what we

Let’s start with the regulations first.
Yes, Your Honor.

Is the basis for judicial notice the same for all of them?
Yes, Your Honor.

We would contend that

18

these field manuals are relevant because PFC Manning is alleged to

19

have compromised various forms of intelligence.

20

an intelligence analyst for a brigade combat team.

21

-- we request the Court take judicial notice of these regulations

22

because they are relevant on sentencing to capture any ----

23

MJ:

So you want them just for sentencing?

6038

He was, in addition,
These regulations

09935

1
2
3
4
5

ATC[CPT MORROW]:

No, on the merits as well with respect to

the accused’s knowledge.
MJ:

Does the government have any evidence that these accused

did know of these regulations?
ATC[CPT MORROW]:

Your Honor, we would proffer that as we go

6

through these field manuals with relevant witnesses and discuss

7

training, et cetera that’s conducted and the regulations that are

8

applicable to people in the accused’s position.

9
10
11

MJ:

All right.

Let’s go over them one-by-one.

Army Field

Manual 2-0 Intelligence.
ATC[CPT MORROW]:

Yes, Your Honor.

That field manual outlines

12

the role of intelligence and the processes associated with planning,

13

collecting, disseminating and evaluating intelligence.

14

describes staff support, Army intelligence capabilities and

15

intelligence support to land operations.

16

a statement of relevancy for each one, Your Honor?

17

MJ:

18

ATC[CPT MORROW]:

It also

Are you asking for sort of

Yes.
The government maintains that Army Field

19

Manual 2-0 is relevant because it outlines the role intelligence and

20

it sort of establishes the baseline for the role of an intelligence

21

analyst and the role of intelligence daily operations in the Army,

22

specifically to the deployed forces.

6039

09936

1

Your Honor, I’ll just note that the programs of instruction

2

for AIT have been -- for Advanced Individual Training for a 35 Fox

3

have been pre admitted by this Court previously, and that’s where

4

these Army Field Manuals are taught.

5

MJ:

6

ATC[CPT MORROW]:

7

MJ:

8

ATC[CPT MORROW]:

9

And a witness is going to come and testify to that?

Okay.

Yes, Your Honor.

Is that true of all the field manuals?
That’s true of all the field manuals, Your

Honor, and ----

10

MJ:

So that would be ----

11

ATC[CPT MORROW]:

12

Manual and Trainers Guide.

13

MJ:

14

ATC[CPT MORROW]:

15

MJ:

16

ATC[CPT MORROW]:

17

MJ:

18

ATC[CPT MORROW]:

---- it’s true of the MOS 35 Fox Soldier’s

So 1, 2, 3, 4 and 5?
Yes, Your Honor.

All are taught in AIT?
Taught or reference in AIT, Your Honor.

All right.
Six through nine, Your Honor, are simply --

19

Executive Order 12958 is simply the predecessor order to Executive

20

Order 13526, which governs classified national security information.

21

Are you there?

22

MJ:

23

I’m sorry, Your Honor. Excuse me.

Hold on.

That’s okay.

So these are all field manuals,

right, everything before six, is that correct?

6040

09937

1

ATC[CPT MORROW]:

2

MJ:

3

ATC[CPT MORROW]:

Okay.

That’s correct, Your Honor.

Let me make my job easy here.

Hold on.

I’m not actually -- number 5, I don’t know

4

whether it’s a -- I don’t believe it’s a field manual, but it’s an

5

Army publication.

6

MJ:

Okay.

7

through nine?

All right.

8

ATC[CPT MORROW]:

9

MJ:

10

Let’s talk about -- what is it six

That’s correct, Your Honor.

Okay.

ATC[CPT MORROW]:

Six through nine, Executive Order 12958 is

11

simply the predecessor order to Executive Order 13526, which governs

12

classified national security information.

13

MJ:

Why would that be relevant?

14

ATC[CPT MORROW]:

It’s relevant because some of the

15

information originally classified in this case was classified under

16

the previous Executive Order.

17
18

Seven, eight and nine are just amendments to that Executive
Order.

19

MJ:

Okay.

20

ATC[CPT MORROW]:

Number 10, Your Honor, the government

21

provided a February 2010 British Broadcasting Company news report, or

22

the link to a news report, Your Honor.

6041

The government simply

09938

1

requests that the Court take judicial notice to the fact that Julian

2

Assange was in Iceland in February 2010.

3

MJ:

Based on a newspaper article?

4

ATC[CPT MORROW]:

Yes, the report itself.

Yes, Your Honor.

5

That fact is relevant because it provides context for some of the

6

computer forensic evidence including chat logs between PFC Manning

7

and Julian Assange.

8
9

MJ:

Does the government have any case law that a newspaper

article -- that things stated in a newspaper article can be

10

adjudicative facts?

11

be hearsay, right?

12

If I didn’t take judicial notice of it, it would

ATC[CPT MORROW]:

The newspaper article itself is hearsay,

13

Your Honor.

14

events reported in the newspaper article to conclude that Julian

15

Assange -- or to take judicial notice -- to form your decision on

16

whether to take judicial notice of the fact that Julian Assange was

17

in Iceland in February 2010.

18

MJ:

The governments is simply requesting that you use the

So the fact that this is in this newspaper article meets --

19

is it the government’s position that that’s a fact that’s not subject

20

to reasonable dispute?

21

ATC[CPT MORROW]:

The fact that he was in Iceland in February

22

2010, because it was reported in various news outlets, including this

23

report, is a fact that is not subject to reasonable dispute.

6042

09939

1

MJ:

2

ATC[CPT MORROW]:

3

And you’re hanging your hat on one article?
We are at this time, Your Honor, but the

government can simply provide additional evidence.

4

MJ:

All right.

5

ATC[CPT MORROW]:

And you’re saying it’s relevant why?
It’s relevant because -- during trial, Your

6

Honor, the government will offer into evidence chat logs between the

7

accused and Julian Assange, that date when he was -- Assange was in

8

Iceland is relevant -- provides context to some of the discussions

9

between them.

10

And why -- certainly, the government would maintain

why certain information was released relating to Iceland.

11

MJ:

All right.

12

ATC[CPT MORROW]: Number 11, Your Honor, is a New York Times

13

Article entitled Pentagon Sees Threat from Online Muckrakers, dated

14

18 March 2010.

15

judicial notice of the fact that Lieutenant Colonel Packnett was

16

quoted in this article that was published on 18 March 2010.

The government simply requests that the Court take

17

MJ:

Who’s Lieutenant Colonel Packnett?

18

ATC[CPT MORROW]: Lieutenant Colonel Packnett, Your Honor, was an

19

Army spokesperson for an Army Intelligence Organization.

20

relevant specifically that he was quoted in this article for sort of

21

a similar reason to the Assange fact, which is it provides context

22

for some of the computer forensic evidence, specifically a serious a

6043

The fact is

09940

1

chats between PFC Manning and Assange where they discussed this

2

article.

3

MJ:

4

ATC[CPT MORROW]:

How is this not hearsay?
We’re simply asking -- again, we’re not

5

asking you to take notice of the contents of the article or that

6

anything in there is an adjudicative fact, simply the fact that the

7

article quoted Colonel Packnett and that it was dated 18 March 2010.

8

MJ:

So that’s what you want me to take judicial notice of?

9

ATC[CPT MORROW]:

Yes, Your Honor.

In fact, we have a -- we

10

have filing -- I have a filing prepared last night that could

11

probably -- for some of these news articles could clarify what

12

exactly we’re seeking to take judicial notice of.

13

MJ:

14

ATC[CPT MORROW]:

15
16

That would be very helpful.
Yes, Your Honor.

Would you like me to keep

going, Your Honor?
MJ:

All right.

So you want it -- let me just make sure I’m

17

understanding this a little better.

I know you’re going to give me

18

something with a little more clarity, but you want -- the only thing

19

you want me to take judicial notice of is on 18 March 2010, the New

20

York Times -- there’s a New York Times article that quoted a

21

Lieutenant Colonel Lee Packnett, an Army Spokesman, confirmed that

22

the report -- what report?

The report was real?

6044

09941

1

ATC[CPT MORROW]:

No, Your Honor.

Simply the fact that

2

Lieutenant Colonel Packnett was quoted in this article and that the

3

article was dated 18 March 2010.

4
5
6
7

MJ:

Quoted in -- do you want the name of the article or do you

just want a New York Times article dated 18 March 2010?
ATC[CPT MORROW]:
Honor.

We don’t need the name of ----

8

MJ:

9

ATC[CPT MORROW]:

10
11
12

A New York Times article is sufficient, Your

MJ:

Okay.
Yes, the name of the article as well.

Why is the name Pentagon Sees a Threat from Online

Muckrakers relevant?
ATC[CPT MORROW]:

Only in the sense that it -- only in the

13

sense that it provides context for the article, but -- or for the

14

fact, but again, it’s not necessarily relevant to -- it’s not

15

necessary for what the government intends to use it for.

16

MJ:

Shouldn’t there be a 403 concern then having a newspaper

17

article saying that the Pentagon sees a threat from online

18

Muckrakers.

19
20

ATC[CPT MORROW]:

I don’t see a 403 issue there, Your Honor,

but certainly ----

21

MJ:

Okay.

But you don’t need the name of the article?

22

ATC[CPT MORROW]:

No, Your Honor.

6045

09942

1
2
3

MJ:

Tell me again how the fact that this person is quoted in an

article dated 18 March 2010, is relevant?
ATC[CPT MORROW]: Yes, Your Honor.

It establishes a timeline

4

essentially of -- it also confirms the authenticity of the chat logs,

5

if you want to look at it that way.

6

introduce evidence that PFC Manning was discussing this article with

7

Julian Assange and they were laughing about it, et cetera.

8

government -- simply -- this is simply to provide context for that

9

chat and to establish the authenticity of the chat.

10

MJ:

11

ATC[CPT MORROW]:

The government is going to

The

Okay.
Your Honor, the next adjudicative fact the

12

government would like for you to take judicial notice of is a New

13

Yorker profile of Julian Assange entitled No Secrets Julian Assange

14

Mission for Total Transparency was dated 7 June 2010.

15

MJ:

16

ATC[CPT MORROW]:

17

MJ:

18

ATC[CPT MORROW]:

19

MJ:

20

ATC[CPT MORROW]:

21

All right.

I’ve got ---It’s marked as Appellate Exhibit ----

It’s the addendum.

Okay.

---- 465.

So this has already been filed?
We just had it marked as an Appellate

Exhibit, Your Honor.

22

MJ:

Defense have a copy?

23

ADC[CPT TOOMAN]: Yes, Your Honor.

6046

09943

1
2

MJ:

Okay.

So these are the adjudicative facts that you want me

to take judicial notice of that’s in these articles?

3

ATC[CPT MORROW]:

4

MJ:

5

ATC[CPT MORROW]:

6

You don’t want me to take judicial notice of the articles.
And the article would be evidence for the

adjudicative evidence.

7

MJ:

8

ATC[CPT MORROW]:

9

That’s correct, Your Honor.

Okay.
The relevance of the New Yorker profile,

Your Honor?

10

MJ:

Yes?

11

ATC[CPT MORROW]:

The relevance is that, again, this relates

12

to chat logs between PFC Manning and in this case Agent Lamo, in

13

which they discuss the publication of this article prior to the

14

article’s release essentially confirming the fact -- the government

15

would maintain would confirm the fact that Manning was having contact

16

with Assange.

17

the date of the publication of this article.

The date of the chat logs was several weeks prior to

18

MJ:

All right.

19

ATC[CPT MORROW]:

The next fact, Your Honor, the government

20

requests that you take judicial notice of the fact that WikiLeaks and

21

various news organizations began publishing Department of State

22

diplomatic cables over the weekend of 27, 28 November 2010.

23

MJ:

And that’s based on?

6047

09944

1

ATC[CPT MORROW]:

That’s based on the letter, so Enclosure 13,

2

I believe, which is a letter from Harold Koh -- signed by Harold Koh,

3

who is the legal advisor to the Department of State.

4

Enclosure 14 also provides evidence of that fact, Your Honor.

5
6
7
8
9

As well as

The relevance of this, Your Honor, as it relates ---MJ:

Where does this letter come from?

How do know it’s even

authentic?
ATC[CPT MORROW]:

It was published by the Washington Post,

Your Honor.

10

MJ:

So that makes it authentic?

11

ATC[CPT MORROW]:

It -- well, we would argue that -- the

12

government would argue that posted by the Washington Post and there

13

was no indication that it was inauthentic, but again, we provided the

14

other -- the separate news report that discusses the release of these

15

cables over this time period.

16

MJ:

Why wouldn’t the newspaper report be hearsay?

17

ATC[CPT MORROW]:

Again, we’re not asking you take -- we’re

18

not asking you to -- well, we’re asking you to take judicial notice

19

of the adjudicative fact, but you can rely on the -- you’re not bound

20

by the Rules of Evidence in terms of what you can rely on in

21

determining whether to take judicial notice of a fact.

22

report is hearsay.

The news

We’re asking the Court to use that as a reliable

6048

09945

1

source to inform its decision on whether to take judicial notice of

2

the fact itself.

3

MJ:

How does the letter -- how is the letter relevant to -- how

4

is it the letter a source where I can go to find judicial notice that

5

Department of State cables began public -- or the publication began

6

on the weekend of 27 to 28 November 2010?

7

November 2010, but ----

8

ATC[CPT MORROW]:

9

MJ:

10
11

This letter is dated 27

That’s correct, Your Honor.

---- it doesn’t say anything about when -- anything about

publication by anybody.
ATC[CPT MORROW]:

Yes, certainly this isn’t -- this isn’t the

12

best source for the reliability of that fact, but the government

13

would ask you to consider this letter as well as the news article in

14

determining whether to take judicial notice of the facts.

15

MJ:

All right.

16

ATC[CPT MORROW]:

What’s next?
The government requests that you take

17

judicial notice of the fact that Al-Qaeda and its affiliates, Al-

18

Qaeda and the Islamic Maghreb, Al-Qaeda in Iraq, and Al-Qaeda in the

19

Arabian Peninsula are all listed as foreign terrorist organizations

20

by the Department of State, and are in fact enemies of the United

21

States.

22
23

MJ:

And where did this U.S. Department of State 28 September

2012, Foreign Terrorist Organization chart come from?

6049

09946

1

ATC[CPT MORROW]:

It is from the Department of State website,

2

which lists foreign terrorist organizations and the date they were

3

designated.

Additionally, Your Honor ----

4

MJ:

5

ATC[CPT MORROW]:

6

separately, Your Honor.

7
8

Where does it say Al-Qaeda and its affiliates?

MJ:

Well, it says -- it lists each of them
If you ----

Where does it say anything about Al-Qaeda and who is

affiliated with Al-Qaeda?

9

ATC[CPT MORROW]:

That’s a fair point, Your Honor.

I mean,

10

you can use them separately.

11

Al-Qaeda in the Islamic Maghreb, Al-Qaeda, and Al-Qaeda in the

12

Arabian Peninsula.

13

MJ:

14

ATC[CPT MORROW]:

15

It specifically lists Al-Qaeda in Iraq,

Where do you see Al-Qaeda AQ?
If you look on Page 2 of the enclosure, Your

Honor.

16

MJ:

Okay.

17

ATC[CPT MORROW]:

18

MJ:

The third one down.

Where is Al-Qaeda in the Arabian Peninsula?

19

Okay.

20

the alleged charged offenses here?

21

This one has a date of 1/19/2010.

Oh, I see it.

Does that precede all of

ATC[CPT MORROW]: It doesn’t, Your Honor.

The government’s

22

understanding is that the date of designation is more important, so

23

although this list is dated on that date ----

6050

09947

1

MJ:

2

is 1/19/2010.

3

No, the date of -- that’s the date of designation for AQAP

ATC[CPT MORROW]:

That’s correct, Your Honor.

Some of the --

4

well, with respect to Article 104 -- the Article 104 spec that

5

information was transmitted subsequent to the designation.

6

MJ:

All right.

7

ATC[CPT MORROW]:

This is relevant to the 104 spec?
Yes, Your Honor.

It sort of goes hand-in-

8

hand with the next fact, which is that the government requests you

9

take judicial notice of the fact that Osama bin Laden is a member of

10

Al-Qaeda and an enemy of the United States.

11

course, is Article 104, but specifically the government’s notice of

12

declassification filed on 29 November 2012.

13

MJ:

14

ATC[CPT MORROW]:

15

MJ:

16

What are you relying on for that one?

No.

That would be the ----

I mean enclosure what?

You have your supplemental --

your government addendum, but I don’t ----

17

ATC[CPT MORROW]:

18

MJ:

19

The relevance, of

That’s correct, Your Honor.

But I can’t link up what addendum and what enclosure it

references.

20

ATC[CPT MORROW]:

21

MJ:

22

ATC[CPT MORROW]:

23

MJ:

Yes, Your Honor.

Let’s go through one by one.

I can actually ----

A is enclosure what?

A would be enclosure 10, Your Honor.

B?

6051

09948

1

ATC[CPT MORROW]:

2

MJ:

3

ATC[CPT MORROW]:

4

MJ:

5

ATC[CPT MORROW]:

B would be enclosure 11.

C?
C would be enclosure 12.

D is 13 and 14?
That’s correct, Your Honor.

E would be 15

6

as enclosure 18, simply additional evidence that the Department of

7

State designated AQAP as a foreign terrorist organization.

8

MJ:

All right.

9

ATC[CPT MORROW]:

If, Your Honor, is -- the government would

10

ask you to -- the Court to rely on its -- a fact that’s known in the

11

community, specifically the world.

12

MJ:

All right.

13

ATC[CPT MORROW]:

Without giving me anything to rely on?
We can provide you more to rely on, Your

14

Honor.

We can -- I think -- the government believes it can provide

15

at least the FBI most wanted list prior UBL’s death.

16

there, Your Honor, is as the Court is aware, the government intends

17

to present evidence of digital media found during the UBL raid,

18

specifically, a letter from UBL to a member of Al-Qaeda requesting

19

that that member gather Department of Defense information; a letter

20

back to UBL attached to which were all the CIDNE Afghanistan

21

Significant Activity reports, finally, Department of State

22

information.

23

the time of the raid.

The relevance

All that information was in the possession of UBL at
That information has been declassified.

6052

09949

1

MJ:

All right.

2

ATC[CPT MORROW]:

G, Your Honor, the government requests you

3

take judicial notice that Adam Gadahn is a member of Al-Qaeda and an

4

enemy of the United States.

5

MJ:

Why is that relevant?

6

ATC[CPT MORROW]:

This is relevant to evidence the government

7

will present on sentencing, specifically a video of Adam Gadahn

8

discussing WikiLeaks and Al-Qaeda’s response there.

9

believes that video would be relevant on the merits as well.

10

MJ:

11

ATC[CPT MORROW]:

Why?

12

by the enemy.

13

MJ:

14

ATC[CPT MORROW]:

15

The government

All right.

Specifically, the possession of information

This is from the FBI website?
That’s correct, Your Honor.

Finally, Your Honor, the government requests you take

16

judicial notice of the fact that Inspire is a magazine that advocates

17

violent jihad and promotes the idea -- ideology of Al-Qaeda in the

18

Arabian Peninsula.

19
20
21
22

MJ:

Wait a minute.

Enclosures 17 and 18, what are they

supporting?
ATC[CPT MORROW]:

Seventeen, Your Honor, the government

withdraws that enclosure from consideration.

6053

It’s simply -- but you

09950

1

could rely on that enclosure to make a determination that Al-Qaeda is

2

an enemy.

3

MJ:

4

ATC[CPT MORROW]:

5

MJ:

6

Do you want me to consider it or not?

So for that one, for Al-Qaeda and its affiliates, it’s

enclosures 15, 17 and 18?

7

ATC[CPT MORROW]:

8

MJ:

9

ATC[CPT MORROW]:

Okay.

That’s correct, Your Honor.

Gadhan is enclosure 16?

10

MJ:

11

ATC[CPT MORROW]:

12

Please consider it.

Yes, Your Honor.

What did we -- what is enclosure 19 in there?
Nineteen, Your Honor, the government

withdraws that enclosure for consideration.

13

MJ:

14

ATC[CPT MORROW]:

15

a copy of Inspire magazine.

16

in determining whether or not to take judicial notice of subparagraph

17

h of the addendum, which is that Inspire is a magazine that advocates

18

violent jihad and promotes the ideology of Al-Qaeda in the Arabian

19

Peninsula.

20

MJ:

All right.

Enclosure 20?
Enclosure 20, Your Honor, is simply -- it’s
We’d ask the Court to consider that copy

Is the conclusion that it advocates violent jihad and

21

promotes the ideology of AQAP an appropriate subject for judicial

22

notice?

23

ATC[CPT MORROW]:

I believe it’s an adjudicative fact.

6054

09951

1
2

MJ:

If I read this magazine, that’s what I’m going to come to

the conclusion of?

3

ATC[CPT MORROW]:

4

MJ:

5

ATC[CPT MORROW]:

Yes, Your Honor.

How do I know how often it’s printed?
That’s something the government can

6

certainly provide additional evidence of.

7

monthly, but it could be quarterly.

8

will have additional witnesses that will likely discuss Inspire

9

magazine.

10

MJ:

11

ATC[CPT MORROW]:

12

MJ:

13

ATC[CPT MORROW]:

14

MJ:

15

ATC[CPT MORROW]:

I believe it’s printed

We will have -- the government

Witnesses who are familiar with the magazine?
Yes, Your Honor.

Witnesses in government.

Okay.
Subject to any questions, Your Honor.

What’s the relevance of Inspire magazine?
Your Honor, it’s relevant on sentencing,

16

specifically the government will present evidence it mentions

17

WikiLeaks and what individuals should do with WikiLeaks and how they

18

should react to what’s published.

19

MJ:

Now, in a couple of these you mentioned that it references

20

WikiLeaks.

21

WikiLeaks or allegedly disclosed by the accused?

22
23

Is it referencing anything disclosed by the accused to

ATC[CPT MORROW]:

It’s the -- the magazine -- specifically the

copy we provided the Court is dated, I believe -- it’s the winter

6055

09952

1

2010, version of the magazine.

2

reference to WikiLeaks postdates the accused’s misconduct and is in

3

response to information posted on WikiLeaks or leaked to WikiLeaks by

4

the accused.

5
6

MJ:

Is the reference to WikiLeaks in this copy that you gave

me?

7

ATC[CPT MORROW]:

8

MJ:

9

ATC[CPT MORROW]:

10

MJ:

Where?

Okay.

I’m getting confused.

ATC[CPT MORROW]:

MJ:

16

ATC[CPT MORROW]:

Is it the Bates number pages

The page number pages, Your Honor, of the

My page numbers stop at 35.

45 and what?

The bottom of page 44 and the top of page

45.

18

MJ:

19

ATC[CPT MORROW]:

20

It’s the bottom of page 44 and

actual magazine.

15

17

One moment.

or the page number pages?

13
14

It is, Your Honor.

the top of page 45.

11
12

The government maintains that the

Okay.
The government will make an additional copy,

Your Honor, if that enclosure is incomplete.

21

MJ:

No.

This is fine.

22

ATC[CPT MORROW]:

23

MJ:

Okay.

Any other questions, Your Honor?

No.

6056

09953

1

ATC[CPT MORROW]:

2

MJ:

3

ADC[CPT TOOMAN]:

4

MJ:

5

ADC[CPT TOOMAN]:

All right.

Thank you.
Defense, let’s go by category again.
Yes, ma'am.

Field manuals.
Ma’am, our objection is to relevance.

We

6

think based on the government’s arguments today any decision you make

7

is best deferred until we hear the testimony to see if the testimony

8

makes it relevant.

9
10

MJ:

If the testimony makes it relevant, is there any other

objection to those judicial notice?

11

ADC[CPT TOOMAN]:

12

MJ:

13

ADC[CPT TOOMAN]:

14

MJ:

No, ma'am.

One through nine?

So that would be 1 through 9.

Okay.

Yes, ma'am.

Well, you heard the government proffer that some of the

15

classification of the charged offenses was done based on the prior

16

executive order.

17
18
19
20
21

Does the defense agree with as a proffer?

ADC[CPT TOOMAN]:

One moment, Your Honor.

Yes, we agree with

that, Your Honor.
MJ:

So what’s the relevance objection to the prior executive

order and its amendments?
ADC[CPT TOOMAN]:

Your Honor, the relevance objection is the

22

government hadn’t articulated the relevance of it.

23

be no relevance objection.

6057

Now there would

09954

1
2

MJ:

All right.

So really, does the defense object to me taking

judicial notice of 6, 7, 8 and 9?

3

ADC[CPT TOOMAN]:

4

MJ:

Okay.

No, Your Honor.

And I’ve got your objections to one through 5

5

depending on the witnesses.

6

ADC[CPT TOOMAN]:

7

10 through 14.

8

MJ:

9

ADC[CPT TOOMAN]:

10

MJ:

Okay.

Next, Your Honor, I will address, I guess,

Okay.
Should be the newspaper articles.

Well, remember they’re not asking me to take judicial

11

notice of the newspaper article, I’m now understanding.

12

they want me to base their judicial notice -- the things they want me

13

to take judicial notice of are on the addendum.

14

ADC[CPT TOOMAN]:

Yes, Your Honor.

This is what

The defense still believes

15

that your ruling from the last time we covered this issue is

16

appropriate to follow here.

17

newspaper article.

18

door the government needs to get through is the hearsay of the

19

newspaper.

20

potentially anything that’s inside that newspaper.

21

even get past the fact that this is a newspaper article and there’s

22

not -- as this Court pointed out, no one can find a hearsay exception

23

to the newspaper article.

There’s no hearsay exception for the

It’s hearsay within hearsay.

The first locked

Once they get through that, then they could get into

6058

But they don’t

09955

1

MJ:

So is it defense’s position that I can never rely on

2

newspaper articles?

3

event occurred, that I can never use that as a basis for finding an

4

adjudicative fact?

5
6

ADC[CPT TOOMAN]:

That would not be the position of the

defense, Your Honor, no.

7
8

Say something is in 15 newspapers, that this

MJ:

Well, I think that’s what the government is asking me to

do.

9

ADC[CPT TOOMAN]:

Well, the defense’s position is they haven’t

10

provided 15 news articles for any of these facts.

11

and that’s what they’re relying on.

12

MJ:

13

ADC[CPT TOOMAN]:

They provided one

Okay.
And the proffer today is different than what

14

was filed under the motion -- or the request today is different than

15

what they asked in the motion.

16

MJ:

Would the defense like additional time based on the

17

addendum provided by the government today, because that does change

18

that.

19

asking for.

20

That at least changed my impression of what the government was

ADC[CPT TOOMAN]:

One moment, Your Honor.

Your Honor, unless

21

the government is going to produce any additional evidence, then we

22

would not ask for additional time.

6059

09956

1
2
3
4
5

MJ:

Is the government producing any additional evidence or

relying on what you’ve given me?
ATC[CPT MORROW]:

I didn’t -- I’m sorry.

The government

didn’t hear that, Your Honor.
MJ:

I asked the defense if they needed additional time because

6

the addendum to the government -- it wasn’t clear, at least to me,

7

what the government was asking.

8

judicial notice of the articles themselves.

9

you’re asking me to use the articles to -- as the sources for my

I thought you were asking for
With the addendum now,

10

ability to take judicial notice of these adjudicative facts.

11

the defense if they needed more time based on this addendum that was

12

filed on -- today, and they have told me that if you’re relying on

13

what you’ve given me in the enclosures, no, but if you’re going to

14

supplement the enclosures, yes.

15
16
17

I’m asking you if you’re going to supplement the enclosures
or hang your hat on what you have here?
ATC[CPT MORROW]:

Your Honor, we will supplement some of the

18

enclosures, yes, Your Honor.

19

defense taking additional -- needing additional time.

20

MJ:

The government has no objections to the

How long are you going to take to supplement these

21

enclosures?

22

January?

23

I asked

I’d like to handle this maybe at the next 16, 17

ATC[CPT MORROW]:

That will easily be done.

6060

09957

1

MJ:

2

ADC[CPT TOOMAN]:

3

MJ:

4

ATC[CPT MORROW]:

5

MJ:

6

How much notice do you need of the supplemental enclosures?
Just as soon as possible, Your Honor.

How long will it take you to have them?

All right.

By close of business on Friday, Your Honor.
Incorporate that into the Court calendar,

please.

7

Do you want to continue your argument with what we have

8

here?

9

you can’t assume anything.

10
11

I mean, if you’re argument is assume there would be -- well,

ADC[CPT TOOMAN]:

some of them based on the addendum.

12

MJ:

13

ADC[CPT TOOMAN]:

14

Your Honor, I think we can still address

Okay.
I think we’re comfortable addressing a

couple of them.

15

MJ:

Okay.

16

ADC[CPT TOOMAN]:

I guess it would be enclosure 11 to the

17

original motion, if you’re looking at the addendum, paragraph

18

1(bravo).

19

lieutenant colonel was quoted in the New York Times to the extent

20

that the government is asking for the title of that article to be

21

judicially noticed, then we think the hearsay exception does apply --

22

there is no hearsay exception to that, then they are asking you to

23

take notice of hearsay.

The defense doesn’t see any relevance to the fact that a

There is no exception to that.

6061

09958

1
2

I guess in 1(Charlie) again when they’re asking you to take
judicial notice of the entire article, it seems to the defense ----

3

MJ:

Where are you looking here?

4

ADC[CPT TOOMAN]:

5

MJ:

1(Charlie) on the addendum, Your Honor.

Now, my understanding from the government is they intend to

6

introduce evidence of some kind of a discussion that occurred prior

7

to this article about this article.

