Title: Volume FOIA 035

Release Date: 2014-03-20

Text: 10788

Volume 35 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

10789

1
2

MJ:

All right. Is there anything else we need to address today

in open court until we recess for the next Article 39(a) session?

3

CDC[MR. COOMBS]:

4

TC[MAJ FEIN]:

5

MJ:

Nothing from the defense, Your Honor.

No, Your Honor.

All right.

How long of a recess would you like before we

6

move into the closed session.

7

do that e-mail, that would be helpful for me to have in the closed

8

session, so consider that when we’re talking about the recess.

9

CDC[MR. COOMBS]:

Mr. Coombs, I really would, if you can

Okay.

Ma’am, actually on my phone, if I’m

10

not restricted from having e-mail access, I can type it up real fast

11

and send it to you.

12

TC[MAJ FEIN]:

13

MJ:

14

Ten to fifteen minutes, Your Honor.

Why don’t we make it 20 just to be safe?

5 after 11:00 we’ll start?

15

TC[MAJ FEIN]:

16

CDC[MR. COOMBS]:

17

MJ:

Why don’t we say

Does that work for both sides?

Yes, ma'am.
Yes, ma'am.

For members of the public, this is -- this concludes the

18

open session of the Court for this Article 39(a) session.

19

again, the next Article 39(a) session in this case is set to begin on

20

10 April 2013.

21

wish to adhere to that start time?

Our usual start time has been 0930.

22

TC[MAJ FEIN]:

Yes, ma'am.

23

CDC[MR. COOMBS]:

Yes, Your Honor.

6956

Once

Do the parties

10790

1
2
3
4

MJ:

All right.

So it will be then at 0930 on 10 April 2013.

The Court is in recess.
[The Article 39(a) session recessed at 1050, 1 March 2013.]
[END OF PAGE]

6957

10791

Pages 6958 through 6982 of this
transcript are classified
“SECRET”. This session (1
March 2013, Session 1) is
sealed for Reasons 2 and 3,
Military Judge’s Seal Order
dated 17 January 2014 and
stored in the classified
supplement to the Record of
Trial.

10792

Pages 6983 through 7014 of this
transcript are classified
“SECRET”. This session (8
March 2013, Session 1) is
sealed for Reasons 2 and 4,
Military Judge’s Seal Order
dated 17 January 2014 and
stored in the classified
supplement to the Record of
Trial.

10793

1

[The Article 39(a) session was called to order at 0953, 10 April

2

2013.]

3

MJ:

Trial Counsel, please account for the parties.

4
5

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

TC[MAJ FEIN]:

Yes, ma'am.

Ma’am, all parties when the court

6

last recessed are again present with the following exceptions:

7

Captain Overgaard is present; Mr. Chavez, court reporter, is absent;

8

Mr. Robertshaw, court reporter, who has been previously sworn, is

9

present.

10

MJ:

11

Thank you.
All right.

Before we begin today’s proceedings, I would

12

like to address the spectators in the gallery and the media

13

operations center.

14

Practice before Army Courts-Martial prohibit video and audio

15

recordings of Court-Martial proceedings.

16

for this trial. In light of the public interest in this case, I have

17

allowed contemporaneous closed circuit audio and visual transmission

18

of the proceedings to the media center.

19

of the Court’s rules.

20

February through 1 March 2013, an audio broadcast was placed on the

21

Internet of PFC Manning’s statement that he read during his

22

providence inquiry.

23

are not allowed in the media operations center.

Rule for Court-Martial 806(c) and the Rules of

I implemented these rules

There has been a violation

After the last Article 39(a) session on 26

I remind you that phones and recording devices

7015

To date, I have not

10794

1

ordered persons in the media operation center to be screened for

2

phones and recording devices.

3

will all follow the Court’s rules and we will not have any additional

4

violations of the Rules of Court.

I trust you

Thank you.

Does either side desire to supplement anything I just said?

5
6

TC[MAJ FEIN]:

7

CDC[MR. COOMBS]:

8

MJ:

9

I hope I don’t have to.

No, Your Honor.

All right.

No, Your Honor.
We’ll begin, as we normally do, with what I

call housekeeping matters.

In between Article 39(a) sessions, the

10

parties file documents that are added into the record at the next

11

session.

12

3rd, was an e-mail from the government stating that the government

13

and the defense are working together to decide what, if anything, the

14

parties are going to stipulate to, and they would advise me by the

15

end of this Article 39(a) session, which will be the 12th, at least

16

as scheduled, what stipulations the parties agree to.

17

that.

18

One of the things that has been sent to the Court on April

I’m fine with

I orally approved that to the parties.
At an R.C.M. 802 session, that’s a conference that I hold

19

with parties to talk about logistics and other scheduling issues

20

arising in the case.

21

We held an R.C.M. 802 session on the 4th of April.

22

desire anything further with that?

23

CDC[MR. COOMBS]:

I’ll discuss that in further depth later today.

No, Your Honor.

7016

Does either side

10795

1

TC[MAJ FEIN]:

2

MJ:

No, Your Honor.

Before I get into the R.C.M. 802 conference, Major Fein,

3

would you like to set forth for the record what additional filings

4

have been made by the government?

5
6

TC[MAJ FEIN]:

MJ:

8

TC[MAJ FEIN]:

10

Ma’am, just the government or also

the defense?

7

9

Yes, ma'am.

You can do the defense too.
Yes, ma'am.

Ma’am, on 8 March 2013, the defense

filed a supplemental M.R.E. 505(h) notice, which has been marked as
Appellate Exhibit 504; it’s a classified filing.
On 15 March 2013, the government filed an updated Grunden

11
12

filing via SIPRNET and then, on the same day, Your Honor, the

13

government filed a corrected copy of that classified filing via

14

SIPRNET.

15

On the same day, the government filed an unclassified and redacted

16

version; and, that has been marked as Appellate Exhibit 506.

17

The correct copy has been marked as Appellate Exhibit 505.

On the 15th of March 2013, the government filed a targeted

18

brief based on the interplay of Military Rule of Evidence 505 and

19

Rule for Court-Martial 806 and Grunden.

20

Appellate Exhibit 507.

21
22

That has been marked as

On the 21st of March 2013, the defense filed its targeted
brief on the interplay of M.R.E. 505 and R.C.M. 806 and Grunden.

7017

It

10796

1

was titled Courtroom Closure; and, it’s been marked as Appellate

2

Exhibit 508.
On the 28th of March 2013, the defense filed its motion to

3
4

have a witness for the Court to consider in making the Court’s

5

Grunden determinations.

That’s been marked as Appellate Exhibit 513.

On the 29th of March 2013, the government filed a targeted

6
7

brief on the reason to believe element of 18 U.S.C. 793; and, that

8

has been marked as Appellate Exhibit 509.
On the 29th of March 2013, the government filed a targeted

9
10

brief on the receipt of intelligence element under Article 104 and

11

that has been marked as Appellate Exhibit 510.
On the 29th of March, the government filed another target

12
13

brief on courtroom closure.

That has been marked as Appellate

14

Exhibit 511.

15

targeted brief on the reason to believe being an element or not of 18

16

U.S.C. 793 violation.

Also, on the 29th of March 2013, the defense filed a

That’s been marked as Appellate Exhibit 514.

Your Honor, on the 3rd of April 2013, the government filed

17
18

a response to the defense request for a witness for a Grunden

19

hearing.

That has been marked as Appellate Exhibit 512.
That is it, Your Honor.

20
21

MJ:

Mr. Coombs, does the defense have anything to add?

22

CDC[MR. COOMBS]:

No, Your Honor.

7018

10797

1

MJ:

In light of the defense motion for appropriate relief that

2

has been marked as Appellate Exhibit 513, the Court and the parties

3

held an R.C.M. 802 conference.

4

I go over logistics and scheduling issues with counsel.

5

and then we put the -- excuse me, we put the information that was

6

discussed on the record at the next session.

7

the R.C.M. 802 conference because the defense requested basically

8

what I called a dry run witness to actually come to court and testify

9

in a closed session with the same testimony that that witness would

10

be making in court to assist the court and the parties to determine

11

whether there are alternatives to closure that exist for classified

12

information and to actually have that witness testify so we know what

13

information could potentially be at issue.

14

of that, should the Court order it, the Court decided not to wait

15

until today to go over that with counsel.

Once again, that’s a conference where
We held that

In this case, we held

In light of the logistics

We held the R.C.M. 802 conference on the 4th of April.

16

I

17

was there personally with some of the counsel.

Other counsel called

18

in telephonically.

19

together an e-mail and send it out to the parties synopsizing what

20

occurred.

21

had asked one of the government counsel present to record what had

22

occurred.

Normally, on these R.C.M. 802 conferences I put

Since this took place away from the computer from me, I

That recording was captured in an e-mail that went to both

7019

10798

1

parties.

2

summary.

The defense did not have any additions to that R.C.M. 802

3

The R.C.M. 802 summary is as follows:

4

This e-mail synopsizes what was discussed during the R.C.M.

5

802 conference held in the command building conference room at Fort

6

McNair at 1500 on 4 April 2013.

7

Lind; for the government Major Fein, Captains Morrow, Overgaard,

8

Whyte, and Mitroka; for the defense, Captain Tooman and Mr. Coombs.

9

And Major Hurley, telephonically participated.

more following below:

12

One, recording the R.C.M. 802;

13

Two, stipulations;

14

Three, the purpose of the present 802 conference;

15

Four, courtroom closure:
A.

16
17

B.

22

Envisioned unclassified summaries of witness

opinions appropriate for open session; and
C.

20
21

Evidence required to substantiate classification

of the government’s proper testimony;

18
19

Colonel

The following topics were discussed and they are addressed

10
11

The parties present were:

Potential use of redacted transcript as a curative

measure.
Five, the scheduling of the next ex parte session.

7020

10799

At the sessions conclusion the government had the following

1
2

due outs:
One, provide substantiation of classification per piece of

3
4

information to the Court for a Grunden hearing.

5

-- Grunden is a military case that discusses courtroom closures.

6

courtroom hearings in the military are normally referred to as

7

Grunden hearings.

estimated time necessary to accomplish one above.
Three, provide draft closure orders to the Court based on

10
11
12
13
14
15
16
17
18
19
20

The

Two, provide the Court, as soon as possible, with the

8
9

A Grunden hearing is

one above.
Four, provide two draft closure orders to the Court to
cover closure for testimony by the four special witnesses.
Five, provide the Court the unclassified, via NIPR e-mail,
and classified, via SIPR e-mail, classification reviews.
Six, provide the name of witnesses the government -- of the
witness the government will call as an example.
Seven, provide a plan on expeditious release of redacted
versions of closed sessions.
At the session’s conclusion the parties also agreed that no

21

further argument was necessary on the Article 104 and 793(e) issues.

22

The Court also noted the parties would want a ruling on the interplay

23

between Grunden, M.R.E. 505, and R.C.M. 806.

7021

10800

One, recording the 802.

1

As the Court did not have a

2

reporter, she requested a participant record the proceedings.

3

Captain Mitroka from the government complied.

4

to a government assistant trial counsel fulfilling this function.

Neither party objected

The Court noted that she believed that the issues for this

5
6

802 would be discussed in a general and unclassified way.

7

parties were advised that should classified information need to be

8

discussed, the telephonic line would need to be severed.
Two, stipulations.

9

The

The parties alerted the Court via e-

10

mail on 3 April 2013, that they continued to work on stipulations and

11

intend to provide the Court an update by the end of the upcoming

12

Article 39(a) session.

13

orally as opposed to in writing on this issue.

Neither party objected to the Court ruling

Three, the purpose of the present R.C.M. 802 conference.

14
15

The prosecution expressed an interest in clarifying whether the

16

present R.C.M. 802 would cover substantive content.

17

affirmed that while the 802 would address substantive content, the

18

reason for the session was to ease the logistics of the Grunden

19

ruling.

20

The Court

The Court confirmed that the summary of the 802 would be

21

placed on the record, and neither party objected to proceeding in

22

this matter.

23

Four, courtroom closure.

7022

10801

1

A.

The prosecution articulated a two-fold objection to the

2

defense’s proposal of a sample witness.

3

done this to consider closure for classified information, and second

4

because of the different content and basis of witness testimony one

5

witness would not be instructive as to the feasibility of

6

alternatives for the other 27.

7

First, no other court has

The government offered to go through the example of

8

Article 32 closed session testimony to illustrate its points further.

9

The defense argued that all reasonable alternatives needed to be

10

considered and ruled out and that calling a witness was the only way

11

to test the reasonableness of the alternatives; however, as this

12

issue could not be resolved in time for the next session, and in

13

light of the necessity of severing telephonic communication to

14

discuss classified information, the Court indicated this substance

15

could be discussed further at a later time.

16

The Court acknowledged that a proffer is not evidence.

17

Court and the parties confirmed, to their knowledge, Grunden and

18

Lonetree were the only military cases involving a defense objection

19

for court closure for classified information.

20

would not engage in comparing proper testimony to classification

21

guides to confirm proper classification and the government explained

22

that the classification guides were also provided for the Court’s

23

security officer to use during the trial.

7023

The

The Court indicated it

The Court, therefore,

10802

1

ordered the government to provide further evidence to substantiate

2

its assertion that the proffered areas of testimony for which the

3

government is requesting closure are classified.

4

ordered the government to provide a draft closure order, which

5

connects each piece of classified information to the newly offered

6

evidence, as well as to those witnesses who are anticipated to

7

discuss it.

8

or to let the Court know if the completion was not possible by the

9

next Article 39(a) session. The Court stated it would not make a

The Court also

The Court ordered the government to complete these tasks

10

ruling on the government’s Grunden’s motion until the Court had that

11

information.
The Court confirmed that going witness by witness seemed

12
13

the best way to provide the required information, but to let the

14

Court know if the same witnesses were talking about the same -- if a

15

number of different witnesses would be talking about the same

16

classified information.
With regard to the proposed sample witness session, the

17
18

defense noted that, for example, original classification authorities

19

and sentencing witnesses would testify differently from one another,

20

so sample witnesses should be included for different kinds of

21

witnesses.

22

categorized.

23

- or generically, for example, witnesses who would testify as to

The Court asked the government if the witnesses could be
The government confirmed that they could be generally -

7024

10803

1

impact.

The Court ultimately expressed an interest in hearing a

2

sample merits witness who would offer testimony on the sort of

3

information to which the others would testify.
The Court ordered the government to notify her of what

4
5

witnesses by the end of the next Article 39(a) session -- of what the

6

witness would be -- who the witness would be by the end of the next

7

Article 39(a) session.

8

consider whether to have a sentencing witness at a later time.

Based on the defense’s request, the Court may

The parties agree that this sample witness session should

9
10

be conducted in a closed session.

The defense indicated that it

11

envisioned the government would go through a direct examination, then

12

all the participants would consider how alternatives might be applied

13

to the testimony.

14

up to 2 days.

15

M.R.E. 505(h) notice had not processed, cross-examination would

16

likely not be possible.

17

relevant, they would both subject the witness to a direct

18

examination.

This process, the parties anticipate, could take

The government explained that because the defense’s

The parties agree that, to the extent

19

The government further noted that because of the equities

20

involved and the fact that the witnesses belong to other government

21

organizations, selecting a witness would require input from other

22

entities.

23

sample witness would be sworn to give his or her testimony.

The government also raised the issue of whether or not the

7025

10804

Finally, the government sought clarification if there was

1
2

no objection to courtroom closure for the entire testimony of the

3

four special witnesses.
The defense confirmed they did not object to three of the

4
5

four witnesses.

6

Doe is still contingent upon relevance and further information as to

7

the light disguise.

8

those four witnesses and that the government need only provide the

9

requested information -- the government needed to provide the

10

Whether or not the defense would object to Mr. John

The Court noted it would prepare an order for

requested information as to the remaining 24 witnesses.
Due to potential scheduling conflicts, the date for the

11
12

closed Article 39(a) session to explore the sample witness’s

13

testimony was not yet set.

14

more clarity by the coming Article 39(a) session on April 10th

15

through 12th.

The parties indicated they could have

The government cited its 3 April 2013, filing as an example

16
17

to the Court of where broad subject matter and analysis were

18

discussed at an open session and the classified details of the

19

testimony were discussed in the closed session during the Article 32

20

hearing.

21

use of this alternative during the trial and, if so, how truncated

22

these summaries would be.

23

foresee using unclassified summaries during the trial and the

The Court inquired whether the government foresaw making

The government responded it did not

7026

10805

1

specificity used in open session would track the specificity of the

2

unclassified classification reviews previously provided to the Court.

3

The Court requested the government resend all the

4

classification reviews to the Court and indicate the classification

5

of each.

6

of the 24 witnesses would be overly confusing and the equivalent of a

7

closure if the Court uses a legend for the classified testimony.

8

government cited page 7 of the classified portion of the transcript

9

of Enclosure 5, which was Special Agent Shaver’s testimony, to its 3

The government also voiced its concern that the testimony

The

10

April 2013, filing as an example of what a closed session with a

11

legend would look like using actual closed session testimony from the

12

Article 32 Investigation to illustrate its points further.

13

The Court asked the government if the witness’s testimony

14

cited was different than all of the other witnesses’.

15

agreed that Special Agent Shaver would be the only forensic examiner

16

who would testify during closed session.

17

C.

The government

The Court said it was highly likely considering --

18

highly considering employing the curative measure of making redacted

19

transcripts of closed proceedings publicly available.

20

confirmed this would require a classification review of the

21

transcript as well as authentication.

22

discussed getting classified, closed sessions transcribed first and

23

submitted for authentication and classification review

7027

The government

The Court and the parties

10806

1

contemporaneously.

The government estimated it could have a plan for

2

this undertaking for the Court’s review in 2 weeks.
Five, ex parte session.

3

The government and the Court agree

4

to hold their next ex parte session by close of business Wednesday,

5

10 April 2013, that’s today.

6

of the defense’s pretrial access to Mr. John Doe is contingent on the

7

outcome of this session because assuming the Court rules in favor of

8

the government, the government would then release its planned

9

redacted and directed answers to the defense.
Does either side have any addition to the Court’s summary

10
11

of the R.C.M. 802 conference?

12

CDC[MR. COOMBS]:

13

TC[MAJ FEIN]:

14
15

The government stated that the extent

No, Your Honor.

May be have a moment, Your Honor?

[Pause.]
TC[MAJ FEIN]:

Ma’am, these are really just two -- I think just

16

words got misplaced reading on the record.

17

starting with the government cited its 3 April 2013, filing.

18

MJ:

19

TC[MAJ FEIN]:

Four(b), the paragraph

Mm-hmm.
In the middle there, there’s a sentence, Your

20

Honor, “The government responded that it did foresee using

21

unclassified summaries during trial.”

22

out loud it said “did not,” but the government does foresee using

23

unclassified summaries.

7028

I think when the Court read it

10807

1

MJ:

All right.

2

TC[MAJ FEIN]:

Thank you for the clarification.
Yes, ma'am.

And the second is the very last

3

paragraph 5, ex parte session.

The government does intend, assuming

4

the government -- or the Court rules in favor of the government’s

5

505(i) motion to give the full classified, not a redacted version to

6

the defense.

They’ll get the entire.

7

MJ:

All right.

8

TC[MAJ FEIN]:

9

MJ:

Thank you.
Yes, ma'am.

Just for the record, the ex parte sessions were held with

10

respect to the government’s M.R.E. 505(i) motion regarding the

11

witness John Doe.

12

session, the government had filed a request to have Mr. Doe testify

13

in closed session in light disguise and to limit discovery and cross-

14

examination for the defense.

15

We went over that at the last Article 39(a)

I held an ex parte session with the government pursuant to

16

Military Rule of Evidence 505(i) on the 8th of March 2013.

17

the government some guidance on how to proceed with some of the

18

issues that the Court had some concerns with.

19

a status update on the 20th of March 2013, on how they had

20

implemented that guidance and we’ll be holding a second ex parte

21

session with -- I’ll be holding a second ex parte session with the

22

government by close of business today to look at what they’ve done in

23

accordance with my guidance for that motion.

7029

I gave

The government gave me

10808

Anything further on that issue?

1
2

TC[MAJ FEIN]:

No, Your Honor.

3

CDC[MR. COOMBS]:

4

MJ:

All right.

No, Your Honor.
The parties and I talked just prior to coming

5

on today and the Court is going to actually come out with an order

6

that sets forth for the record those things that -- the due outs that

7

were discussed in the R.C.M. 802 conference, but one of the things

8

that the Court is going to put in that order is the defense request

9

for a dry run merits witness.

The Court is going to grant that.

The

10

parties were advised of that at the R.C.M. 802 conference and have

11

been conferring as to appropriate dates to make that happen.

12

settled of the 7th and the 8th of May for that closed session.

13

what, if anything else, is going to occur during that session is

14

still up in the air, but right now, the only thing scheduled for that

15

session is the closed session we’re going to have with the dry run

16

witness.

We have
Now

Does either side have anything further to add?

17
18

TC[MAJ FEIN]:

19

CDC[MR. COOMBS]:

20

MJ:

All right.

No, Your Honor.
No, Your Honor.
Is there anything else we need to address

21

before we go into the -- the two issues in addition to all of the

22

closure and the 505(i) motion, the two issues on the agenda from the

23

Court are the government’s motion under the documents--information

7030

10809

1

clause or 18 United States Code 793(e) and the defense motion to

2

preclude evidence of actual receipt by the enemy under -- the Article

3

104 aiding the enemy offense and the wanton disclosure Specification

4

1 of Charge II.
Is there anything else we need to address before we go into

5
6

those issues?

7

CDC[MR. COOMBS]:

8

TC[MAJ FEIN]:

9

MJ:

No, Your Honor.

No, ma'am.

Let’s begin with the government’s motion, 18 United States

10

Code Section 793(e).

Both sides had earlier advised the Court that

11

they did not want oral argument with respect to that motion.

12

still the case?

13

TC[MAJ FEIN]:

14

CDC[MR. COOMBS]:

15

MJ:

16

Is that

Yes, Your Honor.

All right.

Yes, ma'am.
In light of that, the Court’s prepared to rule.

The government moves this Court to find that under the

17

documents or tangible information clause of 18 United States Code

18

Section 793(e) that the government is not required to prove that the

19

accused “had reason to believe the information communicated could be

20

used to the injury of the United States or the advantage of any

21

foreign nation.”

22

applies only to charged communications of intangible information, the

23

defense opposes arguing that the charged communications are

Because this additional scienter requirement

7031

10810

1

intangible information and that the government is required to prove

2

the additional “had reason to believe scienter” excuse me, scienter

3

for both tangible and intangible information charged under the

4

information clause.

5

After considering the pleadings, evidence presented and

6

arguments of counsel -- I think you argued last time -- argument of

7

counsel the Court finds and concludes the following:

8
9

Findings of fact:

One, Title 18 United States Code Section

793(e) penalizes in relevant part, “Whoever lawfully having

10

possession of, access to, control over or being entrusted with any

11

document, writing, code book, signal book, sketch, photograph,

12

photographic negative, blue print, plan, map, model, instrument,

13

appliance or note relating to the national defense, or information

14

relating to the national defense, which information the possessor has

15

reason to believe could be used to the injury of the United States or

16

the advantage of any foreign nation, willfully communicates,

17

delivers, transmits or causes to be communicated to any person not

18

entitled to receive it or willfully retains the same and fails to

19

deliver it on demand to the officer or employee of the United States

20

entitled to receive it.”

21
22

Two, the government has charged the 18 United States Code
793(e) specifications of Charge II in relevant part as follows:

7032

10811

“The accused…having unauthorized possession of information

1
2

relating to the national defense, to wit:

3

file named ‘12 July 07 CZ Engagement Zone 30, GC Anyone.abi;’
Specification 3, more than one classified memorandum

4
5

produced by a U.S. government intelligence agency.
Specification 5, more than 20 classified records from CIDNE

6
7

Iraq Database.
Specification 7, more than 20 classified records from CIDNE

8
9

Afghanistan Database.
Specification 9, more than three classified records from

10
11

Specification 2, a video

the U.S. Southern Command Database.
Specification 10, more than five classified records

12
13

relating to a military operation in Farah Province, Afghanistan,

14

occurring on or about 4 May 2009.
Specification 11, a file named ‘BE22 PAX.zip’ containing a

15
16

file named ‘BE22 PAX.wmv.’
And Specification 15, a classified record produced by a

17
18

U.S. Army intelligence organization dated 18 March 2008.
With reason to believe such information could be used to

19
20

the injury of the United States or the advantage of any foreign

21

nation, willfully communicated…to a person not authorized to receive

22

it.”

7033

10812

Three, the government argues that despite the fact that the

1
2

specifications include the additional “reason to believe” scienter,

3

the government is required to prove this additional scienter

4

requirement beyond a reasonable doubt only if the Court finds that

5

the charged matter communicated is intangible information.

6

Court finds the charged matter communicated is tangible information,

7

then the government is not required to prove the reason to believe

8

scienter beyond a reasonable doubt.

9

additional reason to believe scienter language from the

If the

The Court could except the

10

specifications and find the accused guilty of violating 18 United

11

States Code Section 793(e) and Article 134, UCMJ under the “documents

12

clause.”

13

The Law.

14

following process:
One, give the terms of the statute their ordinary meaning

15
16

When interpreting statute the Court employs the

if the terms are unambiguous.
Two, if the terms of the statute are ambiguous, then the

17
18

Court examines the purpose of the statute and its legislative history

19

to resolve the ambiguity.
Three, if a reasonable ambiguity still exists, the Court

20
21

applies the rule of lenity and resolves the ambiguity in favor of the

22

accused.

7034

10813

1
2
3
4
5

United States v. Starr 51 M.J. 528 at 532 Air Force Court
of Criminal Appeals, 1999.
Conclusions of Law.

One, 18 United States Code Section

793(e) penalizes the willful communication of:
One, any document, writing, code book, signal book, sketch,

6

photograph, photographic negative, blueprint, plan, map, model,

7

instrument, appliance or note relating to the national defense; or

8
9

Two, information relating to the national defense which
information the possessor has reason to believe could be used to the

10

injury of the United States or the advantage of any foreign nation.

11

The Court refers to these clauses as the documents clause

12

and the information clause, respectively.

13

“which information the possessor has reason to believe could be used

14

to the injury of the United States or the advantage of any foreign

15

nation,” as the reason to believe scienter requirement.

16

The Court also refers to

Two, The United States v. Rosen was the first case -- was

17

the first prosecution under 18 United States Code Section 793(e) of a

18

person for the oral transmission of information related to the

19

national defense: 446 F. Supp. 2d at 613, 614 Eastern District of

20

Virginia, 2006.

21

the statute, Rosen found that information under 18 United States Code

22

Section 793(e) is a general term that includes knowledge derived from

23

both tangible and intangible sources.

In addressing various constitutional challenges to

7035

The Rosen Court looked to the

10814

1

legislative history of 18 United States Code Section 793(e) and held

2

that the reason to believe scienter requirement applies only to

3

communication of intangible information and this heightened scienter

4

also required the government to prove the defendant’s bad faith to

5

either harm the United States or to aide a foreign government: 445 F.

6

Supp. 2d at 625 and 626.

7

Three, post Rosen courts addressing communication of

8

information under 18 United States Code Section 793(e) have uniformly

9

held the government is not required to prove that the defendant

10

intended to harm the United States or aid a foreign government when

11

the government charges communications under the information clause:

12

United States v. Diaz 69 M.J. 127 Court of Appeals for the Armed

13

Forces, 2010; United States v. Steele 2011 Westlaw 414, 992 Army

14

Court of Criminal Appeals; United States v. Kiriakou 2012 Westlaw 490

15

33 19 Eastern District of Virginia.

16

Four, 18 United States Code Section 793(e) is not

17

ambiguous.

It penalizes communications under the documents clause.

18

Any document, writing, code book, signal book, sketch, photograph,

19

photographic negative, blueprint, plan, map, model, instrument,

20

appliance or note relating to the national defense or communications

21

under the information clause:

22

defense, which the possession has reason to believe could be used to

Information relating to the national

7036

10815

1

the injury of the United States for the advantage of any foreign

2

nation.

3

The information clause can include tangible and/or
There is no tangible information clause in

4

intangible information.

5

18 United States Code Section 793(e).

6

Five, communications charged under the documents clause do

7

not require the government to prove the additional reason to believe

8

scienter requirement:

9

District of Maryland 2011, charged with retention of classified

United States v. Drake 818 F. Supp. 2d 909

10

documents under the documents clause, reason to believe scienter not

11

a required element.

12

2011, oral disclosure of classified information is intangible

13

information.

14

for the communication, delivery or transmission of information, but

15

not for tangible items demonstrates that congress understood and

16

embraced the distinction between the tangible items listed in the

17

statute and intangible information.

18

United States v. Kim 808 F. Supp. 2d 44 DDC

Congress’s decision to impose a scienter requirement

Six, communications of tangible or intangible information

19

charged under the information clause require the government to prove

20

beyond a reasonable doubt the additional reason to believe scienter.

21

Diaz 69 M.J. 130, that was printed list of detainees held at

22

Guantanamo, tangible information.

23

material, tangible information.

Steele, retained classified
Kiriakou, oral communication,

7037

10816

1

intangible information.

2

scienter requirement entails because the indictment specifically

3

charges Kiriakou with violating the information clause, not the

4

documents clause.”

5

information clause requires proof of the reason to believe element.”

6

“The parties contest what that heightened

Drake 818 at 916 and 917, “Thus, only the second

Seven, the government equates the documents clause and

7

tangible information; they are not the same.

It is possible that

8

tangible information could also meet the definition of one or more of

9

the series of terms which comprise the documents clause- “Any

10

document, writing, codebook, signal book, sketch, photograph,

11

photographic negative, blueprint, plan, map, model, instrument,

12

appliance or note relating to the national defense.”

13

the government can charge a violation of 18 United States Code

14

Section 793(e) under the documents clause, no reason to believe

15

scienter requirement, under the information clause, reason to believe

16

scienter required or, in the alternative, if there was a concern that

17

tangible information -- that the tangible information at issue might

18

not qualify as any document, writing, codebook, signal book, sketch,

19

photograph, photographic negative, blueprint, plan, map, model,

20

instrument, appliance or note relating to the national defense in the

21

documents clause.

In such case

22

Eight, in this case the matter constituting the charged

23

communications in Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of

7038

10817

1

Charge II is tangible information.

2

communication was communicated.

3

communications under the information clause.

4

with it the reason to believe scienter element.

5

required to prove beyond a reasonable doubt that the accused had

6

reason to believe the communicated information could be used to the

7

injury of the United States or to the advantage of any foreign nation

8

for the accused to be found guilty of a violation of 18 United States

9

Code Section 793(e) as charged in these specifications.

10

Ruling.

Actual physical matter, not oral

The government elected to charge the
That clause carries
The government is

Government motion for the Court to find that under

11

the documents or tangible information clause of 18 United States Code

12

Section 793(e), the government is not required to prove that the

13

accused had reason to believe the information transmitted could be

14

used to the injury of the United States or the advantage of any

15

foreign nation.

16

additional scienter requirement applies only to communications of

17

intangible information is denied.

18
19
20
21

Because of this additional -- because this

Please mark this as the next Appellate Exhibit in line
[handing document to the court reporter.]
Is there anything further from either side with respect to
this issue?

22

CDC[MR. COOMBS]:

23

TC[MAJ FEIN]:

No, Your Honor.

No, Your Honor.

7039

10818

MJ:

1

The next issue on the agenda is the defense motion to

2

preclude receipt by the enemy on the merits.

3

oral argument with this?

4

CDC[MR. COOMBS]:

5

TC[MAJ FEIN]:

6

MJ:

All right.

Does either side desire

No, Your Honor.

No, Your Honor.
The Court is prepared to rule on this issue as

7

well, but I’m going to take a 10-minute recess to give my voice a

8

rest.
Court is in recess.

9
10

[The Article 39(a) session recessed at 1028, 10 April 2013.]

11

[The Article 39(a) session was called to order at 1043, 10 April

12

2013.]

13

MJ:

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

Let the

14

record reflect all parties present when court last recessed are again

15

present in court.

16
17
18

The Court is prepared to rule on the defense motion to
preclude evidence of receipt by the enemy on the merits.
The defense moves to preclude the government from raising

19

or eliciting any discussion, reference or argument to include the

20

introduction of any documentary or testimonial evidence relating to

21

receipt by Al-Qaeda, Al-Qaeda in the Arabian Peninsula, the enemy

22

listed in Bates number 00410660 to 00410664 or any other enemy during

23

the merits portion of the trial.

The defense argues that the

7040

10819

1

evidence is not relevant to any of the charged offenses and even if

2

relevant, the probative value of receipt by the enemy is

3

substantially outweighed by the danger of unfair prejudice, confusion

4

of the issues or misleading the members or by considerations of undue

5

delay, waste of time for needless presentation of cumulative evidence

6

under Military Rule of Evidence 403.

7

The government opposes, arguing that this evidence is

8

relevant to the Specification of Charge I, giving intelligence to the

9

enemy, Article 104, UCMJ, and Specification 1 of Charge II, wanton

10
11

publication of intelligence, Article 92, UCMJ.
At oral argument, the government also argued the evidence

12

was relevant to the cause to be published element of Specification 1

13

of Charge II.

14

other purpose.

15

The government has not proffered this evidence for any

During the Article 39(a) session from 26 February through 1

16

March 2013, the Court invited the parties to file targeted briefs on

17

receipt of intelligence as a requirement for the offense of giving

18

intelligence to the enemy.

19

targeted brief.

20

the defense would not be filing a targeted brief.

On 29 March 2013, the government filed a

On 1 April 2013, the defense advised the Court that

21

After considering the pleadings, evidence presented and

22

argument of counsel, the Court finds and concludes the following:

23

Findings of fact:

7041

10820

One, the charges and -- the Court’s instructions for the

1
2

Charge of knowing giving intelligence to the enemy as charged in the

3

Specification of Charge I are:
Charge I, aiding the enemy.

4

In the Specification of Charge

5

I the accused is charged with the offense of aiding the enemy by

6

giving intelligence to the enemy in violation of Article 104, UCMJ.

7

In order to find the accused guilty of this offense you must be

8

convinced by legal and competent evidence beyond a reasonable doubt:

9

One, that at or near Contingency Operating Station Hammer,

10

Iraq, between on or about 1 November 2009 and on or about 27 May

11

2010, the accused, without proper authority, knowingly gave

12

intelligence information to certain persons, namely Al-Qaeda, Al-

13

Qaeda in the Arabian Peninsula and an entity specified in Bates

14

number 00410660 through 00410664, classified entity;
Two, that the accused did so by indirect means, to wit:

15
16

transmitting certain intelligence specified in a separate classified

17

document to the enemy through the WikiLeaks website;
Three, that Al-Qaeda, Al-Qaeda in the Arabian Peninsula and

18
19

Bates number 0041060 -- 660 through 0041664, classified entity, was

20

an enemy; and
Four, that this intelligence information was true at least

21
22

in part.

7042

10821

“Intelligence” means any helpful information given to and

1
2

received by the enemy, which is true at least in part.
“Enemy” includes not only organized forces in a time of

3
4

war, but also any hostile body that our forces may be opposing such

5

as a rebellious mob or a band of renegades, and includes civilians as

6

well as members of military organizations.

7

to the enemy government or its armed forces, all the citizen of one

8

belligerent or enemies of the government and the citizens of the

9

other.

10

Enemy is not restricted

“Indirect means” means that the accused knowingly gave

11

intelligence to the enemy through a third party, an intermediary or

12

in some other indirect way.

13

by the accused that by giving the intelligence to the third party or

14

intermediary or in some other direct way, that he was actually giving

15

intelligence to the enemy through this indirect means.

16

“Knowingly” requires actual knowledge

This offense that the accused had a general evil intent and

17

that the accused had to know that he was dealing directly or

18

indirectly with an enemy of the United States.

19

“Knowingly” means to act voluntarily or deliberately.

A

20

person cannot violate Article 104 by committing an act inadvertently,

21

accidentally, or negligently that has the effect of aiding the enemy.

22
23

Two, the definition of intelligence in this instruction is
taken from the Military Judge’s Benchbook, United States Department

7043

10822

1

of the Army Pamphlet 27-10 -- 27-9, excuse me, at 3-28-4(d), 1

2

January 2010, here and after referred to as the Benchbook.
Three, defense argues that the Benchbook instruction is an

3
4

inaccurate statement of the law and points to the language in Article

5

104, UCMJ, and the elements and definition.

6

giving intelligence to the enemy is a subset of communicating or

7

corresponding with the enemy under Article 104(2).
The defense relies on Article 104(c)5(a) that giving

8
9

The defense posets that

intelligence to the enemy is a particular case of corresponding with

10

the enemy, made more serious by the fact that the communication

11

contains intelligence.

12

104(c)6(a), that no response or receipt by the enemy is required and

13

relies on United States v. Olson 7 U.S.C.MA 460, Court of Military

14

Appeals, 1957.

It focuses on the explanation in Article

In its discussion of a previous version of the Manual for

15
16

Court's-Martial that the prohibition lies against any method of

17

communication whatsoever and the offense is complete the moment the

18

communication issues from the accused whether it reaches its

19

destination or not: Olson at 467, 68.
Defense further contends that allowing evidence of actual

20
21

receipt by the enemy will sidetrack and unnecessarily delay the

22

trial.

7044

10823

1

Four, the defense describes intelligence as a noun, such

2

that the Court’s proposed instruction defining intelligence conflates

3

defining intelligence with knowingly giving.

4

The government agrees.

Five, the government contends the evidence is relevant and

5

neither cumulative nor unfairly prejudicial.

6

receipt by -- of intelligence by the enemy is a definitional

7

requirement of intelligence citing R.C.M. 70 -- 307(c)3, defining a

8

specification as a plain, concise and definite statement of the

9

essential facts constituting the offense charged.

10

It further contends

The government cites the Benchbook for the definition of

11

intelligence and asserts William Winthrop Military Law and

12

Precedence, 634 2d edition, 1920 reprint as compelling legal

13

authority that “of specific instances of a direct violation of giving

14

intelligence to the enemy…it is necessary that the enemy shall have

15

been actually informed.”

16

the Court of Military Appeals have relied on Winthrop as authority in

17

UCMJ history: Hamdan v. Rumsfeld 548 U.S. 557, 597 2006; US v.

18

Batchelor 7 U.S.C.MA 354 at 368, 1956.

19

The government notes the Supreme Court and

The government contends that giving intelligence to the

20

enemy is a separate and distinct crime from communicating with the

21

enemy, citing United States v. Anderson 68 M.J. 378 at 385 Court of

22

Appeals for the Armed Forces 2010, and United States v. Dickerson 7

23

U.S.C.MA 438 Court of Military Appeals 1955.

7045

10824

1

The law -- excuse me Six, Specification 1 of Charge II

2

alleges wrongful and wanton causing to be published on the Internet

3

intelligence belonging to the United State Government, having

4

knowledge that intelligence published on the Internet is accessible

5

to the enemy, in violation of Article 92 -- excuse me, in violation

6

of Article 134.

7

received and downloaded the intelligence is relevant to prove that

8

the accused caused to be published the intelligence.

9

The government asserts the evidence that the enemy

The law.

One, Military Rule of Evidence 401 defines

10

relevant evidence; “relevant evidence” means evidence having any

11

tendency to make the existence of any fact that is of consequence to

12

the determination of the action more or less probable than it would

13

be without the evidence.

14

determine whether evidence is relevant under R.C.M. 401: U.S. v.

15

White 69 M.J. 236 Court of Appeals for the Armed Forces 2010.

16

A military judge has the responsibility to

Two, M.R.E. 402 provides that all relevant evidence is

17

admissible except as otherwise provided by the Constitution of the

18

United States as applied to members of the Armed Forces, the Code,

19

these rules, this manual or any act of Congress applicable to members

20

of the Armed Forces.

21

admissible.

22
23

Evidence that is not relevant is not

Three, relevant evidence is necessary when it’s not
cumulative and when it would contribute to a party’s presentation of

7046

10825

1

the case in some positive way in a matter at issue.

2

an issue when it’s stipulated as fact:

3

R.C.M. 703(b)(1).

4

A matter is not

R.C.M. -- discussion to

Four, R.C.M. -- M.R.E. 403 provides that relevant evidence

5

may be excluded if it’s probative value is substantially outweighed

6

by the danger of unfair prejudice, confusion of the issues or

7

misleading the members, or by considerations of undue delay, waste of

8

time or needless presentation of cumulative evidence.

9

Five, Article 104, UCMJ, penalizes in pertinent part any

10

person who without proper authority knowing harbors or protects or

11

give intelligence to or communicates or correspondence with or holds

12

any intercourse with the enemy, either directly or indirectly.

13

Six, in the MCM, Manual for Court's-Martial, page 4-21,

14

paragraph 28, the President has delineated separate elements and

15

definitions for the offenses of giving intelligence to the enemy and

16

communicating with the enemy.

17

Seven, in paragraph 28(c)(5), the nature of the offense

18

giving intelligence to the enemy is explained as “a particular case

19

of corresponding with the enemy made more serious by the fact that

20

the communication contains intelligence that may be useful to the

21

enemy for any of the many reasons that make information valuable to

22

belligerents.”

7047

10826

Eight, in paragraph 28(c)(6), the nature of the offense

1
2

communicating with the enemy is explained as, “No authorized

3

communication, correspondence or intercourse with the enemy is

4

permissible.

5

correspondence or intercourse are immaterial.

6

by the enemy is required.

7

communication, correspondence or intercourse issues from the

8

accused.”

The intent, content and method of the communication,
No response or receipt

The offense is complete the moment the

Nine, the analysis to Article 104 in Appendix 23, Manual

9
10

for Court's-Martial states that it is based on Paragraph 183 of the

11

1969 Manual and cites United States v. Olson 7 U.S.C.MA 460 Court of

12

Military Appeals 1957; United States v. Batchelor 7 U.S.C.MA 5 -- 354

13

Court of Military Appeals 1956; and United States v. Dickerson 7

14

U.S.C.MA 438 Court of Military Appeals 1955.

15

Ten, the Manual lists attempts as a lesser included offense

16

(LIO) for both giving intelligence to the enemy and for communicating

17

with the enemy. It does not list either offense as an LIO of the

18

other.

19

Eleven, in Batchelor the Court of Military Appeals

20

acknowledged Colonel William Winthrop as “probably the most respected

21

early writer in the field of military law,” and his “learned

22

treatise” cited in support of holding “that Article 104(2) of the

23

Code does not require a special criminal intent of any sort.”

7048

The

10827

1

Court of Military Appeals went on to note that the government is not

2

prohibited “from over proving its case in prosecutions under Article

3

104,” at 368.
The United States Supreme Court has referred to Winthrop as

4
5

the “Blackstone of Military Law,” Hamdan v. Rumsfeld 548 U.S. 557 at

6

597 2006; quoting Reid v. Covert 354 U.S. 1 at 19 note 38 1957.
Twelve, Winthrop defines the offense of giving intelligence

7
8

to the enemy as follows:

9

Giving intelligence to the enemy, this offense will consist

10

in communicating to the enemy by personal statement, message, letter,

11

signal or otherwise information in regard to the number, condition,

12

position or movement of the troops, amount of supplies, acts or

13

projects of the government in connection with the law of war or any

14

other fact or matter that may assist him in the prosecution of

15

hostilities.

16

informed.

17

offense is not completed, although the offense of holding

18

correspondence may be.

It is necessary that the enemy shall have been actually

If, therefore, the intelligence fails to reach him this

19

It would seem that the facts communicated should be part --

20

in part at least true, since if they are entirely false, intelligence

21

cannot be said to have been given.

22

Precedence 634 2d Edition, 1920 reprint, emphasis and original.

7049

William Winthrop Military Law and

10828

Thirteen, while military judges are encouraged not to

1
2

significantly deviate from standard instructions found in the

3

Military Judge’s Benchbook, the standard instructions are not

4

sacrosanct: United States v. Staton 68 M.J. 569 Air Force Court of

5

Criminal Appeals 2009.

6

case law.

7

Upholding deviations conforming to current

Because the standard Benchbook instructions are based on a

8

careful analysis of current case law and statute, an individual

9

military judge should not deviate significantly from these

10

instructions without explaining his or her reasons on the record:

11

United States v. Rush 51 M.J. 605 at 609 Army Court of Criminal

12

Appeals 1999.

13

Conclusions of law.

One, Article 104 includes elements for

14

five separate offenses: aiding the enemy, attempting to aid the

15

enemy, harboring or protecting the enemy, giving intelligence to the

16

enemy and communicating with the enemy.

17

distinct and separate from the other offenses:

18

Anderson 68 M.J. 378 Court of Appeals for the Armed Forces; quoting

19

United States v. Dickerson 6 CMA 438 Court of Military Appeals 1955.

20

Each of these offenses is
United States v.

The statutory language Article 104 UCMJ is silent with

21

respect to whether response or receipt by the enemy is required for

22

the offenses of communicating with the enemy and giving intelligence

23

to the enemy -- well, excuse me, with the effect of the offense of

7050

10829

1

giving intelligence to the enemy.

2

that the offense of communicating with the enemy is complete the

3

moment the communication, correspondence or intercourse issues from

4

the accused, Manual for Court's-Martial 4-41, paragraph 28(c)6a.

5

In the MCM the president explained

The explanation for the offense of giving intelligence to

6

the enemy does not state that the giving of intelligence is complete

7

the moment the giving issues from the accused.

8

consistent with Winthrop’s explanation of the distinctions between

9

the two offenses and a Judge Advocate General opinion regarding

This distinction is

10

Article 46 of the American Articles of War in 1874, the version of

11

the offense of aiding the enemy and effect at the time: William

12

Winthrop Military Law and Precedence 633, 634 2d Edition, 1920

13

reprint; William Winthrop Digest of Opinions of the Judge Advocates

14

General of the Army with notes 41, 42, 1895.

15

Three, aiding the enemy has been an offense in military

16

code since the American Articles of War in 1775: U.S. v. Batchelor 22

17

CMR 144 at 158 Court of Military Appeals 1956, “This provision,

18

Article 104, is not new or novel, for it was taken with only minor

19

changes from Article of War 81, 10 United States Code Section

20

1553…Indeed the present enactment bears a striking resemblance to

21

Article 28, American Articles of War 1775, which provided whosever

22

belonging to the Continental Army shall be convicted of holding

23

correspondence with or giving intelligence to the enemy, either

7051

10830

1

directly or indirectly, shall suffer punishment as by a General

2

Court-Martial shall be ordered.”

3

The gist of this penal statute has appeared in every

4

military code since that time.

5

War, 1874; Article 81, Articles of War, 1916 and 1920.

6

See Article 46, American Articles of

Batchelor went on to describe Winthrop as “probably the

7

most respected early writer in the field of military law.”

The Court

8

relied on Winthrop’s interpretation of Article 46, the predecessor to

9

Article 104, UCMJ, as defined in the 1951 Manual for Court's-Martial.

10

Four, the defense relies upon United States v. Olson 22 CMR

11

250 Court of Military Appeals 1957, to show that the offense of

12

communicating with the enemy has been interpreted consistently so as

13

to require absolutely non intercourse since early times, end at 467.

14

Olson does not address the separate offense of giving intelligence to

15

the enemy at issue in this case.

16

Five, the 1951 Article 104, UCMJ, is nearly identical to

17

the current Article 104, UCMJ.

18

executive or case law history since Batchelor that indicates any

19

intent by Congress, the President or the Court’s to interpret Article

20

104 inconsistently with its history as described by Winthrop and

21

relied upon in Batchelor to interpret the statute.

22
23

There has been no legislative,

The President has retained the distinction between
communicating intelligence to the enemy, an offense complete at the

7052

10831

1

moment the communication issues, and giving intelligence to the

2

enemy.

3

issues.

4

the Benchbook invoke the same distinction and are consistent with

5

Winthrop, with the definition requiring that intelligence means any

6

helpful information to -- given to and received by the enemy, which

7

is true at least in part.

No provision of the offense is complete when the giving

Six, the offense of Article 104, giving intelligence to the

8
9
10

Furthermore, the standard instructions for Article 104 and

enemy, requires the government to prove beyond a reasonable doubt
that the intelligence was actually received by the enemy.
Seven, the Court agrees with the parties that intelligence

11
12

is a noun and as such the current Benchbook in the Court’s

13

instructions, “Intelligence means any helpful information given to

14

and received by the enemy which is true at least in part,” is

15

awkward.

