Title: Volume FOIA 042

Release Date: 2014-03-20

Text: 13112

Volume 42 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

13113

A. I asked her to produce a report for me, yes.
MJ: What is an

WIT: Ma?am, the information
that is compiled and we refer to that as Essential

Elements of Information and we publish a report on that.

MJ: Proceed.

Q. And that report is published quarterly?

A. It is published quarterly.

Q. But you??but what you didn?t??you did not ask for one
of the quarterly reports, did you?

A. I did not.

Q. You asked for a snapshot of EEI information, is that
right?

A. I did.

Q. That snapshot was associated with the years 2008 and
2009?

A. Yeah.

Q. What were you were looking was??for a representative
sample?

A. I was. The EEI lists get voluminous over time. I see

them, I sign them out, I know what is there. To familiarize

myself, I wanted a report going back a few years to show me what

the foreign adversaries were looking for. And,

43

it was a sample

9552

13114

that took over a couple of years to create one report
for me.

Q. And you did that to prepare for your role as a witness
in this case?
A. I was going to testify about EEI. I wanted to feel

comfortable that yeah, I could say, ?Yes, I am responsible for
it,? but I also reviewed some of it so I wouldn't look like a
goof ball.

Q. Did you independently verify the information that

gave you?

A. I have no reason to do that. She is responsible for
preparing an EEI report and is a contributor to a report that I
send to Congress every guarter.

I am pretty oertain she gave me

what was out of the database. And, some of it I know to be

true. Even the stuff that is on the list, I would have known

that that was an EEI without the report.

Q. Now, that wasn't the only data?oall that you did
internal to your office, was it?

A. It is not.

Q. You asked did I get his

A. That's I can't for the first
name.

Q. So we will just call him

A. We will call him

44

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13115

Q. here on out. You asked to pull
some date for you?

A. I did.

Q. And that was according to what you told me today about
4 or 6 weeks ago?

A. I think we??we said it was right before we had met in


Q. With

A. with there in wherever that was.

Q. In May of 2013?

A. Right when I had just changed jobs. Yes.

Q. And, you pulled this document to inform your
testimony?

A. I did.

Q. As to specific countries?

A. Actually, what I asked for was a listing of over the

past years the most successful

and subsequent to that I realized, for me,

I only had one end of the spectrum. ?Give me some of the ones



that were the least successful So,

yes, there is three pages there.

Q. Now when you say, ?Least successful,?

A. Yes.
45

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was the

Yeah. Generally in

Right.

But in failing

46

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13116

13117

Q. Mr. Lewis, just so that I am sure??I am olear, you

never asked in this data?oaII with you never asked

for representatiVes??a representative sampling of failed

oounterintelligenoe?

A. I did not. I wanted to
Q.
A. Yeah, that is what I asked.

Q. Now, let's talk about your preparation to testify with

the government. This isn't the first time??today is not the
first day you met with Major Fein?

A. No.

Q. Today is not the first day you met with Captain Von
Elten either?

A. No.

Q. How many times prior to today would you estimate that
you have met with them?
[sio] Von Elten, onoe last week.

A. Prior to today, Major

I spent time with him last week, one day.

47

The good Major??yeah?

9556

13118

?Major Fein, met last week a couple of times. I met him once at

MDW. And I don't remember meeting him before that. And I can't

remember who I had met with before I met Major Fein. There was
one other lawyer that I met with once or twice.

Q. Right. What is the first??do you remember the first
day that they handed you one of the documents relevant to this
particular case; and the question is do you remember that day?
A. I would say it would have been last Tuesday or
Wednesday. it wasn't a

But, it was actually a database,

document at first.

Q. The first thing they showed you was something on a
computer?

A. Yeah. I reviewed

Q. Portion

A. State??the State Department??I don't know the

exact name of that.

Q. Right. So they showed you something on a computer
first?
A. I had an opportunity to do some keyword searches of

that database.

Q. Do you recall what keywords you used?
A. I do.
Q. What were they?

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9557

13119

A. I used

Q. What is the next thing you can remember looking atthe exact order

Q. That's fine.

A. the course of last Tuesday and Wednesday, I

was introduced to and the list of
people from over the??I can't remember the name but it had all
of I can't remember the
but??

exact name of that. I?m sorry,

Q. So by percentage, how much of your preparation have
you done in the last 5 days as a witness?

A. 60 percent. 70 percent. That?d be a toughy. I
don?t??I?ve thought about it since I've known I was going to be
called to testify. So that is??in my mind, I prepped a lot.

Q. Just imagining what was going to happen?

A. Just thinking what it??you know??what it would be?
What it would it entail?

Q. Now along with the other preparation you talked about,
you told me today that you have reviewed about 40 records from

the database?

A. Yeah.

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13120

Q. And that is??maybe a guarter of those records had

information that was, in your mind, responsive to something?

A. When I looked at that, yes.
Q. And you reviewed about 40 records from the
database?
A. I think a little less but yeah, around 36-40,

something like that.

Q. Maybe about a guarter of those, again, had information
that

A. I think for A, it was closer to a third.

Q. All right.

A. Of the few that I reviewed.

Q. And you reviewed about 10 to 12 I am sorry,

the 10 to

12 sound about right?

A. No more than that.

Q. Now, you had testified that you had used the data pull
from that you've used

A. Okay.

Q. that you have looked at that document?

A. Okay.

Q. And you've looked at the document from the data pull
from

A. I have looked at those. Yes.

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13121

Q. Both of those documents?

A. Yeah. I asked for them so I could look at them.
Q. And you've used those to prepare?

A. I have.

Q. Did you ever??to prepare, did you ever go back and

when you were still in the oversight role,

did you ever go back

to the offensive counterintelligence operations that

A. No.

Q. Just
were you going to say something?

A. Yeah.

I want to say, I mean,

operations

but when I used the stuff that
okay, as those types of things that are going on
consistent across EEI and a lot of those I could
But I like to have it??I like to see it. I want
I want to touch it.

So this is a representative

I want to know what was the

and just??just??okay.

Mr. Lewis,

I am aware of offensive

gave me,
that are

have told you.
to believe it.
of what we are

For

So I acguainted myself with

that. I could have speak??I could speak it just

off?the?cuff

and give you things that I have learned through my experience

51

9560

13122

through the years but I wanted to see it. I wanted to verify

that what I was going to say is accurate.

Q. All right. So let's talk about the off?the?cuff, the

potential off?the?cuff testimony. Now, can you testify that

A. Yeah.

Your Honor, objection. This goes to

actually after??if the witness is qualified as an expert it goes
to the actual substance of his expert testimony. Not whether he
is qualified, Your Honor.

MJ: Well, this where??this is what he is going to be
gualified??I assume based on what I am hearing then is the
witness going to go back and compare the old records for things
that these countries and look at what is in the
charged documents and make some sort of evaluation?



Well, the witness will make an evaluation

then, Your Honor, based off of the stipulation??his review of

the stipulation of expected testimony of certain witnesses as if
he was sitting in the courtroom and by looking at certain
documents; yes. We are not

But, that is his ultimate opinion.

at that stage yet to elicit that opinion.

52

9561

13123

MJ: Well, I understand that but the foundation is we've
got to establish a foundation that this witness can make that
opinion.



Yes, Your Honor.

MJ: And I believe that this is where you are going with

this, right Major Hurley?
Yes, ma'am.
MJ: I am going to overrule that for now.
Go ahead.
Yes, Your Honor.
Q. And you can do that from memory? The guestion was can

you testify that

information from the database prior to 1 June 2010?

A. I wouldn't call that memory. I would call it
experience.
Q. All right. So you can do that from experience?

A. I mean, when you??I read, I brief, I remember things

but specific EEI, there is just too many to remember. But I
know what
I know that
as a CI professional and having visibility over those things.
Q. Right. Mr.

Lewis, but I am asking you can you sort

your memory to say I am going to ignore everything that happened

53

9562

13124

after 1 June 2010? I am going to ignore it and I am only going

to Consider information from 31 May 2010 back in time?

A. Can I do that?

Q. Can you do it?
[Pause.]

A. I suppose I could.

Q. You suppose so?

A. I suppose so. I would have to think what specific
operations, that I may think of and where

were those; where were those in the timeline.

Q. Do you recall our meeting earlier today, Mr. Lewis?
A. I do.
Q. Do you recall that part of our meeting where I handed

you a document and I asked you to pretend that this document was
a gualifying record from the database?

A. I do recall that.

Q. Do you recall telling me what??just do you recall is
the guestion I am asking. Do you recall telling me what you
would say if your opinion was elicited as to whether
would be interested in that information?

A. I remember our oonVer??I remember what I said to you.

Q. Right. And what
A. I mean,

that was a big guestion and I don't know if

that fits what you are asking.
54

9563

13125

Q. Sure. It
A. Okay.
Q. a matter of fact. And you said, ?My response

to that question will be this appears to be in the or EEI.

So it would be something was interested in??

A. That is probably close to what I said. I probably
wouldn't have said it that way.

Q. But the

A. I probably would have based??I would have put
experience in there I am sure since I am using

Q. Right.

A. and my knowledge of would do


Q. Right.

A. operations that we do specifically to
determine that

Q. Sure.

A. I would apply that to information that I saw

in this fiotitious thing that you told me to look at.
Q. Right. But you also said you had mentioned as you

were going through

A. Right.
Q. EEI. That you
A. Okay. Okay.

55

9564

your experience and the EEI. Do you

recall that?

A. That is the??that is??yes.

Q. When it comes to

A. Mm?hmm[indioating an affirmative response].
Q.

A. Mm?hmm[indioating an affirmative response].
Q.

A.

Q. Sorry.

A.

Q. Yeah.

A. No, that is okay. The numbers get in my head too.
Q. Right. Me too.

A. I think the

Q. Right.

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9565

13126

13127

A. That is what I said I would say.

Q. That is what you've seen in the past,

A. That is what we've seen in the

yes. And are
Q. Mr. Lewis, just one second.
[Pause]

Q. Mr. Lewis, prior to your experience here as a witness-
A. Mm?hmm[indicating an affirmative response].

Q. you ever taken a classified document and put

a value to it?

A. No.

Thanks. Nothing further, ma?am.
MJ: Redirect on foundation?

Yes, Your Honor. One moment, please?

[The trial counsel conferred.]

I am sorry, Your Honor.

OF

57

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13128

REDIRECT EXAMINATION
Questions by the trial counsel[MAJ
Q. Mr. Lewis, a few questions in different areas. First,
regarding that snapshot that you've testified now about that

produced for

A. Mm?hmm[indicating an affirmative response].

Q. you explain, please, in just very general
terms, what that was?

A. The EEI are the individual themes, items, topics that

we learn about

Q. Sir, is it a list?

58

9567

Sir, so at the beginning you talked about the
information,

A.

Q. Okay, sir. How does your office receive this
information?

A. That oontaot report is sent electronically to my

offioe??my former offioe.
Q. That you were responsible for?

A. Yes.
59

9568

13129

13130

Q. Did it have a section or subsection within your

overall office that handled these types of reports?

A. Yes.
Okay?
Q. Sir, what was job for
you? What was primary responsibility and secondary?
A. She is responsible but because of the way the

office is, if you will. She is

responsible??she has other responsibilities other than the

Q. What do you mean by her thing is, sir?

A. Her responsibilities.

Q. Sir, was she responsible in your office to track this

information?

A. Yeah. She had

Q.

A. responsibilities:

60

9569

Sir,
referenced?

A.

Q.

A.

Q. Okay, sir. So,

received these reports?

A.

Q.

A.

Q.

The EEI reports?

what did

That what you

I am talking about the

And sir, have yo

EEls before for you?

A.

All the time.

ever required

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9570

how did she populate this database you've

do when she

to pull

13131

13132

Q. Can you explain for the Court, briefly, when in your
normal practice as the chief of the counterespionage section you
would have pull these reports?

A. She is the one that prepares the quarterly report that
goes out to all the customers. She prepares that report

based on all the data in our complete database.

Q. And just focused on
A. That is one of her responsibilities, yes.
Q. And sir, when you??what were the criteria you gave her

when she pulled the EEI list that you have referenced?
A. Give me a representative sample from a couple of
years; go back to '10. I told her a window. I didn't

?08, '09,

tell her She decided??she went to
all the different reports in that timeframe. She extracted
several of the EEI from some of the countries on there and
compiled a list for me.

Q. And, is that the list you relied upon that Major
Hurley??you just testified with Major Hurley?

A. Yes.

Q. Sir, what about the??could you explain for the Court
briefly what it is, the list you referred to that
pulled for you.

A. In my thinking, I know

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9571

wanted to know because of the EEI, the

in information,

Q. And sir, what database did that data pull come from?
A. That is the same database that houses
Q. And sir, have you ever asked before to

pull data for you from the database?

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13133

13134

A. He pulls??he is responsible for the??for giving me the
report that goes to Congress every guarter from
Q. Does that report that goes to Congress every guarter,

that you were responsible for, include data pulls?

A. Yes, it does.

Q. What type of information is included that get gets
pulled?

A. The military services report in their reporting for

that guarterly report. We oompile that with the information

that is already We will ensure

That is really where Congress

likes to focus, is

Q. And sir, is your briefing of that report relied upon
Government officials?

by our U.S.

A. It is. Yes. It

Q. Who speoifioally relies??has relied upon your
expertise of using these reports?

A. The aoouraoy of that report is the USDI that actually
stands in front of Congress four times a year with that report
and briefs them.

Q. Sir,

are you part of the DIA??well, are you aware if

64

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13135

A.
Q. You were, sir?
A. I've heard about it. I mean, I don?t??I couldn't tell

Q. Were you part of that
A. No. No.
Q. So sir, did you have any direct involvement in this

case before you were identified as a witness?

A. No.

Q. Or, specifically identified as an expert witness?
A. No.

Q. And sir, in your experience, have you ever seen a
A. As it pertains to:

Q. Yes, sir.

A. Yes. I've seen that

Thank you, sir.

No further questions, Your Honor.
MJ: Any further re?oross?

No, ma'am.

65

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13136

EXAMINATION BY THE COURT-MARTIAL

Questions by the Military Judge:

when

Mr. Lewis, I have a few questions.

Yes, Your Honor.
You talked about this EEI.
Yes, ma?am.

Am I understanding your testimony correctly to be that

when the reports come

back to

A.

Q.

databases

Mm?hmm[indicating an affirmative response].

people in your office who run these

Yes, ma?am.
And so they would add in some field that said,

how does that work?
ma?am.

No, In the way the report is written

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9575

Maybe I am still not understanding.

you testify that the

A. Yes,

back and we will lea

ma?am.

Each individual operation,

rn what,

13137

I thought I heard

they will come

Q. Now would you be able to tell from looking back, based

on your experience,

from looking back into these

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9576

would take that as, if they are

Okay.

If all of your

Mm?hmm[indicating an affirmative response].

68

9577

13138

13139

Q. If there is nothing in the database that addresses,

for example, information regarding a United Nations food

program, just to throw something out there.
A. Okay.
Q. Do you believe you are in some kind of a position to

evaluate what the

no, ma?am. I don't

think I could do that. We?re??l oan base it on what we know
they and the

result of that.

Q. Okay.
A.
Q. Okay. You testified earlier that 95 percent of

The espionage cases, the

person has been paid. Have you been involved in any

investigations where the person is??has basioally released

classified information or any espionage cases where the end goal

69

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was not to be paid more like you were talking about in
the philosophical?
A. Me,

as a case agent, I never had a case against

In my oversight roles, there were several cases against

that we were monitoring where we know that even as of late as

last year,

MJ: Any follow up questions based on that?

Not from the defense, ma?am.

No, ma?am.

MJ: All right. Do the parties wish oral argument on why
this witness should or should not be qualified as an expert in
the areas that the government wants to gualify?
Ma?am, we would like to have oral
argument.
MJ: All right.
Why don't we excuse the witness for that portion of
the closed proceeding?
Yes, ma?am.

[The witness was temporarily excused and exited the courtroom.]

MJ: All right.
70

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Ma?am, would it be possible to request a

comfort break first?

MJ: Yes. The government has got the burden here, so the

government should go first and then you should go seoond.

Yes, ma?am.

MJ: Okay.
Anything else we need to address at this point?

No, ma?am.

MJ: l630?

Sounds good, ma?am.

MJ: All right. Let me??before we do go on the break

though, I do want to talk about something. I am going to need
some time after oral argument to make a ruling on this.

Do you still want to go forward today, or do you want
to go forward starting tomorrow morning? I will need about an
hour.



Ma?am, we could go tomorrow morning. I

mean, looking at what time it is. If the Court needs another

hour??ma?am, may we just talk in the recess with the defense and

then we will get back to you once we come back on the record.
MJ: All right. Why don't we go ahead and do that.

Ma?am?

MJ: Yes?

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Just one thing. I know I am going to

reference a case, ma?am, in my argument. I printed one out for

you and for the government.

MJ: Thank you. May I have it please?
Yes, oertainly, ma?am.
MJ: Since we are not in reoess yet, we could just announoe

for the record what it is.

It is U.S. V. King, ma?am, the oite is 35
MJ 337, it is a 1992 Court of Military Appeals Case.
MJ: Once again, I am a fast reader but I am not that fast.

So I will need some time to read and digest the oral argument.

Ma?am, the government has some cases, as

well, and we will get it during the recess.
MJ: All right. I think I know where we are going with
this.

All right, court is in reoess until 1630.
[The court?martial recessed at 1617, 1 July 2013.]

OF

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13143

[The court?martial was called to order at 1700, 1 July 2013.]

MJ: Court is called to order.
Let the record reflect all parties present when the

court last recessed are again present in court. This is a

continuation of the closed session that we held earlier today.

Major Fein, is there any additions we need to??or,

anything we need to address regarding the closed session at this
time?

No, ma'am. This session is continuing to be

classified at the level.

MJ: All right. The parties have asked for oral argument

with respect to this motion which we will do now.
The Court had a brief 802 session with the parties and

we're going to go back on the record tomorrow at 0930, once

again, in a closed session. The Court will make its ruling with

regard to the qualifications of this expert and we'll continue

on, or not, in closed session following that. And, the parties

agreed, with the approval of the Court, that we would have a

public session at 11 o'clock??or on or about 11 o'clock or at
least that is what we'll tell the public it will be??at 11
o'clock tomorrow morning.

Anything further we need to address?

Ma'am, also, the United States did ask Mr.

Prather to notify the public, and he did so, that we will

73

9582

reconvene at 11 for the public session and

Office notified the members of the media.

MJ: All right.

Ma'am, if I may?

ACC: Yes.

Our objection to Mr. Lewis's

13144

the Public Affairs

testimony??

we don't object to counterintelligence??his expertise in

counterintelligence, generally. We would object to

it with respect to his experience with offensive
counterintelligence operations

MJ: All right, hold on just a minute. So you

to counterintelligence expertise, generally?

Yes, ma'am.

MJ: But you do object to?

counterintelligence operations.
MJ: All right.

entirety, to him as an expert in
MJ: So,
that?


Yes, ma'am.

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9583

Him as an expert in offensive

And we maintain our objection,

that part of

don't object

in its

you're objecting to

13145

MJ:

Yes, ma'am.

MJ: All right. Are the parties ready??I noted??oh, just

for the record, and I did note I have received several cases

from the parties to consider; one from the defense, United

States v. King, 35 MJ 337, United States Court of Military
Appeals, 1992. From the government, I have received United
States v. Hood, 12 MJ 890, U.S. Army Court of Military Review,

1982; Supreme Court of the United States, Kumho Tire v.

Carmichael, 119 Supreme Court 1167, 1999; U.S. v. Sims, 514 F.2d

147, Ninth Circuit, 1975; U.S. v. Harris, Court of Appeals for
the Armed Forces, 1997, and that would be at 46 MJ 221; and
United States v. Sanchez, 65 MJ 145, Court of Appeals for the
Armed Forces, 2007.

Is the Government ready to argue?

VON Yes, Your Honor.

MJ: Okay.

VON Your Honor, Mr. Lewis has specialized

knowledge regarding United States government information based

on his 36 years of government service, and, in particular, his

29 years of counterintelligence experience. With regard to its
appropriateness, because it's specialized knowledge outside the

purview of an average fact?finder, it should be??it is

75

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13146

appropriate for expert qualification. In terms of determining

the qualifications, Your Honor, CAAF discusses the flexibility

of expert analysis, applying the Daubert and Kumho Tire factors

in United States v. Sanchez. In that case, they cite Kumho

Tires? liberal application of the Daubert factors, noting that
not every factor has to be applied and that the military judge
has leeway in determining what factors she chooses to apply,
saying that the same level of intellectual rigor characterizes
the practice of an expert in the relevant field is the test.
And, in this case, Mr. Lewis has discussed, in?depth, his
experience with counterintelligence operations and
investigations and the types of information involved therein.
Furthermore, Mr. Lewis has testified he's one of the most??l0?
most knowledgeable counterintelligence professionals in
using the technigues employed by others similarly situated.
MJ: Let me just interrupt you there. The defense has

objected??has not objected to the expertise in

counterintelligence and his expertise, generally, so let's focus
on offensive counterintelligence.

VON Yes, ma'am.

MJ: I assume the defense objection is because he hasn't

personally done the investigations, himself, and is involved in

an oversight role?

ma'am.

76

Yes,

9585

13147

VON Well, ma'am, then I would point out

that, under United States v. Sims, if the information is the

type reasonably relied upon by an expert, then it's appropriate
for an expert to testify??to use that information as the basis
for his opinion. The rationale in favor of the admissibility of
expert testimony based on hearsay is that the expert is capable
of determining and assessing the reliability of the information
in United States

from which he bases his opinion. Furthermore,

v. Sanchez, the Court of Appeals for the Armed Forces noted that
"trained experts regularly extrapolate from already existing
data" which is what Mr.

Lewis has testified about and will

testify going forward that the

also, the specific information??types of

information involved in those operations with the various



MJ: Let me ask you something. Government, I'm still a

little confused on your focus on his value??you want him as an
expert on valuation of U.S.

info to foreign intelligence

service; that's a broad expertise. What, exactly, are you going

to have him do if I approve this and he gets up and testifies?

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What's he going to testify to, and about, and how is he going to

do it?

VON Your Honor, Mr. Lewis will testify

that, based on his experience and knowledge of oounter?offensive
investigations, that a
So, for instance, he will testify
that
in the and that??he

will then say, having reviewed certain documents that he found

the
MJ: How many countries is he going to talk about?
VON I believe he will talk about, in
particular,
MJ: So are the??so his expertise, then, can be confined to
right?

VON Yes, ma'am. He will also will??he's

also talked a little bit but that's not relevant to
his valuation.
MJ: That's my??my point is:

what does the government want

from this witness? I mean, this valuation of information??

VON The government wants to offer Mr.

Lewis to say that or

intelligence service would want this type of information. So,

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for instance,

For

he would talk

For

And,

MJ:

13149

for and Mr. Lewis will talk about

information in the Net Centric Diplomacy database,

about

GTMO, I believe Mr. Lewis will talk about

for the GAL, for instance, he will talk about

VON

MJ:

VON

MJ: All

What's

Sorry, Net Centric Diplomacy database.

right. Does the government intend to go beyond

those three countries with this witness?

VON

No, ma'am.

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MJ: Proceed.

VON And, furthermore, ma'am, under

Daubert, not applying all factors, but the information relied

upon by Mr. Lewis is reliable; the United States government

relies on it. Mr. Lewis briefs senior officials on that

information. He also briefs Congress on that information. That

is also similar to the fifth factor in the Hauser analysis.

This, also, is related to the fourth Daubert factor of general

acceptance within the relevant community, being the

counterintelligence community involved in
operations.

Also, ma'am, the??in Hood, the valuation of black-

market goods has been accepted and military jurisprudence.

Similarly, in Harris, documents??to address the defense's case,

also, ma'am, in King, the Court of Military Appeals said that

we??that a proper foundation was needed for the specific

information. In this case, Mr. Lewis has testified to

??that they have??that the foreign intelligence services

have given to these documents. In this case, Mr. Lewis relies

on reports, budgets, financial statements, the classification of

the documents, his training and education, and experience, in

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addition to the verification of the

Therefore, ma'am, because the United States government

indicates that this is reliable information and it's beyond the

purview of an average faot?finder, it's appropriate for expert

testimony and the United States government believes we have laid
a proper foundation for the specific information and the basis??

the speoifio information on which Mr. Lewis will rely??the basis

of that.

Finally, ma'am, Harris also stands for the proposition

that, with a proper foundation, hearsay or other information

relied upon by an expert is appropriate basis for expert

testimony??opinion testimony, in particular, pointing to 403's??

the analysis for that.
MJ: All right.
Major Hurley?

Ma'am, at the outset, do you have any

questions that you would like to ask?

MJ: Not at this point. Go ahead.

Ma'am, today, this??tomorrow would be the

day??the first day that Mr. Lewis has offered an opinion

regarding the valuation of a classified dooument??that he??that
this is not something that he is ordinarily??that he has not

ordinarily, has ever done before; that he's never said, "This

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document is worth this." And it's the position of the defense,

ma'am, that if you look at M.R.E. 702, as I know that you will,
that it's not based??the expert testimony is not based on
sufficient facts or data. Ma'am??and let me stop right there
and put a pin in it.

A concept that we're all familiar with, as experienced

military justice professionals, is the CID file. And what Mr.
Lewis talked about was??what he's relying on isn't the entirety
of the file??what you are??what anyone who has seen a CID file
would call the entirety of the file??he's just relying on the
agent investigative reports;

the communigue from the agent back

to say, "This is what's going on," that's it. Not all of the

interaction, not data,

that could inform this information,
just what the agent is saying back to HQ about what is going in
this particular offensive counterintelligence operation.

MJ: But doesn't what the government talked about??I mean,
if these reports??this is the data they're using to brief
Congress, they're using to??in all of their briefings and
reports to government officials, doesn't that say something
about its reliability?

Well,

ma'am, it certainly does say

something about its reliability, but not only is he just talking

about that??he's talking about??I recognize it does say

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something with respect to its reliability and something positive

with respect to that. But, he's talking about his memory of

those things, so it's not just the report, itself, but it's also

filtered through the brain?housing group of Mr. Lewis.

And not only is it filtered through the brain??just

those things filtered through, it's also the data call that he

asked for. January of 2013, knows he's going to have to be a

witness, so he tasks "Ma'am, would you do a data

call for me? What I'm looking for is"??the testimony that I

understood from??or the defense understood, ma'am, was from 2008

and looking for portions of the EEI that correspond
to these time groups."

And, once he gets closer in time to

trial, he realizes that??or he realizes that he needs yet more

information, so he tasks, as he can, to say, "Give

me the most successful oounterintelligenoe operations eVer??

and then he also says, "And give me the least
successful and by least suooessful what I mean is the
oounterintelligenoe for which we

not the ones that totally went south and ask for a brief
up on those??and by "went south," ma'am, that's a euphemism for
did not??I think the Court understands what I said.

And so it's??the suffioient facts are data because

it's in his memory and it's??the testimony isn't the product of

reliable principle and methods. He's applying his memory to the

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information that he's given; a person who's never done this

before, never been called upon to do it before. That's his role

now. "Here you go, Mr. Lewis. How are we going to value this

information and get the information to the trier of fact that,

in this case, she needs to make the important decisions that she

has to make in this case?"
MJ: What is??would??is the defense's issues with??if this

witness goes back and says, "Okay, looking through my database,

information about let's put it that way??about

situations or

therefore drawing the

I mean, what's??I guess??what's

the defense's issues with that? Or are you saying your issue is

because they

Ma?am, I apologize. Could you please

restate your question?
MJ: Okay.

I didn't follow.

MJ: Where I'm looking at this is, if there is a database

that is maintained by the entity that Mr. Lewis supervises and

it says, "Okay, here, we've got??one of our fields is the

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All right.

MJ: "And then next time,

and, by Virtue of that, through his experience, he's oonoluded,

"Okay,

Therefore, if they were interested in 2010, they're interested

in 2013. Back then,

I guess??
where??what is the defense's??based on his experience and his??
this database that's maintained, what is the defense's

objections to those kinds of questions in value?

Well, ma'am, here is the way I would do

it??and for??as an appellate exhibit, we could mark the EEI to

better illustrate the point that I'm making.

MJ: That would be helpful.

All right. Yes, ma'am.
Ma'am?
MJ: From the government, yeah?

Before that happens, Your Honor, the United

States will have to check with the eguity holder. That was not

originally asked, it was just about disclosure and discovery.

MJ: Well, how long is that going to take?

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Hopefully, we can get approval tomorrow

morning, ma'am. I mean, it's already 1700, so I doubt we can

get a??unless we take a brief recess and try and give them a
call.

MJ: Okay. Why don't we go ahead and make oral argument

and then make your phone calls?

Yes, ma'am.

Major Fein??or if I just may pose a


MJ: Yes.

someone who may answer, if I

summarize the EEI or my read of the EEI, would that??is that an

appropriate use of the information or not?

Ma'am, I don't think there is any objection

if it's summarized, it's just putting it in the record for all

time.
MJ: That's fine.

So, ma'am??and, again, let's??what

happens, as I understand it, in these offensive

oounterintelligenoe operations is they

right? And what they do to identify what this information is??

the EEI doesn't say, memo from Colonel Denise Lind to Major

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Tom Hurley, marked that indioates"??l forget what

the example was, ma'am, but let's

MJ: I used two of them.

So, either??they would be the same analysis for both.
So, from Colonel Lind to Major Hurley,
whatever, and

What it does is it just summarizes it,
generally. So, we're Counting on the person that's summarizing
it, a faithful public servant of the United States, to be sure,
but we're Counting on that person to get it right. And that's

what Mr. Lewis is relying on. So he's oomparing this??the
information in the EEI that's not a specific description of the
information, but just generalized??a generalized notion of it
and then he's using that information to apply to the second bit
of the??seoond bit of data which is the cost. So, it's this?-
and beoause??and we're going to go with ma'am,
okay with the Court?
MJ: That's fine.



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if that's

13158

That's, I guess??is the position of the defense

clear as to why we believe that be problematic?

MJ: I'm not sure. I guess I'm??if his expertise is

contained at the, "All right, here are the databases we

maintain, we are??I supervise all of these offensive operations

and, in the past,

Well, ma'am, may I have a moment to

respond to that question?
MJ: Yes.

[The defense counsel oonferred.]


Ma'am, would you??and I apologize to ask

the Court to do this, but would you restate your position??or

the last question that you asked me when I asked for a moment to

answer?
MJ: No, I guess??I mean, I'm seeing a variety of different
levels, here. The government, as I understand what they want to

do, is they want to use Mr. Lewis??have Mr. Lewis qualified as

an expert, to be able to go back and say,

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about

And the government would then ask the

opinion, "Well, all right, now you've gone to the

database, you've plugged in your keywords, you've found certain

information in the CIDNE database and that

Therefore, my evaluation is, because

Before I continue my question, Government, is that

what you want to do?

Essentially, ma'am.