8

government correctly, they want to introduce the fact that this

9

article exists to corroborate the logs that this discussion occurred.

10

If I’m understanding the

Is that what I’m understanding?

11

ATC[CPT MORROW]:

That’s correct, Your Honor.

12

ADC[CPT TOOMAN]:

Your Honor, if I may ask the government ----

13

MJ:

14

ADC[CPT TOOMAN]:

Yes.

Certainly.
---- and the Court a question.

Is the

15

supplemental filing going to offer any more insight into what exactly

16

you’re asking for?

17

ATC[CPT MORROW]:

If the government needs to provide relevance

18

of the -- establish the relevance of a particular fact, we can

19

certainly supplement, but the -- I suppose the relevance ----

20

MJ:

This is all on oral argument.

The Court would very greatly

21

benefit from -- what is it -- I now know what you want me to take

22

judicial notice of, what you’re relying on for me to take that

23

judicial notice of these things.

Why these articles, et cetera, why

6062

09959

1

these enclosures are sources that are not subject to reasonable

2

dispute and what the relevance is going to be on either the merits,

3

sentencing or both.

Can the government do that by Friday?

4

ATC[CPT MORROW]:

5

MJ:

6
7

Okay.

Yes, Your Honor.

Defense, do you still want to argue this piecemeal,

or do you want to wait and do it on the 16th?
ADC[CPT TOOMAN]:

What is the date on Friday, Your Honor?

I

8

guess the concern from the defense is then that’s one business day --

9

of course, we have the weekend, but it’s one business day ----

10

MJ:

We’re doing Wednesday, Thursday next week.

11

ADC[CPT TOOMAN]:

12

MJ:

13

ADC[CPT TOOMAN]:

14

MJ:

Okay.

Does that give you enough time?
That’s fine, Your Honor.

That way we can at least -- I mean, I have pretty good idea

15

of what’s going on.

16

them, we can do that in addition to the speedy trial argument and

17

then come back on the 17th ----

18
19

ADC[CPT TOOMAN]:

That’s no issue, ma’am.

I was thinking we

were starting on Tuesday.

20

MJ:

21

ATC[CPT MORROW]:

22

When I get the filings on Friday, I can look at

All right.

Does that work for both sides?
Yes, Your Honor.

So you would like a brief

that discusses relevance, why you should rely on a source?

6063

09960

1
2
3

MJ:

Yes.

Defense, do you want to file a supplemental filing

for me to consider before -- maybe on Tuesday based on theirs?
ADC[CPT TOOMAN]:

If need be, Your Honor. I would anticipate

4

that we could probably just argue it without a response, but --

5

unless the Court would prefer something in writing from the defense.

6

MJ:

Well, it gives me a chance to at least get an idea of what

7

your position is before I commence, so that would be helpful.

8

doesn’t have to be anything lengthy.

9

tailored to the issues that are going to be raised by the government.

10
11

ATC[CPT MORROW]:

It doesn’t have to be narrowly

The government’s brief will be brief, Your

Honor.

12

MJ:

13

ADC[CPT TOOMAN]:

14

Okay.
So the defense will plan to have you

something by Tuesday, Your Honor.

15

MJ:

16

ADC[CPT TOOMAN]:

Thank you.

Build that into the calendar, please.
I guess we can address looking at the

17

original motion dated 16 November.

18

everything, for the sake of cleanliness.

19

It

MJ:

Your Honor, we’ll just save

I think it will be all clear when we have the government’s

20

supplemental filing and then we can just address it all at one time.

21

Thank you.

22

ADC[CPT TOOMAN]:

Yes, Your Honor.

6064

09961

1

MJ:

All right.

So really the only thing remaining here that we

2

need supplemental filings on is what’s been provided in the addendum

3

and Enclosures 11 through 21 minus 19.

4

ATC[CPT MORROW]:

5

MJ:

6

9

Anything else we need to address with respect to judicial

notice?

7
8

Yes, Your Honor.

ATC[CPT MORROW]:
else.

Sorry.
MJ:

Yes.

Ma’am, I was going to respond to something

The Foerester case, do you have a cite for that?
65 M.J. 120.

10

ATC[CPT MORROW]:

11

MJ:

12

ATC[CPT MORROW]:

Yes, ma'am.

Court of Appeals for the Armed Forces 2007.
Sorry, Your Honor.

13

DoD Manual 501-05 that we can provide to you.

14

in the over-classification argument ----

15

MJ:

16

ATC[CPT MORROW]:

17

19

ATC[CPT MORROW]:

We can

Is it a big thick document?
We can just print the relevant portion, Your

Honor.
MJ:

22
23

Or the damage assessment argument.

give that to you over lunch if you’d like.
MJ:

21

We had referenced it

All right.

18

20

We do have a copy of the

Thank you.
Anything else we need to address with respect to judicial

notice?

6065

09962

1

ADC[CPT TOOMAN]:

2

MJ:

3

CDC[MR. COOMBS]:

4

MJ:

5

CDC[MR. COOMBS]: If we could go until 1430.

6

MJ:

7

ATC[CPT MORROW]:

8

MJ:

9

No, Your Honor.

Ready to take a lunch break?
Yes, Your Honor.

How long would you like?

Does that work for the government?

All right.

Yes, ma'am.
Court is in recess until 1430.

[The Article 39(a) session recessed at 1317, 9 January 2013.]

10

[The Article 39(a) session was called to order at 1436, 9 January

11

2013.]

12

MJ:

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

Let the

13

record reflect all parties present when the Court last recessed are

14

again present in Court.

15

Are the parties ready to proceed with the motion to compel?

16

CDC[MR. COOMBS]:

Yes, Your Honor.

17

ATC[CPT MORROW]:

Yes, Your Honor.

18

CDC[MR. COOMBS]:

Your Honor, for this motion the following

19

Appellate Exhibits are applicable.

I’ve asked the court reporter to

20

pull them for the Court:

21

defense witness list for the merits and sentencing, filed on 15

22

October 2012; Appellate Exhibit 387, which is our witness list for

23

sentencing only case, which is kind of overcome by events, but it

Appellate Exhibit 344, which is our initial

6066

09963

1

does still have some factual information; Appellate Exhibit 404,

2

which is the government’s response to our defense witness list;

3

Appellate Exhibit 408 with declarations, this is our motion to compel

4

filed on 23 November 2012; and Appellate Exhibit 444, which is the

5

government’s response to our motion to compel along with their -- I

6

believe -- if I said 444 I meant 445, I apologize -- along with their

7

attachments; and then finally Appellate Exhibit 462, which is an

8

excerpt from AR 27-40 that we request the Court to take judicial

9

notice of.

10

MJ:

All right.

11

CDC[MR. COOMBS]:

Ma’am, in the -- the defense is seeking to

12

have this Court compel the production of the following witnesses for

13

merits: that is Colonel (retired) Morris Davis; Professor Yochai

14

Benkler; the Fort Leavenworth witness; Mr. Cassius Hall; and Mr.

15

Charles Ganiel.

16

for the Court to compel the presence of Ms. Lillian Smith, Ambassador

17

Peter Galbraith, and Colonel Dick Larry.

18

The defense is also seeking for the sentencing phase

Although there are several filings back and forth, I’d like

19

to structure my argument based upon the reasoning provided by the

20

government in its response to our motion to compel dated 12 December

21

2012.

22
23

The government opposed two witness under R.C.M. 703(b)(1)
under a theory that neither were relevant or necessary.

6067

Those were

09964

1

Colonel (Retired) Davis and Professor Benkler.

2

yesterday, the government points to the fact with regards to Colonel

3

Davis that he has not seen the charged DABs, or at least cannot say

4

for certainty that he’s seen the charged DABs.

5

that is a basis for this Court to deny his presence.

6

Colonel Davis cannot point to the fact that he’s actually viewed the

7

charged DABs, he can say that as the chief prosecutor, he’s seen all

8

the DABs during his time period and undoubtedly has seen the charged

9

DABs if they existed prior to 2007, which in this case that is the

10
11
12
13

As referenced

They believe that
Although

case.
MJ:

Does the government agree with that, that these DABs

existed prior to 2007?
TC[MAJ FEIN]:

14

a written filing.

15

the DABs.

Your Honor, the government may respond to that in
The government cannot confirm or deny the dates of

16

MJ:

All right.

17

CDC[MR. COOMBS]:

Colonel Davis can also provide testimony

18

regarding the nature of the information that’s charged on the DABs as

19

it existed on or before the dates of the alleged disclosure by PFC

20

Manning, specifically how the DABs were viewed.

21

the DABs were not viewed as being particularly sensitive.

22

testify that once the DABs were completed they were rarely, if ever,

23

updated, as later administrative or judicial processes developed a

6068

He will testify that
He will

09965

1

much more accurate, complete picture for each detainee.

2

Colonel Davis, the DABs were basically referred to as baseball cards.

3

He referred to them as baseball cards since detainees, the

4

information from the DABs were really just to identify the detainees

5

by name and provide some basic background information for them.

6

According to

Although Colonel Davis is not an OCA, he can certainly

7

provide his testimony as to whether there was a reason to believe the

8

DABs could be used for prohibited purposes.

9

DABs ----

10

MJ:

11

CDC[MR. COOMBS]:

His assessment of the

Well, what is his expertise for that?

He’s a prosecutor?

He is a prosecutor, Your Honor, but he is

12

also an individual who, based upon his training as the Chief

13

Prosecutor for the Commissions, has experience with classified

14

information, had to receive training on how to handle properly

15

classified information, and is aware of how these DABs were viewed as

16

opposed to other information that was also classified.

17

is that the DABs in this case, if given the ability to testify would

18

be that the information contained within the DABs was not

19

particularly sensitive.

20

in 2007, a time when he was the chief prosecutor, the pentagon

21

released the names of all of the Guantanamo detainees, that’s part of

22

the information that’s contained within the DABs.

23

will say during this time period, the Pentagon released the results

His opinion

He basis that on the fact that in 2006 and

6069

Additionally, he

09966

1

of a combatant status review tribunals, the CSRTs, and administrative

2

review boards, the ARBs, for each detainee.

3

his office and in particular people working underneath him were

4

responsible for completing.

5

That was something that

He’s familiar with the content of both the CSRTs and the

6

ARBs.

He would testify that based upon his position, the content

7

within these documents is much more expansive and much more detailed

8

than any information contained within the DABs.

9

times, especially with regards to the CSRTs, the information

In fact, often

10

contained within the DAB is almost repeated verbatim in the CSRTs.

11

That information was released by the government.

12

Again, although he’s not seen the charged DABs, the defense

13

obviously has and we would proffer to the Court that at least in

14

regards to one of the charged DABs, a CSRT was completed and

15

released.

16

information within the DAB.

17

individuals were released prior to the administration doing CSRTs.

18

There was not CSRTs done on them, but there is open source

19

information where they talked openly about their time and what

20

happened to them while they were in Guantanamo.

21

information that was filed in public released files from federal

22

court hearings that contains much, if not all, the information

23

contained within the DABs.

Those records give information that’s almost verbatim to
With regards to the other DABs, those

6070

There is also

09967

1
2
3

MJ:

And Mr. Davis is going to be able to testify about all of

that?
CDC[MR. COOMBS]:

Yes, Your Honor.

And what he would testify

4

to is based upon this fact, it’s his opinion that the information was

5

not closely held by the United States Government because it was not

6

particularly sensitive.

7

this case could not cause damage to the United States if released.

8
9

His opinion would be that the information in

Under our previous argument under 608(c), the defense would
assert that Colonel Davis should be permitted to come and testify in

10

order for the defense to offer information that impeaches the opinion

11

of the OCA.

12

and testify that the DABs actually would cause damage to the United

13

States, certainly Colonel Davis’s testimony would impeach that.

14

In this case, if the government calls an OCA to come in

The Court asked for some cases with regards to 608(c), and

15

the defense just simply said there were several of them.

16

give just a couple of cites for the Court’s benefit as the Court

17

looks into this issue.

18

and United States v. Collier.

19

MJ:

20

CDC[MR. COOMBS]:

21

MJ:

22

CDC[MR. COOMBS]:

23

I would

United States v. Moss, which is 63 M.J. 233
Both talked about ----

67 M.J. what?
67 M.J. 347, ma’am.

Okay.
Both cases talk about M.R.E. 608(c).

Collier specifically lays out the tests for when the information

6071

09968

1

should be permitted.

2

trier of fact would have perceived as significantly different result

3

or impression based upon the witness’s testimony if the other

4

evidence was offered, then it should have been offered under 608(c).

5

MJ:

Essentially what it does is if a reasonable

I believe I also asked you if you had any cases with -- any

6

other cases with accused or defendants tried under 793(e) with

7

respect to expert testimony outside of OCA’s on whether the

8

information could reasonably cause damage.

9
10

CDC[MR. COOMBS]:

I looked to see if I

could find anything within military jurisprudence; I could not.

11

MJ:

12

CDC[MR. COOMBS]:

13

You did, Your Honor.

Have you looked in federal jurisprudence?
All I did with the federal because --

granted that that could be ----

14

MJ:

That’s where most of these cases are tried.

15

CDC[MR. COOMBS]:

Right.

Because of the nature of -- limited

16

nature of us trying these types of cases.

17

directly on point where you had a defense bring in somebody to

18

directly disagree with an OCA.

19

MJ:

Okay.

20

CDC[MR. COOMBS]:

I did not see anything

Thank you.
Now again, the defense’s position is that

21

although he’s not an OCA, he certainly can come in and do just that,

22

give his opinion.

23

benefit of not only the OCA’s opinion and testimony, but also the

The Court then, at that point, would have the

6072

09969

1

opinion and testimony of another witness and at that point could

2

freely make its conclusions as to whether or not the information

3

could in fact cause damage to the United States.

4

The fact that the information was not closely held would

5

also, as the government concedes, be relevant to disprove that PFC

6

Manning stole, purloined or knowingly converted a thing of value as

7

charged in Specification 8 of Charge II.

8

is already freely available, that would undercut any argument that it

9

was a thing of value that was converted.

10
11

Clearly if the information

Based upon this argument, the Court should compel the
testimony of Colonel Davis.

12

With regards to Professor Yochai Benkler the government

13

takes issue with whether Professor Benkler is actually qualified as

14

an expert.

15

the history of WikiLeaks and how WikiLeaks was viewed prior to the

16

charged leaks.

17

MJ:

They take issue with him being considered an expert in

Before we even get there, what is the difference how

18

WikiLeaks -- the relevance of how WikiLeaks is viewed?

19

difference in this case if the release was to WikiLeaks or the New

20

York Times?

21

CDC[MR. COOMBS]:

What’s the

The defense would argue there is no

22

difference in that -- between WikiLeaks and the New York Times.

23

position here is that Professor Benkler can provide testimony that

6073

Our

09970

1

would assist the defense in presenting a defense both to the Article

2

104 offense and also to the wanton aspect for Specification 1 of

3

Charge II.

4

I’ll get to explain those arguments more fully in a moment,

5

but to start off with Professor Benkler being able to be qualified as

6

an expert, he is a Harvard Professor of Law that wrote an article

7

entitled A Free Irresponsible Press WikiLeaks and the Battle Over the

8

Soul of the Network for the State.

9

conducted extensive research not only on the history of WikiLeaks,

10

but also on the charged document in Specification 15 of Charge II.

11

Additionally, his scholarship in past 10 years has concentrated in

12

the fields of new forms of journalism and their relationship to

13

Internet law, democracy in the network public sphere.

14

written several articles in this area and book chapters in the field.

15

He would clearly qualify as an expert under M.R.E. 702.

16
17

As part of that article he

He also has

Again, his testimony would be something that would assist
the trier of fact with regards to the Article 104 offense.

18

MJ:

How?

19

CDC[MR. COOMBS]:

20

into two parts, Your Honor.

21

intelligence to the enemy through WikiLeaks.

22

greater detail.

What I would like to do is break it down
First, whether PFC Manning knowing gave
I’ll explain that in

Second, whether PFC Manning had the general evil

6074

09971

1

intent to deal directly or indirectly with an enemy of the United

2

States.

3

Article 104 requires the government to prove that PFC

4

Manning knowingly gave intelligence to the enemy through a third

5

party.

6

charged and it appears the only evidence is by just providing that

7

information to WikiLeaks that’s the indirect way of getting

8

information to the enemy.

9

the defense undercut any argument that by simply giving information

In this case, in an indirect way and the government has

Professor Benkler’s testimony would help

10

to WikiLeaks that PFC Manning would have had actual knowledge that he

11

was somehow providing information to the enemy.

12

He will testify that in the 2009, mid 2010 timeframe,

13

WikiLeaks was viewed as a journalistic organization with an

14

impressive history of exposing fraud and corruption within

15

governments and corporations.

16

organization.

17

organization that was aiding the enemy of the United States.

18

testify that during this timeframe, the 2009, early 2010 timeframe,

19

WikiLeaks received numerous awards that recognized its news

20

reporting.

21

considered to be a legitimate news organization, albeit not a main

22

stream news organization.

It was not viewed as a terrorist

It was viewed as -- it was not viewed as an
He will

He will say that prior to the charged leaks, it was

6075

09972

1

Based upon his research, he will say that over the course

2

of time between 2006 and 2010, WikiLeaks had released information on

3

a wide range of topics: various governments, various potential

4

corruption within corporations, various malfeasants, or an attitude

5

on different governments, not just the United States.

6

organization that was bent against the U.S. or our way of life.

7

was simply an organization that was focused on exposing fraud,

8

focused on exposing corruption.

9

It wasn’t an
It

As you asked earlier, well what’s the difference between

10

releasing something to WikiLeaks and releasing something to the New

11

York Times?

12

if you released information to the New York Times that you, by that

13

act alone, have aided the enemy.

14

should be true with releasing information to WikiLeaks.

15

information to WikiLeaks, like providing information to the New York

16

Times, resulted in information getting to the enemy, that in and of

17

itself would not support an Article 104 offense.

18

more; you need to show actual knowledge that by giving that

19

information to WikiLeaks you had the actual knowledge that you were,

20

in fact, giving information to the enemy indirectly.

21

with some general evil intent to accomplish that.

22
23

I responded nothing.

No one would seriously argue that

No one would argue that.

The same

If providing

You need to have

You show that

As the Court has previously ruled, you cannot commit this
act inadvertently, negligently or accidently.

6076

In this regard,

09973

1

Professor Benkler’s testimony helps the defense demonstrate that when

2

-- and help disprove that by providing information to WikiLeaks, that

3

that fact alone would lead one to believe that you’re providing

4

information to an enemy of the United States.

5

prove that at least in that time period that if you provided

6

information to WikiLeaks you were providing it to a legitimate news

7

organization.

8
9

Instead it would help

He will say -- Professor Benkler will also provide some
testimony that will give some evidence to help support an ignorance

10

or mistake of fact instruction by this Court.

11

is, of course, a defense to the offense of this charge, especially

12

for the actual knowledge prong, that the accused held as a result of

13

some ignorance or mistake an incorrect belief of the true

14

circumstances such that if the circumstances were as the accused

15

believed he would not be guilty of the offense.

16
17
18

MJ:

Under R.C.M. 916 it

Well, how is Professor Benkler going to testify what the

accused thinks?
CDC[MR. COOMBS]:

What he would provide is just some evidence

19

to help corroborate the subjective belief that -- if PFC Manning

20

believed that I was providing information to a legitimate news

21

organization, had no ties to the enemy, if that belief were as PFC

22

Manning believed, then that in and of itself would result in him not

23

being able to be found guilty of an Article 104 offense.

6077

If he was

09974

1

under the mistaken belief that, you know, I provided information that

2

could not cause harm to the United States, that’s how I selected that

3

information, and I gave that to a legitimate news organization,

4

again, Professor Benkler doesn’t connect all the dots, but he

5

provides some evidence in addition to other evidence the defense

6

intends to elicit, that would raise enough evidence for the Court to

7

provide an ignorance or mistake of fact instruction.

8
9
10

MJ:

Well, the defense would be he selected info that couldn’t

harm the United States, not that wouldn’t harm the United States.
CDC[MR. COOMBS]:

Correct, Your Honor.

So if at the time that

11

was his belief that I selected information that couldn’t harm the

12

United States and I provided it to a legitimate news organization and

13

that’s the information that’s out there, and if somehow that’s wrong,

14

you know, the information he selected wasn’t in fact information that

15

couldn’t cause harm or that this information would get to the enemy,

16

that’s the mistake of fact that would apply here.

17

required is that was an honest belief by PFC Manning because of the

18

fact that at least -- even though it’s a general intent offense, you

19

have the actual knowledge requirement and that would raise a

20

Benchbook instruction 511-1 in this instance.

21

All that would be

His testimony is also relevant as to whether PFC Manning

22

acted wantonly when he selected WikiLeaks as the source for the

23

information that he was going to release.

6078

If he’s releasing

09975

1

information to a legitimate news organization, it is understood that

2

news organizations take steps to verify the information they receive

3

and, if needed, conduct harm minimization.

4

testify that WikiLeaks did exactly that in this case.

5

received the information they had, they closely collaborated with the

6

New York Times, the Guardian, and Der Spiegel.

7

with them in order to ensure both a controlled and safe release of

8

the information that they received.

9

Professor Benkler will
Once they

They collaborated

He will testify that based upon his research, these

10

organizations put their own teams to work to review the information

11

that they had, organizations being the New York Times, the Guardian,

12

and Der Spiegel, and they selected information that was appropriate

13

for publication.

14

WikiLeaks at the same time published the same information.

15

this testimony then would be relevant as to whether or not PFC

16

Manning acted wantonly.

17

MJ:

Once they actually published the information, then
Obviously

Well, how would that testimony be relevant if PFC Manning

18

didn’t know that WikiLeaks was going -- is there going to be some

19

evidence that PFC Manning knew that WikiLeaks was going to talk to

20

the New York Times and Der Spiegel and the Guardian and do all of

21

those things?

22
23

CDC[MR. COOMBS]:

No, Your Honor.

What it would be is just

the evidence that you know you’re releasing information to a

6079

09976

1

legitimate news organization.

2

they are a legitimate news organization they did what you would

3

expect, and that is verify the information and ensure harm

4

minimization.

5

that belief on the facts of his research and that research then ties

6

into the New York Times, Der Spiegel, and the Guardian.

7

Professor Benkler will testify because

He will testify -- Benkler will testify that he basis

He’s also relevant as to whether or not there was a reason

8

to believe that the charged information in Specification 15 of Charge

9

II could be used for prohibited purposes.

10

MJ:

11

CDC[MR. COOMBS]:

Professor Benkler ----

What type of an expertise does he have to apply on that?
Right.

Professor Benkler will testify that

12

as part of his article he conducted research on the charged document

13

in Specification 15 of Charge II.

14

that he was able to verify that most of that product was based upon

15

open source information that was available prior to the creation of

16

the product.

17

WikiLeaks’s own self-description and also upon already publicly

18

available information.

19

For the most part he will opine

In fact, he will say it was based largely on

His testimony and his analysis of that article will help

20

support help defense’s position that PFC Manning did not have a

21

reason to believe that that document could be used for prohibited

22

purposes.

Also to corroborate the reasonableness of PFC Manning’s

6080

09977

1

belief that, in fact, the document could not be used for the

2

prohibited purposes.

3

Professor Benkler’s testimony is the product of reliable

4

principles and methods.

5

reliably to the facts that he would testify in this case.

6

has been subject to peer review.

7

citation of his work.

8

His testimony is supported if the Court looks through his article by

9

research and also by other factual information.

He has applied his principle methods
His work

We have included the Westlaw

It’s been cited by numerous other academics.

By all accounts he

10

would qualify not only as an expert, but also qualify in order to

11

give his opinions that would be relevant to facts and issues in this

12

case.

13

presence of Professor Benkler.

Therefore, the defense would request the Court compel the

14

The government in its motion then opposed several other

15

witnesses.

16

it down by going to sentencing and then going to opposition of

17

certain witnesses based upon the fact we didn’t comply with R.C.M.

18

703(d) or 5 C.F.R. provision.

19

witness.

20

Instead of going to the merits witnesses again they broke

I’ll first handle the sentencing

The only one in their response, Ambassador Galbraith, they

21

oppose because they believe he did not meet the requirements of

22

R.C.M. 1001(e).

23

sentencing only case, and I don’t believe that that is now an issue

The other witnesses that they opposed were for

6081

09978

1

to be litigated.

2

and Professor Benkler are going to be called in the merits.

3

not going to be called in sentencing.

4
5
6

MJ:

They would not be called in a -- like Colonel Davis

Now, I’m confused.

They’re

What about the other witnesses: Smith,

Larry, Hall?
CDC[MR. COOMBS]:

They opposed them under not a 703 basis.

7

They opposed them under, “You didn’t comply with 703(d) and you

8

didn’t comply with 5 C.F.R.,” so I’ll get to those.

9
10

MJ:

Okay.

CDC[MR. COOMBS]:

So Ambassador Galbraith is the only

11

sentencing witness that is being opposed under R.C.M. 1001(e) based

12

upon the defense’s reading of the government’s response motion.

13

defense’s position is Ambassador Galbraith is clearly a mitigating

14

witness, a witness who’s going to provide mitigation evidence on a

15

matter of substantial significance to the determination of an

16

appropriate sentence.

17

States Department as an Ambassador to Croatia from 1993 to 1998.

18

During that time he was also a United State Department of State

19

original classification authority.

20

he was a professional staff member with the Senate Foreign Relations

21

Committee.

22

Senate Department’s authorization legislation, an assignment that

23

included being responsible for the oversight and legislation related

The

He will testify that he was with the United

Further, from 1979 through 1993

For 10 years of that period he was responsible for the

6082

09979

1

to the State Department’s handling of classified material.

2

clearly is an individual who understands what he would be testifying

3

about.

4

MJ:

Well, does he still understand it?

5

CDC[MR. COOMBS]:

It is.

He

This was back in 1998.

He would, Your Honor.

That is one

6

of the weaknesses that -- or perceived weaknesses that the government

7

tries to raise in its response motion by saying the SIPDIS Tag, the

8

SIPRNET Distribution Tag, was not in existence during his time as an

9

ambassador, and that is true.

He will testify that the SIPDIS Tag

10

was not used when he was an ambassador; however, the State Department

11

used wide distribution tags during his time.

12

SIPDIS Tag is just that, it’s a wide distribution tag.

13

State Department started to use SIPDIS, he will testify that they

14

retroactively applied that to a number of cables that either he or

15

someone in his office drafted.

16

familiar with the type of cable that would be a SIPDIS cable.

17

He will say that the
Once the

He will say as such he’s not -- he is

He will say that SIPDIS cables or cables with such wide

18

distribution do not contain our country’s closely held secrets.

19

will say that the cables were written for a very wide distribution

20

audience; that no prudent diplomat would include generally sensitive

21

information within a SIPDIS cable.

22

cables, like other wide distribution cables, reported on either

23

issues that could be easily found within local newspapers, which is

6083

He

He will say that the SIPDIS

09980

1

verified by another expert or another witness that the defense

2

intends to call, or it’s based on administrative matters -- routine

3

administrative matters.

4

were truly sensitive information that ambassadors would use more

5

restrictive channels, channels that would ensure that only a limited

6

pool of people had access to the cables instead of the access that

7

was granted to anyone who had SIPRNET access to these cables.

8
9

So because of that he would say that if it

He will also testify in sentencing that he is concerned and
still is concerned with the leakage of classified information.

10

Although he is not a supporter of PFC Manning, he will testify that

11

in his experience that -- and based upon his understanding of the

12

SIPDIS cables that there is no comparison in the sensitivity or

13

importance of the material that was allegedly released by PFC Manning

14

and other material where he’s seen actual harm and where there’s been

15

no investigation or there has been only limited punishment.

16

He’ll say in his experience, most if not all of the State

17

Department cables that have this wide distribution are overly

18

classified. He will also talk about his experience with over-

19

classification.

20

His testimony would clearly meet the requirements of R.C.M.

21

1001(e), and as such the Court should compel his presence during the

22

sentencing phase.

6084

09981

1

Now, a probably more contentious area, I’d like to talk

2

about the other witnesses on the list that are remaining and that is

3

the expert witnesses or the witnesses that we could call as expert

4

witnesses: Mr. Hall, the Fort Leavenworth witness, Mr. Ganiel, Ms.

5

Lillian Smith, and Colonel Dick Larry.

6

Now, with regards to these witnesses the government is

7

opposing them because they believe that we have not complied with

8

R.C.M. 703(d) and we have not complied with 5 C.F.R. Section

9

2635.805.

10

I’d like to discuss each of these beliefs in turn.
The first is 703(d).

The government argues that we should

11

be required to comply with R.C.M. 703(d) for witnesses that we have

12

listed, but they cite no case law for the Court to support their

13

position.

14

the very clear guidance provided in the plain reading of the

15

discussion section of R.C.M. 703(d) and also the realities of Article

16

46 of the UCMJ and just the realities of our military justice system.

Not only do they not cite any case law, they also ignore

17

MJ:

18

CDC[MR. COOMBS]:

19

What language are you talking about in the discussion?

says that the provision ----

20

MJ:

21

CDC[MR. COOMBS]:

22

In R.C.M. 703(d) the discussion, ma’am, it

You mean the analysis?
Yes.

It’s in the analysis section.

It

states that the provision does not apply to government employees or

6085

09982

1

individuals who are contracted to provide services that would

2

otherwise fall within this subsection.

3

MJ:

4

CDC[MR. COOMBS]:

It’s on alpha 21-37.

