Title: Volume FOIA 049

Release Date: 2014-03-20

Text: 15436

Volume 49 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

15437

A. Yes, ma'am.
Q. Which were??l had asked you questions on the persons at
risk, about whether you were??the ones that you were currently??well,

actually let me start with that. You said you notified around

percent of them. How many did you actually assist??how many

wanted assistance?

A. Around Your Honor.
Q. people or percent of the percent?
A. of those individuals. The number of people we assisted

was greater because it included family members and so on. But, of

the or so cases, of them involved assistance.

Q. And, when that assistance was??well, those people, we

are now in 2013, this was begun in 2010. Can you sort of get a

flavor about when most of that assistance began?

A. I would say most of it, in 2011, because it took us a while

to identify, reach out, and then execute, but what is ongoing in

that, and one thing I could not say in the open session was

So, you have the
problem of that work goes
on. Some of them have
gotten kind of stuck in limbo They


I
r?
W1


Closed Session 3 1 1 8 5 5

15438

So, that is ongoing work.

Q. So, say, as of the beginning of 2013, of those people,

how many had assistance started already?
A. In terms of??all of them had it started. I mean, it
started in 2011 or so. Maybe I am not understanding the question.
Q. Maybe I was confused. I thought you said that there was
one?
A. The one that I was referring to, we have had a case that
just came to our attention in the last couple weeks where somebody
was arrested and is in jail now. And, the assessment of the embassy
and the whole diplomatic corps is because he was named in a WikiLeaks
revelation
They did not overtly say that
that was it, but this was one where the post assumed that their
predecessors had named him and it turned out that they had not. So,

we are having to start that case from the beginning.

Q. Okay. So, this is one that should have been talked to and
was not.

A. Correct.

Q. Okay, you talked earlier about these??sometimes it wasn't

the initial dump of the cables that created the interest, it was the

I
I
r'J\

~?rr


Closed Session 4 1 1 8 5 6

15439

:5 r?


. .


follow?on media that would be now targeted to the region in that
particular language saying what the cables said?
A. Yes.

Q. And that would be after the release at some point. Are you

still seeing that occurring?

A. Yes, because, as I was mentioning, what happens is??it is

not Very interesting, I guess, after the initial surge of, "Oh, isn't

this neat, there was this leak of all this information." The media

stopped focusing on WikiLeaks itself. What they will do now is, when

they are writing a story about, you know, a political leader or a

person or something in another country, they will go back and do

research using that database and if they can find something that a

U.S. official said about them or something, they include that in the

story. So, if they are making a story saying three people say this

guy is corrupt, they will say, "Oh, and the US Embassy assessed them

as being corrupt as well." But, it is not something where they would
write a story just based on??
Q. So, I guess that is where I am getting a little confused.

I thought I understood your testimony to be that most of these
people that reguired assistance began to get it in 2011 and now that
we have these media things coming out, are new people coming in

reguesting assistance, or not?

Closed Session 5 1 1 8 5 7

15440






A. No. We haven't had one in a while but there was a flurry

of that in sort of late 2011, early 2012 as the media hit. But, the

ones now where it is coming out, I don't think it has been too muoh??

hopefully, we did, with this one exception I mentioned, we did a good

enough job that we antioipated this and got people out of harm's way.

MJ: All right, thank you. Any follow?up based on that?

No, ma'am.

No, Your Honor.

MJ: Okay, temporary or permanent exousal?

Temporary, Ma'am.

[The witness was temporarily exoused, duly warned, and withdrew from
the oourtroom.]

MJ: All right, with respect to this witness the Court will
aooept his expertise to educate the Court about his job and how the
persons at risk working group works,

but as far as that opinion on

the, "chilling," it is too speoulative based on what he is basing it

on so I am going to sustain the objection on the opinion. So, I am
going to disregard it.
Yes, ma'am.

MJ: Anything else we need to??and I have already got it in my
notes right next to that to disregard it.

Anything else we need to address?

7'
-2 ..
It

Closed Session 6 1 1 8 5 8

15441

1--


No, Your Honor.
No, ma'am.
MJ: Okay so, l0 o'clock in the morning is what we are going for

on Monday?

Yes, Your Honor.
Yes, ma'am.
MJ: Court is in reoess until 10 o'clock in the morning.

[The court?martial recessed at 1538, 2 August 2013.]

Closed Session 7 1 1 8 5 9

15442

1
2
3
4

[The court-martial was called to order at 1003, 5 August 2013.]
MJ:

Court is called to order.

Major Fein, please account for

the parties.
TC[MAJ FEIN]:

Yes, ma'am.

All parties when the Court last

5

recessed are again present with following exceptions; Captain

6

Overgaard is present, and Mr. Chavez, the court reporter is present.

7

Mr. Robertshaw is absent.

8

MJ:

All right.

Have there been any new exhibits added to the

9

appellate exhibit list?

10

TC[MAJ FEIN]:

Yes, ma'am.

Ma’am, Appellate Exhibit 632 is the

11

prosecution's response to the defense motion to merge Specifications

12

5 and 7 of Charge II, dated 2 August 2013.

13

prosecution response to the defense motion to merge Specifications 4

14

and 6 of Charge II, dated 2 August 2013.

15

is prosecution -- is the prosecution's response to defense motion to

16

merge as unreasonable multiplication of charges for sentencing, dated

17

2 August 2013.

18

MJ:

19

TC[MAJ FEIN]:

20

MJ:

21

TC[MAJ FEIN]:

Appellate Exhibit 633 is

And Appellate Exhibit 634

All right -Also, Your Honor -- oh, I’m sorry.

Go ahead.
As of 0945 this morning, there were ten members

22

of the media at the media operations center, one stenographer,

23

there's no media in the courtroom, 19 -- and 19 spectators in the

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1

courtroom.

2

available if needed.

3

MJ:

Currently, the overflow trailer is not being used but is

All right.

Thank you.

I also received an e-mail from

4

defense counsel over the weekend with respect to the unreasonable

5

multiplication of charges for findings motions.

6

Specifications 4 and 6 of Charge II that are at issue.

7

CDC[MR COOMBS]: That is correct, Your Honor.

I believe it was

And after our 802

8

session, I spoke with the government.

9

together a stipulation of expected testimony in order to highlight

10

the -- the issue that the defense believes was brought out in the

11

government's response motion.

12
13

MJ:

And does either side desire oral argument with

respect to that motion?

14
15

All right.

I believe what we'll do is put

CDC[MR COOMBS]: I think once the -- yes, the defense would, Your
Honor.

16

MJ:

All right.

So we'll have to have a time that we build that

17

in.

18

the witness today, and this afternoon perhaps -- or if that doesn't

19

work, maybe we can do it tomorrow.

20

ruling in abeyance pending oral argument.

21
22
23

What I'd like to do is get through the witnesses -- maybe get to

The court will hold the -- that

CDC[MR COOMBS]: This afternoon will be fine for the defense,
Your Honor.
MJ:

All right.

Government?

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1
2
3

TC[MAJ FEIN]:

That would be fine, ma'am.

We can, at lunchtime,

start working on the stip.
MJ:

Once again, counsel and I met in a brief R.C.M. 802

4

conference before we started today to discuss logistics and other

5

issues that arise in cases.

6

finalizing my ruling with respect to the defense motion for

7

appropriate relief under R.C.M. 1001(b)(4), but for the way ahead,

8

I'm going to read a portion of the ruling now because it is germane

9

as we proceed.

10

And I advised counsel that I’m

"Basically, conclusions of law, procedures forward.

The

11

Court cannot determine if government proffered evidence is admissible

12

aggravation under R.C.M. 1001(b)(4) unless the court knows what the

13

evidence is.

14

address these issues by holding an Article 39(a) session outside the

15

presence of the members with each witness.

16

testimony, argument from counsel and rule on what, if any, of the

17

testimony was admissible as aggravating evidence under R.C.M.

18

1001(b)(4).

19

Article 39(a) sessions during the trial.

20

interlocutory capacity to evaluate what evidence should be introduced

21

in its sentence imposing authority, when considering only

22

appropriately admitted evidence for its proper purpose.

23

If this were a trial before members, the Court would

The court would hear the

Since this case is a judge alone trial, there are no
The Court sits in its

(2) The following procedure will be followed for all remaining

11862

15445

1

government witnesses for whom the government intends to qualify as an

2

expert.

3

(A) The government will begin by identifying the scope of

4

the expertise for which the government seeks to qualify the witness

5

followed by the ultimate opinion the government seeks from the

6

expert.

7
8

(B) The defense may object and voir dire the witness after
the government lays the foundation for the witness.

9

(C) The government may lay the foundation for the expert's

10

opinion to include any admissible evidence in accordance with M.R.E.

11

703.

12

data that is not admissible evidence in support of the expert

13

opinion.

14
15
16

The government will not introduce any hearsay or other facts or

(D) The Defense may object during the scope of the
witness's testimony and articulate the reasons for the objection.
(E) The Court will listen to the evidence in its

17

interlocutory capacity.

The Court will summarily rule on clearly

18

inadmissible testimony.

After the witness has testified, the defense

19

will identify for the Court the areas of the testimony the defense

20

finds objectionable and why.

21

supplement.

22
23

There may be a need for a classified

(F) The Government will provide its position to the Court
regarding each defense objection.

11863

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1

(G) The Court will examine the testimony and rule on each

2

objection lodged by the defense.

3

imposing role, the Court will not consider any testimony or evidence

4

ruled to be inadmissible aggravation evidence.

5

When acting in its sentencing

(H) Unless either party wishes to rely on additional legal

6

authority not briefed in the filings for this motion, the list and

7

response need state only the objections and the reason the testimony

8

or evidence should or not should be admitted."

9

Does either side have any question about that procedure?

10

CDC[MR COOMBS]: No, Your Honor.

11

TC[MAJ FEIN]:

12

MJ:

13

All right.

TC[MAJ FEIN]:

15

CDC[MR COOMBS]:

16

MJ:

17

TC[MAJ FEIN]:

19

Is there anything else we need to address

before we call the witness?

14

18

No, ma'am.

No, ma'am.
No, Your Honor.

Please call the witness.
Ma'am, the United States calls the Under

Secretary of State for Management Patrick Kennedy.
[END OF PAGE]

20

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1

PATRICK KENNEDY, civilian, was called as a witness for the

2

prosecution, was sworn, and testified as follows:

3
4
5
6

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

Sir, you are the Under Secretary of State for Management

Patrick Kennedy?

7

A.

Yes, sir.

8

Q.

And, sir, what does your current position entail as the

9
10

Under Secretary of Management?
A.

I am responsible for the operational aspect of the State

11

Department; telecommunications, information technology, records,

12

finance, budget, security, medical, personnel and logistics.

13
14

Q.

And, sir, how long have you been in the current position --

in your current position?

15

A.

I've been in the position since November of 2007.

16

Q.

And, sir, you are here today to discuss your expertise in

17

the management and operations of the Department of State?

18

A.

Correct, Major.

19

Q.

And, sir, you are also here to discuss your expertise in

20

the use of diplomatic reporting by U.S. policymakers?

21

A.

Correct.

22

Q.

And, sir, given that expertise, are you also here today to

23

give your opinion on the impact of PFC Manning's criminal conduct on

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1

the management and operations of the Department of State?

2

A.

Correct.

3

Q.

And also the impact of Private First Class Manning's

4

criminal conduct on the -- on the diplomatic reporting use by U.S.

5

policymakers?

6

A.

Correct.

7

Q.

Thank you, sir.

Sir, before we continue, if either party

8

or the Court asks you a question that requires a classified answer,

9

please notify the Court.

10

There's no expectation here in this court-

martial that that classified information be discussed in the open.

11

A.

Thank you.

12

Q.

Sir, how does one become the Under Secretary of State for

13
14

Management?
A.

That is a presidential appointment.

I have been a Foreign

15

Service officer for 40 years, and I was probably at the point -- in

16

2007, I think, I was the senior career management officer in the

17

State Department, and I was recommended to the then Secretary of

18

State, Secretary Rice, by the then deputy Secretary of State, John

19

Negroponte.

20
21
22
23

Q.

Sir, and where does your current position fall within, for

instance, an organizational chart within the Department of State?
A.

You have the Secretary of State, you have two deputy

Secretaries of State, and then you have six under Secretaries of

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1

State.

2

Department.

So it's, in effect, the third operational tier in the State

3

Q.

And, sir, are you a member of the Senior Foreign Service?

4

A.

I am.

5

Q.

And how many years have you been a member of the Senior --

6
7
8

or the Foreign Service, sir?
A.

I've been a member of the Foreign Service since 1973.

So a

little over 40 years.

9

Q.

And what is your rank, sir, in the Foreign Service?

10

A.

The rank is called Career Minister.

It is the -- it is

11

equivalent of the Senior Executive Service, and in military parlance

12

it would be -- the protocol equivalent of a three-star general.

13

Q.

Sir, in your current position, do you have any specific

14

delegations as it pertains to Executive Order 13526 and its preceding

15

orders?

16

A.

17
18
19
20
21
22
23

I am the responsible official for classification for the

Department.
Q.

And where does that authority -- your specific as the

senior agency official derive from?
A.

It derives from a delegation of authority from the

Secretary of State.
Q.

And, sir, does that include having essentially, as we would

call it, command and control over the different information systems

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1

and information management systems?

2

A.

Yes.

3

Q.

That also involves classified information, sir?

4

A.

Yes.

5

TC[MAJ FEIN]:

Your Honor, before going through Under Secretary

6

of State Kennedy's entire background, the United States offers Under

7

Secretary of State for Management Patrick Kennedy as an expert in the

8

field of management and operations in the Department of State and

9

expert in the use of diplomatic reporting by U.S. policymakers.

10

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

11

MJ:

12

TC[MAJ FEIN]:

13

MJ:

14

TC[MAJ FEIN]:

15

MJ:

16

TC[MAJ FEIN]:

17
18

Okay.
One moment, please.

Does that truncate the foundation?
Say again, ma’am.

That can truncate the foundation?
It will be truncated, ma'am.

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

Sir, rather than going through your almost 41 years of

19

experience in the Department of State, I'd like to ask a few

20

questions about key jobs you've held at the Department.

21

did you first become -- when did you first assume a job within the

22

assistant secretary or the secretary's office level?

23

11868

Sir, when

15451

1
2
3
4
5

A.

I was a -- became the Assistant Secretary of State for

Administration in 1993 and served in that position until 2001.
Q.

And what were your general responsibilities, sir, as the

Assistant Secretary of State for Administration?
A.

It included oversight of information technology,

6

classifications, and records management, oversees buildings

7

operations, logistics.

8
9
10
11
12
13
14

Q.

And, sir, after being the Assistant Secretary of State for

Administration, what position did you hold?
A.

I then became one of the U.S. representatives to the United

Nations, and served in that position from 2001 to 2005.
Q.

And during that time, sir, did you have any overseas

details or other duties?
A.

Twice; once in 2003 and once in 2004, for six and a half

15

months and three and a half months, respectively.

16

Iraq, first, as the Chief of Staff for the Coalitional Provisional

17

Authority, and the then second time in 2004 as the Chief of Staff for

18

the transition unit in Iraq -- the transition from CPA and defense to

19

American embassy.

20

Q.

I was detailed to

And, sir, have you ever been detailed as a Department of

21

State senior Foreign Service officer to the Office of Director of

22

National Intelligence?

23

A.

Yes.

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1

Q.

And in what capacity, sir?

2

A.

In -- in -- from 2005 to 2007, I was the Deputy Director of

3

National Intelligence for Management.

4
5
6

Q.

And why, sir, ultimately were you selected for that job at

A.

Because I was a senior management officer, and because the

ODNI?

7

to-be-named first director of national intelligence, John Negroponte,

8

had been -- had been my supervisor both at the United Nations -- U.S.

9

missions with United Nations and in Iraq.

10

MJ:

11

WIT: 2005 to 2007.

12

MJ:

Thank you.

13

Q.

And, sir, can you generally describe for the court your

I'm sorry, sir, what was the year that that occurred?

14

responsibilities as a Deputy Director for National -- of National

15

Intelligence for Management?

16

A.

I essentially had two responsibilities; the office of the

17

Director of National Intelligence was set -- was just being set up.

18

So someone had to set up the personnel system, the financial systems,

19

the IT, and bring in the positions that the Intelligence Reform and

20

Terrorism Prevention Act required to be merged into the -- into the

21

Office of the Director of National Intelligence, and then set up

22

processes and make sure that the office was established and running

23

and then, additionally, oversee the logistics, the finance, the

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1
2
3
4

information management, the personnel systems of the ODNI.
Q.

Sir, after May of 2007, what job did you move back when you

returned to the Department?
A.

When I returned to the Department, I was briefly the

5

Director of Management Policy Rightsizing and Innovation from the

6

Department for -- for several months until I was nominated to be

7

Under Secretary of State for Management.

8
9
10

Q.

And what were your general responsibilities, sir, within

the Office of Management Policy, Rightsizing and Innovation?
A.

The office is essentially a senior level staff arm; a mini

11

think tank that oversees the development of management policies,

12

works with other U.S. Government agencies on the correct numbers and

13

staffing of American embassies' consulates and other offices

14

throughout the world, and then heads a unit that works within the

15

Department to look for innovative ways to improve all aspects of

16

management and operations.

17
18
19

Q.

Thank you, sir.

And, sir, have you ever taught in the

field of management and operations of the Department?
A.

Not formally.

The State Department has the national

20

foreign affairs training center, the Foreign Service Institute, and I

21

have been an adjunct faculty there, which simply means you give

22

lectures on subject matter.

23

in the 1900s.

Mine was on logistics and that was back

And I give lectures there on a regular basis to either

11871

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1
2
3
4
5
6
7
8
9

in-service or new -- newly appointment classes.
Q.

And, sir, the ones -- the lectures you give today and in

recent time, what was the general subject areas?
A.

The general subject is the overall management and

operations of the State Department.
Q.

Sir, have you also test -- or have you testified in the

Field of Information Management within the Department of State?
A.

Yes, both when I was assistant Secretary of State for

Administration, and now in my position as Under Secretary for

10

Management.

11

sessions in open and closed briefings.

12

cover, since it is within my responsibility, is information

13

management.

14
15
16

Q.

I testify regularly before the Congress either in formal
And among the subjects that I

And, sir, using the term information management, what does

that mean, sir?
A.

Information management has really several parts to it.

17

is the management of the information itself, which is the records

18

management, the classifications of it, and then, also, computer

19

systems operations and, lastly, long-haul -- long-haul technology.

20
21
22
23

Q.

And, sir, have you ever had personal experience in your

career with information management operations?
A.

As a -- as a management officer both in Africa, when I

served there in the 1970s, and in Cairo, where I was Chief of --

11872

It

15455

1

Chief of Administration -- Chief of Management at the American

2

Embassy in Cairo, the information management section within the

3

embassy reported directly to me.

4
5
6

Q.

And, sir, can you please describe for the court -- you've

used the term, I think, reporting -- what reporting means?
A.

It is the State Department's -- one of the State

7

Department's major responsibilities in the national security arena is

8

to have officers who are expert in political reporting, economic

9

reporting, public diplomacy, as well as counselor and administration

10

assigned to American embassies, consulates and other missions around

11

the world, whose duties are to engage with foreign government

12

officials and foreign non-officials; NGOs, business community, et

13

cetera, and to prepare reports and then append analysis to them to

14

advise Washington on trends, circumstances, and events in foreign

15

nations so that information can then serve Washington policymakers in

16

developing the -- the best strategy for national security.

17
18
19

Q.

Sir, have you, in your career, been a consumer of State

Department reporting?
A.

I have been ever since I was in -- I would say I was in a

20

supervisory position, which was probably starting in 1985, when I

21

became a -- the Executive Director and then Deputy Executive

22

Secretary in the Department of Secretary, which is the office that

23

directly supports the Secretary of State.

11873

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1
2

Q.

And, sir, during your career, have you also had experience

how U.S. government policymakers used Department of State reporting?

3

A.

Absolutely, both in -- as a senior management official, I

4

see that the actions that Department officials take on a worldwide

5

basis across a full range of issues is impacted heavily by the

6

reporting and analysis that is provided them -- the information that

7

is provided them by our -- by our offices in the field and also by

8

our personnel in Washington, who engage with -- with foreign

9

delegations, with foreign -- with foreign embassies, and others as

10
11

well.
Q.

And, sir, can you briefly describe for the court the

12

different types of positions you've held where you've experienced how

13

policy -- U.S. policymakers use Department of State reporting?

14

A.

Certainly.

In my current position as Under Secretary for

15

State For Management, it is my responsibility to -- to determine

16

where the resources of the State Department -- the financial and

17

human resources to -- are going to be applied, where we might need to

18

construct new facilities, where new posts might be open, what

19

security steps may or may not have to be taken to protect -- to

20

protect our personnel, where -- where the economic trends may be

21

going overseas which would impact foreign exchange rates.