16

“Intelligence means any information that is helpful to the enemy and

17

which is true at least in part.

18

offense, the government must prove beyond a reasonable doubt that the

19

intelligence was given to and received by the enemy.”

20

The Court will reword the instruction to read,

To find the accused guilty of this

Eight, even if receipt by the enemy was not required,

21

evidence of the circumstances surrounding the receipt by the enemy is

22

relevant to the element of whether the accused knowingly gave

23

intelligence to the enemy for the specification of Charge I, aiding

7053

10832

1

the enemy.

Evidence of the path of the intelligence from the accused

2

to the enemy is circumstantial evidence relating -- relevant to prove

3

whether the accused knew or did not know he was dealing with the

4

enemy.

5

Nine, similarly, evidence of the circumstances surrounding

6

the enemy’s receipt of the intelligence is relevant to the caused to

7

be published element of Specification 1 of Charge II, wanton

8

publication.

9

Court will not decide whether there could be less prejudicial

10
11

As the evidence is also relevant to another charge, the

evidence to establish this element.
Ten, the evidence at issue is not cumulative, it’s

12

probative value is not substantially outweighed by the danger of

13

unfair prejudice, confusion of the issues or misleading the members,

14

or by considerations of undue delay, waste of time or needless

15

presentation of cumulative evidence.

16

will not sidetrack or unnecessarily delay the trial by shifting the

17

focus to whether or not the enemy actually received the charged

18

information.

19

evidence is not substantially outweighed by the danger of unfair

20

prejudice, confusion of the issues or misleading the members,

21

presentation of the evidence will not cause undue delay, waste of

22

time or needless presentation of cumulative evidence in accordance

23

with M.R.E. 403.

Allowing the evidence at issue

Unless the Court finds the probative value of the

7054

10833

Ruling.

1

The defense motion to preclude the government from

2

raising or eliciting any discussion, records or argument to include

3

the introduction of any evidence relating to the receipt of charged

4

information by Al-Qaeda, Al-Qaeda in the Arabian Peninsula, the enemy

5

listed in Bates Number 00410660 through 00410664 or any other enemy

6

from the merits portion of the trial is denied.

7

instructions regarding the Specification of Charge I will be amended

8

at stated in this ruling.

So ordered this 10th day of April 2013.

Does either side desire anything further with respect to

9
10

this ruling?

11

CDC[MR. COOMBS]:

12

TC:[MAJ FEIN]: No, Your Honor.

13

MJ:

14
15

The Court’s

No, Your Honor.

Have it marked as the next Appellate Exhibit in line.

[The ruling was so marked]
MJ:

All right.

My notes indicate that what we have left is the

16

Court is preparing, as I said, a draft closure -- draft order with

17

respect to the things that were discussed in the R.C.M. 802

18

conference.

19

M.R.E. 505(i) hearing.

20

this session.

21
22
23

I’m going to need a little time with that.

TC[MAJ FEIN]:

Is there anything else we need to litigate at

Ma’am, when you said 505(i) hearing, you mean the

ex parte session?
MJ:

We have the

Yes.

7055

10834

1

TC[MAJ FEIN]:

No, ma'am.

We -- the government also by lunch or

2

during lunch will have the draft closure orders ready for the Court

3

to review for the four witnesses.

4

MJ:

I’m thinking the way to do this best might be to do the

5

505(i) hearing, taking lunch and then come back on the record and

6

I’ll be able to look at your closure orders as well and you can get

7

the copy to the defense and then address those orders and then the

8

Court will have a little bit of time to do what I need to do with

9

respect to the draft order from the R.C.M. 802 conference.

10

If we

reconvened later this afternoon, would that work for the parties?

11

CDC[MR. COOMBS]:

12

TC[MAJ FEIN]:

13

MJ:

14

TC[MAJ FEIN]:

15

CDC[MR. COOMBS]:

16

MJ:

Yes, Your Honor.

Yes, Your Honor.

I’m thinking something to the effect of 1500ish?

All right.

Yes, ma'am.
Yes, Your Honor.
So, how long will it take the government to be

17

prepared for that M.R.E. 505(i) hearing and to give the Court and the

18

defense the draft orders?

19

TC[MAJ FEIN]:

20

MJ:

21

Ma’am, may we have an in place recess?

Yes.

[There was a pause while the trial counselors conferred.]

7056

10835

1

TC[MAJ FEIN]:

Ma’am, no more than 20 minutes.

I -- we could

2

let the Court know only because we have to set the court reporter

3

equipment up; otherwise, the government will be ready, Your Honor.

4
5

MJ:

All right.

Is there anything else we need to address

before we recess the Court?

6

CDC[MR. COOMBS]:

7

TC[MAJ FEIN]:

8

MJ:

9
10

All right.

No, Your Honor.

No, Your Honor.
Court is in recess.

We will reconvene at 1500.

[The Article 39(a) session recessed at 1106, 10 April 2013.]
[END OF PAGE]

7057

10836

Pages 7058 through 7080 of this
transcript are classified
“SECRET”. This session (10
April 2013, Session 1) is sealed
for Reasons 2 and 4, Military
Judge’s Seal Order dated 17
January 2014 and stored in the
classified supplement to the
Record of Trial.

10837

1

[The Article 39(a) session was called to order at 1531, 10 April

2

2013.]

3

MJ:

Let the record reflect all parties present when the Court

4
5

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

last recessed are again present in court.
During the recess, I held a second ex parte Article 39(a)

6
7

session with the government with respect to the government’s Military

8

Rule of Evidence 505(i) motion for the witness John Doe.

9

parte session involved the defense discovery issues.

That ex

Does either side have anything they would like to present

10
11

at this time with respect to any of the motions that have been filed

12

with respect to the interplay between M.R.E. 505(i) and the Rule for

13

Closure under R.C.M. 806(b) or the government’s 505(i) motion with

14

respect to John Doe or their omnibus closure motion with respect to

15

the three classified witnesses, John Doe and the 24 other witnesses?

16

CDC[MR. COOMBS]:

17

TC[MAJ FEIN]:

No, ma'am.

No, ma'am, with one exception.

After the ex

18

parte session that you just discussed on the record, the government

19

went back and at about 1430 today disclosed the three documents that

20

were subject to that motion or that hearing, excuse me, to the

21

defense.

22

possession.

They have two copies of those three document in their

7081

10838

1

MJ:

Thank you.

I’m going to announce the ruling of the Court.

2

I’ve sort of got a big omnibus ruling here that takes care of all of

3

those issues.

4

conference and discussed some follow on actions that will make more

5

sense after I announce the ruling to you.

6

After that, the parties and I spoke at an R.C.M. 802

Ruling and order, interplay between Military Rule of

7

Evidence 505, R.C.M. 806 and United States v. Grunden, Specificity of

8

Classified Information and John Doe.

9

Motion One.

The government moves this Court to find that

10

M.R.E. 505(i) classified information and R.C.M. 806 operate

11

independently of each other, although both rules address the use of

12

classified information during a court-martial trial.

13

opposes and moves the Court to require the procedures in M.R.E.

14

505(i) be followed when making closure determinations in accordance

15

with Rule for Court-Martial 806(b)(2).

16

Motion Two.

The defense

On 15 March 2013, the government provided the

17

Court and the defense with a supplement to Prosecution Response to

18

Scheduling Order 39(a) Session on Closure and Motion to Close the

19

Courtroom for Specified Testimony.

20

moved the Court to order the government to provide more specificity

21

regarding the classified information it seeks to elicit during the

22

trial -- during the closed session.

23

to order the government to produce a merits witness and a sentencing

7082

On 28 March 2013, the defense

The defense also moved the Court

10839

1

witness to go through a “dry run” of the classified testimony in a

2

closed Article 39(a) session to address whether there are reasonable

3

alternatives to closure available.

4

Motion Three.

On 31 January 2013, the government moved for

5

an in camera proceeding under Military Rule of Evidence 505(i)(2)

6

regarding the witness John Doe to determining the necessity for

7

moving the Court to order the following:

8
9
10
11
12

One, permit the witness to testify under the pseudonym John
Doe, to testify in civilian clothing and light disguise, and to
testify from an alternate location in a closed session.
Two, limit discovery and cross-examination regarding
information that could reveal the witness’s true identity.

13

And three, limit discovery and cross-examination by

14

precluding the defense from questioning the witness regarding

15

irrelevant and highly classified information including his training

16

for a specific classified mission, preparation for the mission or

17

details of the mission’s execution outside the scope of direct

18

examination.

19
20
21

After considering the filings by the parties and oral
argument, the Court finds and rules and orders as follows:
Findings of fact and the law:

7083

10840

One, the accused has a Sixth Amendment right to a public

1
2

trial:

Waller v. Georgia 467 U.S. 39 1984; U.S. v. Ortiz 66 M.J. 334

3

Court of Appeals for the Armed Forces 2008.
The public has a First Amendment right to attend public --

4
5

criminal trials: Press Enterprise Company v. Superior Court of

6

California Riverside County 464 U.S. 501 1984; Howell v. McKinney 47

7

M.J. 363 Court of Appeals for the Armed Forces 1997.
Trial courts are obligated to take every reasonable measure

8
9

to accommodate public attendance at criminal trials to include

10

considering alternatives to closure even when they are not requested

11

by the parties:

Presley v. Georgia 558 U.S. 209 2010.

12

Two, the values enhanced by the requirement are to:

13

One, inspire public confidence that the accused is fairly

14

dealt with and not unjustly condemned; two, impress upon trial

15

participants the importance of their function and the importance of

16

carrying out their duties responsibility; three, encourage witnesses

17

to come forward; and four, to discourage perjury:

18

at 46.

19

Waller, 467 U.S.

Openness enhances both a basic fairness of the criminal

20

trial and the appearance of fairness so essential to public

21

confidence in the criminal justice system: Press Enterprise, 464 U.S.

22

at 506 to 509.

7084

10841

1

Three, before the Military Rules of Evidence were enacted

2

in 1980, military case law allowed closure of courts-martial for

3

portions of the trial where classified information was to be

4

disclosed: U.S. v. Grunden 2 M.J. 116 Court of Military Appeals 1977,

5

established the test for such closures.

6

Under the current rules, Military Rule of Evidence 505

7

governs the use of classified information at trial.

M.R.E. 505(i),

8

which are in camera proceedings for cases involving classified

9

information authorizes in camera proceedings to address the use at

10

any proceeding of any classified information.

11

the introduction of classified information into evidence at trial.

12

M.R.E. 505(j)(5) closed session provides that the military judge may

13

exclude the public during that portion of the presentation of

14

evidence that discloses classified information.

15

M.R.E. 505(j) governs

Five, R.C.M. 806 establishes the standards for closure for

16

trial for any reason to include the protection of classified

17

information.

18

Six, prior to its amendment in 2004, R.C.M. 806(b) provided

19

in relevant part that “A session may be closed over the objection of

20

the accused only when expressly authorized by another provision of

21

this manual.”

22

may be closed without the consent of the accused only under an M.R.E.

23

412(c), 505(i) and (j) or 506(i).

The discussion to the rule explained that “A session

7085

This authorization of trial

10842

1

closure failed to apply the constitutional tests set forth in Waller

2

and Press Enterprise and adopted by the Court of Appeals for the

3

Armed Forces in United States v. Hershey 20 M.J. 433 at 436 Court of

4

Military Appeals 1985.
Seven, in 2004, R.C.M. 806(b)(2) was amended to incorporate

5
6

the constitutional test for trial closure.

The rule provides that

7

trial “Shall be open to the public unless: one, there is a

8

substantial probability that an overriding interest will be

9

prejudiced if the proceedings remain open; two, closure if no broader

10

than necessary to protect that overriding interest; three, reasonable

11

alternatives to closure were considered and found inadequate; and

12

four, the military judge makes case specific findings on the record

13

justifying closure.”
Eight, the Court of Appeals for the Armed Forces (CAAF) has

14
15

recognized that the protection of classified information can be an

16

overriding interest that will be prejudiced if the proceedings remain

17

open:

18

Military Review 1990, affirmed 35 M.J. 396 Court of Appeals for the

19

Armed Forces 1992; and United States v. Grunden 2 M.J. 116 Court of

20

Military Appeals 1997.

21

United States v. Lonetree 31 M.J. 849 Navy Marine Court of

Nine, where the identity of a witness is classified or the

22

government proves that the witness’s personal safety would be at risk

23

if his identity is disclosed at trial, the Sixth Amendment allows the

7086

10843

1

government to withhold the identity of the witness and to allow the

2

witness to testify in light disguise so long as the defense is able

3

to place the witness in his proper setting:

4

Lonetree 35 M.J. 396 Court of Military Appeals 1992.

5

United States v.

Ten, in the government’s 15 March 2013, classified filing:

6

Supplement to Prosecution Response for Scheduling Order 39(a) Session

7

on Closure and Motion to Close Courtroom for Specified Testimony, the

8

government describes the classified information it moves to illicit

9

in closed session for the following witness:

One, Brigadier General

10

(retired) Robert Carr, DIA; two, Colonel Julian Chesnutt, DIA; three,

11

classified witness entirety; four, Miss Elizabeth Dibble, Department

12

of State, Principle Deputy Assistant Secretary, Bureau of Near

13

Eastern Affairs; five John Doe, entire; six, Rear Admiral Kevin

14

Donegan, Naval Warfare Integration Pentagon; seven, Mr. John Feeley,

15

Principle Deputy Assistant Secretary, Bureau of Western Hemisphere

16

Affairs, Department of State; eight, Ambassador Patrick F. Kennedy,

17

Under Secretary for Management, Department of State; nine, Mr. John

18

Kirchhofer, DIA; ten, Ambassador Michael Kozak, Department of State;

19

eleven, classified witness entirety; twelve, Mr. Danny Lewis, DIA;

20

thirteen, Mr. Randal MacRobbie, DIA; fourteen, Mr. James McCarl,

21

Joint IED Defeat Organization (JIEDDO); fifteen, Major General

22

Kenneth McKenzie, USMC Headquarters staff; sixteen, Mr. James Moore,

23

Department of State; seventeen, Major General Michael Nagata, Joint

7087

10844

1

Staff, Pentagon; eighteen, SSA Alexander Otte, FBI; nineteen,

2

Ambassador David Pearce, Department of State; twenty, Mr. Adam

3

Pearson, JIEDDO; twenty-one, Mr. H. Dean Pittman, Department of State;

4

twenty-two classified witness in entirety; twenty-three, Ambassador Stephen

5

Seche, DoS; twenty-four, Mr. David Shaver, US Department of Treasury;

6

twenty-five, Mr. Catherine Strobel, CIA; twenty-six, Ambassador Don

7

Yamamoto, Department of State; twenty-seven, Ambassador Marie Yovanovitch,

8

Department of State; and twenty-eight, Mr. Joseph Yun, Department of State.

9

Eleven, on 4 April 2013, the Court held an R.C.M. 802 conference

10

with the parties to discuss the motions at issue in this case and scheduling

11

issues involved in implementing this order.

12

the defense advised the Court it did not object to closure for the three

13

classified witnesses or for John Doe, and did not object to John Doe

14

testifying at an alternative location or in light disguise, in civilian

15

clothing so long as the light disguise allows the defense to observe John

16

Doe’s demeanor.

17

and it has been read on the record.

At that R.C.M. 802 conference

The substance of that R.C.M. 802 is documented by an e-mail

18

Conclusions of law.

19

One, M.R.E. 505(i) authorizes the government to request an in

20

camera proceeding to determine whether classified information may be used by

21

the -- may be disclosed either to the accused in discovery or used during

22

the trial.

23
24

Two, M.R.E. 505(j) governs the introduction of classified
information into evidence in the trial.

7088

M.R.E. 505(j)(5) authorizes

10845

1

military judges to close the trial during that portion of the presentation

2

of evidence that discloses classified information.

3

Three, the First and Sixth Amendment rights to a public trial

4

require the judges to employ the constitutional test for closure in

5

accordance with R.C.M. 806(b)(2) prior to closing any portion of the trial

6

in accordance with M.R.E. 505(j)(5).

7

Four, the requirements of M.R.E. 505(i) are not applicable when

8

the government requests closure of a portion of the trial or an Article

9

39(a) session in accordance with R.C.M. 806(b)(2).

Where the basis of the

10

closure is to protect national security by preventing disclosure of

11

classified information, the government must identify the particular

12

classification -- classified information at issue to the defense and the

13

court with sufficient specificity to allow the defense to propose

14

alternatives and to challenge closure and to provide the Court with

15

sufficient information to apply the R.C.M. 806 test and determine whether

16

there is a substantial probability that an overriding interest would be

17

prejudice if the procedure -- proceedings remain open; two, closure is no

18

broader than necessary to protect that overriding interest; three, whether

19

there are reasonable alternatives to closure and that they have been

20

considered and found inadequate; and four, to make case specific findings on

21

the record justifying closure.

22

The government must also provide the Court with evidence that the

23

information it seeks to qualify as an overriding interest requiring

24

protection by closure is properly classified.

7089

10846

1

Five, the Court has examined the government’s 15 March 2013,

2

classified supplement to Prosecution Response to Scheduling Order 39(a)

3

Session on Closure and Motion to Close the Courtroom for specified

4

testimony.

5

seeks to elicit during the closed session for each of the identified

6

witnesses is sufficiently specific for the defense to challenge closure and

7

to propose reasonable alternatives to closure.

8

the classified information is sufficient -- sufficiently specific, the

9

government has not provided the Court with evidence of the classified nature

The description of the classified information the government

Although the description of

10

for all of the classified information at issue to allow the Court to

11

properly apply the R.C.M. 806(b)(2) test and to make appropriate case

12

specific findings.

13

Six, one alternative that can mitigate the impact of closure is

14

for the Court to require the government to transcribe closed sessions first,

15

conduct the appropriate classification reviews on the transcribed record and

16

to release the redacted unclassified portion of the transcript of the closed

17

session to the public.

18

Seven, the Court has examined the classified government motion

19

for in camera proceeding under M.R.E. 505(i)(2) and the enclosures to

20

include enclosures 10, 12 and 13.

21

39(a) session with the government to address defense discovery issues.

22

government proposes to give the defense a written copy of the government’s

23

proposed direct examination of John Doe and the anticipated responses:

24

Enclosure 10.

25

of relevant discovery: Enclosure 9, in part and Enclosure 13.

The Court has held two in camera Article
The

The government also proposes to provide the defense a summary

7090

The Court

10847

1

finds that these disclosures are sufficient to allow the defense to place

2

the witness in his proper setting.
Ruling.

3

The defense motions to require the use of the procedures

4

in M.R.E. 505(i) for proceedings addressing closure determinations under

5

R.C.M. 806(b)(2) and for the government to provide more specificity to the

6

defense regarding the classified information proposed for disclosure are

7

denied.
The defense motion to produce a “dry run” government merits

8
9
10

witness to testify in a closed Article 39(a) session to assist the Court in
determining if there are reasonable alternatives to closure is granted.

11

The government motion to permit a classified witness to testify

12

pseudonym John Doe, to testify in civilian clothing, in light disguise and

13

to testify from an alternative location in a closed session is granted, so

14

long as the light disguise allows the defense to observe the witness’s

15

demeanor, body language, eye movements and facial reactions.
The government motion to limit discovery and cross-examination

16
17

regarding information that could reveal John Doe’s true identity and

18

preclude the defense from questing John Doe regarding irrelevant and highly

19

prejudicial classified -- highly classified information including his

20

training for a specific classified mission, preparation for the mission or

21

details of the missions execution outside the scope of direct examination is

22

granted.

23

this witness in a separate ruling.

24
25

The Court will set forth its R.C.M. 806(b)(2) closure findings for

Order.

No later than 7 May -- One, no later than 7 May 2013, the

government will provide the Court with evidence of the classified nature of

7091

10848

1

each piece of classified information the government seeks to assert as an

2

overriding interest justifying closure and with a draft order specifying the

3

evidence for the specified classified information.

4

Two, no later than 12 April 2013, the government will provide the

5

Court and the defense a status update on the progress made to identify a

6

merits witness for whom the government seeks closure based on disclosure of

7

classified information to be produced for a dry run of his or her testimony

8

at the closed Article 39(a) session scheduled 7, 8 May 2013.

9

The parties have identified several witnesses who would testify

10

similarly, but disclose different classified information; for example,

11

original classification authorities.

12

those “categorical” witnesses.

13

trial, in the closed session, to facilitate the Court’s determination

14

whether there are reasonable alternatives to closure.

15

The witness produced will be one of

The witness will testify as he/she would at

Pursuant to R.C.M. 806(b)(2), the Court finds that closure of the

16

Article 39(a) session is required to prevent disclosure of classified

17

national security information from this witness, is narrowly tailored to

18

closing only the out of court session intended to flush out the classified

19

information at trial -- excuse me, the classified information involved, and

20

to determine whether there are reasonable alternatives to closure of the

21

same classified information at trial.

22

reasonable alternative to closure of this Article 39(a) session.

23
24

The Court further finds there is not

Three, no later than May 6, 2013, the government will provide the
Court will a plan for expeditious transcription, authentication,

7092

10849

1

classification review and release of redacted versions of closed sessions to

2

the public.

3

So ordered this 10th day of April, 2013.

4

Now, as I said earlier, the parties and I met in an R.C.M. 802

5

conference briefly just before coming out in court today, and the government

6

has already given the defense the discovery that I described in the ruling.
Major Fein, I know you’ve already said it once, but why don’t you

7
8

say it again?

9

what you gave the defense?

10

It may have more context now in light of the Court’s ruling,

TC[MAJ FEIN]:

Yes, ma'am.

The United States produced to the defense

11

in hard copy two full copies of the three documents the court referenced: a

12

portion of Enclosure 9 to Appellate Exhibit 477; what is Enclosure 13, a

13

summary discoverable information to the defense -- excuse me, Enclosure 32

14

of Appellate Exhibit 477; and then a complete copy of our proposed direct

15

examination with the proffered answers that John Doe would give during his

16

testimony, that is Enclosure 10 to Appellate Exhibit 477.

17
18
19

MJ:

All right.

conference.

Defense, you made a proposal to me in the R.C.M. 802

I want to make sure that we put this on the record.

CDC[MR. COOMBS]: Yes, ma'am.

We’ve had a chance to look at what the

20

government has given us, and based upon that we do have questions.

21

propose that we draft those questions in the form of an interrogatory.

22

can have that for the government by the 19th of April, provide the

23

government with a week in order to review that.

24

objection, have them lodge their objection by the 26th of April; and if they

25

do, in fact, file an objection, we’ll file a response by the 3rd of May.

7093

We
We

If they do have an

10850

1

MJ:

2

CDC[MR. COOMBS]: I was giving myself two more days.

3

the 3rd of May or the 1st of May?

ma’am.

4

MJ:

5

CDC[MR. COOMBS]: I don’t think so.

6

MJ:

7

CDC[MR. COOMBS]: Yes, ma'am.

8

MJ:

9

The first of May,

Do you need those two more days?

All right.

All right.

You know where to find me if you do.

So the 19th of April then would be the

interrogatories, the 26th would be the objections and the 1st of May would

10

be the reply.

I’ve asked the government to build an updated trial calendar.

11

Our current trial calendar doesn’t contain the session we just set this time

12

for 7 and 8 May as well as those additional suspense dates that we’ve placed

13

in here based upon my order and based upon what Mr. Coombs just said.

14

we’re going to do with that is the government will draft that, send it to

15

the parties and myself via e-mail and we’ll put that calendar on the record

16

at the next session.

What

Now, the government -- I’ve also asked the government for two

17
18

draft closure orders: one for John Doe and one for the three classified

19

witnesses.

20

to take those orders, go back and look at all the exhibits and then come

21

back with my decisions with respect to closure for those four witnesses.

22

The government has provided me with the draft orders.

I intend

I think as we already placed on the record, until we do that dry

23

run on the 7th and the 8th, and I get the additional evidence that I need

24

from the government to make any findings for closure, any findings from the

7094

10851

1

Court with respect to the other 24 witnesses will not be made until after

2

that 7 and 8 May session.
Is there anything else that we need to address before we, I guess

3
4

we recess the Court for this entire session?

5

CDC[MR. COOMBS]: Nothing from the defense, Your Honor

6

TC[MAJ FEIN]:

7

MJ:

8
9

All right.

No, ma'am.
Court is in recess then until the 7th of May at 0930,

once again?
TC MAJ FEIN]:

Ma’am, I’m sorry, right before we actually go on

10

recess, the intent is we start with a closed session on 7 May or an open

11

session?

12

MJ:

That’s actually a good point.

The 7 and 8 May session is going

13

to be right now -- the only thing we really have scheduled substantively is

14

that closed session for the witness and if there are issues with respect to

15

the interrogatory, what we will do is we will address them first on the 7th

16

when we initially open up.

17

now and then that we need to actually address, we will go ahead and go on

18

the record in an open session.

19

don’t anticipate that open session is going to be very long.

20

TC[MAJ FEIN]:

If there is anything else that arises between

Based on what we currently have at issue, I
We shall see.

So ma’am, just for clarification for all parties,

21

including potential spectators and the press, we will have an open session,

22

but we, as of now, expect it to be a very, very short open session and then

23

move directly into a closed session?

24
25

MJ:

If there are no issues with respect to the interrogatory, the

open session will be to the extent of, “Hello, the Court is now in session,

7095

10852

1

present are everybody.

2

“no,” we’ll go immediately into closed session.

3

be very, very short. If there are objections to the interrogatories, that

4

will certainly be coming on, so it may be longer than that.

5

at this point I can put out anything more definitive than that. Perhaps

6

after the interrogatories have been drafted and the government decides

7

whether you have any kind of an objection to that, maybe there is something

8

that could be put out the spectators and the media ----

9

TC[MAJ FEIN]:

10

MJ:

11

TC[MAJ FEIN]:

Do we have any issues to address?”

Yes, ma'am.

If the answer is

That’s what I mean, it may

I don’t think

What the government was going ----

---- that the open session will be longer ------- to propose is that if during that period of time,

12

if -- if the parties agree with the concurrence that it looks like the open

13

session will be this very short period of just administrative accounting and

14

moving right in, that a public affairs announcement be made so the public

15

would know that essentially it’s going to be -- most majority a closed

16

session.

17

MJ:

18

CDC[MR. COOMBS]: No objection, Your Honor.

19

MJ:

20

TC[MAJ FEIN]:

21

MJ:

22
23

Defense, do you have any objection to that?

No, I think that’s an excellent idea.

All right.

Yes, ma'am.
Court is in recess.

[The Article 39(a) session recessed at 1556, 10 April 2013.]
[END OF PAGE]

7096

10853

1
2
3
4

[The Article 39(a) session was called to order at 1552, 7 May 2013.]
MJ:

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

Counsel, please account for the parties.
TC[MAJ FEIN]:

Your Honor, all parties, when the court last

5

recessed, are again present with the following exception:

6

Robertshaw, court reporter, is absent.

7

who has been previously sworn, is present.

8
9

Trial

MJ:

Mr.

Mr. Chavez, court reporter,

All right, as we discussed last session, we inserted

today's session and tomorrow's session into the case calendar.

10

Today, so we can have an open session and go over everything that has

11

transpired since the last session we held an then tomorrow--followed

12

by a closed session tomorrow to go over a--I just heard an echo.

13

What was that?

14
15

TC[MAJ FEIN]:
the court.

16

MJ:

17

TC[MAJ FEIN]:

18
19

Ma'am, the United States will find out and notify

Is there any reason we need to stop the proceedings?
Ma'am, if we could have 30-second, in-place

recess?
MJ:

All right. Court is in recess in place.

20

[The Article 39(a) session recessed in place at 1553, 7 May 2013.]

21

[The Article 39(a) session was called to order at 1554, 7 May 2013.]

22
23

MJ:

Court is called to order.

Let the record reflect all

parties present when the court last recessed are again present in

7097

10854

1

court.

I was advised by the court reporter that it was an automation

2

glitch from the court reporting equipment, so we're all ready to

3

proceed.

4

As I stated earlier, this session was inserted, today, for

5

the purposes of the open session and then tomorrow for the closed

6

session to go over the testimony of a particular witness who--as sort

7

of a dry-run test to see whether we have alternatives to closure to

8

protect classified information in this case.

9

On 30 April 2013, the government had sent me a press

10

release that was intended to be released to the public regarding the

11

proceedings today and tomorrow.

12

they were proposing to put in there.

13

the press release was fine.

14
15

the press release?
CDC[MR.COOMBS]:

17

TC[MAJ FEIN]:

18

MJ:

20

Other than that, the Court said

Does either side have any objection or any other issue with

16

19

I made them take out a sentence that

All right.

No, Your Honor.
No, Your Honor.
Major Fein, would you like to put on the record

what appellate exhibits have been added since the last session?
TC[MAJ FEIN]:

Yes, ma'am.

Ma'am, on the 14th of April 2013,

21

the defense filed an--interrogatories for Mr. John Doe that's been

22

marked as Appellate Exhibit 526 and that includes the defense email

7098

10855

1

and government email chain that ended on the 17th of April 2013, as

2

appended to that Appellate Exhibit 526.

3

On the 15th of April 2013, the Court issued her order for

4

the case calendar that was--has been marked as Appellate Exhibit 519,

5

and, subsequently, the corrected copy, dated 17 April 2013 which has

6

replaced that appellate exhibit as Appellate Exhibit 519.

7

On the 17th of April 2013, the government requested leave

8

of the court to file alternatives--excuse me, to file alternative--

9

the alternatives to disclosing--or alternatives to closure for

10

classified information during court.

11

the Court made her ruling.

12

Exhibit 520 and the Court's ruling was Appellate Exhibit 521.

13

MJ:

14

TC[MAJ FEIN]:

And on the 17th of April 2013,

The government's filing was Appellate

And for the record, the Court granted it.
And, ma'am, based off of that, yesterday--to skip

15

ahead--on the 6th of May 2013, the government filed its proposed

16

alternatives to classified information and that has been marked as

17

Appellate Exhibit 530.

18

On 19th April 2013, the government notified the defense and

19

the Court that it intended to call Ambassador Yamamoto, the Acting

20

Assistant Secretary and Principle Deputy Assistant Secretary for

21

African Affairs for the Department of State, as the witness for the

22

dry-run session, tomorrow, during the closed hearing.

7099

10856

1

On the 22nd of April 2013, the government provided notice

2

to the Court, in reference to the defense's M.R.E. 505 notice that's

3

been marked as Appellate Exhibit 522.

4

On the 22nd of April 2013, the government filed notice with

5

the Court to give an update on the security clearances for the three

6

witnesses the defense has requested access the classified

7

information, based off them being civilians and that's been marked as

8

Appellate Exhibit 523.

9

On the 23rd of April 2013, the defense requested leave of

10

the court for filing its Grunden filing.

That has been marked as

11

Appellate Exhibit 524.

12

24th of April 2013, the defense also notice of its intent to use

13

classified information for proposed court closure.

14

marked as Appellate Exhibit 525.

15

prosecution and sent--the prosecution sent, via SIPRNET, to the

16

Court.

Excuse me, Your Honor.

Your Honor, on the

That's been

That was delivered to the

17

On the 29th of April 2013, the government responded to the

18

defense interrogatory questions for Mr. John Doe via SIPRNET and the

19

original file was marked--or has been marked as Appellate Exhibit

20

528.

21

redacted version and that has been filed--or, excuse me, marked as

22

Appellate Exhibit 527.

Also, on the same day, the government filed an unclassified,

7100

10857

1

On the 1st of May 2013, the government requested leave of

2

the court to provide its plan to execute immediate transcription of

3

closed sessions for public release and that request has been marked

4

as Appellate Exhibit 529.

5

MJ:

What was the date of that, again?

6

TC[MAJ FEIN]:

7

MJ:

All right.

Your Honor, the 1st of May 2013.
And, for the record, the defense request for a

8

2-day delay to file their Grunden matters was not objected to by the

9

government.

The Court approved that delay.

10

The 1 May request by the government to--for leave of the

11

court to have until 20 May 2013 to file their plan for transcripts

12

and classification reviews for closed sessions, also, was not

13

objected to by the defense and the Court granted that motion as well.

14

I held an R.C.M. 802 conference with counsel before we

15

began today.

16

and scheduling and sort of the order of march for the issues that

17

we'll be addressing today.

18

have a question for the defense.

19

the Article 39(a) session in April when we were discussing the

20

closure for the witness, John Doe, as well as three classified

21

witnesses--the defense advised me that they didn't object to closure

22

for those four witnesses and I was confused by the defense Grunden

23

filing as to whether that may be the case with one of them.

What that is is a conference where I discuss logistics

And, in the R.C.M. 802 conference, I did
I had understood, earlier, during

7101

10858

1
2

Would the defense clarify their position, please?
ADC[MAJ HURLEY]:

Absolutely, ma'am.

We apologize for the

3

confusion.

4

that, with respect to those four witnesses, we do not object to court

5

closure.

6

filing towards the end of this week, ma'am, or over the weekend.

7

And, in that filing, we'll clear up the confusion for the Court.

8

MJ:

We maintain our position as it was stated to you earlier

I anticipate filing that corrected copy of our Grunden

All right.

And in that 802, the Court, also, had asked the

9

defense whether they had filed a--that was a classified filing from

10

the defense--as to whether the defense had filed a redacted version

11

of that filing and the defense had not and I would ask that the

12

parties get together and make sure that there is a redacted filing of

13

that Grunden filing as well.

14

ADC[MAJ HURLEY]:

15

TC[MAJ FEIN]:

16

MJ:

Yes, ma'am.

All right.

Yes, ma'am.
I am prepared to rule on the order to close

17

proceedings with respect to Mr. Doe, but, before I get there, does

18

either side want to address any issues, now, on the record?

19

TC[MAJ FEIN]:

20

MJ:

21

CDC[MR.COOMBS]:

22

MJ:

Ma'am, may we have a moment?

Yes.
Nothing from the defense, Your Honor.

All right.

7102

10859

1

TC[MAJ FEIN]:

Ma'am, the only thing the United States would

2

recommend is a possible summary of the 802 conference this morning--

3

or this afternoon.

4

MJ:

5

TC[MAJ FEIN]:

6

Summary of the----

before this session.

7

MJ:

8

TC[MAJ FEIN]:

9

MJ:

10

Of the 802 conference that had occurred right

That we just did?

All right.

Yes, ma'am.
Well, most of that was what we just went over--

--

11

TC[MAJ FEIN]:

12

MJ:

Yes, ma'am.

----was the housekeeping.

We also discussed the potential-

13

-there may be some grants of immunity coming.

14

works, is that correct?

15

TC[MAJ FEIN]:

16

MJ:

Those are in the

All right.

Yes, ma'am, they are.
And, at this point, does either side wish the

17

Court to go into any greater specificity until we have some

18

specificity on what happens with those?

19

TC[MAJ FEIN]:

20

MJ:

21

CDC[MR.COOMBS]:

No, ma'am.

Okay.
No, Your Honor.

7103

10860

1

MJ:

All right.

There was additional discussing of,

2

potentially, looking at certain reports and trying to track down

3

certain witnesses.

4
5
6

Does the--do the parties desire the Court to go over that
on the record?
TC[MAJ FEIN]:

No, ma'am, the reports that the parties are

7

working for a potential stipulation for the three different reports

8

and any witness issues the government--because it's the government's

9

responsibility to ensure all the witnesses attend--participate in the

10

court-martial.

11

any continuing issues.

12
13

MJ:

We'll notify the Court and the defense if there are

Okay.

Any security clearance issues the parties wish to

put on--put forth on the record?

14

CDC[MR.COOMBS]:

15

TC[MAJ FEIN]:

16

MJ:

Okay.

No, Your Honor.
No, Your Honor.

All right, as I said, the Court is prepared to rule

17

on the order--and order closed proceedings with respect to the

18

witness, John Doe.

19

1.

The government moves the Court to order trial

20

proceedings closed to the public when certain classified information

21

is being introduced or is the subject of examination or argument to

22

ensure that the information specified in the government's motion is

23

not disclosed to the public.

Appellate Exhibit 479.

7104

On 1 March

10861

1

2013, the Court required the government to resubmit its request with

2

more specificity.

3

government resubmitted its request with more specificity.

4

Exhibit 505.

5

the threat to his safety as an additional overriding interest to

6

close the proceedings during his testimony.

7

2.

Appellate Exhibit 503.

On 15 March 2013, the
Appellate

Regarding the witness, John Doe, the government offers

Appellate Exhibit 477.

This ruling sets for the Court's findings with respect

8

to the portion that the government motion to close the proceedings

9

for the entire testimony of John Doe.

The defense does not object to

10

the government's motion to close the proceedings for the entire

11

testimony of John Doe.

12

Findings of fact:

13

1.

The government intends to introduce classified evidence

14

from the testimony of John Doe.

15

the classified information at issue is in the public domain or has

16

been officially acknowledged by the government.

17

2.

No evidence has been presented that

The government presented evidence demonstrating that

18

John Doe's identity is classified and that the classified information

19

at issue is national security information requiring protection from

20

public disclosure.

21

Exhibit 477.

22

Exhibit 477 and its enclosures that public disclosure of the identity

Enclosures 1, 4, 5, 6, 7, and 8 to Appellate

The government also presented evidence in Appellate

7105

10862

1

of John Doe poses a legitimate threat to his safety.

2

reviewed Appellate Exhibit 477 and its enclosures in camera.

3

3.

The Court

The government proffers that this classified

4

information is relevant to The Specification of Charge I and

5

Specification 1 of Charge II.

6

4.

The Court finds that the evidence in Appellate Exhibit

7

477 and its enclosures demonstrates that the government has proved,

8

by a preponderance of the evidence, that the testimony sought to be

9

introduced is classified and was properly classified by an authorized

10

original classification authority applying the standards of Executive

11

Order 13526.

12

5.

Public disclosure of the classified information,

13

reasonably, could be expected to cause serious harm to the national

14

security of the United States as described in the classification

15

reviews.

16

plans and operations, intelligence activities, intelligence sources

17

and methods, and the foreign relations and foreign activities of the

18

United States, the unauthorized disclosure of which reasonably could

19

be expected to harm the United--harm the national defense and foreign

20

relations of the United States.

21

Appellat Exhibit 477.

22

The classified information at issue pertains to military

Enclosures 1, 4, 5, 6, 7, and 8 to

The law:

7106

10863

1

1.

The Court's 13 April 2013 ruling and order,

Interplay

2

between M.R.E. 505 and R.C.M. 806 and U.S. v. Grunden, Specificity of

3

Classified Information and John Doe, sets forth the Court's view of

4

the law regarding closure of trial proceedings under the First and

5

Sixth Amendments, R.C.M. 806(b)(2), and M.R.E. 505(j)(5).

6

When the government seeks closure of court proceedings, the

7

constitutional test incorporated by R.C.M. 806(b)(2) requires the

8

government to demonstrate that, one, there is a substantial

9

probability that an overriding interest will be prejudiced if the

10

proceedings remain open, two, closure is no broader than necessary to

11

protect the overriding interest, and, three, reasonable alternatives

12

to closure were considered and found inadequate.

13

presented must be sufficient to allow the Court to make case-specific

14

findings, on the record, justifying closure.

15

3.

The evidence

Where the basis for a proposed closure of portions of

16

the trial is to protect against disclosure of classified information,

17

the government must demonstrate that the information is properly

18

classified, that closure of the proceedings during the presentation

19

of the classified information is necessary to protect the national

20

security of the United States, and the proposed closing is narrowly

21

tailored so the proceedings are closed to the absolute minimum

22

necessary to protect the national security information.

23

States v. Grunden, 2 MJ 116, Court of Military Appeals, 1977.

7107

United

10864

1

4.

When closing proceedings to protect the national

2

security of the United States by preventing the disclosure of

3

classified information, the government must make--or the Court must

4

make individualized findings with respect to the specific information

5

the government asserts requires protection from public disclosure.

6

Identify each witness who will testify regarding the classified

7

information and close the court only during the portions of the

8

presentation of evidence that is--that actually divulges the

9

classified information.

Unite States v. Lonetree, 31 MJ 849, at 853,

10

Navy-Marine Court of Military Review, 1990, affirmed and remanded, 35

11

MJ 396, Court of Military Appeals, 1992.

12

5.

The Court of Appeals for the Armed Forces, CAAF, has

13

recognized the protection of--that protection of classified

14

information can be an overriding interest that will be prejudiced if

15

the proceedings remain open.

16

safety can also be an overriding interest that can be prejudiced if

17

the proceedings remain open.

18

Navy-Marine Court of Military Review, 1990, affirmed and remanded, 35

19

MJ 396, Court of Appeals for the Armed Forces, 1992 and United States

20

v. Grunden, 2 MJ 116, Court of Military Appeals--I'm sorry, Court of

21

Military Review, 1977.

22

CAAF has also recognized that witness

United States v. Lonetree, 31 MJ 849,

Case-specific findings regarding closure:

7108

10865

1

1.

Overriding interests.

The testimony sought to be

2

introduced by John Doe has been classified at the Secret level and

3

was properly classified by an authorized original classification

4

authority applying the standards of Executive Order 13526.

5

government has demonstrated there is a reasonable danger that

6

presentation of classified information before the public will expose

7

interests relating to the national security of the United States that

8

should not be divulged.

9

information in this case, reasonably, could be expected to cause

The

Public disclosure of the classified

10

serious harm to the national security of the United States as

11

described in Appellate Exhibit 477 and its enclosures.

12

government has met its burden of persuasion that closure of the trial

13

during the entire testimony of John Doe is necessary to protect the

14

overriding interest of national security.

15

demonstrated that the safety of John Doe is a legitimate risk if his

16

identity is disclosed.

17

overriding interest that would be prejudiced if the proceedings

18

remain open during his testimony.

19

2.

The

The government has also

The safety of John Doe is an additional

Narrowly tailored closure.

With this unique witness,

20

the bifurcation of testimony into unclassified and classified

21

information is not possible because the entirety of the testimony for

22

John Doe is classified.

23

identity of John Doe is not revealed to protect John Doe's safety.

Closure is also necessary to ensure the true

7109

10866

1

It is possible that certain unclassified testimony may be elicited

2

intermixed with the classified information.

3

tailor the closure, the Court has ordered the government to present a

4

plan to expeditiously prepare a transcript and to conduct the

5

appropriate classification reviews of the transcript of any testimony

6

presented in closed session, to include that of John Doe.

7

Unclassified portions of the testimony will be released to the

8

public.

9

3.

In order to narrowly

Reasonable alternatives to closure.

The Court

10

considered alternatives to receiving classified testimony in open

11

court, including the use of redactions, the silent witness rule,

12

projected electronic displays, unclassified summaries or alternatives

13

of the testimony, and code words and names.

14

classified testimony are neither reasonable nor adequate for this

15

witness.

16

as an alternative to total closure.

17

The alternatives to

The Court has imposed the classification review requirement

4.

The Court has carefully balanced the accused's Sixth

18

Amendment right to a public trial and the public's First Amendment

19

right to a public trial against the potential serious damage to the

20

national security of the United States that would result from public

21

disclosure of this information in an open session of this court-

22

martial and the legitimate risk to John Doe’s safety if he testified

23

publicly.

The accused has not objected to the closed session.

7110

10867

1

5.

The need to protect that national security information

2

from disclosure and to protect the safety of John Doe outweighs any

3

danger of a miscarriage of justice that could attend to the taking of

4

John Doe's testimony in closed sessions of this court-martial.

5

6.

In addition to closure to protect the safety of John

6

Doe, the government may arrange for an alternate location to elicit

7

the testimony of John Doe.

8

revealed to trial participants, the Court will permit light disguise

9

to permit no more than each of the following components:

To ensure the identity of John Doe is not

colored

10

contacts, real or false facial hair, a wig, makeup and/or facial

11

prosthetics.

12

cannot obscure John Doe's emotive expressions and reactions while

13

testifying.

14

facial reactions will be visible to the parties and the Court to

15

ensure--enable full assessment of John Doe's credibility.

A light disguise shall be narrowly tailored because it

John Doe's demeanor, body language, nervousness, and

16

Order:

17

1.

18
19

The court-martial will be closed to the public during

the testimony of John Doe.
2.

The government may provide for John Doe to testify at

20

an alternate, undisclosed, secure location and in light disguise to

21

protect his classified identity and his safety.

22
23

3.

After John Doe has testified, the government will

expeditiously prepare a transcript of the testimony and conduct

7111

10868

1

appropriate classification reviews of the transcript.

2

copy containing any unclassified testimony will be released to the

3

public.

4

on 20 May 2013.

5

The government's plan to accomplish this is due to the court
So ordered, the 7th day of May 2013.

Is there anything further with respect to this order?

6

CDC[MR.COOMBS]:

7

TC[MAJ FEIN]:

8

MJ:

9

A redacted

No, Your Honor.
No, Your Honor.

All right.

The Court will add it as the next appellate

exhibit in line.

10

All right, going back to our R.C.M. 802 conference, the

11

parties have requested that we take a recess in the middle of these

12

proceedings to confer about certain things that will be addressed on

13

the record during these proceedings.

14
15

Is there anything we should address, now, before we take
that recess?

16

ADC[CPT TOOMAN]:

17

TC[MAJ FEIN]:

18

MJ:

19

CDC[MR.COOMBS]:

20

TC[MAJ FEIN]:

21

MJ:

22
23

Nothing from the defense, Your Honor.

All right.

No, Your Honor.
How long do you believe is appropriate?
The defense would suggest, maybe 25 minutes?
We'll go with an even 30, ma'am.

Why don't we be safe, here, and let's--why don't we start

at 1645 or 4:45?

Does that work for both sides?

CDC[MR.COOMBS]:

Yes----

7112

10869

1

TC[MAJ FEIN]:

2

MJ:

3

CDC[MR.COOMBS]:

4

TC[MAJ FEIN]:

5

MJ:

Yes, ma'am.

Or is that too long?

Okay.

That's fine, Your Honor.
That works, ma'am.

All right.

Court is in recess until 1645 or 4:45 in

6

civilian parlance.

7

[The Article 39(a) session recessed at 1615, 7 May 2013.]

8

[The Article 39(a) session was called to order at 1659, 7 May 2013.]

9

MJ:

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.

12

proceedings with respect to the three classified witnesses.

13

1.

The Court is prepared to rule on closure of

The government moves the Court to order trial

14

proceedings closed to the public when certain classified information

15

is being introduced or is the subject of examination or argument to

16

ensure that information specified in the government's motion is not

17

disclosed to the public.

18

the Court required the government to resubmit its request with more

19

specificity.

20

government resubmitted its request with more specificity.

21

Exhibit 505.

22

2.

23

Appellate Exhibit 479.

Appellate Exhibit 503.

On 1 March 2013,

On 15 March 2013, the
Appellate

This ruling sets forth the Court's findings with

respect to the portion of the government motion to close the

7113

10870

1

proceedings for the entire testimony of the three classified

2

witnesses identified in Appellate Exhibit 505, witness numbers 3, 11,

3

and 22.

4

testimony of the three classified witnesses.

The defense does not object to closing the court for the

5

Findings of fact:

6

1.

The government intends to introduce classified evidence

7

from the testimony of three classified witnesses.

8

been presented that the classified information at issue is in the

9

public domain or has been officially acknowledged by the government.

10

2.

No evidence has

The Court reviewed the relevant classification reviews

11

which cite the reasons for--that this information is classified.

12

Enclosure 1 to Appellate Exhibit 18.

13

3.

The government proffers that it seeks to introduce

14

classified testimony from the three classified witnesses that is

15

relevant to the documents that form the basis for Specifications 3

16

and 15 of Charge II.

17

4.

The Court finds that the proffered testimony and

18

accompanying classification review demonstrate, by a preponderance of

19

the evidence, that the identity of the witnesses at issue is

20

classified and that the testimony sought to be introduced was

21

properly classified by an authorized original classification

22

authority applying the standards of Executive Order 13526.

7114

10871

1

5.

The public disclosure of the classified information,

2

reasonably, could be expected to cause serious harm to the national

3

security of the United States as described in the classification

4

reviews as it pertains to intelligence activities, intelligence

5

sources and methods, and the foreign relations and foreign activities

6

of the United States, the unauthorized disclosure of which,

7

reasonably, could be expected to harm the national defense and

8

foreign relations of the United States.

