Title: Volume FOIA 033

Release Date: 2014-03-20

Text: 10124

Volume 33 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

10125

1

me earlier that nobody was going to participate unless the case was

2

referred?

3

TC[MAJ FEIN]:

Well, not no one, Your Honor, the majority of

4

organizations.

This request in 6 October 2011 was to organizations

5

that we knew had completed or we didn't know had had completed damage

6

assistants that we were with closely.

7

this would be the Department of Defense through the IRTF, United

8

States Cyber Command.

9

use to start developing our sentencing case other than what we

So, this would be the FBI,

We had asked for any evidence that we could

10

already had.

That was a written request.

We submitted those and we

11

did receive responses back.

12

answered the defense's recovery request we had answered either not --

13

whatever authority they gave and we were preparing those documents.

14

If an authority wasn't adequate, or they -- it just wasn't specific

15

enough.

16

they fell into those discovery requests, we have them ready for

17

litigation and then we would have even produced -- what we received

18

without the Court's involvement, or if the Court was involved, it

19

would have been because had to do a an M.R.E. 505 motion.

20

the Department of State, for instance, which the Court's heard plenty

21

of evidence on, that we hadn't even seen it until the Court ordered,

22

and then it be produced and then the prosecution was finally able to

23

see it.

So, some of it also did or would have

Whatever it was, Your Honor, but if these were those and

It was not

And then that's when the prosecution did a motion to

6227

10126

1

reconsider.

2

that.

Only at that point did the prosecution even get to see

3

MJ:

Okay.

4

TC[MAJ FEIN]:

20 October, 492 pages produced, Your Honor, and

5

then during this time, 62 defense emails including one email with

6

Article 32 IO spanning 21 days.
Your Honor, 28 October to 15 November -- 4 November, again,

7
8

we already talked about this but it's a highlight during this period

9

of time, discovery production of the forensic reports and-that's, I

10

think shows when you asked the majority of the evidence went, on this

11

day, it's because of forensic reports which essentially print out to

12

329,0000 pages, almost all classified.

13

briefing, 327 PowerPoint slide show and, implied there, just like I

14

mentioned before, at this charge sheet, Your Honor, if the

15

prosecution is presenting its entire case to the defense, it has to

16

actually put that together.

17

so, before this time, that was also occurring simultaneous with

18

everything else, Your Honor.

19

MJ:

8 November was the first

Defense requested this presentation and

Did defense request the 8 November as well as the 9

20

November presentations.

21

TC[MAJ FEIN]:

No, Your Honor, what it is 8 November the

22

prosecution offered in October to do this briefing.

23

"Yes, we would like it," and the first one, Your Honor, was on 8

6228

Defense said,

10127

1

November; that was to the defense counsel and all the defense experts

2

that defense invited.

3

requested that the prosecution do a modified briefing not the same

4

one, not the 327 slides, but a slightly modified one for the accused,

5

himself, at Fort Leavenworth.

6

Fort Leavenworth and we'll get to that in the next period of delay --

7

apparent delay -- inactivity, excuse me flew out there based off that

8

request and gave that presentation with a different slide show.

9

during this time, Your Honor, 28 October to 15 November, 70 defense

On 9 November, the following day, defense

So the prosecution then flew out to

So,

10

emails back and forth including 8 emails with the Article 32 IO over

11

only 13 days.

12

Now, Your Honor, this is the time -- the remaining time

13

before the Article 32 restarted, 17 November to 15 December.

14

Defense, it appears, is not contesting 16 November; it's a gap

15

between the days.

16

restart the 32.

17

5,000 pages in discover including a classification review.

18

November is when the prosecution presented its entire case on a 258-

19

slide power point presentation to the accused, himself, and Mr.

20

Coombs at Fort Leavenworth.

21

different briefing.

22

10-day period preparing that concurrent with everything else.

23

November-1 December, discovery productions of over 25,000 pages.

The convening authority did act on that days to
Your Honor, on 17 November, the government produced
18

Again, there's a briefing there

The prosecution hasn't spent time on just that

6229

23
6-9

10128

1

December, discovery productions of 2,700 pages.

2

Honor, during this period of time, approximately a little under 1

3

month, 19 duty days, the defense and prosecution have 254 emails

4

between them and 120 of them dealt with the Article 32 investigation

5

because it was with the Article 32 IO all the emails Article 32

6

issues.

7

And this part, Your

The next alleged apparent inactivity period, Your Honor,

8

now this is immediately after the Article 32 completed and before 3

9

January, on 2 January 2012, trial counsel requested meetings to

10

request prudential search requests for three different organizations;

11

that is shown in emails in Enclosure 1.

12

counsel requested the Article 32 IO exclude any period of time they

13

did not work on the report, to which the defense did not object to at

14

the time, even though they were on the email.

15

Your Honor, there was four defense emails spanning 5 duty days.

16

the convening authority acted on a memorandum which also means there

17

was a command briefing at that time.

18

On 3 January 2012, trial

And during this time,
And

The next period of time, Your Honor, 12 January to 2

19

February, the day before referral.

On 12 January there’s a discovery

20

production of 87 pages including the ODNI classification review.

21

16 January, defense submitted a deposition request which the

22

prosecution started processing.

23

the defense of Colonel Coffman’s transmittal of the case to the GCMCA

On

18 January, trial counsel notified

6230

10129

1

with a recommendation of a general court-martial.

Implied on that,

2

Your Honor, or implied with 18 January is that Colonel Coffman had to

3

be briefed, had to review the file, and did actually spend 3, almost

4

complete, days reviewing the entire record.

5

here, Your Honor, is the 5-day period after the Article 32 IO

6

completed his report, the 5-day objection period, which the report

7

included an explanation by Lieutenant Colonel Almanza on why he

8

granted a delay and defense never objected to any portion of that

9

report nor never objected to the convening authority on any delay

Also, what’s not noted

10

granted by the IO.

11

27 January, defense requested additional funding for an expert and

12

there was a discovery production and trial counsel responded to

13

outstanding defense discovery requests.

14

charges were referred, Your Honor.

15

there were 77 defense emails over 16 duty days.

16

On 20 January, 82 pages were produced.

On 26 and

3 February, the referred --

So, during this period of time,

So, Your Honor, in conclusion of this oral -- of this fact

17

portion of the oral argument, there are multiple lanes that were

18

being travelled by the prosecution:

19

referral in order to move this case to trial under Article 10 that

20

provided the convening authority and, for that short period of time,

21

the investigating officer, facts that allowed them to reasonably --

22

make reasonable decisions to grant delays.

23

categories and this was all happening concurrently.

6231

pretrial and, still, post-

These are the major
This is not the

10130

1

case -- the most recent, probably, case on point, the Collins case

2

from A.C.C.A. where -- I’m sorry, Simmons where the prosecution in

3

Korea was working a SOFA issue, did nothing else, was working an

4

evidence issue, and did not thing else.

5

- in the entire case law of Article 10 where prosecution continually

6

worked this -- a case where there was ever found an Article 10

7

violation because there was continual movement.

8

continual or constant movement, but the evidence that we’ve presented

9

to the Court, today and, ultimately, in our filings will show that

The isn’t any of the other -

The standard is not

10

there has been constant movement and at a minimal reasonable

11

diligence, by the prosecution in bringing this case to trial.

12

pending any questions on the law or facts, Your Honor, that concludes

13

my oral argument.
MJ:

14
15

argument.

16

----

So,

No, I think I’ve asked them during the course of the oral
What I would ask is send me the slide show electronically

17

TC[MAJ FEIN]:

18

MJ:

Yes, ma’am.

---- that you have.

I would also ask that you put a list

19

together of the cases that you’ve referenced with their citations.

20

What I intend to do is go through those case and if I don’t have

21

written copies of them, I’m going to ask -- I’ll send it back and ask

22

that the government provide this to me.

23

TC[MAJ FEIN]:

Yes, ma'am.

6232

10131

1
2
3
4
5

MJ:

All right.

Defense, it’s 10 minutes after 1300.

You’re

next, how would you like to proceed?
CDC[MR. COOMBS]:

Yes, Your Honor.

If we could take a lunch

break until 1430 and then just pick up right -- and go from there.
MJ:

All right.

We could talk later.

Come see me -- I’ll

6

recess the court and then I’d like to talk to the parties briefly in

7

an 802.

8

Major Fein?

9
10
11

So, we will recess for a lunch break and any objections,

TC[MAJ FEIN]:

No, ma’am, we would like to meet with the Court

just to discuss the way forward.
MJ:

All right.

We’ll have a lunch break until 1430 when we

12

will reconvene.

13

[The Article 39(a) session recessed at 1314, 16 January 2012.]

14

[The Article 39(a) session was called to order at 1438, 16 January

15

2013.]

16

MJ:

Court is in recess.

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

Let the

17

record reflect all parties present when the court last recessed are

18

again present in court.

19

Mr. Coombs?

20

CDC[MR. COOMBS]:

21

Yes, Your Honor.

Your Honor, my argument will be broken down under two main

22

categories, the R.C.M. 707 argument in the Article 10 argument.

23

the R.C.M. 7 [sic] argument, it might be helpful to capture some time

6233

For

10132

1

periods in which there is an agreement at this time counts against

2

the government's clock for R.C.M. 707 purposes.

3

be pulled from Appellate Exhibit 330, this is the government's speedy

4

trial chronology, but for the aid of the Court, I will break down the

5

periods for the Court right now.

This information can

27 May 2010 is the first day in confinement, so obviously

6
7

that day does not count.

The first day counting for purposes of the

8

707 clock is 28 May 2010.

9

government concedes that that counts against them; that is 45 days.

From 28 May 2010 to 11 July 2010, the

10

On 12 July 2010, the Special Court-Martial Convening Authority for

11

the previous command granted a R.C.M. 706 board request and delayed

12

the Article 32 hearing, so from that day forward, the government

13

believes from 12 July 2010 to 16 December 2011, that those days do

14

not count for R.C.M. 707 purposes; and, that totals 523 days.

15

16 December, 2011, through 23 December 2011, that is the Article 32

16

hearing and that is eight days.

17

then, from 3 January 2011, excuse me, 2012, through 11 January 2012,

18

the government concedes that those 9 days count against it.

19

that gets us up to 62 days.

20

February 2012, the government concedes on 3 February is our 802

21

session.

22

up to 85 days.

From

And that gets us up to 53 days.

And

And,

And then, from 12 January 2012 to 3

And I guess it is up to -- that is 23 days and that gets us

6234

10133

So, we have challenged times for the R.C.M. 707 clock and

1
2

also these -- some of these times that the defense would argue apply

3

toward the Article 10 clock.

4

and I will go through each of those.

5

chronological order, but perhaps the easiest to apply against the

6

government, and that is the time excluded by Lieutenant Colonel

7

Almanza.

8

24 December 2011 to 2 January 2012, a total of 10 days.

9

2012, the government sent to Lieutenant Colonel Almanza an e-mail

We have 13 separate challenged times
The first is not in the

This is from 24 December 2010 to 2 January 2000, excuse me,
On 3 January

10

saying, "Look, exclude any days that are federal holidays or weekends

11

or days you just did not work on the 32 report." And, Lieutenant

12

Colonel Almanza made a reply back, "Yes, will do that." But, in our

13

hearing, where he testified,

14

considering excluding those 10 days until the government asked him to

15

do so.

16

to this exclusion.

17

In fact, he said he never excluded anything under 707 prior

MJ:

He admitted ----

Is there any issue with that, that the government cannot

18

request an exclusion?

19

CDC[MR. COOMBS]:

20
21

he admitted that he wasn't even

There is when there is no legal basis to

exclude federal holidays and weekends.
MJ:

And, for that ----

I understand that, but is there any law or anything out

22

there that says government cannot request a delay?

23

understanding ----

6235

Or, am I

10134

1

CDC[MR. COOMBS]:

2

MJ:

3

CDC[MR. COOMBS]:

4

Request a delay?

Request excusal, excuse me.
No, I mean if there were an appropriate good-

faith reason for excluding the time, sure.

5

MJ:

Okay.

6

CDC[MR. COOMBS]:

So, Lieutenant Colonel Almanza said, "You

7

know, I was not even planning on doing that."

And then, in fact,

8

testified in hindsight some of those days were days in which he went

9

into civilian employment and he said, "You know what, I should have

10

told my civilian employer I cannot come in, I need to work on this

11

32."

12

weekend.

13

I should have worked on the IO report."

14

Duncan, 34 MJ 1232, clearly states that weekends count for the speedy

15

trial clock.

16

exclude federal holidays or weekends.

17

Manning was in pretrial confinement.

18

pretrial confinement for the federal holidays or weekends and

19

certainly the speedy trial clock does not give a timeout for the

20

government for those days either.

21

days in, now we get up to 95 days.

22
23

Other days, one of those days he took his son to a swim meet, a
And he said, "You know what, I should not have done that.
And, United States v.

So in this instance, there is no good faith basis to
Those are days in which PFC
He did not get released from

So, if the Court adds those 10

The second time period is 12 July 2010 to 10 August 2010;
it is a 30-day period, and this entire period should count against

6236

10135

1

the government for Article 10 purposes but for the 707, I want to

2

break it down into two separate groups.

3

defense counsel requesting a delay in the Article 32 hearing until a

4

706 board can be completed.

5

multiple requests, but the 12 July request is granted.

6

July to 28 July you have the government and the Convening Authority

7

at that time taking steps in order to try to get a 706 board ginned

8

up.

9

case is transferred to MDW and it is clear at transfer, that

On 12 July you do have a

And, that delay -- you actually have
And from 12

On 28 July, you have a change in the convening authority.

The

10

transferred time period, Colonel Coffman, the Special Court-Martial

11

Convening Authority is not looking at the 706 board as being a basis

12

for delaying the 32.

13

directs that the 32 be completed within 10 days.

14

testified that absent a request from the defense, that the 32 would

15

have begun and he would have expected it to begin and be completed

16

within his 10-day time period that he gave.

17

from the 28 July to the date of our request which is 11 August when

18

we asked for the 706 board to be appointed and for the 32 to be

19

delayed, the government in this case, the special court-martial

20

convening authority, was operating under the assumption that there

21

was no outstanding delay.

22

that time period from 28 July to 11 August should count against the

23

707 clock and that would be 14 days.

He appoints a 32 IO on the 4th of August and
On the stand he

It is clear from that,

And so, certainly for the 707 purposes,

6237

Now, the government indicates

10136

1

in this time period that they did do certain steps in order to be

2

proactive but the question here was whether or not there was an

3

actual 706 delay or a delay out there by the defense.

4

have the change of command, it was clear that the person who is in

5

charge of that, the Special Court-Martial Convening Authority, would

6

say, "No there was not."

7

MJ:

8

CDC[MR. COOMBS]:

9

MJ:

10

And when you

Okay, how many days do you count for that?
14, Your Honor.

Okay.

CDC[MR. COOMBS]:

The second -- excuse me, the third time period

11

is from 13 December 2010, that is the completion of the preliminary

12

classification review to 3 February 2011, that is the date that

13

Colonel Coffman ordered the 706 board to resume its work, that time

14

period is 53 days.

15

litany of examples of the government being reactive instead of

16

proactive.

17

expected that as soon as the preliminary classification review was

18

completed, the 706 board would begin.

19

believe that because he appointed the 76 board on 12 August 2010.

20

The preliminary classification review, once I became involved in the

21

case on 25 August of 2010, I raised a couple of issues that did, in

22

fact, necessitate a delay.

23

been given to what PFC Manning might say to the 706 board and the

And this is probably the first example in a

Colonel Coffman himself testified that he would have

And, there is good reason to

First and foremost was, had any thought

6238

10137

1

fact that that information might be classified.

And, that discussion

2

required a delay and we do not dispute that that delay was

3

appropriate.

4

actually to get everything ready.

5

they were on notice that TS-SCI clearance was probably going to be

6

needed.

7

disclosure to us in August of 2010.

8

going to be the level.

9

would have said, "All right, let us get everything done and in a row.

10

It does not hurt to have people with higher clearances than they need

11

in order to complete the 706."

12

the preliminary classification review was completed, a period of 5

13

days went by hearing nothing.

14

out to the government on 18 December 2010 and said, "Hey, you know,

15

who is on the 706 board?

16

going on with the process?"

17

had not yet identified the 706 board members.

18

that point then when they state that then there is a time period the

19

goes by and it is not until 13 January 2011, that we submit our first

20

speedy trial demand.

21

January because you have 13 December when the preliminary

22

classification review is completed and we wait 1 month and there is

23

no activity, no action on the 706 board.

But the government had then over 100 -- almost 100 days
They, themselves, indicate that

Colonel Coffman indicated that, yes that is based upon your
We knew that TS-SCI was probably

And here is where a proactive government

But, what happened was, as soon as

And that is when the defense reached

When are they going to start?

What is

And the government responded that they
And then, you see at

And it is no mistake that that date is 13

6239

And obviously, the 706

10138

1

board is going to be a prerequisite in order to complete before we

2

can move forward in the process.
And so, at that point we make our speedy trial demand.

3

And

4

even still, the government is not in a position on 13 January 2011 to

5

start the 706 board.

6

begin their work because now they are trying to obtain their

7

requisite security clearance for one of the members, again, something

8

that could have been done much, much earlier.

9

the process of -- well, they are still in the process of trying to

10

identify a place for the meeting -- the classified meeting to take

11

place in a T-SCIF.

12

ready to resume their work.

They still are not in position to get people to

There also still no in

It is not until 3 February to their actually

So, when you look at that time period, that 53-day time

13
14

period between 13 December 2010 and 3 February 2011, the defense's

15

position is those days should be laid at the doorstep of the

16

government.

17

MJ:

Let me ask you a question on that, it is the same question

18

that the government.

Do you have any case law saying the I mean,

19

here in this case, the defense did not say, "I want a speedy trial

20

right now.

21

requests, I want trial tomorrow."

22

mean, the defense wants the 706 which is going to take time and also

23

wants speedy trial.

I don't care if the 706 board is complete, I want no
That is not what happened.

I

The government provided the Court with some

6240

10139

1

cases that say you cannot have it both ways.

2

that support the fact that you can still request to demand a speedy

3

trial while you are asking for things?
CDC[MR. COOMBS]:

4

Do you have any case

Yeah, and I think the, well the Pyburn case is

5

probably the best case as an example of, you know, even if you are

6

asking for something, and it there, it is not -- Pyburn is actually

7

the trial counsel trying to obtain forensic evidence, but even though

8

the defense is asking for something from the government, that is not

9

then a ticket to take all of the time you want in order to respond

10

back, and that is why we have that 30-day gap of waiting and not see

11

any reason why the 706 board was not ordered to resume its work.

12

reason it was delayed was for the preliminary classification review.

13

And, when that was done on 13 December, there was nothing holding up

14

the board other than the fact that the government hadn't done

15

anything at that point in order to ensure that the board was ready to

16

go.

17

Proactive with them, "Hey look, let us get everything -- all of our

18

ducks in a row so that as soon as we get our preliminary

19

classification review back, if it is TS-SCI, no problem.

20

have the clearances, we know where it is going to be.

21

And, that is what Colonel Coffman expected.

22

situation where we are trying to get the government in a Catch-22

23

where we are saying, "Give us these things," in this case, a 706

The

And, that is the example being reactive instead of proactive.

6241

We already

Drive on."

So, this is not a

10140

1

board, and yet, we want speedy trial.

And that is not the situation

2

here.

3

month.

4

type of -- we repeated our demands for speedy trial is the government

5

gets into its monthly excludable delay memorandums, and more than

6

one, but particularly the 25 July memorandum.

7

"Look, you know, we understand, we asked for the classification

8

reviews in discovery."

9

already have.

This situation is seeing no activity on the 706 board for a
That is when we submitted our request.

And you see the same

We clearly state,

That is a burden on the government that they

That was something that they were going to be doing on

10

their own.

11

that we have all of the time the world then to respond to that and

12

can take whatever amount of time you want.

13

the 25 July response that at this point they had over a year to get

14

the classification reviews done and they had not indicated why there

15

was such a delay.

16
17
18

MJ:

It is like us asking for Brady.

But, that does not mean

And, we pointed out in

Mr. Coombs, I understand your position, is there any case

law that has a similar fact scenario that supports that?
CDC[MR. COOMBS]:

The speedy trial cases that are both in our

19

motion and our reply and the government's response all deal with

20

delays that we're talking in the manner of, like, you know, less than

21

-- I think the longest one is 322 days that we are looking at.

22

is nothing in the ballpark of something like this case where we are

23

now nearing day 1,000.

6242

There

10141

1
2
3

MJ:

That is why I am asking you, I have not found anything that

has a similar scenario.
CDC[MR. COOMBS]:

No, and I think the reason why is, you know,

4

we, to the extent you can, you frontload all of the stuff before

5

referral and then you get -- actually before preferral if you are --

6

if you have a guy in pretrial -- not in pretrial confinement, because

7

you can take all the time you want.

8

government had our client in pretrial confinement so their hand was

9

forced and they needed to move quicker.

Here, I understand, the

But no, there is nothing

10

that shows this amount of time and what would be reasonable and that

11

is where I think the court, looking at this, would have to

12

determined, "Is this reasonable?"

13

MJ:

Okay.

14

CDC[MR. COOMBS]:

So, those 53 days, we would say yes, it

15

wouldn't be reasonable to allow that time to be excluded, because you

16

would expect the government would have been proactive in ensuring

17

that they have identified locations because really the whole time

18

after 13 December, and when you look at their chronology, there is a

19

break even and that of activity on getting the 706 board ginned up

20

and started.

21

board president saying, "You know, who are the members?

22

they are."

23

person."

But it really seem like they were just going to the
Tell us who

You know, a week or so goes by, "Okay, we identified this
"Okay, does he have the TS-SCI clearance?"

6243

"No he does

10142

1

not."

All that should have been done before.

2

with finding a location for their one meeting.

And the same thing

The other two time periods are relating to the 706 board.

3
4

They are the two time periods that Doctor Sweda requested for an

5

extension.

6

day time period; and, from 18 March to 22 April 2011, that is a 36-

7

day time period.

8

basis for it was difficulty in obtaining a meeting with PFC Manning

9

as far as getting into a SCIF with him.

And those are:

4 March to 18 March 2011, that is a 15-

And in the first request, Doctor Sweda said the

That was the basis for why

10

they needed the delay.

11

and whatnot that they needed but they required the one time for the

12

classified information.

13

board did all of their work without being worried about classified

14

information.

15

classified information was on 9 April.

16

at the SCIF in order to discuss the classified information that PFC

17

Manning wanted to share with the board.

18

for the need for the delay both for the 4 March to 18 March and also

19

part of the 18 March, obviously, to 9 April.
MJ:

20

They had done other stuff, all the testing

And it is important to note that the 706

The one time that they actually did anything with
And, that was the one meeting

And so, that was the basis

Mr. Coombs, if memory serves me correct -- would you like

21

to address the portion of the government's argument where they talk

22

about you were wanting to talk to the accused before the board saw

23

him?

6244

10143

CDC[MR. COOMBS]:

1

And, you know, the e-mails, both my reply, I

2

think, based on my position on this.

3

an objective looking at the e-mails, would see that the government's

4

representation and its facts was not accurate.

5

MJ:

6

CDC[MR. COOMBS]:

But, the e-mails also, even in

What is accurate?
What was not accurate was that I did request

7

an opportunity to speak with Manning ahead of time because I wanted

8

to ensure that he knew what he could share or should share with the

9

706 board.

And, I wanted to see him in advance.

And, there was a

10

time period in which I am waiting for the government and I said,

11

"Just give me an advanced notice, I can" -- I gave them days, and e-

12

mail traffic shows this, when I am saying, "Look, all I need is an

13

advanced notice and here are the days I can do it", and they were

14

still trying to coordinate both the location and also with the board

15

members when they wanted to do it.

16

objective reading of the e-mails shows, that the board selected a

17

date, that government notified me of that date on a Monday and

18

essentially what I needed to do was see my client within the next

19

couple of days in order to see him in advance of the 706 board doing

20

that.

21

times, if you give me just at least a week's notice, I could plan

22

accordingly for that."

23

speak with PFC Manning before the 706 board but that did not

What happened then, and an

And, I informed them that, "Look, as I asked you several

So, it is true that the defense wanted to

6245

10144

1

necessitate a delay.

2

see from the e-mail traffic that a date that was selected for the

3

board was pushed back to a later date.

4

MJ:

5

CDC[MR. COOMBS]:

It did necessitate moving things, and you will

Isn't that a delay?
From the standpoint of a delay from us, no, we

6

would say.

7

proactive but reactive, where I told them, "Just give me a day to see

8

my client.

9

then, again what they do is kind of like the with the Article 13 e-

10

mails, they drop it on me when there is not enough time to respond.

11

And so, that would be the defense's position on those time periods.

12

And, if these were not counted for 707 purposes because I could see

13

where Doctor Sweda still is in the position of, he is doing a 706

14

board.

15

asked for this."

16

applying on 707 purposes but I certainly see in applying for Article

17

10 purposes because again, it is another example of the government

18

not being proactive, not being diligent.

19

this could have been done much earlier.

20

From the standpoint of the government, again, being not

I just want to see him in advance of the 706 board."

These are requirements for his 706 board.

MJ:

And

"Defense, you

So, I could still see this time not necessarily

And, if they were diligent,

I guess I am confused with this time period.

21

mail saying, "Oh, board, take your time.

22

suspense."

How do we get there?

6246

We have an e-

This is an aspirational

10145

1

CDC[MR. COOMBS]:

And that is another thing that is taken out of

2

context, my reply talks about that.

The Convening Authority appoints

3

the board initially and says, "You will complete your 706 board

4

within four weeks."

5

"Look, if you do that that is fine."

6

aspirational because if you need more than 4 weeks in order to make a

7

thorough 706 then you take more than that time period.

8

that we get a complete and thorough report.

9

not in order to have a thorough report.

My response to that was to the board member,
That is aspirational.

That was

Our goal is

Here, these delays are

These delays are based upon

10

an inability to secure a SCIF location and then trouble with the

11

board meeting as a board because conflicting schedules among the

12

board members.

13

MJ:

So, what is the defense's position on the onus on the

14

president of the 706 board?

15

appointed today, does everything have to be done tomorrow?

16

what is reasonable?

17

CDC[MR. COOMBS]:

It's just, you know, if you are
I mean,

Yeah, and see there is where certainly the

18

government and defense will disagree, but I think that is where Your

19

Honor comes into play of looking and saying, "Okay, what objectively

20

is reasonable to expect?"

21

that what would be reasonable is that the government has taken the

22

steps to identify the members, get their security clearances in

23

advance of the preliminary classification review being completed.

And, my argument to the Court would be

6247

10146

1

They have identified a SCIF location in advance of that.

2

board members, and you see e-mail from Doctor Sweda, "Saying we are

3

having trouble identifying a Saturday or Sunday to meet with PFC

4

Manning."

5

nice, we would have liked have done it on a weekend but we are going

6

to knock it out during a weekday because the goal here is to get it

7

done.

8

do it after hours or early in the morning but, we will get it done on

9

a weekday where we can get everybody."

12

The government then saying, "Okay, well a weekend was

And so, maybe that is not the best thing, maybe will be will

But again, this is not being proactive and thinking how we

10
11

If the

can do things, it is just reactive.
MJ:

Was there any contemporaneous -- I know you asked for

13

speedy trial on 13th of January, was there any contemporaneous

14

objection, saying, "Hey, set this thing up tomorrow night."

15

CDC[MR. COOMBS]:

Or ----

No, like the e-mail traffic, and there is e-

16

mail in the discovery where I am saying -- suggesting, "Well let's

17

have them meet on other days" or, you know, for us, for the 706, I do

18

not think there is anything where we are saying, "Why isn’t this

19

happening?"

20

do know that the monthly -- at this point monthly delays hadn't

21

started.

22

government trying to get updates on when we are going to be done

23

because again, at this point, the defense's understanding would be a

My memory does not recall anything at this point but I

But, there is certainly e-mail traffic between myself and

6248

10147

1

as soon as the 706 was done we thought that a 32 was going to start

2

up almost immediately.

3

where I am asking for updates just so I know for planning purposes

4

when the 32 might happen.

5

further time periods where we have, I guess, we believe should be

6

applied against government.

7

defense that we would have this length of time but from 22 April to

8

15 December of 2011, the government requests eight separate delays of

9

the 32.

And so, I am confident there are e-mails

And that kind of leads us into the eight

And this actually was a surprise to the

And, I will just give you the time periods for the Court.
The first was 22 April to 12 May of 2011; and that is 17

10
11

days.

12

is 17 June to 5 July; that is 19 days.

13

August; 37 days.

14

From 29 August to 14 October; which is 47 days.

15

16 November; which is 34 days.

16

December; which is 30 days.

17

The second was 12 May to 17 June; that is 37 days.

The third

Then from 5 July to 10

From 10 August to 29 August; which is 20 days.
From 14 October to

And then, from 16 November to 15

And, each of those time periods, the government requested a

18

delay of the 32.

And in each of those time periods, the convening

19

authority approved to delay over the defense's objection, in

20

particular on 25 July we pointed out the fact that out had been over

21

a year that the government had in order to complete classification

22

reviews and what they had failed to do up to this point was

23

articulate my they needed -- additional time is needed, what was

6249

10148

1

being done with the classification reviews, where they were in the

2

process and we pointed that out in our objection, saying they have

3

not given the Convening Authority enough specificity to indicate that

4

the delay is warranted.

5

was approved.

And, in spite of that objection, the delay

So, you have really from, if you look at it in two separate

6
7

time periods, from 27 May 2010, the date of arrest to 22 April 2011

8

That is 333 days.

9

December date.
MJ:

10
11

And then, you have from 22 April 2011 the 15

What you think is the appropriate start date, the 27th of

May or the 28th of May?
CDC[MR. COOMBS]:

12

I thought I heard both.
You did, ma'am.

And, the government in its

13

motion and because it went to our benefit, we will go with that date,

14

was 27 May.

15

certain conditions that qualify for arrest, that would then be

16

arrest.

17

government commences when PFC Manning was actually restricted to a

18

CHU.

19

government.

There is case law that, you know, if you are under

We went with what was clearly the pretrial confinement.

The

So, because it went with our benefit, we will agree with the

20

MJ:

All right.

21

CDC[MR. COOMBS]:

So then, when you look at those time periods,

22

there are a couple time periods in which it is clear that again if

23

the government was proactive, instead of reactive, you could have

6250

10149

1

saved some of that time.

And, the clearest example of that is the

2

OPLAN B.

3

December 2011.

4

getting close to getting all of its classification reviews and was

5

getting close to actually starting the 32.

6

Coffman on the stand was, "Well, if you knew that, if you knew that

7

you were getting close that time period, couldn't you have been

8

initiated OPLAN B in a time period, you know, say 16 October?

9

you started up the process on 16 October, then 16 November comes

The OPLAN B time period was from 16 to November to 15
And of course, only the government knew that it was

And what I asked Colonel

Had

10

around when you say 'look, we have got all of our Constitution

11

reviews now and we feel very comfortable with our pretrial prep for

12

the 32, we are ready to go.'"

13

MJ:

14

October?

15

Did they have the classification reviews on 16th of

CDC[MR. COOMBS]:

16

reviews.

17

MJ:

18

CDC[MR. COOMBS]:

They started to get those classification

Did they know that they were going to get them?
That, I do not know, ma'am.

And this -- but

19

that is the hypothetical that I advanced to Colonel Coffman is if you

20

knew you were getting close that time period, that you would in fact,

21

at that point, be proactive, let's not have this 30-day delay.

22

you know 16 November rolls around, the government has everything they

23

need but they have got there OPLAN B that requires a 30-day break.

6251

But,

10150

1

And so, from the defense's standpoint, that 30-day time period should

2

count squarely against government.

3

would be no need for that.

4

February and our 802 on 8 February.

5

that that time period should count and again that is a -- at the time

6

I am writing the motion, ma'am, I am forgetting ----

7

MJ:

8

CDC[MR. COOMBS]:

9

Again, they were proactive, there

We do have arraignment taking place on 23
And, in our motion we advanced

You weren't looking at your EDN?
Yeah, I was forgetting about the fact that we

talked about that point.

So, I just, on the record, indicate that

10

obviously from 8 February forward, that should not count for the 707

11

purposes.

12

So, when you look at the delays, certainly the monthly

13

delays from 22 April forward under 707(c) in order to survive an

14

abuse of discretion standard as judge Baker pointed out in Lazauskas,

15

at 62 MJ 39, there must be some evidence that the Convening Authority

16

exercised independent determination that there was in fact good cause

17

for the delay.

18

do anything close to an independent determination.

19

he indicated that he trusted his trial counsel.

20

counsel and he trusted that other people were doing what they were

21

supposed to be doing and when the trial counsel said, "We need this

22

time to do the classification reviews", he said, "Okay."

23

signed that request.

And here, Colonel Coffman did not do that.

He didn't

Even on the stand

He trusted the trial

And, he

What was noticeably absent was the actual

6252

10151

1

questioning of, "Like, well are we at in the process?

2

seeing in April when you first asked for this, what has been done in

3

the 333 days previous to this 22 April date? " And then certainly,

4

"After, you know, April, May, June, July and we get to July and I see

5

defense making this big hoopla over you have now had over a year and

6

you are not you know, getting me specifics, okay, well let's answer

7

that.

8

many more pages are being reviewed?

9

it?"

10

What are the specifics?

Where are we at?"

Now I am

And you know, "How

How many people are working on

None of those questions were asked by Colonel Coffman.
MJ:

Is it the defense's positions that when Colonel Coffman

11

testified, if I remember correctly, that he basically relied on the

12

trial counsel came with a written accountings each month, is it the

13

defense's position that for due diligence the Special Court-Martial

14

Convening Order should have personally gone to the agencies?

15

CDC[MR. COOMBS]:

No.

My position would be -- or the defense's

16

position would be that the Convening Authority would had to have

17

asked certain questions and gotten certain information from the trial

18

counsel and the reason why that would be required is if you do not

19

have that, then the 707(c) excludable delay becomes really a trial

20

counsel delay that trial counsel can invoke any time they want.

21

Because the practical realities of our system and being a product of

22

it, I understand it, young captain becomes a trial counsel for a

23

young line officer captain and that captain, that Judge Advocate

6253

10152

1

usually is the most independent person for that line officer to

2

bounce things off of.

3

order, the line officer trusts the Judge Advocate as one of their

4

best sources of information.

5

officer then becomes, you know, staff officer, deals with Judge

6

Advocates, becomes a battalion commander, a brigade commander and now

7

you get to Colonel Coffman level and hopefully he has had an

8

experience where he has had great experiences with Judge Advocates

9

any trust implicitly their advice.

And if it is done correctly, within short

And that young captain, that line

And that is like convening

10

authorities always go with the Staff Judge Advocate for the most

11

part.

12

the trial counsel would just put a cut-and-paste job, and these were

13

cut-and-paste jobs every month essentially, in front of the convening

14

authority and say, you know, "Sign this."

15

Authority taking anywhere from 1e minute to I think he said up to 15

16

minutes sometimes before he signs it.

17

OCAs, no.

18

questions.

19

you ever ask these?"

20

asked, "Well, would there come a time that you would say to yourself,

21

'you know what, I am troubled by this.'"

22

maybe, but it did not come yet."

And I understand that.

But here, you cannot have it to where

And the Convening

Does he need to contact the

But, he does need to inform himself and asked certain
And that is why went through those questions to see, "Did
And the answer was, "No."

And even the Court

And he said, "I am sure

So, there was not a time at this

6254

10153

1

point that he was troubled between 22 April of 2011 to 15 December

2

2011.

3

MJ:

What is the defense's position of my review of the special

4

court-martial convening authority's granting of the delays?

5

of discretion or de novo?

6

CDC[MR. COOMBS]:

It is abuse of discretion, ma'am.

An abuse

And so, if

7

it is within his discretion, and I am going off of that because that

8

would be the appellate review.

9

question the more I think about it.

10

And that is actually very good
Because it should be abuse of

discretion though, I would think.

11

MJ:

I believe that is what the case law says.

12

CDC[MR. COOMBS]:

Yes, ma'am.

And, the reason why, obviously,

13

is he, under 707(c), is given the authority to do that.

Much like if

14

Your Honor grants a delay, that is going to be reviewed for abuse of

15

discretion.

16

discretion part this is where Judge Baker's line becomes important

17

that you have to have some evidence of independent determination.

18

And, once you have that, if there is independent determination, then

19

I think that is where you get the actual discretion aspect.

20

he said, he wasn't troubled by the passage of time, he was not asking

21

any of the questions that I went through with him.

22

for specific updates on what was being done precisely and was still

23

remaining and how much longer it would take.

So, I think at this point then when you have that

6255

But, as

He never asked

And, at least in the

10154

1

defense's argument, he ultimately was just a rubber stamp for

2

whatever is placed in front of him.

3

ceases to mean much if that is all it is that the trial counsel

4

saying, "We are not ready yet.

5

additional time and we do not want it to count against us."

6

also clear at least from all the documentation, I know the trial

7

counsel has advanced other reasons for the delay, but the primary

8

reasons for these delays are the classification reviews and the need

9

to obtain them.

10
11
12

MJ:

And, when you do that, 707(c)

For whatever reason, we need
It is

As we ----

What about the forensic evidence the government was talking

about?
CDC[MR. COOMBS]:

Right, the government also said, you know, and

13

I think this was in our -- one of our motion's argument, but they

14

advanced it here today as well, that they would not have gone forward

15

without all of the forensic evidence being complete.

16

guess, not going for the 32.

17

this one, where I have ever gone to a 32 and had a completed forensic

18

report; never.

19

a practical reality of our systems that the 32, much like the grand

20

jury in federal system, gets done early on in the process.

21

completed CID report or the completed forensics usually happens after

22

the 32.

And, that is, I

I cannot think of a case other than

Or, a CID investigation for that matter, ever.

It is

And, the

So, I mean, I am sure the government would like to have

6256

10155

1

waited until the completed forensic report, but that is not a luxury

2

they get, certainly not when my client is in pretrial confinement.

3

MJ:

Well, that is what I am looking at now.

The government, if

4

they go to in Article 32 and they do not have the evidence, that the

5

recommendation might be, "Let's dismiss all of the charges and send

6

the accused home."

7

I mean, where is that line?

CDC[MR. COOMBS]:

Sure.

Right.

And I would agree with that,

8

that again, this -- you go back to when they put him in pretrial

9

confinement they were put under a speedy trial clock gun,

10

essentially.

So, ideally, yeah, they would not have wanted that.

11

But, having all the completed evidence and then having evidence,

12

certainly the standard that you would need "Some evidence" at the 32.

13

Completely different when the trial counsel is saying, "Hey, very,

14

very high standard", they are talking, proved beyond a reasonable

15

doubt at trial, they are not talking about 32, which is, "Some

16

evidence".

17

When you look at even their own chronology, it shows that

18

they were getting completed forensic -- not completed, but forensic

19

reports.

20

are essentially said the exact same thing as the final report but

21

they just were not through the approval process.

22

government have gone forward much earlier?

23

they chose not to.

And, the way that it was is they had interim reports that

So, could the

Yes they could have, but

And the main reason they chose not to was wanting

6257

10156

1

to wait for these classification reviews.

2

that they need these in order to invoke the privilege at the 32 to

3

demonstrate that the information was properly classified because

4

charged it as classified or to argue and allow for a closed session.

5

All of those purposes are worthwhile purposes for the classification

6

review, but you do not need a classification review in order to

7

achieve any of those.

8

MJ:

9

CDC[MR. COOMBS]:

And, they have advanced

How would they have proven the evidence was classified?
Quite easily, just bringing in anybody from

10

the agency to say, "This was on SIPRNET.

11

Court even said -- and there is some of the documentation where it is

12

marked right on it like Department of State cables.

13

right on it whether or not it is classified.

14

MJ:

It was classified."

The

It is marked

Did anybody from the defense team go to the government and

15

say, "We do not want to wait for these anymore, we will stipulate

16

that they are classified"?

17

CDC[MR. COOMBS]:

No.

No, Your Honor.

And, I think that was

18

ever even, like, broached as a conversation.

19

certainly could have gone forward to the 32 and this again is very

20

similar to the Pyburn case where the trial counsel really wants the

21

forensics but you do not need it necessarily because you have got a

22

witness who can identify the person.

23

where because of being assaulted she was beaten unconscious and could

6258

So, the government

In that case it was a rape case

10157

1

not testify to actual sexual intercourse but could identify the

2

accused as her assailant.

3

other evidence you could have gone forward.

4

government did not need to classification reviews, even the

5

government invoked certain provisions under 505(c).

6

Authority, prior to the classification reviews, invoked 505(c) in

7

order to put in place protective orders on how certain information

8

will be held.

9

determination from an OCA rather quickly, if the Court looks at

And there, the court said that had you had
And, to show that the

The Convening

And to show that you could get a classification

10

Appellate Exhibit 449, that is the classified OGA response, it shows

11

the OGA conducted what they termed as kind of a preliminary

12

classification review and that took only 6 days.

13

I believe on 24th of March of 2011, where they indicated what the

14

classification level was of the information that they were going to

15

be reviewing.

16

showing the classification level, like where he was from, they could

17

have even brought somebody in from my client's unit to say, "Yeah,

18

all the information you are charging there comes from the SIPRNET and

19

if it is on SIPRNET, we treated it as classified.

20

evidence".

21

a reasonable doubt is something different.

22

practical realities of our system, and I recognize the inconsistency,

23

at least in this argument, as the defense counsel I always argue that

And, that was done

But, there could have been a litany of other ways of

That will be "some

Now, whether or not that would ultimately be proof beyond

6259

And also again, the

10158

1

the 32 should be a higher standard, that we need more evidence that

2

the 32 and that the government is trying to do it on the cheap and

3

just get through you know, this stumbling roadblock, to move on the

4

court-martial.

5

government perfecting its case before the 32.

6

MJ:

I recognize that.

But certainly here, this was the

Well, if they had gone in without that evidence, wouldn't

7

that leave them open to you coming in as a very good defense counsel

8

and saying, "Hey, they have gone through all the I's and dotted their

9

T's, there is no evidence that this is classified so you should

10
11

recommend something less than you otherwise would with this evidence?
CDC[MR. COOMBS]:

Sure, for example, had just been that no

12

classification review was done but they had somebody from the OCA

13

come, I can make an argument.

14

guess, would depend on what the IO recommended, recognizing that it

15

is a recommendation.

16

that the IO's recommendation, while important does not control what

17

the Convening Authority does.

18

has the ear the Convening Authority is recommending one thing, a

19

betting man would be safe in going with what is going to happen.

20

yes, it would open that up.

21

later argument to the Court of a defective 32, certainly.

22

the 32, and I guess the response I have gotten done that is "You're

23

guaranteed that 32 but not a perfect 32.

That is correct.

And it would all, I

And again, the practical reality of our system

And if the Staff Judge Advocate, who

So

And also would open up, to be honest, a

6260

But again,

And that would have been

10159

1

probably that the response in this instance.

2

government chose to wait and chose to delay this in order to have all

3

of the information that it wanted for the actual 32.

4

on parroting the same justification that the Convening Authority had

5

good cause to exclude this period of time and did so for only for as

6

long as necessary.

7

they have said here as well is that it is a complex case that

8

involved a lot of information.

9

instructive on this United States v. Duncan, 34 MJ 1232.

10
11

MJ:

So, again the

And, they kept

Well, one of the things they point to and what

And, what the defense would argue is

Can I ask both of you the same thing that I asked them, can

I get a list of the cites?

12

DC:

I already wrote it down, yes, ma'am.

13

MJ:

I will go through and highlight the ones I do not have and

14
15

you all can get them for me.
CDC[MR. COOMBS]: Yes, ma'am.

So, in United States v. Duncan,

16

the court rejected out of hand the argument that it was a complex

17

nature of the case or the fact that the case was highly classified or

18

even the fact that the accused had filed a collateral civil suit in

19

federal court as being a basis for good cause delay under 707.

20

the main reason is the court said that the government failed to

21

establish a connection, a causal connection or a nexus, if you will,

22

between the delay that they were asking an event or pointing to.

23

And, that is the exact scenario that we have here today.

6261

The

And,

10160

1

government has failed to make that connection and the reason why is

2

the government and Colonel Coffman in granting this delay never

3

bothered to answer straightforward questions of, "What was taking so

4

long?

5

basis?

6

at?

7

reviewing?

8

questions that if you had those answers coming in, certainly if they

9

were in the monthly delays, it would show not only progress but it

What were the OCAs doing on a daily, weekly basis; monthly
How many people were working on it?

How often they were working on it?

What they were looking

How many documents were they

How many more documents do they have left?"

All of the

10

would show why that amount of time was needed which I think the Court

11

brought up and is a good question of, "Well, like, how long does a

12

classification review take?

13

standard, or is 6 months or is a year?"

14

these questions would have been easy to point to if you had the

15

government asking, of the OCAs, "What were you doing?", instead of

16

just simply giving them, again, a cut-and-paste request to complete

17

their classification review and then giving them a new deadline,

18

because each of their requests, with the exception of the first one

19

that did not have speedy trial paragraph, but each of the subsequent

20

ones to the OCAs was essentially the same memo with a different

21

deadline.

You know, is it 6 weeks appropriate, the

6262

And the answers to some of

10161

1

MJ:

What is the defense's position with respect to be diligent

2

under, reasonably diligent under Article 10?

3

government have done?

4

CDC[MR. COOMBS]:

What else should the

The defense would say that some of these

5

questions of, like, going to the OCAs, saying, "Okay -- and certainly

6

when you are talking about and, I know that the government, I am

7

going to say going to say that they are dealing with themselves,

8

which they are.

9

necessarily have to play nice with another agency.

But, I recognize that one agency does not
But, what you

10

would expect, certainly within the Department of Defense where you

11

can in fact use the chain of command to get something done, is to

12

say, "Okay, where are you at, exactly, in this process?

13

people are working on it?

14

you expect to be done?

15

31 March, you have missed that deadline.

16

miss deadlines unless you have a very good reason.

17

reason?"

18

trial counsel should have done this things.

19
20
21

MJ:

How many

How often are they working on it?

When do

We gave you, on 18 March, we gave you until
In the military you do not
So, what is your

Those type of inquiries were never done and a diligent

Are you suggesting that a trial counsel can tell a

commander over at CENTCOM that your deadline is "X"?
CDC[MR. COOMBS]:

With a little help.

And, that help will

22

come from Colonel Coffman and then up the chain.

23

ultimately have an ear of a three star and that is where you would

6263

I mean, they

10162

1

get your help.

But that did not happen.

So again, you get Colonel

2

Coffman approving these delays month after month with none of these

3

questions being asked and from our position then, you do not have an

4

independent discretion being exhibited.

5

violation of the R.C.M. 707 clock as long as you knock out even one

6

of these additional time periods.

7

court would find a 707 violation, then the question is, "Is it

8

dismissal with, or without prejudice"?

9

would lead to dismissal with prejudice, at least what the factors the

10

Court should consider, are the seriousness of the offenses, the facts

11

and circumstances that led to the dismissal, the impact of a re-

12

prosecution on the administration of justice and the prejudice to the

13

accused.

14

charges and that there is a justice interest in ensuring that the

15

charges, or the offense, go forward.

16

amount of time, there is extreme prejudice to PFC Manning from a

17

denial of his speedy trial.

18

come through what we have seen both in the speedy trial but also in

19

the Article 13 motion where you ask questions of witnesses and they

20

say, "I do not know, I do not recall.

21

been so long."

22

military, to ensure that justice is done in a swift manner but also,

23

obviously, in a fair manner.

And that you do have then a

Then, under R.C.M. 707, if the

And, the circumstances that

And again, the defense would concede that these are serious

But, in this case, given the

And perhaps the best example of that has

I do not remember.

It has

And, that is really why we have speedy trial in the

But, there are no winners when justice

6264

10163

1

is delayed and in this case it has been delayed a significant period

2

of time and, the majority of the time was due to the time period

3

between 22 April and 16 December 2011.

4

MJ:

Mr. Coombs, have you seen any other UCMJ cases or military

5

cases that are similar at all to this case involving the volume of

6

information, the volume of classified information and the complexity?

7

CDC[MR. COOMBS]:

Well, there are other cases where, the names

8

are escaping me, they are in our initial briefs where we do have

9

complex cases -- and, we take issue with the government's citing of

10

several cases in their brief -- Longhofer and Matli case for complex

11

cases, meaning you get a lot of time.

12

there, the total elapsed time was 322 days.

13

68 days.

14

MJ:

15

CDC[MR. COOMBS]:

16

MJ:

17

CDC[MR. COOMBS]:

Longhofer is at 29 MJ 22, and
In the Matli case it was

How do you spell that?
M-A T-L I.

Okay.
And, the cite for that is 2003 Westlaw,

18

826023.

And then, the government cites several federal cases which

19

obviously Article 10 is more stringent than the Sixth Amendment but I

20

understand why they might cite them just for persuasive authority but

21

each of those, you are talking about a much lower period of time.

22

What is unclear I guess is the comparison between the amount of time

6265

10164

1

and amount of information that you are talking about and what might

2

be viewed as complex litigation.

3

MJ:

Well, I guess I am looking at this with, from what the

4

Court has seen is there has not been, at least in the military

5

justice system, cases like this are not routinely tried.

6

know if either side has done a comparison with looking at some of the

7

federal cases that have tried some of these espionage-type cases and

8

how long they take?

9

CDC[MR. COOMBS]:

I don't

Yeah, I have not but I would probably say just

10

from -- not looking at it through this light but just reading some of

11

this case is that the day -- the federal cases would be longer just

12

because it seems that lengthy periods of time are tolerated for

13

whatever reason in federal court than it would be in a military

14

court.

15

MJ:

Yeah, they do not have Article 10, I agree with that.

16

CDC[MR. COOMBS]:

Right, Your Honor.

So, that is why I would

17

say that may be persuasive at some level but I do not think there is

18

anything approaching our case in the military courts.

19

MJ:

Okay.

20

CDC[MR. COOMBS]:

And that leads me to the Article 10 discussion

21

now so I would like to transition to that.

22

questions on the 707 that you have not asked?

23

MJ:

I think I have asked them all.

6266

So, if the Court has any

10165

1
2

CDC[MR. COOMBS]:

All right, ma'am.

Not that I do not want you

to ask them.
So, the Article 10, here we would say that PFC Manning's

3
4

Article 10 rights were also violated.