I see it.
So that clearly indicates that R.C.M. 703(d)

5

doesn’t apply in a situation where the Convening Authority is not

6

being asked to fund the expert.

7

the production and employment of an expert witness when it’s governed

8

by 703(d) only applies when either the defense or, for that matter,

9

the government is seeking to have an expert produced and have -- and,

When you look at that you see that

10

and this is the important part, have the Convening Authority pay for

11

the expenses of that witness.

12

During an 802 the Court asked the government and the

13

defense would ask the same question for their proffer is, have they

14

complied with 703(d) for any of their government witnesses?

15

they gone to the Convening Authority and said, “You know what, 703(d)

16

applies to our government witnesses.

17

appointment to the government.”

The answer to that would be probably

18

a, “No, we haven’t done that.”

The reason why is because there is no

19

reason to do that.

20

Have

We need you to approve of their

They’re a government employee.

Article 46 and for that matter R.C.M. 703 that codifies the

21

spirit of Article 46, says the defense and the government have equal

22

access to witnesses.

23

pay for the witness and they’re a government employee, I have equal

If I’m not asking the Convening Authority to

6086

09983

1

access to that witness.

2

703(d).

3

MJ:

I should not be forced to comply with R.C.M.

Well, let me ask you a question then, looking at Toledo and

4

the cases that the government cited, if you don’t comply with 703(d),

5

do you have any attorney client privilege with respect to that

6

witness?

7

CDC[MR. COOMBS]:

Yeah, and that’s a -- that’s the point right

8

there, that’s a perfect point.

9

relationship with them.

I don’t have any attorney client

Colonel Dick Larry, the Fort Leavenworth

10

witness, there is no attorney client relationship -- not attorney

11

client, attorney work product.

12

to the defense team, they’re just a witness that happens to be

13

somebody who could qualify as an expert.

14

MJ:

15

CDC[MR. COOMBS]:

16

MJ:

17

CDC[MR. COOMBS]:

They don’t -- they’re not appointed

What about the other two?
The three:

Mr. Hall, Mr. Ganiel ----

The other three.
---- and Ms. Smith.

They were appointed to

18

-- and that might be some of the confusion.

They were appointed to

19

the defense team as expert assistants, which also is not under

20

703(d).

21

an expert assistant and you put them on your witness list then you

22

waive the privilege at that point, but we’re not asking for them to

23

be appointed to the defense team as expert witnesses either, again,

But in -- usually, if you have someone appointed to you as

6087

09984

1

because they’re government employees.

2

privilege, the government is free to talk to them, and certainly once

3

we put them on the witness list they’re free to do that.

4

There would not be a

So the defense’s position is that the entire process under

5

R.C.M. 703 doesn’t even apply in this situation and that’s because

6

the Convening Authority is not being asked to cover any expense of

7

the witnesses.

8

R.C.M. 703(d) hurdles.

9

That would be the only reason to go through the

In the event, and the defense would like argue this in the

10

alternative.

11

applies or ultimately that 5 C.F.R. provision prevents a person from

12

testifying as an expert witness where the United States is a party

13

----

14

MJ:

In the event that the Court would say that 703(d)

That’s what I would like to address.

Assume you’re right

15

and I find okay 703 only applies where the government has to pay for

16

the witness and the government can cough up a substitute should they

17

want to do that instead and not spend the money.

18

determination, the government would have the opportunity to say, “I’m

19

evaluating this government witness’s time spent as the defense

20

consultant or expert versus his time doing other things.”

21

assuming that doesn’t apply, you still have a C.F.R. provision out

22

there that says in cases where the United States has an interest the

23

employee isn’t supposed to be testifying as an expert witness without

6088

In part of that

How --

09985

1

getting the supervisor’s consent or the agency’s consent.

2

that marry up?

3

CDC[MR. COOMBS]:

Yeah.

How does

So -- actually, because that’s your

4

question I’ll answer that question and then maybe work my way back to

5

that answer again.

6

we’ve codified that provision within AR 27-40.

7

that I’ve asked the Court to take judicial notice of, but AR 27-40

8

clearly indicates that that provision doesn’t apply in courts-

9

martial. When speaking with the Deputy Chief of Litigation Division

When you look, ma’am, at the C.F.R. provision,
That’s the section

10

as the defense’s proffer to the Court, we were instructed and

11

informed that they are the office that would approve of DA civilian

12

employees testifying in courts.

13

federal and state, but they don’t do for court-martial and that’s

14

because the prohibition doesn’t apply in courts-martial.

15

MJ:

regular basis for

Kitmanyen?

17

20110609?

Have you looked that the -- I believe the case is

16

Let me get the actual cite.

18

CDC[MR. COOMBS]:

19

MJ:

20

Germany.

21

They do so on a

I don’t believe so, Your Honor.

It’s 31 October 2011.

CDC[MR. COOMBS]:

K-I-T-M-A-N-Y-E-N Army

It involves an FDA witness going to

And testifying in a court-martial?

6089

09986

1

MJ:

Yes.

The FDA said no and that was the issue.

The Court

2

went on -- the Army court appears to say, at least that that does

3

applies to other -- to witnesses from other agencies.

4

CDC[MR. COOMBS]:

That may be the case from the standpoint of

5

-- like the FDA, I could see the reason why that would apply, because

6

the FDA doesn’t have AR 27-40 as being a controlling regulation for

7

them.

8

Department of Army.

9

under Department of Army, Department of Defense. In this case AR 27-

10
11

The witnesses that we are listing all fall within the
They’re all civilian witnesses that would fall

40 would apply.
MJ:

That’s the thing, I’m looking at -- I’ll just bring for the

12

Court’s -- the parties’ information, I would like -- again, I know

13

you have supplementals due to me on Friday and Tuesday, but look at

14

Kitmanyen it’s 31 October 2011, it’s a decision, it’s an Army Court

15

of Criminal Appeals decision.

16

Claims Resources Investments vs. United States of America 97 FED

17

Claims 545, 17 March 2011.

18

you can look at the same Resource Investments vs. the United States

19

and earlier cases also relevant, 93 FED Claims 373, 4 June 2010.

20

United States vs. Lacco, L-A-C-C-O, 495 F Sub 2d, 581, 2007.

21

would be district court, Southern District West Virginia.

22
23

Also, United States Court of Federal

There’s an earlier case on that also that

That

Again, this issue was just brought to the Court’s attention
late last week, so that’s about as far as I got, but I would

6090

09987

1

appreciate both parties’ views.

2

further in that issue.

3

CDC[MR. COOMBS]:

Yeah.

Maybe those cases will take you

And without reading those cases

4

though, I do think looking at even the 5 C.F.R. provision, and this

5

will go into the feedback -- fallback position that the defense will

6

be taking.

7

MJ:

8

CDC[MR. COOMBS]:

9
10

Mm-hmm.
But if you look in -- even within the

Enclosure 4 of the government’s response motion, Enclosure 4 gives
the Lexis 5 C.F.R. printout.

11

MJ:

Give me a minute.

12

CDC[MR. COOMBS]:

If the Court goes to page 3.
Okay.

So, Your Honor, if you go down to the very

13

bottom of page 3, it indicates that a court rather than the relevant

14

agency is the final authority to determine the applicability of the

15

provision in order to prevent the testimony of an agency employee.

16

The defense would be arguing in this instance that because each of

17

these witnesses fall under Department of Defense/Department of Army,

18

AR 27-40 is the controlling regulation.

19

provision that we pulled for the Court with the 5 C.F.R. is clearly

20

the codification of 5 C.F.R..

21

normally be the agency that would provide authority is not the

22

immediate boss of whatever witness you’re listing, would opine and

23

indicate based upon the defense’s proffer that 27-40 and this

AR 27-40 comparing the

The litigation division, which would

6091

09988

1

provision doesn’t apply in a court-martial.

2

authority because there’s no need to grant authority.

3

MJ:

There’s no granting of

Would the litigation division under AR 27-40 be the

4

approving authority?

5

was applicable to courts-martial or the witnesses that you have

6

listed here, all of them, would the litigation division be the

7

approval authority for all of them?

8
9

CDC[MR. COOMBS]:

Say for example, this provision under 5 C.F.R.

The defenses position would be yes, Your

Honor.

10

MJ:

Are they all Department of Army witnesses?

11

CDC[MR. COOMBS]:

Right.

And because of that -- and again,

12

this is a continued issue, the defense has been told that we could

13

apply for an opinion in order to get approval for these witnesses to

14

testify.

15

days’ notice, which we’re going to have time for that.

16

been told is more than likely your response would be 27-40 section

17

that says it doesn’t apply in courts-martial, there’s no need for

18

authority, we have no authority to grant you the authority because

19

27-40 doesn’t apply, so that may be something ultimately that would

20

assist the Court.

21

What we’ve been told is that we need to give at least 15
What I’ve

We would say even in this situation then when the Court

22

looks to see based upon not only 27-40, but also just the experience

23

of the Court, the defense could find no cited case in its search

6092

09989

1

where this provision: 5 C.F.R. 2635.805, was cited in any case.

2

in and of itself should speak volumes as to whether or not this is

3

just a very, very creative attempt on the government’s part, or this

4

is actually a requirement that would apply in courts-martial.

5

been doing this for more than a day or two and you would expect that

6

this issue would come up if it was, in fact, applicable. It wouldn’t

7

be an issue of first impression in 2013.

8
9

That

We’ve

For that reason, we would argue that the 5 C.F.R. provision
doesn’t even apply so that’s kind of a red herring.

Even if it does

10

apply, let’s assume for arguments sake that it does, then this leads

11

to kind of the fallback position of the defense.

12

to page 2 of that same enclosure, Enclosure 4, and it is provision

13

(c)(2)(d), it states, “Nothing in this section prohibits an employee

14

from serving as a fact witness when subpoenaed by an appropriate

15

authority.”

16

If the Court looks

That would be our fall -- kind of our fallback position.

The defense in using each of these witnesses doesn’t need

17

to qualify them as experts.

I’ll explain why we’d want to, but if we

18

didn’t qualify them as experts and we just called them as fact

19

witnesses, we could do that.

20

Larry would be called as a fact witness to say that the facts are

21

that the SIGACTs in this case did not have counter IED measures

22

detailed in them.

23

were released from Iraq and from Afghanistan did not have our counter

The fact witnesses in this case Colonel

He could testify as a fact that the SIGACTS that

6093

09990

1

IED measures detailed within the SIGACTs.

2

him as an expert for an opinion that the SIGACTs were too general and

3

too remote in time and old to be of really unique use to the enemy.

4

That would be the opinion part which we would like to qualify him as

5

an expert witness.

6

We would like to also have

With regards to the Fort Leavenworth witness, the fact that

7

he could testify to would be that the Center for Army’s Lessons

8

Learned, which is the agency that is responsible for taking issues

9

that happen in real time and doing a rapid response in order to

10

ensure that Soldiers’ lives aren’t put at risk, the mission is not

11

put at risk, they basically if something happens, like the WikiLeaks

12

release and it’s going to impact ongoing missions or put Soldiers’

13

lives at risk, they take that, quickly identify the lessons learned

14

and the prophylactic steps that need to be taken and push that out to

15

the field.

16

CALL has never been asked to do that.

17

The Fort Leavenworth witness can testify to the fact that

We’d also like for him to testify as an expert for his

18

opinion that if it were in fact something that would put Soldiers’

19

lives at risk or put mission at risk, that CALL would be the agency

20

that would be doing that.

21

indicates probably that information would not have caused either one

22

of those possibilities.

Therefore, the lack of the request

6094

09991

1

Mr. Hall.

We can call Mr. Hall as a fact witness to say

2

that he looked at the SIGACTs -- the charged SIGACTs in this case and

3

he did open source research in order to find out whether or not there

4

was information that preceded the release of the charged SIGACTs.

5

from a fact standpoint he can come testify that yes, he found open

6

source information on the vast majority of the SIGACTs and in many

7

cases the information that was open source was put out by the United

8

States Army.

9

So

We would like to also then have him as an expert witness

10

testify about the SIGACTs and whether or not in his opinion based

11

upon their time and the remoteness of them, whether or not they could

12

be used to harm the United States, but would not be required.

13

Mr. Ganiel, we would call as a fact witness only.

The only

14

reason we would qualify him as an expert is to give the Court

15

background knowledge as to his expertise, but he’s not being called

16

to give any expert opinion. It really wouldn’t be a requirement to

17

qualify him as an expert.

18

open source on the diplomatic cables, much like ----

19

MJ:

20

CDC[MR. COOMBS]:

21

MJ:

22

CDC[MR. COOMBS]:

23

He would testify as a fact witness doing

And this is who again?
Mr. Ganiel.

Okay.
So Mr. Ganiel will testify that he took

general unclassified terms from the cables from the standpoint of

6095

09992

1

just a looking at a cable and doing a generalized search that

2

predates the cable’s release and in over 90 percent of the --

3

actually 97 percent of the time he found open source information.

4

Many times that open source information provided the majority of the

5

information within the diplomatic cables.

6

We’re going to have -- that would be the limit of his

7

testimony.

8

cables could be used to harm the United States.

9

He wouldn’t be called then to opine whether or not the

Ms. Smith is being called as a fact witness with regards to

10

the IA, the Information Assurance failures that were documented both

11

by the Secretary of the Army’s 15-6 Investigation, also by just the

12

criminal investigation in this case.

13

there was an Information Assurance failure on the part of PFC

14

Manning’s unit to take corrective steps.

15

witness with the requisite background of here are the various IA

16

failures.

There were various times where

She can testify as a fact

17

We would like to qualify her as an expert then to inform

18

the Court that based upon these IA failures, how these IA failures

19

could have resulted in these releases never happening had the correct

20

steps been taken.

21

then we would like for her to opine as to what that means from her

22

perspective as an expert, but would not be required to do that.

She can lay out the IA failures for the Court and

6096

09993

1

The fallback position would be still asking the Court to

2

compel the presence of each of these witnesses for the fact

3

testimony.

4

C.F.R. issue because their being called as not experts but fact

5

witnesses.

6

C.F.R. provision does not apply as well, then we would ask for them

7

to be able to be qualified as expert witnesses.

8
9
10

MJ:

That would avoid the issue of 703(d) and also avoid the 5

If the Court determines 703(d) does not apply and that 5

All right. Thank you.

down, Government, other than the 703 -- 703(d) and 505 -- 305.805, is
that what it is?

11

CDC[MR. COOMBS]:

12

MJ:

13

Now, let me -- before defense sits

It is, Your Honor.

Other than those issues, does the government have an

objection to producing these witnesses as either fact or expert?

14

ATC[CPT OVERGAARD]: The government ----

15

MJ:

16

I mean, the other witnesses you’re saying they’re not

relevant and they shouldn’t come at all.

17

ATC[CPT OVERGAARD]: Yes, ma'am.

18

MJ:

These are technical objections.

Do you also have similar

19

relevance objections to these witnesses that you had to the earlier

20

ones?

21

ATC[CPT OVERGAARD]: I would have to go through witness by

22

witness.

23

MJ:

I can do that.
Okay.

So you may have to come back.

6097

09994

1

CDC[MR. COOMBS]:

2

Not a problem, Your Honor.

Your Honor, I apologize.

3

MJ:

That’s fine.

4

CDC[MR. COOMBS]:

5

MJ:

6

CDC[MR. COOMBS]:

7

MJ:

Certainly.

Could we take a brief comfort break.
Ten minutes enough?
Yes, ma'am.

Why don’t we start at 20 minutes until 1500 or 3 o’clock?

8

Court is in recess.

9

[The Article 39(a) session recessed at 1528, 9 January 2013.]

10

[The Article 39(a) session was called to order at 1541, 9 January

11

2013.

12

MJ:

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

Let the

13

record reflect all parties present when the Court last recessed are

14

again present in court.

15
16
17

Captain Overgaard?
ATC[CPT OVERGAARD]: Yes, ma'am.

The government will try to

follow the same order that defense went in ----

18

MJ:

Okay.

19

ATC[CPT OVERGAARD]: ---- so it’s not confusing hopefully.

20

The government would just also like to add that

21

Appellate Exhibit 459, which was defense’s e-mail to the Court on

22

Friday afternoon regarding the 27-40, and then the government’s

6098

09995

1

response, which was Appellate Exhibit 460 for the Court’s

2

consideration for this motion.

3

The government did object to Colonel Morris Davis, the

4

first witness defense addressed because he -- as the Court pointed

5

out, he is not a subject matter expert on DABs nor is he an

6

intelligence analyst or intelligence professional.

7

lawyer who was working for OMC as a prosecutor from 2005 to 2007.

8

His limited experience with DABs as a prosecutor does not qualify him

9

to be an expert who would be able to give opinions about his belief

He is just a

10

that disclosure of charged DABs could not be expected to cause damage

11

to the national security.

12

looking at a few DABs as an attorney in the 2007 -- 2005 to 2007 time

13

period.

14

qualify him to testify that DABs contain intelligence because he’s

15

not a intelligence professional or intelligence analyst.

16

MJ:

This is based on what he remembers from

His experience doing that does not -- it also doesn’t

But can he -- what’s the government’s position to respect

17

to his testimony as a fact witness just to say, “I work with DABs;

18

here’s what they contain; here’s where else they can be found; here’s

19

when they were released.”

20

ATC[CPT OVERGAARD]: Yes, ma'am.

No, the government would not

21

have an objection to that.

That wasn’t part of the defense’s filing,

22

but the government would concede that if he was just called as a fact

23

witness, he could be relevant to both the 793 and 641 charges.

6099

09996

1
2

MJ:

So as a fact witness, the government doesn’t object to

producing Mr. Morris?

3

ATC[CPT OVERGAARD]: Yes, ma'am.

4

MJ:

5

So the sole question is whether or not he will lay a

foundation for an expert opinion?

6

ATC[CPT OVERGAARD]: Yes, ma'am.

7

MJ:

8

ATC[CPT OVERGAARD]: It could, ma’am.

9

MJ:

10

Which can be decided at trial, right.
Yes.

Okay.

ATC[CPT OVERGAARD]: Similarly -- well, not similarly.

With

11

Professor Benkler regardless, this has nothing to do with his

12

expertise.

13

expert, he does not have any relevant opinions or testimony to offer.

14

MJ:

Regardless of whether or not Professor Benkler is an

Let me ask you this:

Does the government -- is the

15

government planning on presenting any evidence about the nature of

16

WikiLeaks as an organization, news or otherwise, that it is somehow

17

different from, say the New York Times or is the government theory of

18

aiding the enemy that is doesn’t matter if it’s the New York Times or

19

WikiLeaks?

20
21

ATC[CPT OVERGAARD]: One minute, please.
[Pause.]

6100

09997

1

ATC[CPT OVERGAARD]: Thank you, ma’am.

On the merits, no, but on

2

sentencing, yes, we may have a witness that will characterize

3

WikiLeaks in that particular manner.

4

MJ:

So with respect to the professor’s research regarding the

5

history of WikiLeaks and all of that, that resulted in his article,

6

you’re saying he’s not an expert on WikiLeaks and he’s not relevant?

7

ATC[CPT OVERGAARD]: The government is saying that he doesn’t

8

have any relevant testimony at least to offer during the merits

9

portion of the trial.

There’s no -- eliciting testimony that

10

WikiLeaks is a legitimate journalistic organization is not -- it’s

11

not circumstantial evidence to show that the accused did not have the

12

requisite intent for the 104 charge.

13

legitimate journalistic organization or not is irrelevant as long as

14

the accused had the requisite general evil intent, that is the

15

accused knew he was dealing indirectly with the enemy of the United

16

States.

17

MJ:

Whether or not WikiLeaks is a

So that goes back to my original question.

Does it make

18

any difference -- if we substituted WikiLeaks for New York Times,

19

would the government still be charging this case in the manner that

20

it has and proceeding as you’re doing?

21

ATC[CPT OVERGAARD]: Yes, ma'am.

22

MJ:

23

TC[MAJ FEIN]:

All right.

So ---Ma’am, just follow on to that.

6101

09998

1

MJ:

Yes.

2

TC[MAJ FEIN]:

Last night over e-mail, ma’am, the United States

3

provided an explanation to the Court and defense that in U.S. v.

4

Batchelor, that was a legitimate state side newspaper and 104

5

offense.

6

for a service member providing information to the enemy through a

7

member of the news media.

8

think that’s just -- there is that case law or at least the fact

9

pattern is similar although it was a communication it was still

10
11

This isn’t the first time that Article 104 has been charged

Whether WikiLeaks is or it’s not, so I

Article 104.
MJ:

So the government is -- from what you’re telling me then

12

and during the merits portion, is the government going to come and

13

say, “Well, WikiLeaks does things this way and this way and this way,

14

and therefore it’s more likely that the accused knew -- WikiLeaks

15

acts differently than other news organizations therefore it’s more

16

likely that the accused knew that the enemy would be getting this

17

information?”

18

TC[MAJ FEIN]:

19

MJ:

Yes, Your Honor.

In light of that, what is the government’s position

20

regarding Mr. Benkler’s -- the relevance of his factual testimony

21

regarding the nature of WikiLeaks?

22

ATC[CPT OVERGAARD]: For the merits portion, ma’am?

23

MJ:

Yes.

6102

09999

1

ATC[CPT OVERGAARD]: The government does not think that his

2

testimony would be at all relevant to the 104 charge or the Charge II

3

Spec 1 as proffered by the defense because regardless of whether or

4

not WikiLeaks is a legitimate journalistic organization the

5

government just has to prove that the accused had the requisite

6

general evil intent for the 104 that he knew that he was dealing

7

indirectly with the enemy, regardless of the venue.

8
9

MJ:

Then why would the government need to present evidence --

if that’s true, then what’s the relevance of any government evidence

10

that WikiLeaks is different from these other news organizations and

11

therefore more likely -- is more likely, as I assume -- I guess --

12

Let me ask -- Major Fein answered this question, so I’ll direct my

13

question this way.

14

on the merits for the purpose of furthering your argument that -- or

15

going to show to prove that the accused knowingly gave intelligence

16

to the enemy through indirect means?

Is that evidence that you’re going to introduce

17

TC[MAJ FEIN]:

18

a quick in place recess?

19

MJ:

20

[Pause.]

Ma’am, before I answer that question, may we have

Yes.

21

TC[MAJ FEIN]: Ma’am, if I may ----

22

MJ:

23

Counsel, if you need additional time to talk about this, we

can proceed on to the next witness and go through the rest of

6103

10000

1

witnesses and then take a recess if you all want to confer further

2

before advising the Court of the answer to my question.

3
4

TC[MAJ FEIN]:

Ma’am, I would defer to Captain Overgaard.

I

think we can answer it now.

5

ATC[CPT OVERGAARD]: Ma’am, the government will withdraw its

6

objection to -- well, it will concede -- the government will concede

7

that Professor Benkler could be a fact witness in this case.

8
9
10

MJ:

All right.

So once again the decision on whether he’s an

expert -- well, whether he’s -- whether in the scope of his expertise
can be decided at trial.

Is that correct?

11

ATC[CPT OVERGAARD]: Yes, ma'am.

12

MJ:

13

ATC[CPT OVERGAARD]: No, ma'am.

14

MJ:

So you don’t have any objection to producing him?

Okay.

Ambassador Galbraith for sentencing, ma’am.

He will

15

be -- defense has proffered he will be testifying about his opinions

16

about SIPDIS, which was not even in effect when he was ambassador

17

from 1993 to 1998.

18

implemented, so his conclusions regarding SIPDIS are based on his

19

belief of what information a responsible ambassador should protect

20

from further distribution and on his opinion as to what generally

21

sensitive material is.

22

necessarily relate to the document’s actual classification.

He actually left State before SIPDIS Tag was even

I’m not necessarily -- his testimony does not

6104

10001

1

Although he did have -- he did make general statements on

2

over-classification, as the government argued yesterday and this

3

morning, the government does not believe over-classification is a

4

relevant argument to make in the merits or in sentencing.

5

His testimony regarding the charged cables -- the defense

6

has proffered he could have some testimony regarding the charged,

7

which could be relevant; however, his testimony would be based on

8

information he recalls from his brief stint before SIPDIS was put

9

into place from 1993 to 1998.

10

MJ:

In your pleading you say that Ambassador Galbraith’s

11

statement that in his experience many State Department cables are

12

over classified and that a secret classification does not mean the

13

information is genuinely secret could be relevant at sentencing.

14

it relevant or isn’t it relevant?

15

Is

ATC[CPT OVERGAARD]: It could be relevant at sentencing if it’s -

16

- a statement like that could be relevant in sentencing if it’s --

17

comes out through the appropriate individual, ma’am, but this

18

individual would not be that appropriate individual because he

19

doesn’t -- he wasn’t even in state when SIPDIS Tag was implemented.

20

He hasn’t been privy to any guidance from State about SIPDIS because

21

it occurred after he left.

He hasn’t been an OCA since 1998.

6105

10002

1

MJ:

Did his proffer talk about -- hold on just a minute.

Are

2

some of the cables at issue ones pertaining to things -- cables that

3

he was involved in himself?

4
5

ATC[CPT OVERGAARD]: Ma’am, again, the government can’t confirm
or deny any charged information.

6

MJ:

7

ATC[CPT OVERGAARD]: The government does not believe, again, that

8

Okay.

Ambassador Galbraith would be relevant to sentencing.

9

Moving on the 703 C.F.R. argument.

10

MJ:

Mm-hmm.

11

ATC[CPT OVERGAARD]: The government objected to producing all --

12

several witness:

Colonel Larry, the Fort Leavenworth witness, Mr.

13

Hall, Mr. Ganiel, and Ms. Smith as the defense had not requested or

14

received the necessary approval to call them as expert witnesses.

15

MJ:

Before we get into that discussion.

16

ATC[CPT OVERGAARD]:

17

MJ:

Yes, ma'am.

The government -- the defense has a fallback position with

18

respect to calling them as fact witnesses only.

19

objection, does the government have to that?

20

ATC[CPT OVERGAARD]: Yes, ma'am.

What, if any

For Colonel Larry, could

21

potentially testify as a fact witness; however, the government does

22

have some specific objections to the proffer that defense has put

23

forth.

6106

10003

1

MJ:

What are your objections to the proffer?

2

ATC[CPT OVERGAARD]: Colonel Larry actually will not say that it

3

is my opinion that intelligence gleaned from this SIGACTs -- the

4

SIGACT reports from Iraq and Afghanistan would be of limited, if any,

5

value to an enemy on counter IED measures.

6

released SIGACTs are also of limited value due to the date and nature

7

of the information.

Nor will he say the

8

MJ:

Where is this?

9

ATC[CPT OVERGAARD]: It’s part of the defense proffers.

10

MJ:

11

ATC[CPT OVERGAARD]: It is in 2(b), the first sentence, and 2(d),

12

Page 1 or page 2.

the first sentence.

13

MJ:

14

ATC[CPT OVERGAARD]: No.

15

MJ:

16

ATC[CPT OVERGAARD]: The first sentence in 2(b) and the first

17

So you don’t agree with that?

And what’s 2(b) and what’s 2(d), which one?

sentence in 2(d).

18

MJ:

19

witness?

And these are based on your communications with the

20

ATC[CPT OVERGAARD]: Yes, ma'am.

21

MJ:

Taking those two sentences aside, do you agree that he

22

could testify to -- that his testimony would include the rest of this

23

information in the proffer?

6107

10004

1

ATC[CPT OVERGAARD]: Yes, ma'am.

2

MJ:

So does the defense -- does the government object to

3

Colonel Larry testifying as to the remainder of the proffer on any

4

grounds?

5

ATC[CPT OVERGAARD]: As?

6

MJ:

7
8
9

I mean, do you think -- are you objecting solely on

procedural grounds or on relevance grounds?
ATC[CPT OVERGAARD]: The government is objecting on procedural
grounds, but also on the grounds that -- I mean, without those

10

statements the rest of his testimony is just fact testimony.

Any

11

witness could really potentially testify about that, including the

12

witness that the government is calling.

13

cumulative.

It would be potentially

14

MJ:

So your objection is it’s cumulative to ----

15

ATC[CPT OVERGAARD]: Yes, ma'am.

16

MJ:

17

ATC[CPT OVERGAARD]: Mr. McCarl.

18

MJ:

19

ATC[CPT OVERGAARD]: He is the -- let me give you his title.

Which witness is the government calling?

And who’s he?

20

Sorry, ma’am.

21

Analytic Center for JIEDDO.

22
23

MJ:

My witness list is redacted.

He’s the Chief of the

And he would be able to say all of these things that

Colonel Larry is saying as fact witness?

6108

10005

1
2
3

ATC[CPT OVERGAARD]: The government has gone through and verified
each and every sentence, ma’am, so I couldn’t ---MJ:

All right.

So is the testimony that Colonel Larry is going

4

to give, does the government believe it’s relevant or not for merits

5

or sentencing?

I guess you’re using it for both, right?

6

CDC[MR. COOMBS]:

7

MJ:

8

ATC[CPT OVERGAARD]: Yes, ma'am.

9
10
11

No, ma'am.

For sentencing?

Just for sentencing.

Okay.
The government believes it’s

relevant for the merits -- sentencing.
MJ:

All right.

So you don’t object to producing him except on

the procedural grounds?

12

ATC[CPT OVERGAARD]: Yes, ma'am.

13

MJ:

14

ATC[CPT OVERGAARD]: Okay.

Okay.

Let’s move onto the next one.
The next one is the Fort Leavenworth

15

witness, ma’am.

16

the proffered testimony, which was the witness will not say, “I would

17

expect that CALL would have received a tasking to conduct rapid

18

process -- to conduct a rapid process if the information disclosed in

19

this case revealed any critical TTPs or vulnerabilities that needed

20

to be addressed in order to avoid loss of life or impact during the

21

operations.