9

Exhibit 18.

Enclosure 1 to Appellate

10

The law:

11

The law is the same as the Court announced for announcing

12

the closure ruling with respect to John Doe, so I will not repeat

13

those paragraphs.

14

Case-specific findings regarding closure:

15

1.

Overriding interest.

The identity of the three

16

classified witnesses and the testimony sought to be introduced by the

17

three classified witnesses has been classified at the Secret level

18

and was properly classified by an authorized original classification

19

authority applying the standards of Executive order 13526.

20

government has demonstrated that there is a reasonable danger that

21

the presentation of the classified information before the public will

22

expose interests relating to the national security of the United

23

States that should not be divulged.

7115

The

Public disclosure of the

10872

1

classified information in this case, reasonably, could be expected to

2

cause harm to the national security of the United States as described

3

in Enclosure 1 to Appellate Exhibit 18.

4

that closure of the trial during the entire testimony of the three

5

classified witnesses is necessary to protect the overriding interest

6

of national security.

7

2.

Narrowly tailored closure.

The government demonstrated

The bifurcation of

8

testimony into unclassified and classified information is not

9

possible for the three classified witnesses because their identity is

10

classified and the entirety of their testimony involves classified

11

information.

12

of the witnesses are not revealed to the public.

13

certain unclassified testimony may be elicited intermixed with the

14

classified information.

15

Court has ordered the government to present a plan to expeditiously

16

prepare a transcript and to conduct appropriate classification

17

reviews of the transcript of any testimony presented in closed

18

session, to include that of the three classified witnesses.

19

Unclassified portions of the testimony will be released to the

20

public.

21

3.

Closure is also necessary to ensure the true identities
It is possible that

In order to narrowly tailor the closure, the

Reasonable alternatives to closure.

The Court

22

considered alternatives to receiving classified testimony including

23

the use of redactions, the silent witness rule, projected electronic

7116

10873

1

displays, unclassified summaries or alternatives of testimony, and

2

code words--names.

3

neither reasonable nor adequate for these witnesses.

4

imposed the classification review requirement as an alternative to

5

total closure.

6

4.

The alternatives to classified testimony are
The Court has

The Court has carefully balanced the accused's Sixth

7

Amendment rights to a public trial and the public's First Amendment

8

right to a public trial against the potentially serious damage to

9

national security of the United States that would result from the

10

public disclosure of this information in open session of the court-

11

martial.

12

three classified witnesses.

13

The accused has not objected to closed proceedings for the

5.

The need to protect national security information from-

14

-the national security information from disclosure outweighs any

15

danger of a miscarriage of justice that could arise from the taking

16

of the testimony from the three classified witnesses in closed

17

session of this court-martial.

18

Order:

19

1.

20
21

The court-martial will be closed to the public during

the testimony of the three classified witnesses.
2.

After each of the classified witnesses has testified,

22

the government will expeditiously prepare a transcript of the

23

testimony and conduct appropriate classification reviews of the

7117

10874

1

transcript.

2

will be released to the public.

3

this is due to the Court on 20 May 2013.

4

May 2013.

5
6

A redacted copy containing any unclassified information

respect to this issue?
CDC[MR.COOMBS]:

8

TC[MAJ FEIN]:

9

MJ:

No, Your Honor.

All right.

No, Your Honor.
This ruling will be marked as the next

appellate exhibit in line.

11
12

So ordered this 7th day of

Does either side have anything further to address with

7

10

The government's plan to accomplish

All right, Counsel, is there anything else we need to
address in today's open session?

13

CDC[MR.COOMBS]:

14

TC[MAJ FEIN]:

15

MJ:

No, Your Honor.

All right.

No, Your Honor.
Pursuant to the case calendar, I advised the

16

public that there had been no changes made to the case calendar with

17

respect to the remaining Article 39(a) session which is scheduled for

18

the 21st through the 24th of May of 2013.

19

public and will begin on the 21st of May 2013 at 0930 like we

20

normally do?

21

CDC[MR.COOMBS]:

22

TC[MAJ FEIN]:

Yes, Your Honor.
Yes, Your Honor.

7118

That will be open to the

10875

1
2

MJ:

All right.

Is there anything else we need to address

before we recess the court?

3

CDC[MR.COOMBS]:

4

TC[MAJ FEIN]:

5

MJ:

6
7

All right.

No, Your Honor.
No, Your Honor.
Court is in recess.

[The Article 39(a) session recessed at 1706, 7 May 2013.]
[END OF PAGE]

7119

10876

Pages 7120 through 7331 of this
transcript are classified
“SECRET”. This session (8
May 2013, Session 1) is sealed
for Reasons 2 and 3, Military
Judge’s Seal Order dated 17
January 2014 and stored in the
classified supplement to the
Record of Trial.

10877

1
2

[The court-martial was called to order at 1033, 21 May 2013.]
MJ:

Major Fein, please account for the parties.

3
4

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

TC[MAJ FEIN]:

Your Honor, all parties when the court last

5

recessed are again present the following exceptions: Captain Morrow

6

is absent, Captain von Elten, for the government, is present.

7

Chavez, court reporter, is absent; Mr. Robertshaw, court reporter, is

8

present and has been previously sworn.

9

MJ:

All right, thank you.

Mr.

All right, let’s begin today--the

10

last session the Court held was a closed session on the 8th May of

11

2013 to determine whether there are reasonable alternatives for

12

closure for 24 witnesses where closure has been proposed by the

13

government.

14

government had filed a motion asking for certain delays.

15

would you like to go over that?

16

At that session, or at the end of that session, the

TC[MAJ FEIN]:

Yes, Your Honor.

Major Fein,

And, Your Honor, if it pleases

17

the Court, right before that, the close of the open session on the

18

7th, the government also filed the government proposed alternatives

19

to classified information and that was marked as Appellate Exhibit

20

530 to be put on the public record.

21

has been marked as Appellate Exhibit 544, the government requested

22

leave from the Court to provide evidence of the classified nature of

23

the evidence for the witnesses that the government moved in its

7332

Your Honor, on 7 May 2013, what

10878

1

Grunden filing that it would have closure for, and those--the request

2

was until--excuse me, until 10 May in order to provide that

3

information based off of current events that did not allow certain

4

OCAs to sign the appropriate documentation.

5

MJ:

6

correct?

All right, and the Defense had no objection, is that

7

CDC[MR. COOMBS]:

8

MJ:

9
10

record.

That is correct, Your Honor.

All right, and the Court granted that motion orally on the
Major Fein, have there been other filings?

TC[MAJ FEIN]:

Yes, ma'am, there have been.

Ma'am, on 10 May

11

2013 the government filed a joint stipulation of expected testimony

12

from Ms. Ivory which has been marked as Appellate Exhibit 537.

13

May 2013, the government filed a joint stipulation of expected

14

testimony, classified stipulation, for Mr. Travieso which has been

15

marked as Appellate Exhibit 538.

16

unclassified and redacted version of the same stipulation of expected

17

testimony and that has been marked as Appellate Exhibit 539.

18

May 2013, the government filed a joint stipulation of fact concerning

19

the Osama bin Laden evidence that was found, and that was filed as

20

classified via SIPRNET and has been marked as Appellate Exhibit 540.

21

On the same day, Your Honor, the government filed a joint stipulation

22

of fact, the same one for Osama bin Laden information in unclassified

23

and redacted form, and that has been marked as Appellate Exhibit 541.

On 10

And also on the same day, filed a

7333

On 10

10879

1

On 10 May 2013, the government filed an accounting notice of

2

discovery and expert witnesses and then on the 15th of May 2013 the

3

government filed a corrected copy of the same filing and that has

4

been marked as Appellate Exhibit 543.

5

filed its evidence of the classified nature of the information for

6

different witnesses for the closed session and that has been marked

7

as Appellate Exhibit 542.

8

their Grunden filing and propose alternatives via SIPRNET an

9

unclassified and that was marked as Appellate Exhibit 545.

On 10 May 2013, the government

On 13 May, ma'am, 2013, the defense filed

On 13 May

10

2013, the defense filed an unclassified and redacted version--excuse

11

me, not on that day, but the defense also filed in unclassified and

12

redacted version and that has been marked as Appellate Exhibit 546.

13

On the 14th of May 2013, the government filed a targeted brief on the

14

expert opinion relevance of expert opinion for the 793 and 1030 and

15

other offenses and that has been marked as Appellate Exhibit 544.

16

the 17th of May 2013, the defense filed a response to the

17

government's motion--excuse me, the government's targeted brief on

18

the relevance of expert opinion and that has been marked as Appellate

19

Exhibit 547.

20

government filed its plan for expeditious transcription of closed

21

session--closed classified sessions in order to have unclassified

22

redacted transcripts released to the public, and that has been marked

23

as Appellate Exhibit 548.

On

Finally, Your Honor, on the 20th of May 2013, the

7334

10880

1
2
3
4
5

MJ:

Is there a corrected copy of the defense filing under

505(h)?
ADC[MAJ HURLEY]:

Yes, ma'am, what was filed on 13 May is the

corrected one.
MJ:

Okay, thank you.

All right, and also for the record, the

6

government is preparing for the Court proposed a trial plan for trial

7

proceedings and hours that the trial will be on and off during

8

periods where there will be no federal employee furloughs and also

9

for periods where there will be a federal employee furloughs, is that

10
11

correct?
TC[MAJ FEIN]:

That is correct, ma'am, and that is due by close

12

of business today and also due by close of business today, this was--

13

came out of the closed session, is the government must present to the

14

defense and the Court the first 25 witnesses it intends to call,

15

starting June 3rd.

16

MJ:

All right.

Counsel and I held an R.C.M. 802 conference

17

before we came on the record today.

18

conference where I talk to the parties about scheduling issues and

19

logistics issues that are probably going to arise in the case.

20

some of the things that came up were what Major Fein just discussed.

21

The government is going to provide the defense and the Court notice

22

in waves, if you will, of approximately 25 witnesses on a rolling

23

basis of the 25 witnesses that will be called and coming in and then

7335

Once again, what that is is a

And,

10881

1

the next rolling basis of 25 witnesses that will be called and coming

2

in, so everyone is on the same page with who is going to be

3

testifying and when that was going to be.
Mr. Coombs, do you have anything further with respect to

4
5

that?

6

CDC[MR. COOMBS]:

7

MJ:

No, Your Honor.

And, the Court also went over with the parties just some

8

issues of things that might be declassified, some reporting things,

9

just the status of various witnesses.

There are certain—that are

10

involved with any number of witnesses and documents we have in this

11

case, there is always something juggling up in the air.

12

things are moving in play, does either side desire to set forth for

13

the record with any further specificity?

14

TC[MAJ FEIN]:

But, some

Your Honor, one document has been declassified,

15

or at least portions of the document, and that document--that serves

16

as one of the charged documents for a specification and provided the

17

Court and the defense is the Army Counterintelligence Center report.

18

MJ:

All right.

19

CDC[MR. COOMBS]:

20

MJ:

Mister Coombs?
Nothing from the defense, Your Honor.

And, I believe the government also advised me during the

21

R.C.M. 802 conference that there was one specification that the

22

government--of Charge II, that the government was not going to go

23

forward with the greater offense.

7336

10882

1

TC[MAJ FEIN]:

2

guilty plea for Specification 14 of Charge II, the United States does

3

not intend to go to move forward on the greater offense for the

4

single cable that makes up Specification 14 of Charge II.

5

MJ:

Yes, ma'am.

Your Honor, based off PFC Manning's

All right.

6

Mr. Coombs, the government has filed, and you have a copy

7

of, their accounting for the discovery and experts, do you have any

8

issues with respect to that?

9
10

CDC[MR. COOMBS]:
MJ:

No, Your Honor.

One additional thing that was discussed by the parties and

11

me is that on 15 May of 2013 President Barack Obama signed an

12

executive order that amended the military rules of evidence and these

13

amendments have some substantive changes to Military Rule of Evidence

14

505 which governs classified information.

15

Order itself in section 2(b), the executive order says, "Nothing in

16

these amendments shall be construed to invalidate any nonjudicial

17

punishment proceedings, restraint, investigation, referral of

18

charges, trial in which arraignment occurred, or any other action

19

begun prior to the effective date of this order.

20

nonjudicial punishment, restraint, investigation, referral of

21

charges, trial, or other action may proceed in the same manner and

22

with the same effect as if these amendments had not been prescribed."

7337

Now, in the Executive

And, any such

10883

When the Court discussed this with the parties, the Court

1
2

reads this section to state that since arraignment has already

3

occurred in these proceedings, what has been done thus far in

4

accordance with the old Military Rule of Evidence 505 in effect at

5

the time the actions were taken, nothing in the new amendments would

6

go to invalidate any of those actions.
Is that the understanding of the parties as well?

7
8

CDC[MR. COOMBS]:

9

TC[MAJ FEIN]:

10

MJ:

Yes, Your Honor.

Yes, Your Honor.

All right, now going forward we may be facing some issues

11

where the new Military Rule of Evidence 505 differs from the old

12

Military Rule of Evidence 505.

13

that now.

I do want to address one piece of

Major Fein, what is the Appellate Exhibit number for the

14
15

plan for the government to store certain classified Appellate

16

Exhibits away from the record of trial?

17

TC[MAJ FEIN]:

18

MJ:

19

TC[MAJ FEIN]:

May I have a moment, Your Honor?

Absolutely.
Your Honor, Appellate Exhibit 486, the

20

prosecution's proposed plan for storage of Appellate Exhibits not

21

accompanying the record of trial, dated 8 February 2013; AE 486.

22
23

MJ:

All right, for the record, one of the changes in the

Military Rule of Evidence is M.R.E 505(m), for records of trial.

7338

If,

10884

1

under this rule, and the information is withheld from the accused,

2

the accused objects to such withholding in the trial--excuse me, I am

3

looking--

4

DC:

I believe it is 505(l), ma'am.

5

MJ:

I am sorry, 505(l).

It is 505(l)(2)--states that

6

government information kept under seal, "The military judge must

7

allow government information offered or accepted into evidence to

8

remain under seal during the trial even if such evidence is disclosed

9

in the court-martial proceeding and may, upon motion of the

10

prosecution, seal exhibits containing government information in

11

accordance Rule for Court-Martial 1103(a)," that is the Rule for

12

Court-Martial governing sealing, "for any period after trial as

13

necessary to prevent the disclosure of government information when a

14

knowledgeable United States official, described in subdivision d.,

15

submits to the Military Judge a declaration setting forth the

16

detriment to the public interest the disclosure of such information

17

reasonably could be expected to cause."

18

anticipate that anything kept under seal will accompany the record of

19

trial.

20

the order of the court, came up with to ensure that classified

21

information that is not actually physically going with the record of

22

trial is kept in a secure location suitable for classified

23

information under provisions where there is a custodian, there is

Now, the new rules

Now, in the Court's view, the plan that the government, at

7339

10885

1

checks to make sure that information is there, and is available for

2

appellate review should that actually become necessary.

3

Court's view, that plan, although the classified information is not

4

physically accompanying the record trial, it still falls within the

5

parameters of the rule because the goal of the rule is to ensure that

6

the information is kept, it is maintained, it is--the record

7

indicates where it is and appellate authorities can review it.
Do both sides agree?

8
9
10

In the

CDC[MR. COOMBS]:
TC[MAJ FEIN]:

Yes, Your Honor.

Yes, Your Honor.

And just to note, Your Honor,

11

because of the classification level of that information, the Court of

12

Appeals for the Armed Forces--the Army Court of Criminal Appeals, do

13

not have have organic facilities to store that information which is

14

why it is accompanied by reference.

15
16

MJ:

Does either side wish to address anything further with

respect to the new military rule of evidence 505?

17

CDC[MR. COOMBS]:

18

TC[MAJ FEIN]:

19

MJ:

No, Your Honor.

No, Your Honor.

All right, the Court just received this morning the

20

government's proposed transcription and classification review plan

21

for closed sessions with the end goal that there would be--after the

22

classification review, any unclassified information that is held in

23

the closed sessions will be disclosed to the public expeditiously.

7340

10886

1

Since I just got it, I have not had a chance to review it, so unless

2

either side objects at this point, I do not think we need to discuss

3

this any further on the record until we have all had a chance to

4

digest it.

5

CDC[MR. COOMBS]:

6

TC[MAJ FEIN]:

7

MJ:

No objection, Your Honor.

No objection, Your Honor.

Now with respect to the relevance issue, the closed session

8

that we held on 8 May of 2013, the government's dry run witness

9

testified to a variety of things and at--after the testimony, the

10

Court ordered the government to brief the Court on [one] the

11

relevance of the testimony on context and circumstances surrounding

12

the charged information; two, the relevance of testimony on

13

prospective damage that could be caused to the United States by the

14

release of the charged classified evidence on the date of release;

15

and three, whether the defense may rebut such testimony.

16

also asked the defense to respond to the government's filing.

17

both of those briefs.

18

exhibits; Appellate Exhibit 544 for the government and Appellate

19

Exhibit 547 for the defense.

20

The court

They have both been marked as appellate

Does either side desire oral argument on the issue?

21

TC[CPT von ELTEN]:

22

ADC[MAJ HURLEY]:

I have

No, Your Honor.
No, Your Honor.

7341

10887

1

MJ:

The Court will be prepared to rule then on that issue a

2

little bit later today.

The government also submitted a proposed

3

case calendar to which the defense did not have an objection.

4

Court has not marked it as Appellate Exhibit because during a recess

5

today I just want to go over it one last time with the parties to

6

ensure that have been no changes or anything else I need to add

7

rather than cluttering the appellate exhibits with yet another case

8

calendar when we can use the draft and if there is any changes we

9

will go ahead and make them and we will just add that today.

The

Does either side object to that?

10
11

TC[MAJ FEIN]:

No, Your Honor.

12

CDC[MR. COOMBS]:

13

MJ:

No, Your Honor.

Does either side see any further issues--well, I know

14

Defense, I believe you are going to get this in writing, but you had

15

certain changes to your witness list.

16

CDC[MR. COOMBS]:

That is correct, Your Honor.

And, I will

17

reduce that to writing that I will serve on the Court and the

18

government.

19

MJ:

Okay, thank you.

PFC Manning, we have certain stipulations

20

that have been agreed to by the parties and yourself.

21

over those stipulations with you.

22

them are classified, is that correct?

7342

I need to go

I believe that at least two of

10888

1

TC[MAJ FEIN]:

Yes, Your Honor, if we could have, before you

2

begin, a 10 minute recess, we will get everything situated and ready

3

for that process.

4

MJ:

We will do that.

What we will do, PFC Manning, the last

5

time we went over classified information; I would like to do that

6

again in open court.

7

Court.

8

although you are going to have it in front of you.

9

you sitting over in the members’ box like we did before.

I do not see any reason we need to close the

I am not going to actually go over what is in the stipulation

10

ACC: Yes, Your Honor.

11

MJ:

So, we will have

Is there anything else we need to address before we take

12

the recess to set the Court up for PFC Manning's and my discussion on

13

the stipulations?

14

TC[MAJ FEIN]:

Just one, Your Honor.

During the 802, the

15

defense brought up the topic of VTCs and teleconference for

16

witnesses.

17

what the defense is offering.

And, if we could just put that on the record, please,

18

MJ:

Mr. Coombs?

19

CDC[MR. COOMBS]:

Yes, ma'am.

Your Honor, the defense has

20

offered to the government, if they identify OCONUS witnesses,

21

witnesses that are outside of continental United States, that they

22

would like to testify either by VTC or telephonic, we would not

7343

10889

1

object to their testimony, once we have the identity of which

2

witnesses they would like to do that with.

3
4

MJ:

Okay.

PFC Manning, you heard what Mr. Coombs just said,

has he had a discussion with you with respect to this issue?

5

ACC: Yes, Your Honor.

6

MJ:

7

Has he talked to you about your Sixth Amendment right to

confront witnesses?

8

ACC: Yes, ma'am.

9

MJ:

And, has he told you that that Sixth Amendment right to

10

confront witnesses means that you have the right to demand that they

11

personally--that they are actually here sitting in this chair where

12

you can look at them?

13

ACC: Yes, Your Honor.

14

MJ:

15

Okay.

And you can observe their demeanor and so can the

fact finder, which in this case is me?

16

ACC: Yes, Your Honor.

17

ACC: All right, now understanding your rights, your Sixth

18

Amendment right to confrontation, what Mr. Coombs is essentially

19

saying is that you are willing to waive that right and have this

20

testimony by OCONUS witnesses done by VTC or telephone which, if you

21

had objected, may not meet the Sixth Amendment confrontation rights--

22

or, does not meet the Sixth Amendment confrontation rights.

23

understand that?

7344

Do you

10890

1

ACC: Yes, Your Honor.

2

MJ:

Okay now, are you in accord with Mr. Coombs; are you

3

willing to waive your right to--your Sixth Amendment right to

4

confront these witnesses?

5

ACC: For some witnesses, yes, Your Honor.

6

MJ:

7

CDC[MR. COOMBS]:

So Mr. Coombs, I believe, said all OCONUS witnesses.
Once we get the list of witnesses, I believe

8

it is going to be all of the OCONUS witnesses that I know that the

9

government does not want to have in person.

So, once we get the list

10

from the witnesses that the government would like, because some of

11

the witnesses I believe the government would want to have physically

12

present anyways because of the need to show documents to or the need

13

to admit certain items through.

14

witnesses that they would like to do this with, I imagine is going to

15

be all of those witnesses.

16

not agree to, then we would do that for the government in a timely

17

basis so that they can still present the witness.

18

MJ:

So, once we get their list of

If there are any of them that we would

So, PFC Manning, this discussion we are having may be

19

premature.

You cannot waive something that you do not know exists.

20

So, what we will both do is, when we find out who the witnesses are,

21

you and I will have this discussion.

22

ACC: Yes, ma'am, thank you.

23

MJ:

Anything else?

7345

10891

1

TC[MAJ FEIN]:

And ma'am, just to place on the record the last

2

part, I think at the end of the 802, which was the damage assessment

3

discussion, the parties have met and reviewed the two damage

4

assessments; this is the NCIX damage assessment and the DIA,

5

Department of Defense damage assessments.

6

assessments.

7

summarized version that would be used in court and that would be

8

accessible to Private First Class Manning if the defense moves to use

9

the damage assessments during his sentencing, presentencing, phase.

They are two damage

The parties have met and tentatively agreed on a

10

Currently the government is still working for the final summary to be

11

remarked for classification.

12

intends to have that marked as Appellate Exhibit, ready for the

13

parties to use, if they so desire.

14

agreed tentatively on that summary--the two summaries, excuse me.

15

MJ:

16

ADC[MAJ HURLEY]:

17

MJ:

18

And so, the parties have met and

Anything further with respect to that?
No, ma'am.

Anything from the Defense that we need to address before we

recess to go over the stipulations with PFC Manning?

19

CDC[MR. COOMBS]:

20

MJ:

21

TC[MAJ FEIN]:

22

MJ:

23

Once that occurs, the government

All right.

No, ma'am.
How long do you need?

Ma'am, we could restart at 11 o'clock.

All right, court is in recess until 11 o'clock.

[The court-martial recessed at 1055, 21 May 2013.]

7346

10892

1

[The court-martial was called to order at 1108, 21 May 2013.]
MJ:

2

This Article 39(a) session is called to order.
Let the record reflect all parties present when the Court

3

I note for the record that

4

last recessed are again present in court.

5

PFC Manning, Major Hurley, and Major Fein are sitting in the panel

6

box.
All right, PFC Manning, do you have a copy of Appellate

7
8

Exhibit 537, it is a stipulation of expected testimony of Ms. Elisa

9

Ivory?

10

ACC: Yes, Your Honor.

11

MJ:

12

A copy of Appellate Exhibit 538, which is a stipulation of

expected testimony for Mr. Louis Travieso?

13

ACC: Yes, Your Honor.

14

MJ:

15

And, Appellate Exhibit 540, which is a stipulation of fact

for certain evidence involving Osama bin Laden, UBL?

16

ACC: Yes, Your Honor.

17

MJ:

18

ACC: Yes, Your Honor.

19

MJ:

Now, did you sign all three of those stipulations?

Okay, that is on page 2 of the Ivory stipulation; page 2 of

20

the Travieso stipulation; and page 2 of the stipulation of fact.

21

that correct?

22

ACC: Yes, ma'am.

7347

Is

10893

1
2

MJ:

Now, do you understand--did you read all three of the

stipulations thoroughly before you signed them?

3

ACC: Yes, Your Honor.

4

MJ:

5

ACC: Yes, ma'am.

6

MJ:

7

Do you understand the contents of the stipulations?

Before signing these stipulations, did your defense team

explain the stipulations to you?

8

ACC: Yes, ma'am.

9

MJ:

10

Do you understand that you have an absolute right to refuse

to stipulate to the contents of any of these three items?

11

ACC: Yes, ma'am.

12

MJ:

Now, you should enter--do you understand that you should

13

enter into stipulations only if you believe it is in your best

14

interest to do that?

15

ACC: Yes, Your Honor.

16

MJ:

Now, I want to ensure that you understand how stipulations

17

are used.

Now, let’s look at Appellate Exhibit 540, the stipulation

18

of the fact involving Osama bin Laden.
Do you have that in front of you?

19
20

ACC: Yes, Your Honor.

21

MJ:

22

Now, when counsel for both sides and you agree to the

stipulation of fact, the parties are bound by the stipulation and

7348

10894

1

stipulated matters are facts and evidence to be considered along with

2

the other evidence in the case.
Do you understand that?

3
4

ACC: Yes, Your Honor.

5

MJ:

Now, in contrast, the stipulations of expected testimony

6

from Ms. Ivory and Mr. Travieso, what that means is when counsel for

7

both sides and you agree to the stipulation of expected testimony,

8

you are agreeing that if these two witnesses were present here in

9

court and testify under oath, they would testify substantially as set

10

forth in the stipulations of expected testimony.

11

does not admit the truth of the person's testimony; the stipulation

12

could be contradicted, attacked or explained in the same way as if

13

the person is testifying in person.
Do you understand that?

14
15

ACC: Yes, Your Honor.

16

MJ:

17

So, do you understand the difference between a stipulation

of fact and a stipulation of expected testimony?

18

ACC: Yes, I do, ma'am.

19

MJ:

20
21

The stipulation

The facts, you are bound by them; the stipulation of

expected testimony is just what the person would say?
ACC: Correct.

7349

10895

MJ:

1

Now knowing what I have told you, and your defense counsel

2

earlier told you about the stipulations, do you still want to enter

3

into all three of the stipulations?

4

ACC: Yes, ma'am.

5

MJ:

6

ADC[MAJ HURLEY]:

7

TC[MAJ FEIN]:

8

MJ:

9

TC[MAJ FEIN]:

Do counsel concur in the contents of the stipulations?
Yes, ma'am.

Yes, ma'am.

All right.

Now, why are these Appellate Exhibits?
Ma'am, they have currently been marked as

10

appellate exhibits just for the purposes of today's inquiry and then

11

the government would move to re-mark, and not move, but would re-mark

12

them as PEs and put it on the record.
MJ:

13

All right, Mr.--why don’t we do that?

Let’s have the court

14

reporter take these off of the appellate exhibit list and mark them

15

as--defense, any objection to having them marked as prosecution

16

exhibits?

17

CDC[MR. COOMBS]:

18

MJ:

No, Your Honor.

Let's go ahead and right now have Appellate Exhibit 537,

19

Appellate Exhibit 538, and Appellate Exhibit 540 marked as

20

prosecution exhibits.
TC[MAJ FEIN]:

21

Let’s save a little paper.

Ma'am, if we may, during lunch recess, we will do

22

that.

And then, we will put on record how the rest of the numbers

23

cascading will change.

7350

10896

1
2
3
4
5
6

MJ:

All right, is this going to cause administrative burden to

the court reporter?
TC[MAJ FEIN]:

and after lunch we will have it reflected.
MJ:

All right, let us do this; get with the court reporter

during the lunch recess.

7

TC[MAJ FEIN]:

8

MJ:

9

Ma'am, it is going to--it can be--we can do it

Yes, ma'am.

Whatever is best for the court reporter is best for the

Court.

10

TC[MAJ FEIN]:

11

MJ:

Yes, ma'am.

We will do it that way.
All right, is there any further reason that we need to

12
13

address anything further with you all sitting in the panel box or do

14

you want to return to counsel table?

15

ADC[MAJ HURLEY]:

16

TC[MAJ FEIN]:

17

MJ:

18
19

Nothing from the defense, ma'am.

No, ma'am.

Why don’t you all go ahead and return.

[The parties and the accused returned to their respective tables.]
MJ:

All right.

Before we break for the lunch recess, the Court

20

has had the benefit of the parties' written filings with respect to

21

the issue of relevance, on the merits, of testimony explaining the

22

nature of charged classified documents and potential damage.

7351

The

10897

1

parties have not desired any additional oral argument, today, so the

2

court is prepared to rule on that motion.
Following the 8 May 2013 closed Article 39(a) session to

3
4

determine whether there are reasonable, adequate, alternatives to

5

trial closure for the protection of classified information in this

6

case, the Court ordered the parties to file briefs on the following

7

issues regarding relevance on the merits:
1.

8
9

The relevance of testimony on context and circumstances

surrounding the charged information.
2.

10

The relevance of testimony on prospective damage that

11

could be caused to the United States by release of the charged

12

classified evidence on the dates of--date of release and;

13

3.

Whether the defense may rebut such testimony.

14

The Court has considered the filings by the parties,

15

evidence presented, the testimony of the "dry-run" witness,

16

Ambassador Don Yamamoto, Acting Secretary--Acting Assistant Secretary

17

for African Affairs, Department of State, the charged offenses, the

18

proposed instructions of the Court, and oral argument of counsel

19

that--the counsel did give a brief oral argument in the session on 8

20

May 2013.

21

The Court finds and rules as follows:

22

Findings of Fact:

7352

10898

1

1.

The accused is charged with one specification of aiding

2

the enemy; one specification of wantonly causing intelligence to be

3

published; eight specifications of violations of United States Code,

4

Section 793(e)--18 United States Code, Section 793(e); five

5

specifications of violations of 18 United States Code, Section 641;

6

two specifications of violations of 18 United States Code, Section

7

1030(a)(1); and five specifications of violating a lawful general

8

regulation, in violation of Articles 104, 134, and 92, Uniform Code

9

of Military Justice, UCMJ.

10

2.

The accused has entered a plea of guilty by exceptions

11

and substitutions to lesser included offenses for Specifications 2,

12

3, 5, 7, 9, 10, and 15 of Charge II, all in violation of 18 United

13

States Code, Section 793(e) for the greater offense.

14

The accused’s plea and the Court's taking judicial notice

15

of the existence of 18 United States Code, Section 793(e) leave the

16

following elements to be proved by the government beyond a reasonable

17

doubt for the accused to be found guilty of the greater offense for

18

these specifications:

19

A.

20

defense and;

21

B.

That the charged information relates to the national

That the accused had reason to believe that the

22

information communicated could be used to the injury of the United

23

States or to the advantage of any foreign nation.

7353

10899

1
2

The Court's proposed instructions define information
related to the national defense as follows:

3

The term "national defense" is a broad term which

4

references the United States military and naval establishments and to

5

all related activities of national preparedness.

6

documents, writings, photographs, videos, or information relate to

7

the national defense, there are two things the government must prove:

8
9
10
11

1.

To prove that

That the disclosure of the material would be

potentially damaging to the United States or might be useful to an
enemy of the United States and;
2.

That the material is closely held by the United States

12

government, in that the relevant government agency has sought to keep

13

the information from the public, generally, and has not made the

14

documents, photographs, videos, or computer files available to the

15

general public.

16

United States Government and is found in sources lawfully available

17

to the general public, it does not relate to the national defense.

18

Similarly, where sources of information are lawfully available to the

19

public and the United States Government has made no effort to guard

20

such information, the information, itself, does not relate to the

21

national defense.

Where the information has been made public by the

22

In determining whether material is closely held, you may

23

consider whether it has been classified by appropriate authorities

7354

10900

1

and whether it remained classified on the date or dates pertinent to

2

the charge sheet.

3

classified or not in determining whether the information relates to

4

the national defense.

5

designated as classified does not, in and of itself, demonstrate that

6

the information relates to the national defense.

You may consider whether the information was

However, the fact that information is

The Court's instructions define "reason to believe" as

7
8

follows:

"reason to believe" means that the accused knew facts from

9

which he concluded or reasonably should have concluded that the

10

information could be used for the prohibited purposes.

11

considering whether the accused had reason to believe the information

12

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

13

of any foreign country, you may consider the nature of the

14

information involved.

15

reason to believe the information would be used against the United

16

States, only that it could.

17

5.

In

You need not determine that the accused had

The accused had entered a plea of guilty by exceptions

18

and substitutions to lesser included offenses for Specifications 13

19

and 14 of Charge II, the greater offense, in violation of 18 United

20

States Code, Section 1030(a)(1).

21

taking judicial notice of the existence of 18 United States Code,

22

Section 1030(a)(1) leave the following elements to be proved by the

The accused's plea and the Court's

7355

10901

1

government, beyond a reasonable doubt, for the accused to be found

2

guilty of the greater offense for these specifications:

3
4
5

A.

That the accused knowingly exceeded authorized access

on a Secret Internet Protocol Router, SIPR, Network.
B.

That the accused had reason to believe that the

6

information communicated could be used to the injury of the United

7

States or the advantage of any foreign--or to the advantage of any

8

foreign nation.

9

6.

The accused has entered pleas of not guilty to all the

10

remaining charges and specifications, thus the government is required

11

to prove all of the elements of these specifications beyond a

12

reasonable doubt.

13

The government proffers the evidence of the context and

14

circumstances surrounding the charged offenses and evidence of

15

prospective damage are relevant to prove the following elements of

16

the following offenses:

17

A.

The elements of "relating to the national defense" and

18

"with reason to believe such information could be used to the injury

19

of the United States or the advantage of any foreign nation" for all

20

of the 18 United States Code, Section 793(e) specifications.

21

B.

The element "with reason to believe such information

22

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

23

any foreign nation," for Specifications 13 and 14, in violation 18

7356

10902

1

United States Code, Section 1030(a), the Court will amend its ruling,

2

now, because Specification 14--the government is not going forward

3

with it so there--evidence would not be relevant to that

4

specification.
C.

5

That the information was intelligence, that the

6

intelligence was true for The Specification of Charge I, Aiding the

7

Enemy, Article 104, UCMJ and Specification 1 of Charge II, Wantonly

8

Causing Publication of Intelligence, Clauses 1 and 2 of Article 134.
D.

9

The element of value for Specifications 4, 6, 8, 12,

10

and 16 of Charge II, in violation of 18 United States Code, Section

11

641 and;

12

E.

The element of prejudice to good order and discipline

13

and service discrediting conduct for the specifications of Charge II

14

to which the accused has entered a plea of not guilty, and that would

15

be Specifications 1, 4, 6, 8, 11, 12, and 16 of Charge II.

16

8.

The Court's instructions define "intelligence," for The

17

Specification of Charge I and Specification of Charge II as "any

18

helpful information given to and received by the enemy which is true,

19

at least in part."

20

The law:

21

1.

22

Evidence is relevant if, A, it has a tendency to make a

fact more or less probable than it would be without the evidence,

7357

10903

1

and, B, the fact is of consequence in determining the action.

2

Military Rule of Evidence 401.
The military judge has the initial responsibility to

3

United States v. White, 69

4

determine whether evidence is relevant.

5

MJ 236, Court of Appeals for the Armed Forces, 2010.
2.

6
7

following provide otherwise:
1.

8
9

Relevant evidence is admissible unless any of the

The United States Constitution is applied to members of

the armed forces.
2.

A federal statute applicable to trial by courts-

12

3.

The Military Rules of Evidence or;

13

4.

The Manual for Court-Martial.

14

Irrelevant evidence is not admissible.

10
11

15

martial.

Military Rule of

Evidence 402.
3.

16

Relevant evidence may be excluded if its probative

17

value is substantially outweighed by the danger of one or more of the

18

following:

19

members, undue delay, wasting time, or needlessly presenting

20

cumulative evidence.

21

unfair prejudice, confusing the issues, misleading the

Military Rule of Evidence 403.

Conclusions of law:

7358

10904

1

1.

Evidence of the context and circumstances surrounding

2

the charged information and prospective damage is relevant to the

3

following elements:

4

A.

Whether the information charged in the specifications

5

alleging violations of 18 United States Code, Section 793(e) relates

6

to the national defense, Specifications 2, 3, 5, 7, 9, 10, 11, and 15

7

of Charge II.

8
9
10
11

B.

Whether the information charged in The Specification of

Charge I and Specification of Charge II is intelligence and whether
that intelligence is true, at least in part.
2.

The government's proffers regarding relevance to the

12

value element of the specifications alleging violations of 18 United

13

States Code, Section 641, Specifications 4, 6, 8, 12, and 16 of

14

Charge II and the element of prejudice to good order and discipline

15

and service discrediting conduct for all of the specifications of

16

Charge II to which the accused has pled not guilty provide logical

17

theories of relevance.

18

context and circumstances surrounding the charged offenses and

19

potential damage to prove those elements.

20

3.

The Court will allow limited evidence of the

The government concedes and the Court agrees that the

21

defense may also present evidence to challenge the above elements and

22

to rebut government evidence regarding the context and circumstances

23

of the charged information with respect to damage.

7359

10905

1

4.

Evidence of the context and circumstances surrounding

2

the charged information of prospective damage that was not known by

3

the accused is not relevant to whether the accused had reason to

4

believe the communication of charged information could be used to the

5

injury of the United States or to the advantage of any foreign nation

6

for the specifications alleging violations of 18 United States Code,

7

Section 793(e), Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of

8

Charge II, or violations of 18 United States Code, Section

9

1030(a)(1), Specifications 13 and 14 of Charge II.

10
11

This element is

of mens rea of the accused.
5.

The Court is concerned that extensive evidence of the

12

context and surrounding circumstances of prospective damage of the

13

charged information has the potential to cause this trial to devolve

14

into mini-trials regarding international politics in various regions

15

of the world, particularly with respect to such evidence regarding

16

the charged cables of Specifications 12 and 13 of Charge II.

17
18

A.

The evidence is not relevant to any remaining element

of Specification 13 of Charge II.

19

The only remaining elements the government must prove are:

20

1.

21

on a SIPR Network and;

That the accused knowingly exceeded authorized access

7360

10906

1

2.

That the accused had reason to believe the information

2

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

3

advantage of any foreign nation.

4

B.

The evidence is potentially relevant to the value and

5

prejudice to good order and discipline elements in Specification 12

6

of Charge II.

7

Specifications 4, 6, 8, 12, and 16 of Charge II, alleging violations

8

of 18 United States Code, Section 641.

9

value in a thieves market and expects to provide evidence of the

The government proffer alleges that, for

The government will prove

10

content and context of the charged information and the motives and

11

resources of foreign adversaries.

12

that evidence of the prospective damage to the United States, aside

13

from evidence of motives and resources of foreign adversaries, is

14

relevant to value.

15

the evidence is brief, limited, and focused, evidence of the

16

immediate context and circumstances surrounding the charged

17

information in Specifications 12 and 13 of Charge II and the motives

18

and resources of foreign adversaries for the value element of

19

Specification 12 of Charge II is relevant.

20

a position to rule on any M.R.E. 403 objections to specific evidence

21

at this time, the parties are on notice that the Court views evidence

22

beyond that authorized above, as potentially subject to exclusion

The government does not proffer

Accordingly, assuming proper foundation, the--if

7361

While the Court is not in

10907

1

under Military Rule of Evidence 403, particularly with respect to the

2

charged cables in Specifications 12 and 13 of Charge II.

3

Ruling:

4

Evidence on the context and circumstances surrounding the

5

charged information and potential damage is relevant on the merits as

6

set forth above.

7

objections as they are raised during the trial.

8

So ordered this 21st day of May 2013.

9

Does either side have anything further to address with this

10

The Court will address particular M.R.E. 403

issue?

11

CDC[MR.COOMBS]:

12

ATC[CPT VON ELTEN]:

13

MJ:

14

All right.

The Court will have this ruling marked as the

Is there anything we need to address before we take the
lunch break?

17

TC[MAJ FEIN]:

18

CDC[MR.COOMBS]:

19

MJ:

No, Your Honor.
No, Your Honor.

What time--I know you all have to confer about certain

20

things.

21

1400ish or go earlier?

22
23

No, Your Honor.

next appellate exhibit in line.

15
16

No, Your Honor.

Do you want to make it a long lunch and reconvene, say,

TC[MAJ FEIN]:

Ma'am, I think we can go earlier than that.

can do 1300, ma'am; that's an--more than an hour and a half.

7362

We

10908

1

MJ:

All right.

2

CDC[MR.COOMBS]:

Yes, Your Honor.

3

MJ:

Court is in recess until 1300.

All right.

Is that acceptable to the defense?

4

[The Article 39(a) session recessed at 1126, 21 May 2013.]

5

[The Article 39(a) session was called to order at 1341, 21 May 2013.]
MJ:

6

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

Let the

7

record reflect all parties present when the court last recessed are

8

again present in court.
All right, before we proceed, the Court has corrected

9
10

copies for two orders that I, initially, gave and those are the order

11

to close proceedings for John Doe and the orders to close

12

proceedings--order to close proceedings for the three classified

13

witnesses.

14

paragraph that says--paragraph 1 in the findings of fact.

15

original ruling was made on the 7th of May and that would be at

16

Appellate Exhibit--the order to close proceedings for John Doe was on

17

the 7th of May, that would be Appellate Exhibit 531.

18

to close proceedings for three classified witnesses would be on 531

19

and that was also on the 7th of May; and the same correction is being

20

made for both of them and it's to paragraph 1 of the findings of

21

fact.

22

introduce classified evidence from the testimony of John Doe.

23

evidence has been presented that the classified evidence at issue is

The only change made in the corrected copy is to a
The

And the order

The former findings of fact said, "The government intends to

7363

No

10909

1

in the public domain or has been officially acknowledged by the

2

government."

3

the classified information at issue is lawfully in the public domain

4

or has been officially acknowledged by the government.

5

"lawfully" was added to both of those orders.

6

just behind the original Appellate Exhibits.

The change is that no evidence as been presented that

8

TC[MAJ FEIN]:

9

CDC[MR.COOMBS]:
MJ:

10

No, Your Honor.
No, Your Honor.

Now, we were going to discuss the defense's 505(h) filing.

I believe the parties had conferred over the recess, is that correct?

12

ADC[MAJ HURLEY]:

13

MJ:

14

And we'll put them

Anything further we need to address with that?

7

11

So, the word,

Okay.

Yes, ma'am, that's correct.

And do we have any issues discuss with respect to

it?

15

ADC[MAJ HURLEY]:

16

MJ:

17

TC[MAJ FEIN]:

Okay.

No, not from the defense, ma'am.

Anything from the government?
No, ma'am, the defense is going to answer the

18

government's questions and we can process their filing by the end of

19

the week.

20

MJ:

All right.

I have--and one other issue that--again, the

21

parties and I met in a brief R.C.M. 802 conference before coming on

22

onto the record, today--and that, again, is where I discuss issues

23

and things that are going to arise in the case--and the defense

7364

10910

1

advised me the government had proffered, earlier, that the government

2

was going to use the providence inquiry from PFC Manning to

3

authenticate the charged documents and move to admit those.
Is that still the government’s plan?

4
5

TC[MAJ FEIN]:

Yes, ma’am.

In order to mark the documents and

6

have them in some type of order for the trier of fact, the government

7

argues--or does argue that, under R.C.M.--excuse me, M.R.E. 901, the

8

documents are authentic based off of the providence inquiry and they

9

are relevant, not based off the providence inquiry, but based off

10

being the actual, substantive charged documents that make up the

11

various 1030 and 793 specifications.

12

MJ:

All right.

13

TC[MAJ FEIN]:

Now, to be--and, Your Honor, that would not

14

include Specifications 11 and 16 because Private First Class Manning

15

didn’t plead guilty to those, so those charged documents are not

16

included.

17

classified documents.

And that’s from Appellate Exhibit 501 which is all of the

18

MJ:

All right.

19

CDC[MR.COOMBS]:

Defense, what’s your position?
Your Honor, we would object under M.R.E.--or,

20

excuse me, R.C.M.--excuse me, M.R.E. 901.

21

established that the authentication; they haven’t laid the proper

22

foundation for admissibility of the items, so we would object to

7365

The government has not

10911

1

using the providence inquiry for the government to lay it out on

2

authentication.
MJ:

3

Does either side have any authority for--I understand the

4

Court can’t use the providence inquiry--things that PFC Manning says-

5

-on the merits, but when it actually establishes an element to

6

proved, does any--does either side have any authority where a

7

providence inquiry has been used to authenticate documents that are

8

used by the government to prove the greater offense in a lesser-

9

greater offense scenario?
TC[MAJ FEIN]:

10

Well, Your Honor, the government would contend if

11

the document is being used to prove, as evidence--well, the answer is

12

no, Your Honor.

13

another, but that’s why the government is very specific just to use

14

it only for authentication purposes, not for relevance purposes.

The government didn’t find a case one way or

CDC[MR.COOMBS]:

15

And, Your Honor, the defense’s position would

16

be that this is where the government needs to bring the proper

17

witness in order to prove up the offenses that they’re going forward

18

on.

19

inquiry on elements that did not admit to the authentication of the

20

charged documents.

They should not be allowed to use PFC Manning’s providence

21

MJ:

Well----

22

TC[MAJ FEIN]:

Ma’am----

7366

10912

1

MJ:

You mean for elements, say, for example--what about the--

2

I’m looking at the 793(e) and 1030(a)(1) offenses.

3

understand your position with--when they’re not in a greater or

4

lesser capacity.

5

of those, so there’s nothing authenticated by his plea.

6

respect to the lesser-greater offenses, what’s your position?

7

I mean, I

PFC Manning didn’t--entered not guilty pleas to all

CDC[MR.COOMBS]:

But, with

Well, with respect to the lesser offense, what

8

he did was he pled to certain elements within the lesser offenses and

9

one of those was acknowledging that, you know, these were documents

10

that he released, but that doesn’t carry the day for the government

11

to admit these into evidence.

12

of witness testimony to establish the authentication for the

13

documents.

14

admit the charged documents for each of the offenses to which he’s

15

pled to a lesser included offense in order to, apparently, help them

16

in proving their greater offense.

17

they would still need to bring an authentication witness for that

18

purpose.

19

MJ:

They still need to present some sort

So, in this instance, the government, now, is wanting to

Okay.

The defense’s position is that

Major Fein, with--taking away the offenses for which

20

PFC Manning has entered lesser--a plea to a lesser included offense--

21

for example, the 641 offenses in Specification 11 of Charge II--what

22

would the government’s theory of authenticity be with respect to

7367

10913

1

those offenses where the accused has pled not guilty on the

2

authentication?

3

TC[MAJ FEIN]:

Well, ma’am, if--I guess--just to make sure I

4

understand your question, once a document is authentic, it is what it

5

purports to be, then--and it is relevant and admitted, it can be used

6

for any purpose at that point.

7
8
9

MJ:

But how do you use something that PFC Manning said in a

plea to Offense A to prove Offense B to which he’s--TC[MAJ FEIN]:

10

MJ:

11

TC[MAJ FEIN]:

Well, ma’am, again----

----pled not guilty?
----that’s why the United States argues it’s only

12

for authentication because, contrary to what the defense is arguing,

13

the flipside of that is that these documents are not the charged

14

documents.

15

providence inquiry, reviewed Appellate Exhibit 501, sat, under oath,

16

and said, “These are what they purport to be; they are the documents

17

I compromised,” and that’s all we’re, simply saying, Your Honor--is

18

that he already did that.

19

We have----

20

MJ:

21

inquiry?

I mean, Private First Class Manning, during the

We have met the burden under M.R.E. 901.

But how am I allowed to use what he says in the providence

7368

10914

1

TC[MAJ FEIN]:

Your Honor, we’re saying it can be used solely

2

for authentication while the government still has the burden to

3

establish relevance in order to move to----

4

MJ:

5

TC[MAJ FEIN]:

6

MJ:

7

TC[MAJ FEIN]:

8

MJ:

9

And you have no authority for that?