And, as of today, PFC Manning

5

has been in pretrial confinement for 964 days.

6

defense's position is that there are two main reasons for that.

7

the defense believes that the government has, in fact, been dragging

8

its feet from very early on in this case.

9

perfect its case before it went forward in the process.

And, at least the
One,

And, that is by wanting to
And two,

10

that we have had a significant amount of delay because of the

11

government operating under a misunderstanding of some bedrock

12

discovery principles and obligations.
Under Article 10, the inquiry is that, you know, the

13
14

government must show that they have been moving forward diligently

15

the entire time period from day 1 to the date of the actual start of

16

trial.

17

government been foot dragging on the case on a given issue?

18

so, has that been unreasonable?"

19

have showed diligence there is a four-part test.

20

like to do is structure my argument by that test.

21

So in kind of plain terms we ask, you know, "Has the
And if

And, to assess whether or not they
And what I would

Now this procedural framework as the court stated in

22

Thompson which is at 68 MJ and the pin cite is actually at 313.

23

four-part test should be treated just as a procedural framework as an

6267

This

10166

1

integrated process as opposed to a, you have to satisfy each one of

2

these in order to show an Article 10.

3

it is a test so I will look at that.

4

delay factor.

5

government does not concede this.

6

misunderstood the government but it seems like they conceded it in

7

oral argument and then they proceeded to argue it again that just the

8

amount of time, the 964 days is facially unreasonable.

9

MJ:

But, it is instructive because
The first is the length of the

And here it seems certainly in their written motion to
And the defense may have

I thought I heard a concession as well.

Well, facially

10

unreasonable, well, under Schubert it triggered the additional

11

factors.

12
13
14

TC[MAJ FEIN]:

Yes ma'am, it is just a trigger, it doesn't mean

it is necessarily unreasonable.
CDC[MR. COOMBS]:

Right.

And so, I won't spend any more time

15

arguing the length of delay factor because at least that gets you

16

into the rest of the factors.

17

factor which is the reasons for the delay, and here the case law says

18

what you look at is has the government spent too long kind of in a

19

waiting posture.

20

legitimate the government's justifications if those justifications

21

simply reflect the realities of the military justice practice.

22

one of the realities of our practice is there is a requirement to

So then if you look at the second

And the cases instruct the court not to accept as

6268

And

10167

1

coordinate not only with other entities within the government but

2

also with civilian entities.

3

MJ:

4

CDC[MR. COOMBS]:

That is the reality of our practice.

To this extent, was this done in this case?
To this extent, and I will go through each of

5

the OCAs, but certainly, yes, this case involves more -- it is not

6

your straightforward larceny case.

7

in this case are driven by how the government chose to charge the

8

case.

9

easily envisioned a much easier, straightforward charge sheet.

10

But also some of the complexities

And, it would have been my personal wish, but I could have

MJ:

But how does that impact Article 10?

Has any Article 10

11

case come back and said, "Look, you overcharged the case therefore

12

the things that you did to prove your case now are not reasonable?”

13

CDC[MR. COOMBS]:

No, because even if you overcharged the case

14

and then he showed reasonable diligence as to how you went about, I

15

guess, getting your case together, the remedy for that would be a

16

motion to the court.

17

say that in and of itself is problematic.

18

delay given by the government, again, go back to our main reason was

19

the need for the classification reviews.

20

basically 568 days from 27 May 2010 to 16 December 2011 to be ready

21

for the Article 32 hearing.

22

MJ:

23

CDC[MR. COOMBS]:

So no, there would not be any cases that would

How many days is that?
568 days, ma'am.

6269

But here the reasons for

It took the government

10168

1

MJ:

Okay.

2

CDC[MR. COOMBS]:

And, even if the Court upholds the

3

government's conduct under 707 based upon the excludable delays they

4

have to show they were diligent this entire time period, the entire

5

560 days.

6

to why they were, you know, taking that amount of time, and granted,

7

they might have been doing something on each given day but the main

8

reason that you had that length of delay was the need for these

9

classification reviews.

And the various excuses that the government has given as

And, one thing that Article 10 does not

10

allow is for the government to just sit back and idly wait for

11

another agency to complete a task.

12
13
14

MJ:

What is the defense's position with respect to simultaneous

defense requests for things that were going on at the same time?
CDC[MR. COOMBS]:

I think at that point -- I guess taking it out

15

from this case for a moment, if the government shows that say on

16

every day they are sending e-mails or making some calls on a given

17

issue but they still take 6 months to bring a larceny case to trial

18

after preferral you are going to have a problem with that even though

19

they can show every day they did something.

20

every day I am sure the government can show some activity in trying

21

to do something or even responding to an issue from the defense but

22

none of those things would have resulted in a 32 being delayed.

23

us asking for certain things, if the government on 22 April after the

6270

Much like in this case,

So,

10169

1

706 was done said, "Let us go."

2

issues or whatnot would have been issues that now would have been

3

addressed to the court.

4

for certain things does not give them the ability to say, "Okay that

5

is why this time should be excluded or why we were diligent."

6

Because, again, even though they have tried to articulate other basis

7

for it, it really was the classification reviews that necessitated

8

the 22 April to 16 December delay.

9

MJ:

The other requests, the discovery

So, that does not -- just because we asked

I am going to ask you the same question I asked them.

Is

10

there any case that I can look to or in the case authority that says,

11

"Okay, if a case has four components and government is really busy

12

and two of them during this period but has not worked on the other

13

two that that is -- you have to work on all four every day."

14

exaggerating, but you know what I mean?

15

CDC[MR. COOMBS]:

I do.

I am

I do not know any case, no ma'am.

And,

16

I think that is why I would say that again this is where just kind of

17

looking to see -- and certainly I think it is from the monthly

18

excludable delay memorandum that give you the best indication of

19

this, why did we have this delay?

What is the reason for it?

20

it is the classification reviews.

The other issues, like I said, if

21

you take the classification reviews out of it, if all of the OCAs had

22

their start on 23 April, I am confident that we would have gone

23

forward at the 32.

And,

I do not think the government would have said,

6271

10170

1

"Wait, wait we do not have the completed forensic report, the

2

finalize one from CID."

3

apparently the classification reviews, on 22 April they would have

4

pushed forward.

5

done, e-mails back and forth, that still would have happened it just

6

what happened post-32.

7

had a time period to get to the court and again, from a defense

8

counsel standpoint, one of the happiest days is post 32 because now

9

once you get it into a judge's hand, now you are not having to deal

They had what they believed they needed,

All those issues that the point of things have been

And then, obviously post-32 they would have

10

with the government, you have an independent arbiter that you can ask

11

to go to.

12

MJ:

But realistically looking at this, assume your 706 board is

13

done on the 22nd of April and I am going out on a limb here but I

14

doubt that the defense would have said, "Okay, I am ready to go to 32

15

on 23 April."

16

report, digest it and then you have OPLAN B that has to go into

17

effect so your looking, even if the report comes out at 22 April,

18

you’re looking at, at the earliest, an Article 32 around 1 June.
Would that be fair?

19
20
21
22
23

You know, you get a reasonable time to look at the

CDC[MR. COOMBS]:

Well, the reports that were coming out on 22

April are just the classification reviews.
MJ:

I thought that's when the 706 board was being completed

about that time.

6272

10171

1

CDC[MR. COOMBS]:

No, yes ma'am.

But I am saying I was just

2

running with your hypothetical.

If the 706 board, when it was done,

3

and we look at it, if at the same time all of the classification

4

reviews came in, I don't think we would have asked for a delay.

5

the reason why is because the classification reviews were all 2 to 3

6

pages.

The one exception is the Department of State which is 51

7

pages.

But, none of these were War and Peace novels.

8

really short.

9

surprise to the defense because we did have our own expert sitting

And,

They were

And, the 706 board, at least the results were not a

10

through and so he was keeping us updated on things.

So, I don't know

11

if there would have been a delay, I can tell you that usually and --

12

I will concede that normally, in the standard practice, the

13

government prefers, says they are ready for the 32 on day three and

14

the defense says, "Wait, wait, we need to look at things."

15

that point we have had over a year so we probably just would have

16

gone forward.

17

MJ:

18

CDC[MR. COOMBS]:

But, at

Okay.
So, for purposes of this motion, the key OCAs

19

are CENTCOM, SOUTHCOM, Department of State, INSCOM and OGA.

20

the interrogatory responses, the government acknowledges and in other

21

discovery they acknowledge that on 18 March is when they submitted

22

their formal request to complete a classification review and in that,

23

they asked for them to finalize it and they gave them until 31 March

6273

Now, in

10172

1

to do that.

What the government does not do is explain why it took

2

295 days in order to request that formally in writing.

3

most part the OCAs and their interrogatory responses failed to answer

4

why it took so long for them to complete it.

5

then is you get 18 March when the government asks for them to

6

finalize it and many of them are not finalized until early November

7

2011, so almost 230-some days later.

8

sending their kind of cut-and-paste request in subsequent months to

9

finalize your review with a new deadline which they miss.

And, for the

Because what happened

And, you see the government

But, there

10

is no -- again, there is no justification for why that time period

11

continues to go by or why they are missing these deadlines.

12

you get the end product, again, you see that is 2 to 3 pages.

13

all of them were 2 to 3 pages.

14

pages and the Department of State is 51 pages.

15

very short and at some point, especially with interrogatories, when

16

you get the opportunity to indicate precisely what you are doing and

17

why there was a delay and you fail to do that, that becomes your

18

answer.

19

time."

20

some facts that the defense would like to highlight the Court and

21

these can be found in Appellate Exhibit 448 and 449.

22

just go by OCA.

And when
Almost

The exception is OGA-1, it is nine
So, these are, again,

The answer is, "We do not have an excuse for that amount of
And, when you look at the interrogatory responses, there are

6274

And, I will

10173

The first is CENTCOM.

1

Now, this can be found, ma'am, on

2

Page 1, the answer can be found in question two and three.

And there

3

CENTCOM states that it conducts approximately 300 classification

4

reviews on average in a yearly basis.

5

anywhere from a few pages to tens of thousands of pages.

6

counsel first approached CENTCOM about a classification review on 20

7

October 2010 and that can be found on Page 3, Question 13.

8

counsel first asked CENTCOM to complete a classification review on 18

9

March 2011, at least formally, and that can be found on Page 3,

And, those reviews consist of
The trial

The trial

10

Question 16.

And again, the suspense given by the trial counsel was

11

31 March.

12

after its compromised documents were approved for use for criminal

13

prosecution and once the prosecution determined which documents they

14

were charging; and this can be found on Page 4, Question 22.

15

says it reviewed approximately 100 documents for the classification

16

review, Page 5, Question 27.

17

what they termed as action officers and the dates that they were

18

asked to work on the classification review.

19

provided by CENTCOM was 21 September 2010.

20

provided was 31 October 2011.

21

28.

22

me, daily, weekly or monthly updates on the progress from those

23

working on the classification reviews; this is Page 7, Questions 35

CENTCOM says it began its classification review process

CENTCOM

And then, CENTCOM provided a list of

And, the earliest date
And, the latest date

This can be found on Page 6, Question

CENTCOM admits that it did not require weekly, monthly -- excuse

6275

10174

1

through 44.

2

reviews, the first dated 15 February 2011; that was two pages in

3

length.

4

pages in length along with attachments.

5

81 and 82.

6

And ultimately, CENTCOM completed two classification

And the second was dated 21 October 2011, and that was three

SOUTHCOM:

That is Page 16, Questions

SOUTHCOM also says that it does not track the

7

number of classification review that they conduct on a yearly basis.

8

It stated that the classification review in this case was handled as

9

part and course of a daily operations and was staffed, keeping in

10

mind that the primary function and purpose was accomplishment of the

11

daily mission.

12

while the classification review is considered important, it was one

13

of numerous important tasks being handled; that is Page 2 and 3,

14

Question 5.

15

monthly updates on progress and did not track how many hours was

16

being worked on the classification reviews or even how often it was

17

being worked on; that is Pages 8 through 10, Questions 34 through 46.

18

SOUTHCOM completed an initial classification review in February of

19

2011 but for some reason that was deemed insufficient; that was Page

20

11, Question 52.

21

was 11 pages in length; that is Page 4 and it is entitled,

22

"amplification to response."

23

classification review after 18 March 2011 and conducted a

In their interrogatory response, SOUTHCOM stated that

SOUTHCOM also did not obtain any daily, weekly or

Their initial review was of four documents and it

SOUTHCOM began its second

6276

10175

1

classification review now on five documents consisting of 22 pages;

2

that is Page 8, Question 27.

3

classification review on 4 November 2011, it was four pages in

4

length; that is Page 16, Question 81.

And then, SOUTHCOM completed its second

The next agency is the Department of State.

5

The Department

6

of State indicates that their classification reviews were undertaken

7

by retired foreign service officers; that is Page 1, Question 1.

8

as a retired foreign service officer at the Department of State

9

stated that these individuals worked less than 40 hours per week and

Now

10

their scheduling and the nature of the department's review process

11

makes it difficult to say precisely what percentage of time was

12

devoted to any particular assignment; Pages 11 through 12, Question

13

38.

14

updates on the progress in completing the classification reviews;

15

Page 11, Questions 34 to 36.

16

keep track of the number of hours devoted by employees to one task,

17

project versus another; Page 11, Question 38.

18

acknowledges that reviewers did not work every day on the

19

classification review and did not work on weekends or holidays on the

20

classification review; Page 12, Questions 39 through 41.

21

Department of State does provide estimates as to the number of hours,

22

however, each individual spent on classification review in those our

23

estimates range from 12 to at least 32 hours in total; Page 13,

The Department of State did not require daily, weekly or monthly

And, the Department of State did not

6277

Department of State

The

10176

1

Question 44.

Department of State documents the number of individuals

2

that worked on the classification review and the time period that

3

they worked and the period that they document, a person started at

4

the earliest on 9 June of 2011 and the latest was 30 October 2011 for

5

the charged documents.

6

apparently prepared currently, thus the Department of State says that

7

it took approximately 4 months to complete the classification review,

8

and that is from June of 2011 through October of 2011; Page 14,

9

Question 46.

Their review and the report was being

The Department of State completed its classification

10

review on 31 October 2011, it was 51 pages in length; that is Page

11

21, Questions 81 through 82.

12

trial counsel -- now this is some background information, first

13

discussed the need for a classification review in August of 2010.

14

And they say in November of 2010, the Department of State and the

15

trial counsel met to discuss the first steps in more concrete terms;

16

that is Page 5, Question 13.

17

meeting, the Department of State stated that its understanding was

18

that it would do an initial sort of the cables and that should be

19

completed by the end of November 2010; that is Page 5, Question 16.

20

And after completing this initial sort, the Department of State met

21

with the trial counsel again in early December of 2010 and at that

22

meeting the trial counsel requested that by the end of January of

23

2011 the Department of State, one, authorize the remaining cables to

Department of State believes that the

And apparently after this November

6278

10177

1

be used as charged documents in a classified setting; and two,

2

prepare redacted versions of the cables that could be used in an open

3

hearing; that is Page 5, Question 16.

4

Department of State stated that it agreed with the trial counsel that

5

the Department of State would not yet begin its formal classification

6

review; and that is Page 6, Question 16.

7

the trial counsel sent its first written request for a formal

8

classification review to be completed by 31 March; that is Page 6,

9

Question 16.

During the 2010 timeframe, the

And then, on 18 March 2011,

The requested classification review was for 125 cables;

10

Page 6, Question 18.

The Department of State says that it did its

11

initial sort and then in fact began its formal classification review

12

of now 126 cables on 9 June 2011, and apparently, the trial counsel

13

had added one additional cable that they wanted a classification

14

review done on.

15

their classification review and ultimately, apparently, some of those

16

cables fell out because of the initial 126 that they reviewed, the

17

trial counsel decided to use 117 as charging documents; that is Page

18

8, Question 27.

19

approval to disclose classified information to the defense and the

20

Department of State approve that request on 29 March 2011; that is

21

Page 22 through 23, Questions 88 and 97.

22

of State gave approval to the trial counsel to use the charged cables

23

on 9 February 2011 and approval for the additional cables that were

So, from 9 June 2011 to 31 October, they were doing

On 14 March 2011, the trial counsel requested

6279

And finally, the Department

10178

1

identified by the trial counsel on 23 February 2011, that is Page 26,

2

Question 110(e).

3

The next OCA is INSCOM.

INSCOM did not track the number of

4

classification reviews that it conducted on an annual basis nor the

5

hours spent on classification reviews; that is Pages 2 through 3,

6

Questions 2 through 6.

7

communicating with them in March of 2011; that is Page 4, Question 9.

8

And the first time that the trial counsel approached INSCOM

9

concerning conducting a classification review was on 9 March 2011;

According to INSCOM, the trial counsel began

10

Page 4, Question 13.

The first written request for classification

11

review was again on 18 March; Page 5, Question 17.

12

counsel requested the review of four documents, one of them would be

13

a charge to document of the four; that is Page 5, Question 18.

14

March 2011, INSCOM forwarded the request to their subject matter

15

expert which was Mr. Cassius Hall, however, at that point, they

16

realize that Mr. Hall was a defense appointed expert.

17

giving to Mr. Hall, they gave it to another individual within INSCOM;

18

that is Page 6, Question 22 and also Page 16, Question 73.

19

other OCAs, INSCOM did not require weekly -- excuse me, daily, weekly

20

or monthly updates on the progress of the classification reviews nor

21

did they require any sort of accounting of hours spent; question--

22

excuse me, Page 9, Questions 33 through 35.

23

their work, they determined that the document was not properly

6280

And, the trial

On 28

So, instead of

Like the

And, when INSCOM began

10179

1

marked, the charged documentary they were looking at.

And, due to

2

the fact that it was not properly marked, they sent it back to the

3

author in order for that to be correctly identified as far as the

4

original source of the information.

5

document in Specification 15 of Charge II; this is Page 10, Question

6

38.

7

2011 and completed their classification review on 8 September 2011

8

that is Page 17, Question 82 through 83.

9

time INSCOM determined that the information is not within the OCA

I believe this is the charged

INSCOM began their written classification review on 7 September

And, apparently at that

10

authority of INSCOM and that that it required review of another

11

agency and that is OGA, the last OCA; and that is Page 18, Question

12

85.

13

And, I just want to highlight just a couple of dates from that.

14

begin their classification review ----

So, OGA, there interrogatory response is Appellate Exhibit 449.

15

MJ:

16

CDC[MR. COOMBS]:

17

MJ:

18

CDC[MR. COOMBS]:

They

This is INSCOM, or ---This is OGA, ma'am.

Got it.
They begin their classification review on 18

19

March 2011.

And, as I alluded to earlier, they provided a

20

preliminary classification review that confirmed the classification

21

level the documents on 24 March 2011 so, basically 6 days later they

22

can do that.

23

to the defense on that same day, 24 March 2011.

They consented to the government disclosing information

6281

And ultimately, they

10180

1

conducted a review of three documents, the review of those three

2

documents apparently took until 8 November 2011.

3

responses that would, I guess, illuminate why there was so, the OGA

4

claimed either attorney work product privilege or deliberative

5

process or attorney-client privilege to those questions, so they did

6

not respond.

7

Many of the

So, there is really no documentation from either the trial

8

counsel the Convening Authority inquiring into what is OCAs were

9

doing and why it is taking them so long.

It seems as if both the

10

government and the OCA was just content in waiting until the OCAs

11

came back to them saying, "Hey, we are done."

12

questions that you expect to be asked in order to assess what was

13

being done and you see from some of these responses, that even the

14

OCAs themselves were not keeping track of what was being done, how

15

often is being worked on.

16

prepared to take as long as they want to answer these questions and

17

the Convening Authority and trial counsel may be prepared to allow

18

them that time but Article 10 does not and speedy trial does not.

19

And, you can see the fact that even from the government's own

20

documentation, that the OCAs and the amount of time they took was

21

unreasonably long.

22

forward because on 18 March, the government sent a requests to all

23

the OCAs saying, "Hey, finalize your classification review, we are

They did not ask the

And, you can see that the OCAs may be

And, you can see that from the 18 March request

6282

10181

1

giving you until 31 March."

And then, over the next 5 months they

2

sent again, the kind of cut-and-paste jobs to each of the OCAs and

3

the took those 5 months in order to get the OCAs to complete the

4

classification reviews.

5

shows how unreasonably long that was because if it were reasonable

6

you would see a different type of tenor in these requests.

7

see 18 March, "Hey, can you complete these, can you get these back to

8

us within the next 2 months or 3 months if that is appropriate?"

9

least from the government's request, they believed a couple of weeks

And that piece of evidence in and of itself

You would

At

10

was appropriate and they continued to make those requests month after

11

month, or at least on four separate occasions.

12

the government was saying and citing speedy trial concerns and they

13

were telling the OCAs that, "Look, if you don't get the stuff to us,

14

it could severely hinder our prosecution."

15

here that you know, this is the amount of time that it took.

16

cannot have it both ways.

17

or harm the government's prosecution is now because here is where we

18

take a look to see did these OCAs respond in a timely manner, and

19

they did not.

20

MJ:

In those requests,

And yet, they have argued
You

And, the time for this to severely hamper

Should the prosecution be -- what is a defense's position

21

about sort of imputing other agency responsibility to the prosecution

22

team?

6283

10182

CDC[MR. COOMBS]:

1

Yeah, the reason why that I would say that

2

this is not an issue of, "Hey, we were diligent as the prosecution,

3

we can't control what this other agency was doing."

4

back to Pyburn type example of, "Look, the other agency may not be

5

diligent", perhaps they are not, but, you know, the buck stops with

6

you.

7

order to cajole the OCAs to complete what they needed to do.

8

-- you have kind of two problems, one just the amount of time the

9

OCAs took then also the time period in which the government was --

10

made it seem as if, and there is some confusion here of like, when

11

did they actually want them to start the classification reviews.

12

if you just take the Department of State for example, you see that

13

the discussion happened in 2010 timeframe, in 2011 timeframe, early,

14

but they don't start it until 9 June of 2011 and it takes 4 months.

15

And, they represent a good portion of the charged documents in this

16

case as far as just the sheer volume and numbers.

17

that as kind of going back to your question about how long should a

18

classification review take, apparently 4 months for the Department of

19

State looking at 250-some-thousand documents, you know.

20

backdated any of those things in the early 2011 time period.

21

they certainly knew about these, that is the other ----

22
23

This is going

And, in this instance, the government needed to do more in

MJ:

When was the last disclosures?

So,

So, if you use

So, if you
And,

I thought the Department of

State, the big disclosure, was in the middle of 2011.

6284

And, if

10183

1

CDC[MR. COOMBS]:

As far as the timeframe when all of the cables

2

were disclosed, that is in -- the actual date is escaping me.

But

3

that is certainly in the 2011 time period but the government was

4

aware of what was going on, they were identifying the cables that

5

they wanted to charge in the 2010 time period, the late 2010.

6

certainly by 1 March when they prefer their new charges, they know

7

what they are charging obviously.

8

classification review in the 2010 time period when you are

9

identifying, and as the Department of State indicates, "Yeah, we

So,

So, if you would have started the

10

basically carved out a particular amount of cables, ultimately it was

11

125, 126."

12

beginning of 2011.

13

break from early 2011, once they did identify the documents to 18

14

March when the government asks them to finalize it to 9 June when

15

they even begin it.

16

and had it done, we get back to the hypothetical of, maybe at 22

17

April when the 706 board is done, the government is ready to start

18

the 32.

19

at that point I guess.

20

that is one of the biggest problems in the Article 10 issue of the

21

amount of time the OCAs took.

22

government viewed its discovery obligations.

Well, this stuff was being done towards the end of 2010,
And inexplicably then you have a time period

And so, had they done this with each of the OCAs

And then, we would have known if the defense needed a delay
But, that is kind of the biggest problem,

The other big problem is how the

6285

10184

1
2

MJ:

Before you get there, this might be a good time to take

about 10 minutes.

3

CDC[MR. COOMBS]:

4

MJ:

5

Certainly, ma'am, yes.

Now you are transitioning into a new phase of your

argument?

6

CDC[MR. COOMBS]:

7

MJ:

Okay.

8

TC:

Yes, ma'am.

9

CDC[MR. COOMBS]:

I am, yes, ma'am and so it would be perfect.

10 minutes good for both sides?

10

MJ:

11

four o'clock.

12

[The Article 39(a) session recessed at 1607, 16 January 2013.]

13

[The Article 39(a) session was called to order at 1620, 16 January

14

2013.]

15

MJ:

All right.

Yes, ma'am.
Court is in recess until quarter after 1600 or

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

Let the

16

record reflect all parties present when the court last recessed are

17

again present in court.

18

Mr. Coombs?

19

CDC[MR. COOMBS]:

20

Yes, ma'am.

So the second, I think, overarching issue in this case was

21

a government's understanding of its discovery obligations.

And, this

22

has been the source of extensive litigation from, really, from 23

23

February 2012 to late 2012.

And, I do not want to go through each of

6286

10185

1

the things in great detail but I do want to cover some of the issues

2

that really necessitated a very protracted and prolonged discovery

3

phase to this case.

4

is due to unreasonable positions being taken by the government but

5

also not being proactive.

And again, this is an example of litigation that

So the first is the trial counsel didn't believe R.C.M. 701

6
7

even applied in classified evidence cases.

That was their position.

8

And, they maintained that position until corrected by the Court.

9

Second, the trial counsel believed he was not required to disclose

10

classified Brady information that was material to only punishment.

11

Third, they maintained that the Department of State and ONCIX had not

12

completed, in their words, a damage assessment but failed to

13

acknowledge that they had even a draft damage assessment until forced

14

to do so.

15

draft damage assessment, then their argument was that these were not

16

discoverable and they made that argument under Giles.

17

argued that, at least with the Department of State, that any

18

information that predated the draft damage assessment was not

19

discoverable because it was cumulative.

20

The trial counsel then argued that the FBI investigative file

21

concerning PFC Manning was not material to the preparation of the

22

defense; their litigation position.

23

could it not be material to the preparation of the defense?"

And once they were forced to acknowledge that they had a

6287

Then they

That was their position.

And, the Court asked, "Well, how
Next,

10186

1

the trial counsel believed that absent a specific request for

2

information, the government was not obligated to turn over material

3

that was obviously material to the preparation of the defense under

4

R.C.M. 701(a)(2).

5

argument by Major Fein where he is like, "Well, you know, we were

6

waiting for specific requests and that would educate us on what we

7

needed to do."

8

in regards to the Quantico e-mails, you had a Brady obligation or

9

once you looked at them, if they're material to the preparation of

10
11

And, you even hear echoes of that in today's

And even in today's argument, the Court asked, "Well,

the defense you got to hand them over."
MJ:

Well, do you believe that e-mails -- the government has

12

posited to me that e-mails are more like statements and then fall

13

under Jencks, not the R.C.M. 701.

14

CDC[MR. COOMBS]:

What is the defense's position?

I would say that in our motion we say that the

15

-- and this is a new argument by the government but the e-mails are

16

documents under 701(a)(2) but if they are statements, they want to go

17

a statements, I would go statements too and I would say, look at

18

701(c).

19

So, if that is their now newfound position on the issue, 701(c) is

20

any sworn or signed statement relating to the offense charged in the

21

case in which is in possession of the trial counsel.

22
23

MJ:

They have a requirement to hand over statements as well.

Am I looking at something different?

saying failure to call witnesses.

6288

I have got 701(c)

10187

CDC[MR. COOMBS]:

1

I am sorry, 701(a)(1)(C), ma'am.

I am sorry.

2

So, when you are looking at 701(a), the defense maintains that it

3

would fall under 701(a)(1)(A) -- or, excuse me, just 701(a)(1).

4

if they want to say ---MJ:

5
6
7

But,

Well, how are they a sworn or signed statement, they are e-

mail.
CDC[MR. COOMBS]:

Well this is

just the thing, I mean, if you

8

want to say that is a statement, then when you send an e-mail, I mean

9

granted, your signature block may be automatically put in there but

10

people always put their name or what not.

But, I think the thing

11

that at least looking at that for a moment, that is kind of in a

12

nutshell how the government has approached discovery in this case.

13

It is late, it is incomplete and then ultimately they have to handed

14

it over.

15

having this for apparently 6 months, they decide to look at it.

16

under their argument, it is because of Jencks they are looking at,

17

then they identify 84 e-mails they believe are obviously material to

18

the preparation of the defense.

19

between myself and two of the trial counsel same, "You know, are

20

these the only e-mails?

21

the only e-mails you believe are material to the preparation of the

22

defense?"

23

answer is that there are 1,374 other e-mails but these are the only

So, in Quantico example, you know, 2 days before, after
And,

And, we have the e-mail exchange

How many other e-mails are there?

Are these

And the answer is, "Yes, these -- you know, actually the

6289

10188

1

ones that are material."

2

the sudden they hand over, voluntarily, 600 e-mails.

3

ultimately the Court, with the exception just a handful, orders them

4

to hand over the remainder of the e-mails.

5

really of the discovery in this whole case.

6

MJ:

Once we file our motion to compel, all of
And then

And that is emblematic

From a speedy trial perspective, the rules provide for in

7

camera review when the sides disagree on what should be disclosed

8

that we should not, so following that through, I guess I am having a

9

little bit of difficulty in how that is relating to speedy trial.

10

CDC[MR. COOMBS]:

11

MJ:

Right, so----

That I could you have these tools that you can use to

12

challenge, is it the defense's position, "Well, government, you can’t

13

challenge any discovery because we want a speedy trial?"

14

CDC[MR. COOMBS]:

No, Your Honor.

And, I think that is why when

15

you go through the discovery missteps that it is important to see it

16

in that light because oftentimes the missteps or the

17

misunderstandings is what necessitated additional time.

18

then, when they got corrected as to the right standard, then they

19

needed additional time in order -- usually it is 45 to 60 days in

20

order to either obtain the information or talk to the relevant

21

Classification Authority on what they wanted to do, if they wanted,

22

you know, give substitutions.

And so, you had delays built in based

23

upon their misunderstandings.

But, had they correctly understood

6290

And even

10189

1

discovery you would have hoped it would have been kind of advanced to

2

the point that on the day of referral or -- not referral excuse me,

3

on the day of our Article 39(a), our very first one, the government

4

could have come to court and said, "Look, we have the following OCAs

5

are going to claim privileges on the following information.

6

believe this information is not discoverable for these reasons.

7

the court disagrees with us though, we have got substitutions ready."

8
9
10
11

MJ:

We
If

Well, what I guess, what process do the agencies -- the

government cannot force -- what rules would have the government be
able to force agencies to do anything before referral?
CDC[MR. COOMBS]:

It would have been the proactive aspect of --

12

and I think this is probably in our first 802 where I informed the

13

Court that we are going to be filing a motion to compel discovery and

14

the government said something along the lines of, "We are not for

15

sure what the issues are and what not."

16

is not going to be any secret.

17

information in repetitive discovery requests.

18

we are going to be asking for and what we are trying to compel."

19

so, from the defense's position, had the government, like let us say

20

for the Department of State, even though they say they were not aware

21

of the damage assessment but, let's look at the FBI stuff that they

22

were aware of that they just did not feel was material to the

23

preparation of the defense.

And I say, "Hey, look there

We have been asking for this
They know exactly what
And

They could have, in advance, gotten the

6291

10190

1

FBI to say, "Okay, look, if the court says I know your position is

2

that it is not discoverable, you know that the government -- the

3

defense wants it and likely will do a motion to compel."

4

proactive, you could have just said, "Well, if the court orders us to

5

compel this, FBI, what do you want to claim a privilege over, if

6

anything?

7

anything?"

8

every time the Court made a ruling you wouldn't need 45 to 60 days.

9

And there was at one point where in our motions for discovery said,

So being

And, what would you want to have substitutions of, if
Stuff that could have been done front loaded to where

10

"Look, we requested the Court order the government to be doing the

11

dual track", something they argued they were doing all along.

12

dual track of, "Look, you can litigate that it is not discoverable

13

but also prepare in the event that the court says it is."

14

MJ:

15

CDC[MR. COOMBS]:

16
17

The

Isn't that a lot of work for the agencies?
For the agency, as far as coming back saying -

--MJ:

Well, if you are saying all of the 505(g) substitutions and

18

redactions and all that is, I mean, are you saying that speedy trial

19

requires everything be teed up before the Court rules that it is even

20

discoverable?

21

CDC[MR. COOMBS]:

No, Your Honor.

But, when the positions you

22

know you are going to be taking, such as 701 does not apply to

23

classified discovery, knowing that you don't have any case law to

6292

10191

1

support you on that, or taking the position that Brady information,

2

at least when dealing with classified information, does not apply to

3

sentencing, when you are taking those type of litigation positions,

4

then, yes.

5

know your position is not the most solid and if you lose you need to

6

be prepared in order to hand the information over.

7

that point say, "Okay court, now you told us we need to give this, we

8

need 45 to 60 days in order to coordinate these other substitutions

9

or to find out whether or not anyone is going to claim of privilege."

The defense's position would be that you need to then

You cannot at

10

So, when I am talking about the discovery missteps and how that

11

impacted Article 10, I am not including in that legitimate disputes

12

on discovery where that, no that should not be held against the

13

government, but when they are taking the positions they are, then

14

yes, those time periods should apply.

15

So when you look at those, we do have a few issues that are

16

very well documented, they are in our reply so I will not go into any

17

detail unless the Court has questions on them.

18

as an example, we have inconsistent stories at best as to what the

19

government knew and when they knew it with regards to the ONCIX

20

damage assessment and whether or not it was a draft or they were

21

aware of the draft.

22

of State, not only with the Department of State discovery that

23

ultimately had to be compelled, but the damage assessment and the

But, looking at ONCIX

And, when you combine that with the Department

6293

10192

1

positions of the government took at the behest of the Department of

2

State such as the Giles position or the Touhy requirements.

3

there where you have unnecessary time built-in based upon positions

4

that the government could not have believed they were advancing in

5

good faith.

6

Article 10 purposes.

7

that ONCIX comprised its damage assessment from, again, we have

8

inconsistent stories at best as to when the government reached out

9

those agencies to get the damage assessments.

You see

And, those times should be applied against them for
The 63 agencies, and I guess there is like 57

Some accounts is, "We

10

did it in 2010", we also then have an e-mail and 27 February 2012

11

after the arraignment where a paralegal is saying, "Hey, we just

12

found out we need to go directly to you to get these documents."

13

Again, inconsistent stories but stories that at the least, show a

14

lack of diligence in obtaining information.

15

questions to the government when they were going to their facts was,

16

"Well, where is the defense stuff that you are obtaining, you know,

17

reaching out to get?"

18

sent it out immediately or we took our litigation position of, 'you

19

did not give us enough specificity', or you are not entitled to it or

20

what not."

21

to perfect their case,

22

Department of State, other agencies to get information they needed.

23

Our whole discovery battles are almost issues of first impression

And, one of the Court's

And they basically say, "Well, if we had it we

But, I think all of their accounting shows their efforts
How much exchange they had with the FBI, the

6294

10193

1

with them trying to go get information, such as from the Department

2

of State.

3

MJ:

Well, what is the defense's position on that?

R.C.M. 701

4

appears to have discovery trigger on referral -- I mean discovery for

5

the defense has not part of the government's case-in-chief other than

6

Article 32, 405 discovery.

7

CDC[MR. COOMBS]:

And I would agree -- the defense would agree

8

with that that is when their discovery obligations kick in.

9

Article 10 would exact a more proactive requirement on the

But,

10

government's part to at least identify this information.

11

when now, and I am sure all the parties, and I know I can speak for

12

myself, that on 8 February 2011 when we had our 802 session, I did

13

not envision a time in -- excuse me, 2012

14

MJ:

15

CDC[MR. COOMBS]:

Certainly

You mean 2012?
I did not envision a time in 2013 when we

16

would still be talking in a courtroom at least about the same case.

17

So, and a lot of that was because of this discovery.

18

10, I think, would require them to be a little more proactive than

19

they have been.

20

DA, their own agency.

21

July 2011 for HQ, DA to capture information that would be relevant to

22

this case.

23

argued, that the defense was aware of the fact that HQDA had never

And so Article

And a good example of not being diligent is with HQ,
There they apparently sent out a request on 29

And it was by sheer utter luck that I have previously

6295

10194

1

done anything.

They did a memo on 17 April 2012 saying, "Hey, you

2

know what, we never collected any of this, we were not responsive."

3

And then again, the government has to go out and get this

4

information.
The Quantico e-mails we discussed, each of the main issues,

5
6

the ONCIX; the 63 agencies; FBI; Department of State; HQ, DA; every

7

one of those is where ultimately we got the information.

8

position, the government's, at least the defense's argument is, that

9

the government's position was not with a firm understanding of its

And in each

10

discovery obligations.

And so, when you combine those two, the basis

11

for the delay or the cause for delay, we would say Article 10 would

12

say, the government was not diligent both the obtaining of the OCA

13

classification reviews and in the discovery obligations.

14

time periods should be held against them for Article 10 purposes.
The third factor is a demand for speedy trial.

15

And those

And this is

16

a rather straightforward factor, did the defense make a demand or

17

not?

18

that demand on 25 July and in the oppositions to the monthly delay

19

request by the Convening Authority.

20

demands were made legitimately.

21

the government up in order for them to say, "Okay, let us go", and

22

then, we ask for a continuance.

23

demand -- I think when you look at this case with any other type of

And, we made our first demand on 13 January but then we renewed

And each of these speedy trial

They were not made in order to set

That was not the scenario.

6296

The

10195

1

military justice case, these demands were made well into the second

2

year.

3

pace and your client is in pre-trial confinement, that is when this

4

demand comes.

5

mistake that demand was on 13 January, one month after our

6

preliminary classification review was completed, because we viewed

7

the 706 board as the only hurdle to get the Article 32 going.

8

when the government, in a month time period had not done anything,

9

from the defense's perspective, to get the 32 started excuse me, 706

And when you see the movement of the case being at a snail's

And, as the defense explained earlier, it was no

And

10

board started again, that is why we made our demand, recognizing that

11

I was still during a time period which otherwise would count -- not

12

count against the government because of our request for 706 board.

13

MJ:

What is the defense's position?

On the 25th of July 2011,

14

did you know -- did the defense know that the main cause for the

15

delay was getting the OCA reviews?

16

CDC[MR. COOMBS]:

Yes, at least that was our understanding.

And

17

the reason why is because when you look at their cut-and-paste memos,

18

it was to get -- it was always to get the OCA classification reviews

19

and then they would occasionally throw in something else and then

20

that would be done but the classification review was the one

21

consistent.

22

defense's position would not hold up the 32.

23

both in the 25 July and -- but primarily on 25 July, that you had

And, all the other bases for a excludable delay from the

6297

And, we were arguing,

10196

1

other alternatives, substitutions that you could direct in order, and

2

still move forward with the 32.
MJ:

3
4

Did you say that the defense waives to any challenge of the

classification of the documents at that time?

5

CDC[MR. COOMBS]:

6

MJ:

7

CDC[MR. COOMBS]:

No, we did not, ma'am.

Okay.
Nor was that asked of us.

And, but I do think

8

that you could read into that when we are arguing to the Convening

9

Authority that, "Hey, look at your alternatives, your substitutions

10

for classified information, summaries, you know, to move forward with

11

the 32."

12

again, I think a proactive trial counsel at the very least would then

13

respond with, "Okay, look, Convening Authority, here are the reasons

14

why."

15

needed to wait and given a detailed update, our main criticism that

16

you have not provided any details to the Convening Authority, would

17

have provided those details as to what was being done.

18

Manning's first speedy trial request was well in advance of both the

19

arraignment and the litigation of this case, in fact it was 407 days

20

before his arraignment on 23 February and 733 days before the

21

litigation; the speedy trial motion here today.

22
23

And so, when we make our demand, at least on the 25 July,

So, the very next one would have laid out the reasons why they

So, as PFC

The final factor is prejudiced to the accused.

And, there

the courts look at basically three factors: to prevent oppressive

6298

10197

1

pretrial incarceration, to minimize anxiety and concern of the

2

accused, or to limit the possibility that the defense will be

3

impaired.

4

confinement was at least an Article 13 violation, at least some of

5

it, so that would most certainly meet the oppressive category.

6

the sheer length of time that PFC Manning was in pretrial

7

confinement, the common sense conclusion to that would be that yes,

8

that would cause anxiety and concern because he has been deprived of

9

his liberty now for 964 days.

And, the Court has already found that the pretrial

And

But, the main problem here is this

10

last factor, and that is prejudice to the defense and the defense

11

would be impaired.

12

fading of memory of witnesses as time goes by.

13

there will get the merits we will have that answer more than once, "I

14

do not recall.
MJ:

15

And in this instance, we see this again with the
And, I am certain

I do not remember."

In your interviews with witnesses thus far have you got

16

anything concrete that you want to put on the record with respect to

17

that?

18

CDC[MR. COOMBS]:

Nothing -- well, no ma'am.

What I would say

19

is in my interviews of the witnesses so far I am asking about

20

factors.

21

don't recall that.

22

can say concrete at this point as a fact that would hurt the defense

23

but I am sure there will be those.

There are certainly examples where they would say, "Well, I
It has been a while."

6299

There is nothing that I

But the Article 13 we certainly

10198

1

see that when they couldn't remember certain things or understand who

2

was there.

3

and I understand, you know, we did not have witness testimony there

4

but it would have been helpful to know who was in that guard room.

5

You know, if the motion were done shortly after this incident we

6

would know.

7

have then testified and the Court could have seen their demeanor and

8

judged.

9

are going to say, "It has been several years, it might be important

One of the main things of the standing naked in his cell,

And, we could have brought that person and they could

But again, it is just common sense, I think, that witnesses

10

to your client but for me I have got other things going on so I don't

11

recall."

12

defense's position is that this does spell and Article 10 violation.

13

And just because a given time period might be properly excluded under

14

707, and there are some time periods certainly, that the government

15

is on the hook the entire time for Article 10 and they cannot be

16

excluded that time period by the Convening Authority, a court or

17

anyone.

18

defense's position is it is in Article 10 violation.

19

Article 10, the only remedy is dismissal with prejudice.

And, when you look at that, all of those factors, the

And because of that, when you look at all this time, the

20

MJ:

21

CDC[MR. COOMBS]:

22

MJ:

23

TC[MAJ FEIN]:

And under

All right, thank you.
Thank you, Your Honor.

And is there anything further from the government?
Yes, ma'am.

6300

10199

1

MJ:

Okay.

2

TC[MAJ FEIN]:

Ma'am, the intent of the government on this

3

rebuttal is just to clarify some factual issues based off of mostly

4

defense excuse me, the Court's questions to the defense.

5

Your Honor, in the defense's motion or, in their motion or

6

reply, excuse me, and our response it is not contested whether it is

7

a complex case or not.

8

defines complexity.

9

question the Court has asked both parties, "Is there any other case

I think the issue is how complex and what

The United States argues, in reference to a

10

that would be similar as far as possibly complexity, security

11

clearances, amount of evidence, volume of evidence?"

12

States argues there is one factor that makes this case probably the

13

most unique of any other Article 10, speedy trial case, that starts

14

the complexity and the rest of the factors I will go over in a minute

15

increase the amount of complexity.

16

Honor, is the actual timing of the offense and how this -- how

17

Private First Class Manning was found to have committed the offense

18

and the investigation that ensued and the ongoing releases that

19

caused the national security concern.

20

contrast that to the majority of the Article 10 cases is that the

21

crimes are completed, the effects of the crimes are known and then an

22

investigation ensues.

23

is a co-conspirator case, one testifies against another, that causes

The United

And that single factor, Your

The reason to compare and

Co-conspirators are determined, either if it

6301

10200

1

delay.

If it is a case that requires unique or voluminous evidence,

2

at the time of the clock running, so that will be pretrial

3

confinement or preferral of charges, the population of information or

4

the total amount is known at that time.

5

and from the documentation and evidence presented to the Court is

6

that that was not known really, I mean again, even today it is not

7

known, but the government had to make a decision to move forward,

8

balancing the accused's speedy trial rights and to have proper

9

accounting for the alleged misconduct.

What is clear from testimony

But, the decision to charge

10

additional charges was on 1 March, that was a government's cut off at

11

that point for the misconduct that occurred the previous year, all

12

the way up until the beginning of May 2010.

13

United States argues this is the defense is very fast to use certain

14

numbers and saying why to 270 days for classification review from the

15

Department of State to even get started formally, because that is

16

running in number from 27 May 2010 all the way until March of 2011.

17

But the evidence before the Court both in the OCA declarations, the

18

trial counsel decorations, the trial counsel requests that have been

19

submitted, and the proffers made throughout the entire life of this

20

case in front of this Court is that the information was not even

21

known to what to be charged, figured out, until the fall of 2010.

22

although, yes, there is no question the government is not contesting

23

that Private First Class Manning's speedy trial rights attached, I

6302

So, the reason the

So

10201

1

guess technically for Article 10, it would be sometime after pretrial

2

confinement started, not the day pretrial confinement started based

3

off the case law.

4

confinement, at least for least R.C.M. 707, eventually Article 10 and

5

it started running.

6

unique is that the government could not have understood the extent of

7

the alleged misconduct until months gone by and the evidence was

8

collected and analyzed.

9

presented to the court and for the court to review.

10

But anyways, it attached once he is in pretrial

But the complexity of this case that makes it so

And, that is what the government has

Now, other factors that the government argues is the number

11

one factor for complexity, but the other is procuring of evidence,

12

obtaining authority to disclose evidence, forensic evidence itself,

13

not just you know, a gun, not just a bloody knife or a glove, this is

14

forensic evidence that had to be fully analyzed, more than 20

15

separate pieces.

16

the mitigation efforts that had to occur as outlined in the different

17

damage assessments the defense and the Court has seen that had to

18

occur immediately to lessen the impact to national security, that

19

effected the law enforcement investigation and the prosecution.

20

numbers of organizations involved, classification level and number of

21

documents compromised, the classification level of the documents

22

subject to discovery, security clearances, even for civilian defense

23

counsel, misconduct occurred in theater.

The United States government widespread reaction,

6303

The

This happened in Iraq and

10202

1

then the majority of analysis after the summer then occurred back in

2

the DC area.

3

including all the way up until today, M.R.E. 505(h).

4

government argues all of those factors are what makes it complex but

5

not trying to minimize that the major factor of why this case is

6

different than all others.

The ongoing nature of the crime and ongoing disclosures
So, the

7

Next, overall Your Honor, and then getting into specifics,

8

the government has never contended that the reason for the delay was

9

solely for classification reviews.

It was a major factor, but it was

10

no greater of a factor than all the other factors presented to the

11

Convening Authority in every 30-day memo.

12

memo starting in October and then that started with the prosecution's

13

request.

14

have classification reviews except for as a subsection, it was

15

disclosure of evidence.

16

evidence.

17

the Court to believe that if all the classification reviews had

18

occurred by April 22nd with some reasonable or some minimal amount as

19

time as long as you had classification reviews, we could have gone to

20

trial.

21

Honor, is that the CID case file was not even given to the defense

22

because we did not have authority to do that until after that point.

23

So, that means we would have been going to an Article 32 when the

That was an accounting

In fact, even those request memos starting in April did not

Classification reviews are just one piece of

That was the major driving factor.

So, the defense wants

But what the Court cannot forget when you review this, Your

6304

10203

1

defense and -- well the defense, did not have access to even the

2

unclassified CID file, let alone the all of the evidence that

3

supports the charges on the charge sheet.

4

summer, that is disclosure of evidence, both unclass and classified,

5

all the way until October 28 ----

6

MJ:

7

took so long?

8
9

So, talk to me about that.

TC[MAJ FEIN]:

That occurred over the

You have the CID file, what

Well, ma'am, the CID file first was ongoing.

It

was being created as we -- as the evidence we have are spoke about,

10

once it was finally coalescing around February, and this is in the

11

trial counsel's declaration, in the February timeframe, the

12

prosecution said, "Listen, we have additional charges coming, we need

13

to disclose that under our obligations."

14

together, getting it packaged, ready and then gave it up to us and

15

that is when we started sharing it with certain organizations and

16

partners and other law enforcement organizations.

17

it was identified to us, the prosecutors, that it contained potential

18

classified information.

19

-- I mean, frankly, other than what we have seen already, we have to

20

be told when there is classified information unless it is completely

21

blatant or marked.

22

identified, and all of these dates are in our declaration, once that

23

was identified, then we had to have that file reviewed.

So, CID started putting it

And, that is when

We, as attorneys, Your Honor, would have no

This is the unclass CID case file.

6305

Once that was

It had grand

10204

1

jury information in it as well because CID worked closely with the

2

Eastern District of Virginia and the FBI as a joint investigation,

3

and it had classified material that, unfortunately, was not marked

4

properly because most of it was witness interviews.

5

the witnesses said, "I do not think this is classified."

6

agents had no reason to know whether it was or was not, they had to

7

take the interviewee's word for it; they did.

8

started getting reviewed, that is what happened.

9

that over the summer, the exact dates again are in the prosecution's

In those AIRs
The CID

And then, once it
So they received

10

declaration and our discovery, Enclosure 18.

11

occurred over the summer, Your Honor.

12

that we finally had approval to turn over all of the remaining

13

classified material, and that is when it was given.

14

reviews were just one of the many different pieces of evidence.

15

And, that is what

And it was not until the fall

Now, Your Honor, very specific points.

Classification

The defense talks

16

about how for under R.C.M. 707, the period of time between 12 July

17

excuse me, 28 July and 4 August, there is a 10-day period in that

18

Colonel Coffman under no circumstance should have been able to, on 11

19

August, I guess, retroactively adopt that delay period.

20

briefed already in the written briefing and just to outline for the

21

court, is Enclosure 11 to the government's response to speedy trial

22

first has the memo dated 11 July from then Captain Paul Bouchard, the

23

defense counsel on the case in Iraq who requested the original delay

6306

What is

10205

1

of the 32.

12 July, the second request, but the key two requests

2

here, Your Honor, is on 11 August 2010, then, as the temporary lead

3

counsel, Major Hurley submitted a memo through the IO to the

4

Convening Authority, and doing it for a delay request.

5

request, Major Hurley specifically says the defense requests a delay

6

in the court-martial you ordered under the provisions of R.C.M. 706

7

until it is completed.

8

delay because Captain Paul Bouchard initially requested the inquiry

9

from PFC Manning's previous chain of command.