22

have an impact on how -- how the budget office of the State

23

Department prepares its budget or how our financial operations work

11874

It would

15457

1

and, in all of those activities, the reporting and analysis submitted

2

by -- by our posts overseas inform us of -- of where we may need to

3

increase resources, where we might need to -- to reduce resources,

4

how we -- how we budget, and how we protect.

5

Q.

And, sir, have you ever been required or have you ever

6

represented Department of State on official matters within the U.S.

7

government?

8
9
10
11

A.

Yes.

I regularly engage in inter-agencies' activities up

and to representing the State Department on the deputy's committee of
the national security staff.
Q.

Sir, now I'd like to focus this next portion of your

12

testimony on the actual -- on the department's first response to the

13

WikiLeaks disclosures.

14

Department information -- does that fall within your scope of

15

responsibility?

Sir, do compromises in classified State

16

A.

It does.

17

Q.

And were you made aware, sir, of the compromise of the

18

Reykjavik cable in back in March of 2010?

19

A.

I was.

20

Q.

And did the Department take any actions, investigate or

21
22
23

response, to the compromise of that reported cable?
A.

Yeah.

Our diplomatic security service, which is the

security arm of the State Department, worked with -- worked with

11875

15458

1

other elements of the United States government to determine what the

2

source of that -- of that leak might have been.

3

Q.

Sir, in the summer of 2010, when the Department of Defense

4

information started to be publicly released, did you take any steps

5

within the Department of State in response to that disclosure?

6

A.

Yes.

We had a liaison officer assigned to the task force

7

that was under the direction of Brigadier General Carr.

8

assembled a -- a database that was posted to the State Department's

9

intranet classified website of all of the cables we thought might be

We also

10

incorporated in such a -- in such a -- in such a leak, and then we

11

advised our embassies, consulates, and other posts around the world

12

to go to this -- go to this intranet website and to review the cables

13

that they had written, because it was organized by source, and also

14

advised the departmental bureaus -- the departmental operating units

15

that would also have been the sources of cables outbound from the

16

State Department to -- to review material that they would have

17

generated.

18

Q.

So, sir, you mentioned the Department of State cables --

19

we'll get to that in a moment -- but going back to the Department of

20

Defense information, why did the State Department dedicate any

21

resources to the original DoD effort -- with the DoD information?

22
23

A.

Because there was -- there was reason to believe that

summary material from State Department diplomatic reporting and

11876

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1

analysis cables was incorporated into some of the DoD material.

2

TC[MAJ FEIN]:

3

[Pause]

4

Q.

5
6

Hold on, please, sir.

Sir, what point in the summer of 2010 did you become the

senior State Department official for all matters of WikiLeaks?
A.

After -- after briefing -- after briefing the Secretary of

7

State and my senior colleagues on the information that we were

8

receiving, I was designated to -- to lead the departmental efforts in

9

this regard.

10

Q.

And why, sir -- prior to the Thanksgiving timeframe, why

11

was it necessary to be briefing even the Secretary on the ongoing

12

Department of Defense compromises of information?

13

A.

Because there was, I said, reason to believe and then

14

evidence that certain State Department materials -- certain summaries

15

of State Department reporting and analysis was -- was contained in

16

the -- in that Department of Defense material, and then simply in

17

order to get prepared for the -- and should -- should other State

18

Department material be at -- be at risk.

19

Q.

So, sir, in the time between summer of 2010 and before

20

Thanksgiving of 2010, were you aware of any additional Department of

21

State classified information that could potentially have been

22

compromised to WikiLeaks?

23

11877

15460

1

A.

There was -- there was -- we were provided with information

2

from the Department of Defense that indicated that their review of --

3

of material indicated that there could be a large quantity of State

4

Department material, potentially up to 250,000 reporting cables.

5

Q.

So, sir, at that time -- the time between summer of 2010

6

and before Thanksgiving of 2010, what steps did you take for the

7

Department in respect to the purported NCD cable compromise?

8
9

A.

What we did was assemble a -- a -- a file -- a searchable

file on the State Department's classified intranet; our internal

10

classified system, and then advised all ambassadors and deputy chiefs

11

of mission, our number two officer at an embassy, to -- of the

12

location of this file, so to speak, on our website, and ask them to

13

acquaint themselves with this material, and to -- to read through it

14

and be prepared to -- to analyze what the potentially deleterious

15

impacts were, and at the same time addressing the same instruction to

16

all assistant secretaries and office directors within the State

17

Department whose bureaus or offices might also be generating the

18

outgoing material that was contained -- that had generated the

19

outgoing material that was in that file.

20

Q.

So, sir, why, at this time, prior to Thanksgiving of 2010,

21

was the direction simply to acquaint themselves with the purported

22

cables?

23

11878

15461

1

A.

I think there were two reasons.

The first is that the

2

State Department is a rather small organization with -- with over 280

3

posts around the world -- wide responsibilities -- and to divert

4

resources -- additional resources, large resources to any further

5

review when it was not yet absolutely clear that those -- that State

6

Department material was going to be released would have been an

7

aversion and waste of very, very scarce human and other resources.

8

And, secondly, obviously we would not wish to engage with any of the

9

other nations involved in advance.

It would have been premature to

10

engage with another nation about what might or might not be contained

11

in -- in a leak or a purported leak without -- without being

12

absolutely sure.

13

Q.

That would have been premature, if not stupid.

So, sir, what actions did the Department take around

14

Thanksgiving of 2010 upon learning that the public release of the

15

purported cables was imminent?

16

A.

The Department -- the Department notified -- notified all

17

posts of this, and asked them to reacquaint themselves with all of

18

this material, to carefully analyze what might be -- might be leaked

19

or become a purported leak, and then to prepare -- prepare guidance

20

for Washington on potential host government/host nation reaction to

21

that material.

22
23

Q.

Sir, did you, as the Under Secretary, have to brief the

Secretary of State?

11879

15462

1

A.

Yes, I did.

2

Q.

And why, sir?

3

A.

Because, obviously, this is a huge -- it's a huge effort

4

because State Department reporting and analysis is incredibly

5

important to the national security, and also our reporting and

6

analysis is based, to a great extent, on our ability to inter --

7

interface -- to work with foreign government officials and other

8

foreign nationals in the private sector of all kinds.

9

implicit belief that -- that there is a confidentiality and a privacy

They have an

10

with what they would say to us, and the breach of that privacy would

11

have a significant and deleterious impact on our operations.

12

secondly, also, just perchance, the Secretary of State was about to

13

embark on an overseas travel to -- to two -- two major conferences

14

where she would be seeing many -- many -- many senior foreign

15

leaders.

16

Q.

And,

So, sir, could you please very briefly describe your

17

specific role around that Thanksgiving timeframe with the -- as the

18

purported cables were being released to the public?

19

A.

Certainly.

I worked with -- with the Executive Secretary

20

of the Department.

21

Jeffersonian term, is the Chief Clerk of the Department; the

22

individual who coordinates process and operations of paper flow and

23

briefing materials within the Department.

The Executive Secretary, using almost a Thomas

11880

And the Department, as a

15463

1

matter of course, when it is faced with a -- with a serious crisis,

2

sets up a task force.

3

a task force to review and deal with material.

4

mitigation task force.

5

And so my responsibility was to make sure, working with the Executive

6

Secretary, that those processes were started, and that they had the

7

resources necessary that we had to pull from throughout the

8

Department to staff them because the Department has no -- has no

9

excess -- in fact, has no reserve or National Guard to call forward

We set up a task force -- we set up a mita -We set up a

And we set up a "persons at risk" task force.

10

and call up in order to backstop the State Department.

11

pull people, in effect, "off the line" to deal -- to deal with any

12

crisis.

13

Q.

It has to

So, sir, first, we'd like to talk about the WikiLeaks

14

working group.

15

-- or I will not be eliciting any testimony from you about the

16

mitigation team, just the WikiLeaks working group.

17

reference to the WikiLeaks working group, when was that first

18

created?

19

A.

And for today's testimony, sir, I will not be trying

So, sir, in

The WikiLeaks working group was created around -- around

20

that Thanksgiving timeframe.

21

in my head.

22

the deputy assistant secretary level from every regional bureau, the

23

Bureau of International Organization Affairs, and all the functional

I don't -- I don’t have the exact date

It was composed of representatives at a senior level --

11881

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1

bureaus.

2

Bureau of Economic and Business Affairs, the Bureau of Oceans,

3

Environmental and Science Affairs, the Counterterrorism Office as

4

well as individuals from various management bureaus who were there in

5

a supporting and advisory role.

6

central hub.

7

operations center, our 24-hour command center, the equivalent of the

8

National Military Command Center, in which task force is assemble --

9

when we're in crisis mode, people sit around the table and, as

A functional bureau in the State Department would be the

And its job was to serve as a

We have a -- we have a small suite behind our

10

information comes in from other elements of the Department or from

11

overseas, they make sure the information is coalesced, assembled,

12

compared, contrasted, and then briefed to a senior to management

13

along with recommendations for "next steps" that might have to be

14

taken.

15
16
17

Q.

Sir, you mentioned the term “crisis” a few times.

What is a crisis situation in terms of the Department of State?
A.

The crisis situation of the Department of State can -- can

18

-- is a huge range of activities.

19

airplane crash with many American citizens onboard.

20

natural disaster; the Haiti earthquake.

21

the tsunami in Japan followed by the -- the damage to the Fukushima

22

power plants.

23

embassy.

You can have a -- you can have an
You can have a

You can have something like

You can have a terrorist attack on the United States

Or you can have any activity that has a deleterious impact

11882

15465

1

on the State Department's operations -- our national security

2

mission, which goes outside of the narrow framework that one bureau

3

or office should and could handle itself.

4

crisis task force is -- is that.

And so a crisis -- a

5

Q.

So, sir, why was this situation considered a crisis?

6

A.

It was considered a crisis because the release of -- of

7

documents that would be purported to be U.S. State Department,

8

classified or unclassified, for that matter, in large quantities,

9

reporting analysis would -- would breach the trust and confidence of

10

our interlocutors overseas.

11

out and are looking at the situation in a ho -- in the country in

12

which they are assigned or the international organization to which

13

they are assigned, they’re looking at activities that are ongoing.

14

They are talking to -- to other diplomats, to members of the -- the

15

private sector, wherever, and they’re assembling -- reporting on that

16

situation and then they’re appending analysis to it.

17

incredibly important part of that complex undertaking is to

18

understand the opinions, the analysis, the feelings of others, i.e.

19

those outside the State Department or the U.S. government family and,

20

therefore, we will have discussions with host nation, meaning the

21

country in which the embassy is located, diplomats from --from third

22

countries, individuals representing non-governmental organizations.

23

We have full and frank discussions with those individuals.

When the State Department officers go

11883

Part, and an

And it is

15466

1

their expectation that those discussions will be treated as private

2

and confidential, and not exposed to -- to -- to everyone because, if

3

that was the case, they would be reticent to provide their full and

4

frank opinions and analysis and share them with us.

5

we're assembling our reporting analysis, feeding it back to

6

Washington where it becomes one piece of a very large puzzle that is

7

the national security of the United States.

8

value of that reporting is that we're not getting the full and frank

9

opinions of -- of -- of interlocutors expressed to us.

And then, as

The diminution of the

10

Q.

So, sir, in reference ----

11

MJ:

Hold on just a moment.

12

CDC[MR COOMBS]: Major Fein, sorry to interrupt you there.

Yes?
Just

13

the last part of Under Secretary Kennedy's answer would be our R.C.M.

14

1001(b)(4) objection.

15

MJ:

16

I understand.

What timeframe are you talking about -- that’s all right -I’ve got the objection down.

17

CDC[MR COOMBS]:

18

MJ:

19

WIT: I'm talking -- I’m talking about the diminution after -- of

Yes, ma’am.

What timeframe are you talking about with the diminution?

20

any leak of classified information.

21

information that can be attributed to -- to a breach of confidence

22

results in a diminution.

23

MJ:

Thank you.

11884

And any leak of classified

15467

1

Q.

And, so, sir, you gave that answer based off the answer of

2

why this was considered a crisis.

3

bureaus are normally represented in a crisis working group?

4

A.

In your experience, sir, how many

I would say usually in a crisis working group you have a --

5

a single geographic bureau because most events take place in one

6

geographic area, and then you have the Bureau of Public Affairs

7

because they are large press inquiries.

8

Consulate Affairs, which handles our assistants to American citizens

9

in distress.

You have the Bureau of

Overseas, you could have the Bureau of Diplomatic

10

Security.

11

be providing logistics.

12

Bureau of Human Resources if there are a large number of State

13

Department people involved.

14
15
16

Q.

You could have the Bureau of Administration, which would
And then you could have, potentially, the

So you would say five or six.

And, so, sir, how was the WikiLeaks working group different

than other crisis working groups?
A.

It was different in that it -- it impacted every single one

17

of our -- of our six regional bureaus, plus the Bureau of

18

International Organizational Affairs, plus a significant number of

19

the functional bureaus; economic and business, ocean, environment,

20

science, counterterrorism.

21
22
23

Q.

And, sir, in your 40 years with the Department, have you

ever seen a crisis working group that encompassed so many bureaus?
A.

Never.

11885

15468

1

Q.

And why not, sir?

2

A.

Because we've never had a crisis that was so -- it's so

3
4
5
6

wide-ranging that affected that many bureaus at -- at one time.
Q.

Sir, can you please describe for the court the overall

mission of WikiLeaks working group within the first 24 to 48 hours?
A.

The mission of the WikiLeaks working group was to be in

7

communication with the ambassador and chief of mission at our

8

overseas posts and with the assistant secretaries, deputies,

9

assistant secretaries, and office directors within the domestic

10

offices to review the material that we believed could become the --

11

be compromised in such release and determine what -- what

12

recommendations we need to make to the Secretary and what action the

13

State Department needed to take should that information result in a

14

purported leak of State Department documents.

15
16

Q.

Sir, was anyone at the Department looking at the purported

documents that were being released in the press?

17

A.

Yes.

18

Q.

And can you describe that process?

19

A.

The documents were being -- we were looking at the

20

purported leaked documents in the press and then -- and then

21

determining what -- what actions we needed to take in light of

22

engaging with -- with foreign officials, either governmental or

23

private, either in Washington or overseas.

11886

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1

TC[MAJ FEIN]:

2

[Pause]

3

Q.

4
5
6

One moment, please, sir.

Sir, how many countries does the United States have

diplomatic relations with, approximately?
A.

I think we have a diplomatic relations with approximately

170 countries.

7

Q.

And do we have embassies or posts in all of them?

8

A.

We have -- we have embassies in about 160 of them.

9

There

are some small, smaller nations in a geographic sense, in -- in

10

mainly island nations in the Caribbean and in the Pacific where we

11

have diplomatic relations and our diplomacy relations are carried out

12

by an ambassador resident in another country who is also accredited,

13

meaning also the United States ambassador to one or more of those

14

nations as well.

15
16

Q.

And, sir, how many geographic bureaus are there at the

State?

17

A.

There are six geographic bureaus.

18

Q.

And approximately how many functional bureaus?

19

A.

About two dozen.

20

Q.

In total, sir, how many of these embassies or the bureaus

21
22
23

back at main State were involved in responding to the crisis?
A.

Every -- every regional bureau, plus the Bureau of

International Organizational Affairs, plus probably 20 others.

11887

15470

1

Q.

And what about the embassies abroad, sir.

2

A.

Every single embassy as well as -- and our consulates as

3

well.

4

international organizations -- a U.S. intersection, any and all of

5

those offices could have done some element of political, economic

6

reporting and analysis.

7

involved if they had filed reporting cables, and also all of them do

8

to some degree or another.

9

Because if our consulates general -- consulates missions to

Q.

And so each one of these would have been

And, sir, when speaking about the embassies, who at the

10

embassies were involved in reviewing these documents and getting back

11

to main State?

12

A.

I would say everyone at the embassy, you know, the

13

ambassador, the deputy chief of mission would be leading the team,

14

but you would -- you would have political reporting.

15

economic reporting.

16

have political military affairs reporting.

17

cultural reporting.

18

even have administrative and security reporting.

19

every officer at that -- at that embassy or other post would have

20

been reviewing that database I mentioned earlier, which we had set

21

up.

22
23

Q.

You would have

You could have science reporting.

You could have press and

You could have consulate reporting.

So, sir, I'm sorry.

You could

You could

And so every --

When you said everyone, you mean all

the reporting officers, not literally everyone at an embassy?

11888

15471

1

A.

I would think, also, that it would involve the -- the --

2

the consular officers would be also looking at it.

3

also, the management officer and the security officer would be

4

looking at to see if their -- if any of that reporting, should it --

5

should it be compromised, would have some kind of potentially

6

deleterious effect on either the security or the operation.

7

- yes, the reporting officers and the ambassador and the deputy chief

8

submission are the first line, but everyone else there is supporting

9

them.

10

Q.

There would be,

So, it -

Sir, understanding that each post, you already essentially

11

testified, ranges in some sizes; some have ambassadors, some don't,

12

how many total people oversees -- employees of the Department would

13

you say were involved in the initial response to the disclosures --

14

approximately, sir, overseas?

15

A.

I would say -- I would say the number is in the thousands.

16

We have about 10,000 American State Department personnel abroad.

17

I would say a significant number of them would have been involved in

18

this one way or another.

19
20
21
22

Q.

And

And, sir, how many -- on average, how many individuals are

assigned to geographic bureaus?
A.

Geographically vary in size, but I would say that there are

several hundred in each -- in each geographic -- each of the six

23

11889

15472

1

geographic bureaus, plus another 150 or so of the Bureau of

2

International Organization Affairs.

3

Q.

And, sir, in your estimate, what was the total number of

4

individuals assigned to geographic bureaus that were dedicated to

5

supporting the WikiLeaks working group in the first few weeks after

6

the disclosure started?

7

A.

I would say that if you had -- if you had a bureau, it

8

would probably have been 75 or 80 percent of the individuals, only

9

excluding those people who are responsible for the internal

10

administrative processing of the bureau, because if you have a large

11

desk -- a desk is a concept, not a physical thing -- a desk -- a

12

French desk, the Brazilian desk, if that desk has more than one

13

officer on it, that's because there's a large amount of material

14

moving back and forth and, therefore, everyone had been involved.

15

you had a very small country there might be one officer who is

16

handling two countries.

17

reviewing that potentially leaked material, and then determining what

18

actions needed to be briefed up and what actions might have to be

19

taken bilaterally, multi-laterally.

20
21
22

Q.

But all of them would have been involved

Sir, what about the function of bureaus?

on average, are assigned to those?
A.

If

Again, probably 200 -- probably 200.

23

11890

How many people,

15473

1

Q.

And in your estimate, sir, what was the total number of

2

individuals assigned to functional bureaus that were consumed by the

3

first few weeks of WikiLeaks working group?

4

A.

I would say of the 200, probable -- I'm guessing probably

5

more -- more like half because they’re -- their responsibilities,

6

though equally important, would probably have been less directly --

7

although some, such as the economic and business bureau or the

8

counterterrorism bureau, might have -- might have been -- might have

9

been up in the 75 to 80 percent range as well.

10
11

Q.

Sir, what about the Under Secretary level?

How many Under

Secretaries were involved?

12

A.

All -- all six Under Secretaries were involved.

13

Q.

And what about the Secretary of State?

14

Was she presently

involved in the responses?

15

A.

She was.

16

Q.

And why did Secretary Clinton have to be personally

17
18

involved in this crisis management?
A.

Because the Secretary of State is -- (A) Is responsible for

19

the operations of the entire State Department and this was a very,

20

very serious crisis.

21

either on the telephone with or engaged in meeting or in travels with

22

a huge panoply of senior foreign officials as well as both

23

governmental and non-governmental.

Secondly, it is the Secretary of State who is

11891

And so these are individuals --

15474

1

the individuals she would be dealing with would be -- would be

2

reading -- would be reading the newspaper.

3

Q.

Sir, why did you wait essentially at the Department until

4

the release was imminent to start implementing a department-wide

5

response?

6

A.

I think there are two reasons for that.

The first of all

7

is the Department is always resourced constrained.

8

resources to the -- to the immediate activities and the -- as well as

9

long-term planning that -- that best supports our national security

We put our

10

mission, and we took, I believe, prudent preliminary steps such as

11

assembling that -- that intranet database and advising our -- our

12

posts overseas as well as in our offices in Washington to prepare

13

themselves by reviewing the material, but to pull resources off the

14

line to -- to engage in this when we were not absolutely fully sure

15

that the material would be -- would be released

16

waste of resources.

17

have to deal with a country that is aggrieved about material that

18

they had read, you want to make sure that they had read it before you

19

went to them.

20

And this is one case where you do not want to be ahead of the curve.

21

Q.

would be a potential

And the second item is that if we're going to

Otherwise, you would be ahead -- ahead of the curve.