Okay.

No, we don’t; or to the contrary.

The objection is sustained.
Yes, ma’am.

All right.

Before--the Court was prepared to issue the

ruling on closure, but I would like to have both sides’ position on--

10

what is the effect of the new Military Rule of Evidence 505 on

11

whether--505(k)(1)(b) provides that “classified information kept

12

under seal, the military judge must allow classified information

13

offered or accepted into evidence to remain under seal during the

14

trial, even if such evidence is disclosed in the court-martial

15

proceedings and may, upon motion of the government, seal exhibits

16

containing classified information in accordance with R.C.M. 1103(a)

17

for any period of trial as necessary to prevent a disclosure of

18

classified information when a knowledgeably [sic] United States

19

official possessing authority to classify information submits to the

20

military judge a declaration setting forth the damage to national

21

security that the disclosure of such information, reasonably, could

22

be expected to cause.”

23

“Closed session:

And then the rule goes on, under 3, to say,

the military judge may, subject to the requirements

7369

10915

1

of the United States Constitution, exclude the public during that

2

portion of the presentation of evidence that discloses classified

3

information.”

4

knowledgeable United States official, possessing the authority to

5

classify information, submitting to the military judge a declaration

6

setting forth the damage to national security that the disclosure of

7

the information, reasonably, could be expected to cause.

There is nothing in 3 that talks about requiring a

Do the parties believe that that is required for a closure?

8

TC[MAJ FEIN]:

9
10

First off----

11

MJ:

12

TC[MAJ FEIN]:

Your Honor, the United States argues it doesn’t.

Does or doesn’t?
Is not required for a closure, it’s just a

13

demonstration of the national security interest that must be

14

protected.

15

already litigated, but the rule have always been set up and even the

16

current--the new M.R.E. 505--that, if during trial, for instance, a

17

witness is about--needs to disclose classified information to answer

18

a question, that there’s flexibility, there, to allow--for instance,

19

a court security with knowledge--to be able to look at that

20

information or view it and then provide that required evidence to the

21

Court to say, “Yes, this is classified information, to the best of my

22

knowledge.”

23

that.

Going back to the practical application--and I know we’ve

And that still gives the flexibility of the Court to do

7370

10916

If reading this to require an actual OCA to have a

1
2

declaration every single time, then that means that the entire trial,

3

in that scenario, would have to be stopped and the new rule doesn’t

4

seem to lead to that conclusion, let alone, Your Honor, the issues

5

with paragraph 2(a) of the rule if we’re going to--if the Court’s

6

deciding to apply the new rule from this point forward.

7

MJ:

Okay.

So it’s the government’s position, then, that

8

k(1)(b) allows the Court--so, really, the declaration is--allows the

9

government to present independent evidence of the classified

10

information not by someone with a--a knowledgeable United States

11

official possessing authority to classify information?

12

the closed session, the government wants to keep this information

13

under seal, then the government does have to present somebody, is

14

that your understanding?

15

TC[MAJ FEIN]:

And, if after

Yes, ma’am, which also makes sense because

16

records become, of course, matters of public access through FOIA and

17

other mechanisms.

18

them adequately protected, a proper U.S. Government official with

19

classification authority should be reviewing that and saying, “This

20

is, in fact, classified and this isn’t.”

21

exactly what was.

22

the flexibility to allow--elicit--testimony to be elicited and

23

continue moving the trial along.

So, in order to protect those records and have

So then it really isolates

So, as the trial progresses, it allows the Court

And then, once the record is

7371

10917

1

complete, then it’s saying the--after the fact, that the government

2

has the burden to get those declarations to identify exactly what is

3

or is not classified for all time.

4

MJ:

All right.

5

ADC[MAJ HURLEY]:

Defense?
Ma’am, we would agree with the government that

6

it does not--the plain reading of the rule doesn’t appear to require

7

that declaration in advance of the testimony of a particular witness.

8

MJ:

9

CDC[MR.COOMBS]:

Mr. Coombs, did you have something that you wanted to add?
Just the--the rule could also apply, I think,

10

to someone who has derivative classification authority.

11

case, the court security officer--that’s where, I believe the court

12

security officer could provide an opinion that we need to go into a

13

closed session because of some sort of testimony that’s coming out of

14

the witness right now that I know is classified or, if it’s not

15

classified, it would meet--it hasn’t been classified before, it would

16

meet the requirements for classification and I have derivative

17

authority and I’ll classify right now based upon some sort of

18

classification guide that he has.
So I think, in that instance, it would not require an

19
20
21
22
23

So, in this

original classification authority in order to have a closed session.
MJ:

Okay.

Thank you.

All right, the Court is prepared to rule

on the closures.
Order to close certain proceedings.

7372

10918

The government moves the Court to order trial proceedings

1
2

closed to the public when certain classified information is being

3

introduced or is the subject of examination or argument to ensure the

4

classified information specified in the government’s motion is not

5

disclosed to the public; Appellate Exhibit 479.
On 1 March 2013 the Court required the government to submit

6
7

its request with more specificity; Appellate Exhibit 503.

On 15

8

March 2013, the government resubmitted its request with more

9

specificity at Appellate Exhibit 505.

The defense opposes, arguing

10

that the proposed closure is not narrowly tailored and that the

11

classified information can be protected by a reasonable alternative

12

procedure called, "the silent witness rule" and moves the court to

13

order a government merits witness--moved the court to order a

14

government merits witness list to be produced for a closed Article

15

39(a) session to determine whether reasonable alternatives to closure

16

exist; Appellate Exhibit 513.
That closed session Article 39(a) session was held on 8 May

17
18

2013.

The witness discussed classified--discussing classified

19

information was Ambassador Don Yamamoto, acting Assistant Secretary

20

for African Affairs, U.S. Department of State.

21

classified and unclassified filings by the parties, the evidence

22

presented, oral argument, and the closed Article 39(a) session of 8

23

May 2013, the Court finds the rules as follows:

7373

Having considered

10919

1

Findings of fact.

2

1.

The government moves to close the Court for portions of

3

testimony that discuss the substance of classified information for

4

the following 24 witnesses:

5

witnesses, and one witness for merits and sentencing:

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

a.

10 merits witnesses, 13 sentencing

Brigadier General Robert Carr will provide classified

information relevant to the pre-sentencing phase of the trial.
b.

Colonel Julian Chesnutt will provide classified

testimony relevant to the presentencing phase of the trial.
c.

Ms. Elizabeth Dibble will provide classified testimony

relevant to the presentencing phase of the trial.
d.

Rear Admiral Kevin Donegan will provide classified

testimony relevant to the presentencing phase of the trial.
e.

Mr. John Feeley will provide classified testimony

relevant to the presentencing phase of the trial.
f.

Ambassador Patrick F. Kennedy will provide classified

testimony relevant to the presentencing phase of the trial.
g.

Mr. John Kirchofer will provide classified testimony

relevant to the presentencing phase of the trial.
h.

Ambassador Michael Kozak will provide classified

testimony relevant to the presentencing phase of the trial.
i.

Mr. Danny Lewis will provide classified testimony

relevant to specifications four, six, eight, 12, and 16 of charge II.

7374

10920

j.

1
2

relevant to the presentencing phase of the trial.
k.

3
4

Mr. James McCarl will provide classified testimony

relevant to the presentencing phase of the trial.
l.

5
6

Mr. Randall McRobbie will provide classified testimony

Major General Kenneth McKenzie will provide classified

testimony relevant to the presentencing phase of the trial.
m.

7

Mr. James Moore will provide classified testimony

8

relevant to the specification of charge I, and specifications 1, 12,

9

and 13 of charge II.
n.

10
11

Major General Michael Nagata will provide classified

testimony relevant to the presentencing phase of the trial.
o.

12

SSA Alexander Otte will provide classified testimony

13

relevant to the specification of charge I and specification one of

14

charge II.

15

p.

Ambassador David Pearce will provide classified

16

testimony relevant to the specification of charge I and

17

specifications one, 12, and 13 of charge II.

18
19
20

q.

Mr. Adam Pearson will provide classified testimony

relevant to the presentencing phase of the trial.
r.

Mr.

H. Dean Pittman will provide classified testimony

21

relevant to the specification of charge I and specifications one, 12,

22

and 13 of charge II.

7375

10921

1

s.

Ambassador Steven Seche will provide classified

2

testimony relevant to the specification of charge I and

3

specifications one, 12, and 13 of the government to.

4

i.

Mr. David Shaver will provide classified testimony

5

relevant to specification three of charge II, and classified

6

testimony relevant to presentencing phase of the trial.

7
8
9

u.

Ms. Cathryn Strobl will provide classified testimony

relevant to specifications three and 15 of charge II.
v.

Ambassador Don Yamamoto will provide classified

10

testimony relevant to the specification of charge I and

11

specifications one, 12, and 13 of charge II.

12

w.

Ambassador Marie Yovanovich will provide classified

13

testimony relevant to the specification of charge I and specification

14

one, 12, and 13 of charge II; and,

15

x.

Mr. Joseph Yun will provide classified testimony

16

relevant to the specification of charge I and specifications one, 12,

17

and 13 of charge II.

18

2.

On 28 March 2013, the defense moved the Court to order

19

the government to produce a merits witness and a sentencing witness

20

to go through a dry run of the classified testimony in a closed

21

Article 39(a) session to address whether there are reasonable

22

alternatives to closure available.

23

ordered the government to produce a dry run merits witness to

7376

On 10 April 2013 the Court

10922

1

determine whether there are reasonable alternatives to closure

2

available.

3

run merits witness.

4

during a closed Article 39(a) session.

5

Ambassador Yamamoto both with and without the use of alternatives.

6

The defense then examined Ambassador Yamamoto with the use of

7

alternatives.

8

least one incident where a spillage of classified information would

9

have resulted had the testimony been given in open court.

The government produced Ambassador Don Yamamoto as a dry

3.

10

On 8 May 2013, Ambassador Yamamoto testified
The government examined

During the testimony, using alternatives, there was at

On 10 April 2013 the Court ruled that the government

11

had not provided the Court with evidence of the classified nature for

12

all of the classified information at issue to allow the Court to

13

properly apply the test for closure set forth in R.C.M. 806(b)(2) and

14

make case-appropriate specific findings; Appellate Exhibit 517.

15

Court ordered the government to provide the Court with evidence of

16

the classified nature of each specific piece of classified

17

information the government seeks to assert has an overriding interest

18

justifying closure by 7 May 2013.

19

requested leave until 10 May 2013 to which the government did not

20

object.

21

The

On 7 May 2013 the government

The Court granted the government motion.
4.

On 10 May 2013 the government, ex parte, presented the

22

following evidence related to the national security interest for the

23

classified information for which the government seeks trial closure:

7377

10923

1
2
3
4
5
6

1) A letter from the Department of Defense with references
to six security classification guides;
2) A letter from the Defense Intelligence Agency with
references to two security classification guides;
3) A letter from the Department of State with references to
one security classification guide;

7

4) Classification reviews of the charge documents;

8

5) Classification reviews for evidence that the government

9
10

intends to use at trial; and,
6) The classification reviews enclosed to the government's

11

Military Rule of Evidence 505(i)(2) filing dated 31 January 2013;

12

Appellate Exhibit 477.

13

5.

No evidence has been presented that the classified

14

information at issue is lawfully in the public domain or has been

15

officially acknowledged by the government.

16

6.

The Court reviewed, in camera, the letters from the

17

three above mentioned organizations and the relevant classification

18

reviews which cite the reasons why the information is classified,

19

enclosures one through six of the government's evidence of the

20

classified nature of the information as noted as an overriding

21

interest justifying closure dated 10 may 2013.

22
23

7.

The proffered testimony and accompanying letters and

classification reviews demonstrate by a preponderance of the evidence

7378

10924

1

that the testimony sought to be introduced is properly classified by

2

an authorized original classification authority applying the

3

standards in Executive Order 13526.

4

8.

Public disclosure of the classified information

5

reasonably could be expected to cause serious harm to the national

6

security of the United States as described in the specification

7

reviews--classification reviews, excuse me--as it pertains to

8

intelligence activities, intelligence sources and methods, and the

9

foreign relations and foreign activities of the United States, the

10

unauthorized disclosure of which reasonably could be expected to harm

11

the national defense and foreign relations of United States;

12

enclosures one through six of the government's evidence of classified

13

nature of the information asserted as an overriding interest

14

justifying closure dated 10 may 2013.

15

The law.

16

1.

The Court's 13 April 2013 ruling and order, “Interplay

17

between M.R.E. 505, R.C.M. 806 and United States v.

Grunden,

18

specificity of classified information and John Doe,” sets forth the

19

Court's view of the law regarding closure of trial proceedings under

20

the First and Sixth amendments.

21

505(j)(5); the Court notes that the President has implemented, by

22

Executive Order, amendments to the M.R.E. 505 effective 15 May 2013.

R.C.M. 806(b)(2) and M.R.E

7379

10925

1

The amendments do not change the Court's substantive view of the

2

interplay between M.R.E. 505, R.C.M. 806, and US v. Grunden.

3

2.

When the government seeks closure of trial--Court

4

proceedings, the constitutional test incorporated by R.C.M. 806(b)(2)

5

requires the government to demonstrate that; one, there is a

6

substantial probability that an overriding interest would be

7

prejudiced if proceedings remain open; two, closure is no broader

8

than necessary to protect the overriding interest; three, reasonable

9

alternatives to closure were considered and found inadequate.

The

10

evidence presented must be sufficient to allow the Court to make

11

case-specific findings on the record justifying closure.

12

3.

Where the basis for a proposed closure of portions of

13

the trial is to protect against disclosure of classified information,

14

the government must demonstrate that the information is properly

15

classified, the closure of the proceedings during presentation of

16

classified information is necessary to protect national security of

17

United States and that the proposed closing is narrowly tailored so

18

the proceedings are closed to the absolute minimum necessary to

19

protect national security information; United States v. Grunden 2 MJ

20

116, Court of Military Appeals, 1977.

21

4.

The Court of Appeals for the Armed Forces has

22

recognized that the protection of classified information can be an

23

overriding interest that will be prejudiced if the proceedings remain

7380

10926

1

open.

2

United States by preventing disclosure of classified information the

3

Court must make individualized findings with respect to the specific

4

information the government asserts requires protection from public

5

disclosure, identify each witness that will testify regarding the

6

classified information, and close the Court only during those

7

portions for the presentation of evidence that actually denotes the

8

classified information; United States v. Lonetree, 31 MJ 839 at 853,

9

Navy Marine Court of Military Appeals, 1990, affirmed and remanded 35

10

When closing proceedings to protect national security of

MJ 396, Court of Military Appeals 1992.

11

Case-specific findings regarding closure.

12

1.

Overriding interest.

The testimony sought to be

13

introduced by the 24 witnesses has been classified at the SECRET or

14

CONFIDENTIAL level it is properly classified by an authorized

15

Original Classification Authority applying the standards of Executive

16

Order 13526.

17

reasonable danger that the presentation of classified information

18

before the public will expose interest related to national security

19

of United States that should not be divulged.

20

classified information in this case reasonably could be expected to

21

cause serious harm to national security of United States as described

22

in enclosures one through six of the government's evidence of the

23

classified nature of the information asserted as an overriding

The government has demonstrated that there is a

7381

Public disclosure of

10927

1

interest justifying closure, dated 10 May 2013.

2

demonstrated that closure of the trial during these periods of

3

testimony of the 24 witnesses is necessary to protect the overriding

4

interest of national security.

5

interest in protecting the national security and preventing the

6

dissemination of classified information outweighs the accused's

7

and/or the public's right to a public trial for the portion of the

8

trial that involves disclosure of classified information at issue.

9

M.R.E. 505--excuse me-3[sic].

10

The government

The Court finds that the government

Narrowly tailored closure.

The Court conducted a

11

test to determine whether reasonable alternatives exist in lieu of

12

closure.

13

testify during a close Article 39(a) session.

14

examined Ambassador Yamamoto both with and without the use of

15

alternatives.

16

use of alternatives.

17

government to elicit coherently in open court nuanced and narrative

18

testimony about the substance of the classified information using the

19

silent witness rule or any other code or legend not available to the

20

public.

21

testimony using the silent witness rule, code or legend.

22

such alternatives for nuanced testimony--narrative testimony in open

23

court creates complexities for the witnesses that result in an

On 7 May 2013 the Court observed Ambassador Yamamoto
The government

The defense then examined Ambassador Yamamoto with the
The Court finds that it is not possible for the

It is also not possible for the court to understand that

7382

The use of

10928

1

unreasonable risk of spillage of classified information.

2

presentation of narrative nuanced testimony in open court using such

3

alternatives creates an unreasonable risk of classification by

4

compilation with members of the public being able to connect the dots

5

with particular pieces of information that combine that with other

6

information to identify classified information.

7

that it is possible that certain unclassified testimony of the above

8

24 witnesses may be elicited intermixed with classified information.

9

In order to narrowly tailor the closure, the Court has ordered the

10

government to present a plan to expeditiously prepare a transcript

11

and to conduct appropriate classification reviews of the transcript

12

of any closed session to include that of the 24 witnesses.

13

Unclassified portions of testimony will be released to the public.

14

Closure order by the Court is as narrowly tailored as possible to

15

protect the accused and public right--the public's right to a public

16

trial while protecting the classification--classified information

17

from inadvertent public disclosure and the right of the parties to

18

present classified evidence in a coherent manner to the factfinder.

19

3.

Finally,

The Court recognizes

Reasonable alternatives to closure.

The court

20

considered alternatives to receiving classified testimony including

21

use of redactions, the silent witness rule, projected electronic

22

displays, unclassified summaries or alternatives to testimony, and

23

code words and names.

The Court also considered the alternatives

7383

10929

1

presented by the parties during Ambassador Yamamoto's testimony.

2

There are no alternatives to closure for the presentation of

3

classified information from the 24 witnesses that are reasonable or

4

adequate.

5

requirement as an alternative to closure.

6

The Court has imposed the classification review

4.

The Court has carefully balanced the accused’s Sixth

7

Amendment right to a public trial and the public's First Amendment

8

right to a public trial against the potential serious damage to

9

national security of United States that would result from public

10

disclosure or spillage of this information in the open session of

11

this court-martial.

12

5.

The overriding interest.

Protecting national security

13

information from disclosure outweighs any miscarriage of justice--

14

danger of miscarriage of justice that could arise from taking

15

portions of the testimony of the 24 witnesses in closed session of

16

this court-martial.

17

Order.

18

[1.] Court-martial will be closed to the public during the

19

portions of testimony of the above 24 witnesses discussing the

20

substance of classified information.

21

2.

After each of the 24 witnesses has testified, the Court

22

will expeditiously prepare a transcript of the testimony and conduct

23

appropriate classification reviews of the transcript.

7384

A redacted

10930

1

copy containing any unclassified testimony will be released to the

2

public.

3

transcription/classification review plan submitted by the government

4

on 20 May 2013; Appellate Exhibit 548.

The Court is currently evaluating the proposed

5

So ordered this 21st day of May of 2013.

6

Now, just a couple of things that are not in the written

7

order.

In the closed session there were certain items that the

8

government had planned to elicit in closed session that are obvious

9

on the face of the documents of the charged--on the face of the

10

charged documents.

11

things such as what kind of a classification it is, taglines, etc.,

12

that are evident from the face of the document can be held in open

13

session certainly with using some kind of a code or just directing

14

the fact-finder to where it is.

15

tailor the closed portion as much as possible with respect to that.

16

The Court also made its relevance ruling earlier today.

17

Court is going to be keeping a fine eye on the M.R.E. 403 aspect of

18

testimony, particularly with respect to Specifications 12 and 13 of

19

Charge II.

20

may have been elicited may have some relevance issues.

21

As the Court said during that closed session,

So, the government will narrowly

So, the

Again, the goal of, I think a lot of the testimony that

Anything else we need to address?

22

CDC[MR. COOMBS]:

23

TC[MAJ FEIN]:

No, Your Honor.

One moment, please?

7385

[Pause] No, ma'am.

10931

1

MJ:

Okay.

This order will be added as the next Appellate

2

Exhibit in line.

The last thing I have on my agenda is the case

3

calendar which as far as I understand there has been no changes since

4

the defense last did not object to the one the government proposed.
Is that still the case?

5
6

CDC[MR. COOMBS]:

7

TC[MAJ FEIN]:

8

MJ:

9
10

That is correct, Your Honor.

Yes, ma'am.

So, our next proceeding then, this will be the last Article

39(a)--pretrial Article 39(a) session that we conduct.

The next

session will be on June 3 starting at 0930, is that correct?

11

TC[MAJ FEIN]:

Yes, ma'am.

12

CDC[MR. COOMBS]:

13

MJ:

Yes, Your Honor.

One question I do have for you, I have not received any

14

request from the government with respect to opening statements or

15

opening statement and closure.

16

TC[MAJ FEIN]:

17

MJ:

18

CDC[MR. COOMBS]:

19

MJ:

20

TC[MAJ FEIN]:

21

CDC[MR. COOMBS]:

22

MJ:

23

Okay.

Am I going to get any?

No, ma'am.

Anything from--well, defense I assume not?
No, ma'am.

Anything else we need to address today?
No, ma'am.
No, Your Honor.

Court's in recess.

[The Article 39(a) session recessed at 1413, 21 May 2013.]

7386

10932

1
2
3
4

[The Article 39(a) session was called to order at 0956, 3 June 2013.]
MJ:

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

Major Fein,

please account for the parties.
TC[MAJ FEIN]:

Yes, ma'am.

Your Honor, all parties when the

5

court last recessed are again present with the following exceptions:

6

Captain von Elten is absent and Captain Morrow is present.

7
8
9

MJ:

All right.

Why don’t we begin by announcing the new

appellate exhibits that have been. added to the record.
TC[MAJ FEIN]:

Yes, Your Honor.

Your Honor, the 21st of May

10

2013, the defense filed a witness list addendum.

11

Appellate Exhibit 554.

12

for the first 25 witnesses.

13

that is Appellate Exhibit 552.

14

governments proposed daily trial schedule was filed and it’s been

15

marked as Appellate Exhibit 553.

16

MJ:

17

TC[MAJ FEIN]:

18

MJ:

19

It was published, or it was filed and
On the 21st of May 2013, the

Yes, ma'am.

Mr. Coombs, did the defense have any objection to the

governments proposed trial plan?
CDC[MR. COOMBS]:

21

MJ:

23

On 21 May 2013, the government witness order

Let me stop you for just a moment.

20

22

It’s been marked as

No, Your Honor.

All right and I believe that the email to that effect has

also been filed as an Appellate Exhibit with the original trial plan.
Go ahead Major Fein.

7387

10933

1

TC[MAJ FEIN]:

Yes, ma'am, and one correction, Your Honor, the

2

governments proposed trial plan is marked as 553 Alpha and the

3

defense’s email that states no objection is 553 Bravo.
Your Honor, on the 30th of May 2013, Your Honor, the 23rd

4
5

of May 2013, there were, Your Honor, there is two immunities that

6

have been filed but they have not been marked the court, during the

7

802 discussed that we will address those later with the witnesses.
Your Honor, on the 31st of May 2013, the government filed

8
9

M.R.E. 505(j)(2) motion for use of alternatives.

This was via

10

SIPRNET.

11

the same day the United States filed an unclassified and redacted

12

version and that has been marked as Appellate Exhibit 556.

15

And then

On the 1st of June 2013 ----

13
14

This has been marked as Appellate Exhibit 555.

MJ:

Hold on. Before you go there.

Defense, do you have any

objection to the 505 filing by the government?

16

CDC[MR. COOMBS]:

17

MJ:

18

TC[MAJ FEIN]:

All right.

No, Your Honor.
Thank you.

Proceed.

Yes, ma'am. Your Honor, on the 1st of June, 2013,

19

the government filed an updated Section 3 disclosure that has been

20

marked as Appellate Exhibit 557.

21

2013, a third -- the court received a third-party request that has

22

not been filed by either party but has been marked as Appellate

23

Exhibit 558.

And then, Your Honor, on 31 May,

7388

10934

MJ: All right. Is this the request from three non-- three third-

1
2

party people who are not parties to the trial?

3

TC[MAJ FEIN]:

4

MJ: Leon Simpage, Scott Galindez and Kay Ruton?

5

TC[MAJ FEIN]:

6

MJ: All right.

7
8
9
10

Yes, Your Honor.

Yes, Your Honor.
And that's been marked as an appellate exhibit

also?
TC[MAJ FEIN]:

Yes, Your Honor.

That is marked as Appellate

Exhibit 558.
MJ: All right.

Does the government have a position with respect

11

to this request for public access or in the alternative motion to

12

intervene to vindicate the right of public access?

13

TC[MAJ FEIN]:

14

MJ: Defense?

15

CDC[MR. COOMBS]: No, Your Honor.

16

MJ: All right. The court will take this under advisement.

17

No, Your Honor.

Government, anything else?

18

TC[MAJ FEIN]:

19

MJ: All right.

No, Your Honor.
All right.

Before we continue, I do want to go

20

back to something that was filed at the last time, the court's

21

closure ruling discussed the preparation of a transcript and a

22

classification review after that. I'm not quite sure what appellate

23

exhibit that was.

7389

10935

1

TC[MAJ FEIN]:

2

MJ:

Your Honor, it’s Appellate Exhibit 548.

It was a 20 May 2013, prosecution proposed plan for

3

expeditious transcription plan.

4

phases, Transcription, Phase I; Errata and Authentication, Phase II;

5

and Classification Review, Phase III.

6

objection to Phases I and II?

7

CDC[MR. COOMBS]:

8

MJ:

9

All right.

It was basically proposed in three

Defense, do you have any

No, Your Honor.
Government, again with respect to Phase III,

what the court would like is for each individual closure there will

10

be a plan in place and a time line for the classification review for

11

each of the specific closures prior to the closure, so the court will

12

know what it is before allowing the closure.

13

TC[MAJ FEIN]:

14

MJ:

15

CDC[MR. COOMBS]:

16

MJ:

Is that understood?

Yes, ma'am.

Defense, in light of that, any objection to Phase III?
No, Your Honor.

And I would like for the government to set forth for the

17

record, what are the procedures that have been put into place for

18

public access to this trial?

19

TC[MAJ FEIN]:

Yes, ma'am.

Ma’am, there are two different sets

20

of procedures that have been put in place for public access.

21

the United States will discuss the general public and then the press’

22

access.

23

MJ:

All right.

7390

First,

10936

1

TC[MAJ FEIN]:

First, Your Honor, the general public.

There are

2

sixteen seats presently in the court that are dedicated to the

3

public's access to sit in this court martial within the actual

4

confines of the courtroom.

5

of the courtroom with a feed from this courtroom based off the

6

cameras and that seats 35 individuals.

7

overflow of those 35 individuals in the trailer, Your Honor, there is

8

a theater next door to this courthouse that seats presently 100

9

individuals or could seat 100 individuals.

There is a trailer which is an extension

And then if there is an

However, there is

10

flexibility up to 540 based off of the fire marshal coming in and

11

changing some arrangement of the seats, if needed.

12

general public, Your Honor.

13

are ten positions, ten seats in this courtroom for media

14

organizations that are credentialed and there's also two additional

15

seats for two credentialed sketch artists.

16

center offsite down the street there is seats for 70 credentialed

17

members of the media.

18

a satellite truck area of a live feed and there is a currently

19

unlimited space in both the press pit and the satellite truck live

20

feed area.

21
22

MJ:

That's the

As far as the media, Your Honor, there

At the media operations

And then, Your Honor, there is a press pit and

All right. You said credentialed media. Is there criteria

for credentialing?

7391

10937

TC[MAJ FEIN]:

1

Yes, Your Honor. What the United States just had

2

marked as Appellate Exhibit 561.

Appellate Exhibit 561 is a copy of

3

the latest media advisory published by the United States Army

4

Military District of Washington Public Affairs Office dated May 10,

5

2013.

6

to be credentialed.

7

First, credentials will be granted to reporters from the following

8

types of news media, newspaper, weeklies and magazines; wire

9

services, broadcast media, web media and accredited free-lance

This advisory outlines the criteria for members of the media
Just to highlight a few areas, Your Honor.

10

writers.

11

material for each of those categories. And then the media advisory

12

also outlines a deadline for registration on the second page.

13

Registration had to be completed no later than 2:00 p.m. Wednesday,

14

May 29 with the following information provided.

15

published out and this is what the rules needed to be followed in

16

order to be credentialed.

17

MJ:

The media advisory goes further in defining the required

All right.

This was what was

Would the government also discuss what

18

electronics are allowed or not allowed in the various places, noting

19

for the record that R.C.M. 806(c) prohibits video and audio

20

recording, taking photographs, radio, or television broadcasting and

21

those are the court rules as well.

22
23

TC[MAJ FEIN]:

Yes, ma'am.

As the court just alluded, to Your

Honor, not only the R.C.M., but the Trial Judiciary Rules prohibit

7392

10938

1

recording devices.

So, in the courtroom, Your Honor, the rules are

2

strictly followed and the extension of the courtroom, meaning the

3

trailer that holds spectators, and the theater the same rules apply.

4

The court has approved a relaxation of the rules in the media

5

operations center solely for the purpose for having laptops to

6

prepare stories for publications, but no live recording or live

7

publication. It is not until there is a recess when court is not in

8

session that members of the media are allowed to upload or connect

9

outside of media operations center, and then during that recess

10

that's when news stories will be published. And again, there's no

11

recording devices authorized.

12

devices or cellphones are not authorized according to the court

13

rules.

14

MJ:

15

TC[MAJ FEIN]:

So laptop computer, handheld recording

What about stenographic equipment?
Your Honor, the United States would say that a

16

Stenograph is being used as long as it is not recording the

17

information then it is not a recording device.

18

with a stenographer, a traditional one without recording capability,

19

then that would fall within the rules of being permitted.
MJ:

20
21
22

All right.

Thank you.

Defense, do you have anything to

add?
CDC[MR. COOMBS]:

If it is a Stenograph

No, Your Honor.

7393

10939

MJ:

1
2

And finally, has Appellate Exhibit 561 been

publicly available?
TC[MAJ FEIN]:

3
4

All right.

Yes, Your Honor.

It was published out by,

actually by the public affairs office through media distribution.
MJ:

5

All right.

Thank you.

And for the record, counsel and I

6

held a brief R.C.M. 802 conference.

Once again, that is a conference

7

where I talk about scheduling and logistics issues with counsel and

8

we basically just discuss sort of the order of march on how we're

9

going to go, how we're going to proceed today and the things that we

10

just announced were pretty much what we discussed.

The government's

11

proposed trial plan, I haven't actually authorized a proposed trial

12

plan.

13

government's proposed trial plan this week which basically provides

14

for a brief R.C.M. 802 conference before we begin, starting court at

15

0930, we were a little bit late today, and ending approximately six

16

o'clock or 1800.

17

works, see if there's any modifications that need to be made and the

18

court will come out with something more definitive probably by the

19

end of the week. But that's the proposed plan for this week.

20

Is there anything else, counsel, that we need to address before I go

21

over with PFC Manning just briefly, it's been a long time since we've

22

had arraignment, forum selection and plea, so I just want to go

23

through those briefly and just make sure that your selections that

What I did talk to counsel about is we're going to try the

We're going to try that this week, see how it

7394

10940

1

you made are still your selections today.

2

need to address?

3

CDC[MR. COOMBS]:

4

TC[MAJ FEIN]:

5

MJ:

All right.

Is there anything else we

No, Your Honor.

No, Your Honor.
PFC Manning, we talked a long time ago about

6

your rights to counsel and you requested to be represented by Mr.

7

Coombs as your civilian defense counsel, by Major Hurley as your

8

individual military counsel, and by Captain Tooman as your detailed

9

defense counsel.
Is that still your selection today?

10
11

ACC: Yes, Your Honor.

12

MJ:

13

Do you want any further explanation of your rights to

counsel or do you believe you understand them?

14

ACC: I understand them.

15

MJ:

And back I believe in February you made a forum selection

16

which was trial by military judge alone.

17

colloquy there going over your right to trial with members, officer

18

panel or enlisted panel, or your right to trial by military judge.

19

You elected military judge alone knowing that I would be the military

20

judge.

21
22

We went through the

Is that still your forum selection?
ACC: Yes.

Yes, ma'am.

7395

10941

1

MJ:

Also back in February you entered pleas to lesser included

2

offenses of a number of the offenses that were charged.

3

desire to continue with your guilty plea to those lesser included

4

offenses?

5

ACC: Yes, Your Honor.

6

MJ:

7

Do you still

Do you have any changes, Mr. Coombs or PFC Manning to those

pleas?

8

CDC[MR. COOMBS]:

9

MJ:

No, Your Honor.

PFC Manning?

10

ACC: No, Your Honor.

11

MJ:

All right.

Let’s talk about some stipulations of expected

12

testimony that the parties have agreed to.

13

Major Fein, if you could list those and what appellate exhibits those

14

are, please?

15

TC[MAJ FEIN]:

Yes, Your Honor.

The first is what has been

16

marked as PE for Identification, PE 21 for Identification, Sergeant

17

Mary Amiatu.

18

Agent Calder Robertson.

19

Special Agent Tony Edwards. Prosecution Exhibit 27 for

20

Identification, Special Agent Charles Clapper.

21

28 for Identification, Mr. Garon Young.

22

Identification, Mrs. Tamara Mairena.

23

Identification, Staff Sergeant Alejandro Marin.

Prosecution Exhibit 23 for Identification, Special
Prosecution Exhibit 26 for Identification,

7396

Prosecution Exhibit

Prosecution Exhibit 29 for

And Prosecution Exhibit 36 for

10942

1

MJ: Is that seven stipulations of fact in total?

2

TC[MAJ FEIN]: It is, Your Honor.

3

MJ: PFC Manning, do you have a copy of all of those stipulations

4

of expected testimony before you?

5

ACC: Yes, Your Honor.

6

MJ:

Now, on the end of each of those stipulations are three

7

signature blocks; one for the trial counsel, one for the defense

8

counsel and one for you.
Did you sign all of those stipulations?

9
10

ACC: Excuse me, ma'am?

11

MJ: PFC Manning, when I ask you questions, please take your

12

ACC: Yes, ma'am.

14

MJ:

Did you read those stipulations thoroughly before you

signed them?

16

ACC: Yes, Your Honor.

17

MJ:

18

ACC: Yes, Your Honor.

19

MJ:

20

Do you understand the contents of the stipulation?

The stipulations.

Before signing the stipulations did your

defense counsel explain to you what the stipulations are?

21

ACC: Yes, ma'am.

22

MJ:

23

Yes, ma'am.

time, whatever time you need.

13

15

Yes.

All right.

Do you understand you have an absolute right to

refuse to stipulate to anything in this case?

7397

10943

1

ACC: Yes, ma'am.

2

MJ:

Now, you understand you should enter into these

3

stipulations only if you believe it's in your best interest to do

4

that?

5

ACC: Yes, Your Honor.

6

MJ: Now, we've discussed stipulations before.

You've entered

7

one stipulation of fact and two stipulations of expected testimony

8

already and we talked about the differences in that.

9

these are stipulations of expected testimony.

All seven of

Now, what those are,

10

are, when counsel for both sides and you agreed to stipulations of

11

expected testimony, you are agreeing that if each of these witnesses

12

was here testifying under oath they would testify substantially as to

13

what is in the stipulation of expected testimony.

14

can be attacked, contradicted or explained in the same way as if the

15

person were here testifying in court.

16

stipulation of fact where you're saying this is factually true.

17

the stipulation of expected testimony, you're agreeing that this is

18

what this person would say.

The stipulation

So it's different from a
In

Do you understand the distinction?

19
20

ACC: Yes, that's correct, Your Honor.

21

MJ:

And then what I've told you and what your defense counsel

22

told you earlier about each of these stipulations, do you still

23

desire to enter into each of these stipulations?

7398

10944

1

ACC: Yes, Your Honor.

2

MJ:

3

stipulations?

Do counsel concur in the contents of each of these seven

4

TC[MAJ FEIN]:

Yes, Your Honor.

5

CDC[MR. COOMBS]:

6

MJ:

Yes, ma'am.

Each of those stipulations is admitted into evidence.

May

7

I have them, please?

8

[The court reporter handed the military judge the seven prosecution

9

exhibits.]

10

MJ: All right.

Thus Prosecution Exhibits 36, 29 -- I have a

11

Prosecution Exhibit Blank for Identification.

12

to add that one.

26. 28. 27.

All right.

13

I think we just need

Oops, I have two 26s.

26, Prosecution Exhibit 26, dated 3 June 2013,

14

is admitted.

15

Special Agent Antonio Edwards.

16

Identification is admitted.

And finally Prosecution Exhibit 21 for

17

Identification is admitted.

That is seven stipulations of expected

18

testimony.

19

That would be the stipulation of expected testimony of
Prosecution Exhibit 23 for

Now, is there anything else we need to address before we

20

proceed to opening?

21

using a slide show that the defense had not seen yet.

22

we need a recess before we continue?

23

CDC[MR. COOMBS]:

I understand the government was planning on

Yes, Your Honor.

7399

Are there, do

10945

1
2
3

TC[MAJ FEIN]:

Yes, Your Honor.

We also have a copy for the

court.
MJ:

All right.

How long of a recess do we need?

Well, before

4

we recess, is there anything else we need to take up before we

5

proceed to opening statements?

6

CDC[MR. COOMBS]:

7

TC[MAJ FEIN]:

8

MJ: How long of a recess do you need?

9

CDC[MR. COOMBS]: Defense would request an 802 at 10:30, Your

10

No, Your Honor.

No, Your Honor.

Honor.

11

MJ:

12

TC[MAJ FEIN]: Yes, ma’am.

13

MJ: All right.

14
15

Does that comport with the government's idea?

than that then.

Court is in -- well, the recess will be longer

How long do you the the recessing will be?

CDC[MR. COOMBS]: I believe the 802 will take around 15 minutes,

16

and depending on what the court does there, the government might need

17

some time to make adjustments.

18

MJ: All right.

Well, why don’t we do this?

We'll put the court

19

in recess then at least until quarter to eleven.

20

bailiff outside to advise everyone if that recess will go longer.

21

TC[MAJ FEIN]:

22

MJ:

23

Yes, ma'am.

Court is in recess.

[The court-martial recessed at 1018, 3 June 2013.]

7400

We'll send the

10946

1
2

[The court-martial was called to order at 1056, 3 June 2013.]
MJ: Court is called to order.

Let the record reflect all

3

parties present when the court last recessed are again present in

4

court.

5

have one more question, or a couple more questions with respect to

6

public access to this court-martial.

7

earlier -- you stated for the record earlier that the theater has

8

been used as an overflow room.

9

sessions since this case was referred back in February of 2012.

Before we proceed to discuss the government slide show I did

Major Fein, you testified

We've had a number of Article 39(a)
Can

10

you please state for the record how many times that theater has been

11

used as an overflow during this ----

12

TC[MAJ FEIN]: Yes, Your Honor.

13

MJ:

14

TC[MAJ FEIN]:

Since these proceedings.
Since the court-martial has been referred to this

15

court, the theater has not been used. It has only been used, although

16

available, it has been used the first day of the Article 32 hearing

17

prior to referral.

18
19

MJ:

And with respect to the fact that it hasn't been used

during these proceedings, is that because it was not necessary ----

20

TC[MAJ FEIN]:

21

MJ:

22

Yes, Your Honor.

---- that the public was accommodated by the other, by I

guess the courtroom itself and the media operations center?

7401

10947

1

TC[MAJ FEIN]: Yes, ma'am, that is precisely it.

Although

2

available, the Garrison is ready to use it when needed, but there has

3

not been a queue or line of individuals that could not attend and

4

observe the court-martial.

5

MJ:

6

TC[MAJ FEIN]:

7
8
9
10
11

Is the theater being used today?

to be used.
MJ:

And it is open today if needed.

Your Honor, my understanding is it is anticipated

I do not know if it is currently being used.

All right.

Has any specific person been excluded from

attendance at either in court, in the media center, or in the -well, in the overflow room, any of those three venues?
TC[MAJ FEIN]:

Ma'am, there have not been as far as the general

12

public, to the best of the prosecution's knowledge there has not been

13

anyone excluded without the court's -- without court’s directions,

14

so, no.

15

the media that were not credentialed.

16

BOCUS system which is one of the requirements of being registered in

17

this, in commercial, independent commercial press service

18

organization. That was in the media advisory.

19

BOCUS and three submitted their credentialing late so they were not

20

credentialed.

21

center.

22

press pit and the satellite live -- the satellite live feed area.

23

MJ:

As far as the media, Your Honor, there were five members of
Two were not listed in the

Two were not in the

Otherwise everyone has access to the media operations

And those individuals, Your Honor, still have access to the

What is a press pit and satellite live feed area?

7402

10948

TC[MAJ FEIN]:

1

Your Honor, the press pit is an area where there

2

can be -- it's a congregation of members of the media to ask

3

questions and to receive answers.

4

feed area is where there are satellite trucks for national or local

5

media organizations where they can have live update, live reporting.

6

That's another area that is segregated. And right now it's unlimited

7

space for those two areas.
MJ:

8
9

All right.

And then the satellite truck live

Defense, do you have any reason to believe

otherwise?

10

CDC[MR. COOMBS]:

11

MJ:

No, Your Honor.

Also for the record the government filed its motion for use

12

of alternatives under M.R.E. 505(j)(2).

13

the defense had no objection to it.

14

on that, so the court will grant that motion with respect to

15

paragraphs, one, two and four which is use of the information at

16

trial and will address the sealing issue later.

17

TC[MAJ FEIN]:

18

MJ:

19
20

show.

Okay.

We discussed that earlier,

The court never actually ruled

Yes, Your Honor.

Now, with respect to the government's proposed slide

Defense?
CDC[MR. COOMBS]:

Yes, Your Honor.

The defense reviewed the

21

slide show this morning.

There are two areas where the defense would

22

have an objection.

23

presentation, at least the version the defense has received, has two

Page three of the government's slide

7403

10949

1

slides per page.

2

government's slide show presentation.

3

objections would be authentication.

4

how the government obtained the 2009 WikiLeaks Most Wanted List was

5

by having one of their forensic examiners use a program to search the

6

Internet history in order to be able to pull something that at one

7

time existed on the Internet.

8

knowledge that this is the WikiLeaks 2009 Most Wanted List, so in

9

addition to authentication problems under M.R.E. 901 we would say

10

And the basis for our
The defense's understanding of

This witness doesn't have personal

personal knowledge.
MJ:

11
12

And then also Page 18 through 20 of the

Why would he have to have personal knowledge if he is just

going to see what's on the Internet at a given time?
CDC[MR. COOMBS]:

13

Because the only reason it's relevant is if

14

the government is arguing if this is in fact the WikiLeaks 2009 Most

15

Wanted List, and this witness has no personal knowledge of that to

16

lay the foundation for the authentication of -- for this item.

17

addition, because the government is offering it, would be trying to

18

elicit information from it, there's hearsay objections, so M.R.E.

19

801.

20

forensic expert is going to be testifying about something he read or

21

seen that apparently was placed on the Internet.

22

importantly, a relevance objection under M.R.E. 401.

23

objection under M.R.E. 403.

In

In this case probably hearsay within hearsay because the

But then more
And also an

The 2009 WikiLeaks Most Wanted List, the

7404

10950

1

government apparently wants to use that to suggest that PFC Manning

2

was taking his direction from WikiLeaks, and there's simply no

3

evidence to support that.

4

wanted list, if in fact we do, one of the items is General Order

5

Number 1, that's the -- probably the easiest thing that somebody

6

could obtain, and WikiLeaks doesn't have that.

7

real evidence to suggest that PFC Manning was using this list as a

8

guide for what he would be giving to WikiLeaks.

In fact, when you look at the 2009 most

And so there is no

Additionally, there's no forensic connection between PFC

9
10

Manning and this list.

11

minute account of what PFC Manning was doing on SIPRNET computers

12

found any reference to searches that track this whole list.

13

they found something that they could argue that, oh, this kind of

14

looks like something that's on this list.

So the defense's position

15

on this is that it's simply not relevant.

And to the extent that

16

there is some minor relevance as to circumstantial evidence, it's

17

unfairly prejudicial because, again, PFC Manning was not taking his

18

direction from WikiLeaks.

19
20
21

MJ:

All right.

The government at no time in their minute-by-

Thank you.

At best

Government, please address each

basis of the defense's objection.
TC[MAJ FEIN]:

Yes, ma'am.

First, authentication.

United

22

States intends to call special agents who used what other courts have

23

approved or have allowed for authentication purposes an approved

7405

10951

1

method of searching historic records that existed at the time on the

2

Internet using what's called the way back machine, and then

3

independently looking at other processes like the Google cache and

4

other information to confirm that that is the WikiLeaks most wanted

5

list from that time.

6

used this device or this website.

7

intended to be used and we intend to present evidence to that point.

8

So that's authentication, Your Honor, and he actually downloaded it.

9

In fact, the versions that are being used are the ones he printed and

10
11

That's what the special agent did himself.

He

He used it in the way that it's

signed after he did it.
As far as the hearsay, Your Honor, first and foremost, the

12

United States isn't offering it for the truth of the matter asserted,

13

but effect on the listener, PFC Manning.

14

show evidence that he used this as a guide, as a menu to do his

15

searches and figure out what he was going to give WikiLeaks and not,

16

and that's what the evidence is going to show.

17

from the slide show using what the defense just offered is that the

18

Intelink logs which are what the minute-by-minute account evidence we

19

have, and that's from a SIPRNET system that the WikiLeaks most wanted

20

list was not on, PFC Manning searched for a term such as GTMO SOPs,

21

detainee abuse and interrogation and that was around December, late

22

November, December of 2009.

The government intends to

Example, Your Honor,

Those exact things are what WikiLeaks

7406

10952

1

was asking for and is listed on the WikiLeaks most wanted screen

2

shot.

So the relevance there is clear, Your Honor.
The reason the United States isn't offering or doesn't have

3
4

what the defense is claiming we must have, which is a forensic trail

5

to show PFC Manning on this, and that's why United States would argue

6

and will argue later circumstantial evidence, is because Private

7

First Class Manning wiped his personal Macintosh computer,

8

forensically cleared it so there's no forensic evidence on 25 January

9

2010, and evidence will show that as well, Your Honor.

So it is

10

authentic or the United States will be able to show it's authentic

11

and defense will be able to object and we'll be able to litigate this

12

issue, but we do have a good faith basis to believe that it is what

13

it purports to be and it is otherwise admissible.

14

- we would not be offering it for hearsay purposes, but it's the

15

effect on listeners.

16

searches he did, which we do have forensics for.
MJ:

17

All right.

And believe it’s -

Why and what drove PFC Manning to do the

Well, the court will rule on all these when the

18

evidence is actually presented.

As far as opening statement, this is

19

a judge alone trial.

20

and disregarding evidence should I find that it is not authenticated

21

properly, that it is offered as improper hearsay or it's not relevant

22

or is unduly prejudicial.

23

be.

The court is well versed in ruling on motions

So I can unring the bell should that need

So government, I believe you established a good faith basis to

7407

10953

1

at least use it as part of your opening statement.

2

objections at this point are overruled.

3

the admissibility of the evidence at this time.

4

CDC[MR. COOMBS]:

5

TC[MAJ FEIN]:

6

MJ:

7

But again, I'm not ruling on

Yes, Your Honor.

Yes, ma'am.

All right.

Anything else we need to address before we

proceed with opening statements?

8

CDC[MR. COOMBS]:

9

TC[MAJ FEIN]:

10

So defense

MJ:

No, Your Honor.

No, Your Honor.

All right.

As once again, you're all familiar with,

11

opening statements are not evidence, rather they are what counsel

12

expect the evidence will show in the case.
Does the government have an opening statement?

13
14

ATC[CPT MORROW]:

15

MJ: Proceed.

16

ATC[CPT MORROW]:

Yes, Your Honor.

May it please the court?

If you had

17

unprecedented access to classified networks 14 hours a day, seven

18

days week for eight plus months, what would you do?

19

will show that those are the words of PFC Bradley Manning, Your

20

Honor.

21

information.

22

barracks or two.