And in this

The defense maintains responsibility for this

So the Convening

10

Authority adopted what the defense submitted as they were accepting

11

that is what it was, and case law supports that the Convening

12

Authority can do a retrospective, even if a previous command, because

13

it was an ongoing delay request.

14

shows, was continuously working on the 706 board.

15

handed it off to the forward command, that was one of the two main

16

reasons Private First Class Manning moved to the DC area.

17

also Your Honor, on 25 August 2010, Mr. Coombs submitted a request

18

for appointment of an expert and even recognizes that on 18 July,

19

though the date is incorrect, the defense requested a 706 sanity

20

board be appointed.

21

defense counsel, recognizes that the current 706 really is operating

22

under what was requested in theater, not what was requested by the

23

current defense counsel.

And, the government, the evidence
The old command

And then

So, even in this memo, Mr. Coombs as the new

6307

10206

1

Your Honor, next time period, this is dealing with between

2

13 December 2010 and 3 February 2011, on whether the 706 board could

3

move forward or not.

4

MJ:

5

TC[MAJ FEIN]:

6

What are those dates again?
I am sorry, 13 December 2010 until 3 February

2011, Your Honor.

7

MJ:

8

TC[MAJ FEIN]:

9

And, the defense specifically stated ----

All right.
The defense said that, "The US Government, the

prosecution, was being reactive not proactive", and then, interesting

10

enough, said, "Did nothing to prepare for the R.C.M. 706", during

11

oral argument.

12

government to be proactive and say that this would be reasonable.

13

Two things would be reasonable, one, to identify a SCIF location

14

ahead of time; two, identified board members ahead of time."

15

Honor, both of those tasks were completed, not one change, but the

16

prosecution did that with the 706 board.

17

evidenced, I will give you the exact pinpoint, Your Honor, the

18

prosecution's declaration, Page 21 and 22.

19

explains how on 9 September 2010, the original standing board members

20

were selected and were standing by:

21

Schneider, and Captain (Promotable) Benesh.

22

Lieutenant Colonel Hemco replaced Schneider, that did occur.

23

then once it was formalized and the clearances were worked on, and

And then, specifically said, "You would expect the

6308

Your

Your Honor, that is

Page 21, the government

Doctor Sweda, Lieutenant Colonel
And then on 21 December,
And

10207

1

all of the information after the holidays, that is when the

2

clearances started.

3

Question number 103, this is where the prosecution explains that a

4

SCIF location was identified but defense stated they wanted a

5

different location.

6

the Court.

7

a different location from what the prosecution already found, that is

8

why there was not a location identified during that period of time.

And second, Your Honor, on Page 22, answer to

That is also on e-mail that has been provided to

And it was only based off of the defense request to find

Next period of time, Your Honor, 4 March to 22 March 2011.

9
10

This is the reason, Your Honor, the government included e-mails

11

between the 706 board members, prosecution and defense for the Court

12

to review because in those e-mails, the Court will see not only how

13

defense requested to meet with their client, we have are discussed

14

back and forth, but what has not been discussed and was not briefed

15

on the -- or isn't readily available in the slideshow, is that

16

additionally, the defense requested that their experts sit in with

17

the board.

18

to coordinate their defense expert to take part in the 706 board.

19

And, a lot of that time was coordination between the defense expert,

20

based off their request, and the board.

21

there.

22

there, Your Honor, of this timeframe and they are in numerical order.

23

We can pull the exact ones if you want it, at least the range, but

The board was not comfortable with that and they also had

And again, those e-mails are

Instead of just cherry picking one or two, they are all

6309

10208

1

the 706 board section is very small.

2

of what was going on.

That will account for that time

Your Honor, in reference to OPLAN B, so this would be the

3
4

16 November to 15 December of 2011 timeframe, defense argues that on

5

16 November, Colonel Coffman stated that or during his testimony, he

6

stated that if he did -- could he have ordered OPLAN B to start

7

earlier than 16 November if he had all the classification reviews and

8

then there was a colloquy between the Court and the defense earlier

9

about well, at some point, it be too early essentially, or could it

10

be?

Well, the fact to not be lost here is that even on 16 November

11

when the prosecution briefed Colonel Coffman, and it is in our

12

written memorandum, the prosecution even stated that we do not have

13

all classification reviews, we have all but one but we have been

14

given assurances that we will have that last one no later than 2

15

December, and even included a redacted classified e-mail so Colonel

16

Coffman and the defense could see that.

17

review as well.

18

on whether all the class interviews would be done.

19

the very last step, the government would concede, is at last

20

classification review because all of the other evidence had been

21

disclosed by 4 excuse me, 8 November and this was 16 November.

22

Colonel Coffman ordered it.

23

have them all in hand then he would have waited until 1 December

And, the Court has that for

So Colonel Coffman made that decision weighing risks
And so, although

If he was simply waiting definitively to

6310

10209

1

because that was the date the government actually received the

2

classification review and then would have ordered it.

3

Your Honor, this might be clerical or maybe not, as far as

4

one period of time, the period of time between 3 February, which of

5

course was referral, and 23 February, arraignment.

6

oral argument, said 8 February, the first R.C.M. 802 conference over

7

the telephone is excludable from 8 February to 23 February.

8

government argues under the trial judiciary rules and local rules, it

9

is 3 February through 23 February is excludable and that is Rule 1.1,

Defense, during

The

10

Trial Judiciary Rules.

11

the Court -- the government e-mailed the Court the EDN with the

12

referral packet on 3 February at 1819 hours and that is when the

13

Court should have received the actual charges at that point.

14

And, just for quick reference, Your Honor,

Next, Your Honor, the argument that Colonel Coffman as a

15

special court-martial convening authority was simply a rubber stamp

16

and did not, in every document he -- well, not every document, every

17

delay was this cookie-cutter and the same.

18

consistently either is not explaining and the government wants to

19

ensure the Court understands is that it incorporates and references

20

any defense filings and any prosecution filings.

21

has already, in a previous session, gone over each of these monthly

22

memos so I am not going to do it again.

23

least point out at least in Enclosure 11, Your Honor, to the

6311

What I think the defense

So, the prosecution

But, we would like to at

10210

1

government's motion, is each of the monthly delay requests after 22

2

April, which outlines every reason for request and updates the

3

Convening Authority at all of the activity, and the defense at the

4

time, of all of the activity is going on.

5

this, the defense knew exactly what was going on and what still

6

needed to occur, not just classification reviews, that is one of many

7

factors, and is listed, Enclosure 11, Your Honor.
Your Honor, and as far as prejudice the accused:

8
9

So, at any point during

memory.

First off, Article 13 is a good and bad example.

Witness
The

10

defense wants to argue that the placement of a motion and when it

11

occurs somehow should be imputed on the government as an additional 9

12

months of memory loss.

13

first motion in February that could have occurred.

14

extra 9 months, and it goes back to this playing with numbers, Your

15

Honor, if the government did not even have the capability to

16

understand the complexity or what actually occurred in this case

17

until mid to late fall of 2010, the additional charges were not until

18

March of 2011.

19

that we had this case referred.

20

before so, it is less than a year at that point, Your Honor.

21

the government truly understood how the accused could have committed

22

or did commit his crimes with all of the forensics that witnesses

23

were called, testimony was preserved during the Article 32 for those

The Article 13 litigation could have been the
And then that

It is less than 1 year after the additional charges
The Article 32 happened 2 months

6312

Once

10211

1

witnesses.

The defense had an opportunity to call any witness they

2

wanted.

3

issue it could have been preserved at the Article 32 if the defense

4

chose to, if that was a true concern of the defense.

5

course, would not have been part of the preservation.

Some were denied, others were not, so if that was really an

Your Honor, reasons for delay:

6

Article 13, of

Normal military justice

7

practice.

Granted, the defense counsel definitely has combined more

8

years of practice in Military Justice than the prosecution table, but

9

the prosecution is unaware of any military justice case, except for

10

well no, no military justice cases that require the amount of

11

coordination both within the Department of Defense and outside of the

12

Department of Defense with so many issues involved than this one.

13

This is not normal military justice practice with the requirements

14

that this case has had.

15

charge sheet, this stems from the alleged misconduct that caused the

16

government, the command, to issue charges or swear out charges.

17

And, Your Honor, this does not stem from the

Your Honor, as far as classification reviews, I have

18

already discussed the different timing, the government would just ask

19

that Court, if the Court does review again the different declarations

20

that the government presented from the OCAs, the numbers that the

21

defense submitted are fair, their conclusions are fair in there

22

however, their out of context, specifically for instance the CENTCOM

23

explains exactly why it took so long and the INSCOM one explains also

6313

10212

1

I took so long.

2

how Mr. Paul was supposed to be the one doing the classification

3

review.

4

time, because their expert was conflicted out so they had to figure

5

out who else could do it.

6

declarations.

7

The defense, during oral argument today, explained

Well, INSCOM in the declaration explains why it took extra

And, those nuances are explained in those

Your Honor, the defense argues that there is no

8

documentation showing the trial counsel pushed OCAs through the

9

finish line, to the finish line other than the documentation that the

10

Court has in front of you, the different memos that were submitted,

11

granted, they were very similar in nature but those memos were also

12

followed up with phone calls or preceded by phone calls and that is

13

annotated in both the prosecution and the OCAs declarations as well.

14

Your Honor, in reference to discovery obligations, the

15

defense argues that the prosecution's unreasonable positions caused

16

protracted litigation.

17

best stated as that Military Justice causes protracted litigation in

18

a complex case.

19

is why we have an adversarial system.

20

arbitrate ultimately and decide those positions such as motion to

21

identify Brady material; arguing that grand jury and FBI somehow is

22

in the possession, custody or control, their information, of an Army

23

prosecutor; specificity, over and over again requiring specificity

Unfortunately, Your Honor, I think that is

The defense has also had unique positions and that

6314

It takes a military judge to

10213

1

and the defense not providing it, so the government having to provide

2

them witnesses to give them the specificity.

3

position that offense took and litigated as well.

4

motion to dismiss that was unique and had no precedents based off of

5

discovery issues.

6

statements, it says that, "serve as the basis for charges"; that

7

would not be an Article 13.

8

serve as the basis of charges.

9

both parties are adversarial and have developed legal positions and

But again, it is just a
Unique litigation;

And even today, Your Honor, 701(a)(1)(c) for

Any evidence from Article 13 would not
The point here, Your Honor, is that

10

argue those and the parties need a military judge, a court, in order

11

to finally adjudicate them.
Your Honor, the defense also argues that somehow the

12
13

prosecution should plan for every contingency by having everything

14

somehow frontloaded, all the discovery issues, prior to referral of

15

this case.

16

government, if there is information used to produce, it is produced.

17

FBI is a great example, the defense uses the FBI actually is an

18

example on how the prosecution focused on a perfection of its case

19

versus discovery.

20

there is very little to none of the FBI material that the prosecution

21

intends to use in its case in chief.

22

specific type of information that is unrelated to the Private Manning

23

case and then one other specific that is unrelated to the Private

But, the government cannot plan for contingencies.

The

The prosecution is maintained from the beginning

6315

In fact, it is only on very

10214

1

Manning case.

2

Class Manning, that is simply what we are obligated to turn over and

3

should turn over to the defense and that was frontloaded, Your Honor.

4

The record is complete on this, up to the point of once the Court

5

ordered on 16 March 2012, a protective order, that day the

6

prosecution handed over the first majority of the information wave of

7

FBI material to the defense.

8

perfect the government case.

9

When it comes to the FBI's file for Private First

That was frontloaded and it was not to

Your Honor, as far as Headquarters, DA again, is another

10

unique argument from the defense that somehow because the defense was

11

lucky to come across one memo, that is why they received that

12

information.

13

declarations and the previous filings is that the prosecution, was

14

already working on that.

15

the OTJAG to actually retrieve the information excuse me we do not

16

send our Deputy, we ask our Deputy.

17

have sworn to and our declaration.

18

working to obtain that information.

19

so long because the prosecution and even the OSJA do not have the

20

power to commandeer this information but we were working on it.

21

only came to light to the Court because the defense came across a

22

memo that they then used to justify their motion.

23

prosecution was already working was already working to disclose that

What the defense is failing to recognize from the

The prosecution sent their Deputy SJA up to

6316

We e-mailed multiple times as we
The prosecution was already
It is unfortunate that it took

It

But, the

10215

1

material.

So, it was not because the defense stumbled across

2

something, this is just another example of how the prosecution

3

frontloaded as much of the discovery issues as possible before

4

referral so once an issue came up, we could have a judge properly

5

adjudicate.
Your Honor, subject to your questions.

6
7

MJ:

8

TC[MAJ FEIN]:

9

MJ:

10

I do not have any, thank you.
Yes, ma'am.

Mr. Coombs, any final thoughts?

CDC[MR. COOMBS]:

Just a couple, Your Honor and only because I

11

do not think this is in our reply but I think most of the issues that

12

the government just brought up are directly dealt with an our reply.

13

We also would say that the e-mails I think lay out the objective view

14

of this so if the Court does not want to take a spin from the

15

government or from the defense, I think the e-mails speak for

16

themselves on the 706 issues.

17

the e-mails, but I wanted to alert the Court, is that the initial

18

SCIF, which the defense's memory of this is that it is much earlier

19

than the time period that we are talking about, but the government

20

identified CID as a SCIF location and the defense's memory of our

21

conversations with the government was that just did not pass the

22

common sense test.

Maybe we should look for a different SCIF and the

23

government agreed.

So, it was not an issue of us refusing, the

The one thing I am not for sure is in

6317

10216

1

defense's memory of this was it was an exchange of just an open

2

conversation of what you think of CID SCIF as being a location?

3

ultimately, we agreed that that did not pass the common sense test

4

and we would look for a different location.

5

other issues that Major Fein brings up in his response, I think our

6

reply motion lays our position out.

7
8
9

MJ:

And

So, other than that, the

All right, thank you.
All right, I have heard argument on this issue.

I have

both side's submissions, I have the supplements to the submissions

10

from both sides, I have the corrected copies of those submissions

11

from both sides.

12

Coffman e-mails, defense counsel and trial counsel e-mails and

13

interrogatories.

14

advisement and will have a ruling on or before the next session which

15

is going to be starting on 26th of February.

16

I had e-mails, I have R.C.M. 706 e-mails, Colonel

The Court will be taking this motion under

We still have a few additional things to go through today.

17

I am going to need a little bit of time just to finalize some issues,

18

but I wanted to, before I do that, they are judicial notice and

19

Ambassador Galbraith.

20

ambassadors, are they called Ambassador Retired or they just called

21

Ambassador?

22

CDC[MR. COOMBS]:

And just for my education, retired

It is just Ambassadors, Your Honor.

6318

10217

1

MJ:

Does either side desire to state anything further with

2

respect to the judicial notice motions since I got the defense's

3

response yesterday and the government's supplement a little bit

4

earlier?

5

[Pause]

6

MJ:

Do not feel forced.

7

ATC[CPT MORROW]:

Your Honor, only a couple of questions about

8

the hearsay objections.

I think government stated pretty clearly

9

what the relevance of this information was, or the facts were.

But,

10

if you have any questions about taking judicial notice of, you know,

11

a date or that something was published, then I think that, yes, you

12

know, if that calls for hearsay then the government would like to

13

explore that, but we do not think that is a valid hearsay objection.

14

And, the government will just say that we look to your ruling already

15

on the Finkle book.

16

existence of the book, excerpts and the date of the publication.

17

you know, with respect to the New Yorker article, as well as a New

18

York Times article, we do not think those are major issues for the

19

court, certainly not hearsay issues.

20
21

MJ:

You already took judicial notice of the

Okay, and I believe the defense's or one of the other

defense objections was relevance, is that right?

22

DC[CPT TOOMAN]:

23

MJ:

Yes, Your Honor.

Okay.

6319

So,

10218

1

ATC[CPT MORROW]:

2

relevance or hearsay.

3

MJ:

So, only if you would like to hear more on

Well, I guess we are looking at this is, wouldn't I be in a

4

better position to look at relevance when we are actually at the time

5

of trial when you are offering that?

6

ATC[CPT MORROW]:

That is correct, Your Honor.

And at that

7

point, I guess we could.

8

chat logs, they may be admitted and then -- well ----

9

MJ:

The issue is, that least with respect to

I guess, where I am looking at this, and government, and I

10

will just tell you where I think I am going, and if either side wants

11

to discuss this any further, if the objection is relevance and that

12

is it, or relevance and hearsay, the Court can rule that I will take

13

judicial notice upon a showing of relevance and a non-hearsay purpose

14

at the trial as opposed to doing this all hypothetically now.

15

ATC[CPT MORROW]:

That is fine, Your Honor.

16

no objection, but we ----

17

DC[CPT TOOMAN]:

The government has

Your Honor, the defense is fine with that as

18

well because we would say that the government has not proffered

19

adequately the relevance of these things and so if the Court wants to

20

wait, certainly for many of the things in our response, I think it is

21

clear that if the Court finds that they are relevant we would have no

22

other objection.

23

relevance at trial, there is no defense objection to that.

So, if the Court wants to defer until a showing of

6320

10219

1

MJ:

So, I guess would be a conditional judicial notice ----

2

ATC[CPT MORROW]:

I mean, upon admission of the chat logs, we

3

would argue that these are absolutely relevant.

4

want to wait--if the court wants to wait until the admission of the

5

chat logs ----

6

MJ:

7

ATC[CPT MORROW]:

8
9

So, I mean, if you

Which one is the chat log?
The Lamo chat logs as well as the chat logs

between ---MJ:

Did you add new things in your supplement that you want me

10

to judicially notice that you had not asked before?

11

supplement was just to explain the addendum.

12
13

ATC[CPT MORROW]:

MJ:

15

to find?

17

I thought there were A through H, facts that you wanted me

ATC[CPT MORROW]:

MJ:

19

ATC[CPT MORROW]:

21

And that is when we laid those out again, Your

Honor, and then explained ----

18

20

You asked for additional

sources then you asked -- no, you didn't ask for anything additional.

14

16

It was, Your Honor.

I thought the

Well, where are the chat logs in there?
We cited to the -- it is in the actual

enclosures.
MJ:

You want me to use that as a supporting basis for a fact,

22

you do not want me to ----

23

ATC[CPT MORROW]:

Exactly, it was to explain the relevance.

6321

10220

1
2

MJ:

---- oh, I thought you are asking me to take judicial

notice of facts.

3

ATC[CPT MORROW]:

4

DC[CPT TOOMAN]:

No, not at all, Your Honor.
Your Honor, the defense's, I guess, issue with

5

the relevance proffer from the government is the government saying,

6

"This fact we want you to judicially notice is relevant to this other

7

evidence that we plan to offer", without telling the Court how that

8

other evidence is relevant.

9

other evidence that may or may not be relevant.

So, they are saying it is relevant to
So that is the

10

defense's, I guess, problem with that proffer from the government as

11

to relevance.

12

whatever this other thing is relevant to, if that makes sense.

They have not shown the relevance for the base of

13

MJ:

No, I know what you are saying.

14

ATC[CPT MORROW]:

15

MJ:

16

ATC[CPT MORROW]:

Can I just use one example here?

Yes.
If the government is offering an adjudicative

17

fact, for example: Julian Assange was in "this" place working on

18

"this", and we are trying to prove that he, that Manning disclosed

19

information to unauthorized persons, as an element of the crime, then

20

that would be relevant to tend to prove that Manning was talking to

21

Assange and that that is was there the disclosure was happening.

22

mean, I am not sure how that becomes any more clear, but we will

23

certainly defer to the Court's judgment.

6322

I

10221

1

MJ:

2

CDC[MR. COOMBS]:

3

TC[MAJ FEIN]:

4

MJ:

5

Anything else from either side?

No, Your Honor.

Any last words with respect to Ambassador Galbraith?

I

believe we argued that last time.

6

TC[MAJ FEIN]:

7

CDC[MR. COOMBS]:

8

MJ:

9

No, Your Honor.

No, Your Honor.
No, Your Honor.

Okay, I am going to need about half an hour, does that work

for the parties?

10

CDC[MR. COOMBS]:

11

TC[MAJ FEIN]:

12

MJ:

Yes, Your Honor.

Yes, ma'am.

All right.

Now PFC Manning, we talked earlier today in the

13

R.C.M. 802 conference, once again for everyone else, that is where I

14

talk logistics and scheduling with counsel, and both sides advised me

15

that they wanted to go forward tonight and finish up as opposed to

16

recessing and starting again.

17

ACC: Yes, Your Honor.

18

MJ:

19

All right, anything else we need to address before we

recess?

20

TC[MAJ FEIN]:

21

CDC[MR. COOMBS]:

22

MJ:

23

Is it okay with you?

No, ma'am.
No, Your Honor.

Court is in recess.

[The Article 39(a) session recessed at 1718, 16 January 2013.]

6323

10222

1

[The Article 39(a) session was called to order at 1757, 16 January

2

2013.]

3

MJ:

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

Let the

4

record reflect all parties present when the court last recessed are

5

again present in court.
Mr. Coombs -- The parties and I had an R.C.M. 802

6
7

conference, as I said earlier, that is when the parties discuss

8

logistics and scheduling issues in cases and the defense, I believe,

9

has a corrected copy on their supplement to the plea.
Is that correct?

10
11

CDC[MR. COOMBS]:

That is correct, Your Honor.

There are some

12

minor changes that the government and I talked about.

13

make those changes tonight and I will send that to both the Court and

14

the government this evening.

15

MJ:

16

changes?

17

I am going to

Are they substantive changes or more just a typo-type

CDC[MR. COOMBS]:

They are not substantive changes, yeah, they

18

are very minor changes, just an idea of removing a word that has no

19

real effect.

20

make those changes.

So, that is why we have no objection to that.

21

MJ:

All right.

22

ATC[CPT MORROW]:

Government, anything?
No, Your Honor.

6324

We will

10223

1
2

MJ:

The Court is prepared to rule both on the judicial notice

motions and the motion to compel Ambassador Galbraith.

3

Government Request for Judicial Notice.

4

On 16 November 2012, the government request the Court take

5

judicial notice of the following adjudicative facts:

6

1.

Army Manual 2-0, Intelligence.

7

2.

Army Field Manual 2-19.4, Brigade Combat Team

8

Intelligence Operations.

9

3.

Army Field Manual 2-22.2, Counterintelligence.

10

4.

Army Field Manual 2-22.3, Human Intelligence Collector

11
12

Operations.
5.

Army Soldiers Manual and Trainer's Guide, "Soldiers

13

Manual and Trainer's Guide for Intelligence Analyst MOS 35F Skill

14

Level 1-2-3-4.

15

6.

Executive Order 12958.

16

7.

Executive Order 12972.

17

8.

Executive Order 13142.

18

9.

Executive Order 13292.

19

10.

20
21

A 10 February 2010, BBC news report showing Julian

Assange in Iceland.
11.

A New York Times article entitled, "Pentagon sees

22

threat from online muckrakers", by Stephanie Strom, dated 18 March

23

2010, references Lieutenant Colonel Lee Packnett.

6325

10224

1

12.

On 7 June 2010, the New Yorker published an article

2

entitled, "No Secrets:

3

transparency".

4

13.

Julian Assange's missions for total

The Washington Post has published online a letter

5

purportedly from the United States Department of State Legal Advisor,

6

Harold Koh and dated 27 November 2010m which states that the

7

Department of State understood, "from conversations and

8

representatives from the New York Times, the Guardian, and der

9

Spiegel that WikiLeaks also has provided approximately 250,000

10

documents to each of them for publication furthering the illegal

11

dissemination of classified documents."

12

14.

On 29 November 2010, the Armed Forces Press Service

13

published an article in stating, "WikiLeaks released classified

14

information over the weekend of 27 to 28 November 2010."

15

15.

The United States Department of State lists al-Qaeda

16

as a foreign terrorist organization as of 8 November 1999.

17

al-Qaeda as the Islamic Maghreb as of 27 March 2002.

18

Qaeda in Iraq as of 17 December 2004.

19

Arabian Peninsula as of 19 January 2010.

20
21
22
23

16.

It lists

It lists al-

It lists al-Qaeda in the

The United States FBI has named Adam Yahiye Gadahn as

a most wanted terrorist and states he is associated with al-Qaeda.
17.

Under a header, "Defining the Enemy", the United

States Department of State has cited terrorist networks as the

6326

10225

1

greatest national security threat.

2

confederated extremist groups as the greatest terrorist threat.

3

18.

It has also named al-Qaeda and

The United States Department of State Assistant

4

Secretary in the Bureau of Public Affairs recites that the Department

5

of State has designated, "al-Qaeda in the Arabian Peninsula AQAP as a

6

foreign terrorist organization", in January 2010.

7

19.

The United States Department of State Undersecretary

8

for Management, Patrick Kennedy testified that "DoD material was

9

leaked in July of 2010".

10

21.[sic]

In the winter 2010 issue of "Inspire" states that

11

"anything useful from WikiLeaks" can be archived and shared to "help

12

the mujahedeen".

13

2.

During the Article 39(a) session held 8 through 11

14

January 2013 the government filed an addendum to its motion

15

clarifying that the government moved the Court to consider 10 through

16

21 as sources for the court to take judicial notice of the following

17

adjudicative facts:

18
19
20
21

A)

Julian Assange was located in Iceland in February 2010

and working on the Icelandic Modern Media Initiative.
B)

Lieutenant Colonel Lee Packnett was quoted in a New

York Times article dated 18 March 2010.

6327

10226

C)

1
2

Secrets:

3

7 June 2010.

4

D)

A New Yorker profile of Julian Assange titled, "No

Julian Assange's mission for total transparency", was dated

WikiLeaks and various news organizations began

5

publishing Department of State (DoS) diplomatic cables over the

6

weekend of 27 to 28 November 2010.

7

E)

al-Qaeda and its affiliates, al-Qaeda in the Islamic

8

Maghreb, al-Qaeda in Iraq, al-Qaeda in the Arabian Peninsula, are all

9

listed as foreign terrorist organizations by the department state and

10
11
12
13
14
15
16
17
18
19

are, in fact, enemies of the United States.
F)

Osama bin Laden is a member of al-Qaeda and an enemy of

the United States.
G)

Adam Gadahn is a member of al-Qaeda and is an enemy of

the United States.
H)

Inspire is a magazine, it advocates violent jihad and

promotes the ideology of AQAP.
3.

On 11 January 2013, the government provided additional

source information to the Court for A through H above.
4.

On 30 June 2012, the government filed a response --

20

excuse me, I must have the date wrong here.

21

filed a response objecting to 1 through 9 on the grounds that the

22

government had not established relevance.

23

the 8 through 11 January 2013 Article 39(a) session, the defense

6328

December 2012, defense

During oral argument at

10227

1

withdrew their objections for 6 through 9.

On 15 January 2013, the

2

defense filed a response to the government addendum.

3

not object to D.; E. in part; F.; and G.

4

B., C., and H. on lack of relevance; B. and C. on hearsay and the

5

portion of H. that, "advocates violent jihad and promotes the

6

ideology of al-Qaeda in the Arabian Peninsula", because it asks the

7

Court to draw an inference.

8

of E. requesting the Court take judicial notice of al-Qaeda in the

9

Arabian Peninsula as an enemy, because the accused allegedly gave

The defense did

The defense objected to A.,

The defense further objects to that part

10

intelligence to the enemy beginning in November 2009.

11

designation did not take place until 19 January 2010 which was after

12

the alleged misconduct.

13

Defense Judicial Notice:

14

1.

The

Damage Assessments.

On 30 November 2012, the defense moved the Court take

15

judicial notice of the Office of National Counterintelligence

16

Executive ONCIX, Information Review Task Force IRTF and DoS damage

17

assessments and their contents as adjudicative facts.

18

asserts the damage assessments and their contents are admissible as

19

admissions by a party opponent under M.R.E. 801(d)(2) and as public

20

records under M.R.E. 803(8).

21

2.

The defense

The government does not object to the Court taking

22

judicial notice of the existence of the damage assessments and that

23

they were prepared by the relevant agency.

6329

The government argues the

10228

1

contents of the damage assessments are not admissible under M.R.E.

2

801(d)(2) or M.R.E. 803(8).

3
4
5
6

Defense Judicial Notice:

Over classification, HR 553 and

Congressional Hearings.
On 30 November 2012, the defense moved the Court take
judicial notice of:

7

1.

HR 553, Reducing Over Classification Act.

8

2.

The House committee meetings on the Espionage Act on 16

9
10
11
12
13
14

December 2010.
3.

House committee meeting on the Over Classification Act

on 22 March, 26 April and 28 June 2007.
On 10 January 2013, the defense provided the Court with
additional supplemental authority:
[1.]

Executive Order 13526, Section 5.1, DoD Instruction

15

5210.5, Paragraphs 5.1.10 and 5.1.11, DoD Instruction 5240.11 and DoD

16

Regulation 5200-1R, Chapter 10, 10-104 to consider as source material

17

for the judicial notice motion.

18

2.

On 30 November 2012, the government objected to the

19

Court taking judicial notice of all of the above on the grounds of

20

both lack of relevance for both merits and sentencing.

21

government further objects that Mr. Blanton's testimony at the

22

congressional hearing and his testimony at the congressional meetings

6330

The

10229

1

in 2 and 3 do not consist of adjudicative facts and represent hearsay

2

within hearsay.

3

The Law:

4

1.

5

of adjudicative facts.

6

subject to reasonable dispute in that it is either:

Military Rule of Evidence 201 governs judicial notice
The judicially noted fact must be one not

1) Either generally known universally, locally or in the

7
8

Judicial Notice.

area pertinent to the event or;

9

2) Capable of accurate and ready determination by resort to

10

sources whose accuracy cannot be reasonably questioned, United States

11

v. Needham, 23 MJ 383 Court of Military Appeals, 1987; United States

12

v. Brown, 33 MJ 706, Army Court of Military Review, 1991.
2.

13

M.R.E. 201(c) requires the military judge to take

14

judicial notice of adjudicative facts if requested by a party and

15

supplied with the necessary information.
3.

16

When the military judge takes judicial notice of

17

adjudicative facts, the fact finder is instructed that they may, but

18

are not required to, except as conclusive any matter judicially

19

noticed.

20

4.

Judicial notices of adjudicative facts:

judicial

21

notice is not appropriate for inferences a party hopes the fact

22

finder will draw from the facts judicial noticed.

23

and conclusions are not adjudicative facts subject to judicial

6331

Legal arguments

10230

1

notice, United States v. Anderson, 22 MJ 885, Air Force Court of

2

Military Review, 1985, where it held appropriate to take judicial

3

notice of the existence of a treatment program at a confinement

4

facility but it is not appropriate to take judicial notice of the

5

quality of the program.

6

The Law:

7

[1.]

Hearsay.

Hearsay is a statement other than one made by the

8

declarant while testifying at trial, offered in evidence to prove the

9

truth of the matter asserted, M.R.E. 801(c).

Hearsay is not

10

admissible except as provided by the Military Rules of Evidence or by

11

any act of Congress applicable in trials by court-martial, M.R.E.

12

802.

13

2.

Admission by a party opponent:

M.R.E. 801(d)(2)

14

provides, in relevant part, that admissions by a party opponent are

15

not hearsay if the statement is offered against a party and is:

16
17
18
19
20
21

a) The party's own statement in either the party's
individual or representative capacity;
b) A statement in which the party has manifested the
party's adoption or belief in the truth;
c) A statement by a person authorized by the party to make
a statement concerning the subject;

22

d) A statement by the party's agent or servant concerning

23

the matter -- or concerning the subject -- excuse me -- a statement

6332

10231

1

by the party's agent or servant concerning a matter within the scope

2

of the agency or employment of the agent or servant during the

3

existence of the relationship.

4

be considered but are not alone sufficient to establish the

5

declarant's authority under c), or the agency or employment

6

relationship and scope under d).

7

3.

The contents of the statement shall

M.R.E. 803(8) public records is an exception to the

8

hearsay rule.

9

statements or data compilations in any form of public office or

10

The rule allows for admission of records, reports or

agency setting forth the activities:

11

a) The activities of the office or agency;

12

b) Matters observed pursuant to a duty imposed by law as to

13

which there was a duty to report excluding, however, matters observed

14

by police officers and other personal acting in a law enforcement

15

capacity; or,

16

c) Against the government, factual findings resulting from

17

an investigation made pursuant to authority granted by law unless the

18

sources of information or other circumstances indicate a lack of

19

trustworthiness.

20

4.

M.R.E. 805 provides that hearsay within hearsay is not

21

excluded under the hearsay rule if each part of the combined

22

statement conforms with an exception to the hearsay rule as provided

23

in these rules.

6333

10232

1

The Law:

2

1.

Sentencing Defense Evidence.

R.C.M. 1001(c) governs matters to be presented by the

3

defense during sentencing.

In relevant part, the rule allows the

4

defense to present matters in rebuttal to any material presented by

5

the government in matters in extenuation and mitigation.

6

extenuation serve to explain the circumstances surrounding the

7

commission of an offense including those reasons for committing the

8

offense which do not constitute legal justification or excuse.

9

Matters in mitigation of the offense are reasons to lessen the

Matters of

10

punishment of an offense or furnish grounds for recommendations of

11

clemency.

12

2.

R.C.M. 1000(c)(3) authorizes the Military Judge, with

13

respect to matters in extenuation and mitigation, or both, to relax

14

the rules of evidence.

15

affidavits, certificates of military and civil officers and other

16

writings of similar authenticity and reliability.

17

3.

This may include admitting letters,

M.R.E. 1001(c)(4) provides that when the rules of

18

evidence have been relaxed for the defense they may be relaxed during

19

rebuttal or surrebuttal to the same degree.

20

Conclusions Of Law.

21

The Government Motion for Judicial Notice.

22

1.

23

For the matters where the sole defense objection is

relevance, the Court will take judicial notice of the adjudicative

6334

10233

1

facts subject to a demonstration of relevance by the government at

2

trial.

3

issue are:

Thus, the remaining government judicial notice requests at

B. Lieutenant Colonel Lee Packnett was quoted in a New York

4
5

Times article dated 18 March 2010.
C. A New Yorker profile of Julian Assange titled, "No

6

Julian Assange's mission for total transparency", was dated

7

Secrets:

8

7 June 2010.

9

E.

alQaeda in the Arabian Peninsula, is listed as a

10

foreign terrorist organizations by the Department of State and is, in

11

fact, an enemy of the United States.

12

H.

[Inspire is a magazine] it advocates violent jihad and

13

promote the ideology of AQAP.

14

relevance objection.

15

2.

And,

The bracketed portion has only a

In addition to relevance, the defense objects to B and

16

C as hearsay, the portion of E designating al-Qaeda in the Arabian

17

Peninsula as listed as a foreign terrorist organization by DoS and as

18

an enemy of the United States and that portion of H stating, "it

19

advocates violent jihad and promotes the ideology of a AQAP because

20

the designation by DoS occurred on 19 January 2010 after the

21

accused's alleged misconduct.

22
23

3.

The government asserts the information the government

seeks to be judicially noticed in A and B will be used by the

6335

10234

1

government for a nonhearsay purpose.

2

whether to grant judicial notice on A and B until the government

3

offers the evidence at trial.

4

make relevance hearsay determinations at that time.
4.

5

The Court will defer ruling on

The Court is in a better position to

The time period in the charged offenses is from on or

6

about 9 November 2009 to on or about 27 May 2010.

The designation of

7

al-Qaeda in the Arabian Peninsula as listed as a foreign terrorist

8

organizations by the DoS occurred on 19 January 2010, within the time

9

period of the charged offenses.

The Court will take judicial notice

10

that al Qaeda in the Arabian Peninsula was listed as a foreign

11

terrorist organization by the DoS on 19 January 2010 and since that

12

date as an enemy of the United States.
5.

13

The Court declines to take judicial notice of the

14

portion of H stating, "It advocates violent jihad and promotes the

15

ideology of AQAP."

16

inference.

17

to be gleaned by the damage -- by the information judicially noticed

18

are appropriately presented to the fact finder by the parties, not

19

the court.

20

Any inferences, linkages, argument and legal conclusions

The Defense Motion for Judicial Notice:

21

Assessments.

22

1.

23

This statement requires the court to draw an

Damage

The Court finds the damage assessments and their

contents, to include the draft DoS damage assessment, to be

6336

10235

1

admissible as public records under M.R.E. 803(8).

2

not challenged their authenticity.

3

notice of the damage assessments, the defense does not have to

4

provide further evidence of authentication.
2.

5

The government has

By the Court taking judicial

The Court held on 19 July 2012 and 13 January 2013 that

6

evidence of actual damage, to include damage assessments, is not

7

relevant during the merits portion of the trial.
3.

8
9

Should there be sentencing proceedings in this case,

the Court will take judicial notice of the existence of the damage

10

assessment, that each was created were compiled by ONCIX, IRTF, and

11

DoS, and the dates they were created or compiled.

12

take judicial notice of the DoS damage assessment as the most current

13

damage assessment prepared by DoS and that it is a draft.
4.

14

The Court will

The contents of the damage assessments are not

15

adjudicative facts.

16

conclusions to be gleaned from the damage assessments are

17

appropriately presented to the fact finder by the parties, not the

18

court.

19
20
21
22

Any inferences, linkages, argument or legal

Defense Motion for Judicial Notice:

HR 553 and

Congressional Hearings Discussing Classification.
1.

The Court has before it the government motion to

preclude evidence of over classification and the defense motion to

6337

10236

1

take judicial notice of HR 553 and congressional hearings discussing

2

classification.
2.

3

Both motions are related.

The Court takes them under

4

advisement and will issue a supplemental ruling regarding the use of

5

over classification on the merits and/or sentencing and the defense

6

request for judicial notice regarding over classification.
Ruling:

7
8

The government and defense motions for judicial

notice are granted in part as set forth above.
1.

9

The Court will take judicial notice of the following

10

adjudicative facts for the government:

11

to add the date of designation by DoS as 19 January 2010; 1 through

12

6; A and that portion of H, upon a determination of relevance; B and

13

C, upon a demonstration of relevance and use as nonhearsay or as

14

hearsay exceptions.
2.

15

6 through 9; D; E as modified

The Court will take judicial notice of the following

16

adjudicative facts for the defense during the sentencing phase of the

17

trial:

18

created or compiled by ONCIX, IRTF and DoS and the dates they were

19

created or compiled.

20

damage assessment is the most current damage assessment prepared by

21

DoS and that it is a draft.

22
23

existence of the damage assessments, that each one was

3.

The Court will take judicial notice that DoS

The Court takes the defense motion for judicial notice

of HR 553 and congressional hearings discussing classification under

6338

10237

1

advisement with the government motion to preclude evidence of over

2

classification and will issue a supplemental ruling on both matters.

3

So ordered this 16th day of January 2013.

4

Does either side have anything further with respect to the

5

motions for judicial notice?

6

CDC[MR. COOMBS]:

No, Your Honor.

7

ATC[CPT MORROW]:

No, Your Honor.

8

MJ:

9

Okay.

Finally, the Court is prepared to rule on the

defense motion to compel witnesses:

Ambassador Galbraith.

On 23 November 2012 the defense moved to compel production

10
11

of Ambassador Galbraith as a sentencing witness.

12

the government filed a motion opposing production of Ambassador

13

Galbraith.

14

of its motion to include a 3 January 2013 declaration from Ambassador

15

Galbraith.

16

argument and Ambassador Galbraith's declarations, the Court finds and

17

rules as follows:

18

On 12 December 2012

On 4 January 2013, the defense filed proffers in support

Having considered the filings by the parties, oral

1.

Ambassador Galbraith served as Ambassador to Croatia

19

from 1993 to 1998.

He was an original classification authority, OCA.

20

Prior to this, he served as a staff member of the Senate Foreign

21

Relations Committee from 1979 to 1993.

22

period, he was responsible for the DoS authorizing legislation to

6339

For 10 years during this

10238

1

include responsibility for oversight and legislation related to the

2

DoS handling of classified information:
2.

3

SIPDIS was not used while Ambassador Galbraith was at

4

DoS but he or his staff drafted some of the cables that subsequently

5

received the SIPDIS label.
3.

6

The government is calling a number of witnesses from
The defense does not

7

the DoS for the sentencing phase of the trial.

8

have easy access to witnesses currently employed at DoS.
4.

9
10

The government response concedes that although dated,

Ambassador Galbraith's testimony could be relevant for sentencing.
5.

11

R.C.M. 703(c)(2)(B)(i) provides that the defense must

12

present, in addition to providing witness list, the defense's

13

synopsis of expected testimony must list the subject of the witnesses

14

is expected to address and what the witnesses would say about that

15

subject, United States v. Rockwood, 52 MJ 98, Court of Appeals for

16

the Armed Forces 1999.

17

6.

The defense has met this requirement.

Although Ambassador Galbraith's experience at DoS is

18

15-years old and he does not have direct experience with SIPDIS, he

19

does have some experience with some of the cables at issue in this

20

case and as a DoS OCA and with legislation involving classification

21

by DoS.

22

during sentencing, that would be DoS government witnesses testifying

23

during sentencing, and the lack of ready access to such witnesses by

In light of the number of government witnesses testifying

6340

10239

1

the defense, the Court order the government to produce Ambassador

2

Galbraith as a defense witness for sentencing.

3

Ruling:

4

The defense motion to compel production of Ambassador

5

Galbraith is granted.

6

So ordered this 16th day of January 2013.

7

Is there anything else we need to address today?

8

CDC[MR. COOMBS]:

9

TC[MAJ FEIN]:

10

MJ:

No, Your Honor.

No, Your Honor.

Okay, so we are effectively in recess until the 27th of

11

February -- or the 26th of February, excuse me, of 2013, is that

12

correct?

13

TC[MAJ FEIN]:

14

MJ:

15

CDC[MR. COOMBS]:

16

MJ:

17
18

Yes, ma'am, at 0930, the same time?

0930.
Yes, Your Honor.

All right, court is in recess.

[The Article 39(a) session recessed at 1819, 16 January 2013.]
[END OF PAGE]

6341

10240

1
2

[The Article 39(a) session was called to order at 1006, 26 February 2013.]

MJ:

Trial Counsel, please account for the parties.

3
4

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

TC[MAJ FEIN]: Ma’am, all parties when the court last recessed

5

are again present with the following exceptions:

6

absent; Captain Overgaard is present; Mr. Robertshaw, court reporter,

7

is absent; Mr. Chavez, court reporter, is present.

8
9

MJ:

Thank you.

Captain Whyte is

Before we go over issues that have arisen since

the last Article 39(a) session, I just want to announce for the

10

record sort of the order of march that we’re going to go through in

11

this Article 39(a) session.

12

Today we are going to first of all go over the things that

13

have occurred since the last session.

The Court is going to be

14

prepared to announce its speedy trial ruling.

15

go over the relevance of the information that the government has

16

submitted in the 505(i) motion.

17

issues that the government has raised with respect to the accused’s

18

proposed plea.

19

to announce its over classification ruling and we will address the

20

potential trial closure issues United States v. Grunden trial closure

21

motion that has been filed by the government.

We are also going to

I believe that will -- and any

Then tomorrow we will -- the Court will be prepared

6342

10241

On Thursday we will -- the Court will take the accused’s

1
2

plea.

After that the Court will address the M.R.E. 505(i) actual in

3

camera session.
That was discussed with the parties at the R.C.M. 802

4
5

conference that was held just prior to coming on the record today.

6

Once again, that’s when the parties and the Court meet to discuss

7

scheduling and other logistic issues that arise in cases.
Does either side have anything further to add to what was

8
9

discussed in the R.C.M. 802 session?

10

TC[MAJ FEIN]: No, Your Honor.

11

CDC[MR. COOMBS]:

12

MJ:

No, Your Honor.

Government, would you like to -- well, before you begin,

13

let me just put on the record that -- well, the government had filed

14

a motion on the 5th of February for leave of the Court until 14

15

February to submit its proposed providence inquiry questions and the

16

defense objected to that via e-mail on the 5th of February 2013.
Has the government had its motion marked?

17
18

TC[MAJ FEIN]: Yes, ma'am.

The government’s motion is marked as

19

Appellate Exhibit 482 and the defense’s objection, the e-mail, has

20

been marked as Appellate Exhibit 483.

21

MJ:

22

TC[MAJ FEIN]: Yes, ma'am.

23

All right.

Has the Court’s ruling been marked yet?
The Court’s ruling is marked as

Appellate Exhibit 484.

6343

10242

1

MJ:

Just for the record, the Court ruled -- the Court has

2

considered the government’s 5 February 2013, Motion for Leave of the

3

Court until 14 February 2013, to submit its proposed providence

4

inquiry questions and the defense objection submitted to the court

5

via e-mail on 5 February 2013.

6

motion, the government infers there are legal issues involved with

7

the defense proposals.
Ruling:

8
9

The government motion for leave until 14 February

2013, is granted in part as set forth below:
One, the government will submit proposed providence inquiry

10
11

Although not in the title of the

questions no later than 7 February 2013;
Two, any government filing addressing legal issues raised

12
13

by the accused’s proposed providence inquiry and plea will be

14

submitted no later than 14 February 2013;
Three, any defense response to legal issues raised by the

15
16

government will be submitted no later than 21 February 2013.
Now, have the -- for the record, have the proposed legal

17
18
19
20
21
22

issues been filed by the government?
TC[MAJ FEIN]:

Yes, Your Honor, they have.

They have not been

marked.
MJ:

All right.

So we will await -- we’ll wait until we get to

that session before we go ahead and mark the filings.

6344

10243

1
2
3

All right.

Major Fein, why don’t you go ahead with what

has occurred since the last session?
TC[MAJ FEIN]:

Yes, ma'am.

Ma’am, on the 31st of January 2013,

4

the government filed an ex parte notice to the Court, a disclosure

5

that’s been marked as Appellate Exhibit 474, unclassified.

6

On the 31st of January, the same date, 2013, the government

7

filed a Grunden response via SIPRNET that’s been marked as Appellate

8

Exhibit 479, that will be subject to the hearing later this week.

9

Then an updated Grunden response via SIPRNET on the 1st of February

10

of this year, which is also the same marking.

11

the original filing was not marked, just the subsequent filing.

12

was because of an administrative mistake by the prosecution with the

13

signature block.

14

Excuse me, Your Honor,
That

On the 31st of January 2013, an unclassified and redacted

15

version was filed via e-mail and similarly an updated one with a

16

different signature block on the 1st of February 2013.

17

marked as Appellate Exhibit 480.

18

That has been

On the 31st of January 2013, the government filed via

19

SIPRNET its M.R.E. 505(i)(2) motion.

20

Exhibit 477 and an unclassified redacted version of the same.

21

been marked as Appellate Exhibit 478.

22

to the government’s motion on the 8th of February 2013, and that has

23

been marked as Appellate Exhibit 485.

6345

It’s been marked as Appellate
It has

The defense filed a response

Then the government filed

10244

1

response or a reply to the defense’s response on the 14th of February

2

2013, and that has been marked as Appellate Exhibit 488.
Your Honor, back on the 31st of January 2013, the

3
4

government also filed via SIPRNET the Government’s Witness List

5

Number Four and that has been marked as Appellate Exhibit 475 and

6

then an unclassified and redacted version of the same and it’s been

7

marked as Appellate Exhibit 476.
Your Honor, on the 8th of February 2013, the government

8
9

filed its plan or proposed plan, excuse me, for storage of Appellate

10

Exhibit that has been marked as Appellate Exhibit 486.

11

20th of February 2013, the government filed a corrected copy of the

12

same motion and that was replaced in the record as Appellate Exhibit

13

486.

14

MJ:

All right.

Then on the

Before you go on any further, with the storage

15

of Appellate Exhibits not accompanying the record of trial, does the

16

defense have any objections to what the government has proposed?

17

CDC[MR. COOMBS]:

18

MJ:

All right.

No, Your Honor.
And the Court has the government’s proposed

19

order.

20

finalize that order and announce it later in the day.

21
22
23

There’s a few changes I’m going to make to it, so we will

TC[MAJ FEIN]: Yes, ma'am.

Ma’am, would the Court like the

government to summarize the proposed plan?
MJ:

Yes.

6346

10245

1

TC[MAJ FEIN]:

Ma’am, based off of different types and forms of

2

classified information that has been used so far in this trial since

3

the case has been referred, there has been certain classes of

4

documents that have required the Court, prosecution and defense to

5

travel to different government organizations to review the documents

6

based off of the classifications and control measures.

7

that the United States Army Court of Appeals Clerk’s Office does not

8

have a facility that is adequate to store this type of classified

9

information, so the government has, based off the direction of the

Based off of

10

Court, found a single location at a government organization that will

11

house all of these documents and has worked with each of the equity

12

holder organizations to receive their approval to take their

13

organization’s documents and consolidate them into one location.

14

What this proposal captures is that consolidation, where it will be

15

stored and the different type of accountability measures that will be

16

put in place in both at the Military District of Washington and the

17

Clerk’s office at the Army Court of Criminal Appeals.
This plan, prior to the government submitting it to the

18
19

Court, has been approved by all the equity holders and has been

20

approved by the clerk of court.

21
22
23

MJ:

All right.

Thank you.

Major Fein, was there a new

convening order in this case?
TC[MAJ FEIN]: Say again, ma’am?

6347

10246

1

MJ:

2

TC[MAJ FEIN]:

3

Was there a new convening order in this case?
Yes, ma'am, there is and there are additional

filings since then as well.

4

Ma’am, on the 11th of February 2013, the General Court-

5

Martial Convening Authority selected a new panel and issued a new

6

Court-Martial Convening Order Number 1.

7

February 2013, and specifically -- or expressly stated in this order

8

all cases referred to the general court-martial convened by Court-

9

Martial Convening Order Number 2, this Headquarters, dated 22

This is again dated 11

10

February 2012, which was the current convening order that this court

11

was operating under prior to this date, in which the court has not

12

yet been assembled are hereby referred to the General Court-Martial

13

convened by this order.

14

order.

So CMCO 1, 2013, is the current convening

Your Honor, on 14 February 2013, the government notified

15
16

the defense and Court on a status update of the security clearances

17

requested by the defense.

18

487.

19

that it will process security clearances for Ambassador Galbraith;

20

Colonel Davis, U.S. Air Force retired; and Professor Benkler.

21

update consisted of the United States Army -- excuse me, Your Honor.