22

MJ:

Again, the government had a specific objection to

What about the rest of the proffer?

6109

10006

1
2

ATC[CPT OVERGAARD]: The government does not dispute the rest of
the proffer, ma’am.

3

MJ:

Does the government dispute that the evidence is relevant?

4

ATC[CPT OVERGAARD]: Yes, ma'am.

The government does dispute the

5

relevant of this witness.

The fact that CALL has not been requested

6

to collect, analyze or disseminate lessons learned on the WikiLeaks

7

incidents or on the information publicly disclosed in this case does

8

not have any significance and the witness won’t testify that it does.

9

There is no evidence that a CALL study would be conducted in response

10

to an isolated misconduct of one Soldier who was caught soon after

11

the misconduct was discovered.

12

The government also doesn’t believe that it’s relevant to

13

the reason to believe as proffered by the defense.

14

to believe is an objective standard, it requires the government to

15

prove that the accused knew facts for which he concluded -- or

16

reasonably should have concluded that the information could be used

17

for the prohibited purpose.

18

information could not be used to the injury of the U.S. or to the

19

advantage of a foreign nation is not relevant to whether or not the

20

accused reasonably should have concluded that the information could

21

be used for that prohibited purpose.

22

I mean, the accused didn’t know at the time of his misconduct that

23

CALL would not do a study.

Since the reason

An accused alleged subjectively if the

6110

More importantly in this case,

10007

1
2

MJ: Is the Fort Leavenworth witness being called for merits and
sentencing or just sentencing?

3

CDC[MR. COOMBS]:

The Fort Leavenworth witness, ma’am, we

4

indicated just for merits.

5

testimony would not be relevant to anything on -- in the merits, we

6

would then throw him into sentencing because we believe that

7

obviously for what CALL does that would be relevant for sentencing as

8

well.

9

testify information that came out in the merits we would argue in

If the opinion would be that his

Right now the idea was to bring him in the merits and have him

10

sentencing.

11

relevant then we would supplement our sentencing witness list with

12

his name.

13
14
15

MJ:

If he is denied as a merits witness for not being

Is this a witness that could potentially testify

telephonically?
CDC[MR. COOMBS]:

Ma’am, he could not only testify

16

telephonically, but he’s also potentially a witness that we can

17

stipulate to.

18
19
20

ATC[CPT OVERGAARD]: Is that for sentencing, ma’am, or are we
talking about for the merits?
MJ:

Well, why don’t we do this:

with respect to this

21

particular witness, maybe let’s move on, but maybe we can have a

22

brief recess and the parties can confer and see if there can be some

6111

10008

1

kind of resolution to this particular witness that doesn’t maybe

2

require a court ruling at this time?

Is that possible?

3

CDC[MR. COOMBS]:

4

ATC[CPT OVERGAARD]: Yes, ma'am.

5

MJ:

6

ATC[CPT OVERGAARD]: In regard to Mr. Hall, again the government

7

believes he should not be called as an expert. He could testify as a

8

fact witness though based on the work he has done for the defense.

9
10

MJ:
it.

Okay.

It’s possible, Your Honor, yes.

Let’s move on.

All right.

So you’ve got no objection to the fact piece of

It’s the expert piece which can be decided at trial?

11

ATC[CPT OVERGAARD]: Yes, ma'am.

12

MJ:

13

ATC[CPT OVERGAARD]: The same thing goes for Mr. Ganiel and Ms.

14
15

Okay.

Smith.
MJ:

All right.

So tell me if I’m looking at this correctly.

16

We have -- at this point has no objection to producing Mr. Davis --

17

basically all of the witnesses except the Ambassador, is that

18

correct?

19
20

ATC[CPT OVERGAARD]: And potentially the CALL witness, ma’am, the
Fort Leavenworth witness.

21

MJ:

22

ATC[CPT OVERGAARD]: The government can clarify its position on

23

So those two are still at issue.

the 703 and the C.F.R..

6112

All right.

10009

1

MJ:

Yes.

2

ATC[CPT OVERGAARD]: Now, the government objected to producing

3

these particular government employees because they haven’t been

4

vetted through the chains -- their chains of commands and been

5

appointed as an expert.

6

own witnesses told us that they were concerned about testifying as

7

expert witnesses.

8

in the subsequent e-mail, 703(d) as well as some relevant case law or

9

potentially informative case law on the 502 experts as well as cited

10
11
12
13

This issue came up only because defense’s

Now, the government has cited in their motion and

the JER and the C.F.R..
MJ:

The case law cited by the government talks about attorney

client privilege, doesn’t it?
ATC[CPT OVERGAARD]: The case law cited by the government does

14

talk about expert consultants in accordance with 502, but the

15

language in informative in that it talks about a service member

16

having no rights at commandeering government experts.

17

relationship to the 502, the attorney client team privilege.

18

government thinks that that language is in informative because the

19

defense should not be able to just -- as the government shouldn’t be

20

able to just grab any expert -- anyone off the government’s payroll

21

and designate them as an expert in this case.

22

through the appropriate authorities, which is their chain of command,

23

so they know -- so the government knows, the defense knows and all

6113

It is in
The

They should have to go

10010

1

relative parties know that this individual can testify and that it

2

won’t take away from their mission and it won’t take away from the

3

other things that they should be doing.

4

appropriate individual.

5

They may not even be the

The government contends this doesn’t normally come up

6

because the defense normally asks the government for these types of

7

experts and doesn’t go out and just take government experts on their

8

own.

9

The reading of 703 and the case law and the JER and the

10

C.F.R. seem to point to the fact that the procedure of going through

11

at least a 703(d) procedure directly -- or should at least apply in

12

these cases because ----

13

MJ:

Why does the analysis say that it doesn’t?

14

ATC[CPT OVERGAARD]: The analysis says that this subsection does

15

not apply to persons who are government employees or under contract

16

to the government to provide services which would otherwise fall

17

within this section.

18

just referring to experts who are employed as -- for the purpose of

19

or contracted by the government simply for the purpose of testifying.

20

It doesn’t apply to all government employees.

The government contends that that statement is

21

MJ:

Now, explain that to me.

22

ATC[CPT OVERGAARD]: The analysis says the subsection does not

23

apply to persons who are government employees or under contract to

6114

I don’t understand that.

10011

1

the government to provide services which would otherwise fall within

2

this section.

3

expert witness services.

Well, the services described within this section are

4

MJ:

5

ATC[CPT OVERGAARD]: So the government contends that this is

6

saying that that process would not apply to individuals who are hired

7

solely or contracted by the government solely for the purpose of

8

testifying as government witnesses, because that is then their

9

mission and that doesn’t take away from any other day job.

10

MJ:

Yes.

So it says, “This subsection does not apply to persons who

11

are government employees or under contract to the government to

12

provide services which would otherwise fall within this subsection.

13

I mean, the subjection -- Does the government disagree that that

14

subjection is in there to require the parties to want the government

15

to spend money to have to go through a process?

16

ATC[CPT OVERGAARD]: The subjection, yes, ma’am.

It’s M.R.E.

17

703(d), which is the expert witness subsection.

18

government and defense to go through a process if the government

19

expends money, which -- and the government would frankly argue the

20

government does expend money when even appointing government experts

21

who are already on the government payroll because they have to cover

22

for those individuals in their day jobs and any other requirements

23

that being an expert witness takes away from.

6115

It requires the

10012

1

MJ:

Then why would they have to submit a request to the

2

Convening Authority to authorize the employment and to fix the

3

compensation of the expert?

4

ATC[CPT OVERGAARD]: They have to submit that request so they can

5

get the appropriate funding and vet the appointment of the expert

6

through their chain of command?

7

MJ:

I guess that’s what I mean.

I mean, why would this -- this

8

section -- why would this subsection have all of these criteria if it

9

was meant to apply to government employees?

10

ATC[CPT OVERGAARD]: So that the government and defense could

11

route their requests through the appropriate individuals, which would

12

either be the -- which would be the Convening Authority, which would

13

be the easiest way to do it, and the way that, you know, it’s

14

typically done, so the government and defense know the coordination

15

for this individual has been done, so then there are no C.F.R. and

16

JER implications.

17

The government contends this normally doesn’t come up

18

because we normally vet these requests through the chains of command

19

so the C.F.R. and JER never become issues in these cases.

20
21
22
23

MJ:

Where is the requirement to vet anything through the chain

of command in the R.C.M.?
ATC[CPT OVERGAARD]: The requirement is to go to the Convening
Authority.

6116

10013

1

MJ:

So what if the Convening Authority says, “Yes, I appoint

2

this person from X place,” and doesn’t go through the chain of

3

command.

4

chain of command.

5

There is no requirement here for them to go through the

ATC[CPT OVERGAARD]: Well, practically, ma’am, that is what has

6

to happen though because otherwise the Convening Authority doesn’t

7

have the power over that individual to appoint them.

8

speaking, the Convening Authority would have to coordinate with the

9

appropriate individual or their designee would have to do so.

10

TC[MAJ FEIN]:

11

MJ:

12

[Pause.]

13

Ma’am, may I have a moment?

Yes.

ATC[CPT OVERGAARD]: Ma’am, there’s also a requirement in R.C.M.

14

703(e)(2) for civilian witnesses.

15

civilian employees of the Department of Defense ----

The discussion talks about

16

MJ:

17

ATC[CPT OVERGAARD]: I’m sorry, ma’am.

18

Practically

Where are you looking, (e)(2)?
Yes, 703(e)(2)(a) and

then the discussion that follows.

19

MJ:

Okay.

20

ATC[CPT OVERGAARD]: It says, “Civilian employees of the

21

Department of Defense may be directed by appropriate authorities to

22

appear as witnesses in courts-martial as an incident of their

6117

10014

1

employment.”

There the chain of command for that civilian employee

2

would be the one that’s ordering them potentially to appear.

3

MJ:

Well, that’s just saying they don’t need a subpoena.

4

ATC[CPT OVERGAARD]: Yes, ma'am.

Because you would go through

5

their appropriate leadership and they would tell them that they had

6

to appear.

7

MJ:

I’m not sure I agree with that.

I’m looking here at R.C.M.

8

703(e)(2)(f), which basically says if a person is subpoenaed and they

9

-- the person requests relief because it’s unreasonable or

10

oppressive, then they come back to the Court.

11

ATC[CPT OVERGAARD]: But for the -- but a subpoena is not

12

necessary for the civilian witnesses because they may be directed by

13

the appropriate authorities.

14

MJ:

(2)(f), which basically says if a person is subpoenaed and

15

they -- the person requests relief because it’s unreasonable or

16

oppressive, then they come back to the Court.

17

ATC[CPT OVERGAARD]: But for the -- but a subpoena is not

18

necessary for the civilian witnesses because they may be directed by

19

the appropriate authorities.

20

MJ:

You go to the agency; you say, “These are the people that

21

we want to come testify,” and the agency says, “Well, I don’t want to

22

send them.”

23

case.

Then you give them a subpoena.

6118

This is the Kitmanyen

10015

1

ATC[CPT OVERGAARD]: Yes, ma'am.

2

MJ:

3

Okay.

So I can tell you now that I’m going to find that

703(d) doesn’t apply to ----

4

ATC[CPT OVERGAARD]: Okay.

Well, the JER and C.F.R. also

5

implicate potential ethical implications involved when a federal

6

employee testifies.

7

MJ:

Look at your Enclosure 4 for a moment.

8

ATC[CPT OVERGAARD]: Yes, ma'am.

9

MJ:

Look at the case law there.

10

ATC[CPT OVERGAARD]: Yes, ma'am.

11

MJ:

12

What does it say?

Those are the cases that I was looking

at as well.

13

ATC[CPT OVERGAARD]: The government looked at some of those and

14

then actually some other cases and the circuits seem to be just all

15

over the place in whether or not the C.F.R. applied.

16

military cases on point.

17

MJ:

The circuits are split?

18

information for the Court to have.

19

this?

20

There were no

That would be very nice
What case law is out there on

ATC[CPT OVERGAARD]: The one cited by the Court, ma’am.

The

21

government didn’t cite these cases because there was nothing on

22

military -- in the military justice system and the civilian courts

6119

10016

1

were not all on the same page, so that’s why the government didn’t

2

cite these cases.

3

MJ:

I’m looking at the Kitmanyen, as I understand that case it

4

pretty much says, all right if a subpoena to a government witness --

5

again this is a fact witness, not an expert witness in Kitmanyen so

6

it’s not exactly on point, but the court held the subpoena was

7

enforceable in Maryland and the FDA realized that, but not

8

enforceable in Germany because you can’t force a civilian witness to

9

go abroad.

10

The part of that case that appears to be instructive is

the subpoena is enforceable in Maryland.

11

ATC[CPT OVERGAARD]: Yes, ma'am.

12

MJ:

I guess, this is getting confusing to me.

In your

13

Enclosure 4, wouldn’t this be something that once the employee

14

received the subpoena it would be on the onus on the employee to go

15

to his boss and say, “Look, I’ve been subpoenaed.”

16

has any concerns about that, the boss comes back to the Court and

17

move to quash the subpoena?

18

Then if the boss

ATC[CPT OVERGAARD]: That would probably be the practical

19

implication, ma’am, but the government submits it would be much more

20

expeditious if the government made the arrangements with the expert

21

witnesses ahead of time rather than ----

6120

10017

1

MJ:

Would it be possible in this case for the government to

2

contact these witnesses’ chains of command and just say the defense

3

has requested them for expert testimony and here’s what it is?

4

TC[MAJ FEIN]:

Absolutely, ma’am. The United States told the

5

defense that in May of this year and the defense refused to submit a

6

request for us to process that.

7

that way before this motions hearing, Your Honor.

8

of this filing that we’re here today.

9

MJ:

The United States was ready to do
It’s only because

Well, right now you have the defense proffers for all of

10

these witnesses, right?

11

TC[MAJ FEIN]:

12

MJ:

Yes, ma'am.

So I don’t -- this is a technical process.

The defense

13

doesn’t have to under the rules file a request.

14

make -- they have to say, “I want this witness as an expert.”

15

They’re either relevant or they aren’t relevant.

16

make my determinations.

17

another employee.

18

command.

19

these witnesses, I’m free to listen to them under 703(f), and we’ve

20

got a lot of time between now and the 3rd of June.

21

litigation if we need it.

22
23

They just have to

This is where I

Understand the defense can’t commandeer

If you want to expedite this process, go to the

If the commands have problem with any expert testimony from

Does that work for both sides?
ATC[CPT OVERGAARD]: Yes, ma'am.

6121

We can have that

10018

1

CDC[MR. COOMBS]:

2

MJ:

3
4
5
6

Yes, Your Honor.

Do you need any additional information from the defense

about what these witnesses will be testifying to?
TC[MAJ FEIN]:

Ma’am, we’ll discuss later and talk to the

defense if we do.
MJ:

Okay.

So, I think -- I’m going to rule orally on that part

7

of the motion right now.

8

talking about a government employee.

9

as well as the R.C.M. 703(e)(2)(f), I think the proper procedure in

I don’t think 703(d) applies when you’re
The way I’m reading the C.F.R.

10

these kinds of cases, the defense makes a motion for someone to

11

testify as an expert, assuming they’re relevant, go back to the

12

person, give them the subpoena, the person goes to their boss and if

13

there’s an indication of -- if there is any conflict, I suppose,

14

between the agency doesn’t want them to testify, that can all be

15

brought before the Court and we can look at it at that point and it

16

would all be right.

17

ATC[CPT OVERGAARD]: Yes, ma'am.

18

MJ:

Does either side have any disagreement with that ruling or

19

at this point want to challenge it?

20

ATC[CPT OVERGAARD]: No, ma'am.

21

CDC[MR. COOMBS]:

22

MJ:

23

All right.

No, ma'am.
So let’s proceed that way and see how that

works.

6122

10019

1
2
3

ATC[CPT OVERGAARD]: Do you still want the supplemental briefs
for next time, ma’am?
MJ:

On that I probably -- at this point I won’t need it.

In

4

the event that I do have any agencies coming back to me, this issue

5

may re-raise itself.

6

ATC[CPT OVERGAARD]: Yes, ma'am.

7

MJ:

But that action also, again, if there’s any issues with

8

respect to ethics and employees violating any JER or other

9

provisions, that should take care of it.

10

CDC[MR. COOMBS]:

Ma’am, just briefly on Ambassador Galbraith,

11

that’s the only witness that there still is kind of an issue on.

12

just wanted to address some of the assertions by the government for

13

the benefit of the Court.

14

I

Although he was only -- they say a short period of time.

15

He was an OCA for the Department of State for 6 years, along with

16

being an Ambassador.

17

dealt with the State Department and they how they handle classified

18

information as far as that was a part of his job.

19

experience with that.

20

MJ:

21

CDC[MR. COOMBS]:

From 1979 to 1993, he served in a position that

He does have

That was 20 years ago.
Granted.

But even some of the cables and

22

the cables charged in this case deal pre 1998.

23

the government is placing a great deal of significance on, as

6123

The SIPDIS Tag that

10020

1

Ambassador Galbraith would testify, it’s basically just a new tag

2

that was created in order to share Department of State information

3

with other agencies, as kind of an effect after the 9/11 commission

4

said the government wasn’t talking to each other.

5

They went back and they retroactively applied the SIPDIS

6

tag to a lot of cables and then they started using it from that point

7

forward.

8

Ambassador Galbraith to see the charged cables.

9

sees that he can say, “Yeah, these are the wide distribution cables,

We’ve asked for the government to give authorization for
Certainly once he

10

certainly the ones previous to 1998, that I’m very familiar with.”

11

Also, the SIPDIS Tag now is basically just our wide distribution tag.

12

These are the exact same type of cables.

13

Then he would be in a position, as a former OCA, and also

14

as somebody who has knowledge to then talk about these cable and his

15

opinion as to the type of cables that get the wide distribution tag.

16

This is in sentencing where he’s providing testimony for the benefit

17

of the Court in order to gauge well just how bad is the distribution

18

of these charged documents.

19

at Department of State’s own damage assessment, I think then makes

20

this relevant information for the Court to consider when fashioning

21

an appropriate punishment or sentence I should say.

His testimony along with, when you look

6124

10021

1

MJ:

The SIPR wide, he’s saying it’s just like the distributions

2

that were effect before.

3

there was a determination it wasn’t being widely enough disseminated?

4

CDC[MR. COOMBS]:

Why did they have to have a new one if

The way it goes is what happened is the

5

State Department had wide distribution as far as cables and that was

6

within the State Department and then some of the other agencies they

7

might have shared information with, but they didn’t have anything on

8

the SIPRNET.

9

make stuff available for SIPRNET,” that’s how SIPDIS became a tag:

When the determination was made, “Hey, we’re going to

10

SIPRNET Distribution.

11

distribution cables and make them available and then every wide

12

distribution cable thereafter was labeled SIPDIS.

13

All they did then is take the wide

The government says, “Well, he has no knowledge about the

14

SIPDIS system.”

The Department of State’s own classification guide

15

was released and is available -- it’s been available on the

16

Department of State’s own webpage that talks about SIPDIS cables and

17

the types of cables that would be within SIPDIS.

18

only cables that are appropriate there for the SIPDIS Tag are those

19

cables that are appropriate for a wide distribution audience.

20

anything that would contain information that should be a more

21

restrictive tag.

22

It’s not anything that requires a stretch of logic or a leap of logic

23

on his part in order to say what a SIPDIS cable is.

They say that the

Not

That’s what Ambassador Galbraith will testify to.

6125

10022

1

MJ:

2

CDC[MR. COOMBS]:

3

Coast.

4

bit.

Where’s he located?
Ambassador Galbraith is in, I believe, East

He’s located on the East Coast, ma’am.

5

ATC[CPT OVERGAARD]: Vermont.

6

CDC[MR. COOMBS]:

7

MJ:

8
9
10

All right.

He travels quite a

Thank you. He’s in Vermont, ma’am.
Is there any disagreement on the proffer with

Mr. Galbraith on what he’s going to testify to?
CDC[MR. COOMBS]:
MJ:

11

We actually have a signed declaration.

You have a signed declaration by him?
All right.

Okay.

Never mind.

With respect to this motion then, the only

12

outstanding issue that we have at this point is Ambassador Galbraith.

13

The expert -- whether the witnesses will testify as experts or merely

14

as fact witnesses will be determined at the trial.

15

in a much better position to be able to do that when the witness is

16

actually here and make a proffer on the stand on what their expertise

17

is or isn’t.

18

The Court will be

We’ll make a decision at that time.

CDC[MR. COOMBS]:

The other witness issue, ma’am, is the Fort

19

Leavenworth, which we owe the Court whether or not we can agree on a

20

stip of expected testimony or handle it in some other way that would

21

alleviate the need for you to make a ruling.

22
23

MJ:

Is that something that -- we need to take a brief recess

because we are going to have to have an R.C.M. 802 conference to talk

6126

10023

1

about the scheduling order and calendar at any point this afternoon,

2

but is that something you think you all can resolve this resolve this

3

afternoon, or do you want to have that tabled for discussion for the

4

16th?

5

CDC[MR. COOMBS]:

I’d like to table it.

The way I would

6

probably propose that we resolve it, ma’am, is getting the Fort

7

Leavenworth witness on a conference call, having that Fort

8

Leavenworth witness put either in writing or state to us exactly what

9

he would say so that there is not disagreement as to the nature of

10

his statement.

11

stipulate to his expected testimony, and then the Court -- if the

12

Court finds that relevant for merits, the defense would be fine with

13

having that as a stip of expected testimony.

14

it’s not relevant for the merits but would be relevant for

15

sentencing, the defense also would be fine with a stip of expected

16

testimony for sentencing.

17

MJ:

Then from that the government and the defense could

All right.

Government, you just heard that.

18

any objections to what was just proposed?

19

ATC[CPT OVERGAARD]: No, ma'am.

20

MJ:

21

ATC[CPT OVERGAARD]: Yes, ma'am.

All right.

If the Court determines

Do you have

So we’ll revisit this then on the 16th.

6127

10024

1

MJ:

Okay.

If you have any earlier -- if you come to a

2

resolution earlier or you can’t come to a resolution, just send me an

3

e-mail just so I know what’s coming.

4

ATC[CPT MORROW]:

Yes, ma'am.

5

CDC[MR. COOMBS]:

Yes, ma'am.

6

MJ:

7

CDC[MR. COOMBS]:

8

TC[MAJ FEIN]:

9

MJ:

10

Is there anything else we need to address today?
I don’t believe, ma’am.

No, Your Honor, other than the case calendar.

All right.

So if I recess the Court now, this is recessed

until the 16th of January, is that the parties’ understanding?

11

TC[MAJ FEIN]:

Yes, Your Honor.

12

CDC[MR. COOMBS]:

13

MJ:

All right.

Yes, ma'am.
Once again on the 16th of January, the Court

14

will have an updated case calendar to announce.

15

again, is the 16th and 17th of January 2013.

16

we have to that is the 26th of February through 1st of March 2013.

17

don’t see anything there changing.

18

TC[MAJ FEIN]:

19

CDC[MR. COOMBS]:

20

MJ:

21

The next session,

The follow on session

Do the parties?

No, ma'am.
No, ma'am.

Court is in recess.

[The Article 39(a) session recessed at 1430, 9 January 2013.]

22

6128

I

10025

1

[The Article 39(a) session was called to order at 1004, 16 January

2

2013.]

3
4
5

MJ:

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

Trial

Counsel, please account for the parties.
TC[MAJ FEIN]:

Ma'am, all parties when the court last recessed

6

are again present with the following exceptions:

7

reporter, is absent; Mr. Robertshaw is present as the court reporter.

8

Also, Captain Overgaard is absent; Captain Whyte is present.

9

MJ:

All right.

Mr. Chavez, court

I'd like to begin by going over filings that

10

have been made since our last session which was the 8th through the

11

11th January, last week.

12

up with a new court calendar.

13

exhibit?

14
15
16

TC[MAJ FEIN]:

The parties met with the Court and we came
Has that been marked as an appellate

Yes, Your Honor, it's been marked as Appellate

Exhibit 466.
MJ:

All right.

May I see it, please?

[The military judge

17

received AE 466 from the court reporter.]

All right, we have this

18

session which is scheduled to continue today and tomorrow and it will

19

depend on how far we get today whether we go through tomorrow.

20

next session will be the 26th of February through the 1st of March of

21

2013, following that, the next Article 39(a) will be the 10th through

22

12th of April of 2013.

23

the 21st through the 24th of May of 2013, with the trial scheduled to

The

The Article 39(a) session after that will be

6129

10026

1

start on the 3rd of June of 2013.

2

this is the calendar to date.

3

depending on things that arise during the trial, but that is the

4

current schedule that we intend to follow.

trial calendar?

7

CDC[MR. COOMBS]:

8

TC[MAJ FEIN]:

9

MJ:

10
11
12

Sometimes dates and things can change

Does either side desire to supplement my discussion of the

5
6

Once again, as we've all seen,

No, Your Honor.

No, Your Honor.

All right.

Defense, I believe you filed an additional

M.R.E. 505(h) notice, is that correct?
ADC[MAJ HURLEY]:

Yes, ma'am, we did.

If I may have a moment,

I'm going to ----

13

MJ:

Yes.

14

ADC[MAJ HURLEY]:

---- get the number of that from the court

Ma'am, the government indicated to me that it’s Appellate

15

reporter.

16

Exhibit 468.

17

I'm sorry.

18

conversation that the defense had with the government with respect to

19

a previous 505(h) notice.

20

for the government with respect to certain particular witnesses.

21

addition to that, we wanted to make something explicit which we

22

thought was implicit for a -- our interviews of some specifically

23

identified witnesses in the 505(h) notice.

I'm retrieving the one from the court reporter.
Excuse me.

469,

Ma'am, we filed this on 14 January after a

We meant to make explicit certain things

6130

In

10027

1

MJ:

All right.

And then, going back to the trial calendar,

2

Major Hurley, the trial calendar has the 22nd of February as the date

3

for -- as I understand it, the defense is going to have rolling

4

505(h) notices; is that correct?

5

ADC[MAJ HURLEY]:

Yes, ma'am.

And this is a conversation that

6

we had with the government.

7

them down into subcategories, but it's basically by agency.

8

complete the witness interviews, we’ll turn over the 505(h) notice

9

for those agencies with subcategories with our overall deadline being

10
11

So, by agency, everything--we've broken
Once we

the 22nd of February.
MJ:

All right.

And, then, Government, you also advised me that

12

when you receive the M.R.E. 505(h) notices that it required 45 to 60

13

days -- or 60 days to coordinate with the agencies, is that correct?

14

TC[MAJ FEIN]:

Yes, ma'am, the government anticipates no more

15

than 60 days which is why on the calendar it's programmed for April

16

22nd as the due date for the government's response.

17
18

MJ:

All right.

And hence the reason for the movement of the

trial from March to June, is that correct?

19

TC[MAJ FEIN]:

20

MJ:

Yes, ma'am.

All right.

And that was done with the concurrence of both

21

sides, is that correct?

22

TC[MAJ FEIN]:

23

ADC[MAJ HURLEY]:

Yes, ma'am.
Yes ma'am.

6131

10028

MJ:

1

All right.

Now, at the last session, we also concluded

2

with argument over the judicial notice requests.

3

government involving several documents and some facts that they want

4

the court to take judicial notice of and two from the defense, one

5

for damage assessments and one for over classification, a statute,

6

and congressional hearings.

7

the day of argument at the last session and the Court had -- and had

8

indicated to the Court a desire to supplement those filings.

9

Government, please announce for the record what you filed.
TC[MAJ FEIN]:

10

I have one from the

The government had filed an addendum on

Ma'am, the United States filed, on the 11th of

11

January 2013, Government's Supplemental Judicial Notice Motion and it

12

has been marked as Appellate Exhibit 467.

13

defense replied -- response, Your Honor, to the Government's

14

Supplemental Judicial Notice on the 15th of January 2013, and that's

15

been marked as -- can I have a moment, ma'am? [Consults with co-

16

counsel.]
MJ:

17
18

And then, also, the

Ma'am, which has been marked as Appellate Exhibit 468.
All right.

And, Defense, didn’t you also supplemented your

initial filing, is that correct?
ADC[CPT TOOMAN]:

19

Yes, ma'am, the initial filing for judicial

20

notice of the damage assessments, the defense said referenced a few

21

things in oral argument.

22

were:

23

record at Exhibit 248; the other instructions and things that we've

We sent those to the Court.

Referenced

Executive Order 13526 that's already part of the appellate

6132

10029

1

referenced are Appellate Exhibit 397 we just added them on to our

2

original motion.

3
4
5

MJ:

All right.

Thank you.

And what is the status of the Fort

Leavenworth witness?
TC[MAJ FEIN]:

Ma'am, during the last session the parties agreed

6

that between that session and this session we would work to meet with

7

the Fort Leavenworth witness over a teleconference to work out a

8

potential stipulation of expected testimony.

9

actually set up that conference call; it was on Monday.

The -- both parties did
However, the

10

conference call did not occur for administrative reasons and both

11

parties are going to work as soon as possible to set that up again

12

and hopefully come to a mutual stipulation of expected testimony for

13

the Court.

14

MJ:

Thank you.

15

CDC[MR. COOMBS]:

16

MJ:

Would the defense like to supplement that?
No, Your Honor.

All right, then, in addition to the speedy trial arguments

17

that the Court will hear from both sides, the outstanding issues that

18

remain are the Court's decision with respect to Ambassador Galbraith,

19

the judicial notice issues, the ruling on the government motion to

20

preclude motive which the Court is prepared to announce at this time,

21

and the ruling on the government motion to preclude evidence of over

22

classification and that ties in to the subsequent defense judicial

23

notice for the statute and congressional hearings involving that

6133

10030

1

issue.