YES:

MJ: Okay. So I have two things: one is your objection to

having all of that, which I think you were arguing to me before,

and, say, the Court was to rule, "Okay, that final opinion of,

Indexed for inflation or whatever.

MJ: Yes. So, assume that last step is taken out and his

expertise is confined to, "In the past,

89

this is the type of

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information, based on my experience with these investigations

that these particular foreign intelligence entities
I've put keywords into the compromised documents

and found information that is

Yes, ma'am. Our problem with that??the

primary problem would be it's not that Mr. Lewis looked at the??
that he's going document for document, he's going summary for,

at this point, now that he's reviewed the??in this??and, ma'am,

my right hand indicates the charged documents, here.
MJ: Okay.
He's going for the charged documents that

he has seen with what, in the EEI, was a summary and what, in

his??and even when he reviewed the actual records??when, in his

oversight capacity, ma'am, he went into the database and was

reading those agent investigative reports, he was just reading

what the agent was sending back.

Is

MJ: Yeah, no, I'm looking??l'm just??you know, this case,

this is really turning on Military Rule of Evidence 703, an

opinion may??an expert may base an opinion on facts or data in

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the case that the expert has been made aware of or personally
observed if experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on

the subject and they need not be admissible. So that's where??l

mean, I'm throwing my questions out to you??that's what I'm

wrestling with. If this is the data used to brief Congress,



Yes, ma'am.

MJ: is it unreliable here?

Certainly??well, ma'am, obviously, what

we're talking??not to say that briefing the information to

Congress requires any less oandor, but

MJ: But, I mean, he's reasonably relying on it.

Yes, ma'am, this particular expert. You
know, going back to the language in 703, if experts in the
I asked him in open session was, "We're

looking to qualify you as an expert. Do you know anyone else

that holds them self out as an expert in this field?" And the

answer to that guestion was, So it's not as though there

is this cadre of people to look at to say, as we would with

orthopedio surgeons or auto aooident reenaotments or pick an

expert, ma'am, that you have seen time and again that's come

into one of your oourts, this is different. This is a novel

expert providing what, for him,

91

would be the first?time opinion

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with respect to this information. So that's what would be the

position of the defense.
MJ: Okay.

And, ma'am, we would??ma'am, if I could

just take a look at one of these cases that the government has

given? I believe it's the Hood case, with respect to the black

market in Korea. I just want to make sure I get the case right.

Yes, ma'am, it's 12 MJ 890.

MJ: Mm?hmm[indioating an affirmative response].

And, I guess that's one point that we

would compare this situation to another. In this situation, the

expert that testified, who was a CID agent, came and testified

and said, "I've been in Korea for 5 years. I have participated

in scores of these types of investigations as the principle
myself and I have seen sophistioated statistical analysis about

the black markets and how they work in Korea. And, based on all

of that, here's my opinion." And, ultimately, that opinion was

vindioated by the higher Courts that existed at the time.

Ma'am, let's notice the differences. First, you're

talking about an agent that was, himself, I am supposing, hip-

deep in these sorts of investigations, personally, doing them,

himself, on the ground. The second piece of that problem is, as

he is looking through there, he is going??he is vetting this

information??one supposes, just based on our common sense and

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knowledge of ways of the world??through a series of black market
operations that existed on the Korean peninsula.

So it wasn't just this made up thieves market that Mr.
Lewis will talk about??beoause it's made up and it's a
fabrication to a degree??beoause the agents have to say to
themselves??talking about the facts of this case now??the agents

have to say to themselves, "What do we-

Not
like in Hood, he was able to look at all??he was??this
individual was able to look at the various blaok markets and be
privy to statistical analysis based on those aotual markets of
Lewis has no idea

things getting bought and sold which Mr.

about. have no idea if there's a thieves market," Mr. Lewis

said. "Major Hurley, you are the person that introduced those
words to me."
So he isn't able to say that and it's that sort of??if

Mr. Lewis's testimony was based??was similar to

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and I'm just pulling from page two, ma'am, I don't know where it

is in the actual MJ. is pulling this information

from all of this data where

And that's the

position of the defense that says this information, whether you

look at M.R.E. 703, ma'am, or you look at M.R.E. 702, it fails.

And, as the military judge, the defense would reguest that you

not??that you disallow this evidence from being admitted into
this Court.
Ma'am, just one moment.

[pause]

And, ma'am, we're talking??you're??you'd mentioned to

me before??This is my last statement. You had mentioned to me

before that he briefs Congress and as??at the defense table, as

we were reflecting on what Mr. Lewis said??he's briefing

Congress on what was spent and not the actual intelligence that

went forward. So, he's not giving the Congress a rundown of

that actual intelligenoe, just, "Hey, Congress, because this is

one of your big functions to Conduct oversight as to how we're
spending money, this is how we're doing it in these particular
cases."

that's it,

Ma'am, thank you.

MJ: All right. Thank you.

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Government, any final words?

VON Yes, ma?am. A moment, Your Honor?

MJ: Okay. Government, now, I'm going to ask you before

you start, I went through with the defense counsel, basically, a

scenario of, "Okay, you're going to ask the witness what he's

got in his databases," and I believe it was the keyword searches

and what was compromised then come up with an opinion, but I

want the government just to lay out, for me, exactly how you

plan to do this.

VON Well, Your Honor, the government's

plan would be to have Mr. Lewis first talk about??well, he's

already talked about his experience so it would then be to say,

"In my experience, based on these counter?offensive operations

over which I've had visibility, I know that

for instance." Then he will say, have

reviewed documents contained in the database that

I reviewed the documents. I found

MJ: And his opinion would be based on what?

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VON His opinion would be based on the

MJ: So, his opinion??So, that basically is the foundation

of his opinion. His opinion that

VON Yes, ma'am.

MJ: So why should I let him go beyond, "Here's what

they've

VON Your??ma'am, it's that extra

inferential step from his expertise that this is similar??

essentially, Your Honor, he would be testifying that the

information is similar and, because of that, he can assess the

value.

MJ: How many other??he's never testified as an expert
witness, to his own statement, ever. He's never been
qualified as an expert

VON Yes, ma'am.

MJ: why should I be the first?

VON He's never been asked to provide his
specialized knowledge before
MJ: To your knowledge, has this kind of specialized

expertise ever been in a courtroom before?

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VON One second, ma'am.

[The trial counsel conferred]

VON Your Honor, I would make two points to

that. First, as Mr. Lewis testified, he's one of a very small

number of people with this type of specialized knowledge. Two,

to the United States? knowledge, in the??I'm going to miss the

name but??Truoung Bong case in the Fourth Circuit, in the 1970s,
an FBI agent testified to the value of the information in that
case.

MJ: Based on what?

VON Based on his experience.

MJ:
VON Your Honor,
MJ: gave me a number of cases, Truoung Bong, is

not one of them.

VON Yes, ma'am.

MJ: It would seem to be that??if that is the most closely-

?directly on point, the government might want to consider that.

VON Yes, ma'am.

MJ: Go ahead.

VON I can provide that to you immediately

after this, ma'am. Your Honor, Mr. Lewis testified that,

through his general knowledge and expertise, he relies on the

EEI list and he selected the years 2008 to 2010 because he
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believes those were reliable. Furthermore, he testified that he

produces briefs to Congress,

Mr. Lewis further testified that he does not develop

That is what we

are asking him to testify about.

MJ: Well, let me stop you there. His expertise is based

on the or the CI operations,
is that right?
VON

Yes, ma'am.

MJ: Now, I believe he testified that,

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VON That is one potential basis for the

information, but also for the types of information; that's where

Mr. Lewis? expertise talking about the classification, the types

of information, and taking a broad View of the

can oull the data and present the relevant
factors based on his expertise.
MJ: Okay.

VON And, furthermore, Your Honor,

MJ: Well, let me ask you something: on oross?examination,

to the defense, Mr. Lewis said, "Well, I didn't look at any of

the EEls regarding

VON Again, Your Honor this goes to Mr.
Lewis? expertise of knowing that??or being able to??first of
all, the defense may oross?examine that and elioit those facts,

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but this is??goes to Mr.??seoond, it goes to Mr. Lewis?

expertise about,

or some other failure that was not related to the operation."

MJ: But he can't even testified, at this point, that there

is been any failures with respect to the

VON Say again, Your Honor?

MJ: Well, as I understand what the government is seeking

to elicit, "All right, I went back and looked at the EEIs that

her name? pulled and I
only pulled the ones of successful oounterintelligenoe
operations and they revealed that there are certain

Now,

I look at your

oharged information and I found similar types of

VON Your Honor, again, he testified that

those missions failed for all sorts of reasons. that

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Second,

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would be proving a negatiVe??

MJ: Well, okay. I mean, let's do something Very simple.

I like pizza. So, on Monday, I paid $10 for pizza. So an

expert is going to come in and say, "Colonel Lind??Judge Lind

likes pizza so she paid $10 on Monday so I've got to charge $10

for a stolen pizza on Friday, so Judge Lind would evaluate that

pizza at

VON Yes, ma'am.

MJ: If, on Tuesday, I was presented with the opportunity

to eat a pizza and I decided I don't want a pizza and I'm not

paying $10 for that pizza, how reliable is that opinion, on

Friday, that if offered a pizza, I'm going to pay $10?

VON It's reliable, ma'am, because the

value is set at a specific time. To go with your pizza analogy,

ma'am, the price is set when somebody will engage in that??when

both sides agree to engage in the transaction. In your example,

if, on Tuesday, somebody doesn't order a pizza, it doesn't mean

the pizza doesn't have Value, it just means that that person



MJ: No, if somebody offers me a pizza and I don't want to

and I refuse to pay $10 for it.

VON But, if somebody else will offer to

then it has the $10 value and it had $10 of
101

pay $10 for it,

9610

13172

value the day before which makes it likely that it still has $10

of Value.

MJ: You're

VON But, the market is

MJ: expert to say,

VON Yes, ma'am. He testified that they??

that the value of money is appropriate??or takes place in about

MJ:

VON Of But the

go into that price, ma'am. So, for instance,

in the pizza price example, they don't expect to sell infinite

number of pizzas at $10, they expect to sell a fixed number of

pizzas. So, in this case, it doesn't make the pizza worth

$20 because somebody might pay $20 for it and then
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or, you know,

9611

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somebody might pay but the pizza price??the pizza maker sets

the price expecting to sell a set number, not an infinite number
and proving the negative goes to an infinite number of
transactions.

MJ: Okay.

VON Well, Your Honor, the reports Mr.
Lewis relied on are exactly the types relied upon by
professional counterintelligence professionals[sic] in his
field, they're generated in the regular course of business
activities. It's the job of the counterintelligence

professionals to budget, to report, to gather financial

statements, to rely on training,

are inextricably linked with
counterintelligence. The defense's concerns regarding memory
are no different than a doctor relying on 30 years of
experience. Memory and experience are part of the foundation of
Mr. Lewis's expertise.
Finally,

defense concerns are more appropriate for

cross?examination and the weight of Mr. Lewis's testimony. The

defense is also welcome to present its own expert to offer a

contrary opinion.

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MJ: Well, let me ask the government a question, again. On

the testimony of Mr. Lewis??I want to make sure I understand it
and that's what the government's position is going to be??that

Mr. Lewis came in and said, "You know, we're involved in a whole
host of counterintelligence operations here??counter?offensive
here.

intelligence operations, I pulled a data set of only the

So I've got some hits

So how does that affect the
reliability of this opinion? don't know because I didn't
look."

VON Your Honor, your point goes to other
potential information that may exist
MJ: It does exist. He didn't look at it.
VON He relied upon his??the totality of

experience and expertise and he did look at the successful

transactions. The transactions that
those
MJ: Wait a minute. Am I misunderstanding his testimony?

He didn't look at the transactions that were

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VON Your Honor, that's what I meant; where

those transactions do not occur. That affects??that,
ultimately, is part of the price of the
So, to go back to the pizza example, someone might pay $20,

somebody might pay

MJ: We're talking??no, no, we're talking about the same
entity.

VON Yes, the same entity??the same pizza
seller.

MJ: It's the buyer we're focused on.

VON Okay. All right, same buyer. The

buyer only relies on his personal value and it fluctuates; it

can change. And so, the value of something, in a market place,

including a thieves market, goes up and down based on a variety
of factors.
MJ: So how is this witness's opinion reliable if that's
the case?
VON

It's not the United States? position

that there is a perfect price that's determinable. It's our
position that the expertise offered by Mr. Lewis is based on a
lot of experience and a lot of

and that those are evidence to the value of
It's reliable because the United States

this information.

government and counterintelligence professionals rely on this

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information. Congress relies on this information deciding

whether or not it is worth continuing the funds. Congress will

look at it and say, "We got??we're getting these results back

from it, so we will continue to fund it at these levels."

MJ: Well, wouldn't Congress??wasn't part of the briefing

on what the amount is spent on? So, wouldn't that include the

negative??the transactions

VON Yes, ma'am.

Your Honor, may the United States have a

moment?
MJ: Yes.
[The trial counsel conferred]

VON One more second, Your Honor.

MJ: Do you want to take a 10-minute recess?

Actually, ma'am, if you don't mind, may I

take over for Captain Von Elten? I'd asked him to do this

without much prep only because I just can't stand.

MJ: Because you can't stand?

Well, my back, ma'am,

MJ: Then why don't you sit down and do your argument?
Yes, ma'am.

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MJ: And, for the record, counsel on both sides, you know,

if there's medical issues and things we need to??please let me
know that.

Yes, ma'am. Thank you. Just??ma'am, to

answer this one question, just because l??this is what was asked

of Mr. Lewis. When he was asked what the EEI list was, he said

that it was a list that was generated based off of completed

missions to know what the enemy??exouse me, foreign intelligence

services are looking for and trying to obtain. So the??going

back to what Captain Von Elten just briefed a few minutes ago,

the EEI list informs Mr. Lewis, as he testified, on what the

foreign intelligence services are looking for then the second
list informs him that,

So, going to
the Court's guestion about if there was an unsuccessful mission,

would it be annotated? No, Your Honor, because an unsuccessful

mission means information wouldn't have been??made it on to the

EEI list. It is only based off a completed mission does the

And, once they have that

information, they now create the database, they share it across

the U.S. government, they brief it up, they share it down, and

then they use that, then they

is what he testified about,
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And it's at??he didn't say this part, Your Honor,

but it's clear that it's a circular process. But, if it's an

unfounded or unsuccessful mission, you would never have an EEI
which is also what he said when we asked??the United States

asked him something to the effect of, Your Honor,

MJ: Did anyone ask Mr. Lewis if there was some kind of

list or database or something of unsuccessful transactions?

We have not asked Mr. Lewis that question,

ma'am, but we can ask him??recall him to ask him.
MJ: Is he here?
He is here, ma'am.

MJ: Please recall him.

the United States recalls Mr.

Ma'am, Danny

Lewis.

OF

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DANIEL LEWIS, civilian, was recalled as a witness for the

prosecution, was reminded of his oath, and testified as follows:
DIRECT EXAMINATION

Questions by the trial counsel[MAJ
Q. Sir,

I'm going to ask you a few questions in reference

to the EEI

A. Okay.
Q. First, does the database that this information is
pulled from??does that database contain information in relation
to

A. Yes.

Q. And does??for those

does it keep track of

A. I'm sorry??you initially said from the EEI list. Are
we talking

Q. Oh, I'm sorry, sir.

A. operations?

Q. Let's take both, sir, so first for the EEI list.

A. All right. If we got any EEI,

then the EEI went in there. But, if it

fails from the start, then there would be no EEI so there would

be no EEI part of failed operations all the time.
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Q. Okay, sir. Now, what about the list created by
A.

Q. for you??the??with

MJ: And what is that list and where does it come from?
WIT: Your Honor, all the??if they searched through the

MJ: All right. And I don't mean to interrupt you, but I

do want to follow up with one question. Would those inolude

failed operations where

WIT: In the database, yes, ma'am.
MJ: In pull of
WIT: I did not ask for??I asked for

didn't ask him for a list of unproductive or failed operations,
ma'am.

MJ: Okay. Prooeed.

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[Examination of the witness oontinued.]

Q. And, sir, to go off the Court's question, just now,
does that database contain information on unproductive or failed
operations?

A. Yes.

Q. And could you please define what unproductive and then
define failed operations are?

A. A failed operation would be through

the process of

Q. So, sir, I??so that's a failed operation?

A. That would be a failed, yes.

Q.

A. Not if it fails at But from an

asterisk??the fact that that

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9620

back and figure out why.

at?

Q.

13182

So we actually would benefit??maybe

So, even by

And, sir, what about the second type

Right.

incomplete mission

when??

There's just times that, for whatever reason,

And, sir, why did you choose that criteria to give

when you asked him to do the data pull for you to look

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A. That was just one of the data points I was interested

in of what is a produotiVe??

and what was just

??in a
relationship, high and low. That was my??what I wanted to know.
Q. And why, sir? Why did you set that in your criteria?
A. So in my mind I could have a range??I know that from
what the

just a data point in my head.

Your Honor, one moment, please?

MJ: Yes.
No further questions, Your Honor.
MJ: Defense?
Yes, ma'am.
CROSS-EXAMINATION

Questions by the assistant defense counsel

Q. All right, Mr. Lewis, this??I'm going to ask you about
a hypothetical soenario, okay?
A. Okay.

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9622

"Time

help?

A.

Q.

All right. So, let's say??we're going to

At??on Time 1,

Okay.

are you with me so far?
I got that.

Thanks.

I'm with you.



Thank you so much. At Time

Okay. Meeting??oan we call

Yeah, you know what, we can.
Okay.
It absolutely will. At

Okay.

I'll go with your scenario.

Okay. Thank you. A

Okay.
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call this

Would that

Yes.

All right. 80,

No, I'm sorry,

It wouldn't?

That would get

Right.

right?

that would not get you on an EEI.

you oh the

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amount?

A.

Q.

To ask

Yes.

That's when the EEI would come? In that better

Yeah, the EEI is their request for information.

Okay. Well, just??let's stick with my hypothetioal

scenario for just one second.

A.

Q.

MJ:

Okay.
All right. So, at

Okay.

Is this the

No,

Different operation?

Different operations,

Okay.

And in this hypothetical scenario for
Okay.

person

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13187

A. Now, generally, why that wouldn't happen is,
we??in a

short period of time,

Q. Okay. But??l guess, just
A. Hypothetioally, no. We wouldn't do that.
Q. What I'm saying is the "no" to the same??the "no"

response to the same information, is that captured anywhere?

A. Yes.

Q. Where?

A.

Q. Would that be possible??or did??and did

include that concept when he was doing the data pull for you?
A. He didn't have a concept; he pulled exactly what I

told him to pull.
Q. And you told him??and you

A. I didn't ask for that.
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9626

You certainly didn't ask to pull unsuccessful

counterintelligence operations, did you?
A. No, I did not.
probably, so I wouldn't
Q. Right.
A. Not on the information that I had pulled for my value
because, again, if we
Q. Right. And that wouldn't have been what

pulled for you? He didn't pull the
A. No.
Thanks.

MJ: Direct?

Zero?

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Yes, ma'am.
REDIRECT EXAMINATION

Questions by the trial counsel[MAJ
Q. Sir, what percentage of the investigations that you

oversaw while you were the Chief of the Counter?Espionage

section of DIA involved

A. Probably a couple of ops where we're talking

about??we're now talking about investigations?

Q. Yes, sir. So, sir, other than

A. but
ones
Q. Sir, sir.

is that based off??l'm sorry, Please, go

on.
A. We were talking about the ones that were
what about ones that

Q. Or, sir,

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Q. Okay, sir. And earlier, when Major Hurley was asking

you a hypothetical, you said that hypothetioal wouldn't happen?

A. Well, I kind of misunder??yeah, the??within the

operations, part of what??one of the things that I said early
on, when we're looking across all the operations, if it looks

like multiple entities within are going to start

that would be highlighted in a dialogue within the

the

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does that fit the operation?

Thank you, sir. One moment, Your Honor,

please? No further questions, Your Honor.

MJ: Anything further from the defense?
No, ma'am.
EXAMINATION BY THE

Question by the military judge:
Q. So, Mr.

Lewis, when you have these

and let's limit our focus,

A. Okay.
Q. And,
A. Yes, ma'am, and that would be oonsidered??eVen though

that is??for that it helps us to
know if the
somewhere, for

whatever reason, then we, as a Cl community, we have to
determine what

ls there??we look for reasons to

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Q. I guess that's where l??l'd like to ask you a??some

questions based on your expertise on Cl. Now, if, say, the

think you brought

A. Yes, ma'am.

Q. The

A. Yes, ma'am.

Q. January of 2008. Would there, potentially, be

a possibility that,

A. ma'am, speoifioally, was the??anything

that??between

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9631

So, those are the big topics that

we know from government to government they have issues with,

YES:

Q.

ma?am.

When you did your keyword searohes??and I?m assuming

that's of the charged documents in this

A.

Q.

Yes.

did you come up with the keywords for

Based on my knowledge that

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13193

13194

??there?s a

couple of different acronyms there. And that's how I picked,
when I did??I think it was the State Department database, I

don't remember the exact acronym for that??that was my keyword

search just for the State Department documents, ma?am.
Q. What
A. That's based on just what I know from??specificaIIy,

from the EEI

Q. So, just give me a general idea of

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9633

you had what's the

an opinion that you would make that

13195

basis for your??

and all of
that?

A. Based on what we saw in did
have, when we would see we would
see, generally, what they were

So it was it's a narrow scope in that
theater, but that's what we had there.

Q. In

A. Consideration that were aware of

Q. Based on your expertise, what is the likelihood, if
any, that the

A.

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9634

13196

Q. So, if??and this is between 2008 and 2010?

A. That was the time frame you specified, yes, ma?am.
Q. So, at that time,

A. That's what we believed was one of the explanations

based on the things that we were seeing in some of the

investigations. Some of the other
Q. What
A.
Q. What was the percentage of operations
A. Against, ma?am? That would be in

territory that would be guessing.

126

9635

Now, what about

We?Ve??some people would say

127

9636

13197

What about 2008 to 2010?
A.
MJ: All right. Any fo11ow?up based on that?

Can we have a moment, Your Honor?

MJ: Yes.

REDIRECT EXAMINATION
Questions by the trial counsel[MAJ
Q. Sir, when there is

please e1aborate??but if

there's a successful operation,

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13198

13199

A.
Q. Yes, sir.
A. Depending on the information, if it's about something

that needs

Create better security education, you know,

make sure someone knows if they get an email out of the blue,

I

that we know,? it's like they've tipped their hand. We know

that really want to know that. It also tells us

how The types of information helps us in

our investigations when

Q. Sir, what??does that information go on to the EEI

list?

A. That would have been a shorter answer; yes, it does go

onto the EEI list.
129

9638

13200

Q. And how is that EEI list used other than you reviewing
it for your testimony, here?
A. The EEI list??the distribution of the EEI list is to

the

is aware that the

It goes to all the OFCO

Q. And, sir, what is the, I guess, typical success rate

of providing information from the EEI list??is that??is the

success rate high, low,
MJ: Wait a minute. I don't think I understand. What is a
success rate? What are you asking?
Yes, ma?am.
Q-

130

9639

can clarify your question?

Please.

sir.

Yes.

And how often, if at all,

Well if it's one of the,

as the previously discussed

131

9640

13201

13202

A. Yes. It is reported to Congress on an annual basis

the

Q. And sir, what was your role in that tracking of funds?

A. We oompile that list and provide it to the USDI who
sends it further up.
sir.

Thank you,

No further questions, Your Honor.

We do have some more questions, ma?am.

Your Honor, we do have some more questions.
MJ: Okay.
RECROSS-EXAMINATION
Questions by the assistant defense counsel[Major Hurley]:
Q. So the government sits you down in front of a
Computer,

right? I am talking about your search of the NET-

CENTRIC Diplomaoy database.

A. Okay.
Q. The government sits you down in front of a Computer,
right?

A. Uh?huh[indioating an affirmative response].

Q. Pulls up a document?

A. No.

132

9641

13203

Q. Or pulls something up on the computer? Okay, well
let's just skip ahead.

A. Okay.

Q. You enter in your keyword searches?

A. Uh?huh[indioating an affirmative response]..

Q. Then you find responsive records?

A. Yes.

Q. Did you assess those records to see if that

information was already known, like already known in 2010? Did

you look at it and go, like, ?Is this already known or did they
already know this or not??
A. I ran the report and made sure that what was keyword
searohed was in there; was it in the
Q. Mm?hmm[indioating an affirmative response].

A. And I verified that that was in there and that is as

far as I went.

Q. You didn't make that additional assessment of would
the
A No
Q.
A. I oan?t??I couldn't say that. I

133

9642

13204


I don't know.

That would be speculation?

It would be.

Right.

I can say.

It might have an impact.

A negative impact

Possibly. Yes.

Right. Now the EEI list is a generalized list, right?
sentence.



Let me restate that.

Yes.

The EEI list that was pulled by for you

just has one sentence on what the interest is?

A.

They are areas,

Yeah.
Just one blurb?

It could be two. Two sentences.

134

Yeah,

9643

Yeah, but Very brief?
A. Yes.
Q. All right.

if the EEI says that??ahd let's just go

A.

Q.

A.

Q. So would they

A. I guess it would depend on the
Q. Right.

A. 80 we are describing

Q. Right.

A.

80 if the EEI says that,

135

9644

13205

does that meah??

Well

They are going to determine that by reviewing multiple reports

about the same type of incidents.

Q.

Sure.

But my questions is

136

9645

13206

this hypothetical

A.
specified,

Q.

Well, that was in the timeframe that she had
as well.

But what I am saying is,

Normally in

It did not happen.

Right.

That is Very possible.

137

9646

So in

13207

13208

Thanks.

No more questions.
MJ: Any last questions by the Government?
Yes, ma'am.
REDIRECT EXAMINATION
Questions by the trial counsel[Major Fein]:
Q. Mr.

Lewis, do foreign intelligence services pay for

Government information

A. Yes.

Thank you, sir.

No further questions, Your Honor.
MJ: I still have some.
EXAMINATION BY THE
Questions by the Military Judge:
Q. Mr.

Lewis, I want you to do a little searching of your

expertise here. You testified you've had years and years and

years in oounterintelligenoe, both in investigations and

oversight.

A. Yes, ma'am.

Q. You've taken this information and reported to
Congress. Now looking at your expertise??and then again, you've

never been an evaluation expert or anything like that in a

courtroom.

138

9647

13209

A. No, ma?am.

Q. So looking at??you?Ve told me for example,

between 2008 and 2010, which is the relevant period at issue

here.
A. Yes. Yes, ma?am.
Q.
A. Yes, ma?am. But I believe that I was??when I said
that, we were talking about the
Q. Yes.
A.
Q. Seeking the same type of information in the
A. No. No, ma?am. That is a different set of
information, not in that.
Q. Targeting that particular set of
A. Yes, ma?am.
Q. Were most of the??when you

how did you learn that?

139

9648

13210

A. Yes, ma?am. Well that was having visibility on the

Those are fairly sighifioaht. Most of the-

?ahd to clarify, the were

They don't get the same numbers. They don't get the

We were

People were willing to report to
Q. Yeah. I am not trying to suggest that your operation

wasn't a success.

A. Okay.
Q. No. I am looking at, you were comparing the value of

A. Yes, ma?am.
Q. the 5
A. Yes, ma?am.

140

9649

13211

Q.

A. Yeah.

Q. think I can say that

A. Yes, ma?am.

Q. Do you believe you can do that?
A. I probably boxed myself in

that is the number that popped in my head and I know it is
important. But I
Q. Do you feel??if you were walking into Congress

tomorrow and you were conducting a briefing or you were briefing

your superiors.

A. Yes, ma?am.

Q. Would you feel confident in saying, ?Okay, based on
A. Yes, ma?am.

Q.

A. Yes, ma?am. Yes, ma?am.

141

9650

13212

Q. just
A. Yes, ma?am.
Q. on I did a keyword search in the

CIDNE?Afghanistan

A. Yes, ma?am.
Q. came up with these documents. Mr.
Congressman, Mr. Superior, I, in my expertise, believe that

A. Yes, ma?am.

Q. Would you feel comfortable saying that?

A. I would feel comfortable in saying that but I would

gualify my statement as that most of

They
It
was the

where we were??had success

and that is where

I am very confident

based on my expertise and what I have seen is

142

9651

13213

It just isn't how we've
Sinoe CI offensive operations look

at the

So we

Q. And, I am going to this over to the government in just

a moment. But what I am hearing you saying is that you haVe??
you believe you have a basis to have an opinion on what these
but that

documents are when you did the keyword search or Value,

opinion isn't from

A. That is based on the EEI. Yes, ma?am. What I know
These were
Yes, ma?am.
Q. That is the basis of your opinion. Not from these

other sources that you were talking about.

A. No. No. No, ma?am. No, ma?am. No, ma?am. It is

based on the
143

9652

13214

operations, the

But
the EEI is still what I used to base my opinion on as what we
knew
MJ: Okay.
Any follow up based on that?
Your Honor?

May I have a moment,

Not from the defense, ma?am. I guess we

will wait and see.
[The

trial counsel oonferred.]

No, ma?am.

MJ: All right. Do you want temporary or permanent
exousal?

Temporary, ma?am.
MJ: All right.

[The witness was temporarily excused, duly warned, and exited

the oourtroom.]

MJ: Any further oral argument from either side?
VON No, ma?am. But I have the case I

mentioned.
MJ: Okay. Thank you.

[The assistant trial counsel provided the document to the

Military Judge.]
144

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13215

MJ: All right. Can you point to me where in the case this
expert testimony is.
Ma?am, may we have a moment?

MJ: Yes.

[The trial counsel oonferred.]

Ma?am, as we keep going through this, we
realized also that this should be read in conjunction with the
actual plaintiff's brief that was actually given to the 4th
Circuit, which we will have copies of for the Court to Consider.

MJ: Okay.

[The trial counsel oonferred.]

MJ: I assume it is somewhere on or after page 18?

VON Yes, ma?am, in conjunction with the
brief.
[Pause.]

MJ: All right.

Your Honor, if my memory serves me. It
not here on the face of the case how the government proved it in
that case but it was part of the offer of proof by the
government. It is actually State Department information that
was oompromised.
MJ: All right.
Well,

when you have whatever it is you want me to

Consider, let me know.

145

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13216

Any further oral argument by either side?

VON No, ma?am.

No, ma?am.

MJ: All right.
Anything else we need to address today?

Not from the defense, ma?am.

No, ma?am. And, the United States will

email and print immediately after this session, both, the
appellate brief.

MJ: All right.
The one thing I do want to ask you. Defense has not

asked this, but since this came up earlier, assume I should
grant the government's reguest for expertise of this witness in
whole, or in part. Does the defense want to use these lists,
these EEls or whatever other lists that he had prepared on

oross?examination?