22

Essentially, Your Honor, the United States Army has approved security

23

clearances for limited access to all three individuals, and now the

This has been marked as Appellate Exhibit

This is pursuant to the government’s agreement with the defense

6348

The

10247

1

government is just ensuring that those that are actually receiving

2

clearances are filling out the proper paperwork in order to process

3

those clearances -- excuse, approval to apply for a clearance, that

4

they’re processing them and for the limited access, the prosecution

5

is coordinating with the individual equity holders at the next step

6

to grant the access.

7

February, the United States does not anticipate any issues with these

8

individuals receiving access to what the defense is requesting.

9
10
11

MJ:

At this point, Your Honor, and as of 14

In time for trial?

TC[MAJ FEIN]:

In time.

More than that, Your Honor, by the

Court’s suspense of 22 April 2013.

12

MJ:

Any issues from the defense?

13

CDC[MR. COOMBS]:

14

TC[MAJ FEIN]:

15

MJ:

16

TC[MAJ FEIN]: Yes, ma'am.

17

MJ:

No, Your Honor.

Your Honor ----

Major Fein, let me just ask you something.

With the new Court-Martial Convening Order and new

18

potential members and alternate members, was there a pretrial

19

publicity order proposed by the government?

20

TC[MAJ FEIN]:

Yes, ma'am.

On the 14th of February 2013, the

21

government drafted a new pretrial publicity order for the new panel

22

members that were selected.

23

Honor.

That has not been marked yet, Your

It has been submitted to the Court in order to be -- excuse

6349

10248

1

me, Your Honor.

The Court has marked it and I do not know the

2

Appellate Exhibit number of that.

3

MJ:

I believe it is Appellate Exhibit 493.

4

TC[MAJ FEIN]:

5

MJ:

6

[Pause.]

Yes.

TC[MAJ FEIN]:

7

May I have a moment, Your Honor?

Yes, ma'am.

Immediately prior to this session

8

the Court signed, dated today, 26 February 2013, Appellate Exhibit

9

493, which is the government’s proposed order for the new panel

10

members.

11

MJ:

12

defense?

All right.

13

CDC[MR. COOMBS]:

14

MJ:

Was there any objection to that order from the

No, Your Honor.

Just for the record what the order states is it’s a

15

Pretrial Publicity Order to Court-Martial Members.

16

a prior pretrial publicity order in this case and this supplements

17

it.

18

for the above captioned court-martial, that’s United States v.

19

Manning:

It’s dated 26 February 2013.

There was already

To all prospective court members

20

One, this case has been referred to trial by general court-

21

martial and is scheduled for trial on June 3rd, 2013, until complete.

22

The trial is expected to last approximately 12 weeks.

23

contacted by the Office of the Staff Judge Advocate, United States

6350

You will be

10249

1

Army, Military District of Washington if you are detailed to be a

2

member for this case.

3

who are presently identifiable as potential court members.

This order is being provided to all persons

Two, the Court finds that there has been pretrial publicity

4
5

in the above captioned court-martial to an extent that the following

6

order is necessary and proper in aid of its jurisdiction and in the

7

interest of the fair administration of justice and due process of law

8

for all the parties.
Three, all prospective court members are ordered as

9
10
11

follows:
A.

Due to the prior publicity and the probability for

12

more publicity in the news media, newspapers, magazines, radio

13

coverage, television coverage, internet news and editorial sources,

14

including the Early Bird e-mail, et cetera about this case you are

15

ordered not to listen to, look at or read any accounts of any

16

incident involved in the above named accused or concerning

17

allegations of compromise of classified information or the ongoing

18

issues involving the publication of alleged classified information by

19

Wiki-Leaks.

20

involved in the alleged incident.

21

this case with you or talk to you about your potential or actual

22

participation as a court member in this case other than in open

You may not consult any source written or otherwise

6351

Should anyone attempt to discuss

10250

1

court, you must immediately forbid them from doing so and then you

2

must report the occurrence to me in court at your first opportunity.

3

B.

A trial by court-martial includes the right of an

4

accused to be tried by a court composed of members.

Court members

5

fulfill duties similar to that of civilian jurors.

6

court member of a court-martial that will try this case, it will be

7

your duty to determine the guilt or innocence of the accused as to

8

the charges upon which he is arraigned.

9

presumed to be innocent of the charges against him.

As a prospective

Under the law the accused is
Neither the fact

10

that charges have been preferred against this accused nor the fact

11

that charges have been referred to a court-martial for trial warrants

12

any inference of guilt.

13

of the accused must be based solely on the evidence and my

14

instructions in the case in open court -- present in open court.

15

must not read or otherwise expose yourself to information about the

16

facts or issues in this case from sources outside the courtroom.

17

a potential court member you must keep an open mind and not form or

18

express any opinion on the case until the evidence and the

19

instructions on the applicable law have been presented to you.

20

must entertain or reach a conclusion as to the guilt or innocence of

21

the accused until after all the evidence and instructions have been

22

received in open court and you are in your closed session

23

deliberations with other members.

Your determination of the guilt or innocence

6352

You

As

You

10251

C.

1

The accused and the government are each entitled to a

2

panel of court members who approach the case with an open mind and

3

who are able to keep that open mind until they deliberate on the

4

verdict.

5

preconceived ideas about the outcome of the case; therefore, you’re

6

ordered that from the date of receipt of this order until the trial

7

is completed or until you are specifically advised by the Court that

8

this order no longer applies to you, you will not discuss the facts

9

of this case or any publicity concerning this case with anyone

You should be as free as humanly possible from any

10

military or civilian.

11

to this court-martial with anyone other than as required to inform

12

your superiors as to your duty status.

13

D.

You may not discuss your prospective detailing

In the event you’ve already seen -- read, seen or

14

listened to any news media accounts, publicity or other accounts

15

concerning this case or you inadvertently do so before the conclusion

16

of this court-martial, you’re advised you have a legal duty to

17

disclose that matter to me when asked in open court.

18

event that you’ve already discussed or listened to anyone else

19

discuss any matter related to this case or inadvertently do so before

20

the conclusion of the court-martial, you have a duty to disclose that

21

to me in open court.

22

on you to be excused from duty as a court member; however, as a

23

member of the military, you’re required to follow the instructions in

Also, in the

You’re advised it’s not an adverse reflection

6353

10252

1

this order and not intentionally do anything contrary to the

2

requirements of this order.

3

Four, this order is not intended to limit or restrict any

4

official purpose for remaining informed regarding matters related to

5

this case or involving the publication of alleged classified material

6

by WikiLeaks.

7

that requires your ongoing access to such information and you cannot

8

reasonably remove yourself from that position -- from that portion of

9

your duties without adversely impacting you or your mission, then you

If you’re already presently assigned to a position

10

shall obtain a memorandum from your supervisor documenting your

11

continued requirement for access.

12

Office of the Staff Advocate, U.S. Army, Military District of

13

Washington, and your authorized continued access to this information

14

for the limited purpose of performing your official military duty.

15

Provide that memorandum to the

Five, the trial counsel shall cause a copy of this order to

16

be served through the Office of the Staff Judge Advocate, Military

17

District of Washington, on each prospective primary and alternate

18

member of the Court.

19

additional primary or alternate member after the date of this order,

20

the trial counsel shall immediately cause a copy of this order to be

21

served on the new primary or alternate member.

22
23

If the Convening Authority selects any

Trial counsel shall obtain and maintain a written list -receipt of such service using the form provided along with this order

6354

10253

1

showing the date and time of this order was served on each

2

prospective member.

3

defense.

4

record as an Appellate Exhibit.

A copy of this service shall be given to the

Trial counsel will attach receipts for service on the

5

Ordered this 26 day of February, 2013.

6

That’s Appellate Exhibit 493.

7

Yes, Major Fein?

8

TC[MAJ FEIN]:

9

MJ:

10

I was just going to continue, ma’am.

Go ahead.

TC[MAJ FEIN]:

Ma’am, additionally on the 22nd of February 2013,

11

the defense filed an M.R.E 505(h) notice that’s been marked as an

12

appellate exhibit.

13

Exhibit 490.

14

intends this week before the close of this motions hearing to review

15

that and work with the defense to determine if there’s any more

16

information needed by the government to process it.

17

It’s classified.

It’s been marked as Appellate

The government, as discussed earlier with the defense,

Also, ma’am, during an accounting of the appellate record

18

it was realized that one Appellate Exhibit had not been marked, that

19

is a defense M.R.E. 505(h) filing from the 5th of November 2012.

20

That has been marked.

21

been marked as Appellate Exhibit 491.

22
23

It was a classified filing as well.

It has

Finally, Your Honor, marked today or dated today, 26
February 2013, defense request for trial by military judge alone

6355

10254

1

that’s been marked as Appellate Exhibit 492, which will be discussed

2

by the defense later.

3
4
5
6

MJ:

All right.

that have been marked by the defense?
CDC[MR. COOMBS]:

MJ:

8

CDC[MR. COOMBS]:

10
11

Yes, Your Honor, just a stipulation of

expected testimony for a Fort Leavenworth witness.

7

9

Mr. Coombs, are there any additional exhibits

All right.
That’s been marked as Defense Exhibit Bravo

for Identification.
MJ:

Government, do you have any objections to Defense Exhibit

Bravo?

12

ATC[CPT OVERGAARD]: No, ma’am.

13

MJ:

14

All right.

PFC Manning, do you have a copy of Defense

Exhibit Bravo before you?

15

ACC: Yes, Your Honor.

16

MJ:

17

ACC: Yes, Your Honor.

18

MJ:

19

Is that your signature there on Page 2 on the bottom?

Did you read the stipulation of expected testimony before

you signed Page 2?

20

ACC: Yes, Your Honor.

21

MJ:

22

ACC: Yes, Your Honor.

23

MJ:

Do you understand the contents of the stipulation?

Do you agree with the contents of the stipulation?

6356

10255

1

ACC: I do, Your Honor.

2

MJ:

Before signing this stipulation, did your defense counsel

3

explain the stipulation to you?

4

ACC: Yes, Your Honor.

5

MJ:

6

Do you understand you have an absolute right to refuse to

stipulate to the contents of any document?

7

ACC: Yes, Your Honor.

8

MJ:

9

You should enter into this stipulation only if you believe

it’s in your best interest to do that.

10

ACC: Yes, Your Honor.

11

MJ:

Do you understand?

I want to ensure that you understand exactly how this

12

stipulation is going to be used.

When counsel for both sides and you

13

agree to a stipulation of expected testimony, you’re agreeing that if

14

a Fort Leavenworth witness was testifying here in court and was

15

present here in court, he or she would testify substantially as set

16

forth in this stipulation.

The stipulation does not admit the truth

17

of the person’s testimony.

It can be contradicted, attacked or

18

explained in the same way as if the person was here in court

19

testifying.

Do you understand that?

20

ACC: Yes, Your Honor.

21

MJ:

Knowing what I’ve told you and what your defense counsel

22

told you earlier about this stipulation, do you still desire to enter

23

into this stipulation?

6357

10256

1

ACC: Yes, Your Honor.

2

MJ:

3

CDC[MR. COOMBS]:

4

ATC[CPT OVERGAARD]: Yes, ma'am.

5

MJ:

6

9

Defense Exhibit Bravo for Identification is admitted as

Are there any other issues that we need to address before I
announce the speedy trial ruling?
TC[MAJ FEIN]:

No, Your Honor.

10

CDC[MR. COOMBS]:

11

MJ:

12

Yes, Your Honor.

Defense Exhibit Bravo.

7
8

Do counsel for both sides agree?

recess.

All right.

No, Your Honor.
The Court is going to need about a 20 minute

Why don’t we reconvene at a quarter to 11?
Court is in recess.

13
14

[The Article 39(a) session recessed at 1027, 26 February 2013.]

15

[The Article 39(a) session was called to order at 1054, 26 February

16

2013.]

17

MJ:

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

Let the

18

record reflect all parties present when the court last recessed are

19

again present in court.

20
21
22
23

The Court is prepared to announce its speedy trial ruling,
dated 26 February 2013.
The defense has moved to dismiss all charges and their
specifications for a violation of the accused’s right to a speedy

6358

10257

1

trial under Article 10 UCMJ, R.C.M. 707 and the Sixth Amendment to

2

the Constitution of the United States.

3

filings by the parties, the witnesses and the evidence presented in

4

oral argument.

The Court has considered the

5

The Court finds and rules as follows:

6

Findings of fact general:

The Court adopts the stipulated

7

chronology submitted by the parties with the modifications and

8

additional chronology entries at Attachment 1 to this ruling.
Two, the Court further adopts the findings of fact and

9
10

conclusions of law from the Article 13 ruling, Appellate Exhibit 461.

11

The Court takes judicial notice of the Appellate Exhibits and the

12

case schedules that have been filed, 25 April 2012 schedule, 30

13

August 2012 schedule, 18 October 2012 schedule, 8 November 2012

14

schedule, 20 December 2012 schedule, and 9 January 2013 schedule.

15

Every trial schedule was coordinated between the Court and the

16

parties and implemented with the consent of both parties.
R.C.M. 707 timeline.

17

The accused was restrained for R.C.M.

18

707 analysis on 27 May 2010.

19

February 2012.

20

2012.

21

period between 28 May 2010 and 23 February 2012, is 637 days.

22
23

Charges were referred to trial on 3

The Court received the referred charges on 3 February

The accused was arraigned on 23 February 2012.

The time

The parties stipulate that the following 84 days count
against the R.C.M. 707 120 day speedy trial clock:

6359

28 May 2010 to 11

10258

1

July 2010, 45 days; 16 December 2011 to 23 December 2011, 8 days; 9

2

January 2012 to 3 February 2012, 26 days; 23 February 2012, 1 day.
The defense concedes the following 220 days were properly

3
4

excluded:

11 August 2010 to 3 March 2011, 205 days; 8 to 22 February

5

2012, 15 days.

6

and 22 February 2012 to count towards the R.C.M. 707 120 clock.

7

oral argument the defense conceded the period between the date of the

8

telephonic R.C.M. 802 conference between the parties and the Court to

9

set the arraignment, 8 February 2012, until the day prior to

In its motion defense included the period between 4

10

arraignment 22 February 2012, are excludable delay with defense

11

consent.

At

The remaining 333 days includes the following disputed time

12
13

periods: 12 July to 10 August 2010, 30 days; 4 March 2011 to 15

14

December 2011, 287 days; 24 December 2011 to 2 January 2012, 10 days;

15

and 7 through 8 January 2012, 2 days; 4 February through 7 February

16

2012, 4 days.
R.C.M. 707 -- The law.

17

R.C.M. 707(a) requires in relevant

18

part that an accused be brought to trial within 120 days after

19

imposition of restraint under R.C.M. 304(a)2 through 4.

20

trial” means the date of arraignment.

21

restraint does not count; however, the date of arraignment does

22

count.

6360

“Brought to

The date of imposition of

10259

1

Before a case is referred requests for pretrial delay

2

together with supporting reasons are submitted to the Convening

3

Authority for decision.

4

submitted to the military judge for resolution.

5

approved by a military judge or the Convening Authority is excluded

6

from the 120-day period.

7

Article 32 Investigating Officer (IO) authority to grant excludable

8

delay.

9

sole discretion of the Convening Authority, military judge or Article

10

After referral request for delay are
All pretrial delay

The Convening Authority may delegate to an

The decision to grant or deny excludable delay is within the

32 IO with delegated authority to grant delay.

11

The decision -- the discussion to R.C.M. 707(b)(1) proposes

12

examples of appropriate reasons to grant delay including the need for

13

time to enable counsel to prepare for trial and complex cases; time

14

to allow examination into the mental capacity of the accused; time to

15

complete other proceedings related to the case; time requested by the

16

defense; time to secure the availability of the accused; witnesses or

17

other evidence; time to obtain appropriate security clearances for

18

access to classified information or time to declassify evidence or

19

other good cause.

20

The discussion further provides that pretrial delays should

21

not be granted ex parte and where practicable the decision to grant

22

the delay together with the supporting reasons and dates covering the

23

delay should be reduced to writing.

6361

10260

Pretrial delay may be excluded after the delay occurs:

1
2

United States v. Thompson 46 M.J. 472, Court of Appeals for the Armed

3

Forces 1997.

4

Approved pretrial delays by a Convening Authority, Article

5

32 IO with delegated authority or a military judge are excluded from

6

the 120 time unless the person who granted the delay abused his or

7

her discretion:

8

of Appeals for the Armed Forces 2005.

United States v. Lazauskas 62 M.J. 39 at 41, Court

The authority granting the delay must make an independent

9
10

determination as to whether there is good cause for a pretrial delay

11

and grant the delay for only so long as necessary under the

12

circumstances:

Thompson at 475.

The issue is not which party is responsible for the delay,

13
14

but whether the decision to grant it was an abuse of discretion.

15

There must be a causal connection between the cited justification or

16

unusual event and the delay.

17

in almost every trial, are not excludable:

18

34 M.J. 1232 and at 1343 Army Court of Military Review 1992, citing

19

United States v. Longhofer 29 M.J. 22 at 27 Court of Military Appeals

20

1989.

21

Normal recurring events, which happen
United States v. Duncan

A blanket exclusion of time not tied to a specific event or

22

events is an abuse of discretion: United States v. Ralph 2003,

23

Westlaw 828986, Air Force Court of Criminal Appeals 2003.

6362

10261

An accused cannot be responsible for or agreeable to delay

1
2

and later demand dismissal for violation of speedy trial for that

3

same delay:

4

Appeals, 1990; United States v. McCullough 60 M.J. 580, Army Court of

5

Criminal Appeals, 2004.

United States v. King 30 M.J. 59, Court of Military

The Rules of Practice for Army Courts-Martial, 15 September

6
7

2009, in effect on 23 February 2012, when the accused was arraigned

8

provided that any period of delay from the military judge’s receipt

9

of referred charges until arraignment is considered pretrial delay

10

approved by the judge unless the judge specifies to the contrary:

11

Rule 1.1.
R.C.M. 707, Findings of Fact and Conclusions of Law of

12
13

Disputed Time Periods:
One, 12 July 2010 to 10 August 2010: 30 days.

14
15

fact.

16

and transferred to TFCF on 31 May 2010.

17

Findings of

The accused was placed in pretrial confinement on 29 May 2010,

In June 2010, the accused was growing increasingly mentally

18

unstable culminating in the 30 June 2010, incident where the accused

19

was placed in maximum custody, administrative segregation, one-on-one

20

suicide watch.

21

On 4 July 2010, the Commander, 3rd ARCENT, ordered the

22

accused transferred from TFCF when an appropriate facility with

23

adequate mental health resources would accept him.

6363

10262

1

On 11 July 2010, the defense requested an R.C.M. 706

2

Inquiry into the mental capacity or mental responsibility of the

3

accused and a delay of the Article 32 Investigation then scheduled to

4

be held on 14 July 2010.

5

Investigating Officer (IO) denied the R.C.M. 706 request.

6

On 11 July 2010, the Article 32

On 12 July 2010, the defense requested delay of the Article

7

32 Investigation until the R.C.M. 706 board was complete and until

8

the accused could resolve issues related to retaining civilian

9

counsel (CDC), civilian defense counsel and defense expert witnesses.

10
11
12

On 12 July 2010, the Iraq Special Court-Martial Convening
Authority granted the defense request for delay until 16 August 2010.
From 12 to 21 July 2010, Iraq trial counsel were

13

coordinating the transfer of the accused out of the deployment

14

theatre and coordinating up the chain of command to locate potential

15

R.C.M. 706 board members.

16

Ultimately on 28 July 2010, before the R.C.M. 706 board

17

could be appointed, jurisdiction of the case was transferred to the

18

Military District of Washington, and the accused was transferred to

19

Marine Corps Brig Quantico (MCBQ).

20
21
22
23

On 25 August 2010, Mr. Coombs notified the government that
the accused retained him as civilian defense counsel.
Conclusions of law:

The 12 July 2010, decision by the Iraq

Special Court-Martial Convening Authority to grant the defense

6364

10263

1

request for delay until 16 August 2010, was not an abuse of

2

discretion.

3

the accused out of the deployed theatre to a more established

4

confinement facility where adequate mental health assets were

5

available.

6

The delay was directly related to the need to transfer

Defense further requested the delay to allow the accused

7

time to make decisions about retaining civilian counsel.

8

decision was not made and communicated to the government until 25

9

August 2010.

10
11
12

His

The time is excludable under R.C.M. 707(c).

Two, 24 December 2011 to 2 January 2012, 7 January 2012 to
8 January 2012, 10 days and 2 days.
Findings of Fact:

The military judge from the U.S. Army

13

Reserves was appointed as the IO to conduct the Article 32

14

Investigation.

15

December 2011 through 11 January 2012.

16

on active duty orders, from 12 December through 23 December 2011 and

17

from 3 January to 6 January 2012.

18

was performed from 9 January 2012 to 11 January 2012.

19

The Article 32 Investigation was conducted from 12
During that time the IO was

Other active duty status for pay

In the 16 November order to restart the Article 32, the

20

Special Court-Martial Convening Authority gave the IO as suspense of

21

60 days, on or about 16 January 2012, to complete the Article 32

22

Investigation.

6365

10264

Two, during this period the IO excused two periods of delay

1
2

pursuant to R.C.M. 707(c) at the request of the government.

3

first period of delay ran from 24 December 2011 through 2 January

4

2012.

5

through 26 December 2011 and 31 December 2011 through 2 January 2012,

6

because they were holiday periods and appropriate personnel were not

7

available to monitor review of classified information in the case.

8

However, the IO testified that the periods of delay from 27 to 30

9

December 2011, was attributed to civilian work conflict rather than

10
11

The

The IO testified that he excluded the periods from 24 December

conflict with federal holidays.
Three, the second period of delay excluded by the IO was 7

12

through 8 January 2012.

13

that he did not perform work because he took his son to a swim meet

14

in Pennsylvania.

15
16
17

For that period of delay the IO testified

Four, the IO did not request input from the defense prior
to granting the delays.
Conclusions of law:

One, the period of excludable delay

18

occurred during the holidays where offices containing classified

19

evidence required for review as part of the investigation were closed

20

or appropriate personnel at those offices necessary for review were

21

unavailable, and are reasonable delay under R.C.M. 707(c) and

22

applicable case law.

Those periods include the delay between 24 and

6366

10265

1

26 December 2011, and the period from 31 December 2011 to 2 January

2

2012.

These 6 days were properly excluded under R.C.M. 707(c).
Two, the periods of delay from 27 to 30 December 2012 [sic]

3
4

and 7 through 8 January 2012; however, do not meet the good cause

5

requirement and constitute an abuse of discretion.

6

cases the delays were based on purely personal circumstances,

7

civilian work for the first period and personal travel for the second

8

period, rather than inability to access necessary facilities or

9

evidence.

In both of those

Furthermore, the IO’s determinations were made ex post

10

facto and not in a manner to permit the defense to timely oppose the

11

grant of delay.
The IO testified at the Article 39(a) session that he

12
13

drafted a memorandum regarding excludable delay at the government’s

14

request and did not consider the defense’s position as to whether or

15

not the time should be excluded.

16

dated 11 January 2012, the IO cited as his sole reason for exclusion

17

of time federal holidays or weekend days.

18

of 23 December 2011 to 3 January 2012, is dated 4 January 2012 and a

19

clarifying memorandum covering both periods is dated 11 January 2012.

20

Before I proceed on that, I announced that the dates of the

21

Article 32 Investigation were 12 December 11 through 11 January 2012.

22

The actual Article 32 Investigation began on 16 December.

23

correct?

In his excludable delay memorandum,

6367

The memorandum for period

Is that

10266

1

TC[MAJ FEIN]:

2

MJ:

3

TC[MAJ FEIN]:

4

MJ:

5

CDC[MR. COOMBS]:

6

TC[MAJ FEIN]:

7

MJ:

8

Yes, Your Honor.

Okay.
The investigation started then.

And concluded on the 23rd of December.

Is that correct?

Yes, Your Honor.
Ma’am, I think it was the 22nd of December.

The 22nd of December?

Now, the Investigating Officer’s

final report was submitted on what day?
TC[MAJ FEIN]:

9
10

MJ:

11

[Pause.]

12

MJ:

May I have a moment, Your Honor?

Yes.

Anyway, do both sides agree that the Article 32 period

13

would begin the 16th of December through the date that the IO

14

submitted his final report?

15

CDC[MR. COOMBS]:

16

TC[MAJ FEIN]:

17

MJ:

All right.

Period three, 4 February 2012 to 7 February

2012; 4 days.
Findings of Fact:

22
23

The Court will amend its ruling accordingly.

with respect to that time period, those dates.

20
21

Yes, Your Honor.

And the dates don’t affect the determination of the Court

18
19

All right.

Yes, Your Honor.

2012.

This case was referred on 3 February

The Court received the referral on 3 February 2012.

6368

Also, on

10267

1

3 February 2012, the government sent the Court its electronic docket

2

notification (EDN) requesting immediate arraignment, but no sooner

3

than 10 days after the Court sets arraignment date to allow for

4

implementation of the OPORD to coordinate the accused’s travel,

5

provide adequate security for the accused, the parties and the Court,

6

and to finalize preparation of courthouse infrastructure to

7

accommodate the public.

8
9

On 4 February 2012, the Court sent an e-mail to the parties
advising them to confer and select 6, 9 or 10 February 2012, for a

10

telephonic R.C.M. 802 conference to set an arraignment date.

11

Court further advised the parties that the Court was available for

12

arraignment 14 through 17 or 22 through 25 February 2012.

13

The

On 4 February 2012, the Court received an e-mail from Mr.

14

Coombs requesting arraignment either 24 or 25 February 2012.

15

February 2012, the Court received a defense EDN advising that the

16

defense was not available for arraignment 13 through 17 February

17

2012, and requesting arraignment 23 or 24 February 2012.

On 6

18

Also, on 6 February 2012, the Court received an e-mail from

19

the government advising that the parties had agreed to arraignment on

20

23 February 2012 at 1300.

21

arraignment on 6 February 2012.

22
23

The Court docketed the 23 February 2012,

Conclusions of Law:

The period between 4 through 7

February 2012 is excludable delay under R.C.M. 707(c) by Rule 1.1 of

6369

10268

1

the Rules of Practice Before Army Court-Martial, 5 September 2009, in

2

effect on 23 February 2012.

3

delay with the concurrence of the defense.

This period also qualifies as excludable

4

Four, 4 March 2011 to 15 December 2011, 287 days.

5

A.

6

R.C.M. 706 request board requested delay 4 March

through 22 April 2012, 50 days.
Findings of Fact:

7

On 11 August 2010, the defense requested

8

a delay of the Article 32 Investigation until completion of the

9

sanity board.

On 12 August 2010, the Special Court-Martial Convening

10

Authority approved the request until the R.C.M. 706 board was

11

complete.
Starting on 25 August 2010, the defense requested a series

12
13

of delays of the R.C.M. 704 -- 06 board that were approved by the

14

Convening Authority.

15

clearances were obtained, defense expert consultants were appointed.

16

The defense does not contest the period of time between 11 August

17

2010 and 3 March 2011, as excludable delay.

The PCR was conducted, TS-SCI security

The Special Court-Martial Convening Authority ordered the

18
19

R.C.M. 706 board to resume on 3 February 2011, with a 4-week suspense

20

date.

21

board advising them that the suspense was aspirational and requesting

22

that the board take the time necessary to conduct a thorough and

On 7 February 2011, civilian defense counsel e-mailed the

6370

10269

1

complete examination and that any requests for extension of time

2

would undoubtedly be granted.
The Court agrees that a 4-week suspense for a routine

3
4

R.C.M. 706 board is aspirational.

The R.C.M. 706 board in this case

5

had three members, each of which was required to have TS-SCI

6

clearances, was required to conduct additional neurological tests and

7

was required to interview the accused in a SCIF and during the

8

weekend for the accused’s privacy and security.
Between 9 and 11 February 2011, the R.C.M. 706 board

9
10

proposed a schedule of unclassified interview of the accused on 16

11

February 2011, followed by testing on 17 February 2011, and the

12

classified interview in the SCIF on 1 March 2011.
On 21 February 2011, civilian defense counsel requested

13
14

that the government arrange for a SCIF to be available for the

15

defense to interview the accused before the R.C.M. 706 board

16

interview.

17

purchase reasonably priced airline tickets.

Civilian defense counsel requested 14 days’ notice to

18

On 25 February 2011, civilian defense counsel advised the

19

government that the earliest the defense would be available to meet

20

with the accused was the week of 7 March 2011.

21

March 2011, R.C.M. 706 board’s suspense date.

22
23

This was after the 4

On 25 February 2011 until 3 March 2011, the government
coordinated with INSCOM to make a SCIF available to the defense and

6371

10270

1

to the R.C.M. 706 board.

The R.C.M. 706 board wanted to interview

2

the accused on 11 March 2011, a Friday.

3

interviews of the accused at the SCIF to be on Saturdays where there

4

would be few, if any, workers in the area.

The government arranged for

5

On 5 March 2011, the CDC requested from the government that

6

his meeting with the accused take place on 11 and 12 March 2011, with

7

alternative dates 25 through 26 March 2011.

8

CDC that the government had to confirm with the security detail and

9

would know by 7 March 2011, a Monday.

The government advised

On 7 March 2011, the civilian defense counsel requested the

10
11

defense interview with the accused take place on 25 through 26 March

12

2011.

13

interview with the accused and proposed that it take place 26 March

14

2011.

15

an entire day.

Meanwhile, the R.C.M. 706 board coordinated their classified

Both the defense and the R.C.M. 706 board interview required

On 14 March 2011, the government proposed 2 April 2011, as

16
17

an alternative date for the R.C.M. 706 board interview.

All board

18

members were available to conduct the interview with the accused on 9

19

April 2011.
The R.C.M. 706 board requested extensions on 14 March 2011,

20
21

with a proposed suspense of 29 April 2011, requesting 3 weeks to

22

finalize their report after the 9 April 2011, interview with the

23

accused.

Special Court-Martial Convening Authority approved

6372

10271

1

extension, but only until 16 April 2011.

The board advised the

2

government that report could be finished by 16 April 2011, but it

3

would be rushed.
The R.C.M. 706 board was 98 percent complete on 15 April

4
5

2011; however, the board felt it necessary to meet and thoroughly

6

review the results rather than rush the report to conclusion.

7

April 2011, the board again requested an extension until 22 April

8

2012 [sic].

9

this extension.

10

The Special Court-Martial Convening Authority approved
The board completed its report on 22 April 2011 --

not 22 April 2012.

The board completed its report on 22 April 2011.

Conclusions of Law.

11

On 15

The Special Court-Martial Convening

12

Authority did not abuse his discretion in granting the extensions or

13

in excluding either the 14 March 2011 or the 15 April 2011 requests

14

by the R.C.M. 706 board for delay or excluding the delay under R.C.M.

15

707(c).

16

board had legitimate reasons to request each extension.

17

counsel advised the board that the defense was more interested in a

18

thorough R.C.M. 706 board than a rush to complete the end product.

19

The R.C.M. 706 interview of the accused was delayed to accommodate

20

the defense request to interview the accused before.

21

each delay was reasonable.

22

22 April 2011, was properly excluded by the Special Court-Martial

23

Convening Authority.

The initial suspense to the board was extremely short.

The

Defense

The length of

The period of delay from 4 March 2011 to

6373

10272

1

Government requested delays.

2

Findings of fact.

Military authorities were not aware that

3

the accused was allegedly involved in any disclosures of classified

4

information to WikiLeaks until Adrian Lamo’s 25 May 2010 report.

5

Thus the CID investigation began at that time in a combat zone.

6

When the Iraq trial counsel team preferred the original

7

charges on 5 July 2010, the investigation was in its infancy.

The

8

accused was charged with four specifications of violating a lawful

9

general order in violation of Article 92, UCMJ; one specification in

10

violation of 18 United States Code Section 793(e); three

11

specifications in violation of 18 United States Code Section

12

1030(a)1; and five specifications of violating 18 United States Code

13

Section 1038(a)(2).

14

violation of Article 134, UCMJ.

15

scope and breadth of the alleged misconduct by the accused when he

16

was originally charged.

17

These eight specifications were also in
The government was not aware of the

The originally charged offenses involve a video of a

18

military operation filmed near Bagdad, Iraq, on or about 12 July

19

2007, more than 50 classified DoS cables, a classified Microsoft

20

PowerPoint Presentation, a classified DOS cable entitled “Reykjavik-

21

13,” and more than 150 classified Department of State Cables.

22
23

In August of 2010, the government initially contacted the
Department of State regarding classification review of the originally

6374

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1

charged cables.

2

regarding classification reviews of the originally charged documents.

3
4
5

In October 2010, the government contacted CENTCOM

On 18 October 2010, the government received the OCA review
of the Apache video.
On 26 August 2010, the defense requested the government to

6

provide original classification reviews to include:

one, the

7

classification level of the information alleged to have been

8

disclosed by the accused when it was subject to compromise; two, a

9

determination of whether another command requires review of the

10

information; and three, the general description of the impact of

11

disclosure of effected operations.

12

the defense requested the CCIU, forensic reports and other evidence

13

the government would use at trial.

In subsequent discovery requests

14

During the fall of 2010, while the PSR was ongoing and the

15

R.C.M. 706 board was on hold, investigative agencies were continuing

16

to investigate the case.

17

classified information allegedly provided by the accused and the

18

government was coordinating with DoJ and consulting Code 50 OTJAG, US

19

Navy Primer on prosecuting, defending and adjudicating cases

20

involving classified information.

21

WikiLeaks made rolling disclosures of

On 3 November 2010, CID conducted a second search of the

22

accused’s aunt’s house and discovered additional digital media, one

23

hard disc drive, three SD memory cards, one smart media card, 14 CDR

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1

discs, two CDR-W discs, and one memory USB -- excuse me, one USB

2

memory card.

3

more fully informed of the potential scope of the misconduct alleged

4

to have been committed by the accused, the government coordinated

5

with the Department of State and other equity holders of the

6

information in the current Charge Sheet to receive approval to charge

7

each equity holders’ classified information.

8

required approvals, the government preferred the charges currently

9

before the Court on 1 March 2011.

After receiving all the

The government sent out the following prudential search,

10
11

As the investigation matured and the government became

preservation and review requests:
30 September 2010, preservation request to the 2 of the

12
13

2nd, 10th Mountain Division; 25 May 2011, search request to OGA 1,

14

DoD, DoS, OGA 2, ODNI and ONCIX.

15

6 June 2011, search requests to DoD.

16

14 June 2011, search request to DIA, DoS, OGA 2, and ODNI.

17

27 through 28 June 2011, search request to FBI, DoJ and

18

DISA.
On or about 21 July 2011, DoD tasking responding to search

19
20

request to DoD.

21

16 August 2011, search request to DoJ.

22

6 October 2011, defense request to locate and preserve

23

evidence.

6376

10275

6 October 2011, request to review damage assessments to

1
2

DoS, FBI, ODNI, OGA 1 and OGA 2.
The agencies receiving the prudential search requests

3
4

(PSRs), were creating records documenting damage from the WikiLeaks

5

releases and mitigation efforts taken by the agency.

6

sent the PSRs to preserve potential discoverable information created

7

after the accused’s alleged misconduct rather than preserve

8

information or evidence created at or before the alleged misconduct

9

by the accused.

The government

On 30 November 2010, the prosecution submitted a written

10
11

request to DoD for a classification review of evidence it intended to

12

review.

13

On 18 March 2011, the government submitted written requests

14

to the following organizations for classification reviews of the

15

records charged in the 1 March 2011 preferred Charge Sheet:

16

OGA 1, DoS, SOUTHCOM, DSSA, CYBERCOM, ODNI, INSCOM and OGA 2.

17

March 2011, requests had a suspense of 31 March 2011.

18

CENTCOM,
The 18

The government sent follow-up written requests to each of

19

these entities as set forth in the attached chronology.

20

follow-up requests had 2-week suspense dates, emphasized urgency and

21

explained the rights of the accused to a speedy trial.

22

prosecution team nor the Special Court-Martial Convening Authority

6377

Each of the

Neither the

10276

1

had tasking authority over the original classification authority

2

entities.

3

The government requested completion of the classification

4

review multiple times.

The government sent memoranda to the OCAs on

5

18 March 2011, 28 June -- July 2011, 4 August 2011, and 7 September

6

2011, and 6 October 2011.

7

the classification reviews with a short suspense.

8

the government reminded the OCAs of their obligations under Article

9

10 UCMJ and the Sixth Amendment, noting any delay by your department

Each time asking -- seeking completion of
In these memoranda

10

to comply with this firm deadline may severely jeopardize the

11

prosecution.

12

Classification review requires a manual line-by-line review

13

of a document and its classification markings to determine if a

14

document has been properly classified, is properly marked consistent

15

with a source of classification or an OCA decision.

16

Further, classification reviews require a determination of

17

each particular word or phrase in an effort to redact such words and

18

phrases to create an unclassified document.

19

coordination is required to complete classification reviews.

20

document can have multiple sources of classification, potentially

21

from sources not under the authority of the original OCA.

22

with an equity in the classified information must review it.

6378

Extensive interagency
One

Each OCA
There

10277

1

is no correlation between the complexity of the review and the number

2

of pages of the final OCA reviewed product.

3

The majority of the evidence that the government intended

4

to present at trial was classified or unclassified, but sensitive.

5

The government’s goal was to obtain the OCA reviews and obtain

6

authority to disclose the charged documents, its classification

7

reviews, and CCI forensic reports to the defense to ensure the

8

defense had all of the charged information and all of the evidence

9

the government intended to use in its case in chief at trial before

10

the Article 32 Investigation.

11

potentially multiple equity holders to the classified information to

12

receive approvals to disclose the information.

13

This required contacting each of the

The government believed the OCA reviews were necessary to

14

prove that the information at issue was classified, to ensure the

15

information was properly handled at trial and to prove there was an

16

overriding interest in protecting against disclosure of classified

17

information, to justify closing portions of the Article 32

18

Investigation.

19

The government believed the disclosure of the forensic

20

reports to the defense prior to the Article 32 was necessary to show

21

the government theory of the case and if the Article 32 occurred

22

without evidence linking the accused to the charged misconduct, the

6379

10278

1

government would likely fail in its burden of proof and open itself

2

to challenge that the Article 32 was defective.
On 16 December 2010, the Secretary of the Army ordered an

3
4

AR 15-6 Investigation.
On 14 February 2011, the Secretary of the Army 15-6 was

5
6

complete.
On or about 15 March 2011, the government submitted a

7
8

request to review it and received approval to review it on 21 March

9

2011, and reviewed it from March to 30 May 2011.
On 17 June 2011, the government received authority to

10
11

disclose the SEC Army 15-6 Investigation to the defense upon

12

acknowledge of receipt of the Special Court-Martial Convening

13

Authority protective order.
On or about 12 July 2012, the government produced the

14
15

investigation to the defense.
The regulation 380-5 Investigation was complete on 16 July

16
17

2010.

18

digital copy.

19

disclosed it to the defense on 9 February 2011.

20

The government learned of it in September 2010, and received a
The government reviewed the investigation and

USACID, Computer Crimes Investigative Unit (CCIU) generated

21

an unclassified report and a classified report, both still ongoing.

22

CID completed 22 forensic reports; three unclassified reports of

23

NIPRNET systems, 15 September 2010, 20 September 2010 and 27 July

6380

10279

1

2011; one unclassified report of a SIPRNET system, 22 September 2011;

2

one unclassified of digital media, 22 September 2011; and 17

3

classified reports, 22 September 2011 and 20 October 2011.

4

Before releasing the final reports CCIU produced 10 interim

5

reports of approximate dates:

6

2010, 21 January 2011, 2 February 2011, 7 and 8 June 2011, 18 July

7

2011, and 22 September 2011.

8
9

7 and 13 July 2010, 6 and 23 August

CID also collected multiple sets of audit data or logs for
the computer networks from which the data from the devices came.

10

Some of the logs contained only classified data.

11

both classified and unclassified data.

12

Others contained

In addition to the classified information, the unclassified

13

CID reports contained unclassified but protected information and

14

classified information.

15

review the report for Grand Jury information and information obtained

16

by sealed warrants.

17

This required the Department of Justice to

On or about April 2011, the government requested the Army

18

G2 to review the unclassified CID file to identify any potentially

19

classified material.

20

major equity holders with classified information.

21

requested both equity holders to review the relevant portions of the

22

classified information.

23

-- excuse me.

The G2 reviewed the reports and identified two
The government

The government requested both equity holders

Both discovered classified information.

6381

The

10280

1

government then requested authority to disclose the information to

2

the defense and have the documents properly marked as classified

3

material.
The Iraq trial counsel team received approvals to disclose

4
5

200 pages.

The information was disclosed to the defense on 22

6

October 2010.

7

2011, contingent on the defense executing a Special Court-Martial

8

Convening Authority protective order.

9

were disclosed to the defense between 25 July 2011 and 3 August 2012.

The government received further approvals on 16 June

The unclassified CID reports

10

On or about 17 September 2011, all organizations approved

11

disclosure of classified information from the original unclassified

12

file.

13

and disclosed it to the defense on 17 November 2011.

14
15
16

The government received the information on 27 October 2011,

CID continues to receive information and the government
continues to process it for release to the defense.
On 12 March 2011, the government requested that CID conduct

17

an administrative review of the previously identified classified

18

information in the case file to identify what equity holders may have

19

classified information in the case file.

20
21
22
23

The case file consisted of classified and unclassified
files and of forensic reports.
The government intended to receive approvals from the OCAs
to disclose CID documents containing classified information and

6382

10281

1

derivative reports to include the forensic reports for the defense.

2

Authority to approve disclosure of the forensic reports was directly

3

tied to approval to disclose the underlying evidence.
The government received final approval from all equity

4
5

holders on 28 October 2011.

In total the CCIU analyzed approximately

6

8 terabytes of digital media containing classified information.
Prior to producing the forensic images of the memory drives

7
8

of the devices, the government was required to coordinate with every

9

government agency OCA that had data on the drives.

The government

10

initially searched the drives with security experts to identify

11

agencies involved and the relevant OCAs.

12

On the following dates the government submitted written

13

requests to OCAs authorized to approve disclosures of the charged

14

documents and other classified information to the defense:
14 March 2011, DoD and DA, approved 30 March 2011, with

15
16

final approval on 28 October 2011 for all CCIU classified forensic

17

reports and data files.
DoS approved 29 March 2011, ODNI partial approval 9 August

18
19

2011, full approval of intel logs 4 October 2011.
OGA 1 approved 29 March 2011 and OGA 2 approved 28 April

20
21
22
23

2011.
21 March 2011, DSSA, approved 29 March 2011; and DIA
approved 7 April 2011.

6383

10282

23 June updated request to OGA 1, 23 June 2011 and 4 August

1
2

2012.
Updated requests to FBI, DoD, final approval on 28 October

3
4

2011.

5

DIA approved through the summer of 2011.

6

11 August 2011, updated requests to OGA 1.

7

On 3 October 2011, the government received the final

8

forensic reports from CCIU.

9

of the reports after review to ensure none of the information was

10

classified in accordance with CIDs OCA authority.
Between 3 and 26 October, the government processed the

11
12

On 4 October 2011, CCIU approved release

330,000 page report and prepared it for production.
On 26 October 2011, the government requested to the Army G2

13
14

for approval to disclose the Army CID forensic reports that involve

15

DoD equities and equities of other agencies that have approved

16

release.

17

On 28 October 2011, the government received from all

18

relevant OCA approvals to disclose all images of digital data.

19
20

On 4 November 2011, the government disclosed that
information to the defense.

21

Apparently, as of 15 February 2011, the government believed

22

it would have all the OCA reviews and necessary approvals to disclose

23

the CCIU forensic reports to the defense before 15 March 2011, when

6384

10283

1

the government e-mailed the Article 32 IO advising him that the

2

R.C.M. 706 board had a 3 March 2011 suspense date and the Article 32

3

would be ready to begin on 15 March and last 3 days.

4

Beginning on 25 April 2011, the government began requesting

5

approximately monthly delays between 22 April 2011 and the restart of

6

the Article 32 Investigation:

7

2011, 22 May 2011, 27 June 2011, 25 July 2011, 25 August 2011, 26

8

September 2011, 25 October 2011, 16 November 2011.

9

25 April -- May -- I’m sorry, 25 April

The government developed a process of providing the Special

10

Court-Martial Convening Authority with a monthly request for a delay

11

specifying the reasons for the delay, the progress made in the case

12

that month, and an update would be provided by the government to the

13

Special Court-Martial Convening Authority in 30 days.

14

Authority would request the views of the defense, decide whether to

15

approve the requested delay and subsequently provide a monthly

16

accounting memorandum documenting the period and reasons for the

17

excludable delay.

18

The Convening

Starting with the memorandum on 26 April 2011, the defense

19

objected to each delay.

The 26 April 2011, memorandum requested to

20

avoid delay of the Article 32 that the Special Court-Martial

21

Convening Authority:

22

summary of the information of relevant classified documents; two

23

allow the defense to inspect any and all unclassified documents and

One, provide either a substitute for or a

6385

10284

1

reports within the government’s control which are material to the

2

preparation of the defense or requested by a defense discovery

3

request; three, ensure the defense has equal access to CID and other

4

law enforcement witnesses by requiring trial counsel to make the

5

witnesses available.

6

Court-Martial Convening Authority that because of the limited

7

discovery provided, it was likely the Article 32 would be delayed

8

unless the above information is provided in a timely manner and

9

requested that any delay be credited toward the government.

The defense memorandum advised the Special

On 24 May 2011, 29 June 2011, 27 August 2011, 27 September

10
11

2011 and 25 October 2011, the defense objected via e-mail to the

12

second, third, fifth, sixth and seventh government request for

13

excludable delay by adhering to its position in the 26 April 2011

14

memorandum.
On 25 July 2011, the defense submitted a memorandum in

15
16

objection to the government’s fourth request for excludable delay

17

reiterating its objection to the 26 April -- in the 26 April 2011,

18

memorandum and renewing its 9 January 2011 speedy trial demand.
Below is a summary of the government request and monthly

19
20

accounting memorandum:
25 April 2011, first request for delay, 22 April to 25 May

21
22

2011.

Under Executive Orders 12958 and 13526 and Army Regulations

23

380-5 and 380-67, the United States cannot release classified

6386

10285

1

information originating in a department or agency to parties outside

2

the Executive Branch without the consent of the OCA or his delegate

3

-- or their delegate.

4

diligently working with all the departments and agencies that

5

originally classified the information and evidence sought to be

6

disclosed to the defense and the accused.

Since 17 June 2010, the United States had been

Enclosed are redacted copies of the OCA disclosure requests

7
8

and OCA classification review requests without their enclosures

9

respectively; however, because of the special circumstances of this

10

case, including the voluminous amounts of classified digital media

11

containing multiple equities and subsequent discovery of more

12

information helpful to both the United States and the accused, more

13

time is needed for Executive Branch and agencies to obtain necessary

14

consent from their OCA and authorizing officials.
The delay was approved by the Special Court-Martial

15
16

Convening Authority on 29 April 2011, requiring trial counsel update

17

no later than 23 May 2011.
The 12 May 2011, accounting memorandum excluded delay from

18
19

22 April to 12 May 2011, based upon:

20

A.

OCA reviews of classified information;

21

B.

OCA consent to disclose classified information;

22

C.

Defense requests for results of OCA reviews, 26 August

23

2010;

6387

10286

D.

1
2

Defense requests for appropriate security clearances

for the defense team and access for PFC Manning, 3 September 2010;

3

E.

25 April 2011, government request for delay.

4

22 May 2011, second request for delay.

25 May to 27 June

5

2011.

The government is continuing to work with the relevant OCAs to

6

obtain consent to disclose classified evidence and information to the

7

defense along with receiving completed classification reviews.

8

anticipation of the OCA consent, CID began making copies of

9

classified digital media and evidence for disclosure to the defense.

In

10

Additionally, the prosecution learned that in several exhibits and

11

documents in the unclassified CID file require authorization to

12

disclose apart from any classified information.

13

Office for the Eastern District of Virginia is working to obtain that

14

authorization on behalf of the prosecution for multiple federal

15

districts within the United States.

16

The U.S. Attorney’s

The delay was approved by the Special Court-Martial

17

Convening Authority on 26 May 2011, requiring trial counsel update no

18

later than 25 June 2011.

19

17 June 2011, accounting memorandum excluded delay between

20

22 April -- excuse me, excluded delay from May to June, based upon

21

OCA reviews of classified information.

22

classified information, defense request for results of OCA reviews,

23

26 August 2010, defense request for appropriate security clearances

6388

OCA consent to disclose

10287

1

for the defense team and access for PFC Manning, 3 September 2010, in

2

the 22 May 2011 request for delay.
5 July 2011, third request for a delay:

3
4
5

27 June to 27 July

2011:
A. The prosecution is continuing to work with the relevant

6

OCAs to obtain consent to disclose classified evidence and

7

information to the defense along with receiving completed

8

classification reviews.

9

requests forwarded by the prosecution on 23 June 2011, after forensic

This includes the enclosed additional

10

examiners discovered another document on digital evidence requiring

11

OCA consent to disclose to the defense.

12

B.

The prosecution submitted the unclassified CID case

13

file to the National Security Agency (NSA) and other government

14

intelligence organization, OGA, to have their experts review the file

15

for classified equity.

16

documents requiring further review by their subject matter experts.

17

The OGA is continuing their review of the documents.

18

C.

The NSA identified approximately 20 sensitive

The U.S. Attorney’s Office for the Eastern District of

19

Virginia is continuing to work on obtaining authorizations from the

20

relevant district court judges on behalf of the prosecution to

21

disclose certain exhibits and documents to the defense.

22

relevant disclosure orders have been signed, but a few remain

23

outstanding.

Most of the

Since the previous request the prosecution has received

6389

10288

1

approval to produce the Secretary of the Army AR 15-6 and related

2

documents after the defense acknowledges your protective order dated

3

22 June 2011, the prosecution will immediately produce those

4

documents and continue to produce evidence and information for the

5

defense.

6

This delay was approved by the Special Court-Martial

7

Convening Authority on 5 July 2011, requiring trial counsel update no

8

later than 25 July 2011.

9
10

The 13 July 2011, accounting memorandum, excluded delay.
From 17 June 2011 to 13 July 2011, based on OCA reviews of

11

classified information; OCA consent to disclose information; C,

12

defense request for results of OCA reviews, 26 August 2010; D,

13

defense request for appropriate security clearances for the defense

14

team and access for PFC Manning, 3 September 2010; and E, 5 July

15

2011, government request for delay.