2

motion and take those two issues on over classification under

3

continued advisement.

4

The Court is going to sever that piece of the judicial notice

So, the plan is I am going to announce the ruling on the

5

government's motion to preclude motion [sic] evidence, that will be

6

followed by argument on speedy trial, and we will take a lunch break

7

at some point, either between the arguments, depending on the time,

8

or after the second argument, and then we will come back on the

9

record and address the Ambassador Galbraith and the judicial notice

10
11

issues, absent over classification.
Ruling:

Government Motion to Preclude Motive Evidence on

12

the Merits.

On 16 November 2012, the government filed a motion to

13

exclude motive evidence during the merits portion of the trial.

14

30 November 2012 the defense filed a response opposing the motion.

15

After considering the pleadings, evidence presented, and argument of

16

counsel, the Court finds and concludes as follows:

17

Findings of Fact:

18

1.

On

The accused is charged with one specification of aiding

19

the enemy in violation of Article 104, Uniform Code of Military

20

Justice; one specification of disorders and neglects to the prejudice

21

of good order and discipline and service discrediting in violation of

22

Article 134, UCMJ; eight specifications of violations of 18 United

23

States Code section 793(e) and Article 134, UCMJ; five specifications

6134

10031

1

of violations of 18 United States Code, section 641 and Article 134,

2

UCMJ; two specifications of violations of Article -- Title 18, United

3

States Code section 1030(a)(1) and Article 134; and five

4

specifications of violating a lawful general regulation in violation

5

of Article 92, UCMJ.

6

on or about 1 November 2009 to on or about 27 May 2010.
2.

7
8

The time period of the charged offenses is from

The government asserts evidence of motive is not

relevant to any charged offense or to any cognizable defense.
3.

9

The defense intends to introduce evidence of the

10

accused's motivation during the period of the charged offenses.

11

Defense intends to introduce the accused motivation through the

12

testimony of Adrian Lamo and Zachary Antolak.
4.

13
14

The defense, in its response, argues that evidence of

the accused's motive is relevant for two reasons:
1.

15

The elements of the charged offenses makes the

16

accused's motive relevant, particularly the element of knowledge in

17

the Specification of Charge I, aiding the enemy, and Specifications

18

4, 6, 8, and 12 of Charge II, stealing, purloining, or knowingly

19

converting records, and the element that the accused wantonly

20

published the information at issue in Specification 1 of Charge II.
And, two, to rebut evidence of the accused's intent

21
22

presented by the government via the testimony of Specialist Jihrleah

23

Showman.

6135

10032

1

5.

During oral argument, the defense asserted that

2

evidence of the accused's motive was also relevant to the element of

3

whether the accused had reason to believe that the information he

4

communicated would be used to the injury of the United States or to

5

the advantage of any foreign nation for the offenses charged as

6

violations of 18 United States Code, Section 793(e), and that would

7

be Specifications 2, 3, 5, 7, 9, 11, and 15 of Charge II and the

8

offenses charging a violation of 18 United States Code, Section

9

1030(a)(1), Specifications 13 and 14 of Charge II.

The defense

10

advised the Court of its intent to present evidence that the accused

11

selected information that he knew or believed could not be used to

12

harm the United States and intended to present evidence to raise a

13

mistake of fact defense to this element in that the accused did not

14

believe the information he communicated could be used to the injury

15

of the United States.

16

intent to use the damage assessments to corroborate the

17

reasonableness of the accused's belief.

18

6.

The defense further advised the Court of its

The government argues that the accused's motivation is

19

not relevant to the elements of "knowledge" or "wanton publication"

20

and the element "reason to believe the information could be used to

21

the injury of the United States or to the advantage of any foreign

22

nation" is an objective element.

23

knowledge or belief is irrelevant.

As such, the accused's subjective

6136

10033

The law:

1

M.R.E. 401 defines "relevant evidence."

Relevant

2

evidence means evidence having any tendency to make the existence of

3

any fact that is of consequence to the determination of the action

4

more or less probable than it would be without the evidence.
2.

5

M.R.E. 402 provides that all relevant evidence is

6

admissible, except as otherwise provided by the Constitution of the

7

United States as applied to members of the Armed Forces, the code,

8

these rules, this manual, or any act of Congress applicable to the

9

members of the Armed Forces.

10

Evidence that is not relevant is not

admissible.
3.

11

Relevant evidence is necessary when it is not

12

cumulative and when it would contribute to a party's presentation of

13

the case in some positive way to matter at issue.
4.

14

Military Rule of Evidence 403 provides that relevant

15

evidence may be excluded if its probative value is substantially

16

outweighed by the danger of unfair prejudice, confusion of the

17

issues, or misleading members, or by consideration of undue delay,

18

waste of time, or needless presentation of cumulative evidence.
5.

19

There is a distinction in law between motive and

20

intent.

Intent is a person's immediate goal while motive is person's

21

ultimate goal.

22

Appeals for the Armed Forces, 1995.

23

steal food from a store to feed his family.

United States v. Huet Vaughn, 43 M.J. 105, Court of

6137

As an example, a person may
His intent is to steal

10034

1

the food.

He steals the food to further his motive to feed his

2

family.

3

not negate his intent to steal the food.

4

larceny, the government would have to prove the person's intent to

5

steal.

6

the extent it provides circumstantial evidence of intent to steal or

7

it presents a viable defense.

8

127, Court of Appeals for the Armed Forces, 2010; United States v.

9

Rockwood, 52 M.J. 98, Court of Appeals for the Armed Forces, 1999;

The fact that he has a noble motive to feed his family does
In a prosecution for

The person's motive to feed his family is relevant only to

See United States v. Diaz, 69 M.J.

10

United States v. Huet Vaughn, 43 M.J. 105, Court of Appeals for the

11

Armed Forces, 1995.

12

6.

Similarly, in this case, the accused's motive is

13

relevant only to the extent it provides circumstantial evidence of

14

the accused's intent or presents a viable defense to any of the

15

charged offenses.

16

7.

The mens rea requirement for 18 United States Code,

17

Section 793(e) does not require that the accused acted in bad faith

18

or with ill intent.

19

Appeals for the Armed Forces, 2010; United States v. Kiriakou, 2012,

20

West Law 4903319, Eastern District of Virginia, October 16.

21

the same rationale, the mens rea requirement for 18 United States

22

Code, Section 1030(a)(1) also does not require that the accused act

23

in bad faith or with ill intent.

United States v. Diaz, 69 M.J. 127, Court of

6138

Under

10035

8.

1

R.C.M. 916(j) governs the defense of Ignorance or

2

Mistake of Fact.

The rule provides that it is a defense to an

3

offense that the accused held, as a result of ignorance or mistake,

4

and incorrect belief as to the true nature of the circumstances such

5

that, if the circumstances were as the accused believed them to be,

6

the accused would not be guilty of the offense.

7

mistake goes to an element requiring premeditation, specific intent,

8

willfulness, or knowledge of a particular fact, ignorance or mistake

9

and need only have exists in the mind of the accused.

If the ignorance or

If the

10

ignorance or mistake goes to any other element requiring general

11

intent or knowledge, the ignorance or mistake must have existed in

12

the mind of the accused and must have been reasonable under all the

13

circumstances.

14

immaterial as to an element, then ignorance or mistake is not a

15

defense.

However, if the accused's knowledge or intent is

16

Conclusions of law:

17

1.

The accused's motive during the period of the charged

18

offenses, on or about 1 November 2009 to on or about 27 November

19

[sic] 2010:

20

A.

Is relevant to the element of knowledge, only whether

21

the accused knew he was dealing with the enemy, for The Specification

22

of Charge I, Aiding the Enemy.

23

Article 104 cases declining to allow evidence of noble motive or good

This case is distinguished from prior

6139

10036

1

faith of each used because the accused's bad faith is not an element

2

of Article 104 and because Article 104 is a general intent offense

3

not requiring a specific intent by the accused to aid the enemy.

See

4

US v. Batchelor, 22 C.M.R. 144, Court of Military Appeals, 1956.

The

5

Court agrees, however, in this case, evidence of the accused's motive

6

is relevant to prove whether the accused knew or didn't know he was

7

dealing with the enemy.

8
9
10
11
12
13

B.

Is not relevant to whether the accused knew he was

stealing, purloining, or knowingly converting property belonging to
the United States, for Specifications 2, 4, 6, 8, and 12 of Charge 2.
C.

Is not relevant to whether the accused "wantonly"

published information for Specification 1 of Charge II.
D.

Is not relevant to whether the accused had reason to

14

believe information he communicated could be used to the injury of

15

the United States or to the advantage of any foreign nation for

16

Specifications

17

2.

2, 3, 5, 7, 9, 11, 13, 14, and 15 of Charge II.

If the government offers statements made by the accused

18

to Specialist Jihrleah Showman to prove his state of mind, the

19

accused's motive or state of mind during the period of the charged

20

offenses is relevant to rebut that evidence.

21

3.

In the Court's 19 October 2012 ruling:

Government

22

Motion to Preclude Reference to Actual Harm or Damage on the Merits,

23

the Court deferred ruling on whether lack of actual harm or damage

6140

10037

1

assists in presenting a viable defense.

2

order for the Court to appropriately rule on whether actual damage

3

corroborates the reasonableness of the accused's belief, there must

4

be some evidence the accused knew the information could not be used

5

to the injury of the United States or to the advantage of any foreign

6

nation."

7

issue and believes it would benefit the parties to have clarity on

8

what evidence is relevant and potentially admissible.

The Court, now, has sufficient foundation to rule on this

4.

9

The Court ruling stated, "In

That for the specifications charging violations of 18

10

United States Code, Section 793(e) and 1030(a)(1), the element that

11

the accused had "reason to believe the information he communicated

12

could be used to the injury of the United States or to the advantage

13

of any foreign nation" is an objective element evaluated on facts

14

actually known by the accused.

15

prove the accused knew the information he communicated could be used

16

to the injury of the United States or to the advantage of any foreign

17

nation.

18

believe that the information he communicated could be used to the

19

injury of the United States or to the advantage of any foreign

20

nation.

21

subjective conclusion by the accused that he did not have reason to

22

believe the information he communicated could be used to the injury

23

of the United States or the advantage of any foreign nation is

It does not require the government to

The government must prove that the accused had reason to

Either the accused had reason to believe or he did not.

6141

A

10038

1

immaterial to this element.

2

mistake of fact.

3

factors he knew regarding the information communicated as evidence

4

that he did not have reason to believe that the information could be

5

used to the injury of the United States or to the advantage of any

6

foreign nation.
5.

7

It is also a mistaken conclusion not a

The accused may certainly present evidence of

Upon request of the defense, the Court has considered

8

United States v. Miller, 874 F.2d 1255, 9th Circuit, 1989.

9

distinguishable from this case in that Miller -- the defendant in

Miller is

10

Miller was charged with violating 18 United States Code, Section

11

793(b) with a mens rea that the accused acted with intent or reason

12

to believe the information is to be used to the injury of the United

13

States.

14

the affirmative defense of mistake of fact as defined in R.C.M.

15

916(j).

16

to the jury:

17

faith and reasonably believed that communication or delivery of the

18

document specified in count two was within the scope of his

19

authorized duties as an FBI agent and actually intended to

20

communicate and deliver that classified document to Svetlana

21

Ogorodnikova as part of his official duties as an ex-FBI agent to the

22

extent that it may bear on whether he had reason to believe the

23

document was to be used to the injury of the United States or to the

It is also distinguishable because the case does not involve

The District Court in Miller gave the following instruction
"You may consider whether the defendant acted in good

6142

10039

1

advantage of any foreign nation."

The Ninth Circuit opined that this

2

instruction reflected a misunderstanding of the nature of the

3

accused's defense.

4

more appropriate to "instruct the jury to the effect that Miller’s

5

reasonable belief, if any, that his actions would have met with

6

subsequent approval from his FBI superiors would be taken into

7

account in deciding whether he had reason to believe that his actions

8

would harm the United States or help the Soviets."

9

consistent with the reasoning of this court.

The appellate court opined it would have been

Miller is

Any mistaken belief the

10

accused had about the nature of the information communicated is

11

relevant to whether he did or did not have reason to believe the

12

information could be used to the injury of the United States or the

13

advantage of any foreign nation.

14

held that Miller was not entitled to an instruction that he could not

15

be convicted if his actions were intended to benefit the United

16

States even if he acted with a mistaken but reasonable belief as to

17

the extent of his authority.

18

reasoning of this court.

19

6.

The Ninth Circuit in Miller further

This is also consistent with the

Evidence that the accused selected only particular

20

information to communicate and factors he knew about that information

21

to select certain information over other information is relevant to

22

the elements of whether the accused had reason to believe the

23

information could be used to the injury of the United States or to

6143

10040

1

the advantage of any foreign nation for the specifications charging

2

violations of 18 United States Code, Sections 793(e) and 1030(a)(1).

3

The accused's subjective conclusion that the information he selected

4

could not be used to the injury of the United States or to the

5

advantage of any foreign nation is not a mistake of fact and does not

6

raise a mistake of fact defense.

7

7.

Even if the accused's mistaken conclusion that he did

8

not have a reason to believe that the communicated information could

9

be used to the injury of the United States or to the advantage of any

10

foreign nation raised a viable mistake of fact defense for the

11

element of whether the accused had reason to believe the evidence he

12

communicated could be used the injury of the United States or to the

13

advantage of any foreign nation, the damage assessments would not be

14

relevant to corroborate the reasonableness accused's belief.

15

relevant inquiry would be facts known by the accused at or before the

16

charged offenses.

17

after the alleged offenses were committed.

18

damage occurred after disclosure was not knowable by the accused

19

during the time period of the charged offenses.

20

measures were implemented by affected agencies to prevent or minimize

21

actual damage.

22

mitigation measures would be taken by the United States Government

23

agencies and what, if any, impact those measures had on actual damage

The

The damage assessments were created or compiled
What, if any, future

Moreover, mitigation

The accused could not have known what, if any,

6144

10041

1

caused.

2

corroborate the reasonableness of the accused's belief under Military

3

Rule of Evidence 401.

4

damage assessments is substantially outweighed by the danger of

5

confusion of the issues under Military Rule of Evidence 403.

6

Thus, the damage assessments would not be relevant to

Ruling:

Even if relevant, the probative value of the

The Government Motion to Exclude Motive Evidence

7

on the Merits is granted in part as set forth above.

Evidence of the

8

accused's motive is relevant to the knowledge element of the

9

specification of Charge I, aiding the enemy.

It is also relevant to

10

rebut evidence of the accused's state of mind is offered by the

11

government through the testimony Specialist Jihrlea Showman.

12

accused's motive is not relevant for any other purpose.

13

the accused's selection of particular information to communicate and

14

factors considered by the accused in making such selections is not

15

motive evidence and is not excluded by this ruling.

16

subjective conclusion that he did not have reason to believe the

17

information communicated could be used to the injury of the United

18

States or the advantage of any foreign nation does not raise a

19

mistake of fact defense under R.C.M. 916(j).

20

language in the Court's 19 October 2012 ruling is inconsistent with

21

this ruling, this ruling is controlling.

22
23

6145

Evidence of

The accused's

To the extent any

So ordered this 16th day of January 2013.
be Appellate Exhibit 470.

The

And, that would

10042

Do the parties desire a brief recess before we continue

1
2

with the speedy trial argument or are you ready to go?

3

TC[MAJ FEIN]:

4

MJ:

5

TC[MAJ FEIN]:

6

MJ:

All right.

Just a brief recess, ma'am.
10 minutes suffice?

All right.

Yes, ma'am.
Court is in recess until 1040.

7

[The Article 39(a) session recessed at 1029, 16 January 2013.]

8

[The Article 39(a) session was called to order at 1052, 16 January

9

2013.]

10

MJ:

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

Let the

11

record reflect all parties present in the court last recessed are

12

again present in court.

13

TC[MAJ FEIN]:

Government?

Yes, ma'am.

Ma'am our roadmap for the

14

government's argument for today, I intend to discuss R.C.M. 707, the

15

law, isolate issues for the Court, and then apply facts to the law,

16

then discuss Article 10, Sixth Amendment right to speedy trial, a

17

focus on the law -- a brief overview of the law, I'll focus the

18

issues for the court and then apply facts to that.

19

First, ma'am, as the Court knows, the first body of law for

20

speedy trial is Rule for Court-Martial 707.

21

707 provides that the accused will be brought for trial within 120

22

days of preferral of charges, restraint in lieu of arrest, pretrial

23

confinement for entry on Active Duty under R.C.M. 204.

6146

Rule for Court-Martial

Prior to

10043

1

referral, the convening authority may exclude periods of time towards

2

the speedy trial clock or delegate that authority to an Article 32

3

investigation officer under R.C.M. 707(c)(1).

4

that the proper authority -- convening authority make an independent

5

-- or, excuse me, the investigating officer, if delegated, make an

6

independent determination as to whether there is, in fact, good cause

7

for a pretrial delay and to grant such delays for only so long as

8

necessary under the circumstances.

R.C.M. 707(c) requires

Decisions granting or denying pretrial delays are within

9
10

the sole discretion of the convening authority or military judge or a

11

delagee [sic] of the convening authority and it will be subject to

12

review for both abuse of discretion and the reasonableness of the

13

time.
First, Your Honor, good cause, the discussion of R.C.M.

14
15

707(c), says, "Reasons to grant delay might include the following:
1.

Time to enable counsel to prepare for trial in complex

2.

Time to allow examination of the mental capacity of the

20

3.

Time requested by the defense.

21

4.

Time to secure the availability of the accused's

16
17

cases.

18
19

22

accused.

substantial witnesses or other evidence.

6147

10044

5.

1
2

Time to obtain appropriate security clearances for

access to classified information.

3

6.

Additional time for other good cause.

4

Under R.C.M. 707 and viewing the convening authority's

5

decision to delay, the Court also has to determine whether, as stated

6

before, delay is only as long as necessary.

7

the time attributable to the delay was necessary under the

8

circumstances, the standard is whether the time taken was reasonable.

9

To put it another way, the standard -- this is from the Air Force

In determining whether

10

Court of Criminal Appeals in Mahoney, “The standard is not whether it

11

could have been done sooner, but whether the time it did take was

12

reasonable.”
Your Honor, the issues for the Court -- the contested

13
14

period of delay are listed between the two motions, but, briefly, for

15

the Court, six periods:

16

to 22 April ----

17

MJ:

18

TC[MAJ FEIN]:

19

MJ:

20

TC[MAJ FEIN]:

21

MJ:

22

TC[MAJ FEIN]:

23

Start again.

12 July 2010 to 10 August 2010, 4 March 2011

The first one was?

Yes, ma’am.

12 July ----

Okay.
---- to 10 August 2010.

Okay, got it.
4 March to 22 April 2011, 22 April to 15 December

2011, 24 December 2011 to 2 January 2012, 7 January 2012 to 8 January

6148

10045

1

2012 -- I’m sorry.

2

the date the case was referred, to 22 February 2012.

3

Yes, ma’am, and the final one, 3 February 2012,

Two issues for the Court to determine whether the decision

4

to exclude these periods of delay were an abuse of discretion is,

5

again, whether there’s good cause for the requested delay and, two,

6

was the period of excludable delay reasonable.

7

First, Your Honor, the -- Colonel Coffman -- the Special

8

Court-Martial Convening Authority, had good cause to exclude periods

9

of delay for the following reasons supported by R.C.M. 707; what the

10

government intends to do, because this has already been extensively

11

briefed in written motions, Your Honor, is really just to focus on

12

the main issues.

13

argument, excuse me, it’s really applicable to all periods of delay

14

and the specifics, of course, are in the written motion.

15

Your Honor, namely, time for the defense requested, such as the 706

16

board; time to process defense requested security clearances that

17

were required; time to secure evidence that includes forensics,

18

classification reviews, disclosure of classified material and

19

unclassified material, and, later, Your Honor, we’ll get into much

20

more detail; time to prepare for the complex case itself; and time

21

for other good cause such as the United State Army, the United States

22

Army MDW, and the Special Court-Martial Convening Authority’s

23

command, the Joint Base Myer-Henderson Hall garrison to have an

And the majority of this analysis -- or this

6149

So, first,

10046

1

infrastructure in place to support this complex and this very public

2

trial under OPLAN B.

3

Second, Your Honor, period of delay for which the -- which

4

Colonel Coffman, the Convening Authority, excluded was reasonable

5

just because he says his decisions to delay every 30 days through an

6

accounting memorandum and documented.

7

completed, the prosecution requested delays every 30 days based on

8

the facts and processes at the time.

9

he elicited input from the defense and considered any submitted

After the R.C.M. 706 was

Colonel Coffman testified that

10

submissions.

11

authority and Colonel Coffman made independent decisions on each

12

delay and then accounted for them on the written documentation that

13

the Court has already extensively heard testimony and argument on

14

that incorporated, by reference, the prosecution's request and the

15

defense's responses each 30-day period.

16

There was no ex parte decisions made by the convening

So, Your Honor, some specific facts supporting good cause

17

for the requested delays, consistent with the R.C.M. 707 discussion,

18

again, in general:

19

The defense's request for the R.C.M. 706 board including

20

three specialized board members and specific medical testing that is

21

not common for all accused in all courts-martial within the

22

Department of Defense or the military.

6150

That request was submitted

10047

1

and the convening authority actually executed the request as

2

submitted.
Defense's request for delay of the sanity board to comply

3
4

with prohibitions on disclosure of classified information;

5

Preliminary classification review of the accused's mental

6

health impressions for which the defense provided input and did not

7

object to;

8
9
10
11
12

Defense's request for security clearances for the defense
team, including defense experts which were added throughout the
pretrial process;
Defense's request for results of OCA classification reviews
very early on;

13

And, also, Your Honor, procurement of evidence by the

14

government and, based off of defense's requests to include OCAs

15

reviews of classified information to prove the information was

16

classified as alleged on the charge sheet;

17
18
19

Disclosure of unclassified, but protected information,
disclosure of classified material.
Again, all of that was reviewed and documented by the

20

convening authority in making his decisions.

21

periods of delay that Colonel Coffman excluded are reasonable.

22

Colonel Coffman was constantly informed, both in writing and in

23

person; that is evidenced by the memoranda he signed every 30 days --

6151

Ma'am, overall, the

10048

1

excuse me, Your Honor, every 30 days between October 2010 until April

2

2011.

3

accounting memoranda which was retrospective to just ensure that all

4

the time was accounted for and reviewed and there was the prospective

5

that the government started making requests for additional time

6

starting in April.

7

authority, in both written documentation and briefing, every,

8

approximately, 15 days, was acting on this case and receiving

9

updates.

10

And then, as you line up the memoranda, there is the monthly

So, those were off-set.

So, the convening

He was updated -- his updates included the progress being

11

made each of the reasons supporting his decision for a delay.

12

Colonel Coffman's testimony, coupled with his memoranda shows he

13

witnessed constant progress being made for the reasons supporting his

14

decisions to exclude periods of delay and did not feel the need to

15

personally interject himself, as you heard from his testimony.

16

Ma'am, the defense specifically contests the following:

17

First, R.C.M. 706 delays.

Colonel Coffman understood the

18

public attention for this case.

Colonel Coffman understood the

19

importance of having the R.C.M. 706 board interview the accused on a

20

weekend and directed this to occur.

21

understood the demanding requirements of Walter Reed, where members

22

of the R.C.M. 706 board worked, so he granted extensions based off of

23

coordination of work schedules.

6152

Colonel Coffman, generally,

10049

Second, preliminary classification review and security

1
2

clearances for the defense team.

Colonel Coffman considered the

3

preliminary classification review, which he ordered, necessary to

4

make an informed decision whether security clearances, up to the Top

5

Secret, SCI-level were required.

6

defense team, but the prosecution, the Court, are required for the

7

investigating officer and all the support personnel from this point

8

forward.

9

clearances to the Top Secret, SCI-level and read on, and, unless an

They are not required just for the

Colonel Coffman mentioned how long it took to get security

10

expedited system was in place, it would take much longer.

And

11

Colonel Coffman acted on multiple defense expert requests, all which

12

Colonel Coffman understood would require TS-SCI clearance with the

13

exception of the forensic experts because there was no SCI forensic

14

material.
Your Honor, third, classified evidence and classified

15
16

discovery.

Again, this is the defense specifically requesting these

17

reasons for delay.

18

nature of the charged offenses from the charge sheet.

19

charged offenses, he understood the necessity to disclose classified

20

information to the defense which, necessarily, required a -- the

21

consent of original classification authorities.

22

offenses, Colonel Coffman understood the necessity to prove the

23

information for which the accused was charged was classified as

Colonel Coffman testified that he understood the

6153

Based on the

Based on the charged

10050

1

alleged on the charge sheet which required classification reviews,

2

either -- at least the information be reviewed and some evidence

3

presented at Article 32 for that.

4

responsibilities of senior government officials and the challenges of

5

bringing materials to their attention based on his prior assignments

6

at the Pentagon.

7

agency officials to complete tasks, but did monitor its progress

8

through the trial counsel every 15 days -- every 30 days, Your Honor,

9

starting in October and then every 15 days starting in April 2011.

Colonel Coffman understood the

Colonel Coffman did not have the authority to order

Fourth, and last, Your Honor, OPLAN B.

10

OPLAN Bravo, which

11

still exists today and we're operating under, is -- was planned ahead

12

of time and, its execution -- during that phase -- during the Article

13

32 was triggered by Colonel Coffman's ordering of a restart of the

14

32.

15

this case and there's great public intention in this case.

16

understood that he was a supported command with very little to no

17

manpower and resources to hold this type of court-martial, or, at the

18

time, an Article 32 in this courtroom with the same infrastructure.

19

Colonel Coffman understood that specialized resources had to be in

20

place despite this being pre-coordinated over the summer and fall and

21

it took 30 days to execute the coordination -- not the coordination

22

started at his order -- but to execute what had been previously

23

coordinated.

Colonel Coffman understood there is great media attention in
He also

That included moving the accused from Fort Leavenworth

6154

10051

1

to the local area; establishing this infrastructure we're currently

2

operating in to properly handle the media and public participation;

3

and, establishing proper security for the accused, trial

4

participants, media, public, and informational security.
Your Honor, now, the United States moves to Article 10 and

5
6

the 6th Amendment.

Your Honor, the law:

Article 10, UCMJ assures

7

the right to a speedy trial and military members by providing that

8

quote when any person subject to this chapter, Article 10, is placed

9

in arrest or confinement prior to trial, immediate steps shall be

10

taken to inform him of the specific wrong of which he is accused and

11

to try him or to dismiss the charges and release him.

12

courts have interpreted the immediate steps under Article 10 to mean

13

"not constant motion, but reasonable diligence in bringing the

14

charges to trial."

15

MJ:

Military

Does the government conceded that the length of delay in

16

this case would trigger the -- some -- the additional Barker analysis

17

under Schuber?

18

TC:

I'm sorry, could you ask that question again, Your Honor?

19

MJ:

Under Schuber ----

20

TC:

Yes, ma'am.

21

MJ:

---- the Court of Appeals for the Armed Forces to that

22

there had to be a certain period of delay before the additional

23

Barker v. Wingo factors are -- before you have to analyze those.

6155

10052

1

TC:

Yes, ma'am.

2

MJ:

And if the delay is short enough, then you don't have to

3

get to that step because it's not a long enough delay.

4

government concede, in this case, that the delay is long enough to

5

get to the other Barker factors?

6

TC:

May I have a moment, ma'am?

Does the

Yes, ma'am, we do.

And, in a

7

moment, will get to -- talk now, ma'am -- the reasonableness

8

standard, as you know, from, ma'am, as the Court knows, in Kossman,

9

the current reasonableness standard was established away from the

10

Burton presumption, although, as we'll discuss -- or ask the court --

11

or excuse me, the government will brief in a moment, even back under

12

the Burton standard and pre-Burton, there's always been exceptions

13

for complex cases and for security clearances and all the issues --

14

funny enough, in all those cases, typically it is one issue.

15

this case actually spans every single issue that was essentially been

16

contemplated, other than co-conspirators within the military through

17

all the case law, again, pre -- the current presumption, the previous

18

presumption, and the even pre-dating R.C.M. 707.

How

So, again, Your Honor, military courts interpret immediate

19
20

steps under Article 10 not to be constant motion or reasonable

21

diligence.

22

the government actually contends there has been constant motion in

And, later, Your Honor, with a relaying of -- or summary,

6156

10053

1

this case, although that's not the standard and we'll outline why

2

that is.
Your Honor, brief inactivity is not fatal to an otherwise

3

An Article 10 violation exists

4

active diligent prosecution, Schuber.

5

where it is established that the prosecution could readily have gone

6

to trial much sooner than some are maturely selected time

7

demarcation, but negligently or spitefully chose not to.

8

agree that there is no magic number to find an Article 10 violation;

9

it is all based off of the facts presented to the court for each

Courts

10

case.

11

whether similar delays would have violated the Sixth Amendment,

12

Thompson, CAAF, 2010.

13

States proceeds with reasonable diligence includes balancing the

14

factors in Wingo once you get passed, as you talked about, the

15

presumption just now.

16

reasons for the delay, whether the accused made a demand for speedy

17

trial, and whether there was prejudice to the accused.

18
19
20

Article 10 issues cannot be resolved simply by determining

MJ:

The framework to determine whether the United

Those four factors, length of delay, the

Let me stop you there.