Sir, did you direct an impact review to capture the

22

Department's efforts that impacted from the compromise of the

23

compromised of the purported cables?

11892

15475

1

A.

I did.

2

Q.

And when did you finalize that impact review, sir?

3

A.

I did not finalize that impact.

4

Q.

Why did you not, sir?

5

A.

I received a -- a -- a -- the draft -- the draft that came

6

to me as a -- as a -- as a senior official in August of 2011.

7

we were reviewing it, it -- we also very shortly thereafter became

8

aware that there was going to be a second major tranche of purported

9

documents moving into the -- into the press.

And as

And it became evident

10

from looking at that and looking at the material that had been

11

prepared, what I had in my hand was a snapshot based upon earlier

12

material which was certainly not comprehensive when you took the

13

material that was -- was published -- the purported State Department

14

documents, and then added to it the second major tranche that was

15

about to be released, which in that second tranche was purported to

16

contain a large number -- a larger percentage of classified material

17

than the first tranche and, therefore, what I had was a snapshot in

18

time, and certainly by no means represented a full and conclusive

19

damage assessment.

20
21

Q.

Sir, would a -- a completed assessment have mitigated any

potential damage?

22

A.

No.

23

Q.

Why not, sir?

11893

15476

1
2
3

A.

Because an assessment is simply measuring -- measuring --

measuring damage.
Q.

It does not mitigate damage.

Sir, from what you observed in your position as the Under

4

Secretary of State for Management, has the department's ability to

5

conduct diplomacy been impacted by the PFC Manning's actions?

6

A.

Yes.

7

Q.

And has that also impacted foreign relations?

8

A.

Yes.

9

Q.

Sir, why is the ability to conduct diplomacy important to

10
11

the United States' national interests?
A.

I believe that there is a -- is a three-legged -- three-

12

legged stool that -- that protects U.S. national security.

13

obviously our military, our development assistance which helps

14

countries develop so that they do not become -- become ungovernable

15

states and potential havens for terrorism, and, also, the

16

humanitarian point, which is equally valid of helping people in

17

desperate need, and the third -- the third leg of that stool is

18

diplomacy.

19

a robust State Department diplomatic effort, which includes the

20

ability to report and analyze events that are going on across the

21

world so that that will become a piece of the puzzle, i.e.,

22

information that is available to national security decision makers in

23

Washington.

There's

And to do -- to underpin the national security, you need

And if we are not able to engage in full and frank and

11894

15477

1

private and confidential discussions with a full range of foreign

2

interlocutors, we are not -- we do not -- we are not able to craft up

3

the reporting and analysis to feed to those national security

4

decision makers in Washington -- information of a quality that is

5

diminished otherwise.

6

Q.

7

CDC[MR COOMBS]: Excuse me, Major Fein ----

8

MJ:

9

CDC[MR COOMBS]:

10
11
12
13

Sir ----

Yes.
---- I -- just the last part, again,

1001(b)(4), Your Honor.
MJ:

All right.

Got it.

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

So, sir, specifically in reference to the private and

14

confidence and the trust our foreign interlocutors have to have of

15

us, don't the -- well, do the foreign interlocutors still have to

16

work with us even if they didn't have the trust and confidence in us?

17

A.

Obviously, they have to work with us.

And when -- when we

18

go into a foreign embassy to deliver a demarche, which means a

19

request that the United States is making them to engage in some kind

20

of action or support for the United States in some world forum, they

21

will certainly receive our demarches, they will certainly potentially

22

work with us if it is in their national interest, and many cases it

23

would be in their -- in our common interest to do so.

11895

But what we

15478

1

would be lacking is a full and frank exchange of views on what their

2

thinking is, what their analysis is of a situation that is developing

3

or could develop.

4

exchange that allows us to craft the best analytical reporting to

5

Washington on circum -- on circumstances.

6

continue to work with us.

7

discussion that leads to the best analytical product.

And it's that exchange, that full and frank

8

MJ:

9

CDC[MR COOMBS]:

10

And, so, yes, they will

But it’s the -- the full and frank

Yes [speaking to the defense]?
Just that last part again of his answer,

Your Honor; 1001(b)(4).

11

MJ:

Got it.

12

Q.

Sir, can you please describe for the Court how

13

conversations between diplomats and foreign partners are reported

14

back to Washington?

15

A.

Yes.

We have a system and it has -- it's one of those sort

16

of historical names.

17

sometimes called telegrams.

18

word processing transmissions, but it’s -- they’re called cables or

19

telegrams, and you see that often referred to.

20

have officers stationed at our posts around the world whose

21

responsibility is political reporting and analysis, economic

22

reporting and analysis, cultural and press, science, political

23

military, et cetera, consular, even -- even managerial reporting and

They’re sometimes called cables.
They are neither.

11896

They're

They’re automated

What happens is we

15479

1

analysis.

2

that is ongoing in the nation to which they are assigned, or

3

potentially in adjacent nations as well.

4

the context of their own expertise.

5

who have been trained in the language and culture of that country,

6

and they rise in the ranks probably subsequent and repetitive tours

7

in a country or region.

8

But that's not enough.

9

meet and they talk with -- with representatives of that government --

That -- officers at our embassy monitor the situations

Look at that, analyze it in

I mean, these are individuals

So these are our subject matter experts.
What they do then is they go out and they

10

of other governments who happen to be based in that same location of

11

-- of journalists, educators, non-governmental organizations, the

12

business community.

13

people, engage in the full frank discussions, and then go back to the

14

embassy and craft a cable, a telegram, a report, that says, in

15

effect, here is what is going on.

16

and then on -- and then, depending upon the circumstances,

17

predictions, so to speak, about what actions might be taken in the

18

future by that nation.

19

into the national security analysis in Washington.

20
21
22
23

Q.

They meet and discuss issues with all of those

And then they report on the why

And then that reporting and analysis feeds

So, sir, how do you, as the Under Secretary for Management,

oversee this process?
A.

It is -- I provide the physical plant overseas.

the personnel.

I provide

I provide the security, the medical, the logistics,

11897

15480

1

and I also provide the records management in Washington, and I

2

provide the information technology transmission, so to speak, between

3

the posts and Washington so that those reports do reach Washington

4

and other U.S. government agencies, and also if -- an embassy could

5

also be reporting what we call laterally, meaning the embassy in

6

Shangdu is not only sending the report to Washington, but is also

7

sending the report to the embassy in Shangri-La, which is a country

8

which might have some interest in this meeting -- our embassy in that

9

country has interest in that reporting.

10

Q.

Sir, why does the Department write cables or telegrams?

11

A.

To -- to inform the policymakers in Washington so that they

12

can develop the best national security position for the United

13

States.

14

Q.

15

cables?

16

A.

And, sir, who within the U.S. government reads these

The State Department reporting analysis goes to -- I think

17

probably any U.S. government agency that has an interest in

18

international affairs or has an interest in domestic affairs that is

19

impacted by activities that go on overseas.

20
21
22
23

Q.

And, sir, about how many cables, on average, are sent from

any given embassy on any given day?
A.

It -- it can range from, you know, from a half dozen at a

small embassy to -- to -- 100 or more in a large embassy.

11898

15481

1
2
3
4

Q.

Sir, prior to Private First Class Manning’s actions was

information about sources included in cables?
A.

We -- we almost always cited the -- our interlocutors.

would not refer them -- to them as sources.

5

Q.

Okay.

6

A.

Sources has -- has another -- has another context.

7
8
9
10
11

I

But we

don’t -- we refer them as -- just as the people we -- we meet with.
Q.

And, sir, what purpose is it -- what purpose is served when

you list the individuals -- the people that our diplomats meet with - in general, sir?
A.

It's a very important element in giving context and

12

credibility to the -- to the reporting information.

13

more senior government official might, in given circumstances, carry

14

more weight than a report than a junior -- junior official.

15

of a discussion with a senior member of the -- of an opposition party

16

in a country conveys a -- a certain context to Washington.

17

from a senior management of the business community would be very,

18

very important potentially to the -- to the export/import bank -- or

19

the overseas private investment corporation in determining their --

20

their strategy to promote United States economic investments or U.S.

21

exports.

22
23

Q.

A report from a

A report

A report

Sir, is the information the Department of State reports on

inform U.S. government policy?

11899

15482

1

A.

2

vacuum.

3

agencies.

4

has views.

5

government agencies tend to have views on -- on events overseas that

6

impact on -- on the United States’ national security.

7

reporting and analysis feeds context in, allows policymakers to make

8

the best decisions because they are -- that -- their decision making

9

is informed from the widest possible ambit.

10

Q.

Yes.

Policymakers in Washington do not operate in a

There are obviously views from -- from multiple government
The State Department has views.

The Defense Department

The Department of Commerce might have views.

All U.S.

What that

And, sir, after PFC Manning’s compromise of the purported

11

cables, was there change in the type of source information -- excuse

12

me, person -- person’s information -- the people that the drafters

13

included in cables?

14

A.

Some -- some -- some embassies have changed that.

That is

15

-- that is -- that is -- that is deleterious and we have -- we think

16

we’re losing something in that regard.

17

however.

18

Q.

19

CDC[MR COOMBS]:

20

Not every embassy has,

Okay, sir.
And, Your Honor, I’d ob -- 1001(b)(4) on

that answer.

21

MJ:

I have it.

22

Q.

So, sir, did you correct that change or is that change or

23

is that ----

Thank you.

11900

15483

1

A.

No.

2

Q.

---- embassy specific?

3

A.

Self-generated at various embassies.

4

Q.

Yes, sir.

And, sir, why did the Department of State

5

provide other agencies, as you've already testified about, access to

6

the diplomatic reporting?

7

A.

The State Department is represented in 280-some odd posts

8

around the word.

9

representation of any U.S. government agency, period.

We have the widest geographically dispersed
And that means

10

that our -- our personnel are doing reporting and analysis from more

11

locations with more -- with more personnel than any other U.S.

12

government agency.

13

agencies want the widest possible range of reporting to -- if nothing

14

more to interleave or compare and contrast with other reporting that

15

they may be receiving from -- from -- from other -- from other U.S.

16

government agencies.

17

analysis in order to inform their part of the -- of the national

18

security including economic security and national security.

19

Q.

And, therefore, these other U.S. government

So these agencies need our reporting and

Sir, I have a few more questions for you.

Sir, this is

20

just a yes or no question, but do you have an opinion on whether

21

these disclosures impacted the Department of State?

22

A.

Yes.

23

Q.

And, sir, how confident are you in that opinion?

11901

15484

1

A.

Totally confident.

2

Q.

Sir, what is your opinion on whether these disclosures

3
4

impacted the Department of State?
A.

These in -- these disclosures had a chilling effect on

5

foreign officials, governmental and non-governmentals willingness to

6

engage in full and frank discussions with us, which is detrimental to

7

us assisting in our responsibilities to protect the national

8

security.

9

CDC[MR COOMBS]: And, Your Honor, 1001(b)(4) and speculative.

10

MJ:

I have it.

11

Q.

Sir, again, a yes or no question.

Do you have an opinion

12

on whether these disclosures will continue to impact the Department

13

of State?

14

A.

Yes.

15

Q.

And, sir, how confident are you on that opinion?

16

A.

Totally confident.

17

Q.

Sir, what is your opinion on whether these disclosures will

18
19
20
21

continue to impact the Department of State?
A.

We have had -- we have had situations in which individuals

who have, for example ---Q.

Sir, I'm sorry I have to interrupt you, sir.

Without

22

giving examples, sir, if you could just explain why you believe these

23

disclosures will continue to impact the Department of State.

11902

15485

1

A.

Certainly.

The underpinning of diplomatic reporting and

2

analysis is full and frank discussion with -- with -- with foreign

3

officials.

4

that they do not have the ability to engage in that same level of

5

full and frank conversation because -- because of what has happened

6

and, therefore, that is a chilling effect that will go on for some

7

time.

I believe those foreign officials feel that in many cases

People -- people have long memories.

8

CDC[MR COOMBS]:

9

MJ:

All right.

10

Q.

And, sir, a yes or no question; do you have an opinion,

Your Honor, again, 1001(b)(4), speculative.

11

sir, on whether these disclosures impacted policymakers who rely on

12

diplomatic reporting?

13

A.

Yes.

14

Q.

And, sir, how confident are you in that opinion?

15

A.

Totally confident.

16

Q.

And, sir, what is your opinion on whether the disclosures

17
18
19

impacted policymakers that relied on diplomatic reporting?
CDC[MR COOMBS]:

speculation and foundation for the opinion.

20

MJ:

21

CDC[MR COOMBS]:

22

MJ:

23

Your Honor, I have an objection here,

Foundation is one of the objections?

All right.

Yes, Your Honor.
Proceed.

You can develop your foundation -- if

-- should you have any additional foundation you want to add.

11903

15486

1

TC[MAJ FEIN]:

2

[Pause]

3

TC[MAJ FEIN]:

4
5
6
7

One moment, please, ma'am.

Ma'am, the United States believes that it has

laid a proper foundation for that opinion.
MJ:

That’s fine.

Proceed.

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

So, sir, to reask the question, sir, what is your opinion

8

on whether these disclosures impacted policymakers that relied on

9

diplomatic reporting?

10

A.

Policymakers, in order to develop the best course of action

11

for the U.S. national security, need the best possible reporting and

12

analysis from the State Department as its contribution.

13

full and frank discussion, which I believe has been chilled, they --

14

they then do not get the best possible reporting and analysis that

15

would enable them to do potentially a better job in -- in supporting

16

our national security.

17
18

TC[MAJ FEIN]:

MJ:

20

CDC[MR COOMBS]:

21

back maybe 25 after.

23

Your Honor, there are no further

questions.

19

22

Thank you, sir.

And absent a

MJ:

Okay.

Defense, do you want a recess before you go?

All right.

Yes, Your Honor.

If we could have -- come

Ambassador Kennedy, please don't discuss your

testimony or knowledge of the case with anyone other than counsel or

11904

15487

1

the accused while -- well, actually don't discuss your testimony with

2

anybody during the recess.

3

WIT:

4

MJ:

5

CDC[MR COOMBS]:

6

MJ:

Yes, Your Honor.
And, I'm sorry, how long did you need?

All right.

Just until 25 after, Your Honor.
Court is in recess until 25 after 11.

7

[The court-martial recessed at 1113, 5 August 2013.]

8

[The court-martial was called to order at 1126, 5 August 2013.]

9

MJ:

The court is called to order.

Let the record reflect all

10

parties present when the Court last recessed are again present in

11

court.

12

The witness is on the witness chair.

CDC[MR COOMBS]: Thank you, Your Honor.

13
14

Proceed, Mr. Coombs.

CROSS-EXAMINATION
Questions by the civilian defense counsel [MR. COOMBS]:

15

Q.

Under Secretary Kennedy, I remind you you're still under

17

A.

Yes, sir.

18

Q.

Okay.

16

19

oath.

I want to start off by asking you a few questions

about the use of cables with the Department of State, okay?

20

A.

[No response]

21

Q.

The State Department has historically accomplished the

22

basic communication between Washington and its overseas posts through

23

the use of diplomatic cables?

11905

15488

1

A.

Yes.

2

Q.

And you would agree that United States policy formulation

3

is done at the State Department in Washington and across inter-

4

agencies?

5
6
7
8

A.

With input from the diplomatic reporting as well as other

input from other agencies.
Q.

Correct, but the actual formulation of the policy is done

here in Washington with inter-agencies, correct?

9

A.

With input from -- from diplomatic reporting.

10

Q.

All right.

11

And the diplomatic cables that you receive --

the input, that's not policy, though?

12

A.

[No response]

13

Q.

It's not a statement of policy, is it?

14

A.

No.

15

Q.

And diplomatic cables are not always accurate?

16

A.

Diplomatic cables report the facts as they are then known

17
18
19
20

to the -- to the individuals who are doing the reporting.
Q.

But my question is diplomatic cables are not always

accurate?
A.

I'm afraid I can't give you a yes or no answer to that.

To

21

say -- to say, yes, they're not always accurate, implies that there

22

is a deliberate inaccuracy in the reporting when the report is filed.

23

Facts on the ground can change and so an accurate reporting in 2002

11906

15489

1

may no longer be the case in 2003, but that, in my opinion, does not

2

make the report of 2002 inaccurate, it just means the situation has

3

been overtaken by events between 2002 and 2003.

4

Q.

Let me then -- I think based upon what you answered there,

5

I'll take out the deliberate aspect, because that's not my question,

6

so not a deliberate inaccuracy within a diplomatic cable, but

7

diplomatic cables are not always accurate.

8

something they believe to be true and immediately we’d find out it is

9

not true, is that correct?

So someone could report

10

A.

That is possible, yes.

11

Q.

Now, a diplomatic cable is a report of information or facts

12

from a particular ambassador or post, correct?

13

A.

It's -- it’s a report from -- from the post, yes.

14

Q.

And that is -- that cable is the view from that particular

15

post of the facts?

16

A.

Yes.

17

Q.

So that's the view from their vantage point, what they

18

believe might be the facts on the ground where they're reporting

19

from?

20

A.

Yes.

21

Q.

And each diplomatic cable that comes in will have the

22
23

ambassador's name on the bottom?
A.

That is a convention, yes.

11907

15490

1
2

Q.

And because it's a convention that means -- that doesn't

many that the ambassador actually drafted that cable, right?

3

A.

That is correct.

4

Q.

If it dealt with routine administrative matters, the

5

ambassador might not even -- even review the cable?

6

A.

Correct.

7

Q.

And depending upon the size of the embassy or post, and the

8

number of cables going out, an ambassador might not even review a

9

cable that has his or her name on it?

10

A.

Well, ambassador -- the ambassador's name is on every cable

11

that goes out if he or she is present at the post.

12

point -- but -- yes, an ambassador does not -- does not physically

13

necessarily read every cable that goes out of a post even though it

14

bears his or her signature.

15

Q.

But -- if your

And the SIPDIS cables; those were addressed -- when they

16

have the ambassador's name on the bottom, they were addressed to the

17

Secretary of State, correct?

18
19
20
21

A.

All cables inbound from Washington, as well all cables

outbound from Washington, say either to or from SECSTATE.
Q.

And, obviously, that doesn't mean that the Secretary of

State reads all of these cables?

22

A.

That is correct.

23

Q.

And as you were -- just said, the -- the outbound cables

11908

15491

1

also have the Secretary of State's name on them?

2

A.

Correct.

3

Q.

And that clearly does not mean that the Secretary of State

4

wrote those reports -- those cables, correct?

5

A.

Correct.

6

Q.

Read the cable?

7

A.

All -- not necessarily.

8

Q.

Or even was aware that the cable went out?

9

A.

Depending upon the subject matter, yes.

10

Q.

And that’s -- as you had earlier testified, that's just

11

kind of a coming convention that's a holdover of, I guess, years gone

12

by?

13

A.

It's a convention, yes.

14

Q.

Now, the Net-Centric diplomacy database, that was available

15

to anyone who has SIPRNet access at one point, correct?

16

A.

Correct.

17

Q.

And those cables that were shared on the NCD database, they

18

were all captioned with the distribution caption of SIPDIS?

19

A.

Correct.

20

Q.

And within the State Department, the access to and control

21

over the cables and who it's distributed to is controlled by the use

22

of tags, which I'm not going to really talk about, but then also

23

captions, correct?

11909

15492

1

A.

And a third element.

2

Q.

And -- go ahead.

3

A.

It's called AMADs.

And I'm not sure what the acronym

4

stands for, but it is, in effect, an artificial intelligence that

5

reads the cables -- and depending upon keywords that it finds in the

6

message.

7

distro -- would formulate the distribution pattern.

8
9

Q.

So that would be captions, tags, and AMADs would be the

And SIPDIS would be an example of one of the distribution

captions that you would use?

10

A.

Yes.

11

Q.

And with regards to the Department of State, the advice and

12

training that was put out to the various embassies and posts was that

13

SIPDIS caption meant that it was appropriate to share with our inter-

14

agency partners, is that correct?

15

A.

Yes.

16

Q.

Now, there are, obviously, other more sensitive captions

17
18

that can be used for cables?
A.

There are -- there are lots of captions available for use.

19

Some of them are directional.

20

restrictive, yes.

21

Q.

Some of them -- some of them are

And some of the captions that would restrict the audience -

22

- narrow the audience who could actually review them -- I'm just

23

going to name a few, and tell me if you're aware of these or are

11910

15493

1

familiar with them.

STATDIS or STADIS?

2

A.

STADIS, yes.

3

Q.

Okay.

4

A.

Yes.

5

Q.

EXDIS?

6

A.

Yes.

7

Q.

ROGER?

8

A.

Yes.

9

Q.

TERREP?

10

A.

Yes.

11

CDC[MR COOMBS]:

NODIS?

Okay.

Now, I'm showing you -- I’ll show you

12

what's been marked as Defense Charlie-Charlie-Charlie for

13

identification.