16

25 July 2011, fourth request for delay:

17

August 2011:

18

A.

27 July to 27

The prosecution is continuing to work with relevant

19

OCAs to obtain consent to disclose classified evidence along with

20

receiving completed classification reviews.

21

reports are prepared for disclosure pending final approval by the

22

relevant OCAs and final review of references to classified

23

information within the forensic reports.

6390

Classified CID forensic

10289

B.

1

The prosecution submitted the unclassified CID case

2

file to the NSA and OGA to have their experts review the file for

3

classified equities.

4

documents requiring further review by their subject matter experts.

5

The OGA identified six sensitive documents requiring further review.
C.

6

The NSA identified approximately 20 sensitive

The United States Attorney’s Office for the Eastern

7

District of Virginia is continuing to work on obtaining

8

authorizations from the relevant district court judges on behalf of

9

the prosecution to disclose certain exhibits and documents to the

10

defense.

11

but a few remain outstanding.

12

Most of the relevant disclosure orders have been signed,

D.

Since the previous request the prosecution has produced

13

the Secretary of the Army AR 15-6 Investigation and related documents

14

as well as the complete record of the Master Sergeant Adkins

15

Reduction Board, approximately 10,000 pages of documents in total.

16

The prosecution intends to produce portions of the unclassified CID

17

case file that have been approved for release by relevant stake

18

holder agencies no later than the date of this memorandum.

19

prosecution receives other approvals, it will continue to disclose

20

evidence and information to the defense.

21

As the

This delay was approved by the Special Court-Martial

22

Convening Authority on 26 July 2011, requiring trial counsel update

23

no later than 25 August 2011.

6391

10290

The 10 August 2011, accounting memorandum excluded delay

1
2

from 13 July 2011 to 10 August 2011, based on:

3

A.

OCA reviews of classified information;

4

B.

OCA consent to disclose classified information;

5

C.

Defense request for results of OCA reviews, 26 August

D.

Defense request for appropriate security clearances for

6
7
8
9
10
11
12

2010;

the defense team and access for PFC Manning, 3 September 2010;
E.

25 July 2011, government request for delay.

25 August 2011, fifth request for delay, 27 August to 27
September 2011.
A.

The prosecution is continuing to work with relevant

13

OCAs to obtain consent to disclose classified evidence along with

14

receiving completed classification reviews.

15

B.

CID is conducting a secondary review of the derivative

16

classification of the forensic reports.

Recently the government’s

17

security expert reviewed the forensic reports and advised that

18

portions of the reports should be reviewed based on the security

19

classification guides governing the information.

20

to produce the full reports once the final documentation of the

21

derivative classification is made by CID command and the Army G2

22

gives consent for release.

23

in their entirety and were given to the defense on 25 July 2011.

Prosecution intends

Three of these reports are unclassified

6392

The

10291

1

prosecution submitted the unclassified CID case file to the NSA and

2

OGA to have their experts review the file for classified equities.

3

The NSA identified approximately 20 sensitive documents requiring

4

further review by their subject matter experts.

5

six sensitive documents requiring further review.

6

its additional review, but the NSA review is still on going.
D.

7

The OGA identified
The OGA completed

The U.S. Attorney’s Office for the Eastern District of

8

Virginia has obtained all authorizations from the relevant district

9

court judges on behalf of the prosecution and the prosecution is

10

currently obtaining signed protective orders from the defense as

11

required by district court judges to allow disclosure of all relevant

12

exhibits and documents to the defense.
E.

13

The prosecution is continuing to work with the Federal

14

Bureau of Investigation (FBI), the Diplomatic Security Service (DSS)

15

to receive authorization to disclose relevant portions of any case

16

files.

17

if any, to conduct a search of the files for discoverable

18

information.

19

F.

This includes obtaining copies of the FBI and DSS case files,

Since the previous request the prosecution has produced

20

21,442 pages of documents, Bates numbers omitted.

21

information disclosed include the vast majority of the unclassified

22

CID file, Major Clausen Administrative Reprimand file, recordings of

23

all visits with PFC Manning at Marine Corps Brig Quantico, and

6393

The evidence and

10292

1

various other documents.

As the prosecution receives other

2

approvals, it will continue to disclose evidence and information to

3

the defense.
Delay approved by the Special Court-Martial Convening

4
5

Authority on 29 August 2011, requiring trial counsel update no later

6

than 23 September 2011.
26 September 2011, sixth request for delay, 27 September

7
8

through 27 October 2011.
A.

9

The prosecution is continuing to work with the relevant

10

OCAs to obtain consent to disclose classified evidence to the defense

11

and to receive completed classification reviews.

12

request the prosecution received a classification review from the OCA

13

at U.S.C.YBER Command.

14

closely with Department of State and SOUTHCOM and expects to receive

15

classification reviews from more than 80 documents within the next 2

16

weeks.

17

Since the last

Additionally, the prosecution is working

CID started the necessary secondary review of the

18

derivative classification of the forensic reports and the forensic

19

reports are in the final stages of review before release.

20

completes its review and the Army G2 gives consent to release, the

21

prosecution intends to produce the full reports with their enclosures

22

and attachments to the defense.

6394

After CID

10293

C.

1

The prosecution submitted the unclassified CID file to

2

the NSA and OGA to have their experts review the file for classified

3

equities.

4

review.

5

marked versions -- a portion marked version of the documents that

6

they deem classified.

Both the NSA and OGA have completed their additional
The prosecution is working with the NSA to provide portion

The U.S. Attorney’s Office for the Eastern District of

7
8

Virginia has obtained all authorizations from the relevant district

9

court judges on behalf of the prosecution.

The prosecution is

10

continuing to obtain signed protective orders from the defense as

11

required by district court judges to allow disclosure of all relevant

12

exhibits and documents to the defense.
The prosecution continues to work with the FBI and DSS to

13
14

receive authorization to disclose relevant portions of the case

15

files.

16

and started to review those files for discoverable information.

17

the prosecution identifies discoverable information, it will work to

18

obtain the proper authorization to produce the relevant portion to

19

the defense.

20

F.

The prosecution received copies of the FBI and DSS case files
Once

Since the previous request, the prosecution has

21

produced 2,492 documents, dates, numbers omitted.

22

information disclosed included documentation from the confinement

23

facilities as well as the majority of two classified military

6395

The evidence and

10294

1

intelligence investigative case files.

As the prosecution receives

2

other approvals, it will continue to disclose evidence and

3

information to the defense.
This delay was approved by the Special Court-Martial

4
5

Convening Authority on 28 September 2011, requiring trial counsel

6

update no later than 25 October 2011.
14 October 2011, accounting memorandum excluded delay from

7
8

15 September 2011 to 14 October, based upon:

9

A.

OCA reviews of classified information;

10

B.

OCA consent to disclose classified information;

11

C.

Defense request for results of OCA reviews, 26 August

D.

Defense request for appropriate security clearances

12
13
14

2010;

from the defense team and access for PFC Manning, 3 September 2010;

15

E.

16

25 October 2011, seventh request for delay:

17
18

26 September 2011, government request for delay.
27 October

2011 to 28 November 2011.
The prosecution is continuing to work with relevant OCAs to

19

obtain consent to disclose classified evidence to the defense and to

20

receive completed classification reviews.

21

Within the last several days, the prosecution received a

22

classification review of approximately 100 documents and a video from

23

the OCA of CENTCOM.

Additionally, the prosecution is continuing to

6396

10295

1

work closely with DoS, OGA and SOUTHCOM and expects to receive

2

classification reviews for more than 80 documents before 1 November

3

2011.

4

B.

CID completed the necessary secondary review of

5

derivative classification of the forensic reports and the prosecution

6

is currently processing and packaging the forensic reports,

7

enclosures and attachments for delivery to the Army G2 no later than

8

27 October 2011.

9

more than 300,000 pages.

These reports consist of 40,000 documents totaling
The prosecution will release the final

10

forensic reports to the defense once the review by the Army G2 is

11

complete and consent to disclose it is received.

12

C.

The prosecution submitted the unclassified CID case

13

file to the NSA and OGA to have their experts review the file for

14

classified equities.

15

additional review.

16

prosecution will produce portion marked versions of the documents

17

deemed classified by the NSA and OGA no later than 27 October 2011.

18

D.

Both the NSA and OGA have completed their
Absent an unforeseen administrative issue, the

Based upon discussions with multiple OGAs, the -- OCAs,

19

excuse me, the prosecution’s security expert is developing an

20

evidence classification guide (ECG) to aid law enforcement,

21

prosecution, defense and other government officials in understanding

22

what specific investigative information is classified.

23

guide will not be a security classification guide published by an

6397

Although this

10296

1

OCA, this guide is based upon derivative classifications that can be

2

used by all parties and potential witnesses to understand what

3

information is classified or not.

4

be used by CID agents and government officials when discussing the

5

case with the defense.

In the short term, the guide will

The prosecution continues to work with the FBI and DSS to

6
7

receive authorization to disclose relevant portions of any case

8

files.

9

and started to review those files for discoverable information.

The prosecution received copies of the FBI and DSS case files
Once

10

the prosecution identifies discoverable information, it will work to

11

obtain the proper authorization to produce the relevant portions to

12

the defense.

13

F.

Since the previous request, the prosecution has

14

produced 771 pages of documents, Bates numbers omitted.

15

and information disclosed consisted of additional documents from the

16

CID case file.

17

continue to disclose evidence and information to the defense.
G.

18

The evidence

As the prosecution receives other approvals, it will

The prosecution scheduled a meeting with the defense

19

for 8 through 9 November 2011.

The purpose of the meeting is for the

20

prosecution to present its case, including a discussion of evidence

21

supporting the charges against the accused and present potential plea

22

terms.

The goal of the meeting is to help the defense focus their

6398

10297

1

review of the voluminous forensic evidence and minimize future

2

delays.
H.

3

The prosecution continues to work with the defense to

4

front load any administrative requirements for defense members and

5

the forensic computer experts to review classified information.

6

Additionally, the prosecution ordered several items requested by

7

defense counsel, including a color printer, GSA approved shredder and

8

large courier bags for the transportation of classified information.
This delay was approved by the Special Court-Martial

9
10

Convening Authority on 27 October 2011, requiring trial counsel

11

update no later than 23 November 2011.
16 November 2011, accounting memorandum excluded delay from

12
13

15 September 2011 to 14 October 2011 based upon:

14

A.

OCA reviews of classified information;

15

B.

OCA consent to disclose classified information;

16

C.

Defense request for results of OCA reviews, 26 August

18

D.

27 October 2010, government request for delay.

19

16 November 2011, request to restart the Article 32 and

17

2010;

20

excludable delay from 28 November to 16 December 2011.

21

prosecution is prepared to proceed and by 1 December 2011, should

22

have all approvals and classification reviews necessary to proceed.

23

Restart Request:

6399

The

10298

A.

1

OCA reviews of classified information.

The prosecution

2

received completed classification reviews for all charged documents

3

except the final charged document relevant to Specification 15 of

4

Charge II.

5

confirmation from an OCA delegate that the classification review for

6

the final charged document will be complete no later than 1 December

7

2011, if it is determined that such a declaration is necessary.

8

Based upon this commitment, the prosecution requests the Article 32

9

Investigation restart at this time to avoid further delay.

10

On 14 November 2011, the prosecution received written

B.

OCA consent to disclose classified information in

11

relevant part.

The prosecution recently produced 380,000 pages of

12

discovery to include:

13

One, all charged documents;

14

Two, all final forensic reports;

15

Three, the intelligence investigative case files;

16

Four, classification reviews; and

17

Five, two classified military intelligence investigative

18
19

case files.
C.

Defense request for appropriate security clearances for

20

defense team and access for the accused.

21

team received their security clearances on or before 13 October 2011.

22

On 4 November 2011, the prosecution received the final approval

6400

All members of the defense

10299

1

necessary for the defense team and the accused to access all of the

2

charged documents.

3

Excludable delay:

4

One, Specification 15 document;

5

Two, OPLAN Bravo directs early planning for and ensures

6

coordinated and synchronized reports of all aspects of the Article 32

7

Investigation proceeding.

8

command to coordinate travel, security, public affairs,

9

infrastructure support including Department of the Army assets for

The order, OPLAN Bravo requires the

10

movement and interagency support for both substance and

11

administration of the above referenced case.

12

The mission’s key tasks include safety and securely

13

transporting and maintaining custody of the accused, providing

14

physical security and support at all stages of the proceeding and

15

conducting public affairs and media support.

16

The command, including its subordinate units and staff

17

section, requires 30 days to initiate OPLAN Bravo to execute the

18

specified tasks outlined in Enclosure 4, including allowing adequate

19

time for contracts to be executed.

20

tasks requirements do not begin until you restart the Article 32

21

Investigation.

6401

OPLAN Bravo and its associated

10300

1

This delay was approved by the Special Court-Martial

2

Convening Authority on 16 November 2011, excluding delay from 22

3

April to 16 December 2011.

4
5

The 3 January 2012, accounting memorandum.

Excluded delay

from 16 November 2011 to 15 December 2011, based upon:

6

OCA reviews of classified information;

7

OCA consent to disclose classified information;

8

Defense request for results of OCA reviews, 26 August 2010;

9

D.

27 August 2011, government request for delay.

10

Conclusions of Law.

11

The decision by the government to obtain all relevant OCA

12

reviews and CCIU reports and to have both approved for release to the

13

defense was reasonable under the unique circumstances of this case.

14

Without the OCA reviews and CCIU reports, the government would likely

15

not be able to prove its case and would be vulnerable to a challenge

16

of a defective Article 32 Investigation.

17

The request by the defense for the Special Court-Martial

18

Convening Authority to provide substitutions or summaries for the OCA

19

reviews and the CCIU forensic reports is not practicable.

20

Special Court-Martial Convening Authority could not provide summaries

21

or substitutes without coordination and approval of each of the

22

equity holders involved.

The

The information would have to be properly

6402

10301

1

classified before summaries or substitutions could be negotiated

2

taking even more time.
The government worked diligently to obtain approvals to

3
4

disclose evidence it intended to present at the Article 32

5

Investigation, to obtain protective orders governing the use of

6

classified and law enforcement sensitive discovery and to prepare

7

discovery with appropriate classification markings prior to

8

production.
The systematic approach developed and maintained by the

9
10

prosecution team and the Special Court-Martial Convening Authority to

11

develop discovery and data tracking systems and monthly updates to

12

track the progress of the case is one that should be encouraged,

13

particularly in a complex case such as this involving a large number

14

of federal agencies to coordinate with and voluminous information.
Each of the seven government requested delays was for

15
16

specific reasons that had nexus to the delays granted.

Each delay

17

was for a maximum of 30 days; wherein the Special Court-Martial

18

Convening Authority received an update as to the status of the case

19

and the outstanding evidence and approvals necessary for the Article

20

32 to commence.
The government sent follow-up requests to expedite the OCA

21
22

reviews, citing the importance of the accused’s right to a speedy

23

trial.

During each 30-day period there was progress in the case.

6403

10302

1

Both the complexity of the case and the highly classified nature of

2

the evidence provided a good cause for the reasonable period of

3

delay.
The final 30-day delay to restart the Article 32 for the

4
5

implementation of the preplanned OPLAN Bravo is a reasonable delay to

6

provide for the extensive coordination and logistics necessary for a

7

high profile case such as this one, involving voluminous classified

8

information and requiring heightened security for all the trial

9

participants.
The Special Court-Martial Convening Authority did not abuse

10
11

his discretion in granting each of the government requested

12

excludable delays from 22 April 2011 to 16 December 2011.

13

Ruling.

14

With the 6 days added to the speeding trial clock and

15

discounting properly excluded delay, the accused was brought to trial

16

in 90 days, well within the 120 days required by R.C.M. 707.

17

defense motion to dismiss the charges for violation of R.C.M. 707 is

18

denied.

19

The

The Court’s going to take a recess before announcing the

20

6th Amendment and Article 10 portion of its speedy trial ruling.

21

noticed it’s almost 12 o’clock.

22

lunch break and then come back and announce that portion of the

I

Would the parties prefer to take a

6404

10303

1

ruling, or do you want to take a brief recess, come back and then

2

I’ll announce that portion of the ruling?

3

CDC[MR. COOMBS]:

4

TC[MAJ FEIN]:

5

MJ:

6

TC[MAJ FEIN]:

7

MJ:

8

[Pause.]

That’s fine, Your Honor.

How long would you like?
Your Honor, may I have a moment?

Yes.

CDC[MR. COOMBS]: 1330, Your Honor, if that’s fine with the

9
10

We can take a lunch break.

Court.
TC[MAJ FEIN]:

11

Your Honor, that should be fine.

I’ve asked if

12

chow is being provided to government -- I’m sorry.

13

not provided, but is being provided for pay for government employees.

14

I’m trying to find out right now what time they’re supposed to show

15

up.

16
17
18
19
20

MJ:

Lunch is being

Why don’t we do this, I mean there’s no need in taking a

lunch break if the lunch people are not here ---TC[MAJ FEIN]:

I should know that, Your Honor, in hopefully

about 30 seconds.
MJ:

All right.

Court is in recess in place.

21

[The Article 39(a) session recessed at 1159, 26 February 2013.]

22

[The Article 39(a) session was called to order at 1159, 26 February

23

2013.]

6405

10304

MJ:

1

Court is called to order.

Let the record reflect all

2

parties present when the court last recessed are again present in

3

court.

4

TC[MAJ FEIN]:

5

MJ:

Ma’am, 1330 is fine.

All right.

Court is in recess until 1330.

6

[The Article 39(a) session recessed at 1200, 26 February 2013.]

7

[The Article 39(a) session was called to order at 1338, 26 February

8

2013.]
MJ:

9

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

Let the

10

record reflect all parties present when the Court last recessed are

11

again present in court.
Is there anything we need to address before the Court

12
13

continues to announce its Article 10 Speedy Trial ruling?

14

TC[MAJ FEIN]:

No, Your Honor.

15

CDC[MR. COOMBS]:

16

MJ:

No, Your Honor.

The Sixth Amendment and Article 10.

The law.

The Sixth Amendment Speedy Trial protection does not apply

17
18

to pre-accusation delays where there’s been no restraint, United

19

States v. Reed, 41 M.J. 449, Court of Appeals for the Armed Forces,

20

1995.

21

UCMJ charges since 27 May 2010.

22

speedy trial protection, United States v. Marion, 404 US 307, 1971.

23

The date trial begins ends Sixth Amendment analysis.

In this case the accused has been restrained pursuant to the
This date triggers Sixth Amendment

6406

In this case,

10305

1

trial is set to begin on 3 June 2013.

In addressing Sixth Amendment

2

speedy trial claims the Supreme Court has set out four factors:
One, the length of the delay; two, the reasons for the

3
4

delay; three, the assertion of the speedy trial right; and four, the

5

prejudice to the accused.

When an accused’s right to speedy trial is violated, the

6
7

remedy is dismissal with prejudice, R.C.M. 707(d)1.
Article 10.

8
9

Barker v. Wingo 407 U.S. 514, 1972.

Article 10, UCMJ, is more stringent or more

exacting than the Sixth Amendment.

It provides greater protections

10

for persons subject to the Uniform Code of Military Justice than does

11

the Sixth Amendment speedy trial right:

12

M.J. 54, 60 Court of Appeals for the Armed Forces, 2003; citing

13

United States v. Kossman, 38 M.J. 258 at 259 Court of Military

14

Appeals, 1993, greater protections.

15

Cossio, 64 M.J. 254 at 256, Court of Appeals for the Armed Forces,

16

2007, more stringent.

17

Court of Appeals for the Armed Forces, more exacting, citations

18

omitted.

19

United States v. Cooper, 58

See also United States v.

United States v. Mizgala, 61 M.J. 122 at 124,

The government must take immediate steps towards trial.

20

Immediate steps does not mean constant motion, but reasonable

21

diligence in bringing charges to trial during the accused’s pretrial

22

confinement.

23

otherwise active diligent prosecution.

Brief periods of inactivity are not fatal to an

6407

Although Article 10 is more

10306

1

stringent than the Sixth Amendment, the same four Barker v. Wingo

2

factors used to determine whether there has been Sixth Amendment

3

speedy trial violation also applies when determining whether there

4

has been an Article 10 violation.

5

If the length of the delay is not facially unreasonably,

6

the remaining three Barker factors do not require analysis: United

7

States v. Schuber, Court of Appeals for the Armed Forces, 2011.
The government’s requirement to exercise reasonable

8
9

diligence in bringing the charges to trial does not terminate at

10

arraignment, but continues until the date of trial:

United States v,

11

Cooper, 58 M.J. 54, Court of Appeals for the Armed Forces, 2003.
Government compliance with R.C.M. 707 doesn’t prevent the

12
13

government from violating Article 10: United States v. Birge, 52 M.J.

14

209, Court of Appeals for the Armed Forces, 1999.
Waiver.

15

A plea of guilty waives any speedy trial issue as

16

to that offense except a litigated speedy trial motion under Article

17

10, UCMJ.

18

Appeals for the Armed Forces, 2005.

19

United States v. Mizgala, 61 M.J. 122 at 124, Court of

Sixth Amendment Article 10. Article 10 is more stringent

20

than the Sixth Amendment.

21

Wingo factors.

22

Article 10 using the more strict Article 10 analysis.

23

Both are analyzed using the Barker v.

The Court will address both the Sixth Amendment and

Findings of fact, prereferral.

6408

10307

1

The chronology of the appendix and the findings of fact

2

made with respect to the motion to dismiss for violation of speedy

3

trial under R.C.M. 707 are applicable to the Sixth Amendment Article

4

10 analysis.

5

materials impacted not only the length of the investigation and

6

discovery process, but the length of the R.C.M. 706 board.

The existence of voluminous amounts of classified

7

Conclusions of law, prereferral.

8

One, length of the delay.

9

pretrial restraint on 27 May 2010.

The accused was placed in
His trial is scheduled to begin

10

on 3 June 2013; thus, the accused will have been in pretrial

11

confinement for slightly over 3 years when trial begins.

12

lengthy delay that triggers the bar for analysis.

13

delay in this case must consider the time necessary to investigate

14

and prosecute a uniquely complex case such as this one involving

15

rolling leaks of classified information by WikiLeaks, multiple

16

classified administrative and law enforcement investigations, a

17

voluminous amount of classified information and required coordination

18

among the government and multiple agency equity holders to charge,

19

disclose and use the classified information at trial.

20

Two, accused demand for speedy trial.

This is a

The length of

On 9 and 13 January

21

2011 and again on 25 July 2011, the accused demanded a speedy trial.

22

Thus, as of 9 January 2011, the government was on notice that the

23

accused wanted a speedy trial.

6409

10308

Three, prejudice to the accused.

1

The accused has been

2

restrained since 27 May 2010.

3

speedy trial analysis was designed:

4

pretrial incarceration; two, to minimize anxiety and concern of the

5

accused; and three, to limit the possibility that the defense will be

6

impaired.

7

The prejudice prong of the bar for
one, to prevent oppressive

The defense argues that the accused was oppressively

8

incarcerated at Marine Corps Brig Quantico and suffered increased

9

anxiety beyond the norm while confined at Theatre Field Confinement

10
11

facility in Kuwait and MCBQ.
The accused was in mental health treatment for anxiety

12

before he went into pretrial confinement.

As the accused’s mental

13

health deteriorated in TFCF, the government expeditiously transferred

14

the accused out of Theatre at the request of mental health

15

professionals.

16

government’s maintenance of the accused in prevention of injury, POI

17

status for certain periods of time while at MCBQ, was excessive in

18

relation to the legitimate government interest in preventing injury,

19

the Court granted the accused 112 days sentence credit for violation

20

of Article 13, UCMJ.

21

from 28 July 2010 to 20 April 2011, the period of the R.C.M. 706

22

board proceedings were continued at the request of the defense.

While this Court held on 7 January 2013, that the

The Court also notes the accused was in MCBQ

6410

10309

Since 21 April 2011, the accused has been confined at the

1
2

Joint Regional Confinement Facility (JRCF) at Fort Leavenworth,

3

Kansas, in medium custody.

4

itself, the Court does not find the accused was in oppressive

5

confinement or suffered undue anxiety beyond the normal incidents of

6

confinement.

7

impaired from the delay.

The Court finds no evidence the defense will be

Four, reasons for the delay:

8
9

Other than the length of confinement

27 May 2010 to 22 April 2011.

Between 29 May 2010 and 28 July 2010, the accused was confined in

10

Kuwait, a deployed theatre.

His mental health was deteriorating to

11

the point where he was placed on one-point-one suicide watch on 30

12

June 2010.

13

confinement facility that was not in a deployed theatre and had

14

adequate mental health facilities and providers to treat the accused.

15

On 28 July 2010, the accused was transferred to MCBQ and jurisdiction

16

of the case was transferred to MDW.

The government was working to find a more stable

The original Article 32 hearing was scheduled for 14 July

17
18

2010.

On 11 July 2010, the defense requested a delay in the Article

19

32 hearing for an R.C.M. 706 evaluation of the accused.

20

2010, the defense requested a delay in the Article 32 Investigation

21

for an R.C.M. 706 board, and until the accused made decisions on

22

retaining civilian counsel and civilian experts.

23

retained civilian counsel on 25 August 2010.

6411

On 12 July

The accused

10310

1

The Special Court-Martial Convening Authority approved the

2

R.C.M. 706 board.

3

would begin on 27 August 2010.

4

requested a delay in the R.C.M. 706 board until a forensic

5

psychiatrist was appointed to the defense team.

6

the defense requested a delay in the R.C.M. 706 board until

7

procedures could be adopted to safeguard any classified information

8

that would be disclosed during the board’s determinations. On or

9

about 2 September 2010, the defense requested TS-SCI security

10
11

The board president advised the parties the board
On 25 August 2010, the defense

On 26 August 2010,

clearances for each defense member to include experts.
On 17 September 2010 and 22 September 2010, the Special

12

Court-Martial Convening Authority ordered a preliminary

13

classification review (PCR).

14

security expert was completed on 13 December 2010.

15

original R.C.M. 706 board members remained on the board.

16

president purposed to substitute the third member who had more time

17

to devote to the board.

18

This review conducted by the defense
At that time, the
The

As a result of the PCR, TS-SCI clearances were processed

19

for the R.C.M. 706 board members.

20

January 2011, and the Special Court-Martial Convening Authority

21

ordered the board to resume on 3 February 2011.

22

tests and an unclassified interview with the accused on 16 and 17

23

February 2011, with a classified interview on 1 March 2011.

6412

The clearances were approved on 31

The board scheduled

10311

On 21 February 2011, the defense advised the government it

1
2

wished to interview the accused before the R.C.M. 706 board conducted

3

its classification interview.

4

interview prior to the R.C.M. 706 board interview caused delay in

5

scheduling the R.C.M. 706 interview.

Coordinating with defense, the defense

The Court finds the government acted diligently in the

6
7

transfer of the accused to MCBQ and the processing of the R.C.M. 706

8

board.

9

board from 3 March 2011 until 22 April 2011, was reasonable in light

The delay resulting from the completion of the R.C.M. 706

10

of the scheduling conflict resulting from the defense request to

11

interview the accused prior to the classification -- classified

12

interview with the R.C.M. 706 board.

13

While the R.C.M. 706 board was awaiting the results of the

14

PCR, the government was moving the case forward in other respects.

15

The CCIU investigation was uncovering additional alleged misconduct

16

involving classified information by the accused that was not in the

17

original charges.

18

understand the extent of the alleged misconduct and with other

19

agencies to include the Department of State, Department of Defense

20

and OGA 1 to determine which disclosures of classified information

21

should be charged and to obtain approvals to charge that information.

22
23

The government was working with investigators to

The government requested OCA reviews of classified
information in the 5 July 2010, charges.

6413

On or about 3 November

10312

1

2010, additional digital media was discovered by a search of the

2

accused’s aunt’s home.

3

acting diligently to move the case forward from 25 May 2010, when the

4

government learned of the alleged disclosure of classified

5

information by the accused, to 22 April 2011.

The evidence clearly shows the government was

Reasons for the delay:

6

23 April 2011 to 16 December 2011.

7

The reasons for the delay for this period are set forth above in the

8

government delay portion of the R.C.M. 707 analysis.
Five, balancing the four factors.

9

On balance the reasons for the delay justify the length of

10
11

the delay.

This is a complex case involving multiple government

12

agencies and entities and which requires an almost unfathomable

13

amount of coordination and manpower.

14

stealing more than 700,000 documents from classified databases.

15

conduct giving rise to the charges resulted in reaction by over 60

16

governmental organizations.

17

WikiLeaks was not released on a single day, but continued for 18

18

months, starting and restarting the criminal investigation and agency

19

reaction.

The accused is charged with
The

Classified information posted to

20

In order to prove the majority of the specifications, the

21

government had to prove the classification of the charged -- has to

22

prove the classification of the charged documents at the time of the

23

offense.

The classification review was a necessary step toward that

6414

10313

1

end; therefore, the classification reviews were necessary for the

2

Article 32 Investigation and the Article 32 IO considered the

3

classification reviews in order to determine whether information

4

charged was properly classified.
The Court is not persuaded that the complexity of the case

5
6

hinges on government’s charging decisions.

Indeed, the breadth of

7

the alleged misconduct and the number of governmental organizations

8

affected is what makes this case complex and unprecedented.

9

Furthermore, the nature of the evidence and documents in this case,

10

classified information emanating from often overlapping OCAs, compels

11

a finding by this Court that the delay was not for an unreasonable

12

length of time in light of the reasons for the delay.
The government assiduously worked to bring this case to

13
14

trial.

Prior to 11 March 2011, the government made information

15

requests to each organization with ownership of charged information

16

for classification reviews of that information.

17

requests were perfected in written memoranda to each of the OCAs on

18

18 March 2011, and approximately every 30 days thereafter.

These informal

19

The government diligently and repeatedly educated the OCAs

20

about the accused’s speedy trial rights and warned of the dangers of

21

noncompliance.

22

to complete their classification reviews; however, the government had

23

no mechanism to enforce those suspense dates.

The government set short suspense dates for the OCAs

6415

10314

In addition, the government frequently requested updates

1
2

from the OCAs on the classification review process.

The government

3

was coordinating among multiple federal agencies to obtain permission

4

to disclose classification reviews; charged documents; classified

5

charged documents; classified evidence, including digital media and

6

audit data or logs collected from SIPRNET systems; and classified

7

damage assessments, which often contain synthesized information

8

requiring significant interagency coordination.
Both the complexity of the case and highly classified

9
10

nature of the evidence, provided the good cause for the reasonable

11

period of delay.

12

a tactical advantage over the accused or that the government could

13

have gone to trial earlier, but negligently or spitefully refused to

14

do so.

15

There’s no evidence the delay was an effort to gain

Post referral.

The defense maintains that the government

16

violated Article 10 by impeding defense discovery and taking the

17

following meritless positions throughout the discovery in this case:

18
19
20
21
22
23

A.

Maintaining that Brady does not require the government

to turn over documents that are relevant to punishment.
B.

Maintaining that R.C.M. 701 does not apply to

classified discovery.
C.

Disputing the relevance of facially relevant items,

such as damage assessments.

6416

10315

D.

1

Using R.C.M. 703 standard instead of the appropriate

2

R.C.M. 701 standard when dealing with items in the military’s

3

possession, custody and control.
E.

4
5

“alleged to frustrate the defense’s access to them.”
F.

6
7

Maintaining the Department of State and ONCIX had not

completed a damage assessment.
G.

8
9

Referring to damage assessments and other documents as

Maintaining it was “unaware of forensic results and

investigative files.”
H.

10

Resisting production of Department of State damage

11

assessment under authority “of Giles v. Maryland 386 U.S. 66 at 117,

12

1967, which provided no legal support for its position.”
I.

13

Despite understanding the defense discovery requests

14

defining “damage assessments” and “investigations” to avoid producing

15

discovery.

16

term “damage assessments” to refer to informal reviews of harm,

17

instead using the term “working papers,” then referring to working

18

papers as “damage assessments.”

19
20
21
22

After instructing the defense that it should not use the

J.

Insisting on a threshold of specificity for Brady

requests that does not exist or some additional showing of relevance.
K.

Maintaining that the FBI investigative file was not

material to the preparation of the defense.

6417

10316

L.

1

Maintaining that anything produced that predated the

2

Department of State damage assessment was not discoverable because it

3

was likely cumulative.

4

M.

Arguing with the Court at length about whether the

5

government wasn’t required to turn over documents that were obviously

6

material to the preparation of the defense, absent a specific

7

request.

8
9

N.

Waiting until 2 days before the defense’s Article 13

motion before reviewing 1,374 e-mails from Quantico, which it had in

10

its possession for over 6 months.

11

government advanced each of these positions in an attempt to

12

frustrate the defense’s access to discoverable information, causing

13

delay in the defense receiving discovery and delay in the time taking

14

to litigate the discovery issues.

15
16
17
18
19
20
21
22

The defense avers that the

The defense further maintains that the government violated
Article 10 by causing the following discovery delays:
One, the government’s failure to search its own files in a
timely manner.
Two, the government’s failure to conduct a timely Brady
search of the files of nonmilitary agencies.
Three, the government’s failure to review any discovery
from the Department of State for nearly 2 years.

6418

10317

Four, that the government’s “discovery of the FBI impact

1
2

statement, DHS damage assessment and OGA 1’s second damage

3

assessment.

4

In its reply brief the defense also alleges that the delay

5

has been caused by DoS requirements that have prohibited the defense

6

from interviewing Department of State witness.

7

Findings of fact post referral.

8

This case was referred on 3 February 2012.

9

Prior to the

referral the defense filed the following discovery requests:

29

10

October 2010, 1 November 2010, 15 November 2010, 8 December 2010, 10

11

January 2011, 19 January 2011, 16 February 2011, 17 February 2011, 13

12

May 2011, 25 May 2011, 21 September 2011, 13 October 2011, 15

13

November 2011, 16 November 2011 and 20 January 2012.
Some of the particular requests were specific.

14

For

15

example, on 15 November 2010, Request H, the results of SA Calder L.

16

Robertson III and SA David S. Shaver’s analysis of any computers

17

analyzed in this case, as well as copies of any investigative notes

18

or assessments by CCIU; additionally, the names of all individuals

19

from CCIU or any other government agency that have performed or are

20

performing computer analysis.
Other particular requests were not specific and were

21
22

overbroad.

For example, 8 December 2010, Request F.

23

given or discussions concerning WikiLeaks disclosures by any member

6419

Any assessment

10318

1

of the government to President Obama; any e-mail, report, assessment,

2

directive or discussion by President Obama to Departments of Defense,

3

State or Justice.

4

On 16 September 2011, the defense requested access to all

5

classified information that the government intended to use in this

6

case, to include any damage assessment or information review

7

conducted by any government agency or at the direction of any

8

government agency.

9

On 13 October 2011 and 1 November 2011, the defense

10

reiterated its discovery request for damage assessments of the

11

alleged leaks from the government agencies.

12

defense also asked for damage assessments.

13
14
15

On 16 November 2011, the

On 20 January 2012, the defense requested the government
answer the following questions:
A.

Does the government possess any report, damage

16

assessment or recommendation by the WikiLeaks taskforce or any other

17

CIA member, information review taskforce, DoJ, DoS, ODNI, DIA, ONCIX

18

concerning the alleged leaks in this case?

19

why these items have not been provided by the defense.

20

indicate why the government has failed to secure these items.

21

B.

If yes, please indicate
If no, please

Does the government request -- possess any report,

22

damage assessment or recommendation as a result of any joint

23

investigation with the Federal Bureau of Investigation or any other

6420

10319

1

government agency concerning the alleged leaks in this case?

2

yes/no follow-up as in A.

3

Same

On 12 April 2011, the government responded to the 1

4

November 2010, discovery request for damage assessments that, “The

5

United States is not currently in possession of this information and

6

will make a determination whether to provide the information when it

7

becomes available.”

8
9

On 27 January 2012, the government replied to the defense
discovery requests and the above question.

In response to the

10

request for all damage assessments conducted by OCAs the government’s

11

response was, “The United States will provide a response to this

12

request no later than 3 February 2012.”

13

On 31 January 2012, the government replied to the defense

14

discovery request for damage assessment by OCAs and government

15

agencies, “The United States will not provide the requested

16

information.

The defense has failed to provide an adequate basis for

17

its request.

The defense is required to renew its request with more

18

specificity and an adequate basis for its request.”

19

On 6 October, the government submitted written requests to

20

the Department of State, FBI, ODNI, OGA 1, and OGA 2 to review any

21

alleged damage assessments.

22

classified and many of those damage assessments, particularly those

23

produced by the intelligence community contain classified information

Most of the damage assessments are

6421

10320

1

synthesized from other government organizations requiring significant

2

interagency coordination to disclose to the defense.

3

review the DoS damage assessment was denied.

4

authorized to review the Department of State damage assessment until

5

17 April 2012.

The request to

The government was not

On 29 July 2011, the IRTF submitted its final report.

6

On

7

25 October 2011, the government requested approval to disclose the

8

classified IRTF final report to the defense.

9

and identified multiple government organizations with equities in the

DIA reviewed the report

10

report.

The prosecution coordinated with multiple government

11

organizations along with the DIA for approval to disclose the entire

12

report to the defense.

13

substitution on 18 May 2012.

The government moved the Court to approve a

The government learned of the DHS damage assessment on 19

14
15

October 2011, and reviewed it on that day.

The government notified

16

the defense, but not the Court, of the damage assessment orally on 8

17

June 2012, and disclosed it to the defense on 13 June 2012.
On 14 September 2012, the government moved for limited

18
19

disclosure M.R.E. 505(g)(2) of the -- of a DHS document.

The Court

20

conducted in camera review of the document and approved the

21

redaction.

22

on 25 October 2012.

The government provided the DHS document to the defense

6422

10321

On 12 July 2012, the government learned that the CIA

1
2

created a follow-on damage assessment and notified the Court.

3

government reviewed the report on 13 July 2012.

The

The government learned the FBI prepared an impact statement

4
5

on 2 November 2011, and authorized the government to review it.

6

government conducted a cursory review on 2 November 2011, and

7

reviewed the entire impact statement for discovery on 18 April 2012.

8

The government notified the Court and the defense of the impact

9

statement on 31 May 2012.

The

The government did not have authority to

10

disclose the impact statement to the defense prior to referral.

11

government filed an M.R.E. 505(g) motion for limited disclosure.

12

Court ruled on the motion on 19 July 2012, and the government

13

disclosed the redacted impact statement to the defense on 2 August

14

2012.

15

The
The

On 19 April 2011, 28 July 2011, and 15 August 2011, the

16

government requested approval to disclose the FBI case file and its

17

sub files relevant to the accused to the defense.

18

is classified.

19

FBI file relating to the accused on 25 August 2011, for the sole

20

purpose of reviewing for exculpatory impeachment material.

21

The FBI case file

The FBI provided the prosecution with a copy of the

On 2 January 2012, the government requested a meeting with

22

the FBI to discuss discovery.

On or about 1 February 2012, the

23

government completed its review of the FBI file related to the

6423

10322

1

accused.

2

the Department of Justice and the FBI to disclose all requested

3

information to the defense.

4

the defense absent a military judge to issue a protective order.

The

5

Court signed the protective order in this case on 16 March 2012.

The

6

government disclosed the approved FBI file to the defense and the

7

remaining information on 12 April 2012, 15 May 2012 and 21 May 2012.

8

On 22 June 2012, the Court granted the defense Motion to Compel

9

Number 2 for FBI files minus Grand Jury testimony.

10

On 7 February 2012, the government began negotiating with

The FBI would not approve disclosure to

On 3 August 2012, the government filed a motion to

11

authorize limited disclosure under M.R.E. 505(g)(2).

12

2012, the Court, after conducting an ex parte review of the FBI file,

13

ordered the government no later than 14 September 2012, to identify

14

numerically each proposed redaction by Bates number and provide the

15

Court with a justification for each proposed redaction and to

16

identify whether each proposed redaction has been made available to

17

the defense from another source.

18

On 21 August

On 14 September 2012, the government filed a supplemental

19

M.R.E. 505(g)(2) motion with the Court.

On 25 October 2012, the

20

government produced the Court approved FBI files for the defense.

21

At or near 15 December 2011, the Court advised the Article

22

32 IO that the damage assessments were classified and the government

23

did not have authority to discuss the substance of the damage

6424

10323

1

assessment reports and all but the IRTF are not under the control of

2

military authorities.

3

disclose any of the damage assessments to the defense prior to

4

referral on 3 February 2012.

The government did not have authority to

The Court set this case for arraignment on 23 February

5
6

2012.

At the arraignment the defense filed a motion to compel

7

depositions, the request for a bill of particulars and a motion to

8

compel discovery, all dated 16 February 2012.

9

motions on the calendar for the first substantive Article 39(a)

The Court set these

10

session on 15 and 16 March 2012.

11

protective order for classified information on 16 March 2012.

12

The Court also signed the

Prior to ruling on the defense’s motion to compel discovery

13

the Court was unclear on the existence and the status of the damage

14

assessments at issue.

15

March 2012, the government responded that it did not have authority

16

to confirm or deny the existence of the damage assessments.

17

clarify the record, the Court via e-mail asked the government the

18

following questions and received the following responses:

19
20
21

One:

At the Article 39(a) session on 15 and 16

To

Is each damage assessment in the possession, control

or custody of military authorities?
Government response:

Defense Intelligence Agency and

22

Information Review Taskforce, yes.

23

is in the possession of military authorities; however, the document

6425

The classified information itself

10324

1

contains material from other agencies and departments outside the

2

control of military authorities.

3

itself, but not the information within its four corners.

The military controls the document

4

WikiLeaks Taskforce, no.

5

not completed a damage assessment.

6

The Department of State (DoS) has

Office of National Counter Intelligence Executive (ONCIX).

7

ONCIX has not produced any interim or final damage assessments in

8

this matter.

9
10
11
12
13
14
15

Two:

If no, what agency has custody of the damage

assessments?
Government response:

WTF the Central Intelligence Agency

has possession, custody and control.
Three:

Does the prosecution have access to the damage

assessments?
Government response:

DIA and IRTF, the prosecution was

16

given limited access for the purpose of reviewing for any

17

discoverable material.

18

information within the document that’s owned by the Department of

19

Defense military authority.

20

limited access for the purpose of reviewing for preparation of the

21

previous motions hearing.

22

complete a full review for Brady as outlined below.

The prosecution only has control of the

WTF the prosecution was given very

The prosecution will have future access to

6426

10325

Four:

1
2

Has the prosecution examined each damage assessment

for Brady material?

3

Government response:

4

Four a:

5

DIA and IRTF, yes.

WTF, no.

If yes, is there any favorable government

material?
Government response:

6

DIA and IRTF, yes; however, the

7

United States has found only one classified -- only classified

8

information that is favorable to the accused that is material to

9

punishment, citing Cone v. Bell, 129 Supreme Court 1769 at 1772,

10

2009.

See also Brady v. Maryland, 373 U.S. 83 at 87, 1973. The

11

United States has not found any favorable material relevant to

12

findings.

13

Four b:

If not, why not?

14

Government response:

WTF, the prosecution has only

15

conducted a cursory review of the damage assessment in order to

16

understand what information exists within the agency.

17

conducted a detailed review for Brady material.

18

ongoing and the prosecution will produce all “evidence favorable to

19

the accused” that is material to guilt or punishment “if it exists

20

under the procedures outlined in M.R.E. 505 Cone v. Bell, 129 Supreme

21

Court at 1772.

22
23

It has not

This process is

See also Brady v. Maryland, 373 U.S. at 87.

Additionally, the United States is working with other
federal organizations for which we have good faith basis to believe

6427

10326

1

may possess damage assessments or impact statements and will make

2

such discoverable information available to the defense under M.R.E.

3

505.

4

Based on the responses the government gave to the questions

5

of the Court on 23 March 2012, the Court ruled on the defense motion

6

to compel discovery requiring the government to produce the IRTF, WTF

7

and DoS damage assessments for in camera review by 18 May 2012.

8

Court did not require an ONCIX damage assessment to be produced for

9

in camera review because response by the government led the Court to

10
11

The

believe that an ONCIX damage assessment did not exist.
Prior to answering the Court’s questions, the government

12

had telephonic and e-mail communication with ODNI answering for ONCIX

13

regarding the status of any ONCIX damage assessment.

14

“To date ONCIX has not produced any interim or final damage

15

assessment in this matter.

16

assessment; however, the damage assessment draft is currently a draft

17

and is incomplete and continues to change as information is compiled

18

and analyzed.

19

complete and given the sheer volume of disclosures in this case, we

20

do not know when a draft product will be ready for coordination much

21

less dissemination.”

A response was

ONCIX is tasked with preparing a damage

Damage assessments can take months, even years to

6428

10327

ODNI did not authorize the government the authority to

1
2

provide the language below the first sentence to the Court:

3

Government Interrogatory, question 218.
In response to the defense motion to compel discovery, in

4
5

an e-mail to the Court and during oral argument, the government

6

argued that R.C.M. 701 does not apply to classified discovery.

7

resulted in the defense filing a motion to dismiss on 15 March 2012.

8

The Court denied the motion to dismiss on 25 April 2012, ruling as

9

follows:

10

This

One, in a trial by general court-martial in the military

11

justice system, charges are preferred against an accused, the charges

12

are investigated at an Article 32 -- by an Article 32 Investigating

13

Officer and forwarded with recommendations to the Convening Authority

14

who makes a decision whether to refer the case to trial:

15

405, 406, 407, 504 and 601.

16

R.C.M. 307,

Two, in this case the original charges were preferred on 5

17

July 2010, and dismissed by the Convening Authority on 18 March 2011.

18

The current charges were preferred on 1 March 2011.

19

Investigation was held 16 through 22 December 2011, and the Convening

20

Authority referred the current charges to trial by general court-

21

martial on 3 February 2012.

6429

The Article 32

10328

Unlike trials in federal district court, a military judge

1
2

is not detailed to a court-martial until a case is referred.

3

case was referred on 3 February 2012, Article 26(a), UCMJ.

This

Four, R.C.M. 701 and R.C.M. 703 govern discovery and

4
5

production of evidence after a case has been referred for trial by

6

the Convening Authority and a military judge has been detailed.
Five, the President promulgated R.C.M. 701 to govern

7
8

discovery and R.C.M. 703 to govern evidence production after

9

referral.

The rules work together when the production of evidence is

10

not in the control of military authorities and is relevant and

11

necessary for discovery:

12

of Appeals for the Armed Forces, 2010.

13

United States v. Graner, 69 M.J. 104 Court

The requirements for discovery or production of evidence

14

are the same for classified and unclassified information under R.C.M.

15

701 and 703 unless the government moves to limit the disclosure under

16

M.R.E. 505(g)(2), or claims the M.R.E. 505 privilege for classified

17

information.

18

information for the defense, the protective order and limited

19

disclosures provisions of M.R.E. 505(g) apply.

20
21
22
23

If the government voluntarily discloses classified

If after referral the government invokes the classified
information privilege, the procedures of M.R.E. 505(f) and (i) apply.
Six, from 8 March 2012 -- the 8 March 2012, government
response to the defense motion to compel and its e-mail on 22 March

6430

10329

1

2012, the Court finds that the government believed R.C.M. 701 did not

2

govern disclosure of classified information for discovery or no

3

privileges have been invoked under M.R.E. 505.

4

belief.

5

obligation to search for exculpatory Brady material; however, the

6

government disputed it was obligated to disclose classified Brady

7

material that was material for punishment only.

8

evidence of prosecutorial misconduct.

This was an incorrect

The Court finds that the government properly understood its

The Court finds no

Seven, although the R.C.M. and military case law encourage

9
10

early and open discovery, the defense does not have a right to

11

discovery under R.C.M. 701 or Brady prior to referral on 3 February

12

2012.
Eight, most of the information contained in the damage

13
14

assessments requested by the defense is maintained by other

15

government agencies.

16

government agencies under R.C.M. 703(f)(4)(a), whether discoverable

17

under R.C.M. 701 or not, requires the defense to show relevance and

18

necessity.

19

production of evidence from other government agencies under R.C.M.

20

703(f)(4)(a) until after referral.

21

To obtain such information from other

The government does not have authority to compel

Nine, as the Court held in its 23 March 2012, ruling

22

regarding a motion to compel discovery, the fact that information is

23

controlled by another agency is discoverable under M.R.E. 701 may

6431

10330

1

make such information relevant and necessary under R.C.M. 703 for

2

discovery.

3

Ten, the government has requested 13 departments, agencies

4

and commands to segregate and preserve records involving WikiLeaks

5

and requested information potentially discoverable from more than 50

6

additional agencies.

7

classified information in the custody of multiple government agencies

8

who have a national security interest -- national security concern

9

with the disclosure of this information.

This is a complex case involving voluminous

As of 12 April 2012, the

10

government produced 2,729 unclassified documents consisting of 81,273

11

pages and 41,550 classified documents totally 336,641 pages.

12

secure this release, the government coordinated with multiple

13

government agencies to ensure protective orders under M.R.E. 505(g)

14

and court orders for releasing grand jury matter.

15

To

It is not unreasonable that the government agencies

16

possessing potentially discoverable classified information to await

17

detail of a military judge to litigate issues of relevance,

18

materiality and necessity, and subsequently to litigate issues

19

arising under M.R.E. 505 and 506 prior to releasing classified

20

information for the trial counsel to disclose to the defense.

21

Twelve, the government moved to compel the discovery it

22

desires on 14 February 2 -- on 16 February 2012.

23

referral, on 23 March 2012, the Court ordered the government to

6432

Eleven days after

10331

1

immediately begin the process of producing the damage assessments for

2

in camera review to assess whether they are favorable or material to

3

the preparation of the defense under R.C.M. 701(a)(6), R.C.M.

4

701(a)(2) and Brady; to immediately cause inspection of the 14 hard

5

drives; to contact DoS, FBI, DIA, ONCIX and CIA to determine whether

6

any of those agencies contained forensic results or investigative

7

files relevant to this case; to advise the court by 20 April 2012,

8

whether it anticipates any government entity that is a custodian of

9

classified information subject to the defense motion to compel will

10

seek limited disclosure in accordance with M.R.E. 505(g)(2) or claim

11

a privilege in accordance M.R.E. 505(c); and by 18 May 2012, to

12

disclose any favorable unclassified information from the predamage

13

assessments to the defense and all classified information from the

14

predamage reports to the Court for in camera review.

