Title: Volume FOIA 041

Release Date: 2014-03-20

Text: 12780

Volume 41 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

12781

1

A.

They are.

2

Q.

And when did you initial the document?

3

A.

Basically I navigated the site, went through the process of

4

creating the document, printed it out and then initialed the document

5

in, like, immediately thereafter.

6

Q.

Okay.

Just a couple other things.

We've talked about this

7

before, Agent Mander, but do you recognize the hourglass graphic

8

there?

9
10

A.

That graphic is the logo that I've seen on the WikiLeaks

website.

11

ATC[CPT MORROW]:

12

MJ:

Cross-examination.
CROSS-EXAMINATION

13
14
15

Thank you, Agent Mander.

Questions by the assistant defense counsel [CPT TOOMAN]:
Q.

Good afternoon, Agent Mander.

Now, when you said that you

16

navigated to the website, how did you go about actually finding those

17

Tweets?

18

A.

19

The -- I believe, just doing a search for some of the

keywords in relation to the actual Tweet.

20

Q.

Now, did you do that search on Twitter?

21

A.

No.

22

Q.

So you searched on Google, and then from Google you got a

23

I believe I did that search on Google.

link to the Twitter page?

9223

12782

1

A.

Yes.

2

Q.

So you didn't go to the WikiLeaks Twitter page itself to

3

find those?
A.

4

Well, it's kind of a bad question.

Essentially the

5

WikiLeaks Twitter account, so it's basically the Twitter website

6

where WikiLeaks has an account.

7

of messages there, and I actually went there first and started

8

looking through all the messages and then figured there might be an

9

easier way to actually try to find those particular messages.
Q.

10
11

Right.

I noticed they have like thousands

Let me rephrase.

You didn't actually go to the

WikiLeaks Twitter feed in order to find those Tweets?

12

A.

Well, yes, that's what was on the screen.

13

Q.

The feed -- Would you agree with me, the feed is where you

14

can see multiple Tweets from WikiLeaks?

15

A. Okay.

16

Q.

And you didn't go to that portion of the WikiLeaks Twitter

A.

I did at one point, and I mentioned, they're arranged

17
18

Correct.

page?

19

chronologically and there was like thousands of them and you have to

20

get down to the bottom and then it loads more of them.

21
22
23

Q.

Right.

So you didn't find the 31 Alpha and 32 Alpha by

going through the Twitter feed?
A.

No. I found it via the Google search.

9224

12783

1

ADC[CPT TOOMAN]:

2

MJ:

3

ATC[CPT MORROW]:

Redirect.

6
7

Just one question, Agent Mander.
REDIRECT EXAMINATION

4
5

Okay. Thank you.

Questions by the assistant trial counsel [CPT MORROW]:
Q.

What we just observed in the two documents, was that in the

Twitter feed?

8

A.

Yes.

9

Q.

Was that part of the Twitter -- Was that the WikiLeaks

10

account?

11

A.

Yes.

12

ATC[CPT MORROW]:

13

MJ:

Go ahead.
RECROSS-EXAMINATION

14
15
16
17

Thank you.

Questions by the assistant defense counsel [CPT TOOMAN]:
Q.

Agent Mander, I believe you testified that you didn't

actually go through the Twitter feed and find it, correct?

18

A.

Okay.

19

Q.

Let me rephrase it, Agent Mander.

20

A.

Okay.

21

Q.

You mentioned that you had the feed, and when we talk about

22
23

The question you're asking is kind of ----

the feed we're talking about?
A.

All of the messages.

9225

12784

1
2

Q.

Multiple Tweets.

And when you get down to the bottom it

reloads more?

3

A.

Right.

4

Q.

And you didn't go through and allow that to reload enough

5

such that you could get to the Tweets that we looked at on the

6

screen, correct?

7

A.

I do not believe I did, no.

8

Q.

So you didn't actually go through all of WikiLeaks Tweets

9

in order to find those?

10

A.

No.

There was like 20,000 Tweets.

11

Q.

Okay.

12

A.

I Googled it, it gave me like a link to an address, and

So you just Googled it and then that's what came up?

13

then actually I believe I took that address and I pasted it into my

14

browser to make sure that I was going to where the link was.

15

ADC[CPT TOOMAN]:

16

MJ:

17

ATC[CPT MORROW]:

20

Any final redirect?
No, Your Honor.

EXAMINATION BY THE COURT-MARTIAL

18
19

Okay. Thank you.

Questions by the military judge:
Q.

Special Agent Mander, I do have a question based on what

21

you said.

You responded to the government that Prosecution Exhibits

22

31 Alpha and Bravo are in the WikiLeaks Twitter feed.

23

know that?

9226

How do you

12785

1
2
3
4
5

A.

Is it possible to see the documents again?

Make it easier

to explain.
MJ:

Let the record reflect Captain Morrow is showing the

witness Prosecution Exhibits 31 Alpha and 32 Alpha.
Q.

So in the URL, which is the web address that takes you to

6

these messages, the address is

7

HTTP://Twitter.com\#!\WikiLeaks\status, and then there's like a

8

serial number.

9

messages that were in their feed, they use that same convention so

And basically all of the other WikiLeaks Twitter

10

that it's basically just the serial number that changes based on the

11

specific message.

12

portion of the address is the same, it was just the serial number

13

that had changed, it's part of the same account on Twitter.

And therefore I concluded since the beginning

14

MJ:

15

ATC[CPT MORROW]:

No, Your Honor.

16

ADC[CPT TOOMAN]:

May I have a moment, Your Honor?

17

MJ:

18

ADC[CPT TOOMAN]:

21
22
23

Yes.
Briefly, Your Honor.
RECROSS-EXAMINATION

19
20

Any follow-up based on that?

Questions by the assistant defense counsel [CPT TOOMAN]:
Q.

Now, Agent Mander, the URL that you're talking about,

that's the URL just for that particular Tweet, correct?
A.

That is correct.

9227

12786

1

ADC[CPT TOOMAN]:

2

MJ:

3

ATC[CPT MORROW]:

4

All right.

Thank you.
Any further questions from anyone?
No, Your Honor, I'm going to retrieve the

exhibits.

5

MJ:

All right.

Temporary excusal?

6

ATC[CPT MORROW]:

Temporary, Your Honor.

7

[The witness was temporarily excused, duly warned, and withdrew from

8

the courtroom.]

9
10
11
12

MJ:

Are the parties ready to proceed?

TC[MAJ FEIN]:

Ma'am, the United States requests a recess in

order to finalize the stipulations for the remainder of the day.
MJ:

All right.

And I believe, once again, I held a brief

13

R.C.M. 802 conference with counsel this morning where they gave me a

14

head's up that they would be asking for a recess at some point after

15

Special Agent Mander's testimony.

16

talking about was about 90 minutes?

17
18
19

CDC[MR. COOMBS]:

I believe the recess you all were

Yes, Your Honor.

To be safe though, it may

be good to go ahead and recess until 1430.
MJ:

All right.

And after the recess I'm going to be going over

20

some stipulations of expected testimony with PFC Manning.

21

correct?

22

CDC[MR. COOMBS]:

Yes, Your Honor.

9228

Is that

12787

1
2

MJ:

And the reason for this recess is to give him time to

digest what's in those stipulations.

3

CDC[MR. COOMBS]:

4

MJ:

5

TC[MAJ FEIN]:

6

MJ:

Okay.

Is that correct?

That is correct, Your Honor.

So you want to reconvene then at 2:30?
Yes, ma'am.

All right.

Court is in recess until 1430 or 2:30.

The

7

Court is very concerned that PFC Manning has enough time to go

8

through and read these stipulations before we have our colloquy,

9

particularly if they're numerous, so if the defense needs more time

10

for that, come talk to me.

11

CDC[MR. COOMBS]:

12

MJ:

Yes, Your Honor.

Court is in recess.

13

[The court-martial recessed at 1240, 27 June 2013.]

14

[The court-martial was called to order at 1443, 27 June 2013.]

15

MJ:

Court is called to order.

Let the record reflect all

16

parties present when the Court last recessed are again present in

17

court.

18

During the recess I had some questions so I have asked that

19

Special Agent Mander be recalled and I believe the government will

20

want to question him first with respect to a new exhibit that the

21

government wishes to enter into -- to introduce.

22

TC[MAJ FEIN]:

Yes, ma'am.

9229

12788

1

MJ:

All right.

So why don't we go ahead and do it that way.

2

Is there anything we need to address before we call Special Agent

3

Mander?

4

TC[MAJ FEIN]:

5

ADC[CPT TOOMAN]:

6

MJ:

7

TC[MAJ FEIN]:

8

No, ma'am.
No, ma'am.

Go ahead and call him.
Ma'am, the United States recalls Special Agent

Mander.
Your Honor, I'm retrieving from the court reporter what has

9
10

been marked as Prosecution Exhibit 31 Alpha, 31 Bravo, 32 Alpha, 32

11

Bravo for Identification.

12

marked as Prosecution Exhibits 32 Bravo and 31 Bravo for

13

Identification.

14

SPECIAL AGENT MARK MANDER, was recalled as a witness for the

15

prosecution, was reminded he was still under oath, and testified as

16

follows:
DIRECT EXAMINATION

17
18
19
20

I am handing the witness what has been

Questions by the trial counsel [MAJ FEIN]:
Q.

Special Agent Mander, do you recognize these two

prosecution exhibits?

21

A.

I do.

22

Q.

And how do you recognize them?

9230

12789

1
2
3
4

A.

These are screen captures of some Twitter messages from the

WikiLeaks Twitter account from today.
Q.

Okay.

And when you say from today, who created these

screen captures?

5

A.

I did.

6

Q.

And when did you create these?

7

A.

Today.

8

Q.

And looking at 31 Bravo first -- actually, permission to

9
10

publish 31 Bravo, ma'am.
MJ:

Go ahead.

11

[There was a brief pause while the trial counsel published the

12

exhibit to the Court and the witness.]

13

Q.

Special Agent Mander, today when you went on to Twitter,

14

how did you pull up and print this message, or, excuse me, this

15

Tweet?

16

A.

I did a search for it using the URL from the other

17

document, the one that we discussed earlier today, and that basically

18

led me to the Twitter.com website where this message was.

19

Q.

Okay.

20

MJ:

When you're talking about the other document, what are you

21
22

talking about?
WIT: Exhibit ----

9231

12790

1
2
3
4

TC[MAJ FEIN]:

Your Honor, I am handing Special Agent Mander

what's been marked as 32 Alpha and 31 Alpha for Identification.
Q.

Agent Mander, please look those over.

Which document are

you referencing?

5

A.

Document 31 Alpha.

6

Q.

Okay.

7

A.

The web address that's at the top of this exhibit.

8

Q.

Okay.

9
10

When you say the URL, what do you mean?

Did that web address on top of the exhibit, was it -

- did that exact web address today when you used it pull up this
message?

11

A.

It did.

12

Q.

It did.

13

A.

31 Bravo.

14

Q.

May I retrieve 31 Bravo from you?

15

A.

Sorry.

16

Q.

31 Alpha.

17
18
19

And which exhibit is that?

That's 31 Alpha.

31 Alpha.
Okay.

And when you printed or when you took a

screenshot of this, where was this from, this image?
A.

That was on the computer screen as I was looking at the

Twitter.com website.

20

Q.

Okay. And what account was this associated with?

21

A.

This is the WikiLeaks Twitter account.

9232

12791

1

TC[MAJ FEIN]:

Your Honor, I'm retrieving -- or I’m pulling off

2

31 Bravo and handing it back to the witness.

3

from the witness 32 Bravo.

4

MJ:

And I am retrieving

Permission to publish, Your Honor.

Go ahead.

5

[There was a brief pause while the trial counsel published the

6

exhibit to the Court and the witness.]

7

Q.

Special Agent Mander, do you recognize this image?

8

A.

I do.

9

Q.

And when did you pull this image?

10

A.

Today.

11

Q.

And how did you pull this image?

12

A.

On this particular one I just modified the number at the

13

end of the address to match the other one from the other document.

14

Q.

And which document are you talking about?

15

A.

Exhibit 32 Alpha.

16

Q.

And when you say modified the address, what do you mean?

17

A.

At the end of the URL that takes you to this page, there's

18

a number, it's a number that's about ten numerals long, so I just

19

modified it to the previous document, 32 Alpha, and then hit enter,

20

and it came up.

21

Q.

Okay.

Why, when you clicked enter on this document and

22

didn't have to modify the rest of the URL, why did it bring up this

23

Tweet?

9233

12792

1

A.

Because it's associated with the WikiLeaks Twitter account.

2

TC[MAJ FEIN]:

Okay.

Thank you.

Your Honor, I'm retrieving all

3

of the

exhibits in front of the witness, that is 32 Bravo, and 32

4

Alpha.

Thank you, Your Honor.

5

MJ:

6

ADC[CPT TOOMAN]:

7

TC[MAJ FEIN]:

8
9

Cross-examination.
Yes, ma'am.

I'm handing back to the court reporter 31 Alpha

and 31 Bravo.
ADC[CPT TOOMAN]:

10

MJ:

11

ADC[CPT TOOMAN]:

12

MJ:

Ma'am, I have 32 Alpha and 32 Bravo.

Thank you.
Permission to publish, ma'am.

Yes, please.

13

[There was a brief pause while the assistant defense counsel

14

published the exhibit to the Court and the witness.]
CROSS-EXAMINATION

15
16
17

Questions by the assistant defense counsel [CPT TOOMAN]:
Q.

32 Alpha I am publishing.

Agent Mander, when you look at

18

32 Alpha -- well, actually, I'm going to publish 32 Bravo first.

19

Now, Agent Mander, 32 Bravo is on the screen.

20

exhibit there are a number of pictures here underneath the text of

21

the Tweet, is that correct?

22

A.

Visible on this

They look like photos or graphics, yeah.

9234

12793

1
2

Q.

Okay.

I'm removing 32 Bravo and publishing 32 Alpha.

Are

those graphics visible on 32 Alpha?

3

A.

They are not.

4

Q.

So it's possible that what appears to the user can change?

5

A.

Yes.

I know for a fact that websites change over time.

6

The administrators of sites can change how information is displayed,

7

they can change graphics, background colors, things like that.

8

Q.

9

ADC[CPT TOOMAN]:

10

reporter.

Thank you, Agent Mander.

No further questions, ma'am.

11

MJ:

12

TC[MAJ FEIN]:

Redirect.
Yes, ma'am.
REDIRECT EXAMINATION

13
14
15
16

I’m returning the exhibits to the court

Questions by the trial counsel [MAJ FEIN]:
Q.

Special Agent Mander, with those two exhibits, was the text

of the Tweet the same?

17

A.

It appeared to be the same, yes.

18

TC[MAJ FEIN]:

19

MJ:

Thank you.

Special Agent Mander, I have a couple of questions.

Could

20

you hand Special Agent Mander, Major Fein, Exhibits 31 Alpha and 31

21

Bravo?

22
23

TC[MAJ FEIN]:

Yes, ma'am. I'm handing Special Agent Mander 31

Alpha and 32 Bravo for Identification.

9235

12794

1

MJ:

2

TC[MAJ FEIN]:

3

MJ:

4

TC[MAJ FEIN]:

5

I'm sorry.

Hand him one more.
Yes, ma'am.

31 and 32.
Yes, ma'am. I'm also handing 32 Alpha, ma'am or

32?

6

MJ:

7

TC[MAJ FEIN]: Yes, ma'am.

8
9
10
11
12

No.

15

Just 31 itself.

I don't need any 32s.

Your Honor, I'm handing Special Agent

Mander Prosecution Exhibit 31 for Identification.
MJ:

Actually, what you can do is publish 31 Alpha.

TC[MAJ FEIN]:

Yes, ma'am.

I'm retrieving 31 Alpha from Special

Agent Mander and publishing 31 Alpha.
MJ: All right.
EXAMINATION BY THE COURT-MARTIAL

13
14

We're on 31.

Questions by the military judge:
Q.

Special Agent Mander, just so I make sure I understand what

16

I think your testimony was, are you testifying today that the

17

original Tweet in Prosecution Exhibit 31 that you pulled from Google

18

cache for Identification is the same Tweet that you pulled the other

19

way, through the Google search and going on the Twitter account for

20

31A, and then just pulling up the serial number for 30 -- the web

21

address and the serial number for 31B?

Is that ---

22

A.

I'm just looking at both of them here.

23

Q.

Okay.

9236

12795

1
2
3

A.

I mean aside from the absence of the graphics, the content

of the actual message is the same.
Q.

And the questions I'm asking you for 31 are they true for

4

32, too, or do you want to see the exhibit before you answer that

5

question?

6

A.

No.

7

Q.

Okay.

I'm confident that it's the same.
Did you testify earlier that the web address was --

8

for the Twitter was HTTP//Twitter.com WikiLeaks status and then the

9

serial number?

10

A.

No.

I mentioned that there was a pound and an exclamation

11

point in the address, or at least that's what I had on the top there,

12

and when I typed that exact same thing today into Google it took me

13

to these messages.

14

their website as far as how it resolves, but ----

15

Q.

Now, I don't know if there's been a change on

That was my question really was when I was looking at

16

Prosecution Exhibit 31 and 31 Alpha, 31 didn't have the pound and

17

exclamation point, and now I'm looking at 31 Bravo and that doesn't

18

have it either.

19

A.

Right.

And I also noticed that when you actually go to

20

this message, at least on a computer that I was using, which was not

21

my computer, it defaults to HTTPS now, where it didn't in the, when I

22

did this like a year ago.

23

changed on their website.

So I highly suspect that something's

9237

12796

MJ:

1
2

From this exhibit here for Prosecution Exhibit 31B, to

retrieve that, what exactly did you put into the computer?

3

A.

Can I see the other sets of exhibits?

4

TC[MAJ FEIN]:

Your Honor, I'm retrieving and handing to Special

5

Agent Mander Prosecution Exhibits 32 Alpha and 32 Bravo for

6

Identification.
A.

7

Okay.

So for 32 Bravo, to get to that location I typed in

8

the full address that's listed on the top of Exhibit 32 Alpha with

9

the pound and the exclamation point in it to Google and it found

10

this.

11

that message via the link in Google.

12

just modified the number at the back of the address to fit the, and I

13

don't have that exhibit here, but to fit the exhibit for 31 Alpha,

14

and that also brought up the second message.

15
16

When I say this, 32 Bravo, that message.

Q.

And then I went to

And for 31 Bravo, essentially I

Do you know why that pound exclamation point is in 31 Alpha

but not 31 Bravo?

17

A.

I don't have 31 Alpha here, but no.

18

MJ:

Any follow-up based on that from either side?

19

TC[MAJ FEIN]:

20
21
22
23

Yes, Your Honor.
REDIRECT EXAMINATION

Questions by the trial counsel [MAJ FEIN]:
Q. Special Agent Mander, on the screen, is that published 31
Alpha at the bottom of the corner?

9238

12797

1

A.

Yes.

2

Q.

And today, when you pulled, when you took a screenshot,

3

Special Agent Mander, what website were you on when you took that

4

screenshot?

5

A.

Twitter.com.

6

Q.

And if you could look at, I'm retrieving from the witness

7

31 -- Prosecution Exhibit 31 for Identification, I'm handing back to

8

the witness Prosecution Exhibit 31 for Identification.

9

pulled from the Google cache that Tweet, did that resolve back to

10
11
12

When you

Twitter?
A.

It's a -- It's a version of the Twitter message that is

cached by Google.

13

Q.

So did that resolve back to Twitter?

14

A.

Not as far as I know, no.

15

Q.

And then for the one you pulled today, was that from the

16

Twitter website?

17

A.

Yes.

18

Q.

And was the content the same to what was on Google cache

19

and what's on the Twitter website?

20

A.

The message is the same, yes.

21

Q.

And is that true also for Prosecution Exhibit 32 for

22
23

Identification?
A.

Yes.

9239

12798

1

Q.

And its subsequent 32 Bravo for Identification?

2

A.

Yes.

3

TC[MAJ FEIN]:

Thank you.

Your Honor, I'm retrieving from

4

Special Agent Mander Prosecution Exhibit 32 Bravo for Identification,

5

32 Alpha for Identification and Prosecution Exhibit 3 for

6

Identification and 31 Bravo for Identification.

7

MJ:

8

TC[MAJ FEIN]:

9
10

Cross-examination.
Pulling off the screen 31 Alpha for

Identification.
ADC[CPT TOOMAN]:

RECROSS-EXAMINATION

11
12
13

Thank you, ma'am.

Questions by the assistant defense counsel [CPT TOOMAN]:
Q.

Now, Agent Mander, when you created the screenshots for 31

14

Bravo and 32 Bravo, you typed in the same web address from 31 Alpha

15

and 32 Alpha, correct?

16

A.

Can I see all the exhibits again?

17

Q.

Sure.

18

I'll retrieve those from the court reporter.

Handing the witness 31 Alpha.

19

A.

20

ADC[CPT TOOMAN]:

21
22

Alpha.

31 Alpha.
And 31 Bravo.

If I may, ma’am?

MJ:

Go ahead.

9240

Now, I'm going to publish 31

12799

1

Q.

Now, when you created 32 -- I’m sorry, 31 Bravo, if I

2

understand you correctly, you typed in the URL that appears at the

3

top of this exhibit.

4

31 Alpha, that's what you typed into the computer today to create

5

Bravo?

6

A.

No.

Is that correct?

So this URL that appears on

What I said was the address at the top of the exhibit

7

that's on the screen right now, I typed that into Google.

8

me to the address that is on this exhibit.

9
10
11

Q.

Okay.

That took

So did you do a Google search or did you just type

it in your web browser?
A.

No.

I did a search.

If I can correct myself here, it was

12

the other exhibit, 32 Alpha and 32 Bravo, that I had completed the

13

Google search to get to the message.

14
15

Q.

Okay.

So 32 Alpha and 32 Bravo you did a Google search for

the URL at the top of 32 Alpha?

16

A.

Yes.

17

Q.

And then you clicked on this top search result, I imagine?

18

A.

It was the most appropriate one; I don't recall if it was

19

the top one.

20

Q.

So you clicked on the result, that took you to 32 Bravo?

21

A.

Yes.

22

Q.

And once you were on 32 Bravo, you just changed the end

23

Which is the Twitter.com website.

portion, number, the numeric portion of the URL to get to 32 Alpha?

9241

12800

1

A.

To get to 32 Bravo.

2

Q.

Thank you.

3

Excuse me.

31 Bravo.

So once you were on 32 Bravo, you changed the

numeric portion of that URL to get to 31 Bravo?

4

A.

I’ll say yes.

5

Q.

Is that what ----

6

A.

Yes.

7

Q.

I am removing 31 Alpha from the projector and retrieving 32

Yes.

8

-- 31 Bravo, returning those to the court reporter.

9

Mander, today when you pulled up those Tweets you didn't go to the

So, Agent

10

WikiLeaks Twitter news feed or the feed that we talked about earlier

11

and you didn't scroll through and find that Tweet?

12

A.

Actually, I went to the feed, I scrolled through, but it

13

looks like you get cut off after a certain number of Tweets, a

14

certain number of messages, you can't go any further.

15
16

Q.

Okay.

So on the feed it's not available any more or you

can't find it, it's not there?

17

A.

18

ADC[CPT TOOMAN]:

19

MJ:

20

TC[MAJ FEIN]:

21

Sure, I'll agree with that, yes.
Thank you, Agent Mander.

Redirect?
Yes, ma'am.
[END OF PAGE]

9242

12801

REDIRECT EXAMINATION

1
2
3

Questions by the trial counsel [MAJ FEIN]:
Q.

Special Agent Mander, you just said that you would agree

4

that it's not on the feed any more.

5

searched for it?

6

A.

Yes.

7

Q.

Okay.

8

Was it on Twitter today when you

When you typed in the number that was the exact one,

was it on there?

9

A.

Yes.

10

Q.

Did you print it from the -- I'm sorry.

11

Did you take a

screenshot from the Twitter website?

12

A.

I did.

13

Q.

Did you take that screenshot and what did you do with it?

14

A.

I printed it out.

15

Q.

And are those screenshots what we have been talking about

16

as 31 and 32 Bravo for Identification?

17

A.

Yes, and ----

18

Q.

Thank you.

19

A.

And if I can add?

20

Q.

Please.

21

A.

When people say the feed, perhaps we're just having the

22

wrong terminology here.

As I think of the feed as like the

23

collection of messages, all of the various messages that are in a row

9243

12802

1

that are ordered chronologically versus an actual message, if that

2

helps.
Q.

3
4

So, what do you mean -- So when you answered yes to the

defense, what did you mean by the feed?
A.

5

He asked me if I had been to the feed, scrolled through it

6

to find that message.

7

scrolled through it, but that message was so old that it was no

8

longer in that feed.
Q.

9
10

And what were your observations about the messages in the

feed currently on the screen in that feed?
A.

11
12

And I said that I had been to the feed, I had

They were other messages from the WikiLeaks Twitter

account.
Q.

But could you keep scrolling eventually and get to them

15

A.

No.

16

Q.

So did it stop, did it ----

17

A.

Yes.

18

Q.

What happened when you did that?

19

A.

I scrolled and scrolled and at the bottom it gets to a

13
14

all?

20

point, I think it was 29 March of this year, where it doesn't let you

21

go any further.

22

Q.

Okay.

23

A.

Yes.

But you still were able to access the messages?
It's still on the Twitter.com website.

9244

12803

Q.

1
2

And is it still associated with the WikiLeaks Twitter

account?

3

A.

It is.

4

Q.

And what does it mean when a web page redirects you to

5

another web page?

6

A.

I'm sorry.

7

Q.

Earlier you testified about Google redirecting you when you

8

What does it mean?

typed in the Google search.
A.

9

What does it mean to redirect?

It's just the process of when a user clicks on an element

10

on a web page, the web page automatically forwards you to another

11

location on the Internet.
Q.

12
13

And when it does that, are you on the original website or

are you now on the new website?

14

A.

Typically the new website.

15

Q.

And what happened today when you typed in Google search and

16

hit search and then clicked on that result?

17

A.

I went to the Twitter.com website.

18

Q.

When you typed in the Twitter.com/#!, and the rest of that

19

address, where did the computer take you to, or the web page?

20

me.

21

A.

Can you rephrase your question?

9245

Excuse

12804

Q.

1

Yes.

In your testimony first with the Court's question

2

when you typed in Google search the Twitter.com#! and the rest of

3

that address, where did that actually take you, that search result?

4

A.

The result took me to the Twitter.com website.

5

TC[MAJ FEIN]:

6

MJ:

Thank you, Your Honor.

Go ahead.
RECROSS-EXAMINATION

7
8

Questions by the assistant defense counsel [CPT TOOMAN]:
Q.

9

Now, Agent Mander, have you ever been able to view these

10

tweets that we've been talking about by going directly to

11

Twitter.com?

12

A.

Yes.

13

Q.

Take Google out of it?

14

A.

Yes.

15

Q.

Okay.

16

A.

I was on the previous message, the one that we've

Today.

One of them.

And how did you do that?

17

discussed, and I changed the address slightly and got to the other

18

message without having used Google.

19

ADC[CPT TOOMAN]:

20

MJ:

21

Okay.

Thank you, Agent Mander.

I don't think I have any further questions.

side?

22

TC[MAJ FEIN]:

No, ma'am.

23

ADC[CPT TOOMAN]:

No, ma'am.

9246

Does either

12805

1

MJ:

All right.

2

TC[MAJ FEIN]:

Temporary excusal?
Yes, ma'am.

3

[The witness was temporarily excused, reminded of his previous

4

warning, and withdrew from the courtroom.]

5

MJ:

6

CDC[MR. COOMBS]:

7
8
9

Are the parties ready to proceed?
No, Your Honor.

What the defense would ask

is that we reconvene at 1615 or 4:15.
MJ:

All right.

Then is this once again for the purpose of

going over the stipulations of expected testimony with PFC Manning?

10

CDC[MR. COOMBS]:

11

MJ:

12

TC[MAJ FEIN]:

13

MJ:

Yes, Your Honor.

Any objection?
No, ma'am.

Court is in recess until 1615.

14

[The court-martial recessed at 1507, 27 June 2013.]

15

[The court-martial was called to order at 1636, 27 June 2013.]

16

MJ:

17

parties.

18

Court is called to order.

TC[MAJ FEIN]:

Yes, ma'am.

Major Fein, please account for

All parties in the Court last

19

recessed are again present with the following exceptions:

20

Morrow is absent.

21
22
23

MJ:

Captain Katherine Mitroka is present.

All right.

Is this Captain Mitroka’s first appearance

before the Court?
TC[MAJ FEIN]:

Captain

It is, Your Honor.

9247

12806

1

MJ:

2

ATC[CPT MITROKA]:I'm prepared to qualify my credentials on the

3

And is she qualified and certified?

record at this time, Your Honor.

4

MJ:

Go ahead.

You can do it from there.

5

ATC[CPT MITROKA]:

Your Honor, I, Captain Katherine Mitroka,

6

have been detailed to this court-martial by the Staff Judge Advocate,

7

Colonel Corey Bradley, United States Army, Military District of

8

Washington.

9

and sworn under Article 42 Alpha Uniform Code of Military Justice.

I am qualified, I am certified under Article 27 Bravo

10

have not acted in any manner that might disqualify me from this

11

court-martial.

12

MJ:

All right.

Thank you.

I

During the recess I was provided

13

with a number of stipulations of expected testimony that I need to go

14

over with PFC Manning.

15

need to address before we go over those?

16

TC[MAJ FEIN]:

17

ADC[MAJ HURLEY]

18
19
20

No, ma'am.
Ma’am, may PFC Manning and I move to the

witness stand?
MJ:

Will he have copies of both the redacted and classified

versions of the stipulations?

21

ADC[MAJ HURLEY]

22

MJ:

23

Do we have any administrative issues that we

Yes, ma'am, he will once we move.

Let the record reflect that Major Hurley and PFC Manning

are moving over to the panel box.

9248

All right.

PFC Manning, I

12807

1

understand that you and I have the exhibits in the same order, so if

2

I start saying numbers and names that aren't appearing before you,

3

let me know.

4

ACC: Yes, ma'am.

5

MJ:

6

ACC: Yes, ma'am.

7

MJ:

Are you ready?

All right.

I have Stipulations of Expected Testimony from

8

PDAS John Feeley at Prosecution Exhibit 169A for the redacted version

9

and 169B for the classified version.

Stipulation of Expected

10

Testimony of DAS James Moore which is Prosecution Exhibit 170 Alpha,

11

the classified version would be 170 Bravo.

12

Testimony from Ambassador David Pearce, Prosecution Exhibit 171 Alpha

13

for Identification; classified version 171 Bravo.

14

Expected Testimony from PDAS H. Dean Pittman which is Prosecution

15

Exhibit 172 A for Identification; classified version, 172 B for

16

Identification.

17

Ambassador Stephen Seche, which is Prosecution Exhibit 173 Alpha for

18

Identification; classified version being 173 Bravo for

19

Identification.

Stipulation of Expected

Stipulation of

Stipulation of Expected Testimony, charged cables,

20

ADC[MAJ HURLEY]

21

MJ:

22

ADC[MAJ HURLEY]

Ma'am, can we have one second?

Yes.
Ma'am, if you resume at 174.

9249

We're fine.

12808

1
2

MJ:

All the names that I've stated you've got a copy of both

the classified and redacted version, right?

3

ADC[MAJ HURLEY]

Yes, ma'am.

4

ACC: Yes, ma'am.

5

MJ:

So now we're at the second Prosecution Exhibit that is a

6

Stipulation of Expected Testimony for the same witness as the last

7

one, Ambassador Stephen Seche, for uncharged cables, and that would

8

be the redacted version at 174 Alpha, and the classified version at

9

174 Bravo.

Stipulation of Expected Testimony from Don Yamamoto,

10

Prosecution Exhibit 175 Alpha for Identification, and the classified

11

version would be at 175 Bravo for Identification.

12

Expected Testimony for Ambassador Marie Yovanovitch, Prosecution

13

Exhibit 176 Alpha for Identification; classified version at 176 Bravo

14

for Identification.

15

Yun, Prosecution Exhibit 177 Alpha for Identification; classified

16

version at 177 Bravo.

17

from Mr. Nicholas Murphy, Prosecution Exhibit 178 for

18

Identification, and there's no classified version for this exhibit.

19

Is that correct?

Stipulation of

Stipulation of Expected Testimony, AA/S Joseph

20

ACC:

21

ADC[MAJ HURLEY]:

22

MJ:

And lastly, Stipulation of Expected Testimony

Yes, Your Honor.
Ma’am, may I have just a moment?

Yes.

9250

12809

1

ADC[MAJ HURLEY]:

2

Expected Testimony at 178.

3

MJ:

Yes.

Ma'am, you had Mr. Murphy's Stipulation of

All right.

Is that correct?
PFC Manning, this is a pretty substantial

4

stack of stipulations of expected testimony.

5

time to go over them?

6

ACC: Yes, Your Honor.

7

MJ:

8
9
10
11

Have you had enough time to talk to your defense counsel

about them?
ACC: Yes, Your Honor.
MJ:

Now, before signing each of these stipulations, both

classified and redacted, did you read over them?

12

ACC: Yes, Your Honor.

13

MJ:

Do you understand the contents of the classified and

14

unclassified stipulations?

15

ACC: Yes, Your Honor.

16

MJ:

17

ACC: Yes, Your Honor.

18

MJ:

19

Have you had enough

Do you agree with the contents of the stipulations?

Before signing the stip -- each of these stipulations did

your defense counsel explain it to you?

20

ACC: Yes, Your Honor.

21

MJ:

Do you understand that you have an absolute right to refuse

22

to stipulate to the contents of any of these stipulations of expected

23

testimony that we just went over?

9251

12810

1

ACC:

2

MJ:

Yes, Your Honor.
Do you understand that you should enter into each of these

3

stipulations if you believe only if it's in your best interest to do

4

that?

5

ACC: Yes, ma'am.

6

MJ:

Once again, these are stipulations of expected testimony.

7

When counsel for

both sides and you agree to stipulations of

8

expected testimony you're agreeing that if each of these witnesses

9

were here testifying in court they would say substantially what's in

10

the stipulation of expected testimony.

11

admit the truth of the testimony.

12

contradicted, attacked or explained in the same way as if the person

13

was testifying here in person.

14

ACC: Yes, ma'am.

15

MJ:

The stipulation does not

The stipulation could be

Do you understand that?

And knowing everything that I've told you and what your

16

defense team has told you, do you still want to enter into each of

17

these stipulations of expected testimony?

18

ACC: Yes, Your Honor.

19

MJ:

20

Do counsel for both sides concur in the contents of each of

these stipulations?

21

TC[MAJ FEIN]:

22

MJ:

Ma'am, may the government have one moment?

Yes.

9252

12811

1

TC[MAJ FEIN]:

Ma'am, the United States does agree, but we

2

realize administratively the originals are not signed by the

3

government counsel, but the government counsel will do so afterwards,

4

may it please the Court.

5
6
7

MJ:

All right.

So the government counsel still has to sign the

original stipulations?
TC[MAJ FEIN]:

Yes, ma'am.

But the United States does agree

8

that all of those stipulations are, in fact, stipulations that the

9

government is agreeing to.

10

MJ:

Well, take about 5 minutes to sign them.

11

TC[MAJ FEIN]:

12

MJ:

13

TC[MAJ FEIN]:

Maybe even less than that, ma'am.

Let's go ahead and do it.
Yes, ma'am.

14

[There was a brief pause while the government signed the original

15

stipulations of expected testimony.]

16

MJ:

Oh, I see.

You need to sign the classified versions.

17

Don't worry about it.

18

agree to the content of the stipulations?

19

TC[MAJ FEIN]:

20

ADC[MAJ HURLEY]:

21

MJ:

22

We'll do it on the recess.

So both counsel

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

Now, are these stipulations going to have enclosures or are

there separate exhibits that go with each of them?

9253

12812

1
2
3
4
5

TC[MAJ FEIN]:

Separate exhibits, ma'am, that are referenced by

the stipulations themselves.
MJ:

Okay.

And I believe you were going to set forth for the

record how you intend to do that before we get started?
TC[MAJ FEIN]:

Yes, ma'am.

Your Honor, yesterday during session

6

the United States read on to the record prosecution or a Stipulation

7

of Expected Testimony for Mr. Tasha Thian and moved to admit

8

Prosecution Exhibit 98, and Prosecution Exhibit 98 were the charged

9

Department of State cables and they were admitted.

What the United

10

States and defense counsel agreed upon was for these stipulations

11

where these witnesses are actually referencing the individual cables

12

that they would be remarked as the corresponding prosecution exhibit

13

number to the stipulation, but Charlie.

14

the very first stipulation, Prosecution Exhibit 169 Alpha for

15

Identification, 169 Charlie for Identification are the Department of

16

State cables that Principal Deputy John Feeley would be testifying

17

about.

18

this record of trial, the United States has burned a digital copy of

19

what was previously or currently is Prosecution Exhibit 98 and put it

20

on to a CD, and that CD is ready to be marked and admitted as a

21

substitute for what has previously been prosecution exhibit.

22
23

So, for example, Your Honor,

So in order to make this easier for the record management of

MJ:

All right.

So for both sides then the parts of Prosecution

Exhibit 98 that's already been admitted is going to be discussed in

9254

12813

1

these various stipulations of expected testimony.

2

about admitting anything else, it's already admitted, is that

3

correct?

4
5

TC[MAJ FEIN]: It is correct, Your Honor.

MJ:

7

ADC[MAJ HURLEY]:

8

MJ:

10

It’s been admitted,

previously as Prosecution Exhibit 98.

6

9

We're not talking

So, it's just taking a different form.

Okay.

Yes, ma'am.

So is there any objection, do I need to admit all

those new exhibits?
TC[MAJ FEIN]:

Ma'am, I'm sorry.

There is one correction.

The

11

second Ambassador Seche Stipulation for the uncharged cables was not

12

part of Prosecution Exhibit 98, so that is separate.

13

been previously admitted.

14

MJ:

Okay.

So that has not

So when you refer to these cables that have been

15

admitted as Prosecution Exhibit 98, then when you talk about them as

16

Prosecution Exhibit 169 Bravo, Charlie, et cetera, you're just going

17

to say we're going to all assume that they have been admitted, they

18

just have a different name at this point?

19

TC[MAJ FEIN]:

20

MJ:

21
22

Except the two I just mentioned, yes, Your Honor.

Okay. So they're not going to be for identification, they

are going to be ---TC[MAJ FEIN]:

Yes, ma'am.

9255

12814

1

ADC[MAJ HURLEY]:

It's the understanding of the defense that

2

they're going to be admitted as the cables for the review of the

3

trier of fact all together.

4

MJ:

Okay.

So they're just taking a different form in these

5

stipulations, we don't have to go through any of the admission

6

process.

7

ADC[MAJ HURLEY]:

8

MJ:

9

Okay.

No, ma'am.

So I will also admit the exhibits on, to include

stipulations of expected testimony on a recess.

10

TC[MAJ FEIN]:

11

MJ:

Okay.

Yes, ma'am.

So all of these stipulations of expected testimony,

12

Prosecution Exhibits 190 -- 169A, 170A, 171A, 172A, 173A, 174A, 175A,

13

176A, 177A, and all of the classified versions at each of those

14

numbers at B are admitted, as well as Prosecution Exhibit 178 for

15

Identification.

16

Manning returns to the defense table?

17

Is there anything else we need to address before PFC

TC[MAJ FEIN]:

Ma'am, there's only one other, and this goes back

18

to the one stipulation for Ambassador Seche.

19

not originally part of Prosecution Exhibit 198, so the United States

20

still moves to admit 174 Charlie.

21

ADC[MAJ HURLEY]:

22

MJ:

23

All right.

174C -- 174 Charlie was

There's no objection, ma'am.
174 Charlie is admitted.

that I should be signing at the recess?

9256

Is this something

12815

1

TC[MAJ FEIN]:

2

MJ:

Okay.

Yes, Your Honor.

It's classified.

So when we do the signing during a recess, after the

3

recess let's get together and just make sure that we've got

4

everything that's supposed to be admitted admitted.

5

TC[MAJ FEIN]:

6

MJ:

7

Yes, ma'am.

Anything else we need to address before we send PFC Manning

and Major Hurley back to the defense table and proceed?

8

TC[MAJ FEIN]:

9

MJ:

No, ma'am.

All right.

Go ahead.

10

[The accused and his defense counsel resumed their seats at the

11

defense table.]

12

TC[MAJ FEIN]:

Ma'am, before reading stips, the United States

13

also moves to admit what has been marked as Prosecution Exhibit 179

14

for Identification as Prosecution Exhibit 179.

15

enclosures of the forensic report of PFC Manning's personal Macintosh

16

which has been previously been recorded as Defense Exhibit Juliet.

17

MJ:

18

TC[MAJ FEIN]:

19

This is 179?
Prosecution Exhibit 179 for Identification, yes,

ma'am.

20

ADC[CPT TOOMAN]:

21

MJ:

22

These are the

No objection, ma'am.

Prosecution Exhibit 179 is admitted.

on recess as well?

9257

Do I need to do that

12816

TC[MAJ FEIN]:

1
2
3

MJ:

All right.

admitted.

5

Exhibit 174 Charlie.

7

It's a CD that the court reporter

has.

4

6

No, ma'am.

Prosecution Exhibit 179 for Identification is

Now, I believe you talked to me just about Prosecution

TC[MAJ FEIN]:

What about Bravo?
Ma'am, 174 Bravo is the classified version of 174

Alpha.

8

MJ:

All right.

Proceed.

9

ATC[CPT MITROKA]:

Ma'am, at this time the United States moves

10

to publish for the record the stipulations of expect the testimony

11

just discussed.

12

MJ:

Okay.

13

ATC[CPT MITROKA]:

To begin with, the Stipulation of Expected

14

Testimony for PDAS John Feeley dated 27 June 2013; marked as

15

Prosecution Exhibit 169 Alpha.

16

It is hereby agreed by the Accused, Defense Counsel and

17

Trial Counsel that if Principal Deputy Assistant Secretary, PDAS,

18

John Feeley were present to testify during the merits and

19

presentencing phases of this court-martial, he would testify

20

substantially as follows:

21

The United States Department of State, DoS, is led by the

22

Secretary of State.

There are six undersecretary offices that work

23

for the Secretary of State.

One of those undersecretaries is for

9258

12817

1

political affairs.

The Undersecretary of Political Affairs serves as

2

the day-to-day manager of overall regional and bilateral policy

3

issues.

4

bureaus which are headed by assistant secretaries.

5

African Affairs, European and Eurasian Affairs, East Asian and

6

Pacific Affairs, Near Eastern Affairs, South and Central Asian

7

Affairs, Western Hemisphere Affairs, and International Organizations.

8

The assistant secretaries of the geographic bureaus and the

9

offices advise the undersecretary and guide the operation of the U.S.

The Undersecretary of Political Affairs oversees seven
Those bureaus are

10

diplomatic missions within their regional jurisdiction.

Each bureau

11

has a Principal Deputy Assistant Secretary, PDAS, and several deputy

12

assistant secretaries.

13

the lead deputy assistant secretary, all of which assist in the

14

development and management of U.S. policy concerning the Bureau.

15

am the PDAS in the Bureau of Western Hemisphere Affairs, WHA.

16

been in my current position since May 2012.

17

Summit of America's Coordinator from February 2012 to April 2010.

18

From July 2009 to February of 2012 I was the Deputy Chief Mission and

19

Charge D'Affaires in Mexico.

20

implementation of U.S. policies in Mexico.

21

interagency multinational partners and implemented the Merida

22

Initiative, a 1.9 billion dollar security initiative between the U.S.

23

and Mexico.

The principal deputy assistant secretary is

I

I have

Before that I was the

In this position I oversaw the daily

9259

I managed a team of

12818

1

Over the last 23 years I have held numerous Department of

2

State positions throughout Central and South America, including the

3

Director for Central American Affairs from 2006 to 2008; Deputy

4

Political Counselor and Minister Counselor to Political Affairs in

5

Mexico from 2001 to 2003; Deputy Director for Caribbean Affairs from

6

2000 to 2001; Desk Officer in El Salvador from 1996 to 1998; Judicial

7

and Extradition Affairs Officer in Colombia from 1993 to 1995; and

8

Vice Consul in the Dominican Republic from 1990 to 1993.

9

spent my entire DoS career in WHA with the exception of 4 years.

I have

10

have earned a master's degree in national security policy from the

11

National War College, and have also graduated from the Georgetown

12

University School of Foreign Service.

13

U.S. Marine Corps Officer Pilot.

14

I

Before joining DoS I was a

The Bureau of Western Hemisphere Affairs is responsible for

15

managing and promoting U.S. interests in the region by supporting

16

democracy, trade and sustainable economic development and fostering

17

cooperation on issues such as citizen safety, strengthening

18

democratic institutions and the rule of law, economic and social

19

inclusion, energy, and climate change.

20

in the Americas to generate broad-based growth through fair trade and

21

sound economic policies, to invest in the well-being of people from

22

all walks of life, and to make democracy serve every citizen more

23

effectively and justly.

9260

WHA works with the partners

12819

1

The United States is linked to the countries of the Western

2

Hemisphere by physical proximity, shared values and vast cultural,

3

commercial and demographic ties.

4

security interests in the Americas, including current and future

5

energy markets for the United States and maintaining effective

6

partnerships to prevent illicit trafficking and terrorist activities.

7

There are compelling national

Embassies and consultants communicate what is occurring in

8

the host nations through many different means.

9

official communication by the embassy or organization.

Issuing a cable is an
Typically the

10

Ambassador or Deputy Chief of Mission, DCM, sign off as the

11

originator on the cables because they contain the official position

12

of the embassy or organization.