Yes, ma?am. We will.
MJ: Because you need approvals for that, right?
Yes, ma?am. And that will go with the same

guestion of whether??if it is marked as an AB, ma?am, that will
be the same approval.
MJ: All right. So are we antioipating getting that

approval before tomorrow?

146

9655

10

11

12

13

14

13217

Hopefully tomorrow morning, first thing,
ma?am.

MJ: Okay.

This morning we were able to get the
approval to give them to the defense very guiokly. So assuming
all the right individuals are at DIA, hopefully the same
approval will be just as guiok.

MJ: Okay.

MJ: Anything else we need to address?

No, ma?am.
No, ma?am.
MJ: All right.

Court is in recess.

[The court?martial recessed at 1822, 1 July 2013.]

147

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Pages 9657 through 9668 of this
transcript are classified
“SECRET”. This session (2
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.

13219

[The court?martial was called to order at 1009, 2 July 2013.]

MJ: Court is called to order.

Major Fein, please account for parties.

Yes, ma'am. Your honor, all parties when the

Court last recessed are again present. Mr. Chavez, court reporter,

is absent; Mr. Robertshaw, court reporter, is present.

Also, this session is closed session, classified at the

SECRET NOFORN level. And, the court security officer executed his

closed hearing checklist and it will be added to the post?trial
allied documents.

MJ: All right, have there been any new appellate exhibits added

to the appellate exhibit list?

Yes, ma'am. There are two appellate exhibits

that have been marked. The first is Appellate Exhibit 589, this is

the EEI list Bates number 00527925 through 00527929 and, Appellate

Exhibit 590, the value list, Bates number 00527930 through 00527932;

both classified.

MJ: All right, the parties have, via e?mail, last night given

both the government and the defense appellate briefs for the Fourth

Circuit in the United States v. Truong Dinh Houng. That case was

decided by the Fourth Circuit at 629 f. 2nd 908 in 1980. Both sides

presented the appellate briefs with respect to, apparently, an FBI

agent testified as to value of government documents in that case.



9657

13220

Does either side desire to put anything further on the
record other than what has been put in with the case and e?mail?

No, Your Honor.

No, ma'am.

MJ: All right. The Court finds this of limited Value. Both of

the briefs talk about the fact that the FBI agent testified, but

neither one of them artioulates what, if any, gualifioations he had

to testify. All right, the court is prepared to rule, unless the

parties have anything else to add with respect to Mr. Lewis as an
expert witness area.


No, ma'am.

Von No, ma?am.

MJ: All right, the Court has both an unolassified ruling and a
classified oral supplement so the plan is I am going to read the
unolassified findings of fact followed by the classified oral
supplement to the findings of fact. I am not going to read the law
during the closed session since I will be reading the unolassified
Version during the open session and I believe you all know the law,
I will read the

we do not need to read it twice. And then,

conclusions of law, both unolassified and classified.
Unolassified ruling; government motion to qualify Mr.

Daniel Lewis as an expert.

9658

13221

One 1 July 2013, the government moved the Court to

recognize Mr. Daniel Lewis as an expert witness in

counterintelligence and value of United States Government information

to foreign intelligence sources. The government established its

foundation in both open and closed sessions. The defense does not

oppose Mr. Lewis as an expert in CI generally but does challenge his

expertise in offensive CI and value. The defense cross?examined Mr.

Lewis regarding foundation in both open and closed sessions. The

parties presented oral arguments in closed session. Having received

the briefs and having heard oral arguments, the court finds and rules

as follows.
Findings of fact.

1. Mr. Lewis has 29 years of experience in CI including CI

operations, investigations, collections, analysis and functional

services. Included in this expertise is a tour as chief of training
for the Department of Defense Joint CI Training Academy, JCITA for
the military and the Defense Intelligence Agency, DIA. Mr. Lewis?

experience includes working as a senior investigator for the foreign

CI Activity, FCA, which operates the most sensitive and significant

espionage investigations.

2. From 2006 to 2013, Mr. Lewis was the chief of the

counter espionage division at DIA. This was DIA's most senior CI

3


9659

13222

position. Mr. Lewis was the senior level subject matter expert for

CI operations and investigations, supervising 50 to 55 CI

professionals at any given time. He is the most experienced CI

expert in DIA. The CI division??excuse me, the counter espionage
division retained oversight of all services??all service CI
investigations and operations within the DOD and national security??
NSA, National Security Agency, to include espionage investigations
and offensive CI operations. Mr. Lewis personally briefed the
Secretary and Deputy Secretary of Defense for Intelligence and
Congress.

3. Mr. Lewis was the lead investigator in that multiple CI
investigations including Colonel George Trofimoff and Army Sergeant,
retired David Boone, both convicted of espionage and providing
information to Russia. Mr. Lewis received a civilian DOD CI
investigator of the year award from both cases in 1996 and 1999
respectively.

4. CI investigations are espionage investigations where
has an eguity. CI operations involve clandestine activities
focused on individuals known to be involved in adversary intelligence
or terrorist organizations. Mr. Lewis has experience as a case
officer in espionage investigations but has never been a case agent

or case agent manager for offensive operations. In his position as

4


9660

13223

chief of counter espionage division at DIR he has oversight for all
offensive Cl operations.

5. Mr. Lewis has testified as a fact witness in court and
has never been qualified as an expert witness in any court for any
purpose.

Classified findings of fact.

1. There is no Amazon.oom or other place for foreign
intelligence services to buy government information??US government
information. Foreign intelligence services steal US government
information through espionage.

2. To prepare for this case, Mister Lewis requested

to produce an Essential Elements of Information list,
EEI, with a snapshot of 2008 to 2009 for
And EEI is data oolleoted from successful oounterintelligenoe
operations to provide a snapshot of what
3. Also in preparation for this case, Mr. Lewis requested

to retrieve data about the most and least suooessful
offensive oounterintelligenoe operations

This data did not include data from unsuooessful or failed

oounterintelligenoe operations.

9661

13224

4. An incomplete

5. A failed

6. There are many reasons incomplete or failed

Unclassified conclusions of law.

1. Mr. Lewis? expertise comes from his 29 years experience
in CI investigations over??and oversight of offensive

counterintelligence operations. He is an expert in all facets of Cl.
His testimony will be based on information gathered through offensive
Cl operations and systematically entered into the systems employed by
the counter espionage division of DIA. These systems are routinely

used by DIA to collect data from offensive Cl investigations and such

data is used to prepare briefings and other memoranda for the

6


9662

13225

Secretary and Deputy Secretary of Defense for Intelligence, and for

Congress, and has been generally accepted by these entities as
accurate. The data collected by the systems is reliable.

2. The Court has issued an oral classified supplement to
this ruling. The

The Court accepts Mr. Lewis as an expert in CI.

Court does not accept Mr. Lewis as an expert in the value of US
government information to foreign intelligence services. This
expertise is too overbroad. Mr. Lewis may testify and offer an
opinion with regard to value of certain charged documents upon laying
a proper foundation within the parameters of the oral classified
supplement to this ruling.

The court has done an analysis under MRE

403, and finds that Mr. Lewis's testimony is highly probative. The
probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice or other MRE 403 factors. The Court
will consider this evidence for its proper purpose within the
parameters of this ruling and its oral classified supplement.
Ruling.
Government motion to gualify Mr. Lewis as an expert is
granted in part.
Ordered this 2nd day of July, 2013.

Classified oral supplement; classified conclusions of law.

9663

13226

1. The Court accepts Mr. Lewis as an expert in
counterintelligence to include offensive counterintelligence
operations. The fact that his experience comes from oversight rather
than direct involvement as a case agent in effective
counterintelligence operations goes to weight.

2. The court does not accept Mr. Lewis as an expert in the
value of information??of US Government information to foreign
intelligence sources.

2[sic]. As part of his expertise in counterintelligence,

Mr. Lewis may testify about his knowledge regarding the following

types of information between 2008 and 2010 with respect to

l) The

2) Information of the types of information requested by

that

4) Mr. Lewis? use of key terms to assess whether there is
any information similar to information previously

This includes

9664

13227

key terms he used, why he used them, what information the key terms

retrieved, and what information a key terms retrieved from the
charged documents.
5) Mr. Lewis may compare the information in the charged
documents with information
between 2008 and 2010 and testify what
information in the charged documents will be valued??be valuable to
foreign intelligence services and why.
6) To the extent that Mr. Lewis can lay a foundation that
the foreign intelligence services of
Mr. Lewis may offer an
opinion about the value of portions of the information in the charged
documents that is comparable to
Such an opinion is within the scope of
Mr. Lewis? expertise in counterintelligence. Mr. Lewis may not opine
on the value of information in the charged documents that bears no
relation or similarity to
All right, is there anything further we need to address
with respect to this ruling?


May we have a moment, Your Honor?

MJ: Yes.

9665

13228

[The trial counsel oonferred.]

Ma'am, the United States does not have anything

further or questions about the ruling itself, however, the United

States would request some time after this in order to apply that

ruling to the testimony and possibly make a copy of the handwritten
ruling for the parties.

MJ: Good luck on that. I have got a lot of soratohes, but you

are more than welcome to have it.
Yes?

Yes, ma'am, just a fiVe?minute recess for

oomfort??if we may do that, it seems like a good time.
MJ: All right, I have got to have the classified ruling

properly marked. So once I do that, I will go ahead and give that to
you all.

Actually, is there a way that the parties could get that
ruling from the record itself? The only reason I do that is I have
gone back and forth with pages. It will make no sense to you if you
are getting my notes.

Yes, ma'am.
MJ: And you will not be able to read it.

TC: Yes, ma'am.

10

9666

13229

MJ: All right. So we will do it that way. How long of a

recess do you need?

Unfortunately for that, ma'am, probably??

realistically, probably until 11 o'clock, which is the open session.

By the time we listen to the audio and get it back, or write it down

from the audio.

MJ: All right, well here is my suggestion on that then. Why

don't we go on the open session, we will read the judicial notice

ruling. I will read the unclassified Version of this ruling and then

maybe at that point it will be a good time to take the extended lunch

and then come back, and do Mr. Lewis. Do you see any final need for

an open session after that?

No, Your Honor.

Well ma'am, you would want to end with an open

session for the government to rest. So, we still would want an open
session after we elicit Mr. Lewis? opinion testimony.

MJ: Okay.

So, we would still want a final open session at

the end of the day, I assume.

MJ: All right. Well, let's do this, let's have the open

session at 11 o'clock, why don't you all come see me about 10 minutes

to 11, let me know if??l mean, we can have the open session, it isn't

11


9667

10

11

12

13230

going to be Very long and then go right into Mr. Lewis? testimony.
If you want to do that and then do some kind of extended lunch. If
you would rather do that and you are ready to go, having had an hour
with the opinion.


Yes, ma'am.

MJ: And then, we can do an extended lunch and do a final open
session after that?
Check, ma'am.
MJ: Let me know how you decide you want to proceed.
Court is in recess until ll o'clock.
[The court?martial recessed at lO25,

2 July 20l3.]

OF

12

9668

13231

1
2
3
4

[The court-martial was called to order at 1112, 2 July 2013.]
MJ:

Court is called to order.

Major Fein, please account for

the parties.
TC[MAJ FEIN]:

Yes, ma'am.

All parties present when the Court

5

the last recessed are present.

6

and the court security officer has finished his post-trial checklist

7

and it will be filed in the allied papers.

8
9
10

MJ:

This is an open unclassified session

Major Fein, would you like to set forth for the record any

exhibits that have been admitted since the last open session?
TC[MAJ FEIN]:

Yes, ma'am.

There have been two appellate

11

exhibits that have been marked.

The first is Appellate Exhibit 589

12

titled EEI List, Bates number 00527925 through 00527929, and

13

Appellate Exhibit 590 which is titled Value List, Bates number

14

00527930 through 00527932.
Additionally, Your Honor, as of the start of this session,

15
16

this current unclassified open session, there's 13 members of the

17

media at the media operations center, one stenographer, no media in

18

the courtroom, and approximately eight spectators in the courtroom.

19

The trailer is available but not being utilized.

20

MJ:

Thank you.

The Court yesterday held a closed session where

21

we had the witness, Mr. Lewis.

The government was laying a

22

foundation for their request to have Mr. Lewis recognized as an

23

expert.

We ended the day following that closed session.

9669

The Court

13232

1

is prepared today to rule on two issues.

2

motion to qualify Mr. Lewis as an expert, and the other is relevance

3

and non-hearsay for prosecution motion for judicial notice.

4

announce the rulings on the record, is there anything else we need to

5

address at this point?

6

CDC[MR. COOMBS]:

7

TC[MAJ FEIN]:

8

MJ:

Before I

No, Your Honor.

No, ma'am.

All right.
Ruling.

9

One is the government

I'll begin with the judicial notice ruling.

Relevance and non-hearsay for prosecution motion

10

for judicial notice.

On 6 January 2013, the Court deferred ruling on

11

the government motion for the Court to take judicial notice of

12

certain adjudicative facts until the government offered the evidence

13

at trial to allow the Court to be fully informed when making

14

relevance and hearsay determinations.

15

Court ruled it would grant the government's motion for judicial

16

notice if the government could establish relevance and the non-

17

hearsay or hearsay exception usage.

Appellate Exhibit 472.

The

On 28 June 2013, the government renewed its request for the

18
19

Court to take judicial notice of the following three adjudicative

20

facts:

21
22

One, Julian Assange was located in Iceland in February of
2010 and was working on the Icelandic modern media initiative.

9670

13233

Two, Lieutenant Colonel Packnett was quoted in the New York

1
2

Times article dated 18 March 2010.
And, three, a New Yorker profile of Julian Assange titled,

3
4

“No Secrets: Julian Assange's Mission For Total Transparency”, exists

5

and was dated on 7 June 2010.
The government also provided a proffer of relevance and

6
7

non-hearsay or hearsay exception use, Appellate Exhibit 587, and

8

pinpoint cites to the admitted exhibits in support of its proffer, AE

9

587 Alpha.
Defense opposes and maintains its relevance objection to

10
11

one and hearsay objections to two and three, and relevance as well.

12

The Court adopts the law as stated in its 7 January 2013 ruling

13

regarding judicial notice motions, Appellate Exhibit 472.

14

Conclusions of law.

15

One, the Court has reviewed the proffer by government and

16

each of the pinpoint cites in support in Prosecution Exhibits 81, 123

17

and 30, and the testimony of Special Agent Shaver and Mr. Lamo.
The Court also notes the defense conceded during the

18
19

testimony of Mr. Chad Madaras that any searches on Intelink for

20

Iceland and WikiLeaks in the open source center on the computer

21

shared by Mr. Madaras and PFC Manning was not conducted by Mr.

22

Madaras.

9671

13234

Two, each of the three judicially noticeable adjudicative

1
2

facts are relevant and offered for non-hearsay purposes as set forth

3

in the government’s proffer, Appellate Exhibit 587.
Ruling.

4

The government motion for judicial notice of the

5

adjudicative facts in one through three above is granted.

6

the 2nd day of July, 2013.
We'll have that marked as the next appellate exhibit in

7
8

So ordered

line.

All right.
Proceeding on.

9

Ruling.

Government motion to qualify Mr.

10

Daniel Lewis as an expert.

Before I read this unclassified ruling, I

11

do want to advise that there has been a classified supplement to this

12

ruling that will not be read in open court.
On 1 July 2013 the government moved the Court to recognize

13
14

Mr. Daniel Lewis as an expert witness in counterintelligence, CI, and

15

value of U.S. government information to foreign intelligence sources.

16

The government established its foundation in both open and closed

17

sessions.

18

generally, but does challenge his expertise in offensive CI and

19

valuation.

20

in both open and closed sessions.

21

argument in closed session.

22

heard oral arguments, the Court finds and rules at follows:

The defense does not oppose Mr. Lewis as an expert in CI

The defense cross-examined Mr. Lewis regarding foundation
The parties presented oral

Having received the briefs and having

9672

13235

Findings of fact.

1

Mr. Lewis has 29 years of experience in

2

CI, including CI operations, investigations, collections, analysis

3

and functional services.

4

Chief of Training for the Department of Defense, DoD, Joint

5

Counterintelligence Training Academy, JCITA, for the military and

6

defense DIA.

7

investigator at the Foreign CI Activity, FCA, which operates

8

sensitive and significant espionage investigations.

Included in this experience is a tour as

Mr. Lewis's experience includes working as a senior

Two, from 2006 to 2013 Mr. Lewis was the Chief of the

9
10

Counterespionage Division at DIA.

11

position.

12

CI operations and investigations, supervising 50 to 55 CI

13

professionals at any given time.

14

investigator in DIA.

15

oversight of all CI investigations and operations with DOD and the

16

National Security Agency, NSA, to include espionage investigations

17

and offensive CI operations.

18

Secretary and Deputy Secretary for Defense for Intelligence and

19

Congress.

20

This was the DIA's most senior CI

Mr. Lewis was the senior level subject matter expert for

He is the most experienced CI

The counterespionage division retained

Mr. Lewis personally briefed the

Three, Mr. Lewis was a lead investigator in multiple CI

21

investigations including Colonel George Trofimoff, an Army sergeant

22

retired David Boone, both convicted of espionage and providing

23

information to Russia.

Mr. Lewis received the Civilian DoD CI

9673

13236

1

Investigator of the Year Award for both cases in 1996 and 1999

2

respectively.

3

Four, CI investigations or espionage investigations where

4

DoD has an equity, CI investigations involve clandestine activities

5

focused on individuals known to be involved in adversary intelligence

6

or terrorist organizations.

7

officer in espionage investigations, but has never been a case agent

8

or a case agent manager for offensive CI operations.

9

as Chief of the Counterespionage Division at DIA he has oversight for

10

Mr. Lewis has experience as a case

In his position

all DoD offensive CI operations.
Five, Mr. Lewis has testified as a fact witness in court,

11
12

but has never been qualified as an expert witness in any court for

13

any purpose.

14

The law.

15

One, a witness who is qualified as an expert by knowledge,

16

skill, experience, training or education may testify in the form of

17

an opinion or otherwise, if:

18

other specialized knowledge will help the trier of fact to understand

19

the evidence or to determine a fact in issue; B, the testimony is

20

based on sufficient facts or data; C, the testimony is the product of

21

reliable principals and methods; and, D, the expert has reliably

22

applied the principals and methods to the facts of the case. (M.R.E.

23

702)

A, the expert scientific, technical or

9674

13237

Two, an expert may base opinion on facts or data in the

1
2

case that the expert has been made aware of or has personally

3

observed.

4

particular field would rely on those kind of facts or date in forming

5

an opinion on the subject, they need not be admissible for the

6

opinion to 20 be admitted. (M.R.E. 703 in relevant part).

The expert in the particular field -- if experts in the

Three, the Court is the, “gatekeeper” for all expert

7
8

testimony, whatever the basis.

To allow expert testimony the Court

9

must find relevance and reliability.

Among the factors the Court may

10

consider to determine whether expert testimony is admissible under

11

M.R.E. 701 is -- excuse me -- 702, is whether a theory or technique

12

has been tested; two, whether it has been subject to peer review and

13

publication; three, the known or potential rates of error in using

14

the particular scientific techniques and standards controlling the

15

techniques, operations; and, four, whether the theory and technique

16

is generally accepted in the particular scientific field.

17

factors are not a “test” for reliability, rather reliability is a

18

flexible inquiry focused on the goal of insuring that the expert,

19

“whether basing testimony on professional studies or personal

20

experience employs in the courtroom the same level of intellectual

21

rigor that characterizes the practice of experts in the relevant

22

field”.

These

United States v. Sanchez 65 MJ 145 at 149, Court of Appeals

9675

13238

1

for the Armed Forces, 2007, citing Kumho Tire Company LTD v.

2

Carmichael 526 US 137, 1999.
Four, relevant evidence may be excluded if its probative

3
4

value is substantially outweighed by the danger of unfair prejudice

5

or other conditions.
Conclusions of law.

6

One. Mr. Lewis' expertise comes from

7

29 years of his experience in counterintelligence investigations and

8

oversight of offensive counterintelligence.

9

facets of CI.

He is an expert in all

His testimony will be based on information gathered

10

through offensive CI operations and systematically entered into

11

systems employed by the counterespionage division of DIA.

12

systems are routinely used by DIA to collect data from offensive CI

13

investigations -- excuse me -- operations, and such data is used to

14

prepare briefings and other memoranda for the secretary -- for the

15

Secretary and Deputy Secretary of Defense for Intelligence and for

16

Congress, and has been generally accepted by these entities as

17

accurate.

These

The data collected by these systems is reliable.
Two, the Court has issued an oral classified supplement to

18
19

this ruling.

The Court accepts Mr. Lewis an expert in CI.

The Court

20

does not accept Mr. Lewis as an expert in the value of US Government

21

information to foreign intelligence services.

22

overbroad.

23

the value of certain charged documents upon laying a proper

This expertise is too

Mr. Lewis may testify and offer an opinion with regard to

9676

13239

1

foundation within the parameters of the oral classified supplement to

2

this ruling.
Three, the Court has done an analysis under M.R.E. 403 and

3

The probative

4

finds that Mr. Lewis's testimony is highly probative.

5

value of the evidence is not substantially outweighed by the danger

6

of unfair prejudice or other M.R.E. 403 factors.

7

consider this evidence for its proper purpose within the parameters

8

of this ruling and it’s oral classified supplement.
Ruling. The government motion to qualify Mr. Lewis as an

9
10

expert is granted in part.
So ordered, this 2nd day of July of 2013.

11
12

The Court will

This ruling will

be added as the next appellate exhibit in line.
Now, the Court has met briefly with the parties prior to

13
14

coming on open session today.

Yesterday when we held the closed

15

session the testimony was basically with respect to laying the

16

foundation for the Court to rule on whether or not Mr. Lewis would be

17

accepted as an expert and under what conditions and what would be the

18

scope of his testimony and opinions, should the Court accept him as

19

an expert.

20

government's motion in part, so this will necessitate another closed

21

session because Mr. Lewis when he's actually testifying about his

22

testimony and the scope of his opinion within the parameters of the

23

Court's ruling, he hasn't done that yet.

As my ruling just indicated, I have granted the

9677

So the parties and I

13240

1

discussed how we would proceed today and we set up the following

2

rough schedule.

3

go over some issues that they need to do.

4

record I guess at this point 1330 still good for the parties?

The parties are going to have an extended lunch to

5

TC[MAJ FEIN]:

6

CDC[MR. COOMBS]:

7

MJ:

We'll come back on the

Yes, ma'am.
Yes, Your Honor.

We'll come back on the record in closed session at 1330 for

8

Mr. Lewis's testimony.

9

Court, again, we have to gauge the time for that because some of this

We will have another open session in this

10

goes by how long a witness testifies, but we are, the parties have

11

approximated, we should be ready to go at 1530.

12

TC[MAJ FEIN]:

13

CDC[MR. COOMBS]:

14

MJ:

Is that correct?

Yes, ma'am.
Yes, Your Honor.

One of the additional issues that was discussed during the

15

R.C.M. 802 conference is I have two roles here, my role as a military

16

judge is to rule on interlocutory questions like I just did, and my

17

role in a bench trial as the fact finder is to consider evidence

18

that's presented before me on the merits.

19

session a general foundation was laid for the purposes of the expert

20

opinion, and rather than have that same testimony being laid out all

21

over again before the finder of fact, the government has proposed and

22

I believe the defense has concurred that the Court may consider in

9678

Now, in yesterday's closed

13241

1

its finder of fact role the testimony that was set forth in

2

yesterday's closed session.

Is that correct?

3

CDC[MR. COOMBS]:

Yes, Your Honor.

4

TC[MAJ FEIN]: Yes, Your Honor.

And also in the open session as

5

well because the government broke the foundation into opening and

6

close.
MJ:

7
8

And the defense did as well.

So it's lays basically all of

Mr. Lewis's testimony.
CDC[MR. COOMBS]:

9
10

TC[MAJ FEIN]:

11

MJ:

Yes, Your Honor.

Yes, ma'am.

Is there anything else at this point we need to address

12

prior to recessing the Court till we reconvene for the closed session

13

at 1300 and we have our public session at 1530?

14

TC[MAJ FEIN]:

15

CDC[MR. COOMBS]:

16

be 3:30.

17

MJ:

Thank you.

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

All right.

Just for the public, 1530 would

Court is in recess until 1530 or

18

3:30.

19

[The court-martial recessed at 1128, 2 July 2013.]

20

[END OF PAGE]

9679

13242

Pages 9680 through 9772 of this
transcript are classified
“SECRET”. This session (2
July 2013, Session 2) 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.

[The court?martial was called to order at 1354,

MJ:
the parties.



recessed again present.

classified SECRET level.

Yes, ma'am,

Ma'am,

Court is called to order.

Major Fein,

13243

2 July 2013.]

please account for

all parties when the Court last
this session is a closed session

The court security officer completed a

closed hearing checklist and it will be filed in the post?trial

allied documents.

MJ:

call the witness?





MJ:

All right.

All right.

No, ma'am.

No, ma'am.

Hold on just a moment,

Is there anything we need to address before we

am taking this with a new SECRET computer that does not appear to

have Microsoft Word.

Let's take a brief recess.

If there is some

automation person that can come up and help.

Court is

[The court?martial

[The court?martial

MJ: Court is

in recess in place.

recessed at 1355,

was called to order at 1357,

called to order

2 July 2013.]
2 July 2013.]

Let the record reflect that all

parties present when the court last recessed are again present in

9680

13

let the record reflect I

13244

court and the court is equipped with Microsoft word. I am ready to

proceed.

Ma'am, the United States recalls Mr. Danny Lewis.

DANNY LEWIS, CIVILIAN, was recalled as a witness for the prosecution,
was reminded of his oath, and testified as follows:
REDIRECT EXAMINATION

Questions by the trial counsel[MAJ
Q. Sir, I would like to start off by having you focus on the

database. Are you familiar with the CIDNE?Afghanistan

database?
A. I am.
Q. Sir, how are you familiar with the database?
A. I reviewed a small sampling of that database in preparation

for my testimony.

Q. And sir, in your own words, how would you??how do you

describe the database?
A. It was reports of activities that US forces were conducting

in Afghanistan. It kind of ranged on my??what I saw was IED attacks,

meetings with officials and??around the One of them is

actually a soldier that had been, it looks like, had been captured.

But generally, the activities, convoys, those type of ongoing

military activities that were happening in Afghanistan.

14


9681

Sir,
I am handing you what has been admitted as
expected testimony of Lieutenant Commander Hoskins. Sir,
please review paragraph 10 and 11 on pages 2??starting on

look up when you are finished?

[The witness did as directed.]

A. Okay.

Q. Sir, have you read this stipulation of expected
before?

A. I have.

Q. And sir, what government information within the

Afghanistan database would a

Q. And, how do you know??well first, sir, which of

I'm going to retrieve Prosecution Exhibit

13245

Sir,

a stipulation of

could you

page 2 and

testimony



the foreign

intelligence services would be interested in that information in

2009, 2010; which of those three?
A. All three would be interested in it.
15


9682

Sir,

type of information?

A. Based on my experience, all
to know how we conduct our operations
This was our fighting force. The way

Afghanistan would be the way we would
potentially, other areas of the world.

reguirement of any of our adversaries,

reguirement to Collect on foreign militaries who are our adversaries.

Q. And sir,

A.

Q.

A. I know that, one, from the

they are asking for that type of information.

13246

how do you know that all three are looking for that

of our adversaries would like

at any point and any time.
we were doing things here in
do things in the future in,

That would be a collection

much like we have a

EEI reports where we know that

And,

??what will they know?

I know I am not doing a good job of that.

Q. What do you mean, sir?

16

9683

13247

A. All of the information provided in the

So, we know

they have asked for it. We know

Q. And sir, do you have an opinion, do you have an actual

opinion about

A. Yes.

Q. And sir, how confident are you in that opinion you have?
A. Very.

Q. And sir, what is your opinion of

A.

Q. Sir, is that based off of one document or the entire

database?
A. It is based off of what

17

9684

13248

Q. Sir, I am

MJ: Yes?

Just a point of clarification. Is Mr. Lewis

testifying from his memory or from the EEI document and the price

document? I got confused.

MJ: All right, do you want to??are you testifying from your

memory or from the EEI document, or both?

WIT: Is all combined, Your Honor.

MJ: All right. Go ahead.
Q. Your Honor, I am retrieving prosecution Exhibit from

the witness. Mr. Lewis, are you familiar with the detainee

assessment briefs database?

A. I am.
Q. Sir, and how are familiar with the detainee assessment
briefs?

18

9685

13249

A. I reviewed some of those reports in preparation for my
testimony.

Q. And sir, in your own words, what are those reports?

A.

Q. Sir, if you oould??one moment please. One moment please,

Your Honor. Your Honor, I am retrieving proseoution Exhibit 131, a

stipulation of expected testimony of Mr. Motes. Sir, I am handing

you this proseoution exhibit. Sir, could you please review

paragraphs lO(a) through lO(o), 11 and 12, sir, on page three and
look up when you are finished?
[The witness did as direoted.]

A. Okay.

Q. Sir, have you read the stipulation by Mr. Motes about the
detainee assessments before?

A. Yes.

19

9686

13250

Q. And, what government information within

A. All of them would like to know the information because it

giVes??what they get from the document is, one,

We know the

When you get to the end of the document, we start

listing the areas that we want to explore. When you lay all of those
out in a??when you have a lot of those, you start creating our
reguirements, the information that the US government is looking for.

And, we are trying to satisfy that reguirement

20

9687

standpoint??of course

not seen any specific EEl's or anything like that where

13251

So, from that

would want to know about that, but I have

from

GTMQ, was seeking that type of information.

Q. And sir, have

not know of an exaot??you oannot reoolleot, sir,

whether the

would pay for that type of information or not?

21


9688

13252

A. In the detainee brief, no.
Q. Okay, sir. And, sir, do you have an opinion on how much
the would pay for that type of information?

A. I do.

MJ: Yes?

Objection, ma'am, relevance. I do not believe

the witness, in his foundation connected the timeline of this

estimate as between 2008 and 2010.

MJ: That is true; sustained.

Q. Mr. Lewis, what government information within the detainee

assessments would the want in 2009 and 2010?

A. Everything that would give us??everything that would tell
them what

Q. And how do you know that, sir, for the timeframe of 2009,
2010?

A. From the counterintelligence standpoint which I am looking

at from their counterintelligence aspect as well, from my experience,

any time that we know what our adversaries do not know, it gives us

the upper hand. So, when we are telling anyone, to include the

based on what our information needs,

22

9689

13253

then they use that to their
advantage against us.
Q. So sir,

excluding present day, how do you know that

information that that is what the
A. Right. As a professional intelligence service, the

are always after that type of information just like all of

our adversaries are.

Q. And sir, do you know or have the paid for this
type of information in 2009, 2010?

A. I cannot definitively say that, no.

Q. Sir, have the paid for that information prior to
2009, 2010?

A. Yes.

Q. And, have the??did the pay for this type of
information after 2009, 2010?

A. I could not say that.

Q. Okay sir, how do you know it was before 2009, 2010?

A. Based on my experience with investigations with

investigations that were involved people providing this type of

information to the

23

9690

13254

Q. And sir, do you have an opinion about how much the

MJ: Yes?