It is a portion of the Foreign Affairs Handbook.

14

Q.

Are you familiar with the Foreign Affairs Handbook?

15

A.

Yes.

16

CDC[MR COOMBS]:

And I hand the witness Exhibit Charlie-

17

Charlie for identification or -- excuse me, Charlie-Charlie-Charlie

18

[handing the document to the witness].

19

Q.

Do you recognize that?

20

A.

[Looking at the document] I recognize -- I recognize the

21

format, and I'm going to assume that you've given me an accurate

22

copy.

23

Q.

And the Foreign Affairs Handbook has several sections to

11911

15494

1

it, correct?

2

A.

3
4
5
6

There are -- there are multiple volumes of the Foreign

Affairs Handbook.
Q.

And the volume or the section that you have in front of

you, does that deal with just captions -- what captions mean?
A.

Chapter -- Volume 5 deals with -- with information

7

technology and telecommunications, and the subsection you have is

8

labeled “Captions and Handling Instructions”, yes.

9

Q.

If you would, please, Under Secretary, just kind of thumb

10

through that for a moment and tell me whether or not that kind

11

discusses each of the possible captions that you can have for a

12

cable?

13
14
15

A.

[The witness did as directed] Okay.

It seems to -- it

seems to -- it has -- it has lots of captions that I recognize.
Q.

And underneath each of those captions it also gives

16

comprehensive instructions about when you would use that caption, is

17

that correct?

18

A.

19

CDC[MR COOMBS]: I'm retrieving from the witness Defense Exhibit

Yes.

20

Charlie-Charlie-Charlie for identification [retrieving the document

21

from the witness] and offering into evidence as Defense Exhibit

22

Charlie-Charlie-Charlie.

23

MJ:

Any objection?

11912

15495

1

TC[MAJ FEIN]:

2

MJ:

3

TC[MAJ FEIN]:

Lack of foundation, Your Honor.

What's missing?
Well, ma'am, Under Secretary Kennedy didn't

4

specifically remember that being -- there’s -- that being the actual

5

Foreign Affairs Handbook -- where it came from.

6

appears to be this.

7

MJ:

He kept saying it

Well, why don't we do this; I'm not going to initial off on

8

it now.

9

find something that can show me that it's an accurate version of the

10

If -- what I will do is provisionally admit it.

If you can

Foreign Affairs, I will admit it.

11

CDC[MR COOMBS]: Okay, your Honor.

12

MJ:

13

CDC[MR COOMBS]: I’m retrieving that from the Court [retrieving

But consider it provisionally admitted for now.

14

the document from the Military Judge].

15

I’m handing Defense Exhibit Charlie-Charlie-Charlie for

16

identification to the witness [handing the document to the witness].

17

Q.

Just to lay the foundation,

Is there anything on the very top of that or bottom of that

18

document that would indicate to you that this is from the Department

19

of State?

20

A.

[Looking at the document] As I said earlier, the formatting

21

and everything looks like -- looks like a -- pages from the Foreign

22

Affairs handbook.

23

MJ:

I just ----

Do you have any reason to question its accuracy?

11913

15496

1

WIT: No, but I -- as I said, depending upon the questions that

2

follow, I cannot -- I cannot, Your Honor, state that -- with 100

3

percent certainty that this is an accurate copy of this chapter of 5

4

-- Manual 5 Foreign Affairs Handbook.

5

but I don't know that is.

6

certify that this -- if I was presented as the Under Secretary for

7

Management, I would give it to staff and say -- if I was submitting

8

this to a court of law, I would go have it validated that I would --

9

that this is the copy that was being submitted was going in was

I don't know that it's not,

And I’m -- so I'm not willing to say -- to

10

absolutely correct.

11

Honor, but I just don't have any reason to know it is either.

I have no reason not to believe it is, Your

12

MJ:

13

WIT: Certainly [handing the document to the Military Judge].

14

MJ:

I understand that.

May I see it for just a moment?

Here's what we're going to do; I'm going to admit it.

15

Government, if you think there's something that's not accurate about

16

this document, you're certainly free to advise the Court and the

17

Court will take action accordingly.

18

TC[MAJ FEIN]:

19

MJ:

20
21

Yes, ma'am.

All right, Defense Exhibit Charlie-Charlie-Charlie for

identification is admitted.
Q.

And, Ambassador Kennedy, I'm going to ask you a few

22

questions about various caption -- excuse me, Under Secretary

23

Kennedy, I'm going to ask you a few questions about various captions.

11914

15497

1

I wanted you to have the benefit of that if you needed to look at

2

something to refresh your memory.

3

A.

Certainly.

4

Q.

Otherwise, your memory is perfectly fine.

With regards to

5

STADIS; STADIS is used basically to preclude initial distribution to

6

other federal agencies, is that correct?

7

A.

That's correct.

8

Q.

STADIS is basically for the internal deliberative process

9
10

for the State Department?
A.

No, I think -- I think it -- it goes beyond that.

It could

11

be that, it can be other things.

12

that the distribution remains State Department only.

13

deliberate, it could be administrative, it could be -- it could be

14

any purpose in which the originator wishes this material to remain

15

only within the State Department.

16

Q.

It’s simply a caption to ensure
It could be

And -- and basically by the use of that caption that is

17

when, for whatever reason, it would be either premature or just

18

simply not the type of information that you would want to share with

19

interagency partners?

20

A.

Again, there could be a huge range of subjects.

I mean,

21

the -- the salient item is that the originator says that he or she

22

wishes this to be handled only within State Department distribution

23

channels and no one else.

11915

15498

1

Q.

Now, with regards to NODIS, that caption identifies

2

messages of the highest sensitivity basically between the President,

3

the Secretary of State and chiefs of mission, is that correct?

4

A.

Correct.

5

Q.

And not with like fact, but can you provide us with kind of

6
7

an example of what would be a NODIS?
A.

I would say if you -- if -- if an ambassador in a country

8

wished to provide information of the highest sensitivity, let us say

9

on ongoing negotiations about conflict raging between Shangdu and

10

Shangri-La and, because of the nature of the information, we were

11

restricting that to only certain -- a very, very limited number of

12

people.

13

Q.

And in with regards to the EXDIS caption, that is used for

14

highly sensitive traffic between the White House, the Secretary, the

15

Deputy Secretary and the Under Secretaries of State?

16
17
18
19
20

A.

It has -- it has -- it has a variety -- a wide variety of

uses, but it is very close to what you said.
Q.

And can you provide us with just kind of a general example,

again, of what type of cable might be an EXDIS cable?
A.

Again, it would -- it depends upon the circumstances.

And

21

I would say probably you would find some arms control negotiations

22

material potentially -- potentially in that channel.

23

11916

15499

1

Q.

And then with regards to ROGER, that's for communications

2

between the assistant secretary for intelligence and research; I&R,

3

and the chiefs of mission, is that correct?

4
5
6
7

A.

That is an administrative channel.

That is not a reporting

channel.
Q.

With a cable, though, that's labeled as a ROGER, can you

give us an example of what type of cable?

8

A.

No, not in this -- not in this -- not in this session.

9

Q.

Okay.

10
11
12
13

And TERREP; that's a caption used for messages

related to information about terrorism, is that correct?
A.

That is -- that is the channel used to call attention to

terrorist reporting, yes.
Q.

And these are messages, my understanding, that can only be

14

distributed to members of the emergency action committee, is that

15

correct?

16

A.

I would have to refresh my memory on that.

17

Q.

And are you -- again, in a very general unclassified

18

format, can you give an example of what a TERREP type cable might be?

19

A.

20

attack.

21

Q.

22
23

A TERREP cable would be a report of a potential terrorist

Now, the SIPDIS caption, as we said, that is a caption that

is only used if it can be shared with the interagency partners?
A.

No.

11917

15500

1

Q.

Okay.

2

A.

The State Department shares large numbers of cables with

Can you go ahead and enlighten me?

3

the interagency partners and this -- to answer the question, Your

4

Honor, I have to go back to a little history, if I might.

5

MJ:

That's fine.

6

A.

The Department of Defense came to the State Department mid

7

-- mid-2000s or so and said that because of the importance of State

8

Department reporting to it and because of the size of the defense

9

department, the current -- current kind of pull -- push system in

10

which the State Department would dispatch cables to SECDEF; Secretary

11

of Defense, OSD, JCS; Joint Chiefs of Staff, Fort Richardson -- did

12

not necessarily -- because of the size of DoD, that’s -- they would

13

not necessarily get to potentially the right elements within the

14

Department of Defense and, therefore, ask that a database be set up

15

in which the State Department would push reporting to that database

16

and then the DoD would be able to pull information from that database

17

based upon the needs of the individual puller.

18

Q.

Now, with regards to the Defense Exhibit Charlie-Charlie-

19

Charlie, it lays out guidance for when you would use the SIPDIS

20

caption, correct?

21

A.

There are instructions there, yes.

22
23

11918

15501

1

Q.

And, again, that -- that -- those instructions indicate for

2

information messages deemed appropriate for release to the U.S.

3

government interagency community?

4

A.

Correct.

5

Q.

And a SIPDIS caption message is never to be combined with

6

more restrictive captions such as NODIS, EXDIS, ROGER or TERREP?

7

A.

Correct.

8

Q.

If a message carries conflicting captions, the more

9

restrictive caption is going to govern it?

10

A.

Correct.

11

Q.

So a SIPDIS caption, for instance, if it does have more

12

restrictive caption with it, it's not going to go into the Net-

13

Centric Diplomacy database?

14

A.

Correct.

15

Q.

Additionally, a SIPDIS caption is not supposed to be used

16

with Privacy Act information?

17

A.

That is correct.

18

Q.

So your MED channels, your HR channels, DS channels, DSX

19

channel, that stuff will not be in a SIPDIS cable?

20

A.

That is correct.

21

Q.

Again, if you had a SIPDIS cable that had this type of

22

information, again, it would not be loaded into the Net-Centric

23

Diplomacy database?

11919

15502

1

A.

Yes.

2

Q.

Correct.

3

A.

---- it would cause it -- it would cause it, if the machine

Well, if it had the other caption on it ----

4

is working correctly, to what's called spill, meaning spill to man --

5

to manual management upon arrival at its destination.

6

Q.

And drafting officers were directed, basically, to use the

7

SIPDIS caption only for those messages that fit the requirements of

8

SIPDIS?

9

A.

Correct.

10

Q.

And so they understood that these were messages that were

11

designed to be shared with out interagency partners?

12

A.

Correct.

13

Q.

And during the period from 2005 to 2010, the State

14

Department had posted some 250,000 or so cables to the Net-Centric

15

Diplomacy database?

16

A.

Correct.

17

Q.

And during that same period of time the State Department

18

disseminated approximately 2.4 million cables through other systems

19

to our other -- 65 other government agencies?

20

A.

I believe that’s -- yes.

21

want to verify it.

22

way.

I recall that figure.

I would

But it’s right within one or two percent either

23

11920

15503

1

Q.

All right.

So I believe you testified at Congress that

2

basically ten times as many cables that were given to -- well,

3

actually, the amount of cables given to the Net-Centric Diplomacy

4

database, during that same time period, ten times that many cables

5

were pushed out to our interagency partners through other means?

6

A.

Correct.

7

Q.

So, obviously, the majority of the cables that were being

8

shared with interagency partners were not SIPDIS cables?

9

A.

That is correct.

10

Q.

So the policy formulation and whatnot, that wasn't entirely

11

relied upon by SIPDIS cables, there were other cables going out for

12

policy and formulation?

13

A.

That is correct.

14

Q.

Do you know -- and you might not, and that's fine if you

15

don't, what percentage of Department of State cables were labeled as

16

SIPDIS cables on any given year?

17

A.

No, I don't.

18

Q.

Was it a -- in a general standpoint, was it a small

I don't have that fact at hand.

19

percentage of the overall cables or a large percentage of the overall

20

cables that were labeled SIPDIS -- or could you guess?

21

A.

It would be hard to guess because you would first have to

22

factor out all the administrative or logistical cables that are sent,

23

and then you SIPDIS as a percentage of other reporting cables and --

11921

15504

1
2

I'm sorry, I don't have that -- that number available to me.
Q.

That's fine.

Now, my understanding is that when it

3

received the SIPDIS caption, those types of cables were automatically

4

by the, basically, automated process put into the Net-Centric

5

Diplomacy database?

6

A.

Correct.

7

Q.

There wasn't a person that was looking at the cable first

8

and then saying, yeah, that should go into the Net-Centric Diplomacy

9

database?

10

A.

Correct.

11

Q.

And in 2005 through 2010, if an ambassador or somebody

12

posted a cable that was SIPDIS, they labeled it as SIPDIS, within

13

minutes of them submitting it, it would get put into the Net-Centric

14

Diplomacy database?

15

A.

Correct.

16

Q.

And after process, basically, and placed in the Net-Centric

17

Diplomacy database, it would be available to anyone who had SIPRNet

18

access?

19

A.

Correct.

20

Q.

And ambassadors and posts understood that fact?

21

A.

Yes.

22
23

11922

15505

1

Q.

So is it fair to say that if somebody labeled it as SIPDIS,

2

they knew that it would be accessible to the million or so people who

3

have SIPRNet access?

4

A.

I'm not sure that they knew that they were a million or so

5

people who had SIPRNet access, but they thought that it was a -- it

6

was a category to make sure that the Department of Defense had the

7

material available to it just like they would put other -- they would

8

put other tags on -- on the cable as well.

9

Q.

And SIPDIS ----

10

A.

As I mentioned earlier, there are other -- there are other

11
12

ways to ensure that messages get to -- get to other users.
Q.

All right.

And with regards to SIPDIS cables; if you label

13

it as SIPDIS, in your opinion, would that state something about the

14

type of information that would be in SIPDIS cables?

15

A.

No.

16

Q.

And why not?

17

A.

Because it was -- its purpose was to -- to get it to that -

18

- to the Net-Centric database so it would be available at the request

19

of DoD more easily for defense department and potentially other --

20

several other U.S. government agencies also have access to SIPRNet,

21

which is the Department of Defense classified database.

22

-- the SIP in SIPDIS stands for SIPRNet access.

23

11923

And the SIP

15506

1
2
3

Q.

And from your perspective -- perspective, did you review

SIPRNet or SIPDIS cables, ever?
A.

I read -- I read cables all day long.

I -- I don't ever

4

really particularly look at the captions.

5

lines.

6

the subject line and the summary paragraph whether I need then to

7

read the entire -- entire message depending upon what is in the

8

subject line and what is in the summary paragraph.

9
10
11
12
13
14

I look at the subject

And I look at the summary paragraph, and then determine from

Q.

Between 2005 and 2010, were the SIPDIS cables available to

you in some other way besides Net-Centric Diplomacy database?
A.

Yes.

Because I'm State Department, they would be available

on the -- on the State Department distribution system.
Q.

And on that system, were they separated at all from any --

any cable with a different caption?

15

A.

No.

16

Q.

All right.

17

A.

Excuse me.

18

Q.

Go ahead.

19

A.

Cables like NODIS and ROGER channel are handled in very,

Now, when the DoD material ----

20

very special ways.

21

diplomatic and consular reporting, it could be SIPDIS, it could not

22

be SIPDIS.

23

telegraphic report from whatever embassy was the originator.

But in terms of diplomatic -- routine and

It would appear on my -- on my computer screen as a

11924

15507

1

Q.

When purported material from the State Department was

2

allegedly given to WikiLeaks, the State Department immediately asked

3

the chief of mission at the affected post to review the purported

4

statements -- Department cables, correct?

5

A.

Correct.

6

Q.

And the State Department also directed the chiefs of

7

mission to provide an assessment as well as a kind overall summary of

8

the effect that the release of the purported cable could have on the

9

host country?

10

A.

Correct.

11

Q.

In this review, an assessment was completed in August of

12

2010?

13

A.

No, the -- no, sir.

The -- the request that was completed

14

in August of 2010 -- not completed in August of 2010, is a -- is a --

15

is a damage assessment.

16

the damage assessment was -- drew from reports from chiefs of

17

mission, ambassadors, but the damage assessment was never completed.

18

Q.

It was a damage assessment commissioned, and

I'm not talking about damage assessment, what I'm talking

19

about is the review that you got from the chiefs of mission at the

20

affected post.

21
22
23

A.

There were individual submissions from chiefs of mission,

Q.

And that was completed in August of 2010?

yes.

11925

15508

1

A.

There was, I guess -- I apologize.

I guess I'm hung up on

2

the "it."

3

is no it -- there is no -- each chief of mission sent in a cable.

4

And so we had the cable from all the chiefs of mission.

5

they -- and I'm sure that they were put in a binder, you know,

6

alphabetically by post.

7

Q.

There were individual chiefs of mission reports, but there

Okay.

And I’m --

If that's the "it," yes.

And to make sure we're talking about the same "it"

8

then, you had testified about the -- about what the Department of

9

State had done in front of the Senate Committee on Homeland Security

10

and Governmental Affairs?

11

A.

If you could read the section to me, I'd appreciate it.

12

Q.

Well, first, before I do that, you did do that, correct?

13

You testified ----

14

A.

I testified before the Senate Committee, yes.

15

Q.

And there you testified that we immediately asked the

16

chiefs of mission at affective posts to review any purported State

17

material in the release and provide an assessment as well as a

18

summary of the overall effect of the WikiLeaks release could have on

19

relations with the host country following the completion of this

20

review in August.

21

A.

Okay.

22

Q.

And so ----

23

11926

15509

1
2

A.

All right.

You're talking about August of 2010, not the -

- not the August 2011.

3

Q.

Yeah, I'm not talking about the damage assessment.

4

A.

Okay.

5
6

Thank you.

I just -- if we're talking about 2010, I

now understand your question.
Q.

Okay.

So let me go back then.

You had the chiefs of

7

mission review the purported State Department material from their

8

area, correct?

9

A.

Correct.

10

Q.

And you asked them to look at it and to give their

11

impressions on how that might affect relations with the host country?

12

A.

Correct.

13

Q.

And they got back to you by August of 2010?

14

A.

Correct.

15

Q.

And when it was believed that the State Department cables

16

might actually be released, you then, again, instructed all of the

17

chiefs of missions to familiarize themselves with the content within

18

the Net-Centric Diplomacy database?

19

A.

Correct.

20

Q.

And based upon that direction, again, you got feedback from

21
22

the chiefs of mission?
A.

Correct.

23

11927

15510

1

Q.

And when the press and WikiLeaks announced that -- that

2

there was going to be a release of purported cables on 28 November

3

2010, that's when the State Department took several additional

4

actions?

5

A.

Correct.

6

Q.

And one of those was to create the 24/7 WikiLeaks working

7

group?

8

A.

Correct.

9

Q.

And as you had said, this was a working group composed of

10

senior officials from throughout the State Department?

11

A.

Correct.

12

Q.

To include your regional bureaus?

13

A.

Correct.

14

Q.

And how long did the 24/7 WikiLeaks working group conduct

15
16
17

its work?
A.

I think it was several months.

I -- I don't have the exact

end date in mind.

18

Q.

And do you have an idea of what month they stopped working?

19

A.

No, I don't.

20

Q.

Less than six months?

21

A.

Less than six months.

I'm sorry.

22
23

11928

15511

1

Q.

Now, during this period the Department of State kept

2

Congress apprised of its response to any potential release by

3

WikiLeaks, correct?

4

A.

Correct.

5

Q.

And according to your testimony, the Department convened

6

two separate briefings for members of both the House of

7

Representatives and the Senate within days of December 2010?

8

A.

Correct.

9

Q.

And members of the Department also appeared twice in front

10

of the House Permanent Select Committee On Intelligence both on 7

11

December and 9 December 2010?

12

A.

Correct.

13

Q.

And during those briefings, Department of State officials

14

informed Congress that the administration felt compelled or the

15

Department of State felt compelled to say publicly that the cable

16

leak had caused serious damage to American interests in order to

17

bolster the legal efforts to shut down the WikiLeaks website?

18
19
20

A.

You just read me a quotation.

And it’s -- are you quoting

me or are you quoting someone else, sir?
Q.

I'm asking are you aware of Department of State officials

21

informing Congress that the administration felt compelled to say

22

publicly that the cable leaks had seriously damaged American

23

11929

15512

1

interests in order to bolster legal efforts to shut down the

2

WikiLeaks website.

3

A.

I was -- I was the briefing officer at both those two House

4

Permanent Select Committee on Intelligence briefings, and I don't

5

remember saying that.

I was the briefer.

6

Q.

And you don't believe that is true?

7

A.

I believe it caused damage, yes.

But I don't think -- you

8

-- you -- the end of it is compelled to say something and I don't

9

remember saying that.

10

Q.

All right.

I understand your testimony under oath here is

11

that the State Department never briefed to the -- the House Permanent

12

Select Committee that the cable leaks in this instance, the

13

administration felt compelled to say to the public -- to say publicly

14

that the cable leaks had seriously damaged American interests in

15

order to -- bolster -- excuse me, bolster legal efforts to shut down

16

the WikiLeaks website?