13

summarize meetings and note significant events in the host country,

14

and often contain the analysis and comment of the author.

15

are issued via the distribution captions, one of which is SIPDIS.

16

The SIPDIS caption indicates that a cable is approved for SIPRNET

17

distribution and for access by appropriately cleared individuals

18

across numerous U.S. Government agencies and departments.

19

cables containing the SIPDIS caption are available to all users of

20

SIPRNET and JWICS to share information with interested agencies and

21

departments and United States government.

22

distribution to DoS personnel only, STADIS, or even limit

23

distribution to the receipt -- to the recipient of the document,

Generally cables are issued to

9261

The cables

Classified

Originators could limit

12820

1

NODIS.

The first cable is 07 Bogota 101.

The second cable is 07

2

Bogota 5118.

3

is 07 Buenos Aires 1341.

4

sixth the cable is 07 Caracas 35.

5

25.

6

2400.

7

Panama 1198.

8

thirteenth cable is 07 San Domingo -- Santo Domingo 28.

9

fourteenth cable is 09 Bogota 2873.

The third cable is 07 Bridgetown 23.

The fifth cable is 07 Caracas 2346.

The eighth cable is 07 La Paz 1949.
The tenth cable is 07 Panama 1197.

The ninth cable is 07 Lima
The eleventh cable is 07

The twelfth cable is 07 San Salvador 1375.

The
The

The fifteenth cable is 09

Brasilia 1112.

11

seventeenth cable is 09 Caracas 1168.

12

Lima 1309.

13

cable is 09 Santiago 831.

14

The twenty-second cable is 09 Santiago 835.

15

is 09 Santo Domingo 1017.

16

The twenty-fifth cable is 09 Tegucigalpa 891.

17

is 09 Tegucigalpa 892.

The sixteenth cable is 09 Brasilia 1113.

The

The eighteenth cable is 09

The nineteenth cable is 09 Mexico 2658.

The twentieth

The twenty-first cable is 09 Santiago 833.
The twenty-third cable

The twenty-fourth cable is 09 State 92655.
The twenty-sixth cable

The twenty-seventh cable is 10 Lima 333.

With your permission, ma'am, the next stipulation of

18

Stipulation of Expected Testimony is DAS James Moore.

20

MJ:

21

ATC[CPT MITROKA]:

22

The

The seventh cable is 07 Kingston

10

19

The fourth cable

Go ahead.
It is dated 27 June 2013, and

Prosecution Exhibit 170 Alpha.

9262

marked as

12821

It is hereby agreed by the Accused, Defense Counsel and

1
2

Trial Counsel that if Deputy Assistant Secretary, DAS, James Moore

3

were present to testify during the merit and presentencing phases of

4

this court-martial, he would testify substantially as follows:
The United States Department of State, DoS, is led by the

5
6

Secretary of State.

There are six undersecretary offices that work

7

for the Secretary of State.

8

political affairs.

9

the day-to-day manager of overall regional and bilateral policy

One of those undersecretaries is for

The Undersecretary of Political Affairs serves as

10

issues.

The Undersecretary of Political Affairs oversees seven

11

bureaus which are headed by assistant secretaries.

12

African Affairs, European and Eurasian Affairs, East Asian and

13

Pacific Affairs, Near Eastern Affairs, South and Central Asian

14

Affairs, Western Hemisphere Affairs, and International Organizations.

15

The assistant secretaries of the Geographic Bureaus and Offices

16

advise the Undersecretary and guide the operation of U.S. diplomatic

17

missions within their regional jurisdiction.

18

Principal Deputy Assistant Secretary, PDAS, and several Deputy

19

Assistant Secretaries.

20

the lead Deputy Assistant Secretary, all of which assist the

21

Assistant Secretary in development and management of U.S. policy

22

concerning their geographic bureau, including preparing all

Those bureaus are

Each bureau has a

The Principal Deputy Assistant Secretary is

9263

12822

1

paperwork, background information, disciplinary issues and policy

2

directives.
I have been with DoS since 1984.

3

I am currently in

4

training and transitioning to assume the duties as Chief of Mission

5

to the Dutch Caribbean where I will serve as the Consul General to

6

Curacao.

7

the Bureau of South and Central Asian Affairs until May 2013.

8

oversee all public diplomacy in South and Central Asia including

9

Fulbright scholars, cultural programs and speaker programs.

Prior to this I was the Deputy Assistant Secretary, DAS, of
I

While

10

serving as the DAS, I was a part of the WikiLeaks working group.

11

From 2009 to 2010 I was the Deputy Director and Acting Director of

12

the Office of Career Development and Assignments in the Bureau of

13

Human Resources.

14

I was the representative for foreign service assignments.

15

From 2006 to 2009 I was the Deputy Chief of Mission, DCM, of the U.S.

16

Embassy in Sri Lanka.

17

relations and promoted the advocacy of U.S. policy.

18

2006, I was the Minister Counselor for Public Affairs at the Embassy

19

in Ankara, Turkey.

20

Programs and served as a spokesperson.

21

2002 to 2003, I attended the Senior Seminar which is an interagency

22

process and leadership course.

23

Ecuador as the Public Affairs Officer, and Buenos Aires, Argentina

I managed the embassy, conducted foreign
From 2003 to

I was the representative for DoS Public Diplomacy
From 2003 -- excuse me, from

From 1999 to 2002, I served in Quito,

9264

12823

1

from 1995 to 1999, as the Cultural Affairs Officer.

From 1993 to

2

1994, I worked assignments for South Asian and Near East Affairs,

3

NEA.

4

Chennai, India.

5

in Abu Dhabi, United Arab Emirates, UAE.

6

the Cultural Affairs Officer in Karachi, Pakistan.

7

1986, I was the Assistant Cultural Affairs Officer in Cairo, Egypt.

8

I have completed Turkish language training, Arabic language training

9

and Spanish language training while at DoS.

From 1990 to 1993, I was the Cultural Affairs Officer in
From 1988 to 1990, I was the Public Affairs Officer
From 1986 to 1988, I was
From 1985 to

I have a master's degree

10

in international relations from Georgetown University Foreign Service

11

School.

12

The mission of the Bureau of South and Central Asian

13

Affairs is to promote U.S. foreign policy interests, including strong

14

democratic governments, human rights, development and trade and

15

investment.

16

comprise the Bureau of South and Central Asian affairs:

17

Bangladesh, Nepal, Sri Lanka, Maldives, Bhutan, Kurdistan,

18

Kazakhstan, Turkmenistan, Uzbekistan and Tajikistan.

19

communicate what is occurring in the host nations through many

20

different means.

21

embassy or organization.

22

Mission, DCM, sign off as the originator on the cables because they

23

contain the official position of the embassy or organization.

The following countries compromise -- excuse me,
India,

The Embassies

Issuing a cable is an official communication by an
Typically the Ambassador or Deputy Chief of

9265

12824

1

Generally, cables are issued to summarize meetings and note

2

significant events in the host country and often contain the analysis

3

and comment of the author.

4

distribution captions, one of which is SIPDIS.

5

indicates that a cable is approved for SIPRNET distribution for

6

access by appropriately cleared individuals across numerous U.S.

7

government agencies and departments.

8

the SIPDIS caption are available to all users of SIPRNET and JWICS to

9

share information with interested agencies and departments in the

The cables are issued via the
The SIPDIS caption

Classified cables containing

10

United States Government.

Originators could limit the distribution

11

of DoS personnel only, STADIS, or even limit distribution to the

12

recipient of the document, NODIS.
The first cable is 06 Colombo 1889.

13
14

Kathmandu 3023.

15

cable is 07 Ashghabat 1359.

16

sixth cable is 07 New Delhi 80.

17

267.

The third cable is 06 Kathmandu 3024.

The fifth cable is 07 Docka 24.

The

The seventh cable is 09 New Delhi

With the Court's permission, the next Stipulation of
Expected Testimony is for Ambassador David Pearce.

20

MJ:

21

ATC[CPT MITROKA]:

22

The fourth

The eighth cable is 09 State 92641.

18
19

The second cable is 06

Go ahead.
It is dated 27 June 2013, and marked as

Prosecution Exhibit 171 Alpha.

9266

12825

It is hereby agreed by the Accused, Defense Counsel and

1
2

Trial Counsel that if Ambassador, AMB, David Pearce were present to

3

testify during the merits and presentencing phases of this court-

4

martial, he would testify substantially as follows:
The United States Department of State, DOS, is led by the

5
6

Secretary of State.

There are six undersecretary offices that work

7

for the Secretary of State.

8

political affairs.

9

the day-to-day manager of overall regional and bilateral policy

One of those undersecretaries is for

The Undersecretary of Political Affairs serves as

10

issues.

The Undersecretary of Political Affairs oversees seven

11

bureaus which are headed by assistant secretaries.

12

African Affairs, European and Eurasian Affairs, East Asian and

13

Pacific Affairs, Near Eastern Affairs, South and Central Asian

14

Affairs, Western Hemisphere Affairs and International Organizations.

Those bureaus are

15

The assistant secretaries of the geographic bureaus and

16

offices advise the undersecretary and guide the operation of U.S.

17

diplomatic missions within their regional jurisdiction.

18

has a Principal Deputy Assistant Secretary, PDAS, and several Deputy

19

Assistant Secretaries.

20

the Lead Deputy Assistant Secretary, all of which assists in the

21

development and management of U.S. policy concerning the Bureau.

22
23

Each bureau

The Principal Deputy Assistant Secretary is

I am the Principal Deputy, PD, in the Office of the Special
Representative for Afghanistan and Pakistan, S-SRAP.

9267

The PD assists

12826

1

the SRAP in advising the Secretary on Afghanistan and Pakistan, and

2

in providing guidance and direction to our missions in the two

3

countries.

4

Central Asian Affairs, SCA, and is double-headed as a Deputy

5

Assistant Secretary in SCA.

6

July of 2012.

7

The PD conducts liaison with the Bureau of South and

I have been in these positions since

S-SRAP supports -- excuse me, reports directly to the

8

Secretary of State and supervises policy and management for

9

Afghanistan and Pakistan which includes a substantial amount of

10

interagency coordination.

Prior to my current position I was the

11

Assistant Chief of Mission, A/COM, at the U.S. Embassy in Kabul from

12

2011 to July 2012.

13

positions at the Embassy.

14

public affairs consular legal management and diplomatic security

15

sections of the Embassy.

16

since 1982.

17

Vice Consul and Political Officer in Riyadh, Saudi Arabia.

18

Liaison Officer to the Kuwaiti Government in exile in Taif, Saudi

19

Arabia during the Iraqi invasion of Kuwait and the coalition

20

liberation of Kuwait.

21

positions throughout the Middle East.

22

U.S. Ambassador to the People's Democratic Republic of Algeria from

23

2008 to 2011; Chief of Mission and Consul General to the United

This is one of the five ambassador level
I supervised the political, military and

I have served with the Department of State

I began my career with the Department of State as the
I was the

Since -- I have since served in senior

9268

These positions include the

12827

1

States Consulate General in Jerusalem from 2003 to 2005; Coalition

2

Provisional Authority in Baghdad in May to June 2003; Deputy --

3

excuse me, Director of the Department of State's Office in Northern

4

Gulf Affairs with responsibility for Iraq and Iran from September

5

2001 to July 2003; Deputy Chief of Mission at the U.S. Embassy in

6

Damascus from 1997 to 2001; and Consul General in Dubai from 1994 to

7

1997.

8

Media.

9

testified in front of Congress on the Afghan elections because of my

10
11

I have written the book, Wary Partners:

Diplomats and the

I speak Arabic, French, Italian, and some Farsi.

I have

experience on Pakistan and Afghanistan.
The Embassies communicate what is occurring in the host

12

nations through many different means.

Issuing a cable is an official

13

communication by the Embassy or organization.

14

Ambassador or Deputy Chief of Mission, DCM, sign off as the

15

originator of the cables because they contain the official position

16

of Embassy or organization.

17

summarize meetings and note significant events in the host country

18

and often contain the analysis and comment of the author.

19

are issued via the distribution captions, one of which is SIPDIS.

20

The SIPDIS caption indicates that a cable is approved for SIPRNET

21

distribution for access by appropriately cleared individuals across

22

numerous U.S. Government agencies and departments.

23

containing the SIPDIS caption are available to users of SIPRNET and

Typically the

Generally, cables are issued to

9269

The cables

Classified cables

12828

1

JWICS to share information with interested agencies and departments

2

in the United States Government.

3

distribution to DoS personnel only, STADIS, or even limit

4

distribution to the addressee of the document, NODIS.

Originators could limit

The first cable is 99 Islamabad 495.

5
6

07 Kabul 68.

7

06 Kabul 5421.

The second cable is

The third cable is 06 Kabul 5420.

The fourth cable is

The fifth cable is 06 Kabul 5435.

8

Thank you.

9

The next Stipulation of Expected Testimony, with your

10

permission, ma'am, is for PDAS H. Dean Pittman.
It is dated 27 June 2013, and marked Prosecution Exhibit

11
12

172 Alpha.
It is hereby agreed by the Accused, Defense Counsel and

13
14

Trial Counsel that if Principal Deputy Assistant Secretary, PDAS, H.

15

Dean Pittman were present to testify during the merits and

16

presentencing phases of this court-martial, he would testify

17

substantially as follows:
The United States Department of State, DoS, is led by the

18
19

Secretary of State.

There are six undersecretary offices that work

20

for the Secretary of State.

21

political affairs.

22

the day-to-day manager of overall regional and bilateral policy

23

issues.

One of those undersecretaries is for

The Undersecretary of Political Affairs serves as

The Undersecretary of Political affairs oversees seven

9270

12829

1

bureaus which are headed by assistant secretaries.

Those bureaus are

2

African Affairs, European and Eurasian Affairs, Near Eastern Affairs,

3

South and Central Asian Affairs, East Asian and Pacific Affairs,

4

Western Hemisphere Affairs and International Organizations.

5

assistant secretaries of the geographic bureaus and offices advise

6

the undersecretary and guide the operation of the U.S. diplomatic

7

missions within their regional jurisdiction.

8

Principal Deputy Assistant Secretary, PDAS, and several Deputy

9

Assistant Secretaries.

The

Each bureau has a

The Principal Deputy Assistant Secretary is

10

the Lead Deputy Assistant Secretary, all of which assist in the

11

development and management of U.S. policy concerning the bureau.

12

am a career member of the foreign service and have been serving as

13

the PDAS in the Bureau of International Organizations, IO, since

14

December 2010.

15

Diplomacy Advisor for the Quadrennial Diplomacy Development and

16

Review, QDDR.

17

Secretary of State's Policy Planning Staff where I was responsible

18

for issues related to Europe and the administration's climate change

19

agenda.

20

Deputy Secretary of State, 2002 to 2003; Director for the Balkans and

21

the National Security Council, 2000 to 2002; Legislative Management

22

Officer for the East Asian and Pacific Region of the Bureau of

23

Legislative Affairs and Thailand Desk Officer.

I

I have served from 2009 to 2010 as the Senior

Prior to joining the QDDR team I was a member of the

Other domestic assignments include Special Assistant to the

9271

Overseas I served as

12830

1

the U.S. Consul General to Northern Ireland from 2004 to 2006, and

2

was assigned to the Coalition Provisional Authority in Iraq as Deputy

3

Director of the Government’s Office from 2003 to 2004.

4

overseas assignments include tours at our Embassies in Sarajevo,

5

Mozambique, and Guiana and a Detailed Assignment to the Organization

6

for Security and Cooperation in Europe, OSCE, in Bosnia.

7

joining the foreign service I worked on the staff of a U.S.

8

Congressman for 8 years.

9

volunteer in Gaban.

Other

Prior to

I was also a United States Peace Corps

I hold a master of arts degree from the Johns

10

Hopkins School of Advanced International Studies, Washington, D.C.,

11

and a bachelor of arts in political science from Millsaps College in

12

Jackson, Mississippi.

13

IO is the U.S. Government's primary interlocutor with

14

United Nations and a host of international agencies and

15

organizations.

16

President's vision of robust multilateral engagement as a crucial

17

tour in advancing U.S. national interests.

18

engagement spans the full range of important global issues, including

19

peace and security, nuclear non-proliferation, human rights, economic

20

development, climate change and much more.

21

United Nations, USUN, serves as the United States delegation to the

22

United Nations.

23

obligations in the world body.

As such, the Bureau is charged with advancing the

U.S. multilateral

The U.S. mission to the

USUN is responsible for carrying out the nation's
In the United States mission was

9272

12831

1

created by an act of Congress to assist the President and the

2

Department of State in conducting United States policy at the United

3

Nations.

4

Department of State's UN branch.

5

people on staff who serve to represent the United States political,

6

economic and social, legal, military, public diplomacy, and

7

management interests in the United Nations.

8
9

Since that time USUN has served a vital role in the
Today USUN has approximately 150

The Embassies communicate what is occurring in the host
nations through many different means.

Issuing a cable is an official

10

communication by the Embassy or organization.

Typically the

11

Ambassador or Deputy Chief of Mission, DCM, sign off as the

12

originator on the cables because they contain the official position

13

of the Embassy organization.

14

summarize meetings and note significant events in the host country

15

and often contain the analysis and comment of the author.

16

are issued via the distribution captions, one of which is SIPDIS.

17

SIPDIS -- the SIPDIS caption indicates that a cable is approved for

18

SIPRNET distribution for access by appropriately cleared individuals

19

across numerous U.S. Government agencies and departments.

20

documents containing the SIPDIS caption are available to all users of

21

SIPRNET and JWICS to share information with interested agencies and

22

departments in the United States Government.

Generally cables are issued to

9273

The cables

Classified

Originators could limit

12832

1

the distribution to DoS personnel only, STADIS, or even limit the

2

distribution to the addressee of the document, NODIS.
The first cable is 07 USUN New York 573.

3
4

is 07 USUN New York 575.

The second cable

The third cable is 07 USUN New York 578.

The next Stipulation of Expected Testimony - Charged Cables

5
6

is for Ambassador Stephen Seche, with your permission, ma'am, dated

7

27 June 2013, and marked as Prosecution Exhibit 173 Alpha.

8

MJ:

That's fine.

9

ATC[CPT MITROKA]:

It is hereby agreed by the Accused, Defense

10

Counsel and Trial Counsel that if Ambassador, AMB, Steven Seche were

11

present to testify during the merits and presentencing phases of this

12

court-martial, he would testify substantially as follows:
The United States Department of State, DoS, is led by the

13
14

Secretary of State.

15

for the Secretary of State.

16

political affairs.

17

the day-to-day manager of overall regional and bilateral policy

18

issues.

19

bureaus which are headed by assistant secretaries.

20

African Affairs, European and Eurasian Affairs, East Asian and

21

Pacific Affairs, Near Eastern Affairs, South and Central Asian

22

Affairs, and International Organizations.

23

of the geographic bureaus and offices advise the undersecretary and

There are six undersecretary offices that work
One of those secretaries is for

The Undersecretary of Political Affairs serves as

The Undersecretary for Political Affairs oversees seven

9274

Those bureaus of

The assistant secretaries

12833

1

guide the operation of the U.S. diplomatic missions with their --

2

within their regional jurisdiction.

3

Deputy Assistant Secretary, PDAS, and several Deputy Assistant

4

Secretaries.

5

which assist in the development and management of U.S. policy

6

concerning the bureau.

7

Each bureau has a Principal

The PDAS is the Lead Deputy Assistant Secretary, all of

I recently retired after 35 years of service in the DoS.

8

am a career foreign service officer and have spent most of my DoS

9

career engaged in the practice of public diplomacy.

I

My last position

10

at the DoS was serving as Deputy Assistant Secretary of State for the

11

Arabian Gulf in the Bureau of Near Eastern Affairs from August 2011

12

to May 2013.

13

August 2007 to August 2010.

14

Research Associate at Georgetown University's Institute for the Study

15

of Diplomacy.

16

fellow at the University of Southern California where I taught in the

17

recently established master's degree program in public diplomacy.

18

From February 2005 to August 2006, I served as the Charge D'Affaires

19

at the U.S. Embassy in Damascus, Syria following the departure of the

20

Ambassador in the wake of the murder of former Lebanese Prime

21

Minister Rafic Hariri.

22

Mission at the U.S. Embassy in Damascus, Syria for 6 months.

23

was my second tour in Damascus.

Before that I served as U.S. Ambassador to Yemen from
I spent the intervening year as a

During the 2006 to 2007 academic year I was a visiting

Before that I was the Deputy of Chief of
This

From 1999 to 2002, I was Counselor

9275

12834

1

for Public Affairs and Director of the American Cultural Center.

I

2

spent the 2 years between my Damascus assignments as the Director of

3

Office for Egypt and Levant Affairs at the DoS in Washington, D.C.

4

entered the foreign service in 1974 and spent the first 7 years of my

5

career in public diplomacy positions in Guatemala, Peru and Bolivia.

6

Other overseas assignments have included 4 years, 1989 to 1993, as

7

Information Officer at the U.S. Embassy in Ottawa, Canada, and 4

8

years, 1993 to 1997, as Press Attaché at the U.S. Embassy in New

9

Delhi, India.

I

Following my service in India I returned to Washington

10

for the first 2 years of Arabic language training, completing the

11

program at the Foreign Service Institute Field School in Tunis.

12

received my BA from the University of Massachusetts at Amherst and

13

spent 4 years as a journalist before entering the foreign service.

14

The Bureau of Near Eastern affairs, NEA, deals with U.S.

I

15

foreign policy and U.S. diplomatic relations with Algeria, Bahrain,

16

Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Libya, Morocco,

17

Oman, Palestinian Territories, Qatar, Saudi Arabia, Syria, Tunisia,

18

United Arab Emirates and Yemen.

19

handles include Iraq Middle East peace process, terrorism and weapons

20

of mass destruction, and political and economic reform.

21

topics include:

22

prosperous country; two, renewing progress toward the two state

23

solution to the Palestinian-Israeli conflict; three, working against

Regional policy issues that NEA

Key regional

One, helping Iraqis build a unified, stable and

9276

12835

1

terrorists and their state sponsors as well as against the spread of

2

weapons of mass destruction; and four, supporting effort at economic

3

and political reform in the region.

4

The embassies communicate what is occurring in the host

5

nations through many different means.

Issuing a cable is an official

6

communication by the Embassy or organization.

7

Ambassador or Deputy Chief of Mission, DCM, sign off as the

8

originator on the cables because they contain the official position

9

of the Embassy or organization.

Typically the

Generally, cables are issued to

10

summarize meetings and note significant events in the host country

11

and often contain the analysis and comment of the author.

12

are issued via the distribution captions, one of which is SIPDIS.

13

The SIPDIS caption indicates that a cable is approved for SIPRNET

14

distribution, for access by appropriately cleared individuals across

15

numerous U.S. Government agencies and departments.

16

containing the SIPDIS caption are available to all users of SIPRNET

17

and JWICS to share information with interested agencies and

18

departments in the United States Government.

19

distribution to DoS personnel only, STADIS, or even limit

20

distribution to the recipient of the document, NODIS.

21

The first cable is 05 Algiers 1836.

22

Algiers 1961.

23

06 Baghdad 4205.

Classified cables

Originators could limit

The next cable is 06

The next cable is 06 Baghdad 2646.

The next cable is

The next cable is 06 Beirut 3603.

9277

The cables

The next cable

12836

1

is 06 Beirut 3604.

The next cable is 06 Beirut 3703.

The next cable

2

is 06 Kuwait 4430.

The next cable is 06 Kuwait 4438.

The next cable

3

is 06 Riyadh 8811.

The next cable is 06 Tripoli 645.

The next cable

4

is 06 Tripoli 648.

The next cable is 07 Baghdad 35.

5

is 07 Baghdad 36.

The next cable is 07 Baghdad 37.

The next cable

6

is 07 Baghdad 42.

The next cable is 07 Baghdad 53.

The next cable

7

is 07 Baghdad 56.

The next cable is 07 Baghdad 63.

The next cable

8

is 07 Baghdad 64.

The next cable is 07 Baghdad 70.

The next cable

9

is 07 Basra 3.

10

07 Riyadh 21.

11

Riyadh 23.

12

535.

13

2390.

14

294.

15

The next cable is 07 Beirut 1958.
The next cable is 07 Riyadh 22.

The next cable is 07 Tunis 47.

The next cable is 08 Cairo 569.

The next cable is

The next cable is 07

The next cable is 08 Oman

The next cable is 09 Baghdad

The next cable is 09 Riyadh 1156.

The next cable is 10 Rabat

The next Stipulation of Expected Testimony - Uncharged

16

Cables, is also for Ambassador Stephen Seche.

17

2013 and marked Prosecution Exhibit 174 Alpha.

18

The next cable

It is dated 27 June

It is hereby agreed by the Accused, Defense Counsel, and

19

Trial Counsel that if Ambassador, AMB, Stephen Seche were present to

20

testify during the merits and presentencing phases of this court-

21

martial he would testify substantially as follows:

9278

12837

Although not within what was previously marked as PE 173

1
2

for ID -- PE 173 Charlie for ID is now PE 173 Charlie or AE 501.

3

have reviewed the following cables.
The next cable is 09 State 15113.

4
5

I

The next cable is 09

Doha 214.
The next Stipulation of Expected Testimony, ma'am, is for

6
7

Ambassador Don Yamamoto.

8

Exhibit 175 Alpha.

It is dated 27 June 2013, Prosecution

It is hereby agreed by the Accused, Defense Counsel, and

9
10

Trial Counsel that if Ambassador, AMB, Don Yamamoto were present to

11

testify during the merits and presentencing phases of this court-

12

martial, he would testify substantially as follows:
The United States Department of State, DoS, is led by the

13
14

Secretary of State.

15

for the Secretary of State.

16

political affairs.

17

the day-to-day manager of overall regional and bilateral policy

18

issues.

19

bureaus which are headed by assistant secretaries.

20

African Affairs, European and Eurasian Affairs, East Asian and

21

Pacific Affairs, Near Eastern Affairs, South and Central Asian

22

Affairs, Western Hemisphere Affairs and International Organizations.

23

The assistant secretaries of the geographic bureaus and offices

There are six undersecretary offices that work
One of those undersecretaries is for

The Undersecretary of Political Affairs serves as

The Undersecretary of Political Affairs oversees seven

9279

Those bureaus are

12838

1

advise the undersecretary and guide the operation of the U.S.

2

diplomatic missions within their regional jurisdiction.

3

has a Principal Deputy Assistant Secretary, PDAS, and several Deputy

4

Assistant Secretaries.

5

the Lead Deputy Assistant Secretary, all of which assist in the

6

development and management of U.S. policy concerning the Bureau.

7

am the Acting Assistant Secretary, AA/S, and the PDAS of the Bureau

8

of African Affairs.

9

PDAS since 1 August 2009.

Each bureau

The Principal Deputy Assistant Secretary is

I

I have been the AA/S since 1 April 2013, and
My prior assignments include serving as

10

the U.S. Ambassador to the Federal Democratic Republic of Ethiopia

11

from November 2006 to July 2009.

12

United States in the relevant country and advocate the policies of

13

the United States.

14

of State in the Bureau of African Affairs from 2003 to 2006, where I

15

was responsible for coordinating U.S. policy towards over 20

16

countries in East and Central Africa.

17

Ambassador to the Republic of Djibouti from 2000 to 2003, and was the

18

Deputy Director for East African Affairs from 1998 to 2000.

19

also served in Eritrea as Charge D'Affaires at the U.S. Embassy in

20

Asmara in the Horn of Africa from 1996 to 1998.

21

foreign service in 1980.

22

Embassy Beijing as Ambassador Staff Aid and Human Rights Officer

23

during the Tiananmen Square demonstrations in 1989 and Japan as

As Ambassador you represent the

I have also served as Deputy Assistant Secretary

I have served as U.S.

I have

I entered the

Additional former assignments include U.S.

9280

12839

1

Principal Officer in the Fukuoka Consulate.

I attended the National

2

War College from 1995 to 1996 for senior training and received a

3

congressional fellowship in 1991.

4

University receiving a master's degree in international affairs.

5

have also studied Chinese, Japanese, Arabic and French.

6

foreign service career I have received 12 Senior Performance Awards,

7

for Individual Superior Honor -- four Individual Superior Honor

8

Awards, two group awards, and the 2006 Robert Frasure Memorial Award

9

for advancing conflict resolution in Africa.

I did graduate studies at Columbia
I

During my

I have testified in

10

front of Congress on numerous occasions to provide expertise in

11

African affairs.
The Bureau of African Affairs is focused on the development

12
13

and management of U.S. policy concerning the continent of Africa.

14

There are five pillars that serve as the foundation of U.S. policy

15

toward Africa.

16

democratic institutions on the continent including free, fair and

17

transparent erections.

18

development.

19

Four.

20

initiative, feed the future and the global claim at change

21

initiative.

22

transnational issues such as drug smuggling, money laundering,

23

illicit arms and trafficking in persons.

One.

Support for democracy and the strengthening of

Two.

Supporting African economic growth and

Three. Conflict prevention, mitigation and resolution.

Supporting Presidential initiatives such at global health

And five.

Working with the African nations on

9281

12840

The Embassies communicate what is occurring in host nations

1
2

through many different means.

Issuing a cable is an official

3

communication by the Embassy or organization.

4

Ambassador or Deputy Chief of mission, DCM, sign off as the

5

originator on the cables because they contain the official position

6

of the Embassy or organization.

7

summarize meetings and note significant events in the host country

8

and often contain the analysis and comment of the author.

9

are issued via the distribution captions, one of which is SIPDIS.

10

The SIPDIS caption indicates that a cable is approved for SIPRNET

11

distribution for access by appropriately cleared individuals across

12

numerous U.S. Government agencies and departments.

13

containing the SIPDIS caption are available to all users of SIPRNET

14

and JWICS to share information with interested agencies and

15

departments in the United States Government.

16

distribution to DoS personnel only, STADIS, or even limit

17

distribution to the addressee of the document, NODIS, but this is

18

rarely done.

Generally, cables are issued to

The first cable is 10 Pretoria 636.

19

Typically the

20

-- excuse me, is 08 Khartoum 246.

21

428.

22

Ababa 1063.

Classified cables

Originators could limit

The second cable is 8

The third cable is 08 Khartoum

The fourth cable is 07 Lagos 179.

The fifth cable is 07 Addis

The sixth cable is 07 Addis Ababa 2197.

9282

The cables

The seventh

12841

1

cable is 09 Bamako 85.

The seventh [sic] cable is 09 -- excuse me,

2

is 08 Dar es Salaam 206.
The next Stipulation of Expected Testimony, Your Honor, is

3

It is dated 27 June 2013, and

4

for Ambassador Marie Yovanovitch.

5

marked as Prosecution Exhibit 176 Alpha.
It is hereby agreed by the Accused, Defense Counsel and

6
7

trial counsel that if Ambassador, AMB, Marie Yovanovitch were present

8

to testify during the merits and presentencing phases of this court-

9

martial, she would testify substantially as follows:
The United States Department of State, DoS, is led by the

10
11

Secretary of State.

There are six undersecretary offices that work

12

for the Secretary of State.

13

political affairs.

14

the day-to-day manager of overall regional and bilateral policy

15

issues.

16

bureaus which are headed by assistant secretaries.

17

African Affairs, European and Eurasian Affairs, East Asian and

18

Pacific Affairs, Near Eastern Affairs, South and Central Asian

19

Affairs, Western Hemisphere Affairs and International Organizations.

20

The assistant secretaries of the geographic bureaus and offices

21

advise the undersecretary and guide the operation of the U.S.

22

diplomatic missions within their regional jurisdiction.

23

determine and implement policy.

One of those undersecretaries is for

The Undersecretary of Political Affairs serves as

The Undersecretary of Political Affairs oversees seven
Those bureaus are

They also

Each bureau has a Principal Deputy

9283

12842

1

Assistant Secretary, PDAS, and several Deputy Assistant Secretaries.

2

The Principal Deputy Assistant Secretary is the Lead DAS of all whom

3

assist the AS in the development and management of U.S. policy

4

concerning the Bureau.

5

information, disciplinary issues, and policy directives.

6

The DAS’ review all paperwork, background

I am the Acting Assistant Secretary, AA/S, and the PDAS of

7

the Bureau of European and Eurasian Affairs.

I have been the AA/S

8

for European and Eurasian Affairs since March 2013.

9

PDAS for European and Eurasian Affairs since September 2012.

I have been the
Before

10

that I served as the Bureau's DAS responsible for issues related to

11

the Nordic, Baltic and Central European countries from June 2011 to

12

September 2012.

13

Republic of Armenia.

14

that manages employees and relations with that country.

15

2008, I was the United States -- excuse me, I was the U.S. Ambassador

16

to Kurdistan.

17

Political Affairs from 2004 to 2005.

18

Deputy Chief of Mission, DCM, of the U.S. Embassy in Kiev, Ukraine.

19

In 2000, I attended the Navy War College, NWC.

20

was Deputy Director of the Russia desk.

21

in Ottawa at the U.S. Embassy.

22

Embassy Moscow.

23

Service Institute, FSI.

From 2008 to 2011, I was the Ambassador to the
An Ambassador is the President's representative
From 2005 to

Before that I was the Executive Assistant for U.S.
From 2001 to 2002, I was the

From 1998 to 2000, I

From 1996 to 1998, I worked

From 1993 to 1996, I worked at U.S.

From 1992 to 1993, I studied Russian at the Foreign
From 1991 to 1992, I worked at the Office of

9284

12843

1

European Security Affairs.

2

operations center which is the nerve center of DoS.

3

to 1990, I worked at the U.S. Embassy in London.

4

I worked at U.S. Embassy Mogadishu.

5

I have a master's of science from the NWC.

6

Princeton University where I earned a bachelor of arts in history and

7

Russian studies.

8

affairs because of my expertise on European and Eurasian affairs.

9

also speak Russian.

10

From 1990 to 1991, I worked in the
From 1998 [sic]

From 1986 to 1988,

I have been with DoS since 1986.
I am also a graduate of

I have briefed Congress on European and Eurasian
I

The Bureau of European and Eurasian affairs develops and

11

implements U.S. foreign policy in Europe and Eurasia.

12

promotes U.S. interests in the region on issues such as international

13

security, NATO, coordination with the European Union and other

14

regional organizations, support for democracy, human rights, civil

15

society, economic prosperity, counter-terrorism and non-

16

proliferation.

17

platforms for handling issues all over the world.

18

The Bureau

The countries are our oldest allies and they are

The Embassies communicate what is occurring in the host

19

nations through many different means.

Issuing a cable is an official

20

communication by the Embassy or organization.

21

Ambassador or Deputy Chief of Mission, DCM, sign off as the

22

originator on the cables because they are in charge of the Embassy or

23

organization.

Typically the

Generally, cables are issued to summarize meetings and

9285

12844

1

note significant events in the host country, and often contain the

2

analysis and comment of the author.

3

distribution captions that to varying degrees limit who can see them.

4

One of those captions was SIPDIS.

5

a cable was approved for SIPRNET distribution for access by

6

appropriately cleared individuals.

7

distribution through other captions such at STADIS which would limit

8

distribution to DoS personnel only, or limit distribution to the

9

addressee of the document with a NODIS caption.

The cables are issued with

The SIPDIS caption indicated that

U.S. originators can limit

The first cable is 10 Reykjavik 13.

10

The next cable is 07

11

Belgrade 1681.

The next cable is 06 Madrid 2955.

The next cable is

12

06 Madrid 2956.

13

is 06 Pristina 948.

14

is 07 Ankara 2468.

15

cable is 07 Minsk 1024.

16

cable is 07 Moscow 5825.

17

cable is 07 Paris 4723.

18

next cable is 07 Vilnius 13.

The next cable is 09 Paris 217.

19

next cable is 09 Prague 88.

The next cable is 09 Pristina 58.

20

next cable is 09 State 92632.

The next cable is 09 State 92657.

21

next cable is 10 Brussels 382.

The next cable is 10 Geneva 347.

The next cable is 06 Pristina 947.
The next cable is 07 Ankara 23.

The next cable
The next cable

The next cable is 07 Bratislava 665.

22

ADC[MAJ HURLEY]:

23

MJ:

The next

The next cable is 07 Moscow 5824.

The next

The next cable is 07 Paris 4722.

The next

The next cable is 07 Reykjavik 203.

Ma'am?

Yes.

9286

The
The
The
The

12845

1

ADC[MAJ HURLEY]:

Could we request a rereading of one

2

particular sentence from Paragraph 2, Page 1 of this last

3

stipulation?

4

MJ:

5

ADC[MAJ HURLEY]:

6

Yes.

Which one.
It's the paragraph that begins from 2000 --

as it's written on the page, ‘from 2001 to 2004’.

7

MJ:

8

ADC[MAJ HURLEY]:

Yes, ma'am.

9

ATC[CPT MITROKA]:

From 2001 to 2004, I was the Deputy Chief of

10

Just that sentence?

Mission, DCM, of the U.S. Embassy in Kiev, Ukraine.

11

ADC[MAJ HURLEY]:

12

MJ:

13

ATC[CPT MITROKA]:

Thank you, ma'am.

Okay.
The next Stipulation of Expected Testimony

14

is for AA/S Joseph Yun.

15

Prosecution Exhibit 177 Alpha.

16

Thank you.

It is dated 27 June 2013.

It is marked

It is hereby agreed by the Accused, Defense Counsel and

17

Trial Counsel that if Acting Assistant Secretary, AA/S, Joseph Yun

18

were present to testify during the merits and presentencing phases of

19

this court-martial, he would testify substantially as follows:

20

The United States Department of State, DoS, is led by the

21

Secretary of State.

There are six undersecretary offices that work

22

for the Secretary of State.

23

political affairs.

One of those undersecretaries is for

The Undersecretary of Political Affairs serves as

9287

12846

1

the day-to-day manager of overall regional and bilateral policy

2

issues.

3

bureaus which are headed by assistant secretaries.

4

African Affairs, European and Eurasian Affairs, East Asian and

5

Pacific Affairs, Near Eastern Affairs, South and Central Asian

6

Affairs, Western Hemisphere Affairs, and International Organizations.

7

The assistant secretaries of the geographic bureaus and offices

8

advise the undersecretary and guide the operation of the U.S.

9

diplomatic missions within their regional jurisdiction.

The Undersecretary of Political Affairs oversees seven
Those bureaus are

Each bureau

10

has a Principal Deputy Assistant Secretary, PDAS, and several Deputy

11

Assistant Secretaries.

12

the Lead Deputy Assistant Secretary, all of which assist in the

13

development and management of U.S. policy concerning the Bureau.

The Principal Deputy Assistant Secretary is

I am the AA/S and the PDAS of the Bureau of East Asian and

14

The Bureau deals with U.S. foreign policy and U.S.

15

Pacific Affairs.

16

relations with the countries in the Asian -- excuse me, in the Asia

17

Pacific region.

18

Secretary of the same bureau.

19

foreign service, class of minister counselor.

20

assignments have been in South Korea, Thailand, France, Indonesia and

21

Hong Kong.

22

Senior Economist for Data Resources, Inc.

23

and Pacific Affairs covers approximately 40 posts in 26 countries

My previous assignment was as Deputy Assistant
I am a career member of the senior
My overseas

Before joining the U.S. foreign service in 1985, I was

9288

The Bureau of East Asian

12847

1

including Korea, Taiwan, Thailand, Hong Kong, Philippines, Australia

2

and Japan.

3

region include promoting regional stability, fostering democracy and

4

human rights, encouraging economic prosperity, furthering cooperation

5

on fighting transnational issues and international crime, and

6

preventing the proliferation of weapons of mass destruction.

7

The United States' interests in the East Asia Pacific

The Embassies communicate what is occurring in the host

8

nations through many different means.

Issuing a cable is an official

9

communication by the Embassy or organization.

Typically the

10

Ambassador or Deputy Chief of Mission, DCM, sign off as the

11

originator on the cables because they contain the official position

12

of the Embassy or organization.

13

summarize meetings and note significant events in the host country

14

and often contain the analysis and comment of the author.

15

are issued via the distribution captions, one of which is SIPDIS.

16

The SIPDIS caption indicates that a cable is approved for SIPRNET

17

distribution for access by appropriately cleared individuals across

18

numerous U.S. Government agencies and departments.

19

containing the SIPDIS caption are available to all users of SIPRNET

20

and JWICS to share information with interested agencies and

21

departments in the United States Government.

22

distribution to DoS personnel only, STADIS, or even limit

23

distribution to the addressee of the document, NODIS.

Generally cables are issued to

9289

The cables

Classified cables

Originators could limit

12848

The first cable is 07 Bangkok 111.

1

The next cable is 06

2

Taipei 3830.

3

is 07 Rangoon 22.

The next cable is 07 Vientiane 12.

4

is 06 Seoul 3882.

The next cable is 06 Seoul 3885.

5

is 06 Suva 489.

6

Tokyo 627.

7
8
9

The next cable is 07 Kuala Lumpur 40.

The next cable is 07 Suva 18.

The next cable
The next cable
The next cable

The next cable is 10

The next cable is 07 Beijing 152.

TC[MAJ FEIN]:

Ma'am, the United States requests a comfort

break.
MJ:

All right.

10

TC[MAJ FEIN]:

11

MJ:

How long would you like?

Fifteen minutes, ma'am.

All right.

Court is in recess until 6:00 o’clock or 1800.

12

[The court-martial recessed at 1752, 27 June 2013.]

13

[The court-martial was called to order at 1813, 27 June 2013.]

14

MJ:

Court called to order.

Let the record reflect all parties

15

present when the Court last recessed are again present in court.

16

the government ready to proceed?

17

TC[MAJ FEIN]:

18

MJ:

Yes, ma'am.

Before you get started, just for the record, over the

19

recess I admitted all of the remaining exhibits that were

20

outstanding.

21

Is

Go ahead.

ATC[CPT MITROKA]:

Thank you, ma'am.

The next Stipulation of

22

Expected Testimony is for Mr. Nicholas M. Murphy.

23

June 2013, and marked Prosecution Exhibit 178.

9290

It is dated 27

12849

1

It is hereby agreed by the Accused, Defense Counselm and

2

Trial Counsel that if Senior Advisor for the Office of Information

3

Programs and Services, Mr. Nicholas M. Murphy, were present to

4

testify during the merits and presentencing phases of this court-

5

martial, he would testify substantially as follows:

6

I am currently a Senior Advisor with the Office of

7

Information Programs and Services (IPS), Bureau of Administration,

8

Department of State (DoS).

9

access with focuses on the classification and declassification of

In this capacity, I advise on information

10

information.

Since 1996, I have served as the DoS Liaison to the

11

Interagency Security Classification Appeals Panel (IS CAP) and, since

12

2005, I have served as the alternate Department of State

13

Representative to the ISCAP.

14

Executive Order 12958 to, among other functions, adjudicate the

15

denial of access to classified information requested under the

16

mandatory review provisions of the E.O.

17

Foreign Service Officer with service in Turkey, Lebanon, Saudi

18

Arabia, France, and Senegal, as well as multiple postings in

19

Washington, D.C.

20

organizations for 24 years, and have over 45 years of experience in

21

management of access to national security information, security, and

22

intelligence, including serving as the State Department

23

representative on the drafting committees for the Executive Orders

The ISCAP is the panel established by

Prior to this, I served as a

I have been an employee of iPS or its predecessor

9291

12850

1

(E.O.) on classified national security information (E.O. 12958 and

2

E.O. 13526), and their implementing directives.

3

in the implementation of the Freedom of Information Act policies in

4

the Department and have been working with classification and

5

declassification issues since 1990.

6

I have been involved

I am also an Original Classification Authority (OCA) and

7

have been an OCA for approximately 23 years.

My responsibilities in

8

that position include the review of Department State information for

9

classification purposes pursuant to E.O. 13526.

Per E.O. 13 526,

10

Section 1.3, the authority to classify information originally may be

11

exercised only by an OCA, and must be delegated by the President, the

12

Vice President, or an agency head or designated official.

13

The information -- excuse me.

Information which requires

14

protection in the interest of the national security of the United

15

States is designated classified national security information per

16

E.O. 13526, Classified National Security Information, signed by

17

President Obama on 29 December 2009, and for information classified

18

prior to June 27, 2010, according to E.O. 12958 signed by President

19

Clinton on April 17, 1995, as amended by President George W. Bush on

20

March 25, 2003.

21

with the assessment that authorized -- that unauthorized disclosure

22

could cause the following expected damage to national security:

23

exceptionally grave damage to national security-Top Secret; for

Information is classified in levels commensurate

9292

for

12851

1

serious damage to national security-Secret; and for damage to

2

national security-Confidential.

3

Within the Department of State, classified information is

4

handled and protected in accordance with: a. E.O. 13526 (and

5

predecessor orders) on Classified National Security Information; b.

6

Information Security Oversight Office (ISOO) Implementing Directive,

7

Classified National Security Information, 32 C.F.R. Parts 2001 and

8

2003; and c. The 12th volume of the Foreign Affairs Manual (FAM),

9

section 500, titled Information Security.

10

In total, five categories of classified information, as

11

identified in E.O. 13526 and its predecessor E.O.'s, were included in

12

the documents I reviewed.

13

State encompasses the conduct of foreign relations of the United

14

States, the Department-relies primarily upon two classification

15

categories when protecting national security information, which are

16

identified in Section 1.4 of E.O. 13526 as 1.4(b) (foreign government

17

information) and 1.4(d) (foreign relations or foreign activities of

18

the United States, including confidential sources).

19

small number of specific documents described below also require

20

protection under classification categories 1.4(a) (military plans,

21

weapons systems or operations), 1.4(e) (scientific, technological or

22

economic matters) and 1.4(g), (vulnerabilities and capabilities of

23

systems and installations).