23

made discrete targeted disclosures of classified information based on

The evidence

This is not a case about an accidental spill of classified
This is not a case about a few documents left in a
This is not a case about a government official who

7408

10954

1

content they rate careful.

2

Soldier who systematically harvested hundreds of thousands of

3

documents on classified databases and then literally dumped that

4

information onto the Internet and into the hands of the enemy.

5

Material he knew, based on his training and experience, could put the

6

lives and welfare of his fellow Soldiers at risk.

7

This, Your Honor, this is a case about a

This is a case about what happens when arrogance meets

8

access to sensitive information.

9

beginning in November 2009, less than 2 weeks after starting work in

The evidence will show that

10

the Sensitive Compartmented Information Facility at FOB Hammer, Iraq.

11

PFC Manning disregarded the judgment of senior officials, the rules

12

governing the protection of classified information, and his own

13

acknowledged obligation to safeguard our nation's secrets.

14

evidence will show that PFC Manning violated the trust of his

15

superiors to the detriment of the Soldiers he served with and to the

16

aid of our adversaries.

17

The

The evidence will show that PFC Manning used his military

18

training to gain the notoriety he craved.

19

will show that PFC Manning knew the consequences of his actions and

20

disregarded that knowledge in his own self-interest.

21

of approximately 6 months the evidence will show that PFC Manning

22

systematically and indiscriminately harvested more than 700,000

23

government records from various SIPRNET databases and transmitted the

7409

In short, the evidence

Over the course

10955

1

information to approve -- who advocated for random opportunists

2

without any appropriate limits.

3

every step in the process PFC Manning attempted to hide what he was

4

doing from others.

5

containing classified information from his work station in the SCIF

6

to his containerized housing unit.

7

show that PFC Manning packaged the information, encrypted the

8

information and transmitted the information using tools designed to

9

insure he would not be caught.

The government will show that at

He repeatedly, the evidence will show, moved CDs

And once there, the evidence will

And after transmitting the

10

information, the evidence will show that PFC Manning often took

11

painstaking steps to erase any evidence of what he had done from his

12

computers.
The evidence will show that PFC Manning repeatedly abused

13
14

his access to the SIPRNET by searching for classified information

15

with no logical nexus to the work he was supposed to be doing in

16

Iraq.

17

type of information, that if disclosed to unauthorized persons could

18

reasonably be expected to cause damage to the national security.

19

evidence will also show that PFC Manning did not discriminate with

20

gathering documents.

21

gathering information in bulk.

22

case, Your Honor, the evidence will show that PFC Manning's actions

23

were not calculated transmissions of documents in onesies and

The evidence will show that PFC Manning was well-versed in the

The

The evidence will show that his interest was in
Aside from a few documents in this

7410

10956

1

twosies.

These were massive, massive downloads aided by PFC

2

Manning's mastery of an unauthorized software program known as WGet,

3

packaged and out the door to WikiLeaks in less than a few hours in

4

some cases.
Finally, the evidence will show that this massive amount of

5
6

information has great value to our adversaries and, in particular,

7

our enemies.

8

government's case in chief or intended case in chief.

9

several witnesses will discuss the investigation in Iraq.

On the screen, Your Honor, is a brief road map of the
These first
We'll have

10

witnesses discuss PFC Manning's training at Fort Huachuca, PFC

11

Manning's deployment to Iraq.

12

through the charges and specifications in essentially chronological

13

order with the forensics relating to each charge and specification

14

presented simultaneously as well as evidence relating to the nature

15

of the information.

And the government will proceed

Your Honor, before we proceed with the charges and

16
17

specifications, the government would like to highlight a few pieces

18

of evidence and some terms you'll hear referenced throughout the

19

trial.

20

computers, Intelink logs.

21

Honor, I'm talking about the evidence will show that they are logs

22

that capture -- audit logs that capture activity on the SIPRNET.

23

agents collected a personal computer from PFC Manning's CHU, as well

Some key evidence in this case, Your Honor, SIPRNET
And when I speak of Intelink logs, Your

7411

CID

10957

1

as an external hard disc drive.

An SD card which is a memory card

2

used for portable electronic devices, it was collected from his

3

aunt's house in Potomac, Maryland.

4

evidence related to a computer recovered from Brookhaven National

5

Laboratory in New York.

6

evidence will show that SharePoint, Your Honor, is simply a web

7

server that's used by staff at CENTCOM to post documents, share

8

documents.

9

Manning was moved to the supply annex towards the end of his

The government will present

CENTCOM SIPRNET SharePoint logs.

The

A supply annex NIPRNET computer collected because PFC

10

deployment.

AIT Instruction.

PFC Manning signed non-disclosure

11

agreements. And as referenced earlier, Your Honor, what the evidence

12

will show to be a WikiLeaks most wanted list from 2009.

13

First, Your Honor, the .22 and .40 computers.

When the

14

government or when a witness refers to .22 or .40, the evidence will

15

show that they're referring to the last octet of the two IP addresses

16

of the SIPRNET computers collected in Iraq.

17

that PFC Manning's primary SIPRNET computer was a, what’s called the

18

.22, and on that computer Special Agent Shaver will testify that

19

there was a file, an Excel Spreadsheet, called backup.XLS.

20

spreadsheet, Your Honor, is evidence that the PFC Manning was

21

cataloging his downloading of the State Department Database.

22

particular, Your Honor, the evidence will show that the number at the

23

top left, 2-5-1-2-8-8 was the next number in line after the amount of

7412

The evidence will show

This

In

10958

1

cables that were released on Wiki -- or Department of State cables

2

released on WikiLeaks.

3

released 251,287.

4

The evidence will show that WikiLeaks

The secondary SIPRNET computer, Your Honor, was .40, and

5

the Special Agent Shaver will testify that there were more than

6

100,000 full base 64 encoded Department of State cables.

7

Your Honor, is simply a method of encoding information that optimizes

8

the transmission of that information over the Internet, and the

9

Special Agent Shaver will testify regarding this.

10

Intelink logs, Your Honor.

Base 64,

Intelink is a SIPRNET search

11

engine, very similar to Google, in fact, powered by Google.

The logs

12

collected in this case by CID agents, are linked to the .22 and .40

13

addresses and those logs span the length of PFC Manning's deployment,

14

so approximately 1 November to the end of May 2010 -- 1 November 2009

15

to the end of May 2010.

16

searched for WikiLeaks more than 100 times on the SIPRNET.

The evidence will show that those computers

17

Next, Your Honor, Manning's personal laptop.

18

an Apple brand laptop, was collected from PFC Manning's personal

19

living space on FOB Hammer and special, I'm sorry, Mr. William -- Mr.

20

Johnson, one of the forensic examiners will testify that he was able

21

to recover two different sets of chat logs.

22

that were recovered from what's call the unallocated space on a

7413

This laptop,

First, are chat logs

10959

1

computer, and those chat logs, the evidence will show are between PFC

2

Manning and what the evidence will show to be Julian Assange.
The next set of chat logs, Your Honor, also recovered on

3
4

this computer were between PFC Manning and Adrian Lamo.

And Your

5

Honor, you'll hear evidence that Adrian Lamo is the individual who

6

brought PFC Manning to law enforcement's attention.

7

- the chat logs between Manning and Adrian Lamo, Your Honor, the

8

evidence will show were found in the allocated space, meaning it was

9

an actual file on the computer.

Those logs are -

The chat logs between PFC Manning

10

and Press Association or Julian Assange were found in unallocated

11

space.

12

specifically the forensic examiners, is a space on the computer

13

that's not being -- it’s not used with, currently being used with

14

active data.

15

never have been used by the computer at that point.

16

of these chat logs is that there are several admissions made by PFC

17

Manning in them.

An unallocated space, you'll hear from several witnesses,

So it might

be information that's deleted or it might
The importance

18

First, Your Honor, the evidence will show that PFC Manning

19

admitted to beginning to help WikiLeaks right after the Thanksgiving

20

timeframe of 2009.

21

will show, bradass87 is the user name or the chat log name for PFC

22

Manning.

23

relating to information that's the subject of this court-martial,

And where you see it says bradass87, the evidence

PFC Manning also made several admissions in the chat log

7414

10960

1

information that he allegedly handled.

2

Manning who is, the evidence will show to be Dawg Network show a

3

familiarity between the Dawg Network and Press Association, or what

4

the evidence will show to be Julian Assange.

5

these are chat logs recovered from the unallocated space, so they

6

were deleted chat logs.

7
8
9

The chat logs between PFC

Again, Your Honor,

Finally, Your Honor, some of the chat logs the evidence
will show PFC Manning indicated what he thought WikiLeaks was.
Also recovered from PFC Manning's computer, Your Honor, is

10

what forensic examiners will refer to as mounting data.

Mounting

11

data, Your Honor, is simply data that's created by the personal

12

laptop when a CD is inserted.

13

mounting data recovered from the deleted space or the unallocated

14

space on PFC Manning's personal computer.

15

Honor, the evidence will show that the numeric there, so as you see

16

at the top, 1-0-0-2-1-5_0-6-2-1, you'll hear testimony that that is

17

the way that the Roxio CD burning program on PFC Manning's SIPRNET

18

laptops date/time stamps a CD when it's burned.

19

data did was it captured essentially the name of the CD, and the

20

evidence will show that it also captured the files on the CD as well.

21

As you can see, Your Honor, the evidence

22

sixth line down, the document that is the subject of Specification 14

23

of Charge II is there.

Your Honor, on the screen now is the

And specifically, Your

What this mounting

will show that about the

Also collected from PFC Manning's CHU or

7415

10961

1

personal living space, Your Honor, were two documents of interest.

2

The first was a PowerPoint brief prepared by PFC Manning or what the

3

evidence will show to be PFC Manning at Advanced Individual Training

4

at Fort Huachuca.

5

PFC Manning, will testify that PFC Manning was required to give this

6

OPSEC brief as corrective training.

7

forensic examiners were able to recover contact information for

8

Julian Assange, and the evidence will show that the metadata related

9

to that file shows that the file was created on 29 November 2009.

10

Your Honor, on the screen is the actual content of the text file.

11

Mr. Brian Madrid, one of the platoon sergeants for

Additionally, Your Honor,

CID also collected the SD card, Your Honor.

As I mentioned

12

earlier, Your Honor, an SD card is simply a portable memory device

13

used for cameras and things like that.

14

from PFC Manning's aunt's house in Potomac, Maryland.

15

evidence will show that on that SD card were two complete databases.

16

The Combined Information and Date Network Exchange, CIDNE Iraq SIGACT

17

database and the CIDNE Afghanistan SIGACT database.

18

will show that the metadata related to those files shows that the

19

Afghan database was created on January 8th 2010.

20

related to the Iraq database was created on 5 January 2010.

21

finally, Your Honor, you'll see there a text file was also on this SD

22

card entitled “Read Me” created on 9 January 2010.

23

file, Your Honor, was a note.

That SD card was collected
And the

The evidence

The metadata
And

In that text

This is the actual content of that

7416

10962

1

text file, Your Honor.

On the SD card as well were pictures of PFC

2

Manning, which the evidence will show that this was PFC Manning's

3

portable electronic device.
FBI and CID agents also collected a computer from

4
5

Brookhaven National Laboratory in New York.

6

that this work computer belonged to an individual named Jason Katz.

7

The evidence will also show that on this work computer was a forensic

8

match of the video charged in Specification 11 of Charge II, the BE

9

22 PAX.zip video was on this computer.

The evidence will show

And forensic examiners will

10

testify that that video was on the computer on 15 December 2009.

CID

11

agents also collected CENTCOM SIPRNET SharePoint logs.

12

Honor, the SharePoint logs are simply logs related to the SharePoint

13

server at CENTCOM where the staff and the employees of CENTCOM posted

14

documents for collaboration.

15

files on 10 April 2010.

16

to an investigation into an air strike in Farah province in

17

Afghanistan in May 2009.

18

the videos related to this investigation were downloaded on that day.

19

CID agents also collected a NIPRNET computer from the supply annex.

20

As I stated earlier, Your Honor, that computer was collected because

21

PFC

22

show that that computer was used to download the United States Forces

23

Iraq Global Address List.

Again, Your

These logs show the downloading of 334

Those files, the evidence will show, related

The evidence will also show that none of

Manning was moved there in early May 2010.

The evidence will

And the evidence will show that the

7417

10963

1

computer was used to essentially create two different files, one file

2

contained the emails of 74,000 Servicemembers in Iraq, the other file

3

contained the personal information of approximately 74,000

4

Servicemembers in Iraq.
Now, Your Honor, on the screen is a snippet of the personal

5
6

information file.

The government has redacted or taken off the left-

7

side, Your Honor, which are the last names of the individuals.

8

the full file, Your Honor, though, the evidence will show that the

9

full names are there.

In

PFC Manning also signed a number of non-disclosure

10
11

agreements throughout his time in the Army.

In these non-disclosure

12

agreements the evidence will show PFC Manning acknowledged his

13

responsibilities upon being -- upon being getting -- being granted

14

access to classified information.

15

Manning acknowledged the special trust and confidence placed in him

16

by the United States Government.

17

potential damage that could accrue from the unauthorized disclosure

18

of classified information.

19

information was the property of the United States Government.

20

finally, Your Honor, PFC Manning acknowledged that there were

21

consequences to unauthorized disclosures.

22

agreement, Your Honor, has already been admitted as Prosecution

23

Exhibit 8.

The evidence will show that PFC

PFC Manning acknowledged the

PFC Manning acknowledged that classified
And

This non-disclosure

Specifically, Your Honor, the government notes that what

7418

10964

1

the evidence will show that PFC Manning acknowledged that he could be

2

liable for criminal offenses under 18 United States Code 641 and 793.

3

PFC Manning signed that document on 17 September 2008.

4

the evidence will show that WikiLeaks posted a most wanted list in

5

2009, and specifically, Your Honor, the evidence will show that PFC

6

Manning made searches from the SIPRNET computer related to

7

information that was also found on the most wanted list.

8

Specifically, Your Honor, on 28 November 2009, the evidence will show

9

that the .40 SIPRNET computer searched for retention of interrogation

Your Honor,

10

videos.

11

the evidence will show to be a summary of the Intelink searches made

12

throughout PFC Manning's deployment. This is an excerpt of that

13

search log.

14

very similar.

15

And, Your Honor, you haven't seen this yet, but this is what

The most wanted list in 2009 also sought information

Your Honor, the government also would like to highlight a

16

few key witnesses you'll hear.

Several of these witnesses you'll

17

hear throughout the trial.

18

team of forensic examiners from the Digital Forensics and Research

19

Branch of the Army Computer Crimes Investigative Unit.

20

Shaver, the evidence will show, is a leader in his field.

21

conducted most if not all of the forensic examinations in this case,

22

as well as the examination of audit logs.

23

forensic examiners.

First, Special Agent David Shaver led a

Special Agent
They

Mr. Johnson was one of his

He'll testify regarding his examination of the

7419

10965

1

personal laptop computer of PFC Manning as well as the external hard

2

drive.

3

examination of the supply annex NIPRNET computer.

4

one of PFC Manning's instructors at AIT, Mr. Moul.

5

retired all-source intelligence analyst, and he'll testify that he

6

provided training during AIT on classification of documents, handling

7

of classified material, information security and operations security,

8

as well as training on the enemy's use of the Internet.

9

this is just -- the evidence will show one of the slides PFC Manning

Special Agent Williamson will testify regarding his
You'll hear from
Mr. Moul is a

Your Honor,

10

was provided training on.

Your Honor, you'll also hear from

11

government officials from various agencies, including the Department

12

of Defense, Department of State and other government organizations,

13

and these witnesses will testify regarding the nature and content of

14

the charged information.

15

authorities from several of these agencies as well, and they'll

16

discuss the classification of documents they reviewed.

17

hear from Mr. Lewis.

18

is a Department of Defense Counter Intelligence expert with

19

approximately 30 years of experience. He'll testify that there is a

20

market for government information and specifically a market for

21

classified information.

22

defined by thousands of dollars for just a handful of documents.

23

Your Honor, you'll also hear from several of the unit witnesses, so

You'll hear from original classification

You'll also

Mr. Lewis, Your Honor, the evidence will show

And he'll also testify that that market is

7420

10966

1

witnesses that were in the S-2 section who worked with PFC Manning.

2

They'll discuss the Iraq deployment, they'll testify regarding PFC

3

Manning's work product and his skill-sets, and they'll discuss and

4

testify regarding the duties of an All-Source Intelligence Analyst.

5

During trial, Your Honor, the government’s attempt to

6

attempt to simplify complicated evidence by preventing -- by

7

presenting evidence -- events chronologically.

8

will show is that PFC Manning arrived in Iraq in early November 2009

9

or late October 2009, began working regularly in the SCIF in mid-

What the evidence

10

November 2009, and in late November 2009, less than two weeks after

11

beginning work, PFC Manning began helping WikiLeaks.

12

Honor, this is an excerpt -- the evidence will show this is an

13

excerpt, that this is an excerpt in the chat logs with Adrian Lamo.

14

The evidence will show that the first transmission of classified

15

information PFC Manning made was a transmission in late November

16

2009, and that transmission was the video charged in Specification 11

17

of Charge II.

18

the CENTCOM SIPRNET SharePoint site under subfolders for CENTCOM

19

Legal/Investigations and Farah.

20

this video was password protected, meaning that it could not be

21

opened without the password.

22

who traveled to CENTCOM in order to collect the password.

23

also hear evidence, Your Honor, that this same video, a forensic

Again, Your

The evidence will show that this video was located on

The investigation will show that

You'll hear evidence from CID agents

7421

You'll

10967

1

duplicate of this video was on the work computer of Jason Katz on 15

2

December 2009.

3

Adrian Lamo, Your Honor, and the evidence will show that PFC Manning

4

admitted to transmitting the Gharani air strike video.

5

also shows, Your Honor, that PFC Manning acknowledged that the video

6

was decrypted -- or encrypted.

7

in the evidence, was a Department of Energy employee at Brookhaven

8

National Laboratory in New York.

9

that password cracking software was found on the same computer.

This is also an excerpt from the chat logs with

This excerpt

Jason Katz, Your Honor, you'll hear

And forensic examiners will testify

10

Additionally, Your Honor, the evidence will show that on 8 January

11

2010 WikiLeaks Tweeted that they had a copy of an encrypted video.

12

This is evidence from the WikiLeaks Twitter feed, Your Honor, that

13

will be presented at trial.

14

dated 8 January 2010.

15

if you click on the link there, that links to an article about the

16

Farah or Gharani air strike.

17

video, Your Honor, the evidence will show that PFC Manning moved on

18

to much larger database, and specifically he moved on to the

19

information charged in Specifications 4 through 7 of Charge II.

20

evidence will show that in early January 2010 PFC Manning downloaded

21

the entire Combined Information and Data Network Exchange Iraq

22

database.

23

locally.

As you can see, Your Honor, the Tweet is

The evidence will show also, Your Honor, that

After the transmission of this single

The

The evidence will show that he accessed that database
The evidence will also show that in this same timeframe,

7422

10968

1

early January, he downloaded the CIDNE Afghanistan database.

And the

2

evidence will show that in order to access that database he had to go

3

through a server at CENTCOM.

4

both these CIDNE databases were only available on classified

5

networks.

6

PFC Manning had to use his SIPRNET access to access these documents.

7

You'll hear testimony that the reports identified in Specification 5

8

and Specification 7 were classified, and you'll hear testimony

9

regarding the value of this information.

You'll hear testimony, Your Honor, that

In other words, Your Honor, the evidence will show that

Your Honor, you'll also

10

hear testimony from the forensic examiners relating to their

11

examination of the SD card.

12

the metadata related to those files shows that CIDNE Iraq was

13

packaged on 5 January, and CIDNE Afghanistan was packaged on 8

14

January.

And those examiners will testify that

Again, Your Honor, that's the metadata file on the SD card.
It's also helpful at this time, Your Honor, to go through

15
16

sort of a timeline of early events.

The evidence will show, as I

17

stated earlier, that PFC Manning arrived in Iraq in November 2009.

18

On 21 January 2010, so approximately two weeks after the files

19

related to the CIDNE databases were created, the evidence will show

20

that PFC Manning left Iraq for R and R.

21

2010, the evidence will show that PFC Manning arrived in the D.C.

22

area.

23

PFC Manning cleared his computer, he wiped his computer of all of the

On the 24th of January,

And on the 25th of January 2010, the evidence will show that

7423

10969

1

data and he reinstalled the operating system on his Apple laptop.

2

You'll hear testimony, Your Honor, from the forensic examiners who

3

will discuss what wiping is, but essentially no information on the

4

personal computer can be recovered prior to 25 January 2010.

5

26th of January 2010, the evidence will show that PFC Manning left

6

D.C. for Boston.

7

show that while in Boston PFC Manning cleared his computer of all the

8

data in the unallocated or free space.

9

Honor, that that means that no data can be recovered from the deleted

On the

And on the 31st of January 2010, the evidence will

The evidence will show, Your

10

space prior to 31 January 2010.

Around the 1st of February, 2010,

11

PFC Manning returned to D.C., and on the 11th of February, 2010, the

12

evidence will show that PFC Manning returned to the Iraq theater.

13

that same day, Your Honor, the evidence will show that PFC Manning

14

created an encrypted file on his personal computer, a strong box.DMG.

15

Approximately three days later, Your Honor, the evidence will show

16

that PFC Manning returned to work and immediately began harvesting

17

government information.

18

the evidence will show PFC Manning began collecting information

19

relating to Iceland.

20

time was based in Iceland, and specifically Julian Assange.

21

evidence will also show that on the 15th of February 2010, PFC

22

Manning burned the document charged in Specification 14 in Charge II,

23

the diplomatic cable Reykjavik 13.

In

This first day back on the SCIF, Your Honor,

The evidence will show that WikiLeaks at this

7424

The

It is the volume mounting data,

10970

1

Your Honor, so evidence or data recovered from unallocated space on

2

PFC Manning's personal computer.

3

Reykjavik 13 was on a disc inserted into PFC Manning's computer, as

4

well as other information related to Iceland.

5

timeframe, Your Honor, the evidence will show that PFC Manning also

6

on that same disc that contained Reykjavik 13 was the video charged

7

in Specification 2 of Charge II, commonly referred to as the Apache

8

Video.

9

the brigade's SIPRNET Share drive under the SJA folder.

As stated earlier, Your Honor,

In that same

This video, Your Honor, the evidence will show was located on
You'll hear

10

from a CENTCOM FOIA officer who will testify that the video was not

11

released when CENTCOM released the investigation through FOIA related

12

to this video.

13

Apache video, so, when the 12 July 2007, video was initially released

14

by WikiLeaks, it was released as an edited version, and the evidence

15

will show that PFC Manning was part of this editing process.

16

email, Your Honor, was recovered from PFC Manning's personal

17

computer.

18

Aviator who will testify and explain how the video could be useful to

19

foreign adversaries.

20

You'll also hear testimony, Your Honor, that when the

This

You'll also hear testimony, Your Honor, from an Army

Your Honor, the evidence will show that PFC Manning

21

conducted research on WikiLeaks throughout the deployment.

His first

22

search for WikiLeaks on the SIPRNET, the evidence will show was 1

23

December 2009.

The evidence will show that prior to and after 15

7425

10971

1

February 2010, PFC Manning researched WikiLeaks extensively on the

2

SIPRNET.

3

presented at trial will show that PFC Manning conducted more than 100

4

searches for WikiLeaks on the SIPRNET. The evidence will also show,

5

Your Honor, that on 1 December 2009 PFC Manning first accessed the

6

document charged in Specification 15 of Charge II, the ACIC document.

7

Your Honor, there's a screen shot again of the excerpts from the

8

SIPRNET search log on Intelink.

9

.40 computer searched for the word WikiLeaks.

And the Intelink log activity, Your Honor, that will be

As you can see, on 1 December the
That search, Your

10

Honor, led to this report.

Your Honor, this is an excerpt of the

11

document charged in Specification 15 of Charge II.

12

Honor, made several key judgments, but specifically it stated that

13

recent unauthorized release of DoD sensitive and classified documents

14

provide foreign intelligence services, foreign terrorist groups,

15

insurgents and other foreign adversaries with potential actual

16

information for targeting U.S. Forces.

This report, Your

In short, Your Honor, the evidence will show that this

17
18

document alerted readers that WikiLeaks was a source of intelligence

19

for adversaries.

20

been released publicly.

21

access to the SIPRNET or higher.

22

show that it was marked top and bottom with classification as you saw

23

earlier.

The evidence will show that this document had not
It was only available to individuals with
And initially, the evidence will

In addition to the document charged in Specification 15 of

7426

10972

1

Charge II, the ACIC document, PFC Manning found a number of other

2

documents relating to WikiLeaks in the mid-February timeframe.

3

evidence will show, Your Honor, that this is an excerpt from the C3

4

document. That document as well as an IR -- IIR, Intelligence

5

Information Report relating to WikiLeaks was on a CD inserted into

6

PFC Manning's computer around 15 February of 2010.

7

Honor, this is an excerpt of the mounting data recovered from PFC

8

Manning's personal computer.

9

documents on 15 February, 2010, the evidence will show that PFC

10

Manning moved on to again or went back to larger databases and,

11

specifically, Your Honor, the information charged in Specifications 8

12

and 9 of Charge II.

13

Manning attempted to download the JTF-GTMO detainee assessment

14

database manually.

15

clicking and saving to a computer.

16

-- will testify using the Intelink logs how he can tell the activity.

17

The evidence will show that PFC Manning stopped after downloading

18

approximately 400 detainee assessments on 5 March.

19

the evidence will show that PFC Manning went back and he downloaded

20

the entire detainee assessment database, more than 750 records.

21

evidence will show that PFC Manning used a program named WGet to

22

automate this process.

23

Honor, the evidence will show discussed this information.

The

Again, Your

After this transmission of several

On 5 March 2010, the evidence will show that PFC

And what I mean by manually, Your Honor, is that
Special Agent Shaver will explain

But on 7 March

The chat logs with Julian Assange, Your

7427

This

The

10973

1

excerpt from the chat logs, Your Honor, on 7 March, the evidence will

2

show PFC Manning asked Julian Assange how valuable these memos are.

3

And by the 8th of March, Your Honor, the evidence will show that PFC

4

Manning already had a CSV that organized the info as much as

5

possible.

6

PFC Manning's personal computer.

7

that each detainee assessment was marked on the top and bottom with

8

classification, and you'll hear testimony from the Intelligence

9

Analyst who maintained this database and wrote many of the

Again, this is an excerpt from the recovered chat logs on
You'll hear testimony, Your Honor,

10

assessments, and he'll testify that the detainee assessments were

11

only available on the SIPRNET and higher.

12

had not been released to the public.

13

Honor, and I'm now referring to Specification 2 of Charge III, the

14

evidence will show that PFC Manning -- I'm sorry, excuse me.

15

timeframe, Your Honor, is the first known use of the program named

16

WGet.

17

available on the Internet and it's used to rapidly download

18

information from web servers.

19

acceptable use policies prohibited the addition of freeware or free

20

software and executables on government information systems.

21

can see, Your Honor, that is an excerpt of a regulation you've taken

22

judicial notice of, AR 25-2.

23

policy.

And that these assessments

In this same timeframe, Your

In this

You'll hear testimony, Your Honor, that WGet is free software

You'll also hear testimony that

As you

That's an excerpt of an acceptable use

In the same timeframe, Your Honor, the evidence will show

7428

10974

1

that PFC Manning, with the help of what the evidence will be to show

2

Julian Assange attempted to devise a way to browse the SIPRNET

3

anonymously.

4

Again, these are the chat logs recovered from PFC Manning's personal

5

computer.

6

asked, “Any good at LM hash cracking”.

7

stands for LAN manager.

8

tables for LM”.

9

is essentially the way a Windows computer stores passwords on that

On the screen, Your Honor, is an excerpt of a chat log.

And these chat logs, the evidence will show, PFC Manning
LM, the evidence will show,

Press Association responds, “We have rainbow

Your Honor, the evidence will show that an LM hash

10

computer.

It doesn't store the passwords as, you know, one, two,

11

three, four, five.

12

as a hash value.

13

value, the second line from the bottom, is a system file on the

14

SIPRNET computers of PFC Manning, a system file related to the

15

password for the administrator account.

16

is essentially reverse engineering the password.

17

-- In early May 2010, Your Honor, early April 2010, PFC Manning again

18

went back to larger databases.

19

evidence will show that PFC Manning used WGet to systematically

20

harvest more than 250,000 Department of State diplomatic cables.

21

evidence will show that 251,287 purported Department of State cables

22

were released by WikiLeaks.

23

and early April 2010, and Special Agent Shaver will testify regarding

It stores it as hash -- stores it as -- stores it
Special Agent Shaver will testify that the hash

Hash cracking, Your Honor,
In late March 2010

In this case, Your Honor, the

The

This activity occurred between 28 March

7429

10975

1

his examination of the firewall logs related to the Department of

2

State and he'll testify that between PFC Manning's SIPRNET computers

3

and the firewall logs were more than 700,000 connections in this

4

timeframe.

5

the -- cables a day, more than a thousand cables an hour.

6

evidence will show that this process was automated.

7

will show that WGet and programs like it were prohibited by the

8

acceptable use policy signed by every Servicemember who has access to

9

a government information system.

250,000 diplomatic cables, Your Honor, that's 25,000 over
And the

The evidence

And what WGet does is it bypasses

10

the normal mechanism for access to these cables.

Click, open, save.

11

Evidence will show that WGet acted as a technical boost for

12

downloading large amounts of information from web servers.

13

evidence will show that literally the day after this download of

14

information was completed, this initial download of 250,000 cables,

15

PFC Manning went back to the CENTCOM SIPRNET SharePoint site.

16

evidence will show that the logs from this SIPRNET SharePoint site

17

show the entire 15-6 related to the Gharani air strike were

18

downloaded, more than 300 -- or approximately 334 records.

19

Your Honor, these logs also show that none of the videos related to

20

this air strike were downloaded on the same day and Special Agent

21

Shaver will testify regarding the log evidence.

22

this is an excerpt from the chat logs between PFC Manning and Adrian

23

Lamo.

The

The

Again,

Again, Your Honor,

You'll hear testimony, Your Honor, that these documents were

7430

10976

1

located in a folder devoted to the investigation.

The investigation

2

was only available on the SIPRNET.

3

released publicly and they were marked with classifications.

4

4, Your Honor, the evidence will show that PFC Manning was having

5

trouble with WGet on his computer, and so the evidence will show that

6

PFC Manning went back to the NIPRNET, downloaded WGet again, and

7

moved it from his NIPRNET computer to the SIPRNET computer in the

8

SCIF.

9

Manning used WGet again to download an additional approximate 11,000

These documents had not been
On May

On this same day, Your Honor, the evidence will show that PFC

10

cables again from the Department of State Net-Centric Diplomacy

11

Database.

12

Honor, a backup that was found on PFC Manning's .22 computer.

13

Your Honor, 251,287 cables were released by WikiLeaks, purported

14

cables released by WikiLeaks.

15

And that file, Your Honor, that file of Department of State cables

16

the evidence will show was burned onto a CD in the SIPRNET and moved

17

to PFC Manning's personal computer.

18

recovered from PFC Manning's personal computer.

19

This is the Excel spread sheet I showed you earlier, Your
Again,

These are the next cables in line.

Again, this is the mounting data

Shortly after this download, Your Honor, the evidence will

20

show PFC Manning was moved to the supply annex from the SCIF.

At

21

this point, Your Honor, the evidence will show that PFC Manning did

22

not have access to the SIPRNET.

23

Staff Sergeant Peter Bigelow, and on 7 May, Your Honor, a Tweet from

He worked for the supply sergeant,

7431

10977

1

WikiLeaks sought more information.

That Tweet, Your Honor, released

2

7 May asked for a list of as many .mil email addresses as possible.

3

That Tweet was released 7 May 2010.

4

will show that PFC Manning extracted the email addresses and personal

5

information of more than 74,000 Servicemembers in Iraq.

6

email addresses, the ranks, the positions of everyone in the United

7

States Forces Iraq Global Address List.

8

will testify that between the two files extracted from the GAL are

9

more than 2,000 pages of printed material. Again, Your Honor, on the

Around 11 May 2010, the evidence

The names,

Special Agent Williamson

10

screen is an excerpt from one of the files containing personal

11

information, and the real file, Your Honor, the evidence will show

12

contains the entire name.

13

These two files, Your Honor, one file containing email addresses and

14

the other file containing personal information, were both moved to

15

PFC Manning's computer.

16

who examined PFC Manning’s computer and you’ll also hear testimony

17

relating to the value of this information.

18

Intelligence expert, will testify that by providing this type of

19

personal information you are providing foreign intelligence services

20

with essentially a phone book.

21

adversaries who spearphish, so essentially spearphishing is the act

22

of using a targeted email to obtain financial information, other

23

personal information from individuals, use these types of lists to

The government has redacted the left.

You'll also hear testimony from the examiner

Mr. Lewis, a Counter

And Chief Rouillard will testify that

7432

10978

1

target individuals.

2

assurance expert who will discuss the provisions of regulation and

3

appropriate uses of government information systems.

4

You will also hear testimony from an information

Finally, Your Honor, the evidence will show that the

5

accused knowingly gave intelligence to the enemy.

6

earlier, Your Honor, the evidence will show that PFC Manning searched

7

for WikiLeaks more than 100 times on the SIPRNET.

8

show that he understood the nature of the organization.

9

he made on 1 December 2009, the search for WikiLeaks, the evidence

As discussed

The evidence will
The search

10

will show, led him to this document in particular, the documents

11

charged in Specification 15 of Charge II.

12

that PFC Manning's training warned him repeatedly of the enemy’s use

13

of the Internet writ large, and PFC Manning's research warned him of

14

the use of WikiLeaks.

15

of the United States reviewed information provided by PFC Manning.

16

You will hear evidence that during the raid that killed Osama bin

17

Laden government officials collected several items of digital media.

18

On one of these items of digital media was the entire CIDNE

19

Afghanistan database as released by WikiLeaks as well as State

20

Department information.

21

for this information and was in turn provided the CIDNE reporters by

22

another member of Al Qaeda.

23

PFC Manning worked daily in an area and on systems devoted to the

The evidence will show

And he was right. You will hear that enemies

The evidence will show that bin Laden asked

Your Honor, the evidence will show that

7433

10979

1

protection of classified information.

The evidence will show that

2

PFC Manning knew the difference between open source information and

3

information that, if released, could cause damage to national

4

security or be used to the advantage of another country.

5

evidence will show that if he wasn't sure, he was required to check

6

with someone.

7

dangers of unauthorized disclosure to an organization like WikiLeaks

8

and he ignored those dangers.

And the

The evidence will show that PFC Manning knew the

9

At the close of evidence, after PFC Manning's knowledge of

10

the information is apparent, after the court has a full appreciation

11

for the forensic evidence revealing PFC Manning's intent, the

12

government is confident you will find that PFC Manning committed the

13

remaining offenses as charged.

14
15
16

MJ:

All right.

Thank you.

Thank you.

Defense, are you going to have an

opening statement or are you going to reserve?
CDC[MR. COOMBS]:

We'll have an opening statement, Your Honor.

17

If we could take a, just a 10-minute comfort break, I think I could

18

do my opening and still get us where we have a lunch.

19

MJ:

So you want to do the opening before lunch then?

20

CDC[MR. COOMBS]:

21

MJ:

22

TC[MAJ FEIN]:

23

MJ:

All right.

All right.

Yes, Your Honor.
Any objection?

No, Your Honor.
Ten minutes you said?

7434

10980

1

CDC[MR. COOMBS]:

2

MJ:

Yes, Your Honor.

All right.

Court is in recess until 10 minutes after 12.

3

[The court-martial recessed at 1204, 3 June 2013.]

4

[The court-martial was called to order at 1218, 3 June 2013.]

5

MJ:

Court is called to order.

Let the record reflect all

6

parties present when the court last recessed are again present in

7

court.

8
9
10

Defense?

TC[MAJ FEIN]:

Ma’am, if possible, I -- right before defense

goes, the slideshow the United States just used has been marked as
Appellate Exhibit 562.

11

MJ: All right.

12

CDC[MR. COOMBS]:

Thank you.
Ma'am, it was 24 December 2009.

He was 22
He was

13

years young, in Iraq, his first deployment, his first unit.

14

excited to be in Iraq, and he was excited to help his unit to achieve

15

his mission, and hopefully make Iraq a safer place.

16

that went out on that day broke the silence of an otherwise calm

17

Christmas Eve.

18

when an alert went out, everybody in the TOC and in the SCIF went

19

into an immediate frenzy to get information.

20

from the TOC, excuse me the SCIF to the TOC to find out what he could

21

find out about the EFP.

22

an element of the 2/10 was driving down a road that was rarely used

23

and the lead element had been hit.

The EFP alert

EFP had claimed the lives of too many Soldiers.

So

PFC Manning was sent

At that point all they really knew was that

7435

PFC Manning went to get some

10981

1

additional information but none could be found.

They didn't have any

2

updates, so he went back to the SCIF empty-handed.

3

moments later came the welcome news.

4

hit, no Soldiers were killed, no Soldiers were injured.

5

the TOC started celebrating.

6

celebrating.

7

Christmas Eve.

8

that EFP, and the report indicated that as the lead element was

9

driving down this road there was a civilian car in front of them, and

A few tense

Despite the lead element being
Everyone in

Everyone in the SCIF started

Good news was welcomed on any day, but especially on
A few minutes later came some additional news about

10

that civilian car pulled over to the side, as was typical, to allow

11

the convoy to go by, and they pulled over right in front of where

12

that EFP was placed. The car had five occupants, two adults and three

13

children.

14

element.

15

died en route.

16

Everyone was happy.

17

celebrate.

18

forget about the life that was lost on that day.

19

about the lives and the family that was impacted on that Christmas

20

Eve.

And that EFP went right through that car to hit that lead
All five of the occupants were taken to the hospital, one
Everyone in the TOC, in the T-SCIF was celebrating.
Everyone but PFC Manning.

He couldn't be happy.

He couldn't

The reason why is he couldn't
He couldn't forget

And from that moment forward PFC Manning started a struggle.

21

You see, PFC Manning is not a typical Soldier.

22

evidence will show that when he deployed to Iraq he had custom dog

7436

The

10982

1

tags, ID tags that he had made, and on the back of those tags read

2

“Humanist”.

3

MJ:

Read?

4

CDC[MR. COOMBS]:

Humanist.

He was a humanist, and a humanist

5

was the religious belief that he ascribed to, and those values are

6

placing people first, placing value on human life.

7

weeks leading up to the deployment, PFC Manning engaged in an IM chat

8

conversation with Zachary Antolak, who now has changed his name to

9

Lauren McNamara, and he's gone from a he to a she.

In the months and

And the two of

10

them talked about a wide variety of topics.

11

conversation they talked about PFC Manning's humanist beliefs and

12

they talked about PFC Manning feeling a huge amount of pressure,

13

pressure to do everything he could to help his unit.

14

more into politics, reading more in philosophy, and he indicated the

15

reason he was doing that was he wanted to be able to give the best

16

possible information to his command and hopefully save lives.

17

talked about feeling a strong desire and a need to do everything he

18

could to help his unit, and in the hopes of every one of the Soldiers

19

that deployed with him would come home safely.

20

civilians that worked with them would come home safely.

21

talked about the fact that he hoped that local nationals, people that

22

they were trying to help in Iraq, would be able to go home safely.

23

That was his mindset leading into the deployment.

7437

And in that chat

He was reading

He

Every one of the DoD
And he also

10983

But after that 24 December 2009 incident, things started to

1
2

change for him.

And he started to struggle.

And the evidence will

3

show the reason why he started to struggle was no longer could he

4

read SIGACTs or HUMINT reports and just see a name or number and not

5

think about that family on Christmas Eve who had just pulled over

6

their car to let the convoy go by.

7

He was struggling not only with the feeling of obligation and duty to

8

people, but also with the struggle an internal struggle, a very

9

private struggle with his gender.

And his struggles were public.

And this was public for his unit

10

to see.

11

something.

12

this world.

13

seeing. And so from that moment forward and that was January of 2010,

14

he started selecting information that he believed the public should

15

hear and should see.

16

saw would make the world a better place, but importantly, information

17

that he specifically selected that he believed could not be used

18

against the United States.

19

public, and everyone knew it, could not be used by a foreign nation.

20

And his struggles led him to feel that he needed to do
That he needed to do something to make a difference in
He needed to do something to help improve what he was

Information that he believed that if the public

And information that he believed, if

The first data set that he selected, ma’am, was the SIGACTs

21

charged in Specifications 4, 5, 6 and 7 of Charge II.

22

specifically knew about specific information about the SIGACTs.

23

had dealt with SIGACTs from the time that he got to Fort Drum, but

7438

He
He

10984

1

really on a daily basis when he got to Iraq.

And he knew that

2

SIGACTs were low level field reports.

3

unit on the ground that documented essentially the five Ws, the who,

4

what, where, when and why of a particular incident.

5

the SIGACTs were always written for any engagement with the enemy, or

6

anything that led to the death of a civilian, or the injury of a --

7

or death of a civilian employee or local national.

8

SIGACTs that he selected were all older than 72 hours.

9

SIGACTs were generally considered an historical document, a document

These are the reports by the

And he knew that

He knew that the
He knew that

10

that had accounted for what had happened in the past. He knew that

11

SIGACTs did not discuss future operations.

12

not contain the names of intelligence sources. When he reviewed the

13

SIGACTs that he was looking through, he also knew that they

14

documented activity for the most part that was engaging with the

15

enemy, so the enemy was aware of what was happening and he knew that.

16

And he knew that the SIGACTs were really essentially a diary of the

17

day-to-day activities that was happening.

18

these SIGACTs now with the benefit or more probably appropriately the

19

burden of what happened on 24 December 2009, his mindset, he started

20

to see that this information should be public.

21

should know what is happening on a day-to-day basis.

22

government showed, he believed at that point, this is one of the more

7439

He knew that SIGACTs did

And as he was reading

The American public
And as the

10985

1

important documents of our time, lifting the fog of war and showing

2

the true nature of 21st century asymmetric warfare.
He also released the Apache video, and he knew information

3
4

specifically about that.

That's charged in Specification 2 of Charge

5

II.

6

Analyst was the first to find that video.

7

archive folder from the previous unit.

8

out and everyone was kind of talking about the ethical implications

9

of what they were seeing and hearing.

First he knew that Specialist Showman, another Intelligence
She found that video in an

And she had pulled the video

He knew that the video

10

depicted a 2007 attack.

He knew that it resulted in the death of two

11

journalists.

12

it had received worldwide attention.

13

Reuters had requested a copy of the video in FOIA because it was

14

their two journalists that were killed, and they wanted to have that

15

copy in order to find out what had happened and to insure that it

16

didn't happen again.

17

that FOIA request almost 2 years later indicating what they could

18

find and, notably, not the video.

19

author, had written a book called The Good Soldiers, and when he read

20

through David Finkel's account and he talked about this incident

21

that's depicted in the video, he saw that David Finkel's account and

22

the actual video were verbatim, that David Finkel was quoting the

23

Apache air crew.

And because it resulted in the death of two journalists
He knew that the organization

He knew that the United States had responded to

He knew that David Finkel, an

And so at that point he knew that David Finkel had

7440

10986

1

a copy of the video.

And when he decided to release this

2

information, he believed that this information showed how we valued

3

human life in Iraq.

4

if the American public saw it, they too would be troubled and maybe

5

things would change.

He was troubled by that.

And he believed that

He also released the diplomatic cables charged in

6
7

Specifications 11 and 12, excuse me 12 and 11 -- 12 and 13 of Charge

8

II, and what he knew about the diplomatic cables was this:

9

Lim, his boss, the S-2, had put out the link to the Net-Centric

Captain

10

Diplomacy Database, the diplomatic cables, and said to all analysts

11

go look at this stuff, start incorporating this into your work

12

product.

13

Diplomatic Database as directed.

14

found out additional information about it.

15

SIPDIS cables.

16

stands for SIPRNET Distribution.

17

who had SIPRNET access, and he knew that that was at least a million

18

people.

19

Centric Diplomacy Database didn't require passwords to log into them.

20

There were no limitations on what you did or didn't do when you went

21

there.

22

at.

23

1966 to 2009.

And so PFC Manning started looking at the Net-Centric
And as he looked at it, he knew and
The cables were called

That was the tag that was placed on them, and SIPDIS
The cables were available to anyone

He knew that the cables that were available on the Net-

It was just the entire cables in one area he wanted to look

He knew from looking that the cables showed SIPDIS cables from
He did some research, and the chats will confirm this,

7441

10987

1

and found a regulation released by the Department of State.

And that

2

regulation much like Army regulations indicated what type of

3

information could be placed in a SIPDIS cable.

4

that the information that was placed in a SIPDIS cable could only be

5

that information that could be widely shared with inter agencies

6

across the government.

It could not possess any other more

7

restrictive covenants.

Importantly, it could not have intelligence

8

sources and it could not have key sensitive information to be in the

9

SIPDIS cable.

And it talked about

He knew because he started to review the Iraq SIPDIS

10

cables as directed that the information even in those cables tended

11

to be unclassified.

12

reviewing things based upon either a geographical area or an area of

13

interest, he knew that the majority of the cables he came across were

14

unclassified.

15

reviewed.

16

dealt with other countries, how we valued life in other countries.

17

How we didn't, unfortunately, based upon his youth believed, always

18

do the right thing by other countries.

19

video, the Gharani air strike and the other accompanying documents

20

charged in Specifications 10 and 11 in Charge II.

21

information with that as well.

22

attack.

23

men, women and children.

And as he looked at other areas where he was

And that met with the SIPDIS regulation that he

And after reviewing that, he felt that this showed how we

He also released the Farah

And he knew some

He knew that it depicted a 2009 air

He knew that that attack resulted in the death of over 150
He knew because of what happened, it

7442

10988

1

received worldwide press.

He had seen and reviewed General David

2

Petraeus interviews talking about what had happened, why it happened

3

and what the government was trying to do, more importantly the

4

military, to avoid this from happening again.

5

a FOIA request for the information and that the Pentagon had promised

6

to release the video.

7

he released this information, he believed it was important because it

8

showed how something happened and, more importantly, why it should

9

never have happened in the first place.

He knew that there was

But the video was not released.

At the time

10

He next released the DABs, the Detainee Assessment Briefs,

11

and he knew certain information about the detainee assessment briefs

12

as well.

13

MJ:

14

CDC[MR. COOMBS]:

And that's specifications?
Specifications, thank you, ma'am, if you

15

didn't ask me that, I could have given you that with no problem.

16

Specifications 8 and 9, ma’am, of Charge II.

17

ma'am, was that these were found in an archive folder.

18

were dated mostly from 2002 up to as early or as late, I guess, as

19

2009.

20

that they're mostly biographical information.

21

Zachary Antolak talk about the Guantanamo issue for him and he knew

22

that the President had promised to close Guantanamo.

23

DABs he knew that most of that information had been released by the

And what he knew there,
That they

He knew that they didn't have intelligence sources by name,

7443

The chat logs with

Looking at the

10989

1

Pentagon in 2006 and 2007, the name of the detainees, their ISN

2

numbers, their detainee numbers, their country of origin, and the --

3

both the combatant status of review tribunals and the administrative

4

review boards that contained much of the same information in the

5

DABs.

6

in America knew as well, that a lot of people there really didn't

7

need to be there.

8

hope of coming into a courtroom.

9

this information, even as the government showed, he didn't know for

He also looked at that and he knew what almost everyone else

They were being held there year after year with no
And at the time that he released

10

sure the value of it, I mean, how valuable would this information be,

11

but based upon that conversation he knew that it might be valuable to

12

the attorneys that were representing those who were still in

13

Guantanamo.

14

be able to put a true account of what our nation did in Guantanamo.

15

He also knew that it might be valuable to historians to

Lastly, he selected the documents charged in Specifications

16

3 and 15, the other government agency documents and the Army

17

counterintelligence report.

18

was they didn't possess any intelligence sources.

19

based upon publicly available information.

20

contain any intelligence collection.

21

being batted around of possibilities.

22

documents were selected were the topic matter of what was discussed

23

and how it troubled him.