Objection, ma'am, relevance, fitting it within

the scope of the Court's order from 2008 to 2010.

MJ: Mr. Lewis, when was the last time you were aware that the
similar type information?
WIT: That is contained in the ma'am?
MJ: Yes. I will go even broader
than that.
WIT: That would be??what specific information, ma'am, that would

probably be where I know, based on experience I have that I was

personally involved in, would be the mid?80s. But, with our

continuing education as counterintelligence professionals,

MJ: All right, sustained.

May I have one moment, Your Honor?

24


9691

MJ:

Yes.

Redirect Examination Continued:

Q.

Sir, you just testified about the

in 2009, 2010 and the

Yes.

And how do you know that, sir?

25

9692

13255

13256

Q. And, what position were you in at that time sir, to oversee
those operations?
A. Overseeing the??having visibility over all of the

offensive operations in

Q.

MJ: Yes?

26

9693

13257

Objection, ma'am, relevance??not relevance,

foundation, I apologize. That the??an inadequate foundation has been

laid because he has not indicated that it is the information that the
was the same information that was contained in
these

Your Honor, the first question I asked Mr. Lewis

was, if he knows of??l started with having collection

requirements or and that is what he has are testified to
is what was contained in the
MJ: All right, why don't you ask it one more time?

Yes, ma'am.

Q. Mr. Lewis, what type of information in the
are foreign intelligence services interested in
between 2008 and 2010?

A.

27

9694

13258

A lot of the information contained in the

are what I consider to be our tactics, techniques and

procedures and

Q. So sir, what type of
that the between 2008 and 2010, would be interested in?

A.

Q. And sir, what does that, if anything, does that have to do
with

A. were the part
of that.

Q. Okay, sir. So, backing up, what, again, in

A. Correct.

Q. the

28


9695

area of interest part of that report.

Q.

9696

29

13259

the

MJ:



answer,

opinion was value between 2008 in 2010.

one,

Again ma'am

It was a general answer about

MJ:

All right,

before you get a little more specific,

I

13260

foundation. If you listen to his

the guestion did not call for him to say that the

The answer was too general.

I do want

to ask a couple of clarifying guestions.

WIT:

Yes,

ma'am.

9697

30

13261

MJ: When you testified earlier in response to Major Fein's

question, I thought I heard you testify that the had asked??

you??we minute, let me see here.

[Pause]

MJ: All right, never mind about that. But, specifically to the

information in the and the type of

information that is in there, in 2009 and 2010, what partioular??I
guess we are talking about
what types of information relevant to what you reviewed in the

in the charged doouments would be of

during that time?

WIT: The??okay, ma'am. I think when I got started on the

within the

theater of operations,

that gives us an option to counter those

activities. So, if they are aware of a that is in

and the they have a way

to influence, does that information??do they need to

31


9698

13262

that area, generally all of that type of information.

MJ: All right.

WIT:

They are not out
providing any other information. It is all supporting??and similar

to the

is what is happening in that

theater. We are not dragging in other areas of the country there??of

the world, I am sorry, other areas of the world.

MJ:

WIT:

32

9699

13263

MJ: All right. I am going to overrule the objection.

Ma'am, may I be heard?

MJ: Yes.

It is the position of the defense that if you,

again, you listen to Mr. Lewis? testimony, it is of a very general

nature. What we believe, consistent with your order, with respect to

his testimony, it has to say specifically, this information is

replicated??the information in the EEI are from his memory. It is
replicated within the charge documents or the stipulation of expected

testimony. And, we still do not believe that Mr. Lewis has guite

made that connection.
MJ: My order is not that strict.
"consistent with."

Ma'am, I said,

MJ: Okay, overruled. Go ahead.

Redirect Examination Continued:

Q.

33

9700

MJ:



question.

It

13264

Ma'am, we would object to the form of the

34

9701

13265

Q. And why is that, sir?

MJ:

WIT:
MJ:
WIT:
Q. Your honor,

I am retrieving Prosecution Exhibit 131 from

the witness. Sir, now I would like to focus your attention on the

diplomatic cables. Are you familiar with the Department of State Net

Centric Diplomacy Database?

A. I am now.

Q. And how did you become familiar with the database?

A. I reviewed it in preparation for my testimony.

Q. In your own words sir, what does it consist of?

A. It consist of reports within the State Department of the

activities that were happening out in the field locations, summaries

of meetings, conferences, all of the inner workings of what the State

35


9702

13266

Department is reporting back to the headquarters, what its field

personnel were doing and what they were learning and what they were

saying.

Q. Sir, what government information within the Department of
State oables would the if at all,
want in 2008 through 2010?

A. Just about all of it.

Q. What do you mean, sir?

A. That is the inner workings of the US State Department.

Every adversary would want to know what we are doing diplomatioally
around the world. That will be a standard oolleotion reguirement, as

is standard reguirement for us to find out what is happening in other

countries within their diplomatio ohannels.

Q. And how do you know that, sir?
A. Experience.
Q. And sir, when you said, "Just about all of them,"

specifically about what about

those three? Would all three or one of them not

A.

36

9703

And

13267

sir, how do you know??we will take one at a time.

do you know the

A.
Q. Sir,
A. Not

State Department that those??that,

Q. So,

you provide more details of the Court,

why you chose,

why did you pick those key terms to search?
sure what was in the database,

for

so I was??
why??I guess you answered the, "why", but??we11,
sir, why you chose,

as your search terms?

37

9704

How

I knew when it comes to

oould

9705

38

13268

And sir, when you looked at the State Department cables,

did you do a keyword search for these as well?

9706

39

13269

13270

A. I just did,

I did not do

Q. Okay, sir. And, why did you select those as your search
terms?
A. Because I know for sure that that is a standing

requirement, has been, and will be, and I was curious. That's one

one of the search terms I used, much I knew it was

a top issue for I was searching the database for that area.

Q.

40

9707

MJ:



say that is not foundationally helpful to the opinion he is about to

render.

MJ:

And sir,

Yes?

Did the

Foundation;

Objection, ma'am.

41

9708

13271

I understood that he said the

We would

13272

WIT: I am not exactly sure of the whole spreadsheet of all of

the data that was provided there other than it was characterized as

MJ: I'm going to sustain the objection based on that

foundation.



Q. Sir,

are there any other cases in your experience from 2008

yes, ma'am.

to 2010 that involved the

A. No.

Q. Okay,

sir.

So now just focusing on

42

9709

13273


MJ: Yes?
He said there were 900

Objection, ma'am.

documents. In his first testimony was that there were 900 hits
responsive to his inquiry which there could be multiple responses per
document. I guess we would just like to clarify that particular part

of his testimony.

MJ: You can do that on cross examination.

yes, ma'am.

MJ: Go ahead.

A. Repeat the question?

Q. Absolutely, sir. Sir, what is your opinion on

A.

Q. Okay, sir. And, how do you, or why do you believe this,

Sir?

A. Based on what

May I have a moment, Your Honor?

43


9710

13274

MJ: Yes.
Q. Sir, I would like to now focus the testimony on the

Irag database. Are you familiar with the database?

A. I am.

Q. And sir, how are you familiar with the database?

A. I reviewed that database in preparation for my testimony.
Q. In your own words, sir, please describe the

database?
A. was the activities that the US forces were,

much like the where how

for
all of that.
Q. Sir,

I am retrieving Prosecution Exhibit 112. Sir, I am

handing you Prosecution Exhibit 112, the stipulation of expected

testimony from Lieutenant Colonel Nehring. Sir, could you please

turn to page 3 and review paragraphs 9 through 13 and number 15 and

look up when you are finished?

44


9711

[The witness did as
MJ: What were


starting on page 3.
A. Okay.

Q. Sir, have

Nehring about

A. Yes.
Q. And, what

database with the

13275

direoted.]
the paragraphs that you just said?

Your Honor, paragraphs 9 through 13 and 15,

you read this stipulation by Lieutenant Colonel

I before?

government information within the

in 2008 to 2010?

A. They would have all wanted that type of information.
Q. What type is that, sir?

A. All of the information oontained??

Q. And sir, how do you know at the

were looking for that type of information from

A.

'08 to 2010?

They would always want to

know how we are going to Conduct a war in any type of environment.

Q. And sir,

45

9712

Sir,

do you have an opinion about how much

46

9713

13276

13277

A.

Q. Why is that, sir?

A. I looked at a Very small sampling of the size of the
document. I only looked at around 40 or so documents and 10 to 12

percent contained significant information that I thought met this

requirement. The scope of that information, the number of that, I go

back, like the the most that

Q. Sir, I am retrieving Prosecution Exhibit from you.
Sir, I would now like to have you focus your testimony on the

Are you familiar with a

A. Yes.

Q. Sir, how are you, in general, familiar with what
work, sir?

A. I do.

Q. Sir, are you familiar with

47

9714

reviewed for this testimony?

A.

MJ:



MJ:

A.

Q.

done?

I am.

And, how are you familiar with it,

13278

sir?

I reviewed that in preparation for my testimony.

In your own words sir,

I reviewed it

Sir,

how would you describe the one you

I am handing you Prosecution Exhibit

Could you please review that?

What number is that?

Okay.
Okay.

Sir,

ma'am.

could you briefly review that and look up when you are

[The witness did as direoted.]

A.

I have seen??okay,

yes. It is fairly long.
48


9715

Yes, sir. Sir, have

testimony right now?
A. I have.

Q. Sir, what government

2010 if any of
A. Yes. No, they would
probably.
Q. So,
A. No, all want it.
Q. Okay sir,
A. It is

all three countries or just one,

13279

you reviewed that document before your

information within

want in the 2008 to
them, I do not want to presume it?
want it all,

but not everything in it

two

and what information in it would they all want?

All of that would be of

interest to the foreign intelligence service.

49

9716

Sir, how do you know that

It is part

9717

50

There is people

13280

13281

Q. And sir, how to you know the foreign intelligence services,

the are looking for this
information from 2008 to 2010 timeframe?

A. Other than just knowing it, I know it through the

Q. Sir, in the 2008 to 2010 timeframe, did the

this type of information?

A. Yes.

Q. And how do you know that, sir?

A. Through that were in against
Q. And sir, in 2008 to 2010, how much did the

A. lnformation??

oannot think of a??l am

I don't know how to equate that exactly.
That is

Q. Sir, do you have an opinion about

51

9718

13282

A. Yes.
Q. And, how confident are you with that opinion?
MJ: Yes.

Ma'am, foundation; he just said, do not

know how I would value this information." Those are the words the

wintess just said.

MJ: Well, before he gives his opinion, ask him how he would

value the information and what the basis of it is.


Yes, Ma'am.

Q. Mr. Lewis, you just testified that you have not personally
seen that correct?

A. Right.

Q. What have you seen before that similar

A.

52


9719

Sir, specifically you

mean by that,

A.

Q.

Sir, in the 2008 to 2010 timeframe were the

seeking information in reference

A.

They would have

Sir, what about



Absolutely.

13283

What do you

Is that information in 2008 to 2010 timeframe that the

were looking for?

9720

53

Absolutely.

Is that type of information contained within

It is.

Sir, did the

That type of information, yes.

Objection.

never talked about



MJ:

Q.

I am sorry. I will rephrase.

Go ahead.

Mr. Lewis, what would the

They would.

How do you know that?

It is a market for that. Yes.

Sir, in the 2008 to 2010 timeframes, did the

54

9721

in the 2008 to 2010 timeframe

He never talked about??Mr.

13284

Lewis

That type of information,

13285

YES.

And what do you

Similar information to that,

Sir,

YES.

have you had a chance to review that document in front

I have.

Sir,

is that document consistent with the type of

information you just testified about of what the

2008 to 2010?

A.
at all.

Q.
the

A.

Q.

Sir,

Well,

Okay,

I am sorry.

to it

So are you saying that that document is

in

it is but I would want to sort it a different

sir.

55

9722

13286

the way it is like this. This is looks like

Sir, how then does that document compare to the documents

you have seen between 2008 and 2010

A.

It just goes back to the type of information. Now were??

It is still the information need for what our

adversary was wanting in that theatre of operations.

Q.

MJ:

Sir, for that type of information did the
Yes.

How do you know that, sir?
Based on the EEI that we learned that they wanted in the

And then how

information.

I am sorry, sir. Keep going.
Just a minute.

Yes?

56

9723

13287

I am sorry, Your Honor. Objection,

foundation. He is not factored in on that this information that he
is looking at in the exhibit is similar to the information that he


MJ: All right.

I am going to overrule that. He has testified

that??is

So, overruled.

Proceed.
Questions by the trial counsel, MAJOR FEIN, continued:
Q. Sir, the guestion was
A.
Q. Sir, when you say that is that the type

of document that you have been testifying about? Is it similar?
A. Yes.

Q. The same similar type of information that is in that

A. Yes. If it was??yes.
Q. How do you know that, sir?
57


9724

13288

A.

Q. Sir, do you have an opinion about

A. Yes.

Q. Sir, what is your opinion on

A.

Q. Why is that, sir?

A. Um, there is still some value to There is still some

work that needs to be done with it. But it is such??

I just think
that is probably what I would expect if I was??if we were going to

what I would expect.

Q. Sir, you have had in this block of testimony, you have
discussed volume. Was your??excuse me, sir. Sir, do you have an
opinion about

A. Um?hmm. I have an opinion. Yes.

58
-"iieigi-1!

9725

13289

Q. Sir, how confident are you in that opinion?

A. Very.

Q. What is your opinion, sir?

A. are more credible to any adversary.

When we??even in a??if it is a regular espionage case or
those documents need

I

to be evaluated.

Q. Sir, I asked you about, based off the is you
opinion that is true for the as well?
A. Yes. Absolutely.

Your Honor, may I have a moment?

MJ: Yes.

59

9726

[The

Prosecution Exhibit

13290

trial counsel conferred.]

Your Honor, I have no further questions.

MJ: All right.

MJ: Cross?examination?

Yes, Ma'am.

WIT: Major Hurley.

Ma?am, the United States is retrieving
from the witness.

CROSS-EXAMINATION

Questions by the assistant defense counsel, MAJOR HURLEY:

Q. Good afternoon, Mr. Lewis.
A. Good afternoon, Major Hurley.
Q. Let's set the table first. What I want to talk about is

everything that you considered in coming to these valuation opinions,

okay?

A. Okay.

Q. So you considered your experience?

A. Yes.

Q. You considered your memory of these counterintelligence

operations and investigations?

A. Part of my experience, I would make that one.
Q. Okay. Well, we will.
60
"liege;-1!

9727

13291

Okay.
So you considered your experience and your memory together?
I would??yes.
Now did you consider at all the thing that
for you? The
Did I
The EEI that she pulled for
Right.
January 2013?
Did

Did you consider it?

Did I review that document?

Yes.

Yes.

All right. And then finally, you considered the thing that

pulled for you, as well?

Yes.

Okay. So first off we are going to talk about the EEI.
Okay.

So the EEI was pulled at your direction?

61


9728

13292

Yes.
Pulled by
Yes.

Pulled for the purpose of helping you prepare to testify in

this trial?

A.

Q.

Yeah.

The EEI oontains roughly three blocks of information.

First it contains the country?

A.

Q.

MJ:

A.

Q.

Okay.

Is that
What do you mean, oountries??okay.
Go ahead.

Yes.

The country who has purported to be interested in certain

bits of information?

A.

Q.

interested in,

A.

Q.

Yes.

It also contains the information that they are purportedly
oorreot?

Okay.



You said purportedly. What do you mean by that?

62

9729

you?

13293

Well, I am sorry. It contains the country that has
Yes.

The EEI does?

Right.

The one that ??the one pulled for

Yeah.

It also Contains what information that

Who?
What

I just want to make sure that I understand when you said

I meant the country?

Okay.

So it's got the country?

Yes.

It's got the country's info that
Yes.

And it's got an ID number?

Yes, air.

63

9730

13294

Q. Okay. In a conversation earlier today you told me that ID
number was an internal administrative number?

A. I did.

Q. You also told me that

could pull the information

for you that was underlying a specific bit of

A. She could have.

Q. So in one of the bits of

A. Okay.

MJ: Wait.

Q. Any memory of that?

A. I don't remember specifically that EEI

But I will trust you it's on there.

Q. Well, let's just say for

A. Could I

Q. just use this as a hypothetical

MJ: Okay. I am going to ask the witness, Mr. Lewis, when you

are asked a guestion and you are not sure, don't say, ?Okay? like you

agree. Just say I don't understand the guestion, I don't agree or I

can't answer that.
WIT:

Okay, ma?am.

64

9731

13295

MJ: Go ahead.
O. Certainly you could review that document if you wanted.

Would you like to really guiok?

A. I believe you it is on there.

O. Okay. And this is just an example.

A. Okay.

O. I am not holding you to this.

A. Okay.

O. I am not holding you to these facts. So what

could have done if you had expressed interest in that information,

she could have pulled all of the information that she had that led

her to include information about
correct?

A. Yes. If I

O. Okay.

A. I can further explain that.

O. Go right ahead.

A. What that number would have done, it ties it back to the


Q. Right.

A. the case officer had prepared where that EEI was
listed.

65
Eigii?xngigin

9732

13296

Q. Sure.
A. And it would have given multiple things that happened in

that meeting, to include when??how that EEI was asked for.

Q. Right. So and could have done that at your
direction?

A. She could have done that, yes.

Q. Certainly. All right. Now, we are going to move on what

pulled for you.

A.

Q.

A. All right.

Q. I keep renaming that guy. What pulled for you.
A. Okay.

Q. What he pulled for you were successful oounterintelligenoe

operationssorry. He pulled for you the
correct?

A. [No response.]

Q. That corresponded to successful offensive

oounterintelligenoe operations?

A. That was part of it. I
66


9733

13297

Q. Please go forward
A. Specifically what I asked for was the most successful
over the last several years.

Q. Right.

A. And then subseguently, the least
from indicating for whatever reason that

there was a low end of what??trying in my mind what the

??if that was what was on the list the most the

Q. Right.

A. That type of thing. That was??that is what I had him pull
for me.

Q. It didn?t include any??what he pulled did not include any

failed operations, only successful operations?

A. That is true because there wouldn't have been

Q. Right. So you considered those three things?
[sic] information?

A.

Q. The information. And then your memory and
experience?

A. Yes.

67
.

9734

13298

Q. That is how you arrived at your Conclusions?
A. Yes.
Q. All right. So, just to clarify, in your career have you

ever valued information from the Department of State before?

A. No.

Q. Have you ever in your career valued information ClDNE?lrag
database before?

A. No.

Q. Have you ever in your career evaluated information from the
ClDNE?Afghanistan database before?

A. No.

Q. Have you ever in your career evaluated information that

those detainee assessment briefs before?

A. No. No.

Q. Have you ever in your career evaluated the information??a
A. No.

Q. How long did you spend reviewing these oharged doouments?

Let's go by each document. How long did you spend reviewing the
Department of State information?

A. An hour. Hour and a half.

68

9735

13299

Q. How long did you spend reviewing the ClDNE?lrag
information?

A. Probably several hours??um,

Q. Just ClDNE?lrag.

A. Um, I'd have a hard time separating that because Iraq and
Afghanistan, they were baok?to?baok.

Q. All right.

A. Hour and a half to 2 hours for both.

Q. So for combined, both the Iraq and Afghanistan, was

2 hours max?

A. Max.

Q. So??gotoha. How long did you spend reviewing the

A. Um, an hour?and?a?half.

Q. How long did you spend reviewing the

A. An hour, max.

Q. All right. So let's go through these as in the order in

which the government went through them, all right?
A. Okay.
Q. So the first thing we are going to go through is the
Afghanistan database, okay?
A. Okay.
69


9736

was you looked at

A.

Q.

A.

Q.

documents

A.

A.

Q.

13300

Great. So what you did with the CIDNE?Afghanistan database
about 40 records?
I think

that is what I've testified to. Yes.

Did you pull these records yourself from the database?
These were part of the charging documents.

How did??let?s re?ask this guestion, Mr. Lewis.
Okay.

How did those documents get in front of you?

The prosecution team helped

They just sat you down with a binder and all of the
were in the binder?

For those??there were a couple??yes. For that, yes.
Did you look through the records

Yes.

did they help you look through?

No. I read them all myself.

All right.

And by "all of them" you mean 40 of them?

For that. Yes.

And you found about 10 that were, in your mind, a

responsive to the search queries that you were making?

A.

I think it??I can't remember the specific number. What I

remember specifically is for

70
. I I.

9737

13301

Q. Um?hmm.
A. have been about 30 percent. So it must have been
a little??either 36 documents and I found 12; or around 30 percent
for is what I thought responsive to what I knew was
consistent with what our foreign adversaries would want.

Q. Sure. Now before you started this process, did you write
down the keywords that you were going to be looking for?

A. No. I just read those.
Q. Right. So you just read the documents and then found as
you went through these are the responsive records?

A. Based on my experience I know that these are the things
that would be of interest to the foreign adversaries?

Q. Right. But there was not that up?front process of
identifying the words specifically you were looking for?

A. No.

Q. All right. So you find these records that you believe to
be responsive.

Now what did??and you compared them with in this

instance with CIDNE?Afghanistan, you compared them with your memory,

right?
A. When I am reading the document, yes.
Q. Right.
71


9738

13302

A. As an intelligence professional, the types of information
that we knew a foreign adversary would be interested in, yes.

Q. So you compared it with your memory those documents?

A. Yeah.

Q. Now did you ever compare them with specific EEI

that you asked her to pull in January 2013?

A. That would??yeah. In that case, that also added to my
knowledge of what was on that report.

Q. But did you look at the responsive records and then look at
the EEI that pulled for you or were you just thinking
about it as you were looking at the record?

A. Probably a little of both.

Q. All right. So it is possible that you had the EEI with you
at the time?

A. Yes.

Q. Now,

this review happened last week? This review that we

are talking about?

A. Yes.

Q. The hour or so that you spent on CIDNE?Afghanistan?

A. Yeah.

Q. So you reviewed the documents, you remembered yourself a

few things, you looked and you saw the EEI from Now from

72


9739

13303

the things that you remembered yourself, did you ever??did you write
anything down about the things that you remembered yourself?

A. No.

Q. Did you ever take this information in your memory and go
back to source documents to verify that your memory of the source

documents oomports with what's actually in those documents that gave

you the memory?

A. You mean outside of the EEI list?

Q. Right.

A. No.

Q. I?m glad you brought up the EEI list. So you read these
documents that you felt were responsive to the EEI information.
Right?

A. Yes.

Q. And the EEI information, it was laid out by country.
Right?

A. Yes.

Q. Laid out by topic and

A. Yes.

Q. And it was laid out also by this ID number?

A. Yes. Well, the ID number was there.

Q. Right.

73
Eigii?xngigin

9740

something
pull this

A.

Q.

A.

Q.

space in your brain and say,

13304

I don't know how that fit in with cert??with the data.
Sure.

I know what it means

But what the ID number could have done was give you
to give back to to say, would you
information so that I can look at it again??

Right.

It would have given you that capability?

It would have.

But did you do it?

No.

Did you??and you didnthe documents?
No.

You didn't do it for any of the documents?

Go back??to go back and ask for more

Go to

No.

And you didn't go back for any of the document to that

you know what; I am going to go back and

search again to find this information?

A.

No.

74

9741

13305

Q. Now you testified that during this time
A. That is what we

Q. From 2008 to 2010?

A. Yeah, that we had learned

Yes.
Q. Did you ever do anything to go back into those records and

see exactly those documents that??when you were thinking to
yourself you never went back and

said let me get a better description of that?

A. Well, no I did not. I felt comfortable with from the
standpoint of
So I knew that the

Q. Right.

A. When it comes to that from the EEI and what we were
providing. I just didn't feel a need to go back

75
Eigii?xngigin

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13306

Q. So comfortable you never looked back?

A. Okay. Yes.

Q. Is that an accurate description?

A. I

Q. That you were so comfortable in your knowledge you never
checked?

A. I don't know if comfortable. I think secure in my
knowledge. Comfortable is a little casual.

Q. Right. Sure.

A. But I felt like I knew what I was talking about. So


Q. So secure in your knowledge that you didn't even need to
check.

A. Okay. Yes.

Q. Is that accurate?

A. I would say yes.

Q. Okay. So this

that you provided the government,

right?

A. It is.

Q. Right. And the

records?

76

9743

13307

A. No. It was a review of the totality of the database based

on the sample that I reviewed.

Q. Right, and how many records did you review with the
database?
A. About 40.
Q. Right. So you reviewed 40 records, you thought
or so; right? That was one of your givens?

A. Yes.

Q. And that's based on your memory?

A. Yes.

Q. Then you thought, well, let me just multiply

Is that about right?

A. No. I don't think I did it guite that waythink if you look at the totality of the information, the

sample of the information, it was??seemed oonsistent that the reports

were prepared the same way and had the same types of information as
Even of the ones I read,

you go across there. a group of those fit

where all of them would have been of value to the foreign

77


9744

intelligence service.

13308

When you look at the ones that really had some

meat on the bones, some things they

ever?

Right. And it was a conservative guess?

I think so.

But it was a guess?

It's my opinion based on my knowledge and my experience.
Right. And the likes of which you've never given before,
Specifically like?

Specifically like this.

You

In the opinion you just rendered?

78


9745

13309

You mean as an expert?
Yes.
That's correct.

Right. So let's talk about the

recall you indicated that you valued the

A.

Q.

That would be the??yeah,

that

Mostly

Mostly

oonfused everyone with

All right.

So the Thanks for

clarifying.

aoross those operations.

hour?

A.

Q.

Same type of TTP information that we've seen oonsistent
Yes.

So let's go through this again. So with the

That's about right. Yeah.
And you read those and that took you about an
79
. -

9746

13310

A. I think that is what I said. Yes.

Q. Right. And at the end of that time as you looked through
those documents, did you consider the EEI that pulled for
you?

A. Not really. Not at that time. No.

Q. Did you consider the data pull that [sic] did
for you?

A.

Q. I'll never get it right and

A. We'll just call him

Q. apologize. Right. It may save us time.

did for you. Did you consider it?

A. Not at the time I was reviewing them. No.

Q. The only thing you were considering was your memory?

A. Experience.

Q. Right. Your experience and what you remembered?

A. No. Experience and what I
would be of interest to a foreign intelligence serve.
Q. Right.

Did you consider any physical, tangible thing?

A. At the time I read them? No. I was reading them to

acquaint myself with them; the types of information that was in

80

9747

know through my experience what

13311

there; and identify the types of information I thought would be of
interest to the foreign intelligence services.

Q. So from your memory you thought of the information that was

contained in

Right?

A. From my experience I know that

Q.

A. Or want to know more about.

Q. So from that you went to??you again, you delved into your
experience. Right? You read and you reviewed your
experience. Is that accurate?

A. I think that was an on?going??I don't think it was a

separate thing. I think as I am reading them I am applying what I
know what would be of interest to a foreign intelligence service when
I've seen how??what was the format of the documents, they got to be
where they?re??there is the military, so there is a format
Q. Right.
A. is always the same. You can start going through the

specific areas and see some consistency in what you were seeing in

those types of documents.

81

9748

same question I had for

13312

Did you??before you started this?? the

Did you write down any key words?

Like here are the things I am going to be looking for?

A.

Q.

A.

No.

So after you reviewed the

No. When I was reading them, I was reading them to see the

types of information that were in there and then reoognizing what

would be of interest to the foreign intelligence service so that I

had that knowledge then.

Q.

information that

A.

Q.

in

So after the recognition, you thought of these bits of
Correct?
Yes.

And you thought of the bits of information that

Right.

And that you thought that this is the information that

And also remember??I also know that the have asked

82

9749

13313

Right.
Okay.

Did you ever go back to the information that gave you the

understanding that

A.

Did you ever

No. I was never looking for the exact document. I was

looking for the types of information I knew that would be of interest

because the EEI in most times, is not really specific.

of information.

It is a type

The nuance

So we're really

talking about the same types of information.

Q.

A.

Right.
Not specific documents that existed in any one place.

But you never went back there at all, did you, Mr. Lewis?
Back to where?

When you looked at the

Right.

83

9750

13314

Q. never went back to this
A. As I stated earlier when we were talking about I am
very confident and I know that within the area, the
information??
Q. But did you ever check, Mr. Lewis?
A. Check for each individual document? No.
Q. For the stuff that is
A. I know it is similar.
Q. But you never checked, did you?
A. I don't have to check. I know it is similar.
Q. Mr. Lewis, if you would just listen to this question.
A. I?m??okay.
84


9751

13315

Q. Did you

A. No.

Q. Thank you.

A. I didn't need to check.

Q.

A. In the area of
Q. Right.

A.

It is similar information. It is not like hmm. In that
area I am Very comfortable; I am Very satisfied with my answers. In


Q. And you didn't this time either.
A. I don't have to.
Q. Okay. Let's talk about You said that the

Is that right?

A. State Department cables?
Q. The ones that were??yes. State Department cables.
A. Yes. Yes, sir.
85
Eigii?xngigin

9752

computer?

A.

Q.

13316

In this instance you did a keyword search.
It was a database.

Right. So you were looking??you were searching on a
I was.

So in this instance did you write down the keywords that

you were going to be looking for?

A.

Q.

A.

Q.

Nope.
You just went off your memory?

I know them.

Right.

I knew what I wanted to look for.
Now, you've considered,

obviously, you considered your

experience when you were doing this?

A.

Q.

Yes.
Did you consider [sic] document?
Not document. No.
Did I get it right that time?
No. It was

We will go with that.
Right. You have these days.
86


9753

13317

I don't know why you can't remember that Major Hurley?

I don't know why either.

I am going to get it. I feel confident.
I hope so.

You didn't oonsider or you did consider

I was aware of the EEI. Yes.
Did you consider dooument?

Um, no.
All right. Okay, so you do the search and you pulled up a
Um?hmm.

As you recall there were about 900 responses to that?
Yes.

Were there 900 responses or 900 documents?

87


9754

13318

A. I can't tell you that.

Q. All right. So you look at the first cable and it contains

A. Yes.
Q. Then as you were looking at it you compared it to, again,

at this point it was your memory,

A. My knowledge. Yes.

Q. Your knowledge.

A. Knowledge and experience.

Q. Sure. All right. What do you think the best word is. Is

it knowledge, experience or memory?

A. I don't like memory.

Q. Okay. So we will go with experience?

A. I think it is based on my experience.

Q. That's the word I will use. So you used your experience.

Now, your experience, in your mind, you were thinking of one

particular document or a particular document that was similar to the

information that you saw, right?
A. No.
Q. This is using your experience.
88


9755

what

Q.
your experience.

A.

Q.

A.

Q.

I think I know that the

Right.
So I just know that.

Sure.

13319

So when I am reading those documents it is matching exactly

I know the

No need to go back to look at the
No need to go back there?
Absolutely not.
You just knew?