Because the mission of the Department of

Additionally, a

These classification categories apply to

9293

12852

1

the documents in cases where the subject of the diplomatic discourse

2

or communication also included a discussion of information related to

3

these categories.

4

identified below.

The reason for classification of each cable is

Classified information should be handled and examined only

5
6

under such conditions as are adequate to prevent unauthorized persons

7

from gaining access.

8

designated work areas or moved from information systems, e.g.,

9

classified databases, computer networks, servers, or computers,

Classified material may not be removed from

10

except in the performance of official duties and under special

11

conditions which provide protection for the classified material.
I reviewed the 117 charged Department of State cables, or

12

Specifically, I reviewed all of the

13

telegrams, related to this case.

14

cables contained in Appellate Exhibit 501 and with the Bates numbers:

15

00376954 to 00376959, 00376964 to 00377030, 00377033 to 00377044,

16

00377049 to 00377098, 00377104 to 00377136, 00377141 to 00377185,

17

00377188 to 00377365, 00377370 to 00377391, 00377395 to 00377424,

18

00377499 to 00377572, 00377638 to 00377653, and 00377660 to 00377671.

19

What has been previously marked as Prosecution Exhibit (PE) for

20

Identification and now is Prosecution Exhibits 169c, 170c, 171c,

21

172c, 173c, 174c, 175c, 176c, and 177c, contain all of these

22

documents.

In consultation with the subject matter experts in each

9294

12853

1

of the relevant geographic and functional bureaus, as an OCA, I

2

determine the following for each charged cable:
The 10REYKJAVIK13 telegram is an official telegram from

3
4

Embassy Reykjavik, dated January 13th, 2010 to the Department of

5

State.

6

classified CONFIDENTIAL under E.O. 13526 under Sections 1.4 (b) and

7

(d) at the time it was generated and remained classified in the first

8

half of 2010.

9

This telegram is three pages.

The telegram was properly

The 99ISLAMABAD495 telegram is an official telegram from

10

Embassy Islamabad, dated January 25, 1999 to the Department of State.

11

This telegram is six pages.

12

CONFIDENTIAL under E.O. 12958 at the time it was generated and

13

portions of the telegram remained classified CONFIDENTIAL under E.O.

14

13526 under Section 1.4 (d) in the first half of 2010.

15

The telegram was properly classified

The 05ALGIERS-1836 telegram is an official telegram from

16

Embassy Algiers, dated August 29, 2005 to the Department of State.

17

This telegram is six pages.

18

CONFIDENTIAL under E.O. 12958 at the time it was generated and

19

portions of the telegram remained classified CONFIDENTIAL under E.O.

20

13526 under Sections 1.4 (b) and (d) in the first half of 2010.

21

The telegram was properly classified

The 06ALGIERS-1961 telegram is an official telegram from

22

Embassy Algiers, dated November 12, 2006 to the Department of State.

23

This telegram is six pages.

The telegram was properly classified

9295

12854

1

CONFIDENTIAL in part under E.O. 12958 at the time it was generated

2

and portions of the telegram remained classified CONFIDENTIAL under

3

E.O. 13526 under Section 1.4 (d) in the first half of 2010.

4

The 06BAGHDAD2646 telegram is an official telegram from

5

Embassy Baghdad, dated July 24, 2006 to the Department of State.

6

This telegram is three pages.

7

SECRET under E.O. 12958 at the time it was generated.

8

remained classified SECRET under E.O. 13526 under Section 1.4 (d) in

9

the first half of 2010.

10

The telegram was properly classified
The telegram

The 06BAGHDAD4205 telegram is an official telegram from

11

Embassy Baghdad, dated November 10, 2006 to the Department of State.

12

This telegram is four pages.

13

CONFIDENTIAL under E.O. 12958 at the time it was generated. The

14

telegram remained classified CONFIDENTIAL under E.O. 13526 under

15

Section 1.4 (d) in the first half of 2010.

16

The telegram was properly classified

The 06BEIRUT3603 telegram is an official telegram from

17

Embassy Beirut, dated November 11, 2006 to the Department of State.

18

This telegram is six pages.

19

SECRET under E.O. 12958 at the time it was generated.

20

remained classified SECRET under E.O. 13526 under Sections 1.4 (b)

21

and (d) in the first half of 2010.

22
23

The telegram was properly classified
The telegram

The 06BEIRUT3604 telegram is an official telegram from
Embassy Beirut, dated November 12, 2006 to the Department of State.

9296

12855

1

This telegram is four pages.

2

SECRET under E.O. 12958 at the time it was generated.

3

remained SECRET under E.O. 13526 under Section 1.4 (d) in the first

4

half of 2010.

5

The telegram was properly classified
The telegram

The BEIRUT3703 [sic] telegram is an official telegram from

6

Embassy Beirut, dated 27 -- excuse me, dated November 27, 2006 to the

7

Department of State.

8

telegram were properly classified SECRET under E.O. 12958 at the time

9

it was generated and portions of the telegram remained properly

This telegram is four pages.

Portions of the

10

classified under -- excuse me, portions of the telegram remain

11

classified SECRET under E.O. 13526 under Section 1.4 (d) in the first

12

half of 2010.

13

The 06BELGRADE1681 telegram is an official telegram from

14

Embassy Belgrade, dated October 17, 2006 to the Department of State.

15

This telegram is five pages.

16

CONFIDENTIAL under E.O. 12958 at the time it was generated.

17

telegram remained classified CONFIDENTIAL under E.O. 13526 under

18

Sections 1.4 (b) and (d) in the first half of 2010.

19

The telegram was properly classified
The

The 06COLOMBO1889 telegram is an official telegram from

20

Embassy Colombo, dated November 10, 2006 to the Department of State.

21

This telegram is four pages.

22

CONFIDENTIAL under E.O. 12958 at the time it was generated and

The telegram was properly classified

9297

12856

1

portions of the telegram remained classified CONFIDENTIAL under E.O.

2

13526 under Sections 1.4 (b) and (d) in the first half of 2010.

3

The 06KABUL5420 telegram is an official telegram from

4

Embassy Kabul, dated November 10, 2006 to the Department of State.

5

This telegram is three pages.

6

CONFIDENTIAL in part under E.O. 12958 at the time it was generated

7

and portions of the telegram remained classified CONFIDENTIAL under

8

E.O. 13526 under Sections 1.4 (b) and (d) in the first half of 2010.

The telegram was properly classified

The 06KABUL5421 telegram is an official telegram from

9
10

Embassy Kabul, dated November 10, 2006 to the Department of State.

11

This telegram is seven pages.

12

CONFIDENTIAL in part under E.O. 12958 at the time it was generated

13

and portions of the telegram remained classified CONFIDENTIAL under

14

E.O. 13526 under Sections 1.4 (b) and (d) in the first half of2010.

The telegram was properly classified

The 06KABUL5435 telegram is an official telegram from

15
16

Embassy Kabul, dated November 12, 2006 to the Department of State.

17

This telegram is six pages.

18

CONFIDENTIAL under E.O. 12958 at the time it was generated and

19

portions of the telegram remained classified CONFIDENTIAL under E.O.

20

13526 under Sections 1.4 (b) and (d) in the first half of 2010.

The telegram was properly classified

The 06KATHMANDU3023 telegram is an official telegram from

21
22

Embassy Kathmandu, dated November 10, 2006 to the Department of

23

State.

This telegram is five pages.

9298

The telegram was properly

12857

1

classified CONFIDENTIAL in part under E.O. 12958 at the time it was

2

generated and portions of the telegram remained classified

3

CONFIDENTIAL under E.O. 13526 under Sections 1.4 (b) and (d) in the

4

first half of 2010.
The 06KATHMANDU3024 telegram is an official telegram from

5
6

Embassy Kathmandu, dated November 10, 2006 to the Department of

7

State.

8

classified CONFIDENTIAL under E.O. 12958 at the time it was generated

9

and portions of the telegram remained classified CONFIDENTIAL under

10
11

This telegram is seven pages. The telegram was properly

E.O. 13526 under Sections 1.4 (b) and (d) in the first half of 2010.
The 06KUWAIT4430 telegram is an official telegram from

12

Embassy Kuwait, dated November 10, 2006 to the Department of State.

13

This telegram is five pages.

14

CONFIDENTIAL in part under E.O. 12958 at the time it was generated

15

and portions of the telegram remained classified CONFIDENTIAL under

16

E.O. 13526 under Sections 1.4 (b) and (d) in the first half of 2010.

17

The telegram was properly classified

The 06KUWAIT4438 telegram is an official telegram from

18

Embassy Kuwait, dated November 12, 2006 to the Department of State.

19

This telegram is five pages.

20

CONFIDENTIAL in part under E.O. 12958 at the time it was generated

21

and portions of the telegram remained classified CONFIDENTIAL under

22

E.O. 13526 under Section 1.4( d) in the first half of 2010.

The telegram was properly classified

9299

12858

1

The 06MADRID2955 telegram is an official telegram from

2

Embassy Madrid, dated November 27, 2006 to the Department of State.

3

This telegram is three pages.

4

CONFIDENTIAL under E.O. 12958 at the time it was generated.

5

telegram remained classified CONFIDENTIAL under E.O. 13526 under

6

Sections 1.4 (b) and (d) in the first half of 2010.

7

The telegram was properly classified
The

The 06MADRID2956 telegram is an official telegram from

8

Embassy Madrid, dated November 27, 2006 to the Department of State.

9

This telegram is three pages.

The telegram was properly classified

10

CONFIDENTIAL under E.O. 12958 at the time it was generated.

The

11

telegram remained classified CONFIDENTIAL under E.O. 13526 under

12

Sections 1.4 (b) and (d) in the first half of 2010.

13

The 06PRISTINA947 telegram is an official telegram from US

14

Office Pristina, dated November 11, 2006 to the Department of State.

15

This telegram is six pages.

16

CONFIDENTIAL in part under E.O. 12958 at the time it was generated

17

and portions of the telegram remained classified CONFIDENTIAL under

18

E.O. 13526 under Sections 1.4 (b) and (d) in the first half of 2010.

19

The 06PRISTINA948 telegram is an official telegram from US

20

Office Pristina, dated November 11, 2006 to the Department of State.

21

This telegram is five pages.

22

CONFIDENTIAL under E.O. 12958 at the time it was generated and

The telegram was properly classified

The telegram was properly classified

9300

12859

1

portions of the telegram remained classified CONFIDENTIAL under E.O.

2

13526 under Sections 1.4 (b) and (d) in the first half of 2010.
The 06RIYADH8811 telegram is an official telegram from

3
4

Embassy Riyadh, dated November 11, 2006 to the Department of State.

5

This telegram is six pages.

6

SECRET under E.O. 12958 at the time it was generated.

7

remained classified SECRET under E.O. 13526 under Sections 1.4 (a),

8

(b) and (d) in the first half of 2010.

9
10

TC[MAJ FEIN]:

trial counsel to continue reading the Stipulations?
MJ:

12

CDC[MR. COOMBS]:

13

MJ:

14

TC[MAJ FEIN]:

15

ATC [CPT OVERGAARD]:

17

The telegram

Your Honor, may the United States substitute

11

16

The telegram was properly classified

Any objection?
No objection.

Yes.
Thank you, ma’am.
I’ll give Captain Mitroka’s voice a

rest, ma’am.
The 06SEOUL3882 telegram is an official telegram from

18

Embassy Seoul, dated November 10, 2006 to the Department of State.

19

This telegram is three pages.

20

SECRET under E.O. 12958 at the time it was generated and portions of

21

the telegram remained classified SECRET under E.O. 13526 under

22

Sections 1.4 (b) and (d) in the first half of 2010.

The telegram was properly classified

9301

12860

The 06 3885 [sic] telegram is an official telegram from

1
2

Embassy Seoul, dated November 12, 2006 to the Department of State.

3

This telegram is five pages.

4

CONFIDENTIAL under E.O. 12958 at the time it was generated and

5

portions of the telegram remained classified CONFIDENTIAL under E.O.

6

13526 under Sections (b) and (d) in the first half of 2010.

The telegram was properly classified

The 06SUVA489 telegram is an official telegram from Embassy

7
8

Suva, dated November 12, 2006 to the Department of State.

9

telegram --This telegram is six pages.

The

The telegram was properly

10

classified CONFIDENTIAL in part under E.O. 12958 at the time it was

11

generated and portions of the telegram remained classified

12

CONFIDENTIAL under E.O. 13526 under Sections 1.4 (b) and (d) in the

13

first half of 2010.
The 06TAIPEI3830 telegram is a telegram from the American

14
15

Institute Taiwan (AIT), Taipei, dated November 12, 2006 to the

16

Department of State.

17

properly classified SECRET under E.O. 12958 at the time it was

18

generated and po1iions of the telegram remained classified SECRET

19

under E.O. 13526 under Sections 1.4 (b) and (d) in the first half of

20

2010.

21

This telegram is two pages.

The 06TRIPOLI 34 -- or sorry.

The telegram was

The 06TRIPOLI645 telegram is

22

an official telegram from Embassy Tripoli, dated November 10, 2006 to

23

the Department of State.

This telegram is three pages.

9302

The telegram

12861

1

was properly classified CONFIDENTIAL in part under E.O. 12958 at the

2

time it was generated and portions of the telegram remained

3

classified CONFIDENTIAL under E.O. 13526 under Sections 1.4 (b) and

4

(d) in the first half of 2010.

5

The 06TRIPOLI648 telegram is an official telegram from

6

Embassy Tripoli, dated November 10, 2006 to the Department of State.

7

This telegram is four pages.

8

CONFIDENTIAL in part under E.O. 12958 at the time it was generated

9

and portions of the telegram remained classified CONFIDENTIAL under

10

The telegram was properly classified

E.O. 13526 under Section 1.4(d) in the first half of 2010.

11

The 07ADDISABABA2197 telegram is an official telegram from

12

Embassy Addis Ababa, dated July 13, 2007 to the Department of State.

13

This telegram is seven pages.

14

CONFIDENTIAL in part under E.O. 12958 at the time it was generated

15

and portions remained classified CONFIDENTIAL under E.O. 13526 under

16

Section 1.4(d) in the first half of 2010.

17

The telegram was properly classified

The 07 ANKARA23 telegram is an official telegram from

18

Embassy Ankara, dated January 8, 2007 to the Department of State.

19

This telegram is three pages.

20

CONFIDENTIAL under E.O. 12958 at the time it was generated and a

21

portions of the telegram remains -- remained CONFIDENTIAL under E.O.

22

13526 under Section 1.4 (d) in the first half of 2010 in the first

23

half of 2010.

The telegram was classified

9303

12862

1

MJ:

Stop for just a moment.

2

CDC[MR. COOMBS]:

Okay.

Yes.

Your Honor, as far as reading the

3

rest of this, the defense would suggest that when you leave from

4

Confidential as far as what the actual cable is classified, the part

5

under E.O. 12958 down to under E.O. 13526 is the same for every one

6

of these.

7

from, ‘Confidential under’ and then go to the section because that’s

8

the only thing that changes.

9

hundred or so.

So, for that when you are reading it we could just skip

ATC [CPT OVERGAARD]:

10

So, that one portion there for the next

Some of them are in part and some are

11

in whole but otherwise they are -- I mean they are virtually the

12

same.

13

CDC[MR. COOMBS]:

14

MJ:

15
16

All right.

If it would aid trial counsel.
Government, I’m going to leave this up to you.

How would you like to do it?
TC[MAJ FEIN]:

Ma’am, another option also is, is because the

17

Department of Army is publishing the prosecution exhibits that are

18

read onto the record, this will be published within the next 24 hours

19

and we could have copies available for the members of the public to

20

actually have with them instead of waiting on the website and if the

21

defense would be willing, we could forego the rest of the reading of

22

this Stip?

9304

12863

1
2

CDC[MR. COOMBS]:

We would, Your Honor.

Actually we would

just recommend picking up on Paragraph 8 on Page 17.
MJ:

3

All right.

I mean in any ordinary case Stipulations

4

of Expected Testimony are read into the record.

5

ordinary case.

6

proposed going to Page 17, Paragraph 8.

7

objection and both sides are in agreement and there are copies of

8

Prosecution Exhibit 178 that will be available to any members of the

9

public after these proceedings, right after these proceedings who

10
11

This is not the

This Stipulation is 18 pages long.

The defense has

Government, if you have no

desire to read them, what’s the -- how would you proceed to do that?
TC[MAJ FEIN]:

Ma’am, the United States would offer that we’ll

12

have 10 copies available for members of the public to read while they

13

are here and then once the Department of Army publishes it in the

14

next 24 hours there will be of course copies for the entire world to

15

read and have copies to have with them.

16

- have copies for everyone to read in the session when it concludes.

17

MJ:

All right.

So, we’ll start processing -

As both sides are amenable to that procedure

18

and the -- both the -- PFC Manning’s and the public’s right to a

19

public trial is ensured, the Court will go along with that procedure.

20

Why don’t we move then to Paragraph 8 on Page 17?

21
22
23

ATC [CPT OVERGAARD]:

Yes, ma'am.

For each of those 96 cables listed above and classified as
CONFIDENTIAL the following is true:

9305

12864

1
2
3

First, all 96 cables were properly marked at the
CONFIDENTIAL classification level.
Second, disclosure of the information identified in the 96

4

cables reasonably could be expected to cause damage to the national

5

security of the United States.

6

the classification of information in this case, I rely upon my

7

personal knowledge and experience, the information made available to

8

me in my official capacity, and the advice and recommendations

9

received from experts within the geographic and functional bureaus.

10

In making this statement regarding

Third, the 96 cables and the information contained in them

11

were classified at the CONFIDENTIAL level at the time of their

12

creation, and remained classified at the CONFIDENTIAL level in the

13

first half of 2010 and at the time of their disclosure.

14

were classified pursuant to Section 1.4 of E.O. 13526, or its

15

predecessor E.O.s, because they contained information that, if

16

released, could cause damage to national security.

17
18
19
20
21

These cables

For each of those 21 cables listed above and classified as
SECRET the following is true:
First, all 21 cables were properly marked at the SECRET
classification level.
Second, disclosure of the information identified in the 21

22

cables reasonably could be expected to cause serious damage to the

23

national security of the United States.

9306

In making this statement

12865

1

regarding the classification of information in this case, I relied

2

upon my personal knowledge and experience, the information made

3

available to me in my official capacity, and the advice and

4

recommendations received from experts within the geographic and

5

functional bureaus.
Third, the 21 cables and the information contained in them

6
7

were classified at the SECRET level at the time of their creation,

8

and remained classified at the SECRET level in the first half of2010

9

and at the time of their disclosure.

These cables were classified

10

pursuant to Section 1.4 of E.O. 13526, or its predecessor E.O.s,

11

because they contained information that, if released, could cause

12

serious damage to national security.
Of the cables I reviewed in the Net-Centric Diplomacy

13
14

Database, a portion of them were found to be technically deficient in

15

terms of marking.

16

were missing authority, or improperly cited the E.O.s.

17

presence of technical marking deficiencies does not mean that the

18

cables were not classified.

19

of the cables I reviewed were no longer sensitive.

20

MJ:

21

TC[MAJ FEIN]:

22

That is, they contained no declassification date,

All right.

However, the

Moreover, I found that portions of some

I understand copies are being made.
Yes, ma'am.

Just to modify, the United States

would actually probably prefer to have five in the courtroom and have

9307

12866

1

five run over to the media operation center so members of the press

2

also have copies available.

3

MJ:

That's fine.

Just for the record, on Page 3 in Paragraph

4

G, it looks like there's a small typo there on the second sentence,

5

it says his telegram is six pages.

6

pages?

7

ATC [CPT OVERGAARD]:

8

MJ:

9

Do you mean this telegram is six

Yes, ma'am, this telegram is six pages.

Do you want to just amend the original?

You don't have to

worry about copies going anywhere, we've said it on the record.

10

Parties can get through 18 pages with one typo, the Court is

11

impressed.

12

TC[MAJ FEIN]:

Ma'am, I previously retrieved from the court

13

reporter Prosecution Exhibit 178 and all parties, including the

14

accused, have initialed next to the line out of this telegram.

15

MJ:

All right.

Does the government intend to present any

16

further evidence today?

17

TC[MAJ FEIN]:

18

Yes, ma'am, United States does.

May we have a

moment?

19

MJ:

Yes.

20

TC[MAJ FEIN]:

Ma'am, the United States offers to read on to the

21

record Prosecution Exhibit 76, Stipulation of Expected Testimony for

22

Special Agent Troy Bettencourt dated 7 June 2013.

9308

12867

1
2

MJ:

All right.

with PFC Manning.

3

TC[MAJ FEIN]:

4

MJ:

5

My records indicate I've already gone over this

Yes, ma'am, and it's been admitted.

All right.

Thank you.

nodding your head.

6

ADC[MAJ HURLEY]:

7

MJ:

8

TC[MAJ FEIN]:

9

And defense agrees, I see you

Yes, ma'am.

Okay.
Ma'am, it is hereby agreed by the Accused,

Defense Counsel and Trial Counsel, that if Special Agent Troy

10

Betencourt were present to testify during the merit and presentencing

11

phases of this court-martial he would testify substantially as

12

follows:
I am a Special Agent for the Special Inspector General for

13
14

the Troubled Asset Relief Program (SIGTARP), United States Department

15

of Treasury.

16

SIGTARP).

17

am a located in Washington, D.C.

18

primarily entails providing digital forensic e-discovery support to

19

SIGTARPS national criminal investigations.

20

investigations of crimes within SIG TARP's investigative purview.

21

have served as a special agent for SIG TARP for approximately one and

22

a half years.

23

agent for the U.S. Army Criminal Investigation Command, CID.

Specifically I work for the Computer Forensic Unit (CFU

My current job title is Senior Special Agent, SSA, and I
As an SSA for the CFU my job

I also conduct criminal

From November 2010 to December 2011 I was a special

9309

I

12868

1

Specifically I worked for the Computer Crimes Investigation Unit,

2

(CCIU).

3

and investigated crimes within CCIU's investigative purview with a

4

focus on the PFC Manning investigation.

5

2010, I was an Administrator with the Punta Gorda Police Department

6

where I was responsible for accreditation, staff inspections, audits,

7

administrative management study, personnel, media relations and

8

forensic imaging, preliminary analysis in cases ranging from

9

prostitution to homicide.

From May 2005 to 2007, I owned and

10

operated my own business.

From October of 2001 to May 2005 I was a

11

special agent with CCIU.

12

responsible for investigating crimes within CCIU's investigative

13

purview.

14

Computer Emergency Response Team (ACERT), and the Joint Task Force

15

Global Network Operations (JTF-GNO).

16

2001, I was a special agent with the Hawaii Field Office CID where I

17

served as an Assistant Team Chief of a Drug Suppression Team as well

18

as an Investigator in a General Crimes Investigative Team and Child

19

Abuse Sexual Crimes Investigative Team.

I was assigned to the Washington Metro Resident Agency CCIU

From June 2007 to November

I supervised a team of special agents

I was also assigned as the CID Liaison at the U.S. Army

From February 1999 to September

20

I earned a masters of public administration, criminal

21

justice administration from Troy University located in Alabama.

22

have had extensive training in evidence collection and handling to

23

include but not limited to the 17-week Apprentice Agent's Course.

9310

I

In

12869

1

terms of computers and forensic training I've completed multiple

2

courses over the years.

3

Cyber Investigative Training Academy (DCITA), in Linthicum, Maryland

4

between the years 2001 and 2011, which covered digital media

5

collection issues.

6

Guidant Software in Reston, Virginia, the manufacturer of EnCase.

7

During this time I also completed four courses at Learning Tree

8

International, which focused on Information Network Security.

9

2003, I completed the Federal Law Enforcement Seized Evidence

I completed three courses at the Defense

From 2002 to 2003, I attended two courses in

In

10

Recovery Specialist Training Certification in Glynco, Georgia.

In

11

2009 and 2013, I attended two courses conducted by Access Data,

12

manufacturer of FTK.

13

course on the use Celebrite Universal Forensic Extraction Device.

14

These courses all discussed the collection, handling and forensic

15

analysis of digital evidence.

In 2012, I completed a training certification

I earned a Department of Defense critical -- excuse me,

16
17

Your Honor.

I earned a Department of Defense Certified Digital Media

18

Collector Certificate in 2011 from the Department of Defense

19

Cybercrimes Center, DC3, which must be renewed every 2 years.

20

not renewed it as I no longer work for the Department of Defense

21

entity.

22

Evidence Recovery Specialist Certification in 2003 which did not

23

require recertification.

I have

I earned the Federal Law Enforcement Training Center Seized

I earned the Celebrite Universal Foresnic

9311

12870

1

Extraction Device (UFED) Certification in 2012 which does not require

2

recertification.

3

have since lapsed:

4

Security Certified Professional 2003; Guidant Software EnCase

5

Certified Examiner 2004; Access Data Certified Examiner 2009.

6

addition to my training and certifications I have investigated or

7

supervised more than 100 investigations involving computer crimes and

8

investigated or supervised between 2 to 300 criminal investigations

9

unrelated to computer crime.

10

I also earned the following certifications which
Learning Tree International Security, Network

In

On 30 August 2011, as part of this investigation I

11

downloaded the, “cable gate”, archive from WWW.WikiLeaks.org based on

12

press reports indicating that all Department of State diplomatic

13

cables in the possession of WikiLeaks have been posted on the

14

WikiLeaks website.

15

purported Department of State diplomatic cables or messages.

16

purported cables range in date from 1966 to February 2010.

17

this because I personally reviewed the cable gate archive after

18

collection.

19

no information had been redacted from the files.

20

The archive I collected contained 251,287
The
I know

This review of the context of the archive revealed that

Your Honor, that is it for stipulations of expected

21

testimony, although we'll have more for tomorrow.

22

recess for the night, may we have a brief maybe in place recess to

23

check on the copies being made?

9312

However, before we

12871

MJ:

1

Certainly.

Why don't we just go ahead, we don't need to

2

recess in place, just take a quick like 5 minute recess.

3

we do that, it's my intent to provide my ruling tomorrow morning on

4

the admissibility of Prosecution Exhibits 31 the series, 32 the

5

series, and Prosecution Exhibits 109 for Identification.

6

with that?

7

TC[MAJ FEIN]:

8

CDC[MR. COOMBS]:

9

MJ:

10

Okay.

But before

Any issues

No, ma'am.
No, Your Honor.

Do you think it will take about 30 seconds to run

out and see where they are?
TC[MAJ FEIN]:

11

Ma'am, I that I it would take 30 seconds to at

12

least figure out where they are and then if we need more time we’ll

13

ask.

14

MJ:

Why don't you do that?

15

TC[MAJ FEIN]:

16

MJ:

Yes, ma'am.

We'll stay in place.

Court is in recess in place.

17

free to stretch, move around.

18

[The court-martial recessed in place at 1853, 27 June 2013.]

19

[The court-martial was called to order at 1853, 27 June 2013.]

Feel

20

MJ:

Court is called to order.

Let the record reflect all

21

parties present when the Court last recessed are again present in

22

court.

23

Have the copies been made?

9313

12872

1

TC[MAJ FEIN]:

Yes, ma'am.

There are two sets of five copies,

2

one set is already on the way to the media operations center and the

3

second set are right here in my

4

United States proposes that at the conclusion of this session it be

5

handed over to the court security officer who will then, if any

6

members of the public would like to read them, will hand them out and

7

then they'll be returned to the court security officer.

8

MJ:

9

TC[MAJ FEIN]:

10
11

MJ:

All right.

possession, Your Honor.

So the copies will remain here.
Yes, ma'am.

Anything else we need to address before we recess Court

today?

12

TC[MAJ FEIN]:

13

CDC[MR. COOMBS]:

14

MJ:

15

TC[MAJ FEIN]:

16

CDC[MR. COOMBS]: Yes, Your Honor.

17

MJ:

18
19

And the

No, ma'am.
No, Your Honor.

0930 tomorrow?

All right.

Yes, ma'am.

Court is in recess until 0930 tomorrow.

[The court-martial recessed at 1854, 27 June 2013.]
[END OF PAGE]

9314

12873

1
2
3
4

[The court-martial was called to order at 0942, 28 June 2013.]
MJ:

Court 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 recess are again present with the follow exceptions:

6

Captain Overgaard and Captain Mitroka are absent.

7

Captain von Elten are present.
Also, ma'am, as of this morning's start of the hearing

8
9

Captain Morrow and

there are ten members of the media at the media operations center,

10

one stenographer, there's one member of the media in the courtroom,

11

11 spectators in the courtroom and currently no one in the overflow

12

trailer, although it is available.

13
14
15

MJ:

All right.

Are there any housekeeping matters we need to

address before we proceed?
TC[MAJ FEIN]:

Yes, ma'am, there is one.

Yesterday at the

16

conclusion of the session Prosecution Exhibit 178 was being read on

17

to the record and then was stopped and made publicly available both

18

in the courtroom and the media operations center.

19

morning, Prosecution Exhibit 178, the Stipulation of Expected

20

Testimony for Mr. Murphy was published to the Army’s FOIA reading

21

room for the public's access to it.

22

MJ:

Thank you.

23

CDC[MR. COOMBS]:

As of 0900 this

Mr. Coombs.
Nothing from the defense, Your Honor.

9315

12874

MJ:

1

All right.

The Court is prepared to rule on the government

2

motion to admit Prosecution Exhibits 31, 32 and 109 for

3

Identification.
On 10 June 2013, after hearing testimony from Special Agent

4
5

Mander, the Court ordered the parties to file briefs on the

6

admissibility of Prosecution Exhibits 31, 32, and 109 for

7

Identification.

8

Government at Appellate Exhibit 567; Defense at Appellate Exhibit

9

568.

On 15 June 2013, the parties filed briefs the

On 18 June 2013, the Court heard oral argument from counsel.

10

On 27 June 2013, the Government recalled SPECIAL AGENT Mander and

11

offered Prosecution Exhibit 31 Alpha and Bravo and Prosecution

12

Exhibits 32 Alpha and Bravo for Identification into evidence.

13

Court has considered the filings by the patties, evidence presented,

14

the testimony of Special Agent Mander, and oral argument of counsel.

15

The Court finds and rules as follows:

16

The

On 10 June 2013, the Government offered Prosecution

17

Exhibits 31, 32, and 109 into evidence through the testimony of

18

Special Agent Mander.

19

Prosecution Exhibits 31 Alpha and Bravo and Prosecution Exhibits 32

20

Alpha and Bravo into evidence via additional testimony of Special

21

Agent Mander.

22

Exhibits 31, 31 Alpha, 31 Bravo, 32, 32 Alpha, and 32 Bravo for

23

Identification in accordance with M.R.E. 90l(b)(1); Testimony of a

On 27 June 2013, the Government offered

The Government offers to authenticate Prosecution

9316

12875

1

Witness with knowledge-Special Agent Mander and M.R.E. 901(b)(4);

2

Distinctive Characteristics and the Like:

3

substance, internal patterns, or other distinctive characteristics of

4

the item, taken together with all the circumstances.

5

offers to authenticate Prosecution Exhibit 109 for Identification as

6

a self-authenticating business record in accordance with M.R.E.

7

803(6) and M.R.E. 902(11) and in accordance with M.R.E. 901(b)(1);

8

Testimony of a Witness With Knowledge through the testimony of

9

Special Agent Mander and the attestation by Mr. Christopher Butler,

10
11
12
13

the appearance, contents,

The Government

Office Manager ofarchive.org (Appellate Exhibit 567, Enclosure 1).
Findings of Fact:

Prosecution Exhibits 31, 31A, 31B, 32,

32A, and 32B for Identification.
One, Prosecution Exhibits 31 and 32 for Identification are

14

screen captures from Google Cache, a website that archives past

15

versions of other websites.

16

and 32 for Identification are Google Cache archives of WikiLeaks'

17

Twitter.com postings. Special Agent Mander is unfamiliar with the

18

process of how Google cache archives web postings.

19

In this case, Prosecution Exhibits 31

Two, WikiLeaks has an account on the Twitter website.

20

Twitter accounts post messages in chronological order with the most

21

recent on top.

22

indefinitely.

23

the WikiLeaks account on Twitter through a Google search.

All published messages remain on the site
On or about August 2012, Special Agent Mander accessed

9317

The

12876

1

WikiLeaks account or "feed" had thousands of messages, making

2

searches for particular Tweets onerous directly through the WikiLeaks

3

feed.

4

by using search terms on Google.

5

pull up the Twitter website with the Tweets in Prosecution Exhibits

6

31 Alpha and Prosecution Exhibit 32 Alpha for Identification.

7

Prosecution Exhibit 31 Alpha and Prosecution Exhibit 32 Alpha for

8

Identification are screen captures taken by Special Agent Mander on

9

or about August 2012, while he was reviewing the WikiLeaks Tweets on

Special Agent Mander then looked for specific WikiLeaks Tweets
The search terms caused Google to

10

the Twitter website.

Special Agent Mander typed in the uniform

11

research locater (URL) address of each Tweet in a text box in the

12

screen capture.

13

http://www.Twitter.com/#!/wikileaks/status/13570878440.

14

Prosecution Exhibit 32 Alpha for Identification is

15

http://www.Twitter.com/#!lwikileaks/status/7530875613.

16

Mander personally viewed the WikiLeaks Twitter account and the Tweets

17

on the account have the same web address except for a serial number

18

unique to each Tweet.

19

for WikiLeaks on or about 3 June 2013 and, again, on 27 June 2013.

20

On 27 June 2013, Special Agent Mander typed in the URL of PE 32 Alpha

21

in a Google search and retrieved the Twitter website with the Tweet

22

in Prosecution Exhibit 32B.

23

Mander then typed in the URL for Prosecution Exhibit 31 Alpha and

The URL for PE 31 Alpha for Identification is
The URL for

Special Agent

Special Agent Mander visited the Twitter page

From the Twitter website, Special Agent

9318

12877

1

retrieved the Tweet in Prosecution Exhibit 3l Bravo. Special Agent

2

Mander took screen shots of both Twitters -- of both Tweets, excuse

3

me.

4

same URL as Prosecution Exhibits 31A and B -- and 32A except that

5

Prosecution Exhibit 31B and Prosecution Exhibit 32B begin the URL

6

with "https" rather than "http" and they do not have the "/#!/".

7

Prosecution Exhibit 31B and Prosecution Exhibit 32B have the

Nevertheless, a search using the URL for PEs 31A and 32A

8

for Identification in Google retrieves Prosecution Exhibits 31 Bravo

9

and 32 Bravo for Identification.

Also on 27 June 2013, Special Agent

10

Mander went directly to the WikiLeaks feed on Twitter to try to find

11

the Tweets in Prosecution Exhibit 31 and 32 for Identification.

12

feed would not let him have access to messages prior to March, 2013.

13

Special Agent Mander has never viewed the Tweets in Prosecution

14

Exhibits 31 and 32 for Identification directly from the WikiLeaks

15

Twitter feed.

16

The

Three, Prosecution Exhibits 31, 31 Alpha, 31 Bravo, 32, 32

17

Alpha, and 32 Bravo for Identification have the following distinctive

18

characteristics attributable to WikiLeaks:

19

WikiLeaks logo; they feature WikiLeaks name as the account name

20

"WikiLeaks" used on Twitter; the serial numbers the URL are the same

21

for Prosecution Exhibits 31, 31 Alpha, and 31 Bravo for

22

Identification; the serial numbers for the URL of Prosecution

23

Exhibits 32, 32 Alpha, and 32 Bravo are the same; and the contents of

9319

The Tweets feature the

12878

1

the Tweets in the Prosecution Exhibits for Identification 31 series

2

of exhibits and the Prosecution Exhibit 32 for Identification series

3

of exhibits relates to the information allegedly compromised by PFC

4

Manning.
Four, the date and time of the Tweets in Prosecution

5
6

Exhibits 31, 31 Alpha, and 31 Bravo for Identification are the same

7

and are actually on the Tweets themselves and not generated from

8

Google.cache or any other internet archive process.

9

Exhibits 31, 31 Alpha, and 3l Bravo are screen images of the same

Prosecution

10

Tweet with the WikiLeaks label, logo, text, time/date, and URL serial

11

number.

12

Prosecution Exhibits 32, 32 Alpha, and 32 Bravo for Identification.

The same is true for the date and time of the Tweets in

13

Prosecution Exhibit 109 for Identification:

14

Prosecution Exhibit 109 for Identification is a screen

15

capture from archive.org, another website that archives past versions

16

of websites from across the internet.

17

Exhibit l09 for Identification is a web page from archive.org

18

purporting to show a WikiLeaks.com webpage available on the internet

19

on 5 November 2009 at 06:13:30.

20

More specifically, Prosecution

Two, Special Agent Mander has not viewed the original

21

WikiLeaks.com webpage that the archive.org webpage purports to have

22

archived as Prosecution Exhibit 109 for Identification.

23

no personal knowledge of the methods or standards employed by

9320

He also has

12879

1

archive.org in creating and maintaining their web pages or with

2

methods or standards used to capture web pages by third patty donors

3

to archive.org.

4

Three, on 15 June 2013, the patties submitted briefs on the

5

admissibility of Prosecution Exhibits 31, 32, and 109 for

6

Identification.

7

Exhibit 109 for Identification in accordance with Military Rule of

8

Evidence 902(11) and Military Rule of Evidence 901 (b)(2), the

9

Government submitted an Attestation Certificate from Mr. Christopher

As additional evidence to authenticate Prosecution

10

Butler, Office Manager of archive.org dated 12 June 2013 (Appellate

11

Exhibit 567, Enclosure 1).

12

affirm that each of the following is true regarding the attached

13

records to the best of my knowledge and belief:

14

That attestation reads:

I swear or

One, I am an employee familiar with the manner and process

15

in which these records are created and maintained, by virtue of my

16

duties and responsibilities;

17

Two, to the best that the electronic systems involved can

18

accurately record and reflect, such files were captured at or near

19

the time of the date reflected in the URL assigned to each file by

20

virtue of an automated transfer of electronic data.

21

Three, such records were captured by Internet Archive or

22

received from third party donors in the course of regularly conducted

23

business activity by the Internet Archive;

9321

12880

Four, the records are true and accurate copies of the

1
2

original documents in Internet Archive's Wayback Machine service at

3

web.archive.org.
The Court notes the attached record to this attestation is

4
5

entitled "Draft:

6

content and URL as Prosecution Exhibit 109 for Identification.

The Most Wanted Leaks of 2009-sort" with the same

Four, the Defense also submitted an attestation from Mr.

7
8

Butler dated 13 June 2013, (Enclosure 10 of the Defense brief -

9

Appellate Exhibit 568).

10

The attestation reads as follows:

11

One, I am the Office Manager at the Internet Archive,

12

located in San Francisco, California.

13

own personal knowledge.

I make this declaration of my

Two, the Internet Archive is a website that provides access

14
15

to a digital library of Internet sites and other cultural artifacts

16

in digital form.

17

researchers, historians, scholars, and the general public.

18

Internet Archive has partnered with and receives support from various

19

institutions, including the Library of Congress.

Like a paper library, we provide free access to
The

Three, the Internet Archive has created a service known as

20
21

the Wayback Machine.

The Wayback Machine makes it possible to surf

22

more than 240 billion pages stored on the Internet Archive's web

23

archive.

Visitors to the Wayback machine can search archives by URL

9322

12881

1

(i.e. a website address).

If archived records for a URL are

2

available, the visitor will be presented with a list of available

3

dates.

4

surfing on an archived version of the Web.

5

files, when saved by the Wayback Machine, point to other archived

6

files (whether HTML pages or images).

7

on an archived page, the Wayback Machine will serve the archived file

8

with the closest available date to the page upon which the link

9

appeared and was clicked.

The visitor may select one of those dates and then begin
The links on the archived

If a visitor clicks on a link

Four, the archived data made viewable and browsable by the

10
11

Wayback Machine is compiled using software programs known as

12

crawlers, which surf the Web and automatically store copies of web

13

files, preserving these files as they exist at the point of time of

14

capture.

15

Five, the Internet Archive assigns a URL on its site to the

16

archived files in the format http://web.archive.org/web/[Year in

17

yyyy][day in dd][Time code in hh:mm:ss]/[Archived URL].

18

Internet Archive URL http://web.archive.org/web/19970

19

126045828/http://www.archive.org/ would be the URL for the record of

20

the Internet Archive home page HTML file (http://www.archive.org/)

21

archived on January 26, 1997 at 4:58a.m. and 28 seconds (1997/01126

22

at 04:58:28).

23

will display the URL of a web page in the printout's footer.

Thus, the

A web browser may be set such that a printout from it

9323

The

12882

1

date assigned by the Internet Archive applies to the HTML file but

2

not to image files linked therein.

3

may not have been archived on the same date as the HTML file.

4

Likewise, if a website is designed with "Frames", the date assigned

5

by the Internet Archive applies to the frameset as a whole, and not

6

the individual pages within each frame.

7
8
9

Thus images that appear on a page

Six, regarding archived files stored in and made available
via the Wayback Machine, I further declare that:
A. To the best that the electronic systems involved can

10

accurately record and reflect, such files were captured at or near

11

the time of the date reflected in the URL assigned to each file by

12

virtue of an automated transfer of electronic data;

13

B.

Such records were captured by Internet Archive or

14

received from third party donors in the course of regularly conducted

15

activity by the Internet Archive; and

16
17
18

C. the Internet Archive captures, stores, and receives from
third party donors web data as a regular practice.
Seven, the web archives for the year 2009 in the Wayback

19

Machine at web.archive.org were largely obtained from third-party

20

organizations, which donated the archived data, captured by automatic

21

electronic systems, to the Internet Archive.

22

these web archives were set forth by, or from information transmitted

23

by, people with knowledge of the information recorded therein.

9324

I do not affirm that

12883

1

Eight, this document is the Internet Archive's standard

2

affidavit, the affidavit Internet Archive normally provides to

3

parties seeking to use Wayback Machine records as evidence in legal

4

proceedings, with additional language provided in paragraphs 6-8.

5

Nine, attached hereto as Exhibit A are true and accurate

6

copies of printouts of the Internet Archive's records of the HTML

7

files for the URLs and the dates specified in the footer of the

8

printout. I0.

9

is true and correct.

10

I declare under penalty of perjury that the foregoing

The Court notes that Exhibit A contains a document entitled

11

"Draft: The Most Wanted Leaks of 2009" that is similar to Defense

12

Exhibit Foxtrot but not identical as it contains additions,

13

deletions, and changes. The URL is:

14

http://web.archive.org/web/200911042112937/http://WikiLeaks.org/wiki/

15

Draft:The_Most_Wanted_Leaks_of_2009.

16

versions of "Draft The Most Wanted Leaks of 2009 available on the

17

Internet today.

18

Hearsay/Relevance.

Thus, there are at least 3

The Court refers to Prosecution

19

Exhibits 31, 31 Alpha, and 31 Bravo for Identification together as

20

Prosecution Exhibit 31 for Identification and refers to Prosecution

21

Exhibits 32, 32 Alpha, and 32 Bravo for Identification as Prosecution

22

Exhibit 32 for ID for purposes of Hearsay/Relevance findings of fact.

23

The Prosecution Exhibit 31 and Prosecution Exhibit 32 series of

9325

12884

1

exhibits are the same two Tweets, thus hearsay/relevance findings are

2

the same for all the exhibits in the series.

3

One, the defense asserts that Prosecution Exhibits 31 and

4

32 for Identification and Prosecution Exhibit 109 for Identification

5

are hearsay in that (1) the statement by the webpage or Tweet itself

6

is hearsay; (2) the statement of the individual who allegedly

7

captured the site and relayed the information to achive.org or

8

Google.cache is hearsay; and (3) the statement of archive.org or

9

Google.cache is hearsay.

10

Two, the Government offers Prosecution Exhibits 31, 32, and

11

109 for Identification not for the truth of the matters asserted

12

within the exhibits.

13

the effect that they may have had on PFC Manning.

14

asserts to the extent the contents of Prosecution Exhibits 31, 32,

15

and 109 for Identification could have influenced PFC Manning, the

16

exhibits are relevant.

17

no evidence that PFC Manning saw or was aware of Prosecution Exhibits

18

31, 32, or 109 for ID, therefore they are not relevant to any fact of

19

consequence.

20

Rather, they offering these exhibits to show
The Government

Defense asserts the Government has presented

Three, the Government theory of the case with respect to

21

Prosecution Exhibit 109 for Identification is that PFC Manning viewed

22

the WikiLeaks Most Wanted List directly from the WikiLeaks webpage as

23

depicted in Prosecution Exhibit 109 for Identification on or after 5

9326

12885

1

November 2009, not that PFC Manning viewed the list as depicted in

2

Prosecution Exhibit 109 for Identification from the archive.org

3

website.
Four, the Government has presented no forensic evidence

4
5

that the Tweets in Prosecution Exhibit 31 and 32 for Identification

6

or the "Most Wanted List of 2009" in Prosecution Exhibit 109 for

7

Identification were downloaded by PFC Manning.

8

offered evidence that PFC Manning conducted searches for WikiLeaks

9

and OpenSource.gov on Intelink; evidence of chats between PFC Manning

The Government has

10

and Press Association/Julian Assange that discussed OpenSource.gov;

11

and evidence that when conducting searches on Intelink, when the

12

searcher pulls up a website and proceeds to search within that

13

website, Intelink no longer captures the search data.

14

The Law.

15

One, evidence must be relevant to be admissible. M.R.E.

16
17

402.
Two, evidence is relevant if it has the tendency to make a

18

fact that is of consequence to the determination of the action more

19

probable or less probable than it would be without the evidence.

20

M.R.E. 401(3).