15

Thirteen, the parties proposed trial schedule anticipates

16

trial taking place between late September and November 2012, absent

17

an unanticipated filing of additional motions.

18

disputed discovery is taking place well before trial.

19

Brady violation in this case.

20

time.

Litigations of
There’s no

That was the Court’s ruling at that

The Court published its first scheduling order on 25 April

21
22

2012.

As with each subsequent scheduling order, the schedule was

23

coordinated with and agreed to by the parties.

6433

The Court received

10332

1

“reply responses” from the parties on the eve of the 15, 16 March

2

2012, Article 39(a) session.

3

wanted to continue to file replies, thus time was built into the

4

schedule.

5

approximately 6-week timeframe: 2 weeks for filings, 2 weeks for

6

responses, 5 days for replies and a week for the Court to consider

7

all the files.

8

September to 12 October 2012.

The parties advised the Court that they

This and each subsequent trial schedule had an

The 25 April 2012, calendar scheduled the trial 25

9

The government has consistently maintained it would need 45

10

to 60 days to process defense M.R.E. 505(h) notices and it would need

11

60 days’ notice prior to trial because of the number of witnesses to

12

coordinate schedules.

13

The next Article 39(a) session to litigate motions was 6 to

14

8 June 2012.

15

A.

On 10 May 2012, the government filed a motion to

16

reconsider the Court’s ruling to compel production of Department of

17

State damage assessment for in camera review because that damage

18

assessment was a draft.

19

government’s motion to reconsider and denied the motion to find that

20

the draft damage assessment is not discoverable.

21

On 11 May 2012, the Court granted the

On 24 May 2012, the government wrote a letter to the Deputy

22

General Counsel of ODNI requesting access to the most recent version

23

of the ONCIX damage assessment because of the Court’s ruling that the

6434

10333

1

DoS draft damage assessment was discoverable would also apply to the

2

ONCIX damage assessment draft.
On 30 May 2012, ODNI responded to the government that ODNI

3
4

expected a coordinated version of the draft assessment to be

5

available by 13 July 2012, and it was their strong preference that

6

government review take place on or after that date to avoid the need

7

to review multiple versions of the draft.
On 31 May 2012, the government notified the Court that

8
9

there was draft ONCIX damage assessment that would be made available

10

no later than 3 August 2012, the date in the 25 April 2012,

11

scheduling order for the next production of compelled discovery.

12

government moved for M.R.E. 505(g) limited disclosure of the ONCIX

13

damage assessment, which was granted by the Court.

14

assessment was disclosed to the defense on 23 August 2012.
B.

15

The

The damage

On 10 May 2012, the defense filed a motion to compel

16

discovery Number 2, and 30 May 2012, supplement to the motion to

17

compel discovery, scheduled among the motions for litigation 6 to 8

18

June 2012.

19

Court produce Department of State witnesses to testify about the

20

following subject to clarify the record about what Department of

21

State information exists that may be discoverable.

22
23

In the supplement to the motion the defense requested the

On 4 June 2012, the Court ordered Department of State
witness to appear and testify during the 6 to 8 June 2012, Article

6435

10334

1

39(a) session.

On or about 8 June 2012, the government moved the

2

Court to delay ruling on the defense motion to compel discovery

3

Number 2 to search for the DoS records requested by the defense.

4

Court granted the motion on 8 June 2012, and ruled on the defense

5

motion to compel Number 2 on 22 June 2012.

6

defense motion in part and ruled in favor of the government in part.

7

The Court ordered the government to advise the court if any agency

8

would seek limited disclosure under M.R.E. 505(g)(2) or claim a

9

privilege by 25 July 2012, and order the production of discoverable

The Court granted the

10

material not involving M.R.E. 505 on 3 August 2012.

11

clarified its ruling on 25 June 2012.

12

C.

The

The Court

On 10 May 2012, the defense filed a motion for due

13

diligence and for a 2 to 3-month continuance after receipt of

14

completed discovery until the start of trial.

15

the case calendar.

16

Memorandum for Principal Officials HQDA, stating, “It was only

17

recently determined that no action had been taken by HQDA pursuant to

18

the 29 July 2011, memorandum from DoD OGC to HQDA requesting it task

19

principal officials to search for and preserve any discoverable

20

information.

21

The motion was not on

Part of the defense motion was a 17 April 2012,

On 25 June 2012, the Court granted the motion and ruled it

22

would provide a reasonable continuance to the defense upon receipt of

23

compelled discovery to prepare their case.

6436

The Court opined, “This

10335

1

is a complex case involving multiple federal government agencies and

2

entities.

3

to PFC Manning relevant to this case are maintained by various

4

agencies.

5

existence of agency files pertaining to PFC Manning, when the

6

government became aware of the existence of particular agency files

7

and what files the government has examined under R.C.M. 701(a)(6),

8

Brady and/or R.C.M. 701(a)(2).

9

compel discovery that have been filed in this case in a speedy trial

The Court is not clear what identifiable files pertaining

What inquiries the government has made to discover the

This Court must rule upon motions to

10

motion to be filed by the defense.

One government -- one document

11

containing the information will assist the Court in addressing

12

discovery and speedy trial issues.”

13

diligence by the government and reserved ruling on that issue until

14

this speedy trial litigation.

The Court found no lack of due

With respect to the 17 April 2012 memorandum, the

15
16

government submitted its initial prudential search request to DoD on

17

25 May 2011, and 6 June 2011, through the Department of Defense,

18

Office of General Counsel (DoD, OGG).
On 29 July 2011, DoG OGC disseminated the PSR to all

19
20

relevant DoD departments to include HQDA.

The government worked

21

through the office of the Judge Advocate General (OTJAG) as a conduit

22

to HQDA.

23

Joint Staff responsive to the PSR.

On 4 October 2011, the government obtained files from the

6437

Because the government was

10336

1

preparing its 8 to 9 November and 18/19 November 2011, briefings for

2

the accused and the defense and for the 16 through 23 December 2011,

3

Article 32 hearing, the government did not review the DoD files until

4

5 January 2012.
During this review the government learned that the HQDA

5
6

information was not within the DoD material.

The government

7

contacted DoD on 5 January 2012, and OTJAG on 10 January 2012.

8

sent the 17 April 2012, memorandum to HQDA.

9

government obtained files responsive to the PSR from the Army G2.

OTJAG

On 27 April 2012, the
On

10

11 May 2012, the government received the HQDA responsive to the

11

request.

12

discovery materials to the preparation of the defense to the defense.

13

Although MDW and HQDA are Army entities, HQDA files are MDW

The government reviewed the files and disclosed Brady and

14

files.

15

to HQDA files.

There is no negligence on the part of government with respect

The next Article 39(a) session took place between 16 and 19

16
17

July 2012.

On 9 July 2012, the government filed a motion notifying

18

the Court that the volume of Department of State records gathered

19

pursuant to the 22 June 2012, order of the Court:

20

and most of it classified.

21

compel discovery or to grant the government 45 to 60 days to review

22

the information and determine whether to seek limited disclosure or

23

invoke a privilege.

5,000 documents

The government moved the Court not to

The defense opposed.

6438

10337

On 19 July 2012, the Court granted the defense’s motion to

1
2

compel discovery of Department of State records and ordered the

3

government to disclose all discoverable information to the defense by

4

14 September 2012, or submit the discoverable information to the

5

Court for a limited disclosure under M.R.E. 505(g)(2) or invoke a

6

privilege under M.R.E. 505(c).
After the Article 39(a) session concluded the parties and

7
8

the Court met in an R.C.M. 802 session to discuss the Court’s

9

schedule in order to split the Article 13 and speedy trial motions to

10

separate Article 39(a) sessions.

The parties and the Court agreed to

11

new Article 39(a) and trial dates, with trial scheduled 4 through 22

12

February 2013.

13

Appellate Exhibit.

This Court’s schedule was not memorialized as an

The next Article 39(a) session was scheduled 27 to 31

14
15

August 2012.

The Article 13 motion was scheduled for litigation.

16

The filing deadline for the defense Article 13 motion was 27 July

17

2012.

18

counsel would be out of town 27 July to 9 August 2010, for 2 weeks on

19

a personal matter and would have limited access to automation.

The defense had advised the Court that civilian defense

On 26 July 2010, the government sent the defense 84 e-mails

20
21

regarding Quantico Marine Corps Brig -- Marine Corps Brig Quantico,

22

excuse me.

23

defense 84 e-mails regarding MCBQ.

There was an additional 12 -- the government sent the

6439

There was additional 1,294 e-

10338

1

mails not disclosed to the defense.

The government received the e-

2

mails from 2 June 2011 to 5 December 2011, but did not review them

3

until 25 July 2012, to look for Giglio material.

4

2010, discovery request at M, the defense requested “Any and all

5

documentation or observation notes by employees of the Quantico

6

Confinement Facility related to PFC Manning.”

7

referenced e-mails in another section of the discovery request and

8

did not specifically reference e-mails in this one, the government

9

did not consider e-mails “documents” within R.C.M. 701(a)(2).

In its 8 December

As the defense had

On 27 August 2012, the Court held an R.C.M. 802 session

10
11

with the parties to discuss scheduling in light of the 84 e-mails.

12

Also, on 27 July 2012, the defense filed a motion for continuance to

13

have the Article 39(a) sessions after 27 to 31 August 2012, and the

14

speedy trial filings continued for 2 weeks, with trial remaining as

15

scheduled:

16

4 through 22 February 2013.
On 1 August 2012, the Court granted the motion.

The new

17

trial schedule is agreed to by both parties.

Also, on 1 August 2012,

18

the government requested a continuance from 3 August 2012 to 14

19

September 2012, to disclose or obtain limited disclosure or invoke a

20

privilege regarding information classified above the secret level

21

owned by the CIA and DHS.

22

supplement pleading stating the particularity how review and

After requiring the government to file a

6440

10339

1

approvals differ for information classified above the Secret level,

2

the Court granted the motion.
At the 27 to 31 August 2012, Article 39(a) session the

3
4

parties and the Court conferred and modified the Court’s scheduling

5

order.

6

session for 17/18 October 2012, and established new suspense dates

7

for the speedy trial and Article 13 filings.

8

scheduled to start on 4 February 2013.

9

The new scheduling order scheduled the next Article 39(a)

The trial remained as

The parties and the Court agreed that because of the

10

potential length of the trial the government estimates 12 weeks, and

11

the extent of logistics, administrative and security support the

12

trial entails the trial should not take place over the 25 December

13

through 1 January holiday period.

14

agreed the trial should begin early enough in November to conclude by

15

the holiday period or start after the holiday period.

16

Thus the parties and the Court

On 1 August 2012, the defense submitted a discovery request

17

to the government asking for all remaining Quantico e-mails.

On 17

18

August 2012,

19

the remaining Quantico e-mails.

20

them to the defense stating in their interrogatory response at

21

question 439 that it was not until 17 August 2012, motion to compel,

22

that the defense finally provided the specificity in its motion to

the defense submitted a motion to compel number 3 for
The government voluntarily 600 of

6441

10340

1

compel.

On 14 September 2012, the Court granted the defense motion

2

to compel number 3 except for 12 e-mails.
On 14 and 19 September 2012, the government filed motions

3
4

for limited disclosure under M.R.E. 505(g) for Department of State

5

records, DHS record, CIA information and the FBI file.

6

September, the Court ruled on these motions.

7

Article 39(a) sessions with the government regarding the Department

8

of State records on 2 October 2012, and the FBI file on 12 October

9

2012.

On 28

The Court held ex parte

The government modified the M.R.E. 505(g) submissions in

10

accordance with the Court’s guidance and made the information

11

available to the defense on or before 25 October 2012.

12

concluded the defense discovery -- the defense requested discovery

13

litigation.

14

This

The following two Article 39(a) sessions were held on 17

15

and 18 October 2012 and 7 and 8 November 2012.

16

Article 39(a) sessions the trial schedule was modified upon agreement

17

of the parties and the trial remained scheduled for 4 February 2013

18

through 15 March 2013.

19

At each of these

On 22 June the government filed its witness list in

20

accordance with the case calendar.

21

previously required the defense to file a Touhy notice prior to

22

approving defense interviews of Department of State witnesses.

23

March 2012, the defense submitted a Touhy request to the Department

6442

The Department of State had

On 23

10341

1

of State via e-mail.

The government followed up with a digital copy

2

on 26 March 2012.

3

a Touhy request.

4

with the Department of State about the Touhy request.

5

government filed its witness list on 22 June 2012, the defense -- the

6

Department of State no longer required the Touhy letter and made its

7

witnesses available to the defense.

8

contacted the Department of State to schedule interviews.

9

attorney responsible was on leave.

On 5 April 2012, the Department of State received
The government followed up approximately 10 times
After the

On 9 August the defense
The

10

On the 18 October 2012, Article 39(a) session the

11

government documented the required M.R.E. 505 notice from the defense

12

prior to interviewing witnesses about classified information.

13

November 2012, the Department of State e-mailed the defense to plan

14

for witness interviews.

15

On 1

On 17 November 2012, the defense submitted notices -- a

16

notice to the Court that it might renew its motion to compel

17

witnesses or its motion to dismiss for violation of speedy trial and

18

requested the parties discuss the way forward at the next Article

19

39(a) session.

20

The next Article 39(a) session was held 27 November to 2

21

December 2012, to address the Article 13 motion.

22

apparent that 7 days was not enough time to present all of the

23

witnesses and evidence for the motion.

6443

It quickly became

The trial schedule was once

10342

1

again modified by the parties and the Court to add two additional

2

Article 39(a) sessions on 5 to 7 December 2012, and again on 10

3

through 12 December 2012, for the Article 13 litigation.

4

changes were announced on the record without a new Appellate Exhibit

5

prepared.

6

new trial schedule dated 20 December 2012.

7

contained an A and a B schedule depending upon whether the defense

8

filed and/or the Court granted a motion to compel speedy trial

9

witnesses. The trial date for schedule A was 18 March to 26 April

10

2013.

These

The parties and the Court again conferred and developed a
This trial schedule

The trial date for schedule B was 6 through 17 March 2013.
The last Article 39(a) session prior to going on record

11
12

today was 16 January 2013.

The parties realized the current trial

13

schedule was not possible in light of the M.R.E. 505(h) notices

14

required to be filed by the defense for both witness interviews and

15

disclosure of classified evidence at trial.

16

45 to 60 days to process M.R.E. 505(h) notices.

17

the Court, the parties conferred and proposed the current trial

18

schedule.

19

rolling 505(h) notices to the government with a final suspense date

20

of 22 February 2013, and schedules the trial to begin on 3 June 2013.

The government requires
At the request of

This trial schedule provides for the defense to provide

21

The law post referral.

22

Although R.C.M. 701 and military case law encourage early

23

and open discovery, the government’s discovery obligations under

6444

10343

1

R.C.M. 701 or Brady do not arise prior to referral on 3 February

2

2012.

3

information favorable to the defense as soon as practicable.

4

case such as this one involving disclosure of classified information

5

it is reasonable to interpret the soonest practicable to mean after

6

referral.

7

disclose classified information that could reasonably cause harm to

8

the United States to the defense.

9

R.C.M. 701(a)(6) states that the government shall disclose
In a

If the case is not referred there would be no need to

Evidence favorable to the accused and material to guilt or

10

punishment must be disclosed in sufficient time for the defense to

11

use it at trial: United States v. Behenna, 71 M.J. 228, Footnote 10,

12

Court of Appeals for the Armed Forces, quoting DiSimone v. Phillips,

13

461 F 3rd 181 at 196, 97, Second Circuit 2006, recognizing there is

14

no bright line rule for when a disclosure is timely.

15

question is whether the evidence was disclosed in sufficient time for

16

an accused to take advantage of the information, a determination

17

necessarily dependent on the totality of the circumstances.

18

Rather, the

As the Court held in its 23 March 2012, ruling on the

19

defense motion to compel discovery, the fact that information is

20

controlled by another agency is discoverable under R.C.M. 701 may

21

make such information relevant and necessary under R.C.M. 703 to be

22

produced for discovery.

23

damage assessment, FBI report and other discovery requested by the

Most of the information contained in the

6445

10344

1

defense is maintained by other government agencies.

To obtain such

2

information from other government agencies under R.C.M. 703(f)(4)(a),

3

whether discoverable under R.C.M. 701 or not, requires defense to

4

show relevance and necessity.

5

authority to compel production of evidence from other government

6

agencies under R.C.M. 703(f)(4)(a) until after referral.

The government does not have the

7

Conclusions of law post referral.

8

The length of the delay, the request for speedy trial and

9
10

prejudice facts follow the same analysis as for prereferral delay
discussed above.

11

Reasons for the delay.

12

3 February 2012 to 3 June 2013, the government did not

13

disclose damage assessment or other classified information request by

14

the defense discovery requests prior to trial.

15

not have authority from equity holding agencies to disclose the

16

information to the defense.

17

classified information to await the detail of a military judge to

18

litigate issues of relevance, materiality and necessity and

19

subsequently to litigate issues arising under M.R.E. 505 and 506

20

prior to releasing classified discovery to the trial counsel for

21

disclosure to the defense.

22
23

The government did

It is reasonable for an equity holder of

The government requested 13 departments, agencies and
commands to segregate and preserve records involving WikiLeaks and

6446

10345

1

requested information potentially discoverable for more than 50

2

agencies.

3

information and the custody of multiple government agencies having

4

national security concerns for the disclosure of the information.

5

date the government has produced 5 thousand, 2 hundred -- 526,366

6

pages of discovery with 437 pages of classified discovery.

7

3,435 pages contained M.R.E. 505(g)(2) or M.R.E. 701(g) redactions or

8

substitutions.

9

of the information requested in discovery by the defense.

This is a complex case involving voluminous classified

To

Only

The government has not invoked a privilege over any
The

10

government has diligently engaged with the equity holding agencies to

11

maximize disclosure of classified information to the defense.

12

The defense moved to compel discovery on 16 February 2012,

13

11 days after referral.

14

ruling on the motion setting forth the Court’s view of rules of

15

discovery and the interplay between R.C.M. 701, R.C.M. 703 and M.R.E.

16

505 in this case.

17

after 23 March 2012.

18

Court’s rulings in discovery.

19

On 23 March 2012, the Court issued its

The parties had clarity on the rules of discovery
The government has acted in accordance with the

With respect to the ONCIX damage assessment, the

20

government’s response to the Court’s questions left the Court with

21

the impression there was no ONCIX damage assessment.

22

contact with ONCIX and ODNI, the government was aware that ONCIX was

6447

In the prior

10346

1

tasked with collecting information from federal agencies and drafting

2

a damage -- its damage assessment.
Prior to the Court’s 23 March 2012, ruling compelling

3
4

production of the IRTF DoS and WTF damage assessment for in camera

5

review, the government was not authorized by ONCIX or the Department

6

of State to review -- to view what, if any, damage -- draft damage

7

assessment these agencies had.

8

Department of State damage assessment was a draft.

9

was not aware of the status of the ONCIX damage assessment whether it

10

The government was aware that the
The government

was a compilation of information or whether a draft had taken shape.
After the Court’s 11 May 2012, ruling that a DoS,

11
12

Department of State draft damage assessment was not exempt from

13

discovery because it was a draft, the government wrote to ODNI on 24

14

May 2012, advising them that the government believed the Court’s

15

ruling would apply to any damage assessment ONCIX had prepared.
On 31 May 2012, the government notified the Court that

16
17

ONCIX had a draft damage assessment.

This action by the government

18

shows that the government was not seeking to mislead the Court

19

regarding the ONCIX damage assessment.
The government’s litigation positions were not frivolous or

20
21

designed to spitefully thwart the defense’s ability to obtain

22

discovery.

23

litigation taking place during pretrial litigation.

Both R.C.M. 701 and M.R.E. 505 envision discovery

6448

Both parties are

10347

1

allowed to advance their positions.

2

rejected the positions taken by both sides.

3

rejected the government’s position that a draft damage assessment is

4

not discoverable.

5

advanced by the defense that the government must produce all

6

discovery requested by the defense for in camera review by the Court

7

regardless of relevance.

8

of classified information at issue held by multiple equity holders,

9

that could be potentially discoverable, protracted discovery

10

In this case the Court has
For example, the Court

The Court also rejected the initial position

In a case such as this one with the volume

litigation is almost inevitable.
Neither the government nor the Department of State

11
12

intentionally impeded defense’s access to witness by requiring Touhy

13

notices.

14

government, the Department of State no longer required the notices.

15

The Department of State e-mailed the defense on 1 November 2012, to

16

coordinate witness interviews.

17

place in January and February 2013.

Once the 22 June 2012, witness list was filed by the

Those interviews have been taking

The Court finds that the government was not negligent with

18
19

respect to the Department of State damage -- Department of Homeland

20

Security damage assessment, the FBI impact statement, discovery of

21

CIA’s creation of a follow-on damage assessment or discovery of HQDA

22

files.

6449

10348

1

The fact that the government waited until the day before

2

the defense Article 13 filing to review the 1,374 Quantico e-mails

3

the government had in its possession between 2 June 2011 and 5

4

December 2011, is troubling.

5

waited to review these e-mails because the review was to look only

6

for Jencks and Giglio material.

7

did not review the e-mails for documents material to the preparation

8

of the defense because the defense discovery request was not specific

9

enough and documents do not fall within R.C.M. 701(a)(2) is

The government’s position that it

The government’s position that it

10

untenable.

11

discovery request stated “documents and not” e-mails, e-mails can be

12

documents for the purposes of R.C.M. 701(a)(2) as well as Giglio and

13

Jencks material.

14

The e-mails were not classified.

Although the defense

The government has an obligation to search for information

15

under the control of military authorities in their possession for

16

information discoverable under R.C.M. 701(a)(2).

17

however, that the defense 8 December 2010, discovery request asked

18

only for documents and observations by employees of Marine Corps Brig

19

Quantico relating to the accused.

20

issue are not by employees of Marine Corps Brig Quantico.

21

The Court notes,

The vast majority of e-mails at

The Court further finds the government by giving the

22

defense 84 e-mails the night before the Article 13 filing was due

23

caused disruption to the Court’s schedule, but it did not cause trial

6450

10349

1

delay.

2

July Article 39(a) session.

3

to by the parties and the Court maintain that date.

4

the government in an otherwise diligent prosecution does not violate

5

Article 10.

6

trial would have inevitably been delayed into 2013, with or without

7

the motion to compel free litigation in light of the 2 weeks of

8

Article 39(a) sessions added to the calendar to litigate the Article

9

13 motion and the required defense M.R.E. 505(h) notices and the time

10
11

The trial was scheduled for 4 to 24 February 2012, after the
The 30 August 2012, case calendar agreed
This action by

Even absent an earlier agreement by the parties, this

required to process them.
The government advised the Court from the start that it

12

takes 45 to 60 days to coordinate with agency equity holders to

13

determine whether to disclose information the Court had deemed

14

discoverable or to provide for limited disclosure under M.R.E. 505(g)

15

or invoke a privilege.

16

When the government has needed additional time, the

17

government has requested file -- has filed for leave of the Court.

18

Court rulings granting leave of the Court to either party for

19

additional time or motions for continuances means the Court deemed

20

them to be reasonable delay.

21

The defense argues that in order to exercise reasonable

22

diligence under Article 10, the government should have coordinated

23

with equity holders, agencies and had been prepared M.R.E. 505(g)

6451

10350

1

substitutions or invoke a privilege prior to the Court ruling on

2

whether the information that is the subject of the litigation is

3

discoverable.

4

is impracticable and would have the government and the equity agency

5

holders spend potentially vast amounts of time gathering information

6

and proposing redactions and substitutions to information the Court

7

ultimately orders is not relevant or discoverable.

Article 10 does not require this prepositioning.

It

8

Balancing the four factors.

9

As with the pretrial referral delay, the reasons for the

10

delay justify the length of the delay.

11

not whether the government could have acted with greater speed; it is

12

whether the government with reasonable diligence.

13

did.

14

The test for Article 10 is

In this case, it

The Court has reviewed all classified filings filed by the

15

parties with respect to this motion.

16

consistent with the Court’s ruling.

The classified filings are

17

Ruling.

18

The Court added 6 days to the R.C.M. 707 clock, discounting

19

properly excluded delay.

The accused was arraigned within 120 days

20

of imposition of restraint.

21

of speedy trial under R.C.M. 707 is denied.

22

with reasonable diligence throughout the prosecution.

The defense motion to dismiss for lack

6452

The government acted
The defense

10351

1

motion to dismiss for lack of speedy trial under Sixth Amendment and

2

Article 10 UCMJ is denied.

3

So ordered this 26th day of February 2013.

4

All right.

5

I note it is 2:40 or 1440.

have two issues remaining to be litigated today.

6

TC[MAJ FEIN]:

7

CDC[MR. COOMBS]:

8

MJ:

Okay.

Yes, Your Honor.

Do the parties have a preference which one you’d

like to litigate first?

10

TC[MAJ FEIN]:

Ma’am, the United States offers or proposes that

the Article 104 issue should go first.

12

CDC[MR. COOMBS]:

13

MJ:

14

recess.

Is that correct?

Yes, ma'am.

9

11

I believe that we

All right.

It might be faster.

That’s fine with the defense, Your Honor.
Why don’t we do this, let’s take a brief

How long would you like?

15

TC[MAJ FEIN]:

16

CDC[MR. COOMBS]:

17

MJ:

All right.

Fifteen minutes, ma’am.
That’s fine with the defense, ma’am.
Court will reconvene then at 5 minutes to 1500

18

or 3:00 and we will discuss the Article 104 portion of the M.R.E.

19

505(i) motion.
Court is in recess.

20
21

[The Article 39(a) session recessed at 1443, 26 February 2013.]

22

[The Article 39(a) session was called to order at 1506, 26 February

23

2013.]

6453

10352

1

MJ:

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

Let the

2

record reflect that all parties present when the court last recessed

3

are again present in court.
At issue is the -- I suppose at this point it’s a defense

4
5

motion, even though it originated as a government motion, to preclude

6

the government from introducing certain evidence.

7

set that forth for the record?

8
9

CDC[MR. COOMBS]:

Yes, Your Honor.

filing was Appellate Exhibit 477 and 478.

Would you like to

The government’s initial
In that filing the

10

government indicate they intended to call a witness, Mr. Doe, in sent

11

-- excuse me, in merits along with five other witnesses who

12

essentially will help establish foundation for the testimony that

13

they intend to elicit.
In our response on Appellate Exhibit 485, we raised the

14
15

issue that Mr. Doe and the five other witnesses are not relevant for

16

merits.

The defense’s position is that Mr. ----

17
18

The government replied in Appellate Exhibit 488.

MJ:

Well, before you get started though, the government is

19

offering it as relevance on the merits for two of the specifications.

20

Am I correct on that?

21

CDC[MR. COOMBS]:

22

MJ:

That is correct, Your Honor.

Okay.

6454

10353

1

CDC[MR. COOMBS]: With regard so -- actually, I’ll just talk

2

about Specification 1 of Charge II for a moment.

The Court has

3

already determined that that punishes the wrongful and wanton

4

publication of intelligence on the Internet, not giving intelligence

5

to the enemy.

6

motion, the actual receipt by the enemy with regards to that

7

specification would not be relevant because the offense doesn’t deal

8

with giving intelligence to the enemy.

9

any fact at issue, but more importantly is the Article 104 offense,

10

which is primarily what the government’s position is as to why they

11

should be able to offer this information.

So the defense’s position, as articulated in our

It would not be relevant to

As the Court knows, Article 104 lays out two elements: that

12
13

the accused, without proper authority, knowing gave intelligence to

14

the enemy; and that intelligence information was true or implied the

15

truth at least in part.

16

by the enemy is required.

17

instruction in order to say -- or excuse me, the Benchbook definition

18

of intelligence in order to say that we are required to show actual

19

receipt.

20

meaning any helpful information given to and received by the enemy,

21

which is true at least in part.

22
23

Nowhere does it indicate that actual receipt
The government relies upon the Benchbook

At least in the Benchbook it defines intelligence as

Now, the Benchbook definition, however, is at odds with the
definition provided by the Manual for Courts-Martial.

6455

Within the

10354

1

Article 104 offense, Part 4-41, it defines within the Manual

2

intelligence and it says, “Intelligence imports the information

3

conveyed is true or implies as truth at least in part.”

4

does not require the information to actually be received by the

5

enemy.

The Manual

In this instance the Benchbook definition relied upon the

6

In fact, the Benchbook itself and its

7

government as not controlling.

8

preface talks about the fact that the Benchbook is drafted based upon

9

the statutes, case law and other principle sources for military

10

jurisprudence.

It’s those sources and not the Benchbook that should

11

be cited as legal authority.
The Court in its draft instructions indicated that it was

12
13

probably -- well, it was leaning towards, in fact, giving the

14

Benchbook definition of intelligence because it’s within your draft

15

instructions.

16

Manual for Courts-Martial definition of intelligence.
When you look at intell ----

17
18

The defense, however, requests that the Court give the

MJ:

Let me just ask you a question though.

Going back to the

19

early days of the litigation when we were litigating the continuality

20

of the Article 104 by indirect means, the Court did tell the defense

21

that the Court would be making instructions to ensure that this

22

statute was constitutional.

23

CDC[MR. COOMBS]:

Yes, Your Honor.

6456

10355

1
2
3

MJ:

The defense is specifically saying that you do not want me

to instruct that the intelligence has to be received by the enemy?
CDC[MR. COOMBS]:

Yes, Your Honor.

The reason why, I mean,

4

this actually an interesting juxtaposition to our normal positions.

5

It would normally be the defense arguing for a greater burden and the

6

government saying, “Look, it’s not required.”

7

were so inclined to make that argument, it’s clear that it’s simply

8

not required to show actual receipt.

But here even if we

The Benchbook definition of intelligence kind goes array

9
10

because intelligence is a noun; it’s a thing.

It doesn’t change

11

based upon whether or not it’s received or read in order to be

12

intelligence.

13

intelligence of receipt, in this case received by the enemy.

14

Benchbook definition and not the Manual for Courts-Martial definition

15

of intelligence controlled then it would not make sense in the

16

situation of an attempt, because if somebody was attempting to give

17

intelligence to the enemy and the definition of intelligence is

18

information which is true and received by the enemy, then obviously

19

you can’t attempt to give intelligence to the enemy in that

20

situation.

21

done a lot of 104 offenses, added that additional language which is

22

not required.

The Benchbook adds a verb to the definition of
If the

That’s why the Benchbook probably, because we haven’t

6457

10356

Next, the government argues that giving the intelligence to

1
2

the enemy is a separate and distinct crime from communicating with

3

the enemy.

4

is also at odds with the Manual for Courts-Martial.

5

-- under the MCM giving intelligence to the enemy as a subset of

6

communicating or corresponding with the enemy.

7

Article 104, when it talks about the nature of the offense for giving

8

intelligence to the enemy it states, “Giving intelligence to the

9

enemy is a particular case of corresponding with the enemy made more

In this position and with its definition of intelligence
The MCM defines

If the Court looks at

10

serious by the fact that the communication contains intelligence that

11

may be useful to the enemy for any of the many reasons that make

12

information valuable to belligerence.”

13

that it is a particular case of corresponding.

14

communicating with the enemy, communicating with the enemy says no

15

unauthorized communication correspondence or intercourse with the

16

enemy is permissible.

17

content and method of the communication, correspondence or

18

intercourse immaterial, no response or receipt by the enemy is

19

required.

20

correspondence or intercourse issues from the from the accused.

21
22

Key within there is the fact
When you look down at

Then it goes on to talk about the intent,

The offense is complete the moment the communication,

In this instance it’s clear, even when you look within the
manual that giving intelligence to the enemy is a form of

6458

10357

1

correspondence.

2

enemy.

Correspondence falls under communicating with the

Under 104, actual receipt by the enemy is not required.
Cited in our motion and instructed for this principle is

3

It’s at 20 CMR 461.

Within

4

the case of The United States v. Olson.

5

that case, Olson, they citing the Manual state, “Correspondence does

6

not necessarily import a mutual exchange of communication.

7

requires absolute non intercourse and any unauthorized communication,

8

to matter what may be its tenor or its intent, is here denounced.

9

The prohibition lies against any method of communication whatsoever.

10

The offense is complete the moment the communication issues from the

11

accused.”

12
13
14

MJ:

The law

Isn’t Olson interpreting a communications -- the

communications subsection of the 104?
CDC[MR. COOMBS]:

It is, Your Honor, but the defense’s

15

position is that giving intelligence is a subset of communicating

16

with the enemy.

17

MJ:

Then why isn’t it a lesser included offense?

18

CDC[MR. COOMBS]:

Not from the standpoint of lesser included.

19

Giving intelligence to the enemy is a form of communicating with the

20

enemy, just made more serious by the fact that you’re actually giving

21

intelligence as opposed to just communicating it.

22

position when you look at provision 5 and provision 6, unlike what

23

the government is arguing that these are separate and distinct

6459

It’s the defense’s

10358

1

crimes, the giving intelligence to the enemy is just simply a form of

2

communicating with the enemy.

3

more serious by the fact that the communication contains

4

intelligence.

5

say that the offense is complete the moment the communication,

6

correspondence or intercourse issues from the accused is, in the

7

defense’s position, covering both a communicating with the enemy

8

where it may just be a verbal communication and a giving --

9

correspondence with the enemy, where you’re giving intelligence to

10

As the definition lays out, it’s made

Olson defining this as well as the Manual going on to

the enemy.
In that situation, the defense’s position is that none of

11
12

the cases cited by the government in their motion or for that matter

13

the Winthorp [sic] Treatise, recognizing that it is a respected

14

treatise, but it is a treatise that predates the Manual for Courts-

15

Martial.

16

the position of the Manual for Courts-Martial, which is very clear

17

that receipt by the enemy is not required.

18
19
20

MJ:

None of the authorities cited by the government undercuts

Then why does the Manual provision not specifically address

-- it’s falling under the communications piece, isn’t?
CDC[MR. COOMBS]:

It is, Your Honor.

Again, when you look at

21

Part 4-41, it’s important that -- actually I think a good way of

22

looking at this is when you look at 104(2), just within the text of

23

the statute, the statue lays out without proper authority knowing

6460

10359

1

harbors, protects or gives intelligence or communicates or

2

corresponds with or holds any intercourse with the enemy either

3

directly or indirectly.

4

Then when you go over to the explanation, you see for the (c)5, where

5

it lays out the nature of the offense for giving intelligence to the

6

enemy, it’s clear that by its plain terms that giving intelligence is

7

a particular case of corresponding with the enemy.

8

communicating with the enemy it covers no unauthorized communication,

9

correspondence or intercourse with the enemy.

All of that conduct falls under 104(2).

When you look at

In this instance they’re not separate, distinct offenses.

10
11

They may be you have an ability of communicating with the enemy

12

through communication, correspondence or intercourse.

13

of the 104(2).

14

correspondence, that’s just communicating with the enemy, but it’s

15

made more serious that you’re giving intelligence.

That is part

If you give intelligence to the enemy through

16

As you go on then it’s clear that the offense is complete

17

the moment that communication, correspondence or intercourse issues

18

from the accused.

19
20
21
22

MJ:

The actual receipt by the enemy is not required.

Is the defense aware of any case that has charged attempted

communication with the enemy?
CDC[MR. COOMBS]:

The Anderson case is an attempted

communication with the enemy case.

6461

10360

1

MJ:

And how would you -- in light of the definition that you

2

just described to me, how would you ever have an attempted

3

communication case?

4

CDC[MR. COOMBS]:

The only way you can have an attempting to

5

communicate with the enemy case is when there is a factual

6

impossibility of communicating with the enemy and Anderson is a prime

7

example of that.

8

it’s factually impossible that Anderson could communicate with the

9

enemy in this instance because he gave the information to, in this

His communication was with an undercover agent, so

10

case, a CID agent, I believe.

11

communicating with the enemy.

12

MJ:

That’s how you can have an attempted

Did we have any Batchelor and all those old cases.

Were

13

any of those attempted communication cases or were all those actual

14

communication cases?

15

CDC[MR. COOMBS]:

I believe they’re all actual, ma’am.

16

Anderson was the one case that stuck out for an attempt when I was

17

looking.

18

attempt when you did not factually commit the offense under the set

19

of circumstances that you have.

20

That’s how I would think you would have, like I said, an

Importantly, there is no case which would support the

21

government’s position that actual receipt is required, especially if

22

you take out the Benchbook definition.

6462

10361

1

The next argument the government proposes is that under

2

their logic you cannot have the act of giving intelligence to the

3

enemy without actual receipt, meaning that if you give something that

4

implies that the person has received it.

5

it’s facially relevant because the receipt tends to prove giving.

6

Under that same logic, if you applied that logic to communication, I

7

mean you could make the same argument.

8

unless the other person’s heard your communication.

9

MJ:

The government argues then

You can’t really communicate

Well, now we’re at a different issue though, whether it’s

10

required and whether it’s relevant are two different questions.

11

not required to potentially be relevant.

12

CDC[MR. COOMBS]:

Correct, Your Honor.

It’s

My argument is it’s

13

not relevant at all.

14

the government has argued that okay, then it’s relevant because it

15

tends to prove actual, in this instance, the act of giving.

16

receipt tends to prove giving.

17

relevant than the same thing would apply to communication.

18

of receiving the information would tend to prove communication.

19

Manual makes it clear that actual receipt is not relevant.

20
21
22
23

MJ:

I’m just dealing with the next position that

The

If that were true that it would be

It doesn’t say it’s not relevant.

The act
The

It says it’s not

required.
CDC[MR. COOMBS]:

Well, it’s not required, right.

Then when

it comes to relevant, this falls back on what the government has

6463

10362

1

argued in the past that -- where’s the key moment in time that the

2

Court has to be considered -- has to be considering when determining

3

whether information is relevant.

4

the mind of PFC Manning at the time of the communication or the

5

correspondence.

In this instance it’s the state of

6

As the government has argued time and time again

7

successfully, unfortunately for the defense, when it comes to actual

8

damage is not relevant to PFC Manning’s mind -- mental state when he

9

was determining whether or not the information could cause damage.

10

The same logic would apply in this instance here.

11

time is not on whether or not the enemy actually received the

12

information; it’s what was PFC Manning’s actual knowledge at the time

13

communication departed from him to WikiLeaks.

14

has to be focused.

15

with PFC Manning’s actual knowledge at the time that he gave

16

information to a third party.

17

and time again called after the fact evidence.

18

relevant to a person’s intent and state of mind at an earlier time.

19

After a fact assessment is irrelevant because the facts are examined

20

as they appeared to the accused at the time of the offense.

21
22

The key period of

That’s where the Court

The actual receipt by the enemy has nothing to do

This is what the government has time

The same would be true here.

They’ve said it’s

The actual receipt by the

enemy is irrelevant unless PFC Manning had some ability to know that

6464

10363

1

the enemy received it, then that would be relevant to perhaps his

2

actual knowledge at the time.

3

MJ:

Wouldn’t that be circumstantial evidence that he was

4

intending to -- or he was knowingly taking this information and

5

aiding the enemy?

6

CDC[MR. COOMBS]:

7

MJ:

8

CDC[MR. COOMBS]:

9

If there was some ----

Knowingly giving the information to the enemy?
If there is some connected -- connection

between PFC Manning and the actual receipt by the enemy that you

10

could actually -- you could show, and then say okay, see that goes --

11

that’s circumstantial evidence of his actual knowledge.

12

not the case.

13

here is some circumstantial evidence to support PFC Manning’s belief

14

that the information could not cause damage.

15

There are too many factors over here that PFC Manning could not have

16

known.

17

Here that’s

I mean, it’s very similar to our argument of no damage

The Court said no.

The same thing with the actual receipt by the enemy.

The

18

government is going to attempt through Mr. Doe and through the five

19

other witnesses to show actual receipt by the enemy.

20

know and what we don’t have is how the enemy actually got that

21

information, if in fact they did get that information.

22

to no damage, what you don’t know is what prophylactic measures did

23

the government take in order to prevent damage or what steps did they

6465

What we don’t

Very similar

10364

1

take that PFC Manning could never have known.

This situation is the

2

exact same thing, except now it’s the government instead of the

3

defense asking to use after the fact evidence.
It’s the defense’s position that not only is this not a

4
5

required element under 104, but actual receipt by the enemy is not

6

relevant unless you can tie it to the key moment in time, and that is

7

the actual knowledge of PFC Manning when he provided the information

8

to WikiLeaks.

9

MJ:

10

this offense?

11

What instructions did the defense request that I give for

CDC[MR. COOMBS]:

This the -- we went into the actual

12

knowledge and we requested instructions on what it meant to

13

indirectly provide the information to the enemy.

14

MJ:

So the defense has never requested then the instruction on

15

-- I’ve got here, third element -- this is in the 22 June 2012.

16

only reason I’m going here is because I want to make sure that if the

17

defense is changing your position, I want to make sure the record is

18

clear.

19

CDC[MR. COOMBS]:

20

MJ:

The

Yes, Your Honor.

I have enemy, the third element that the government must

21

prove beyond a reasonable doubt is that the entity that received the

22

information was an enemy, which to me is saying that it has to have

23

been received.

6466

10365

CDC[MR. COOMBS]:

1

That would be a poor choice of words then,

2

because when you go off of the actual charge giving intelligence to

3

the enemy you have to prove that that intelligence that you gave --

4

again, the key moment in time is the moment the communication departs

5

from you, that you are giving it to the enemy.

6

the enemy is not required, but you do have to show that it’s going to

7

the enemy.

8

under the -- we wanted to make sure that there was an argument that

9

WikiLeaks was an enemy of the United States.
MJ:

10

The actual receipt by

At the time when the defense was requesting this, we were

Just to make sure that I’ve got the record clear then, the

11

defense -- the defense does not want the Court to instruct that the

12

information had to be received by the enemy for the 104 offense?

13

CDC[MR. COOMBS]:

14

MJ:

15

And that’s based on the communication piece in Article 104

----

16

CDC[MR. COOMBS]:

17

MJ:

18

CDC[MR. COOMBS]:

19

MJ:

20

Article 104(c) ----

---- 6(a), right? (C)(6)(a)?

All right.

(c)(5)(a) and (c)(6)(a).
And your linkage there is the word

correspondence?

21

CDC[MR. COOMBS]:

22

MJ:

23

That is correct, Your Honor.

Yes, Your Honor.

So in this case then, I mean your argument is that giving

intelligence to the enemy -- well to correspond with intelligence is

6467

10366

1

a particular kind of correspondence that’s more aggravated because

2

you’re corresponding intelligence as opposed to something else?

3

CDC[MR. COOMBS]:

Yes, Your Honor.

And it goes with the

4

entire spirit of 104 of actual -- of prohibiting any communication

5

with the enemy.

6

to have a requirement of receipt by the enemy for say giving

7

intelligence, you would expect to see that within the statute,

8

because that would be a marked difference departing from the spirit

9

of the whole overall statute of prohibiting any communication with

If, in fact, under the statute there was an intent

10

the enemy.

That is the one thing that is consistent with all the

11

case regardless of whether or not -- what provision under 104 they’re

12

charging, is the idea that there is absolutely no authority to

13

communicate with the enemy.

14

was to say okay, you know what, with regards to giving intelligence

15

we’re going to require receipt, then you would expect to see that

16

there and it would be something that would be -- without something

17

more it would be in direct opposition to the idea of prohibiting any

18

communication with the enemy in the fact that you commit the offense

19

as soon as the correspondence leaves you.

20

because sometimes if you can show -- the government’s going to argue

21

that maybe it’s just an attempt if we couldn’t show actual receipt by

22

the enemy, but that would be the biggest hole of showing actual

23

receipt by the enemy, when under the statute really what we’re

In this instance, if in fact the intent

6468

That makes perfect sense

10367

1

pointing to is no communication.

2

communicate with the enemy under any circumstances.

3

do that, you’ve committed the offense.

4

eliminated that added burden of trying to prove actual receipt.

5

MJ:

We don’t want an individual to
As soon as you

By the statute, they’ve

Well, now I’m going back to the constitutional questions

6

again because -- well, I guess communication with the enemy, if

7

somebody wants to go interview someone from al-Qaeda, a journalist,

8

they’re potentially violating the statute with the first e-mail, “Are

9

you available next week.”

10
11

CDC[MR. COOMBS]:

Well, there what would protect them is --

well, actually if they’re subject to the Code, for one ----

12

MJ:

This is an any person offense.

13

CDC[MR. COOMBS]:

True.

I’m sorry, that is true.

But under

14

the 104 offense here the communicating with the enemy is any

15

communication, so if ----

16
17
18

MJ:

Well, those aren’t the facts of this case.

We don’t need

to go there.
CDC[MR. COOMBS]:

I can imagine a set of circumstances where

19

you make your argument, but the 104 offense prohibits any

20

communication.

21

MJ:

Is there any case law that you’re aware of that links

22

giving intelligence to the enemy with communicating intelligence to

23

the enemy that says giving intelligence is a form of correspondence?

6469

10368

1

CDC[MR. COOMBS]:

Nothing that I’m aware of, ma’am, but again

2

the plain reading of the statute and its explanation indicates that

3

that’s what it is.

4

MJ:

Thank you.

Major Fein?

5
6

All right.

TC[MAJ FEIN]: Ma’am, if it may please the Court, before even

7

beginning my portion of the argument, to answer the Court’s question

8

that the Court had for the defense just now.

9

MJ:

Anderson?

Uh-huh.

10

TC[MAJ FEIN]: The pinpoint cite, Your Honor, 68 M.J. 378 at 385.

11

MJ:

12

Okay.

Hold on just a minute.

I had that case in front of

me just a second ago.

13

TC[MAJ FEIN]:

14

MJ:

15

TC[MAJ FEIN]:

Yes, ma'am.

Let me get it again.

Okay.

So ma’am, it’s -- well if you have Westlaw

16

printout, it’s possibly Page 11, but the pinpoint cite is page 385 of

17

the reporter.

18

MJ:

19

anymore.

20
21
22

Unfortunately the reporters don’t go by page by page
Is it under Number 3, multiplicity or is it before that?

TC[MAJ FEIN]:

It should be under multiplicity at the very end,

ma’am.
MJ:

Okay.

6470

10369

1

TC[MAJ FEIN]:

The last paragraph.

The Court -- this is

2

C.A.A.F. holds in 2010, that the specifications concerning attempts

3

to give intelligence to the enemy, the additional charge focused on

4

attempts to communicate.

5

intelligence to and then (italicized) or communicating with the

6

enemy, see Dickinson.

7

further states because each charge requires proof of a fact that the

8

other does not, the charges are not multiplicious.

separate and distinct acts.
With that, Your Honor, ----

11
12

MJ:

13

TC[MAJ FEIN]:

14

MJ:

15

Then at the end of that paragraph the Court

As recent as 2010, C.A.A.F. has held that the two are

9
10

Congress defined aiding the enemy as giving

Well, just a minute here.

Okay.

Yes, ma'am.

So we have attempts to give intelligence to the Army

-- to the enemy and attempts to communicate with the enemy?

16

TC[MAJ FEIN]:

17

MJ:

Yes, ma'am.

And we have the fact that they’re not in a -- that they’re

18

distinct offenses.

19

TC[MAJ FEIN]:

And that’s citing Dickinson, ma’am, I think from

20

1956, and Dickinson Court specifically holds not attempts, but the

21

actual main offenses both are separate and distinct.

22

please the Court, I intend to kind of just -- hopefully provide some

23

clarity on this, both historic and of modern case law.

6471

If it may

10370

1

MJ:

All right.

2

TC[MAJ FEIN]:

It is imperative prior to us moving forward,

3

hopefully all parties especially the accused going into an inquiry

4

understands what the charges are and what those elements are.

5

of course, odd as the Court pointed out that the prosecution would

6

rather have the elements drop off to lessen the burden.

7

here is that if the Court and the parties get this wrong and we --

8

although it might meet a certain burden of a lesser element, we need

9

to make sure that this -- at least the United States requests that

10
11

The issue

the elements are clearly articulated.
Part of the problem, of course, is, is it an element or is

12

it a definitional requirement?

13

it’s an element and we’ll get to that.

14

It is,

The government argues that in essence

The United States would like to make the record clear on

15

this, Your Honor.

The United States charged PFC Manning with aiding

16

the enemy by giving intelligence.

17

forms of aiding the enemy, and under the current UCMJ it’s a

18

violation of Article 104, sub 2.

19

consists of many different acts, such as relieving the enemy with

20

money, supplies, ammunition, harboring or protecting the enemy,

21

holding correspondence or today communicating with the enemy and

22

giving intelligence to the enemy.

It is one of the many different

Historically aiding the enemy

6472

All separate and distinct acts.

10371

1
2
3

MJ:

Well, what’s the government’s position then, why do they

use the word “correspondence” in both giving and communicating?
TC[MAJ FEIN]:

Yes, ma'am.

I think that’s where we can’t escape

4

history here, Your Honor, of how 104 came about, most of it derived

5

from Winthrop and previous cases like Dickinson, Batchelor and Olson,

6

but the original offense of aiding the enemy going back to I think

7

before 1621, had holding correspondence with the enemy and giving

8

intelligence and then providing aid and comfort.

9

historic term.

So that term is a

The current Manual defines it as communication and

10

giving intelligence.

11

“correspondence,” kind of lightly, but it doesn’t define the term

12

correspondence.

13

in -- C.A.A.F. stated in Anderson, it’s communicating or giving

14

intelligence.

15

There’s always been an act that required receipt, which I intend to

16

elaborate on.

17

MJ:

18

TC[MAJ FEIN]:

Okay.

Yes, the current Manual uses the term

It defines 104 as communicating or, as C.A.A.F. held

But intelligence is historically giving intelligence.

Is there any case that actually says that?
Well, ma’am, between Batchelor, Olson, Dickinson

19

and Anderson those cases do hold they’re separate and distinct act.

20

Is there a case that -- the United States has not found a case that

21

specifically states that receipt by the enemy is a required elemental

22

-- an elemental requirement of giving intelligence.

6473

No.

10372

1

MJ:

In all -- if the Court is correct, in all the old cases:

2

Dickinson, Olson, Batchelor it really wasn’t an issue.

3

prisoner of war cases?

4

TC[MAJ FEIN]:

Weren’t they

I mean, they were ----

They were communication cases, yes, ma’am.

Well,

5

Anderson an attempt.

6

cases.