The

Right.

I know that.

documents that created

And you knew that this information was responsive to it

because you spent??how long did you spend reading each cable?

A.
title is coming up;

get??you are reading exactly what is being said about that,

Going through,

looking at the meat,

whole

89

9756

the data there.

looking for where the keyword??where the

Once you

not the

13320

Q. Right.

A. who was saying what to whom in those documents.
Q. Right. So you read that, read it for about a minute?
A. I don't know exactly how long it would be.

Q. So

A. There was more information in some than there were in

others

Q. Right. So was it longer than a minute for each one?

A. I don't know how to answer that.

Q. Okay. Some amount of time was spent looking at it?

A. I spent time. Yes.

Q. And you never went back for all of those cables that you

found or all of that data you found you never went back and Verified
that it was the same or similar information?
A. Nope. It was similar??same information. I mean there is
only so many ways you can oharaoterize
So when
you read through there if you know that is what the
and you are reading that, that is what they are
interested in. I didn't have to go back and find an underlying or
It is about what's .,

supporting document.

It is what the documents

90

9757

13321

were about. I was very confident in my experience that was exactly

what the information is.
Lewis? So

Q. This is going to be how it ends every time, Mr.

confident that you didn't need to check?

A. I don't know what you want me to check.
Q. Did you check or not?
A. Check what, Major Hurley?

Q. Check the documents, the underlying documents that gave you

your experience. Did you ever go back and check for any of them?

A.

Q. So EEI told you that?

A. That is not EEI.

Q. The EEI that was pulled by that gave you that

information?

A. That's the

Q. Right. I apologize for

A. No, no. I just want to make sure from a nuance standpoint.

This isn't making this up. This is from the reports that

we got from the
Q. Right.

So did you consider what pulled for you?

That EEI when you were doing this?

91


9758

13322

A. Consider? What do you mean consider?
Q. Was it in your mind as you were skimming through these

documents?

A. Yes. Yes.
Q. But did you have it in front of you?
A. When I was Viewing those??specifically were those

documents??no because those keywords are??I didn't need any

supporting documentation for that.

Q. It was all from memory?
A. Experience.
Q. Experience. Let's talk about now. We are just

going to go through a similar process, Mr. Lewis, with respect to

With you considered about 40 records?
A. I think that was the sample. Yes.
Q. Roughly the same number that you considered with
A. Basically. Yes, sir.
Q. With did you have document in front of
you?
A. Not at the time when I was reviewing it. No.
Q. Did you have document in front of you.
A. No. Very good.
92


9759

13323

Q. Thanks. One time. So all of this was going off of your
experience?

A. I was reading it to get of my experience the intelligence
value that was contained in those documents. Yes.

Q. So as you were going through there you, again, did you ever
compare what was in those documents and you found a number of
responsive records?

A. Yes.

Q. Did you ever compare what was in those documents to any

original source material?

A. No.

Q. Now you said

A. That was my low estimate. Yes, sir.

Q. That estimate, again, this is the first time you've offered

any such estimate with respect to the database?
A. Yes.
Q. Now,

I guess getting back to comparing these documents, did

you ever as you were looking at it, you knew so well that the??in

this case,

93

9760

13324

A. My answer is going to be the same as it was for
Afghanistan. We know what their TTP was??I mean, we know what their
EEI was. So we know the types of information that

Okay? That CENTCOM
The same type of information. Did I go back and look for
every, single document if that was it? No, sir.
I did not.
Q. Let's talk about the Before the

government showed you or before the first

time you reviewed it, had you ever seen one before?

A. Electronically.
Q. Right.
A. You know where you go one your email account and you pull

up??you?re looking for someone. I've never seen it printed out.

Q. And again, you first used your experience, right?
A. Yes, sir.
Q. Did you use document?
A. I was aware of the EEIs on that document. Yes.
Q. Did you use document?
A. No. No.
94


9761

13325

Q. So did you ever, this is the last time maybe I will ask

you; did you ever go back to these source documents and review the
information that gave you your experience with respect to

A. No. In that case where they??when I know where the

Q. Let's use the database. Do you recall what
specific information was in the database that??and just

one or two topics, that you felt

A.

Q. Sounds good. So I got about four out of that.
A. Oh, I thought that was one but okay.

Q. Well, I got IED attacks,

A. Okay.

95
Eigii?xngigin

9762

never vetted those areas against any known set of data,

A.

Q.

confident

A.

with respect to those specific areas,

Other than knowing that the

Right.

13326

there was??you

right?

That was the basis for my knowledge??my expertise on that.

Just you??yeah, just your experience?

As well as experience and what we know the

With respect to each estimate, you indicated

in your estimates. Is that right?

I

Do you recall doing that?

I am confident because I went
You could be

what



I??it is my opinion.

But you could be wrong?

It's my opinion.

Right. And sometimes opinions are wrong,

96
. I

9763

that you were

right?

13327

A. Is that a question?

Q. It is. Are sometimes opinions wrong, Mr. Lewis?

A. Yes.

Q. Especially when it is the first time you have ever done it

or your first time you've ever rendered an opinion?
A. An opinion like this. This is the first time.
Q. Right and sometimes when we are inexperienced we don't
necess??that's when we are prone to a mistake?
A. I would say my experience isn't based on giving opinions.
My experience is based on the information that is being??that we are

talking about here. That is my experience.

Q. Right.

A. Saying yes or no; left or right; I don't need experience in
that. It is based on what I know and what I've done for almost 30
years.

Q. Right. Although what you've done for almost 30 years isn't
give opinions, is it?

A. No. Well, maybe to some people but unsolicited.

Q. Let's go back to the What

specific information did you find in the

97

9764

13328

A. The thing that oonoerned me the most on the information

that was in there was the reports of the intel value that we were

Q. Can you remember one
that you reviewed?

A. Not at the moment. No.

Q. So you can't eVen??so from
you can't remember bit of data?

A. Speoifio??no.

Would you like to refresh my memory? If you

have a question about one, I can review one and you can ask me why I
felt that way about it.
Q. Okay. Lewis. I

Thank you for laying that out for me, Mr.

don't want to refresh your memory. I just want to know if sitting
here you oould??you had an independent memory of any
and you said you didn't. Is that right?

A. That is correct.

98

9765

13329

Q. And I further asked you if you could remember any specific

fact in and you said you couldn't. Is

that right?

A. Then that would be a wrong answer. A specific fact, I can

tell you??no, I cannot; a specific fact. I can tell you what is in

the reports that would be of interest to a foreign intelligence
service.
Q. Right. Let's talk about the cables.

Again, and we will

just sort of go through each one of these topics. Can you remember a

specific fact that you found in the Diplomacy database, a

specific fact?

A. This is the State Department cables, right?

Q. State Department stuff, yes.

A.

Q. Sure.

A.

Q. What I am looking for is a specific fact. Just not that??

that was Very general or that??my opinion about that answer, Mr.

Lewis, was it was general. What I am looking for is a specific fact.
A. Without reviewing any of those documents, remembering a
specific fact sitting here; no, sir.
99
Eigii?xngigin

9766

13330

Q. How about in the database. Can you remember a

specific fact; the database?
A. I guess I am getting hung up on the word "fact". Do you
mean a specific detail from a specific report or the fact that

all in those documents; those are both facts to

me.

Q. Okay.

A. Which would change my answer??preVious couple of
Q. Give me one TTP then?

A. that.

Q. I am sorry to interrupt you, Mr. Lewis. Did??were you able

to answer that question?

A. No. I was just going to say when I was thinking about when

you said a "fact", to me a fact would be that there is information of

intelligence value in that report. That is a fact. If you were
asking me

No, I don't think I could tell you that, Major Hurley.
Q. Can you tell
A. But I can tell you that specifically in which you

just said, one particular fact

100

9767

13331

by a fact, I know that is in a report

YES:

cause I read that. Do I remember specifically what town, what day it

was, those types of details; no, sir. I can't do that.

Q. You don't remember or the report didn't indicate what we
would use. Did it Mr. Lewis?

A.

Q. The report indicated what is used on a particular day. Is
that right?

A. Yes.

Q. Right. That is what it said. It didn't say what

it just said that on this day, with

this attack, we used these things. Is that right?

A. Yes, sir. But as a compilation of all those things,

I mean, those are things that are all contained in

there that it is almost like a living document, if you will, of
things that were happening and written by those people on the ground

at that time. It is a snapshot in time,

101


9768

event in the past.

A.

Q.

am SOIIY.

But

It is how we responded, right? A SIGACT talks about
Correct?
Yes, sir. It's a report. Yeah.
Right. A report about what happened, right?
Yes, sir.

Do you accept that there is a difference between

Do I see a difference there?
Yes.
No, air.

You don't?

How that??I think??the report of what happened that

No.

I mean, he we??how we are going to??

I don't see the difference there.

102

9769

13332

ELD

I

13333

Q. Sir, you don't see the distinction between doctrine and a

historical record?

A. Yes. I see the difference between the two. Yes, sir.

Okay. Thank you. One moment, Mr. Lewis

and, ma?am, if I may have a moment?

MJ: Go ahead.
[The defense counsel conferred.]

Ma?am, that concludes the examination. What

we would do is move to strike Mr. Lewis? testimony with regards to

evaluation. That motion would be based on M.R.E. 702. It doesn't

have a specific factual basis and it is not done on reliable
principles and methods.
MJ: All right.
I've already ruled on that motion but I understand why
you're doing it again after the foundation.
It is denied.
Thank you, ma?am.
MJ: Redirect?
No, Your Honor.
MJ: All right.
Temporary or permanent excusal?


Temporary excusal, Your Honor.

103


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13334

MJ: All right.

Mr. Lewis, you are temporarily excused. Once again, please
don't discuss your testimony or knowledge of the case with anyone
other than counsel or the accused while the trial is still going on.

Now my understanding is we are going to have another
session and recall this witness.

Is that correct?

No, Ma'am.
MJ: At 3:30?
Well, actually, ma?am, yes. Well if we can go

into a recess and the United States will talk to the defense to have
a proposal upon what we should do for the open record.
MJ: All right.

Well, at this point, you are excused.

Sorry, Your Honor.

WIT: Thank you, ma?am. So am I excused?excused

Sir, if you could just wait in the back

WIT:

We will let you know what that really means.
[The witness was temporarily excused, duly warned, and exited the

courtroom.]

104

9771

10

11

12

13

13335

MJ: All right.
Anything we need to address before we reoess the Court?
Other than if we could ask the

No, Ma'am.

Bailiff or Mr. Prather to notify the public that maybe we will
restart at 1600 with the open session to give us adequate time to
talk about the next steps forward.
MJ: All right.
Defense,

any concerns with that?

CDC: No objections, Your Honor.
MJ: Okay.

We will be at reoess then until 1600.

[The court?martial recessed at 1525, 2 July 2013.]

OF

105

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13336

1
2

[The court-martial was called to order at 1608, 2 July 2013.]
MJ:

Court is called to order.

Let the record reflect all

3

parties present when the Court last recessed are again present in

4

court.

5

opened.

6

present.

7

The Court noticed that -- notices that the Court has been
This is an open session and there are members of the gallery
Major Fein?

TC[MAJ FEIN]:

Yes, ma'am.

The court security officer completed

8

his open hearing checklist and that will be filed in allied documents

9

with the post-trial allied documents.

10
11
12

MJ:

All right.

Major Fein, have any exhibits been introduced

during the closed portion of the session?
TC[MAJ FEIN]: No, ma'am, not during this last session.

However,

13

the parties have agreed upon an unclassified summary of Mr. Lewis's

14

testimony that can be read on to the record.

15

MJ:

Major Hurley, is that correct?

16

ADC[MAJ HURLEY]:

17

MJ:

18

TC[MAJ FEIN]:

All right.

Yes, ma'am, it is.
Go ahead.

Ma'am, Mr. Lewis testified as a

19

counterintelligence expert regarding the value of U.S. Government

20

information.

21

information contained within the CIDNE-I, CIDNE-A Significant

22

Activity databases, the value of information contained within State

23

Department NCD database, the value of information contained within

Specifically Mr. Lewis opined on the value of

9773

13337

1

the JTF GTMO Detainee Assessment Database, and the value of

2

information contained within the Global Address List.

3

cross-examined on his basis for knowledge on valuing the information.

4

MJ:

All right.

5

TC[MAJ FEIN]:

Thank you.
Yes, ma'am.

Mr. Lewis was

Government ready to proceed?
Your Honor, the United States moves

6

to admit Prosecution Exhibit -- what has been marked as Prosecution

7

Exhibit 46 for Identification as Prosecution Exhibit 46.

8

- This prosecution exhibit for identification, ma'am, was referenced

9

in Prosecution Exhibit 181 Alpha which is a Stipulation of Expected

10

testimony for witness Number 29.

11

MJ:

12

CDC[MR. COOMBS]:

13

MJ:

14
15

This is a -

Any objection?

All right.

No objection, Your Honor.
Prosecution Exhibit 46 for Identification is

admitted.
TC[MAJ FEIN]:

I'm sorry, ma'am.

I should have mentioned this

16

before, other housekeeping.

The transcription of Mr. Lewis's closed

17

testimony pursuant to Appellate Exhibit 550, the United States will

18

start transcribing it and will work through the procedures set forth

19

by the court in order to provide an unclassified redacted copy as

20

soon as possible.

21

session for Agent Shaver, that copy has been reviewed by both parties

22

and the pre-authenticated version has been given to the different

23

equity holders, and the United States anticipates that will be

As an update, Your Honor, on the previous closed

9774

13338

1

returned by Friday.

2

session on Friday it will be posted to the Department of Army FOIA

3

reading room for the general public and media to access the

4

unclassified portions of that closed session.

5

MJ:

6

address?

All right.

7

TC[MAJ FEIN]:

8

MJ:

9

TC[MAJ FEIN]:

10
11

And once it is returned because we won't be in

Any other housekeeping matters we have to

No, ma'am.

Is the government ready to proceed?
Yes, ma'am, the government is ready to proceed,

and the government rests.
MJ:

All right.

Has the government looked through the

12

prosecution exhibit list?

13

to admit are admitted?

14

TC[MAJ FEIN]:

All right.

Yes, ma'am.

So all the exhibits you wanted

And just to avoid any confusion,

15

there are some exhibits that are, unfortunately have been double

16

marked, it's different variations.

17

times on the record.

18

for opening statements, and then a different version was actually

19

admitted, but the government has reviewed the prosecution exhibit

20

list and the evidence offered has been admitted that the United

21

States intends to use.

We've already discussed this at

And that was because it was marked one version

9775

13339

MJ:

1

Please, the parties and the court reporter, let's get

2

together and make sure that all of the exhibits are accurately

3

reflected in the record.
TC[MAJ FEIN]:

4

Yes, ma'am.

And just as a point of

5

Clarification, also, ma'am, the United States has not presented nor

6

does it intend to present, since the government rested, the evidence

7

that was offered during the bill of particulars of a classified

8

enemy.

9

be presenting it.

That evidence was not presented and the government will not

MJ:

10

All right.

So in that case then the next phase of these

11

proceedings will be the defense case in accordance with the court

12

calendar, and the parties have arranged travel for the witnesses.

13

will be in recess until Monday, the 8th, and the defense will be

14

starting its case at 0930.

15

a finding of not guilty as to any of the offenses charged, they will

16

be filed in writing.

17

schedule, it will be by Thursday.

18

court once they've reviewed it, depending on how extensive it is, how

19

long they will want to require a response.

20

R.C.M. 802 conference and I don't know at this point, depends on the

21

motion itself, whether I'll be able to rule on it before the 8th or

22

not.

23

have any objection to beginning their case?

We

If there will be any defense motions for

I believe we've come up with a tentative
The government will then tell the

The parties talked in our

In the event I don't rule on it by the 8th, does the defense

9776

13340

1

CDC[MR. COOMBS]:

2

MJ:

No, Your Honor.

So, the plan will be then, we will start at 0930 on the 8th

3

of July and proceed with the defense case.

4

else we need to address before we recess the Court?

5

TC[MAJ FEIN]:

6

MJ:

7

TC[MAJ FEIN]:

8

CDC[MR. COOMBS]:

9

MJ:

10
11

And is there anything

May I have a moment, Your Honor?

Yes.
No, ma'am.
Nothing from the defense, ma'am.

Court is in recess until 0930 on 8 July.

[The court-martial recessed at 1615, 2 July 2013.]
[END OF PAGE]

9777

13341

1
2
3
4

[The court-martial was called to order at 1017, 8 July 2013.]
MJ:

Court is called to order.

Major Fein please account for

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

Your Honor, all parties when the

5

Court last recessed are again present with the following exceptions.

6

Mr. Robertshaw, court reporter, is absent.

7

Captain Morrow is absent.

Mr. Chavez is present.

Captain Overgaard is present.

Also, Your Honor, as of 0930 this morning, there was 21

8
9

members of the media in the media operation center, one stenographer,

10

three media planned in the courtroom, 25 spectators in the courtroom,

11

and 36 spectators in the overflow trailer.

12

prepared in case it’s needed for this morning.

13

MJ:

16

Thank you.

There have been a number of filings that have been added to

14
15

All right.

The theater is being

the record.

Major Fein, would you like to address those?

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

Ma'am, at this point all Appellate

17

Exhibits, first Appellate Exhibit 593 is the defense’s motion for

18

directed verdict for Charge II Specification 4, 6, 8, and 12, the 641

19

offenses.

20

for Charge I, the Spec of Charge I, Charge I, Article 104.

21

Exhibit 595, defense’s motion for directed verdict for the 1030

22

offense.

23

motion for directed verdict for Charge II Specification 16.

Appellate Exhibit 594, defense motion for directed verdict
Appellate

Appellate Exhibit 596, defense motion –- or directed -–

9778

13342

1

Appellate Exhibit 597, United States e-mail to the Court requesting

2

this Thursday for time to respond to those four motions.

3

Appellate Exhibit 598, the defense’s ordered witness list.

4

MJ:

All right.

And

Thank you.

For the record, as Major Fein just described the defense

5
6

filed four motions for finding a not guilty under Rule for Court-

7

Martial 917.

8

were filed on the 4th of July.

9

until Thursday the 11th of July to respond to those motions.

Those are Appellate Exhibit 593 through 596.

Those

The government via e-mail requested
The

10

Court, also via e-mail, granted the government’s request to respond

11

by Thursday and advised the Court -– or the parties to advise the

12

Court if they would seek oral argument with respect to these motions.
The Court held an R.C.M. 802 conference with the parties

13
14

this morning to discuss the way forward today.

We have a list of

15

defense witnesses and we’re going to proceed with the defense’s case.

16

I –- the Court -– the government is scheduled to advise me at a

17

recess later today whether the government can be prepared to respond

18

to the defense motions by close of business Wednesday, as opposed to

19

Thursday.

20

Thursday, but that is an issue that remains up in the air, depending

21

on how the proceedings shake out and how long the particular

22

witnesses take.

So that –- at this point the government has until

9779

13343

All right.

1

Government, what is the status of the

2

transcription in the classification reviews of the closed

3

proceedings?

4

TC[MAJ FEIN]: Ma'am, the United States has had two closed

5

proceedings, well three proceedings, one was a continuation over two

6

days, at this point the first tran -– the first transcription for

7

Special Agent Shaver has been completed and is at the relevant

8

government agencies to have the classification review completed.

9

should be finished this morning and during the next recess I’ll

It

10

receive an update on that.

11

Danny Lewis those have been completed, at least the initial

12

transcription have been and both parties still need to review them

13

under the Court’s previous order, in order to present an errata

14

presented to the Court and then those will go off for classification.

15

And the United States intends to provide those copies to the relevant

16

trial counsel and defense by lunch today.

17
18

MJ:

All right.

The second and third sessions for Mr.

Defense, you’ve received a copy of the

government’s judicial notice filing?

Any issue’s with that?

19

CDC[MR. COOMBS]: No issues, ma'am.

20

MJ:

21

Is there anything else we need to address before we proceed

today, with the defense case on merits?

9780

13344

1

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

I believe the Court wanted to put on

2

the record the fact that it would only consider the government’s case

3

in chief with the 917 motions.

4

MJ:

All right.

Thank you for reminding me.

That was another

5

issue that was discussed in the R.C.M. 802 conference.

6

filed their motions for finding of not guilty.

7

clarity for both sides the Court will consider only evidence

8

presented in the government’s case in chief on the merit with the

9

respect to the defense’s 917 motion –- or both motions.

10

The defense

In order to have

Are both

parties happy with that?

11

TC[MAJ FEIN]: Yes, Your Honor.

12

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

13

MJ:

14

TC[MAJ FEIN]: No, ma'am.

15

CDC[MR. COOMBS]:

16

MJ:

17

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

Is there anything else we need to address?

All right.

No, Your Honor.
Mr. Coombs?
The defense would move into

18

evidence what’s been marked as Defense Exhibit Kilo 1 and Kilo 2 for

19

Identification, into evidence as Kilo 1 and Kilo 2.

20

MJ:

All right.

I’m looking at Defense Exhibit Kilo 1 for

21

Identification and Defense Exhibit Kilo 2 for Identification.

22

the government have any objection to either one of these?

23

TC[MAJ FEIN]: No, ma'am.

9781

Does

13345

1

MJ:

All right.

Defense Exhibit Kilo 1 and 2 are admitted.

2

CDC[MR. COOMBS]: The defense would also move into evidence

3

Defense Exhibit Lima for Identification into evidence as Defense

4

Exhibit Lima.

5

MJ:

All right.

I’m looking here at Defense Exhibit Lima for

6

Identification, it’s entitled Prosecution Exhibit 15, transcript of

7

video.

8

different?

9
10
11

Is this the same thing as Prosecution Exhibit 15 or something

CDC[MR. COOMBS]:
15, Your Honor.
MJ:

It is the transcript of Prosecution Exhibit

15 is the Apache helicopter video.

All right.

And this is the -– is this a transcript that

12

both sides agreed to when we were looking at the judicial notice

13

motions?

14

CDC[MR. COOMBS]:

15

MJ:

16

TC[MAJ FEIN]:

17

MJ:

18
19
20
21
22
23

All right.

Yes, Your Honor.
Government, any objection?

No, ma'am.

All right.

Defense Exhibit Lima for Identification is

admitted.
CDC[MR. COOMBS]:

Defense would move into evidence Defense

Exhibit Mike for Identification as Defense Exhibit Mike.
MJ:

All right.

Government, any objection to Defense Exhibit

Mike for Identification?
TC[MAJ FEIN]:

No, ma'am.

9782

13346

1

MJ:

Defense Exhibit Mike for Identification is admitted.

2

CDC[MR. COOMBS]:

Finally, the defense would move into

3

evidence Defense Exhibit Oscar for Identification into evidence as

4

Defense Exhibit Oscar.

5

MJ:

6

TC[MAJ FEIN]:

7

MJ:

8

CDC[MR. COOMBS]:

9

All right.

Government, any objection?
No, ma'am.

Defense Exhibit Oscar for Identification is admitted.
Ma'am, the defense at this point would

request permission to play Prosecution Exhibit 15 in request that the

10

Court look at Defense Exhibit Kilo 2 and Defense Exhibit Lima as the

11

video’s being played.

12

would be playing just the first 20 minutes of it, Your Honor.

13

MJ:

14

CDC[MR. COOMBS]:

15

MJ:

16

CDC[MR. COOMBS]:

The video is approximately 39 minutes long, we

So you want me to look at Kilo 2?
Yes, Your Honor.

While the video is playing?
Yes, Your Honor.

And if the –- if there’s

17

anything in the video that the Court cannot understand based upon

18

volume of what not, Defense Exhibit Lima is the transcript for the

19

video, ma'am.

20

MJ:

21

TC[MAJ FEIN]:

22

MJ:

Proceed.
Your Honor?

Yes?

9783

13347

1

TC[MAJ FEIN]:

United States -– there’s two issues.

First

2

United States would object to what the defense is offering to play,

3

this is motive evidence.

4

objects.

5

on the record that would allow this to be used for that purpose.

If that’s their purpose the United States

Based off there’s no foundation, there’s no other evidence

6

MJ:

All right.

What’s the relevance?

7

CDC[MR. COOMBS]:

Your Honor, the relevance of this is that

8

the government has charged under Charge –- Specification 2 of Charge

9

II the video, the 793 Echo Charge.

We previously requested that the

10

Court take judicial notice that Mr. Finkel’s book quotes the video

11

verbatim on this issue of closely held.

12

that would be a proper matter to present to the trier fact and not

13

for the Court to take judicial notice of.

14

we’re trying to do is play Prosecution Exhibit 15 so that the Court

15

can follow along with Mr. Finkel’s book and also the verbatim

16

transcript in order for the trier fact to make a determination

17

whether or not Mr. Finkel’s book quotes the video verbatim.

18

MJ:

All right.

19

TC[MAJ FEIN]:

The Court indicated that

So at this point what

Any objection to that basis?
No, ma'am.

I –- the second issue, ma'am, is the

20

United States would also ask the defense play the entire 39 minute

21

video.

22

-– benefit the Court to see the entire video that was charged and not

23

just excerpts of the video.

Essentially, similar under the Rule 106, that it would more

9784

13348

1

MJ:

All right.

We –- we’re – Mr. Coombs, were you planning on

2

playing a certain amount from start to finish and then not the rest,

3

or ----

4

CDC[MR. COOMBS]:

5

MJ:

6

CDC[MR. COOMBS]:

Yes, ma'am.

---- pieces along the way?
I was planning on playing just the first 20

7

minutes and the reason why the defense was doing that was Mr.

8

Finkel’s book ends when he’s quoting, in defense’s position, when

9

he’s quoting the video, he ends at the 20-minute mark.

He doesn’t

10

quote or refer to anything past that.

11

anything past 20 minutes was not relevant for our purposes of arguing

12

that the video was not closely held.

13

quoted is the -– within the first 20 minutes.

14

wants to watch the entire 39 minutes and the Court wants to do so as

15

well, defense has no problem with that.

16
17

MJ:

All right.

So from the defense’s position

Because the only thing that’s
If the government

Under the Rule of Completeness then are you

looking in -– are you asking this under M.R.E. 106?

18

TC[MAJ FEIN]:

19

MJ:

All right.

Yes, ma'am.
So you want the video played in its entirety

20

during the defense direct as opposed to you playing the second part

21

on your cross?

22

TC[MAJ FEIN]:

23

MJ:

All right.

Yes, ma'am.
Go ahead ----

9785

13349

1
2

TC[MAJ FEIN]:

Or in rebuttal -– or -– yes, ma'am.

Court will only have to ask -– or watch it once, so ----

3

MJ:

4

CDC[MR. COOMBS]:

5
6
7

All right.

Just play the whole thing.
Yes, Your Honor.

[The video was played in its entirety for the court.]
CDC[MR. COOMBS]:

Ma'am, the defense would request a 10-minute

comfort break.

8

MJ:

9

TC[MAJ FEIN]:

10

Also the

MJ:

All right.

Any objection?
No, ma'am.

Court is in recess until a quarter after 11.

11

[The court-martial recessed at 1108, 8 July 2013.]

12

[The court-martial was called to order at 1126, 8 July 2013.]

13

MJ: Please be seated.

Court is called to order.

Let the record

14

reflect all parties present when the court last recessed are again

15

present in court.

16

Over the recess I was advised that the media feed was not

17

working for the first 20 minutes approximately of the session that

18

was last held and some of the video that was played was not

19

broadcasted in the media center; is that correct?

20

TC[MAJ FEIN]:

Yes, ma'am.

United States will make available

21

during the lunch recess, Your Honor, a computer with the video with

22

Defense Exhibit -- the Defense Exhibit available for members of the

23

media to view.

9786

13350

1

MJ:

The video, was that a Prosecution Exhibit?

2

TC[MAJ FEIN]:

3

MJ:

4

CDC[MR. COOMBS]:

5

MJ:

I'm sorry, it was PE 15 that was played.

All right.

Any objection?

All right.

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

6

before we proceed?

7

TC[MAJ FEIN]:

8

CDC[MR. COOMBS]: Defense calls CW2 Joshua Ehresman.

9
10

No, ma'am.

CHIEF WARRANT OFFICER 2 JOSHUA EHRESMAN, U.S. Army, was called as a
witness for the defense, was sworn, and testified as follows:
DIRECT EXAMINATION

11
12
13
14

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

And for the record, you are CW2 Joshua Ehresman of

Headquarters and Headquarters Battalion ----

15

A.

Yes, ma'am.

16

Q.

---- 2nd Infantry Division, Camp Red Cloud, Korea?

17

A.

Yes, ma'am.

18

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

19

Q.

Chief Ehresman, what is your military specialty?

20

A.

I'm an intelligence analyst technician, sir.

21

Q.

How long have you had that MOS?

22

A.

I've been a warrant officer for about 7 years, sir.

9787

13351

1
2

Q.

What was your highest enlisted rank before you became a

warrant officer?

3

A.

Sergeant First Class, sir.

4

Q.

When were you a member of 2nd BCT, Mountain Division, the

5

S-2 Section?

6

A.

From early 2008 to late 2011, sir.

7

Q.

Did you deploy with your unit to Iraq?

8

A.

Yes, sir.

9

Q.

And what was your duty position actually before the

10

deployment to Iraq?

11

A.

The fusion –- fusion tech, sir.

12

Q.

And can you explain what that was?

13

A.

I was overall responsible for the products that come out of

14

our shop, sir.

15

Q.

And this was the intelligence products?

16

A.

Yes, sir.

17

Q.

And when did you actually deploy to Iraq?

18

A.

In November of 2009, sir.

19

Q.

And why were you deploying after the -– your unit?

20

A.

Because I was going through surgery.

21

I had surgery on both

of my ankles and it prohibited me from leaving when they all left.

22

Q.

Where did you work once you arrived in Iraq?

23

A.

In the fusions.

9788

13352

1
2

Q.

I want to ask you, you the fusion session -- section, was

that in the T-SCIF?

3

A.

Yes, sir.

4

Q.

I want to ask you a few questions about the T-SCIF

5

operations during the deployment, okay?

6

A.

Okay, sir.

7

Q.

Did the T-SCIF have CDs in it?

8

A.

Yes, sir.

9

Q.

What were those CDs being used for?

10

A.

For passing information -- the products that we developed

11

were too big to e-mail to each other and to pass to our Iraqi

12

counterparts or whatnot, so we would have to put them onto CDs and

13

transport them by hand.

14
15

Q.

And were these CDs -- if you're putting products on that,

were you putting classified information on the CDs?

16

A.

Yes, sir.

17

Q.

Were these CDs always appropriately marked?

18

A.

Not always, sir.

19

Q.

And why not?

20

A.

I don't know.

21

Q.

What would happen to the CDs after you burned information

22

down on them?

9789

13353

A.

1

We would write on it what we had on that infor -- what we

2

put on that CD and when we were done with it we destroyed or recopied

3

over.

4
5

Q.

Were Soldiers in the S-2 authorized to burn information

from their DCGS-A computers to CDs?