21

declarant while testifying at the trial or hearing, offered in

22

evidence to prove the truth of the matter asserted.

Hearsay is a statement, other than one made by the

9327

M.R.E. 801(c).

12886

1

Four, hearsay evidence is inadmissible unless an exception

2

applies or the evidence is offered for a purpose other than to prove

3

the truth of the matter asserted. M.R.E. 802.

4

testimony given by witnesses at trial and to exhibits to the extent

5

that exhibits contain statements.

6

This rule applies to

Five, statements offered to prove the effects those

7

statements may have had on a listener, or reader, are not offered to

8

prove the truth of the matter asserted and, therefore, may be

9

considered for that limited nonhearsay purpose.

10

Six, exhibits require authentication as a condition

11

precedent to their admission.

12

satisfied by evidence sufficient to support a finding that the

13

exhibit in question is what its proponent claims. M.R.E. 901(a); U.S.

14

v. Lubich, 72 M.J. 170 (Court of Appeals for the Armed Forces 2013).

15

The requirement of authentication is

Seven, authentication is an issue of conditional relevance.

16

M.R.E. 104(b) and M.R.E. 1008 govern the inquiry under M.R.E. 901.

17

Thus, the Court may consider only evidence offered by the proponent

18

that is admissible at trial to make a preliminary determination

19

whether the exhibit(s) are sufficiently authenticated for the fact-

20

finder to make a determination that they are authentic.

21

("M.R.E. 901 is the same as Federal Rule of Evidence 901 and embraces

22

the well-established view that authentication is a component of

23

relevancy."

Lubich,

And citing U.S. v. Blanchard, 48 M.J. 306 at 309 (Court

9328

12887

1

of Appeals for the Armed Forces, 1998) "federal court of appeals

2

decisions applying these principles would be most helpful.").

3

Federal Rule of Evidence 901 advisory committee's note "The

4

requirement of showing authenticity or identity falls in the category

5

of relevancy dependent upon fulfillment of a condition of fact and is

6

governed by the procedure set forth in Rule 104(b )."

7

admissible exhibits may be considered by the Court in making its

8

preliminary determination.

Thus, only

Eight, two methods of satisfying the authentication

9
10

requirement, and the methods attempted by the Government in moving

11

for admission of Prosecution Exhibits 31, 31 Alpha, 31 Bravo, 32, 32

12

Alpha, and 32 Bravo for Identification are:
One, through a witness with knowledge that the exhibit is

13
14

what it is claimed to be. M.R.E. 901(b)(1); and
Two, evidence of distinctive characteristics and the like.

15
16

M.R.E. 90l(b)(4).
Nine, there are no military cases directly addressing the

17
18

authentication requirements of online webpage archives.

However,

19

there are federal and state cases that have addressed authentication

20

of online webpage archives.
Self-Authenticated Business Record M.R.E. 902(11)/M.R.E.

21
22

803(6):

The Government has provided no authority where a court

23

addressing a challenge to authentication has ruled that online

9329

12888

1

webpage archives from a non-government source are self-authenticating

2

business records.

3

Homestore.com., Inc. v. Securities Litigation, 340 F.Supp.2d 769

4

(Central District of California 2004) (Printouts from a web site do

5

not bear the indicia of reliability demanded for other self-

6

authenticating documents under Federal Rule of Evidence 902).
b.

7

The authority is to the contrary.

Testimony by a Witness With Knowledge:

In re

Several federal

8

courts have addressed challenges to authentication of archived

9

websites by a witness with knowledge under Federal Rule of Evidence

10

90l(b)(l).

Courts addressing the issue squarely have agreed that the

11

admission of such webpages must be predicated either upon the

12

testimony of an employee of the archiving company or upon the

13

testimony of someone having personal knowledge of the contents of the

14

archived web pages such that the witness can testify that the

15

archived copy is accurate.

16

Government as authority to authenticate archived webpages in

17

accordance with Federal Rule of Evidence 90l(a)(1) is US. v. Bansal,

18

663 F.3d 634 (3rd Circuit, 2011).

19

witness to testify about how the Wayback Machine website works and

20

how reliable its contents are.

21

screenshots with previously authenticated and admitted images from

22

the website at issue and opined based on her personal knowledge that

23

they were authentic.

The only criminal case relied upon by the

In Bansal, the Government called a

The witness also compared the

The opinion did not identify who the witness

9330

12889

1

was.

The other two cases relied upon by the Government for the

2

proposition that attestations by a witness with knowledge may be

3

sufficient to authenticate archived webpages in accordance with

4

Federal Rule of Evidence 901 are civil cases where confrontation is

5

not at issue.

6

Sanderson, 2006 West Law 1320242 (Middle District of Florida 2006)

7

and Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 West

8

Law 2367740 (Northern District of Illinois 2004).

9

addressing the issue include: US. v. See, e.g., Sam's Riverside, Inc.

St. Luke's Cataract and Laser Institute, P.A. v.

Other courts

10

v. Intercon Solutions, Inc., 790 F.Supp.2d 965 at 980-982 (Southern

11

District of Iowa 2011) (holding that an archive.org employee can

12

authenticate archive.org webpages); US. v. Shrum, 2011 West Law

13

1753488 at 1-3 (Eastern District of Arkansas, 2011) (District court

14

initially admitted archive.org webpage sponsored by a law enforcement

15

witness but reconsidered and excluded it.

16

curative instruction to the jury was sufficient); Netscape

17

Communications Corp. v. Valueclick Inc., 707 F.Supp.2d 640, 644 at

18

footnote 6 (Eastern District of Virginia, 2010) (District court

19

admitted archive.org website because sponsoring witness had seen

20

original and could testify that the archive.org page was an accurate

21

copy); and Audi AG and Volkswagen of America v. Shokan Coachworks,

22

Inc., 592 F.Supp.2d 246 at 278 (Northern District of New York, 2008)

23

("Defendants correctly point out that the Adams Declaration cannot

9331

Issue was whether the

12890

1

authenticate the search results from www.archive.org because such

2

evidence may only be authenticated by a knowledgeable employee of the

3

website.").
c.

4

The only case presented to the Court by the parties

5

that directly addresses authentication in accordance with Federal

6

Rule of Evidence 901(a)(1) where a third party has donated an

7

archived webpage to archive.org is a civil case, Novak c. v. Tucow's,

8

Inc., 2007, U.S. Dist. LEXIS 21269 (Eastern District of New York,

9

2007), affirmed 330 Fed. Appx. 204 (2nd Circuit, 2009) (the

10

information at issue was only as reliable as the third-party donor

11

made it.)

12

Ten, the Court considers issues of hearsay and whether

13

evidence should be excluded under M.R.E. 403 as preliminary questions

14

in accordance with M.R.E. 103(a) -- 104(a).

15

Conclusions of Law Authentication:

16

One, the Court will consider only admissible evidence

17

offered by the proponent that will go before the factfinder in making

18

a preliminary determination regarding authentication.

19

Two, Prosecution Exhibits 31, 31 Alpha, 31 Bravo, 32, 32

20

Alpha, and 32 Bravo for Identification have been properly

21

authenticated in accordance with M.R.E. 90l(b){1) via the testimony

22

of Special Agent Mander.

23

Identification are retrieved from Google.cache, Special Agent Mander

Although Prosecution Exhibit 31 and 32 for

9332

12891

1

testified that he retrieved copies of the same Tweets directly from

2

Twitter.com as Prosecution Exhibits 31 Alpha and Bravo and

3

Prosecution Exhibits 32 Alpha and Bravo. These exhibits are also

4

properly authenticated in accordance with M.R.E. 901(b)(4)

5

distinctive characteristics as set forth in the Court's findings of

6

fact regarding these exhibits.

7

Bravo, 32, 32 Alpha, and 32 Bravo for Identification are properly

8

authenticated.

Prosecution Exhibits 31, 31 Alpha, 31

9

Three, Prosecution 109 for Identification is not

10

sufficiently reliable to be a self-authenticating business record in

11

accordance with M.R.E. 902(11) and M.R.E. 803(6).

12

in accordance with M.R.E. 901, federal case law on the authentication

13

issue is persuasive.

14

webpages must either have knowledge of the archiving procedures used

15

by the archiving entity and/or third party donor entity such that the

16

witness can testify that the archive actually shows true copies of

17

the websites they purport to archive or must have knowledge of the

18

original web page such that the witness can verify that the archived

19

copy is a true copy of the original.

20

Court that it does not intend to admit the attestation by Mr. Butler

21

(Enclosure 1 of the Government's brief).

22

finds that the Government has not properly authenticated Prosecution

23

Exhibit 109 for Identification and it is not admitted.

For authentication

A witness sponsoring the admission of archived

9333

The Government has advised the

Accordingly, this Court

12892

Four, the PE 31 series of exhibits provide evidence that

1
2

WikiLeaks or an entity purporting to be WikiLeaks posted a Tweet on 7

3

May 2010, requesting a list of as many .mil email addresses as

4

possible.

5

for non-hearsay purposes.

6

is offered as circumstantial evidence to show PFC Manning's intent to

7

respond to WikiLeaks queries and his knowledge of the scope of

8

disclosures WikiLeaks intended to make.

9

introduced forensic evidence from Special Agent Al Williamson that

The PE 31 series of exhibits is offered by the Government
Prosecution Exhibit 3l series of exhibits

The Government has

10

the accused downloaded the U.S. Forces-Iraq Microsoft Outlook/Share-

11

point Exchange Server global address list (GAL) between 11 through 27

12

May 2010.

13

(Aiding the Enemy) and Specification 16 of Charge II (stealing,

14

purloining, or knowingly conve11ing the GAL between on or about 11

15

through 27 May 2010).

This evidence is relevant to the Specification of Charge I

16

Five, the 8 January 2010, Tweet in Prosecution Exhibit 32

17

series of exhibits states "Have encrypted videos of US bomb strikes

18

on civilians http://bit.ly/wlafghan2 we need supercomputer time

19

http://ljsf.org/."

20

videos of U.S. bomb strike on civilians" is a statement.

21

Government offers the Tweet (1) as a hearsay exception under M.R.E.

22

803(3) (then existing state of mind) to demonstrate WikiLeaks

23

publicized plan to compromise military information as of 8 January

The portion of the Tweet stating "Have encrypted

9334

The

12893

1

2010; (2) for the non-hearsay purpose to show PFC Manning's awareness

2

of WikiLeaks' openly and publicly posted plan to disclose classified

3

evidence; (3) for the non-hearsay purpose of the publication of the

4

Tweet looking for assistance to unencrypt the video as circumstantial

5

evidence to connect the timing of the Tweet to the appearance on Mr.

6

Jason Katz' computer on 15 December 2009, of an Afghan video with the

7

same hash values as the Afghan video from the CENTCOM server with the

8

video allegedly communicated to WikiLeaks by PFC Manning; and (4) as

9

a hearsay exception under M.R.E. 803(3) to corroborate PFC Manning's

10

admissions that he sent WikiLeaks an encrypted video in the internet

11

chats.

12

For the reasons proffered by the Government above

13

Prosecution Exhibit 32 is relevant as evidence of PFC Manning's

14

knowledge of the scope of WikiLeaks' intended disclosure for the

15

Specification of Charge I (Aiding the Enemy), Specification 1 of

16

Charge II (Wantonly Causing to be Published) and to prove willful

17

communication of the Gharani video for specification 11 of Charge II.

18

Six, Prosecution Exhibit 109 for Identification is a

19

request for information and is offered for the fact that the request

20

was made not for the truth of the matter asserted.

21

offers Prosecution Exhibit 109 for Identification for a non-hearsay

22

purpose as circumstantial evidence that PFC Manning was aware of

23

Prosecution Exhibit 109 for Identification and his intent to gather

9335

The Government

12894

1

information and send it to WikiLeaks.

Although the Government has

2

not presented evidence that the accused actually accessed Prosecution

3

Exhibit 109 for Identification, the Government has presented evidence

4

that PFC Manning searched Intelink for WikiLeaks and for some of the

5

information on Prosecution Exhibit 109 for Identification.

6

Government also presented evidence that when a person does an

7

Intelink search and navigates to another website to continue the

8

search, Intelink no longer captures the meta-data.

The

9

The Court finds timing of the Prosecution Exhibit 109 for

10

Identification posting in conjunction with other evidence presented

11

by the Government is relevant circumstantial evidence offered for a

12

non-hearsay purpose to further the inference that PFC Manning was

13

aware of the information requested by WikiLeaks in Prosecution

14

Exhibit 109 for Identification.

15

Identification be properly authenticated, it is relevant for the

16

specifications in Charges I and II.

17

Should Prosecution Exhibit 109 for

Seven, the Court has considered whether the probative value

18

of Prosecution Exhibit 31 and 32 for Identification series of

19

exhibits is substantially outweighed by the danger of unfair

20

prejudice under the criteria in M.R.E. 403 and finds it is not.

21

Court as fact-finder will consider the evidence for the proper

22

admissible purposes.

9336

The

12895

RULING:

1

The Government motion to admit Prosecution

2

Exhibits 31, 31 Alpha, 31 Bravo, 32, 32 Alpha, and 32 Bravo for

3

Identification is GRANTED.

4

Prosecution Exhibit 109 for Identification is DENIED.

The Government motion to admit

5

So ordered this 27th day of June, 2013.

6

We'll have that marked as the next appellate exhibit in

7

line.

Is there anything else we need to address before we continue?

8

TC[MAJ FEIN]:

9

CDC[MR. COOMBS]:
All right.

No, ma'am.
No, Your Honor.

10

MJ:

Is the government ready to proceed?

11

ATC[CPT VON ELTEN]: Yes, ma'am. United States recalls Chief

12

Warrant Officer 4 Ronald Nixon.

13

CHIEF WARRANT OFFICER 4 RONALD NIXON, U.S. ARMY, was recalled as a

14

witness for the prosecution, was reminded he was still under oath,

15

and testified as follows:
DIRECT EXAMINATION

16
17

Questions by the assistant trial counsel [CPT VON ELTEN]:

18

Q.

Good morning.

19

A.

Good morning.

20

Q.

Chief Nixon, how long in your career have you been involved

21
22

with purchasing software?
A.

About the time I was an E5, so sometime in '96 to '97 on.

9337

12896

Q.

1
2

And for how long have you continued to be involved with the

purchase of software?

3

A.

From that period on until now.

4

Q.

When did you become a warrant officer?

5

A.

2001.

6

Q.

What experience purchasing software did you have in the

7

years leading up to immediately after becoming a warrant officer?
A.

8
9

In the years leading up to it I was assigned to a unit

known as a JCSC down at MacDill Air Force Base.

Because of the

10

unique requirements that our customer base put on us, there would be

11

times when we would -- our organi -- my team would have to do

12

purchasing of equipment or software and that was so it would come to

13

us with the requirement, we would go look at the requirement, you

14

know, look for technology as applicable to that, put the bids

15

together -- or put the packages together, make sure it goes out to

16

three different vendors for bid, and then when it came back to the J8

17

section we would review that with the J8 to make sure they met the

18

budgetary requirement for what our customer put on us and also make

19

sure they met the technical requirements for what we were looking

20

for.

21

Q.

What types of software are you purchasing?

22

A.

All kind of different software from network management

23

software, communications interface software, of course services

9338

12897

1

software that supported your day-to-day services, things for voice

2

over IP, everything.

3

Q.

How many contracts did you review during that time period?

4

A.

Dozens.

5

Q.

How much of those accounts, of each contract did you

6

review?

7

A.

8

For those contracts for the team level support stuff it was

cradle to grave, everything.

9

Q.

How much of the contract did you read?

10

A.

All of it.

11

Q.

Did you look at the prices?

12

A.

Yes.

Well, we were required at times to have to cross

13

reference that because you would have a -- you would have a cost

14

associated with it, but suppose it went out for bid and came back and

15

it either didn't quite meet the technical requirements or it didn't

16

meet the budgetary requirements, so then you've got to do that take

17

and give, you know, you've got to balance it out to make sure you're

18

getting the best bang for your buck.

19

Q.

Chief Nixon, you just mentioned technical review as part of

20

the process.

21

A.

What is that?

Military is driven on requirements, so the requirement

22

comes to you, you make sure that -- so you make sure that the

23

requirement is met to the technical specifications of the contract.

9339

12898

1

To put it very simply, you know, if you're ordering a Ford Mustang,

2

you order a GT, you want to make sure that you get a GT, not the base

3

model.

4

to be able to go faster.

5

software and hardware, we do the exact same thing.

6

sure because for instance, if you're looking at Exchange, there are

7

lots of different versions of Exchange, and if I'm building a network

8

to support 50 guys, I can skimp on a lot of things and I don't need

9

to buy a robust software package.

Maybe it doesn't quite meet the requirements, maybe you want
We do the same thing when it comes to
We want to make

But if I'm supporting 160,000

10

people, I need to go all out and I need to buy all those options and

11

things that come with it.

12

happy medium.

13
14
15

Q.

Let's talk about your involvement in the large scale

shelter program.
A.

So I have to make sure I'm finding the

When were you involved with that program?

The large scale shelter program was the III Corps services

16

initiative.

From 2008 when I first got to III Corps until I left in

17

2012, that project ran the entire time while we were there.

18

was is when the Army fielded the BCICS service suites for the Army as

19

a whole, the Corps kind of got neglected.

20

XVIII, Ist, and III Corps basically had to come up

21

services programs to be table to support Exchange, file sharing and

22

all those things out in the tactical environment, so that's what we

23

built.

What it

So each of the Corps,
with their own

We built a mobile services shelter to include one that we

9340

12899

1

took with us to Iraq.

2

ran the entire gamut.

3
4
5

Q.

So the entire time I was there that project

What was your role in the contractual process for that

program?
A.

For that program in particular, what we did is I made sure

6

that I was embedded in making sure that the technical requirements

7

were met for as things came in and went out.

8

there I was actually the Corps Engineer, so the backbone of that

9

network was designed by myself and the people on my team.

When I first started

And then

10

as I moved over to the plans and operations shop, it became more of

11

an oversight, technical oversight and a budgeting oversight to make

12

sure we were meeting all of our requirements that we specified

13

earlier.

14

Q.

How many contracts did you review as part of that program?

15

A.

For that contract there were three or four subcontracts

16

that ran with Billy Asbell and Worldwide Technologies to help us put

17

that package together and lots of small subcontracts, but three or

18

four major contracts that interacted with the entire shelter as a

19

whole.

20

Q.

How much of those contracts did you read?

21

A.

All of them.

22

Q.

Did you see the prices?

23

A.

Yes, sir.

9341

12900

1

Q.

What was the hardware involved in that project?

2

A.

So the hardware for that project, routers, switches,

3

backbone equipment, you got to be able to make sure that the data can

4

get from one place to the other, the servers, the fiber channel

5

switches to go to the backbone of that rack, actual rack space, air

6

conditioning, the actual hardware for the shelter itself, all of it,

7

cabling, all of that.

8

Q.

What software was involved in that contract?

9

ADC[MAJ HURLEY]:
All right.

Objection, ma'am.

Relevance.

10

MJ:

What is the relevance?

11

ATC[CPT VON ELTEN]: Ma'am, this is similar equipment that was

12

used in the GAL.

I’m laying a foundation for personal knowledge of

13

pricing.

14

MJ:

All right.

15

A.

Repeat the question, sir.

16

Q.

What software was involved in the -- in those contracts?

17

A.

So for those contracts, of course, you had your normal

Overruled.

18

management interface software, but we also had to buy all of the

19

services software, so for all of the servers that we supported, we

20

had to buy, you know, Server 2008 for those, we had to buy the

21

Exchange software, and then all of the management software, the

22

management conceals, network management, even our normal user stuff

23

like Vista for the machines and XP for the machines and even Office.

9342

12901

1
2

Q.

Chief Nixon, let's talk a little bit about your involvement

with GAL infrastructure again.

3

A.

Yes, sir.

4

Q.

What was your role with contracts in GAL infrastructure?

5

A.

For III Corps or for Iraq, sir?

6

Q.

For Iraq.

7

A.

For Iraq, technical oversight for those contracts, so

8

making sure that the technical requirements were met by the contract.

9

And then, yeah, that was my primary position for that, sir.

10
11
12

Q.

What technical requirements did you consider as part of

those contracts?
A.

So within those technical requirements, since we're talking

13

about software, so for Microsoft Exchange, so what I would do is I'd

14

weigh making sure looking at what my customer base was, my customer

15

base for Iraq was 160,000 to 200,000, that was the area that I had to

16

work within based on surge, contracted personnel, things like that.

17

So if I look at, if I look at that requirement, okay, I've got to buy

18

Exchange, I've got to buy so many instances of Exchange to filter

19

through the network, I've got enterprise level servers at USFI, but

20

then I've got local instances of those servers as they push further

21

down into the network.

22

CAL, which is a client access license.

23

are where companies like Microsoft make their money.

And then you have to buy what's known as a

9343

Okay.

Client access licenses
It used to be

12902

1

where they just sold you software at a ridiculous price and that's

2

what you paid.

3

structure so what you do is drive the cost of the base software

4

really low, but then you're forced to basically pay for each machine

5

and each user on your network.

6

based on how many databases I wanted to be able to talk to.

7

Active Directory I had to buy CALs, or not I, but USFI had to

8

purchase CALs based on each user and machine in the greater Iraq.mil

9

domain.

10

Q.

How many contracts did you review for the Iraq GAL?

11

A.

For the Iraq GAL -- So for the services that would be tied

What they've done is gone to a client access

So for Exchange, I had to buy CALs
For

12

or used for GAL, we did some server upgrades while I was there to

13

Server 2008, and we also did some hot line purchases for CALs that or

14

for units that weren't able to support themselves.

15

the infrastructure -- so then you had the -- I'm trying to run

16

through it real quick.

Sorry.

And then you had

That is all of them.

17

Q.

About how many?

18

A.

There were three or four major contracts that ran through

19

that, sir.

20

Q.

How much of those contracts did you read?

21

A.

I read most of the technical and the pricing pieces for

22

them because we had to bounce that back off of J8 for budgeting.

9344

12903

1
2
3

Q.

Let's talk a little bit about hardware.

What hardware was

part of those contracts?
A.

So for contracting for hardware piece, we did a network

4

upgrade in Iraq to a MPLS backbone, cost about 1.2 million dollars to

5

support the infrastructure there.

6

and a few other moves.

7

regular occurring cost for an organization as big as USFI.

You also had various server moves

So for hardware, that's a day-to-day almost

8

Q.

What types of hardware were included?

9

A.

So routers, switches, backbone infrastructure by the fiber

10

network channels, servers, cabling, again same thing you run into

11

like with the LLS, air conditioning, all of those things kind of tie

12

in to support a network.

13
14
15

Q.

You just mentioned cabling.

How much cabling did the GAL

require?
A.

The GAL itself you would look at the -- if you would look

16

at the cabling infrastructure within USFI Headquarters or even

17

locally, it's a fairly large infrastructure of cabling that requires

18

to interconnect 64 physical switches along with all of the other

19

infrastructures that takes into play, sir.

20

Q.

How much does the cabling cost?

21

ADC[MAJ HURLEY]:

Objection, ma'am. Hearsay.

9345

12904

1

ATC[CPT VON ELTEN]: Your Honor, the witness has testified that

2

he has knowledge based on the contracts and the contracts are not

3

hearsay.

4

MJ:

5
6

I agree.

He’s testifying about his personal knowledge.

Overruled.
A.

So costs for the cabling itself, you're really looking at
So, you are talking

7

physical infrastructure that we had in place.

8

about the NEXIS Backbone switches in the area of about a hundred

9

dollars apiece.

You are talking about the servers themselves which

10

are, be nice and conservative, about 10,000 dollars apiece.

11

if you would actually look at, we ran miles of cable between all of

12

that infrastructure, so it's about 56 dollars for a thousand feet of

13

CAT 5.

14
15

Q.

And then

What would the GAL's functionality have been without

cabling?

16

A.

If you don't have physical infrastructure, it doesn't work.

17

Q.

What storage -- What hardware for storage was contemplated

18
19

under these contracts?
A.

Well, you have to have an area for -- You have to have

20

somewhere to store your stuff, just like in a house you've got

21

closets, well, for a network we've got to have somewhere to do that.

22

So our equivalent to throwing everything in the garage is a SAN, a

23

storage area network.

So you have a storage area network plus you

9346

12905

1

have the internal storage an each one of the servers which in a

2

virtual environment is a shared resource across.

3

Q.

How many SANs did the GAL require?

4

A.

For the services piece of the network that we designed

5

there in Iraq, we had two SANs, one at the backup site and the

6

primary inside the actual infrastructure itself.

7

Q.

How much does a SAN cost?

8

A.

About 1.2 million dollars.

9

Q.

What functionality does a SAN provide?

10

A.

SAN, like I said before, it gives you a place to store

11

everything at once.

I'm running the network the size of Iraq that --

12

that we ran in Iraq is really one of the more complex undertakings

13

we've gone as a military.

14

to store all of that and it has to be accessible in a rapid fashion,

15

so you can't shortchange on that and just daisy chain a whole bunch

16

of hard drives together.

So you have to have somewhere to be able

17

Q.

What was the functionality of the GAL without the SAN?

18

A.

It wouldn't work.

It would -- You would reach a point of

19

saturation within the virtual environment and the servers would

20

crash.

21
22

Q.

You mentioned switches a moment ago.

backbone switches did the GAL require?

9347

How many Nexus

12906

1
2

A.

We had two for each primary site, so the one in the JCSC

itself and one in the palace.

3

Q.

How much does each of those cost?

4

A.

Those were right around $100,000.

5

Q.

What functionality did they provide for the GAL?

6

A.

They provide rapid access to the actual physical

7

infrastructure of the servers and to the SAN itself, so it allows for

8

rapid communications across all of those platforms.

9

MJ:

What function were we talking about there?

10

ATC[CPT VON ELTEN]: The Nexus backbone switch, ma'am.

11

MJ:

Thank you.

12

Q.

What would the GAL's functionality have been without the

13
14

Nexus switch back?
A.

Again, it kind of ties into the physical infrastructure
If you don't the physical infrastructure it doesn't go

15

piece.

16

anywhere.

17
18
19

Q.

Chief Nixon, you also mentioned servers.

How many servers

were required for the GAL, physical servers?
A.

We had 64 servers to support SIPR and NIPR for those

20

environments and then you had a lesser number in Al-Faw Palace.

21

want to say somewhere around half.

22

primary itself.

9348

So about 64 for the actual

I

12907

Q.

1
2

how much does each server cost?
A.

3
4

About $10,000 apiece.

That's a conservative estimate.

We

rated some high-end servers over there in Iraq.
Q.

5
6

I believe you gave the answer, but just for clarification,

Let's talk a little bit about software now.

What software

was covered in these contracts?
A.

7

All different types of software from, again, you talk about

8

network management software, you talk about management console

9

software, and then the ones we're primarily concerned with would be

10

the Active Directory for the main controller, of course Exchange,

11

and then the server platforms they sit on.

12

still have to have a server platform -- software platform for it to

13

sit on.

14

Q.

15

things.

16

pricing.
A.

17

I can buy Exchange, but I

A few moments ago you talked about CALs and a few other
Let's talk about how software is contracted in terms of
How generally does the military pay for software?
Okay.

So generally paid for depends on what we're looking

18

at.

So if we had a -- So if we had an Army unit within somewhere in

19

Iraq that needed something, they would put a requirements request.

20

requirements would come to USFI.

21

find or if it's considered a program of record, which means it should

22

be taken care of by ASOL who does acquisitions for POR systems in the

23

Army, it would go to them.

A

If it's not something that we can

But if it was something that we could

9349

12908

1

field internally to Iraq, then we would -- it would go through our

2

contract and budgeting process.

3

Al-Faw Palace, literally cater-corner to us right across the

4

street was contract command, so we were able to interface with them

5

on a regular basis to make sure that the process went smoothly.

Where our building was located on

6

Q.

How was the price split up for Active Directory?

7

A.

Okay. So for Active Directory, I buy my initial platform

8

for Active Directory which, you know, depending on who you go to to

9

bid for, you get between 3 -- $3500 and $5000.00 for the actual

10

platform itself.

11

looking at 2008, I have to buy an enterprise edition for that because

12

of the level of communications I have to have, so I'm

13

another, again, $3000 to $5000.

14

that, then you're talking about the CAL.

15

added to Active Directory in Iraq, I have to have a CAL for it.

16

also on top of that for every user I have in my Active Directory list

17

within my domain I have to have a CAL for them.

18

street right now is between $35 and $65 for a CAL for each

19

individual user or machine, so even if you were looking at, even if

20

we said we paid a dollar for a CAL, which we didn't, it would be

21

$160,000 just to support the users on the GAL for USFI.

22

Q.

But then I've got to buy a server platform so I'm

looking at

The problem we run into there after
So for every machine that's

Could you please explain what a CAL is?

9350

And

So pricing on the

12909

A.

1

Okay.

A CAL is a client access license.

Again, I come

2

back to in the old days that software companies made you pay a whole

3

lot of money for their software, so people looked at that as sticker

4

shock, so they said, okay, we'll figure out a different way around

5

this.

6

cost of the actual piece, but then they -- what they did is they had

7

the client access licenses which is the requirement.

8

it's for you to be able to communicate to databases; for Active

9

Directory it's for you to be able to add users to your domain or

So then they came out, Microsoft came out and they reduced the

So for Exchange

10

machines to your domain.

11

that I need to be able to talk to and how many instances I need to be

12

able to install it.

13

and mirrors piece so, yes, it still comes down to the more people I

14

have to support on my network, the more expensive it gets.

15
16
17
18

Q.

And for servers it's for number of servers

So they come up with

this, it's really a smoke

What would the GAL's functionality have been without Active

Directory?
A.

It doesn't function without it.

It is a direct -- The GAL

is a direct product of the Active Directory global address system.

19

Q.

How is the pricing created for Exchange?

20

A.

Okay.

So for Exchange, depending on where I was putting

21

that Exchange server, so you had your primary enterprise Exchange

22

servers at USFI, and then below that in each local instance you put

23

Exchange servers further down.

If I've got a BCT sitting out there I

9351

12910

1

don't want for the staff, I don't need the S-2 and the S-3s email to

2

have to go all the way up to division and come back down for them to

3

do that.

4

increase productivity and allow them to be able to communicate with

5

one another so that most of my communications going out of the

6

organization are server to server, so that helps me scale it a little

7

bit.

8

licenses I have to buy for the base software, and then my user and my

9

machine population help me dictate how many calls that I have to buy

10
11
12
13

So I put a local Exchange server there to be able to

And then after that -- So that allows me to figure out how many

to support that.
Q.

Based on all of that, how much money was spent on Exchange

software?
A.

For Exchange software the enterprise license for Exchange

14

software would have run us, very conservative estimate, about

15

$60,000, for the USFI Headquarters.

16

ATC[CPT VON ELTEN]: Thank you.

17

MJ:

18

ADC[MAJ HURLEY]:

Yes, ma'am.
CROSS-EXAMINATION

19
20

Cross-examination.

Questions by the assistant defense counsel [MAJ HURLEY]:

21

Q.

Good morning, Chief Nixon.

22

A.

Good morning. Sir.

9352

12911

1
2

Q.

Now, on direct examination you talked with the government

about the cost of maintaining the Active Directory?

3

A.

Yes, sir.

4

Q.

And I just want to go over this Active Directory, Global

5

Address List distinction again?

6

A.

No problem, sir.

7

Q.

All of the infrastructure that you're talking about with

8

Captain von Elten, that was about the infrastructure to maintain the

9

Active Directory?

10

A.

To maintain services.

11

Q.

Right.

12

And the Active Directory is the thing that

maintains services, or one of them?

13

A.

It is the backbone for your services, yes, sir.

14

Q.

Right.

15

And one of the services that the Active Directory

provides, an important function is the Global Address List?

16

A.

Yes, sir.

17

Q.

Chief, I can tell from your uniform that you're an Army

18

officer?

19

A.

Yes, sir.

20

Q.

So let's use Army C2 nodes when we talk about the structure

21
22

of the database.
A.

Okay, no problem, sir.

9353

12912

1
2

Q.

The database you worked with in the one in Iraq is the one

I'm going to talk about, just that one.

3

A.

Yes, sir.

4

Q.

The lowest Army echelon with the Active Directory is the

5

brigade?

6

A.

Yes, sir.

7

Q.

Thus the lowest Army echelon with the Global Address List

8

is the brigade?

9

A.

Yes, sir.

10

Q.

The brigade's subordinate units instead of having their own

11

Active Directory and Global Address List, they'll just plug into the

12

brigade's?

13

A.

Yes, well, battalion services are provided by the brigade.

14

It's not a separate network.

15

and all their services provided by the brigade.

16
17

Q.

Got you.

They sit within the brigade's domain

So we move up the chain a division level in the

Army is going to have an Active Directory.

18

A.

Yes, sir.

19

Q.

And a Global Address List?

20

A.

Yes, sir.

21

Q.

And subordinate brigades will be a part of the division's

22

active Global Address List?

9354

12913

1

A.

Yes.

To a degree.

The brigades maintain their own Active

2

Directory, their own GAL, their own services environment, and those

3

services talk to division environment on a server level to maintain

4

communications.

5

the brigade, it tends to clog the networks.

6
7

Q.

So you don't want the division providing service to

So the brigade Active Directory plugs into their superior's

Active Directory?

8

A.

Yes, sir.

9

Q.

Is that the best way to describe it?

10

A.

Yes, sir.

11

Q.

And then the divisions for the time that you're in Iraq,

12

we've done away with Multinational Corps Iraq, right?

13

A.

Yes, sir.

14

Q.

So at this point USFI had direct control over the

15

divisions?

16

A.

Yes, sir.

17

Q.

So the division Active Directory GAL would plug into

18

USFI’s?

19

A.

Yes, sir.

20

Q.

Now, you testified that you've seen Prosecution Exhibit 47

21
22

which is the CD that the Global Address List is located on?
A.

Yes, sir.

9355

12914

Q.

1

And you also testified that you had seen before, you

2

testified before that you saw a piece of paper with the Global

3

Address List, a representation of Prosecution Exhibit 47?

4

A.

Yeah, I had seen it.

5

MJ:

What exhibit is that?

6

ADC[MAJ HURLEY]:

7

MJ:

8

ADC[MAJ HURLEY]:

9

MJ:

Thank you.

A.

So, yeah, the digits and the actual physical printout, yes,

Q.

Can you call to mind the Prosecution Exhibit 147 so that we

10
11
12
13

No.

The CD, ma'am, is Prosecution Exhibit 47?

The paper.
147, ma'am.

sir.

don't have to ----

14

A.

Yeah, that's fine, sir.

15

Q.

All right.

16

A.

Pieces of the GAL, yes, sir.

17

Q.

Now, we just talked about there are different GAL levels,

18

Now, that appeared to be a GAL?

right?

19

A.

Yes, sir.

20

Q.

And do you have an opinion as to what level this GAL was?

21

A.

Yes, sir.

22

Q.

To you, Prosecution Exhibit 47 is a division level GAL?

23

A.

Yes, sir.

9356

12915

1

Q.

Not a brigade level GAL?

2

A.

No.

3

Q.

Not the USFI level GAL?

4

A.

No.

5

Q.

But a division GAL?

6

A.

Yes, sir.

7

Q.

Now, just to sum up something I started off with because I

8

wanted to clear up that confusion.

9

talked about were costs associated with an Active Directory?

The maintenance costs that you

10

A.

Yes, sir.

11

Q.

And the maintenance cost, there are no maintenance costs

12
13

specific to the Global Address List?
A.

If you're talking about actual software costs, you're

14

correct, but you still have a maintenance cost in there with

15

personnel.

You can't get away from that.

16

Q.

The personnel to keep up the Global Address List?

17

A.

Yes, sir.

18

Q.

And those personnel would be those people on help desks,

19
20

right?
A.

They would be in charge of -- They would run adding and

21

taking away from the Global Address List, but overall maintenance

22

piece to that would belong to the individual managing the Active

23

Directory for that piece.

9357

12916

1

Q.

For that part of the organization?

2

A.

Yes.

So if you're looking at the division, they had, of

3

course they had your division staff and you had ITT contractors that

4

also supported that piece for the divisions.

5

Q.

Okay.

And then, now, when it comes to this distinction

6

between the Active Directory and the Global Address List, the Active

7

Directory could run without the Global Address List?

8

A.

Yes.

9

Q.

It would be -- But I can tell the concern on your face, but

10

that would be a very difficult function to have just an Active

11

Directory and not a Global Address List?

12

A.

I would say vice versa -- I would the exact opposite.

13

Q.

Okay.

14

A.

I would that, yes, I can have -- I can -- because of the

15

way Active Directory is set up, the Active Directory is a directory,

16

everything sits on your domain.

17

Directory wasn't able to produce a GAL, that would mean that I didn't

18

have anything in Active Directory, I wouldn't have any user, I

19

wouldn't have any clients, I wouldn't have any machines.

So if for some reason the Active

20

Q.

Right.

21

A.

So it's really hard to separate the two because ---

22

Q.

They are so closely tied together?

23

A.

One is a direct product of the other.

9358

12917

1
2

Q.

And that is the GAL's a direct product of the Active

Directory?

3

A.

Yes, sir.

4

Q.

Got it.

5

Thanks, Chief.

Now, let's talk about these

contracts as they would come into your organization in the J-6,

6

A.

Yes, sir.

7

Q.

When you were in USFI is what’ I'm talking about.

8

A.

Yes, sir.

9

Q.

As the contracts would come in, would they come in

10

originally as operational needs statements or how does the -- how do

11

those two things work together?

12

A.

It would depend.

Again, nature of the request.

For an

13

operational needs statement, you have two operational needs

14

statements, you have one that's an Army driven piece and you have one

15

that's a joint piece.

16

provided equipment in Iraq would have been a joint operational needs

17

statement, because everything was provided out of CENTCOM budgeting

18

and down to USFI and filtered out to the network.

19

had a machine that was sitting on an Iraq.mil network or domain, then

20

that machine was provided as TPU equipment, more than likely was

21

provided as TPU equipment and filtered down.

22

either through a joint statement or going down through the process.

23

For an Army organization, so if I'm ----

For instance, everything that provided theater

9359

So odds are if you

So that would have been

12918

1

Q.

Brigade combat team?

2

A.

Brigade combat team, 41.Army.mil -- 41BCT.Army.mil

3

infrastructure, that would have had to have gone through the DA,

4

Department of the Army process.

5

Headquarters and goes out through there, so we would be the brokers

6

for them to the Department of Army on something like that.

7

had two ONs processes for those pieces.

8

localized inner theater requirements process for something if we

9

would fill it in theater, we would do so.

10

Q.

Again, it comes up through USFI

So you

And then you also had a

So those contracts that you're talking about with Captain

11

von Elten and the money that you spent, was that a product of the in

12

theater operational needs process?

13

A.

Some of them were.

So, for instance, day-to-day updates,

14

things like that, so software update for Server 2008, or trying to

15

get 2003 out of the network, trying to update 2008, that would be

16

something we fund internally from USFI budgeting.

17

anything -- but for instance, the network backbone infrastructure

18

upgrade that we talked about, that went up to CENTCOM and then back

19

out because one, we didn't want to pay for it because it was support

20

for the State Department eventually as we turned things over, but

21

also because it was a massive chunk of our budget as we were drawing

22

the budget down.

23

MJ:

What was that for?

9360

And again,

12919

1

WIT: That was for the network upgrades, ma'am.

2

MJ:

Thank you.

3

Q.

What I want is the general practice, not specific to ONs or

4

this contract or I'm leading into another question I was going to ask

5

you, Chief.

6

A.

No problem.

7

Q.

So the general practice was this document would come into

8

the J-6, come into your shop, you would take it and first review it

9

for a technical review?

10

A.

Yes, sir.

11

Q.

And as you were doing the technical review, you would also

12

have input into the budgeting requirements that were included in this

13

document?

14

A.

Yes, sir.

15

Q.

And as you had input, you would vet the cost yourself, the

16

costs associated with these things?

17

A.

No.

No.

18

Q.

You would not?

19

A.

No.

So the cost for the vetting process would come in if

20

requirements weren't able to be met based on whatever J8 was able to

21

provide for cost.

22

buy this many CALs, maybe 60 bucks a pop is way too much, you need to

So we would look at them from a, yes, you need to

9361

12920

1

reconsider, but as part of the overall vetting process the J-6 is not

2

the money stamp, the J8 is.

3
4

Q.

Got you.

And that's exactly the people I want to talk to

you about.

5

A.

Yes, sir.

6

Q.

So there would be an internal process inside the J-6?

7

A.

Yes, sir.

8

Q.

A technical process?

9

A.

Yes, sir.

10

Q.

A cost process?

11

A.

Yes, sir.

12

Q.

Then you'd have to walk down the stairs or down the hall,

13

however you got there ----

14

A.

Yes, sir.

15

Q.

---- euphemistically or actually to the J8?

16

A.

Yes, sir.

17

Q.

And the J8 are the resource managers --- were the resource

18

managers for the USFI?

19

A.

They are the hole of the pocketbook.

20

Q.

The money spenders?

21

A.

Yes, sir.

22

Q.

Before you went down there, you knew that you needed to

23

have a defendable thing that you wanted?

9362

12921

1

A.

Yes, sir.

2

Q.

And the cost?

3

A.

Yes, sir.

4

Q.

And before you go down there, you have to take a hard look

5

at that cost.

Is that correct?

6

A.

Yes.

7

Q.

To make sure that not only does it cover the thing you

8

need, right?

9

A.

Yes, sir.

10

Q.

But also some, because you're very experienced and this

11

wasn't your first trip to Iraq, the extra to address easily

12

anticipated things that you'll need along the way, right?

13

A.

Yes, sir.

Just like when we're talking about CALs, we, you

14

know, the Iraq network at its apex was about 160 to 165,000 people on

15

the GAL, but we had to have a cushion for about 20,000 -- we had to

16

cushion between 40,000 and 50,0000 CALs and we ended up -- and a lot

17

of those we ended up issuing out to tactical organizations for their

18

own use.

19

Q.

Had to have a cushion?

20

A.

Yes, sir.

21

Q.

Had to have or not, it was extraordinarily prudent to have

22
23

a cushion?
A.

Yes.

9363

12922

1

Q.

Any action that you send down to J8, it's extraordinary

2

prudent to have a defendable cushion so you can get all the money

3

you need fenced?

4

A.

Yes, sir.

5

Q.

And by fenced I mean saved for use so that it could be

6

spent it on the thing that you want.

7

A.

Yes, sir.

8

Q.

Let's talk about this infrastructure, Chief.

9
10

You said

there were 64 NIPR servers that supported the Active Directory Global
Address List?

11

A.

Yes, sir.

12

Q.

And even more virtual servers that supported this?

13

A.

Yes, sir.

14

Q.

There were routine problems with these?

15

A.

Well, yeah, you have ----

16

Q.

During your deployment?

17

A.

Yes.

I mean you always had network outages.

It's a

18

massive network, at times, at best you're working on questionable

19

infrastructure at best, so you also have bandwidth issue or things

20

like that.

21
22
23

Q.

Band width issue is something you'd characterize as a small

problem?
A.

Not always.

9364

12923

1

Q.

Scalable I guess?

2

A.

Yes, scalable is a better word.

3

Q.

It’s a varying problem.

4

A big problem would be a satellite

outage would be a big problem?

5

A.

Yes, sir.

6

Q.

But those problems were routinely addressed during this

7

2009/2010, timeframe?

8

A.

Yes, sir.

9

Q.

As I understood from what you told me yesterday, 90 percent

10
11

network reliability is standard for deployed operations?
A.

Between 90 and 95 percent is the standard.

I could -- We

12

definitely ran -- DISA standard is what’s known as 5/9.

13

percent.

14

infrastructure, acceptable is 95 and better.

15

well within that piece, between that 95 and 99 percent, we were, for

16

the most part we were there.

17
18

Q.

That’s DISA standard for fixed infrastructure.

It’s 99.999
Tactical

And we definitely were

And you just weren't static on Victory Base complex, were

you, Chief, during this deployment?

19

A.

Not at all.

20

Q.

You went all over the country?

21

A.

Yes, sir.

22

Q.

Trying to keep different units at different echelons

23

plugged into the network and communicating properly?

9365

12924

1

A.

Yes, sir.

2

Q.

And when we talked yesterday, you said the USFI network

3

while you were there had a reliability rating of 97 percent?

4

A.

Yes, sir.

5

Q.

And that applies to both the Active Directory and the

6

Global Address List?

7

A.

8

Q.

9

Yes, sir.
To your knowledge, was the Global Address List ever

unavailable because servers were stolen?

10

A.

No, sir.

11

Q.

To your knowledge, were they ever moved, and by they, I

12
13

mean the servers by someone not authorized to move them?
A.

We had equipment moved at times, sir, you know, brigade

14

commander walks in and goes, I don't like that crap right there, I

15

want you to move it over there.

16

sitting on the network, the way you sit on a network it was something

17

that was easily identifiable, so they'd get the call.

18

guys doing down there?

19
20

Q.

But

What are you

So even at USFI you had visibility such that if a server is

pulled off?

21

A.

22

ADC[MAJ HURLEY]:

23

We ran into issues like that.

Yeah, yeah, you would see it within moments.
Just one second, I want to look at some

notes.

9366

12925

1

WIT: No problem.

2

ADC[MAJ HURLEY]:

3

MJ:

4

ATC[CPT VON ELTEN]: Nothing, ma'am.

5

MJ:

6
7

Thank you.

Thanks, ma'am.

Nothing further.

Redirect?

I don't think I have anything either.

Temporary or

permanent excusal?
ATC[CPT VON ELTEN]: Temporary, ma'am.