And what he knew from these documents
They were largely

The documents did not

They were simply conversations
And the reason why these

These would be documents on Specification 3

7444

10990

1

as to what our government was talking about and concerned about.

At

2

the time that PFC Manning selected this information that he believes

3

he was selective.

4

documents as an All-Source Analyst, and these were the documents he

5

released.

6

make the world a better place.

7

He was a little naive in believing that the information that he

8

selected could actually make a difference.

9

intentioned in that he was selecting information that he hoped would

He had access to literally hundreds of millions of

And he released these documents because he was hoping to
He was 22 years old.

He was young.

But he was good

10

make a difference.

11

working for WikiLeaks.

12

some 2009 most wanted list.

13

believed that this information needed to be public.

14

he released the information he was concentrating on what the American

15

public would think about that information, not whether or not the

16

enemy would get access to it, and he had absolutely no actual

17

knowledge as to whether or not the enemy would gain access to it.

18

Young, naive, but good intentioned.

21

He wasn't selecting information because of
He was selecting information because he
At the time that

Thank you.

19
20

He wasn't selecting information because he was

MJ:

All right.

I know this is the time now.

appropriate time to take a lunch break?

22

TC[MAJ FEIN]:

Yes, ma'am.

23

CDC[MR. COOMBS]:

Yes, Your Honor.

7445

Would this be an

10991

1

MJ:

2

CDC[MR. COOMBS]:

3

TC[MAJ FEIN]:

4

MJ:

5

like that.

How long would you like?

1345, or that would be a little later than that.

All right.

Why don't we just go 1350 and we’ll make it

How about that?

6

TC[MAJ FEIN]:

7

CDC[MR. COOMBS]:

8

MJ:

9

An hour and 15 minutes, Your Honor?

Yes, ma'am?
Yes, Your Honor.

Anything else we need to address before we recess the

court?

10

CDC[MR. COOMBS]:

11

TC[MAJ FEIN]:

12

MJ:

All right.

No, Your Honor.

No, ma'am.
Court is in recess.

13

[The court-martial recessed at 1241, 3 June 2013.]

14

[The court-martial was called to order at 1414, 3 June 2013.]

15

MJ:

Court is called to order.

Let the record reflect that all

16

parties present when the court last recessed are again present in

17

court.

18

I note that we are starting a little late.

I think some of

19

that is just administrative processing glitches that we sometimes

20

have on the first day of proceedings.

21
22
23

Major Fein, is the process a little more streamlined that
we'll be able to start on time?
TC[MAJ FEIN]:

Yes, ma'am.

7446

10992

1

MJ:

2

TC[MAJ FEIN]:

3

MJ:

4

All right.
It will be streamlined.

Anything we need to address before we begin the merits

phase?

5

CDC[MR. COOMBS]:

6

TC[MAJ FEIN]:

7

MJ:

8

ATC[CPT OVERGAARD]: The United States calls Special Agent Thomas

9

No, Your Honor.

No, Your Honor.

Call your first witness.

Smith.

10

SPECIAL AGENT THOMAS SMITH, U.S. Army, was called as a witness for

11

the prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION

12
13

Questions by the assistant trial counsel [CPT OVERGAARD]:

14

Q.

And you are Special Agent Thomas Smith?

15

A.

Yes, ma'am.

16

Q.

And what is your rank?

17

A.

I am a sergeant first class, ma'am.

18

Q.

Where are you currently assigned?

19

A.

At the Fort Gordon CID Office, ma’am.

20

Q.

What's your position at the Fort Gordon CID Office?

21

A.

I'm the senior enlisted case agent as well as the evidence

22

custodian, ma'am.

7447

10993

1
2
3

Q.

And what are the responsibilities of the senior enlisted

case agent?
A.

As the case agent I'm responsible for the daily maintenance

4

of an investigation to include conducting crime scene examinations,

5

evidence collection.

6

of investigative as far as interviews of witness, subjects, as well

7

as victims, and also the coordination with SJA and commands, ma'am.

8
9

Q.

I'm also responsible for the daily activities

And as senior enlisted, does that mean you're the most

senior case agent?

10

A.

Yes, ma’am.

11

Q.

Most senior enlisted case agent?

12

A.

Yes, ma'am.

13

Q.

And you mentioned you're an evidence custodian as well?

14

A.

Yes, ma'am.

15

Q.

What do you do in that position?

16

A.

I'm responsible for the intake or processing,

17

accountability, and then final disposition of the evidence at the end

18

of the legal proceedings, ma'am.

19

Q.

And how many years have you been a CID agent?

20

A.

I graduated from CIDSAC, the CID Special Agent Course in

21

June of 2007, ma'am.

22

Q.

Where were you assigned before Fort Gordon?

23

A.

I was assigned to the Fort Huachuca CID Office, ma’am.

7448

10994

1

Q.

And what did you do there?

2

A.

I was a case agent and then transitioned into the senior

3

enlisted case agent position there as well, ma'am.

4

Q.

And were -- When were you there?

5

A.

I arrived there in August of 2008 and I departed there in

6

May/June of 2011, ma'am.

7

Q.

Did you deploy during that time?

8

A.

I did, ma'am.

9

Q.

Where did you go?

10

A.

I was -- I went to Iraq.

11

the Central Iraq CID Detachment.

I was the Detachment Sergeant for
I was stationed at VBC, ma'am.

12

Q.

And that's Camp Victory?

13

A.

Yes, Victory Base Complex, ma'am.

14

Q.

And do you remember when that was?

15

A.

Train-up was in February.

16

I think we were boots on ground

in March of 2010, and then I left in January of 2011, ma'am.

17

Q.

And what was your position at Camp Victory?

18

A.

I was the Detachment Sergeant, ma'am.

19

Q.

What does it mean to be a Detachment Sergeant?

20

A.

I was responsible for the general welfare of my Soldiers

21
22
23

over five different FOBs within in the Central Iraqi Area, ma'am.
Q.

And before -- before you were at Fort Huachuca where were

you assigned?

7449

10995

1

A.

Fort Gordon, ma'am.

2

Q.

And what did you do there?

3

A.

Part of the time I was there as a CID Agent, part of time I

4

was there as MI, ma'am, Military Intelligence.

5

Q.

And so you were a different MOS for part of your time at

6

Fort Gordon?

7

A.

Yes, ma'am.

8

Q.

What was -- What was that MOS?

9

A.

98 Charlie, ma'am.

10

Q.

And what is that?

11

A.

Signals Intelligence Analyst, ma’am.

12

Q.

Is that currently a 35 series?

13

A.

It’s a 35 November now, ma'am.

14

Q.

So what does a Signals Intelligence Analyst do?

15

A.

I am responsible for the collection, identification of

16

intelligence, and then in the production of products to the command

17

for action taken -- deemed necessary.

18

Q.

How many years have you been in the Army?

19

A.

Been in the Army just over 13 years, ma'am.

20

Q.

And you said you've been a CID agent for 6 of those years?

21

A.

Yes, ma'am.

22

Q.

And what did you do for the other 7?

23

A.

I was a 98 Charlie, ma'am.

7450

10996

1

Q.

What training did you receive to become a CID Specialist?

2

MJ:

What is a 98 Charlie?

3

WIT: Signals Intelligence Analyst, ma'am.

4

MJ:

5

ATC[CPT OVERGAARD]: It was a 98 Charlie, now it is a ----

6

WIT: 35 November.

7

ATC[CPT OVERGAARD]: 35 November, yes, ma’am.

8
9
10
11
12

I thought you said 30 -- Okay.

Got it.

Questions continued by the assistant trial counsel [CPT OVERGAARD]:
Q.

So what training did you receive to become a CID Special

Agent?
A.

We had 16 weeks at the CIDSAC course, CID Special Agent

Course, at Fort Leonard Wood, Missouri, ma'am.

13

Q.

And is that the CID AIT?

14

A.

Yes, ma'am, it is.

15

Q.

Okay.

16

A.

In general, the course went over law.

What did you learn in that course, just in general?
It went over crime

17

scene and the identification processing.

18

or 3 days of digital media, a couple days on fraud examinations,

19

sexual assault investigations, and accumulated in interviews and

20

interrogations, ma'am.

21
22
23

Q.

All right.

So you learned about, you said crime scene

processing and evidence collection?
A.

It also went over about 2

Yes, ma'am.

7451

10997

1
2
3

Q.

What other specialized training have you had as a CID

agent?
A.

I've attended the Hostage Negotiators Course.

I've

4

attended the Special Agent Laboratory Technician training at Fort

5

Gillem, with the U.S. Army Criminal Lab.

6

Squared course.

I've attended the EMC

7

Q.

And what's that?

8

A.

The Evidence Maintenance Custodian's Course.

9

attended multiple courses on post blast crime scenes.

10

different courses on interview interrogations, ma'am.

11
12

Q.

I've also
And several

Did any of the training focus specifically on evidence

collection?

13

A.

It did, ma'am.

14

Q.

What percentage of it?

15

A.

Of the training that we received during the CIDSAC course,

16

there's a week dedicated to nothing but crime scenes, it's called

17

Crime Scene Hallway in which we do nothing but process crime scenes

18

to include the collection of evidence.

19

Then with the post blast courses, part of the training at

20

the end is we did recovery, data identification and recovery and

21

collection of the evidence.

22

talk about the collection of the evidence in the field, but it’s a

And then the EMC Squared Course doesn't

7452

10998

1

couple days course pertaining to the proper maintenance of the

2

evidence once it's brought into the evidence room, ma'am.

3
4
5
6
7
8
9

Q.

And how about specifically the collection of digital

evidence?
A.

Digital evidence is covered.

It's about a 2 or 3 day

course that's taught within the CIDSAC course, ma'am.
Q.

And is there any other -- well, is there any other unit

level training for the collection of digital evidence?
A.

On occasion the digital forensic examiners which are at the

10

battalion level will come into the field and conduct training with

11

us, and they'll also send out bulletins as new techniques or new

12

methods are learned to keep us updated in the field, ma'am.

13
14
15

Q.

And what did you learn about the collection of digital

evidence?
A.

The training basically comes down to photographing it in

16

place, hit the shift key, photograph -- if anything's on the screen,

17

photograph the cables and connections leading into the computer, pull

18

those, and then conduct a hard shutdown of the system, ma'am.

19

Q.

Why do you do a hard shutdown?

20

A.

Because it has been identified that there is programs out

21

there to where if you begin to do a soft shutdown of the system it

22

will actually start to wipe media and programs off the system, ma'am.

7453

10999

1

MJ:

2

shutdown?

3

WIT:

What is the difference between a hard shutdown and a soft

The soft shutdown, ma'am, is when you go into the

4

system and tell it to turn itself off, like we do a restart on a

5

computer on a nightly basis, ma'am.

6

actually pulling the power on it and it immediately shuts it down,

7

ma’am.

8
9
10
11
12
13
14
15
16

A hard shutdown is where you're

MJ: Thank you.
[Examination of the witness continued.]
Q.

You also mentioned processing a digital crime scene. When

did you cover that?
A.

That is all part of the training during the 2 or 3 days at

CIDSAC, ma'am.
Q.

So how do you -- will you walk us through how you process

the digital crime scene?
A.

First thing to do, and it doesn't deviate any more than any

17

other crime scene except the evidence that you're collecting and how

18

you go about collecting it, but you start out with photographing the

19

crime scene.

20

and ink sketch of the crime -- of the scene, and then you begin your

21

search of the scene looking for evidence within the crime scene,

22

ma'am.

After you photograph the crime scene you conduct a pen

As you come across digital media, it's going to be

7454

11000

1

photographed in place, marked on the sketch on where it's being

2

collected from and then collected, ma'am.

3

Q.

Is there any special way to store that digital evidence?

4

A.

It's recommended that it's placed inside a dry -- a dry

5

element to prevent dust and other elements getting to it, as well as

6

water.

7
8
9

So the best practice is to keep it dry and clean, ma'am.

Q.

Do you have any degrees that are relevant to your job as a

CID Agent?
A.

I have a bachelor's in psychology and criminal justice, and

10

I'm about one class away from my master's degree in criminal justice

11

with an emphasis in law and forensic science, ma'am.

12
13
14
15

Q.

And how many cases have you conducted investigative

activity as a CID Agent?
A.

Investigative activity, I've probably been a part of

approximately 250 cases, ma'am.

16

Q.

And how about as the primary, the lead agent?

17

A.

Lead agent or conducting significant investigative

18

activity, approximately 150, ma'am.

19

Q.

20

a CID agent?

21

A.

Approximately ten, ma'am.

22

Q.

Okay.

23

How about how many computer crime cases have you worked as

And how did you first become involved with this

particular case?

7455

11001

1

A.

While we were there at VBC, our commander received a

2

request for an investigation, or an RFI from CID command.

He brought

3

us around the table.

4

within the RFI and we broke it down into a three-man element that was

5

going to go to VBC, ma'am.

He briefed us as far as what was contained

6

Q.

7

information?

8

A.

The 27th of May, 2010, I believe, ma'am.

9

Q.

Why did your office get it?

10

A.

Because FOB Hammer was within our AO, ma'am.

11

Q.

And were you personally tasked?

12

A.

I was, ma'am.

13

Q.

You were part of the three-man team that you talked about?

14

A.

Yes, ma'am.

15

Q.

And what was your -- what was your role to be on that

16
17
18

Okay. And do you remember when you received this

three-man team?
A.

I was being sent out there to conduct the crime scene as

well as the evidence collection while we were there, ma'am.

19

Q.

Why were you chosen?

20

A.

I was the senior enlisted.

I had a lot more crime scene

21

experience than a lot of the other agents in the office, and since I

22

had already taken the soft course then I was chosen for that, ma'am.

23

Q.

Who else was assigned to that team?

7456

11002

1

A.

Agent Lisciandri, Agent Toni Graham.

There was a CI,

2

Counter Intelligence agent that was assigned to the team, and myself,

3

ma'am.

4
5
6

Q.

Does your background as a 35 series, did that have anything

to do with you being assigned to the team?
A.

It was partially one of the reasons that I was sent out

7

there was also to conduct the interview of PFC Manning initially, and

8

that was one of the reasons that I was sent out there was that I

9

might be able to relate to him.

10

Q.

Because you were an Intel Analyst?

11

A.

Correct, ma'am.

12

Q.

Who was in charge of that team?

13

A.

That would have been Agent Toni Graham, ma'am.

14

Q.

And what were your ----

15

MJ:

Toni what?

16

WIT: Toni Graham, ma’am.

17

MJ:

18

WIT: Yes, ma'am.

19
20
21
22
23

Graham, thank you.

[Examination of the witness continued.]
Q.

What were the first actions that your team took when

getting assigned to this case?
A.

Once we were assigned to the case, Agent Graham pulled all

the information needed in order to go in front of the magistrate to

7457

11003

1

get a search and seizure authorization.

I myself, outside of packing

2

my own gear obviously, also began packing the material that we were

3

going to need once we hit ground as far as the crime scene to include

4

cameras, paper bags and other items, ma'am.

5

Q.

When did you go, when did you leave for this assignment?

6

A.

We left on the 27th of May, 2010, ma'am.

7

Q.

And where were you going?

8

A.

From VBC to FOB Hammer, ma'am.

9

Q.

Where was that?

10

A.

Ma'am, I don't remember.

11

Q.

Okay.

12

A.

I know it was on the other side of the river out in the

13

middle of nowhere.

14

Q.

How did you get there?

15

A.

We took helo flights out there, ma'am.

16

Q.

Okay. And you said -- you mentioned you gathered supplies

17
18

for the mission.
A.

What did you gather specifically?

Cameras, paper bags. We gathered tape measures, paper, pen

19

and our computers so that we'd be able to work once we hit ground,

20

ma'am.

21
22
23

Q.

And you said Agent Graham, she -- she went and got search

authorizations?
A.

Yes, ma'am.

7458

11004

1
2
3
4

Q.

Do you know what you were authorized to search once you hit

the ground?
A.

I knew we were authorized to search the SCIF that PFC

Manning was assigned to as well as his CHU, ma'am.

5

Q.

And when did you get to FOB Hammer?

6

A.

The evening of 27 May 2010, ma'am.

7

Q.

What did you do right when you arrived at FOB Hammer?

8

A.

The first thing we did was we debriefed part of PFC

9

Manning's chain of command.

10

Q.

Then what did you do after that?

11

A.

We dropped our load and our equipment inside the battalion

12

S-2's office and we went into the SCIF and we started conducting

13

canvass interviews.

14

Q.

Why did you go to the SCIF?

15

A.

Because we were told that the team that PFC Manning worked

16

with or the shift that he worked with was currently in the SCIF

17

working.

18

Q.

And who all on your investigative team went to the SCIF?

19

A.

It was myself and Agent Toni Graham, ma'am.

20

Q.

And you said you were doing canvass interviews?

21

A.

Yes, ma'am.

22

Q.

Who was doing those interviews?

23

A.

Myself and Toni Graham, ma'am.

7459

11005

Q.

1
2

Was there any time that you broke off from doing those

interviews?
A.

3

After we completed the canvassing interviews, at that point

4

we switched over and started conducting the crime scene exam of the

5

SCIF, ma'am.

6

Q.

How did you conduct the crime scene investigation of the

A.

Due to the nature of it being a SCIF, we had them cover up

7
8

SCIF?

9

some of the material that was on the wall that was Secret in nature,

10

and then after they semi-sanitized the SCIF we had them leave out of

11

the SCIF and at that point we started photographing, sketching and

12

documenting the scene, ma'am.

13

Q.

When you say sanitize, what do you mean?

14

A.

There was some stuff up on the wall that was Secret in

15

nature, so we had them put up a, I believe it was a blanket or

16

something over it.

17

that were Secret in nature as well that we had them pull down off the

18

wall and put them face down on the work tables, ma'am.

There was one or two charts that were on the wall

19

Q.

Why did you do that?

20

A.

Because cameras in theater were a luxury and hard to come

21

by, and we knew that had we taken pictures of that material up on the

22

wall we would then have to secure that camera and keep it a Secret

23

and would not be able to use it again in theater, ma'am.

7460

11006

1
2
3
4

Q.

You mentioned you took photographs and did a sketch. Who

did that?
A.

I took the photographs and conducted a rough sketch of the

scene, ma'am.

5

Q.

Would you recognize them again if you saw them?

6

A.

I would, ma'am.

7

MJ:

All right. Hold on just a moment.

8
9
10
11

We need to adjust -- Is

it something you can do?
REPORTER: [Indicating a negative response.]
MJ:

All right.

We're going to stop now.

We're having some

slight technical difficulties.

12

WIT: Yes, ma'am.

13

MJ:

So I'm going to ask if you could, you're just temporarily

14

excused. We'll fix these technical difficulties and don't discuss

15

your knowledge of the case with counsel or the accused or anyone.

16

WIT: Yes, ma'am.

17

MJ: So we're going to send the witness out.

18

WIT: Okay.

Go ahead.

19

[The witness was temporarily excused, duly warned, and withdrew from

20

the courtroom.]

21
22
23

MJ:

Is this something we need to actually get up and we need to

take a recess for it to be fixed?
REPORTER: [Indicating a positive response.]

7461

11007

1

MJ:

All right.

Why don't we go ahead and take a 10-minute

2

recess.

3

with a technician to fix those.

4

record of trial of these proceedings and we want to make sure we

5

capture them.

6

[The court-martial recessed at 1432. 3 June 2013.]

7

[The court-martial was called to order at 1441, 3 June 2013.]

8
9
10

The court reporter has some audio problems and needs to get

MJ:

As we all know, we take a verbatim

Court is in recess.

Court is called to order.

Let the record reflect all

parties present when the court last recessed are again present in
court.

Are we all squared away?

11

REPORTER: [Indicating an affirmative response.]

12

MJ:

13

just did.

The minute we are not do the same thing you

Tell me immediately.
Anything else we need to address before we recall the

14
15

All right.

witness?

16

CDC[MR. COOMBS]:

17

ATC[CPT OVERGAARD]: No, ma'am.

18

MJ:

19

ATC[CPT OVERGAARD]: United States recalls Special Agent Thomas

20

No, Your Honor.

Please recall the witness.

Smith.

7462

11008

1

SPECIAL AGENT THOMAS SMITH, U.S. Army, was recalled as a witness for

2

the prosecution, was reminded he was still under oath, and testified

3

as follows:
DIRECT EXAMINATION

4
5
6

Questions by the assistant trial counsel [CPT OVERGAARD]:
Q.

And before we stopped you said that -- I asked you if you

7

would recognize the photos you took of the SCIF if you saw them

8

again?

9

A.

Yes, ma'am.

10

Q.

And would you?

11

A.

Yes, ma'am.

12

Q.

All right.

13

Identification.
Ma'am, I'm handing the witness what's been previously

14
15

I’m retrieving Prosecution Exhibit 19 for

marked as Prosecution Exhibit 19 for Identification.
Do you recognize that, Agent Smith?

16
17

A.

Yes, ma'am, I do.

18

Q.

And can you tell us what it is?

19

A.

It's a picture depicting the SCIF there on FOB Hammer,

20

ma'am.

21

Q.

How do you recognize that picture?

22

A.

I'm the one that took the picture, ma'am.

23

Q.

What viewpoint does that picture show?

7463

11009

1

A.

It shows the inside of the SCIF with the E and E or the

2

entrance and exit to my back with a picture across the far side of

3

the SCIF, ma'am.

4

Q.

And is that photo accurate?

5

A.

Yes, ma'am.

6

Q.

And when was it taken, do you recall?

7

A.

It would have been late in the evening of 27 May 2010,

8

ma'am.

9

Q.

And does it accurately depict the SCIF on 27 May 2010?

10

A.

Yes, ma'am.

11

ATC[CPT OVERGAARD]: Ma'am, I'd like to offer what has been

12

previously marked as Prosecution Exhibit 19 for Identification into

13

evidence as Prosecution Exhibit 19.

14

MJ:

Any objection?

15

CDC[MR. COOMBS]:

16

MJ:

17

WIT: Yes, ma'am [handing the exhibit to the military judge].

18

MJ:

19

ATC[CPT OVERGAARD]: May I publish it, ma'am?

20

MJ: Certainly.

No, ma'am.

May I see it, please?

Prosecution Exhibit 19 for Identification is admitted.

21

[There was a pause while the assistant trial counsel published the

22

exhibit onto the computer screen in the courtroom.]

23

[Examination of the witness continued.]

7464

11010

1
2
3
4

Q.

What physical area of the SCIF did your team's

investigation focus on?
A.

We focused on what's depicted in that picture, two SIPRNET

computers that are along the back wall there, ma’am.

5

Q.

And could you circle that on the screen?

6

A.

Yes, ma'am.

7

Q.

And why did you focus on that area?

8

A.

When we were doing the canvass interviews with the shift

9
10

That area along the back wall, ma'am.

workers that he worked with, those two work stations were identified
as the work stations that he primarily used, ma'am.

11

Q.

Before I continue, what color did you use to circle that?

12

A.

Green, ma'am.

13

Q.

Okay.

14

Thank you.

Can -- and did you collect any evidence

from that area?

15

A.

Yes, ma'am, I did.

16

Q.

And what specifically did you collect?

17

A.

I collected two government computers from that area, ma'am.

18

Q.

What was the classification of those two government

19

computers?

20

A.

Secret, ma'am.

21

Q.

Did you collect anything else from the SCIF?

22

A.

Yes, ma'am. We collected a NIPR computer as well from the

23

SCIF, ma'am.

7465

11011

1

Q.

Is that on this photograph?

2

A.

No, ma'am, it's not.

3

ATC[CPT OVERGAARD]: Ma'am, we're printing the screen with the

4

green circle on it and we'll have it marked as Prosecution Exhibit 19

5

Alpha.

6

MJ:

7

CDC[MR. COOMBS]:

8

MJ:

9

Q. Now, I'm retrieving what has been previously marked for

10

All right.

Any objection to that procedure?
No, ma'am.

All right.

Identification as Prosecution Exhibit 20?

11

MJ: Prosecution Exhibit 19 Alpha is admitted.

12

ATC[CPT OVERGAARD]: Yes, ma'am. Prosecution moves to admit

13

Prosecution Exhibit 19 Alpha for Identification as Prosecution

14

Exhibit 19 Alpha.

15

ADC[MAJ HURLEY]:

16

ATC[CPT OVERGAARD]:

17

No objection.
I've retrieved what’s been previously

marked for Identification as Prosecution Exhibit 20.

18

MJ:

Do you want Prosecution Exhibit 19 Alpha admitted?

19

ATC[CPT OVERGAARD]: Yes, ma'am.

The prosecution moves to admit

20

that Prosecution Exhibit 19 Alpha for Identification as Prosecution

21

Exhibit 19 Alpha.

22
23

And I retrieved Prosecution Exhibit 20 for Identification.
I am showing it to the defense.

7466

11012

I am handing Prosecution Exhibit 20 for Identification to

1
2

the witness, ma’am.

3

[Examination of the witness continued.]

4

Q.

Do you recognize that photo?

5

A.

I do, ma'am.

6

Q.

And can you tell us what that photo is?

7

A.

It's a depiction of the inside of the SCIF with the SIGINT

8

room to my back, shot across the -- across the the SCIF to the E and

9

E of the room, ma'am.

10

Q.

And how do you recognize that photo?

11

A.

I took the photograph, ma'am.

12

Q.

Okay.

13

A.

27 May 2010, ma'am.

14

Q.

How accurate is that photo?

15

A.

It's an accurate depiction of the SCIF as we found it,

16

And when did you take that photo?

ma'am.

17

Q.

On what day?

18

A.

27 May 2010, ma'am.

19

ATC[CPT OVERGAARD]: And the United States offers what's been

20

previously marked as Prosecution Exhibit 20 for Identification into

21

evidence as Prosecution Exhibit 20.

22

ADC[MAJ HURLEY]:

No objection, ma’am.

7467

11013

1
2

MJ:

All right.

Let me see it please.

Prosecution Exhibit 20

for Identification is admitted as Prosecution Exhibit 20.

3

ATC[CPT OVERGAARD]: May I publish it?

4

MJ: Yes, you may.

5

[There was a pause while the assistant trial counsel published the

6

exhibit onto the computer screen in the courtroom.]

7

[Examination of the witness continued.]

8
9

Q.

Special Agent Smith, can you point out that NIPR computer

for us in the photograph?

10

A.

Yes, ma'am.

It's right here along this work station here.

11

Q.

And what color did you use to circle that?

12

A.

Yellow, ma'am.

13

Q.

Who collected that NIPR computer?

14

A.

I did, ma'am.

15

Q.

And who collected the SIPR computers?

16

A.

I did, ma'am.

17

Q.

Did you collect all the evidence in the same way?

18

A.

Yes, ma'am.

19

ATC[CPT OVERGAARD]: Ma’am, I'm printing Prosecution Exhibit 20

20

with the yellow circle on it as Prosecution Exhibit 20A for

21

Identification and moving to admit it as Prosecution Exhibit 20A.

22

MJ:

Any objection?

23

ADC[MAJ HURLEY]:

No, ma'am.

7468

11014

1

MJ:

All right. When you get 19A and 20A printed, just hand them

2

to me.

3

Questions continued by the assistant trial counsel [CPT OVERGAARD]:

4
5

Q.

Did you collect those NIPR -- that NIPR and those two SIPR

computers in the same way?

6

A.

I did, ma'am.

7

Q.

Can you tell us how you collected them?

8

A.

I went up to each system, photographed them in place. After

9

photographing them in place I hit the shift key, took a picture of

10

the monitor.

11

of the cables leading in and out of the computer and conduct a hard

12

shutdown.

13

didn’t remember if I pulled the pulled the plug and then the battery

14

or if I pulled the batter and then the plug, but I conducted a hard

15

shutdown of the computer, ma'am.

16
17
18

Q.

After taking a picture of the monitor, I took pictures

I can't remember, and it doesn't matter which one you do I

What did you do with the evidence after you conducted the

hard shut down?
A.

After I conducted the hard shutdown of the computer, they

19

were placed inside brown paper bags and placed into my backpack,

20

ma'am.

21

Q.

And are they -- Is that evidence documented anywhere?

22

A.

Yes, ma'am. It was documented on a DA Form 4137.

23

Q.

What is that?

7469

11015

1
2

A.

It's the evidence property E -- evidence property custody,

ma'am, or EPCD.

3

Q.

And what did you record on 4137?

4

A.

The 4137 has the organization that's collecting the

5

evidence.

Who or where it was collected from, a description of the

6

evidence, and also contains the chain of custody for that evidence

7

once it's collected, ma'am.

8

Q.

How is it used to track the chain of custody?

9

A.

It starts out with the first DALEO, or Department of the

10

Army Law Enforcement Officer who collects that evidence.

He puts

11

down where it was collected from or who it was collected from, and

12

then each person that the evidence is handed or that takes possession

13

of the evidence then signs the EPCD.

14

Q.

15

regulations?

16

A.

Yes, ma'am, it was.

17

Q.

Did you ensure that you didn't modify the data in any way?

18

A.

Yes, ma'am.

19

Q.

Did you investigate any other part of the SCIF?

20

A.

No, ma'am.

21

Q.

And why was that?

22

A.

There was a -- the second section of the SCIF area was a

23

And was that evidence collected in accordance with your

We focused primarily on the general SCIF area.

SIGINT collection cell.

PFC Manning did not have an immediate work

7470

11016

1

station back there to work out of, and plus they were actively

2

engaged in the mission at the time we were there.

3
4

Q.

And what's the classification of information in the SIGINT

cell?

5

A.

That's always Top Secret, ma'am.

6

Q.

Agent Smith, you also mentioned that you make a sketch of

7

the area?

8

A.

Yes, ma'am.

9

Q.

Did you do that in this case?

10

A.

Yes, ma'am.

11

Q.

How did you prepare that sketch?

12

A.

At the scene, just pen and ink sketch, just a rough sketch

13

depicting what the overall scene, and then afterwards go in and add

14

the evidence and where it was being collected from, ma'am.

15

ATC[CPT OVERGAARD]: Your Honor, I’m retrieving what's been

16

previously marked as Prosecution Exhibit 17 for Identification.

17

handing it to the witness, ma’am.

18

Q.

Do you recognize that?

19

A.

Yes, ma'am.

20

Q.

Can you tell us what it is?

21

A.

It's a rough sketch depicting the SCIF.

22

Q.

And how do you recognize that picture, or that diagram?

23

A.

I'm the one that conducted the sketch, ma'am.

7471

I’m

11017

1

Q.

And how are you familiar with that building in particular?

2

A.

We were in -- This building we were inside the SCIF

3

specifically for the canvass interviews as well as the crime scene

4

itself, ma'am.

5

Q.

How accurate is that sketch that you did?

6

A.

It's an accurate depiction of the SCIF, not to scale.

7

Q.

And who put the labels on the diagram showing what each

8

object represents?

9

A.

I am, ma'am.

10

Q.

When did you record those locations, those pieces of

11
12
13
14
15

evidence -- where those pieces of evidence were located?
A.

I would have placed them on the original pen and ink sketch

as each piece of evidence was being collected, ma'am.
Q.

Okay.

So you draw the picture first and then you label it

as you're going through?

16

A.

Yes, ma'am.

17

Q.

And you said it was originally in a pen and ink.

18
19

How did

it get to be in that format?
A.

Once I got back to the CHU, after a little bit of sleep,

20

once I got back to the CHU I woke up, I then transferred my notes

21

from pen and ink onto a, and I can't remember if I was using a Word

22

or Outlook, but one of those two programs to generate this sketch,

23

ma'am.

7472

11018

1
2

Q.

Is that an accurate copy of what you had in your pen and

ink sketch?

3

A.

It is, ma'am.

4

ATC[CPT OVERGAARD]: Ma'am, the United States offers what's been

5

previously marked as Prosecution 17 -- Prosecution Exhibit 17 for

6

Identification as Prosecution Exhibit 17.

7

ADC[MAJ HURLEY]:

No objection. 17?

8

ATC[CPT OVERGAARD]: 17, yes.

9

ADC[MAJ HURLEY]:

Ma’am, no objection.

10

MJ:

May I see it, please?

11

WIT: Yes, ma'am [handing exhibit to the military judge].

12

MJ:

13

TC[CPT OVERGAARD]:

14

MJ:

Prosecution Exhibit 17 for Identification is admitted.
May I publish that, ma'am?

Yes.

15

[There was a pause while the assistant trial counsel published the

16

exhibit onto the computer screen in the courtroom.]

17

Questions continued by the assistant trial counsel [CPT OVERGAARD]:

18

Q.

Can you orient us to this sketch?

19

A.

Yes.

In the picture depicted the E and E is the entrance

20

and exit of the facility which is in the bottom right-hand corner of

21

the picture.

22

Q.

Okay.

23

A.

Correct, ma'am.

And that's the door?

7473

11019

1

Q.

Okay.

And where was the evidence that you collected?

2

A.

Located in two different areas.

The two SIPR computers

3

were collected from Alpha and Bravo, and then the NIPR computer was

4

collected from Charlie, ma'am.

5
6
7
8

Q.

And what did you do with this evidence after you collected

A.

After I collected it, it was placed into a paper bag and

it?

placed into my book bag, ma'am.

9

Q.

And why did you have it in a backpack?

10

A.

In order to maintain the evidence for accountability,

11

ma'am.

12

Q.

Did you ever move it to a different container?

13

A.

Yes, ma'am.

14

Q.

And what was that container?

15

A.

Once we were there the unit provided us with a large foot

16

locker and two 5200 series locks and we provided -- at that point

17

started putting all the evidence we collected into that foot locker,

18

ma'am.

19
20
21
22

Q.

And why did you use a foot locker there instead of an

evidence room?
A.

FOB Hammer did not have a PMO section, so there was no

evidence room on FOB Hammer, ma'am.

7474

11020

Q.

1
2

Do you have any reason to believe that the evidence

suffered any sort of damage or contamination?

3

A.

No, ma'am.

4

Q.

You also mentioned that you searched the accused’s CHU?

5

A.

Yes, ma'am.

6

Q.

And who else searched that CHU with you?

7

A.

It was myself and Agent Toni Graham, ma'am.

8

Q.

Can you tell us what a CHU is?

9

A.

A CHU, Containerized housing unit, ma'am.

10

Q.

And what is that?

11

A.

Basically it's a container that has been broken down into

12

two or three different housing areas for Soldiers to live in, ma'am,

13

while deployed.
Q.

How far apart were -- How far apart was the CHU from the

16

A.

A hundred, 200 yards, ma'am.

17

Q.

And how did you determine that you needed to, or how did

14
15

18
19

SCIF?

you determine what CHU was the accused's?
A.

The -- PFC Manning's command actually drove us over, or not

20

drove, but walked us over there and showed us which CHU it was,

21

ma'am.

22
23

Q.

How did you determine what items in there you could -- you

should search?

7475

11021

1

A.

We waited for PFC Manning's command to get his roommate,

2

and once his roommate came in, we had his roommate step inside and

3

show us which side of the room was his.

4

his, which wall locker was his and which stack of TA 50 was his,

5

ma'am.

Basically which bunk was

6

Q.

And what did you do once you first entered the CHU?

7

A.

Once I went in -- Once he stepped out and I went in, at

8

that point we started conducting the exam consisting of photographs,

9

then we did a rough sketch of the overview of the room, and at that

10

point we started conducting a search of the room, ma'am.

11

Q.

What did you photograph?

12

A.

We photographed the entire room as we found it.

13

Q.

Would you recognize those photographs if I showed them to

14

you again?

15

A.

I would, ma'am.

16

ATC[CPT OVERGAARD]: I'm retrieving what's been marked as

17

Prosecution Exhibit 16 for Identification.

18

Identification.

18.

Yes.

Sorry. 18 for

Handing that to the witness.

19

Q.

Do you recognize that?

20

A.

Yes, ma'am, I do.

21

Q.

And can you tell us what it is?

22

A.

It's a photograph depicting the CHU belonging to PFC

23

Manning and his roommate, ma'am.

7476

11022

1

Q.

How did you recognize it?

2

A.

I'm the one that took the photograph.

3

Q.

Can you tell us what viewpoint that photograph shows?

4

A.

It's a photograph just as you enter the room with the E and

5

E to my back, and it's a shot taken across the room to the far

6

corner, ma'am.
Q.

All right.

9

A.

Yes, ma'am.

10

Q.

How accurate is that photograph?

11

A.

It's an accurate depiction of how we found the CHU that

7
8

12

And again, when you say E and E, that's the

door?

evening, ma'am.

13

Q.

And what was the date, do you remember?

14

A.

Actually at that point it had rolled over to 28 May 2010,

15
16
17

ma'am.
Q.

Does it accurately reflect the CHU as you found it on 28

May 2010?

18

A.

Yes, ma'am, it does.

19

ATC[CPT OVERGAARD]:

Your Honor, I offer -- the United

20

States offers what's previously been marked as Prosecution Exhibit 16

21

for Identification into evidence as Prosecution Exhibit 16.

22

ADC[MAJ HURLEY]:

23

MJ:

No objection, ma’am.

May I see it, please?

7477

11023

1

WIT: Yes, ma'am [handing the military judge the exhibit].

2

MJ:

3

Thank you.

Prosecution Exhibit 16 for Identification is

admitted. or 18, excuse me.

4

ATC[CPT OVERGAARD]: 18.

5

MJ:

6

I’m sorry, ma’am.

For the record, we're talking about Prosecution Exhibit ---

-

7

ATC[CPT OVERGAARD]: 18, ma’am.

8

MJ:

9

ATC[CPT OVERGAARD]: Yes, ma'am.

---- 18 ----

10

MJ:

---- not Prosecution Exhibit 16.

11

ATC[CPT OVERGAARD]: May I publish it, ma'am?

12

MJ: Yes.

13

[There was a pause while the assistant trial counsel published the

14

exhibit onto the computer screen in the courtroom.]

15

Questions continued by the assistant trial counsel [CPT OVERGAARD]:

16

Q.

How did you and Agent Graham examine the CHU?

17

A.

Agent Graham started with PFC Manning's wall locker which

18

is on the opposite wall just out of view and worked towards the foot

19

of the bed.

20

worked towards the foot of the bed, ma'am.

21
22

Q.

I started at the head of the bed and the night stand and

What part of the CHU did the investigation focus on? Did it

focus on one side or the other?

7478

11024

A.

1
2

side of the CHU, ma'am, or on the right-hand side of the CHU.
Q.

3
4

It focused on PFC Manning's personal belongings on the far

Okay.

And what did you specifically -- or what did you

find when you searched the CHU?
A.

5

While searching the CHU I found several writable CDs, a

6

laptop computer, as well as a CD holder containing a writable CD

7

disk, ma'am.

8

Q.

Could you -- Could we talk about each one in turn?

9

A.

Yes, ma'am.

10

Q.

Could you tell us in this photograph where you found the,

11

you say the laptop?
A.

Yes.

14

Q.

Could you point that out for us?

15

A.

Yes, ma'am.

16

Q.

And you circled it in blue?

17

A.

Yes, ma'am.

18

Q.

What kind of laptop was that?

19

A.

It was an Apple laptop, ma'am.

20

Q.

And how did you know it belonged to the accused?

21

A.

First off, we asked his roommate which side of the room was

12
13

22

The laptop is sitting on top of a portable computer

desk.

It's here, ma'am.

his and what was his personal property.

7479

Also, the orientation of the

11025

1

computer was with the screen facing PFC Manning's bunk as well as the

2

keyboard, ma'am.

3

Q.

And who collected this piece of evidence?

4

A.

I did, ma'am.

5

Q.

How did you collect it?

6

A.

Photographed it in place.

I hit the shift key,

7

photographed the scene, then conducted a hard shutdown on the

8

computer.

9

Q.

So in accordance with your regulations?

10

A.

Yes, ma'am.

11

Q.

What happened with this evidence after you collected it?

12

A.

It was placed inside a brown paper bag, and by this time

13

the command had provided us with a large foot locker so it was put

14

into the foot locker and locked.

15
16

Q.

And do you have any reason to believe

this evidence

suffered any damage or contamination?

17

A.

No, ma'am.

18

Q.

Let's move on to the CDs that you mentioned.

19

A.

Okay.

20

Q.

Can you show us where those were in the CHU?

21

A.

Which CDs, ma'am, because they were found pretty much in

22
23

two separate areas?
Q.

Let's start with the first area.

7480

11026

A.

1
2

Okay. This area here at the night stand is where we found a

handful, five, ten maybe, writable CDs.

3

Q.

And that -- the area circled in black?

4

A.

Yes, ma'am.

5

Q.

And how do you know they were writable CDs, what does that

A.

Writable CDs, generic CDs that can be purchased from the

6
7
8

mean?

store for the purpose of the owner putting data on them.

9

Q.

And who collected those?

10

A.

I did, ma'am.

11

Q.

And how did you collect those?

12

A.

They were collected, placed into a smaller brown paper bag

13

and placed inside the trunk, ma'am.

14

Q.

In accordance with your regulations?

15

A.

Yes, ma'am.

16

Q.

And how about the -- You said there was another CD.

17

Where

was that one?

18

A.

That other CD was found here amongst these boxes, ma'am.

19

Q.

And that's circled in pink?

20

A.

Yes, ma'am.

21

Q.

What was that CD?

7481

11027

1

A.

It was a CD, it was a writable CD that had handwriting as

2

well as a Secret -- a military Secret sticker on it, and some label

3

maker sticker on it, ma'am.

4
5
6
7

Q.

It had a label maker sticker? Do you remember what that

sticker said?
A.

I believe it was 12 July 2007, Engagement Zone 30 CZ or

something to that effect, ma'am.

8

Q.

Would you remember that CD if you saw it again?

9

A.

I would, ma'am.

10

ATC[CPT OVERGAARD]: I’m retrieving what’s been marked as

11

Prosecution Exhibit 15 for Identification.

Handing the witness

12

Prosecution Exhibit 15 for Identification.

13

Questions continued by the assistant trial counsel [CPT OVERGAARD]:

14

Q.

Do you recognize that?

15

A.

Yes, ma'am.

16

Q.

Can you tell us what it is?

17

A.

This is the CD case that contained the writable CD.

18

Q.

And how do you know?

19

A.

Because I'm the one that collected it, ma'am.

20

Q.

Is there anything that stands out to you about it?

21

A.

Just the pre-writing and all that was on it, the Reuters,

22

F-O-I-A, R-E-Q or request.

7482

11028

1
2

Q.

And as best you can tell, is that the -- has the evidence

changed in any way since you collected it?

3

A.

Not that I can tell, ma'am.

4

Q.

5

A.

6

ATC[CPT OVERGAARD]: The United States offers what's been

And when did you collect it?
I collected it the 28th of May, 2010, ma'am.

7

previously marked as Prosecution Exhibit 15 for Identification into

8

evidence as Prosecution Exhibit 15.

9

MJ:

Any objection?

10

ADC[MAJ HURLEY]:

No objection, ma'am.

11

CDC[MR. COOMBS]:

Ma’am, may we have a moment?

12

MJ: Yes.

Just to make sure that the record is clear,

13

Prosecution Exhibit 15 for Identification has one, two, three, four

14

CDs in it.

15

or ----

One of them is relevant? Or one of them you're offering

16

ATC[CPT OVERGAARD]: We're offering the whole thing.

17

MJ:

18
19

The whole thing. Okay.

Got it.

Prosecution Exhibit 15 is

admitted.
ATC[CPT OVERGAARD]: The government printed the Prosecution

20

Exhibit 18 with the markings on it and moves to admit it as

21

Prosecution Exhibit 18 Alpha.

22

ADC[MAJ HURLEY]:

No objection, ma'am.

23

ATC[CPT OVERGAARD]: May I publish this, ma'am?

7483

11029

1

MJ: Yes.

2

[There was a pause while the assistant trial counsel published the

3

exhibit onto the computer screen in the courtroom.]

4

Questions continued by the assistant trial counsel [CPT OVERGAARD]:

5
6
7

Q.

Agent Smith, is this -- how do you know that this was a CD

that you found?
A.

I recognize the container that it was in and, as I said

8

previously, I recognize the actual markings that are on the CD in

9

question.

10

Q.

Can you tell us what those specific markings were?

11

A.

The 12 July 07, CZ Engagement Zone 30 GC off the printer --

12

label printer, and then also the DoD Secret sticker and the Reuters

13

F-O-I-A, R-E-Q, ma'am.

14

Q.

Is that an official DoD Secret sticker, do you know?

15

A.

It is, ma'am.

16

Q.

How do you know that?

17

A.

My time working with the -- on the MI side of the world,

18

ma'am.

19

Q.

And how did you -- Did you collect this CD?

20

A.

I did, ma'am.

21

Q.

How did you collect it?

7484

11030

1

A.

I collected the entire case, placed it inside a brown paper

2

bag, and then it went into the black trunk or the foot locker, it was

3

locked up, ma'am.

4

Q.

Did you collect anything else from the CHU?

5

A.

Yes, ma'am. I collected an external hard drive and a

6

camera.

7

ATC[CPT OVERGAARD]: I'm going to retrieve Prosecution Exhibit 15

8

and publish it.

9

[There was a pause while the assistant trial counsel published the

10

exhibit onto the computer screen in the courtroom.]

11

Questions continued by the assistant trial counsel [CPT OVERGAARD]:

12

Q.

Do you remember where the external hard drive was found?

13

A.

Yes.

14

The external hard drive was found inside a day sack

belonging to PFC Manning.

15

Q.

Can you show us where that is on the photo?

16

A.

I can't make out specifically which one is the -- is the

17

day sack, but it would have been amongst his TA 50 there inside the

18

room at the foot of the bed, ma’am.

19

Q.

What you circled in pink?

20

A.

Yes, ma'am.

21

Q.

And you also said you found a camera?

22

A.

Yes, ma'am.

23

Q.

Where did you find a camera?

7485

11031

1

A.

The camera was found on top of the foot locker here, ma'am.

2

Q.

And that's what you circled in red?

3

A.

Yes, ma'am.

4

Q.

And who collected this evidence?

5

A.

I did, ma'am.

6

Q.

And why did -- who found the evidence?

7

A.

Agent Toni Graham, ma'am.

8

Q.

And why did you collect it?

9

A.

It's easier for accountability and also for documentation

10

for one agent to collect all the evidence out of the crime scene

11

instead of having two or three different people collecting one or two

12

items, it's easier to have one person collect and process all of the

13

evidence inside the crime scene, ma'am.

14

Q.

How did you collect this evidence?

15

A.

It was placed inside brown paper bags and then placed into

16

the foot locker and locked, ma'am.

17

Q.

In accordance with your regulations?

18

A.

Yes, ma'am.

19

ATC[CPT OVERGAARD]: Ma'am, the government moves to admit the

20

photograph with the two circles on it, the pink and red, as

21

Prosecution Exhibit 18 Charlie or Bravo, 18 Bravo.

22

ADC[MAJ HURLEY]:

We're on 18?

23

ATC[CPT OVERGAARD]: No, this is 18.

7486

This isn't 15?

11032

1

ADC[MAJ HURLEY]:

2

MJ:

Okay.

No objection, ma’am.

I believe that is a good clarification for the record. I

3

believe you did call it Prosecution Exhibit 15 before.

4

record is clear, we're talking about Prosecution Exhibit 18 and that

5

is what’s being published.

6

objection, right?

And this is 18 Bravo.

7

ADC[MAJ HURLEY]:

8

MJ:

9

ATC[CPT OVERGAARD]: Yes, ma'am. Thank you.

10

13
14

So you have no

I do not.

All right.

Questions continued by the assistant trial counsel [CPT OVERGAARD]:
Q.

11
12

Just so the

well.

And you mentioned before that you sketched the area as

How did you do that?
A.

I just conducted a pen and ink or a pen and paper sketch at

the scene, ma'am.

15

Q.

Did you mark all the evidence that you recovered?

16

A.

Yes, ma'am.

17

ADC[MAJ HURLEY]:

Ma'am, we're not going to have an objection

18

to the sketch as long as they go through some of the foundation

19

questions.

20

MJ:

All right.

21

ATC[CPT OVERGAARD]: United States moves to admit what's been

22

marked as Prosecution Exhibit 16 for Identification as Prosecution

23

Exhibit 16.

7487

11033

1
2

MJ:

All right.

And since there’s no objection, Prosecution

Exhibit 16 for Identification is admitted.