6

A.

Yes, sir.

7

Q.

And why would an analyst do that?

8

A.

Well, like we was talking about with the size of the

9

products, sometimes we had to put them on that to transport them to

10

another computer just in case it crashed or we had to go to a

11

different location or something to use that information, sir.

12

Q.

Did you ever have any problems with the servers going down?

13

A.

Yes, sir.

14

Q.

And was it common for analysts to burn information in order

15

to have it on a CD to have it on a CD for their ----

16

A.

Yes, sir.

17

Q.

---- own personal library?

18

A.

Yes, sir.

19

Q.

Was that a permitted practice?

20

A.

Yes, sir.

21

Q.

Was it also common for an analyst to save information down

22
23

from the hard drive down to their individual computer?
A.

Yes, sir.

9790

13354

1
2
3

Q.

By either saving onto the computer's hard drive or saving

onto a CD, what did that enable you to do?
A.

Well, if your computer crashed or -- it was like a save, an

4

automatic save.

5

the computer crashed, you had your information and didn't lose it all

6

and have to start from scratch.

7

hours to download one item.

8

again.

9
10

Q.

If something went wrong, the server went down, or

It usually took 30 minutes to 5

So it was terrible to try to do it

It was time, was not there.
So having on it CD that enabled you not to have to rely

upon the server?

11

A.

Yes, sir, it was more expedient.

12

Q.

Did the S-2 Section ever have any problems with the DCGS-A

13

computers crashing?

14

A.

Yes, sir, all the time.

15

Q.

How often would they crash?

16

A.

All the time.

17

I mean, some -- like the one that Mr.

Manning used, it crashed at least daily.

18

Q.

What about other DCGS-A computers?

19

A.

All of in them did, sir.

20

Every single DCGS-A crashed at

least once every other day.

21

Q.

Did you work off of a DCGS-A computer?

22

A.

Yes, sir.

23

Q.

How many times did your DCGS-A crash?

9791

13355

1

A.

Mine crashed at least once every two or three days.

2

Q.

When an analyst's laptop would crash, what would they do at

3
4
5
6
7
8
9

that point?
A.

We would have to move to another system until we could get

that one either fixed or running back up, sir.
Q.

And how long would it usually take to get the computer

fixed or working off another laptop?
A.

Depending on what was wrong with it, sometimes we had to

send them back to –- to the FOB -– the main –- VBC, we’d have to send

10

to VBC and sometimes it could be fixed by Mr. Milliman or somebody

11

local.

12
13

Sometimes it just needed to cool off.

Q.

Would you always get your information back after your DCGS-

A crashed?

14

A.

No, sir.

15

Q.

Have you had any experience where you lost information ----

16

A.

Yes, sir.

17

Q.

---- because of a DCGS-A computer crashing?

18

A.

Yes, sir.

19

Q.

If an analyst wanted to, could they burn information down

20

onto a CD in order to avoid losing information in the event that

21

their computer might crash?

22

A.

Yes, sir.

23

Q.

Was that a permitted practice –---

9792

13356

1

A.

Yes, sir.

2

Q.

---- In the S-2 Section?

3

A.

Yes, sir.

4

Q.

And, Chief, I know -- you're doing fine.

5

Have you ever

testified before?

6

A.

Yes, sir.

7

Q.

Okay.

If you could just let me complete my entire question

8

–- and you're doing fine, but occasionally you have a, “Yes, sir,”

9

before complete my question. Okay?

10

A.

Yes, sir.

11

Q.

All right.

Were there any rules on what an analyst could or could

12
13

Thank you, Chief.

not burn down onto a CD?

14

A.

No, sir.

15

Q.

So if it was on a –- on the T-drive, for example -- what

16

was a T-drive, by the way?

17

A.

That was the shared drive, sir.

18

Q.

If it was on the T-drive, could an analyst burn anything

19

they wanted from the T-drive onto a CD?

20

A.

Yes, sir.

21

Q.

And what about the SIPRNET, could an analyst burn something

22
23

down from the SIPRNET onto a CD?
A.

Yes, sir.

9793

13357

1

Q.

Was it common for analysts to do so?

2

A.

Yes, sir.

3

Q.

Do you recall if the S-2 Section ever put out any rules or

4

guidance as to what you could or could not burn down onto a CD?

5

A.

No, sir.

6

Q.

I want to ask you a few questions now about how the S-2

7

Section was divided up during the deployment.

Okay?

8

A.

Yes, sir.

9

Q.

How many analysts did you have working in the T-SCIF?

10

A.

In the T-SCIF completely?

11

I think we have three –- five –-

I think it was nine or ten, sir ----

12

Q.

And ----

13

A.

---- enlisted

14

Q.

Did you have a current ops and a future ops?

15

A.

Yes, sir.

16

Q.

And where was the current ops located?

17

A.

Current ops was out in the TOC area where everything was

18

going on and the SCIF was in the back.

19

Q.

And I guess in the back, was that where the future ops was?

20

A.

Yes, sir.

21

Q.

And what did analysts work on when they were working in the

22

future ops?

9794

13358

1
2

A.

In the future ops they worked on establishing trends and

identifying patterns.

3

Q.

What section did PFC Manning work in?

4

A.

In future ops, sir.

5

Q.

Were the products that PFC Manning was working on, were

6

they used for real-time on the battlefield decisions or were they the

7

used for kind of establishing trends for future operations?

8

A.

Both, sir.

9

Q.

How were they used for real-time information?

10

A.

Well, if we had something happen that -- an IED or some

11

kind of action happens, the troops in contact, then when we establish

12

something through -– off of our pattern analysis we could give that

13

to the current ops and let them know that, hey, this is probably

14

going to happen because of what we've seen in the past.

15

Q.

Okay.

So that would be something that happens on the

16

battlefield, the TOC alerts you to it, and then you would do some

17

research on it?

18

A.

Yes, sir.

19

Q.

And what about for future ops, how would his work products

20
21
22

be used for those?
A.

So we could better establish TTPs, or tactics, techniques,

and procedures to alert Soldiers that were going out and leaders that

9795

13359

1

were going out to better give them a better understanding of the

2

battlefield, sir.

3

Q.

Okay.

4

A.

When I first got there, there was two.

5
6

How many shifts did the T-SCIF run?
There was a day and

a night shift, sir.
Q.

And do you recall –- and I know it's been a little while,

7

but do you recall the general hour time periods for the day and night

8

shift?

9
10

A.

I'm pretty sure it was 09 to 21 and then 21 to 09.

I think

that's what it was, sir.

11

Q.

So 09 and 21 the day shift and 21 to 09 the night shift?

12

A.

Yes, sir.

13

Q.

And how many analysts, I guess, were on each shift?

14

A.

We had two -- five enlisted and one officer, maybe one NCO

15
16
17

on each shift, sir.
Q.

Do you recall what shift PFC Manning was on when they --

deployment started?

18

A.

Night shift, sir.

19

Q.

And who were his supervisors on the night shift?

20

A.

While we were deployed his supervisor was Specialist

21
22

Padgett was his immediate supervisor.
Q.

Did you have a NCO on the night shift?

9796

13360

1
2

A.

No.

Well, we had -- Master Sergeant Adkins was working

both, but I don't remember anybody else being back there for ----

3

Q.

Did you have an OIC on the night shift?

4

A.

We did at first we had -- I think it was Captain Keay was

5

the original OIC at night, but after the chain of command got shifted

6

up and when Major Clausen had to leave and we had to switch that up a

7

little bit.

8

Q.

Do you have if an officer replaced him?

9

A.

No one replaced him directly, sir.

10

Q.

How long -- and I know again this is a while ago, but how

11

long was Captain Keay the OIC on the night shift?

12

A.

Maybe 2 months, sir.

13

Q.

Going back to the NCOIC, the night shift NCOIC, what were

14
15

their responsibilities?
A.

Just to make sure that the direction that was provided to

16

them at shift change was conducted and then make sure that the

17

Soldiers got chow and their necessities, sir.

18
19
20

Q.

At least for the night shift -- did I understand you

correctly that it was a specialist and not an NCO?
A.

I know there was an NCO there at first, but somewhere in

21

that -- where we had to go through a lot of changes we lost the NCO

22

and Specialist Padgett had to step up and be the NCO.

9797

13361

1
2
3

Q.

With regards to the night shift analyst, what were they

generally tasked to do?
A.

Our catch up work basically, sir.

They were -- they had to

4

provide the stuff that we couldn't attend to during the day because

5

of the optempo.

6

Q.

Can you give the Court an example of what that would be?

7

A.

A data mine or consolidation of a specific attack or a

8

specific events in a certain area by a certain group.

9

Q.

10

night shift?

11

A.

He did that, sir.

12

Q.

Did he ever do anything dealing with the Iraqi elections?

13

A.

Well, for trends, yes, sir.

14
15
16

Do you recall what work specifically PFC Manning did on the

For trends of the past

elections, yes, he gathered that.
Q.

And, again, any in kind of a general unclassed description,

what would he would be doing on the night shift?

17

A.

For the elections or?

18

Q.

For the elections, yes.

19

A.

For elections, sir, we would find trends that happened

20

during the last elections and see if we could set up something to

21

identify the people that were going to participate in this election

22

so they would have some kind of idea of what might happen or

23

indicators.

9798

13362

1
2

Q.

And if he wasn't working on that did he ever do anything

dealing with counter-IED?

3

A.

Yes, sir.

4

Q.

And, again, in a general unclassed description, what would

5
6
7
8
9
10

he be doing with regards to counter-IED?
A.

Techniques and procedures, tactics, techniques, and

procedures.
Q.

So as he's doing that, can you describe in general what

that product might look like when he was done and turns it in?
A.

Yeah -– well we had density plots.

We had maps.

We had

11

examples of things that had happened, I mean, there's a myriad of

12

things that we did with predicting what we thought would happen or

13

how it would happen, sir.

14

Q.

And you said density plots, what are those?

15

A.

Those are –- and so basically it’s a map of the area and it

16

would have colors from the intensity or the amount of attacks that we

17

had in that specific area, and that's a density plot.

18

-- if there was a lot of attacks in that center -– that specific area

19

it would be red and the lighter the colors got back to green would

20

mean there would no attacks.

21

Q.

22

mining?

So if it was

So that would be a density plot.

And you had earlier said the term data mining, what is data

9799

13363

1
2

A.

That's pulling everything you can from every bit of

intelligence assets you've got to help build your product, sir.

3

Q.

Would you expect intel analyst to data mine?

4

A.

Yes, sir.

5

Q.

And why is that?

6

A.

Because you can't -– you can’t go off one source of
You have to have other

7

intelligence to predict something to happen.

8

stuff that indicated that it's going to happen.

9

guess.

10

Q.

11

data mining?

12

A.

13
14

And where do analysts obtain their information that they're

Everywhere, sir.

We got them on the SIPR, the T-drive, we

got them from wherever we could.
Q.

You can't just

The open source, anything.

And correct me if I'm wrong, but when I think of the term

15

data mining and what you just described, is basically an analyst

16

looking at anything and everything they can, any location, just to

17

kind of figure out would this perhaps be relevant to what I'm doing.

18

Is that correct, or would you provide a different definition for it?

19

A.

Yes, sir.

20

Q.

Yes, sir, that's ----

21

A.

That's correct.

You're trying to find out yes or no this

22

is going to happen, and, yes, this is how it's happened and this is

23

why it's happening.

So you have to confirm or deny your assessment.

9800

13364

1

Q.

Now with regards to I guess when you're doing this was the

2

any guidance put out that if your you're data mining you can do

3

everything but go to this particular area on SIPRNET?

4

A.

No, sir.

5

Q.

So were there any restrictions on what you would data mine

6

on the SIPRNET?

7

A.

No, sir.

8

Q.

Was it common for a Soldiers or analysts to data mine?

9

A.

Yes, sir.

10

Q.

Did analysts also use open source information?

11

A.

Yes, sir.

12

Q.

And what is open source information?

13

A.

That's regular internet, sir.

14

Q.

How would an analyst use an open source?

15

A.

When you get on and check out the web pages or you can

16

check out local newspaper or it's anything that doesn't come through

17

our Secret or higher confidential webs.

18
19
20

Q.

And, again, in kind of a general description, how would

open source information help your work products?
A.

Sometimes some of the media had information that we didn't

21

find out through our patrols or something.

22

report and they would have outside information or a different point

9801

We could get patrol

13365

1

of view from what happened.

2

sir.

3
4

Q.

So we would use that in our assessment,

And were analysts encouraged to use open source information

for their work products?

5

A.

Yes, sir.

6

Q.

Was there any sort of restriction placed out by the S-2

7

Section of you can go to every place besides these sites on open

8

source?

9

A.

There was no restriction, sir.

10

Q.

Did analysts ever use the CIDNE Database?

11

A.

Yes, sir.

12

Q.

Can you explain what the CIDNE Database is in general?

13

A.

Every kind of action or any kind of report put on so that

14
15
16

specific database.
Q.

How many -- I guess, well first of all, SIGACTS is that one

of the databases on CIDNE Database?

17

A.

Yes, sir.

18

Q.

How many other databases besides SIGACTS is in CIDNE?

19

A.

I think there’s –- I know there's five at least that's on

20

the server, but there's a lot.

21

Q.

With regards to the CIDNE Database ----

22

MJ:

I’m sorry, five what?

23

WIT:

There's five different key areas that you can check from.

9802

13366

1
2
3
4
5
6
7

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

And with regards to those areas, so if you have SIGACTS as

one area, can you recall any other of the areas?
A.

Yes.

Yes, sir.

There's IEDs, there's small arms fire,

there's kidnapping, arson, criminal activity.
Q.

And each of those areas if you went to that database you

would find information in it I guess?

8

A.

Yes, sir.

9

Q.

And are we talking a little information or a lot of

10

information?

11

A.

Every bit of information that they had on that event, sir.

12

Q.

And what about the size of the database for the CIDNE

13
14
15
16
17

Database?
A.

The report could be one sentence long or it could be 50 to

60 pages long.
Q.

Are you familiar with the Center for Army's Lessons

Learned?

18

A.

Yes, I am, sir.

19

Q.

What is your, I guess, understanding of Center for Army's

20
21

Lessons Learned?
A.

That's where people write information that they have

22

discovered or tactics or whatever to help other people understand

23

what we're fighting or to get better.

9803

13367

1

Q.

Is the CIDNE Database something like that?

2

A.

No, I don't think so, sir.

3

Q.

And why not?

4

A.

Well, the CIDNE Database is a historic record of everything

5

that we have reported, where the Center of Army Lessons Learned is

6

things that we've identified how to counteract them or to help us.

7

Q.

So, correct me if I'm wrong, then the CIDNE Database would

8

be an historical account of what happened and the Center for Army's

9

Lessons Learned would be a lessons learned based upon what happened

10

and how we can change for the future?

11

A.

Yes, sir.

12

Q.

How does a SIGACTS, if you know, how does a SIGACTS get

13
14

into the CIDNE Database?
A.

There's a couple of different ways it could get put into

15

there, but usually it's a report that's put in from the TOC and a

16

patrol they could have a patrol debrief or something and they could

17

be in place by a person that has administrative rights.

18

Q.

And so let's go ahead and kind of describe this out.

So if

19

I'm a unit and I'm going down a main supply route and I take in some

20

enemy contact and I call that in, can you, from that point, kind of

21

walk forward how -- what just happened to me and my unit on this main

22

supply route, might ultimately end up on the CIDNE Database?

9804

13368

1

A.

Yes, sir.

Every report that is established from that

2

incident will eventually make it onto CIDNE.

3

initial report can be submitted through that TOC to that brigade, and

4

that brigade administrator will put that in the CIDNE Database,

5

eventually, and then as well as the patrol debriefs and any other

6

thing that follow that incident.

7

happened will go, it will be reviewed, and then it will be placed in

8

a CIDNE so other people can look at it and learn what happened, sir.

9
10
11

Q.

The written up summary of what

Does a SIGACTS go through a period of time where it's being

changed once it's been initially reported?
A.

There is 2 weeks before they get put on there, at least 2

12

weeks before a CIDNE act is on there.

13

up to, you know, a couple of months.

14
15

They will go from that

Q.

Sometimes they can be altered

And when it’s -– when a SIGACTS is finally put into the

CIDNE Database, is it automatically classified?

Or do you know?

16

A.

I don't know, sir.

17

Q.

Do you know how a SIGACTS is or is not classified?

18

A.

No, sir.

19

Q.

From your standpoint, are you -- do you know if a SIGACTS

20
21
22
23

always classified as Secret or something else?
A.

Out of the assumptions, I always assume that they are

Secret because it's on a Secret net, sir.
Q.

Do you know if there's anything Top Secret within ----

9805

13369

1

A.

No, sir.

2

Q.

There's nothing Top Secret?

3

A.

No, sir.

4

Q.

Do you know if SIGACTS contain names of key sources that

5

are working with our government?

6

A.

Not names, sir.

7

Q.

And why not?

8

A.

Because that is a little bit higher level of clearance,

Q.

From your standpoint, do SIGACTS eventually become dated

9

sir.

10
11

more of a historical records?

12

A.

Yes, sir.

13

Q.

And when SIGACTS become dated, more of kind of a historical

14

record, are they still useful to you as an analyst?

15

A.

Yes, sir.

16

Q.

And how so?

17

A.

If I see something that's trending a specific way, going

18

back to something I've identified in the past, I can refer back to

19

that and someone might be using that.

20

recently and he's back to what he was doing.

21

was going to do based on what he did in those historical findings,

22

sir.

9806

Maybe a detainee was released
So now I know what he

13370

1
2

Q.

Now after the SIGACTS in this case were posted online in

open source, did you continue to use SIGACTS as intel analysts?

3

A.

Yes, sir.

4

Q.

And why?

5

A.

Because they're just historic references, sir.

6

Q.

Could you still use the SIGACTS that were now available

7

online?

8

in your work?

When I say online, open source unclassed to establish trends

9

A.

Yes, sir.

10

Q.

Could you still use those same SIGACTS to make connections?

11

A.

Yes, sir.

12

Q.

Did it change how you used the SIGACTS once they were

13

released by WikiLeaks?

14

A.

No, sir.

15

Q.

And why not?

16

A.

Because it's just historical information.

They don't know

17

the processes and the things that we do to make that information into

18

our products.

19

happened.

20
21
22

Q.

All they know is the same thing that we know, is what

Do you know if the SIGACTS within the CIDNE Database stay

secret forever?
A.

I don't know, sir.

9807

13371

1
2

Q.

I want to ask you a few questions now about PFC Manning's

work performance as an analyst.

Okay?

3

A.

Yes, sir.

4

Q.

Were you able to view his duty performance while he was

5

deployed?

6

A.

Yes, sir.

7

Q.

And how so?

8

A.

While he was deployed I intermingled with him a few times

9

because as my job is to oversee and make sure that everybody was

10

doing the right stuff and make sure that the products were exactly

11

what our boss and our boss' boss would like.

12
13

Q.

And based upon your ability to view his duty performance,

what was your assessment of his work performance?

14

A.

He was good.

15

Q.

And can you explain why you thought he was good?

16

A.

He was our best analyst by far when it came to developing

17

products.

18

is to spell it out exactly what they had to do.

19

would just give him, “Hey, this is what I'm thinking.”

20

bounce a couple of things off of you and come up with exactly what

21

you're looking for.

22
23

Q.

Anything you would ask him.

Most Soldiers you would have
With Manning you
He would

And with regards to his work products, what he actually

gave you at the end, how did you assess those in quality?

9808

13372

A.

1
2

That’s why he was our go-to guy for that

stuff.
Q.

3
4

The best, sir.

Can you give an example just again in general unclassed

description what type of product you would actually hand to you?
A.

5

I don't -- I don’t know the line of classification of where

6

we would go, but it would be very detailed and everything that I’d

7

want.
Q.

8
9

Did you ever hear anyone complain about PFC Manning not

being able to complete work on time?

10

A.

One time, and that was the Showman event.

11

Q.

Okay.

13

A.

No, sir.

14

Q.

How was PFC Manning's productivity level compared to other

12

15

work?

analysts during the deployment?

16
17
18
19

So other than that, no problems with him completing

A.

His was actually higher than everybody else's in the shop,

Q.

Did you ever notice a drop in his productivity level in say

sir.

March or April of 2010?

20

A.

No, sir.

21

Q.

How would you describe PFC Manning's computer literacy?

22

A.

It was very high.

23

Q.

And why did you think that?

9809

13373

1

A.

Well, our conversations with his background on computer

2

knowledge and then his demonstrations of utilizing the systems that

3

we had in place, sir.

4
5

Q.

Would you say that PFC Manning was knowledgeable on the

systems that you had on the DCGS-A computer?

6

A.

Yes, sir.

7

Q.

And why do you believe that?

8

A.

Because of the products that he came out with, sir.

9

Q.

Did PFC Manning ever assist others with the programs that

10

are on their DCGS-A computers?

11

A.

Yes, sir.

12

Q.

Can you explain why you believe that?

13

A.

Well, I mean Soldiers like Lorena, she would have

14

difficulties understanding how to make our density plots and PFC

15

Manning would show them, “Okay.

16

this,” and they would be like, “Okay.

17

back to doing what they do.

18

shops, sir.

All you had to was this, this, and

Q.

What was –- you said Lorena?

20

A.

Espina [Phonetic].

21

Q.

Okay.

23

And they would go

He was just go-to guy for a lot of our

19

22

Thank you.”

Who is that?

Specialist Espina [Phonetic].

Now with regards to just experience level as an

analyst, was PFC Manning a very experienced analyst?
A.

Not an experienced analyst, no, sir.

9810

13374

1
2

Q.

And was he still at a stage, from your estimation, that he

had a lot to he learn as an analyst?

3

A.

Yes, sir.

4

Q.

How long does it take to become basically an expert

5

analyst?

6

A.

It depends on the person and their personality, sir.

7

Q.

In your experience from an analyst leaving the AIT training

8

to the point which they become an expert where would you say that

9

person is an expert analyst, about how long does it take to get to

10

that point, ----

11

A.

It depends ----

12

Q.

---- In general?

13

A.

It depends on the individual, sir, because some people

14

never reach that point where like -- they don't understand what

15

they're doing and some people they come straight out of AIT and

16

they're amazing.

17
18

Q.

So, it's individual base, sir.

And based upon your observation, you said that PFC Manning

still had a lot to learn.

Where was he weak as an analyst?

19

A.

In his assessment, sir.

20

Q.

And can you explain why you thought that?

21

A.

Sometimes our junior analysts jump to conclusions before

22

they actually vetted it through everything, every source.

23

use one or two sources and then jump to a conclusion, instead of

9811

They would

13375

1

using all of the source and then bouncing it, you know, war gaming

2

with your partners and find out, okay, yeah we both agree or we

3

disagree and this is why.

4

it failed him a little bit.
Q.

5
6

A.

We had mapping.

We had CIDNE.

We had HUMINT reports,

SIGINT reports.
Q.

9
10

Now, what programs would analysts use on their DCGS-

A computers to conduct their data mining?

7
8

Okay.

And that's his socializing, that's where

One of the programs on the DCGS-A computer -- did you have

mIRC Chat?

11

A.

Yes, sir.

12

Q.

And was mIRC Chat, from your understanding, part of the

13

baseline package for the DCGS-A computer or something that needed to

14

be added?
A.

15

Yes, sir.

When I was there they all had it.

I don't know

16

if they were added –- you know, they were added in between the time

17

10th

18

were all on.

19

Q.

20

Mountain got there and I got there, but when I was there they

And when you were opening it -– well, first of all, did you

need mIRC Chat to do your job?

21

A.

Yes, sir.

22

Q.

And why so?

9812

13376

1

A.

So you could contact other units, other companies, other

2

battalions and it was an immediate response to an analyst at that

3

other end.

4

Q.

And you said that when you got you there you thought that

5

mIRC Chat was on everyone's computer.

6

computer.

7
8

A.

Let's just talk about your

How was mIRC Chat on your computer?
It was a little pop up symbol on my computer.

I just click

-- double click it and it opened up, sir.

9

Q.

Was it on your desktop?

10

A.

Yes, sir.

11

Q.

Do you know what an executable file is?

12

A.

Somewhat, sir.

13

Q.

And what is your understanding of an executable file?

14

A.

It's something that can function on its own, sir.

15
16
17
18

It's a

program.
Q.

Did the S-2 Section allow analysts to run executable files

as a shortcut from their desktop to their computer?
A.

They are not allowed to put them on the DCGS-A, and nothing

19

was allowed to be downloaded onto the DCGS-A without permission from

20

Mr. Milliman or a DCGS-A operator.

21

shortcuts that go to our CDs or something or a quick reference or

22

something like that.

9813

But we were allowed to put

13377

1
2

Q.

All right.

So, I want to make sure I understand you

correctly because we talked about this on several occasions ----

3

A.

Yes, sir.

4

Q.

---- Correct?

5

A.

Yes, sir.

6

Q.

Do you recall telling me that analysts -- S-2 Section

7

analysts could run executable files from the desktop of their

8

computer as long as it was a shortcut?

9

A.

The shortcuts they could, yes, sir.

10

Q.

Okay.

And when you say shortcut -- so if I have an

11

executable file put on it as a shortcut on my desktop of my DCGS-A

12

computer and what is that?

13
14
15

A.

It's a quick link to it, sir.

You click

on it and it goes straight to that file and opens it up.
Q.

All right.

Do you recall the S-2 Section saying that

16

analysts were ----

17

TC[MAJ FEIN]:

18

MJ:

19

CDC[MR. COOMBS]:

20

It's like a link.

Objection, Your Honor.

Leading.

Sustained.
Okay, Your Honor, I -- can I complete the

question and then I don't believe it is?

21

MJ:

Go ahead and complete the question and then I’ll ----

22

CDC[MR. COOMBS]:

Thank you.

23

9814

13378

1
2
3
4
5

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

Do you recall the S-2 section indicating that analysts were

allowed to run executable files from a CD on their DCGS-A computer?
MJ:
Overruled.

All right.

I'm going to – hold on just a minute.

Go ahead.

6

TC[MAJ FEIN]:

7

MJ:

8

CDC[MR. COOMBS]:

9
10
11
12

Objection, Your Honor.

He’s relying on hearsay.

Say it one more time.
Do you recall the S-2 Section allowing

analysts to run executable files from a CD on their DCGS-A computer?
MJ:

And what is the Defense's response to the government's

hearsay objection?
CDC[MR. COOMBS]:

In this instance, not offered for the truth,

13

it's relevant solely from the standpoint of what was put out for

14

analysts to understand.

15

government charging PFC Manning for using an executable file on his

16

computer.

17

MJ:

One of the charges in this case is the

You know, in this instance its effect on the listener.
All right.

I'll allow him to answer the question, “What if

18

any guidance was put out.”

19

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

20
21
22
23

A.

As long as it was not downloaded to the actual DCGS-A, we

could use it, sir.
Q.

Go ahead.

If it was on a CD, yes, we could.

And when were you informed that as long as it was on a CD

you could run an executable file?

9815

13379

A.

1

When I was trying to download -– I was trying to download

2

a program onto it sometime in December and I had a conversation with

3

Mr. Milliman who said we couldn't download anything to the actual

4

DCGS-A, because it owned by somebody else.

5

CD.

6

problem with it.

7

But we could keep it on a

So if it was not download onto the DCGS-A, he didn’t have a

Q.

With regards to the use of executable files, did anyone in

8

the S-2 Section ever put out guidance that using an executable file

9

from a CD was against the authorized use -– or excuse me, the user

10

agreement?

11

A.

No, sir.

12

Q.

Did anyone in the S-2 Section put out guidance that putting

13

a shortcut for an executable file on the desktop of your DCGS-A

14

computer was against the user agreement?

15

A.

No, sir.

16

Q.

And you indicated you actually had put -- used an

17
18
19

executable file from a CD on your DCGS-A computer?
A.

No, I tried to but you needed an administrative password.

That's why I went to Mr. Milliman to try to get that done.

20

Q.

To put it on the computer?

21

A.

Yes, sir.

22

Q.

How about to run it from your CD?

23

A.

I didn't have any problems with that, sir.

9816

13380

1

Q.

And that was an executable file from your CD?

2

A.

Yes, sir.

3

Q.

With regards to the DCGS-A computers, were analysts allowed

4

to listen to music on their DCGS-A computers?

5

A.

Yes, sir.

6

Q.

And did you have music in the T-SCIF?

7

A.

Yes, sir.

8

Q.

And where did the music come from?

9

A.

Some of it came from the T-drive.

They had lot -- lots and

10

lots of music from there, and then some were from people's personal

11

CDs, sir.

12
13

Q.

And with regards to the T-drive, how much information was

on the T-drive, if you know?

14

A.

I don't know, sir.

15

Q.

Did you ever look to see how much music was on the T-drive?

16

A.

I know it was more than enough to overload your computer.

17

If you opened up and try to download even half of it your computer

18

would shut down.

19
20

Q.

It would turn off immediately.

Did anyone say that listening to music on your DCGS-A

computer was against the user agreement?

21

A.

No, sir.

22

Q.

Were analysts allowed to watch movies in the T-SCIF?

23

A.

Yes, sir.

9817

13381

1

Q.

Where did these movies come from?

2

A.

From them, sir.

Some of them came from the salesmen

3

outside and some of them came from the PX.

4

actual T-drive as well.

Some of them were on the

Q.

And these movies were allowed to be brought into the T-

7

A.

Yes, sir.

8

Q.

Did anyone in the S-2 Section say that bringing movies into

5
6

9

SCIF?

the T-SCIF was against the user agreement?

10

A.

No, sir.

11

Q.

With regards to the T-SCIF, where did you fall in the -- I

12
13
14
15
16
17
18
19

guess the hierarchy of responsibility in the T-SCIF?
A.

In the T-SCIF I had no responsibility over the Soldiers,

just over the products.
Q.

So can you give us an idea of the chain of command just in

the T-SCIF?
A.

It was the Soldiers, their shift NCOIC or OIC, whichever it

was and then OIC, or the 2.
Q.

And where did you -- just within the S-2 Section, I

20

understand you say you had no responsibility for Soldiers where did

21

you fall in seniority just in the S-2 Section?

22

A.

I was overall in charge of all of the output from the

23

fusion cell.

9818

13382

1
2
3

Q.

And when you say that, can you explain what you would be

responsible for?
A.

All of the products went through me and it all went through

4

me -- it all went through me somehow.

It either came back through me

5

or up through me.

6

two or anybody higher it would come to me for QA/QC.

So if it was briefed to the commander or to the

7

Q.

QA/QC is, Quality Assurance/Quality Control?

8

A.

Yes, sir.

9

Q.

With regards to the Soldiers, even though they wouldn't

10

working for you directly, as far as you having direct oversight of

11

them per se, everything they did went through you?

12

A.

Yes, sir.

13

Q.

And from your standpoint as a -- I guess as the Fusion OIC,

14

would that be your position?

15

A.

Yes, sir.

16

Q.