8

[The witness was temporarily excused, duly warned, and withdrew from

9

the courtroom.]

10
11

MJ:

Counsel, do you want to proceed or is this a good time for

about a 10-minute recess.

12

TC[MAJ FEIN]:

13

MJ:

14

TC[MAJ FEIN]:

15

MJ:

16

It’s a great time, ma'am.

Ten minutes sufficient?

All right.

Yes, ma'am.
Why don’t we make it just -- we’ll make it 13.

We’ll start again at 11:00 o’clock.

17

TC[MAJ FEIN]:

18

MJ:

Yes, ma'am.

Court is in recess until 11:00 o'clock.

19

[The court-martial recessed at 1053, 28 June 2013.]

20

[The court-martial was called to order at 1112, 28 June 2013.]

21
22

MJ:

Court is called to order.

the parties.

9367

Major Fein, please account for

12926

1

TC[MAJ FEIN]:

Yes, ma'am.

Your Honor, all parties when the

2

Court last recess are present with the following exceptions:

3

von Elten is absent, Captain Whyte is present.

4

MJ:

5

TC[MAJ FEIN]:

6

CDC[MR. COOMBS]:

7

MJ:

8

TC[MAJ FEIN]:

9

Captain

Is there anything we need to address before we proceed?

All right.

No, ma'am.
No, Your Honor.
Government.
Ma'am, the United States calls Colonel David

Miller.

10

COLONEL DAVID MILLER, U.S. Army, was called as a witness for the

11

prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION

12
13
14
15

Questions by the trial counsel [MAJ FEIN]:
Q.

Sir, you are Colonel David Miller, the current Chief of

Staff of the 1st Infantry Division?

16

A.

I am.

17

Q.

And, sir, how long have you been the Chief of Staff for?

18

A.

A couple of weeks.

19

Q.

And, sir, what are your responsibilities as the Chief of

20
21
22

Staff of 1st ID?
A.

In general I run the day-to-day business of the Division at

Fort Riley and its outlying satellites.

9368

12927

Q.

1
2

Staff of the 1st Infantry Division?
A.

3
4

And what was your position before becoming the Chief of

I was the Commander for Brigade Modernization Command at

Fort Bliss, Texas.

5

Q.

And what is the Brigade Modernization Command?

6

A.

It is a subunit for Training and Doctrine Command.

We

7

conduct -- They conduct now twice a year network integrative

8

evaluations in order to do doctrine organization training material

9

and leadership evaluations and then recommendations to the Chief of

10

Staff of the Army to provide the latest equipment and techniques to

11

deploying units.
Q.

12
13

And, sir, what were your actual responsibilities within the

brigade -- excuse me -- the command?
A.

14

Yeah.

I essentially ran and had oversight of the planning

15

and the execution of each of those network integrative evaluations

16

that were done twice a year.
Q.

17
18

And, sir, how long were you the Deputy Commander of that

command?

19

A.

Two years.

20

Q.

And what was your duty position prior to assuming that

A.

I was the Commander of the 2nd Brigade Combat Team, 10th

21
22
23

role?

Mountain Division.

9369

12928

1
2

Q.

And how long were you the Brigade Commander of 2/10

Mountain?

3

A.

About 41 months.

4

Q.

When did you assume command and when did you leave command?

5

A.

I took command in December of 2007 and I took -- I left

6
7
8
9

command in late spring of 2011.
Q.

Sir, what positions did you hold before becoming the

Mountain Commander?
A.

Prior to that I was the Deputy Commander for the Operations

10

Group at the Joint Readiness Training Center at Fort Polk, Louisiana.

11

I was in the Army War College for a year before that.

12

Commander of the 1st Battalion, 14th Infantry, out of Schofield

13

Barracks in Hawaii prior to that.

14
15
16

Q.

And I was the

And sir, from your time as the Deputy Commander of

Operations Group at JRTC, what were your responsibilities there?
A.

Essentially I assisted the COG, the Commander of the

17

Operations Group in all facets of his duties which primarily focused

18

on providing coaching and mentoring to brigade commanders and their

19

staffs and battalion commanders and their staffs for the rotational

20

unit as they came through.

21
22

Q.

Sir, was the Operations Group at the JRTC, were they in

charge of all the observer controllers?

9370

12929

1
2
3
4

A.

Yes.

The entire -- That was the purpose of the Operations

Group was to run all of the OC teams during their rotational cycles.
Q.

Sir, as the Deputy Commander for the COG, did you also --

were you an observer controller?

5

A.

Yes.

6

Q.

And who did you observe and control?

7

A.

For the most part I focused on the brigade commanders and

8
9
10

their staffs, and to some extent the battalion commanders.
Q.

How many brigades rotated through while you were fulfilling

the role of an observer controller?

11

A.

Ten, which is the standard for any given year for a CTC.

12

Q.

And, sir, what is your branch in the Army?

13

A.

I'm an Infantryman.

14

Q.

And, sir, how long have you been an Infantryman?

15

A.

Twenty-seven years.

16

Q.

Sir, when did you first arrive at Fort Drum?

17

A.

I arrived there in the fall, September of 2007.

18

Q.

And again, sir, when did you take command of your brigade?

19

A.

In December of the same year, 2007.

20

Q.

And, sir, when you took command of 2/10 Mountain, when did

21
22
23

-- at that time when had the brigade last deployed?
A.

They had just returned from a 15-month deployment just

before Thanksgiving of that same year.

9371

12930

1
2
3

Q.

And when you took command, sir, what was the brigade

mission in garrison?
A.

When I took command we went through about a 6-month reset,

4

reorganization time period, and then that summer we assumed the

5

global response force mission for the Army.

6

Q.

And, sir, what is the global response force mission?

7

A.

At any given time the Army's got one brigade combat team

8

designated to be on a short string, if you will, short notice

9

deployment to any unexpected hot spots that may arise anyplace in the

10
11
12

world.
Q.

And, sir, how many brigades are designated with that global

force response team?

13

A.

At any given time, one.

14

Q.

And what were the brigade's responsibilities in regard to

15
16

the global response force mission?
A.

It was to stay in a trained status both with perspective

17

personnel manning, equipment, and then the unit proficiency, training

18

proficiency, and then be able to respond, as I mentioned, on short

19

notice based on indications and warnings to any kind of an operation,

20

from humanitarian assistance to full combat operations.

21
22

Q.

And, sir, when did the brigade transition into preparing

for a future deployment, approximately?

9372

12931

1

A.

About a year after that, so the following -- 2008, or,

2

yeah, summer

3

Q.

4

before that.

5

A.

Sure.

6

Q.

You arrived when to 2/10 Mountain?

7

A.

I took command in December of 2007.

8

Q.

Okay, sir.

9

A.

So, I'm sorry.

of '08.

Sir, have you ever met PFC Manning?

I'm sorry, sir.

Just

And then when did ---You asked me about the time line.

So

10

summer of 2009 would have been when we started our transition from

11

that mission towards focus on deployment.

12

Q.

And what was that focus in the summer of 2009?

13

A.

Initially Afghanistan.

14

Q.

Okay, sir.

15

A.

To Iraq.

16

Q.

Sir, have you ever met PFC Manning?

17

A.

Excuse me.

18

Q.

And when was -- when about was the first time you met PFC

19
20
21
22

And what did it change to?

Yes, I have.

Manning?
A.

It was sometime during the time during the time period, we

were on the global response force mission.
Q.

And what -- and how did you meet him?

9373

12932

1

A.

As part of our maintaining readiness for that mission we

2

would do weekly staff updates to myself and the battalion commanders

3

focusing on different global hot spots, if you will, or regional

4

areas to maintain our situational awareness and understanding.

5

as part of that, PFC Manning gave part of the Intel update during a

6

few of those weekly updates.

7
8

Q.

And

Sir, was it common for a junior enlisted Soldier to be

briefing the commander during staff updates like that?

9

A.

No, not really.

10

Q.

So why in the S-2 section did that happen?

11

A.

I believe because of the S-2 approach as part of junior

12

Soldier and leader development was to have them prepare for and

13

conduct those briefings as part of their professional development.

14
15

Q.

And, sir, did you deploy as the brigade commander of 2/10

Mountain?

16

A.

Yes.

17

Q.

And was that your first -- Or when was that deployment?

18

A.

That was from the fall of 2009 to the summer of 2010.

19

Q.

Sir, was that your first deployment?

20

A.

No.

21

Q.

How many deployments have you had in your past 27 years?

22

A.

Four.

23

Q.

Could you briefly describe those, please?

9374

12933

1

A.

I had two combat deployments, one as a brigade commander,

2

2/10, to Iraq; another 14-month deployment as a battalion task force

3

commander, also to Iraq.

4

to the Balkans.

5

Q.

And then two other operational deployments

I'm sorry, sir, you just answered this, the length of the

6

deployment.

7

within Iraq when 2/10 Mountain deployed?

8
9
10
11

A.

What was the brigade's area of responsibility, AOR,

We were responsible for all of Eastern Baghdad and the

Madai province to the east of Baghdad.
Q.

And, sir, when your brigade deployed, what division -- what

U.S. division did you fall under in Iraq?

12

A.

U.S. Division Center.

13

Q.

And what, during your deployment, sir, what flags -- what

14
15
16
17

actual combat division headquarters fulfilled or were the USDC?
A.

I got you.

Initially it was the 1st Cav Division for about

the first roughly 3 months, and then 1st Armored Division after that.
Q.

Sir, going back to the area of responsibility of your

18

brigade, how would you describe or could you please describe for the

19

court the size of 2/10 Mountain's AOR within Iraq?

20
21
22

A.

I think it was roughly about 500 square kilometers or so.

It was a pretty big AOR for a brigade combat team.
Q.

And what were the primary FOBs, COBs, JSSs in your AOR?

9375

12934

A.

1

The brigade was dispersed across about 17 or 18 different

2

size combat outposts, joint security stations and forward operating

3

bases.

4

outside the city and Joint Security Station Loyalty in the city.

5

the brigade main was out at Hammer and my forward command post was at

6

Loyalty.

7

battalions in the city itself and two maneuver battalions outside the

8

city.

9

had about seven -- about seven company platoon sized outposts

The two primary brigade outposts were FOB Hammer, which was
So

Each battalion had their outpost and so I had two maneuver

In the city, in addition to those two battalion locations, we

10

dispersed throughout the area from Sadar City, possibly south to

11

Zafrania, and then out in the Madine, the rural area, we had about

12

the same number of company and platoon outposts as well.

13

Q.

Sir, where was your brigade headquarters?

14

A.

The main headquarters was at FOB Hammer.

15

Q.

And where was the majority of your brigade staff located?

16

A.

Most of the staff was at Hammer with the main, and then a

17

small staff forward at JSS Loyalty with the forward CP.

18

Q.

And, sir, how far was FOB Hammer from Baghdad?

19

A.

Probably about 60 kilometers.

20

Q.

Sir, how long had the brigade headquarters building been

21
22
23

located at FOB Hammer by the time 2/10 took over?
A.

It was just established there.

As part of our transition

with the unit we replaced, we had agreed and arranged that the

9376

12935

1

brigade main would move out of Loyalty out to Hammer, be established

2

during the transition, our brigade would fall in on it, and that was

3

done as part of the condition setting to reduce the footprint of U.S.

4

forces inside the city.

5

Q.

Sir, could you please briefly describe for the Court what

6

were the key over-arching tasks of your brigade while -- for your

7

deployment?

8
9

A.

Sure. So we were there for the last OIF mission and the

transition to Operation New Dawn; New Dawn being the drawdown of

10

forces in theater, the response drawdown.

11

mission as we saw it -- as I saw it.

12

in the Iraqi Security Forces and simultaneously create enough

13

stability amongst the population to insure that the threats that were

14

left when we pulled out would be manageable by the Iraqi Security

15

Forces.

16

responsible drawdown of our forces in theater and make a transition

17

to Operation New Dawn.

18

Q.

So we had a twofold

First, it was to build capacity

And then with that accomplished, make a transition to the

And, sir, in a general and in an unclassified manner, what

19

was the general nature of the threat against the brigade in Iraq at

20

the time?

21

A.

There were certainly still a threat there.

Not quite the

22

volume that I had experienced in the previous deployment, but we

23

were, for example, still taking indirect fire attacks within the city

9377

12936

1

on a regular basis, you know, several per week, both in and outside

2

the city, still hitting IEDs roughly on a daily basis or every couple

3

days or so, and periodic direct fire attacks.

4

Q.

Sir, I'd like to now focus or have you focus on the first

5

of the major missions you just spoke about, the training of Iraqis.

6

For that mission, sir, what was the main effort for your brigade

7

staff?

8
9

A.

For the staff, the focus was on help with partnering with

our Iraqi partners and helping them build their staff capacity.

That

10

is, the planning and synchronization oversight of their operation. We

11

were partnered with two Iraqi divisions, First Federal Police and the

12

9th Iraqi Army, and also with a Corps level or equivalent

13

headquarters, the Rasafa Area Command a three star headquarters in

14

eastern Baghdad.

15

decision making process, intelligent preparation of battle field, and

16

synchronization of operations in time and space.

17

that's what their decisive action was.

18
19

Q.

So we worked with them on their skills of military

So for my staff

Now, sir, was that the decisive action for your staff while

they were also working as your staff?

20

A.

Absolutely.

21

Q.

And how did that occur, sir?

22

A.

Well, so they spent -- the staff principals spent most of

23

their time partnered with their counterparts on those three different

9378

12937

1

headquarters, so you can imagine that was a pretty time intensive

2

piece.

3

counterpart.

4

required to keep the brigade running, if you will, were done at

5

night, as well as other staff planning and actions that took a little

6

bit more time and uninterrupted concentration.

So most of their daytime operation were with their staff
And then the routine tasks and actions that were

7

Q.

Sir, how many Soldiers did you have in your brigade?

8

A.

We had about 4,000, deployed Soldiers.

9

Q.

And how many Iraqis was the brigade partnered up with to

10

train overall?

11

A.

I'm going to estimate about 10,000 or so.

12

Q.

Sir, now I'd like to ask you a few questions about what you

13

earlier testified about the second mission, the responsible drawdown.

14

What do you mean by the -- What did you mean by the responsible

15

drawdown of your brigade?

16

A.

Well, responsible is the keyword, that we wanted to hand

17

over the fight to a capable Iraqi force, and that the transition

18

period needed to be smooth, seamless and transparent to the

19

population, meaning no drop in security while it was occurring so

20

that their day-to-day lives went on uninterrupted without major

21

change or turmoil.

22

with a number of simultaneous actions happening together.

23

had to physically hand over the 18 or so outposts that we owned to

So to do that, it's a pretty complex operation

9379

First, we

12938

1

our Iraqi counterparts, if they wanted them, and that was both a

2

physical property turnover and a physical ownership that had to be

3

overseen by the Iraqi Minister of Interior.

4

process.

5

transfer of authority for security of those areas surrounding those

6

outposts to our Iraqi counterparts.

7

communications effort to broadcast that across the local area so that

8

the population knew this was occurring.

9

ceremonial piece that went with that to make sure it was known

It's a very deliberate

Simultaneous with that and probably more important was

Part of that was a strategic

And there's a large

10

publicly and that they could get credit or could get the credit they

11

were due for taking that ownership very celebrated by the Iraqi

12

people in the local areas.

13

turn in all the theater-owned equipment that had built up over the

14

past 10 years of having been in country, turned that into central

15

locations for eventual shipment back to Kuwait, and eventual shipment

16

back to the continental U.S.

17

own equipment for shipping back to Fort Drum and other places that

18

attachments came from and the planning of our normal redeployment

19

activities that any other unit now would do.

20
21
22
23

Q.

While that was happening, we also had to

Along with that, we had to prepare our

Sir, when was the decision point on when to shift your main

focus and effort to the responsible drawdown from training Iraqis?
A.

Right.

We had a decision point, the elections were held

late February, early March.

9380

12939

1

Q.

I'm sorry, sir.

What elections?

2

A.

The Iraqi Government elections were held in that time

3

period and we had a decision point a few weeks after that to

4

determine whether or not we had met the conditions, meaning Iraqi

5

Security Forces were competent enough and population stable enough to

6

make the transition in priority of work from those two tasks to the

7

drawdown of our forces in theater.

8
9

Q.

Sir, did the drawdown mission begin concurrent with the

training mission, also?

10

A.

Yes.

11

Q.

And was that -- What was the focus of your brigade staff

12
13
14

during this time for the whole deployment then?
A.

It remained on capacity capability for those three staffs

that I mentioned and their Iraqi counterparts.

15

Q.

And, sir, which BCT was the first to drawdown in Iraq?

16

A.

Our brigade was the first brigade to begin responsible

17
18
19
20

drawdown and initiate the transition to Operation New Dawn.
Q.

Sir, what major challenges did the brigade face with such a

diverse mission?
A.

One was just the diversity of the mission required a lot of

21

intellectual energy going in a lot of different directions.

22

was the physical dispersement of the force which was a challenge, but

23

not insurmountable from a command and control standpoint and we had a

9381

There

12940

1

challenge with our communications network being able to physically

2

cover the territory that we were operating in.

3

the commo network pretty much stretched to its limits for the systems

4

that we had to use.

5
6
7

Q.

So we pretty much had

And, sir, with reference to communication, what specific

type of problems did you have?
A.

The biggest ones for myself and support unit was

8

connectivity, essentially during key times like commander updates,

9

brigade to division, brigade to battalions, and laterally.

10
11
12

Q.

And, sir, when you talk about networks and communication,

what networks and types of communications are you talking about?
A.

My late brain.

I was talking about all commo, whether it

13

be FM communications, secure voice, Internet, email traffic, all

14

secure networks, VTCs, teleconferences, all of it.

15
16

Q.

Sir, did that include the use or having connectivity of

SIPRNET?

17

A.

Yes.

18

Q.

And how important, if at all, sir, was SIPRNET to the

19

brigade's mission?

20

A.

It was critical.

21

Q.

Why, sir?

9382

12941

1

A.

SIPRNET is the primary means of communicating in theater,

2

not just for our brigade, but for everybody.

3

do or did was over SIPR.

So almost everything we

4

Q.

SIPR, how often did you personally use SIPRNET in theater?

5

A.

All the time, every day.

6

Q.

How often did your brigade staff use SIPRNET in theater?

7

A.

The same, all the time.

8

Q.

What about junior staff?

9

A.

Same.

10

Q.

Sir, did most junior staff have NIPR computers with access?

11

A.

No, not directly.

12

If they did, it would be one computer

per X number of Soldiers that they could get to if they needed to.

13

Q.

And why is that, sir?

14

A.

As I mentioned, really no need.

I mean 99.9999 percent of

15

activity was done on SIPR side, so that was, SIPR was as normal in

16

theater as NIPR is in the garrison.

17

Q.

Sir, how often did your staff leave FOB Hammer?

18

A.

Primary staff, the principals, the S-1, the S-2, the S-3,

19

the 4, on a regular basis out of a course of a week to do their

20

engagements with their Iraqi counterparts.

21
22
23

Q.

And then how often then did junior Soldiers on your command

leave FOB Hammer?
A.

Seldom to never.

9383

12942

1
2

Q.

Sir, what concerns did you have for Soldiers who never left

the FOB?

3

A.

Getting stuck in what we would call a Fobbit rut.

4

Q.

What do you mean by that, sir?

5

A.

Well, I mean if you're on a FOB and you're never leaving

6

the wire, then things -- and your job is tied to a computer screen on

7

a daily basis, you know, your mental edge or intellectual energy, if

8

you will, can kind of start to get greyed out to an extent.

9

getting stuck in a rut, in a routine, and getting stuck in a mundane,

So

10

you know, battle rhythm could cause you to lose focus, concentration

11

and, you know, that alertness that goes with staying on your game.

12
13
14
15
16

Q.

Sir, when you were at FOB Hammer, did you know that

Soldiers had played music, movies and games on SIPRNET?
A.

I had an awareness in the periphery of my mind that folks

were listening to music and that kind of thing on systems.
Q.

And, sir, since it was, you said awareness as you said in

17

the periphery of your mind, why was having movies, music and games on

18

SIPRNET not a concern for you?

19

A.

There wasn't anything about that that had anything to do

20

with any kind of impact on the mission at hand and the operational

21

effectiveness of those Soldiers doing their day-to-day jobs.

22

Q.

Was there a benefit, sir, to having that on SIPRNET?

9384

12943

1

A.

Well, I would say that there's a benefit to anybody who's

2

got a job that keeps them in one work space in a cubicle working on a

3

computer to have something like music, a periodic interruption of a

4

game, whether it be solitaire or whatever, to break the monotony of

5

what they're doing as part of their normal operations.

6

college student studying for exams may be listening to music while

7

they're studying, or if you go in the dentist office and you're

8

getting your teeth worked on the hygienist has a radio playing in

9

the backdrop while they're doing their job.

10
11
12

Not unlike a

I think that there's

some value probably to that.
Q.

Sir, at any point during your brigade's deployment, did the

amount of information on the SIPRNET, the amount become a problem?

13

A.

We believed so, yes.

14

Q.

And what was the problem, sir?

15

A.

Well, I don't remember the exact timeframe, probably

16

January or so, we were having these problems maintaining

17

connectivity.

18

all the brigade commanders were on the net communicating their

19

analysis of what had transpired the previous week with the division

20

commander and we would frequently get dropped off the net during

21

those time periods.

22

hey we got to figure out why this is happening and what can we do to

23

get this working right.

For example, during the division update briefs when

So I had turned to my XO, and staff and said,

We didn't want to have interruptions during

9385

12944

1

that time period, or when UAV feeds were coming in during specific

2

operations or that kind of thing.

3

the issue was we had a bandwidth management challenge that was part

4

of the cause for this, and so part of the problem with that, as I

5

understood it, was too much stuff on the net at any given time, and

6

that was causing the drops that were occurring as it was explained to

7

me.

8
9

When they came back to me, part of

So that was a problem that we were faced with.
Q.

So, sir, what I guess remedial measures did you direct in

order to fix that problem?

10

A.

11

could we do.

12

times, so putting in protocols that would say, hey, only these things

13

can be running during this time to maintain minimal connectivity and

14

allow for the main event like an update brief with the CG or UAV feed

15

during a key operation to not get disrupted.

16

systems that weren't being used very frequently and taking them off

17

the net permanently.

18

operations center battle captain so that not anybody could jump in

19

there with that user word and use it for something other than its

20

designed intent for the mission.

21
22

Q.

Well, based on the recommendations, I asked the staff what
Some of those things were limiting access during key

Taking a look at

Eliminating generic user names like tactical

Things of that nature.

Sir, was any of these remedial measures that you ordered,

were any of them done for security reasons?

9386

12945

1
2

A.

No.

We were looking at this from a network connectivity

standpoint, that was the problem at hand.

3

Q.

And, sir, are you familiar with the program WGet?

4

A.

I am familiar with it now.

5

Q.

What do you mean by that, sir?

6

A.

I wasn't aware of it at all during our time in theater.

7

Since this entire security breach occurred and learning about that as

8

part of in the aftermath I learned what it is.

9
10

Q.

So because of this case we're here today for, sir, you

learned about it?

11

A.

Right.

12

Q.

Sir, are you familiar with mIRC chat?

13

A.

I am.

14

Q.

And what is mIRC chat?

15

A.

It's a system that we've been using and we were using at

16

the time that allows collaboration within a network, in our case,

17

between division brigade and battalion staffs, so that you can

18

communicate vertically and horizontally.

19

simultaneously because that enables collaboration which is at the

20

heart of mission command.

Significant to us

21

Q.

Sir, did your staff use mIRC chat deployed in Iraq?

22

A.

Yes.

23

Q.

Did the division use mIRC chat?

9387

12946

1

A.

Yes.

2

Q.

Sir, what was the benefit of mIRC chat?

3

A.

Like I said, it allowed collaboration.

There's two reasons

In its most immediate needs -- by way of

4

why that's so important.

5

example, a combat patrol hits an IED, makes an IED strike, so now all

6

the react to contact rules go into play.

7

report of the IED hit could come up in a single channel, let's say

8

it’s to a platoon to a company to a battalion to brigade to division.

9

If they need a med-evac, that same request goes up those single

Without mIRC chat that

10

channels. If they need reinforcing fire, attack aviation or something

11

like that, same thing, that request goes up through those channels,

12

gets approved or cleared at each level, and then it comes back down.

13

If they need an EOD team, same thing.

That all takes time.

14

you're in a fight, time is

With chat, that information

15

goes to everybody, same time.

16

battalion, brigade, battalion staff, commanders are aware if they're

17

tracking and so the request for med-evac goes through

18

instantaneously.

19

standpoint everybody's got situational awareness.

20

patrols in the area, if they've got to alert around it, not get

21

bogged down in that bottleneck, they can do it.

22

reaction force that need to be put on alert or get launched it can

critical.

And when

So the division staff knows,

EOD goes right away.

9388

Plus from a commander
So other combat

If there's a quick

12947

1

all happen in a fraction of the time it would have taken without a

2

system like mIRC chat.

3

Q.

Sir, when did your brigade start using mIRC chat?

4

A.

From the time we got on the ground.

5

Q.

How do you know that, sir?

6

A.

We picked it up from the unit that we were replacing about

7

part of our relief in place.

8

Q.

And what unit was that?

9

A.

3rd Brigade of the 82nd.

10

Q.

And why did you use it just because 3/82 was using it?

11

A.

Well, it wasn't just because 3/82 was using it.

It really

12

was because that was the method -- system that was being used in

13

theater in U.S. Division Center at the time.

14

with everybody else in theater, you're going to use the systems at

15

play.

16

Q.

So to be compatible

So now I'd like to ask you a few questions about your

17

brigade headquarters and the TOC and the S-2 SCIF area.

18

your office located at FOB Hammer?

19
20
21
22

A.

Where was

My office itself was on FOB Hammer inside the brigade

headquarters.
Q.

And, sir, could you please describe the building or tent?

What type of infrastructure or ----

9389

12948

1
2

A.

Yeah.

So we had hard stand, hard structure building inside

the FOB that was the brigade headquarters.

3

Q.

And, sir, where was the S-2 SCIF office located?

4

A.

Same building with the brigade headquarters, so my office,

5

the brigade tactical operations center itself and all the staff

6

functions were all inside that one building.

7

Q.

And, sir, could you briefly describe for the Court how one

8

would walk in from the front of your brigade headquarters and get to

9

the SCIF?

10

A.

Sure.

So -- excuse me.

You'd come in the main entrance

11

which was pretty much center mass of the building.

12

you'd come to was a small guard stand if you will.

13

MJ:

14

WIT:

15

The first thing

I'm sorry.
Like a desk about the size of what I'm sitting in front of

you which is where we had a spot for a security post.

16

Q.

Sir, were there guards that were manning that post?

17

A.

Only at night.

18

Q.

And why, sir?

19

A.

One, that was low manning -- low personnel manning time

20

period, so there wasn't as many people in the building to check who

21

was coming in and out.

22

operations I talked about, the volume of folks that were around to

Because of the battle rhythm of daytime

9390

12949

1

see who was coming in and out was ample, we thought, to check folks

2

that didn't have normal day-to-day business inside the headquarters.

3

Q.

Sir, for someone to walk in when there was a guard, was

4

there a challenge password in place?

5

the guards?

6

A.

How did you verify to get past

Good to use the analogy of challenge and passwords.

Just

7

like you would do for regular challenging passwords, if the guard

8

recognized the person that was there and recognized that they were

9

part of the organization, there was no challenge, just visual

10
11
12
13

identification, you're good to go.
Q.

When you say the organization, sir, is it your whole

brigade, is it your staff?
A.

The staff or anybody who had normal duties within there or

14

reason to be there like a battalion commander, battalion sergeant

15

major, folks like that.

16

needed and where did they need to do go, and then they'd get somebody

17

from the appropriate staff and they'd come in and out.

18
19
20

Q.

If not, then they asked them what they

I interrupted you, sir, I apologize.

You were talking

about once you walked past the guard station.
A.

Yeah.

The tactical operation center was just past that

21

where the operation sergeant major and the key folks were.

22

there was a hallway where the rest of the staff agencies were

9391

And then

12950

1

located.

2

was the brigade S-2 shop.

3
4
5
6

Q.

As I recall, the last offices on that particular hallway

Now, sir, when you would walk up to the brigade S-2 shop,

could you just walk in the door?
A.

No.

It was cypher lock secured and you had to have access

to the cypher lock to get in, into the shop.

7

Q.

And did you have access to that?

8

A.

I did not.

9

Q.

And what office of individuals were the ones that had

10

access?

11

A.

The S-2.

12

Q.

And was an individual allowed to go into the S-2 office

13

without an escort?

14

A.

Not to my knowledge, no.

15

Q.

Sir, when did you first find out about PFC Manning's at the

16
17

time alleged misconduct?
A.

I don't remember the date, but the way it came about to me

18

was I was coming back from dinner or something like that one evening

19

and I was approached by either my XO or my DCO and they told me that

20

we had been instructed to secure Manning and his computer and he was

21

being -- agencies were coming to pick him up and take him away.

22
23

Q.

And, sir, what was your understanding of the nature of the

misconduct at that time?

9392

12951

1

A.

At that time I didn't have any idea.

2

Q.

And then what was your understanding once you were briefed

3
4

and understood what it was?
A.

I had a general understanding that he had pulled classified

5

information from ----

6

CDC[MR. COOMBS]:

7

MJ:

8

CDC[MR. COOMBS]:

9

MJ:

Objection, Your Honor.

Yes.
Hearsay and relevance.

What is the non-hearsay purpose?

10

TC[MAJ FEIN]:

11

MJ:

12

TC[MAJ FEIN]:

Well, the effect on listener, Your Honor.

What is -- Where are you going with that?
Ma'am, it goes ultimately to prejudice of good

13

order and discipline and service discredited, to proving -- providing

14

facts to prove it was both prejudicial to good order and discipline

15

and service discrediting some of the acts that have not been pled

16

guilty to, Your Honor.

17
18

MJ:

Why don't you just say after you were briefed in your

questions.

19

TC[MAJ FEIN]:

Yes, ma'am.

20

MJ:

21

CDC[MR. COOMBS]:

22

MJ:

Sustained.
Your Honor, just ----

Sustained on hearsay, not on relevance.

9393

12952

1

CDC[MR. COOMBS]:

Yes, Your Honor.

Just for the defenses

2

purpose on the relevance, we believe that the relevant conduct for

3

prejudicial order or discipline would be the direct acts, not any

4

government acts after that.

5

will be going, but the direct acts would be relevant under 134, under

6

that, so ----

7

MJ:

8
9

So I'm not for sure where Major Fein

Why don't we let him go and get there, and if it's not for

proper purpose I can disregard it.
CDC[MR. COOMBS]:

Yes, Your Honor.

10

MJ:

Go ahead.

11

Q.

Sir, how did you react when you first found out about PFC

12

Manning's at the time alleged misconduct?

13

A.

I was stunned.

14

Q.

Why, sir?

15

A.

The last thing I anticipated was an internal security

16
17
18

breach from one of our own.
Q.

Sir, were you ever in a meeting with your brigade staff

that the alleged misconduct was discussed?

19

A.

Yes.

20

Q.

And what was your reaction based off of those discussions

21
22
23

during your brigade staff meetings?
A.

After I got past my initial reaction, I pulled the staff

together because I wanted to do an internal look to determine what if

9394

12953

1

anything we had or had not done that may have led to the ability for

2

this to occur, so we could do some self-correcting and move forward

3

if we needed to.

4

I thought had happened.

5

like a funeral-like atmosphere fell over that crowd, that's the best

6

way I can describe it.

7

at the same time.

8
9
10
11

Q.

As part of that I described from my personnel what
My read of my staff at that time was it was

They were angry, sad, grief, frustrated, all

That's how I would describe it.

Sir, before you learned of PFC Manning's at the time

alleged misconduct, how would you describe the overall morale of your
staff and brigade?
A.

So probably one of the highest points I had been on in my

12

entire command duration, and that's, that's because we had really hit

13

all of our objectives and our conditions for meeting the mission

14

requirements.

15

identified to begin responsible drawdown.

16

accident.

17

being able to brief General Odinero that we were ready.

18

large part through the achievements of the staff and the subordinate

19

units.

20

population was cooperating with each other, things were moving in the

21

right direction with their own unity efforts.

22

were reaching a high point in their own performance.

You had asked and I had mentioned that we were the BCT
That didn't happen by

A lot of work went into achieving those objectives and

So they were feeling very good about that.

9395

That was in

The Iraqi

The Security Forces
All those

12954

1

things were occurring.

2

occur.

3

Q.

And then out of the blue we had this incident

So, sir, once you and the brigade staff learned of PFC

4

Manning's then alleged misconduct, how would you describe the morale

5

of the brigade?

6

A.

It took a hit.

We had all those good things going and, to

7

put it in context, you know, this was the beginning of the drawdown,

8

so I had a large number of, probably 50 percent of the force that had

9

anywhere from two to six deployments in theater before that, so what

10

they were seeing is the fruits of their labor over the past 10 years

11

coming to fruition and feeling pretty good about it.

12

energy and effort and sacrifice that had gone into it was coming to a

13

completion.

14

collectively felt was like a blemish on its otherwise pretty stalwart

15

record.

16

formation.

So all that

And then we had this incident occur, which the unit

Not to mention what it does to trust to a large degree in a

17

Q.

What do you mean by that, sir?

18

A.

Well, earlier I made an analogy to security breach.

In

19

this case it was cyber security.

But to my Infantryman's way of

20

looking at things, trust is critical to, it's at the foundation of

21

everything we do.

22

helmet with front security, you got a trail helmet with trail

23

security, and you got left and right flank security.

So if you're in a combat patrol, you got a lead

9396

Every Soldier

12955

1

in that formation knows that the other Soldier's got their piece of

2

the security.

3

fiber of their body.

4

them staying focused on their part of the security piece.

5

interwoven and relies upon each other, just that mutual knowledge

6

that I got you, you got me.

7

violates that, now that Soldier with the lead security is looking to

8

his left and going is there a gap in security over here?

9

my eyes off my job, I'm putting it over here.

They know it in their blood and in their -- in the
And that trust, that that's true, is crucial to

That's how we roll.

It is

If any one of those

I'm taking

And the whole thing

10

starts to unravel.

11

is true in every echelon of command.

12

morale and for at least a while the operational effectiveness of the

13

formation.

14
15

TC[MAJ FEIN]:

And so that's a simple example, but the analogy

Thank you, sir.

MJ:

17

CDC[MR. COOMBS]:

18

a 10-minute comfort break?

20
21
22
23

Your Honor, no further

questions.

16

19

That notion is what hit at the

MJ:

Cross-examination.

All right.

Yes, Your Honor.

If we could, could we have

Why don't we make it 15?

We'll be in recess

until 5 minutes after 12.
Once again, during the recess, please don't discuss your
testimony or knowledge of the case with anyone.
WIT: Yes, ma'am.

9397

12956

1

MJ:

Thank you.

2

[The court-martial recessed at 1158, 28 June 2013.]

3

[The court-martial was called to order at 1211, 28 June 2013.]

4

MJ:

Court is called to order.

Let the record reflect all

5

parties present when the Court last recessed are again present in

6

court.

7

lectern.

8

The witness is on the witness stand and Mr. Coombs is at the

CDC[MR. COOMBS]: Thank you, ma'am.
CROSS-EXAMINATION

9
10
11
12

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

Colonel Miller, I want to begin by talking about the

connectivity problems that you had during the deployment, okay?

13

A.

Okay.

14

Q.

Now, during the deployment you started having connectivity

15

problems with your weekly updates to Major General Wolfe.

16

correct?

Is that

17

A.

Yes.

18

Q.

And Major General Wolfe was the Division Commander?

19

A.

Correct.

20

Q.

And it was during this time you found out that the loss of

21

connectivity was due to unauthorized data on the system?

22

A.

No.

23

Q.

Is that what your testimony is right now?

9398

12957

1

A.

That I understood that there was a volume of stuff on the

2

network that was causing part of the problem, so the data, authorized

3

or unauthorized, was part of that problem.

4

Q.

All right.

So ----

5

A.

So all I'm saying it wasn't solely because of that.

6

Q.

All right.

So let me make sure I understand your answer.

7

During this time period when you were having connectivity problems,

8

you found out that part of the problem was due to unauthorized data

9

being on the system?

10
11

A.

Yeah, that it was contributing to the volume of stuff that

was on the system which was causing the problem as I understood.

12

Q.

And specifically it was unauthorized data?

13

A.

Can you ask that again?

14

Q.

Yes.

15
16

Specifically when you were talking about data, you

were made aware that there was unauthorized data on the system.
A.

As part of the larger data problem.

17

feeds are authorized data flow.

18

So that was part of the problem also.

19
20

Q.

So, for example, UAV

They take huge chunks of bandwidth.

Right. But my question is you were specifically told that

there was unauthorized data on the system?

21

A.

Yes.

22

Q.

And the person that basically addressed this issue for you,

23

this unauthorized data, was Captain Cherepko?

9399

12958

1

A.

Yes.

2

Q.

And with regards to Captain Cherepko, it was your opinion

3

that he was the only person really in the S-6 shop who had the skills

4

necessary to fix this problem?

5

A.

Yeah, he certainly had the most capability, yeah.

6

Q.

And, you know, something obviously that could also have

7

helped improve the connectivity problems that you were having was the

8

removal of unauthorized media, correct?

9

A.

Yes.

10

Q.

So you could have, for example, insured that movies, music,

11

games, executable files, those things that should not be on a SIPRNET

12

system were removed?

13

A.

Yes.

14

Q.

Because they were taking up a lot of space?

15

A.

I don't know how much space they took up.

16

Q.

Did Captain Cherepko ever come to you to inform you that

17

unauthorized media was taking up a lot of space?

18

A.

No.

19

Q.

Did he ever inform you about the problem of unauthorized

20
21

media on the T-drive?
A.

No.

9400

12959

1

Q.

So to your knowledge, Captain Cherepko never came to you

2

and said or through I guess who had been your XO, sir, we've got

3

unauthorized media on the T-drive and that's causing us a problem?

4
5
6

A.

The XO, Brian Kerns, came to me with here's what we found

is lending itself to the problem that we're having.
Q.

All right.

So whether it be through Captain Cherepko,

7

Lieutenant Colonel Kerns, were you made aware that there was

8

unauthorized music, movies and games on the shared drive?

9

A.

Yes.

10

Q.

And based upon being made aware of that, what direction did

11
12

you give?
A.

I told them to clean it up as part of their overall efforts

13

to and other steps they were taking to get the connectivity working

14

again.

15
16

Q.

And was it just the direction that you just said there, to

clean it up, or did you actually give specific directions?

17

A.

I didn't give specific guidance.

18

MJ:

Can I interrupt you for a second?

19

CDC[MR. COOMBS]:

20

MJ:

21

WIT: So we had the XO, Brian Kerns was the guy who I had

Sure.

You said you told them.

Who is them?

22

shepherding this entire staff effort because that's what he is, he's

23

a chief of staff.

So I don't remember if Cherepko was in the room,

9401

12960

1

who else was present, maybe Brian, maybe Cherepko, maybe the deputy,

2

he may or may not have been present.

3

essentially said, this is -- these are the things we see lending

4

itself to the problem.

5

clearing some of that up.

6

unauthorized media, it included, like I had mentioned, some other

7

measures like taking certain systems off and adding to the protocols

8

to control when things were being accessed when.

9

let's get after that.

10
11

But they came back and

And we -- they had a recommendation for
It included getting rid of the

So I said, yeah,

And, again, I don't remember the exact laundry

list of recommendations they had, but I was like, yes, let's do that.
Q.

And when you gave the guidance to your staff basically to

12

correct the problem, did you ever receive word back through your

13

staff that the problem was, meaning that once it was removed it was

14

getting placed back on the T-drive?

15

A.

No, not that I recall, no.

16

Q.

Did you ever get a requested brief back of your staff of

17

now that I gave you the guidance to go correct it, come back to me by

18

X date and tell me what you did and what your results were?

19

A.

No, I don't think so.

20

Q.

With regards to the problem, once you're aware of the

21

problem, did the brigade ever conduct any training on what type of

22

media a Soldier could and could not put on the shared drive?

23

A.

Not formalized.

9402

12961

1

Q.

And what do you mean by that?

2

A.

There wasn't a class with a sign-in roster or that kind of

3
4

thing.
Q.

So was there any informal training done that you're aware

5

of to tell Soldiers what they could and could not put on the shared

6

drive?

7

A.

I wouldn't classify it as training.

I believe what

8

happened was guidance was put out through staff challenges of what

9

had to be cleaned up.

10

Q.

All right.

And when you say you believe, was that because

11

you gave that directive or you just believe that might have been done

12

based upon your initial directive of clean it up?

13

A.

Because it was part of the initial guidance to take action.

14

Q.

Okay.

Do you know whether or not at any time during the

15

deployment there was any sort of discussion on executable files,

16

files that you could put on the shared drive or not?

17

A.

No.

18

MJ:

Does that mean you don't recall or there was none?

19

WIT: Ask the question again, please.

20

CDC[MR. COOMBS]:

21

Q.

Yes.

Do you know whether or not during the deployment there was

22

ever any training on what executable files you could or could not

23

place on the shared drive, the T-drive?

9403

12962

1
2
3
4

A.

I don't know.

I don't know that we were in the business of

putting files on drives, so --Q.

Saving stuff to the -- The T-drive was the shared drive,

right?

5

A.

Right.

6

Q.

And Soldiers, any section could share, excuse me, save

7

stuff to the T-drive?

8

A.

Right.

9

Q.

So do you know from the brigade standard whether or not

10

there was any training or guidance given on executable files that you

11

could or could not save on the shared drive?

12

A.

I don't know.

13

Q.

Now, during the deployment, were you ever informed that

14

there was unauthorized media within the T-SCIF?

15

A.

No.

16

Q.

Did you later learn that there was unauthorized media in

17

the T-SCIF?

18

A.

No.

19

Q.

So from your standpoint, even today I guess, you didn't

20
21
22

know whether or not there was unauthorized media on your T-SCIF?
A.

Well, actually today I can say no, not for sure, I presume

just part of the overall read that we had unauthorized media, I

9404

12963

1

didn't discount or include the T-SCIF in the read, so I wasn't sure

2

aware of anything in the T-SCIF.

3

Q.

The reason why I ask is my understanding is like when you

4

go in to kind of like where the TOC was and the T-SCIF, the T-SCIF

5

had a cypher lock to it, right?

6

A.

Correct.

7

Q.

So that was, would you agree with me, a much more secure

8

area than maybe the TOC because of the cypher lock?

9

A.

Access-wise, yeah.

10

Q.

And also access-wise it was much more limited as to who

11

could go into the T-SCIF?

12

A.

True.

13

Q.

So you would want to be, I guess that's because you're very

14

concerned on who goes into the T-SCIF and what happens in the T-SCIF?

15

A.

Yep, certainly who goes in.

16

Q.

And then also the information that you have in the T-SCIF

17

you're concerned about?

18

A.

Yeah.

19

Q.

So were you ever made aware that Soldiers in the T-SCIF had

20
21

unauthorized media like movies, music and games?
A.

No.

9405

12964

1

Q.

And when you talked about I guess the, in your term it was

2

the Fobbit where if you never go anywhere, you kind of go a little

3

stir crazy just being on the FOB, was your ----

4

MJ:

5

CDC[MR. COOMBS]:

6

Q.

7

Let the record reflect the witness is nodding his head.
I'm sorry.

Thank you, ma'am.

Was your guidance to combat that in the T-SCIF you would

allow music, movies and games on a SIPRNET computer?

8

A.

No.

9

Q.

And if you were made aware of that, sir, would you have put

10

a stop to that practice?

11

A.

I don't know.

Not necessarily.

12

Q.

And why not?

13

A.

For the same reasons I just described, that I thought

14

there's some degree of benefit to those kind of luxuries, if you want

15

to call it that.

16

problem with that.

17

Q.

I don't see immediately as a layman the operational

And if your S-6, Captain Cherepko, came to you, assistant

18

S-6 actually, came to you and said, sir, the problem with that is the

19

music, movies, games, or the executable files are a security risk,

20

they should not be on the SIPRNET computer, if you received that

21

guidance, would you then not want to have that stuff on the SIPRNET

22

computer?

9406

12965

1

A.

Yes.

And or I would have wanted to peel that onion further

2

back and determine exactly what the nature of the security risk is,

3

and then decide whether or not I wanted to challenge that and run a

4

waiver on it through the green tab channels to determine whether it

5

was really a risk or not.

6

reason given for it's not authorized is because there's a document

7

that says this is not authorized and therefore it's a risk.

8

always want to get to is why, not the document, but what was the

9

logic behind that being put in that document so I can get to the root

Because sometimes these risks -- the

10

reason.

11

and find if there really is a physical threat or not.

12

I would want to run it on ground and get permission or not.

13

Q.

What I

Then we can assess the root reason against what we're doing
But either way

If your S-6 said, hey, this stuff is a security risk

14

because it opens up our network to outside intrusion and you ran that

15

to ground and that was true, then I imagine you would not allow that

16

in your T-SCIF?

17

A.

Correct.

18

Q.

And if the S-6 said, hey, the same thing, that this is a

19

problem because it opens up our network to outside individuals, and

20

you ran that to ground and that wasn't true, that was just an S-6

21

being an S-6 being too concerned, but the reality was there was no

22

problem, what would you do in that situation, sir?

23

A.

But it was still a policy or regulatory unapproved?

9407

12966

1

Q.

Yes, sir.

2

A.

Then I would want to run it back up through division to see

3

if we couldn't get an exception, if there was operational benefit

4

that was worth the energy to do that, then I may have wanted to look

5

into it to see if we could get a waiver.