3

ATC[CPT OVERGAARD]:

4

MJ:

May I publish this, ma'am?

Yes.

5

[There was a pause while the assistant trial counsel published the

6

exhibit onto the computer screen in the courtroom.]

7

Questions continued by the assistant trial counsel [CPT OVERGAARD]:

8

Q.

Agent Smith, who put the legend on the sketch?

9

A.

I did, ma'am.

10

Q.

And when did you do that?

11

A.

The next morning after waking up and getting oriented,

12

ma'am.

13

Q.

And can you orient us to this sketch?

14

A.

Yes. The E and E to the CHU, entrance and exit, is in the

15
16
17
18
19

bottom right-hand corner of the picture, ma'am.
Q.

And where is all the evidence that you collected, can you

just point it out?
A.

Yes, ma'am.

Right here in this area is where we collected

various CDs, they were both on top of and inside the night stand.

20

Q.

That's the red circle?

21

A.

Yes, ma'am.

22
23

The green circle here is where we collected

the laptop computer from.
Q.

And that's marked A, and with a green circle?

7488

11034

1

A.

Yes, ma'am.

F is the cardboard boxes where we collected

2

the CD case from marked in yellow.

3

blue is where the camera was collected off of.

4

where it says “Various TA 50” marked in pink was in amongst there,

5

was his day pack where we collected the hard drive off of, ma'am.

6

G marked in -- okay.

G marked in

And then right here

ATC[CPT OVERGAARD]: Ma'am, the United States moves to admit the

7

marked up version of Prosecution Exhibit 16 as Prosecution Exhibit 16

8

Alpha.

9
10
11

ADC[MAJ HURLEY]:
MJ:

All right.

No objection, ma'am.
Prosecution Exhibit 16 Alpha is admitted.

Questions continued by the assistant trial counsel [CPT OVERGAARD]:

12

Q.

And what did you do with all the evidence?

13

A.

The evidence was placed into brown paper bags, placed into

14
15

the foot locker and locked, ma'am.
Q.

And did you search any other -- and other -- any other

16

place?

17

Hammer?

18

A.

No, ma'am, I did not.

19

Q.

And did anyone else on your team?

20

A.

Agent Toni Graham did the supply room and collected some

21
22
23

Did you process any other crime scenes when you were at FOB

evidence from there, ma'am.
Q.

And what were you doing while Agent Graham was searching

the supply room?

7489

11035

1

A.

I was guarding the evidence, I was doing administrative

2

stuff, I was preparing the sketches that you saw. I was writing up

3

the crime scene exam from the night prior, ma'am.

4
5

Q.

Did Agent Graham bring you any evidence that she collected

from the supply room?

6

A.

Yes, ma'am, she did.

7

Q.

And do you remember what she brought you?

8

A.

She brought me one laptop computer and two external hard

9

drives, ma’am.

10

Q.

External hard drives, what were those external hard drives?

11

A.

One NIPR and one SIPR, if I'm not mistaken, ma’am.

12

Q.

Were they government hard drives?

13

A.

Yes, ma'am, they were.

14

Q.

And what did you do when Agent Graham handed you that

15
16

evidence?
A.

I typed up the 4187 [sic] and then those items, by this

17

time I had run out of brown paper bags, by this time, so I typed up

18

the EPCD and gave it to her to take it back for signature and the

19

actual evidence itself was placed into the foot locker and locked,

20

ma'am.

21

Q.

And how do you know?

22

A.

Because I'm the one that locked it up and secured it,

23

ma'am.

7490

11036

1
2

Q.

Were all the pieces of evidence that your team collected at

FOB Hammer locked into that foot locker?

3

A.

Yes, ma'am.

4

Q.

And who guarded that foot locker?

5

A.

I guarded it the majority of the time, ma'am, except to go

6

and eat one meal and showers.

The rest of the time when I was not

7

guarding it, it was under armed guard by either the MI Soldier that

8

was present or by Agent Toni Graham, ma'am.

9

Q.

So was it guarded the whole time?

10

A.

Yes, ma'am.

11

Q.

Was it ever left unattended?

12

A.

No, ma'am.

13

Q.

And who maintained the keys to that foot locker?

14

A.

I did, ma'am.

15

Q.

And after other people guarded the foot locker, did you

16
17

insure the sanctity of the evidence in any other way?
A.

I did, ma'am.

Upon returning to the CHU and taking over

18

watch of the evidence I conducted a hundred percent inventory of the

19

evidence.

20
21
22
23

Q.

What happened to the foot locker when you wrapped up the

investigation at FOB Hammer?
A.

It was placed on to the chopper with myself and flown back

to VBC, ma'am.

7491

11037

1

Q.

It was with you the whole time?

2

A.

Yes, ma'am.

3

Q.

What did you do with it when you got to Camp Liberty?

4

A.

Camp Liberty, we transferred it from there to FOB Liberty

5

where the actual CID office was, and the evidence was transferred

6

from there into the temporary evidence safe inside the CID office,

7

ma'am.

8

Q.

And what kind of safe is that?

9

A.

It's a large metal wall locker that has a metal hasp and a

10
11
12
13
14

5200 series lock on it, ma'am.
Q.

And who took possession of the evidence after -- did it

leave the locker at all?
A.

It did.

After we got back and got settled I signed all the

evidence over to Agent Robertson, ma'am.

15

Q.

Who is Agent Robertson?

16

A.

He's an agent with the CCIU, Computer Crimes Investigative

17
18
19

Unit for CID out of Germany, ma'am.
Q.

Was all of the evidence that you collected from FOB Hammer

turned over to Agent Robertson?

20

A.

It was, ma'am.

21

Q.

And you said you filled out the 4137?

22

A.

Yes, ma'am.

23

Q.

Do you know why Agent Robertson took possession?

7492

11038

A.

1
2

Agent Robertson was going to begin a triage look at the

evidence to see what if anything he could find on the computers.

3

Q.

And what role did you have in that process?

4

A.

Outside of talking to him, you know, every now and again to

5

find out if he found anything, none.

6

Q.

And how do you know the evidence went to him?

7

A.

Because I did a hundred percent turnover of the evidence to

9

Q.

When was that?

10

A.

30 May 2010, ma'am.

11

Q.

And before you turned that evidence over to him, do you

8

him.

12

have any reason to believe that it suffered any damage or

13

contamination?

14

A.

No, ma'am.

15

ATC[CPT OVERGAARD]: Thank you.

16

MJ:

17

ADC[MAJ HURLEY]:

Cross-examination.

CROSS-EXAMINATION

18
19

Yes, ma'am.

Questions by the assistant defense counsel [MAJ HURLEY]:

20

Q.

Special Agent Smith.

21

A.

Yes, sir.

22

Q.

You participated in drafting the investigative plan for

23

this case?

7493

11039

1

A.

The investigative plan?

2

Q.

Yes.

3

Well, at some point it was determined that canvass

interviews would be done?

4

A.

Yes, sir.

5

Q.

And then a crime scene investigation would occur?

6

A.

Right.

And that's standard, so I’ve ----

7

Q.

Right.

So there wasn't much in terms of a formal planning

8

process to talk about what you would do at FOB Hammer once you

9

arrived?
A.

10

There was some discussion, but it was pretty much segmented

11

and everyone had their goal and their task when they hit the ground,

12

sir.

13
14

Q.

Right.

And part of your goals and task was to go to the

TOC and to conduct canvass interviews?

15

A.

Yes, sir.

16

Q.

And you did that, except for briefing the command, you did

17

that immediately upon your arrival?

18

A.

Yes, sir.

19

Q.

And you talked to everyone you could find in the S-2

20
21
22
23

section?
A.

Everyone that was identified as working on his shift inside

the SCIF, sir, yes.
Q.

And that's both for the S-2 section and the S-4 section?

7494

11040

A.

1

I don't know who was talked to -- that night when I did the

2

canvass interviews, sir, I don't remember talking to anyone from the

3

S-4.

4

sir.

5
6

All the people I spoke to were from the S-2 side of the SCIF,

Q.

You -- When you are conducting -- Let's just talk about

canvass interviews ----

7

A.

Okay.

8

Q.

---- interviews generally.

9

You have a set series of

questions that you want to ask in a canvass interview?

10

A.

Yes, sir.

11

Q.

Now, that may not be all the questions you ask, but the set

12
13

ones that you ask are pretty standard?
A.

Well, they're standard in reference to that investigation,

14

but I can't ask the same questions for a computer crime as I would do

15

for a sexual assault, sir.

16
17

Q.

Right.

So ----

Once you agree upon the questions in a particular

investigation, that's a series of questions?

18

A.

Yes, sir.

19

Q.

And the idea of a canvass interview is to identify those

20

people who you want to formally interview?

21

A.

Yes, sir.

22

Q.

So you're looking to get more information?

23

A.

Yes, sir.

7495

11041

1

Q.

And you mentioned now when you're doing investigation --

2

any interview of whatever duration, you're going to identify

3

yourself?

4

A.

Yes, sir.

5

Q.

As a member of the Criminal Investigation Command?

6

A.

Yes, sir.

7

Q.

And you're going to identify generally what you want to

8

talk about?

9

A.

Yes, sir.

10

Q.

In this case you, a lot of the questions -- your set of

11

questions identified PFC Manning?

12

A.

Yes, sir.

13

Q.

And in this canvass interview, if the witness has more

14

information, you're not going to stop him, are you?

15

A.

No, sir.

16

Q.

And if they had something to say, you would further develop

17

that information?

18

A.

Yes, sir.

19

Q.

Do you recall specifically identifying any individuals that

20
21

you canvassed for additional interviews?
A.

No, sir.

7496

11042

1

Q.

And as you're interviewing these witnesses, if someone

2

would have told you more about PFC Manning, a lot about PFC Manning,

3

you would have identified that individual for a follow-up interview?

4

A.

Yes, sir.

5

Q.

And that interview would be included in your investigative

6

report?

7

A.

Yes, sir.

8

Q.

And in all likelihood you'd write an agent investigative

9
10

report, an AIR on that interview as well?
A.

When we do an AIR entry, but the AIR itself is a living

11

document covering a large aspect of it.

12

pertaining to that interview, but the AIR specific to that interview

13

would not be done, sir.

14
15

ADC[MAJ HURLEY]:

There would be an AIR entry

Thank you, Special Agent Smith.

further questions.

16

MJ:

17

ATC[CPT OVERGAARD]: One moment, ma'am.

20

Any redirect?

No, ma'am. Thank you.

18
19

I have no

MJ:

All right.

Special Agent Smith, I just have a couple

questions following up the cross-examination.

7497

11043

EXAMINATION BY THE COURT-MARTIAL

1
2
3

Questions by the military judge:
Q.

If I understood, did I understand your testimony to be that

4

you do canvass interviews with people to determine whether they know

5

something more that maybe you need to develop further questions to

6

flush out that information from those people?

7

A.

Right, ma'am.

We usually go into it and usually you start

8

out with five or six generic questions that you're going to ask

9

everybody, okay.

And then if someone starts to give information

10

that's pertinent to that, at that point you start asking follow-up

11

questions pertaining to -- pertaining to the --pertaining to it.

12

then at that point, hey, you know, once you realize that that

13

individual does have significant information and all pertaining to

14

the investigation, at that point you can either pull them aside and

15

actually do a full interview of them, or you can schedule an

16

appointment for them to come in and provide a statement, ma'am.

17
18

Q.

And

And the people that you interviewed, I believe you said it

was on the 28th of May, 27th of May?

19

A.

27th of May, Your Honor.

20

Q.

Did you pull aside any of those people for more significant

21
22
23

interviews or were they all at the canvass level?
A.

They were all at the canvass level because no one actually

saw any misdoings on the computers, ma'am, and that's what the

7498

11044

1

canvass interviews meant to do is to try and find an individual that

2

might have saw something, okay.

3

and all, they saw the fight and all that took place in the SCIF.

4

MJ:

You know, a lot of his co-workers

Okay. I'm good.
Counsel, any follow-up from my questions?

5
6

ADC[MAJ HURLEY]:

None from the defense, ma'am.

7

ATC[CPT OVERGAARD]: Just one, ma'am.
REDIRECT EXAMINATION

8
9
10
11
12

Questions by the assistant trial counsel [CPT OVERGAARD]:
Q.

Does that mean that no statements were taken from other

people or just that you didn't take any?
A.

I took one statement the time that I was at FOB Hammer from

13

Specialist or Private Sadtler or something to that effect, and I

14

don't remember if there were any other statements taken while we were

15

out there or not, ma'am.

16

ATC[CPT OVERGAARD]: Okay. Thank you.

17

MJ:

18

ADC[MAJ HURLEY]:

19

MJ:

20

ATC[CPT OVERGAARD]: Temporary, ma'am.

21

MJ:

22

All right.

All right.

All right.

Anything from the defense?
No, ma'am.
Temporary or permanent excusal?

Now, with the temporary excusals are we --

well, we can talk about that at a recess.

7499

Are we keeping people in

11045

1

the building or does it vary witness by witness, what do you want to

2

do?
TC[MAJ FEIN]:

3

May it vary witness by witness based off if

4

there's an authentication issue, we'd recall for instance, Special

5

Agent Smith, but other witnesses are being recalled knowing we're

6

actually calling them back.
MJ:

7
8
9
10

So it will vary by witness.

So when I temporarily excuse witnesses they know where to

go?
TC[MAJ FEIN]:

They will absolutely know where to go, ma’am.

MJ: All right.

11

[The witness was temporarily excused, duly warned, and withdrew from

12

the courtroom.]

13
14
15

TC[MAJ FEIN]:

United States requests a 10-minute recess,

comfort break.
MJ:

Court is in recess until 1530.

16

[The court-martial recessed at 1526, 3 June 2013.]

17

[The court-martial was called to order at 1539, 3 June 2013.]

18

MJ:

Court is called to order.

Let the record reflect all

19

parties present when the court last recessed are again present in

20

court.

21
22
23

Government, are you ready to call your next witness?
ATC[CPT OVERGAARD]: Yes, ma'am.
Agent Toni Graham.

7500

The United States calls Special

11046

1

SPECIAL AGENT TONI GRAHAM, U.S. Army, was called as a witness for the

2

government, was sworn, and testified as follows:
DIRECT EXAMINATION

3
4

Questions by the assistant trial counsel [CPT OVERGAARD]:

5

Q.

And you are Special Agent Toni Graham?

6

A.

Yes, ma'am.

7

Q.

And what is your rank?

8

A.

CW2.

9

Q.

Where are you currently assigned, Agent Graham?

10

A.

To the Hawaii CID office in Schofield Barracks.

11

Q.

And where is that?

12

A.

Schofield Barracks, Hawaii.

13

Q.

What's your position?

14

A.

I'm the General Crimes Team Chief.

15

Q.

And what does the General Crimes Team Chief do?

16

A.

We supervise investigations on general crimes.

17

Q.

And what are general crimes?

18

A.

General crimes are all investigations with the exception of

19

sex offenses and drug offenses.

20

Q.

What was your previous assignment?

21

A.

The General Crimes Team Chief at the Fort Knox CID Office.

22

Q.

And when were you at Fort Knox?

23

A.

From 2009 to 2011.

7501

11047

1

Q.

And before you were at Fort Knox where were you assigned?

2

A.

Fort Polk, CID.

3

Q.

And when was that?

4

A.

2005 to 2009.

5

Q.

So how long have you been a CID Agent?

6

A.

For eight years.

7

Q.

And how long have you been a warrant officer?

8

A.

For four years.

9

Q.

What did you do before you became a CID agent?

10

A.

I was Military Police.

11

Q.

And what did you do as a Military Police officer?

12

A.

As Military Police I worked patrol on the road, I worked as

13

a desk sergeant at the PMO, and I also worked physical security at

14

SCIFs.

15
16
17
18

Q.

And could you explain those a little bit more?

What's

patrol mean as an MP?
A.

Patrol is like the regular what you think a military cop,

riding a patrol car, responding to domestics.

19

Q.

How about a desk sergeant, what is that?

20

A.

Desk sergeant is like a supervisor for the shift, you sit

21

on the desk and receive calls from 9-1-1 complaints or anyone that

22

has any kind of issue, and then you have the patrols respond to the

23

scenes.

7502

11048

1

Q.

So how about you said physical security, what is that?

2

A.

Yes, ma'am.

I worked physical security at a SCIF in Fort

3

Belvoir.

Basically you just conduct searches on people entering and

4

exiting the SCIF and man the location, make sure it's secured.

5

Q.

Do you go into the SCIF at all?

6

A.

Yes, ma'am.

7

Q.

And how much -- or how often do you go into the SCIF?

8

A.

Typically it's three times a day for patrols or for

9

security checks to make sure all the doors are locked.

10

Q.

So how long have you been in law enforcement for the Army?

11

A.

Thirteen years.

12

Q.

And how long have you been in the Army?

13

A.

Thirteen years.

14

Q. What training did you receive to become an MP?

15

A.

16

As an MP we receive -- attend an OSUT training which is

just the MP AIT.

17

Q.

What does OSUT mean?

18

A.

One Station Unit Training.

19

Q.

And what training did you receive while you were an MP, any

20

advanced training?

21

A.

22

Course.

23

Q.

I did. I attended the Military Police Investigations

What do you learn there?

7503

11049

1

A.

How to become a Military Police Investigator.

2

Q.

Does it involve any crime scene evaluation?

3

A.

Yes, ma'am.

It's crime scenes, interviews, interrogations,

4

collection of evidence, quick law background, Constitutional Law

5

stuff, things like that, amendment rights, and weapons training.

6

Q.

Have you had any evidence collection training?

7

A.

Yes, ma'am.

8

Q.

And where was that?

9

A.

That was at Fort Leonard Wood, Missouri.

10

Q.

What kind of training was it, or what school was it?

11

A.

The Military Police Investigations course.

12

Q.

What training have you received to become a CID Special

13
14
15

Agent?
A.

You attend the Apprentice Special Agent Course, its basic

fundamentals and what to expect from you as a CID Agent.

16

Q.

And is that your AIT?

17

A.

Yes, ma'am.

18

Q.

How about since you've been a CID Special Agent, have you

19

had any additional training?

20

A.

Yes, ma'am, I have.

21

Q.

What have you done?

22

A.

I've attended the Protective Service Course the Advanced

23

Crime Scene Course, the Special Agent Laboratory Training Course,

7504

11050

1

with Evidence Management, Hostage Negotiations, Special Victim's Unit

2

Course, Post Blast Investigations.

3

Q.

So a lot of training?

4

A.

Yes, ma'am.

5

Q.

Did any of that training focus on crime scene evaluation?

6

A.

Yes, ma'am.

7

Q.

And what training focused on that?

8

A.

The Advanced Crime Scene Examination Course focuses on that

9

as well as Special Agent Laboratory Course, Laboratory Training

10

Course.

11

Q.

What does it mean to evaluate a crime scene?

12

A.

Well, to evaluate a crime scene you respond to a location

13

where an alleged crime occurred and you inspect the location for

14

potential evidence, take photographs, you sketch the area.
Q.

Did any of your training focus on evidence collection as

17

A.

Yes, ma'am.

18

Q.

And digital evidence collection?

19

A.

Yes, ma'am.

20

Q.

And what training focused on the collection of digital

15
16

21
22
23

well?

evidence?
A.

Digital evidence also covered Advanced Crime Scenes. It's

also mentioned in the Special Agent Laboratory course.

7505

We also cover

11051

1

it in several of our Army courses like BNCOC and Warrant Officer

2

Basic and Advanced.

3

I would say every other month from our local digital forensic

4

examiner.

We also receive digital evidence training either

5

Q.

What's the role of the local digital forensic examiner?

6

A.

They conduct forensic examinations on the evidence that we

7

collect.

8

Q.

Are they CID agents as well?

9

A.

Yes, ma'am.

10

Q.

So how do you collect digital evidence, what have you

11
12
13

learned?
A.

Basically you remove the power source to the item and

collect the item, take it into your physical custody.

14

Q.

What about -- I'm sorry.

15

A.

All right.

16

Q.

What did you learn about the preservation of digital

17
18

evidence?
A.

So when an item is on say a monitor or a computer is

19

running, what we do when we collect -- before we collect it, we

20

determine whether the item is processing something, defragmenting or

21

running some kind of deletion program. If that is the case, then we

22

remove the power cord or the battery from the back of the device

23

immediately.

If it's not doing that, then we take a photograph of

7506

11052

1

the screen and then remove the power cord from the back or whatever

2

power device.

3
4
5

Q.

And then what do you do with the digital evidence when you

collect it, what process do you follow?
A.

We mark it with our time/date initials from the time we

6

collect it and we document it on an evidence property custody

7

document.

8

Q.

And what's the evidence property custody document?

9

A.

It is a document where we collect all items that we are

10
11
12
13

determining if it's evidence or not.
Q.

Just generally what does it contain, what information does

it contain?
A.

The top section of the document is administrative data, who

14

you're collecting it from, where you are when you're collecting it.

15

The center portion is the description, quantity, how many items there

16

are, what is the item.

17

damage or anything that's unique to that item.

18

annotate how you collected it, say if you just physically marked on

19

it with your time/date initials or if you place it into a container

20

and mark it with time, date and initials.

21

portion of the document is the chain of custody.

22
23

Q.

You include serial numbers, any kind of
You also in there

And then at the bottom

How does someone know when they're getting evidence that

they're getting what they think they're getting?

7507

11053

A.

1
2

You can compare the actual piece of evidence to the

description of the evidence on the evidence voucher.

3

Q.

Does that happen every time?

4

A.

Yes, ma'am.

5

Q.

And how do you know it happens every time?

6

A.

It's part of the process and it's regulation.

7

Q.

How many cases have you tried as a CID -- or how many cases

8

Unless it's sealed.

have you worked as a CID agent?

9

A.

Roughly, maybe a hundred a year.

10

Q.

So about, you said eight years you've been a CID agent?

11

A.

Yes, ma'am.

12

Q.

So about 800?

13

A.

Yes, ma'am.

14

Q.

And about how many computer crimes have you investigated?

15

A.

At least 15 a year, and every year that's progressively

17

Q.

And was there -- have you deployed to Iraq?

18

A.

Yes, ma'am.

19

Q.

Do you remember when that was?

20

A.

Yes.

21

Q.

Can you tell us when it was?

22

A.

From April 2010 through March of 2011.

23

Q.

So that was out of Fort Knox?

16

more.

7508

11054

1

A.

Yes, ma'am.

2

Q.

Where were you stationed when you deployed?

3

A.

I was stationed -- I was assigned to the Baghdad CID office

4

at Camp Liberty.

5

Q.

What was your position at Camp Liberty?

6

A.

I was a Senior Case Agent and the Assistant Special Agent

7
8
9
10

in Charge.
Q.

What did you do as the Senior Case Agent and the Assistant

Special Agent in Charge?
A.

As the Assistant Special Agent in Charge, anytime the SAC

11

is out of the office you step in and assume the responsibility.

12

Senior Case Agent you work cases just like anyone else.

13

Q.

Are you the most senior agent in the office?

14

A.

Yes, ma'am.

15

Q.

All right.

16
17
18

As a

With the exception of the SAC.
How did you first become involved in this

particular case?
A.

I was notified by the SAC on the morning of 27 May 2010, to

report to our battalion regarding an allegation.

19

Q.

And what did you learn?

20

A.

There I learned we received information, our headquarters

21

received information from the FBI that was from a non-government

22

agency wherein their confidential informant had communication with

7509

11055

1

PFC Manning wherein he had related that he had obtained Secret

2

documents for personal use.

3

Q.

And did you receive any specific evidence?

4

A.

Yes.

5

Q.

And did you look at those chat logs?

6

A.

Yes, ma'am.

7

Q.

Who was on those chat logs?

8

ADC[MAJ HURLEY]:

9

They were chat logs.

Objection.

Personal knowledge as to how is

the Special Agent supposed to know that?

10

Q.

Did you -- Did you ----

11

MJ:

Hold on.

12

Q.

Did you verify -- So you said you found chat logs. Did you

13
14

Sustained.

-- what did your office do once you received that information?
A.

Upon receiving the chat logs we were able to corroborate as

15

much information in there as we could as far as the details provided

16

by PFC Manning to the source.

17

Q.

Did you corroborate that information?

18

A.

Yes, ma'am, there were several pieces that we were able to

19

corroborate.

20

Q.

What did you corroborate?

21

A.

Basically most of his military information that he had

22

mentioned in the chat logs.

Some of his personal information that we

7510

11056

1

were able to obtain from social network sites that he had posted in

2

both the network site and the chat logs.

3

Q.

What did you do after reviewing this information?

4

A.

I drafted an affidavit and went to the military magistrate

5

for a search authorization.

6

Q.

Did you get the authorization?

7

A.

Yes, ma'am, I did.

8

Q.

And do you remember what you got the authorization for?

9

A.

I requested to seize his assigned work terminals and all of

10

his personal computers or storage devices, media storage devices,

11

electronic storage devices that were at FOB Hammer.

12

Q.

And what did you do after you got the authorizations?

13

A.

We gathered a team and we proceeded to FOB Hammer that

14

night.

15

Q.

16

Hammer?

17

A.

What was the first thing that you did when you got to FOB

First thing.

We met with Staff Sergeant Bigelow and

18

Captain Freeburg who was the HHC Commander and they escorted us to a

19

location where we could designate our own, and then we briefed the

20

chain of command on the FOB.

21

Q.

Who traveled with you?

22

A.

It was myself, Special Agent Tom Smith, Special Agent

23

Jennie Lisciandri and Counterintel Special Agent Nathan Langley.

7511

11057

1

Q.

What was your role in that team?

2

A.

I was the Team Chief for the mission.

3

Q.

What does that mean?

4

A.

Supervisor.

5

Q.

So you said you briefed the chain of command.

6
7

Why did you

brief the chain of command?
A.

Upon arrival we briefed the chain of command basically to

8

let them know what the allegation was, that we had obtained a search

9

authorization and we would be collecting certain items, and just to

10

let them know that we would be affecting their normal operations for

11

the next couple days.

12

Q.

Do you remember what day that was?

13

A.

That was on the evening of 27 May 2010.

14

Q.

Where did you go first after you briefed the chain of

15

command, or where did you go after you designated your area you said?

16

A.

After we designated our area was the chain of command.

17

Q.

Okay and then where did you go after that?

18

A.

From there we went to the S-2 section which was the SCIF

19

there on the TOC.

20

Q.

What did you do at the SCIF?

21

A.

There we began canvass interviews.

22

Q.

And why did you start at the SCIF?

7512

11058

1

A.

Because that is the location that was most logical being

2

that that's where PFC Manning was working at the time of the chat

3

logs or at the time.

4

Q.

How did you know he was working there?

5

A.

Through his chain of command.

6

Q.

And who, just generally, who did you interview at the S-2?

7

A.

We conducted canvass interviews of the S-2 section.

8

Q.

And who in particular?

9

A.

Basically all the people that were on mid-shift there at

10

the time we arrived, and then we slowly worked through the rest of

11

the S-2 section, the day shift and the rest of the individuals.

12

Also, we briefed the S-4 section or canvassed.

13

Q.

The S-4 section?

14

A.

Yes, ma'am.

15

Q.

Okay.

16

A.

Agent Smith was also conducting canvass interviews with me.

17

What was the rest of your team doing?

Agent Langley was as well until he went with Agent Lisciandri.

18

Q.

And was there a time that you started processing the scene?

19

A.

Yes, ma'am. During the canvass interview Agent Smith broke

20

off from the canvasses and began processing the SCIF of the crime

21

scene.

22

Q.

And what did -- do you know what he did to examine the

23

crime scene?

7513

11059

1

A.

Well, because it was a SCIF there was Top Secret

2

information on the wall so we had to do a little sanitizing, covering

3

up the information on the walls and then began photographing.

4

Q.

Did he collect any evidence?

5

A.

Yes, he did.

6

Q.

And do you know what he collected?

7

A.

Yes, ma'am.

8

Q.

How do you know?

9

A.

Because I observed him do that.

10

Q.

What did he collect?

11

A.

He collected two SIPR terminals and one NIPR terminal.

12

Q.

And do you remember where he collected those items from?

13

A.

Yes, ma'am.

14

ATC[CPT OVERGAARD]: Ma'am, permission to publish Prosecution

15
16

Exhibit 17?
MJ:

Go ahead.

17

[There was a pause while the assistant trial counsel published the

18

exhibit onto the computer screen in the courtroom.]

19

Questions by the assistant trial counsel [CPT OVERGAARD]:

20

Q.

Are you familiar with this sketch?

21

A.

Yes, ma'am, I am.

22

Q.

And how are you familiar with this sketch?

7514

11060

1
2

A.

This is the rough sketch depicting the SCIF at FOB Hammer,

and I also verified this piece of paper.

3

Q.

Okay.

4

A.

It's accurate to the best of its ability.

5

Q.

Does this sketch accurately depict what was collected from

6

What does it mean to verify a sketch?

the SCIF on 27 May?

7

A.

The locations, yes, ma'am.

8

Q.

Okay.

9

And to your knowledge, did your team's collection of

this evidence follow your regulations?

10

A.

Yes, ma'am.

11

Q.

And do you have any reason to believe that evidence

12

suffered any damage or contamination?

13

A.

No, ma'am.

14

Q.

Do you know where the evidence was stored?

15

ADC[MAJ HURLEY]:

16

Ma’am, again, we would object as to the

cumulative nature of this evidence.

We've heard this.

17

MJ:

Why are we going through this again?

Is there a reason?

18

ATC[CPT OVERGAARD]: We're quickly going over some of the first

19

steps in her supervisory capacity, and Agent Graham was doing some

20

different activities at the same time.

21
22
23

MJ:

Defense, are you going to have an objection that there's

some taint in the evidence at the time the CID agent had it?
ADC[MAJ HURLEY]:

No, ma'am.

7515

11061

1

MJ:

2

ATC[CPT OVERGAARD]: May I have one moment please, ma'am?

3

MJ:

4
5
6

Move on.

Yes.

Questions by the assistant trial counsel [CPT OVERGAARD]:
Q.

Agent Smith, you said that -- I'm sorry, Agent Graham, you

said that you also talked to S-4 personnel.

What is S-4?

7

A.

The supply section, ma'am.

8

Q.

And did you search the supply room?

9

A.

I looked in the supply room, yes, ma'am.

10

Q.

Why was that?

11

A.

It was identified that there was additional pieces of

12

possible evidence in the supply room.

13

Q.

How did you know that?

14

A.

With canvass interviewing Staff Sergeant Bigelow who was

15

the supply room NCOIC.

He had informed me that Agent [SIC] Manning

16

was transferred over to that section and there were two terminals in

17

that room which he had also been using in during a probably two week

18

period of time.

19

Q.

And did you collect any evidence from the supply room?

20

A.

Yes, ma'am.

21

Q.

And what did you collect?

7516

11062

A.

1

I collected the hard drive from the SIPR computer in the

2

supply room and a hard drive from the NIPR computer in the supply

3

room.

4
5
6
7

Q.

And what did you do with that evidence when you collected

A.

I collected it on an evidence property document and I

it?

placed them into an envelope.

8

Q.

And where did you take that evidence?

9

A.

To Agent Smith, transferred control over to him, and he

10

placed them into the foot locker.

11

Q.

And who was responsible for the foot locker?

12

A.

Agent Smith.

13

Q.

Did everything you collect go into that foot locker?

14

A.

Yes, ma'am.

15

ATC[CPT OVERGAARD]: Nothing further, ma'am.

16

MJ:

17

ADC[MAJ HURLEY]:

Cross.

CROSS EXAMINATION

18
19
20
21

Yes, ma'am.

Questions by the assistant defense counsel [MAJ HURLEY]:
Q.

Special Agent Graham, let's first talk about your

interactions with PFC Manning.

You saw PFC Manning on FOB Hammer?

22

A.

Yes, sir.

23

Q.

You saw him several times?

7517

11063

1

A.

At least two that I can recall off the top of my head.

2

Q.

Every time you saw him he was under escort?

3

A.

Technically, yes, yes, sir.

4

Q.

Thank you.

But let's talk about the canvass interviews

5

that you conducted.

Those canvass interviews you said you talked to

6

people from the S-2 section?

7

A.

Yes, sir.

8

Q.

And the S-4 section?

9

A.

Yes, sir.

10

Q.

And in interviewing generally, in all of your experience

11

and training, you will typically start an interview of whatever

12

length by identifying yourself?

13

A.

Yes, sir.

14

Q.

And identifying the topic generally that you're talking to

15

this person about?

16

A.

Depends, sir.

17

Q.

Well, in this particular case you had identified about

18

seven questions -- seven canvassing questions that you were going to

19

use?

20

A.

Right, to start off, yes, sir.

21

Q.

Right.

22
23

And those canvassing questions all mentioned PFC

Manning by name, or a few of them certainly did?
A.

I'm sure a majority of them did.

7518

11064

1
2

Q.

Now, you used a canvass interview to identify witnesses

that you want to do more detailed interviews with?

3

A.

4

Q.

Yes, sir.
And the investigator that's conducting this is actually

5

actively looking for information while doing it, or let's not speak

6

in the third person.

7

actively looking for more information?

When you do these canvass interviews, you're

8

A.

Yes, sir.

9

Q.

And you're not stopping one from talking to you, are you?

10

A.

No, sir.

11

Q.

If they're telling you relevant information, you're going

12

to take it all down and even ask follow-up questions?

13

A.

Absolutely, sir, yes.

14

Q.

So those questions, those seven questions that we talked

15
16
17
18
19

about, those weren't all the questions you asked?
A.

Not on every individual, but that was the probing questions

that we began with every individual.
Q.

Right.

And you can recall identifying certain witnesses

for follow-up?

20

A.

Yes, sir.

21

Q.

For instance, you did a follow-up interview with Captain

22
23

Lim who was the OIC of the Brigade S-2 section?
A.

I don't ----

7519

11065

1

Q.

Don’t know?

2

A.

---- know, sir.

3

Captain Lim.

4

Q.

5

Okay.

We didn't obtain a sworn statement from

What about Captain Freeburg, do you recall doing a

more in-detail interview with him?

6

A.

Yes, sir, but not because of the canvass interviews.

7

Q.

And what about Sergeant Bigelow, was that because of the

8

canvass interviews or did you -- first off, did you do a more

9

detailed interview with Sergeant Bigelow?

10

A.

Yes, sir, we did.

11

Q.

And was that because of the canvass interviews?

12

A.

No, sir.

As part of the canvasses we did interview him,

13

but we had identified him upon our immediate arrival that he was

14

going to be someone we probably interview.

15
16

Q.

So if a witness had told you they knew why PFC Manning

disclosed information, you would have followed up on that?

17

A.

Yes, sir.

18

Q.

And as the senior person on the ground, you would expect

19

another person conducting a canvass interview to relay that

20

information to you?

21

A.

Yes, sir.

22

Q.

Let's talk about FOB Hammer.

23

approximately five days, is that right?

7520

You were there for

11066

1

A.

I can't recall, but it was a couple of days, yes, sir.

2

Q.

About a week maybe?

3

A.

Maybe.

4

Q.

And this is in late May and early June of 2010?

5

A.

Yes, sir.

6

Q.

And do you recall any enemy activity on the FOB?

7

A.

Not at the time we were there, no, sir.

8

Q.

So no mortars that ----

9

A.

No, sir.

10

Q.

---- that you can recall?

11

A.

Not that I recall.

12

Q.

Or small arms fire?

13

A.

No, sir.

14

ADC[MAJ HURLEY]:

15

WIT: Okay.

16

MJ:

17

ATC[CPT OVERGAARD]:

18

MJ:

19

ATC[CPT OVERGAARD]:

20

Thanks, Special Agent Graham.

Redirect.

All right.

Temporary or permanent excusal?
Temporary, ma'am.

[The witness stood up to depart the courtroom.]

21

MJ:

22

ATC[CPT OVERGAARD]:

23

No, ma'am.

Hold on.

Government, do you want to confer?

No, ma'am.

One moment, please, ma'am.

Temporary excusal.

7521

11067

1

MJ:

All right.

Temporary excusal.

2

[The witness was temporarily excused, duly warned, and withdrew from

3

the courtroom.]

4

MJ:

Government, are ready to call your next witness?

5

ATC[CPT OVERGAARD]: Yes, ma'am. The United States calls

6

specialist Eric Baker.

7

SPECIALIST ERIC BAKER, U.S. Army, was called as a witness for the

8

prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION

9
10

Questions by the assistant trial counsel [CPT OVERGAARD]:

11

Q.

And you are Specialist Eric Baker?

12

A.

Yes, ma'am, I am.

13

Q.

What's your current unit, Specialist Baker?

14

A.

My current unit is 411th MP Company at Fort Hood, Texas.

15

Q.

What's your current position there?

16

A.

Military Police Officer.

17

Q.

How long have you been a Military Police Officer?

18

A.

For five years.

19

Q.

And how long have you been in the Army?

20

A.

For five years, ma'am.

21

Q.

Where were you assigned before you were at Fort Hood?

22

A.

I was stationed at Fort Drum, New York, in the 2nd Brigade,

23

10th Mountain.

7522

11068

1

Q.

And when were you at Fort Drum?

2

A.

From January, no from June of 2008 until August of 2012.

3

Q.

And you were with 2-10 the whole time?

4

A.

I went to 62nd MP Detachment in February of 2011, while I

5

was there.

6

Q.

What's 62nd MP Detachment?

7

A.

CID unit.

8

Q.

It’s CID?

9

A.

For an MP is a Drug Suppression Team.

10

What do you do as an MP with CID?
I was an

investigator on the Drug Suppression Team over there.

11

Q.

While you were at Fort Drum did you meet PFC Manning?

12

A.

Yes, ma'am.

13

Q.

And how did you meet him?

14

A.

I met him when he first got there, when he first got to

15

Fort Drum, he was looking for somebody's Internet to use.

16

Q.

Were you in the same unit?

17

A.

Yes, ma'am.

18

Q.

In the same company.

19

A.

I don't remember the exact month, ma’am.

20

Q.

Approximately.

21

A.

No, not approximately.

22

Q.

When he -- Do you remember when he arrived at the unit?

23

A.

I think it was around June or July of 2008.

We were in the same company.
Do you remember when that was?

7523

11069

1

Q.

2008?

2

A.

Yes, ma'am.

3

Q.

And when do you -- when was the next time you remember

4
5
6

seeing the -- PFC Manning?
A.

The next time I seen him was the first Joint Readiness

Training Center rotation at Fort Polk, Louisiana.

7

Q.

So what's the Joint Readiness Training?

8

A.

It's training for your deployment.

9

Q.

And what training do you receive?

10

A.

That one was geared towards Afghanistan at the time.

11

Q.

Do you remember when that was?

12

A.

Yes, ma'am.

13

Q.

And you said the accused was there?

14

A.

Yes, ma'am, he was.

15

Q.

How do you know that?

16

A.

We slept in the same building.

17

Q.

Did he also attend the training?

18

A.

Yes, ma'am, he did.

19

Q.

Did your unit attend another JRTC training?

20

A.

Yes, ma'am, we did.

21

Q.

And do you remember when that was?

22

A.

That one was September of '09.

That was September of 2008.

23

7524

11070

1

Q.

What did that training focus on?

2

A.

That one was focused on Iraq, our deployment got changed to

4

Q.

And was -- Was the accused also at that training?

5

A.

Yes, ma'am, he was.

6

Q.

How do you know that?

7

A.

We slept in the same building again.

8

Q.

Do you remember when you deployed?

3

9

Iraq.

Do you remember what

month that was?

10

A.

Yes, ma'am.

It was October of 2009.

11

Q.

And how long were you deployed for?

12

A.

From October of 2009 till August of 2010.

13

Q.

And did you go with the rest of your unit?

14

A.

I was part of the advance, the torch party.

15

Q.

Was that with 2-10?

16

A.

Yes, ma’am.

17

Q.

And what does it mean to be part of the torch party?

18

A.

We flew before the rest of the unit started flying.

We

19

arrived in Kuwait and we waited in Kuwait until the last group flew

20

out to Iraq and we flew with the last group.

21

Q.

So how long was the rest of your unit in Kuwait?

22

A.

I'd say about a week or two maybe at the most.

23

Q.

When did you arrive in Iraq?

7525

11071

1

A.

November of 2009.

2

Q.

And how about the majority of 2-10, do you know when they

3
4
5
6
7

arrived?
A.

I think the end of October is when they should have been

there.
Q.

What was your interaction with the accused during the

deployment?

8

A.

He was my roommate.

9

Q.

Was that for the entire time you were deployed?

10

A.

Yes, ma'am, from about November until May of 2010.

11

November of 2009 until about May of 2010.

12

Q.

Okay.

13

A.

Yes, ma'am.

14

Q.

How are roommates assigned?

15

A.

Uhm, for the lower enlisted I guess it’s assigned by the

16

And you were roommate that whole time?

first sergeant.

17

Q.

Okay.

18

A.

No, ma'am.

19

Q.

Was the accused in theater for the entire deployment?

20

A.

Other than his leave, yes, ma'am.

21

Q.

And do you remember when he went on leave?

22

A.

Yes, ma'am.

23

So you didn’t choose your roommate?

From the middle of January to I don't know

exactly when he came back because I went two weeks after he left.

7526

11072

1
2

Q.

How long is the amount usually, or how long were you usually

on leave?

3

A.

4

Q.

Any travel time in there, too?

5

A.

Yes, ma'am, travel time is added to that.

6

Q.

So do you know approximately when he returned?

7

A.

No, I do not.

8

Q.

And when did you say you left?

9

A.

I left the end of January.

10

Q.

And he wasn't back yet?

11

A.

No, ma'am.

12

Q.

And when did you come back?

13

A.

I came back the beginning -- the first week of March.

14

Q.

So you were gone for the entire month of February and into

15

Usually for two weeks.

March?

16

A.

Yes, ma'am. I got stuck in Kuwait on the way back.

17

Q.

Was the accused there when you returned?

18

A.

Yes, ma'am, he was.

19

Q.

What kind of -- where did you sleep when you were in Iraq?

20

A.

I slept in a CHU.

21

Q.

What's that?

22

A.

It's like a basically like a trailer divided into three

23

rooms.

7527

11073

1

Q.

How did you divide your room with PFC Manning?

2

A.

Our room was divided, my bed was by the door and his bed

3

was by the back wall.

4

stuff on separate sides.

5
6

Q.

We had two night stands, and basically our

Were you generally familiar with your roommate's belongings

while you were -- that he kept in the CHU?

7

A.

I'd say familiar at least what was in there.

8

Q.

And what kind of, do you remember what kind of -- do you

9

remember what kind of computer equipment he had?

10

A.

Yes, ma'am.

11

Q.

And what was it?

12

A.

He had a Mac Book Pro, a hard drive, I remember an iPod

13

Touch, and a microphone with some headphones.

14

Q.

And you remember seeing all those in your room?

15

A.

Yes, ma'am.

16

Q.

Was that for the entire deployment?

17

A.

I'd say the hard drive I can't remember being there

18

afterwards.

19

Q.

After what?

20

A.

After his block leave.

21

Q.

Okay.

22

A.

Yes, ma'am.

23

Q.

And that was from November to May?

You remember the Mac Book there?

7528

11074

1

A.

Yes, ma'am.

2

Q.

Was there any -- Did your roommate keep any digital media

3

in the CHU?

4

A.

I remember like the CDs laying around.

5

Q.

What kind of CDs?

6

A.

Like the blank CDs, like the standard CDs you'd get from

7

your unit supply.

8

Q.

And how many did he have around?

9

A.

I'd say about two cases.

10

Q.

How many are in a case?

11

A.

Usually five.

12

Q.

And do you remember any particular time that you noticed

13

those CDs around?

14

A.

I don't remember the exact time that I noticed it.

15

Q.

Were any of them labeled?

16

A.

No, ma'am.

17

Q.

And where were they -- Where were they usually kept or

18

where were they kept?

19

A.

I think by the time I noticed them they were on like the

20

night stand.

21

Q.

Did you ever use any of these discs?

22

A.

No, ma'am, I didn't.

7529

11075

1
2

Q.

And did you ever ask your roommate why he had so many of

these rewritable discs?

3

A.

Yes, ma'am, I did.

4

Q.

Why did you ask him that?

5

A.

I just thought it was a little weird because he had an iPod

6

and so I was kind of confused.

7

Q.

What did he say when you asked him that?

8

A.

He said they were to bring music into the SCIF because he

9

couldn't take his iPod in there.

10

Q.

Did you ever have any blank CDs in the CHU?

11

A.

No.

12

Q.

And did you ever see any blank CDs in the CHU marked

13

Secret?

14

A.

No, ma'am.

15

Q.

Did you ever bring anything in the CHU marked Secret?

16

A.

No, ma'am.

17

Q.

And you mentioned a Mac Book Pro.

18
19
20

Where did you say or did

you say where he kept his laptop?
A.

No, ma'am.

His laptop was beside his bed on the, I guess

on a laptop stand facing his bed.

21

Q.

Did you ever use that laptop?

22

A.

No, ma'am.

23

Q.

How often was that laptop in your room?

7530

11076

1
2

A.

I'd say every day from the time -- from November from when

I was there until May.

3

Q.

Did you ever see your roommate using it?

4

A.

Yes, ma'am.

5

Q.

How often did he use it?

6

A.

Pretty much daily.

7

Q.

And were you two on the same shift?

8

A.

Before both of us had went on our block leave we were on

9

the same shift.

10

Q.

And how about after?

11

A.

After it got changed up a little bit.

12

Q.

So how did you know that he used it daily?

13

A.

Because beforehand we'd be on the same shift, pretty much

14

use it I guess until he was going to sleep, and I'd say a few times

15

like I'd wake up and he'd still be on it.

16

Q.

Did you ever see what he was doing on that computer?

17

A.

No, ma'am.

18

Q.

What did your roommate do in his spare time?

19

A.

Used his computer, asked me to go to the AAFES trailer,

20

usually I see him sometimes at the smoke pit.

21

Q.

Did your roommate send a lot of packages?

22

A.

I wouldn't say sending a lot like -- how do you mean,

23

ma'am, send a lot?

7531

11077

1
2

Q.

Was there ever a time when you noticed that he sent

numerous packages?

3

A.

Yes, ma'am. It was only once though.

4

Q.

Okay.

5

A.

I don't remember how many he sent.

6

Q.

Less than five?

7

A.

Yeah, I'd say probably about less than five.

8

Q.

And do you remember when that was?

9

A.

The end of April.

10

Q.

How do you remember that?

11

A.

Because everybody thought we were going home kind of early,

12

So one time.

How many did you notice?

usually everybody will send packages around the same time.

13

Q.

Did you ever see any books about computers in your room?

14

A.

Not until after his belongings were taken out of the room.

15

Q.

Okay.

16

A.

Yes, ma'am.

17

Q.

Were they, they were his books?

18

A.

I'd assume so.

19

Q.

Were they yours?

20

A.

No, ma'am.

21

Q.

Were they in your room?

22

A.

Yes, ma'am.

23

Q.

What kind of books did you see?

Were they -- so you did see books?

7532

11078

1

A.

Like Net Plus, C Plus and like Linux.

2

Q.

And what are those, do you know?

3

A.

Like hardware and software books.

4

Q.

When were you first contacted by CID for this particular

6

A.

I guess the day they came and searched our room.

7

Q.

Can you tell us about that?

8

A.

Yes, ma'am.

5

9

case?

They came, they asked me to point out like

which side was mine, what stuff was mine and what stuff was not mine.

10

Q.

And what did you tell them?

11

A.

I told them everything on the left side of the room, on the

12

left -- to on the left -- on the left of the night stand was mine,

13

and everything on the right side was his.

14

Q.

Did the agents take any of your property?

15

A.

No, ma'am, they didn't.

16

CDC[MR. COOMBS]:

Your Honor, at this point the defense would

17

stipulate that the items seized by the agents were my client's items

18

and not the witness's items.

19

MJ:

20

ATC[CPT OVERGAARD]: Can I have a -- Can we have a quick recess

21
22
23

All right.

in place?
MJ:

Certainly.

[There was a pause in the proceedings.]

7533

11079

1

ATC[CPT OVERGAARD]: No further questions, ma'am.
Thank you.

2
3

MJ: All right.