Did you see anything in the T-SCIF when Soldiers used

17

games, music, or –- excuse me, music or movies, or executable files

18

that was against the user agreement, from your perspective?

19

A.

I didn't.

20

Q.

Let me ask you a couple of questions about terms used by

21

No, sir.

analysts in their work product, okay?

22

A.

Yes, sir.

23

Q.

Can you tell me what an intelligence gap is?

9819

13383

1
2
3
4
5
6
7
8
9
10
11
12
13
14

A.

It's information that we don't have, that we do not have at

that time.
Q.

And when would you call -- if you don't have it, that's

something you don't know or just something you're unsure of?
A.

It's something that we might have an idea about, but we

don't have -- we don't know for sure what it is, so ---Q.

And when would you use the term, intelligence gap in a work

product?
A.

If you didn't have the answer for who, what, when, why or

one of the five Ws or something, sir.
Q.

If you had actual knowledge of a particular fact, would you

call that fact an intelligence gap?
A.

If we had the knowledge of it, no it would not be an

intelligence gap.

15

CDC[MR. COOMBS]:

16

WIT:

17

MJ:

18

TC[MAJ FEIN]:

19

MJ: Yes.

Thank you, Chief.

Sir.
Cross examination?
May we have a moment, Your Honor?

20

[There was a pause while the trial counsel conferred at the counsel

21

table.]

22
23

9820

13384

CROSS-EXAMINATION

1
2
3

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

Chief, first I'd like you to start off testifying about

4

restrictions or lack of restrictions on SIPRNET.

First off, a person

5

in order to access SIPRNET, you had to have a security clearance,

6

correct?

7

A.

Yes, sir.

8

Q.

And information is presumed to be Secret that's on SIPRNET?

9

A.

Yes, sir.

10

Q.

That includes the databases on SIPRNET?

11

A.

Yes, sir.

12

Q.

That includes the websites on SIPRNET?

13

A.

Yes, sir.

14

Q.

And everyone who worked on the T-SCIF in that S-2 Section

15

had Top Secret SCI clearance?

16

A.

Yes, sir.

17

Q.

That included PFC Manning?

18

A.

Yes, sir.

19

Q.

And everyone who worked on SIPRNET at the brigade had a

20

Secret clearance?

21

A.

At least, sir.

22

Q.

And when information from SIPRNET was burned onto CDs, how

23

was –- how were those CDs required to be treated?

9821

13385

1

A.

All CDs were handled as Secret.

2

Q.

Okay.

3

Were they all labeled?

You testified earlier they

weren't always, always labeled?

4

A.

Not always labeled, sir.

5

Q.

But they were still treated as Secret.

6

A.

Yes, sir.

7

Q.

When information was burned for Iraqis to share, that was a

8

mission of the S-2 shop?

9

A.

Yes, sir.

10

Q.

The mission was to share U.S. classified information with

11
12

the Iraqis?
A.

It was -- well, there's different levels of Secret, sir;

13

but there's releasable to, and if those were releasable to Iraqis

14

then we would use that, sir.

15

Q.

Okay.

16

A.

Either the user that puts it in or the classification

17
18

And who makes that determination?

identifiers, sir.
Q.

Sure, but so the person who is burning it onto a CD and

19

ultimately sharing with the Iraqis, is that a foreign disclosure

20

officer?

21

A.

Yes, sir.

22

Q.

Okay.

23

A.

Yes, sir.

And are those specific trained individuals?

9822

13386

1
2
3
4
5
6

Q.

Who are the foreign disclosure officers in the brigade S-2

A.

Lieutenant Fields and myself were foreign disclosure

shop?

officers.
Q.

Okay.

And it was your responsibility to review information

before it went to the Iraqis?

7

A.

Yes, sir.

8

Q.

And then what other information -- classified information

9
10

burned from SIPRNET was allowed out of the SCIF?
A.

If we needed to go to any other FOB or any other location

11

that was required to pass that information to them, that's when it

12

was left outside.

13

Q.

Does that include the Soldiers CHU?

14

A.

Yes, sir.

15

Q.

They're individual CHU they could take classified

16
17
18
19
20
21

information on a CD to their individual CHUs?
A.

I don't think that was practice, but I don't see how that

would have been stopped.
Q.

Okay.

I'll get to that in a moment whether it could be

stopped or not?
A.

Right.

9823

13387

1

Q.

Was anyone in your office that you knew about authorized to

2

burn classification information from the SIPRNET onto a CD and take

3

it to their CHU?

4

A.

The OIC and NCOIC were allowed to, sir.

5

Q.

Okay.

6

A.

Because they have SIPR connections in their CHU.

7

Q.

Okay.

8

And what the purpose of that?

So they actually had a work place in their CHU that

had Secret connections?

9

A.

Yes, sir.

10

Q.

Did others have?

11

A.

No, sir.

12

Q.

Others in the brigade have that?

13

A.

Yes, sir.

14

Q.

Like who?

15

A.

OICs, usually the OICs that had – like I think the S-6 as

16

well, I think he – him, the battalion commander ----

17

Q.

The brigade commander?

18

A.

---- the brigade commander.

19

Q.

Did you have that in your CHU?

20

A.

No, sir.

21

Q.

Did you have classified information in your CHU?

22

A.

No, sir.

9824

13388

Q.

1
2

Okay.

Did a junior enlisted have classified information in

their CHU?

3

A.

No, sir.

4

Q.

And was anyone who burned a CD from SIPRNET with classified

5

information on it they were allowed to take it to their CHU and put

6

it on to the Internet for the whole world to see, were they?

7

A.

No, sir.

8

Q.

Okay. Was there a rule written down in any SOP or was that

9

briefed during any meeting at the SCIF?

10

A.

11

system?

12

time we go to a duty station, sir.

A.

Q.

21
22
23

It was commonly known throughout the whole intelligence

Why do you focus on the intelligence community versus even

the whole Army?

19
20

Is that something that was commonly known within the

community, sir.

17
18

Okay.

brigade S-2 SCIF?

15
16

That is -- we learned that in AIT and get briefed that every

Q.

13
14

As far as intelligence being put on to an unclassified

A.

Well, if they had a clearance then they understand that,

Q.

And everybody in the intelligence community has a

sir.

clearance?
A.

Yes, sir.

9825

13389

1

Q.

Everyone in the intelligence community, especially 2-10

2

Mountain at that time when you deployed with PFC Manning their job

3

was to handle classified information all the time, correct?

4

A.

Correct, sir.

5

Q.

Okay.

6

So let's go to these restrictions on SIPRNET.

Were

the restrictions on SIPRNET?

7

A.

No, sir.

8

Q.

But you had to have the ability to be on SIPRNET?

9

A.

Yes, sir.

10

Q.

So you had to have a clearance?

11

A.

Definitely.

12

Q.

Would you consider a clearance a restriction?

13

A.

Well, everybody had a clearance, sir.

14

Q.

On SIPRNET?

15

A.

Everybody in our shop had a -– like you identified, had Top

16
17
18

Secret –--Q.

So when you testified earlier no restriction on SIPRNET,

you meant for individuals in your shop, what they did on SIPRNET?

19

A.

Yes, sir.

20

Q.

Okay.

21

But could anyone off the street do anything thing

want to do SIPRNET?

22

A.

No, sir.

23

Q.

Why?

9826

13390

1

A.

Because they didn't have the clearance -- the access.

2

Q.

Okay.

Now, let's talk about SIPRNET itself.

You mentioned

3

a bunch of different databases.

Without your repeating them all, if

4

you could -- you would agree that if you could get to the information

5

on SIPRNET, with a clearance, then you could access that information?

6

A.

Yes, sir.

7

Q.

And you had the DCGS-A system as the system provided to you

8

as an intelligence analyst by the Army to do that?

9

A.

Yes, sir.

10

Q.

You had programs on the DCGS-A computer to help you do

12

A.

Yes, sir.

13

Q.

You had the SIPRNET Internet to allow you to -- help you do

15

A.

Yes, sir.

16

Q.

You had Intelink to help you do that?

17

A.

Yes, sir.

18

Q.

You had Intelpedia to do that?

19

A.

Yes.

20

Q.

And if it was on Intelpedia and you could access it and you

11

14

21
22

that?

that?

could use it?
A.

Yes, sir.

9827

13391

1
2

Q.

And the mission of the 2-10 Mountain downrange was to focus

on your brigade’s AO which is the Southeast area of Baghdad, correct?

3

A.

Yes, sir.

4

Q.

Okay.

5

information?

6

A.

Yes, sir.

7

Q.

And that classified information required individuals to

8

And so Intelpedia on SIPRNET contained classified

have clearances?

9

A.

Yes, sir.

10

Q.

Sign a nondisclosure agreement?

11

A.

Yes, sir.

12

Q.

Have background investigations?

13

A.

Yes, sir.

14

Q.

To the best of your memory, no Soldier in your S-2 shop,

15

although as you mentioned you were not technically in charge of any

16

of them, but to the best of your memory no one was authorized to use

17

classified information for personal use?

18

A.

Yes, sir.

19

Q.

Now, let's talk about DCGS-A.

20

DCGS-A was the computer

system you were provided, correct?

21

A.

Yes, sir.

22

Q.

What was the first system when you joined the Army that you

23

used as a junior enlisted analyst?

9828

13392

1

A.

The ASAS, sir.

2

Q.

The ASAS was that the predecessor to the DCGS?

3

A.

Yes, sir.

4

Q.

Okay.

5

A.

Yes, sir.

6

Q.

And DCGS-A, when did DCGS-A, to the best of your memory

7

Did that run on a classified network?

replace ASAS?

8

A.

Late ‘90s.

9

Q.

Okay.

10

describe DCGS-A, the system?
A.

11
12

How -- in your own words for the Court, how do you

This is a consolidated -- it's a computer with everything

on it that we need as analysts.

13

Q.

So everything you need as an analyst?

14

A.

Yes, sir.

15

Q.

What are some the programs that the Army and you use as an

16

analyst?
A.

17
18

The ones that we’ve identified, sir.

There's mapping.

There's different maps that they change throughout the years ---Q.

19
20

What are their names?

So in Iraq when you were 2-10, when PFC Manning was there,

what were the ones that you remember then?
A.

21

I mean, I know there was CIDNE.

I know there was Intelink.

22

There was Intelpedia, and I don't remember the map -- the mapping and

23

----

9829

13393

1

Q.

Was there a ArcGIS type of program?

2

A.

ArcGIS?

3

Q.

Was there a Query Tree?

4

A.

Yes, sir.

5

Q.

What's Query Tree?

6

A.

Query Tree is what we would type in a search for anything.

Yes.

7

If we could use part of the name, some of the name with different

8

symbols or variations of things to find out information on that

9

specific item ----

10

Q.

And, I'm sorry, please, go the ahead.

11

A.

---- On that specific item or person, sir.

12

Q.

Okay.

And when someone who had to have a Secret clearance

13

used the Query Tree it queried different databases that were on

14

SIPRNET, correct?

15

A.

You had to have a Secret clearance, yes.

16

Q.

And when you typed in Query Tree there was a program that

17

allowed you to search databases for the information you're looking

18

for?

19

A.

Yes, sir.

20

Q.

Because you said it searched everything?

21

A.

Yes, sir.

22

Q.

And by everything you mean almost every database you can

23

think of as an intel analyst?

9830

Correct?

13394

1

A.

Yes, sir.

2

Q.

But on the SIPRNET, the Secret system, JWICS, the higher

3

level?

4

A.

Yes, sir.

5

Q.

What about the mapping programs?

6

A.

There was ----

7

Q.

Or Google Earth, excuse me.

8

A.

There was Google Earth.

9

Q.

Okay.

10

A.

We didn’t -- we only used Google Earth when we wanted the

Was a Google maps?

Yes, sir.

And how was Google Earth used?

11

defined pictures cause they had a better satellite image than the

12

military one that we used.

13

Q.

Okay.

14

A.

Yes, sir.

15

Q.

And the information provided -- put on Google Earth was

16

And Google Earth was on SIPRNET, correct?

from classified information?

17

A.

Yes, sir.

18

Q.

You mentioned CIDNE a few times.

Just to clarify a few

19

points –- well first before that, about PFC Manning's computer

20

literacy you testified just now about.

21

util –- your words were, “Utilizing the tools he had on the

22

computers?”

23

A.

Yes, sir.

9831

You said that he was good at

13395

1

Q.

Are those tools you're talking about right now?

2

A.

Yes, sir.

3

Q.

Okay.

4

A.

No, sir.

5

Q.

You don't know what Wget is?

6

A.

That don’t sound familiar ----

7

Q.

So you don't know if he was good or bad at using Wget?

8

A.

No, sir.

9

Q.

Was Wget, to the best of your memory, one of those DCGS

10

Do you know what Wget is?

tools the Army provided for you to do intel on?

11

A.

I don't know what Wget is, sir.

12

Q.

But he was good with the tools that the Army gave?

13

A.

Yes, sir.

14

Q.

Query Tree, ArcGIS, Google Maps?

15

A.

Yes, sir.

16

Q.

CIDNE?

17

A.

Yes, sir.

18

Q.

But you testified he was as a junior analyst he was weak in

19

his ability to assess?

20

A.

Yes, sir.

21

Q.

How did you assess whether he was good at utilizing the

22

tools if he was weak in his assessments?

9832

13396

1

A.

Cause being an analyst is a two-part job.

You come up with

2

products and you can always paint a picture of what's actually

3

happening.

4

taking that information and then making some deductive reasoning or

5

some assessments on what you think is actually going to happen or how

6

you think that's going to affect the enemy or the friendly.

7

Q.

And then you have the second part of being an analyst is

So then would it be accurate to say you have to understand

8

what you're looking at and you have to understand how to apply what

9

you're looking at?

10

A.

Yes, sir.

11

Q.

Okay.

12

A.

Yes.

13

Q.

And how do you rate him?

Was he good at step one of what he was looking at?
Without a doubt, sir.
Let’s say use a rating scale of 1

14

to 10,

15

a 10 and then 1 being fresh -- not through AIT.

16

PFC Manning in how to use the information?

1 –- 10 being the world's best analyst which I'm sure you are
How would you rate

17

A.

How to use the information he was ----

18

Q.

How to analyze it?

19

A.

He's maybe a 5, sir.

20

Q.

How do you rate him on that 1 to 10 scale of what the

21

information is because he could respond to everything you asked him

22

to do and he pulls the data.

23

A.

A 10, sir.

9833

13397

1

Q.

Is that what you mean when you talk about data mining?

2

A.

Yes, sir.

3

Q.

And that’s -- and that data mining, what tools did use to

4

data mine for you?

5

A.

Query Tree was the most common, sir.

6

Q.

What about CIDNE?

7

A.

CIDNE was utilized as well.

8

Q.

And CIDNE was used, was SIGACTS used?

9

A.

Yes, sir.

10

Q.

And he pulls SIGACTS?

11

A.

Yes, sir.

12

Q.

Okay.

13
14

Could you explain more for the Court what you mean

by the term density plot?
A.

Yes, sir.

What's a density plot?

That's what I was talking about with the colors

15

or the intensity of the attack and it fades out to a lighter color

16

with the less attacks that are in that location it would go lighter

17

and lighter ----

18

Q.

Okay.

19

A.

---- So it's hot spots basically, sir.

20

Q.

And I should have asked a more specific qu -- what

21

information does an analyst or did PFC Manning use to make that

22

density plot?

9834

13398

1

A.

All those programs, sir.

We used use them to identify,

2

whether it be a small arms attack or IED attack or an ambush or even

3

kidnapping, anything like that that he'd use that information in

4

CIDNE he’d use it from any of the databases, sir.

5

Q.

And you use density plots in your line of work?

6

A.

Yes, sir.

7

Q.

And density plots showed what happened in the past?

8

A.

Yes, sir.

9

Q.

So you use that historic information you're talking about?

10

A.

Yes, sir.

11

Q.

And it's that historic information that was used -- that

12

PFC Manning was very good at from density plots came from CIDNE is

13

one of the sources?

14

A.

One of the sources.

15

Q.

And you had mentioned IED information?

16

A.

Yes, sir.

17

Q.

You would agree that CIDNE had key leader engagements

18
19
20
21
22
23

Yes, sir.

annotated in there?
A.

It had not specifics of the engagement, but it did have

generalized engagements.
Q.

Yes, sir.

It had you mentioned IEDs, the TTPs that we follow in

reacted to IED.
A.

Yes, sir.

9835

13399

1

Q.

The TTPs we follow in finding IEDs?

2

A.

It didn't explain how we found them, sir.

3

It would explain

what happened in that event.

4

Q.

Whether it ground penetrating radar worked or did not work?

5

A.

No, sir.

6

Q.

It wouldn't explain that?

7

A.

No, sir.

8

Q.

Not to the best of your memory?

9

A.

I know it didn’t explain that.

10

Q.

Okay.

11

A.

Yes, sir.

12

Q.

I assume you also have not read every single SIGACTS in

13

Probably not from the SIGACT you read?

CIDNE?

14

A.

Yes, sir.

15

Q.

How many times have you deployed?

16

A.

Five times.

17

Q.

Five times.

18

A.

In Afghan -– or Afghanistan and Iraq, sir.

19

Q.

How many times in each?

20

A.

One in Afghanistan and four in Iraq.

21

Q.

How many times with 2-10 Mountain?

22

A.

Twice -- three times with the 10th Mountain and twice with

23

In what theaters?

SOCCENT.

9836

13400

Q.

1
2

Thank you.

You would agree that CIDNE has MEDEVAC reports

in it?

3

A.

Yes, sir.

4

Q.

How we MEDEVAC?

5

DUSTWUN, how we find our kidnapped

Soldiers?
A.

It didn't tell how to, it just tells the results of it,

8

Q.

So what we did once someone was kidnapped?

9

A.

No.

6
7

sir.

It was the actual event.

10

did or how we reacted to it.

11

happened during that event.

There's no report on what we

It's a report of just facts on what

12

Q.

What happened on the ground then?

13

A.

Yes, sir.

14

Q.

And those types of reports you relied on PFC Manning to

15

understand what was in them to pull the information you needed?

16

A.

Yes, sir.

17

Q.

And he was good at that?

18

A.

Yes, sir.

19

Q.

He was a 10 at that?

20

A.

Yes, sir.

21

Q.

Would you have gone to him if you didn't understand what

22

was in the CIDNE Database?

9837

13401

1
2
3
4

A.

I would still utilize him, but not as much as he was

utilized, sir.
Q.

He understood -- you had confidence that he understood

exactly that type of information that was there?

5

A.

Yes, sir.

6

Q.

Earlier you testified about mIRC Chat.

7

mIRC Chat was there

when you showed up?

8

A.

Yes, sir.

9

Q.

What unit did you RIP out with?

10

A.

It was the 82nd.

11

Q.

3rd Brigade, 82nd Airborne?

12

A.

Yes, sir.

13

Q.

When you RIPd out there as a part of normal procedures, you

14

fell down on what their all-source tech computer?

15

A.

Yes, sir.

16

Q.

And then that all source -- you did a left seat, right seat

17

with that all source tech?

18

A.

No, I didn’t, sir.

19

Q.

You didn't -– you didn’t get that opportunity?

20

A.

No, sir.

21

Q.

Okay.

22
23

I showed up a month later.

And when you showed up a month later mIRC was on

that computer?
A.

Yes, sir.

9838

13402

1

Q.

Earlier you testified about the use of open source

2

intelligence.

3

operations?

4

A.

How did 2-10 Mountain use OSINT in your daily

If we wanted to look for other information, if we're trying

5

to confirm something happened or add to our packet because we made

6

target decks and different things like that, so we could get any kind

7

of intelligence that we could get, whether it would be from CNN or

8

from Intelpedia, we get it.

9
10

Q.

And the SIGACTS you're testifying about that came from

CIDNE?

11

A.

Yes, sir.

12

Q.

And CIDNE was on SIPRNET?

13

A.

Yes, sir.

14

Q.

And most SIGACTS were classified Secret?

15

A.

Yes, sir.

16

Q.

What is the classification of open source information?

17

Typically?

18

A.

Unclassified.

19

Q.

Unclassified?

20

A.

Yes, sir.

21

Q.

Can it be classified if there's analysis with it?

9839

13403

1

A.

If there is analysis put on it, then it would be removed

2

from unclassified.

Because that's usually what makes a SIGACTS

3

classified is when it has an assessment or analysis onto it ----

4

Q.

Okay.

5

A.

---- then it moves to the Secret.

6

Q.

Okay.

And I guess I should even been more specific --

7

thank you for that, but for open-source information, it's

8

unclassified unless it has analysis with it?

9
10

A.

It can have analysis just as long as it's not done by an

intelligence professional.

11

Q.

Okay.

12

A.

Because we have that training to make -- and the

13
14
15

Because then why?

information to make a more educated analytic view.
Q.

And it was at the training you think that PFC Manning did

or did not have?

16

A.

Yes, we have that, all of us.

17

Q.

Did he have that or not?

18

A.

Yes, sir.

19

TC[MAJ FEIN]:

20

MJ:

One moment, please, Your Honor.

Okay.

21

[There was a pause while the trial counsel conferred at the counsel

22

table.]

23

9840

13404

1
2

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

Also earlier when Mr. Coombs asked you questions I think

3

there was some confusion with executable versus something on your

4

desktop.

5

to be an executable?

If you had a shortcut on your desktop do you believe that

6

A.

No, sir.

7

Q.

Okay.

8

A.

That brings you to where that executable file is, sir.

9

Q.

Okay.

10

What do you believe it does?

So it's a –- it’s just a link to put you to where

the other file is?

11

A.

Yes, sir.

12

Q.

And you -- to the best of your memory, you were not

13

authorized put any executable files onto your actual DCGS machine?

14

A.

That's correct, sir.

15

Q.

You remember though you testified that you were told by Mr.

16

Milliman, apparently, that you could have executables on a CD?

17

A.

Yes, sir.

18

Q.

And then you can run the CD?

19

A.

We could run the CD.

20

Q.

So long as you didn't have to be an administrator?

21

A.

Yes, sir.

22

Q.

And then as long as it allowed you, because you weren’t an

23

Yes, sir.

administrator, you could run it on the CD?

9841

13405

1

A.

Yes, sir.

2

Q.

But you could not put it onto your desktop ----

3

A.

Yes.

4

Q.

---- the file itself?

5

A.

Right.

6

Q.

And prior to your preparation for this testimony, had you

7

ever heard of the term executable file?

8

A.

No, sir.

9

Q.

So what is it that you remember Mr. Milliman telling you

10
11

about a CD?
A.

That we were not allowed to put any kind of programs or

12

anything without going through him.

Everything that had to be

13

downloaded onto the computer had to go through him because he was

14

overall responsible for those systems.

15

Q.

So whatever this is on this CD you went to him?

16

A.

Yes, sir.

17

Q.

And after you went to him he said just run it on the CD,

18

you're fine?

19

A.

If we had any intentions of putting it onto the desktop we

20

had to go to him.

If it was run off the CD we didn't ever have to go

21

to him.

22

Q.

And you sought that clarification and he gave that?

23

A.

Yes, sir.

9842

13406

1

Q.

So you don't recall today whether that thing on the CD was

2

a self-executable or just a program, because you don't know the

3

difference between the two?

4

A.

No, I do not.

5

TC[MAJ FEIN]:

6

MJ:

7

CDC[MR. COOMBS]:

Okay.

Redirect?

10

Yes, Your Honor.
REDIRECT EXAMINATION

8
9

No further questions, Your Honor.

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

All right.

Chief, I just want to clear up that last point

11

then to make sure.

So do you recall me sending an e-mail to you to

12

seek clarification on this point of how you could use a executable

13

file on either on a CD or as a shortcut on the desktop of your

14

computer?

15

A.

Yes, sir.

16

Q.

And with regards to -- I only want to ask you from what you

17

were told and from your perspective.

Okay?

Is that all right?

18

A.

Yes, sir.

19

Q.

You had earlier said that you ran something from a CD and

20

you didn't need to the seek guidance or permission for that because

21

that was permitted.

Do you recall saying that?

22

A.

Yes, sir.

23

Q.

What did you run from a CD?

9843

13407

1

A.

Well, there's different things that we had to click on.

2

know I ran -- maybe that was a movie player or something like that.

3

I know I ran a movie player from that as well, a VLC.

4

Q.

All right.

I

So it was -- a movie player was a program that

5

you didn't have on your DCGS-A computer but you did have it as a

6

program on a CD and you could run it from a CD?

7

A.

Yes, sir.

8

Q.

On the DCGS-A computer?

9

A.

Yes, sir.

10

Q.

And presumably I guess if you were doing a movie player you

11

had something on your DCGS-A computer that you wanted to use that

12

movie player to play?

13

A.

Right.

14

Q.

Did anyone say that was against the users -- user agreement

15

to do that?

16

A.

No, sir.

17

Q.

Now, when you have a shortcut on the desktop of your

18

computer that links you to a CD.

So if you click a shortcut and it

19

runs whatever you have on the CD, was that permitted?

20

A.

Yes, sir.

21

Q.

Did you have to go to Mr. Milliman or anyone else to get

22
23

permission to do that?
A.

No, sir.

9844

13408

1
2
3

Q.

When you say permitted like do you recall that was put out

by the S-2 Section or how was that permitted?
A.

When I -- when we seek clarification for what we could put

4

onto the computers, that's the guidance.

5

don't download it onto the actual computer, you can use it.

6

Q.

All right.

They told us as long as you

So tell me if this was permitted.

If I had say

7

Wget or say I had some executable program on a CD and I plugged it in

8

–- put it in ----

9

TC[MAJ FEIN]:

10

MJ:

11

TC[MAJ FEIN]:

Your Honor, objection.

Yes.
The witness has already said he doesn't

12

understand the difference between an executable and an installable

13

file or program.

14

with this line of questioning.

15

There's not sufficient basis here to even continue

CDC[MR. COOMBS]:

I don't believe that's what the witness

16

said, Your Honor.

I believe the witness said prior to maybe this

17

court- martial wasn't as familiar with the term –- wasn’t familiar

18

with the term executable file, but he knew what an executable was.

19

actually asked him that during my direct.

20

MJ:

What is an executable file?

21

WIT: Something that could be run by itself, ma'am.

22

MJ:

What's the other program you used?

9845

I

13409

TC[MAJ FEIN]:

1

Well, it’s the foundation between something that

2

could be run on its own versus a program that would be installed and

3

the difference between the two.
MJ:

4

Let me just start -- what is your understanding about what

5

kind of a program could be used in a computer with a CD and shortcut

6

added to the desktop?

7

CD are there?
WIT: I was under the impression that there was no restrictions

8
9

on the actual CD.
MJ:

10
11

It doesn't matter what kind of a program it is, anything

goes?

12

WIT: Yes, ma'am.

13

MJ:

14
15

What, if any, restrictions on what's on that

Overruled.

Go ahead.

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

So if I had a different program on a CD and I placed a

16

shortcut for that program on my desktop to run it and I double click

17

and it ran, from your perspective was that against the user agreement

18

from your understanding?

19

A.

No, sir.

20

Q.

And you had talked about on cross the various programs that

21

were available to you from the DCGS-A computer, and when I asked you

22

what program you used on the CD you said it was a version of the

23

media player.

Is that right?

9846

13410

1

A.

Yes, sir.

2

Q.

So how did you get that version of the media player that

3

wasn't available on the DCGS-A computer?

4

version on the CD?

Where did you go get that

5

A.

It was a CD that was given to me, sir.

6

Q.

Do you know where that came from?

7

A.

I do not remember.

8

Q.

If a Soldier downloaded something from NIPRNET and burned

9

it onto a CD, any sort of program, and then put that into their DCGS-

10

A computer to run from the CD was that from your understanding

11

against the user agreement?

12
13
14

A.

You're allowed to do that, but you're not allowed to do it

the other way around.
Q.

And the other way around, when you say actually putting it

15

on the computer -- and I want to make sure there's no confusion

16

there.

17

something that you needed to have administrative rights to do?

18
19
20

A.

When you're putting it on the computer, the program, is that

If you were going to do download it onto the computer you

need administrative rights.
Q.

And so –- and you can said this is beyond your computer

21

knowledge, but if you didn't have admin rights to the DCGS-A

22

computer, could you do that?

23

A.

I know I couldn't do it.

9847

13411

1

Q.

Even if you wanted to like if you said, “Look, I'm going to

2

add this program to my DCGS-A computer,” you didn't have admin

3

rights, from your understanding you couldn't do it?

4

A.

Right.

5

Q.

Even if you wanted to?

6

A.

Yes, sir.

7

Q.

That might be an example of why that was not permitted?

8

A.

Yes, sir.

9

CDC[MR. COOMBS]:

10

WIT:

11

MJ:

12

TC[MAJ FEIN]:

13

MJ:

Thank you.

Yes, sir.
Government, any last ---May I have a moment, Your Honor?

Yes.

14

[There was a pause while the trial counsel conferred at the counsel

15

table.]

16

TC[MAJ FEIN]:

17

MJ:

18

No further questions, Your Honor.

All right.

21
22
23

Just to make

sure that understood your testimony.
EXAMINATION BY THE COURT-MARTIAL

19
20

Chief, I have a couple of them.

Questions by the military judge:
Q.

You wanted to have a media viewer from a CD and you put

that into your computer.
A.

Yes, ma'am.

9848

13412

1

Q.

And you put a shortcut on the desktop to use that?

2

A.

No.

3

I would just go straight to the CD, ma'am.

I have a

shortcut to the CD player.

4

Q.

You had a shortcut to the CD player?

5

A.

Yes, ma'am.

6

Q.

Then why did you go to Mr. Milliman at all about using that

A.

If the CD got scratched or you lost it or something, you

7
8
9

CD?

didn't have access to that computer or to that program no more.

10

wanted to put stuff on my computer.

11

that was not already on a DCGS I had to go through Mr. Milliman.

12
13
14
15
16
17

Q.

So I

Anything I wanted to put on it

So this media viewer, did you actually run it from the CD

or did Mr. Milliman put it on your computer?
A.

I ran it from a CD for a little while until Mr. Milliman

said it was okay to put it on and he eventually put it on for me.
Q.

I thought I heard you testify earlier that you had tried

to use it from the CD and you needed administrative rights?

18

A.

Yes.

19

Q.

On the computer?

20

A.

Yes, ma'am.

21

Q.

If you weren't supposed to add things to the computer then

22

That’s -- I initially tried to put on it myself.

why did you do that?

9849

13413

1

A.

Because we -- I did not know at that time that the DCGS was

2

not our property and that's why we're not allowed to put those that

3

on the DCGS because they were not our, 2-10, property.

4

they were ours from home, which they were not.

5

Q.

I assumed

Were there any restrictions that you're aware of with

6

respect to putting a program on a CD that actually accesses the

7

classified information on the SIPR?

8

A.

No, ma'am.

9

MJ:

Any follow-up based on that?

10

TC[MAJ FEIN]:

No, Your Honor.