6

Q.

And did you ever do that, to your knowledge?

7

A.

No.

8

Q.

Ask for a waiver?

9

A.

No, I did not.

10

Q.

Would that apply and -- you talked about the mIRC chat

11

program, right?

You're familiar with that, sir?

12

A.

Yes.

13

Q.

And did you ever ask for a waiver to have the mIRC chat

14

program put on the DCGS-A computer at your S-2 section?

15

A.

No.

16

Q.

Now, you talked about also having SIPRNET and you used it

17

all of the day, correct?

18

A.

All the time, yeah.

19

Q.

All the time.

And my understanding also, having been

20

deployed, that SIPRNET becomes basically your everyday computer that

21

you're using.

22

A.

Is that right?

I would agree with that, yeah.

9408

12967

1

Q.

And that's how, you know, Soldiers communicate with one

2

another and that's basically what they work on on a daily basis.

3

that correct?

4

A.

Yeah, it's like I described in my earlier statement.

Is

To me

5

the analogy would be it is as normal as using the computers you're

6

using here as part of this process, just make them SIPR, same thing.

7

Q.

And, sir, how many people do you remember, and I'm not

8

trying to give you like a hard number where you're like, oh, 3,400,

9

but what percentage of your brigade do you think had access to

10
11

SIPRNET?
A.

I'm going to say, 20 percent.

What I'm really thinking

12

about is it's a really a breakdown.

13

preponderance of my force were trigger pulling Soldiers, most of

14

those Soldiers did not.

15

Battalion staff level functions, quite a bit.

16
17

Q.

Staffs had access.

The

So company level, below, very, very little.

And when you're talking the battalion staff, the people who

were probably for the most part the Fobbits, correct?

18

A.

Correct.

19

Q.

What percentage of the battalion staff and brigade staff do

20
21

you believe had access to SIPRNET?
A.

The majority.

9409

12968

1

Q.

And with regards to SIPRNET, from your knowledge, did you

2

know that you could go to the Net-Centric Diplomacy database on

3

SIPRNET?

4

A.

5

Q.

6

Say that again.
Did you know that you could go to the Net-Centric Diplomacy

database on SIPRNET?

7

A.

No, I didn't.

8

Q.

Do you recall ever asking your S-2 at the time, Captain

9
10

Lim, to start incorporating guidance, information from the cables
into their work products?

11

A.

No.

12

Q.

With regards to the SIPRNET, do you know if your brigade

13

conducted any training on where a Soldier could or could not go on

14

the SIPRNET?

15

A.

No, I do not.

16

Q.

Do you know if your brigade put out any restrictions on

17

what a Soldier could or could not look at on the SIPRNET?

18

A.

No.

19

Q.

When we talk about kind of the Fobbit mentality and using

20

basically SIPRNET as your everyday Internet, if a Soldier wanted to,

21

if they were just otherwise kind of not doing anything and they just

22

wanted to surf the SIPRNET, was that something that your brigade put

23

a restriction on?

9410

12969

1

A.

Not that I recall.

2

Q.

So if I were Private Coombs and I'm on my SIPRNET machine

3

and you walked by and you said, Private Coombs, what are you up to,

4

and I say, hey, sir, nothing, it's kind of a slow day, I'm just

5

surfing the SIPRNET, that would not be a problem in your eyes as a

6

brigade commander?

7

A.

It wouldn't register as a problem to me.

8

Q.

Now, with regards to downloading stuff from the SIPRNET, do

9
10

you know if your brigade put out any guidance or restrictions on what
you could or could not download from the SIPRNET?

11

A.

Download to?

12

Q.

To a CD, say for example, that you appropriately labeled,

13
14

or down to your SIPRNET machine.
A.

Yeah.

So I don't recall any guidance on what could be
I don't remember when the guidance came

15

downloaded to your machine.

16

out for not downloading to removable drives, whether that was before

17

or after this time period, but that wasn't brigade guidance, that was

18

Army guidance.

19

timeframe or not.

20

not doing that any more.

21

Q.

I don't remember whether that fell within this, this
But downloading at some point, the Army said we're

Sir, from your experience, and I know you were on SIPRNET,

22

do you recall ever saving something that you got from SIPRNET on to

23

your computer?

9411

12970

1

A.

I don't have a specific memory, but I probably did.

2

Q.

And do you know from the brigade level whether or not there

3

was any sort of restriction in the manner in which you saved

4

information? If you decided I want to save something from the SIPRNET

5

that there was a restriction on the manner in saving that

6

information?

7

A.

Manner like how you click on something and select save and

9

Q.

Right.

10

A.

No.

11

Q.

Now, I want to ask you a few questions about PFC Manning.

8

----

12

You talked about the fact that you met him before.

13

sir?

Is that correct,

14

A.

As I described earlier, yeah.

15

Q.

And that was basically him conducting a brief in front of

17

A.

And the other staff and some commanders, yes.

18

Q.

And, sir, was that before the deployment or was that during

16

19

you?

the deployment?

20

A.

Before.

21

Q.

And based upon what you saw, do you recall saying you

22
23

thought he was a sharp briefer?
A.

Yes.

9412

12971

1

Q.

And even though you thought he was a sharp briefer, you

2

also, do you recall saying that you believed that he wasn't

3

experienced at analysis?

4

A.

I don't recall saying that, but ----

5

Q.

Would anything help refresh your memory?

6

A.

Well, if in the context of the briefings, the briefings

7

weren't really about analysis, they were about here's the situation

8

that's taking place, so there wasn't a lot of analysis that would go

9

into it.

10

Q.

So I may have said that, but, yeah.
And it's okay because this was a long time ago, you know.

11

Do you recall saying he was not experienced at analysis, but he was

12

fine in making presentations?

13

A.

Yes.

14

Q.

Okay.

And even though he wasn't experienced at analysis,

15

you would agree with me that that might be just because he was a

16

junior enlisted Soldier at that time?

17

A.

Sure.

18

Q.

He was a young Soldier?

19

A.

Yeah.

20

CDC[MR. COOMBS]:

21

Sir, thank you.

questions for you.

22

WIT: Okay.

23

MJ:

Redirect?

9413

I don't have any further

12972

1

TC[MAJ FEIN]:

2

MJ:

3

TC[MAJ FEIN]:

4

MJ:

May I have a moment, Your Honor?

Yes.
Yes, ma'am.

Go ahead.
REDIRECT EXAMINATION

5
6

Questions by the trial counsel [MAJ FEIN]:

7

Q.

Sir, do you know what an executable file is?

8

A.

Sort of.

9

Q.

Okay, sir.

10

A.

It's a file that provides some sort of function for off the

11

What is it, in your knowledge of it, sir?

hard drive.

12

MJ:

13

WIT:

14

Q.

I'm sorry. Can you say that one more time?
It provides some kind of function off of the hard drive.
All right, sir.

And Mr. Coombs just asked you a few

15

questions about if you walked by a Soldier and saw a Soldier on

16

SIPRNET doing some actions.

17

were to walk by a Soldier in the SCIF on SIPRNET and saw a Soldier

18

using a computer tool that he put on there to download over 250,000

19

documents to burn on to a CD, would you have stopped that?

20

CDC[MR. COOMBS]:

21

MJ:

Overruled.

22

Q.

I'm sorry, sir.

23

A.

Yes.

I have a similar question, sir.

Objection. Argumentative.

Could you please answer that?

9414

If you

12973

1
2

Q.

And, sir, were Soldiers in your brigade authorized to burn

CDs of classified information and use them for personal use?

3

A.

No.

4

TC[MAJ FEIN]:

5

MJ:

6

CDC[MR. COOMBS]:

7

MJ:

8

TC[MAJ FEIN]:

9

MJ:

Thank you, sir.

Any cross?
No, Your Honor.

Temporary or permanent excusal?
Temporary, Your Honor.

All right.

10

[The witness was temporarily excused, duly warned, and withdrew from

11

the courtroom.]

12

TC[MAJ FEIN]:

Ma'am, the United States recommends that we take

13

a lunch recess now and an extended one in order to finalize the last

14

round of stipulations.

15

MJ:

How long do you need?

16

TC[MAJ FEIN]:

17

MJ:

18

TC[MAJ FEIN]:

May I have a moment, Your Honor?

Yes.
Ma'am, we plan on 1430 reconvening and we'll

19

notify the Court and public if more time is needed between the

20

parties.

21

MJ:

22

TC[MAJ FEIN]:

23

CDC[MR. COOMBS]:

All right.

That works.
No, ma'am.
No, ma'am.

9415

Anything else before we recess?

12974

1

MJ:

Court is in recess until 1430.

2

[The court-martial recessed at 1236, 28 June 2013.]

3

[The court-martial was called to order at 1444, 28 June 2013.]

4
5
6

MJ:

The Court is called to order.

Major Fein, please account

for the parties.
TC[MAJ FEIN]:

Yes, ma'am.

Your Honor, all parties when the

7

Court last recessed are again present with the exception of Captain

8

Whyte, who is absent.

9

MJ:

All right. For the record, Counsel and I met in an R.C.M.

10

802 conference.

And, once again, that is a conference where I meet

11

with counsel, we talk about logistics and scheduling issues that may

12

arise in cases.

13

working on some additional stipulations of expected testimony, and

14

they have some other issues and witnesses that will go for a lengthy

15

period of time.

16

parties had come to an agreement, and the Court has approved that

17

agreement, that we are going to stop Court for today, let the parties

18

work out the issues they need to work out.

19

Monday morning at 0930.

20

R.C.M. 802 conference?

And counsel have advised me that they are currently

So looking at the time that we have today, the

21

CDC[MR. COOMBS]:

22

TC[MAJ FEIN]:

23

MJ:

And we will resume on

Is that an accurate description of the

Yes, Your Honor.

Yes, Your Honor.

Anything else we need to address at this point?

9416

12975

1

TC[MAJ FEIN]:

There is one more administrative issue.

I know

2

there's confusion about that plan for next week over the 4th of July

3

weekend.

4

proposed trial plan, which included not having Court on the July 3rd,

5

4th and 5th.

6

MJ:

And the Court did adopt on the record the prosecution's

And if the Court could possibly confirm that publicly.

All right.

Let me address that.

Initially, I asked the

7

parties and Government to come up with a trial plan, realizing that

8

July 4th was going to be on a Thursday and the July 4th celebrations

9

take up a lot of the Military District of Washington's logistics and

10

administrative assets, several of which are devoted to this trial.

11

So at that point early, this was before the trial started, the

12

parties and I agreed that the assets were unavailable on Wednesday

13

and Thursday and thus, that would only leave Friday.

14

there was no real point in coming back on Friday in between 2 days

15

off and 2 other days off.

16

court next Monday and next Tuesday and then come back on the 8th,

17

July 8th.

18

tentative schedule that we were going to finish today and then not

19

come back until Monday the 8th and start then.

20

we need to address and the witnesses that we need to call, that plan

21

is no longer feasible.

22

Monday.

23

However, should we have too much to do and we need to go in on

So we said

So initially the plan was to come to

Then, we had modified that and we had come up with a

Based on the issues

Which is why we are going on the record on

At this point the plan will be to finish on Monday.

9417

12976

1

Tuesday, we will.

So the plan for next week is, we are definitely

2

not going to be in session Wednesday, Thursday and Friday.

3

going to be in session on Monday at 0930.

4

right now.

CDC[MR. COOMBS]:

6

TC[MAJ FEIN]:

7

MJ:

9

Tuesday is up in the air

Anything further we need to address?

5

8

We are

All right.

No, Your Honor.

No, Your Honor.
Court is in recess until 0930 on Monday.

[The court-martial recessed at 1447, 28 June 2013.]
[END OF PAGE]

10

9418

12977

1
2
3
4

[The court-martial was called to order at 0952, 1 July 2013.]
MJ:

Court is called to order.

Major Fein, please account for

the parties.
TC[MAJ FEIN]:

Yes, ma'am.

All parties when the Court last

5

recessed are again present with the following exceptions:

6

Robertshaw, court reporter, is absent; Mr. Chavez, court reporter is

7

present; and Captain von Elten is present.

8
9

MJ:

All right.

Mr.

Are there any new exhibits that we have to add

to the court record?

10

TC[MAJ FEIN]:

11

MJ:

12

TC[MAJ FEIN]:

Yes, ma'am.

May I have a moment, Your Honor?

Yes.
Ma'am, what has been marked as Appellate Exhibit

13

585 is a letter from the United States to Mr. Christopher Butler with

14

a subpoena attached ordering his presence this morning at 0700 to be

15

a witness at this trial.

16

is a response from his attorney saying that he can comply, but can

17

only comply the week of July 8th based off the sudden notice of

18

receiving the letter on Friday, June 28th.

19

MJ:

20

TC[MAJ FEIN]:

What's been marked as Appellate Exhibit 586

What is Appellate Exhibit 584?
Your Honor, Appellate Exhibit 584 is the Court's

21

ruling on government's motion to admit Prosecution Exhibits 31, 32

22

and 109 for Identification.

23

MJ:

Thank you.

9419

12978

1

TC[MAJ FEIN]:

The rest are prosecution exhibits, Your Honor,

2

that are going to be stipulations of fact and testimony that the

3

Court will be going over in a moment.

4
5

MJ:

All right.

Before we address that, let's get back to these

two appellate exhibits.
Counsel and I held a R.C.M. 802 conference just prior to

6
7

coming on the record today where the government raised the fact that

8

this subpoena had gone to Internet Archive and the email response.

9

Defense, you had laid out your position basically on how the defense

10

was going to go forward with respect to this issue.

11

to set that forth for the record?

12

CDC[MR. COOMBS]:

Yes, Your Honor.

Would you like

On Sunday we received

13

notice of the subpoena for Mr. Butler.

I spoke with Mr. Butler on

14

the phone.

15

actually contracted to capture the WikiLeaks website by Stanford

16

University.

17

to capture various websites that they believe were of historical

18

significance, and WikiLeaks was one that was under a freedom of

19

information type websites.

Based upon that, I asked Mr. Butler to

20

explain the process to me.

He indicated that once they were

21

contracted to do that, they would actually -- the organization

22

themselves would pull the website on that particular date to preserve

23

it, pursuant to the contract.

He indicated to the defense that Internet Archive was

Stanford University apparently had contracted with them

I asked him to explain the actual

9420

12979

1

engineering, the technical aspect of how they did that.

He was not

2

an expert in that, but said he could get somebody from the

3

organization that could explain that.

4

Struttmann, then I contacted to have present here today.

5

to call Internet Archive over the lunch break.

6

expert will talk with their expert, they'll do their technical

7

conversation, and based upon that I believe they will indicate that

8

it was, in fact, captured by Internet Archive on that date to the

9

point that there would be no reasonable authentication objection.

My defense expert, Mr. Trent
We intend

At that point my

10

that is the case, the defense would withdraw its authentication

11

objection.

12
13

MJ:

All right.

If

So we won't know the actual results of that

technical conversation until after lunch today.

14

CDC[MR. COOMBS]:

15

MJ:

Yes, Your Honor.

So we'll revisit that issue this afternoon and the concern

16

with that will be the timing of the case, depending on if this

17

witness isn't available until the week of the 8th, then we will have

18

to postpone that piece of the government's case to those dates and

19

decide how to proceed in light of having to do that.

20

authentication objection be withdrawn, then that will no longer be an

21

issue before the Court.

22

with respect to the subpoena and the response?

23

TC[MAJ FEIN]:

Should the

Is there anything else we need to address

No, Your Honor.

9421

12980

1

CDC[MR. COOMBS]:

2

MJ:

No, Your Honor.

Before we get into the stipulations of fact and expected

3

testimony, would you, Major Fein, please give an accounting of the

4

media operations center as well as the public?

5

TC[MAJ FEIN]:

Yes, ma'am.

This morning at the start of the

6

trial, Your Honor, there was 15 members of the media at the

7

operations center, one stenographer, there's no media in the

8

courtroom, spectators in the courtroom, and there are five spectators

9

in the overflow trailer.

10

if more show up.

11

MJ:

12

TC[MAJ FEIN]:

13

MJ:

14
15

The rest of the trailer is still available

I assume the theater is not being operational?
It is not currently being used, ma'am.

Is there anything else we need to address before we get

into the stipulations of fact and expected testimony?
TC[MAJ FEIN]:

No, ma'am.

But if we could have a brief recess

16

in place for a second copy of the classified documents be retrieved

17

out of the safe for PFC Manning to review.

18

MJ:

That's fine.

Court is in recess in place.

If you want to

19

stand up, move around, feel free to do that.

20

[The court-martial recessed at 0957, 1 July 2013.]

21

[The court-martial was called to order at 1000, 1 July 2013.]

9422

12981

MJ:

1

Court is called to order.

Let the record reflect all

2

parties present when the Court last recessed are again present in

3

court.
PFC Manning and Major Hurley are over in the panel box.

4
5

And Major Fein, I'm sorry, what is coming in?
TC[MAJ FEIN]:

6

Your Honor, Mr. Prather is currently out of the

7

courtroom bringing in one last stipulation, but it's a stipulation of

8

fact that the Court has already done a colloquy on and it's been

9

remarked as Appellate Exhibit -- or excuse me, Prosecution Exhibit

10

153 Alpha and 153 Bravo.

11

MJ:

And this was the stipulation of fact regarding UBL?

12

TC[MAJ FEIN]:

13

MJ:

Yes, ma'am, Osama bin Laden.

All right.

Major Hurley, my records indicate that I've

14

already gone over this stipulation of fact with PFC Manning, however

15

at the time I went over it, it was marked as an appellate exhibit,

16

not a prosecution exhibit.

17

about agreeing to this stipulation of fact as a stipulation of fact

18

for use during the trial.

19

well?

20
21
22
23

ADC[MAJ HURLEY]:

My normal colloquy talks to PFC Manning

Was that the defense's understanding as

Yes, ma'am, that's my recollection of what

has occurred up to this point with respect to the stipulation.
MJ:

All right.

So, even though it was admitted as an appellate

exhibit it was the understanding of all parties that I was going over

9423

12982

1

this stipulation of fact with PFC Manning that this stipulation of

2

fact at Appellate [sic] Exhibit 153 would be used at trial as well?

3
4

ADC[MAJ HURLEY]:

Yes, ma'am.

It would be considered by the

trier of fact in making your determinations.

5

MJ: Government agree with that?

6

TC[MAJ FEIN]:

Yes ma'am.

Except for one correction, ma’am.

7

It’s Prosecution Exhibit 153 Alpha is the unclass redacted,

8

Prosecution Exhibit 153 Bravo -- well, 153 Bravo for Identification

9

is the classified.

10

And the original appellate exhibit number is

Appellate Exhibit Number 541.

11

MJ:

Say that one more time.

12

TC[MAJ FEIN]:

Yes, ma'am.

The copy the Court has in front of

13

her is what has been marked as Prosecution Exhibit 153 Alpha, the

14

unclassified and redacted version, and that's Prosecution Exhibit 153

15

Alpha for Identification.

16

Identification is the classified version.

17

previously marked as Appellate Exhibit 541.

18

MJ:

19

ADC[MAJ HURLEY]:

20
21
22
23

All right.

Prosecution Exhibit 153 Bravo for

Thank you.

Both of those have been

Defense agree with that?

Yes, ma'am.

We only have the classified

version here with us in the panel box.
MJ:

PFC Manning, have you had a chance to take a look at that

classified version of what's now Prosecution Exhibit 153 Bravo?
ACC: Yes, Your Honor.

9424

12983

1
2

MJ:

Do you remember the colloquy that you and I went through

with respect to that stipulation of fact?

3

ACC: Yes, ma'am.

4

MJ:

Do you understand when we went through that colloquy that

5

even though it was marked as an appellate exhibit that it was the

6

intent of the parties and yourself that this would be used as a

7

stipulation of fact during the trial?

8

ACC: That's correct, Your Honor.

9

MJ:

10

Any reason from either of you that I need to go over this

with PFC Manning again?

11

ADC[MAJ HURLEY]:

12

TC[MAJ FEIN]:

13

MJ:

14

No, ma'am.
PFC Manning, do you understand what this

stipulation of fact is to be used for?

15

ACC:

16

MJ:

17

All right.

No, ma'am.

What was that, ma'am?
Do you understand what this stipulation of fact is to be

used for?

18

ACC: Yes, Your Honor.

19

MJ:

20

Apparently we have four new -- one new stipulation of fact

and three stipulations of expected testimony, is my understanding?

21

TC[MAJ FEIN]:

22

MJ:

Yes, Your Honor.

Would you describe those for the record?

9425

12984

TC[MAJ FEIN]:

1

Yes, ma'am.

The first, Your Honor, has been

2

marked as Prosecution Exhibit 180 Alpha for Identification which is a

3

stipulation of expected testimony for witness number three from the

4

Court's order -- or from the government's Grunden filing.

5

Prosecution Exhibit 181 Bravo for Identification and 181 Alpha for

6

Identification which is a stipulation of expected testimony for

7

witness number 29 from the government's Grunden filing.

8

Exhibit 182 for Identification is a Stipulation of Fact titled Adam

9

Gadahn.

10

Prosecution

And Prosecution Exhibit 183 for Identification is

Stipulation of Expected Testimony for Commander Youssef Aboul-Enein.
MJ:

11
12

Also,

Now, the Prosecution Exhibits 180 and 182 Bravo, are there

numbers associated with that from the prosecution's witness list?
TC[MAJ FEIN]:

13

Ma'am, there are numbers associated, but based

14

off previous conversations with Court the standard number we're using

15

is from the government's Grunden filing, Appellate Exhibit 479, and

16

that's witness number three and 29.

17

MJ:

Which one is three and which one is 29?

18

TC[MAJ FEIN]:

Your Honor, Prosecution Exhibit 180 Alpha for

19

Identification is witness number three, and Prosecution Exhibit 181

20

Alpha and Bravo for Identification is witness number 29.
MJ:

21
22
23

And that's from the Grunden filing at appellate exhibit

what?
TC[MAJ FEIN]:

479, Your Honor.

9426

12985

1

MJ:

Thank you.

All right.

PFC Manning, once again we're going

2

to do a colloquy regarding these three stipulations of expected

3

testimony and one stipulation of fact.

4

all of those in front of you?

5

ACC: Yes, Your Honor.

6

MJ:

Now, do you have a copy of

Now, there should be a copy of Prosecution Exhibit 180

7

which should be a classified stipulation of expected testimony for

8

witness number three from the Grunden filing, Appellate Exhibit 479.

9

Is that right?

10

TC[MAJ FEIN]:

11

the classified version.

12

Exhibit 180 Bravo for Identification which is the unclassified

13

redacted version.

14

MJ:

All right.

Your Honor, it is right.

And that's 180 Alpha is

I'm having marked right now as Prosecution

PFC Manning, do you have a copy of both 180

15

Alpha which is the classified version, and 180 Bravo which is the

16

unclassified version of the Stipulation of Expected Testimony for

17

witness 12 number three?

18

ACC: Yes, Your Honor.

19

MJ:

And that would be the Grunden -- from the government's

20

Grunden filing at Appellate Exhibit 479.

21

through with your defense team and figure out what witness that was?

22

ACC: Yes, Your Honor.

9427

So were you able to go

12986

1

MJ:

And same for Prosecution Exhibit 181 Alpha which is the

2

classified version and 181 Bravo which is the unclassified version.

3

Do you have those in front of you?

4

ACC: Yes, Your Honor.

5

MJ:

6

And that would be for witness number 29 from Appellate

Exhibit 479?

7

ACC: Yes, ma'am.

8

ADC[MAJ HURLEY]:

9

MJ:

10

Ma'am, if I may?

Yes.

ADC[MAJ HURLEY]:

Internal for the defense team we used the

11

numbers from the most recent defense -- or government exhibit list.

12

We have no doubt that these are the same individuals.

13
14

MJ:

All right.

terms when I talk about this with PFC Manning?

15

ADC[MAJ HURLEY]:

16

MJ:

17
18

Do I need to be referring to any different

No, ma'am.

So we're all on the same sheet of music, we are all talking

about the same witnesses?
ADC[MAJ HURLEY]:

We absolutely are.

I just wanted to apprise

19

you that that’s -- when we would use numbers those would -- we would

20

use a different set of numbers, but we are on the exact same sheet of

21

music.

22
23

MJ:

Just to ensure that the record is clear, after we've gone

through this colloquy, at the next recess if the defense would again

9428

12987

1

for the classified appellate exhibit just write, 1, 2, Appellate

2

Exhibit 180 and 181 just which witnesses you believe we're talking

3

about when we go through this colloquy just to insure that the record

4

is clear.

5

ADC[MAJ HURLEY]:

6

MJ:

Yes, ma'am.

And PFC Manning, looking at Prosecution Exhibit 183, do you

7

have the Stipulation of Expected Testimony from Commander Youssef

8

Aboul-Enein?

9
10

ACC: Yes, Your Honor.
MJ:

And that's an unclassified stipulation of expected

11

testimony.

And also before you do you have a Stipulation of Fact

12

from Adam Gadahn?

13

ACC: For Adam Gadahn, yes, Your Honor.

14

MJ:

15

For Adam -- Yes, thank you.

Prosecution Exhibit 182 for

Identification.

16

ACC: Yes, Your Honor.

17

MJ:

And that's also an unclassified stipulation of fact.

18

did you sign all four of these -- all of these stipulations of

19

expected testimony and the stipulation of fact?

20

ACC: Yes, Your Honor.

21

MJ:

22

ACC: Yes, Your Honor.

Now, before signing them did you read them thoroughly?

9429

And

12988

1

MJ:

Do you understand the contents of each of these

2

stipulations?

3

ACC: Yes, ma'am.

4

MJ:

5

Before signing them, did your defense counsel explain the

stipulations to you?

6

ACC: Yes, ma'am.

7

MJ:

8
9
10

Do you understand you have the absolute right to refuse to

stipulate to the contents of these documents?
ACC: Yes, ma'am.
MJ:

Do you understand you should enter into a stipulation only

11

if you believe it's in your best interest to do so?

12

understand that?

13

ACC: Yes, Your Honor.

14

MJ:

Do you

Once again, there's a distinction between the stipulation
A stipulation of fact

15

of expected testimony and stipulation of fact.

16

for Adam Gadahn, what that means is when counsel for both sides and

17

you agree to a stipulation of fact, the parties are bound by that

18

stipulation and the stipulated matters are facts and evidence to be

19

considered along with all of the other evidence in the case.

20

understand that?

21

ACC: Yes, Your Honor.

22

MJ:

23

Do you

Now, for the three stipulations of expected testimony,

those are different.

When counsel for both sides and you agree to

9430

12989

1

stipulations of expected testimony, you are agreeing here that for

2

Prosecution Exhibit 180, if witness number three was here in court,

3

and for Prosecution Exhibit 181 Alpha and Bravo, if witness number 29

4

was here in court, and for the stipulation of expected testimony as

5

Prosecution Exhibit 183 of Commander Youssef Aboul-Enein were here

6

testifying in court under oath, that they would each testify

7

substantially as what’s set forth in these stipulations.

8

stipulation does not admit the truth of the person’s testimony.

9

stipulation could be contradicted, attacked or explained in the same

The

10

way as if the person was testifying in person.

11

differences between a stipulation of fact and stipulations of

12

expected testimony?

13

ACC: Yes, Your Honor.

14

MJ:

The

Do you understand the

Now, knowing what I've told you and what your defense

15

counsel told you earlier with regard to these stipulations, do you

16

still desire to enter into each of them?

17

ACC: Yes, Your Honor.

18

MJ:

19

TC[MAJ FEIN]:

20

ADC[MAJ HURLEY]:

21

MJ:

Do counsel concur in the contents of the stipulations?
Yes, ma'am.
Yes, ma'am.

Then Prosecution Exhibits 180 Alpha and Bravo are admitted.

22

Prosecution Exhibits 180 Alpha and Bravo are admitted -- or 181 are

23

admitted.

Prosecution Exhibit 182 for Identification is admitted.

9431

12990

1

And Prosecution Exhibit 183 for Identification is admitted.

Do we

2

have copies of those original that I can go ahead and mark?

Thank

3

you.

4

court reporter handed the military judge the document].

5

stipulations, both classified and unclassified, have been admitted.

6

Is there anything else we need to address before we have Major Hurley

7

and PFC Manning return to the defense table?

8
9

Do you have the redacted copy for 180 or do I have the -- [The

TC[MAJ FEIN]:

The

Yes, ma'am. The last thing is just the admittance

of Prosecution Exhibits 153 Alpha and Bravo for Identification which

10

had already been, which were the previous stipulations of fact for

11

UBL, Your Honor.

12

MJ:

13

TC[MAJ FEIN]:

14

All right.

What about it?
Is actually, since they've been renumbered, Your

Honor, just admitted.

15

MJ:

16

ADC[MAJ HURLEY]:

17

MJ:

18

admitted.

Other than the prosecution exhibit numbers.

Any objection?
No, ma'am.

Prosecution Exhibit 153 Bravo for Identification is
Is there an Alpha?

19

TC[MAJ FEIN]:

20

MJ:

Yes, ma'am, there should be.

Prosecution Exhibits 153 Alpha and Bravo are admitted.

Is

21

there anything else we need to address before we have PFC Manning and

22

Major Hurley return to the defense cable?

23

TC[MAJ FEIN]:

No, ma'am.

9432

12991

1

ADC[MAJ HURLEY]:

2

MJ:

Not from defense.

Go ahead and return.

3

[The accused and assistant defense counsel returned to the defense

4

table.]

5

MJ:

Let's turn now to the judicial notice filings.

6

CDC[MR. COOMBS]:

Actually, ma'am, one alibi.

On PE 182, we

7

covered this in the 802 session, it had several exhibits that were

8

identified for identification.

9

would have been admitted into evidence.

10

MJ:

11

TC[MAJ FEIN]:

12

MJ:

The defense's understanding is those

Is that the government's understanding as well?
Yes, ma'am.

And that was, just for the record, that's Prosecution
So we're -- or 181.

That exhibit

13

Exhibit 182 for Identification?

14

references prosecution exhibit, it says Prosecution Exhibit 15 for

15

Identification, Prosecution Exhibit 168 for Identification, and

16

Prosecution Exhibit 174 for Identification.

17

TC[MAJ FEIN]:

18

MJ:

174 Charlie, ma'am.

174 Charlie.

So, Mr. Coombs, my understanding, you're

19

telling me and I do remember this from the 802 conference as well,

20

that the parties agree that all three of these exhibits have been

21

admitted already?

22

CDC[MR. COOMBS]:

That's correct, Your Honor.

9433

12992

1
2

MJ:

Does either side any reason to go through the stipulations

and make the amendments or is the record clear?

3

TC[MAJ FEIN]:

4

CDC[MR. COOMBS]:

5

MJ:

6

The record is clear, ma'am.

All right.

Thank you.

TC[MAJ FEIN]:

8

CDC[MR. COOMBS]:

9

MJ:

No, ma'am.
No, Your Honor.

should be two of them, have they been marked as Appellate Exhibits?
TC[MAJ FEIN]:

12

MJ:

13

TC[MAJ FEIN]:

15

Is there anything else

Have the judicial notice filings by the government, there

11

14

All right.

that we need to address before we proceed to judicial notice?

7

10

Defense concurs.

No, ma'am, they have not.

Is now a good time to do that?
Yes, ma'am.

Ma'am, it's probably going to take

more than 5 minutes to do that if you want to take a quick recess.
MJ:

All right.

We'll make it 10 minutes.

Court is in recess

16

until 20 minutes after 10.

17

[The court-martial recessed at 1017, 1 July 2013.]

18

[The court-martial was called to order at 1028, 1 July 2013.]

19
20

MJ: Court is called to order.

present when the Court last recessed again present in court?

21

TC[MAJ FEIN]:

22

MJ:

23

Major Fein, are all the parties

All right.

Yes, ma'am, they are.
Thank you.

Is there anything we need to

address before we proceed to judicial notice?

9434

12993

1

TC[MAJ FEIN]:

No, ma'am.

2

CDC[MR. COOMBS]:

3

TC[MAJ FEIN]:

No, ma'am.

Ma'am, the government filed over the weekend two

4

documents, first, what has been marked as Appellate Exhibit 588 is a

5

combined judicial notice filing to the Court, and then this is

6

accounting for all previous judicial notice including last week's

7

Court ruling.

8

the government's relevance and non-hearsay purpose for facts to be

9

judicial noticed based off the Court's prior rulings.

10

MJ:

Then what has been marked as Appellate Exhibit 587 is

All right.

Let's begin with Appellate Exhibit 587,

11

relevance for judicial notice.

12

proffered requests for judicial notice.

13

these before, and based on defense objections basically postponed

14

ruling on those until trial.

15

Assange was located in Iceland in February of 2010 and working on the

16

Icelandic modern media initiative, see Appellate Exhibit 472, which I

17

assume are the chats?

18

ATC[CPT MORROW]:

19
20

I note here that there are three
The Court has addressed

And the three at issues are that Julian

No, Your Honor.

Appellate exhibit 472 was

your ruling.
MJ:

That was the initial ruling.

Okay.

The second one was

21

that Lieutenant Colonel Lee Packnett was quoted in a New York Times

22

article dated 18 March 2010, in this instance judicial notice is

23

conditioned upon relevance and a non-hearsay or hearsay exception

9435

12994

1

usage.

2

Assange titled, No Secrets, Julian Assange's Mission for Total

3

Transparency, exists and was dated 7 June 2010.

4

judicial notice is conditioned upon relevancy and a non-hearsay or

5

hearsay exception usage.

6

government has put forth their view of relevance and hearsay.

7

Defense, what's your position?

8
9

And the third one was that a New Yorker profile of Julian

CDC[MR. COOMBS]:

In this instance

Now, under those three titles the

Your Honor, the defense maintains its

objections both for relevance and for hearsay.

We don't have any

10

additional argument to offer, so we would be satisfied with the Court

11

making a decision based upon the government's proffer.

12

MJ: All right.

And during the R.C.M. 802 conference we held

13

earlier the government has advised that the government will provide

14

the Court with pinpoint cites of the particular exhibits that have

15

been admitted or the testimony that has come before the Court to

16

demonstrate relevance, and that's still left to be done, is that

17

correct?

18
19
20
21
22

ATC[CPT MORROW]:

That's correct, Your Honor.

And we'll

provide that to the Court and defense over the lunch hour.
MJ:

Does the government desire any oral argument with respect

to Appellate Exhibit 587?
ATC[CPT MORROW]:

No, Your Honor.

9436

12995

MJ:

1

All right.

So the Court will then decide later on today,

2

probably, whether or not the Court will take judicial notice and

3

whether to sustain or overrule the defense's hearsay and relevance

4

objections once the Court receives the pinpointed cites from the

5

government.

6

587?

Now, anything else with respect to Appellate Exhibit

7

CDC[MR. COOMBS]:

No, Your Honor.

8

ATC[CPT MORROW]:

No, Your Honor.

9

MJ:

Government, when might I expect those pinpoint cites?

10

ATC[CPT MORROW]:

11

MJ:

All right.

We'll do it at lunch, Your Honor.
Thank you.

Let's now look at Appellate Exhibit

12

588.

This is a combined judicial notice list.

13

judicial notice motions since the beginning of this case and the

14

Court had asked the parties to get together and put sort of a list of

15

all of them that will be potentially used in the merits and also on

16

sentencing and to separate those two.

17

There are some at issue highlighted in yellow that the defense has

18

proposed and the government apparently doesn't agree with, and that

19

would be number 15, public law 111-258, portions of Number B6, that

20

Congress believed over classification was a potential issue and

21

passed this legislation which contained not only just findings but

22

specific statutory initiatives to address that issue.

23

2(B)(8) that a letter to Secretary Robert Gates from Carl Levin dated

9437

We've had quite a few

So the parties have done that.

Number

12996

1

28 July 2010, exists and statements are admissible under M.R.E.

2

801(D)(2)(E) and M.R.E. 803(8)(A).
Now, Defense, once again, I know this is in the written

3
4

list, but that second sentence there, are you offering, in Number 9,

5

the Court's already taken judicial notice of the letter from Mr.

6

Gates, that that exists.

7

Levin as an admission by a party opponent or for context and

8

completion?

9
10

CDC[MR. COOMBS]:
MJ:

All right.

Are you offering the letter from Senator

Context and completion, Your Honor.
And number 12 then of that series, William

11

Leonard, Director of Information Security Oversight Office of the

12

National Archives, statements dated 22 March 2007, given at the 2007

13

House Committee on Homeland Security Hearings.

14

And finally, D5, the key assertions cited by the defense

15

that trained government classifiers made only, “clearly correct

16

classified decisions 64 percent of the time is based on an official

17

audit” (“in an audit of agency classification activity conducted by

18

my office approximately one year ago, we discovered that even trained

19

classifiers, with ready access to the latest classification and

20

declassification guides, and trained in their use, got it clearly

21

right only 64 percent of the time in making determinations as to the

22

appropriateness of classification.”).

9438

12997

Now, the Court's recollection of this is all of this

1
2

judicial notice was at issue when we were litigating the over

3

classification, both the government's motion to preclude evidence of

4

over classification and the defense motion for judicial notice of a

5

variety of over classification matters.

6

rulings, again, conditioned on relevance.

7

yellow passages that I just read, are they intended to be used by the

8

defense on merits, on sentencing, or both?

9

CDC[MR. COOMBS]:

10

MJ:

11

CDC[MR. COOMBS]:

12

MJ:

13

ATC[CPT MORROW]:

14

MJ:

Now, the Court issued some
Defense, these highlighted

On sentencing only, Your Honor.

These would appear not to be ripe at this point?
That is correct, Your Honor.

Does the government agree?
Yes, Your Honor.

Does the government have an objection to Number B8 there,

15

the letter to Secretary Gates from Senator Levin if the second

16

sentence about being statements admissible by a party opponent is

17

stricken?

18

ATC[CPT MORROW]:

Yes.

Because Senator Levin wouldn't be a

19

party to this case based on your previous ruling, Your Honor, but I

20

believe ----

21

MJ:

I understand that.

What I'm saying is that sentence goes

22

away and it's only offered as to put Number 9 in context for the

23

response that Secretary Gates gave to show what he was responding to.

9439

12998

1

ATC[CPT MORROW]:

I believe Secretary Gates' response actually

2

incorporates by reference the letter, all the relevant information

3

that would come from the letter from Senator Levin which is this is

4

in response to your letter of 28 July 2010.

5

MJ:

So does the government have an objection to taking judicial

6

notice basically of the whole package Secretary Gates -- well, I

7

already ruled on the Secretary Gates letter -- that the Senator Levin

8

initial letter come in just to provide the context for the response?

9
10

ATC[CPT MORROW]:
MJ:

Okay.

No, Your Honor.

So 8 and 9 with the sentence the statements are

11

admissible under M.R.E. 801(D)(2)(e) and M.R.E. 803(8)(A), with that

12

stricken, that's no longer an issue.

13

ATC[CPT MORROW]:

14

MJ:

Is that correct?

Yes.

Would the parties have any objection with the Court taking

15

the original appellate exhibit and striking through this second

16

sentence?

17

CDC[MR. COOMBS]:

18

MJ:

No, Your Honor.

Do I have the original or am I working with my copy?

All

19

right.

So the Court will then strike the second sentence and put a

20

line through it, the sentence reading the statements are admissible

21

under M.R.E. 801(D)(2)(E)(2) and M.R.E. 803(8)(A).

22

the remaining highlighted portions then are what will remain at issue

9440

All right.

So

12999

1

when we reach the presentencing phase of the case.

2

CDC[MR. COOMBS]:

Yes, Your Honor.

3

ATC[CPT MORROW]:

That's correct.

4

MJ:

5

Is there anything else we need to address with respect to

Appellate Exhibit 587?

6

CDC[MR. COOMBS]:

No, Your Honor.

7

ATC[CPT MORROW]:

No, Your Honor.

8

MJ:

9
10

Is there anything else we need to address with respect to

any administrative or other issue before we proceed with the
government's case?

11

CDC[MR. COOMBS]:

12

TC[MAJ FEIN]:

13

MJ:

14

TC[MAJ FEIN]:

15

Is that correct?

No, Your Honor.

No, ma'am.

All right.

Go ahead.

Proceed.

Ma'am, if I may read some stipulations from the

chair here.

16

MJ:

That's fine.

17

TC[MAJ FEIN]:

Ma'am, Stipulation of Expected Testimony dated 28

18

June 2013, this is Prosecution Exhibit 180 Bravo.

19

Witness Number 3 from the Grunden filing AE 479.

20

paragraphs are redacted, but it’s signed by Captain Overgaard, Major

21

Hurley and PFC Manning.

9441

This is for a
Your Honor, several

13000

Your Honor, Stipulation of Expected Testimony for Witness

1
2

Number 29 from the Grunden filing, Appellate Exhibit 479 dated 28

3

June 2013, Prosecution Exhibit 181 Bravo.

4

Classification, Section 1.1A, of EO 13526, lists three

5

classification levels for National Security Information.

Information

6

shall be classified TOP SECRET if its unauthorized disclosure

7

reasonably could be expected to result in exceptionally grave damage

8

to National Security,

9

reasonably could be expected to result in serious damage to the

SECRET if its unauthorized disclosure

10

National Security, and CONFIDENTIAL if its unauthorized disclosure

11

reasonably could be expected to result in damage to the National

12

Security.

13

Section 6.1(i) of the EO defines “classified national

14

security information” or “classified information” as “information

15

that has been determined pursuant to this order or any predecessor

16

order to require protection against unauthorized disclosure and is

17

marked to indicate its classified status when in documentary form.”

18

Section 6.1(cc) of the EO defines “national security” as the

19

“national defense or foreign relations of the United States.”

20

Section 1.4 of EO 13526 lists the substantive categories of

21

national security information that are eligible for classification.

22

These categories include information pertaining to intelligence

23

activities and intelligence sources and methods, as well as

9442

13001

1

information pertaining to the foreign relations or foreign activities

2

of the United States.
The authority to classify information is derived from the

3
4

succession of EOs, the current one being EO 13562.

5

correction.

That should be 13526.

6

MJ:

7

ADC[MAJ HURLEY]:

8

TC[MAJ FEIN]:

9

Your Honor, one

All right.

Defense, do you agree?
Yes, Your Honor.

Section 1.3(a) of EO 13526 provides that the

authority to classify information originally may be exercised only by

10

the President, the Vice President, agency heads and officials

11

designated by the President, and the United States Government

12

officials delegated authority pursuant to section 1.3(c).

13

1.3(c)(3) provides that TOP SECRET original classification authority

14

may be delegated only by the President, the Vice President, or any

15

agency head or official designated pursuant to Section 1.3(a)(2).

16

Section

Section 1.1(a) of the EO provides that information may be

17

originally classified under the terms of this Order only if all of

18

the following conditions are met:

19

authority is classifying the information; (2) the information is

20

owned by, produced by or for, or is under control of the United

21

States Government; (3) the information falls within one or more of

22

the categories of information listed in section 1.4 of the Order; and

23

(4) the original classification authority determines that the

9443

(1) an original classification

13002

1

unauthorized disclosure of the information reasonably could be

2

expected to result in some level of damage to the national security

3

and the original classification authority is able to identify or

4

describe the damage.
Section 1.1(a)(4) of EO 13526 provides that information may

5
6

only be classified if unauthorized disclosure of the information

7

reasonably could be expected to cause damage to the national security

8

(which includes defense against transnational terrorism) and the

9

original classification authority is able to identify or describe the

10

damage.

11

be classified at one of three levels:

12

CONFIDENTIAL depending on the damage to the national security that

13

reasonably could be expected to result from unauthorized disclosure.

16

TOP SECRECT, SECRET, or

Your Honor, the remaining paragraphs are redacted; signed

14
15

As described above, EO 13526 states that information shall

Captain Overgaard, Major Hurley and PFC Manning.
MJ:

All right.

Did the parties want to make that correction to

17

the typo over the recess and just go ahead and initial it?

18

should be fine.

19

TC[MAJ FEIN]:

20

CDC[MR. COOMBS]:

21

ATC[ CPT von ELTEN]:

That

Yes, ma'am.
Yes, ma'am.
Your Honor, I have Prosecution Exhibit

22

183, the Stipulation of Expected Testimony for Commander Youssef

23

Aboul-Enein.

9444

13003

It is hereby agreed by the Accused, Defense Counsel, and

1
2

Trial Counsel, that if Commander Youssef Aboul-Enein were present to

3

testify during the merits phase of this court-mat1ial, he would

4

testify substantially as follows:
I am a Commander in the United States Navy and an officer

5
6

in the Medical Service Corps. Additionally, I am a Middle East

7

Foreign Area Officer.

8

Terrorism Advisor, Warning Officer, and Instructor on Militant

9

Islamist Ideology at Joint -- at the Joint Intelligence Task Force

Since 2006, I have served as a Senior Counter-

10

for Combating Terrorism (JITF-CT) in Washington D.C..

11

House Homeland Security Committee on Violent Islamist radicalization.

12

I am also Military Adjunct Faculty for Middle East Counter-Terrorism

13

Analysis at the National Intelligence University.

14

assigned to the Defense Intelligence Agency (DIA) at Bolling Air

15

Force Base.

16

Africa and Egypt, Assistant Country Director for the Arabian Gulf,

17

and Special Advisor on Islamist Militancy at the Office of the

18

Secretary of Defense for International Security Affairs from 2002-

19

2006.

20

prepare Department of Defense officials to engage in ministerial

21

level talks with their counterparts from Morocco to the Persian Gulf.