What was your argument with respect

to the interplay between Article 10 and the Sixth Amendment?
TC[MAJ FEIN]:

Well, ma'am, Article 10 does afford Soldiers,

21

Sailors, and Airmen a greater rights [sic] than Sixth Amendment.

22

there is an Article 10 violation, there is no reason for the Court to

6157

If

10054

1

move to the Sixth Amendment.

2

law is Article and then it moves into Sixth Amendment if ----

3

MJ:

But, the threshold is -- I mean, the

So, I guess what I'm asking you, then, if -- is it the

4

government's position that if do -- that, since Article 10 uses the

5

same factors as the Sixth Amendment, and is more stringent, then

6

Article 10 analysis would necessarily encompass the Sixth Amendment

7

analysis?

8
9

TC[MAJ FEIN]:

Ma'am, in practice, the analysis is the same.

The government's contention is is that, if there is an Article 10

10

violation found, there's no reason to go to a Sixth Amendment

11

analysis.

If there's no ----

12

MJ:

13

TC[MAJ FEIN]:

14

MJ:

15

TC[MAJ FEIN]:

16

MJ:

17

TC[MAJ FEIN]:

18

And there would be a Sixth Amendment violation as well?
Yes, ma'am.

Or an -- yes, the Sixth Amendment.

Yes.

Well, there could be, Your Honor.

Okay.
There could be.

Hypothetically, there could be

no Sixth Amendment, but an Article 10 ----

19

MJ:

20

TC[MAJ FEIN]:

21

accused.

22

MJ:

Yes.
---- because Article 10 affords more rights to an

Okay.

6158

10055

1

TC[MAJ FEIN]:

But, for judicial economy purposes, the findings

2

would be similar and the same for both.

3

factors.

4

Barker are an abstract for examining the facts in an Article 10

5

violation.

6

So, it's back to four

Mizgala, Your Honor, C.A.A.F., 2005, these factors from

So, first, Your Honor, length of delay, factor one -- this

7

factor is, to some extent, a triggering mechanism, but unless there's

8

a period of delay that appears, on its face, to be unreasonable under

9

the circumstances, there's no necessity to inquire into other factors

10
11

to go into that balance, Cossio, 2007, CAAF
The analysis under the first factor depends upon the

12

circumstances of the case, to include the seriousness of the offense,

13

the complexity of the case, and the availability of proof, Schuber,

14

which interpreted Barker v. Wingo.

15

Barker, Your Honor, the delay and again, just going back to the

16

constitutional Sixth Amendment case, Your Honor, Barker had a 10-

17

month delay just to secure one witness, an ex-sheriff that was sick

18

and unavailable.

19

issues of a co-conspirator.

20

found, in Barker -- now, I understand it's a Sixth Amendment

21

analysis, alone, not of Article 10, but that 10 months was sufficient

22

for one witness being sick.

23

in dicta, said the delay can be tolerated.

Your Honor, actually, from

And then it was a 4-year delay for -- to work out
The court -- the Supreme Court even

And that's why the court also, kind of

6159

A delay cannot be

10056

1

tolerated for an ordinary street crime, but it's considerably--the

2

waiting process for an ordinary street crime versus a complex

3

conspiracy charge, it gets back to the balancing test.

4

Additional circumstances unique to Article 10 analysis of

5

the first factor are whether the accused was informed of the

6

accusations against him, whether the government complied with the

7

procedures relating to pretrial confinement, and whether the

8

government was responsive to requests or reconsideration of pretrial

9

confinement, Schuber.

10

Your Honor, number two, reasons for the delay, the second

11

major factor, again, citing Barker, different weight should be

12

assigned to different reasons.

13

the court, in dicta, said, "The deliberate attempt to delay the trial

14

by the prosecution in order to hamper the defense would be weighted

15

heavily against the government."

16

the court, there's no evidence that's been presented that that's

17

occurred in this case, a -- nor did it occur.

18

In Barker, a deliberate attempt --

Just to alleviate any concern of

A more neutral reason, such as negligence or overcrowded

19

courts, administrative reasons, should be weighted less heavily, but,

20

nevertheless, should be considered since the ultimate responsibility

21

for such circumstances rests with the government.

22

reason for delay, the Supreme Court held, is such as would be such as

23

missing a witness, would serve to justify appropriate delay.

6160

And then, a valid

Again,

10057

1

Barker v. Wingo, one witness, 10 months.

In determining whether or

2

not delay is reasonable, military courts, again, look to a key

3

component in the diligence determination in Article 10.

4

As I mentioned before, Your Honor, what helps inform this

5

court and helps inform appellate courts, starts with the pre-Burton

6

and the Burton/Marshall-era cases.

7

day presumption was in play that, if a Soldier was not brought to

8

trial within 90 days, this presumption was an Article 10 violation.

9

But, even the courts then, under that presumption, said, "A complex

Now, again, that was when a 90-

10

nature of a given case will serve as a sole justifiable basis for

11

finding extraordinary delay if the complexity was proven to cause the

12

delay,"

13

and the -- in that case (Cole) Your Honor, was unusual forensic

14

investigation/preparation for trial.

US v. Cole, C.O.M.A., 1977.

Complexity and investigation

15

Your Honor, in Mizgala, the court held -- was concerned

16

when the government counsel sat in a waiting posture, waiting for

17

formal evidence prior to preferral, waiting for release of

18

jurisdiction from the civilian courts, seeking evidence of off-post

19

offenses, seeking litigation packets for drug offenses.

20

court, even in that case, explained that, even if in a waiting

21

posture, those reasons had to be balanced with all the facts.

22

there's no evidence that the government, in this case, ever sat in a

23

waiting posture during the pretrial life of this case.

6161

However, the

Certain

Ma'am,

10058

1

events or issues had to be resolved, but the case continued to move

2

forward concurrently across all the different lines and the

3

government, later this morning, will be briefing the Court on those

4

different lines and with a summary of the facts for those lines.
Your Honor, the defense requests A.C.C.A. held in

5
6

McCullough, where the defense requests government action which

7

necessarily requires reasonable time to answer or accomplish the

8

task, then the defense waives government speedy trial accountability

9

for those periods of time.

Also, as recent as Taylor, Navy-Marine

10

Corps Court of Criminal Appeals, 2010, the defense may not be a

11

source of a request for government action which necessarily requires

12

time to accomplish, then claim the government is in violation of

13

speedy trial.

14

MJ:

Are there any cases, Major Fein, where -- I understand the

15

position of the defense request to delay that's held that delay is

16

reasonable to accomplish what the defense wants.

17

cases that, say the defense requests a delay for lengthy reasons,

18

they get a security clearance, whatever, and it takes 4 or 5 months

19

and there's been a charge that the government hasn't moved in those

20

same 4 or 5 months ----

21

TC[MAJ FEIN]:

Yes, ma'am.

Have there been any

So, two things, Your Honor.

First,

22

just to, a point of clarification, if I may, and then I'll answer,

23

directly, your question.

McCullough and Taylor, the United States

6162

10059

1

argues, stands for not necessarily defense requested delays, its

2

defense general requests.

3

this?

4

reacts to defense's requests, pings for information, interacts with

5

the defense and answers it, the government is having motion forward

6

on the case; that's what those ultimately stand for.

7

government will point out in some detail later, in all the emails the

8

Court has had in front of her for quite some time, is that, when

9

that's occurring, there's no apparent inactivity because the defense

"We need this, we need that.

Discovery -- we want this in discovery."

Can you do

When the government

And what the

10

and prosecution are working towards trial by the prosecution

11

answering it.

12

specifically about defense delays.

13

responding to defense delay and then possibly sitting in a waiting

14

posture to answer it.

15
16

MJ:

If I understood your question properly, it was
So, Your Honor -- or government

Is that accurate?

Well, I guess my question is -- I mean, I see your point

about by working to accommodate the defense delay ----

17

TC[MAJ FEIN]:

18

MJ:

Yes, ma'am.

---- I'm just -- I'll give the security clearance for an

19

example to say, okay, you get a security clearance request in

20

January, it's -- the prosecution team does certain things to process

21

the security request, but then it goes somewhere else and somebody

22

else does it.

23

TC[MAJ FEIN]:

Yes, ma'am.

6163

10060

1
2

MJ:

So, if it takes till June for that somebody else to finish

it, and the government does nothing from January to June ----

3

TC[MAJ FEIN]:

4

MJ:

5

TC[MAJ FEIN]:

6

MJ:

7

TC[MAJ FEIN]:

8

MJ:

9
10
11
12

Yes, ma'am.

---- in any other area of the case ------- Yes, ma’am.

---- is there anything that addresses that ---There's a case directly on point, well -----

And you're throwing out names to me.

Are these all on your

brief, where I can find the cites?
TC[MAJ FEIN]:

There are, ma'am, but I'll give the cite right

now, also.
MJ:

Well, what I'd like you to do, then, maybe at the end of

13

the argument, any case that you've referenced and both sides in your

14

briefs, send me just a list of citations so I can find them.

15
16

TC[MAJ FEIN]:

Yes, ma'am, or we'll print them for you if you'd

like, then, as well.

17

MJ:

That's not necessary, but I can find them with a list.

18

TC[MAJ FEIN]:

Yes, ma'am.

So, ma'am, directly on point, but

19

not security clearances, but dealing with security issues, U.S. Air -

20

- granted, it's a United States Air Force Court of Military Review,

21

this is United States v. Mahoney, excuse me, Your Honor, it's

22

actually United v. Mahoney and Norse because it went up -- of how it

23

went up on appeal, but this -- so the cite, here, is 28 MJ 865.

6164

Your

10061

1

Honor, in this case, it was a 707 -- although under the old standard

2

-- pretrial confinement Article 10 case.

3

a regulatory rule that required if an Airman, a member of the Air

4

Force, who had an SCI clearance and access to SCI information, was

5

being prosecuted, that before they could go forward with the

6

prosecution, the United States Air Force, essentially G2, had to

7

approve, they had to send this up through the United States Air

8

Force, administratively, to have the approval.

9

only -- it's not -- it's part of the case, but conjectures about

The Air Force had a rule --

The United States

10

rules in place to ensure there's, you know, the Air Force understands

11

what it's signing up for to prosecute someone with that type of

12

access, but that was a requirement.

13

days were excluded to process SCI approval.

14

timeline in this case is that, although very little occurred, 15

15

November 1988 up to 14 February 1989 is when the request was

16

submitted, and then 14 February 1989, the request was approved down,

17

all that was occurring at that time, essentially, was the sanity

18

board and then the Article 32 hearing occurred.

19

significant time, as the court -- the Air Force Court of Military

20

Review explains.

21

posture -- although that term wasn't used back in 1989 -- was there,

22

but even then, they were applying the Marshall standard in saying, as

23

an outside agency -- which is interesting about this case is the Air

In this case, Your Honor, 91
And the evidence on the

So there is

There was time that, apparently, the waiting

6165

10062

1

Force court says, "Because the clearance process to prosecute one

2

with an SCI clearance requires Headquarters, Air Force approval, that

3

was considered an outside agency outside of the command, although

4

still part of the Air Force, and because it's outside the control of

5

the command and, thus, the prosecution, it should not be attributable

6

to the prosecution.
Now, Your Honor, granted, this is an Air Force court that

7
8

held this, but it was based off of a Court of Military Appeals case.

9

And, Your Honor, that was Higgins, 27 MJ 150, Court of Appeals --

10
11
12

excuse me, the U.S. Court of Military Appeals.
MJ:

All right, stay that -- well, you’re going to give me the

cite, so it’s Higgins?

13

TC[MAJ FEIN]:

14

MJ:

15

TC[MAJ FEIN]:

Yes.

Okay.
27 MJ 150, United States v. Air Force Captain

16

Higgins and that’s where the Court of Military Appeals ruled that --

17

or held -- excuse me -- a request that required outside command

18

requirements were not attributable to the government for speedy trial

19

purposes.

20

MJ:

So, going back to your original question, Your Honor -Well, how does that square with the one case where the -- I

21

forgot the name of it, but the sexual assault case waiting for the

22

DNA before going to the 32?

6166

10063

TC[MAJ FEIN]:

1

Yes, ma'am, I think that's here.

It's Pyburn or

2

it's -- it's Pyburn, Your Honor.

Your Honor, I think this framework

3

is very informative because the original question the Court was, "If

4

all the prosecution was doing was waiting, based off of this outside

5

agency -- or outside command, excuse me, outside command

6

coordination, all that was occurring was the waiting for security

7

clearances, would that be sufficient or would that qualify as Article

8

10?"

9

this case; multiple lines of approach, but we'll discuss that later.

So, before we keep going, there is no evidence that occurred in

10

But, specifically, we didn't reference those two cases in Pyburn,

11

Your Honor, so Pyburn was a Court of Military Appeals case, 1974, the

12

cite is 48 CMR 795, Pyburn.

13

this case, there was sufficient evidence -- that's the key to speedy

14

-- one of the many factors that can be weighed for speedy trial

15

violations, but there was specific evidence, the lab results, that

16

was not needed to go forward with the Article 32.

17

reason for the delay because that was not a major piece of evidence;

18

it was a minor piece of evidence.

19

states, "Because the medical evidence was marginal at best, we cannot

20

seriously question the relevancy of a laboratory analysis of the real

21

evidence involved."

22

available to the government and we believe investigating officer was

23

not compelled to wait laboratory results before completing statutory

And the court held in Pyburn that, in

There was no

And, specifically, the court

Nevertheless, other strong evidence of guilt was

6167

10064

1

duties under Article 32.

So the way to interpret that, the United

2

States would argue is that there was still overwhelming evidence to

3

get past an Article 32 and this was not key to the case that the

4

court would -- that -- to that level to annotate that.

5

are not factors in this case.

6

of the forensic evidence that is the backbone of this case, the

7

different -- the 22 forensic reports, all the classified material

8

that was compromised, how it was compromised.

9

the prosecution could have gone earlier on was a one -- was a chat

Those, again,

The classification reviews, disclosure

The only evidence that

10

log admission that the accused made.

11

are clearing all the forensic evidence, up to eight terabytes of

12

information was being cleared and processed both by Army CID, FBI,

13

Department of State Security Services, and then all the OCAs and I'll

14

get into that in a moment, Your Honor.

15

MJ:

16

TC[MAJ FEIN]:

Other than that, Your Honor, we

I'm not a math person, what's a terabyte?
Yes, ma'am.

The common explanation of a well,

17

first off, a terabyte is 1000 gigabytes.

A gigabyte is 1000

18

megabytes, Your Honor.

19

megabytes.

20

terabytes would equate to the entire printed volume of the Library of

21

Congress as a kind of a measuring stick.

22

at 8 terabytes of forensic data that had to be analyzed in this case.

The old floppy disc we used to use, is 1.4

But what is typically used by forensic experts is that 10

6168

So, it's just shy of that

10065

So, again, Pyburn, medical lab results that, apparently,

1
2

were inconsequential to move through an Article 32 and then the

3

Article 32 officer, delayed it.

4

court, Your Honor, because C.M.R., the Court of Military -- excuse

5

me, C.O.M.A. -- even talked about how the prosecution is responsible

6

for the speedy trial violations.

7

organizations, it's the prosecution.

8

that the Article 32 officer, because the delay incurred occurred by

9

an Article 32 investigating officer.

Pyburn is also informative to this

It's not imputed on the other
They also held in this case

So, Your Honor, we just spoke about defense request, again,

10
11

not defense request for delay, but defense request for information

12

and others interaction with prosecution.
Next, Your Honor, demand for speedy trial, the third

13
14

factor.

A defense request for speedy trial in the midst of a request

15

for a delay does not constitute a bona fide request for speedy trial;

16

that's McCullough, 60 MJ 580.

17

MJ:

What was that you just said?

18

TC[MAJ FEIN]:

Yes ma'am.

A defense request for a speedy trial

19

in the midst of a request for a delay by defense does not constitute

20

a bona fide request for speedy trial.

21

demanding a speedy trial now when the defense knows the government

22

cannot possibly succeed only to seek a continuance later when the

23

government is not ready, C.A.A.F. held may, "may believe the

6169

Also, demanding a speedy trial

10066

1

genuineness or the initial request."

So, just because a written

2

demand is submitted to the convening authority, it still has to be

3

viewed whether it is a legitimate request or not.
Fourth, and finally, Your Honor, fourth factor, prejudice.

4
5

The test for prejudice should be viewed with respect to the interests

6

of speedy trial that the speedy trial right was designed to protect.

7

This is according to the Supreme Court in Barker.

8

expressly listed:

9

incarceration, to minimize anxiety and concern of the accused, and to

The three they

in order to prevent oppressive pretrial

10

limit the possibility the defense will be impaired.

11

justice is frustrated when the accused is held in pretrial

12

confinement for an unreasonably long time, yet merely being in jail

13

is not enough prejudice in the analysis.

14

of Criminal Appeals in Proctor, 58 MJ 792.

15

MJ:

16

TC[MAJ FEIN]:

Your Honor,

That's the Air Force Court
58 MJ: 792.

What's the name of the case?
I'm sorry, yes, ma'am, Proctor, P-R-O-C-T-O-R,

17

Air Force Court of Criminal Appeals, 2003.

Your Honor, for purposes

18

of Article 10/Sixth Amendment speedy trial, the Court should focus on

19

one issue in the end:

20

reasonable diligence to bring the accused to trial, taking in

21

consideration the Barker factor we just listed.

22

was and continues to be reasonably diligent in bringing the accused

23

to trial on behalf of the command.

has the trial counsel proceeded with

6170

The trial counsel

The overwhelming evidence shows

10067

1

that there was constant motion which goes beyond the Article 10

2

standard of reasonable diligence or colloquially used forward-

3

movement.
Now, Your Honor, the prosecution would like to use

4
5

PowerPoint to kind of get through some major facts and aid the Court.

6

MJ:

7

TC[MAJ FEIN]:

8

MJ:

9

TC[MAJ FEIN]:

10

And you're going to give me a printed copy of the ---Absolutely, Your Honor.

---- PowerPoint that you're going to use?
It has already been marked.

This is Appellate

Exhibit 471.

11

MJ:

Thank you.

12

TC[MAJ FEIN]:

And, ma'am, you should have it on your screen as

Your Honor, the government has provided this PowerPoint really

13

well.

14

as a summary of key facts so that going through this, Your Honor, we

15

would be here for weeks to go through every fact that the government

16

would argue is relevant and that's why we have the written briefs.

17

So, what the prosecution has done is, essentially, providing the

18

defense and the court, ultimately, a copy of this is outline the key

19

facts and have specific citations to every -- so every fact in here

20

has specific citations provided; we'll get through that.

21

government does not intend to do is go through every single slide

22

with the court; just highlight key facts for different areas.

6171

What the

10068

1

So, first, Your Honor, the road map for this -- going to

2

talk about, really, a legend to understand how we constructed this

3

summary of the facts for speedy trial.

4

investigation, discovery, the R.C.M. 706 board, security measures,

5

the classification reviews and approvals for disclosure, OPLAN Bravo,

6

and then the actual motions practice include what the defense's

7

alleged periods of apparent inactivity.
Your Honor, first, just for understanding, anywhere in this

8
9

We'll talk about

document and during this oral argument where you see the term

10

"chronology," the government is referencing the actual stipulated

11

chronology between the parties, Appellate Exhibit 383.

12

only references an enclosure with a number next to it, then that's

13

the enclosure to the government's response.

14

-- well, it's -- excuse me.

15

339, that's the government's response; it would be the enclosure

16

number there.

17

will provide the enclosure number to the prosecution's response and

18

the email number provided.

19

number one.

If a citation

So, an example would say

The example is not appellate Exhibit

For emails that we have provided for the Court, we

20

MJ:

21

TC[MAJ FEIN]:

So, it will say, "Enclosure 1, email

So, Enclosure -- I have Enclosure 1 ---Yes, ma'am.

6172

10069

1

MJ:

Coffman -- Colonel Coffman email, 706 emails, all of those

2

are separate appellate exhibits, so that's what they're going to

3

reference?

4

TC[MAJ FEIN]:

Well, no, ma'am.

So, what the Court has from the

5

corrected copy of the government's motion with the table of contents

6

is the government has provided, first, in the original motion, two

7

enclosures of emails:

8

unclassified emails, Enclosure 2 is classified.

9

list litigation and witness testimony, the parties realized that we

Enclosure 1 and Enclosure 2.

Enclosure 1 is

Through our witness

10

needed to isolate certain emails and not just have them in random

11

order to make it easier for the Court.

12

is an enclosures list and the corrected copy table of contents,

13

Enclosure 77 are emails that are specifically between the R.C.M. 706

14

board and the parties; that solely are about the R.C.M. 706.

15

Enclosure 78:

16

emails.

17

investigating officer.

18

defense counsel and prosecution for this case from the day this

19

prosecution received the case here at MDW, 28 July 2010, to the

20

filing of the motion.

21

the real focus, there, is about the apparent inactivity to show how

22

there is constant activity.

23

categories I have just described are relevant for speedy trial.

Colonel Coffman emails.

So, with the prosecution did

Enclosure 79:

Article 32

So, this would be emails between the parties and the
Enclosure 81 is every email between the

Every email between the parties and, again,

What the government argues is that all

6173

10070

1

That's a lot of information.

So, what this briefing is going to,

2

hopefully, allow the Court to do is really isolate certain emails for

3

certain periods of time, although they're all there.

4

importantly, Your Honor, if it's a defense email that's in Enclosure

5

1 -- the original Enclosure 1, it's already been replicated in the

6

subsequent enclosures.

7

it's because it's not a defense email, it's not a Colonel Coffman

8

email, it's not an R.C.M. 706 email, it's a unique email that's still

9

in Enclosure 1.

And, more

So, if we are saying "Enclosure 1," here,

So, for a -- we'll list the enclosure number, Your

10

Honor, and then we'll give you the e-mail number next to it.

11

then, for responses to interrogatories, we'll provide the enclosure

12

and appellate exhibit of that interrogatory and question number.

13

And

First, Your Honor, this is the different theme lines as you

14

could -- the concurrent theme lines that are occurring in this case,

15

pretrial and now during trial.

16

I just went over all of those, Your Honor.

17

allows the court to see is that -- and, later, Your Honor, because

18

just spacing -- each of these stars will be explained what they are

19

in this oral argument.

20

that there was movement throughout the life of this pretrial case

21

along all these different areas and what it amounts to when you get

22

into the details is, again, constant movement, although that's not

23

the standard.

You have investigation, discovery -And what this chart

But what this shows the Court immediately is

6174

10071

First, Your Honor, investigation; so here's the first

1
2

investigative line.

Now, these are just the most macro-level events

3

that occurred and then the subsequent slides we’re going to go

4

through even more detail, but not the minutia.
Mr. Lamo's chat with the defense, Your Honor, occurred late

5
6

May 2010.

There were WikiLeak releases that were starting in 2010

7

and, specifically, at different times; these aren't all of them

8

listed here.

9

card, that's a memory card typically found in digital cameras, and

A key event, discussed later, is discovery of the SD

10

then there's even WikiLeaks releases related to this case, Your

11

Honor, post-referral.

12

MJ:

This may be a little off ----

13

TC[MAJ FEIN]:

14

MJ:

Yes, ma'am.

---- kilter, but I would like to ask, when talking about

15

WikiLeaks releases, are you talking about through different media or

16

themselves?

17

TC[MAJ FEIN]:

Well, Your Honor, it depends.

It depends on the

18

timing of the releases, it depends on what the subject matter was.

19

Some of it, you've already heard proffered by the defense during the

20

witness litigation for trial last session that certain individuals

21

would testify that or, excuse me, judicial notice litigation, that

22

certain press entities were releasing material that was given to them

23

by WikiLeaks, but that's one avenue; WikiLeaks did it themselves.

6175

10072

1

And then, even, at some point, the information was fully released by

2

WikiLeaks and others based off of a dispute within WikiLeaks.
MJ:

3

Is there anything in the enclosures of the exhibits where I

4

can look to see, I mean, when these things were released, did the

5

investigators know where they came from, or did they have to figure

6

that out?
TC[MAJ FEIN]:

7
8

Every release has been fully investigated, Your

Honor, and ---MJ:

9

I mean at the time.

TC[MAJ FEIN]:

10

---- as it's related to this case, that would be

11

in the forensic reports and AIRS and we'll citations in here, Your

12

Honor.

13

To overview the investigation, ma'am, you have the joint

14

criminal investigation between CID and FBI and Department of State

15

Diplomatic Security Services.

16

releases; we'll talk about 22 different forensic reports, 3 military

17

intelligence investigations, 3 administrative 15-6s that occurred

18

because of this case.

You have the different WikiLeaks

Now, first, for investigation, Your Honor, some key points

19
20

here:

I mentioned, before, but on 25 May 2010, Mr. Adrian Lamo

21

reported that he was online-chatting with the accused and the accused

22

was admitting disclosing thousands of classified documents.

23

here, is that it happened on 25 May, what you'll see from the next

6176

The key,

10073

1

two entries, Your Honor, is that within 2 days of that happening,

2

stateside, the United States Army CID was able to notify the command

3

and they were able to put -- to -- without knowing the full details,

4

but enough for probable cause, were able to isolate Private First

5

Class Manning to stop this from continuing to occur.

6

May, Private First Class Manning was ordered into pre-trial

7

confinement and what you'll see, there, for 30 May is the actual

8

military magistrate's finding and that is that, at this time, it was

9

unknown how much information the accused collected or how the

And then, on 30

10

information was stored, but enough within a mission that it occurred.

11

So, immediately, the United States government reacted to the report -

12

- the tip, placed Private First Class Manning under arrest and then

13

in pretrial confinement.

14

Your Honor, "16 June 2010, USDC completed the first of the three AR

15

15-6 Investigations."

16

And then, as you see from the bottom left,

Next, Your Honor, investigation continuing.

The original

17

charges were preferred on 5 July 2010 and then, on 25 July 2010,

18

WikiLeaks releases approximately 76,000 out of 90,000 records from

19

the CIDNE-Afghanistan Database.

20

15-6 investigation.

21

Honor, related to this case, occurred 22 October 2010, with

22

approximately 400,000 records from the CIDNE-Iraq database.

23

this is already in 22 October 2010, of when it's released.

On 23 August, USFI completed their

And the next major WikiLeaks release, Your

6177

Now,
On 2

10074

1

November 2010, CCIU recovered, Your Honor, an encrypted SD card I

2

spoke about before, at the accused's aunt's house.

3

analysis, because it had encrypted information on it, over the

4

Christmas time, that is when CID was able to finally view it and

5

found the entire CIDNE-Afghanistan and Iraq databases on that SD card

6

along with photos of the accused.

7

investigative time period, although Private First Class Manning first

8

was placed under arrest on 27 May 2010, it wasn't until 2 November

9

2010 that the evidence was fully found and analyzed forensically; two

10
11
12
13

And, during its

So, when you look at the

-- or one very key piece of evidence in this case.
MJ:

So you said it was found on 2 November 2010, and analyzed

on 2 November 2010?
TC[MAJ FEIN]:

No, ma'am.

It was collected by agents on 2

14

November 2010 and then it was analyzed subsequent to that in late

15

fall, early winter of 2010.

16

enclosures on how the prosecution was notified of that from CID on

17

the content of it.

18

And you'll see from those cited

Additionally, Your Honor, WikiLeaks began releasing

19

purported Department of State cables on 28 November 2010, so, up to

20

28 November 2010, the United States Government did not have a full

21

confirmation that WikiLeaks even had this information other than the

22

evidence that was still being analyzed from Private First Class

23

Manning's computers.

The forensics I've talked about already, but

6178

10075

1

this is when it started getting released to truly confirm that it

2

occurred; 28 November 2010, Your Honor.

3

February 2011 is when the Secretary of the Army investigation -- the

4

investigating officers concluded his investigation, Lieutenant

5

General Caslen.

6

preferred.

7

Guantánamo Bay detainee assessment briefs.

8

way to 20 August 2011, so this is after the additional charges were

9

preferred, WikiLeaks released more than 250,000 reported Department

And then, finally, 14

Your Honor, on 1 March 2011, additional charges were

And then, on 24 April, WikiLeaks began releasing
Again, releases all the

10

of State cables.

11

completed the classified forensic reports, number 6 through 21.

12

"Finishing it" meaning completing all forensics, marking the

13

documents properly with classified markings, and ready for us to

14

finalize and get produced to the defense.

15

classified forensic report number 22 on 20 October 2011 and then the

16

Article 32 investigation began on 16 December and then 22 December it

17

ended.

18

MJ:

22 September 2011 is when CCIU, Your Honor,

CCIU completed the

Is there any evidence or information in my -- in the

19

information that you've provided to the Court?

20

as I understand it, they found the encrypted SD card on the 2nd of

21

November 2010 and their first analyses came through ----

22

TC[MAJ FEIN]:

23

MJ:

Yes, ma'am.

So, right ----

---- in June?

6179

Apparently the CID,

10076

1

TC[MAJ FEIN]:

No, ma'am, in -- on 2 November 2010, and you'd

2

look in the actual box provided on the slide, enclosure 26, the

3

report SD card, Page 12, that citation ----

4

MJ:

Yes.

5

TC[MAJ FEIN]:

---- is the reference for the Court to look at to

6

see the timing and the different analysis that initially was done for

7

the SD card.

8

MJ:

All right.

9

TC[MAJ FEIN]:

And just to note, Your Honor, when looking at the

10

different forensic reports, they all are co-mingled because it's the

11

same digital forensic evidence; it all stems back to Private First

12

Class Manning's personal Mac computer he had in his CHU that was the

13

main method of transmitting information.