17

A.

I recall saying -- talking about the damage to the U.S.

18

national security.

19

don't recall anyone saying that in my presence.

20

Q.

I don't -- I don’t recall saying that, and I

During those briefings, do you recall indicating to

21

Congress or saying to Congress that the impact of the cable release

22

was embarrassing, but not damaging?

23

A.

I never said that.

11930

15513

1

Q.

Anyone else from the Department of State?

2

A.

Not in my presence, sir.

3

Q.

Okay, so, again, under oath here today, you are saying that

4

when you briefed Congress, the State Department never stated to

5

Congress that the impact of the cable release was embarrassing but

6

not damaging?

7

A.

I do recall that having been said.

8

Q.

Now, I want to address a couple of the potential harms that

9
10

have been documented and you testified to one of those here today,
okay?

11

A.

Counsel, yes.

12

Q.

Now, there have been two types of potential chilling

13

effects from the alleged leaks.

14

will stop sharing information with other agencies, and the second,

15

that countries or individuals may stop being open and frank with us

16

as State Department members, is that correct?

17
18
19

A.

The first, that the State Department

No, I've only described the second.

I have -- I have never

gone to the first.
Q.

Well, that's not quite true.

You've gone to the first when

20

you testified in front of the House Permanent Select Committee,

21

correct?

22
23

A.

I -- no, I said -- I believe I said -- and I would have to

go back and see if I can obtain the classified transcript of that

11931

15514

1

briefing -- that we were certainly cutting off distribution via

2

SIPRNet.

3
4
5

We're cutting off distribution ----

Q.

I’ll play a clip from your testimony, then you can comment

on it.
A.

We're cutting off distribution via SIPRNet, but we were not

6

cutting off distribution via what we called Legacy SIPs, which are

7

the other distribution systems.

8

other.

9

through Legacy Systems.

10

So cut off the one, but not the

So the traffic would still be available to policymakers

Q.

Ambassador Kennedy -- excuse me, Undersecretary Kennedy,

11

I'm going to play a clip from your testimony and then ask you to

12

comment on it.

13

MJ:

14

CDC[MR COOMBS]: They're going to be, Your Honor.

15
16
17

Are these marked in some fashion?

take a slight break.
Q.

We may need to

For whatever reason, it's not coming up, ma’am.

Again, you recall testifying in front of the House

Permanent Select Committee?

Is that correct?

18

A.

19

CDC[MR COOMBS]:

20

RECORDING: I think the State Department though has avoided the

21

Yes.
I'd like to play this for you.

chilling effect that you are --

22

WIT: If I might --

23

RECORDING: -- directly addressing.

11932

For examples, I might,

15515

1
2

during the period ---WIT: -- that is not the House Permanent Select Committee on

3

Intelligence.

4

And so I -- everything I’ve said to you -- your question was,

5

counsel, your testimony for the House Permanent Select Committee.

6

This is not my testimony before the House Permanent Select Committee.

7

This is a -- this is a different hearing, and so my -- that’s ----

8
9
10
11
12
13
14

Q.

That is the Senate -- that is the Senate Committee.

My question to you, Under Secretary Kennedy, was had you

testified about the two chilling effects.

You indicated that you

never testified about the former.
A.

You -- Counsel, I believe you were talking about -- you

said the House Permanent Select Committee.
Q.

And so ----

Well, why don’t we do this; I'll repeat my question and

then I'll see if I need to play this, okay?

15

A.

Right.

16

Q.

All right.

So, I'll repeat the questions as I ask them to

17

you word-for-word.

18

that have been documented basically to you, the two types of

19

potential chilling effects from the alleged leaks.

20

the State Department will stop sharing information with other

21

agencies, and the second, that other countries or individuals may no

22

longer share information with us.

23

testified about the former.

I want to address a couple of potential harms

The first, that

You indicated that you never had

Is that true or not true?

11933

15516

1

A.

We're talking now about the Senate committee.

The

2

questions posed were two-fold.

3

was very, very concerned about -- since the -- Senator Lieberman and

4

Senator Collins were the chair and co-chair of that committee, they

5

were very concerned about information sharing because they had been -

6

- they were the authors of the Intelligence Reform and Terrorism

7

Prevention Act.

8

Department going to cut off the defense department from the

9

intelligence information and ----

10

Q.

Since the Senate Homeland Committee

Their question was directed at was the State

Yes, sir.

My question, though, Under Secretary, is there

11

were two types of possible chilling effects, the first the State

12

Department will shop sharing information with other agencies.

13

you testify about that potential chilling effect?

14

A.

To Homeland Security and the Senate, yes.

15

Q.

All right.

16
17
18
19

Did

And you testified there that the State

Department had avoided that first kind of chilling effect?
A.

The chilling effect on the distribution to other government

agencies, yes.
Q.

All right.

You said while the State Department at that

20

point had stopped its dissemination of these purported cables on

21

SIPRNet, they continued to disseminate to the intelligence community

22

system throughout other sources, one was JWICS, correct?

23

A.

Correct.

11934

15517

1

Q.

And you continued to disseminate the same volume of

2

material at the same rate with the 65 other U.S. government agencies

3

after the purported leaks?

4

A.

Yes, sir.

5

Q.

And the State Department, in your words, not hold anything

7

A.

Correct.

8

Q.

All right.

6

9

back?

Now, the second type of potential chilling

effect, that is, whether or not foreign governments or citizens of

10

foreign countries would be willing to share information with us.

11

State Department has avoided that chilling effect, too?

The

12

A.

I do not believe so.

13

Q.

Are you familiar with then Secretary Clinton's statement

14

that diplomatic cables, again, are not always accurate?

15

familiar with her saying that?

16

A.

Are you

I believe that she -- she -- the Secretary of State did

17

give -- did give a press conference in 2010 after the first tranche

18

of WikiLeaks, yes.

19

Q.

Are you familiar with her saying that the -- in her

20

opinion, the diplomatic cables are basically passing on information

21

for whatever it's worth?

22
23

A.

I would have to see what she said, but I remember that

press conference, yes.

11935

15518

1

Q.

And do you recall her then saying that most leaders

2

understand this fact, that cables are not always accurate, they're

3

passing on information for whatever it's worth, and that she's found

4

no hesitancy on the part of leaders to share information?

5
6
7

A.

That does not contradict my statement that there was a

chilling effect on diplomatic reporting and analysis.
Q.

I understand that's your opinion.

My question though to

8

you was are you familiar with her statement saying that she -- she

9

has found no hesitancy on the part of leaders to share information?

10
11
12

A.

No part on the part of leaders sharing information with

her, yes.
Q.

Okay.

So you would agree with me that, obviously,

13

countries, whatever country we're dealing with, they act in their own

14

interest?

15

A.

Correct.

16

Q.

And the interests of each country are pretty well defined

17

by their -- either their place in the world, their economy, or their

18

history?

19

A.

20

factors, yes.

21

Q.

22

And current circumstances, et cetera.

There are multiple

But these countries -- we have a -- you name a country, we

can have a pretty good idea of their general interests and what they

23

11936

15519

1

would want to have happen or not happen as far as their interests are

2

pretty well defined?

3

A.

That's a -- that’s a very, very broad statement, and I will

4

say yes to it as a very, very broad statement.

5

many exceptions that occur in individual circumstances, a given

6

country and a given situation at a given time.

7

Q.

Okay.

Obviously, there are

Other countries, their diplomacy is not based on

8

whether or not they think an unpleasant article may be put out in the

9

press if they speak freely with us?

10

A.

That is correct.

That is correct in that sense, but it

11

does not go to the point that you're asking me about, is the chilling

12

effect on individual members of that government or individual members

13

of the private sector in that country being willing to share personal

14

opinions with United States diplomats.

15

Q.

Okay.

My question here, though, is that other countries'

16

diplomacy is not based on whether or not they think there's going to

17

be an unpleasant article written about them if they speak freely?

18
19
20

A.

That’s -- that’s -- there's no yes or no answer to that

question, counselor.
Q.

Well, I -- do you believe, I guess, other countries'

21

diplomacy is based upon whether or not they think an unpleasant

22

article is going to be published about them if they speak freely?

23

11937

15520

1
2

A.

I think there are circumstances when certain governments

would base their diplomacy on that, yes.

3

Q.

All right.

All right, I'm sure you're familiar with the

4

comments and opinions of former Secretary Robert Gates concerning the

5

release of purported cables?

6

A.

7

CDC[MR COOMBS]: Okay, what I'd like to do is I'd like to -- and,

I recall generally his -- his statements.

8

Your Honor, for the record, I started to play a portion of a -- of

9

Under Secretary Kennedy's testimony.

I'll have that marked [the CD

10

was marked Defense Exhibit Echo-Echo-Echo for identification] -- it's

11

on a CD.

12

another CD.

13

statement and ask Under Secretary Kennedy to give his opinion on

14

that.

I'll have that marked now for the record.

I also have

I'm going to play a portion of Secretary Gates’

15

MJ:

16

RECORDING OF MR. GATES: "Now, I have heard the impact of these

All right. Go ahead.

17

releases on our foreign policy described as a meltdown, as a game

18

changer and so on.

19

significantly overwrought.

20

United States because it’s in their interest, not because they like

21

us, not because they trust us and not because they believe we can

22

keep secrets.

23

because they fear us, some because they respect us, most because they

I think -- I think those descriptions are fairly
The fact is governments deal with the

Many governments -- some governments deal with us

11938

15521

1

need us.

2

indispensable nation.

3

us.

4

sensitive information with one another.

5

embarrassing?

6

foreign policy?

7
8
9
10

We are still essentially -- it's been said before -- the
So other nations will continue to deal with

They will continue to work with us.

Q.

Yes.

Is it awkward?

Yes.

We will continue to share
Is this -- is this
Consequences for U.S.

I think fairly modest."

Is that the statement that you were familiar with, Under

Secretary?
A.

I believe that -- yes, I believe that was the statement

Secretary Gates made in 2010.

11

Q.

All right.

12

A.

I do not disagree with his statement, but I don't think it

13

And do you disagree with his statement?

contradicts the statements I have made either.

14

Q.

And why not?

15

A.

Because what Secretary Gates is correctly talking about is

16

government-to-government interaction, but what I'm talking about is

17

diplomacy reporting, which is both government-to-government, but it

18

is also the interaction between individual U.S. diplomats and

19

government officials who give us their views in the expectation of

20

privacy and about U.S. diplomats interacting with private sector

21

businessmen, other officials, non-governmental officials in a host

22

country, and so the chilling effect on those interactions remain

23

valid and are not contradicted by Secretary Gates' statement ----

11939

15522

1

Q.

And those -- that ----

2

A.

---- and nor are they encompassed in Secretary Gates'

3
4

statement.
Q.

With regards to the other individuals that you're talking

5

about, members of -- not the government, but you're talking about

6

your average citizen or somebody who lives in the country?

7

A.

No.

8

Q.

Or who are you talking about?

9

A.

No, sir.

I'm talking about -- I’m talking about government

10

officials who render us their private opinions -- their private

11

analysis, which is important in helping us formulate -- I'm talking

12

about -- it could be senior businessmen, it could be senior members

13

of the -- of the educational system.

14

the press.

It could be senior members of

It could be senior NGO officials.

15

Q.

And ----

16

A.

Those are -- those are equally important in understanding,

17

in terms of U.S. national security, where a nation might be going and

18

that analytical information is critical, and that is the chilling

19

we're talking about.

20

Q.

And that chilling that you're talking about is based upon

21

what you perceive or what you have heard from others a chilling

22

effect?

23

11940

15523

1

A.

It is -- it is what has been reported to me -- I can -- as

2

examples -- and I'd be glad to go into examples in closed session --

3

of folks ----

4

Q.

Well, I can I ask you a particular question.

Have you had

5

anybody come to you and say "I'm no longer giving you as much

6

information as I have in the past?"

7

A.

I have -- it has been reported to me that foreign officials

8

have said the equivalent to our diplomats overseas -- not to me, I'm

9

in Washington -- but have said similar constraining statements to

10
11

U.S. diplomats overseas.
Q.

So, for you, that answer would be no, you haven't had

12

anybody come to you and indicate that we're no longer sharing as much

13

information with you in the past?

14
15
16

A.

To me personally, no.

But I am only one of 10,000 State

Department diplomats, and others have had it said to them.
Q.

And when you say that they're not sharing information then,

17

you are, at that point, believing that there is some deficit in the

18

information that they would have been otherwise shared, correct?

19

A.

Correct.

20

Q.

So it is potentially, kind of to use Secretary -- former

21

Secretary Rumsfeld "the known unknowns", is that what you were

22

talking about?

23

A.

I'm not sure it's a known, unknown.

11941

I’m sure -- I’m -- it

15524

1

is more likely that we have, over the course of the years, had robust

2

dialogue with officials, governmental and non-governmental, of very

3

senior levels in society across the world, and there -- there is less

4

frankness, less fulsome discussions now than there were before.

5

Q.

And again, that's based upon a perception?

6

A.

That's based upon individuals saying to State Department

7

diplomats that -- that they -- that they doubt that or taking other

8

actions to restrict those -- those -- that frankness.

9
10
11
12
13
14

Q.

Are you familiar with who Alex Ross is within the

Department of State?
A.

Alex Ross was an -- was an information technology guru at

the State Department until 2012, I believe.
Q.

Are you aware of his statements regarding the purported

leak of the diplomatic cables?

15

A.

No, I -- I don't remember ever seeing Alex's.

16

Q.

I'd like to play his statement for you and then see if you

17
18

would agree or disagree with it.
[The CD was marked Defense Exhibit Foxtrot-Foxtrot-Foxtrot for

19

identification]

20

[The following is a transcript of a portion of Defense Exhibit

21

Foxtrot-Foxtrot-Foxtrot that was played in open court in full view of

22

all court-martial participants]:

23

Interviewer:

I have a big affair that came up this year is the

11942

15525

1

WikiLeaks one.

2

Gate?

3

Alex Ross:

Is the State Department still recovering from Cable

You know here is the -- here’s the big headline from

4

WikiLeaks; WikiLeaks revealed massive right-doing by American

5

diplomats.

6

demonstrated is that our diplomats are very good at their job; that

7

what we are doing privately is what we say we’re doing publically.

8

So I don’t think there’s much to recover from.

9

think the United States has nothing to be -- nothing but pride in the

You know, they -- I think that what WikiLeaks

I think that -- I

10

work that our diplomats have -- have done, and I don’t think there’s

11

anything that’s been revealed that should contradict that.

12
13

[END OF RECORDING PLAYBACK]
Questions continued by the civilian defense counsel [MR. COOMBS]:

14

Q.

Were you aware of that statement?

15

A.

No, I had not seen Alex's statement before.

But, again,

16

like Secretary Gates, I do not disagree with his statement, but I do

17

not find it relevant to the point I've been making.

18

talking about we need not be embarrassed by the reporting cables that

19

were filed.

20

I'm addressing the fact that because of the information, and because

21

of the fact that people know that there's been a breach of privacy

22

and that they no longer have the expectation of the privacy, that

23

they are less willing to engage in the full and frank discussion and

Alex Ross was

That's not what I'm addressing, this particular thing.

11943

15526

1

exchange of ideas that they were willing to engage in before.

2

Alex's statement is true and so is mine.

3

Q.

Okay.

So

With regards to the purported release, the purported

4

SIPDIS cables range from 28 December 1966 to 28 February 2010, is

5

that correct?

6

A.

I believe that's correct, yes.

7

Q.

And the vast majority of these purported cables from came

8

2004 or later?

9

A.

I believe that's correct, yes.

10

Q.

And that was roughly the time period in which cables were

11
12
13
14
15
16
17

beginning to be shared on the Net-Centric Diplomacy database?
A.

That is -- that is how SIPDIS cables -- that's where SIPDIS

cables went was to the Net-Centric Diplomacy database, yes.
Q.

And of the 251,287 purported SIPDIS cables, 133,887 of them

were unclassified, is that correct?
A.

I think -- I think that's about right.

It was about 50/50

if my recollection is correct, yes.

18

Q.

And then 101,748 were classified as confidential?

19

A.

I believe that's also correct.

20

Q.

And finally, 15,652 were classified as secret?

21

A.

Correct.

22

Q.

And you conducted a classification review of a certain

23

subset of the purported Department of State cables?

11944

15527

1
2

A.

Are we referring, Counsel, to the -- to the -- to the -- to

the filing of the 100 or so cables in the -- okay -- yes.

3

Q.

Yes.

4

A.

Correct.

5

Q.

And you were selected to do that review based upon,

6
7

So you did a classification review of those cables?

basically, your duty position?
A.

Yes, the Under Secretary for Management's responsibility as

8

the senior classification officer by delegation from the Secretary of

9

State.

10
11
12

Q.

And prior to this one, you had never done a classification

review before?
A.

I looked at individual cables.

I had classified cables,

13

but I had not done -- I have not done a filing such as this, no, sir,

14

never before.

15

Q.

16

And you had assistance, obviously, in completing this

classification review?

17

A.

Yes.

18

Q.

And who, in general, assisted you?

19

A.

This was subject matter experts within the State

20

Department, both subject matter as to the rules and regulations of

21

classification and subject matter as to the content of the cable, so

22

the regional or functional bureau -- experts on that matter and the

23

11945

15528

1

classification experts from the Department to the rules and

2

regulations.

3

Q.

And how did they assist you in the review?

4

A.

They prepared -- they prepared what is called an action

5

memo to me, which is a memo saying that we've conducted the review,

6

here is the material outlined, the situation, and said do you -- do

7

you concur or non-concur, do you approve or disapprove the attached

8

filing.

9

Q.

10

And so I read through the filing and -- and concurred in it.
No one actually sat down and briefed you on any of the

hundred or so purported cables?

11

A.

No, no one sat there and briefed me on every -- no.

12

Q.

And when you reviewed the document, the document that you

13

reviewed was ultimately the document that you signed, is that

14

correct?

15

A.

That's correct.

And I also had -- I believe -- if my

16

recollection is correct -- this is some time ago -- I believe I also

17

had a binder which had the cables themselves.

18

Q.

Did you actually type any of the classification review?

19

A.

No, sir.

20

Q.

Did you make any changes to the classification review?

21

A.

No, because I concurred in it.

22

Q.

And you indicated that you thought you had an attachment

23

with the 100 or so purported cables?

11946

15529

1

A.

That’s the best of my recollection.

2

Q.

Did you read each cable from start to finish as you were

3
4
5
6
7
8
9
10
11
12

doing your classification review?
A.

I would read the -- the document, and then I think I

skimmed through the cables.
Q.

So the answer would be no, you didn't read each cable from

start to finish?
A.

I did not -- I do not believe I read each cable word-for-

word, no.
Q.

What classification guide did you use to complete your

classification review?
A.

The -- the current classification guide, which is

13

confidential; you have damage, grave damage, and exceptionally grave

14

damage, confidential, secret, and top secret, which is the cur ----

15
16

Q.

Did you actually have that classification review next to

you as you were doing this ----

17

A.

No.

18

Q.

---- or -- excuse me, classification guide?

19

A.

No, sir.

20

Q.

What is ----

21

A.

When you classify -- when you classify cables, you -- you

22

have taken in what the guidelines are, and then you do that -- since

23

I classify cables all the time, I know what -- I know what the rules

11947

15530

1

are.

2

use the same processes that -- when I would classify a cable in my

3

own right.

4

When I'm reviewing something that someone else classifies, I

Q.

All right.

So then you didn't feel the need at that point,

5

based upon your experience and knowledge, to use the classification

6

guide?

7
8

A.

I used the principles of the classification

guide, not a hard copy.

9
10

No, sir.

Q.

And what experience do you have in using the classification

guide -- actually physically using it?

11

A.

I am -- I as the -- as the agency officer in charge of

12

classification, I am the person who signed and approved the

13

classification guide.

14

Assistant Secretary of State for Administration, the classifications

15

and records management office in the Department worked directly for

16

me.

17

the processes.

18

And also from 1993 to 2001, when I was

So I have an intimate knowledge of how -- of how they work in

Q.

And when you -- when you say they worked for you, were you

19

actually reviewing what was put into the classification guide or

20

based upon your position were they simply telling you they’re

21

completing the classification guide and then giving it to you for

22

your signature?

23

11948

15531

1

A.

They would give it to me for my concurrence or clearance.

2

Q.

Did you -- before you signed it, I guess, did you review

3

the entire classification guide?

4

A.

I read what I sign.

5

Q.

All right.

So I guess the exception, then, would be just

6

reading the entire cables when you're doing the classification

7

review?

8

A.

That is correct.

9

Q.

Now, you had testified about -- now we are talking about

10

the August of 2011 damage assessment, okay ----

11

A.

Okay.

12

Q.

---- the draft damage assessment.

13

Did you -- did you

review that draft damage assessment from start to finish?