7

the civil war, Your Honor, of for instance a -- I can provide the

8

pinpoint cite as well, but -- of a Soldier being prosecuted under

9

court-martial for providing information about troop locations, troop

10

strengths, that was published by a newspaper and he was convicted at

11

a court-martial for giving intelligence.

They are not appropriate here.

12

MJ:

13

TC[MAJ FEIN]:

14
15
16
17
18

But yes, the older cases are prisoner of war
There are historic cases from

Do you have the actual case?
Yes -- well, we have what remains from the

Library of Congress, Your Honor.
MJ:

The Court would appreciate a copy of what remained from the

Library of Congress.
TC[MAJ FEIN]:

You will have a copy after today’s session, Your

Honor, and so will the defense.

19

MJ:

Thank you.

20

TC[MAJ FEIN]: Your Honor, General Orders Number 10,

21

Headquarters, Department of Washington, 1863, and we’ll provide a

22

copy of that case to the parties.

6474

10373

Ma’am, for holding correspondence or today communicating

1
2

with and giving intelligence to the enemy, they both may occur

3

whether through indirect or direct means, historically under today’s

4

Code.

5

before, all the way to 1621, when they first appeared in the American

6

Articles of War in 1775, Article 27 and 28.

7

were codified in Articles 45 and 46 of the American Articles of War,

8

1874, the ultimate pre cursor to the current Code.

9

Winthrop the learned treatise on pretty much all aspects of military

10

justice that have essentially been litigated today and even the ones

11

that have been.

12

These criminal offenses for Soldiers date back, as I mentioned

After the Civil War they

The focus of

Modern day Courts have relied on Winthrop’s interpretation

13

of these historic offenses in order to illuminate how to process

14

these charges.

15

entire history of 104 in their ruling.

16

The Olson court especially, the CMR, laid out the

Presently, Your Honor, the parties may seem to confuse the

17

difference between communicating and giving intelligence because both

18

acts do constitute aiding the enemy, but so do the act of harboring

19

the enemy or giving ammunition.

20

language of that, they have to receive ammunition.

21

intelligence, there’s a definitional requirement there, which makes

22

sense why the -- I’ll get to that in a moment, Your Honor.

Giving ammunition, given the plain

6475

Giving

10374

1

MJ:

All right.

Before you do that, the provisions of Winthrop

2

that you’re citing, do you actually have them that you can give a

3

copy to the Court?

4

TC[MAJ FEIN]:

5

Yes, ma'am.

I have some pinpoint cites right

here and we’ll print the relevant portions of Winthrop’s ----

6

MJ:

Thank you.

7

TC[MAJ FEIN]:

So, ma’am, Winthrop specifically outlines a

8

historic precursory to Article 104 of the UCMJ first for holding

9

correspondence, or today again communication, under the Articles or

10

War was interpreted “in its usual and familiar sense,” as a letter of

11

communication with the enemy.

12

communication is committed to the messenger, whether or not it was

13

actually delivered.

14

The crime is completed once the

That’s going to be Winthrop at 633.

Proving, holding correspondence or communicating with the

15

enemy falls in the modern day mailbox rule.

Once it’s released out

16

of your custody, the crime has been completed.

17

in today’s Manual for Court-Martial.

18

Class Manning is charged with.

19

intelligence to the enemy.

20

intelligence to the enemy as communicating directly or indirectly

21

with the enemy by providing information “in regard to the number,

22

condition, position or movement of the troops, amount of supplies,

23

acts or projects of the government in connection with the conduct of

That is memorialized

That is not what Private First

He is charged with giving

Winthrop describes the crime of giving

6476

10375

1

war or any other fact or matter that may instruct or assist the enemy

2

in the prosecution of hostilities.

That’s at 634.

Your Honor, documenting the number, condition, position and

3
4

movements of the troops, that is the exact and precisely the type of

5

information that is found in the CIDNE databases the government

6

intends to use.

7

relevant for this court-martial and for Department of State cables.
Winthrop further states, “It is necessary that the enemy

8
9

The defense is arguing relevance and why this is

shall have been actually informed.”

This is for giving intelligence

10

to the enemy.

On Page 634 Winthrop actually italicizes, Your Honor,

11

the term “actually inform,” to highlight that for all military

12

justice practitioners at the time.
He further states, “If therefore the intelligence fails to

13
14

reach him, the enemy, this offense is not completed, though the

15

offense of holding correspondence may be depending on the facts and

16

circumstances.”
Your Honor, Articles 45 and 46 were combined.

17

Under the

18

modern UCMJ Article 46 became Article 104 sub 2, Article 45 became

19

Article 104 sub 1.

20

MJ:

21

TC[MAJ FEIN]:

22
23

And where do I have all that legislative history?
You’ll have that as well at the end of today,

Your Honor.
MJ:

Thank you.

6477

10376

1

TC[MAJ FEIN]:

Your Honor, the MCM provides that giving

2

intelligence only has two elements, as the Court has already implied

3

and it’s also list -- the elements are listed in the draft -- the

4

draft instructions.

5

discussed somewhat with the defense, under the explanations section

6

of 104, states that the nature of the offense of giving intelligence

7

to the enemy is a particular case of corresponding with the enemy,

8

but made more serious by the fact the information contains

9

intelligence and at the very end of that section, that the

Furthermore, the MCM does, as you’ve already

10

intelligence may be conveyed by direct or indirect means.

11

is the act of conveying.

So giving

Again, we’re going to get to -- the United States we’ll

12

Giving is the act of

13

focus on the actual words of the specs.

14

conveying.

15

edition, conveying is defined as “To transfer or deliver something

16

such as a right or property to another.”

17

conveyance, it’s giving.

18

According to Black’s Law Dictionary 2009, the 9th

Actual delivery is a

The MCM further delineates that “no response or receipt by

19

the enemy is required,” as the defense has argued, but that

20

specifically, expressly falls under the communication with the enemy.

21

That line does not fall under, within the current MCM, giving

22

intelligence to the enemy.

6478

10377

Your Honor, contrary to the defense’s argument, even the

1
2

Military Judge’s Benchbook as described implies this required element

3

as a definitional requirement.

4

couldn’t find any history on how that Benchbook definition arrived,

5

but I think this argument shows why it was put there, and not an

6

element because the MCM doesn’t have it as an element listed;

7

therefore, the Benchbook would not be consistent.
The standard instruction does state, however, intelligence

8
9

Unfortunately, the United States

-- from the Benchbook intelligence means any helpful information

10

given to and received by the enemy, which is true at least in part.

11

It is clear that the drafters of the Benchbook recognized this

12

requirement and placed it in the definitions rather than creating

13

that additional element.

14
15
16

MJ:

Well, wait a minute.

Is actual receipt by the enemy, is

that a definition or an element?
TC[MAJ FEIN]:

Well, Your Honor, the only reason -- the United

17

States would argue in practice or -- in practice it is an element

18

because if the government doesn’t prove the receipt, it didn’t meet

19

the requirements to meet the definition of intelligence.

20

reason ----

21

MJ:

Now, I’m getting confused.

22

TC[MAJ FEIN]:

Yes, ma'am.

6479

The only

10378

1

MJ:

I’m going back to what the defense was arguing to me that

2

intelligence is a noun.

3

TC[MAJ FEIN]:

Yes, ma'am.

Ultimately the United States argues

It’s a requirement.

Receipt by the enemy is

4

it is an element.

5

required for giving intelligence.

6

Martial does not outline it as an element.

7

elements, this is not one of them.

8

MJ:

9

TC[MAJ FEIN]:

It’s just the Manual for CourtsIt only outlines two

The Benchbook doesn’t ----

The element is to give.

10

MJ:

11

TC[MAJ FEIN]:

Say again, ma’am?

The element would be to give.
Yes, ma'am.

To give and the definition of to

12

give to be convey, to convey to another, which means they have to

13

receive it.

14

MJ:

Okay.

15

TC[MAJ FEIN]:

Maybe a better way to state this, Your Honor,

16

from the United States perspective is an additional instruction or

17

the current instruction of intelligence should be bifurcated into

18

intelligence, information that it could be helpful to the enemy, true

19

-- at least true in part, and a second one saying giving is -- or to

20

give is to convey to another which requires receipt.

21

the Benchbook does combine that into a definitional requirement.

22
23

For some reason

Additionally, Your Honor, the MCM doesn’t actually give a
definition of intelligence.

It gives a nature of intelligence and it

6480

10379

1

uses that word convey at the very end as stated before.

Your Honor,

2

based off your own instructions, Appellate Exhibit 410, Draft

3

Instructions, this requirement of receipt is there, but of course

4

it’s under the instruction not as an element.

5

Your Honor, finally based off the cases the defense cites,

6

no Court, at least that the prosecution could find, has ever applied

7

the elemental requirement of aiding the enemy by communication or

8

holding correspondence under the old Articles of War, to giving

9

intelligence, separate and distinct, as already referenced -- the

10

Anderson court held.

11

that it’s required to prove that intelligence was in the hands of the

12

enemies of the United States in order to prove aiding the enemy by

13

giving intelligence, either as a separate element or as a

14

definitional requirement of the word give.

15

MJ:

Therefore, Your Honor, the United States argues

Let me ask you another thing.

Assume I rule for the

16

defense and I say, “Okay, receipt by the enemy is not a requirement

17

of Article 104.”

18

relevant anyway?

19

Would the information that you seek to introduce be

TC[MAJ FEIN]:

Yes, Your Honor.

Multiple ways.

First, Your

20

Honor, as far as -- if the Court was to rule that it’s not required

21

as aiding the enemy, it can be -- as an element of aiding the enemy,

22

it can still be used to show -- actually just take exactly what the

23

defense argued before.

The harm argument that occurred before the

6481

10380

1

Court was that actual harm -- present day actual harm or lack

2

thereof, is not relevant to any elements of the offense that PFC

3

Manning is charged with.

4

wasn’t that post criminal misconduct acts couldn’t be used to prove

5

elements of a crime, it’s just that it had to be an element of the

6

crime.

7

damage, that motion in limine, was that the information could cause

8

harm, not that it did.

9

position in that case, which the prosecution actually adopts for this

That was the actual Court’s ruling. It

The element of the crimes when we litigated actual harm or

That was what we litigated.

The defense’s

10

argument, is that for intent to commit grievous bodily harm, there’s

11

an element or a requirement that that actually be proven; therefore,

12

any type of activity could -- any type of activity after the

13

commission of the crime could be used, could be potentially relevant

14

to the circumstantial evidence of that actual crime.

15

Your Honor, the knowingly giving intelligence to help inform the

16

trier of fact of the knowing aspect of it and giving the

17

intelligence, the fact that the enemy received it is circumstantial

18

evidence of the knowing, giving portion.

19

MJ:

In this case,

I understand the argument the government is making by

20

relating this case to the aggravated assault.

21

States v. Bean which is aggravated assault with a firearm, there was

22

no harm at all, how does that case get to the result ----

6482

Relying on United

10381

1

TC[MAJ FEIN]:

Unfortunately it’s not a good case, Your Honor.

2

The case that we cited is not a good case.

3

actually pull the cases from the actual harm damage argument and to

4

be honest, it would be the cases the defense cited in that.

5

it’s the -- if you have an intent -- you can use the medical reports

6

from a doctor to show that you had the intent grievous bodily harm

7

because that was an element.

8
9
10

MJ:

Okay.

I’ll have to go back and

Again,

We’ll provide that as well.

That would be helpful.

I don’t see Bean as relevant

at all.
TC[MAJ FEIN]:

Yes, ma'am.

And that same argument, ma’am,

11

would apply to Spec 1 of Charge II as well, the causing intelligence

12

to be published -- to be published to the Internet accessible by the

13

enemy, by showing that it was published on the Internet and accessed

14

by the enemy, would show the causing of it to occur.

15

MJ:

See now I’m having a little more trouble with this one.

16

What’s the difference between using the receipt by the enemy for

17

Specification 1 of Charge II with the defense trying to show actual

18

damage to prove the accused’s state of mind for a reason to believe?

19

TC[MAJ FEIN]:

No, ma'am.

The government’s argument is that it

20

be used for the actual act, not the state of mind.

It’s causing

21

intelligence.

22

published, if it was actually published, that helps inform the trier

To prove that the accused caused intelligence to be

6483

10382

1

of fact that he caused it to be published.

2

argument.

3
4

MJ:

Well, I understand that, but it’s the receipt by the enemy

piece.

5

TC[MAJ FEIN]:

6

MJ:

7

That’s the government’s

Yes, ma'am.

How is that relevant?

The enemy has received it ---He’s charged with wantonly

publishing ----

8

TC[MAJ FEIN]:

9

MJ:

Yes, ma'am.

---- information with, I believe the specification says

10

with knowledge that the -- let me state this correctly, wantonly --

11

wrongfully and wantonly causing publication of intelligence belonging

12

to the United States on the Internet, knowing the intelligence is

13

accessible to the enemy.

14

ultimately received the intelligence -- again, we’re going back to

15

the accused’s state of mind at the time ----

16

TC[MAJ FEIN]:

17

MJ:

18
19
20

Yes, ma'am.

---- he caused the publication.

That seems to me the same

argument that the defense made for the reason to believe.
TC[MAJ FEIN]:

Yes, ma'am.

For the -- for the mens rea aspect,

the United States agrees for that specification for mens rea, yes.

21

MJ:

22

TC[MAJ FEIN]:

23

Then how does the fact that the enemy

So how else will it be relevant to that specification?
Ma’am, the United States argues that it would

relevant to show that it was actually caused to be published to the

6484

10383

1

Internet.

There are many avenues of different types of evidence that

2

could be used to show that it was on the Internet.

3

information, for instance, could be easily -- sorry, Your Honor.

4

all of the information that was compromised, or at least that’s been

5

charged that was comprised by PFC Manning, was necessarily in one

6

location and it was accessible, but it was evidence -- the United

7

States intends to show that the information was caused to be

8

published on the Internet and by doing that anyone who accessed it

9

would help inform the trier of fact that it was on the Internet.

Not all the
Not

If

10

the United States cannot prove that it was actually on the Internet,

11

then that would be a -- we would not meet our burden, Your Honor, in

12

order to show it was caused to be published on the Internet.

13

MJ:

Now, aren’t we triggering over for that specification to an

14

M.R.E. 403 analysis, because that’s not the only way the government

15

can prove that that information was on the Internet?

16
17

TC[MAJ FEIN]:

That is not possibly the only way, ma’am,

depending on which specification it is, that’s correct.

18

MJ:

I’m talking about Specification 1 of Charge II.

19

TC[MAJ FEIN]:

I’m sorry, ma’am.

When I said “specification” I

20

meant which type of information that was compromised.

Some

21

information there’s -- there’s many avenues the government could

22

chose on where to use -- what evidence to use and tailors its case

23

going forward, the trial plan.

Other types of classified information

6485

10384

1

that were compromised in the rest of the specifications aren’t

2

necessarily -- are not so robust with the different type of evidence.

3

Some have very clean forensic trails; others don’t.

4

on circumstantial evidence; others have direct evidence.

5

depend, Your Honor, on ----

6
7

MJ:

It would

Well, if the enemy can pull it down from the Internet,

can’t everybody else?

8

TC[MAJ FEIN]:

9

MJ:

10

Others rely more

Someone else could, yes, ma’am.

Okay.

TC[MAJ FEIN]:

So Your Honor, again going back to the main

11

argument that the United States has is that receipt is required under

12

Article 104 at a minimum.

13

Your Honor, assuming the Court finds that it is a

14

requirement for the government to prove aiding the enemy by giving

15

intelligence, that receipt is required.

16

that under M.R.E. 403, first it’s not relevant.

17

even though it is an element -- if it’s not an element, therefore

18

it’s not relevant.

19

relevant -- or it wouldn’t be admissible for multiple reasons and

20

should be precluded.

21

[sic], and the Court’s aware from multiple filings that -- especially

22

as recent as the 505(i) filing of the type of information that the

23

United States intends to use to prove that the enemy was in receipt

The defense further argues
It’s not an element,

If it is relevant under 403, it wouldn’t be

The defense has known since November 2001

6486

10385

1

of this information to prove Article 104 and the Article 134, Spec 1

2

offense.

3

MJ:

Neither side has brought this up, but I’m just looking --

4

well, never mind.

5

Specification 1 of Charge II and the element that you -- the elements

6

that you believe this is -- this information is relevant to prove are

7

what?

8

TC[MAJ FEIN]:

9

MJ:

The elements that you’re looking for in

I’m sorry.

Say again, Your Honor?

The evidence that you intend to introduce about receipt of

10

the information

or the intelligence for this specification by the

11

enemy, what is the -- what elements are -- is the government

12

introducing as evidence to prove?

13

TC[MAJ FEIN]:

14

MJ:

15

TC[MAJ FEIN]:

16

MJ:

17

TC[MAJ FEIN]: Yes, ma'am.

18

MJ:

19

[Pause.]

20

Ma’am, for the spec ----

The Specification of Charge II?
Which of the elements?

Yes.
Can I have a moment, Your Honor?

Yes.

TC[MAJ FEIN]:

Well, ma’am, I’m now looking at it to refresh my

21

own recollection, there’s only two elements, so it would be element

22

one that at or near COB Hammer, Iraq, between 1 November 2009 and on

23

or about 27 May 2010, that the accused wrongfully and wantonly caused

6487

10386

1

to be published on the Internet intelligence belonging to the United

2

States Government.
MJ:

3
4

Again, this is where again I’m having a little trouble with

this.

5

TC[MAJ FEIN]:

6

MJ:

Yes, ma'am.

The relevant part is having knowledge that the intelligence

7

published on the Internet is accessible to the enemy, that’s having

8

knowledge at the time of the publication.

9

TC[MAJ FEIN]:

10

MJ:

11

TC[MAJ FEIN]:

Yes, ma'am.

How is subsequent receipt by the ---Ma’am, the United States isn’t arguing that

12

subsequent receipt is relevant to prove that.

It has to be the

13

accused’s knowledge at the time.

14

as the defense is aware and it’s been mentioned during motions

15

hearings, the United States intends to provide an ample amount of

16

evidence that PFC Manning as an intel analyst knew at the time of the

17

commission of the crime that any intelligence type of information,

18

any of the troop, strength, movement, locations all of that type of

19

information -- Winthrop talked about and that was in CIDNE database

20

and the Department of State information, once put on the Internet

21

would be in the hands of the enemy.

22

trained.

23

evidence on that, from AIT training to unit members that are going to

I mean, the United States intends,

I mean, he was specifically

The United States intends to put an ample amount of

6488

10387

1

testify about that, the actual slides that were used during AIT, even

2

a slideshow PFC Manning put together about it.

3

MJ:

I understand that, but again, how does that subsequent

4

receipt by the enemy, how is that relevant to what the accused knew

5

at the time?

6
7

TC[MAJ FEIN]:

relevant to what he knew at the time.

8

MJ:

9

TC[MAJ FEIN]:

10

Your Honor, the United States -- it’s not

Then what is it relevant to with respect to element one?
Causing the information to be published, Your

Honor.

11

MJ:

Walk me through that again how we get there.

12

TC[MAJ FEIN]:

To show that it was -- the information was on --

13

caused to be published on the Internet, that it was on the Internet.

14

To show that it was on the Internet, the United States intends to

15

elicit testimony that this information was requested by Osama Bin

16

Laden, a member of al-Qaeda went to the Internet, got the information

17

and gave it to him and it was found with Osama Bin Laden.

18

information, Your Honor, is relevant evidence to show that it had

19

been caused to be published.

20

MJ:

Well, I guess I’m back to my 403 analysis then.

That

The

21

government has evidence that Osama Bin Laden pulled it down from the

22

Internet and that Jon Doe pulled it down from the Internet, wouldn’t

23

the John Doe pulling it down be less prejudicial to the defense?

6489

10388

TC[MAJ FEIN]:

1

Possibly, Your Honor.

I only say that because

2

the United States doesn’t have a John Doe to put there.

3

there’s no question that a CID agent -- I mean, there is at least a

4

CID agent that the United States intends to call that says that they

5

went on to WikiLeaks for instance for some of the information, were

6

able to pull it, collect it and authenticate that it was published

7

that way.

8

on the current witness list that will testify to that.

9

Honor.

10

I mean,

Yes, there’s at least one other witness in the current -Yes, Your

But that doesn’t mean that it’s prejudicial, Your Honor,

under M.R.E. 403.
One other witness that went on the Internet as part of

11
12

their official capacity -- I mean, part of the problem is, Your

13

Honor, is when this first happened, when WikiLeaks started publishing

14

all DoD officials were told you can’t access WikiLeaks.

15

true today.

16

organization, yes, select individuals using special systems did that.

17

We’re calling them as witnesses.

18

collected the information, printed it, initialed it so we can

19

authenticate it -- properly authenticate the information and admit it

20

into evidence.

21

403.

22
23

It’s still

CID through special exceptions of being law enforcement

Again, I think one individual who

Again, it doesn’t mean it’s prejudicial under M.R.E.

Of course, that’s only for Spec 1 of Charge II.

That isn’t

necessarily -- I mean, the main point of the government’s argument

6490

10389

1

here is that it is required under the charged -- the Spec to Charge

2

I.

3

MJ:

All right.

I’m going a little bit beyond into the other

4

motion now, but it appears ripe at this point.

5

advised the Court that you’re very concerned about the accused

6

entering pleas having full knowledge of the elements, the

7

Specification of Charge I and Specification 1 of Charge II.

8

accused isn’t pleading to those, so how -- explain to me how that

9

matters.

10

TC[MAJ FEIN]:

Yes, ma'am.

The government

The

If it may please the Court just very

11

briefly and I think it could be explained better later during that

12

motion -- that motions portion, but ultimately, Your Honor, it’s a

13

collateral issue that will come up in sentencing if the accused is

14

found guilty of violating Article 104.

15

guilty during the providency -- pleading guilty, going through a

16

providency inquiry, making admissions for the providency inquiry, not

17

understanding at the time that this allocution occurs that one of the

18

effects is anything you say can also be used if you’re found guilty

19

as a sentencing factor.

20

sentencing, Your Honor, and the information can be used.

21

accused is, for instance, getting legal advice that this is not an

22

element, don’t worry about it, and it ends up being an element, that

23

is very -- a very -- there’s a high likelihood that’s a potential

By the accused pleading

Everything is related when it comes to

6491

If the

10390

1

appellate issue.

2

-- all parties are on a common playing field so there is not -- there

3

is no mistake of understanding moving forward even all the way

4

through a contested portion of the trial.

5
6
7
8
9
10

MJ:

Okay.

The prosecution’s intent is to make sure that every

Thank you.

And you’ll be providing me all that

information that you said you would.
TC[MAJ FEIN]:

There’s some more, ma’am, just based off the

defense’s motion.
MJ:

All right.

TC[MAJ FEIN]:

Go ahead.
Ma’am, the defense also argues that if it is

11

under M.R.E. 403, assuming it is a required element, it is also --

12

they don’t say cumulative, but it is -- it would cause an unnecessary

13

delay.

14

custody witnesses.

15

stipulation of the authenticity and the admissibility of this

16

evidence.

17

Later for an M.R.E. 505(i) motion, the United States intends to call

18

Jon Doe, the DoD operator who actually collected the evidence from

19

Abbottabad and then he will testify simply about giving that to an

20

FBI agent in Afghanistan, that FBI agent going to Quantico and giving

21

it to a forensic and evidence collection team, and then it passing

22

through to get to a forensic examiner.

23

critical links in that chain of custody for the four files that the

There were six other witnesses, but these are chain of
The United States would be very happy to enter a

The United States isn’t adding any additional witness.

6492

All of those witnesses are

10391

1

United States intends to use as evidence to show the possession --

2

the receipt, excuse me.
There is no cumulative issue here.

3

It’s not unnecessary

4

delay because they’re required.

5

take the position that it’s not required, but the Rule require that,

6

and there’s even more, just to be fair.

7

intends to call three more witnesses on top of those six in order to

8

even say what those documents were.

9

was given to a CID forensic examiner who compared what was found with

10

Osama Bin Laden and what was found on WikiLeaks and what was found on

11

Manning’s SD Card at his aunt’s house, and will say that they are

12

essentially same, as a forensic examiner.

13

who’s going to be called, and is on the witness list, to say what the

14

letters to and from Osama Bin Laden said.

15

Honor, is not cumulative, isn’t prejudicial because it has to be --

16

we have to show, we have to prove the information was in the hands of

17

the enemy.

18

MJ:

The government, again, would love to

The United States also

After the forensic examiner, it

Then you have a translator

All that information, Your

If it’s an element and you have to prove it, you really

19

don’t get to the 403 analysis.

Assume I find it’s not element and I

20

go with the communication route here and say that the -- once this

21

transmissions been made, it’s complete, it doesn’t require a receipt

22

by the enemy.

23

relevant anyway?

The government’s second argument to me was it’s

6493

10392

1

TC[MAJ FEIN]:

2

MJ:

Yes, ma'am.

But the 403 analysis then would come forward.

3

you’re calling all of these witnesses.

4

of time that this is going to take?

5

TC[MAJ FEIN]:

So assume

What is the estimated length

Well, ma’am, every witness I just listed has such

6

a very limited role.

They are chain of custody witnesses who either

7

signed a chain of custody -- every member -- every individual I just

8

listed from the FBI signed a chain of custody form.

9

had three pieces of digital media and I handed it to this individual.

It’s literally I

10

That is five of the witnesses, starting with an FBI agent in

11

Afghanistan, the DoD operator.

12

will be a little bit more lengthy, but not based off the government.

13

We just assume there will be a cross-examination, because the

14

individual, Jon Doe, will have to talk about how he went into a room,

15

how he picked up the three pieces of digital media and what he did

16

with them.

17

total of testimony.

18

individual to be litigated later, so that would save one exception.

19

The rest, Your Honor, standard law enforcement agents or forensic

20

examiners, chain of custody, don’t expect more than 10 minutes of

21

actual testimony by each individual.

22

examiner who reviewed the three types of evidence, will probably have

23

the most lengthy testimony at about 20 minutes to simply say I

The subject of the 505(i) motion that

Assuming an extensive cross-examination, maybe 30 minutes
Granted there are other procedures for that one

6494

The CID agent -- excuse me,

10393

1

compared hash values, I compared file names, file numbers and this is

2

my conclusion, they essentially the same.

3

testimony on this topic.

4

other pieces of evidence in this case.

That’s the extent of his

He’s also a forensic examiner for many

5

The translator, there aren’t that many lines that the Court

6

has approved under a separate 505(g)(2) motion to say this is what --

7

what it said.

8

of it, which the government is operating under they will.

9

that, that’s the extent of it, Your Honor.

This is, of course, assuming the defense contests all
Assuming

It could very possibly,

10

other than the DoD operator, could easily be done in less than one

11

day of court here, depending on cross-examination.

12

MJ:

All right.

Thank you.

13

TC[MAJ FEIN]:

14

CDC[MR. COOMBS]:

Yes, ma'am.
Ma’am, with regards to just the last

15

question on the 403, Mr. Doe is one of those, I guess now nine

16

witnesses that the government would be calling.

17

Court knows, they’re asking for an offsite location for that witness

18

to testify.

19

that testimony.

20

104, then obviously the government has to prove it and the

21

information -- it’s an element and it’s a burden they need to prove.

22

Our position obviously is it’s not.

In that, as the

It will involve the parties move to some location for
As the defense sees it, if this is an element of

6495

10394

If the Court agrees with that, then it becomes, well, is it

1
2

relevant for -- to prove an element?

Is it circumstantial evidence

3

that would go towards something?

4

the government’s argument, caused to be published is why it’s

5

relevant for Spec 1 of Charge II.

6

published just means even on the Court’s definition, what’s the

7

proximate cause of the publication of the information?

8

doesn’t see how actual receipt by the enemy would be relevant to

9

caused to be published.

From the defense’s understanding of

There of course, caused to be

The defense

Certainly, as the government has even said,

10

they have other information to show that the information was

11

published on the Internet, to include probably the ability to look at

12

it now on the Internet.
The other offense, the Article 104 offense, it appears that

13
14

they would be arguing that it’s relevant to prove he knowingly gave

15

intelligence to the enemy.

16

motion, that actual receipt is some evidence of giving.

17

thing here is, and what the government is required to prove, is that

18

he had actual knowledge at the time that he gave it to the third

19

party, in this case WikiLeaks, that he was giving intelligence to the

20

enemy.

21

it to WikiLeaks.

22

receipt by the enemy would not be relevant to that.

The idea, again going back to their
The key

The relevant inquiry is at the time of the offense of giving
What was his knowledge at that point?

6496

Actual

10395

The other information that the government has argued that

1
2

they would offering perhaps is training or perhaps the PowerPoint

3

presentation he had to give or some other information he might have

4

looked at prior to giving the information to WikiLeaks, that would be

5

relevant and that would be some circumstantial evidence.

6

receipt by the enemy does nothing in this instance.

7

under the government’s own evidence it appears that the receipt by

8

the enemy was based upon -- if it was in fact received by the enemy,

9

was based upon the enemy saying, “Hey, we think this on WikiLeaks.
Get me the information.”

Actual

In fact, even

10

Go take a look at it.

They’re going to

11

offer a whole bunch of witnesses to decipher statements to show that.

12

That has no bearing on the actual knowledge of PFC Manning at the

13

time that he gave the information to WikiLeaks, unless there’s some

14

connection to that.

15

receipt by the enemy doesn’t carry the day on that so it’s not

16

relevant.

17

that’s where the 403 analysis comes into play.

18

certainly has other information to try to make their argument of

19

actual knowledge.

20

information on this and the Court leaving from here to take the

21

testimony of one of them, if the Court approves of the government’s

22

request, that’s where you would have an undue delay.

That would be the training, I guess.

The actual

If there is even some remote way of arguing the relevance,
The government

When we look at nine witnesses now offering

6497

We would say

10396

1

403 then, if it’s remotely relevant, would result in the Court saying

2

the information should not be introduced during the merits.
Now, all this information could be and certainly probably

3
4

is if the government can prove it, relevant in sentencing.

5

where the government could bring this information in if they want to

6

show this as an aggravating circumstance, that, you know what, the

7

enemy actually did receive the information.

8

aggravating factor, if they could show that, and that would be

9

permissible.

10

MJ:

That’s

That would be an

But on the merits, it would not be.

Thank you.
Government, while you’re collecting all of these things for

11
12

me can I also get a copy of the actual declassified information

13

that’s at issue?

14

TC[MAJ FEIN]:

15

MJ:

I think I have one already, but I’m not sure where it is.
Is there anything else we need to address before -- well,

16
17

Yes, ma'am.

with respect to this motion?

18

TC[MAJ FEIN]:

19

MJ:

20

[Pause.]

Ma’am, may I have a moment?

Uh-huh.

21

TC[MAJ FEIN]:

Nothing further, Your Honor.

22

MJ:

23

CDC[MR. COOMBS]:

Anything from the defense?
No, Your Honor.

6498

10397

1
2

MJ:

Would the parties like a brief recess before we go into

what I believe is our last motion of the day?

3

CDC[MR. COOMBS]:

4

ATC[CPT MORROW]: We can proceed, Your Honor.

5

MJ:

6

ATC[CPT MORROW]:

7

Okay.

Appellate Exhibit 496.

8

MJ:

9

ATC[CPT MORROW]:

10

I’m fine, Your Honor.

Your Honor, the government’s brief is at
The defense response is 497.

Okay.
This, of course, deals with Defense Exhibit

Alpha.

11

MJ:

Okay.

12

ATC[CPT MORROW]: Your Honor, the government requests the Court

13

preclude the defense from offering the prepared statement of the

14

accused during the providency inquiry.

15

accused should be tailored to the facts and circumstances underlining

16

the elements of the offenses.

17

information.

18

Any statement offered by the

In other words, comprised of relevant

Secondly, Your Honor, the government requests the Court

19

instruct the accused that the documents clause 18 United States Code

20

793(e), does not require the government to prove the accused had

21

reason to believe information relating to national defense could be

22

used to the injury of the United States or to the advantage of a

23

foreign nature.

6499

10398

1

MJ:

Let me stop you here on a couple of things.

2

ATC[CPT MORROW]:

3

MJ:

4

ATC[CPT MORROW]:

5

MJ:

Yes, Your Honor.

The defense statement that is signed ---Yes, Your Honor.

Normally in, as we call it a military parlance, a naked

6

plea, frequently the defense will give the military judge basically

7

the facts, like a proffer, not a signed statement, a proffer, for the

8

Court and PFC Manning, in this case, to basically educate the judge

9

as to what the plea is going to be about.

10

ATC[CPT MORROW]:

11

MJ:

Right.

Now, assuming that this is not a signed statement, does the

12

government have the same objections?

13

considers this statement for purposes of the merits ----

14

ATC[CPT MORROW]:

15

MJ:

16

ATC[CPT MORROW]:

17

MJ:

18

ATC[CPT MORROW]:

If the Court basically

Is it consider ----

---- well, for purposes of the merits as just educating me?

No.

Is it evidence, Your Honor?

It would be an Appellate Exhibit.
Assuming the Court would instruct the

19

accused that it wouldn’t be considered for sentencing purposes or any

20

other purpose other than to educate the Court in crafting questions

21

that establish a factual basis for the plea, then, no, the government

22

wouldn’t have an objection.

6500

10399

MJ:

1
2

Well, let me just put out on the record where I’m looking

at going with this.

3

ATC[CPT MORROW]:

4

MJ:

Right.

Is the -- normally in these cases I would have a proffer.

5

It would be marked as an Appellate Exhibit, not a Defense Exhibit for

6

purposes of the merits.

7

of him.

8

shape our dialogue as we go back and forth.

9

my questions.

PFC Manning would have a copy of it in front

I would have a copy of it in front of me.

It would help

PFC Manning would answer

We would establish the elements of the offense and the

10

providence, what’s necessarily relevant evidence for the merits of

11

the case.

12

that.

13

that you went AWOL to see your sick mother, but it usually comes out

14

in the providence.

15

The providence inquiry sometimes goes a little beyond

For example, the standard AWOL case.

Maybe it’s not relevant

ATC[CPT MORROW]: Sure, but sometimes in those cases, there might

16

be -- you have to explore maybe the duress defense or some other

17

reason for the person not coming back at a certain time.

18

be some other circumstances in which case you may have to explore the

19

why of something rather that ----

20

MJ:

There may

But I wouldn’t normally stop an accused who was talking

21

about why he was doing certain things in a providence inquiry and

22

say, “No.

No.

Stop.

That’s not relevant to the merits.”

6501

10400

ATC[CPT MORROW]:

1

No, and the government understands that,

2

Your Honor.

That’s why it’s sort of irregular, but maybe a good

3

place to start is, I mean, if you go into the statement and you look

4

at Page 24 of the statement.

5

MJ:

6

ATC[CPT MORROW]:

7

Sorry.

I’ve got to find it myself, Your

Honor.
So Page 24, it’s Paragraph 9, at the top of the page, Your

8
9

Page 24?

Honor.

The paragraph is entitled “Facts Regarding the Unauthorized

10

Storage and Disclosure of Documents Relating to Detainments by the

11

Iraqi Federal Police, the Detainee Assessment Brief and the USASIC

12

Report.”
This is -- and so, I’m talking about Page 24 and 25 in

13
14

particular.

15

uncharged misconduct.

16

of the relevance of some of the information within the statement.

17

None of this is information that relates to any of the offenses at

18

issue in this case or the lesser included offenses.

19

the government’s sort of confused about its reason for being in

20

there, but we assume it relates to the sort of why he did something

21

else.

22

It’s two pages of the accused explaining, essentially
In that sense, that really gets to the heart

It’s not relevant at all.
MJ:

Okay.

I understand where you’re going.

6502

It’s really --

10401

1

ATC[CPT MORROW]:

At least for that piece of information.

So,

2

the government’s position there is that really we are -- if you look

3

at the statement, I’m sure you’ve read it, Your Honor, you seem to

4

read everything.

5

of information that really doesn’t relate to the facts and

6

circumstances surrounding the offenses.

7

that the providence inquiry can sometimes go into places that, you

8

know, may be somewhat attenuated from what the actual offense is, but

9

in this case, I mean, the accused is explaining some personal things

It really is comprised of multiple examples of sort

The government acknowledges

10

in his life.

11

about being an analyst, what he didn’t like about being an analyst.

12
13
14

MJ:

He’s explaining why he entered the Army, what he liked

Those are sometimes standards questions I would ask someone

before I even began a providence inquiry just to establish a rapport.
ATC[CPT MORROW]:

That’s fair enough, Your Honor.

I guess the

15

government’s position there is a lot of the information here is sort

16

of far field from even that.

17

MJ:

Okay.

I understand that.

Let’s move into -- and again, I want to hear from both

18
19

sides.

The governments already said as far -- I’m going to tailor

20

the providence inquiry to ask questions about the offenses and to be

21

on the lookout for any defenses that may be raised.

22

arguments to me about uncharged misconduct I do have a concern about,

6503

The government’s

10402

1

Mr. Coombs, and I’d like you to address that, please.

I’m not

2

interested in eliciting uncharged misconduct from PFC Manning.
Let’s move on to your second thing about documents.

3
4

ATC[CPT MORROW]:

5

MJ:

6

ATC[CPT MORROW]:

Yes.

The actual statute itself, Your Honor?

Now, you’ve charged with reason to believe.
We have, Your Honor.

We can explain that.

7

There’s been enough litigation over sort of the documents clause and

8

the intangible items clause, if you want to call it that, that the

9

government, when it wrote the specifications decided to include the

10

additional language with reason to believe such information could be

11

used to the injury of the United States.

12

MJ:

So were you charging it in the alternative?

13

ATC[CPT MORROW]:

No, it’s not in the alternative, Your Honor,

14

but it’s a -- it is -- the government thought it was prudent to

15

include that in the specifications so that there was no question that

16

all the elements, if in fact the Court decided, hey, this additional

17

requirement also applied to the documents clause that the element was

18

actually in the specification.

19

MJ:

So, as I understand the government, are you telling me that

20

you actually charged -- your intent was to charge the documents

21

clause, which wouldn’t include the reason to believe piece, because

22

that’s extraneous for the documents, including to the case law that

23

you ----

6504

10403

1

ATC[CPT MORROW]:

2

MJ:

3

You’re citing to me I believe United States v. Steele says

the same thing.

Then it’s superfluous language or are you ----

4

ATC[CPT MORROW]:

5

MJ:

6
7

That’s correct, Your Honor.

It is.

I mean, Your Honor, ----

---- saying you’re not sure if it’s tangible or intangible

and you want both on the table?
ATC[CPT MORROW]:

We want to ensure -- it is superfluous

8

language under the documents clause.

9

this case it would be superfluous language because it’s tangible

10

information.

For the information at issue in

Not orally -- not orally disclosed information.

11

MJ:

But you’ve put it in there as an element?

12

ATC[CPT MORROW]:

We did put it in there and, Your Honor, the

13

government is not taking issue with the fact that it is an element of

14

the specification as written.

15

unequivocally true.

16

providence inquiry, the accused is provident to the lesser included

17

offenses as set out by the defense, the disputed elements essentially

18

left, off the top of my head would be whether he had reason to

19

believe the information could be used to the injury of the United

20

States and then the other disputed element would be whether this was

21

national defense information.

That’s absolutely, 100 percent,

What we’re saying is that as a -- if after the

22

MJ:

Yes.

23

ATC[CPT MORROW]:

Right.

6505

10404

1

MJ:

As it related to the national defense.

2

ATC[CPT MORROW]:

3

MJ:

4

ATC[CPT MORROW]:

Related to the national defense.

And closely held as a subset.
Closely held as a subset of that, yes.

5

Closely held, might be useful to the enemy.

6

the government’s essentially request here is -- well, the accused

7

could still be found guilty of a violation of 18 United States Code

8

793, without the Court finding him -- without the Court finding that

9

the government has established that he had reason to believe that the

10
11

So with that in mind,

information could be used to the advantage of foreign entity.
MJ:

So is it the government’s position today that, going

12

forward from here, that the evidence is presented, the Court can say,

13

“I don’t believe that the reason to believe element has been proven;

14

however, that just applies to the information piece, so I’m going to

15

find him guilty except the words, ‘with reason to believe could be

16

used to the injury of the United State,’” and he’s still guilty of a

17

documentary Article -- 18 United States Code 793(e) violation?

18

ATC[CPT MORROW]:

Assuming you found him -- assuming that you

19

found that it was national defense information, Your Honor,

20

absolutely.

21

MJ:

There’s only one remaining element?

22

ATC[CPT MORROW]:

Exactly.

6506

10405

MJ:

1
2

Well, there’s two remaining elements because you’ve charged

the second one.
ATC[CPT MORROW]:

3

Yes.

There’s two remaining elements, but

4

there is a greater offense.

5

greater offense there that is still a violation of 18 United States

6

Code, Section 793.
MJ:

7
8

ATC[CPT MORROW]:
Honor.

ATC[CPT MORROW]:

MJ:

And the government is relying on both; is that what you’re

telling me?

17

ATC[CPT MORROW]:

18

MJ:

19

In the Statute they are alternate theories,

yes, Your Honor.

15
16

I guess, it would be sort of a lesser included offense or

are they alternate theories that you’re relying on?

13
14

Information includes documents, yes, Your

I don’t -- can you say that again?

MJ:

11
12

Is it the government’s position that documents are a subset

of information or are those two different things?

9
10

If the accused is provident, there is a

Relying on both, Your Honor?

The government is attempting to prove the offense in the

alternative?

20

ATC[CPT MORROW]:

21

MJ:

In the -- essen -- well, yes, Your Honor.

Is that what you’re trying to do or isn’t it?

There was

22

nothing in your request for instructions that said anything about

23

this.

6507

10406

1

ATC[CPT MORROW]:

2

MJ:

3

ATC[CPT MORROW]:

4
5

That’s correct, Your Honor.

Why not?
It was an issue that I honestly -- it’s my

fault, Your Honor, I left it out of the request for instructions.
MJ:

All right.

So just to be clear then, is the government

6

going forward on alternative theories with respect to the 793(e)

7

offenses?

8

ATC[CPT MORROW]: The government is going forward on the greater

9

offense, yes.

10

MJ:

11
12

But what it ----

What case law does the government have that there is a

greater offense and a lesser included offense under 793(e)?
ATC[CPT MORROW]:

Not a greater offense and a lesser included

13

offense under 793(e), Your Honor.

14

specification as written.

15

included offense is still a violation of 18 United States Code

16

section 793.

17

specification.

18
19

MJ:

The -- a what you might term a lesser

In the written -- as charged in the written

You’re describing the information as records for the most;

is that correct?

20

ATC[CPT MORROW]:

21

MJ:

22

The greater offense is the

Yes, Your Honor.

Then educate me once more, what was the purpose of

including the reason to believe language?

6508

10407

1

ATC[CPT MORROW]:

Your Honor, I mean, really this has been

2

challenged so much in court that it really was just a matter of the

3

government’s decision to include the additional language because,

4

number one, it’s been challenged several times.

5

every time there’s a 793 case there is a vagueness challenge.

6

government included the additional language.

7

element to prove based on -- as we’ve been sort of -- as we’ve gone

8

through this and you’ve ruled on what’s required to established

9

reason to believe.

10

MJ:

In the same way that
The

It’s not a difficult

So what the government wants me to do is to tell PFC

11

Manning that by his plea he is admitting all of the elements except

12

two, that the information relates to the national defense and that he

13

had reason to believe that he willfully communicated the information

14

which would be -- he’s already -- would be pleading guilty to the

15

communication?

16

ATC[CPT MORROW]:

17

MJ:

Yes, Your Honor.

That that was done with reason to believe the information

18

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

19

of any foreign nation; however, if the government fails to prove

20

that, I can still -- the Court, whether it’s me or members, can still

21

find PFC Manning by excepting out that language under the documents

22

clause.

Is that what the government’s arguing?

6509

10408

1

ATC[CPT MORROW]:

That’s what the government’s arguing.

Yes,

2

Your Honor.

And if the gover -- if the Court does not want to

3

instruct the accused at that point during this providence inquiry, we

4

would at least -- the government would at least ask that that

5

instruction be given or you wouldn’t need to instruct at trial ----

6

MJ:

7

ATC[CPT MORROW]:

8

MJ:

9

ATC[CPT MORROW]:

10

MJ:

If I’m ------- but at least ----

If this is a -- I’ve got notice of a forum.
Exactly.

But it hasn’t actually been done yet, but even if I would

11

instruct the members, if I were the fact finder, I would certainly

12

follow the instruction that I would give to the members.

13

ATC[CPT MORROW]:

14

members.

15

MJ:

Yes.

If that was the case.

If there were

Whatever elements -- The accused’s plea establishes and

16

whatever elements are left I’m going to be talking to PFC Manning

17

about in 2 days.

18

ATC[CPT MORROW]:

Yes, Your Honor.

Really that was all -- it

19

was really the intent of the government by putting in this request

20

early to ensure that all the parties were the same as Major Fein

21

said, operating in the same environment.

22

consequence, I mean, a plea has a consequence and a violation of 793

6510

It does have -- it is a

10409

1

is still a 10-year offense.

2

year offense.

3

MJ:

What PFC Manning is pleading to is a 2-

I’d like to the parties, both sides, to address this.

4

Assuming I give -- I tell PFC Manning exactly what you just said, do

5

the parties believe that by his plea he is -- he’ll be establishing

6

the res of what is communicated, “I communicated more than one

7

classified -- “well, let’s not use that one, the combined information

8

data network agency thereof, to wit:

9

network exchange Iraq database.

the combined information data

Now, that says what is communicated.

10

That does not -- do the parties believe that by that PFC Manning is

11

admitting that it’s a document or its information for purposes of

12

793(e)?

I mean, he’s communicating the thing.

ATC[CPT MORROW]:

13

Yes, Your Honor. At that point I think that

14

he would be admitting that he communicated the thing, the tangible

15

item.

16

MJ:

Because for the lesser included offense that he’s pleading

17

guilty to, does it make any difference whether it’s information or

18

whether it’s a document?

19

ATC[CPT MORROW]:

No, Your Honor.

He’s communicating the

20

thing, so it would be a common fact or element.

21

fact for the greater offense.

22
23

MJ:

It would be a common

So does the government believe that one of the remaining

elements that would still have to be proved then would be that it’s

6511

10410

1

either information or that it’s documents or are the other pieces of

2

information -- well, in this case, he drew a lot of records, so it

3

would be that portion of the statute.

4

ATC[CPT MORROW]:

No, Your Honor.

I think that’s -- if it’s

5

established that he transmitted or willfully communicated a thing, a

6

tangible item, then that would be -- there would be no further need

7

to prove that it was documentary information.

8
9

MJ:

So the only two elements -- well, the only potential

elements at issue would be whether it related to the national

10

defense, which is for both information, intangible and tangible

11

information.

12

ATC[CPT MORROW]:

13

MJ:

Yes.

And if it’s tangible information or as the statute

14

describes it, they have a number of ways to describe it, the it’s --

15

the reason to believe element wouldn’t apply?

16
17
18

ATC[CPT MORROW]:

That’s correct, Your Honor.

The additional

requirement wouldn’t apply -- would not apply.
MJ:

Okay.

Now, you talked earlier about sentencing.

Now, what

19

-- I thought I heard a government objection to sentencing because the

20

accused can provide an oral or written statement either under oath,

21

sworn or unsworn in sentencing.

22

ATC[CPT MORROW]:

23

MJ:

Yes, Your Honor.

So what’s wrong with this statement in sentencing?

6512

10411

1

ATC[CPT MORROW]:

It goes back to the nexus between what the

2

accused is providing and what is a fact or circumstance surrounding

3

the offense.

4

because it’s so far afield from the facts and circumstances

5

surrounding the actual offenses, that the information should not be

6

-- essentially the statement should not be used at sentencing.

7
8
9

MJ:

The government’s position here is the statement itself,

What part of the statement would be inadmissible in

sentencing?
ATC[CPT MORROW]:

It’s not that it’s inadmissible, Your Honor,

10

but this goes back to if something is not related to the facts and --

11

it’s not relevant on the merits.

12

and circumstances surrounding the offenses, then what essentially

13

this statement does is it is available to the accused on sentencing

14

without the government’s ability to cross-examine the accused.

15

essentially there.

16

testimony without ----

If it’s not related to the facts

It’s a matter of -- it’s essentially sworn

17

MJ:

I see what you mean.

18

ATC[CPT MORROW]:

19

MJ:

---- the cross-examination.

So if he didn’t say it was under oath and just made a

20

statement and said, Bradley Manning, then it would be an unsworn

21

statement?

6513

It’s

10412

1

ATC[CPT MORROW]:

Right, Your Honor.

At that point there --

2

it would essentially, but it might be available and to that point the

3

government would still have the ability to rebut the statement.

4

MJ:

Rebut the factual information in the statement ----

5

ATC[CPT MORROW]:

6

MJ:

7

ATC[CPT MORROW]:

Exactly.

Yes.

---- but not be able to cross-examine PFC Manning?
Yes, Your Honor.

And this goes -- and so

8

going full circle back to what you started with.

If this isn’t -- if

9

this is something that the Court’s going to read and it’s not

10

evidence and it’s established -- it helps support and establish

11

rapport during the providency inquiry but it’s not -- you know, it’s

12

not admitted as a defense exhibit, it’s not evidence.

13

-- a lot of the government’s concerns are alleviated.

14
15

MJ:

Let me just look through your motion one more time to see

if there is anything that I have here.
All right.

16

The government

17

ATC[CPT MORROW]:

18

MJ:

19

CDC[MR. COOMBS]:

It’s a long motion.

I think I understand the government’s position.
Thank you, Your Honor.

Mr. Coombs?
Your Honor, first with regards to just the

20

marking of it, it was marked as a defense exhibit only because that

21

seemed to be the most logical way, but not with any intent or goal to

22

have it be admissible evidence in the merits.

23

the providence inquiry statement, in this instance, is because it is

6514

Our position is that

10413

1

in our parlance a naked plea.

Normally, if you have a plea that is

2

part of a pretrial agreement, obviously you’re going to have a stip

3

of fact and that’s going to help formulate the circumstances around

4

the offense for the Court to understand what happened, and then

5

formulate the questions for the providence inquiry.

6

have a pretrial agreement, obviously you don’t have stip of fact,

7

that’s where a statement from the accused in this case, PFC Manning,

8

is helpful.

9

be used by the Court during the providence inquiry and then also

When you don’t

Now, in this instance the statement is being offered to

10

obviously anything that’s said during the providence inquiry can be

11

considered by the Court in sentencing.