14

other information from his SIPR computer, the other main device used

15

in the workplace, until those were fully analyzed and all the

16

approvals for that information, the rest of the reports could not be

17

disclosed either and we'll get to disclosure approvals later, ma'am.

18

So, until that device and

So, ma'am, just to overview again, when we talk

19

investigation, these are the different investigations that are

20

occurring in this case from the day Mr. Lamo reports Private First

21

Class Manning all the way to today and tomorrow with subsequent

22

releases because, even as of today, Your Honor, WikiLeaks has not

6180

10077

1

released material that there is evidence that Private First Class

2

Manning compromised.
Now, Your Honor, discovery.

3

Your Honor, this slide --

4

just, again, the macro-slide to show the different themes -- or,

5

excuse me, not the themes, the major issues that are concurrently

6

occurring, is discovery coordination began back in -- with the trial

7

counsel in Iraq and CID, here in the states, during the initial

8

report.

9

enforcement and the prosecution, PSRs (Prudential Search Requests)

There were multiple preservation requests done by law

10

were sent and then the prosecution reaches out to 50 different

11

organizations.

12

get to the about 10,000-foot in the subsequent slides.

13

dots or stars, Your Honor, our discovery productions that were done

14

in this case.

15

in Iraq, but this is all the ones that the prosecution, here in MDW,

16

did and, again, there will be more detail, later, on that.
MJ:

17

Again, the -- this is the 50,000-foot level; we'll

There is one missing and that was the initial one done

Okay.

I guess I just -- I thought the bulk of the

18

discovery came in November.

19

----

20

TC[MAJ FEIN]:

21

MJ:

22

TC[MAJ FEIN]:

23

All the green

Is that -- in either October or November

No, ma'am, what ----

---- of 2011.
---- when you look at sheer numbers -- the number

of pages, that is accurate because those are the forensic reports and

6181

10078

1

all their enclosures; it’s about 330,000 pages.

2

was rolling from starting on 10 -- I think it's 10 October 2010,

3

we'll get to that in a moment all of our discovery production.

4

it was on a constant basis starting in October once we actually

5

understood "we" being the prosecution in this case, here at MDW, that

6

understood what information was there, what we had approval to turn

7

over and not, and then whatever we could, we pushed out the door

8

immediately and the emails show that too, between us and defense.

9

But, the discovery

But

So, overview of discovery, Your Honor, it's broken into, of

10

course, to major time periods:

11

topics you would cover right now for pre-referral facts.

12

highlight, you just asked about productions, there are 42 pre-

13

referral discovery productions, it's listed in enclosure 18, 33 of

14

unclassified discovery, and 9 productions of classified discovery.

15

pre and post-referral.

These are the
Just to

For post-referral, Your Honor, there were 42 discovery

16

productions, oddly, up to the point of this -- putting this together,

17

the same number; 18 unclassified and 24 classified.

18

that the prosecution as outline later in discovery was to provide

19

ultimate transparency to the defense, even in a classified setting.

20

And what's evidenced by that, Your Honor, is the 526,000 plus pages

21

of discovery produced, 437,000 of it was classified, and, in this

22

case, Your Honor, in this case with this amount of information, there

23

is less than one percent of the pages that redactions were applied

6182

And the goal

10079

1

for purposes of national security or in one document under R.C.M.

2

701(g).

3

all the discovery with full access with proper security clearances,

4

facilities, and equipment.

The defense received the full disclosure of 99 percent of

So, first, Your Honor, inter and intra-agency meetings;

5
6

again, this is 10,000-foot mark, just to orient the Court.

On early

7

August 2010, Your Honor, trial counsel at MDW began discussions with

8

the FBI, Department of State, DIA, and an OGA, as evidenced -- or

9

cited in Enclosure 57 and Enclosure 3.

13 January 2011, Your Honor,

10

trial counsel began communicating with ODNI and later learned of

11

ODNI's maintaining intel-linked logs, a very key piece of evidence in

12

this case.

13

or law enforcement became aware of their existence, but it's through

14

the meetings discussing equities that the prosecution and law

15

enforcement learned of this information.

But it wasn't until January of 2011 that the prosecution

Trial counsel first met with NCIS to discuss any records

16
17

relating to the accused or damage on 2 February 2011.

18

2011, again, WikiLeaks released more than 250,000 Department of State

19

cables.

20

and intra-agency coordination.

21

20 August

Well, 10,000-foot, just showing the different type of inter

Search and/or preservation requests:

Very first, Your

22

Honor, 30 September 2010, is when CID submitted a Preservation

23

Request at 2/10 Mountain.

That's a key event because 2/10 Mountain

6183

10080

1

redeployed from Iraq in late July/August time frame and when they

2

arrived back to Fort Drum, CID was waiting there to search again in

3

the conexes of packed up equipment.

4

Iraq; they went back there and that is documented in Enclosure 24 to

5

Appellate Exhibit 16.

6

MJ:

7

TC[MAJ FEIN]:

8

They did the initial searches in

And what's the date that Drum -- that the unit redeployed?
Your Honor, the unit started redeploying in late

July and they were fully out of Iraq in August 2010.
MJ:

9

Okay.

TC[MAJ FEIN]:

10

And the conexes arrived -- of course, the conexes

11

arrived weeks after the unit arrived back in CONUS -- arrived on or

12

about that September time frame because CID was there and that's

13

evidenced in the memo we've provided, signed by Special Agent Ames in

14

the Perseveration Request saying, "We searched everything here, but

15

if you find anything else after this point, we want you to preserve

16

it."

17

the -- we've called the Prudential Search and Preservation Requests

18

to different organizations; we've provided examples to the court and

19

defense.

20

after CID submitted its Preservation Request, the defense submitted a

21

Preservation Request for hard drives in theater.

22

October, the prosecution sent out multiple -- sent out that request

23

with its own request to implement it and what's been provided to the

25 May 2011 is when this trial counsel team sent what's called

21 September 2011, defense so, one year, almost one year

6184

Those, on 4

10081

1

court in our motion are the different responses including from three-

2

star general, the ARCENT commander, saying there are no theater-

3

property equipment computers remaining that could be identified.

4

There were [sic] a box of hard drives that we have already litigated

5

in this case, found at 2/10 Mountain and CID and FBI had already

6

preserved and we've already produced anything that's relevant any

7

pieces of evidence.
Discovery requests:

8
9

requests.

Your Honor, pre-referral discovery

The defense has submitted multiple discovery requests, all

10

annotated on the joint chronology.

11

would like to highlight here is every blue line on this timeline is a

12

prosecution discovery production.

13

rolling production, there's slides later that actually list the

14

dates, Your Honor and its Enclosure 16 of the prosecution motion but

15

when you line these up, there were productions occurring the entire

16

time.

17

MJ:

18

TC[MAJ FEIN]:

The only thing the prosecution

And when, earlier, I mentioned

Are you producing what they've asked for or something else?
Some of what they ask for, Your Honor, and other

19

-- not what they're asking for if it’s not sufficient and the

20

prosecution is responding, not to each individual request, but it

21

does provide consolidated requests explaining, not enough

22

specificity, not a proper legal basis, already produced, does not

23

exist, kind of the buffet of optional answers on what the ground

6185

10082

1

truth is so we know, either what needs to be litigated once we get to

2

Court or what doesn't exist and really help -- ultimately help the

3

defense focus in their requests.

4

knowledge, no subsequent requests were submitted with more

5

specificity or a different legal bass.

6

front of the Court.

Unfortunately, the best of our

Those were all done later in

So, next slide, Your Honor, again, just to highlight, 8

7
8

November 2011, based on defense requests, that's when the trial

9

counsel presented its case in chief and sentencing case to the

10

defense.

So, on 8 November, and you do see the three major

11

productions that occurred right before that, that is when the

12

prosecution sat down with the defense and briefed its entire case;

13

we'll talk about that -- or I'll brief that in a moment, Your Honor.

14

On 18 November was the second briefing, I'll get to that in a moment

15

as well, and on-going discovery productions.

16

post-referral discovery requests via email.

17

slide is really to show an example to the Court on how the defense

18

made multiple requests, even informal ones over email to the trial

19

counsel throughout the life of the case, but this is just focusing on

20

post-referral and outside the court's knowledge, and the TC answered.

21

So, here is examples of different emails and explaining the standard.

22

"I would like this damage assessment or an unclassed version," back

23

and forth and all of those have been provided to the Court as well

6186

Your Honor, this slide,
The purpose of this

10083

1

with citations.

The continuance of that, Your Honor, and just to

2

highlight a few, first, on 27 June 2012, so while we're -- around the

3

time we're in here during an Article 39(a) session, defense requested

4

CYBERCOM records for the first time.

5

trial counsel submitted its prudential search requests and

6

preservation to CYBERCOM at that point because that's what defense

7

had requested and found the material of subsequent litigation that

8

ensued.

9

viewed as discoverable under Giglio through email and the trial

On 3 July so, within a week,

On 12 August 2012, defense inquired what trial counsel

10

counsel responded what it viewed and defense even requested a copy of

11

our Giglio request that we submitted to agencies to do these

12

background-type searches and the prosecution gave that to the

13

defense; and all that while productions are still occurring.
Now, productions, Your Honor, this is really just -- it's a

14

It's all in Enclosure 18, excuse me, I said 16

15

lot on the slide.

16

before.

17

it's much more detailed in Enclosure 18 for the Court, so I'm going

18

to jump through all of these, Your Honor.

But these are all the different discovery productions and

19

MJ:

20

TC[MAJ FEIN]:

21

MJ:

22

Before you do that ---Yes, ma'am.

---- I notice here you have on the 11th and 15th of June,

the defense is requesting the prosecution prepare and produce

6187

10084

1

unclassified versions of the classified damage assessments.

2

go to the agencies involved?

3

TC[MAJ FEIN]:

Yes, Your Honor, it went to the agencies involved

4

and, at that time, the agencies all came back and said "no."

5

one agency did provide a summarized version.

6

MJ:

7

TC[MAJ FEIN]:

Did that

I think

Okay.
And of course, that issue might be revisited,

8

depending on current litigation.

So, again, discovery productions,

9

Your Honor, Enclosure 18 is the best resource for that.

Additional

10

discovery:

highlights here, Your Honor, 15 July 2012, so, while we

11

are in -- the case is referred.

12

files and the results of prudential search requests, trial counsel

13

affirmatively requested, as I mentioned before, Giglio material from

14

government organizations.

15

witness list was published and then, within approximately a month of

16

that time, the government asked all the organizations for those

17

witnesses on 15 July and later, depending on who it was from

18

ambassadors to privates to do background searches based off those

19

requests that we shared with the defense later.

20

prosecution disclosed R.C.M. 914 material to the defense and did it

21

again on 12 December 2012.

22

highlights that an argument for speedy trial purposes, especially

23

under Article 10, Your Honor, is that there were -- there was great -

In addition to searching its own

So, on 22 June 2012, the first government

On 15 October, the

And the reason the United States

6188

10085

1

- the prosecution went through efforts to expedite discovery in this

2

case, considering how complex it is and far-reaching this case is

3

across the United States government.

4

Prudential Search and Preservation Requests.

5

the additional charges were preferred and after the prosecution moved

6

and this is in the prosecution's interrogatory responses, after the

7

initial charges, or the additional charges were preferred -- so then

8

the actual charged documents were identified by the command, I -- the

9

battalion commander who preferred charges, based off his reasonable

Examples of that is the
After the charges --

10

belief -- or, excuse me, his proximate cause, then the prosecution

11

immediately went to finalize and formalize the classification

12

reviews, which we'll talk about in a moment, then moved for

13

disclosure of evidence.

14

get ahead of discovery and ask all the relevant organizations that we

15

had a belief had information related to this case to search their own

16

records, preserve them, and give them to us or make them available

17

for us to review.

18

this case that that occurred at different times with the last being

19

the Department of State, but the majority of it -- the super-majority

20

of it was coalesced way before referral and the prosecution could be

21

able to start reviewing it in order to expedite any discovery issues

22

once the case was referred at court-martial.

And then the third step, Your Honor, was to

Now, granted, there is no question litigation in

6189

10086

1

As mentioned before, including efforts to expedite

2

discovery on 8 November and on 18 November, Your Honor, of 2011, the

3

prosecution sat down with PowerPoint for approximately 3 hours and

4

briefed the entire defense team, including their experts.

5

second, with Private First Class Manning, himself, and Mr. Coombs at

6

Fort Leavenworth, the prosecution flew out there to brief the plan of

7

the entire case and all our evidence, 99 percent of our evidence on

8

how we're going to prove these charges as they still stand today, on

9

the charge sheet and ordinary sentencing case to the defense.

And then,

So,

10

this no question on 8 November 2011, that the entire defense team at

11

that time, although some members have changed, were on notice of any

12

potential discovery issues and what organizations to go to as we

13

presented the forensic reports on 4 November, all the forensic

14

evidence, at that time, and then we explained how we intend to use

15

that; twice.

16

contested Article 32 that lasted 9 days.

17

discovery and moving this case forward prior to trial.

18

Post-referral efforts to expedite discovery:

19

Your Honor, as the Court knows, requires disclosure only after a

20

witness testifies because if a witness ends up not testifying, it's

21

not relevant and doesn't have to be disclosed.

22

in order to minimize delay, voluntarily stood up for this court and

23

the defense and said, "We intend to disclose any 914 material we have

And then, of course, the third time would be a fully

6190

Again, a way to expedite

R.C.M. 914,

But the prosecution,

10087

1

ahead of time so there will be no surprises at trial that the -- this

2

prosecution is aware of."

3

course, as we go forward along with Giglio.

4

already mentioned, Your Honor, briefed full disclosure of classified

5

information except for the limited 505(g) litigation that's occurred.
Summary of slides, Your Honor:

6
7

MJ:

9

TC[MAJ FEIN]:

11
12
13
14

And then, as I've

Now, Your Honor, R.C.M. 706

board ----

8

10

And that's a continuing obligation, of

MJ:

Before we get there ---Yes, ma'am.

---- are you going to talk to me at all about the emails

for the Article 13 motion?
TC[MAJ FEIN]:

Yes, ma'am.

I guess -- do you have a specific

question, Your Honor?
MJ:

Yes, 64 of them were -- we had a timeline set for that in
64 of them were disclosed, I believe it was the day -- the

15

August.

16

night before the defense had to prepare a response.

17
18

TC[MAJ FEIN]:

Yes -- well, before they actually filed their

motion, yes, ma'am.

19

MJ:

Okay.

Tell me what happened there.

20

TC[MAJ FEIN]:

Yes, ma'am.

So what happened there, ma'am, is

21

the -- once Private First Class Manning was moved out of Quantico,

22

the prosecution well, the prosecution realized well before Private

23

First Class Manning moved out of Quantico, that there would be a

6191

10088

1

likely Article 10 litigation that would ensue.

The defense already

2

said it to us and, even from our own emails to Quantico, said, "You

3

need to make sure your ducks are in a row."

4

we submitted a preservation request for all documentation that they

5

would have related to that case.

6

summer of 2011, the prosecution received that information and it was

7

received on a rolling basis that culminated in December of 2011.

8

Some of it included emails from certain individuals, others didn't.

9

The prosecution did not, specifically, request emails at all.

So, once he was moved,

From that point, Your Honor, the

In

10

fact, the prosecution, other than based off any type of request, has

11

never requested emails in discovery, I simply -- documentation and

12

others.

13

litigation, we reviewed and we disclosed all the material we received

14

the documents, but we did not review the emails because we felt, at

15

that time, Your Honor, there was no reason to spend the time to

16

review the emails if they weren't going to be relevant for any reason

17

and there was no pending defense request for emails from Quantico.

18

Defense requests and I know we've litigated this multiple times, but

19

defense requests are what inform, discovery requests is what informs

20

priorities for the government.

21

exactly what they're looking for, the government -- the prosecution

22

is forced to figure out priorities.

23

Your Honor, that we're setting out here, when you look at between

We received that material and, in preparing for Article 13

Absent a defense request to know

6192

And if you look at the timeline,

10089

1

August 2011 getting the FBI file August 2011, processing over 40,000

2

pages of the FBI classified file in an unprecedented manner.

3

FBI, typically, never discloses their file to even U.S. attorneys and

4

they gave us a copy to search for Brady processing that, processing

5

what we knew was going to be discoverable DIA material and moving

6

forward for the Article 32, preparing two briefings for the defense,

7

and all the other matters that we're discussing today at the macro

8

level and this briefing and that's evidenced through the file the

9

prosecution had to prioritize and did prioritize.

The

The reason the

10

prosecution looked at the email would be for any other reason and

11

that's for Giglio or Jencks purposes.

12

When the prosecution had to provide its witness list, the

13

prosecution went through the emails to figure out which witnesses it

14

was going to call or not call as outlined to the Court in previous

15

litigation and that's what occurred.

16

well -- that -- it happened 2 days before.

17

one day before and he didn't -- emailed them out that night -- late

18

night when defense asked for them immediately, emailed them out,

19

continued reviewing them, and then litigation ensured.

20

prosecution didn't review it because there was no reason to review it

21

because of everything else going on.

22

became ripe, we did.

There's no question that it -We notified the defense

So, the

And then once the requirement

And that's the point, here, Your Honor, and I

6193

10090

1

think that's the point that's missed.

2

defense request for emails.

It wasn't -- still was not a

The prosecution reviewed the material affirmatively because

3
4

we had it, understood its obligation, and did it and then notified

5

the defense we found the material and then litigation ensued.

6

wasn't a surprise of 914 that we're at trial, the eve of excuse me,

7

the Article 13 motion, Colonel Choike is on the stand and after he

8

testified, prosecution turns around, hands this packet of emails to

9

the defense like this and says, "Here you go," 914.

10

MJ:

What's the government's position?

It

Was there any obligation

11

to look at this for any kind of discovery under R.C.M. 701, material

12

of preparation of defense case?

13

TC[MAJ FEIN]:

Your Honor, the government would argue when--

14

excuse me one moment, Your Honor.

Your Honor, under 701(a)(1), it's

15

papers accompanying charges, convening authority statements.

16

accompany (a)(2), "Documents, tangible objects, reports.

17

papers, documents, photographs, tangible objects, buildings, or

18

places, or copies of portions thereof, which are within the

19

possession, custody, or control of military authorities," emails are

20

not that.

21

that emails are analogous to statements; that's what 914 talks about.

22

We did this -- we had this litigation in front of this Court for the

23

grand jury testimony.

Papers

Any books,

This goes -- this is very -- the government would argue

I mean, that is what 914 is there for and

6194

10091

1

that's why -- the point that's missed here is that there were no

2

surprises.

3

of the unfortunate time, that defense was surprised.

4

stipulates to that.

5

file their motion, that would have been fine.

6

their exhibit, but the government hadn't opened the exhibits and I

7

don't even think at that point the government had received the

8

exhibits.

Yes, there's no question, in a snapshot of time, because
The government

And if the defense had asked for more time to
Yes, they had pre-sent

They could have asked for more time and chose not to.

9

But

10

there was no surprise for the overall court-martial process.

11

real surprise would have been, again, under the rules that's allowed,

12

to turn around and just hand it over under 914.

13

government has tried from the beginning to minimize, to eliminate any

14

surprises and I think that would be a good example of how that

15

occurred prior to testimony of when the surprised reaction occurred.

18
19
20

But, again, the

So, Your Honor, going back to R.C.M. 706, again, more --

16
17

The

multiple events we'll get into, but---MJ:

Well, before you get there, do you believe you had any

obligation to search those emails for Brady material?
TC[MAJ FEIN]:

Well, Brady wouldn't -- it's Article 13, so, no,

21

Your Honor.

I mean, there would be no exculpatory information to --

22

exculpatory information of why Private First Class Manning did or did

6195

10092

1

not commit any violations.

We had his weekly reports that we

2

reviewed every week from the -- from Quantico that summarized it.
Now, if they say he made a confession that said he did it

3
4

or didn't do it, then sure, there would probably be something we

5

would -- we had no notice that were no, I think, reasonable belief it

6

would exist and sentence mitigation there's no evidence that they

7

have any it's Article 13, again, Your Honor.

8

minimized his sentence.

9

not for Brady purposes.

10

MJ:

11

TC[MAJ FEIN]:

It's not evidence that

Granted, Article 13 minimizes sentence, but

Okay.
So, Your Honor, overall, the Iraq trial counsel

12

and chain of command searched for a provider in Iraq.

13

Class Manning was moved to MDW, the prudential or, excuse me, the

14

preliminary classification review was ordered, it was concluded at

15

the end of December, and the 706 concluded in April.

16

more details, the 706, the defense requested.

17

search for facility and board members.

18

Private First

Now to get to

There had to be a

Now, some specific highlights here, Your Honor, on 11 July

19

2010, defense -- the prior defense counsel in this case, in Iraq,

20

requested a delay of the Article 32 for the R.C.M. 706.

21

the Article 32 IO denied that request.

22

requested it again and it was approved by the Special Court-Martial

23

Convening Authority in Iraq.

On 12 July, the defense

On 12 July excuse me.

6196

On 11 July,

As you can see,

10093

1

Your Honor, in Iraq, the trial counsel and command tried to assemble

2

R.C.M. 706 in theater but they could not without affecting combat

3

operations and they reached out to find an alternate location to hold

4

the 706, to have the requisite board members.

5

contributing reasons that Private First Class Manning was moved out

6

of the theater and the other was, as you've already heard the

7

testimony of and seen the documentation was to provide him the proper

8

mental health care he required.

That is one of the two

Now, Your Honor, the time frame -- or continuing 11 July to

9
10

17 September, on 5 August, the defense notified trial counsel that

11

the accused would not divulge information during the 706 board. On 5

12

August.

13

that he would divulge classified information and it would be at the

14

TS-SCI level.

15

need to figure out to what extent clearances need to be provided.

16

"SCI" means Sensitive Compartmented Information.

17

needed to be read onto?

18

government had no working knowledge of what it was.

19

Your Honor, is the development of this preliminary classification

20

review that was modeled, ultimately, after defense provided input

21

after an R.C.M. 706.

22

Enclosure 42, it was ultimate questions were presented to the defense

23

experts and they just needed to answer with very generic answers.

On 26 August, with the new defense counsel, we were notified

So, with that notification, Your Honor, the government

What compartments

I mean, this is a need to know basis and the
So, what ensued,

As the Court has already seen in the enclosure,

6197

10094

1

So, the superseding order was ordered on 22 September 2010.

On 21

2

October -- between 21 October and 1 November, defense submitted a

3

request for discovery in order to aid their security experts in

4

conducting this review and on 19 November excuse me, Your Honor.

5

19 November, the trial counsel emailed the defense what portions of

6

what they asked for which were security classification guides in

7

order to properly review the material.

8

security experts finished their review.

9

purposes of this preliminary classification review is to determine

On 13 December, the defense
And, again, one of the main

10

what the highest level clearance likely needed and access for all

11

participants.

12

On

On 13 December that concluded.

Now, Your Honor, for the R.C.M. 706 board from 13 December

13

until the completion, 22 April, between 13 December and 3 February,

14

the trial counsel worked to obtain TS-SCI clearances and read-ons for

15

the entire prosecution team, defense team, R.C.M. 706 board, and the

16

Article 32 officer.

17

about how expensive and how long this process typically is, but with

18

the security -- defense security results, the prosecution was able to

19

use that with concurrence from the United States Army G2 in order to

20

expedite this process almost as fast as it could possibly occur to

21

get everyone the clearances.

22

December 2010 and 3 February unfortunately, we don't have a cite for

23

this and will provide it after this, the R.C.M. 706 board was not set

The Court heard testimony from Colonel Coffman

Also note, Your Honor, between 13

6198

10095

1

because they were changing the members based off of clearances and

2

availability from the original members that were determined in late

3

August/early September.

4

around 13 January 2010 -- 2011 that the board finally figured out

5

which three members because, again, defense requested three

6

specialized members and that's when they figured out who would be

7

available for the next few months and to have the requisite

8

clearances or didn't and we could process them and that was done by 3

9

February.

10

So, it wasn't until 13 December excuse me,

Your Honor, on 7 February 2011, defense notified the board

11

that it views the suspense of 4 weeks aspirational and that the board

12

should feel free to take the time necessary to conduct a thorough and

13

complete examination of the accused and that, undoubtedly, any

14

request for extension of time by the board would be granted; pinpoint

15

cite provided to the email from the defense.

16

board notified the trial counsel and the defense that it planned to

17

begin its testing, medical testing and its interview of the accused

18

on 16 February 2011.

19

requested to meet with the accused before the R.C.M. 706 board

20

interviewed him.

21

the documentation and, most importantly in the trial counsel's

22

declaration that has been submitted to the board and defense what was

23

occurring at this time was securing a SCIF -- an SCI Facility in

On 11 February, the

Your Honor, on 15 February 2011, the defense

Now, as the Court's already heard testimony on and

6199

10096

1

order to have this interview.

One had already been found prior to

2

the new year, but defense objected to using that facility that was

3

used for the PCRO for the purposes of the R.C.M. 706 and client

4

meetings.

5

that's what was occurring simultaneously, Your Honor; all

6

simultaneous.

7

5 March 2011, a Saturday, defense requested to meet with the accused

8

on 11 March 2011.

9

defense's own email, that he meet the accused on Saturday on a

So then, the prosecution had to find another facility and

So, on 15 February the defense made that request.

On

On 5 March, the defense suggested, in the

10

Saturday to accommodate the safety and transportation concerns of the

11

command.

12

First Class Manning is not being brought through a facility in

13

shackles facing potential humiliation and public scrutiny which would

14

be an Article 13 violation, and, generally, safety concern as you've

15

already heard testimony from Quantico officials and Colonel Coffman

16

and the members the company commander and first sergeant.

17

Honor, on 5 March 2011, a Saturday, defense made the request for 11

18

March.

19

requested to meet with the accused on 25-26 March because of the

20

increasing cost of transportation.

21

prosecution on that Monday, the next duty day because they had to

22

coordinate this, the prosecution finally got back to the defense, but

23

later in the day, saying that that date could or couldn't work and

And those concerns, of course, for Saturday is that Private

So, Your

On it 7 March 2011, the following Monday, the defense

6200

So, earlier that day, the

10097

1

then defense said, "It's too late, I need to move it."

So, that

2

moved the entire 706 interview past 25 to 26 March.

3

26 March 2011, the accused met with defense counsel at a SCIF for the

4

pre-706 meeting and then on 9 April 2011, again, a Saturday, the 706

5

board interviewed the accused in a similar facility.

6

April, the board concluded its findings.

Your Honor, on

Finally, on 22

So, Your Honor, just to recap, there was defense ultimate

7
8

request for the R.C.M. 706, both in Iraq, two times after Private

9

First Class Manning was transferred to U.S. Army MDW searched for a

10

facility and board members, has been provided that detailed

11

explanation in the prosecution's affidavit, preliminary

12

classification review was conducted, security clearances for the

13

board members was expedited, and the R.C.M. 706 board actually was

14

executed and completed.
Now, Your Honor, security measures ----

15
16
17

CDC[MR. COOMBS]:
break?

18

MJ:

19

TC[MAJ FEIN]:

20

Okay, that sounds like a good time.
Actually, Your Honor, if we could maybe do a 30-

minute lunch break?

21

MJ:

22

CDC[MR. COOMBS]:

23

Your Honor, if we could take a brief comfort

Any objection to that?
Yes, Your Honor, we won't be able to

coordinate food for our client in 30 minutes.

6201

10098

1

MJ:

All right.

Let's do this:

let's -- we're going to take a

2

late lunch today.

3

lunch at that time, and well, we'll take lunch at that time and then

4

decide how we're going to proceed.

5

for both sides?

6

We'll get through the government's argument, take

TC[MAJ FEIN]:

How about that?

Does that work

It does, Your Honor, just so we can keep pushing
The government has, actually, catered -- not

7

forward, Your Honor.

8

catered, but mess-hall food for all the military staff, so that issue

9

should be resolved.

10

MJ:

All right.

How long are they going to be here?

11

TC[MAJ FEIN]:

12

MJ:

13

CDC[MR. COOMBS]:

14

TC[MAJ FEIN]:

15

MJ:

I will find out, Your Honor.

10 minutes now is okay?

All right.

Yes, Your Honor.

Yes, Your Honor.
Court is in recess until 25 after 12.

16

[The Article 39(a) session recessed at 1213, 16 January 2013.]

17

[The Article 39(a) session was called to order at 1228, 16 January

18

2013.]

19

MJ:

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

Let the

20

record reflect that all parties present when the court last recessed

21

are again present in court.

22

challenges to us continuing through to the end of your argument?

23

TC[MAJ FEIN]:

Major Fein, are there any logistical

No, ma'am.

6202

10099

1

MJ:

Proceed.

2

TC[MAJ FEIN]:

3

security measures.

4

preliminary classification review, we've already talked about and

5

security clearances for many different individuals are involved in

6

this case, another factor contributing to it being a complex case.

Ma'am, we left off starting to talk about
Your Honor, they’re 22 protective orders, the

7

Specifically, something to highlight, on 2 September 2010,

8

that is when the defense first requested security clearances for the

9

defense team and access to classified information for the accused.

10

Between 17 September and 13 December 2010, that's when the

11

preliminary classification review occurred.

12

evidenced in the emails, trial counsel notified defense that the 706

13

board's members had all been read on to the required compartments and

14

provided an update on defense counsel's security clearance statuses.

15

And on 3 February 2011, Mr. Coombs was actually read on and the

16

prosecution assisted with coordinating having it done in

17

Charlottesville to expedite his read-on because he was there, not in

18

Rhode Island.