14

A.

I read the entire damage assessment, yes.

15

Q.

Okay. ‘Cause -- was this something else that you had

16

signed?

17

A.

I never signed it.

18

Q.

Was it done at your request?

19

A.

I requested it be done, yes.

20

Q.

And was it something that needed to have a signature then?

21

A.

I would have approved it.

If it had been -- in August of

22

2011, if it would have been the damage assessment, but given the

23

passage of time and its preparation and as we were reviewing it, we

11949

15532

1

were marching on to the Labor Day release of the next tranche of

2

cables.

3

time, which was not an accurate representation of the situation

4

because the next tranche of WikiLeaks material purported cables was

5

about to be released and, therefore, saying that this represented the

6

-- the damage assessment would have been an inaccurate statement for

7

me to make and approve.

8
9
10

Q.

I decided that the damage assessment draft was a snapshot in

All right.

And you had indicated that because of the fact

that the State Department viewed this as a crisis, that you -- you
basically went into a crisis management mode, correct?

11

A.

Correct.

12

Q.

And, obviously, by just using the term “crisis” that means

13

it's something that's serious?

14

A.

Correct.

15

Q.

And you had said on direct that it was, in fact, very, very

16

serious and that's why you had ----

17

A.

Correct.

18

Q.

---- conducted your response.

19

And that's also why you had

the impact review going initially to see what the impact ----

20

A.

Yes.

21

Q.

---- was of the purported leak, is that right?

22

A.

Correct.

23

11950

15533

1

Q.

You had indicated that you reviewed this draft in August of

2

2011, but you -- at least at the time of the draft, you -- did you

3

approve or not approve of what was said in the draft?

4

A.

It never reached that point.

I did not approve or

5

disapprove it because there was a second tranche of documents coming,

6

and that for me to have said this represents a damage assessment for

7

the purported WikiLeaks release would have been inaccurate because it

8

was not the entire scope ----

9

Q.

All right.

10

A.

---- and, therefore, I ----

11

Q.

And you indicated it was a snapshot, basically, is what you

12

thought up until that point?

13

A.

It was a snapshot, yes.

14

Q.

And it was a snapshot up until that point, correct --

15

August of 2011?

16

A.

It was a snapshot of the first tranche, yes.

17

Q.

And you haven't updated this damage assessment since,

18

correct?

19

A.

Correct.

20

Q.

You haven't taken any more snapshots in time?

21

A.

No.

22

Q.

And it's obviously possible to do that, is it not?

23

A.

It is.

11951

15534

1
2

Q.

And isn't it possible, if you don't do that, that you would

miss something?

3

A.

No.

4

Q.

You don't think it's possible that you might miss some

5

potential damage if you don't -- if you don’t do a Department of

6

State-wide damage assessment?

7

A.

No, because a damage assessment of this nature is very

8

different in my mind from other damage assessments that are done.

9

Other damage assessments to which I'm aware of or compromise of a

10

piece of equipment or an -- an -- a case of an individual with

11

limited -- with limited access that he or she has to a string of

12

cases.

13

the scope of damage is much wider.

14

Q.

At 251,000 cables, this is a much wider range and, therefore,

Right, but if you -- if you took snapshots in time, I guess

15

maybe at the end of 2011, end of 2012, maybe coming up end of 2013,

16

you would have snapshots as to the damage at that point -- at that

17

point, would you not?

18

A.

It's a very, very labor intensive activity to engage in

19

such -- in such damage assessments.

20

-- we are aware of the damage that has been done as I have outlined;

21

the chilling effect and, therefore, I do not see a need to do a

22

snapshot now because the -- because the damage continues to roll on.

23

11952

The damage assessments -- we are

15535

1

Q.

Now, I guess if -- I mean, that's obviously your opinion

2

that it continues to roll on, if you did a final damage assessment or

3

a damage assessment that was a snapshot, we would have a State

4

Department position as to what the damage was at that point, would we

5

not?

6
7
8
9
10
11
12
13
14

A.

Snapshots -- snapshots, I do not believe are a valid tool

when you have an ongoing situation.
Q.

Do you know whether or not there is a final damage

assessment in the works?
A.

I'm not aware of a State Department final damage assessment

in the works, no.
Q.

Has anyone ever spoken to you or indicated to you that a

final damage assessment will be completed at some point?
A.

I know that the -- I know that the Department of Defense

15

has done work, and I believe the intelligence community has done

16

work, but for -- in terms of the State Department, no.

17
18

Q.

Now, obviously, you had indicated that you were and have

been a part of the Department of State since 1973?

19

A.

Yes, sir.

20

Q.

And clearly, being part of an organization for this length

21

of time, you have a vested interest in making the Department of State

22

look good?

23

11953

15536

1
2

A.

yes or no answer.

3
4

That's another question that I don't think is amenable to a

Q.
yes or no.

5

A.

Okay.

You can -- you don't have to simply limit it to a

You can give me a longer answer if you wish.
Of course, I've been a -- I’ve been a Foreign Service

6

officer for 40 years.

7

work.

8

security, but I don't think that pride goes to the point of saying

9

that I will defend the State Department at any cost and/or defend the

10
11

Of course, I am proud of the agency at which I

I am proud of our agency's contribution to the national

State Department when it's wrong.
Q.

Now, let's talk about this draft damage assessment a little

12

bit more.

13

what the damage was, would you agree?

Obviously, it was an investigation as to, at that point,

14

A.

It was a review of reports from the field, yes.

15

Q.

And just as a general standpoint or proposition, it's

16
17

important to complete investigations?
A.

This is not -- this is not an investigation.

I totally

18

agree -- if you take the word investigation -- “investigation” has a

19

particular art form, I'm sure, in the law enforcement community, and

20

I know what investigations are because the State Department's law

21

enforcement arm works for me, but this was not an investigation.

22

This was -- this was an analysis, and the snapshot analysis has not

23

been completed because the damage continues to roll out.

11954

15537

1

Q.

Well, obviously, you had just testified that you would have

2

no desire to minimize an investigation just because it might make the

3

State Department look bad, is that correct?

4

A.

I said -- absolutely.

I said I have no desire to -- to

5

either perjure myself or -- or lower my -- my standards by -- by

6

doing something that's inappropriate.

7

Q.

And with regards to an investigation, if the investigation

8

indicated or a damage assessment indicated that there was no damage

9

or it was simply embarrassment, then, at that point, based upon what

10

you just said, your interest would be to have that completed and

11

known, is that correct?

12

A.

Well, if we were talking about a -- an informal

13

investigation or if we had talked about -- if we are talking about a

14

snapshot that showed that there was no damage, I would take that

15

position.

16

and the analysis didn't -- even, at the snapshot point in time, did

17

not show no damage.

18
19

Q.

But this was not an investigation.

All right.

And even at this point, though, there's been no

need or desire to do another snapshot?

20

A.

21

[Pause]

22

Q.

23

This was an analysis,

No, sir.

You had said that your desire would not be to stop an

investigation or -- or cease an investigation just because it might

11955

15538

1

make the State Department look bad, right?

2
3

A.

just because it would make the State Department look bad, yes.

4
5

Q.

Is there any sort of investigation now into you for that

very thing of stopping an investigation?

6
7

I said I would not stop an investigation if it would --

A.

There is somebody who wrote a letter saying that I stopped

an investigation, yes.

8

Q.

And is that being investigated at this point?

9

A.

Of course, when something is investigated, it's looked into

10

by the State Department's IT.

11

Q.

And is the allegation essentially that you stopped the

12

investigation in order to avoid the State Department from looking

13

bad?

14

A.

No.

I have no idea what the -- what the allegation is.

15

just says that I stopped an investigation.

16

entirely false.

17
18
19

Q.

Okay.

It

And it happens to be

The ambassador that it dealt with, was that person

replaced?
A.

That person -- that per -- the individual who was there had

20

a four-year appointment, and when the -- when -- when administrations

21

change, including a President to a reelected sitting President, the

22

four years is up, and the individual did not leave short of tour.

23

No, he was not replaced because of the accusations.

11956

15539

1

Q.

Okay.

2

A.

His tour was up.

3

Q.

And currently, right now, you said that investigation is

4
5
6

ongoing?
A.

I believe the inspect -- you’d have to ask the inspector

general about -- that inspector general is outside of my purview.

7

CDC[MR COOMBS]:

8

MJ:

9

All right.

No further questions.

All right, government, you want a recess before we go to

redirect?

10

TC[MAJ FEIN]:

11

MJ:

12

TC[MAJ FEIN]:

13

[Pause]

14

TC[MAJ FEIN]:

15

MJ:

16

TC[MAJ FEIN]:

17

MJ:

Yes, ma'am.

How long?
May I have a moment, Your Honor?

Ma'am, may we have a 10-minute recess?

All right.
We don't anticipate a long redirect, ma'am.

Under Secretary Kennedy, same rules apply.

Please don't

18

discuss your testimony during the recess.

19

until in 10 minutes to 1300.

20

[The court-martial recessed to order at 1238, 5 August 2013.]

21

[The court-martial was called to order at 1251, 5 August 2013.]

22
23

MJ:

Court is called to order.

Court will be in recess

Let the record reflect that all

parties present when the Court last recessed are again present in the

11957

15540

1

court.

The witness is on the witness stand.

2

TC[MAJ FEIN]:

3

MJ:

4

to find them.

7

No, ma'am.

Under Secretary, I have a couple of questions.

5
6

Redirect?

I just need

EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q.

You testified earlier that -- I just found them.

You

8

testified earlier on direct examination that I believe -- and please

9

correct if I have misquoted your testimony -- that there were

10

approximately 250,000-plus cables on the NCD database and on the

11

SIPRNet back in 2010?

12

A.

Yes, Your Honor.

13

Q.

And that there were approximately 2.4 million other cables?

14

A.

Not sure under -- well, the State Department produces, as I

15

mentioned, lots of diplomatic reporting and other administrative

16

cables.

17

caption, which then pushed them into the -- into the NCD -- the Net-

18

Centric database.

19

different types of reporting in there and there was a full range of

20

reporting on the cables as well.

21
22

Q.

Only a certain percentage of those carried the SIPDIS

The re -- there were -- there was a full range of

Does the -- these other 2.4 million cables, I know you

testified in response -- I believe it was to defense counsel's

23

11958

15541

1

questions -- that there were a variety of different kinds of

2

distribution systems that were very limited ----

3

A.

Yes.

4

Q.

---- like NODIS and some of the other ones.

Was it the

5

Department of State's intent to release or allow other agencies to

6

view cables that -- that could help them in their national security -

7

---

8

A.

Absolutely.

9

Q.

---- jobs with SIP -- with SIPDIS?

10

A.

Both SIPDIS and what we just called, for want of a better

11

term, the legacy distribution systems.

12

wide range; classified and unclassified.

13

to the Food & Drug Administration.

14

export/import bank.

15

cable is.

16

that cable in order to do its mission.

17

the request of the Department of -- the Department of Defense and the

18

intelligence community -- Office of the Director of National

19

Intelligence saying -- trying to help in the distribution of cables

20

at the agency end.

21

the cables from the State Department's communication center to the

22

communications center of the other agency where they then had to

23

redirect -- they had to direct them to the respective entities in

We pushed cables out to a
For example, we send cables

We send cables to the

It depends on what the subject matter of the

We -- we get them to whatever U.S. government agency needs
SIPDIS was an invention at

That the system that we had which simply pushed

11959

15542

1

their entities.

2

can you push some of your reporting cables to this Net-Centric

3

Diplomacy database using the SIPDIS caption?

4

appropriate analyst would pull the cables in their area of

5

responsibility down.

6

distribution burden on the part of the other agencies.

7

all part of our intent to make State Department diplomatic reporting

8

available to any agency in the United States government with

9

classified personnel, who will maintain -- because we have an

They were having a problem with that.

And so it was

And then the

And it was an attempt to -- to ease the
But this is

10

agreement -- we have an agreement that goes back years and years with

11

the Department of Defense, for example, that says that -- that the

12

agency receiving the classified material takes responsibility for

13

ensuring that those who are given access to it have the appropriate

14

clearances because it would be -- for the State Department to try to

15

find analyst “A” at Fort Huachuca, or analyst “B” at Bolling, or

16

analyst “C” at Fort Gordon, that’s is just simply beyond our ken.

17

we push it -- we push it out and then other agencies either

18

distribute it or they pull it.

19

Q.

All right.

Thank you.

So

Just shifting to another area now,

20

you testified in your opinion that the communications between -- not

21

from government-to-government level, but with the diplomats and the

22

people they talked to ----

23

A.

Yes, ma’am.

11960

15543

1
2

Q.

---- in the foreign countries is chilled.

you testified that that was reported to you.

And I believe

How -- how frequently?

3

A.

We have -- we have examples and I would be ----

4

Q.

I'm not asking you to go into the specifics --

5

A.

We have ----

6

Q.

---- of anything ----

7

A.

---- we have ----

8

Q.

---- just give me a flavor for numbers.

9

A.

It’s a relatively small number of people actually

10

expressing it, but more of our colleagues have a sense that they --

11

that the dialogue that they are engaging in with the foreign

12

interlocutors is not as full as it once was before.

13

people have just said we’re -- we cannot -- we're not going to share

14

with you like we used to.

15

that they're not getting the kind of -- kind of exchanges that they

16

had before the -- the WikiLeaks.

17

Q.

Several cases --

Other cases of individuals just feeling

Now, these disclosures took place in -- I believe in the

18

Department of State cables, you were talking about November of 2010,

19

followed by the second tranche, as you described it, in September of

20

2011.

21

A.

Yes, Your Honor.

22

Q.

These feelings that you're talking about, were they

23

manifest -- expressed to you in 2011, 2012, 2013?

11961

15544

1

A.

They -- they started -- they started in 2010, and I believe

2

that -- that my colleagues abroad are still feeling the chill.

3

cannot -- I cannot go to the depth of -- it's impossible to know what

4

someone is not sharing with you, and that is, in itself, I believe, a

5

risk to national security.

6

Q.

But I

And, I know you did testify about this, I just want to make

7

sure I'm clear on that.

8

response to defense counsel's question that there was a draft damage

9

assessment done in draft form approximately around August 2010,

10

You testified earlier, I believe, in

before the next wave of releases?

11

A.

Your Honor, it was August 2011.

12

Q.

I’m sorry, August 2011.

13

A.

2011.

It reached me -- I was reviewing it, talking to

14

people, and then the second -- Labor Day -- the Labor Day second

15

large tranche of purported documents were released.

16

point, it was clear to me that the -- that the -- that the earlier

17

snapshot, which showed, you know, bad results from the leaks, it was

18

not -- and it hadn’t done after, you know, a year of -- it was not

19

appropriate to restart it again because it would -- the sec -- it

20

would -- we would need time to -- for the second to play out.

21
22

Q.

And so, at that

And if you can't answer this in an open setting, please

don't, but with the original draft, was there -- did that encompass

23

11962

15545

1

an assessment of everything that the Department of State thought

2

might be released or what was released?

3

A.

No -- was released.

4

MJ:

Any follow-up based on that?

5

TC[MAJ FEIN]:

6

CDC[MR COOMBS]:

7
8

Yes, Your Honor.
RECROSS-EXAMINATION

Questions by the civilian defense counsel [MR. COOMBS]:

9
10

No, ma'am.

Q.

The legacy distribution system, if you could, explain that

in general format for the Court.

11

A.

Certainly.

A telegram would arrive at -- at the State

12

Department's communication center in Washington.

13

an artificial intelligence looking at the caption, looking at the

14

tags.

15

Every country in the word has two letters, and there are a series of

16

tags which are arranged from “A” tags, which are administrative to

17

“P” tags, which are political reporting, to “E” tags, and then the

18

following three letters mean the type of economic political cultural

19

counselor activity.

20

this and decides that this information is a value to the national

21

security staff -- the Department of Defense or to whomever depending

22

on the subject on the base of this.

23

over classified circuits to a designated communications center at

It would be read by

Tags are a four-digit or two-digit in detention indicator.

And so this automated intelligence reads all of

11963

And then pushes that message

15546

1

whatever agency involved.

2

makes distribution within its entity to whomever it deems appropriate

3

with the -- with the security clearances.

4
5

Q.

And then that agency, on receipt of it,

When you had testified that during the same time 250,000

SIPDIS cables were put in the Net-Centric database

6

A.

Right.

7

Q.

---- you had 2.4 million cables ----

8

A.

Right.

9

Q.

---- unrelated to that going through these legacy

10

distribution systems?

11

A.

Correct.

12

Q.

And those were going to the other 65 interagency partners?

13

A.

They were going to all -- well, not everyone ----

14

Q.

Right.

15

A.

-- to every 65, but the one that the -- AMADs -- A-M-A-D-s,

16

the distribution system picked up and decided should be routed there

17

on the basis of reading the -- reading the cable, looking for

18

keywords and terms, the tags, and the -- the -- the captions, if

19

there were any.

20
21

Q.

And that number, that 2.4 million, that was for 2005 to

2010?

22

A.

Yeah.

23

Q.

Okay.

It -- it was for a comparable period.

11964

15547

1
2
3

A.

And there was obviously a lot of administrative processing

cables in that period as well.
Q.

Now, with regards to the small number of people that --

4

that had expressed a kind of chilling effect, and then the colleague

5

saying I think there's a greater number of people, at least per our

6

impressions, did the State Department ever quantify that or graph

7

that in any way to show?

8
9

A.

No.

No.

There also is a belief also there have been -- we

had to make personnel changes at some embassy; and I don't want to go

10

into any greater depth than to say that.

11

of a chilling effect.

12
13
14

Q.

So that’s another example

With regards to the chilling effect that you believe is

present, did that wane at all from 2011 - 2012?
A.

I believe that's -- I believe that's hard to tell.

15

-- I don’t believe we have the full measure yet.

16

that question.

17

Q.

I don't

I cannot answer

I wish I could, but I cannot.

So from your perspective, at least from what you can see

18

and what you understand, you can’t discern a difference between what

19

might have been the chilling effect in 2011 - 2012 vice 2013?

20
21

A.

It's -- I -- it’s the same chilling effect. If you're

trying to -- I can't ----

22

Q.

No, just the level of it.

23

A.

No -- no, I cannot.

11965

15548

1

CDC[MR COOMBS]:

2

MJ:

3

TC[MAJ FEIN]:

4

MJ:

5

[Pause]

All right.

8

No further questions, ma’am.

Thank you.
May we have a moment, Your Honor?

Yes.

6
7

Okay.

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

Sir, in reference to your testimony just now, specifically

9

about the 2. -- approximately 2.4 million cables through the legacy

10

system, what did you mean by alleged contained admin’ type cables?

11

A.

I mean, they would -- there was some percentage of those

12

cables -- and, Major, I don't have the exact number - that -- that

13

would never have been -- catagor -- you know, candidates for -- for

14

SIPDIS.

15

potentially comparing the -- the relative sizes -- cables reporting

16

on freight movements, travel orders, assignment notifications,

17

temporary duty, flight arrivals, those -- those would have been in

18

there.

19

comparison because what would have been put in -- in SIPDIS is not --

20

we would not have loaded those kind of administrative tract --

21

financial -- here is -- here American embassy's Shangdu's financial

22

allotment for the -- for the next quarter.

23

put in SIPDIS.

Since I was interpreting that as a question about

So a 2.4 to 250,000 is not a -- is not a direct 10 to 1

11966

Those would not have been

15549

1

Q.

And, sir, as far as the classification breakdown of 251,000

2

purported cables, those cables are never reviewed for their actual

3

classification, correct?

4

A.

We never reviewed all 250,000, no.

5

Q.

So those numbers, sir, that you gave during cross-

6

examination, the breakdown -- about 50 percent were unclassified, 50

7

percent were classified, what do you mean by that?

8
9

A.

Well, the -- well, we didn’t -- when you say reviewed --

when you said reviewed for classification, I was using the same

10

phraseology as defense counsel had been using.

11

aggregate and disaggregate them of how many were classified and how

12

many were unclassified.

13

of the -- of the about half which were classified in the same way

14

that the -- that the filing did.

15

TC[MAJ FEIN]:

16

MJ:

17

CDC[MR COOMBS]:

18

MJ:

19
20
21

We -- we were able to

But we did not consult -- conduct a review

Yes, sir.

Thank you, sir.

Anything else?
Nothing, Your Honor.

I just have one last one based on that.
EXAMINATION BY THE COURT-MARTIAL

Questions by the military judge:
Q.

The -- can you give me a flavor of -- you said that there’s

22

2.4 and it's not a direct correlation with the 250,000 that were on

23

SIPDIS because you have these administrative and -- do those

11967

15550

1

administrative and, I guess, cables that are only of interest to a

2

few people that wouldn't go out to the interagency, out of the 2.4

3

million, would that be, say, 50 percent, 25 percent, 75 percent?

4

don't need an exact figure, but this ----

5
6

A.