22
23

I advise the

I am currently

Previously, I served as Country Director for North

While at the Office of the Secretary of Defense, I helped

My education consists of a B.B.A. from the University of
Mississippi, an M.B.A and Masters in Health Services Administration

9445

13004

1

from the University of Arkansas, an M.S. in Strategic Intelligence

2

from the National Defense Intelligence College, as well as an M.S. in

3

National Resource Strategy from the Industrial College of the Armed

4

Forces (Class of 2009-2010).

5

Ideology: Understanding the Global Threat," and "Iraq in Turmoil:

6

Historical Perspectives of Dr. Ali al-Wardi from the Ottomans to King

7

Feisal," both published by Naval Institute Press.

8

to the counter-terrorism portion of the May 2012, edition of

9

"Perspectives on Terrorism."

I am the author of "Militant Islamist

I also contributed

I am rated proficient in the Egyptian,

10

Peninsular, Levantine, Modern Standard (Upper Level) and Iraqi

11

dialects of Arabic by the Defense Language Institute.

12

tours include Liberia, Bosnia, and the Persian Gulf.

13

awards include the Army Commendation Medal presented by General Tommy

14

Franks, the Joint Service Achievement Medal presented by the

15

Commandant of the Joint Forces Staff College, and the Defense

16

Meritorious Service Medal (DMSM) awarded by the Secretary of Defense,

17

a second DMSM awarded by the DIA Director for Analysis.

18

I have spent years studying Al-Qaeda (AQ).

My operational
My personal

From its

19

inception through 2011, AQ was a militant Islamist organization

20

founded and led by Usama bin Laden (UBL).

21

global Jihad and strict interpretation of Sharia Law.

22

Koranic principle, but AQ's definition translated into "religious war

23

against the infidels."

AQ's philosophy was of
Jihad is a

AQ's definition of 'jihad' opposed any nation

9446

13005

1

or organization that did not strictly adhere to Sharia Law as

2

"infidels."

3

attack countries constituting the "West," to include the United

4

States and Western Europe.

5

AQ considers to be allied with the United States.

6

my testimony, AQ was composed of its senior leadership and spokesmen

7

as well as the senior leadership and spokesmen of its declared

8

franchises, like Al Qaeda in the Arabian Peninsula.

Thus, from its inception through today, AQ seeks to

AQ also seeks to attack Arab regimes that
For the purpose of

From its inception, AQ was a terrorist organization that

9
10

has been attacking the United States since the original attack on the

11

World Trade Center in 1993, which killed six and wounded over one

12

thousand.

13

the 1998 bombing of U.S. Embassies in Kenya and Tanzania, which

14

killed over 200 people and injured more than 5000 others; 2, the 2000

15

bombing of the USS Cole, which killed 17 Sailors and injured more

16

than 39 others; and 3, the 11 September 2001 attacks, which killed

17

more than 3000 civilians and injured more than 5000 others.

18

continued to claim responsibility for international bombings

19

throughout the 2000s.

20

it, have claimed responsibility for attacking U.S. forces and their

21

coalition partners working in Iraq and Afghanistan with a variety of

22

direct action engagements (e.g. direct fire engagements, indirect

23

fire engagements, and improvised explosive device attacks).

AQ claimed responsibility for the following attacks: 1,

AQ

AQ, or organizations loosely affiliated with

9447

AQ sees

13006

1

itself as an enemy of the US; the 2001 Authorization for Use of

2

Military Force is read to provide the authorization for U.S. military

3

actions against AQ and its affiliates.

4

From its inception, AQ claimed that it would attack, and

5

claimed responsibility for attacking, civilian or military targets

6

with different means and degrees of complexity.

7

has defended against AQ since the 1990s.

8

in federal court for conspiracy to murder, bomb, and maim United

9

States citizens.

The United States

In 1998, UBL was indicted

The United States has employed forces against AQ

10

worldwide, to include Africa and the Middle East.

AQ, like common

11

criminals, required secrecy to carry out their direct action

12

missions.

13

tactics of AQ, their tactics evolved in order to continue their

14

operations.

15

West to develop countermeasures.

16

inception of the defense against AQ through 2010.

As the U.S. developed methods to respond to the stealthy

This evolution-or creativity-compelled the same from the
This cycle occurred from the

AQ has also become more decentralized in response to the

17
18

actions of the United States.

AQ adopted a philosophy of creating a

19

"leaderless environment" because it makes AQ terrorist cells harder

20

to detect.

21

considering the West's success in capturing and killing AQ

22

leadership.

23

the development of a "leaderless environment."

This leaderless environment was born of necessity

From the perspective of AQ, self-radicalization aided

9448

AQ sought to create

13007

1

hostility and turn the population of any given country against its

2

secular leadership to create a leaderless environment.

3

self-radicalization, AQ implored all Islamists, specifically the

4

younger generations, to take it upon themselves to fight their

5

enemies.

6

which helped in facilitating the leaderless environment in which they

7

operate.

8

radicalization would be considered "AQ-inspired."

9

indirectly connected to AQ.

10

To encourage

AQ did not have a centralized organizational structure,

Those individuals that responded to the calls for self"AQ-inspired" are

AI Qaeda in the Arabian Peninsula (AQAP) is a terrorist

11

organization that formed as a merger between AQ cells in Saudi Arabia

12

and Yemen in 2003.

13

claimed responsibility for:

14

resulting -- residing on Saudi soil; and 2, launching attacks against

15

oil refineries.

16

"underwear bomber" attack of 2000 [sic].

17

"franchise" from its inception through the charged time period.

18

From its inception through the end of 2010, AQAP
1, an attack on Western expatriates

AQAP also claimed responsibility for the failed
AQAP was the most creative

From its inception, AQ used the media to achieve its goals,

19

gain notoriety, and inspire individuals to join in terrorist

20

activities.

21

would then be used to fund training, missions, bribes, media creation

22

for propaganda and recruiting, and traveling.

23

to seek facilitators who would launder money, obtain items not easily

AQ used the media for fundraising as well. This money

9449

AQ used its notoriety

13008

1

located in AQ's area of operation, move members of AQ to new

2

destinations, and smuggle recruits.
From its inception, media perception was important to AQ.

3
4

Any event that placed AQ in a positive light or depicts forces

5

adversarial to AQ in a negative light would have been seen as

6

beneficial by AQ.

7

enemy forces would have likely boosted morale and may have led to a

8

corresponding increase in attacks.

9

cooperation with foreign leaders would have, from the perspective of

Acknowledgement of successful attacks against

Events that undermined

10

AQ, increased antagonism toward those leaders and created an

11

environment in which terrorist ideology excels.
Throughout the 1990s and early 2000s, AQ used media outlets

12
13

to deliver and record -- deliver its recorded messages to a broader

14

audience.

15

the Internet through its media arm, As-Sahab.

16

designed to operate like a media outlet.

17

Arabic calligraphy was patterned off the golden logo of Al-Jazeera,

18

which also features Arabic calligraphy.

19

2010, As-Sahab made videos to recruit and spread AQ propaganda.

20

Propaganda was thought by AQ to be essential for these missions

21

because it established AQ's credibility as an effective terrorist

22

organization.

In time, AQ decided to release its messages directly to

9450

As-Sahab has been

The golden As-Sahab logo in

From its inception through

13009

AQ has used the Internet since the 1990s.

1

AQ used the

2

Internet as means of communication for its leaders and members.

As

3

the Internet grew to host more information, communication through

4

cyberspace, such as the Internet, was the preferred method of

5

communication because AQ did not have a centralized organizational

6

structure and AQ members were constantly moving in order to avoid

7

being captured or killed by anti-AQ forces.

8

research for potential targets, recruits, and facilitators.

9

the Internet for research since at least the early 2000s.

AQ used the Internet for
AQ used
As AQ

10

developed its own resources such as As-Sahab, AQ shifted more of its

11

attention onto the Internet.

12

sympathetic to its goals.

13

websites.

14

resources, websites that contained United States government

15

information, and websites that researched United States government

16

information to gather intelligence that may be useful in planning

17

attacks against the United States.

18

related to the United States government that would have been used for

19

propaganda to undermine the United States or its allies, especially

20

diplomatic information.

21

TC[MAJ FEIN]:

22

AQ used websites with users who were

AQ also used all publicly available

AQ used websites that described United States government

AQ also searched for information

Ma'am, a Stipulation of Fact, Prosecution Exhibit

182, Adam Gadahn, dated 27 June 2013.

9451

13010

1

The United States and the Defense, with the express consent

2

of the Accused, stipulate that the following facts are true,

3

susceptible of proof, and admissible in evidence.

4

considered by the finder of fact to establish the elements of all

5

charges and their specifications.

6

sentencing authority and on appeal in determining an appropriate

7

sentence, even if the evidence of such facts is deemed otherwise

8

inadmissible.

9

have to the admission of this evidence at trial under the Military

These facts may be

They may be considered by the

The accused expressly waives any objections he may

10

Rules of Evidence, the Rules for Courts-Martial, the U.S.

11

Constitution, or applicable case law.

12

Adam Gadahn is a senior leader of Al Qaeda (hereinafter

13

"AQ"), the terrorist organization responsible for the attacks against

14

the United States at the World Trade Center and Pentagon on 11

15

September 2001.

Adam Gadahn has been a member of AQ since 2004.

16

As-Sahab is a media organization operated by AQ.

17

about 3 June 2011, As-Sahab media released a video titled, "Thou Art

18

Held Responsible Only for Thyself' (hereinafter "Gadahn video").

19

Gadahn video was released simultaneously in two separate parts

20

(referenced herein as "Part I" and "Part II" respectively).

21

Gadahn video features Adam Gadahn and other AQ leaders as speakers.

22

The Gadahn video serves as a propaganda and recruitment tool for AQ.

9452

On or

The

The

13011

As-Sahab and Adam Gadahn obtained material from WikiLeaks

1
2

and used the material from WikiLeaks in the Gadahn video.

The Gadahn

3

video contained excerpts from the WikiLeaks' edited version of the

4

video file named "12 JULY 07 CZ ENGAGEMENT ZONE 30 GC Anyone.avi"

5

(hereinafter "Apache video") contained in Prosecution Exhibit

6

Identification, although already admitted, PE 168 for Identification,

7

although already admitted, is the WikiLeaks edited version of the

8

Apache video that appears on the WikiLeaks web site.

9

video shows the WikiLeaks web site.

15 for

The Gadahn

Between the time stamps 3

10

minutes and 23 seconds and 4 minutes and 40 seconds in Part I, the

11

Gadahn video shows the Apache video, PE 168, on the WikiLeaks web

12

site.
PE 174 Charlie is the Department of State information in

13
14

the Gadahn video obtained from WikiLeaks.

15

video from time stamps 43 minutes and 28 seconds until 44 minutes and

16

38 seconds, Adam Gadahn, speaking in English, recommends using the

17

Internet to make "use of all means possible to do damage to the

18

enemy."

19

time stamps in Part I, Adam Gadahn states,

20

God, the enemy's interests are today spread all over the place and

21

easily accessibly as the leak of America's State Department cable on

22

critical foreign dependency makes so clear."

23

during the same time stamps in Part I, "And I advise every brother

In Part I of the Gadahn

Referencing the Department' s information during the same

9453

"But, by the grace of

Adam Gadahn also states

13012

1

who wants to work for this religion not undertake any action before

2

taking advantage of the wide range of resources available today on

3

the Internet, particularly the various manuals, encyclopedias, and

4

courses, which deal with the mujahedeen’s operational and electronic

5

security, and security in general."

6

In Part II from the time stamps 5 minutes and 35 seconds

7

until 6 minutes and 37 seconds, the narrator, citing Department

8

material obtained from WikiLeaks, reports Arab leaders'

9

"collaboration" with "their ruler, America," giving President Obama

10

an "open door" to "wage war on the mujahidin."

11

II of the Gadahn video from time stamps 6 minutes and 38 seconds

12

until 9 minutes, 1 second, also referencing the contents of the

13

Department's material obtained from WikiLeaks, cites reports of the

14

"lewd parties put on by the American consulates in Islamic countries

15

that aim to corrupt the minds, morals, and religion of the youth."

16

The narrator continues, "These documents revealed that most of the

17

riches of the Islamic world are spent on corruption and waging war on

18

Islam, while millions of Muslims live in abject poverty."

19

The narrator in Part

Inspire Magazine is a magazine published on the Internet by

20

al Qaeda in the Arabian Peninsula (hereinafter "AQAP").

AQAP is a

21

branch of AQ.

22

recruitment tool for AQAP and AQ.

23

Inspire Magazine published issue Number 4 (hereinafter "Winter 2010

Inspire Magazine serves as a propaganda and

9454

On or about 16 January 2011,

13013

1

Inspire Issue") on the Internet.

2

2010 Inspire Issue, the magazine lists activities one can do to "help

3

the mujahidin in within the confines of the media sector."

4

Winter 2010 Inspire issue lists the archiving -- excuse me, Your

5

Honor, The Winter 2010 Inspire issue lists that archiving large

6

amounts of information is helpful to AQAP and AQ.

7

Inspire Issue further lists "anything useful from WikiLeaks" is

8

useful for archiving.
Your Honor, I'm sorry.

9
10

record.

11

on Page 1, Your Honor.

12

2011.

On pages 44 to 45 of the Winter

The

The Winter 2010

I need to make a correction on the

Your Honor, I might have misstated the date of Paragraph 1
I might have said on the record 11 September

It should be as written, 11 September 2001.

13

MJ:

All right.

Defense agree?

14

CDC[MR. COOMBS]:

15

TC[MAJ FEIN]:

Yes, Your Honor.

Your Honor, the United States offers to be read

16

on the record Stipulation of Fact for UBL information dated 10 May

17

2013, and has been admitted as Prosecution Exhibit 153 Bravo, the

18

unclassified version of 153.

19

MJ:

Go ahead.

20

TC[MAJ FEIN]:

The United States and the Defense, with the

21

express consent of the Accused, stipulate that the following facts

22

are true, susceptible of proof, and admissible in evidence.

23

facts may be considered by the finder of fact to establish the

9455

These

13014

1

elements of all charges and their specifications.

2

considered by the sentencing authority and on appeal in determining

3

an appropriate sentence, even if the evidence of such facts is deemed

4

otherwise inadmissible.

5

he may have to the admission of this evidence at trial under the

6

Military Rules of Evidence, the Rules for Courts-Martial, the U.S.

7

Constitution, or applicable case law.

The accused expressly waives any objections

Usama bin Laden, hereinafter UBL, was the leader of al-

8
9

They may be

Qaeda, the terrorist organization responsible for the attacks against

10

the United States at the World Trade Center and Pentagon on 11

11

September 2001.
On 2 May 2011, United States government officials raided

12
13

UBL's compound located in Abbottabad, Pakistan and collected several

14

items of digital media.

15

following items were obtained:

16

al-Qaeda requesting the member gather Department of Defense material

17

posted to WikiLeaks; two, a letter from the same member of al-Qaeda

18

to UBL, attached to which was the Afghanistan War Log as Posted by

19

WikiLeaks; and, three, the Department of State information released

20

by WikiLeaks.

21

Honor.

22

MJ:

From the items of digital media, the
One, a letter from UBL to a member of

The remainder of the information is redacted, Your

All right.

9456

13015

1

TC[MAJ FEIN]:

Your Honor, at this time the United States

2

intends to call Mr. Lewis as its last witness.

3

States estimates that just its direct, because we intend to to

4

qualify him will take approximately an hour and a half to possibly 2

5

hours.

6

MJ:

7

TC[MAJ FEIN]:

However, the United

Is that the open session you're talking about?
Yes, ma'am.

And then the United States would

8

then request to move into a closed session to finalize the

9

foundational requirements to qualify him as an expert.

I also assume

10

there will be an unclassified cross-examination prior to moving into

11

that session.

12

good time to take an early lunch and come back early so we can start

13

and finish with Mr. Lewis.

The reason I mention it, Your Honor, it might be a

14

MJ:

So do Mr. Lewis in his entirety after lunch?

15

TC[MAJ FEIN]:

16

MJ:

Yes, ma'am.

All right.

I believe there's also the additional issues

17

that have to be addressed during lunch with respect to the Internet

18

Archive discussions that need to go on.

19

understand from the R.C.M. 802 conference we held earlier there's

20

going to be some documents that the government has just received with

21

respect to Mr. Lewis that the defense has not yet seen.

22

correct?

23

ADC[MAJ HURLEY]:

How long are you -- and as I

Yes, ma'am, that's correct.

9457

Is that

13016

1

TC[MAJ FEIN]:

Yes, ma'am.

2

MJ:

3

ADC[MAJ HURLEY]:

4

MJ:

5

ADC[MAJ HURLEY]:

6

TC[MAJ FEIN]:

So, you’ll need some time as well?
Yes, ma'am.

Have you gotten the documents yet?
We haven't, ma’am.

My understanding, ma’am, is they're ready to go

7

after this session, but they're classified so I have to give them to

8

the defense.

9

MJ:

Well, at this point, knowing that you haven't seen the

10

documents yet and you may need longer than you tell me, do the

11

parties anticipate a certain amount of time that will be necessary at

12

this point?

13
14
15

TC[MAJ FEIN]:

May we have a moment to confer with the defense,

Your Honor?
MJ:

Yes.

16

[There was a brief pause while the trial counsel consulted with the

17

defense counsel.]

18
19

TC[MAJ FEIN]:

Ma'am, may we reconvene at 1300, and then if more

time is needed we'll figure it out at that time?

20

MJ:

21

ADC[MAJ HURLEY]:

22

MJ:

23

Is that acceptable to the defense?

All right.

Yes, ma'am.
Court is in recess until 1300.

[The court-martial recessed at 1103, 1 July 2013.]

9458

13017

1
2

[The court-martial was called to order at 1322, 1 July 2013.
MJ: Court is called to order.

Let the record reflect all

3

parties present when the Court last recessed are once again present

4

in court.

5

we announce the change in court reporters?

Major Fein, when you initially announced the parties, did

6

TC[MAJ FEIN]:

7

MJ:

Yes, Your Honor.

All right.

During the lunch, Defense, you filed with the

8

Court, at least you emailed me a defense clarification of colloquy

9

for stipulations of expected testimony for Prosecution Exhibits 180

10
11
12
13

and 181.

Has that been marked as an appellate exhibit?

ADC[CPT TOOMAN]:

It has.

We have a copy for you if you would

like, Your Honor.
MJ:

I have it.

And that's Appellate Exhibit 589 which

14

basically does that witness comparison for number three and number 29

15

from Prosecution Exhibits 180 and 181?

16

ADC[CPT TOOMAN]:

17

MJ:

Yes, ma'am.

The Court also over the lunch period had looked at

18

classified Appellate Exhibits 479 and 475 and compared witnesses

19

three and 29 with witnesses 23 and 107 as identified in Appellate

20

Exhibit 475 and also confirmed they are in fact the same people.

21

there anything else we need to address with this exhibit?

22

CDC[MR. COOMBS]:

23

TC[MAJ FEIN]:

No, Your Honor.

No, ma'am.

9459

Is

13018

MJ:

1
2

Has the defense had an opportunity to speak or have your

expert speak telephonically with the Internet Archive?
CDC[MR. COOMBS]:

3

Yes, Your Honor.

We have.

Based upon that

4

conversation, my expert speaking with one of their engineers, the

5

defense has decided to withdraw its authentication objection to PE

6

109 for Identification.
MJ:

7
8

CDC[MR. COOMBS]:
MJ:

10

Okay.

Government, do you have anything else to

add?
ATC[CPT MORROW]:

13

MJ:

15

Are you still going forward with

Yes, Your Honor.

All right.

12

14

Thank you.

your 403 objection?

9

11

All right.

No, Your Honor.

Are you going to move for admission of Prosecution Exhibit

109 for Identification?
ATC[CPT MORROW]:

Yes, Your Honor.

We renew our motion or we

16

move to admit Prosecution Exhibit 109 for Identification into

17

evidence.

18

MJ:

May I see Appellate Exhibit 584, please?

All right.

The

19

Court notes that defense has withdrawn its authentication objection

20

to Appellate Exhibit 109 for Identification.

21

584 I initially ruled with respect to admitting Prosecution Exhibits

22

31 and 32, and also ruled that Prosecution Exhibit 109 for

23

Identification was not properly authenticated.

9460

In Appellate Exhibit

Also, in this ruling

13019

1

the Court held or the Court ruled, its conclusions of law, that

2

Prosecution Exhibit 109 is a request for information and is offered

3

for the fact that the request was made not for the truth of the

4

matter asserted.

5

a non-hearsay purpose, the circumstantial evidence that PFC Manning

6

was aware of Prosecution Exhibit 109 for Identification and his

7

intent to gather information and send it to WikiLeaks.

8

government has not presented evidence that the accused actually

9

accessed PE 109 for Identification, the government has presented

The government offers PE 109 for Identification for

Although the

10

evidence that PFC Manning searched Intelink for WikiLeaks and for

11

some of the information on PE 109 for Identification.

12

has also presented evidence that when a person does an Intelink

13

search and navigates to another website to continue the search,

14

Intelink no longer captures the metadata.

15

The government

The Court finds the timing of PE 109 for Identification

16

posting in conjunction with other evidence presented by the

17

government is relevant, circumstantial evidence offered for a non-

18

hearsay purpose to further the inference that PFC Manning was aware

19

of the information requested by WikiLeaks in Prosecution Exhibit 109

20

for Identification.

21

Identification be properly authenticated, it is relevant for the

22

specifications in Charges I and II.

Should Prosecution Exhibit 109 for

9461

13020

1

Now, the Court did an M.R.E. 403 balancing test with

2

respect to Prosecution Exhibits 31 and 32 for Identification because

3

I intended to admit those at the end of the day with these rulings.

4

The Court did not do a 403 analysis with respect to Prosecution

5

Exhibit 109 for Identification.

6

analysis with respect to Prosecution Exhibits 31 and 32 for

7

Identification also applies to Prosecution Exhibit 109 for

8

Identification.

9

in Prosecution Exhibit 109 for Identification is substantially

The Court finds that its 403

The Court has considered whether the probative value

10

outweighed by the danger of unfair prejudice under the criteria of

11

Military Rule of Evidence 403 and finds it is not.

12

finder will consider the evidence for its proper admissible purposes.

13

Thus, in light of the defense's withdrawal of their authentication

14

objection, and the Court's 403 analysis, and the analysis with

15

respect to hearsay and relevance, the government's motion to admit

16

Prosecution Exhibit 109 for Identification is granted and Prosecution

17

Exhibit 109 for Identification is admitted.

18

Prosecution Exhibit 109 for Identification is admitted.

19
20

All right.

The Court as fact

May I see it, please?

Government, I also -- is there anything else we

need to address with respect to that issue?

21

CDC[MR. COOMBS]:

No, Your Honor.

22

ATC[CPT MORROW]:

No, Your Honor.

9462

13021

1

MJ:

Government, I notice you also submitted via email to me and

2

I want to see if this has been marked as an appellate exhibit, 28

3

June 2013, relevant and non-hearsay purposes for facts to be judicial

4

noticed.

5

ATC[CPT MORROW]:

Yes, Your Honor.

We re-filed that with

6

annotations in the comment boxes corresponding to specific evidence

7

that we presented in court.

8

MJ:

Have you marked that as an appellate exhibit?

9

ATC[CPT MORROW]:

It hasn’t been marked, Your Honor, we didn't

10

mark it initially because we didn't know where in line you wanted to

11

mark it, if you wanted to mark it with the original.

12
13
14
15

MJ:

Why don't we mark it as the original with an A next to it?

The original was what?
ATC[CPT MORROW]:

So, Your Honor, that filing would be

Appellate Exhibit 587 Alpha.

16

MJ:

All right.

17

ATC[CPT MORROW]:

18

MJ:

Thank you.

Has the defense seen it?

Yes, Your Honor.

Defense, you have already told me you don't wish additional

19

oral argument with respect to this motion, is that true, after this

20

filing as well?

21

CDC[MR. COOMBS]:

Yes, Your Honor.

9463

13022

MJ:

1

And that has been filed as Appellate Exhibit 587 Alpha.

2

The Court will consider that later today.

3

additional combined judicial notice filing.
ATC[CPT MORROW]:

4

Yes, Your Honor.

And there's been an

This one is dated 1 July

5

2013, so today.

6

previous combined judicial notice accounting is that this filing is

7

broken up into facts that would be relevant for the merits phase and

8

facts that would be relevant for presentence.
MJ:

9
10

Again, the difference between this filing and the

All right.

Defense, have you had a chance to look at this

yet?

11

CDC[MR. COOMBS]:

12

MJ:

Have not, Your Honor.

Why don't we do this?

Let's make this an Alpha as well

The Court does note for the record, the

13

along with the original one.

14

issue we discussed before that was originally objectionable with

15

respect to the Finkel book and eight and nine the original filing is

16

no longer in the current filing.

17
18
19

ATC[CPT MORROW]:

I believe it wasn't the Finkel book, it was

the letter from Senator Levin, Your Honor.
MJ:

I'm sorry.

I stand corrected.

The letter from Senator

20

Levin to Secretary Gates being used for context.

21

longer one of the objectionable pieces in the new judicial notice on

22

1 July 2013.

9464

So that is no

13023

1
2
3

ATC[CPT MORROW]:

Your Honor, this will be Appellate Exhibit

588 Alpha.
MJ:

All right.

So once again, this is not ripe, any of these

4

judicial notice issues from the defense.

5

combined judicial notice, if you have any issues or objections or

6

believe it doesn't accurately reflect what the state of the judicial

7

notice is, just let me know.

8

CDC[MR. COOMBS]:

9

MJ:

10

Okay.

Defense, take a look at the

Yes, Your Honor.

Is there anything else we need to address at this

time before we proceed?

11

CDC[MR. COOMBS]:

12

TC[MAJ FEIN]:

13

MJ:

14

TC[MAJ FEIN]:

No, Your Honor.

No, ma'am.

All right.

Government.
Ma'am, just for the record, the United States was

15

able to provide the two documents asserted as the basis of Mr.

16

Lewis's testimony to the defense during lunchtime.

17

MJ:

Defense, have you had an adequate time to go over them?

18

ADC[MAJ HURLEY]:

19

TC[MAJ FEIN]:

Yes, ma'am, we have.

And the United States calls Mr. Danny Lewis.

20

DANNY J. LEWIS, civilian, was called as a witness for the

21

prosecution, was sworn, and testified as follows:

22
23

DIRECT EXAMINATION
Questions by the trial counsel [MAJ FEIN]:

9465

13024

1

Q.

Sir, you are Mr. Danny Lewis of the Defense Intelligence

2

Agency?

3

A.

I am.

4

Q.

Sir, before we begin, if any question that any party or the

5

Court asks you elicits a classified answer, please notify the Court

6

prior to answering that question.

7

within the Defense Intelligence Agency?

8
9
10
11
12

A.

Sir, what is your current position

I'm the Senior Expert and Counterintelligence Advisor to

the Directorate of Science and Technology for DIA.
Q.

Sir, what are your general duties and responsibilities in

that capacity?
A.

In the activities that that Directorate handles for DIA, I

13

look at those activities from a counterintelligence standpoint

14

insuring that we're taking into account the things that our foreign

15

adversaries, the interests that they would have in those activities,

16

how they might try to stop those activities, and give advice and

17

assistance on how best to do those activities, operations.

18

Q.

Sir, when did you begin your government service?

19

A.

I joined the Army in July of 1976.

20

Q.

And how many of those years, sir, have been in civilian

21

capacity?

22

A.

I became a civilian in December of 1997.

23

Q.

And did you serve after duty from 1977 until 1997?

9466

13025

1

A.

No.

I actually retired in May of 1997.

I had a 6 month

2

break there when I was figuring out what I was going to do with my

3

life and figured I would continue doing counterintelligence for the

4

Army in a civilian capacity.

5
6

Q.

Sir, how many of those years in the civilian service have

been in the field of counterintelligence?

7

A.

Since May of 1984.

8

Q.

How many years do you estimate that is?

9

A.

About 29.

10

Q.

Thank you, sir.

11
12

now a few times.
A.

Sir, you've mentioned counterintelligence

What is counterintelligence?

There's a lot of definitions, but it's generally the

13

information and the activities that we use to identify, disrupt,

14

exploit our foreign adversaries' intelligence services or

15

international terrorism organizations, keep them from defeating us.

16

Q.

And, sir, what is counterespionage?

17

A.

Counterespionage is an area of counterintelligence that's

18

really more focused on espionage investigations, really focused on

19

proving or disproving allegations against any individual.

20
21

Q.

Sir, what elements do you always look for in significant

espionage investigations?

22

A.

What's key for us always there will be travel and money.

23

Q.

And what do you mean by travel, sir?

9467

13026

1

A.

If an individual has or is committing espionage, they

2

actually have to meet with the foreign intelligence service at some

3

point, so that type of travel.

4

associated with a normal leave or anything out of the norm, an

5

anomaly, if you will.

6

got a pretty good idea of the normal finances for an individual.

7

We're looking for those activities which are not explained by the

8

normal amount of income, a deposit that shows up, jewelry that's

9

bought, a new car, a new house, anything that would show us money is

10
11
12
13

We look for travel that is not

Money, if we're investigating someone, we've

being spent, but we can't necessarily decide where it come from.
Q.

Sir, could you please briefly explain for the Court what

are the different functions of counterintelligence?
A.

Counterintelligence has CI operations, investigations,

14

collections, analysis, and a functional services which has polygraph

15

and some other support things that support all of the other

16

functions.

17

Q.

And, sir, what do you mean by analysis and production?

18

A.

Analysis is the foundation for all of the operational and

19

investigative activity for CI, those are the folks who are actually

20

studying our adversaries.

21

organizations that are associated with our adversaries intelligence

22

services and they give us a story of who those people are, who those

They look at the individuals, the

9468

13027

1

organizations are, how they operate, which then goes into helping the

2

investigations and the operations part of that.

3

Q.

And, sir, what is collection?

4

A.

Collection is a fundamental basic skill of

5

counterintelligence agents.

6

Anytime we're collecting information that's out there, it could be

7

from a person, it could be from a store shop owner, a magazine,

8

anything where it just covers the type of activities that gives us a

9

name for when we're collecting information, bringing it in, it could

It can be done through open source.

10

go to the analysts, it could go to the investigators, it can go to

11

the operators.

12
13
14

Q.

Sir, why does the Department of Defense have a

counterintelligence program?
A.

It is the -- It is there to protect us from our foreign

15

adversary's intelligence entities and international terrorist

16

organizations.

17
18
19

Q.

And, sir, how does counterintelligence help commanders on

the battlefield?
A.

Counterintelligence, it applies in all of the areas applied

20

in the field.

It is the individuals that are running the low level

21

source networks, meeting with the local areas, identifying threats in

22

a particular area.

23

in that particular area.

They will handle the investigations that come up
If anyone's alleged from an insider,

9469

13028

1

someone outside the wire that's trying to damage us, they do all the

2

investigations and operations that are focused there in theater.
Q.

3

Thank you, sir.

Now I'd like to have you focus on your

4

actual career in counterintelligence field.

5

military?

When were you in the

6

A.

July of '76 to December of '97.

7

Q.

And what was your rank when you retired, sir?

8

A.

I was a Chief Warrant Officer 2.

9

Q.

And when did you become a military officer?

10

A.

October of 1991.

11

Q.

And what was your first counterintelligence job, where was

13

A.

It was in Germany for the 527 MI Battalion.

14

Q.

And from what year, sir?

15

A.

That would have been February of 1985 till 8 August of

Q.

And what were the general duties and responsibilities that

12

16
17
18
19

it?

1988.

you had at the 527?
A.

In a position like that it was the full range or in a field

20

office so our handling of any interviews, anybody that wants to come

21

in and report a suspicious activity.

22

education for everyone that's in the community, the newcomers, the

23

yearly requirement to brief people.

9470

You're handling the CI

The old acronym used to be

13029

1

SAEDA, I'm not sure what the Army calls it now.

2

activity for any CI operations, office of operations that are going

3

on in the area, so anything from training, education, investigations,

4

operations support.

5
6
7
8
9
10
11

Q.

Any type of support

And, sir, what was your next duty assignment after your

assignment to Germany?
A.

My next CI assignment was to the Army's Foreign

Counterintelligence Activity here at Fort Meade.
Q.

Sir, did that assignment require you to go through a

selection process?
A.

Yeah, it was, the Army has an offline management program

12

which allows people to specialize in one area and not continue to get

13

moved around every three years like the normal PCS cycle.

14

Q.

And is that a selective program, sir?

15

A.

It is.

16

Q.

And how long were you at the Foreign Counterintelligence

17

Agency for?

18

A.

On active duty ----

19

Q.

Yes.

20

A.

---- that would have ----

21

MJ:

Yes.

9471

13030

ADC[MAJ HURLEY]:

1

Ma'am, in order to move this along, we

2

actually have no objection to the government offering Mr. Lewis's CV

3

as a prosecution exhibit.

4

MJ:

I'll let the government present their case as they choose.

5

Q.

Sir, the question was what was the role or what did the,

6

what was the mission of the Foreign Counterintelligence Agency at the

7

902nd?
A.

8
9
10

The Foreign Counterintelligence Activity, it was

responsible for all the significant counterespionage investigations
and all the CI offensive operations that were conducted by the Army.
Q.

11

And, sir, earlier you mentioned the offline management

12

program.

13

why did they required to be in such a program?
A.

14

Why was it -- Why were Soldiers who were assigned to FCA,

It was normally assessed based on the experience that had
Before you allowed someone into the

15

been shown and potential.

16

organization which handled the Army's most significant sensitive

17

investigation, they wanted to make sure you had the ability to do the

18

job.

19

Q.

And, sir, what do you mean by significant investigation?

20

A.

In that context, that's normally investigations which

21

fairly certain indicated that espionage has been or is being

22

conducted.

9472

13031

1
2
3
4
5
6
7

Q.

And, sir, after you retired in 1997 what was your next

counterintelligence job?
A.

In a few months later in December I came back to the same

organization, the Foreign Counterintelligence Agency as a civilian.
Q.

And, sir, was that, were you a general GS employee or was

that part of another special program?
A.

It was part of a military intelligence civilian excepted

8

career program.

9

it was a way there where Army civilian employees could specialize in

10
11
12

Kind of like the same thing I had in the military,

one area and stay without being moved around every 4 or 5 years.
Q.

And, sir, how long were you at FCA for that tour as a

civilian?

13

A.

December '97 until November 2001.

14

Q.

And, sir, what were your general duties and

15

responsibilities while you were at FCA as a civilian during that time

16

frame?

17
18

A.

I was a senior investigator, same type of significant

investigations, just as a civilian instead of military.

19

Q.

Sir, in the fall of 2001 where did you move to?

20

A.

I did a few months with the National Security Agency.

21

After the events of September 11, NSA decided they wanted to bring in

22

some outside expertise into their CI program, they went out into the

23

community collecting a few folks, and based on my experience I was

9473

13032

1

one of the ones that they tried to bring in and help grow a new CI

2

program.

3
4

Q.

Sir, were you hand-picked for that job from your

counterintelligence background?

5

A.

Yes.

6

Q.

And, sir, when you left NSA where did you go?

7

A.

I went back to FCA as a promotion to an executive

8
9
10
11
12
13
14
15
16
17
18
19

investigator position.
Q.

And what were your general duties and responsibilities as

an executive investigator?
A.

I oversaw the investigations that FCA was doing as well as

continue to conduct some of the investigations myself.
Q.

And then, sir, what was your next job in the

counterintelligence field?
A.

From there I left to become the Chief of Training for the

DoD Joint CI Training Academy.
Q.

Sir, what is the joint -- DoD Joint Counterintelligence

Training Academy?
A.

It's the one place where all of the counterintelligence

20

training is done now within DoD for both the military services and

21

the defense agencies.

22

Q.

And, sir, how long were the Chief of Training there?

23

A.

That would have been August of 2003 until December of 2006.

9474

13033

1
2
3
4
5
6
7

Q.

And what was your next assignment within the field of

counterintelligence as a civilian after the Chief of Training at JCL?
A.

I became the Chief of the Counterespionage Division and the

Counterintelligence Field Activity.
Q.

And, sir, what is the -- or what was the

Counterintelligence Field Activity?
A.

It was also an agency that was created after the events of

8

9-11 and it was meant to bring in -- bring some cohesion to all of

9

the different CI missions within DoD, try to make sure everyone is

10

working in one direction and we don't have people shooting off doing

11

their own little CI thing.

12

Q.

And when you say people, sir, could you please ----

13

A.

Organizations, the defense agencies, the CI entities within

14

the defense agencies as well as the CI entities within the military

15

services.

16
17
18

Q.

Sir, what were your responsibilities as the Chief of the

Counterespionage Division at CIFA?
A.

We had a couple responsibilities.

We had visibility, we

19

were the one entity that set above all the different stovepipes of

20

the military services and defense agencies, so we had visibility over

21

all the significant CI and CT investigations, all the offensive CI

22

operations, so we had visibility over those.

23

was to make sure if we saw something that was happening in the Army

9475

And our effort there

13034

1

that would impact something that was happening in the NSA, we would

2

reach those two individuals together to insure that we're not

3

duplicating effort, working too much in one area and not enough in

4

another area.

5
6
7
8

Q.

Sir, in your explanation using the term we, what were your

specific responsibilities?
A.

I was responsible for the oversight of all of those

activities.

9

Q.

And, sir, how long were you at CIFA for?

10

A.

CIFA went away in the middle of 2008, became -- fell under

11

the Defense Intelligence Agency, so my position stayed the same from

12

December of 2006 until May of 2013, it just transitioned from CIFA to

13

the Defense Intelligence Agency.

14
15
16

Q.

And how did your responsibilities, if at all, change once

you transitioned over to DIA?
A.

At that time DIA assessed that position should have been a

17

senior position, an expert in counterintelligence, so they identified

18

that position, they announced it, competed it, and I was selected for

19

that position.

20

Q.

And what was that position again, sir?

21

A.

The Chief of the Counterespionage Division.

22

Q.

Sir, does that make you an SES, a senior member of the

23

senior executive?

9476

13035

1

A.

I'm a Defense Intelligence Senior Level Individual.

2

part of the senior service.

3

the senior leaders, providing leadership.

4

we are subject matter experts at the senior level.

It's

SESs are normally associated with being
As a DISL as it's called,

5

Q.

And, sir, you had to compete for that job?

6

A.

Yes.

7

Q.

And you were selected?

8

A.

Yes.

9

Q.

Sir, you've mentioned now throughout your testimony the

10
11

term operations.
A.

What do you mean by operations in general, sir?

Offensive CI operations, those are the clandestine

12

activities that are focused on individuals that we believe to be or

13

known to be involved in our adversaries' intelligence organizations

14

or in international terrorist entities.

15

Q.

And what do you mean by the term investigations?

16

A.

Investigations are those significant investigations being

17

conducted across the Department by the military services or the

18

defense agencies or the FBI.

19

DoD equity, those investigations were report up to our office and we

20

also maintain oversight over those.

21
22

Q.

When that investigation actually has a

And, sir, how long did you serve as the Director of the

Counterespionage Section in DIA and CIFA?

9477

13036

1
2

A.

The Chief that would have been -- under CIFA, just, so that

would have been from December 2006 to August of 2008.

3

Q.

And then what about in DIA?

4

A.

Since 2008 until May of '13.

5

Q.

Sir, in your capacity as the Director of the

6

Counterespionage Section, how many counterintelligence professionals

7

did you oversee in that position?

8
9
10

A.

In that particular area, there was about 50 to 55 at any

one time.
Q.

And, sir, in your role as the Director of the

11

Counterespionage Section, to whom did you make recommendations based

12

off of your technical advisor role?

13

A.

Right.

The primary focus of having visibility over the CI

14

operations and the significant investigations was to insure that the

15

Undersecretary of Defense for Intelligence, the Deputy Undersecretary

16

of Defense for Intelligence and Security was aware of those

17

activities that met a certain criteria that were happening with any

18

given month.

19

Undersecretary of Defense on those.

20
21
22

Q.

We gave monthly briefings to the USDI, the

And, sir, you said we.

Did you give those briefings or did

you office?
A.

Yes, no, I prepared and gave the briefings.

9478

13037

1

Q.

And how often did you give those briefings to the

2

Undersecretary of Defense and Deputy Undersecretary for Intelligence,

3

excuse me?

4

A.

Verbal, yes -- Verbal briefings were once a month.

If

5

there were activities happening between those briefing cycles I would

6

prepare memos to go up to the USDI to make him aware of a particular

7

situation.

8
9
10

Q.

And, sir, were you responsible for preparing briefs for

members of Congress?
A.

Yes, we do.

I was responsible for overseeing a report to

11

Congress every quarter which was focused on the offensive CI

12

operations, basically a summary of what was happening in that

13

quarter, both from an operational standpoint and from a financial

14

standpoint.

15
16
17

Q.

Sir, in an unclassified manner, could you please explain

for the court what you mean from an operational standpoint?
A.

The activities we're running against a foreign adversary,

18

the contact that we were having with that adversary, and the things

19

that were happening during that relationship, that's it.

20
21

Q.

So you were -- gotcha.

And what do you mean from a

financial standpoint, or monetary?

9479

Excuse me.

13038

1

A.

There is normally payment going on in those type of

2

operations between the adversary and the people that are involved in

3

our operations.

4
5
6
7
8
9
10

Q.

All right, sir.

And what is your current position again,

sir, since May 2013?
A.

Since 2013 I'm the Senior Expert and Counterintelligence

Advisor for the Directorate of Science and Technology in DIA.
Q.

In an unclassified overview, sir, what does the Science and

Technology Directorate do?
A.

Still kind of new to that, so from an unclassified area,

11

much like in the CI standpoint from operations and investigations,

12

there are other type of operations that DIA will be responsible for

13

around the globe that would involve scientific type operations where

14

we're -- yeah, I don't know exactly how to say that unclass, I'm

15

still so new to that position.

16

Q.

Okay, sir.

What is your role within that organization?

17

A.

I look at the operations that they have planned, activities

18

they have planned, and I look at that from the viewpoint of our

19

foreign adversary, how would they view that, how could they defeat

20

that, what would they do if they found out about that.

21

Q.

And were you selected for that job, sir?

22

A.

Yes.

9480

13039

1
2

Q.

Sir, at this time are you the most senior or experienced

counterintelligence professional in DIA?

3

A.

Experienced?

Yes.

Senior?

No.

4

Q.

And how do you know that, sir?

5

A.

The experience?

6

Q.

Yes, sir.

7

A.

Because I know all of the CI people within DIA and no one

8

has the background from both the oversight of what's happening across

9

all of DoD as well as the experiences I had on active duty and as a

10
11
12

civilian in the Army.
Q.

Sir, in total how long have you been a badged and

credentialed intelligence investigator?

13

A.

Continuously since -- So about 29 years.

14

Q.

Sir, I'd like to now have you focus on significant awards
What military awards

15

that you've won during your career, if any.

16

have you received when you were on active duty?

17
18
19
20
21

A.

On active duty I think it was two ARCOMs, an MSM and a

Legion of Merit.
Q.

And have you received as a civilian, sir, any awards for

your involvement in any counterintelligence investigations?
A.

Yes.

In 1996 every year DoD gives a set of awards for

22

different -- the different function areas within DoD, and for 1996 I

23

was the DoD CI Investigator of the Year.

9481

13040

1

Q.

And how many individuals per year receive this award, sir?

2

A.

One.

3

Q.

And, sir, in 1996 what was the case that you won that award

A.

It was the joint investigation with the Army and the FBI of

4
5
6

for?

retired Colonel George Trofimoff.

7

Q.

Sir, who was the person -- who was that person?

8

A.

He was an individual that was ultimately convicted for

9

committing espionage on behalf of Russia from the 60s, 70s and most

10

of the 80s.

11

the Army in Germany working when we were conducting the

12

investigation.

13
14

Q.

At the time he was a civilian within the Department of

And what did he do, sir, that ultimately led to the

investigation?

15

ADC[MAJ HURLEY]:

16

MJ:

17

TC[MAJ FEIN]:

Objection, Your Honor.

We are getting far afield.

Relevance.

What's the point?

Your Honor, the United States intends to offer

18

Mr. Lewis as an expert in counterintelligence and specifically an

19

expert in valuing government information by foreign intelligence

20

services.

21

experiences and his knowledge base, Your Honor.

22
23

MJ:

This goes directly to that based off of his prior

How many of these investigations are you going to talk

about?

9482

13041

1
2
3
4
5
6
7
8

TC[MAJ FEIN]:

He only received two awards, Your Honor, only two

investigations.
MJ:

All right.

Overruled for now.

Go ahead.

Questions continued by the trial counsel [MAJ FEIN]:
Q.

Sir, the question was what did Colonel Trofimoff, what did

he do that warranted an investigation that you participated in?
A.

Yes.

He was ultimately found to have provided about 50,000

pages of Secret and below documents to the Russian government.

9

Q.

And, sir, did he get paid to do that?

10

A.

Yes.

11

Q.

And how much money did he get paid?

12

A.

About $250,000.

13

Q.

And what type of information was included in those

14
15

documents?
A.

Most of those documents contained what would be called

16

collection requirement type documents.

17

information that we needed to know if we were, had an opportunity to

18

interview or talk to someone from a foreign country.

19
20

Q.

It was a compilation of

And, sir, what was the classification of information he

compromised and you investigated?

21

A.

Secret and below, Secret and Confidential primarily.

22

Q.

Was there any unclassified information?

23

A.

Yeah.

9483

13042

1
2

Q.

And, sir, did you win this -- did you win the top DoD

Counterintelligence Investigator Award a second time?

3

A.

Yes.

4

Q.

In what year, sir?

5

A.

1999.

6

Q.

And, sir, has anyone that you know of ever won the award

7

twice in the Department of Defense?