4

CDC[MR. COOMBS]:

Cross-examination.
Yes, Your Honor.
CROSS-EXAMINATION

5
6

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

7

Q.

Specialist Baker, how are you?

8

A.

I'm doing all right, sir.

9

Q.

Good.

I just have a few questions for you.

You indicated

10

that you were one of the last individuals to leave Kuwait and then

11

get to Iraq.

12

A.

Yes, sir.

13

Q.

And when you arrived, you were also one of the last people

14

Is that correct?

to get a roommate?

15

A.

Yes, sir.

16

Q.

And at the time you were assigned by the first sergeant to

17

be PFC Manning's roommate?

18

A.

Yes, sir.

19

Q.

Because he was one of the last people who didn't have a

20
21

roommate?
A.

Yes, sir.

22

7534

11080

1
2

Q.

Now, even though you're roommates, it's fair to say that

you and PFC Manning weren't friends?

3

A.

Yes, sir, it's fair to say.

4

Q.

The two of you really didn't hang out?

5

A.

No, sir, we didn't.

6

Q.

Didn't have much in common?

7

A.

No, sir.

8

Q.

And the two of you really didn't talk very much?

9

A.

No, sir.

10

Q.

You talked about some of the observations on direct of

11

seeing where PFC Manning would go and what he would do.

Is it fair

12

to say that you didn't really see him hang out with too many people?

13

A.

No, sir, I didn't.

14

Q.

In fact, if he wasn't in his room on the computer, he was

15

in the smoke pit.

Is that correct?

16

A.

Yes, sir, I would say that.

17

Q.

And when he was in the smoke pit he was by himself?

18

A.

Yes, sir, he was.

19

Q.

And if he wasn't in the smoke pit or on his computer in his

20

room, he was going to the PX, right?

21

A.

Yes, sir.

22

Q.

And, again, going by himself?

23

A.

Yes, sir.

7535

11081

1
2

Q.

You said a couple times that you would wake up and you

would see him on the computer?

3

A.

Yes, sir.

4

Q.

And he was essentially just typing?

5

A.

I don't remember exactly.

I mean sometimes I just assume

6

like he was chatting with somebody, so I just really didn't pay

7

attention.

8
9

Q.

So you saw him, what you thought was he was chatting with

somebody?

10

A.

Yes, sir.

11

Q.

And from your observations, PFC Manning seemed to spend most

12

of his time on the computer?

13

A.

Yes, sir.

14

Q.

That seemed to be the main source of friendship that he had

15

there?

16

A.

Yes, sir.

17

Q.

You talked about some items being sent back in April.

18

that correct?

19

A.

Yes, sir.

20

Q.

And that was basically because everyone kind of thought

21
22

maybe we're going to go back in April, right?
A.

Yes, sir.

7536

Is

11082

1
2

Q.

And people, not uncommon to pack up items you don't want to

lug all the way back with you, you want to ship them back?

3

A.

Yes, sir.

4

CDC[MR. COOMBS]:

5

MJ:

6

ATC[CPT OVERGAARD]: No, ma'am.

7

MJ:

8

ATC[CPT OVERGAARD]: Temporary, ma'am.

9

MJ:

Thank you, Specialist Baker.

Redirect?

Temporary or permanent excusal?

All right.

10

[The witness was temporarily excused, duly warned, and withdrew from

11

the courtroom.]

12

MJ:

For the record, although the government asked for a recess

13

in place the court never recessed the court so I never called the

14

called the court back to order.

15
16

ATC[CPT OVERGAARD]: Your Honor, at this time the United States
has a stipulation of expected testimony of Sergeant Mary Amiatu.

17

MJ: All right.

Do you want to publish it?

18

ATC[CPT OVERGAARD]: Yes, ma'am.

19

MJ:

20

ATC[CPT OVERGAARD]: It is hereby agreed by the accused, defense

21

counsel, and trial counsel that if Sergeant Mary Amiatu were present

22

to testify during the merits and presentencing phases of this court-

23

martial she would testify substantially as follows:

Go ahead.

7537

11083

1

I am currently the S-1 NCO for the 6th Engineer Battalion at Fort

2

Richardson, Alaska.

3

Previously I was the Strength Accounting Clerk for U.S. Army Central

4

Command, G1 at Camp Arifjan, Kuwait.

5

October of 2011 until October of 2012.

6

account for personnel coming in and out of theater, moving from place

7

to place within theater and changing duty status.

8

management update briefs and worked with the Deployed Theater

9

Accounting System, DTAS.

10

I've held this position for two months.

I held that position from
In that position I helped

I provided battle

I also worked with the Joint Asset Movement

Management System, JAMMS.

11

With regard to this particular investigation, I provided

12

investigators from the Army Criminal Investigation Command, CID, a

13

printout from JAMMS on PFC Manning.

14

movement and location information about operating forces, government

15

civil servants, and government contractors through data collection

16

points established in specified operational theaters.

17

collection points are, for example, dining facilities, points of

18

debarkation, and fuel points. Operational theaters include Kuwait,

19

Afghanistan and Iraq.

20

which PFC Manning scanned himself in and out of the Department of

21

Defense, DoD, facilities using his CAC card such as dining

22

facilities, DFACs, and points of debarkation into and out of Iraq,

23

APOD/SPOD.

JAMMS is a system that captures

These

As such, JAMMS would capture the dates on

When providing this report I also signed and notarized an

7538

11084

1

attestation certificate identified as Bates Number 00412522 regarding

2

the authenticity of the information.
As a former Strength Accounting Clerk I am familiar with

3
4

JAMMS reports.

I've read them before.

I therefore understand this

5

JAMMS report I provided identified as Bates numbers 00412523, through

6

00412532 to show that the Servicemember named Manning, Bradley, whose

7

last four Social Security digits are 9504 came into and out of Iraq

8

several times.

9

on 26 October 2010, PFC Manning signed into the DFAC on Camp Beuring

For example, on Page 9 of this document it shows that

10

in Kuwait, but by 28 October 2010 was using the DFAC in Iraq.

11

shows Bradley Manning departed Iraq on 28 January 2010, and then

12

entered again via Kuwait on 11 February 2010.
I'm going to repeat that sentence, ma'am, in case I read it

13
14
15

Page 8

wrong.
Page 8 shows Bradley Manning departed Iraq on 22 January

16

2010, and then departed again via Kuwait on 11 February 2010.

Gaps

17

like this are normal when a Soldier leaves a deployed environment

18

such as for mid-tour leave.

19

was using the FOB Hammer by 14 February 2010.

20

Lastly, page one showed that PFC Manning boarded an outbound flight

21

from Iraq on 30 May 2010.

Page 8 shows further that PFC Manning

7539

11085

And based on this stipulation, the government would like to

1
2

offer what's been marked for Identification -- as PE 22 for

3

Identification PE 22, ma'am.

4

ADC[MAJ HURLEY]:

5

MJ:

6

9
10

May I see it, please?

Prosecution Exhibit 22 for

Identification is admitted.
Government, are you ready to call your next witness or do

7
8

No objection, Your Honor.

we need a recess?
TC[MAJ FEIN]:

Your Honor, the United States requests a 15-

minute recess and a brief 802.

11

MJ:

All right.

12

CDC[MR. COOMBS]:

13

MJ:

Any objection?
No objection, Your Honor.

Court is in recess then until 1635 or 4:35.

14

[The court-martial recessed at 1626, 3 June 2013.]

15

[The court-martial was called to order at 1646, 3 June 2013.]

16

MJ:

Court is called to order.

Let the record reflect all

17

parties present when the court last recessed are again present in

18

court.

19
20
21
22
23

Is the government ready to proceed?
ATC[CPT MORROW]:

Yes, Your Honor.

Stipulation of Expected

Testimony for Special Agent Calder Robertson.
It is hereby agreed by the accused, defense counsel, and
trial counsel that if Special Agent Calder Robertson were present to

7540

11086

1

testify during the merits and presentencing phases of this court-

2

martial he would testify substantially as follows:

3
4
5

I am a Special Agent for the Computer Crime Investigative
Unit, CCIU, of the U.S. Army Criminal Investigation Command, CID.
I have been with CCIU since March 2006.

In February 2010 I

6

became the Special Agent in Charge, S-A-C, of the Europe brand --

7

Europe Branch Office of CCIU.

8

responsible for conducting and overseeing the conduct of large-scale

9

complex criminal investigations associated with high technology,

In my current capacity I am

10

including insider threat and computer intrusions into the critical

11

information architecture of the United States Army.

12

Among other things, this work includes conducting

13

interviews, executing search warrants, processing crime scenes,

14

collecting and handling physical evidence, obtaining forensic images

15

of digital evidence, conducting forensic examinations and preparing

16

comprehensive reports for supported officials and prosecutors.

17

I have testified several times in judicial proceedings.

18

Because I am in charge of the Europe Branch Office of CCIU, I have

19

responsibility for investigating cybercrime incidents in Europe and

20

Africa as well as providing rapid response to southwest Asia, Iraq

21

and Afghanistan.

22
23

Additionally, I was recently selected to establish the
Pacific branch office of CCIU with responsibility for investigating

7541

11087

1

U.S. Army cybercrime in the Pacific Area of Operation.

In April 1998

2

to November of 2003 I held a variety of other positions within CID

3

and was responsible for investigating criminal offenses with an Army

4

nexus.

5

I received a bachelor's of science, BS, in psychology in

6

2006 and have been a certified computer crime investigator through

7

the Defense Cyber Crime Center, DC3, since 2007.

8

awarded the U.S. Army Achievement Medal for distinguished civilian

9

service as a civilian special agent for Army CID.

10

In 2010 I was

I received

numerous other awards in my civilian and military capacities.
I have received extensive training from the Defense Cyber

11
12

Investigation Training Academy, DCITA, D-C-I-T-A, which is part of

13

DC3.

14

my current work:

15

Electronics Forensics Training, 2008; Advanced Log Analysis, 2008;

16

Forensics and Intrusions in a Windows Environment, 2007; Macintosh

17

Forensic Examinations, 2007; Wireless Technology, 2007; Windows

18

Forensic Examinations with EnCase, 2007; Introduction to Networks and

19

Computer Hardware, 2006; and Introduction to Computer Search and

20

Seizure, 1999.

Through DCITA I have attended the following courses relevant to
Live Network Investigations, 2009; Mobile

21

Additionally, I attended Computer Forensics 2 with EnCase

22

in 2009, a course put on by Guidant Software, the makers of EnCase.

23

In 2011 I also attended DCITAs Large Data Set Acquisition Course as

7542

11088

1

well as the Army Criminal Investigation Laboratory's Evidence

2

Management Certification Course.

3

collection and handling of physical and digital evidence.

These courses focus on the

On 27 May 2010, I became involved with the investigation of

4
5

PFC Bradley Manning after receiving preliminary information on

6

misconduct that required downrange investigation.

7

Special Agent in Charge of the Europe Branch Office of CCIU and the

8

closest CCIU agent to Iraq, I was tasked by CCIU Headquarters then at

9

Fort Belvoir, Virginia to provide support to the Camp Liberty CID

As the S-A-C,

10

Office.

I traveled to Camp Liberty in Baghdad and stayed there for

11

three days at the end of May 2010.

12

at that time it was too dangerous to travel to FOB Hammer, F-O-B

13

Hammer.

14

crime scene on FOB Hammer had sufficient personnel to complete their

15

mission such that my physical presence was unnecessary.

16

the investigation was to assess and provide expert assistance with

17

the collection, preservation and the imaging of computer evidence, as

18

well as to perform preliminary analysis of the digital evidence.

19

preliminary forensic examination is a brief review taking no more

20

than a couple of hours, whereas a full forensic examination may take

21

anywhere from an entire day to several -- several -- several weeks

22

depending on the amount of recoverable information.

I stayed at Camp Liberty because

Additionally, the evidence collection team already at the

7543

My role in

A

11089

1

I conducted preliminary forensic examinations on a number

2

of items of evidence seized in this case.

3

FOB Hammer and delivered to me at Camp Liberty included two supply

4

annex computers, a re-writable CD, an Apple brand personal laptop, an

5

external hard disk drive and three Sensitive Compartmented

6

Information facility, SCIF, computers.

7

Evidence collected from

I follow several general procedures when handling evidence.

8

I review the custody document and always insure that the description

9

of the evidence matches the evidence attached.

I check, for example,

10

the recorded serial numbers, markings for identification, and

11

condition description match the associated evidence.

12

the necessary information such as date and time are properly and

13

accurately recorded.

14

evidence prior to transferring it to another individual.

15

to following these procedures, when transferring to or receiving

16

evidence from another person I am also sure to properly sign, date

17

and note the reason for the transfer.

18

I insure that

Lastly, I maintain secure custody of the
In addition

With regard to each item of physical evidence I received in

19

this case, I followed these same procedures.

20

computers I also checked to insure they did not can contain any

21

suspicious hardware or removable data storage devices such as SD

22

cards and thumb drives.

7544

When receiving whole

11090

Prior to powering on or accessing the contents of any

1
2

device I image each item of physical evidence I received in order to

3

preserve the contents of the data on the item.

4

on an item of digital media is an exact bit for bit copy of the data

5

on the digital media.

6

data on the device can be forensically examined without manipulating

7

the data contained on the original evidence.

8

practice by digital forensic examiners.

9

examiners use to image the digital evidence has built in procedures

If a forensic image

I image these items of evidence so that the

This is standard

The software forensic

10

to verify that the item has been successfully duplicated.

For

11

example, the program will note the MD5, that's Mike Delta five hash,

12

or Secure Hash Algorithm 1, SHA1, hash value of an item of digital

13

evidence before imaging acquisition hash value and after imaging the

14

item verification hash value. If the two hash values match, the item

15

has been successfully duplicated bit for bit.

16

determined by mathematical algorithm and is displayed as a number

17

letter identifier unique to every item of electronically stored

18

information.

19

unique.

20

have a hash value as well as each individual file on the hard drive.

21

If there is any alteration to the hard drive or to any file on the

22

hard drive, the acquisition and verification hash values will not

23

match.

The hash value is

It is similar to a digital fingerprint, although more

When the hash value is generated, the entire hard drive will

The alteration can be as small as adding a single space into

7545

11091

1

a text document, or saving a file in a different format, i.e., saving

2

a .Doc as a .PDF.

3

complete this imaging process.

4

used by digital forensic examination -- examiners.

5

earlier, I have received training on EnCase forensic software and

6

have used it in my other cases involving digital forensic

7

examinations.

8

of the evidence at issue in this case.

In this case I used EnCase forensic software to
EnCase forensic software is widely
As I stated

I encountered no errors while conducting the imaging

Between 30 May 2010 and 1 June 2010, I processed the

9
10

following items of physical evidence:

I processed a Hitachi brand

11

laptop computer with the serial number 070817DP0C10DSG2J1DP, which

12

was collected from the supply office or annex, 2nd Brigade Combat

13

Team 10th Mountain Division, FOB Hammer, Iraq.

14

marked Unclassified and was seized because PFC Manning had

15

temporarily worked in the supply office in May 2010 and used this

16

computer.

17

I followed proper evidence handling procedures to receive and handle

18

this evidence and made sure the evidence matched its noted

19

description before beginning work.

20

this computer and obtained an EnCase forensic image of the hard drive

21

contained within this computer.

22

the SHA1 hash value of 309DF99F068FBA2E81AAE03DLA93D471CDE90BF0 was

23

verified to be an exact bit for bit copy of the hard drive through a

This computer was

I received this evidence from Special Agent Thomas Smith.

Upon taking possession I unsealed

The resulting forensic image with

7546

11092

1

comparison of the acquisition and verification hash values.

2

not examine this image further.

3

for this case.

4

DN073-10.

I reviewed DN073-10 in preparation

This item's forensic image is located on Item 1 of

I know this because I collected item one as evidence.
B.

5

I did

I processed a Seagate brand computer hard drive with

6

the serial number CN-0MN922-21232-793-002L2 which was collected from

7

the supply office annex, 2nd Brigade Combat Team, 10th Mountain

8

Division, FOB Hammer, Iraq.

9

SIPRNET and the hard drive was seized because PFC Manning had

This computer was collected to the

10

temporarily worked in the supply office in May 2010 and used this

11

computer.

12

followed proper evidence handling procedures to receive and handle

13

this evidence and made sure the evidence matched its noted

14

description before beginning work. Upon taking possession I unsealed

15

this hard drive and obtained an EnCase forensic image of the hard

16

drive.

17

CF6D703F0023773EB9E30EEB318660AC0D18F404 was verified to be an exact

18

bit for bit copy of the hard drive through a comparison of the

19

acquisition and verification hash values.

20

image further.

21

This item's forensic image is located on Item 2 of DN-073-10.

22

this because I collected Item 2 as evidence.

I received this evidence from Special Agent Smith.

I

The resulting forensic image with the SHA1 hash value of

I did not examine this

I reviewed DN-073-10 in preparation for this case.

7547

I know

11093

C.

1

I processed a rewritable compact disk CD-RW with the

2

serial number LD623MJ04184038B16 which was collected from the

3

quarters of PFC Manning, Room 4C93, LSA Dragon, FOB Hammer, Iraq.

4

CD-RW is different from a commercially produced CD with content

5

already loaded on to it, i.e., from a music store, because a CD-RW

6

allows the user to write content to the CD along with edit and delete

7

information on the CD.

8

labeled, “12 July, JUL, 07, CZ, Engagement Zone, 30 GC”.

9

was collected with three Arabic language CDs in a multi disk case.

A

This CD-RW had a Secret sticker on it and was
This CD-RW
I

10

received this evidence from Special Agent Smith.

I followed proper

11

evidence handling procedures to receive and handle this evidence and

12

made sure the evidence matched its noted description before beginning

13

work.

14

an EnCase forensic image of the aforementioned CD-RW.

15

forensic image with the MD5 hash value of

16

5C993EE621B036482BAE1353F844322F was verified to be an exact bit for

17

bit copy of the CD-RW through a comparison of the acquisition and

18

verification hash values.

19

preliminary forensic examination of this image.

20

two files with identical names. One file contained no data and the

21

other file, 12GUL07CG21 Engagement Zone 30GC contained a video.

22

video appeared to have been burned to the disk on 27 April 2010 using

23

Macintosh disk creation software.

Upon taking possession I unsealed the multi disk case and took
The resulting

After imaging this CD-RW, I conducted a

7548

The CD-RW contained

The

I reviewed DN073-10 in preparation

11094

1

for this case.

2

DN073-10.

3

This item's forensic image is located on Item 2 of

I know this because I collected Item 2 as evidence.
D.

I processed an Apple brand laptop computer with the

4

serial number W8939AZ066E which was collected from the quarters of

5

PFC Manning, Room 4C93, LSA Dragon, FOB Hammer, Iraq.

6

this evidence from Special Agent Smith.

7

handling procedures through and received this evidence and made sure

8

the evidence matched its noted description before beginning work.

9

Upon taking possession, I unsealed the Macintosh computer and removed

I received

I followed proper evidence

10

a Fujitsu brand hard drive from the laptop and obtained an EnCase

11

forensic image of the hard drive.

12

drive was K94DT9829WPY.

13

drive I obtained from this computer with the SHA1 hash value of

14

3CF107DB8B3865A5E2BFCE400BAE1DA9691FB49 was verified to be an exact

15

bit for bit copy of the hard drive through a comparison of

16

acquisition and verification hash values. Thereafter, I conducted a

17

preliminary forensic examination of this image.

18

the hard drive had a Macintosh operating system installed and had a

19

user account resembling PFC Manning's name, although I did not note

20

the machine's user name in my analyst investigative report, AIR.

21

review of the device logs contained on the hard drive revealed some

22

form of optical disk IE:

23

deleting or burning CD-RW on or around 27 April 2010.

The serial number of the hard

The resulting forensic image of the hard

I determined that

CD-RW drive activity occurred, like

7549

I also

A

11095

1

reviewed the user files associated with the account resembling PFC

2

Manning's name and located several names containing text that was

3

specifically referenced in the chat logs received by US Army CID

4

during the initial phases of the investigation.

5

specifically note which text was referenced in the chat logs in my

6

AIR.

7

forensic image is located on Item 1 of DN073-1010.

8

because I collected Item 1 as evidence.

I reviewed DN073-10 in preparation for this case. This item's

E.

9

Though I did not

I know this

I processed a Seagate brand external hard disk drive,

10

HDD, with the serial number 2GEWJKLJ, which was collected from the

11

quarters of PFC Manning, Room 4C93, LSA Dragon, FOB Hammer, Iraq.

12

received this evidence from Special Agent Smith.

13

evidence handling procedures to receive and handle this evidence and

14

made sure the evidence matched its noted description before beginning

15

work.

16

case and further removed the internal hard disk drive, also Seagate

17

brand, serial number 9BS-1S-2TZ.

18

adapter that could safely and reliably power the Seagate external

19

hard disc drive.

20

internal Seagate drive with the SHA1 hash value of

21

151183463C5B5841A8115627BF51E8D9E74ABB48.

22

was verified to be an exact bit for bit copy of the Seagate hard disk

23

drive through a comparison of the acquisition and verification hash

I

I followed proper

Upon taking possession I unsealed the external hard disk drive

Because I did not have a power

I then obtained an EnCase forensic image of the

7550

Resulting forensic image

11096

1

values.

After imaging the Seagate hard disk drive I conducted a

2

preliminary forensic investigation of this image.

3

containing the contact information of a member of the WikiLeaks team,

4

Mr. Julian Assange.

5

produced and released by the WikiLeaks team and did not appear to be

6

of a personal nature.

7

case.

8

I know this because I collected item one as evidence.

I found a file

This contact information appeared to have been

I reviewed DN073-10 in preparation for this

This item's forensic image is located on Item 1 of DN073-10.

I processed an Alienware brand laptop computer with the

9
10

serial number NKD900TA6D00661 which was collected from the Sensitive

11

Compartmented Information Facility, SCIF, of the 2nd Brigade Combat

12

Team, 10th Mountain Division, FOB Hammer, Iraq. This computer was

13

connected to the SIPRNET and the hard drive was seized because PFC

14

Manning had worked in the SCIF in

15

used this computer.

16

Smith.

17

handle this evidence and made sure the evidence matched its noted

18

description before beginning work.

19

the Alienware laptop computer, removed the Seagate brand hard drive

20

from the laptop and obtained an EnCase forensic image of the hard

21

drive. The serial number of the hard drive was 3MH036M1.

22

resulting forensic image of the hard drive I obtained from this

23

computer with the SHA1 hash value of

November of 2009 to May 2010 and

I received this evidence from Special Agent

I followed proper evidence handling procedures to receive and

7551

Upon taking possession I unsealed

The

11097

1

C7400FBED0B4DB68A582A585EEAA34AB1A62CD64 was verified to be an exact

2

bit for bit copy of the hard drive through a comparison of the

3

acquisition and verification hash values.

4

preliminary forensic examination of this image. I determined that PFC

5

Manning had a user account on this laptop.

6

interest to this investigation including copies of the Apache video

7

made publicly available by WikiLeaks and called collateral murder.

8

also found an archive file that contained approximately 11,000

9

sensitive and classified documents downloaded in hypertext markup

Thereafter, I conducted a

I found several items of

10

languages, HTML format.

11

reviewed DN-073-10 in preparation for this case.

This item's

12

forensic image is located on Item 2 of DN073-10.

I know this because

13

I collected Item 2 as evidence.

14

Though I did not note the exact number.

I

I

I processed a Dell brand laptop computer with the serial

15

number HLBJQF1 which was collected from the Sensitive Compartmented

16

Information Facility, SCIF, of the 2nd Brigade Combat Team, 10th

17

Mountain Division, FOB Hammer.

18

SIPRNET and was seized because PFC Manning had worked in the SCIF in

19

November 2009 to May 2010 and used this computer.

20

evidence from Special Agent Smith.

21

handling procedures to receive and handle this evidence and made sure

22

the evidence matched its noted description before beginning work.

23

Upon taking possession, I unsealed the Dell laptop computer, removed

This computer was connected in the

7552

I received this

I followed proper evidence

11098

1

an unknown brand hard drive from the laptop and obtained an EnCase

2

forensic image of the hard drive.

3

drive was 5MH0HWK9.

4

obtained from this computer with the SHA1 hash value of

5

C3473C3DF1D131E0022F0C56BSC46087E9D5150F was verified to be an exact

6

bit for bit copy of the hard drive through a comparison of the

7

acquisition and verification hash values.

8

preliminary forensic examination of this image.

9

PFC Manning had a user account on this laptop computer.

The serial number of the hard

The resulting forensic image of the hard drive I

10

DN073-10 in preparation for this case.

11

located on Item 2 of DN073-10.

12

2 as evidence.

13

Thereafter, I conducted a
I determined that
I reviewed

This item's forensic image is

I know this because I collected Item

I processed a Dell brand laptop computer with the serial

14

number 93H4QD1 which was collected from the Sensitive Compartmented

15

Information Facility, SCIF, of the 2nd Brigade Combat Team, 10th

16

Mountain Division, FOB Hammer Iraq.

17

located near the work area of PFC Manning.

18

from Special Agent Smith.

19

procedures to receive and handle this evidence and made sure the

20

evidence matched its noted description before begin beginning work.

21

Upon taking possession I unsealed the Dell laptop computer, removed

22

an unknown brand hard drive from the laptop and obtained an EnCase

23

forensic image of the hard drive.

This NIPR net laptop had been
I received this evidence

I followed proper evidence handling

7553

The serial number of the hard

11099

1

drive was 5MH0TB78.

2

obtained from this computer with the SHA1 hash value of

3

E2B49BD3ED0E2F5D798AB44FEBAAC3B15D0070DE was verified to be an exact

4

bit for bit copy of the hard drive through a comparison of the

5

acquisition and verification hash values.

6

image further.

7

This item's forensic image is located on Item 1 of DN0973-2.

8

this because I collected item one as evidence.

9

The resulting forensic image of the hard drive I

I did not examine this

I reviewed DN073-10 in preparation for this case.
I know

As I stated earlier, I used the EnCase forensic software to

10

obtain images of each item of evidence I processed. In this case, I

11

attached each device except the CD-RW to a write blocker and then

12

attached the write blocker to my laptop computer which had the EnCase

13

forensic software loaded.

14

you to acquire information on an item of digital media without

15

accidentally damaging or the contents of the original digital media.

16

In short, the write blocker insures that none of the original data on

17

the item of evidence is manipulated in any way.

18

write blocker when processing the CD -- CD-RW as that device was not

19

at risk of alteration.

20

specific instructions to do so.

21

issued such instructions, there was no need to use a write blocker

22

with regards to the CD-RW.

23

appropriate, I then used EnCase to create a forensic image of each

A write blocker is a device that allows

I did not use the

Computers do not alter data on CD-RWs without
As I neither intended nor actually

After securing the write blocker as

7554

11100

1

item.

2

that is later compared to the verification hash value once the item -

3

- once the image has been created.

4

each device I processed on to sterile hard drives.

5

transferred these forensic images to the hard drives recorded as

6

Items 1 and 2 on DN073-10. The forensic image is not altered by being

7

transferred between storage devices.

8

image in EnCase, EnCase itself verifies that the forensic image is a

9

true copy.

10

As I stated earlier, EnCase creates an acquisition hash value

I saved the forensic images of
I later

When you open the forensic

Item 1 of DN073-10, serial number 9VS-25G5M, is a Seagate

11

brand hard disk drive containing the individual forensic images of

12

the devices listed above that were initially determined to be

13

Unclassified.

14

Seagate brand hard disk drive containing the individual forensic

15

images of the devices listed above that were initially determined to

16

be classified Secret.

Item 2 of DN073-10, serial number 5BG1826C, is a

17

On 5 June 2010, I collected Items 1 and 2 as evidence

18

because I had previously transferred the forensic images of the

19

various devices I processed to these two hard disk drives.

I

20

collected this evidence at the CID office on Camp Liberty.

I did

21

this to consolidate the evidence I processed for ease of review by

22

subsequent forensic examiners.

23

forensic computer practices in the forensic community.

This process is consistent with best

7555

It is common

11101

1

for investigators to consolidate the forensic images of multiple

2

devices on one hard drive and then collect the resulting hard drive

3

as evidence.

4

transferred custody of this evidence to Special Agent Jeremy Drews.

After I collected Items 1 and 2 as evidence, I

During the above forensic examinations I recorded my notes,

5
6

including my description of the evidence and their associated hash

7

values on a AIR dated 5 June 2010, and marked for this court-martial

8

with Bates Numbers 00121674 through 00021683.

9

the evidence I transferred to Special Agent Drews.

This AIR accompanied
The Prosecution

10

Exhibit 11 for Identification is a Seagate brand hard disk drive with

11

a serial number 9BS-25G5M, Item 1 of DN073-10.

12

12 for Identification is a Seagate brand hard disk drive with serial

13

number 5BG1826C, Item 2 of DN073-10.

14

Prosecution Exhibit

TC[MAJ FEIN]: May we have a moment, Your Honor?

Ma’am, just to

15

save seven pages worth of stipulation being read onto the record, on

16

Page 5 of the written stipulation, Your Honor, serial number was

17

given for the Dell brand laptop computer with the serial number

18

HLVJQF1, and of the enclosed hard drive the serial number had it

19

numbers transposed.

20

Agent Robertson’s proffer of testimony is 5MH0HWKN.

21
22
23

MJ:

The actual serial number according to Special

Does the written stipulation of expected testimony that’s

been already admitted, have the proper serial numbers?
TC[MAJ FEIN]:

It does, Your Honor.

7556

11102

1

MJ:

Government, anything further?

2

TC[MAJ FEIN]:

Yes, Your Honor, the United States moves to admit

3

Prosecution Exhibit 11 for Identification and Prosecution Exhibit 12

4

for Identification.

5

MJ:

Those are the two hard drives ----

6

TC[MAJ FEIN]:

7

MJ:

---- represented in the stipulation?

8

MJ:

Any objection?

9

CDC[MR. COOMBS]:

10

MJ:

Yes, ma'am.

No, ma'am.

Prosecution Exhibits 11 and 12 for Identification are

11

admitted. And I'm going to hand these back to the court reporter.

12

All right.

13

with today?

14

R.C.M. 802 conference and I believe it was the understanding of the

15

parties that the next witness might be lengthy so starting him today

16

was not be a good idea.

17

TC[MAJ FEIN]:

18

Does the government have anything further to go forward
We spoke earlier, the parties came back for a brief

Yes, ma’am.

Special Agent Shaver tomorrow morning first thing.

19

MJ:

20

CDC[MR. COOMBS]:

21

MJ:

22
23

The United States intends to call

All right.

Okay.

Any objection?
No, Your Honor.

Is there anything we need to address now before we

recess the court?
TC[MAJ FEIN]:

No, Your Honor.

7557

11103

1

CDC[MR. COOMBS]:

2

MJ:

No, Your Honor.

I do want to say something, there was some testimony

3

elicited based on my questions from one of the earlier witnesses on

4

something that I had ruled that I would instruct the members not to

5

consider.

I not going to consider it either just for the record.

6

TC[MAJ FEIN]:

Yes, ma'am.

7

MJ:

8

CDC[MR. COOMBS]: Yes, Your Honor.

9

TC[MAJ FEIN]:

Do both sides know what I'm talking about?

Yes, Your Honor.

10

MJ:

11

TC[MAJ FEIN]:

12

CDC[MR. COOMBS]:

13

MJ:

14
15

Anything else we need to address?
No, Your Honor.
No, Your Honor.

Court is in recess.

[The court-martial recessed at 1719, 3 June 2013.]
[END OF PAGE]

7558

11104

1
2

[The court-martial was called to order at 0938, 4 June 2013.]
MJ:

Trial Counsel, please account for parties.

3
4
5
6
7

Court is called to order.

TC[MAJ FEIN]:

Ma’am, all parties when the court last recessed

are again present with exception Captain Overgaard.
MJ:

Are there any issues we need to address before we proceed

today?

8

CDC[MR. COOMBS]:

No, Your Honor.

9

ATC[CPT MORROW]:

No, Your Honor.

10

MJ:

All right.

11

ATC[CPT MORROW]:

Government, call your next witness.
Special Agent David Shaver.

12

SPECIAL AGENT DAVID SHAVER, Civilian, was called as a witness for the

13

government, was sworn and testified as follows:
DIRECT EXAMINATION

14
15
16

Questions by the assistant trial counsel [CPT MORROW]:
Q.

You are Special Agent David Shaver, Senior Special Agent,

17

Special Inspector General for the Troubled Asset Relief Program,

18

United States Department of Treasury?

19

A.

Yes, sir.

20

Q.

Special Agent Shaver, how long have you worked for the

21

Treasury Department?

22

A.

For about a year now, sir.

23

Q.

What do you do for the Treasury Department?

7559

11105

1

A.

I’m a forensic examiner for them and a Special Agent.

2

Q.

And specifically, what kind of work do you do as a Special

3

Agent?
A.

4

Sir, my job mainly takes digital media, which has been

5

seized in a search warrant or is part of a search warrant or a

6

subpoena and turn it into usable format for the case agents of

7

SIGTARP.

8

Q.

Again, can you just explain for the Court what SIGTARP is?

9

A.

Sir, again, it’s a Special Inspector General for the

10

Troubled Asset Relief Program.

11

involved with the bail out from a few years ago.
Q.

12
13

Our main focus is investigating fraud

Before becoming a special agent with the Department of

Treasury, what did you do?
A.

14

Sir, I was the Special Agent in Charge for the Digital

15

Forensics and Research Branch of the Computer Crime Investigative

16

Unit.

17

Q.

What is the Digital Forensics and Research Branch?

18

A.

It's a unit of CCIU.

Our main focus -- excuse me, CCIU’s

19

focus is to investigate any intrusion into any Army computer

20

worldwide.

21

in support of that mission.

The DFRB’s focus was to conduct the forensic examinations

22

Q.

When did you begin working for Army CCIU?

23

A.

In 1999.

7560

11106

1
2
3

Q.

And can you describe your process throughout the

organization there.
A.

Yes, sir.

In 1999, I was assigned to CCIU as an enlisted

4

Special Agent with Army CID.

In 2001, I left the Army and in 2000 --

5

in early 2002, I came back to work for CCIU as a contractor, as a

6

digital forensic examiner.

7

Agent with Army CID.

In 2003, I became a civilian Special

8

Q.

And that was CCIU?

9

A.

Yes, sir, it was.

10

Q.

And when did you become the Special Agent in Charge?

11

A.

In 2005.

12

Q.

Is that a supervisory position?

13

A.

Yes, sir, it is.

14

Q.

How many people did you supervise?

15

A.

I directly supervised five, but I also had to support about

16
17
18
19

70 examiners worldwide.
Q.

Day-to-day, what kind of work did you do as the Special

Agent in Charge of the Digital Forensics Research Branch?
A.

I conducted forensic examinations in support of the CCIU

20

mission.

21

also did tool testing and validation.

22

Q.

I also developed policies, procedures, methodologies.

And what do you mean by tool validation?

7561

We

11107

A.

1

It’s concerning digital forensic tools.

We did things to

2

make sure our forensic program actually did what it was supposed to

3

do.

4

the findings.

Did it do anything it was not supposed to do.

We just validated

5

Q.

Do you have any formal education, Special Agent Shaver?

6

A.

Yes, sir, I do.

7

Q.

From where?

8

A.

Ohio University.

9

Q.

What was your major there?

10

A.

Sociology, Criminology.

11

Q.

Agent Shaver, I want to get a little more in depth into

I have a Bachelor of Arts.

12

your background into computer forensics.

13

computer forensics?

14
15

A.

First of all, what is

Sir, computer forensics is simply just the examination of

digital media.

16

Q.

What is digital media?

17

MJ:

Just a moment.

18

ADC[CPT TOOMAN]:

Your Honor, the defense would be willing to

19

stipulate that Special Agent Shaver is an expert in computer

20

forensics if it helps the process.

21

MJ:

All right.

Are you ----

7562

11108

1

ATC[CPT MORROW]:

Your Honor, we’re going to ask just a few

2

foundational questions just to explain some terms, but we’ll be

3

brief.

4
5

MJ:

All right.

That’s fine.

Thank you.

Questions continued by the assistant trial counsel [CPT MORROW]:

6

Q.

Special Agent Shaver, what is digital media?

7

A.

Digital media, sir, is just that, anything electronic such

8
9
10

as a cell phone, a computer, a server, a cell phone, an SD card.
Q.

And have you received any certification in digital

forensics?

11

A.

Yes, sir, I have.

12

Q.

What are those certifications?

13

A.

First one is the SCERS, which is the Seized Computer

14

Evidence Recovery Specialist from the Federal Law Enforcement

15

Training Center down in Glencoe, Georgia.

16

Crime Examiner from the Defense Cyber Crime Center, otherwise known

17

as DC3, in Linthicum, Maryland.

18

Guidance Software out of Pasadena, California.

19
20

Q.

The Certified Computer

The NCASE certified examiner from

Have you published any articles related to the field

computer forensics?

21

A.

Yes, sir, I have.

22

Q.

What is that?

What have you published?

7563

11109

1
2

A.

Sir, in 2009, I co-wrote a chapter concerning Windows

Forensics, in the Handbook of Digital Forensics Investigations.

3

Q.

Have you presented at any conferences in the field?

4

A.

Yes, sir, I have, several.

5

Q.

What are those conferences?

6

A.

The annual Department of Defense Cyber Crime Conference and

7

the Annual Guidance Software Conference.

8

Q.

Did you ever receive any awards as a result of your work?

9

A.

Yes, sir, I have.

10

Q.

What did you receive?

11

A.

In 2009, I received the August Vollmer Award for individual

12

contributions to forensic science from the International Associations

13

of Chiefs of Police.

14

Q.

What was that award for?

15

A.

It was for two parts, sir.

One was use of virtual machines

16

in criminal investigations, and I wrote a tool to examine Windows

17

computers to determine if they’re compromised.

18

Q.

Just briefly, what do you mean by virtual machine?

19

A.

Sir, a virtual machine is a -- in this case we would take a

20

forensic image and you would convert it into a machine, so your

21

computer would be considered the host and the virtual machine would

22

be considered the guest.

23

system, whether it be a MAC, Linux or Windows.

The guest computer can be any operating

7564

It would run on your

11110

1

machine.

2

or the person the computer.

3
4
5
6
7
8
9

Q.

The advantage of this is to see the computer as the subject

When you mean see the computer, the same desktop, and what

do you mean by that?
A.
programs.
Q.

Same desktop, same wallpaper, same program, their email
It is their computer.
Thank you.

It’s just in a virtual environment.

What is a forensic image?

I know you’ve said

that several times, just briefly for the Court, what is that?
A.

Forensic image is the term we use.

Technically computers

10

are a highly organized space, and at lowest level they are a binary

11

operating system.

12

that lowest level is either a one or a zero.

13

When I say a forensic image, what I mean is it’s a bit by bit

14

forensic image.

15

it’s a zero and it will write a zero.

16

read the one and write the one.

17

all the media has been copied.

Binary being two as a bicycle has two wheels.

And

That is called a bit.

The forensic tool will be the first bit, whether
The next bit is a one it will

It will continue to do this until

18

Q.

And you said a forensic tool.

19

A.

I used EnCase for this program.

20

Q.

After the EnCase reads a one, writes a one, reads a zero,

21

write a zero, what happens?

7565

What tool is that?

11111

1

A.

Sir, it does something called -- it’s called a verification

2

hash value and the -- you can think of a hash value as a digital

3

fingerprint.

4

Q.

And if two hash values match, what does that tell you?

5

A.

That they are the exact same thing.

6

Q.

And once you’ve verified the hash values, what’s the next

7
8
9
10
11
12

That’s the easiest way to associate it.

step in the process of examining a computer?
A.

If the hash values match, the next step would be to answer

the questions which has been posed by the case agent.
Q.

You’ve mentioned EnCase.

Briefly can you just describe

what EnCase is?
A.

EnCase is the -- basically the standard, most common used

13

forensic software on the market.

14

corporate entities.

It is used by both government and

15

Q.

And who owns EnCase?

16

A.

It’s a company called Guidance Software.

17
18
19
20

Again, they’re in

Pasadena, California.
Q.

Why do you use a tool like EnCase to examine or create

images and then examine images?
A.

Sir, you’re allowed to view the files in their native

21

format without altering them.

22

both the allocated and the unallocated spaces of a hard drive.

23

Q.

It also gives you the ability to view

What is the allocated space on a hard drive?

7566

11112

1

A.

Allocates space is just that, files that are allocated.

2

if you create a photo and save it to your desktop, that photo is

3

considered allocated, it’s there.

4

files or space of the hard drive which has never been used.

5

Q.

So

Unallocated are deleted files or

Now, you said unallocated has never been used.

Does EnCase

6

or tools like that, do they allow you to see deleted files or files

7

that may have once existed and then now don’t exist?

8

A.

Yes, sir.

9

Q.

Can you explain that, please?

10

A.

Again, the computer is a highly organized place.

Computers

11

-- when you think of a computer you can think of it like a library.

12

If you would like to find a certain book in the library, you would go

13

to the card catalog.

14

you where in the library the book is.

15

Windows, it’s something -- it’s not called a card catalog, it’s

16

called a master file table.

17

operating system will go down to the card -- the master file table,

18

locate where on the hard drive that the file physically is and

19

retrieve it for you.

20

remove the entry from the master file table, or remove the card from

21

the card catalog.

22

physically in the library, it’s just you can’t access it normally.

If you look at the card catalog it will tell
In a computer, at least on

If you would like to view a file, the

When you delete a file, all you basically do is

If you do that, you know the book is still

7567

11113

1

Q.

Now, when you say the book is still in the library, the

2

data is still on the computer, when it’s in the unallocated space,

3

are you always able to recover the full file or is it partial files?

4

Can you explain that, please?

5

A.

Yes, sir.

Again, once the computer realizes that the file

6

or the space the file once resided is now free to be used for

7

something else, it’s just that, it’s free to be used.

8

operating system needs to write something, it could write --

9

overwrite part of the file or all of the file.

10

Q.

And what do you mean by overwrite?

11

A.

It would use the space for another file.

If the

If you download

12

some movies and it needs to put them somewhere it may overwrite the

13

files.

14
15

ATC[CPT MORROW]: At this time, Your Honor, the United States
offers Special Agent David Shaver as an expert in computer forensics.

16

ADC[CPT TOOMAN]:

17

MJ:

18

ATC[CPT MORROW]:

Thank you.

19

ADC[CPT TOOMAN]:

Briefly, Your Honor.

So recognized.

CROSS-EXAMINATION

20
21

All right.

No objection.

Questions by the assistant defense counsel [CPT TOOMAN]:

22

Q.

Good morning, Mr. Shaver.

23

A.

Good morning, sir.

7568

11114

1

Q.

Just a few questions for you.

You talked a little bit

2

about the process of taking a forensic image.

You would agree with

3

me that one of the tenants of an investigation is that when you’re

4

doing your forensic examination, you’re going to document things?

5

A.

Yes, sir.

6

Q.

You’re going to have guidance from another investigator and

7

they’re going to tell you what to look for?

8

A.

Yes, sir.

9

Q.

And if you find anything related to what you’ve been told

10

to look for, you’re going to document it?

11

A.

Yes, sir.

12

ADC[CPT TOOMAN]:

13

MJ:

14

ATC[CPT MORROW]:

15

MJ:

16

ATC[CPT MORROW]:

Nothing further, ma’am.

Redirect?
No, Your Honor.

Temporary or permanent excusal?
Temporary.

17

[The witness was duly warned, temporarily excused and withdrew from

18

the courtroom.]

19

MJ:

Government, are you ready to call your next witness?

20

ATC[CPT MORROW]: Yes, Your Honor.

21

Mark Johnson.

22

to the panel box.

23

MJ:

The United States calls Mr.

For the record, Your Honor, Captain Tooman is moving

That’s fine.

7569

11115

1

MARK JOHNSON, Civilian, was called as a witness for the government,

2

was sworn and testified as follows:
DIRECT EXAMINATION

3
4

Questions by the assistant trial counsel [CPT MORROW]:
Q.

5
6

You are Mark Johnson, Army Computer Crimes Investigative

Unit, Army Criminal Investigation Unit?

7

A.

I am.

8

Q.

Mr. Johnson, what is your current position at Army CCIU?

9

A.

I’m assigned as a Digital Forensic Examiner.

10

Q.

For -- Do you work for CCIU or do you work for a subunit?

11

A.

I work for the Digital Forensics and Research Branch, a

12

subunit of CCIU.
MJ:

13
14

I’m having a little trouble hearing you.

Can you

maybe speak a little bit slowly?
WIT: Yes, ma'am.

15
16

Okay.

Questions continued by the assistant trial counsel [CPT MORROW]:

17

Q.

Where do you work?

18

A.

Pardon me.

19

Q.

Do you work for CCIU or do you work for a subunit?

20

A.

I work for the Digital Forensics and Research Branch, a

21

subunit of CCIU.
Q.

22
23

What was the question again?

How long have you been a digital forensic examiner for the

DFRB?

7570

11116

1

A.

I’ve been there since approximately June of 2006.

2

Q.

Are you a Special Agent?

3

A.

No, sir, I am not.

4

Q.

What are you?

5

A.

I am a contract employee assigned to the DFRB.

6

Q.

And when did you become a contract employee for CCIU?

7

A.

In June 2006.

8

Q.

Were you hired specifically to work at CCIU as part of a

9

What’s your position essentially?

contract?

10

A.

Yes, sir.

11

Q.

What does a digital forensic examiner do?

12

A.

A digital forensic examiner is responsible for examination

13

of digital or other cyber related media, devices, network equipment,

14

log files, pretty much anything related to computers.

15

Q.

And what do you mean by network device?

16

A.

It could be logs or analysis from things such as routers,

17

which is other communications equipment.

18

Q.

And do you hold a supervisory position at CCIU?

19

A.

I do.

20

Q.

And what is that position?

21

A.

I am the project lead for our contract.

22

Q.

And how many people do you supervise?

23

A.

I currently have two subordinates.

7571

11117

1
2

Q.

Do you hold any certifications in digital forensics or

computer forensics?

3

A.

Yes, sir.

4

Q.

What are those certifications?

5

A.

I am certified through the Defense Cyber Crimes Center,

6

also known as DC3.

I hold the Digital -- Certified Digital Media

7

Collector, the Digital Certified Forensic Examiner and the Cyber

8

Crime Investigator Certifications.

9

Q.

And do you hold any other industry certifications?

10

A.

I do.

11

Q.

What certifications do you hold?

12

A.

I am a certified information systems security professional,

13

also known as a CISSP.

14

Q.

If you could explain to the Court, what is a CISSP?

15

A.

CISSP is an industry standard certification.

It’s widely

16

respected in the industry.

It covers lots of demands related to

17

information assurance, information security, computer technology.

18

Q.

19

ADC[CPT TOOMAN]: Your Honor, we’ll stipulate to Mr. Johnson as

20

When did you obtain ----

an expert.

21

MJ:

All right.

22

ATC[CPT MORROW]:

23

MJ:

Do you have additional foundational questions?
Let me just briefly review, Your Honor.

All right.

7572

11118

1
2

ATC[CPT MORROW]:

offers Mr. Johnson as an expert in computer forensics.

3

ADC[CPT TOOMAN]:

4

MJ:

5

At this time, Your Honor, the government

No objection, Your Honor.

So recognized.

Questions continued by the assistant trial counsel [CPT MORROW]:

6

Q.

Mr. Johnson, do you have a supervisor in the DFRB?

7

A.

I do.

8

Q.

Who is your current supervisor?

9

A.

Special Agent Fredrick Stonesacker [phonetic].

10

Q.

What is his position?

11

A.

He is the acting Special Agent in Charge of the Digital

12
13
14

Forensics and Research Branch.
Q.

And prior to Special Agent Stonesacker, who was the Special

Agent in Charge of the DFRB.

15

A.

That would be Special Agent David Shaver.

16

Q.

And how long did you work with Special Agent David Shaver?

17

A.

Since June 2006.

18

Q.

And typically -- and this applies to now and also when you

19
20

worked for Special Agent Shaver, how do you receive an assignment?
A.

Normally, we’ll receive a forensic request in writing that

21

details what we’re supposed to be looking for, which evidence to look

22

at, the type of information they’re looking for, legal basis and

23

other related information.

7573

11119

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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