Your Honor, I -- I would be only guessing.

I

And I'm very,

very hesitant to do that ----

7

Q.

All right.

8

A.

---- just because ----

9

Q.

---- not to.

10

Q.

---- just because that's not a way that I've ever -- I’ve

11

And I’d like you ----

So that’s fine.

ever cut them in my mind or had it presented to me.

12

MJ:

13

CDC[MR COOMBS]:

14

TC[MAJ FEIN]:

15

MJ:

16

TC[MAJ FEIN]:

All right.

Any follow-up based on that?
No, Your Honor.
No, ma'am.

May this witness be excused?
Yes, ma'am.

Permanent excusal.

17

[The witness was permanently excused, and withdrew from the

18

courtroom.]

19

MJ:

All right.

We talked earlier today about proceeding with

20

the unreasonable multiplication of charges motion potentially this

21

afternoon.

22

decide how you might like to proceed?

How would the parties -- would you like to confer and

23

11968

15551

1

TC[MAJ FEIN]:

Yes, ma'am.

We -- we conferred during the last

2

recess.

3

will give us enough time for lunch, and then hopefully to agree on

4

this proffer of expected testimony -- and write it.

5
6

MJ:

The United States requests that we reconvene at 1430, which

All right.

And then we'll have oral argument with respect

to that motion?

7

CDC[MR COOMBS]:

8

TC[MAJ FEIN]:

9

MJ:

Okay.

Yes, Your Honor.
Yes, ma'am.

And is there anything else we need to address today?

10

I assume we're not going to have any other witness from the

11

government?

12

TC[MAJ FEIN]:

13

MJ:

Okay.

No, ma'am.

1430.

All right.

Court is in recess until 1430.

14

[The court-martial recessed at 1309, 5 August 2013.]

15

[The court-martial was called to order at 1441, 5 August 2013.]

16
17
18
19
20

MJ:

Court is called to order.

Major Fein, please account for

the parties.
TC[MAJ FEIN]:

Your Honor, all the parties when the Court last

recessed are again present, with the exception of Captain Overgaard.
MJ:

All right.

Thank you.

I’ve been handed a copy of

21

Appellate Exhibit 635, which is a Stipulation of Expected Testimony

22

of Special Agent David Shaver.

23

regard to the stipulation?

Did both sides come to agreement with

11969

15552

1

TC[MAJ FEIN]:

2

CDC[MR COOMBS]:

3

MJ:

4

ACC: Yes, Your Honor.

5

MJ:

Yes, Ma'am.
Yes, Your Honor.

PFC Manning, we’ve been through this before.

Is that your signature there on the bottom of -- the bottom

6

right corner of the Stipulation of Expected Testimony for Special

7

Agent David Shaver?

8

ACC: Yes, Your Honor.

9

MJ:

Before signing the Stipulation, did you read it thoroughly?

10

ACC: Yes, ma'am.

11

MJ:

12

ACC: I do, ma'am.

13

MJ:

14

ACC: Yes, Your Honor.

15

MJ:

You understand the contents of the Stipulation?

Do you agree with the contents of the Stipulation?

Before signing the Stipulation did your defense team

16

explain the stipulation to you?

17

ACC: Yes, Your Honor.

18

MJ:

19

You understand you have an absolute right to refuse to

stipulate to the contents of this document?

20

ACC: Yes, ma'am.

21

MJ:

You understand that you should only enter into a

22

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

23

that?

11970

15553

1

ACC: Yes, Ma'am.

2

MJ:

And you understand this is a stipulation of expected

3

testimony.

4

both sides and you agree to a stipulation of expected testimony,

5

you're agreeing that if Special Agent David Shaver were here in Court

6

and testifying under oath, he would testify substantially as set

7

forth in Appellate Exhibit 635.

8

admit the truth of a person's testimony.

9

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

10

And, once again, what that means is, when counsel for

was testifying in person.

11

ACC: Yes, ma'am.

12

MJ:

A stipulation can be -- it does not
The stipulation can be

Do you understand that?

And knowing everything I have told you and your defense

13

counsel has told you, do you still want to enter into this

14

stipulation?

15

ACC: Yes, Your Honor.

16

MJ:

All right.

Now this is not admitted into evidence.

17

is an appellate exhibit that I’ll consider for purposes of this

18

motion.

19

ready to argue?

20

4 and 6 of Charge II for findings.

All right.

So we have three motions here.

Are the parties

Let's start with the motions to merge Specifications

21

CDC[MR COOMBS]: Yes, Your Honor.

22

MJ:

23

This

Before you start, I do have a question for you.

Where is

my evidence that this is -- that these -- the -- the acts in

11971

15554

1
2

Specifications 4 and 6 happened at the same time, same date?
CDC[MR COOMBS]: Yes, Your Honor.

And that's where Special Agent

3

David Shaver's stip of expected testimony will come into handy --

4

into hand.

5

The evidence that you had essentially was the SIGACTs from

6

both Iraq and from Afghanistan were taken from the T-SCIF and

7

ultimately placed on a SD card.

8

dates or the last written date on the SD card were 5 January 2010 for

9

the Iraq SIGACTs, and 8 January 2010 for the Afghanistan SIGACTs.

10

The important fact to note though is that's the last date in which

11

something was changed, not the date in which those items were placed

12

on the SD card.

13

SCIF that you -- you’ve taken all the SIGACTs up to December 31st of

14

2009, which is -- that's the evidence, and you burned all that on 3

15

January 2010, and then that CD stays in the SCIF.

16

thing up to December 31st, 2009, for all the Afghanistan SIGACTs, and

17

you burn a CD, and that CD is burned on 8 January 2010.

18
19
20

MJ:

And the evidence was that the -- the

So, in other words, you could have a CD in -- in the

You do the same

So you are arguing to me that up until it leaves the SCIF

everything is legitimate and is not part of the theft.
CDC[MR COOMBS]: That's correct.

And that we’ve got plenty of

21

evidence from the witnesses who’ve testified that there was no

22

prohibition on -- on saving this information or any other information

23

that you wanted from SIPRNet onto a disk.

11972

Now you do have -- and

15555

1

then here you don't even have the use of a Wget or anything like

2

that.

3

again, I know ----

4

You have a legitimate export monthly of Excel SIGACTs which,

MJ:

That has to assume.

I don’t have to find -- I don't find

5

an intent to steal on the 3rd of January and on the 7th of January,

6

right?

7

CDC[MR COOMBS]: Right.

If the -- if the idea was -- if the

8

Court was convinced based upon the evidence that the intent to steal

9

or to permanently deprive or what not was done at the time these

10

things were being pulled month by month -- I guess that could even go

11

back to sometime when he initially started saving them.

12

the evidence shows -- and Chief Hack's testimony helps support this -

13

- that PFC Manning was one of those individuals who was very, very

14

organized, saved an immense amount of information and files.

15

also from the testify of Captain Fulton, he was even given a task of

16

going back for the last year going through the SIGACTs and pulling

17

them in order to discern the attacks on the brigade over the past

18

year.

19

evidence would be more supportive of the idea that he was pulling all

20

these because he could -- export them bimonthly, just have them all

21

on the CD.

22

to his CHU, that’s what's important from Special Agent Shaver's

23

testimony in that those dates don't mean anything with regards to

So he was pulling stuff for legitimate purposes.

But I think

And

I think the

And the actual taking from the T -- from the T-SCIF back

11973

15556

1

when it was put on the SD card because the last written date would

2

not change.

3

and altered a period or did some modification, and then you would

4

have a change.

5

expected testimony, he has no way of knowing whether or not that was

6

done on the SIPRNet or the personal Mac computer, and no way of

7

knowing the date -- the exact date in which it was moved to his

8

personal Mac computer.

9

It would stay the same unless somebody went in and --

So, as Special Agent Shaver testified in the stip

So just as -- as the -- there is no, I guess, argument with

10

regards to Specifications 5 and 7, that they were given on the same

11

date and time, the government's position -- or, excuse me, the

12

defense's position is that the evidence elicited by the government,

13

and on cross by the defense, and through this stip of expected

14

testimony, would support that the taking of the SIGACTs were done at

15

the same time as well.

16

MJ:

All right.

Talk to me once again.

So we’ve got the

17

contents that are listed on Prosecution Exhibit 50; they’ve got the

18

last written date on 1-8 -- January 8th for the Afghanistan events

19

and January 5th for the Iraq events.

20

CDC[MR COOMBS]:

21

MJ:

22

Yes, ma’am.

Now what is the significance of that versus the last

paragraph where they’re talking about the 30th of January?

23

11974

15557

1

CDC[MR COOMBS]:

That the only -- when you have the two last

2

written dates, that's the last time something was modified.

3

can't tell if that was done in the T-SCIF or that was done on PFC

4

Manning's personal Mac computer.

5

All we know is those were the last dates that that dataset was

6

modified in some way.

7

that because his computer was -- was wiped on the 31st, that we know

8

it must have gotten on his computer by the 30th.

9

belief.

10

So there’s no way of knowing that.

The 1-30-2010 date, the government is saying

That is their

And that's what Special Agent Shaver would testify to.

MJ:

Okay.

All right.

I think I understand the defense's

11

position.

12

here and then I'll switch over to the government.

13

And you

Why don't we go all the way through the defense arguments

CDC[MR COOMBS]:

Sure, Your Honor.

Five and seven; just very

14

straightforward, we agree that that occurred on the same date and

15

time.

16

but does object to findings ----

17

The government doesn't object to merging them for sentencing,

MJ:

Let me ask you a question on this one; you haven't asked me

18

to merge them for sentencing.

19

I not merge them for findings -- that’s Specification 4 and 6, and

20

Specification 5 and 7 of Charge II; do you want me to consider them

21

as one for sentencing?

22
23

CDC[MR COOMBS]:

Should I not merge them for -- should

I did ask for my Category I offenses, I

asked to merge 4, 5, 6 and 7 into one specification.

11975

But then, in a

15558

1

footnote in my motion -- my UMC motion, I -- I highlight the fact

2

I’ve already asked that you combine 4 and 6 for findings and 5 and 7

3

for findings.

4

MJ:

5

CDC[MR COOMBS]:

Okay.

Okay.
So I guess, if the Court didn't do 4 and 6

6

or 5 and 7 for findings, then my request for sentencing would be

7

combine those four into one ----

8

MJ:

9

CDC[MR COOMBS]:

Okay.
---- 10-year offense.

And -- and that

10

really kind of gets us then to the -- the UMC for sentencing motion.

11

And as ----

12
13

MJ:

Maybe I'm not understanding your motion.

Let me make sure

----

14

CDC[MR COOMBS]:

15

MJ:

Yes, Your Honor.

---- so in Category I of your unreasonable multiplication

16

for sentencing, I thought you were asking me for three separate

17

specifications -- 4 and 5, 6 and 7, and 8 and 9, so basically

18

considering each of those pairs as mul -- unreasonable multiplication

19

of charges.

20
21
22

You want me to consider all six of them as one offense?

CDC[MR COOMBS]: No, Your Honor, 4 and 5, and 6 and 7 -- so I
divided up between the 641 and 793 offense ---MJ:

Yes.

23

11976

15559

1
2

CDC[MR. COOMBS]:

---- and then for 4, 5, 6, and 7, I said

combine them into one offense.

3

MJ:

4

[Pause]

5

CDC[MR COOMBS]: On the conclusion, 9(A) on Page 4, ma'am.

6

MJ:

7

CDC[MR COOMBS]: So with regards to the Category I, you have the

Okay, where did you say that?

Okay.

All right.

Maybe I'm confused.

I got it.

8

641 offense; the taking, and the 793 offense; the giving of the

9

information to an unauthorized individual.

So, the defense's

10

argument is essentially that 4, 5, 6 and 7, and 8 and 9 is conduct

11

that essentially rose out of the single ongoing act and part of the

12

same impulse.

13

MJ:

14

CDC[MR COOMBS]:

15

The exact reason in U.S. v. Campbell ----

So now you want 8 and 9 with 4, 5, 6 and 7?
No.

I’m -- I just combined those because

they’re 641 and 793 offenses.

16

MJ:

17

CDC[MR COOMBS]:

Okay.
But -- no -- 4 and 5 into one offense, 6 and

18

7 into one offense, then, in my conclusion, combined those into one -

19

- 8 and 9 into one offense.

20

MJ:

21

CDC[MR COOMBS]:

Okay.
And -- and the reason why is because they

22

are part of that single ongoing act of the actual taking in order to

23

-- to give to an unauthorized individual.

11977

And here I think -- and

15560

1

this also kind of applies to the -- the 641 offense in Category II of

2

Specification 12 and Specification 13 for the 1030(a)(1).

3

defense's argument there is similar, in that you have an ongoing act.

4

In order to actually give it to an unauthorized person, you know,

5

exceed your authorized access, the taking of that is the single

6

ongoing course of action.

7

filing in Appellate Exhibit 599, that was their initial response to

8

the 917 motions, the government consistently argued that the theft of

9

the records was tied to the actual unauthorized disclosure of the

The

And when you look at the government's

10

records.

11

of Appellate Exhibit 599, and Page 16 of Appellate Exhibit 599 --

And I'll just highlight for the Court to look at on Page 14

12

MJ:

13

CDC[MR COOMBS]:

14

Okay, let me get there.

government's statements.

-- just a couple of the -- of the
So ----

15

MJ:

16

CDC[MR COOMBS]:

17

MJ:

18

CDC[MR COOMBS]: No, Appellate Exhibit 599 ----

19

MJ:

20

CDC[MR COOMBS]:

21

MJ:

22
23

You said -- what exhibit?

I have ----

Appellate Exhibit 599.

Are you looking at their current ----

---- their current response or the ------- is their 9 -- and I can ----

I thought I had Appellate Exhibit 58.

again.
[Pause]

11978

Maybe I’m confused

15561

1

MJ:

2

CDC[MR COOMBS]:

Mr. Coombs, are we looking at Appellate Exhibits 57 and 58?
No, Your Honor.

So, I’m handing the Court

3

Appellate Exhibit 599 [handing the document to the Military Judge].

4

And that was the government's response to the 917 motion.

5

MJ:

6

CDC[MR COOMBS]:

Oh, the 917.

Okay.

Got it.

So if the Court goes to Page 14 of Appellate

7

Exhibit 599. Right underneath (b)(1) where it says accused’s acts

8

constitute theft of United States government records.

9
10
11

MJ:

I'm sorry.

CDC[MR COOMBS]:

Tell me where you are again.
Right under the indented Number 1; accused’s

acts constitute theft.

12

MJ:

13

CDC[MR COOMBS]:

Okay.
So you go in -- that first sentence there,

14

theft of records occurs when copies of the records are transmitted to

15

the unauthorized party even though the records remain in the custody

16

and control of the United States.

17

paragraph, that starts off in his chat logs, the government states,

18

in his chat log the accused admitted to exporting the data from the

19

United States government computer system onto his personal computer

20

and compromising the data by conveying it to Mr. Julian Assange.

21

ma’am, if you turn to Page 16, at the very top, the -- right after

22

the cite, they start off with, conversion of computerized records as

23

a misuse or abuse of property, its use in a unauthorized manner

11979

Then if you go to the last

And

15562

1

occurs when an accused transfers information to an unauthorized

2

party.

3

States government records to an unauthorized party constitutes

4

conversion under Section 641.

5

they say here the accused converted the United States government

6

records by conveying them to WikiLeaks.

WikiLeaks lacked the

7

authority to possess this information.

And then they end that

8

paragraph; in the incident case, the accused stole and converted the

9

United States government records by transferring them to an

Then they start the next paragraph; conveyance of the United

In the middle of that same paragraph

10

unauthorized party or onto his personal computer.

11

conveyance harmed the United States interest and exclusive possession

12

of the information in the records, thereby, further adding to the

13

conversion caused by the accused.

14

paragraph; furthermore, disclosure of the United States Government

15

proprietary information creates criminal liability for converting

16

that information, specifically, misappropriating the information

17

confidentially held by one party is giving it -- by giving it to an

18

unauthorized party constituted interference with the right to

19

exclusive use of the compromised information.

20

on the very bottom of Page 16; thus, the accused substantially

21

interfered with the United States government information by

22

compromising it to WikiLeaks.

23

Additionally, this

They continue in the next

And then they end that

The -- the Court in its ruling in Appellate Exhibit 613

11980

15563

1

specifically held that the government provided further evidence that

2

the accused extracted and removed the classified records and

3

information therein from the SIPR computer in the 2d BCT SCIF,

4

downloaded them to his own personal digital media or platform,

5

removed the portable digital media and platform from the 2d Brigade

6

SCIF, transferred the records and information therein to his personal

7

portable digital media platform in his private housing unit, and then

8

transferred the records and information therein to WikiLeaks.

9

Court finds that this to be some evidence of misuse of Government

The

10

records that could substantially -- seriously and substantially

11

interfere with the Government's property rights to control the

12

charged records and information therein to withstand a motion for a

13

finding of not guilty under R.C.M. 917.

14

that -- of the Court’s ruling, on Page 7, the Court says, the

15

government's theory is that the accused knowingly converted the

16

records and information therein in Specifications 4, 6, 8 and 12 by

17

sending them to WikiLeaks.

And then on the bottom of

18

The defense's position then is based upon what the

19

government represented to the Court for the 917, and then the Court's

20

findings based upon that, that here now clearly the 641 offenses and

21

the 793 offense -- the 641 offense and the 1030 offense rests on the

22

exact same conduct.

23

it would survive unreasonable multiplication of charges in findings

And it's part of that ongoing conduct.

11981

Clearly

15564

1

based upon different elements.

2

Campbell case.

3

unauthorized individual you had to have taken them.

4

position is that for each of the 641 offenses, they should merge

5

either with the 79 -- 793 offense, or with regards to the Category

6

II, the 641 should merge with the 1030(a)(1) offense.

7

MJ:

But for sentencing this is the

This is -- in order to have given them to an
So the defense's

So this is interesting because we have steal, purloin, or

8

knowingly convert.

9

forward on two theories that he stole it, and then once it got on his

So the Government’s really basically going

10

personal computer, the offense was complete in the conversion.

11

you’re really arguing to me it's the conversion piece that makes this

12

unreasonable multiplication of charges for sentencing?

13

CDC[MR COOMBS]:

So

Yes, but then also slightly in a vacuum not

14

knowing for sure without the specific findings, if the Court found

15

that it was a -- what the government proved for the 641s was a

16

conversion, or if they proved a theft, and if so, when that theft

17

occurred.

18

the exclusive possession of the property -- the government's interest

19

in exclusive possession, or when he took it to his CHU, as opposed to

20

keeping it in the SCIF?

21

when he downloaded it in the SCIF with -- with what the Court would

22

believe they found that, with the intent to permanently deprive or

23

temporarily deprive the Government.

Was it when he actually did something that would violate

Or, as the Court asked initially, was it

11982

15565

1

So, yeah, it depends on when that theft occurred.

But it's

2

clear the Government went on both of those theories and argued for

3

the 917 to avoid a finding of not guilty on the conveyance or

4

conversion theory.

5

don’t -- then here now, it's inconsistent to argue that those

6

shouldn't be merged for sentencing because they are part of an

7

ongoing course of action.

8

you can separate for findings, but for sentencing this is the

9

Campbell case.

10

MJ:

And -- and because of how they argued that then I

And it is certainly one that you can --

And the defense would argue they should be merged.

Well, this -- how is this distinct from a case where you

11

have a BAH fraud; where you have false claims that are made, and then

12

you have subsequent larcenies as you’re accepting the BAH month after

13

month after month.

14

those kinds of cases or -- or not?

15

Does the defense see any distinction between

CDC[MR COOMBS]:

The -- well, in that type case, if it's just

16

the false claims and then the larceny, I think those do get merged --

17

and that’s kind of the Campbell case as well for sentencing.

18

if it's an ongoing larceny, then the issue is did the accused in that

19

case -- or appellant have to do something in order to continue to

20

receive because technically every time they get paid that extra BAH

21

or whatnot, that's a larceny.

22

the taking -- the timing of the taking of the information, even under

23

the government's argument of maybe a few days difference or a month

If --

Here I would see a distinction in that

11983

15566

1

difference, but the timing of the taking to the actual giving with

2

each of the offenses that my client’s been found guilty of is a

3

matter of days usually.

4

environment that he's in -- and others -- is just getting the

5

information in a place where he could give it, I guess.

6

clear that’s part of the ongoing intent.

7

information was to give that information.

8

that is -- and I know we have a -- well, I don't know if the

9

government really argued that with regards to Specification 16, if

And -- and some of that’s a byproduct of the

But it's

The intent to take that
And the best example of

10

that was ever given, but everything that was charged was given.

11

we don't have an example of information that was taken but then never

12

given.

13

fact that this is an ongoing course of action, that's one of the

14

initial steps to take it, but then it's always concluded with a

15

giving of the information.