8

A.

No.

9

Q.

You're the only one, sir?

10

A.

Yes.

11

Q.

Sir, what case was your case in 1999 that you received the

12
13
14

award for?
A.

That was the investigation of retired Army Sergeant David

Boone.

15

Q.

And, sir, who was Sergeant Boone?

16

A.

At the time of the investigation he was a retired senior

17

enlisted member living in Germany.

18

that he had provided the Russian government between October of '88

19

and the first part of 1992 classified information.

20
21
22
23

Q.

He had ultimately we determined

And, sir, how much -- approximately how much information

through your investigation did you find out that he had provided?
A.

He normally provided about 350 documents every 4 months,

that was his normal meeting cycle.

9484

13043

1

Q.

And did he receive money for this information?

2

A.

Yes.

3

Q.

How much money did he receive for the information, sir?

4

A.

About $7500 for that same time period.

5

Q.

Sir, I'd now like to focus on your training and the

6

training you have received in the field of counterintelligence and

7

its subcomponent of counterespionage.

8

received to become a CI agent?

9
10

A.

What formal training have you

The Basic Agent Course is a 5-month course at Fort

Huachuca.

I did that in 1984.

11

Q.

Sir, is that similar to AIT?

12

A.

At that time there was no AIT.

You had to actually have

13

one assignment in the Army before you could transfer to a CI agent.

14

They wanted someone who wasn’t as junior as an AIT would offer to be

15

a CI agent.

16

the Army, but at the time you had to be at least an E5.

That's changed several times throughout the years for

17

Q.

And, sir, what information did that course cover?

18

A.

All of the fundamentals of counterintelligence, much like

19

the functions I had mentioned, investigations, operations, analysis

20

and production, functional services, collection.

21
22

Q.

And, sir, what advanced counterintelligence training have

you received formally?

9485

13044

1

A.

Before the Defense Joint Counterintelligence Training

2

Academy where I was the Chief of Training, the Army had an advanced

3

course that was basically what that entity was, and it was specific

4

advanced training in investigation, counterespionage investigations,

5

offensive CI operations and surveillance.

6

Q.

And, sir, when did you receive that training?

7

A.

That would have been the end -- the beginning of 1992.

8

Q.

And, sir, throughout your career have you ever participated

9
10

in any type of continuing education opportunities?
A.

That's basically how CI professionals continue to develop.

11

There's, there's not a lot.

12

investigation, everything from there is experience, learning from

13

things that continue to happen, lessons learned, case studies of

14

subsequent investigations, so it's, I would say the education is

15

continuous.

16

issues for DoD.

17

is resolved within the CI community those are discussed, what did we

18

learn, how did our foreign adversary conduct that investigation, what

19

did we learn about them, how could we apply that to new

20

investigations.

21

Q.

Once you get the basic fundamentals of

There are yearly conferences where we discuss the big
Every time there's a significant investigation that

Sir, did any of your continuing education opportunities

22

include getting training through symposiums of federal partners

23

outside the DoD?

9486

13045

1

A.

Yes.

We did a lot of legal training with the Bureau and

2

with the Federal Law Enforcement Training Center in Glynco, Georgia.

3

Mostly with the Bureau it was basically most significant

4

investigations within the U.S. are conducted jointly with the Bureau,

5

it's how to best partner and move those investigations forward.

6

Q.

And, sir, over your nearly 30 year career in

7

counterintelligence, have you ever trained others in the field of

8

counterintelligence, counterespionage?

9

A.

Yes.

I was an instructor at the CI Training Courses from

10

1993 until today, and then I had a little 3 plus years as Chief of

11

Training where I was not only responsible for developing and updating

12

to insure the training for CI professionals were meeting the mark and

13

meeting the requirements, I also continued to instruct in all of the

14

various courses at JCITA.

15

Q.

And what specific courses have you taught related to CINC?

16

A.

Investigative methodologies and the advanced training

17

courses as well as in the intermediate and the junior courses.

Case

18

studies for the specific -- the case officers who are going to run

19

our office of CI operations.

20

CI from the investigations.

21

perspective as they are trying to figure out how to learn to do a CI

22

offensive -- learn how to do an offensive CI operation.

You really can't separate the offensive
So I always give them the investigative

9487

13046

1
2

Q.

And, sir, how often overall do you actually teach in the

field of counterintelligence?

3

A.

Now it's only about every quarter, two times every quarter.

4

Q.

And, sir, who are the typical students that attend these

5
6

courses?
A.

They're either the advanced students getting the advanced

7

investigative training or they're the basic students who are coming

8

and getting basic investigative training.

9

Q.

Sir, you've mentioned twice now you've served as Chief of

10

Training at JCITA, what were your duties and responsibilities and

11

duties as the Chief of Training at JCITA?

12

A.

Other than managing the work force, it's working with all

13

the CI executors, seeing what their training needs are, what are they

14

seeing, what do they need their special agents to be able to do, and

15

insure at one training location we're meeting the requirements of all

16

of the DoD customers.

17

Q.

Sir, what civilian education have you received?

18

A.

I have a bachelor's of management from University of

19

Maryland University College and a master's in interdisciplinary

20

management.

21

Q.

Sir, would you describe your experience of almost 30 years

22

in counterintelligence intelligence as common for most CI

23

professionals?

9488

13047

1

A.

No.

2

Q.

Why is it not common, sir?

3

A.

All the time within the Army at the Army Foreign

4

Counterintelligence Activity that was the one place where the Army

5

would have a dedicated investigative element.

6

investigations that are going around, but the ones that are deemed

7

significant where you would need the trust in the individual that had

8

the skills, since they were all done in one place, I was lucky that I

9

had an opportunity to be in that organization for so long and only

10
11

There's a lot of

focus on the significant investigations that the Army had.
Q.

Sir, in an unclassified manner, and how many CI

12

professionals do you estimate there are within the Department of

13

Defense?

14

A.

A little over 3,000.

15

Q.

And approximately how many people across the Department of

16

Defense would you estimate have the same level of experience that you

17

have in investigations operations?

18

A.

Less than ten.

19

Q.

Why is that, sir?

20

A.

Well, I guess on the good side there's just not a

21

significant amount of significant espionage investigations that are,

22

that we have across the Department.

23

the end of 2006, I have a pretty good idea of the folks that work

9489

Having seen all of them since

13048

1

those, the lessons learned from those, and actually the ones that

2

would be considered significant where they ended in arrest and just

3

by luck of assignment, few people have the opportunity to work in a

4

dedicated organization like I did.

5
6
7

Q.

And, sir, you just said having seen since 2006.

Could you

please explain what do you mean?
A.

As having visibility over all the significant

8

investigations within DoD, and being an investigator at heart, I

9

would have specific knowledge of all of the things that are running,

10

how they're going, how they're going to end, are they going to be

11

resolved, are they going to be able to be prosecuted, so I would have

12

a very good idea of what's happening across all the DoD from an

13

investigative standpoint from counterintelligence and

14

counterterrorism.

15
16
17

Q.

Sir, is there a requirement for you to have visibility over

all of DOD counterintelligence investigation?
A.

Yes.

That division, there was a DoD directive and so all

18

the CI entities within DoD have to report up all of their CI

19

operations and all of their investigations into this one entity that

20

I led.

21

Q.

And, sir, you mentioned significant investigation.

22

Approximately how many significant investigations occur each year

23

across DoD?

9490

13049

A.

1

There's generally, in any given month there's between 150

2

and 200.

3

my desk that I would have visibility over.
Q.

4
5

Those come and go, so 200 to 300 a year would actually pass

And, sir, how many significant investigations have you

personally worked on as an agent in some capacity?
A.

6

Significant counterespionage investigations was about 40,

7

and then there were seven others where I was the co-case agent,

8

supportive agent of seven others that ended up with arrests and

9

prosecutions.
Q.

10

And, sir, on average, what is a counterintelligence

11

investigator, how many major significant cases do they see in their

12

career?

13

A.

Within the Army in my time, only the folks that were

14

assigned in the Foreign Counterintelligence Activity would ever have

15

an opportunity to work those.

16

capability, OSI does not, so there's just not a place where

17

significant cases are worked by one group of people other than in the

18

Army.

19

TC[MAJ FEIN]:

20

MJ:

21

TC[MAJ FEIN]:

And within DoD, NCIS has a similar

One moment, please, sir.

Okay.
Ma'am, at this point the United States would

22

continue moving forward on laying the foundation for Mr. Lewis's

23

expertise, but it would require a closed session based off of the

9491

13050

1

remaining questions, and pursuant to the Court's previous ruling,

2

Appellate Exhibit 550.

3

examine at this point and cross-examine also during the closed

4

session, we could go there first.

5

MJ:

6

ADC[MAJ HURLEY]:

Defense, how would you like to proceed?

7

this session.

8

MJ:

9

All right.

proceed into the closed session?
TC[MAJ FEIN]:

11

ADC[MAJ HURLEY]:

12

MJ:

Yes, ma'am.
Thank you, ma'am. Ma'am, may I begin?

Yes.
CROSS-EXAMINATION

13

15

Ma'am, we would like to cross-examine in

Why don’t we do open cross-examination and then

10

14

However, if the defense wants to cross-

Questions by the assistant defense counsel [MAJ HURLEY]:
Q.

Mr. Lewis, I'd like to begin my examination of you with the

16

same admonition that Major Fein did.

Please stop me if I approach

17

saying something that's classified, all right?

18

A.

Okay.

19

Q.

And just tell me directly if I ask you a question that

20

calls for a classified response, all right?

21

A.

Okay.

22

Q.

I'm going to use the expression valuing a lot.

23

A.

Okay.

9492

13051

1
2

Q.

When I say that, I mean valuing an object for its monetary

value.

3

A.

Okay.

4

Q.

Like if someone wanted to buy it.

5

A.

Okay.

6

Q.

Like a foreign intelligence service.

7

A.

Okay.

8

Q.

Like a foreign intelligence service from a person that had

9

a classified document.

10

A.

Okay.

11

Q.

Do you understand the context of value?

12

A.

Yes.

13

Q.

Do you recall a conversation that we had on Friday?

14

A.

I talked to you on Friday, yes.

15

Q.

And you talked to me and Mr. Cassius Hall on Friday?

16

A.

Okay.

17

Q.

Do you recall that?

18

A.

Yes.

19

Q.

Do you remember telling me and Mr. Hall that you did not

20

consider yourself an expert at valuing classified information when

21

first contacted to be a witness in this case?

9493

13052

1

A.

I remember telling you, that you asked me what, could you

2

provide me a document and I tell you what that document is worth.

3

did say no.

4
5

Q.

I'm just going to ask the question again, all right, Mr.

Lewis?

6

A.

Yes.

7

Q.

Do you remember telling me and Mr. Hall that you did not

8

consider yourself an expert at valuing classified information when

9

first contacted to be a witness in this case?

10

A.

Yes.

11

Q.

Anything change over the weekend with respect to that

12

I

opinion?

13

A.

No.

14

Q.

So you still don't think that you were an expert at valuing

15

classified information when you were first contacted to be a witness

16

in this case?

17

A.

No.

I think what I said was when you asked me if you gave

18

me a document, could I tell you how much that would be worth, and I

19

cannot tell you how much that document would be worth.

20

Q.

Okay.

21

A.

I could tell you what a foreign adversary would pay for it.

9494

13053

Q.

1

Do you remember telling me and Mr. Hall that you did not

2

consider yourself an expert at valuing classified information at that

3

time, that is to say, on Friday, the 28th of June, 2013?
A.

4
5

In the way that I just explained it where you said you give

me a document.

6

Q.

Right.

7

A.

Can you tell me what that's worth?

Q.

Right.

8
9

Yes, I remember saying

that.
What you remember saying is, yes, to that question,

10

that you did not consider yourself an expert at valuing classified

11

information at that time.

12

A.

Yes.

13

Q.

Thank you.

14

Anything change over the weekend with respect

to that?

15

A.

No.

16

Q.

Now, what I just heard Major Fein say is that they're going

17

to offer you as an expert in counterintelligence.

18

A.

Okay.

19

Q.

Is that right?

20

A.

Yes.

21

Q.

And they're also going to offer you as an expert in valuing

22

classified information for a foreign intelligence service, is that

23

right?

9495

13054

1

A.

Yes.

2

Q.

Now, Major Fein told me about that on Friday.

3

A.

Okay.

4

Q.

Was that after a conversation that you had with Major Fein?

5

Yes.

Did you indicate ----

6

A.

I don't understand the question.

7

Q.

On Friday did you speak with Major Fein?

8

A.

Yes.

9

Q.

Did you tell him that you would, instead of being referred

10

to as a value expert for classified information, instead of that, you

11

wanted to be known as a valuation expert for classified information

12

for a foreign intelligence service?

13

A.

No.

14

Q.

You didn't tell him that?

15

A.

No.

16

Q.

Mr. Lewis, ever taken any classes, civilian or military

17

classes in valuing classified information for a foreign intelligence

18

service?

19

A.

Don't believe that course exists.

20

Q.

It does not exist in the Department of Defense?

21

A.

A course?

22

Q.

Right.

23

A.

No, sir.

9496

No.

13055

Q.

1
2

And certainly if it doesn't exist in the Department of

Defense, it doesn't exist in the Department of the Army?

3

A.

Not that I'm aware of.

4

Q.

Because you've partnered so extensively with your federal

5

law enforcement partners, are you aware of any class that discusses

6

valuing classified information for a foreign intelligence services?

7

A.

A class?

8

Q.

A class.

9

A.

No.

10

Q.

Do you know of any person who holds himself or herself out

11

as an expert in the field of valuing classified information for a

12

foreign intelligence service?
A.

13

I can't speak to that.

There's a lot of people that have

14

the same knowledge I have of knowing through their experiences what a

15

foreign intelligence service would pay for it.

16

Q.

You've been in counterintelligence for 29 years?

17

A.

Yes, sir.

18

Q.

Anyone hand you a card that indicated that they were an

19

expert at valuing classified information for foreign intelligence

20

services?

21

A.

No.

22

Q.

Receive a lot of business cards in your 29 years on this

23

job?

9497

13056

1

A.

Yes.

2

Q.

Let's get back to your education.

Ever taken any classes

3

offered by a civilian company in valuing any information for a

4

foreign intelligence service?

5

A.

No.

6

Q.

Ever take any classes offered by a civilian company in

7

valuing information for anyone, period?

8

A.

Restate the question.

9

Q.

Sure.

10

Ever take any classes offered by a civilian company

for valuing any information?

11

A.

No.

12

Q.

Nothing in college?

13

A.

Nope.

14

Q.

Nothing in your master's program?

15

A.

Nope.

16

Q.

Ever receive any military instruction in valuing -- I think

17

we've already covered that.

Let me skip ahead.

Did you ever receive

18

any military instruction in valuing information for anyone, valuing

19

any kind of information for any kind of?

20

A.

No.

21

Q.

That wasn't covered in your counterintelligence basic

22

course?

23

A.

No.

9498

13057

1

Q.

Not in your advanced course?

2

A.

No.

3

Q.

Not in this joint program that you're talking about?

4

A.

No.

5

Q.

Not at FLETC?

6

A.

No.

7

Q.

Not at the Federal Bureau of Investigation?

8

A.

No.

9

Q.

It was never the subject of any training that you

10

personally gave?

11

A.

Training, no.

12

Q.

Never been covered ever in any military class that you've
We're talking about the value of classified

13

received or taught in?

14

information for foreign intelligence services.

15

A.

The information, we determine the value of information by

16

what we know through operations that they do and what we learn

17

through investigations, so there's no training per se, that's the

18

experience part of it.

19

Q.

Right.

And we'll talk about your experiences.

20

A.

Okay.

21

Q.

I'm still talking about training.

22

A.

Training.

9499

13058

1

Q.

Ever been covered ever in any class you've ever taken or

2

taught?

3

A.

Not in that way, no.

4

Q.

The next questions apply to your professional experience in

5

counterintelligence.

The previous conditions about valuing for money

6

for someone to buy it still apply, all right?

7

A.

Uh-huh.

8

Q.

Have you ever valued classified information -- have you

9

ever done it in the first place, like -- let me restart this whole

10

line of questioning, Mr. Lewis.

11

counterintelligence, correct?

There are two basic areas of

12

A.

Like?

13

Q.

There's the investigations side of counterintelligence?

14

A.

Okay.

15

Q.

And then there's the offensive side of counterintelligence?

16

A.

Yeah.

There's a couple others, but that's the two major I

Okay.

Thank you.

17
18
19

There is -- Yes.

would say.
Q.

Ever held a job where all you did was

offensive counterintelligence?

20

A.

No.

21

Q.

So you've never exercised the skill in the first place

22

during the pendency of an investigation of valuing classified

9500

13059

1

information for a foreign intelligence service for the purpose of

2

that investigation?

3

A.

I couldn't think of how that would, no.

4

Q.

So you've never done it?

5

A.

Please restate that then.

6

Q.

For sure.

7

MJ:

I'm confused too a little bit.

8

ADC[MAJ HURLEY]:

9

Q.

You've never been an offensive counterintelligence agent?

10

A.

As a case officer?

11

Q.

Right.

12

A.

For offensive counterintelligence?

13

Q.

Right.

14

A.

No.

15

Q.

You never have?

16

A.

No.

17

Q.

And as I understand it, those offensive counterintelligence

18

Ma'am, I apologize.

agents have cases?

19

A.

Operations, yes.

20

Q.

Right.

21

A.

Yeah.

22

Q.

And as a part of that, it may call on them to value

23

classified information for a foreign intelligence service?

9501

13060

1

A.

No.

2

Q.

It would not call them to do it?

3

A.

I wouldn't consider the case officer valuing the
Normally the foreign service office values the

4

information, no.

5

information, they're the ones that determine the value to them.
Q.

6
7

For want of a better word, Mr. Lewis, the bad guys do

that, don't they?

8

A.

Yes.

9

Q.

Ever testified before?

10

A.

As a fact witness, yes.

11

Q.

So when you say as a fact witness, you mean you've never

12

been accepted as an expert in counterintelligence by a court?

13

A.

That is correct.

14

Q.

And you've never been accepted as an expert in valuing

15

classified information from a foreign intelligence service by any

16

court?

17

A.

That's correct.

18

Q.

Do you subscribe to any journals that are dedicated to the

19

valuing of classified information?

20

A.

No.

21

Q.

Do you know if any exist?

22

A.

I do not know if any exist.

9502

13061

1
2
3
4
5

Q.

Do you subscribe to any journals that are dedicated to the

valuing of information period?
A.
Q.

Not DoD classified information.
Go to any conferences that are dedicated to the valuing of

classified information?

6

A.

Not specifically addressed that way, no.

7

Q.

Ever seen a valuation expert, and this is any way, have you

8

ever seen any valuation expert give a presentation of any sort?

9

A.

U.S. expert?

10

Q.

Yeah, U.S. expert.

11

A.

No.

12

Q.

Let's step away from value for a second.

13

To solve

problems, Mr. Lewis, professionals employ methods, right?

14

A.

Yes.

15

Q.

Would you agree with that concept?

16

A.

Yes.

17

Q.

And professionals can disagree about the reasonableness of

18

those methods, would you also agree with that, in your personal

19

experience?

20

A.

Yes.

21

Q.

Okay. Let's go back to value now.

22

Do you know what methods

a valuation expert would use to come to his or her conclusions

9503

13062

1

regarding value?

How would they value the information?

2

what methods they use?

3

A.

Who is they?

4

Q.

I'm sorry.

5

Do you know

Let's talk about experts at valuing classified

information for foreign intelligence services.

6

A.

U.S. experts?

7

Q.

Right.

8

A.

All right.

9

Q.

Do you know what methods that those individuals might use

10

That's what I'm talking about.

to determine value?

11

A.

Yes.

12

Q.

Do you have any way of grading whether or not those methods

13

are reasonable?

Do you know if those are reasonable or not?

14

A.

I guess it depends on what they base it on.

15

Q.

It may be unreasonable?

16

A.

Could be reasonable.

17

Q.

Yeah.

18

Could be reasonable too, but it also may be

unreasonable?

19

A.

20

decide that.

21

Q.

Have you ever heard the expression a thief's market?

22

A.

I think when you asked me that it was no, and it's still

23

I'd have to know what they're basing it on before I could

no.

9504

13063

1
2

Q.

All right.

Mr. Lewis, this is not the first time we've

met, is it?

3

A.

No.

4

Q.

We met in your office once?

5

A.

We did.

6

Q.

And that was in December of 2012?

7

A.

I'll believe you on that.

8

meeting in my office.

I don't remember -- I remember a

I wouldn’t remember it was December.

9

Q.

I was there and Mr. Hall was there as well?

10

A.

I remember him as well.

11

Q.

Do you remember telling me about your experience as an

12

investigator?

13

A.

Not specifically, no.

14

Q.

Let me rephrase that question.

15

Do you have any independent

memories of the conversation that we had at all?

16

A.

Not really.

17

Q.

We had a subsequent conversation in May of 2013?

18

A.

Yes.

19

Q.

And that was at Mr. Cassius Hall's office?

20

A.

Yes.

21

Q.

And that was in May of 2013?

22

A.

I think I just changed jobs, yeah.

23

Q.

So would that have put it in about May of 2013?

9505

13064

1

A.

I believe so, yes.

2

Q.

Do you remember telling me at this second interview that

3

there was no price list for classified documents?

4

A.

No.

5

Q.

Do you remember telling me that there was no way, to use

6
7

your words, to value a document that you had been handed?
A.

In the scenario that you painted where you give me a

8

document, I tell you how much it's worth; I remember that

9

conversation.

10
11

Q.

And the answer was no.

We also talked on Thursday of last week; do you recall the

substance of that conversation?

12

A.

Some.

13

Q.

Do you remember telling me that you've never managed

14

It was a lot of, a lot going on last week.

offensive counterintelligence operations?

15

A.

I do remember that.

16

Q.

Not one case?

17

A.

One operation.

18

Q.

You haven't managed one operation?

19

A.

No.

20

Q.

For one day?

21

A.

No.

22

Q.

And you remember -- or do you remember telling me and Mr.

9506

13065

1

Hall on Thursday of last week, and I quote, “the adversary values the

2

info”?

3

A.

4

ADC[MAJ HURLEY]:

5

MJ:

6

ADC[MAJ HURLEY]:

7

We did talk about that, yes.

Yes.
Ma'am, we have an offer of proof that we

would like to make once we move into closed session.

8

MJ:

9

TC[MAJ FEIN]:

10

Ma'am, if I may have a second.

MJ:

That's fine.

All right.

Any redirect in open session?

No, ma'am.
Is there anything else we need to address in

11

open session before we close the Court for the classified portion of

12

this witness's testimony?

13

TC[MAJ FEIN]:

No, ma’am.

The United States offers for way of

14

administration and we move forward, and if after the parties litigate

15

the Court does qualify Mr. Lewis or accepts him as an expert, that

16

the United States would then elicit his testimony in a closed

17

session, and then also elicit his testimony in an open session to

18

summarize that.

19

MJ:

All right.

So the closed session to determine the

20

expertise issue, then depending on the Court's ruling on that should

21

there be any further testimony by the government, that would also be

22

in closed session followed by the open session testimony, is that

23

what I’m understanding?

9507

13066

1

TC[MAJ FEIN]:

2

MJ:

3

ADC[MAJ HURLEY]:

4
5

With a recess in between, yes, ma'am.

Defense?
Yes, ma'am.

We have no problem with that

course of action.
MJ:

Is there anything else we need to address?

I do want some

6

estimate of time so I can tell the public and the press when we

7

approximate coming back.

8

TC[MAJ FEIN]: May we have a moment, Your Honor?

9

MJ:

10
11
12
13
14

Yes.

As you're having your moment, understanding that this

is an approximation.
TC[MAJ FEIN]:

Ma'am, the United States estimates two hours

between opening, closing and any litigation on his expertise.
MJ:

All right.

So we would be then coming back into open

session approximately 1630, or do you want to say 1700?

15

TC[MAJ FEIN]:

1630, ma'am.

16

MJ:

17

ADC[MAJ HURLEY]:

18

MJ:

Defense agree with that?
Yes, ma'am.

So what we're going to do now is we are going to recess the

19

open portion of the court and then proceed into closed session.

20

parties have advised the Court that we'll approximately be going back

21

into open session at 1630.

22

advise the bailiffs to advise the press and the public that that

Should we go beyond that, I'll try to

9508

The

13067

1

schedule may change by a half an hour or an hour, whatever it happens

2

to change to.

Is that acceptable to the parties?

3

TC[MAJ FEIN]:

4

CDC[MR. COOMBS]:

5

MJ:

6
7

All right.

Yes, ma'am.
Yes, ma'am.
Is there anything else we need to address

before we recess the court?
TC[MAJ FEIN]:

No, ma'am.

8

[The witness was temporarily excused, duly warned, and withdrew from

9

the courtroom.]

10
11
12

MJ:

Court is in recess.

[The court-martial recessed at 1422, 1 July 2013.]
[END OF PAGE]

9509

13068

Pages 9510 through 9656 of this
transcript are classified
“SECRET”. This session (1
July 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.
Pursuant to AE 550, the
unclassified and redacted
version follows.

13069

[The court?martial was called to order at 1453, 1 July 2013.]

MJ: Court is called to order. Let the record reflect??

well, Major Fein, go through to see who is here and the witness

is on the witness stand.

This is a closed session.

Yes, ma?am. This session is classified at

the level. All parties when the Court last

recessed are again present. Sergeant Coates, the Court's

paralegal is present. The members of the prosecution team,
including the security experts and members of the defense team,
including the security experts are in the gallery along with
security, Your Honor. Prior to the start of this session, the
Court Security Officer completed his checklist and that will be
filed in the post trial allied papers.

and I'll announce this

MJ: All right. Before we begin,

again in the open session, the Court has completed its review
and I haven't formally authenticated it yet, but I completed the
review of the session of the closed transcript??the closed
hearing with Special Agent Shaver on the 26th of June 2013. So
I am handing it back to the court reporter. That session is
ready to go to the next phase, the classification review of the
expedited transcript.

Any other issues with that?

No, ma?am.

9510

13070

MJ: Okay.

No, ma?am.

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

proceed?
No, ma'am.
No, ma'am.

MJ: All right. Major Fein?

DANNY LEWIS, civilian, seated at the witness stand, was reminded

of his previous oath, and testified as follows:
REDIRECT EXAMINATION

Questions by the trial counsel[MAJ
Q. Sir,

earlier you testified about five Cl funotions.

I'd like you now to focus on two of the functions; first,

investigations. What are examples of investigations?
A. Cl investigations?
Q. Yes.
A. They go??run the range of everything from allegations

of espionage down to failed polygraphs, classified information

being mishandled, other types of reports of activity of people

who have a security clearance that are still being looked at

from a security standpoint, as well.
Q. And sir,

over your career how have you been involved

in oounterintelligenoe investigations?

9511

13071

A. When I was in the 527th, that is where we basically

handled everything that come into the office. So it was??if it
was a report of someone who had made a suspicious activity
report we would follow up on that and conduct that investigative
activity. We did all of the background investigations of all of
the military folks who were in the military community where I
was responsible for. We did all of their background
investigations.

At that time the Defense Security Service??the

Defense Investigative Service, basically, had the military did

all of the background investigations overseas. From there and
that was just a lot of interviews of everyday CI activities.
After that when I got to we specialized in the significant
espionage investigations that the Army determined were based on
the allegation or the reporting??most likely, espionage was
happening and we had to resolve that.

Q. And sir, how did the exchange of money for government
information play a role in these investigations?

A. Money is one of the two things that we look for the
most.

Normally, most foreign intelligence organizations pay for

classified information. So if an individual that??there is an
allegation that he or she is committing espionage or has
committed espionage, we would spend a lot of our time focused on

the background of the finances of that individual looking for

the anomalies that fit on the
3

those unexplained affluence,

9512

13072

financial side to possibly prove that someone had been involved
in espionage.
Q. And sir, could you explain, please for the Court,

specifically what it was that you investigate in terms of money

changing hands?

A. I am not sure I understand the guestion.
Q. Yes, sir. You just testified in general how money
plays a role. And, what was your role? What were you using or

how did money come up in your purview as an investigator?
A. As far as conducting analysis of financial records,
both credit card records,

bank records, anything that had to do

with the individual; all of those were laid out and we conducted
a financial analysis. What was the normal pattern of spending
for an individual and his or her family; and then we would look
for the patterns that did not fit the normal that we had
determined based on that individual.

at the 527th and then as a

Q. So in your time, sir,

military and civilian member of how often did the exchange
of money come up in these types of cases?
A. Just about always. 95 percent of the time, I would
say.

Q. And sir, what type of foreign intelligence services

were involved with these types of investigations?

9513

13073

A. The ones that I had experience with, my experience was

so I'll

throw all those in. But, all

Q. And sir, what was the classification of the different

types of government information that exchanged hands for money?

A. Top Secret, Secret, Confidential, Unclass sometimes as

well.
Q. What position??sir,

in that position you held up until

last month, what was your role regarding investigations?

A. Visibility over all of the investigations that were
being conducted in every entity with with the military
and the with those cases

services, the Defense Agencies,

that involved My role was to make sure I would review
those and see how they were going and as things became
significant there, something where there was going to be an
arrest, there was a media exposure,

or overseas. Those are the things
that I would review and ensure that we made part of the
briefing up to the USDI.

Q. Sir, what do you mean by visibility??that you had
visibility of?
A. Well, all of the entities reported in to my

office. So part of the briefing was to ensure??review

5

9514

13074

those activities. What was happening in any of these?these are
a month to month snapshots in ongoing investigations and ongoing
operations.

Q. Sir,

was it a regulatory reguirement for all of these

counterintelligence entities to report to your shop?

A. Yes.
Q. What reguirement did that come from?
A. It's the 5240.2. It's the Cl

activities and it lays out in detail the types of investigations
that were reported.

Q. And sir, why was it your responsibility to oversee
this?

A. I was responsible for ensuring that the Under
Secretary of Defense for Intelligence and the Deputy
Undersecretary had visibility on the things that were issues
within their counterparts??service secretaries. If something
had to go to Congress??if there was an issue overseas. My
responsibility was to make sure that as the Under Secretary of
Defense for Intelligence, he had egual knowledge of those
issues.

Q. And sir, over how many significant investigations do

you estimate that you have had personal visibility while at

A.

9515

13075

A.
Q. Sir, how did your experience in your previous job at
DIA differ from your previous roles as a CI Agent?

A. As a CI Agent I was more focused specifically on Army
equities. So my visibility was what was happening within the
Army with the specific investigations that I was the case agent
on or were assisting other case agents on.

Q. Sir, now I'd like to focus your attention on the fifth
What are

CI function you mentioned which is operations.

examples of CI operations?

A. Offensive CI Operations
Q. And sir,
A.

9516

And sir, what do you mean by

Those are a11??those are

Sir,

It depends on the requirement.

Sir,

is it accurate to say that

9517

13076

focused on

Sir,

operations?

A.

The

what is the purpose of counterintelligence

9518

13077

What is someone

Are you
I am.
Have you
I have.

Was that your



I am sorry. Go ahead, sir.

the investigative side of being

Sure, sir. And what was your primary specialty?

Counterespionage investigations.

So not necessarily

10

9519

13078

what

Sir,

Yes.

Why?

13079

does your work involve using the same skills

From the investigative side we use

Sir,

earlier you mentioned that you've helped

Could you briefly explain for the Court

11

9520

13080

Q.

A. In an investigation, that is one of the elements of
espionage. It's providing defense information to a foreign
national. So we?re??from the investigative side that is what we
need to know. We need to know what was compromised by that
person who committed espionage so we can go back and determine
what is the damage; what is the long?term damage to So

that is what we are trying to focus in, is what did you provide.

12

9521

said,

Q.

13081

Yes.

And sir, what did you mean just now??ear1ier when you

What do you mean by that?

13

9522

13082

Q. And sir, have you worked directly with case officers?

A. All of the time. Yes.

Q. And could you explain for the Court how you directly
work with case officers?

A. From the standpoint of when I was in the Army, as I

stated before, we were in the same group. If the
actually created an organization
which would support that where you have the case officer and the
investigators
In my role as the Chief of the

Counterespionage Division, as individual operations were
identified to be briefed to the Under Secretary of Defense, it
was almost I would reach out to the field, to the case
officers through the Headquarters if I had specific questions or
I needed information to round out my briefing to the USDI.
Everything doesn't always make it into the report. If it is
significant enough for the USDI it was significant enough for me
to reach out and make sure I had the nuance there that was
really significant.

Q. Sir,

how many years have you had direct oversight of

offensive counterintelligence operations?

14

9523

13083

A. Almost 7 years. Well, until this past May. Not
anymore.
Q. Sir, over the course of your career how many offensive

CI operations have you been involved with or had visibility

over?

A.

Q. Sir, what do you mean by??Very briefly, what do you
mean by

A.

Q. And sir, did you have a requirement to report those

types of operations higher?
A. lf??yes. If it was??why it was failed was deemed to

be significant by the executor of that operation,

15

9524

13084

ll

Q. Sir, when you said we what is your role in the we
for your organization?
A. My role was to ensure that the

So as the DOD entity sitting
atop all of those stove pipes, it was my responsibility to make
that

Q. Sir, now I would like to focus your attention on the
foreign intelligence services that you've been briefly speaking
about and your knowledge about them. What kind of information

is generally sought by foreign adversaries through their

intelligence services?

16

9525

13085

A.
Q. Is it limited just to classified information, sir?
A. Mostly. If it is unclass, they normally??there is a

lot of other types of ways that a foreign entity will collect
information. But there are times??if it's an FOUO document
something specific that is handled compartmentalized or it just
Yes.

hasn't made it to the media, it can be unclassified.

Q. And sir, in your experience, how do foreign

intelligence services attempt to acguire U.S. Government
information?
A. They look for people within the government who would

be willing to compromise that information to them.

Q.

17

9526

the only one you can think of off hand,

Yes.

And what about classified, sir?
Yes.

How do you know that?

That is one of the primary things we get

Who is ?they??

The foreign intelligence service.

18

9527

sir?

13086

13087

Q.
A. I am not sure I understand that question.
Q. Yes, sir. I'll move on, sir. Sir, how many guarters?

?you mentioned earlier that you provide a report to Congress on

these types of operations?

A. Yes.
Q. How often did you provide that report?
A. Every guarter since December of 2006. So that is

about 27 quarterly reports that I was responsible for getting to
Congress on time and accurate.

Q. Sir, what was your actual role in those reports?

A. The actual military executors of the operations report
that information??reported that information into my office and I
was the one that would sign off on that, that the information in
there is accurate and it fits what we've seen as we see all of
the operational activity that was ongoing.

Q. Sir, throughout all the training you received or
given,

what was taught about the role of money in

counterintelligence investigations

19

9528

13088

A. In the training as a case office, it is something that

we strive to do. That is where you know historically people who

have been charged and convicted of espionage got a lot of money

for that.

And in an

investigation, that is big. That is one of the things that we
can actually see over time as someone starts getting more money
into their accounts than they should be earning through all the
ways that we do that, that is what keeps us moving and that
actually allows us to get additional investigative authorities
along the way because it is actually considered a pretty
significant thing when there is unexplained money in someone?s
banking account and there is a serious allegation of espionage
against that individual, as well.
Q. And sir, in those cases that money does exchange
hands, what factors determine the value of the information to
those foreign entities or foreign intelligence services?
A. Historically,

it is mostly classification has the

biggest impact. Obviously someone providing Top Secret

20

9529

information,

A. Yes.

Q. Could you explain,

air?

21

which is something the U.S.

9530

13089

Government would really

you know that,

Sir,

sir?

the office that you were in or you were

13090

That I was in charge of before I left for my new job.

Yes, sir.

Sir,

do foreign intelligence services pay

for unclassified information?

A.

Q.

They do.

And how do you know that?

I had a couple of cases,

And air,

22

9531

13091

Q. Sir, is there a open and free market to sell and buy
U.S. Government information?

A. No.

Q. Is there like an Amazon or Wal?Mart to sell government
information?

A. No.

Q. Sir, to the best of your knowledge and experience is

there an illegal buyer's market that foreign intelligence
services use to buy government information?

A. I would say that is the methodology most professional
intelligenoe organiZations??they are looking to stealing it, and

they are trying to get from someone who is inside and can get

their hands on it.

23

9532

13092

Objection, Your Honor.

MJ: Yes?

Hearsay. He is not qualified as an
expert yet, ma?am.

MJ: Overruled. Go ahead. He is developing a foundation;

that is what I am considering it for at this point. Go ahead.

Yes, ma?am.

[Examination of the witness oontinued.]
Q. Sir, based

I will ask the question again. In general,

24

9533

Yes.

And sir,

sir. And sir, with was that with

what factors go into you assessing the cost

of the information that

the

I am not sure I understand the question.

Sir,

what factors are you considering when assessing

25

9534

13093

9535

13094

80,

Sir,

speaking of

27

9536

13095

secret?

A.

Q.

A.

Q.

and below?

A.

13096

Sir, does that include?you used the term ?tippy?top

information or

That was probably a bad word.

Yes, sir. So??well, not a bad word, air

Top Secret.

that include Top Secret or is that for Secret

28

9537

13097

Q. Sir, why does the United States Government keep

sensitive unclassified and classified information outside of the
hands of foreign intelligence services?

A. We have a whole classification system that we try to
use to protect our information from getting into the wrong

hands.



Q. And, what entity??when you said we what entity owns

that type of information?

A. The U.S. Government.
Q. I am sorry. Is that your answer, or were you asking a
question?
A. The U.S. Government.

29

9538

expert

types of U.S.

A.



offers Mr.

13098

Okay, sir.
That was phrase as??my apologies.
No. I am sorry, sir. Sir, do you consider yourself
in Valuing what foreign intelligence services pay for
Government information?

Based on the visibility that I have

I would say yes.

Your Honor, at this time the United States

Lewis as an expert in oounterintelligenoe and the

30

9539

13099

value of government information to foreign intelligence

services.

Ma?am the defense objects; inadequate
foundation.

MJ: Hold on, just a minute. In valuing?

Ma?am, in the value of U.S. Government

information to foreign intelligence services. Just to note,

ma?am, not in classified information. It is government, U.S.

Government information.

MJ: All right. Defense, do you want to continue to voir

dire this witness? I am going to defer a ruling at this time,

pending your voir dire.

Yes, ma?am. We would like to continue

voir dire of this witness.

MJ: All right. Do you object to both an expert in

counterintelligence; do you object to that one?

Yes, ma?am.

MJ: All right.
MJ: I'll let you voir dire, but what is the inadeguate
foundation?

Ma?am, what I would say is I would just
offer??do an offer of proof real guick with respect to that.

MJ: Yes. That is fine.

31

9540

13100

All right, ma?am. With regard to his

expertise in oounterintelligenoe, generally, the defense would

object to Mr. Lewis? testimony as either being the product of

hearsay; things he has read, he is just coming in and dumping in
front of this Court that he is not going to offer an opinion on,
he is just going to say, ?Here is the information that I have

read.?

MJ: Well, this is a foundation for that expertise. What

he is going to testify before the Court as a fact finder has not
come out yet.

Yes, ma?am.

MJ: So, we are looking right now??do you object to his

expertise as??in oounterintelligenoe?

Ma?am, I guess, what I would like to do

is to do is the Voir dire first??our Voir dire for Valuation and
then after that is over, we

MJ: All right, just reoognize there is two distinct things
here; oounterintelligenoe and evaluation

Absolutely, ma?am. Absolutely, we
understand that distinction.

MJ: Okay.

32

9541

13101

RECROSS-EXAMINATION

Questions by the assistant defense counsel[MAJ

Q. Good afternoon, again, Mr. Lewis.

A. Good afternoon.

Q. Now we are going to talk about your knowledge of
offensive counterintelligence operations, actual operations. Do
you understand?

A. I understand.

Q. Everything you know about offensive, actual offensive

counterintelligence operations, you know because you've either

read it or have been told it. Is that correct?

A. No.

Q. Well what do you know about offensive
counterintelligence that you have not been read??or haven't been
told?

A. When I was in the Army, as an investigator we

Q. My mistake then, Mr. Lewis. At that point, I guess

you were reading information about offensive counterintelligence

operations, is that correct?

33

9542

13102

A. No. I am being told by the who is

running the operation the things that is happening in his

investigation.
O. Okay. So let me restate my guestion then, Mr. Lewis.
A. Okay.
Q. And we will just go??what we?ll do is we will break

out your experience in two phases.
A. Okay.
Q. If that's all right.
A. Okay.
O. First the investigatory phase?
A. Okay.
Q. And then the oversight phase?
A. Okay.
O. In the investigatory
A. Mm?hmm[indioating an affirmative response].
O. you knew about actual offensive

oounterintelligenoe operations, you knew either because you had

been to1d??you knew those things because you had been told those

things, is that correct?
A. Yes.
Q. Or
A. We11??go ahead.
O. Let me restate my guestion.

34

9543

13103

A. All right.
Q. Everything you knew, and this is the investigatory

phase of your

A. Okay.
Q. that you knew, you knew because you had
been told. Is that correct?

A. No. I don't agree with that. Experience comes from
all different types of activities that you are witnessing going

on. If you are sitting there and you are dealing with the

people
that know everything that is going on. So I don't understand.
Q. But he told you the information.
A. I am not the
MJ: Major Hurley, I am going to stop just for a minute
here. He has testified on the direct examination from the
government that he was involved with investigations; he was
planning on??
I am getting??you are pinning
him down to something that he is trying to not respond that way.
Sure.
MJ: Let him respond and dondoesn't
want to be in.


I won't, Your Honor.

35

9544

13104

MJ: All right.

[Examination of the witness oontinued.]

Q. Mr. Lewis, were you ever

A. I was never

Q. Were you ever an offensive oounterintelligenoe
A No,

Q. I apologize, sir.

A. No, I think we??I have oIearIy??I?ve never even

intimated that I was

Q. So your actual knowledge of these things comes from
what you've been told?

A. I wouldn't oharaoterize it that way. I've experienced

it. If you are sitting there in the middle of the operation and

you are getting ready??

That was not my role.

Q. Right. And you were not
A. I was not.
Q. Thanks, Mr. Lewis. Let's try this with respect to

your experience in oversight.

36

9545

13105

A. Okay.
Q. Everything that you learned in the oversight phase in
your career about actual offensive counterintelligence
operations, you learned from what you've read in those files.
Is that correct?
A. I would say mostly; mostly. Because there were??I did
interact with the military executors of that operation if there
were things that were deemed critical that I wanted to ensure
there would be that direct contact.

the USDI was aware; But you

are right. What allowed me to be in that position is the

experience I had that would be able to identify what was going

to be significant in that operation. But again, no, I did not

run the operation.
Q. Right. let's focus

So let's go with, on that phase

SOHIE HIOIE .

A. Okay.

Q. The oversight phase.

A. Okay.

Q. You would??you said there were



A. Yeah. I would??yes.

Q. Is that an accurate estimate?

A.

37

9546

13106

Q. Somewhere in that range?

A.

Q. Good. So you??in order to understand what was going


A. Yes.

Q. read the agent reports about any particular
investigation?

A. If it was an operation that I was going to brief. I

didn't read If an operation is

going I had a pretty good idea of what was

happening in that. If it was something that was new, maybe not
muoh??as much knowledge of that.
Q. So of those signifioant oases, what you would review

was a report from the agent?

A. The reporting from the field, yes.
Q. You didn't

A. Nope.

Q. You didn't

A. Nope.

Q. You didn't

A. Not per??not per??no.

Q.

38

9547

13107

A. Not??you mean

Q. Right.

A. No. Those don't exist.

Q. In your investigatory experience you've

A. Absolutely.

Q. But you never

A. You mean from

Q.

A. You mean in a??you talking about from the operations

standpoint?

Q. Right.

A. Yeah.

Q. Now, with respect to the information that you have

been told about??and this is??we are still in the oversight

phase of your career.

A.

Q.

Okay.

You

39

9548

13108

Q. You would only talk to that individual to further
develop your understanding for your briefing responsibilities?
A. Right.

But the case offioer wasn't responsible for

that either, okay. In that case, the case officer is responsible

for??the U.S. part of
Q. Right.

A. responsible for trying to guide so we can learn

as much of that possible.

Q. Right.

A. we understand, where we know what is going

on in

We verify that at

every stage of the game. That is the

true.

40

9549

13109

Sure. So just to make sure I understand, you never

pushed that??the individual whose report you are

A.

Q.

A.

Q.

Right.



What

That is what you would do?

No, no, no. No, no, no.

You wouldn't do that either?

What I am saying is no??none of us did that.

Right. You certainly didn't say,
No.

Or,

No. Absolutely not.

And you never independently verified the truth of the

facts that you were being told in these reports?

A.

system

agent.

is

To me that means that is true.

Well that is the foundation of the whole seourity
trust.

Sure.

So if an

So
That is a written report that is signed by a special

If a case officer is a

41

9550

13110

credentialed CI Agent and they are putting that name to that, I

take that as a true statement until I've seen otherwise.

Q. So again, just for my

A. Okay.

Q. You never independently verified the facts in the

reports that you've read?

A. I would have no reason to do that.

Q. So, no?

A. No. Trust.

Q. Let's talk about your preparation for this case. In

January of
A. Um?hmm [indicating an affirmative response].

Q. tasked a??one second, sir. I just want to
make sure that I get this name right.

MJ: Is it in January of 2013?
Yes, ma'am. I am more into??down in my
notes.

[Recross?Examination of the witness continued.]
Q. In January of 2013 you tasked is

that correct?

A.

Q. You asked her to do something?
A. asked her to do something.
Q. You asked her to pull an

42

9551

13111

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
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