12

MJ:

Let me ask you a question on that.

13

CDC[MR. COOMBS]:

14

MJ:

Sure.

I remember I put out in the beginning here I’m not aware of

15

any authority that allows you to put in a sworn statement as part of

16

-- for me to use as providence inquiry for PFC Manning, a sworn

17

written statement.

18

get an unsigned version that I can use and PFC Manning can use during

19

the providence inquiry to understand the factual interplay and then I

20

can ask him questions.

21

whatever is on the record in the providence inquiry is what can be

22

used at sentencing.

I said earlier, my intent would be to preferably

We can get all of this on the record, and

6515

10414

1

CDC[MR. COOMBS]:

Well, the authority -- we cite the Irwin

2

case in our motion, where in that instance you also had a guilty plea

3

without the benefit of pretrial agreement and without the benefit of

4

a stip of fact.

5

The whole reason here it’s under oath is because anything he says has

6

to be under oath during the providence inquiry.

7

accused went on and discussed the when, why, how of his offense and

8

he went on two times for three pages and six pages consecutively

9

without the Court’s interruption.

There, although not written, it’s still under oath.

But there the

The defense’s position is when the

10

accused is pleading guilty, he or she has the ability to convey to

11

the Court why they believe they’re guilty.

12

requirements of the Court, to get from the accused’s own words why

13

the accused believes he or she is guilty of an offense.

14

to submit a statement to the Court, we would say, falls under the

15

authority of the accused -- well, actually the requirements of the

16

Court to get from the accused’s own words why he or she believes

17

they’re guilty.

18

That’s one of the

The ability

Again, the main concern by the government seems to be that

19

we’re trying to circumvent cross-examination by offering this

20

information.

21

going to be used for the merits.

22

going to try to offer something as -- you still have the requirements

23

under R.C.M. 1001 to have it fit within something that the Court

That’s simply not the case because obviously it’s not
Even in sentencing, if we were

6516

10415

1

could consider if you’re going to argue it for a mitigating

2

circumstance or an aggravating circumstance.

3

Irwin case the government said, “Hey, what he said during the

4

providence inquiry is helpful.

5

aggravating circumstance.”

6

MJ:

It just so happens in

We would like to use that as an

The Court said that was permissible.

That’s true for an aggravating circumstance, but is there

7

any case authority that the defense can cite to me -- normally the

8

accused has an opportunity to make a sworn statement, which if he

9

does, it’s subject to cross-examination by the government.

10

CDC[MR. COOMBS]:

11

MJ:

12

CDC[MR. COOMBS]:

13

MJ:

Yes, Your Honor.

Or an unsworn statement or no statement.
Yes, Your Honor.

So is there any case that you can cite to me where the

14

defense has gone back to the providence inquiry and tried to use

15

something for mitigation or extenuation?

16

CDC[MR. COOMBS]:

17

MJ:

18

CDC[MR. COOMBS]:

Well, I mean, just from ----

It’s not subject to cross-examination.
Just from anecdotal, I mean, anything that

19

the Court considers or receives from a providence inquiry can be

20

considered in formulating an appropriate sentence.

21

is not necessarily information, often times I have done in the past

22

talking about the accused’s answering a Court’s questions during the

23

providence inquiring in a very straight forward manner.

6517

Even though this

I’m not --

10416

1

the Court not having to pull from the accused why he or she is

2

guilty, that as a mitigating circumstance.

3

example of using the providence inquiry for the actual sentencing.

So that would be an

4

MJ:

5

members case.

6

providence inquiry, so if either side wanted to use it, they would

7

have to somehow bring that information before the members.

8

any authority for the defense being able to go back and say, “Well,

9

this was all said under oath, so therefore it’s a sworn statement and

10

members, here you go,” because it’s not subject to cross-examination.

11

But I guess the better example would be, assume this is a
In a members case the members weren’t there for the

CDC[MR. COOMBS]:

Is there

Well, I mean, in that instance, I think if

12

you were -- if you’re trying to bring something from the providence

13

inquiry in front of the members -- well, you could play a portion of

14

the providence inquiry for the members or if you had somebody in the

15

courtroom, you could put them under oath, if for some reason you

16

didn’t want to put the accused on the stand in order to testify to

17

that same factor.

18

MJ:

In every case that at least I’m aware of it’s been the

19

government that’s used it for aggravation.

20

authority that would let the defense do that.

21

wants to bring something under oath, in sentencing has to testify

22

under oath.

6518

I’m not aware of any
The accused, if he

10417

CDC[MR. COOMBS]:

1

Well, again -- well, it does -- yeah, if you

2

want to bring it under oath during sentencing, sure.

3

instance you’d be offering something from the providence inquiry.

4

wouldn’t have the same effect of testimony or oath during sentencing.

5

The only requirement or limitation under Holt would be whether or not

6

it fits within R.C.M. 1001.

7

wanted offers ----

8

MJ:

9

CDC[MR. COOMBS]:

In this
It

There it would be offered -- like we

It would be hearsay.
Well, no, not -- well, again, if you were

10

offering a portion of the providence inquiry statement and you’re

11

having somebody come up and testify to it, or you’re playing a

12

portion of that, that wouldn’t be under oath during the sentencing,

13

no.

14

rules to be relaxed in order to bring that portion of information in.

15

That’s how you would bring it in.

16

issue here is because one of the requirement under providence inquiry

17

before you ask questions, you need to be put under oath.

18

statement isn’t a sworn statement.

19

that’s offered to the Court, but PFC Manning will adopt it under oath

20

so that there now appears the protections for the government.

21

there is anything that is false in it, the Court obviously will

22

inform PFC Manning that he could be charged with perjury for anything

23

that might be false in that statement.

If the defense wanted to bring it in, they’d have to ask the

6519

The only reason we have an oath

Here the

It’s not an under oath statement

If

If the government has some

10418

1

information to rebut that, certainly during sentencing they could

2

offer rebuttal information.

3

MJ:

Mr. Coombs, here’s what I’m going to do with this, I’m

4

going to -- I would like an unsigned version of the statement that I

5

can use during the providence inquiry.

6

of the statement too.

7

PFC Manning and I during our discussions, he can have some latitude

8

in explaining when we go through our questions, but he’s going to do

9

it orally.

10
11

PFC Manning will have a copy

We’ll go through our questions.

You can --

I don’t want any sworn, written statements in the

providency.
CDC[MR. COOMBS]:

On that, there is a logistical problem.

PFC

12

Manning created the statement, he typed the statement, so there is no

13

existence of that statement other than PFC Manning’s typed version of

14

the statement, and then copies of his typed version.

15

MJ:

Okay.

Then white out the signature block.

16

CDC[MR. COOMBS]:

Okay.

I mean, if that’s -- that’s what I’m

17

saying is the logistical issue.

18

the Court wanted PFC Manning to read that statement.

19

still want him to read that statement?

20

MJ:

Then the defense’s understanding is
Does the Court

I would prefer that PFC Manning answer my questions.

21

going to give latitude in the providence inquiry.

22

goes a little bit beyond, but it does have to be tied to the

23

offenses.

I am

I understand it

To the extent that PFC Manning’s statement has nothing to

6520

10419

1

do with the offenses, he can read -- try to read it, but I’m going to

2

stop him.

3

CDC[MR. COOMBS]:

And in that instance, with regards to his

4

statement, everything in that statement is either -- in the defense’s

5

position is either directly related to the offense that he’s pleading

6

guilty to, or explains the why.

7

which the defense’s position is he would be able to explain that to

8

the Court.

9

from him in order to ensure he’s giving a knowing, voluntary and

10
11

The why he committed the offense,

In fact, that is something that the Court should draw

intelligent plea.
MJ:

Okay.

The documents that we use will be -- or at least the

12

one before the Court that will be marked as an Appellate Exhibit will

13

be unsigned.

14

read the statements, you can go ahead and -- I don’t want to have a

15

straight narrative all the way through, but in response to some of my

16

questions, he can certainly refer to it.

17

We’ll go back and forth.

CDC[MR. COOMBS]:

Defense, if you want him to

No, I mean, that was just -- the defense’s

18

position on that was we didn’t -- it didn’t matter to use whether or

19

not the Court just read it or PFC Manning read it.

20

was in a previous 802 the Court indicated, you were implying you want

21

him to read it.

22

the Court to read it specifically.

23

MJ:

My understanding

We’re not asking for either him to read it or for

You mean out loud?

6521

10420

CDC[MR. COOMBS]:

1

The defense’s understanding based upon the

2

previous 802, was that the Court would have PFC Manning read the

3

statement out loud.

4

that’s the Court’s desire, PFC Manning would read the statement out

5

loud.

The defense is not requesting that, but if

The statement was really created by PFC Manning in order to

6
7

give the Court background facts, in order to inform the Court of the

8

circumstances surrounding the offenses he’s pleading to so that you

9

could ask your providence inquiry questions.

We’re not asking for a

10

specific right of PFC Manning to read it, just simply indicating

11

that my understanding was that the Court wanted him to read it.

12

prepared to do so.

13

MJ:

14

on that.

15

his answers to my questions.

16

PFC Manning’s plea.

CDC[MR. COOMBS]:

I will use it to educate myself as to

Yes.

Now, with -- certainly the government

can look at it as other bad acts issue.
MJ:

21
22

I mean, he could certainly use it at this point to shape

what Captain Morrow brought up about uncharged misconduct?

19
20

Let me take another look at it tonight and get back to you

Now, what’s the position of the defense now with respect to

17
18

He’s

It would fall ----

What are we talking about just so I can see an example of

this?

6522

10421

1
2

CDC[MR. COOMBS]:

That’s the example that they pointed with

regards to the federal police -- I believe that was on page ----

3

ATC[CPT MORROW]:

4

MJ:

5

CDC[MR. COOMBS]:

24?

Page 24, Your Honor.

Okay.
---- 24 and 25.

That circumstance there and

6

there are some other testimony that will be elicited from various

7

witnesses to corroborate this instance, but this goes into the why as

8

part of his why of why he would have released certain information to

9

WikiLeaks.
Now, sometimes when an accused explains the why in a

10
11

providence inquiry that may be an aggravating factor, and that may

12

also relay uncharged misconduct.

13

normally the Court will say, “I’m not going to consider that,” but

14

not required to I guess.

When it’s in a stip of fact,

15

In this instance, even though this technically is uncharged

16

misconduct, the defense’s position is that it explains the why of the

17

offense and we recognize that it is uncharged misconduct, but we

18

don’t believe that it’s damaging to PFC Manning.

19

MJ:

So if PFC Manning starts talking to me about what’s here on

20

Page 24 and 25, is the defense waiving any challenge on appeal that I

21

am trying to elicit uncharged misconduct?

22

CDC[MR. COOMBS]:

23

MJ:

Yes, Your Honor.

And has the defense and PFC Manning talked about this?

6523

10422

CDC[MR. COOMBS]:

1

Yes, Your Honor.

We’ve gone through -- PFC

2

Manning did an initial written version and in that, as I said in my

3

response motion, there was a lot of information that I conveyed to

4

him that needs to come out.

5

it.

6

written version is information that the defense is waiving any

7

objection to the Court considering it.

8
9
10

We went through and already word-smithed

What’s remaining in his statement that he typed from his hand

MJ:

PFC Manning, you just heard what the -- the communication

that Mr. Coombs and I just had with respect to uncharged misconduct.
Do you know what uncharged misconduct is?

11

ACC: Yes, Your Honor.

12

MJ:

13

ACC: Uncharged misconduct is the offenses that I have not been

What is it?

14

charged with.

15

MJ:

Let me just give you an example for -- a very simple

16

example.

I’m talking to someone who’s been charged with using

17

marijuana.

18

dialogue with the person about distributing the marijuana, I’m really

19

going beyond where I need to be going to establish the fact that he

20

only used marijuana.

21

up announcing, “Objection.

22

with distributing.”

23

The person also distributes it.

If I’m going into a

Normally, a defense counsel would be standing
Objection.

Objection.

He’s not charged

I would be reined in, if you will.

ACC: Yes, Your Honor.

6524

10423

1

MJ:

2

go both ways.

3

explain why you did what you did.

There may be uncharged misconduct, but they may also

Have you had conversations with Mr. Coombs about your

4
5

In your particular case, sometimes you can have things that

statement?

6

ACC: Yes, Your Honor.

7

MJ:

Do you -- you just heard me ask Mr. Coombs if he waived any

8

issues of uncharged misconduct with your statement.

What waiving

9

means is you give up your right to contest that on appeal.

If it

10

gets to appeal, the appellate courts will say, “Oh, they waived

11

that,” so even it was an error it doesn’t matter.

12

ACC: Yes, Your Honor.

13

MJ:

14

ACC: Yes, Your Honor.

15

MJ:

16

Do you understand that?

Do you agree to -- with Mr. Coombs, to waive any M.R.E.

404(b) uncharged misconduct issues with respect to your statement?

17

ACC: Yes, Your Honor.

18

MJ:

19

CDC[MR. COOMBS]:

Okay.

Proceed, Mr. Coombs.
Your Honor, clearly the Court can consider

20

this in the providence inquiry, and then again the Court can consider

21

any statements made by PFC Manning during sentencing.

22

defense’s position, that’s all we’re requesting the Court to do.

23

We’re not asking, again, for this to be considered on the merits.

6525

From the

10424

Subject to your questions on that portion, there’s really

1
2
3

nothing else that the defense has to say on that statement.
MJ:

Based on the filings, I just want to ask both sides this

4

question.

My understanding of the law is that PFC Manning can plead

5

guilty to lesser included offenses.

6

establishes elements a, b, c and d of the lesser included offense and

7

the ones left over are elements e and f.

8

to prove elements a, b, d, and e because you’ve already admitted to

9

them in your plea, but during the merits portion of the case, I can’t

I advise him that that

The government doesn’t have

10

consider anything he said to prove the greater elements or another

11

offense.

12

CDC[MR. COOMBS]:

13

MJ:

14

ATC[CPT MORROW]:

15

MJ:

16
17

All right.

That is correct, Your Honor.
Is that the government’s understanding?
We agree, Your Honor.

Okay. I wasn’t sure on the pleadings whether there was a

meeting of the minds with respect to that.
ATC[CPT MORROW]: That issue never came up.

It wasn’t part of

18

our pleading. The defense certainly raised that, but we agree that it

19

can’t be used for the contested elements.

20

MJ:

Okay.

Now, Mr. Coombs, we haven’t gotten to the portion of

21

the government’s argument that says that these are actually documents

22

as opposed to intangible information.

23

the intangible piece that carries the reason to believe element with

6526

The intangible piece -- it’s

10425

1

it and the reason to believe mens rea with it, not the documents

2

piece according to the case law as I understand it.

3

with that?

4

CDC[MR. COOMBS]:

Do you agree

I agree with that Rosen and Drake lay out

5

the what is the so called documents clause and information clause.

6

The idea that the information clause is the only one that carries

7

with it the reason to believe added mens rea requirement.

8
9
10
11

MJ:

I believe there’s a third -- there’s a keynote case out of

the Third Circuit and Steele from the Army Court of Criminal Appeals
said the same thing.
CDC[MR. COOMBS]:

Yes.

The Steele case though, the

12

unpublished opinion, kind of highlights a confusion with in the

13

military jurisprudence.

14

these cases a recognized documents clause, information clause and

15

only information clause carries the greater mens rea, when you look

16

at Diaz, and Diaz involved a, as the Court knows, an individual who

17

actually printed something off of the JDAMS for GTMO, cut up the

18

names and then mailed it.

19

that you had to show an evil intent.

20

rea requirement contained in 793(e) is clear.

21

element of bad faith or ill intent.

22

793(e) pertains to whoever having information related to the national

23

defense, which information the possessor has reason to believe could

Even though there is this -- at least from

There the issue was the defense arguing

6527

C.A.A.F. in Diaz said the mens
It does not include an

The mens rea prescription in

10426

1

be used to the injury of the United States or to the advantage of a

2

foreign nation, willfully communicates, delivers, transmits.

3

critical language, of course, is the accused had reason to believe,

4

could be used.

The

So Diaz doesn’t lay out this idea of a documents clause,

5
6

information clause distinction.

This is really a creation of a few

7

of the circuit courts.

8

believed that there was a need to charge this in a way that included

9

the reason to believe language.

That might have gotten to why the government

The Steele case, which was an unpublished opinion case,

10
11

goes through the idea and points to Rosen and Drake and repeats this

12

principle of a documents clause, information clause.

13

up -- after doing all of that, they end up going back to -- in this

14

instance saying essentially the documents clause provision is what

15

was proven.

16

nature of the information amply demonstrated the appellant had reason

17

to believe it could be used to the injury of the United States or to

18

the advantage of any foreign nation.

19

793(e) was clearly met.”

20

whole discussion of document clause, information clause, they end up

21

going with the information clause.

22

lay out an opinion, at least, that they thought it was all documents,

23

tangible.

Then they end

Their exact language is, “The evidence regarding the

The mens rea requirement of

Even in Steele after they go through the

6528

Even though within the facts they

10427

That leads to kind of a second confusion area, this idea of

1
2

tangible, intangible.

The Court asked is there still a requirement

3

to prove its document or intangible or information that he’s being

4

charged with.

5

documents, writing, code book, signal book, sketch, photograph, blue

6

print, plan, map, model instruction, and then information that the

7

accessor has reason to believe could be used.

8

this distinction between document and information clause then make it

9

a distinction between tangible and intangible.

When you look at 793, 793 lays out two types of NDI,

The cases that made

There the defense’s

10

argument is in this instance we’re dealing with all intangible

11

information, information that exists in ones and zeros.

12

when you print it out that you have now a document that would fit

13

within what would be considered a documents clause, provision.

14

That’s one wrinkle to a problem here that still is intangible.

15

would be the information and the reason to believe requirement.

It’s only

It

The other problem is, at least our highest court, in Diaz

16
17

dealing with a document, clearly a document is this is something that

18

was printed out and then cut into just the names, put into a card and

19

then sent.

20

C.A.A.F. indicated that the 793(e) mens rea was the reason to

21

believe.

22

MJ:

Without a shadow of a doubt, that’s a document.

Yet,

But that wasn’t what was at issue in Diaz though, right?

6529

10428

1

CDC[MR. COOMBS]:

What was at issue in Diaz was whether or not

2

you had the added requirement of showing an evil intent.

Even though

3

that wasn’t central an issue in Diaz, the Court spells out what they

4

believe the mens rea contained in 793 is clear.

5

the bad faith, ill intent; it does require information related to

6

national defense information being in the possession of -- the reason

7

to believe.

8

you need to prove reason to believe.

9

information clause had some sway in military jurisprudence, you would

It doesn’t require

They indicate that the 793 requirement is clear, that
If the documents clause,

10

expect the Court here to say, “Not only are you wrong about evil

11

intent, but you’re also missing the boat on even the requirement to

12

show reason to believe.”

13

applies to information.

14

sent, so you fall under the documents clause.

You don’t need to show that.

That only

You have a document that you cut up and

The defense’s position is this should have been something

15
16

that litigated a long time ago, if the government was in fact trying

17

to either plea in the alternative or rely upon a variance for failure

18

of proof.

19

reason to believe.

20

MJ:

Having not done that they pled it, they own it, it’s

Well, this creates -- this presents a dilemma for the

21

Court, because normally in a situation like this -- because I agree

22

with you, there was nothing in the proposed instructions whatsoever

23

to lead the Court to indicate that the government was going on

6530

10429

1

alternative theories or anything else like that.

2

have the parties brief the issue and decide this or have it addressed

3

at the next Article 39(a) session.

4

Manning’s plea?

5

does the -- does that issue impact on the plea?

6

Normally, I would

Where does that put us with PFC

Is there a way to take the plea -- or is there --

CDC[MR. COOMBS]:

It does not, Your Honor.

This is an issue

7

that I have covered with PFC Manning, the difference between

8

documents clause, information clause, the fact that the government’s

9

position is such that if they fail to prove the reason to believe,

10

they would still be arguing that, “Okay, you can just strike that

11

from the specification, just mark through it and we still have a

12

completed 793, which carries with it a 10-year max.”

13

understands the difference and understands that I’m arguing that

14

documents clause, information clause shouldn’t be applicable here.

15

MJ:

PFC Manning

Does the defense have any objection then, when I speak with

16

PFC Manning, if we have that discussion that there’s a possibility --

17

the government’s arguing -- they’ve charged documents, which doesn’t

18

require a reason to believe -- that PFC Manning had a reason to

19

believe that the communication could cause harm -- let me get the

20

actual language here.

21

CDC[MR. COOMBS]:

Your Honor, in your definition it means the

22

accused knew facts from which he concluded or reasonably should have

23

concluded the information could be used for a prohibited purpose,

6531

10430

1

that’s the reason to believe.

2

the offense ---MJ:

3

Then under the actual requirement to

Yeah, that the accused had reason -- that knew facts from

4

which he concluded or reasonably should have concluded that the

5

information could be used for prohibited purpose.

6

element.

The elements says ----

7

CDC[MR. COOMBS]:

8

MJ:

9

That’s not the

That’s the definition of reason to believe.

The accused had reason to believe classified records,

classified memorandum, videos and files described for each

10

specification could be used to the injury of the united States for

11

the advantage of any foreign nation.

12

CDC[MR. COOMBS]:

13

MJ:

Right, Your Honor.

Now, if I speak with PFC Manning and I say -- this is still

14

-- I just asked the parties to brief this issue and I could go either

15

way.

16

left, potentially.

There may be one element left or there may be two elements
Do you think that that impacts on the plea?

17

CDC[MR. COOMBS]:

18

MJ:

19

ATC[CPT MORROW]:

20
21
22

No, Your Honor.

Government?
If the defense doesn’t believe it impacts

the plea then we don’t.
MJ:

PFC Manning, you’ve just been listening to our discussion.

Please advise me what your understanding is of 18 United States Code

6532

10431

1

793(e) with respect to tangible versus intangible or documents versus

2

information.
ACC: Well, the documents would be tangible objects.

3

Like this

4

sheet of paper [holding up paper] would be a document.

5

intangible things would be sort of the zeros and ones, the digital

6

media type information or verbal.

7

well.

8
9

MJ:

Okay.

The

It could be communicated orally as

So do you understand what the parties -- what your

defense is arguing and what the government is arguing?

Your defense

10

is arguing that under military jurisprudence it doesn’t matter

11

whether it’s documents or it’s intangible, it still requires that you

12

had reason to believe that the information could be used to the

13

injury of the United States or the advantage of any foreign nation?

14

ACC: Correct, ma’am

15

MJ:

Correct.

The government’s position is the documents, they can sever

16

that element out and you’re still -- you can still be found guilty of

17

the offense.

Do you understand that?

18

ACC: Yes, Your Honor.

19

MJ:

Right now I haven’t ruled on that because I’ve asked the

20

parties to brief that issue because it just appeared before me with

21

respect to your plea.

22

ACC: Okay.

I could go either way.

Yes, Your Honor.

6533

10432

MJ:

1

Now, I want you and your defense counsel to talk about

2

this.

You could do it over the overnight recess and when I ask you

3

tomorrow if you still want to plead guilty, I just want to make sure

4

-- well, do you understand what’s at issue?

5

ACC: Thursday, Your Honor.

6

MJ:

I understand that.

All right.

We’ll talk about it --

7

well, your counsel will tell me if we’re still going to go forward on

8

Thursday, but we can -- I’ll ask you on Thursday if you still want to

9

go forward with your plea understanding that this issue is still up

10

in the air.

There may be one element or there may be two that the

11

government is required to prove.

12

ACC: Yes, Your Honor.

13

MJ:

14

ACC: Yes, I do, Your Honor.

15

MJ:

So you understand the issue?

So then, why don’t you all discuss it and then you can come

16

back to me either tomorrow or Thursday morning on whether you desire

17

to still go forward with the plea.

18

until the next session after this issue is litigated, I’m perfectly

19

happy to do that as well.

20

go forward with this session.

21

CDC[MR. COOMBS]:

22

MJ:

23

All right.

You know, if you desire to wait

If it doesn’t impact the plea, then we can

Yes, Your Honor.
Is there anything else we need to address with

respect to this motion?

6534

10433

1

ATC[CPT MORROW]:

2

MJ:

3
4

Yes.

Just a couple of things, Your Honor.

Well, first of all does the government have any

objection if PFC Manning reads his statement?
ATC[CPT MORROW]:

Yes, Your Honor.

Part of this is -- and

5

that’s actually -- that’s why we filed the motion in the first place,

6

Your Honor, because the script -- the defense script included the

7

potentially note or place for the accused to read the statement under

8

oath as part of the providence inquiry.

9
10
11
12

MJ:

No.

Oh, read the statement under oath.

ATC[CPT MORROW]:

Okay.

So that’s why we decided to file the motion

in the first place.
MJ:

Well, assume -- okay.

After we discussed all of this

13

today, PFC Manning waives objection to uncharged misconduct.

What

14

does the government say -- and I say, “PFC Manning, let’s lay out the

15

--“ PFC Manning says, “I want to answer your questions, but I also

16

want to read this statement that I’ve prepared in support of why I’m

17

guilty to these offenses.”

18

ATC[CPT MORROW]:

What’s the government’s objection?

That goes back to the original purpose of

19

the filing, Your Honor.

The government’s position is that the

20

information within there -- I know we talk a lot about why and the

21

defense said he has a -- should have the opportunity to explain to

22

the Court why he believes he’s guilty, then that turned into now he

23

should have the opportunity to explain to the Court why he did what

6535

10434

1

he did.

2

the information relating to the Iraqi Federal Police or whatever, was

3

a reason why he did something, but it’s not uncharged misconduct and

4

they don’t believe it’s uncharged misconduct, then it has to be

5

something else, right?

6

perspective they think that’s extenuation or mitigation. In that

7

case, then you’ve just moved a statement over to sentencing that --

8

without the government having the ability to cross-examine on it.
MJ:

9

If they think that something in the statement, specifically

The government’s position is that from their

Well, let’s follow that.

I mean, assuming -- is there any

10

prohibition in a dialogue between a military judge and an accused in

11

a providence inquiry of potentially having mitigating issues come

12

out.

13

drinking, they were ----

14

A lot of people say they weren’t thinking straight, they were

ATC[CPT MORROW]:

Your Honor, I absolutely agree that in the

15

context of a providence inquiry the give and take between a judge

16

that there will be probably some aggravation and some mitigation

17

listed during the inquiry.

18

highly irregular for the accused to be sworn and then to read a

19

written, prepared statement into the record prior to any colloquy

20

with the judge.

21

proceeding.

22

MJ:

The government’s position is that it is

It introduces irrelevant matters into the

Point me once again to the irrelevant matters.

6536

10435

1
2

ATC[CPT MORROW]:

that Page 24 and Page 25 are irrelevant.

3

MJ:

4

ATC[CPT MORROW]:

5

Okay.

What else?

MJ:

7

ATC[CPT MORROW]:

Okay.
I’ll have to go through our brief, Your

Honor, quickly.
The accused writes in Paragraph 6(j) -- do you have copy of

9
10

Some of the stuff is cited in the

government’s brief, Your Honor.

6

8

Well, Your Honor, we would still maintain

the statement, Your Honor?

11

MJ:

Yes.

12

ATC[CPT MORROW]:

The accused writes in Paragraph 6(j), “I

13

believe that the general public, especially the American public had

14

access to the information contained within in CIDNE, this could spark

15

a domestic debate on the role of the military on foreign policy in

16

general.”
Moving on to paragraphs 8(w) and 8(x) ----

17
18

MJ:

Well, let’s talk about 6(j) for a minute.

Defense, I’d

19

like your perspective on this as well.

20

of the -- one of the elements is that the conduct has to be prejudice

21

to good order and disciple or service discrediting.

22

all sorts of testimony that all of this would have been -- created a

23

debate and done all of that kind of thing, don’t I need to go --

6537

If we go through a plea, one

If I’m getting

10436

1

right now I have the statement.

2

and as an Appellate Exhibit.

3

the providence inquiry, do I not have to address this with PFC

4

Manning?

5

It’s been added as a Defense Exhibit

I know it exists.

So for purposes of

Is this service discrediting?

CDC[MR. COOMBS]:

That’s certainly something I considered,

6

Your Honor, because it certainly raises the issue of a defense to

7

whether it’s service discrediting.

8

MJ:

What else?

9
10

Or whether he’s pleading guilty to that element.

ATC[CPT MORROW]:

Paragraphs 8(w) and 8(x), Your Honor.

It’s

11

cited in the government’s brief at Page 4.

12

I stayed in frequent contact with Nathaniel.

13

a daily basis and I felt we were developing a friendship.

14

conversations covered many topics and I enjoyed the ability to talk

15

about pretty much anything and not just the publications that the

16

WikiLeaks organization was working on.

17

realize these dynamics were artificial and were valued more by myself

18

then Nathanial.”

19

MJ:

20

ATC[CPT MORROW]:

21
22
23

All right.

“Over the next few months
We conversed on nearly
The

In retrospect, I realize I

What’s the objection?
I guess the objection is relevance, Your

Honor.
MJ:

Well, what’s the prejudice to the government if he talks

about that?

6538

10437

ATC[CPT MORROW]: Your Honor, I mean, I can’t really articulate

1
2

an absolute prejudice.

3

the proceedings.
MJ:

4

It’s an irregular -- it’s an irregularity in

Well, I have the government’s brief.

I’ll go through it

5

and I’ll look through those portions of the statements.

6

that might be -- it’s just me from the government’s perspective is

7

perhaps you can go through the statement and look for issues that --

8

like the service discrediting issue I just raised that you might want

9

to bring to the attention of the Court.
ATC[CPT MORROW]:

10
11

Essentially we’ve done

that -- some of that already.
MJ:

12
13

Yes, Your Honor.

One thing

But do you see where I’m going with this?

As opposed to

not talking about it, perhaps I needed to talk about it.
ATC[CPT MORROW]:

14

I agree.

It certainly has to be explored

Again, this was raised because it became part of the -- it was

15

now.

16

part of the defense proposed script and it was going to be something

17

read under oath during the inquiry, without the give and take

18

necessary as a part of providence.

19

MJ:

All right.

20

ATC[CPT MORROW]:

Captain Morrow, thank you.

Anything else?

Just two other things very briefly.

We got

21

the charge sheet from Steele and that specification as it was written

22

actually included the reason to believe, so that’s why they -- in

6539

10438

1

that case they discussed reason to believe as part of the discussion

2

in the case.

3

MJ:

Did the Diaz specification?

4

ATC[CPT MORROW]:

We can probably get that, Your Honor. I’m

5

sure we have that in our record.

6

it probably included that as well.

7

MJ:

I’m actually pretty confident that

Well, you know we don’t have to address that this session

8

because I’m going to actually put that on the record for the next

9

Article 39(a) session.

10

ATC[CPT MORROW]:

11

MJ:

12
13

I agree, Your Honor.

I prefer that the parties have an opportunity to look

through this and brief this in more than a day.
ATC[CPT MORROW]:

I agree, Your Honor.

Just for the Court’s

14

-- we also, and this is cited in the brief, but we initially raised

15

this issue on 16 November, so it was part of the -- when the Court

16

asked for additional briefs on the -- what would be the maximum

17

punishment for the lesser included offenses, we included this, sort

18

of this mini brief within those specifications.

19
20

MJ:

Okay.

Well, do me a favor, when you brief this brief, cut

and paste that piece into it and just tell me what you said ----

21

ATC[CPT MORROW]:

We did.

That’s essentially what ----

22

MJ:

23

ATC[CPT MORROW]: That’s essentially what we did in this.

---- so I don’t have to go back and cross reference.

6540

10439

1

MJ:

2

ATC[CPT MORROW]:

3

MJ:

4

ATC[CPT MORROW]:

5

MJ:

6

ATC[CPT MORROW]:

7

MJ:

8

ATC[CPT MORROW]:

9

MJ:

10

Okay.
Thank you.

In your brief, where is that piece?
The reason to believe piece, Your Honor?

Yes.
It’s at Page 8.

Okay.
Sorry, one more thing, Your Honor.

Okay.

ATC[CPT MORROW]:

Relating to the intangible versus tangible.

11

The government’s position is that the intangible clause is orally

12

disclosed information.

13

documents on a computer are now suddenly intangible when we’ve -- you

14

entered this in your ruling on speedy trial, you talked about how e-

15

mails are documents, those are of course ones and zeros.

16

MJ:

17

CDC[MR. COOMBS]:

18

It would be sort of absurd to think that

You’re welcome.

Mr. Coombs, any last words?
Ma’am, I thought you had one issue on

paragraph, I guess it was 8 -- I think it was 8(Whisky).

19

ATC[CPT MORROW]:

20

MJ:

21

CDC[MR. COOMBS]:

22

MJ:

Thank you.

6(j).

On page -- I’m sorry, which page?
I’m sorry.

In the statement?

6541

It was 6(Juliet).

10440

1

CDC[MR. COOMBS]:

Correct, Your Honor.

Just indicating what

2

his belief was with regards to CIDNE, Iraq, and CIDNE, Afghanistan,

3

how that may be received.

4

MJ:

5

CDC[MR. COOMBS]:

6

Uh-huh.
So the Court indicated you were going to

ask, I guess, either myself or PFC Manning a question on that.

7

MJ:

I was going to do that during the providence inquiry.

8

CDC[MR. COOMBS]:

9

MJ:

Okay, Your Honor.

What I’m looking that is -- I’d like you do that too, Mr.

10

Coombs, when we go through here, if PFC Manning’s going to tell me

11

things like, “I did this for basically a noble motive,” then what is

12

at issue is whether what he did was service discrediting or

13

prejudicial to good order and discipline for that matter.

14

CDC[MR. COOMBS]:

Correct, Your Honor.

He understands that,

15

so he understands what’s in the statement and he understands the

16

elements he needs to plea to.

17

MJ:

Okay.

So we’ll have that dialogue in the event that you

18

all decide that you all want to go forward with plea on Thursday.

19

Just I would ask that you speak with PFC Manning and just make sure

20

that -- you know, in order to be service discrediting it has to

21

discredit the service.

22

noble thing I was doing and it was helping the service,” then I’ve

23

got to fix that.

If his testimony to me is, “Well, this was a

6542

10441

1

CDC[MR. COOMBS]:

2

MJ:

3

CDC[MR. COOMBS]:

No, we’ve already had this discussion.

Okay.
He already knows and he understands his

4

statement and he understands the elements he needs to plead guilty

5

to.

6

He does believe that he satisfied the elements.
MJ:

Okay.

All right.

So I will take -- I’m going to go back

7

and reread the statement this evening.

I think at this point we have

8

some parameters.

9

going to be whited out with a signature block or PFC Manning will

I’m going to have a copy of the statement that’s

10

have a copy of the statement.

Whether or not he can actually read

11

the statement, I haven’t decided yet.

12

and then I’ll let you know tomorrow.

I’m going to think about that

The other issues raised, I believe as I understand the

13
14

defense and I understand PFC Manning, I’ve asked the parties to brief

15

whether under military jurisprudence the documents also require the

16

reason to believe and that will be handled at the next Article 39(a)

17

session.

18

You all are going to talk and let me know whether you want

19

to go forward on this session, because you don’t believe that that

20

makes any difference to whether PFC Manning will enter a knowing,

21

voluntary and intelligence plea.

22

we’ll go ahead and punt that to next session.

23

CDC[MR. COOMBS]:

If so, we’ll go forward.

If not,

We’ll let the Court know tomorrow morning.

6543

10442

1
2
3
4

MJ:

Okay.

Is there any other issue that we need to address

before we recess the Court for the evening?
TC[MAJ FEIN]:

Your Honor, just one point of clarification, I

apologize.

5

MJ:

That’s okay.

6

TC[MAJ FEIN]:

Earlier you were a little bit more specific when

7

you asked the defense, Mr. Coombs and PFC Manning, to discuss

8

tomorrow this issue of 793.

9

explained it to you, he also distinguished between the tangible and

I just -- when PFC Manning actually

10

intangible, that’s what Captain Morrow was talking about.

11

the ultimate issue is if PFC Manning is going into tomorrow to make

12

this decision, ultimately Thursday, believing that tangible is one

13

type information and intangible is another, that’s a subject of

14

litigation.

15

determination.

16

documents.

17

MJ:

I guess,

The decision tomorrow should be exclusive of that

Okay.

It should just be based off information -- excuse me

Let me make sure I understand the defense argument

18

then based upon what Major Fein said.

Is the argument that --

19

There’s documents and there’s all of the subsets that you read to me

20

and then there’s information.

21

was communicated by PFC Manning doesn’t fall into the subsets, the

22

documents, etcetera and it’s information or -- and/or is it that the

Is this defense argument that whatever

6544

10443

1

Court of Appeals for the Armed Forces has said it doesn’t matter what

2

it is, it still requires the reason to believe?

3

CDC[MR. COOMBS]:

The first part for Diaz, it appears it

4

doesn’t matter.

5

military jurisprudence.

6

documents, information clause, but we have not in the military.

7

There is the Steele case, but even in that case, as I said, they go

8

back to saying that the mens rea requirement of 793, reason to

9

believe, was satisfied.

10

It’s still requires the reason to believe under
Other circuits might have identified a

That’s the first part.

The second part, the Court asked Captain Morrow, do you

11

believe that -- you know, you still based upon your charging you

12

still have a potential issue of proving it’s documents or

13

information.

14

position on that is that they still need to prove that, that it falls

15

within the documents and not the information, if in fact, in military

16

jurisprudence or more importantly in this case that the Court is

17

going recognize a distinction between the two.

18

He said, no, it’s just documents.

The defense’s

For purposes of the providence inquiry and what the

19

government is concerned about, I have explained and I will re explain

20

after today’s hearing to Manning, the various nuances of this issue,

21

to include the Court recognizes a distinction, and then whether or

22

not the Court used this as the ones and zeros as a document, which

23

the Steele case kind of leaned towards that, if it existed on a

6545

10444

1

computer, or would view that as information.

2

outcome might be, meaning that you might have two elements that still

3

survive or just one.

4

if the Court goes against the defense in both arguments.

5

his position, if it’s as we covered earlier, would be no, it doesn’t

6

make a difference.
MJ:

7

Then what the possible

Does that make a difference to you in pleading
I believe

Because -- and let me understand this again, by his plea,

8

he’s admitting he willfully communicated something, but he’s not

9

saying to me what that something is.

That would be a legal

10

determination or -- well, legal or factual -- it would be a factual

11

determination.
CDC[MR. COOMBS]:

12

Right.

13

document or information.

14

-- CIDNE information.
MJ:

15

18

He’s indicating what a -- you know, charged

I think I understand the defense argument.

Does the government have anything further with respect to

16
17

All right.

He’s not indicating that it’s a

that?
TC[MAJ FEIN]:

No, ma’am.

The government’s concern is just that

19

the decisions or the colloquy that the Court will have with PFC

20

Manning tomorrow just ensures that he’s knowingly, intelligently

21

making that decision.

22
23

MJ:

That’s it.

Again, if PFC Manning as we go through our colloquy

tomorrow, I’m not making any findings, so ultimately down the road

6546

10445

1

foreseeably if this -- at the next session if I rule differently, I

2

mean, he could ask to withdraw his plea.

3

CDC[MR. COOMBS]:

Yeah, at any time actually before the Court

4

announces findings.

5

that the Court would cover as a standard exchange between him and the

6

Court.

7

MJ:

He understands that as well.

Is there anything else that we need to address before we

8

recess the Court today?

9

TC[MAJ FEIN]:

No, ma'am.

10

CDC[MR. COOMBS]:

11

MJ:

12

TC[MAJ FEIN]:

13

MJ:

14
15

That is something

All right.

No, Your Honor.
0930 tomorrow?

Yes, ma'am.

Court is in recess.

[The Article 39(a) session recessed at 1720, 26 February 2013.]
[END OF PAGE]

6547

10446

1

[The Article 39(a) session was called to order at 0952, 27 February

2

2013.]

3

MJ:

Trial Counsel, are all parties present when the Court last

4
5

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

recessed again present in court?

6

TC[MAJ FEIN]:

7

MJ:

Yes, ma'am.

All right.

First of all the Court has made modifications

8

to the order that was discussed yesterday, which was the storage of

9

Appellate Exhibits not accompanying the record of trial.

The

10

modification the Court made was as follows:

11

the findings of fact section, which now reads, “The Court finds the

12

government’s interest in protecting national security and preventing

13

the dissemination of classified information in the documents off site

14

is an overriding interest that would be prejudiced if the documents

15

were not filed under seal and accompanied the record of trial.

16

ordered plan for storage of Appellate Exhibits not accompanying the

17

record of trial is narrowly tailored to protect the overriding

18

interest and there are no adequate reasonable alternatives.”
Does either side object to the order?

19
20

CDC[MR.

21

TC[MAJ FEIN]:

22

MJ:

23

adding paragraph 3 to

COOMBS]:

All right.

No, Your Honor.

No, Your Honor.
We’ll file it then as the next Appellate

Exhibit in line.

6548

The

10447

Mr. Coombs, have you had an opportunity to discuss with PFC

1
2

Manning whether PFC Manning would like to continue with his plea

3

tomorrow?

4

CDC[MR.

5

MJ:

6

CDC[MR.

7

COOMBS]:

I have, Your Honor.

COOMBS]:

Based upon the discussion, yes, he would,

And?

Your Honor.

8

MJ:

9

ACC: Yes, Your Honor.

10

MJ:

Is that correct?

All right.

Just for the record PFC Manning and I had a

11

dialogue yesterday where PFC Manning answered some questions from the

12

Court.

13

only for the limited purpose of going forward -- whether you want to

14

go forward with your plea and offer anything else.

Those questions and anything you told me I am considering

So we will do that tomorrow then.

15
16
17

We will start once again

at 0930.
Today is going to be a relatively short day in court.

The

18

Court is prepared to rule on its -- on the government’s motion to

19

preclude over classification and then we are going to discuss the --

20

what’s known in military parlance as Grunden based on a case, but

21

basically issues regarding closure of parts of the trial for the

22

presentation of classified evidence.

23

motion to do that and the defense has come up with some alternatives

6549

The government has made a

10448

1

and we’re going to hold initially at least that hearing in open court

2

after I announce the ruling.

3

and we will start up again at 0930 tomorrow to go forward with PFC

4

Manning’s plea.

The Court will be in recess for the day

The Article 104 issue that we addressed yesterday that was

5
6

litigated, the Court is going to take that under advisement.

Also,

7

either tomorrow or Friday the parties and I will go into an M.R.E.

8

505(i) in camera hearing to discuss potential classified information

9

that might be introduced at trial.

We are going to go forward on the

10

assumption during that litigation that I’m going to rule in favor of

11

the government; therefore, we can litigate all of the issues that

12

have been raised.

13

the government, it’s just to ensure that we’ve got all the issues on

14

the table on the record.
Does either side have any objection to that?

15
16

CDC[MR.

17

TC[MAJ FEIN]:

18

MJ:

19

That doesn’t mean I’m going to rule in favor of

COOMBS]:

No, Your Honor.

No, Your Honor.

Is there anything else we need to address before I announce

the Court’s over classification ruling?

20

CDC[MR.

COOMBS]:

21

TC[MAJ FEIN]:

No, Your Honor.

No, Your Honor.

Just one, with an updated

22

calendar, the government will add to the calendar the filings for the

23

Article 104 issue for the next session.

6550

10449

1

MJ:

All right.

And if the parties would confer also, if there

2

are any additional issues that need to be raised for that session,

3

just let me know so we can come up with an updated calendar then to

4

include that as well.

5

TC[MAJ FEIN]:

6

MJ:

7
8
9

Yes, ma'am.

Government motion to preclude evidence of over

classification.
On 14 December 2012, the Government moved to preclude the
Defense from raising general over classification during both the

10

merits and sentencing phases of the trial.

11

Defense filed a response opposing.

12

evidence presented, and argument of counsel, the Court finds and

13

concludes as follows:

14

Findings of Fact:

15

1.

On 28 December 2012, the

After considering the pleadings,

The accused is charged with one specification of aiding

16

the enemy in violation of Article 104, Uniform Code of Military

17

Justice; one specification of disorders and neglects to the prejudice

18

of good order and discipline and service discrediting in violation of

19

Article 134, UCMJ; eight specifications of violations of 18 U.S.C.

20

Section 793(e) and Article 134; five specifications of violations of

21

18 U.S.C. Section 641 and Article 134 UCMJ; two specifications of

22

violations of 18 U.S.C. Section 1030(a)(I) and Article 134, UCMJ; and

23

five specifications of violating a lawful general regulation, in

6551

10450

1

violation of Article 92, UCMJ.

2

offenses is from on or about 1 November 2009 on or about 27 May 2010.

3
4
5

2.

The time period of the charged

Defense proffers that it will offer the following

evidence for merits and sentencing:
A.

Mr. Cassius Hall will testify that much of the charged

6

information could not cause damage to the United States and was not

7

closely held.

8
9

B.

Mr. Charles Ganiel will testify that the vast majority

of the information within the charged diplomatic cables was already

10

in the public realm prior to the accused's alleged communications of

11

that information.

12

C.

Ambassador Peter Galbraith will testify that many

13

Department of State cables are, in his experience, over-classified

14

and that a secret classification does not mean the information is

15

genuinely secret.

16

D.

House Resolution 553, Reducing Over-Classification Act,

17

7 October 2010, Transcripts of House Committee Meetings on the

18

Espionage Act, 16 December 2010, and 2007 Committee Meetings on Over-

19

Classification 22 March, 26 April, and 28 June 2007.

20

motion, the defense requests that the Court take judicial notice of

21

this information.

22
23

3.

H.R.

In a separate

553 "Reducing Over-classification Act" was

enacted into law on 7 October 2010 as Public Law 111-258.

6552

This was

10451

1

after the dates of the charged offenses and before the Original

2

Classification Authority (OCA) classification reviews.

3

will henceforth refer to H.R.
4.

4

The Court

553 as Public Law 111-258.

Merits - Defense.

Defense argues that evidence of

5

general over-classification is relevant to the merits for the

6

offenses charged that violate 18 U.S.C. Section 793(e) and 1030(a)(l)

7

for the following reasons:
A.

8
9

Those offenses require the Government to prove that the

accused had reason to believe information communicated could be used

10

to the injury of the United States or to the advantage of any foreign

11

nation.

12

nature of the information.

13

relevant to the nature of the information.

This necessarily requires the fact finder to consider the

B.

14

Evidence of over-classification is

For 18 U.S.C. Section 793(e) offenses only: general

15

over-classification is relevant to whether the information

16

communicated relates to the national defense.

17

that the information be closely held and that the disclosure of the

18

information would be potentially damaging to the United States or

19

might be useful to an enemy of the United States.
C.

20

This element requires

Over-classification allows the defense to paint a full

21

picture of the context in which the classification decisions were

22

made.

23

the Court should accord to the fact of classification itself to

The significance of over-classification relates to what weight

6553

10452

1

determine whether the accused had reason to believe the documents

2

could cause damage to the United States and whether the documents at

3

issue relate to the national defense.

4

D.

Over-classification evidence is relevant evidence of

5

bias of the Original Classification Authorities, allowing both cross-

6

examination and extrinsic evidence under M.R.E. 608(c).

7

Merits- Government, Number 5.

The Government argues the

8

following to preclude evidence of general over-classification on the

9

merits as not relevant to any charged offense or cognizable defense:

10

A.

Evidence of general over-classification is not relevant

11

to whether the documents at issue were properly classified by the

12

relevant OCA.

13

B.

The accused is not an OCA and has no authority to

14

determine whether information could injure the United States with

15

respect to classification.

16

C.

Evidence of general over-classification is not relevant

17

as to the nature of the information communicated or to determine

18

whether the charged information could be used to the injury of the

19

United States or to the advantage of a foreign nation.

20

D.

Evidence of over-classification after the dates of the

21

charged offenses is not relevant to the accused's intent at the time

22

of the offenses.

6554

10453

1

6.

Sentencing: In its Motion for Judicial Notice of H.R.

2

553 and Congressional Hearings Discussing Classification, the Defense

3

avers that evidence of general over-classification is relevant to

4

sentencing in that evidence that the classification system was broken

5

and its condition had negative consequences for the nation would tend

6

to shift some of the culpability from the accused to the system

7

itself, thus tending to lower his punishment.

8

evidence of general over-classification presents neither matters in

9

extenuation nor mitigation because the information was not in

10

existence nor known to the accused at the time of the charged

11

offenses and, even if relevant, should be excluded under M.R.E. 403

12

as an undue waste of time.

13

7.

The Government argues

The Government intends to prove on the merits that a

14

relevant OCA conducted an original classification review of the

15

information allegedly communicated in the charged offenses in

16

accordance with Executive Order Number EO 13526, 29 December 2009.

17

The Law:

18

1.

Relevant evidence is evidence having any tendency to

19

make the existence of any fact that is of consequence to the

20

determination of the action more or less probable than it would be

21

without the evidence.

22

when it is not cumulative and when it would contribute to a party's

23

presentation of the case in some positive way in a matter at issue.

M.R.E. 401.

6555

Relevant evidence is necessary

10454

1

The military judge has the initial responsibility to determine

2

whether evidence is relevant under R.C.M. 401.

3

White, 69 M.J. 236 Court of Appeals for the Armed Forces, 2010.

United States v.

All relevant evidence is admissible, except as otherwise

4
5

provided by the Constitution of the United States as applied to

6

members of the armed forces, the code, these rules, this Manual, or

7

any Act of Congress applicable to members of the armed forces.

8

Evidence which is not relevant is not admissible.
3.

9

M.R.E. 402.

Relevant evidence may be excluded if its probative

10

value is substantially outweighed by the danger of unfair prejudice,

11

confusion of the issues, or misleading the members, or by

12

considerations of undue delay, waste of time, or needless

13

presentation of cumulative evidence.
4.

14

M.R.E. 403.

M.R.E. 608(c) provides that bias, prejudice, or any

15

motive to misrepresent may be shown to impeach the witness either by

16

examination of the witness or by evidence otherwise introduced.

17

rule allows both cross-examination of the witness and extrinsic

18

evidence.

19

5.

This

R.C.M. 100l(c) governs matters to be presented by the

20

Defense during sentencing.

In relevant part, the rule allows the

21

Defense to present matters in rebuttal to any material presented by

22

the Government and matters in extenuation and mitigation.

23

extenuation serve to explain the circumstances surrounding the

6556

Matters in

10455

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

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