11

CDC[MR. COOMBS]:

12

MJ:

13

CDC[MR. COOMBS]:

No, ma'am.

Temporary or permanently excused.
Permanent, Your Honor -- actually temporary.

14

I apologize.

15

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

16

the courtroom.]

17
18

MJ:

Is now a good time to take lunch or do you want to go for

another witness?

19

CDC[MR. COOMBS]:

20

MJ:

21

CDC[MR. COOMBS]:

22

MJ:

23

TC[MAJ FEIN]:

Lunch break, Your Honor.

How long would you like?

All right.

If we could have an hour and 15 minutes?
Any objection?

No, ma'am.

9850

13414

1

MJ:

All right.

Court is in recess then till 1345 or 1:45.

2

[The court-martial was recessed at 1233, 8 July 2013.]

3

[The court-martial was called to order at 1400, 8 July 2013.]

4
5
6

MJ:

Please be seated.

Court is called to order.

Major Fein,

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

Your Honor, all parties when the court last

7

recessed are again present with the exception of Captain Overgaard is

8

absent and Captain Whyte is present.

9
10

MJ:

All right.

Thank you.

Is there anything we need to

address before we continue?

11

TC:[MAJ FEIN]:

No, ma'am.

12

CDC[MR. COOMBS]:

13

MJ:

14

CDC[MR. COOMBS]:

All right.

No, ma'am.
Defense?
Yes, Your Honor.

The defense calls Sergeant

15

David Sadtler to the stand.

16

SERGEANT DAVID SADTLER, U.S. Army, was called as a witness for the

17

defense, was sworn, and testified as follows:
DIRECT EXAMINATION

18
19
20
21

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

For the record, you're Sergeant David Sadtler of the 709th

Battalion, 66th Brigade?

22

A.

Yes, sir.

23

TC[MAJ FEIN]:

Thank you.

9851

13415

1

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

2
3

Sergeant Sadtler, were you deployed to Iraq in the

2009/2010, timeframe?

4

A.

Yes, sir.

5

Q.

What unit were you deployed with?

6

A.

10th Mountain, 2nd Brigade, Special Troops Battalion.

7

Q.

Do you know PFC Manning?

8

A.

Yes, sir.

9

Q.

And how do you know him?

10

A.

He was -- he was in the brigade element.

11

I was in the

battalion element of the MI Section.

12

Q.

How often did you have interaction with PFC Manning?

13

A.

During work functions and shift change.

14

Q.

And during those time periods, during any of the work

15

functions or shift changes, did you ever have conversations with PFC

16

Manning?

17

A.

On a few occasions, yes, sir.

18

Q.

I want to ask you a few questions about PFC Manning's

19

knowledge on certain software packages for the DCGS-A computer.

20

Okay?

21

A.

Roger, sir.

9852

13416

Q.

1

With regards to your interaction with him, did you come to

2

know whether or not he had any knowledge with regards to software

3

packages?

4

A.

Yes, sir.

5

Q.

And how did you come into that knowledge?

6

A.

He was one of the -- what I would call the better analysts

7

in the Section.

8

Q.

And why do you say that?

9

A

He focused his knowledge onto learning a software and he

10

really -- he honed his abilities in knowing the software and knowing

11

the job.

12

Q.

And what type of software was he knowledgeable on?

13

A.

ArcGIS and I'm not sure which other, which other software

14

he was using.

But ArcGIS was a large part of our job.

15

Q.

What did you use in general, what did you use ArcGIS for?

16

A.

We used ArcGIS to plot events onto a map and that would be

17

exported to either Google Earth or put into a PowerPoint.

18

Q.

Did PFC Manning ever help you with any of the software?

19

A.

He had helped someone else in the Section while I was there

20

so I learned a little bit as he was showing us how to accomplish the

21

task.

22
23

Q.

And do you recall what software package he was helping the

other person on?

9853

13417

1

A.

That was ArcGIS, sir.

2

Q.

During your conversations with PFC Manning, did you ever

3
4

have a conversation about setting up a hash table software?
A.

He had brought me to the side to have what seemed to be a

5

private conversation and he fielded the idea to me that he wanted to

6

generate hash tables on a computer and market that in some fashion.

7

Q.

What are hash tables?

8

A.

Hash tables are mathematical calculations of passwords that

9

are supposed to be in a one-way fashion so that you can't reverse

10

that sequence into the original password, thereby securing that

11

password from release.

12
13
14

Q.

And the idea that PFC Manning was talking to you about --

from what you heard, did you believe that was a marketable idea?
A.

It had already been accomplished in the open-source world.

15

Or it was generally already known to exist.

16

it, it did make sense to me.

17
18
19

Q.

So for reimplementing

Now, from your position, what job did you have when you

were deployed?
A.

I was a member of the team in the TOC and we monitored

20

events at the other battalion levels.

So if there was a IED or a

21

convoy, we would make sure that that convey was looked after by

22

assets.

23

Q.

Do you have computer knowledge yourself?

9854

13418

1

A.

Yes, sir.

2

Q.

And what, can you explain to the Court, kind of the level

3
4

of your computer knowledge?
A.

I spent my teenage years reading and studying on computer

5

related technology.

6

a hobbyist.

I was in the computer club in high school just

7

Q.

Do you know how to program?

8

A.

I did know basic programming a few years ago but I haven't

9
10
11

done anything recently so I'm no longer considering myself a
programmer.
Q.

All right.

With regards to, I guess, other than marketing

12

this kind of hash table software, was there any other conversation on

13

what PFC Manning was planning to use the program for, if anything?

14

A.

No, sir.

15

Q.

Based upon your interaction with PFC Manning, would you

16

describe him as somebody who was knowledgeable on worldly events?

17

A.

Yes, sir.

18

Q.

Why would you say that?

19

A.

He had told me that he was up to date on worldly events and

20

that the staff in the brigade would come to him if they needed to

21

know information about what was going on in the world.

22

Q.

Do you know whether or not he read open-source information?

9855

13419

1
2
3

A.

Yes, sir.

I believe that's what he was trying to express

to me.
Q.

Do you recall an incident where PFC Manning brought to you

4

a concern regarding Iraqis being arrested by the Iraqi National

5

Force?

6

A.

Yes, sir.

7

Q.

And when was this?

8

A.

This was sometime after, I'm not sure exact dates, but

9

sometime after I arrived in Iraq.

10

Q.

And when did you arrive in Iraq?

11

A.

Again, it was I believe December of 2009.

12

But I do not

have a good recollection of when it was.

13

Q.

And what sort of documentation did PFC Manning show you?

14

A.

He showed me a translated copy of a report, I believe.

15

Q.

Do you recall what that report dealt with?

16

A.

I don't have the -- I don't remember the exact contents but

17

it was something to the effect of Iraqi nationals had arrested a

18

group of Iraqis or Moroccans printing anti-Iraq government

19

propaganda.

20

Q.

Do you know why PFC Manning was showing you this

21

information?

22

A.

He seemed to be concerned over the event.

23

Q.

And why do you say that?

9856

13420

A.

1
2

concerned that this was happening.

3
4
5
6
7
8
9
10

He brought it to me in a way he seemed -- that he was

Q.

Do you know if PFC Manning showed this material to anyone

A.

I believe he showed it to his co-workers, but I was not in

else?

the -- I was not in his section when he did so.
Q.

After PFC Manning showed you the documentation that he had,

what did you do?
A.

After he showed me documentation, I read it and I dropped

-- I dropped the idea.

I didn't follow up on it or anything.

11

Q.

Did PFC Manning ask you to follow-up on anything?

12

A.

No.

13

Q.

And based upon when you say, “I dropped the idea,” how --

14

what was PFC Manning's response to you when he showed you this stuff?

15

A.

I was ----

16

TC[MAJFEIN]:

17

MJ:

18

CDC[MR. COOMBS]:

19

MJ:

20

CDC[MR. COOMBS]:

21

WIT:

22

CDC[MR. COOMBS]:

Objection, Your Honor.

Hearsay.

The witness' response or his reaction ----

All right.

I'll go with reaction, Your Honor ---Sustained on the response.
Yes.

Yes, Your Honor.

Could you repeat the question?
Yeah.

23

9857

13421

1
2
3
4

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

Based upon what he showed to you, what was his reaction

when you said, I basically kind of dropped the issue?
A.

I dropped the issue after -- when he brought it up to me I

5

had told him or I had expressed to him that it was just what happens

6

because we're not in the United States, so different countries have

7

different laws and different rights.

8

anything remarkable happening after that ----

He didn't -- I don't remember

9

Q.

And without ----

10

A.

---- as far as a reaction.

11

Q.

---- And without saying anything that he might have said to

12
13
14
15
16

you, did you see any sort of physical reaction by PFC Manning?
A.

The only thing that I saw from him at the time that I can

recall was that he was upset over the situation.
Q.

Did PFC Manning ever come to you to complain about his

belief that no one in his unit seemed to care about the mission?

17

A.

He might have, sir.

18

Q.

Do you recall that or not?

19

A.

Not at this time, sir.

20

Q.

Do you recall ever saying something along those lines in a

21
22
23

sworn statement?
A.

I might have, sir.

But to recall the -– recall it

accurately I, I can only say that there was -- he had a deep belief

9858

13422

1

in news and what was going on.

2

concerned about just going throughout their day.

3

CDC[MR. COOMBS]:

4

have no further questions.

5

MJ:

6

TC[MAJ FEIN]:

7

MJ:

Whereas, other people were more

All right.

Thank you, Sergeant Sadtler.

Cross?
Can I have a moment, Your Honor?

Yes.

8

[There was a pause while the trial counsel conferred at the counsel

9

table.]
CROSS-EXAMINATION

10
11

Questions by the trial counsel [MAJ FEIN]:

12

Q.

Sergeant Sadtler, you're a signals intelligence analyst?

13

A.

Yes, sir.

14

Q.

How does that differ, in an unclassified manner, how does

15
16

that differ from all source intelligence analyst?
A.

All source intelligence analyst deal with all forms of

17

intelligence.

18

signals.

19

I

Q.

Whereas, a SIGINT analyst deals specifically with

Prior to arriving at 2-10 Mountain and deploying with them

20

at same time Private First Class Manning, did you ever use a

21

Distributed Common Ground System Army station DCGS-A workstation?

22

A.

No, sir.

23

Q.

Do you recollect today whether you actually ever used one?

9859

13423

1

A.

Yes, sir.

2

Q.

Why would you not have used one?

3

A.

DCGS-A is a system used by all source analysts, sir.

4

Q.

And what network did you typically work on as a signals

5

intelligence, I'm sorry, not the network.

6

up and rephrase this.

7

classification than SIPRNET, as a signals intelligence analyst?

But was it -- let me back

Was the network you worked on a higher

8

A.

It was higher than SIPRNET, sir.

9

Q.

And -- but when you were deployed, you weren't actually

10

working in a signals intelligence analyst capacity, correct?

11

A.

Correct.

12

Q.

You were working on the TOC floor?

13

A.

Yes, sir.

14

Q.

And you would go back and see PFC Manning in the S-2

15

Section?

16

A.

Yes, sir.

17

Q.

Or he would come out and see you on the TOC floor?

18

A.

Yes, sir.

19

Q.

But to the best of your memory today, you never worked on a

20

DCGS-A computer ever?

21

A.

No, sir.

22

Q.

Also, when you did observe PFC Manning working on his

23

computers, did you observe him locking his computer?

9860

13424

1

A.

Yes, sir.

2

Q.

Did he lock it a lot?

3

A.

Yes, sir.

4

Q.

What do you mean by locking?

5

A.

He locked the screen as though you were to leave the

6
7

workstation unattended.
Q.

Is that what -– is that -- did you see that -- so did he --

8

when you saw him lock it, did he leave the computer station

9

unattended?

10

A.

Not necessarily, no, sir.

11

Q.

And was that the normal practice of those in the S-2

12

Section?

13

A.

No, sir.

14

CDC[MR. COOMBS]:

Your Honor, with regards just to the last

15

answer, I would object as to this witness' ability to testify to the

16

normal practice of the rest of the people in the T-SCIF.

17

in the TOC, which is a totally separate section.

18

MJ:

19

TC[MAJ FEIN]:

20
21

All right.

He worked

Do you want to develop that a little bit more?
Absolutely, Your Honor.

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

When you worked in the TOC, did you personally observe

22

individuals while they were still sitting at their computer locking

23

their computer when another individual would walk up?

9861

13425

1

A.

No, sir.

2

Q.

Did you observe anyone ever doing that?

3

A

No, sir.

4

Q.

In the TOC?

5

A.

No, sir.

6

Q.

When you visited the T-SCIF, did you ever observe anyone

7

doing that other than PFC Manning?

8

A.

No, sir.

9

TC[MAJ FEIN]:

No further questions, Your Honor.

10

MJ:

11

CDC[MR. COOMBS]:

12

MJ:

13

Redirect?

Sergeant Sadtler, I just have a couple of questions for

you.
EXAMINATION BY THE COURT-MARTIAL

14
15

Nothing based upon that, Your Honor.

Questions by the military judge:

16

Q.

What was the date that you arrived in Iraq?

17

A.

I'm not sure on that date, ma'am.

18

Q.

Was it before or after Christmas?

19

A.

I couldn't tell you for certain but I believe it was around

20

Christmas.

21

still.

They had Christmas decorations and presents under a tree

22

Q.

So would you say Christmas was coming or had passed?

23

A

I'm not sure, ma'am.

9862

13426

1
2

Q.

Okay.

And how soon after your arrival did this

conversation with PFC Manning take place?

3

A.

I do not know, ma'am.

4

Q.

Was it a long time or a short time?

5

A.

I believe I spent roughly 2 weeks before I transitioned

6

into working and then it would have been about another week before I

7

moved into the TOC permanently.

8

month before I could have really talked to him.

9

accurate date for you, ma'am.

10

Q.

So it would have been close to a
But I don't have a

So just to make sure I understand this, did you arrive in

11

Iraq around Christmas and need 2 weeks, I guess to get sett -- before

12

you started working, and then another week in the TOC?

13

arrive earlier than that and start working around Christmas?

14
15

A.

I arrived in December or January.

when it was, ma'am.
Okay.

I'm not sure of exactly

I didn't keep track of it.

16

MJ:

Any follow-up based on that?

17

CDC[MR. COOMBS]:

18

TC[MAJ FEIN]:

19

MJ:

20

CDC[MR. COOMBS]:

21

MJ:

22

TC[MAJ FEIN]:

No, Your Honor.

No, ma'am.

Temporary or permanent excusal?
Permanent.

Do you agree?
Yes, ma'am.

9863

Or did you

13427

1

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

2

the courtroom.]
CDC[MR. COOMBS]:

3

Your Honor, the defense calls Captain Steven

4

Lim to the stand.

5

CAPTAIN STEVEN LIM, U.S. Army, was called as a witness for the

6

defense, was sworn, and testified as follows:
DIRECT EXAMINATION

7
8

Questions by the trial counsel [MAJ FEIN]:

9

Q.

And you are Captain Steven Lim, 1st Army Division East?

10

A.

That's correct.

11

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

12
13

Captain Lim, I want to first start off by asking you a few

questions about PFC Manning's experience level.

Okay?

14

A.

Yes, sir.

15

Q.

Was PFC Manning one of the Soldiers that worked underneath

17

A.

Yes, sir, he was.

18

Q.

And my understanding was that a period of time you became

16

19

you?

the S-2 ---

20

A.

Yes, sir.

21

Q.

---- in the brigade?

22
23

Do you know whether or not Ft. Drum

was PFC Manning's first duty assignment?
A.

Not for sure, sir.

I believe it was.

9864

13428

1
2

Q.

Do you know how many years PFC Manning was in the Army

prior to the time of the deployment?

3

A.

Not exactly.

A couple years, I assume.

4

Q.

And why do you assume that?

5

A.

I mean, he came in to -- as either private or private first

6

class and normally that's just a young Soldier coming into the

7

military so just based on that right there.

8
9

Q.

And in your estimation was PFC Manning a junior analyst or

a ----

10

A.

Yes, sir.

11

Q.

Why would you say that?

12

A.

Usually it's based on rank and experience.

13

Q.

And as a junior analyst, was conducting analysis one of PFC

14

A junior analyst.

Manning's strengths?

15

A.

Yes, sir.

16

Q.

And why do you say that?

17

A.

He was very good with data mining, doing statistical

18
19
20

analysis, trends analysis, stuff like that.
Q.

And what about putting together a collaborative picture of

all the information for a commander, was PFC Manning good at that?

21

A.

I'd say he was average.

22

Q.

Why do you say he was average?

9865

13429

1

A.

Because sometimes that comes with experience.

Learning how

2

to take every piece of the puzzle and put it actually together.

3

Sometimes that just comes with experience over time.

4

Q.

In your estimation, was PFC Manning an experienced analyst?

5

A.

No, sir.

6

Q.

Was he still learning?

7

A.

Yes, he was.

8

Q.

Now even though he was not an experienced analyst at this

9

point did he have other strengths?

10

A.

Are you talking about as an analyst?

11

Q.

Yeah, as an analyst or an S-2?

12

A.

Outside of the statistical analysis and the charts, he was

13

pretty good with using computers.

14

Q.

What was his strengths with using computers?

15

A.

He could manipulate some of the database in the DCGS better

16

than other analysts in the Section.

17

Q.

And when you say manipulate the data, how so?

18

A.

It was a little bit complicated to use.

Some commands were

19

not easy to memorize and, you know, to pull certain statistical data

20

off of spreadsheets and put them into charts and graphs.

21

everyone knew how to do that initially.

22
23

Q.

Not

Did PFC Manning understand how to use the programs within

the DCGS-A computer?

9866

13430

1

A.

Yes, sir, I believe so.

2

Q.

And why do you believe that?

3

A.

Because he was the one that we turned to for the

4
5
6
7

statistical analysis and geoplot it to the map primarily.
Q.

And when you say you turned to him, what were you asking

him to do?
A.

Just take certain –- you know, whatever the requirement

8

was, take certain patterns or trends, come up with some sort of

9

predictive analysis based off that and be able to portray that on a

10
11
12

map slide.
Q.

And when you tasked him to do that, was PFC Manning able to

complete those tasks in a timely manner?

13

A.

Yes, most of the time, sir, yes.

14

Q.

Now I want to ask you a few questions about how you used

15

PFC Manning to create those products.

If you had a product to

16

complete, would you assign it to a team leader?

17

A.

Yes, I would.

18

Q.

And who were the team leaders in the S-2 Section?

19

A.

It was Staff Sergeant Balonek and Lieutenant Fields to

20
21

start out.
Q.

And just with assignment of team leader, without using an

22

exact example, could you tell the Court how you might do that?

23

far ----

9867

As

13431

1

A.

Yes.

2

Q.

---- give an assignment to a team leader?

3

A.

Give basic guidance and intent to the team leader on how
It's their task to

4

you would like something done, the end state.

5

delegate -- further delegate and delineate the effort of work to

6

their Section to complete the assignment.

7

Q.

So I guess after you assigned to it a team leader, would it

8

be typical for a team leader to then assign it to a junior analyst

9

like PFC Manning?

10

A.

Yes, sir.

11

Q.

And what aspects would they normally assign to a Soldier

12
13

like PFC Manning?
A.

It -- depending on the Soldier's experience, it could be a

14

multitude of things from just researching a certain individual's name

15

to going back and looking up historic events for certain area in the

16

battle space.

17
18

Q.

It's a wide range of tasks.

Would creating graphs and charts be something that a junior

analyst might be tasked to do?

19

A.

Yes, sir.

20

Q.

And how would you use those graphs and charts?

21

A.

We would use them for trend analysis to see, you know, if

22

certain attacks happened at certain times of the day or at certain

23

days of the week, months out of the year.

9868

So we could better have a

13432

1

predictive analysis on what we would or would not do or what the

2

enemy would or would not do.
Q.

3
4

Would you ever do any sort of quality assurance and quality

control on a product after you assigned it to a team leader?

5

A.

Yes, I would, sir.

6

Q.

And how so?

7

A.

Normally when it's completed, it would be given to myself

8

after it went through a multiple chain of QA/QC for a better lack of

9

term.

And I would always review before, especially if it was a

10

product I was going to brief to the commander, to make sure that one,

11

I knew the material and two, it was exactly what we were looking for.

12

Q.

And I guess once the junior analyst completed their work

13

and it was reviewed by the team leader and reviewed by you, did there

14

ever come a time where you had to go back to either the team leader

15

or junior analyst to tell him to tweak the product ----

16

A.

Yes, sir.

17

Q.

---- in some way?

18

A.

Yes, sir.

19

Q.

And why would you do that?

20

A.

Maybe there was a small piece of information that was

21

missing or maybe something that the analyst forgot to put in there.

22

Or I just thought of something, hey, maybe we should add this real

23

quick at the end.

Or, you know, those are some good examples.

9869

13433

1
2

Q.

Did you ever have to back to PFC Manning to give him

guidance on what needed to be done?

3

A.

I think I did once or twice, yes, sir.

4

Q.

And why was that?

5

A.

Probably due to time constraint.

6
7
8

Probably needed it for a

suspense, you know, meeting coming up, just quick turnaround.
Q.

Did PFC Manning ever miss anything from an assignment you

gave him?

9

A.

There was a few times, yes, sir.

10

Q.

And did it surprise you that PFC Manning might miss a task

11

or at least understanding the focus of a task?

12

A.

No, it wasn’t surprising.

13

Q.

And why not?

14

A.

Because like I said before, he was a junior analyst and

15
16
17

sometimes those things happen.
Q.

Were there times where it took PFC Manning longer to

complete a project that you assigned him?

18

A.

Yes.

19

Q.

And why was that?

20

A.

Sometimes, in his case, maybe he was assigned a task and he

21

didn't know where -- he thought he met the intent, but he really

22

didn't and he didn't go any farther, just stopped.

9870

So he had to

13434

1

receive guidance the following day and then complete it, maybe, the

2

next shift.
Q.

3
4

Was it surprising to you that he might not completely

understand a project and just stop?

5

A.

No, sir.

6

Q.

And again, why was that?

7

A.

It's -- with a junior Soldier, that's to be expected

8

sometimes.
Q.

9
10

Now prior to the deployment to Iraq, did PFC Manning get a

lot of chances to do analytical work in Garrison?
A.

11

The only experience I know is at JRTC.

12

the rest of the time.

13

the pre-deployment phase.
Q.

14

I can't speak for

Because I wasn't part of his element, part of

From your experience is a job of an analyst in Garrison –-

15

a junior analyst in Garrison different from that same job in a

16

deployed environment?

17

A.

Yes, sir.

To a point it is, yes.

18

Q.

Can you explain how so?

19

A.

Yes, sir.

Well, in Garrison we have other duties to do as

20

secur -- intelligence personnel.

We have security functions dealing

21

with security clearances, physical security inspection, stuff like

22

that.

23

isn't a whole lot of opportunity to get on classified networks to

And sometimes, unless you're ramping up for deployment, there

9871

13435

1

kind of become better at your job.

2

depends on the unit's mission at the time on how often a Soldier gets

3

to get on the -- practice those skills.

4
5
6

Q.

There's opportunities but it all

And then I guess in deployed environment, how has that

changed then?
A.

Usually the -- your sole focus is the intelligence piece as

7

opposed to the security piece, because usually the security pieces

8

are already in place.

9

Q.

So you’d be working longer on the SIPRNET?

10

A.

Yes, very –- much longer.

11

Q.

Now I want to ask you a couple questions about what PFC

Yes, sir.

12

Manning did during the deployment when he was not completing tasks

13

for you.

Okay?

14

A.

Okay, sir.

15

Q.

What shift did PFC Manning primarily work on?

16

A.

The night shift, sir.

17

Q.

And what threat group did he work on?

18

A.

The Shia Threat Group.

19

Q.

As a Shia Threat Group analyst, what did PFC Manning

20
21

primarily do on the night shift?
A.

Usually research topics that we came up with during the day

22

that we need to further investigate or finishing products that were

23

started during the day and they weren't completed so they were

9872

13436

1

finished at night.

Or just overall research in general on targets –

2

on current targets that we had that we needed to get more information

3

on.

4

Q.

5

information?

6

A.

Yes, sir.

7

Q.

And what is entailed in pulling, I guess, names in response

8
9

Did he ever pull names in response to RFI, request for

We all did.

to RFIs?
A.

Sometimes a unit would detain someone or have someone for

10

questioning and then we would just check our database to see if there

11

was any historical information on that person to see if it was of

12

value or if they were possibly wanted or a warrant for their arrest.

13
14
15

Q.

And would that task primarily be assigned to the night

shift?
A.

Well, typically would be assigned to when the event

16

happens.

17

depending on what time of the day it was would be depending on what

18

time that information happened.

19

Q.

Basically occur -- as it happens it would be assigned.

So

Were there products that were being completed by the night

20

shift designed to give commanders on the battlefield real time

21

information?

22

A.

Usually not, no, sir.

23

Q.

What were they -- what were those products used for?

9873

13437

1

A.

Like, planning or like future operations.

2

Q.

Now, I want to ask a few questions about how the T-SCIF was

3

run.

On most cases.

Okay?

4

A.

Yes, sir.

5

Q.

Did the brigade T-SCIF have an SOP?

6

A.

I don't know, sir.

7

Q.

I'm sorry?

8

A.

I don't know.

9

Q.

Do you recall saying that you -- it did not have an SOP?

10

A.

I don't, sir.

11

Q.

Would anything help refresh your memory?

12

A.

Yes, sir.

My previous testimony would.

13

[There was a pause while the defense counsel conferred at the counsel

14

table.]
CDC[MR. COOMBS]:

15
16

I'm showing the witness what's been marked

as Defense Exhibit Quebec for Identification.
Captain Lim, if you would please just read question 1 to

17
18

yourself silently and your answer on Page 2 and when you’re done look

19

up.

20

MJ:

21

CDC[MR. COOMBS]:

22

I'm sorry, that's Defense Exhibit?
Quebec, ma'am.

I'm retrieving Defense

Exhibit Quebec for Identification from the witness.

23

9874

13438

1
2
3

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

Captain Lim, does that refresh your memory on whether or

not the T-SCIF had an SOP?

4

A.

Yes, sir.

5

Q.

And did the T-SCIF have an SOP?

6

A.

No.

7

Q.

Do you know why the T-SCIF did not have an SOP?

8

A.

I do not, sir.

9

Q.

Would an SOP let the Soldiers know what the proper

10

procedures were within a T-SCIF?

11

A.

Yes, it would.

12

Q.

Would the SOP let the Soldiers know what they could and

13

could not do within the T-SCIF?

14

A.

Yes, it would.

15

Q.

Do you know if analysts were allowed to listen to music in

16

the T-SCIF?

17

A.

Yes, they were.

18

Q.

And how much music or where did the music come from?

19

A.

Originally when we first arrived it was on the shared drive

20

we had and it then it could also probably be found –- it was also

21

found on the SIPRNET as well.

22

Q.

Do you know how much music was on the shared drive?

23

A.

No, sir, I don't.

9875

13439

1
2

Q.

Were analysts allowed to play music on their DCGS-A

computers?

3

A.

Yes, they were.

4

Q.

Did anyone in the S-2 section say that listening to music

5

on your DCGS-A computers was against the user agreement?

6

A.

No, sir.

7

Q.

Were analysts allowed to bring in movies into the T-SCIF?

8

A.

No, sir.

9

Q.

And why do you believe they were not allowed to bring in

10

movies?

11

A.

It was just against the regulation.

12

Q.

So if an analyst brought in a CD with a movie on it that

13

they might have purchased as the S-2 you would say that that's not

14

permitted in the T-SCIF?

15

A.

That's correct.

16

Q.

If you saw that, what would you do?

17

A.

Make an on the spot correction.

18

Q.

And why would you not permit movies to be in the T-SCIF?

19

A.

You just don't know if it's a -- maybe a bootlegged disc or

20
21
22
23

something.
Q.

It might have a harmful program or some software on it.
Would bringing movies into the T-SCIF and then playing them

on your DCGS-A computer be against the user agreement?
A.

I believe it would.

9876

13440

1

Q.

Why do you believe that?

2

A.

Just because it's against regulation.

3

Q.

Do you know what an executable file is?

4

A.

Yes, sir, I do.

5

Q.

And how do you know what an executable file is?

6

A.

Just through personal experience using them.

7

Q.

Can you tell the Court what your personal experience is?

8

A.

In college, I made them on the computer using a video game.

9

To save memory, you could drag the shortcut to your desktop and then

10

you could run –- you could leave the CD –- you could insert the CD

11

and click on the shortcut and it would run the file from the CD as

12

opposed to keeping the program on the actual computer.

13
14

Q.

Do you know if analysts had mIRC chat as an executable file

on their DCGS-A computer?

15

A.

I don't know if it's executable or not.

16

Q.

Did you work off of a DCGS-A computer?

17

A.

I did, sir.

18

Q.

Did you have mIRC Chat on your computer?

19

A.

I had mIRC Chat on my computer, yes, sir.

20

Q.

Do you know if it was an executable file or not?

21

A.

I do not know.

9877

13441

Q.

1

Did anyone in the S-2 section say that running executable

2

files as a shortcut from the desktop of your computer was against the

3

user agreement?

4

A.

No.

That was never put out.

5

Q.

Did anyone in the S-2 section say that running an

6

executable file from a CD in your DCGS-A computer was permitted or

7

not?

8

A.

No, no one ever said that, sir.

9

Q.

Okay.

10

Do you know if that practice was being done by

Soldiers?

11

A.

I don't know, sir.

12

Q.

Do you know if anyone said that you could do that?

13

A.

No, I don't.

14

Q.

So I take it you -- do you know whether or not anyone ever

15

said that using an executable file that was not part of the baseline

16

package for the DCGS-A computer was against the user agreement?

17

A.

I don't know if that was ever said, sir.

18

Q.

Now I want to ask you a few questions about what an analyst

19

could look at on the shared drive.

Okay?

20

A.

[Affirmative response.]

21

Q.

Were any of the files on the shared drive encrypted?

22

A.

I don't know, sir.

9878

13442

1
2

Q.

Do you know if the shared –- or if any of the files in the

shared drive was compartmentalized?

3

A.

Each section had their own.

4

Q.

And so each section had their own files?

5

A.

Yes, usually they were categorized into whatever staff

6

Section you belonged to.

7

Q.

8

look at ----

9

A.

Yes, you could.

10

Q.

---- what they had?

11

A.

You could go anywhere.

12

Q.

Did anyone put out any sort of rules on what you could and

13

Do you know if others could go to a different section to

could not look at on the shared drive?

14

A.

No, sir.

15

Q.

Now let's talk about the SIPRNET.

16

Was everything on the

SIPRNET classified Secret and below?

17

A.

Yes, it was.

18

Q.

And other than information that might be password

19

protected, could an analyst access anything that was on the SIPRNET?

20

A.

Yes, he could.

21

Q.

Do you know if your section conducted any training on what

22
23

an analyst could and could not view on the SIPRNET?
A.

I do not.

9879

13443

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
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