19

Authority issued protective orders for both law enforcement-sensitive

20

material and the Secretary of the Army's 15-6 investigation to be

21

disclosed to the defense and between May and August 2011, there's 18

22

different federal protective orders entered that the Court has

23

already had as an appellate exhibit in this case.

On 31 January 2011, as

On 22 June 2011, the Special Court-Martial Convening

6203

10100

1

Your Honor, the point of these next two slides, really, is

2

just to show that defense submitted multiple requests for experts or

3

funding for experts that ultimately all -- except for the two that

4

were denied -- that resulted in some kind of security measure being

5

taken.

6

right hardware and software so the forensic experts can do what they

7

normally do, but do it on a classified system and the government, of

8

course, paid for that so the civilian experts would not have to pay

9

out of pocket because of the security sensitive nature of this

10

One for the computer forensic experts, it was providing the

material.
Now, Your Honor, classification reviews and approval to

11
12

disclose evidence in discovery, again, this is the 50,000-foot chart.

13

Trial counsel in Iraq started beginning coordination, four more

14

requests for this went out in the March and April timeframe.

15

documents in evidence was excuse me, they were disclosed in November

16

2011 and this is an on-going -- some of these security measures --

17

classification reviews and approvals, OPLAN B, motions practice, even

18

discovery, and investigation -- that's all I'm going, today -- later.

19

So, Your Honor, I’d first like to talk about classification

Charged

20

reviews then the approval to disclose classified evidence and

21

discovery.

22

2010, the trial counsel at MDW, once the case was transferred, began

23

coordinating with DoD for classification reviews, understanding at

First, classification reviews.

6204

Your Honor, on 28 July

10101

1

the time what evidence would likely be used at trial.

2

previously stated, the investigation was still on-going.

3

MJ:

4

TC[MAJ FEIN]:

Although, as

And this was based on the original charges?
This was based off of the original charges and

5

what they -- what the -- as of 5 July 2010, the prosecution, the

6

command, and Army CID and just that approximately 30 days could

7

quickly figure out, from an initial scrub of all the -- of the few

8

devices that were collected in in Iraq.

9

course, the majority of the evidence which is outlined in all of the

That doesn't include, of

10

forensic reports such as the CENTCOM servers, the SD card, Intelink

11

logs, et cetera.

12

On 10 August 2010, trial counsel began communicating with

13

Department of State about classification reviews.

14

communication, of course, was know Private First Class Manning had

15

admitted to disclosing State Department cables.

16

its own charge, the Reykjavik cable, has already been disclosed and

17

there was evidence well, he -- there was an admission and it was

18

released by WikiLeaks, but not necessarily the forensics by that

19

time, so the prosecution did start working with the Department of

20

State and others to figure out the process.

21

in this fall time frame and that's what the declarations from the

22

OCAs and the trial counsel outlined.

23

Mr. Haggettt that doing classification reviews for criminal process,

6205

Now, this original

One cable, which is

That's what's happening

You even heard testimony from

10102

1

either federal or military, is not a standing procedure; it's not a

2

standing committee that does this.

3

DIA, Department of State, have FOIA.

4

probably in too much detail by the Department of State in their

5

response to the prosecution and defense, but FOIA focuses on

6

declassification, not classification.

7

Organizations including DoD and
That is, I think, explained

So these organizations -- the prosecution was meeting with

8

them in order to understand how to process this, especially

9

considering the volume and real-time nature of the disclosures that

10

were on-going at that time, and then balancing that, of course, with

11

the mitigation effects going in play that's outlined in the different

12

classification reviews that have been provided to the defense.

13

6 October 2010, trial counsel begin coordinating with an

14

OGA about classification review.

Early November 2010, trial counsel

15

requested Department of State do an initial sort of the purported

16

cables to determine which ones, if any, were classified.

17

was for the initial charge sheet and for a potential additional

18

charge sheet if there were going to be charges preferred.

19

Your Honor, that's the same time the first disclosure of Department

20

of State cables from when the database was stolen -- at least what

21

the government's arguing on the charge sheet -- the accused stole the

22

database and transmitted it to WikiLeaks -- didn't occur until 28

23

November 2010.

Again, this

And, note,

So, this coordination was happening before that even

6206

10103

1

occurred.

And then once that occurred, that, of course, changed the

2

way the Department of State and the prosecution and law enforcement

3

had to -- needed to view the information.

4

MJ:

What happened on 28 November 2010?

5

TC[MAJ FEIN]:

That's the very first releases, Your Honor, of

6

the State Department -- reported State Department cables that Private

7

First Class Manning stole -- or at least has been charged with

8

stealing -- from the Net-Centric Diplomacy database.

9

highlighting that -- the difference is he has also been charged with

The reason I'm

10

one individual cable at a different time, the Reykjavik cable.

11

this is the other charge under 1030 and 641.

So,

12

So, continuing on classification reviews, again, at the

13

10,000-foot level, Your Honor, early December 2010, trial counsel

14

requested the Department of State conduct an informal classification

15

review to understand what a full and formal review would require,

16

based off the volume as they were being released.

17

prosecution and commands needed to figure out is what's an

18

appropriate amount to account for the offense that was actually

19

committed and how many would be reasonable to expect to have a

20

classification review done.

21

the charge sheet is more than 200,000 cables stolen, but only more

22

than 75 transmitted.

23

be proven under 1030 knowing the amount of witnesses, knowing that

With the

What I mean, Your Honor, is what's on

So, there had to be a number between what could

6207

10104

1

classification review had to occur for that offense and that needed

2

to be figured out.

And the prosecution and law enforcement is not

3

suited to do that.

We provide input, but it is not our equity to

4

determine and Department of State had to approve.

5

happening in early December 2010.

And that started

Your Honor, 1 March 2011, the additional charges were

6
7

preferred.

On 9 March 2011, trial counsel began coordinating with

8

INSCOM about their classification review of one of the charged

9

documents.

On 18 March 2011, evidenced by all the different memos

10

that have been brought into the Court, that's when the trial counsel

11

-- we formally submitted memoranda capturing these different meetings

12

and requests to do these classification reviews to actually start

13

holding individuals and organizations accountable through

14

documentation.

15

Coordination had already been started, but that's now to start the

16

formal process.

17
18
19

MJ:

And so, that's why the word "finalized" was used.

So the coordination with these eight entities before 18

March 2011, where will I find that?
TC[MAJ FEIN]:

Your Honor, you'll find that in two major

20

locations.

It's in the OCA declarations or, excuse me, the trial

21

counsel's declarations, OCA responses to defense questions and you'll

22

also find it in the prosecutions declaration on what we did or did

23

not do at the time.

And, actually, a third location, Your Honor, is

6208

10105

1

Enclosure 1, different emails between us and those agencies that we

2

have provided to the court.

3

MJ:

Okay.

4

TC[MAJ FEIN]:

Sir, excuse me, Your Honor, ma'am, 28 July 2011,

5

the trial counsel submitted updated requests for classification

6

reviews to the major entities.

7

written requests to -and as the Court has seen and defense has asked

8

the different OCAs, the prosecution even included speedy trial

9

language so they understood the prosecution's obligation on behalf of

10

the government to reasonably move -- to have reasonable diligence and

11

move this case forward.

7 September 2011, similar requests--

Your Honor, now, just to highlight from some of the OCA

12
13

responses, here's from INSCOM:

"Trial counsel repeatedly

14

communicated either directly or indirectly with INSCOM on numerous

15

occasions during this time."

16

counsel has routinely communicated with representatives at INSCOM

17

throughout the entire matter.

18

completed as quickly as practical," you had in their responses.

Of course, these are snapshots.

"Trial

Trial counsel needed the reviews

On 6 October 2011, Your Honor, trial counsel submitted an

19
20

updated request for classification reviews to those we had not

21

received.

22

requests for classification review to ODNI.

23

any confusion, the ODNI was providing classification review on intel-

On 13 October 2011, trial counsel submitted updated

6209

Now, just to alleviate

10106

1

link logs.

That is supporting evidence, but not a charged document,

2

so that did play a different role and the trial counsel requiring

3

that or at least briefing the -- our legal analysis to the convening

4

authority of whether that was required prior to the 32 or not and our

5

analysis was that it was not.

6

declaration was in order, under R.C.M. 806, to close, if needed, the

7

hearing under Article 32 because we needed something to show the

8

national security interest involved; that's why we were asking for

9

that.

The only reason we needed the

The other reason is those logs are very extensive and,

10

frankly, the parties needed to know what and was not classified, but

11

it was not a charged document.

12

charged with compromising it to audit data.

13

MJ:

Private First Class Manning was not

Let me ask you a question, here, just going through these

14

classification reviews.

15

the assertion is that you could have gone to the Article 32 without

16

classification reviews of the charged -- the res of the charged

17

offenses.

18

TC[MAJ FEIN]:

I believe in the defense brief or somewhere

Yes, ma'am.

So, a few points to answer that,

19

Your Honor.

First and foremost, the charge sheet, itself, has the

20

word "classified" on it which requires the prosecution to prove the

21

material is or is not classified.

22

would have to provide evidence to the Article 32 officer that the

23

information was or was not classified.

6210

So, to go to the Article 32, we

10107

1
2
3

MJ:

Why couldn't you do that with just the marking on the

documents?
TC[MAJ FEIN]:

Well, Your Honor, the markings on the I mean

4

frankly, Your Honor, the defense has asked the Court to take judicial

5

notice of over classification.

6

other.

7

that has the highest standards of proof.

8

to go forward and the command -- Colonel Coffman even testified, he

9

was not going to have a court-martial of these charges if the

The two don't balance with each

This is a legal proceeding -- a criminal, legal proceeding
The prosecution isn't going

10

information was not, in fact, classified.

11

legal references, although very few, on how to prosecute a classified

12

court-martial a case for the prosecution and defense that the Navy's

13

Code 30, Code 17 publication even states that you need to have

14

clarity if something is classified or not before you move forward.

15

Now, Your Honor, just as an aside, typically, unless a Soldier is in

16

pretrial confinement, classification reviews are going to occur --

17

should occur prior to preferral so there will be no delay.

18

wasn't even an option in this case as the Court has already seen

19

under the investigation portion, this moved so fast because it was an

20

on-going threat and an on-going issue.

21

completed when -- well, the crimes, as charged, were completed when

22

Private First Class Manning was placed under arrest, but the on-going

23

releases and effects were -- are still on-going.

6211

Even the reference --

But that

The crime was not even

So, with all that

10108

1

being said, the classification reviews could not have occurred ahead

2

of time.

3

so the only way to legally, competently prove is to have an OCA, an

4

Original Classification Authority, say it is or it is not.

5

best example of this, Your Honor, the best example is the Apache

6

video.

7

after it went through the classification process, it was determined

8

to not be classified which is why the additional charge sheet, 1

9

March 2011, this prosecution and the command that preferred charges,

The prosecution had to prove the information was classified

And the

That Apache video was originally thought to be classified and

10

did not allege it being classified because we had definitive proof

11

from an OCA it was not.

12

So, the defense also argues that there could have been an

13

alternative or substitute that could have been used other than just

14

the mere markings.

15

order to do alternatives or substitutions, the classification review

16

would still need to be completed because the entity would have to

17

understand why something is classified.

18

memorialized in a 4 to 1000-page document or I think 64 pages from

19

the Department of State -- not necessarily a requirement, but that

20

was the easiest requirement in order for all parties to understand

21

and it was much more efficient because that was occurring anyways,

22

the writing to explain why something was classified or not.

23

process of the classification review still had to occur until that

You heard testimony from Mr. Haggett that, in

6212

Now, whether it is

But the

10109

1

last moment when we received it or a witness could have testified.

2

But that would happen at the same time because that witness who is

3

testifying is the OCA; he’s the one who signed the document.
Your Honor, I’m going to jump through these -- it’s

4
5

provided to the Court already and, of course it’s in the -- but other

6

comments from the OCAs or their delegates that are provided in the

7

declarations about trial counsel’s interaction with the

8

organizations.

9

some clarity, the DoD entities, originally, were coordinated through

And, just to alleviate any other -- well, to provide

10

OTJAG, that’s outlined in both the prosecutions declaration, it’s

11

outlined in our motion, it’s outlined even in the OCA declarations or

12

answers to their questions.

13

stepped in and started doing direct coordination in order to ensure

14

it was getting done.

15

necessarily a delegation, but multiple organizations moving these

16

issues simultaneously.

And then, at some point, the prosecution

But that, of course, was a way to have, not

Now, Your Honor, moving on to approvals from discovery --

17
18

or disclosure of evidence and discovery.

A few highlight, Your

19

Honor.

20

discuss the next steps for receiving their approvals to disclose

21

classified information with OCAs.

22

the additional charges because once the additional charges -- because

23

once the additional charges were sworn out, then we’d have to,

On 26 February 2011, trial counsel coordinated a meeting to

6213

That was right before Charge --

10110

1

ultimately, under 701(a)(1), provide the documentation that

2

accompanies the charges, 701(a)(2), other discovery, and then just

3

affirmative discovery, of course, our evidence.

4

1 March, the charges were preferred; 14 March, trial

5

counsel submitted written request for approval to disclose classified

6

information; that’s why on 14 March that occurred because it happened

7

after the charge.

8

and started working on that.

9

review the SECARMY 15-6 that was completed by the IO on 14 February.

We coordinated with the different organizations
15 March, trial counsel requests we

10

Once we were informed it was completed, we asked to review it as soon

11

as possible.

12

CID case file, the actual -- so here, Your Honor, the Army CID has

13

already heard forensic reports -- well, Army CID has their normal

14

investigative file; this is what is typical in every other case that

15

doesn’t deal with forensics.

16

unclassified side.

17

the unclassified case file and, after we were reviewing them with

18

other organizations, it was pointed that material in there could be

19

classified.

20

that; that’s captured in the prosecution’s declaration.

21

In April 2011, trial counsel learned an unclassified

And their file had a classified and

All the AIRS.

997 documents at the time were in

So, in April, that’s when the prosecution learned of

Between April and June 2011, Your Honor, the Army G2 Office

22

reviewed approximately 900 pages excuse me, Your Honor, over 900

23

documents of the CID case file for any equity holders for classified

6214

10111

1

information.

2

ultimately in our declaration, that information was pushed through

3

all the way to well, it was triaged out as being classified on 17

4

September 2011, the equity holders approved us disclosing those

5

remaining documents to the defense.

6

MJ:

And then, as you can see from the timeline, and

So, yes, Your Honor.

Now, are these all the documents you're talking about,

7

again, that refer to the res -- the offense -- the government's case?

8

What, if anything, was being done with the documents the defense was

9

requesting?

10

TC[MAJ FEIN]:

11

MJ:

12

TC[MAJ FEIN]:

You mean in their discovery request, Your Honor?

Yes.
Well, Your Honor, the discovery requests, as we

13

were receiving them, we processed them, and, if we have that

14

information or we were seeking the information, we sought to answer

15

it unless the government's response to the defense was, "It was an

16

inadequate request, no legal basis, no authority," whatever it was,

17

that was being provided to the defense.

18
19

MJ:

I guess the "no authority" piece is where I'm confused.

What does that mean?

20

TC[MAJ FEIN]:

21

MJ:

22

Well, Your Honor ----

That was the government's position when I first came on

board.

6215

10112

1

TC[MAJ FEIN]:

Yes, ma'am.

So, first off, the defense was

2

asking for material back that the prosecution's position, at the time

3

well, not at the time, it would still be today, but at the time

4

meaning pre-referral, pre-Article 32, the defense was not entitled to

5

because there was no legal authority to provide the information.

6

super majority of the information was outside the possession,

7

custody, or control of the prosecution.

8

either the prosecution wasn't aware of it, or became aware of it, if

9

it even existed, from the defense's request, or knew about it but had

The

Frankly, it just wasn't --

10

no authority to get it as prosecutors.

I mean, the key to discovery,

11

Your Honor, either fortunately or unfortunately, in our system is

12

referral; that's when the formal discovery obligations start.

13

there is R.C.M. 405 discovery obligations for an Article 32, but the

14

formal obligation starts at referral.

15

the amount of classified information with different government

16

organizations outside of DoD, they are not -- without a formal

17

obligation, they're not going to be disclosing material.

18

was allowed, and what we've already discussed, Your Honor, the

19

prudential search requests preservation.

20

ahead of preserving all that material which was much broader than the

21

defense is requests.

22

material or says it is relevant," as we went through that litigation

23

but, actually, most of that litigation wasn't based off of this

Now,

And when we're dealing with

But, what

The prosecution was getting

So, if the Court later rules, "Yes, this

6216

10113

1

request; it was refined requests for the Court.

When that litigation

2

happened, the material was there.

3

preserved.

4

the Department of Defense, DIA, and all the others.

It wasn't missing.

It was

The prosecution searched it and disclosed it; same with

5

MJ:

Okay.

Proceed.

6

TC[MAJ FEIN]:

So, Your Honor, on 17 September 2011, equity

7

holders approved disclosure, so this information, Your Honor, is the

8

approximately 30 documents from the CID case file, the original file,

9

out of 997 that were deemed classified.

The prosecution, once we

10

received approval that the information is unclassified over the

11

summer, disclosed the material immediately once we had received the

12

confirmation it wasn't classified.

13

documents that were; that was on 17 September.

It's only those remaining

14

Your Honor, on 4 October 2011, CID approved release of the

15

present reports after confirming nothing was classified, pursuant to

16

the CID's original classification authority.

17

the prosecution, between 4 and 26 October, processed all of their

18

reports and on 26 October sent it up to DoD for authority to disclose

19

it because it was classified.

20

prosecution's responses to defense questions.

21

trial counsel received properly marked documents originating from the

22

unclassified CID case files from those equity holders I just spoke

23

about on 17 September.

On 26 October, we --

This is outlined in more detail in the
On 27 October 2011,

On 28 October, all OCAs approved disclosure

6217

10114

1

of the 22 forensic reports consisting of the classified information

2

from their organizations; the final approvals came in.

3

4 November, the trial counsel produced the entire CID -- or all CID

4

forensic reports and on 8 November, trial counsel produced the

5

classified information contained within the CID case file.

6

what's not noted here, included with that is the forensic evidence

7

for the defense forensic experts to start reviewing; that 8 terabytes

8

of information is for them to start analyzing.

9

Honor, there is no coincidence that this was turned over on 4

And then, on

And,

Now, I note, Your

10

November right after we got the approvals.

Once we received the

11

approvals, 8 November, we produced classified information from the

12

CID case file.

13

prosecution’s case, including all this evidence and what it means;

14

330,000 pages, 22 forensic reports, the prosecution outlined all of

15

it for the defense on that same day, 8 November.

Also on 8 November was the briefing about the entire

Approval to disclose evidence and discovery continued, Your

16
17

Honor.

Only two points to highlight here is the continuing

18

obligation, it still is on-going; we discussed that earlier on the

19

record with the 22 February and 22 April notices all the way through

20

trial in case something else comes up.

21

before, effort to expedite the approval process the trial counsel

22

requests for approval to disclose classified information to the

23

defense of the original ones back in March and every subsequent one

6218

So, Your Honor, similarly to

10115

1

also included any derivative use such as law enforcement

2

investigations.

3

load approvals so once the last approval for the series of documents

4

in evidence was obtained, it all could be disclosed with no further

5

requirements.

6

receive the final CID forensic reports and then submit all of that

7

and its evidence to all the equity holders to have them all approve

8

it which would have been 6 more months.

9

front in order to expedite this.

What that allowed the prosecution to do is front-

The alternative, Your Honor, would be is to wait to

So, all that was done up

So that's a good example, Your

10

Honor, of the trial counsel in this case working simultaneously with

11

evidence equity holders, owners of the evidence, owners of the

12

information, CID and other law enforcement and DoD to approve the CID

13

reports, all simultaneously over that time that culminated at 28

14

October and 4 November.

15

Now, Your Honor, OPLAN B at the 50,000/10,000-foot level,

16

OPLAN B planning process began in May 2011.

17

signed in June of 2011 and then the Article 32 was restarted--ordered

18

on 16 November and it was restarted on 16 December.

19

OPLAN B, Your Honor, and you heard from testimony from Colonel

20

Coffman and you have the actual order and the defense does, is that

21

Colonel Coffman was not equipped as the Special Court-Martial

22

Convening Authority to hold an Article 32 of this caliber.

23

United States would argue no Special Court-Martial Convening

6219

The actual order was

The keys to

The

10116

1

Authority in the United States Army is equipped to do this, let

2

alone, likely, any General Court-Martial Convening Authority, would

3

be equipped to hold this type of trial or, at the time, Article 32.

4

And that's based off of media attention, the public's involvement and

5

security concerns both for information security and physical

6

security.

7

I think the testimony was a little unclear based off the different

8

questions from the court, defense, and prosecution is that OPLAN B

9

started in June of 2011 and is continuing through today and tomorrow.

So, Phase 1, Your Honor, of our OPLAN B and this is where

10

It is only the phase that was executed for the Article 32 that was

11

based off Colonel Coffman's order that pulled that trigger.

12

happened before that point, Your Honor, in November -- before

13

November 16th, is concept of operations began 11 May, bi-weekly

14

operation planning group teleconferences between Headquarters, DA,

15

Fort Leavenworth, United States Army MDW, and Colonel Coffman's

16

command focused on security, travel, public affairs, contracting, IT

17

support although it's debatable whether that still is occurring

18

installation management organizations across three different

19

installations.

20

32, did that start Phase 2 through 5 execution.

21

loading, Your Honor, the coordination up front, allowed the

22

infrastructure and the resources to be implemented within 30 days.

23

Otherwise, it would have taken, again, months in order to get the

So, what

Only when Colonel Coffman ordered OP -- ordered the

6220

So, the front-

10117

1

infrastructure, the Army contracting and everything else expedited.

2

All that was expedited ahead of time and just needed time to actually

3

set up.

4

includes the trial that's still on-going -- or shall today, for the

5

military service members.

6

trial process, Your Honor, in OPLAN B started in May 2011 and it was

7

basically -- it was based on having the right resources in place.

So, again, efforts to expedite the overall

Now, Your Honor, motions practice.

8
9

And Phase 5, in the original branch plans, Your Honor, that

This is, I think, quite

easy for the record because the record is so great in size this

10

started, of course, at referral and, just as a summary, over 450

11

appellate exhibits, eight Article 39(a) session, which as of, I

12

think, today, 37th day in motions practice actually before the court.

13

More than 30,000 pages have been used in motions practice,

14

unclassified and classified, between the filings, the enclosures at

15

organizations that the Court has had to review, 27 different

16

witnesses and more than 8 ----

17

MJ:

How many pages did you say?

18

TC[MAJ FEIN]:

More than 30,000, Your Honor.

So, that's not

19

just including what's before you know, what's actually in the court

20

reporter's boxes and what would be in the record -- well, it will all

21

be in the record of trial, but that also includes that other

22

organization's more than 80 hours of testimony.

6221

10118

1

Finally, Your Honor, the last category to discuss is

2

defense's alleged periods of in activity under Article 10.

3

all the different periods; I'm going to go through each one briefly,

4

Your Honor, very briefly.

5

These are

Your Honor, the first, 31 May 2010 to 5 July 2010, just a

6

few to highlight, Your Honor.

Again, this is only a -- I would say -

7

- I've been using 50,000 and 10,000-foot, Your Honor; this is about a

8

1,000-foot view of fact.

9

to make it only this, but the record, I think, is replete with

We had to fit them all on one slide, chose

10

examples here.

11

meeting with diplomatic security services.

12

counsel contacted USF-I SJA to discuss the plan for moving Private

13

First Class Manning to a long-term facility.

14

charges were preferred.

15

Honor, if charges are preferred on 5 July, there is activity from the

16

trial counsel in Iraq in order to put a chart sheet together, in

17

order to have an initial investigation, and in order to brief

18

commanders up to the level of probable cause of what did or did not

19

occur at that time, based off the facts known.

20

So, Your Honor, June 2010, trial counsel begin
30 June 2010, trial

5 July, the original

Inherent, Your Honor, or implied, Your

The next period of time, Your Honor, 11-15 July, trial

21

counsel requested assistance in locating an actual provider for the

22

R.C.M. 706 in Iraq.

23

discuss the way for that to actually happen in Iraq.

Mid-July, trial counsel met with DoJ and CID to

6222

And then they

10119

1

met CID and other law enforcement organizations in Germany during

2

that time and that's provided in a memorandum from the Iraq trial

3

counsel.

4

for classification reviews.

28 July 2010, trial counsel requested assistance from DoD

The next period of -- alleged period of inactivity, Your

5
6

Honor, now jumping to Spring of 2011.

23 April 2011, trial counsel

7

notified defense it was identifying a neuropsychologist in the

8

vicinity of Fort Leavenworth, based off of the defense's request for

9

that.

2 May, trial counsel requested authority to disclose the

10

SECARMY 15-6 to the defense.

5 May, trial counsel had a phone

11

meeting with the defense to discuss progress and updates.

12

meeting with DoD to discuss their prudential search request to

13

explain what we needed done and how they -- we recommended they do

14

it.

15

specifically.

16

occurred between prosecution and defense including 2 emails with the

17

Article 32 IO, himself, spanning 14 duty days.

18

Your Honor, there; emails number 494 through 517 at the bottom.

19

The next period of -- alleged period of inactivity, I

9 May,

12 May, discovery productions occurred; the USF-I 15-6,
And then in -- during this time, Your Honor, 23 emails

And that's the range,

20

apologize for all the bullets, Your Honor, but, again, just highlight

21

four.

22

assigned counsel.

23

16 May 2011, correspondence with defense relating to newly

MJ:

For the prosecution or the defense?

6223

10120

1

TC[MAJ FEIN]:

The -- for the defense, Your Honor.

25 May,

2

trial counsel submitted a prudential search request to multiple

3

organizations.

4

an update of the classification review.

5

and then, during this time, Your Honor, 43 different defense emails

6

including 5 emails with the Article 32 IO, spanning 24 duty days.

7

The defense has alleged a period of inactivity of the prosecution.

8
9

3 June, trial counsel contact Department of State for
The discovery production --

Your Honor, our next period -- or alleged period, to
highlight a few.

22 June, trial counsel provided defense two

10

protective orders for unclassified information and discovery and

11

provided updates on their paralegal support.

12

requested authority from FBI, DoD, and DIA and OGA to disclose

13

information and discovery production of over 8,000 pages occurred

14

during this time and then 44 defense emails including three with the

15

Article 32 IO spanning only 10 duty days.

16

over 10 days.

17

23 June, trial counsel

So, upwards of 44 emails

Your Honor, the next period, 18 July, trial counsel

18

responded to defense inquiries regarding the multiple protective

19

orders to explain issues they have.

20

search request, the prosecution actually reviewed the draft tasking

21

letter from DoD before it went out to make sure it was accurate from

22

what we were requesting.

23

Enclosure 1, Your Honor, in the email, Email Number 553.

21 July, again, the prudential

25 July and that's captured in the

6224

25 July, a

10121

1

discovery production of 3,000 pages during this alleged apparent

2

activity.

3

And then 40 defense emails spanning 15 duty days.
Next, Your Honor, trial counsel submitted, on 28 July,

4

updated requests for classification reviews.

1 August, trial counsel

5

notified defense of additional classified information found on the

6

accused's personal computer as of 1 August 2011.

7

2011, the trial counsel requests to disclose charged documents and

8

defense submitted an expert request and there was a discovery

9

production of 6,000 pages during this time.

4 and 9 August

Now, Your Honor, just to

10

highlight, when the prosecution is producing discovery, there's a

11

process that goes in -- that's involved.

12

there's work going on in the days preceding 6,000 pages being

13

produced; it's not just a one-day process.

14

requests approval to disclose the entire FBI case file where he

15

discussed how, after that, we received a copy for Brady purposes.

16

August, trial counsel updated defense on multiple issues including

17

their security experts and travel.

18

time, Your Honor, 24 duty days, there was 167 emails between the

19

defense and prosecution related to this case, including two emails

20

with the Article 32 IO.

21

So, implied there is

15 August, trial counsel

22

And then, during this period of

Your Honor, the next period of time, 31 August 2011, trial

22

counsel responded to the defense's concerns regarding experts,

23

another discovery production on 1 September 2011 of 400 pages.

6225

On

10122

1

19 September, another discovery production of 77 pages.

2

21 September 2011, that's when defense submitted their preservation

3

request and the court's already seen in the previous timelines on the

4

prosecution processing that within a week and a half and working with

5

down range and other organizations to actually answer those --that

6

request.

7

including two with the IO -- Article 32 IO.

And, during this period of time, Your Honor, 61 emails

Your Honor, 29 September to 27 October, the next period, on

8
9

And then on

the very first -- the second day of this period, defense requested

10

supplies from the prosecution, the prosecution provided the supplies.

11

3 October, approximately 12,000 pages produced in discovery and

12

that's also when the prosecution received the final reports.

13

Honor, on 6 October 2011, trial counsel explained to the defense that

14

the purpose of the presentation to the defense of its case in chief

15

was to "Orient you to the facts of the case, layout of the report,"

16

so it was the forensic report, "and give a brief overview of the

17

prosecution's case" to "speed up the pretrial process and minimize

18

any future delays.”

19

and then the defense asked for it twice.

20

MJ:

Your

That was the whole purpose of what we offered

Talk to me about the one above that, that you requested the

21

damage assessment.

Was that in response to what the defense asked

22

for or was that something you initiated yourself?

6226

I thought you told

10123

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
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
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
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

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
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

Inside of Back Cover

e-Highlighter

Click to send permalink to address bar, or right-click to copy permalink.

Un-highlight all Un-highlight selectionu Highlight selectionh