So

And so from the defense's position that would support the

16

MJ:

17

CDC[MR COOMBS]:

All right.
Then, ma'am, the final category is the

18

Category III offenses where defense argues the relevant 641

19

Specifications of 8, 12 and 16 should be combined with the

20

Specifications of Charge III that coincide with them.

21

concedes that Specification 16 of Charge II should be combined with

22

Specification 4 of Charge III for sentencing.

23

or not Specification 8 of Charge II should be combined -- combined

11984

The government

They dispute whether

15567

1

with Specification 2 of Charge III, and whether or not Specification

2

12 of Charge II should be combined Specification 3 of Charge III.

3

The defense's position is the obtaining of the -- the DABs in

4

Specification 8 or the cables -- the purported cables from the Net-

5

Centric Diplomacy database in Specification 12 were both accomplished

6

by using the Wget program of Specification 2 and 3, and, therefore,

7

those two offenses should combine because that was the means in which

8

to obtain the information.

9

Campbell of an ongoing course of action; this was just simply the

10

first step in that to obtain the information -- to use the program

11

that the Court found was an unauthorized program.

12

MJ:

13

CDC[MR COOMBS]:

14

MJ:

15

TC[MAJ FEIN]:

16

MJ:

17

TC[MAJ FEIN]:

18

MJ:

19

TC[MAJ FEIN]:

All right.

Again, part of the same logic under

Thank you.
Thank you, Your Honor.

Government, will you go in the same approach ---Yes, ma’am.

---- the same order as the defense counsel?
If I may brief from counsel table.

Yes.
So, first, Your Honor, it is the defense's motion

20

to merge Specifications 4 and 6 of Charge II for findings, the CIDNE-

21

I and CIDNE -- SIGACTs from CIDNE-I and CIDNE-A -- thefts of those.

22
23

First and foremost, Your Honor, there’s a few
clarifications.

There’s no evidence, Your Honor, that -- that PFC

11985

15568

1

Manning -- in this court-martial, that PFC Manning burned on separate

2

CDs or on the same CD the SIGACTs before he removed them from the

3

SCIF.

4

presented is when the information was likely downloaded, and that's

5

in Prosecution Exhibit 116; that is the Stipulated of Expected

6

Testimony or the testimony of Mr. Patrick Hoeffel, which gives the

7

dates of when the information would have been pulled from the CIDNE

8

databases, both Tampa, for the Afghanistan, and Iraq database.

9

then it's the testimony that’s summed up in the -- today's

There’s no evidence one way or the other.

The only evidence

And

10

stipulation of expected testimony of when it was found in the SD card

11

-- when it would have been created on his personal computer.

12

there’s no evidence of when it was physically removed; just a no

13

later than date, which is 30 January, and no earlier than date, which

14

is ----

15

MJ:

But

Then does the government agree then the last written date,

16

I guess, basically doesn't make any difference because it could have

17

been last written anyway?

18

TC[MAJ FEIN]:

It could be last written -- well, one of two

19

places, Your Honor, either on the personal Mac or on the SIPR

20

computer.

21

anything else other than the last time the document was last edited -

22

- the two CS files.

23

here is that these two thefts, although they’re both thefts and they

But, yes, ma’am.

The last written date doesn't tell you

But the part, ma'am, that should not be lost

11986

15569

1

are both SIGACTs from CIDNE databases, occurred in completely

2

separate manners using different databases and -- and over different

3

periods of time.

4

First, the Court’s heard testimony that the CIDNE-A

5

database was downloaded from the Tampa server.

6

reach back to Tampa because he did not have physical access to the

7

one in Afghanistan.

8
9
10
11

MJ:

PFC Manning had to

Now that all assumes that I find that the intent steal was

present when these databases -- or these records were downloaded,
right?
TC[MAJ FEIN]:

What that’s -- that's correct, but it still goes

12

to how it was done and the timeframe.

13

Sheet, it’s a separate timeframe based off this evidence -- as it was

14

alleged.

15

the only time that information was accessed, and then you have the

16

CIDNE-I database, which are a few days later.

17

that reversed, Your Honor.

18

later -- three and a half days later, CIDNE-Afghanistan.

19

different times and information was finally pulled.

20

it was last written on one of the two computers at that time, and

21

then captured within that encrypted cabinet file.

22
23

So even on the on the Charge

So first that evidence goes to Tampa, the CENTAUR log show

I'm sorry.

I have

But CIDNE-I was first, and then four days
So

And then, yes,

Sort of jumping ahead, ma'am, but the United States does
agree that -- well, going to the next -- this would be Specifications

11987

15570

1
2
3

5 and 7 ---MJ:

Well, before we do that, in 5 and 7, you agreed that

they’re -- they should be considered as one for sentencing.

4

TC[MAJ FEIN]:

5

MJ:

6

TC[MAJ FEIN]:

Yes, Ma'am.

And you don't agree with that with Specifications 4 and 6.
Ma’am, the United States believes that these are

7

separate and distinct acts, because although they are focused on

8

transmission crimes versus a theft crime -- so the difference between

9

793 and 641, that both of these the start of the crime is the

10

unauthorized possession.

11

it's focused on the transmission.

12

argues for findings purposes, they’re separate and distinct acts.

13

But for sentencing purposes they should merge because they, of

14

course, the gravamen of the offense is transmission, and there -- it

15

is not in dispute that they were transmitted at the same time.

16
17

MJ:

That's when a 793 offense begin, although
So that's why the United States

Is the gravamen of the offense the transmission or the

transmission of particular pieces of classified information?

18

TC[MAJ FEIN]:

19

MJ:

20

TC[MAJ FEIN]:

Well, ma'am, it's transmission of particular --

National defense information.
National defense information someone who’s not

21

authorized to receive it, which is why for sentencing under --

22

purposes -- it seems it should merge because they were ultimately

23

received the time off it.

11988

15571

1

So, ma'am, then going to the UMC for sentencing.

First and

2

foremost, ma’am, the United States continues with its argument from

3

before, as the Court’s ruled in Appellate Exhibit 78, a theft crime

4

is just simply targeted to prevent thefts, transmission crimes to the

5

transmission, and the argument really hasn't changed there between

6

the 6 ----

7

MJ:

8

TC[MAJ FEIN]:

That was the findings, right, though?
It was for findings, ma’am.

And the United

9

States would argue that that’s no different for sentencing as well;

10

separate acts -- and the separate acts, Your Honor, that -- that are

11

focused on offenses that are serious in nature, each one

12

distinctively.

13

portions of a database -- the SIGACT databases, or the GTMO

14

databases, or the Net-Centric Diplomacy databases, and then it’s

15

transmission of only particular documents from there -- the -- more

16

than the number for each of those.

17

sentencing purposes that PFC Manning could have retreated after the

18

theft; could have chosen not to do that.

19

Specification 16.

20

intended to -- to -- although the government did argue that is MO was

21

intended to -- to transmit the GAL, but there’s no evidence of that,

22

nor has the government presented that evidence.

23

stopped, but chose not to, which is why it’s not exaggerated for

The 641 offense is looking at entire -- well,

There's no question that for

It goes back to

The government, only arguing, could say that he

11989

He could have

15572

1

sentencing that PFC Manning's criminal liability for sentencing

2

purposes be held greater.

3

Serious offenses he’s been convicted of, and serious offenses for

4

sentencing as well.

5
6
7
8
9
10

MJ:

These are serious offenses, Your Honor.

Now in a unreasonable multiplication of charges analysis,

does the seriousness of the offense come into play?
TC[MAJ FEIN]:

Well, ma’am, I think in -- in -- one moment,

please, ma’am.
[Pause]
TC[MAJ FEIN]:

The seriousness, ma’am, really comes in play to -

11

- first, it’s the second and third factors of the Quiroz factors as

12

applied by Campbell, so if it either misrepresents or exaggerates the

13

accused's misconduct, criminality -- excuse me, or if it unfairly

14

increases his punitive exposure.

15

seriousness, it's not unfairly creating more exposure for stealing a

16

significant portion of classified databases and then transmitting

17

some portion of those.

18

III offenses ----

19

MJ:

So when it is ultimately saying

And, ma’am, now specifically to the Charge

The government said Specification -- Specification 4 would

20

be unreasonable multiplication of charges of Specification 16, what's

21

the difference between that and the other two?

22
23

TC[MAJ FEIN]:

Well, ma'am, first and foremost, if I may first

talk about Specifications 2 and 3, it might help ----

11990

15573

1

MJ:

2

TC[MAJ FEIN]:

3

government's eyes.

4

essentially the same except for completely different dates and the

5

act of introduction of Wget, again, onto the computer; an

6

introduction crime regulatory violation, do not introduce

7

unauthorized software.

8

offense in Specification 12 is because the bypassing of security,

9

although in this case PFC Manning did use Wget, they are separate and

Okay.
---- explain the difference, at least from the
First off, Your Honor, Specification 2 and 3 are

The reason that does not merge with the 1030

10

distinct acts.

11

transmission, the other is bypassing ----

12
13
14

MJ:

One is introduction similar to theft analysis and

Well, wasn’t the introduction how he exceeded authorized

access?
TC[MAJ FEIN]:

That's one of the different ways, ma'am.

The

15

United States presented multiple theories of -- of how authorized

16

access was exceeded.

17

state server and go around the web page.

18

- so then, moving to ----

19
20

ATC[CPT MORROW]:

So, yes.

But, ma'am, for -

Actually, sorry, if I could interrupt Major

Fein here.

21

MJ:

22

ATC[CPT MORROW]:

23

But Wget allowed him to go onto the actual

Honor.

Yes.
Specification 12 is the 641 offense, Your

And so what Spec 3 of Charge III is aimed at is the

11991

15574

1

introduction of Wget that second time in May -- on May 4th, which was

2

the -- which the evidence shows that that was the download of the

3

last approximately 11,000 cables.

4

timeframe -- for that offense was Wget that was already on his

5

computer prior to May the 4th.

6

MJ:

7

ATC[CPT MORROW]:

Spec 12 is the use of Wget in that

Does that make sense, Your Honor?

I'm not sure.
He -- okay.

The evidence shows he

8

reintroduced Wget on May 4th, and that was for the last essentially

9

11,000 Department of State cables from March 1st and onward.

The

10

250,000 number relates to the purported cables that were released in

11

the public domain that go through February 28th, 2010.

12

prior to February 28th, 2010, can go forward.

13

was -- was to steal those cables -- those 250,000 cables was the Wget

14

file that was on the computer prior to May 4th.

15

sense, ma’am?

16

MJ:

17

ATC[CPT MORROW]:

Yeah.

So everything

And so the use of Wget

Does that make

So he reintroduced it?
Yes.

He reintroduced it on May 4th, stole

18

another 11,000 cables.

19

that was corrupted and not ultimately released in the public domain.

20
21

MJ:

All right.

And those cables were ultimately in a file

Is there anything else with respect to this

issue?

22

CDC[MR COOMBS]:

23

TC[MAJ FEIN]:

No, Your Honor.
No, Ma'am.

11992

15575

1

MJ:

All right.

We have two options; Option A is we can

2

reconvene later on this afternoon and I'll have a ruling for you.

3

I'm looking probably around 1700. Or, Option B, we can announce the

4

ruling tomorrow morning.

5
6

CDC[MR COOMBS]:
Your Honor.

7

TC[MAJ FEIN]:

8

MJ:

9

Option B would be fine with the defense,

All right.

We support that option as well, ma'am.
The other issue is the objections from the

defense on today's testimony and the government response to those.

10

I’d like to have no more than a day turn around on these issues

11

because we’re going to have them on a rolling basis.

12

them to me -- say 1800-ish, and you have your response back at 2000?

13

TC[MAJ FEIN]:

14

CDC[MR COOMBS]:

Can you have

If we get them, yes, ma'am.
Yes, we can, ma’am.

And we did object at

15

each of those points, so it won't be hard for us to put that

16

together.

17

here I'll type it up and get it to the government.

18

1800.

19

MJ:

So I can actually probably get it earlier.

Okay.

Once I leave

But definitely by

Then you can have government your response -- again,

20

I don't want any long legal briefs and analysis.

21

objection and here's basically the category of objection that I'm

22

doing.

23

Okay?

CDC[MR COOMBS]:

Yes, Your Honor.

11993

Just here's the

15576

1

MJ:

2

TC[MAJ FEIN]:

So what time do you want to start tomorrow?
I’m sorry, ma’am, real quick.

I thought

3

previously in your instructions that the portion you’ve read from

4

your findings -- your ruling, that you were going to develop those

5

categories.

So you want us to pin it, or do you want us to ----

6

MJ:

7

TC[MAJ FEIN]:

8

MJ:

I'm not developing categories.
Oh, okay, ma’am.

I didn't say that.

No, all I said was, you’ve outlined --

9

we have had the defense motion ready.

10

on how you think the case law applies.

11

analysis.

12

where the facts fit.

13

factually and why do you say that, and why you’re objecting to it.

14

And then, government, if you believe that the facts support

15

admissibility under R.C.M. 1001(b)(4), let me know what those facts

16

are.

17

you’ve both given it to me.

You -- and you both weighed in
So I don't need long legal

I think the case law is -- is set.

It's just a matter of

So I'm really looking at what are you saying

Like I said, I don't need a long dissertation on the law;

18

TC[MAJ FEIN]:

19

CDC[MR COOMBS]:

20

MJ:

21

TC[MAJ FEIN]:

22

MJ:

23

[Pause]

Yes, ma’am.
Yes, Your Honor.

What time tomorrow?
May we have a moment, Your Honor?

Yes.

11994

15577

1

CDC[MR COOMBS]:

2

MJ:

3

TC[MAJ FEIN]:

4

MJ:

10 o’clock, ma'am.

Ten o’clock?

All right.

Yes, ma’am.
Court is in recess then until 10 o’clock

5

tomorrow morning.

6

[The court-martial recessed at 1518, 5 August 2013.]

7

[END OF PAGE]

11995

15578

1

[The court-martial was called to order at 1001, 6 August 2013.]

2
3

MJ:

TC[MAJ FEIN]:

MJ:

All right, have we had any new appellate exhibits added to

the list.

8
9

Yes, ma’am, all parties when the court last

recessed are again present with the addition of Captain Overgaard.

6
7

Major Fein, please account for

the parties.

4
5

Court is called to order.

TC[MAJ FEIN]:

Yes, ma’am, there are a few.

First, Your Honor,

Appellate Exhibit 636 is the defense specific objection under R.C.M.

10

1001(b)(4) for the testimony of Under Secretary of State for

11

Management Patrick Kennedy, dated 5 August 2013.

12

as Appellate Exhibit 637 is the government’s response to the

13

defense’s objection to the R.C.M. 1001(b)(4) objection for Under

14

Secretary of State for Management Patrick Kennedy, dated 5 August

15

2013.

16

witness -- witness order list for sentencing, dated today, 6 August

17

2013.

18

What's been marked

What has been marked as Appellate Exhibit 638 is the defense

Also, Your Honor, as of 9:54 this morning there are seven

19

members of the media at the media operations center, there is one

20

stenographer, there are no media in the courtroom, and five

21

spectators in the courtroom.

22

present time the overflow trailer is not available based on the

23

generator issue, but that is being fixed, but with only five

Additionally, Your Honor, at the

11996

15579

1

spectators in the courtroom there’s enough space.

2

MJ:

Once again, before we begin, the parties and I held an

3

R.C.M. 802 conference before coming on the record today, that's a

4

conference where the parties and I discuss scheduling and other

5

logistics in the case.

6

list, and also advised that for OCONUS witnesses, you don't have any

7

objections if they're telephonically, is that correct?

And Mr. Coombs gave me the defense witness

8

CDC[MR. COOMBS]: That is correct, Your Honor.

9

MJ:

And, I assume the parties are coordinating to make sure any

10

such telephonic testimony is coordinated and ready to go at the

11

appropriate time?

12

TC[MAJ FEIN]:

Yes, ma'am.

Today the United States is going to

13

be reaching out to all the witnesses to get the most updated status

14

and start-up the movement, and we'll confirm who’s OCONUS, who’s not,

15

and who will be available -- won’t be -- and have them set that up.

16

MJ:

And, just again, a reminder to the government, I had asked

17

the government a couple of days ago just to ensure that they look at

18

the redacted M.R.E. 505(g) filings to ensure that the government has

19

assured the Court that they will not use anything that was redacted

20

in any of those filings in your sentencing case or in their case at

21

all.

22
23

TC[MAJ FEIN]:

Yes, ma'am.

That's an ongoing process, and the

United States intends to have it completed Friday with the last

11997

15580

1

witness to confirm that all the witnesses the government elicited

2

testimony to comply or comport with those filings.

3

MJ:

Is there anything else we need to address before the court

4

reads the two rulings I have ready to go.

5

motion to merge charges of unreasonable multiplication of charges for

6

findings and sentence.

7

appropriate relief under R.C.M. 1001(b)(4).

8

yesterday, not today, because yesterday I gave the procedures for

9

filings in the future.

One of them is the defense

And the other is the defense motion for
That ruling is dated

And I want to make sure the date is correct

10

because you basically will be following them today.

11

anything else we need to address?

12

CDC[MR. COOMBS]:

13

TC[MAJ FEIN]:

14

MJ:

15

Ruling:

Is there

No, Your Honor.

No, ma’am.
Defense Motion to Merge Charges as Unreasonable

Multiplication of Charges for Findings and Sentence:

16

On 30 July 2013, the Defense filed three motions to merge

17

specifications for unreasonable multiplication of charges (UMC) for

18

findings and sentence(Appellate Exhibit 626 through628) seeking the

19

following relief:

20

1. Merge Specifications 4 and 6 of Charge II for findings

21

because the stealing, purloining, or knowing conversion (SPKC)of both

22

the CIDNE-A CIDNE-I databases were one transaction.

11998

15581

1

Merge Specifications 5 and 7 of Charge II for findings

2

because the accused communicated the CIDNE-I, CIDNE-Iraq and CIDNE-A,

3

CIDNE-Afghanistan databases as one transaction.

4
5
6

3.

Merge the following categories of specifications for

sentencing:
a.

Article l34 (18 U.S.C. Section 641) with Article l34

7

(18 United States Code, Section 793(e)) and Article l34 (18 United

8

States Code, Section 1030(a)(1)) offenses as the SPKC and

9

communication involve the same databases:

10

(1) Specifications 4 and 5 of Charge II:

the CIDNE-I

11

database containing more than 380,000 records belong to the United

12

States government and Specifications 6 and 7 of Charge II:

13

CIDNE-A database containing more than 90,000 records belonging to the

14

United States government;

15

(2) Specifications 8 and 9 of Charge II:

the

the United States

16

Southern Command database containing more than 700 records belonging

17

to the United States Government;

18

(3) Specifications 12 and 13 of Charge II the Department of

19

State Net-Centric Diplomacy (NCD)database containing more than

20

250,000 records belonging to the United States Government; and

21
22

b.

Article l34 (18 United States Code, Section 641; and 18

United States Code, Section 1030(a)(1)) and Article 92:

11999

15582

1

(1) Specification 8 of Charge II the United States

2

Southern Command database and Specification 2 of Charge III involving

3

a violation of a lawful general regulation by adding unauthorized

4

software to a Secret Internet Protocol Router Network computer;

5

(2) Specification 12 of Charge II:

the Department of State

6

Net-Centric Diplomacy database and Specification 3 of Charge III

7

involving a violation of a lawful general regulation by adding

8

unauthorized software to a Secret Internet Protocol Router Network

9

computer;

10

(3) Specification 16 of Charge II involving a portion of

11

the United States Forces-Iraq Microsoft Outlook/Sharepoint Exchange

12

Server Global Address List belonging to the United States government

13

and Specification 4 of Charge III involving a violation of a lawful

14

general regulation by using an information system in a manner other

15

than its intended purpose.

16

Just for the record, I do notice a typo in here that I will

17

correct.

18

Section 1030(a)(1) offenses.

19

This category (b) does not involve 18 United States Code,

On l August 2013, the Government filed a response to each

20

of the three defense motions (Appellate Exhibits 632 to 634) opposing

21

the Defense motions except for the Motion to consider specifications

22

5 and 7 of Charge II as Unreasonable Multiplication of Charges for

12000

15583

1

sentencing and Specification 4 of Charge III as UMC for sentencing

2

with Specification 16 of Charge II

3

The Law

4

1.

The military recognizes the concepts of UMC for

5

findings and UMC for sentencing.

6

the court in determining whether offenses area UMC for findings or

7

sentence include whether:

8

at distinctly separate criminal acts; (2) the number of charges and

9

specifications misrepresent or exaggerate the accused's criminality;

Nonexclusive factors considered by

(1) each charge and specification is aimed

10

(3) the number of charges and specifications unreasonably increases

11

the accused's punitive exposure; and (4) there is any evidence of

12

prosecutorial overreaching or abuse in the drafting of charges,

13

United States versus Quiroz, 55 M.J. 334 (Court of Appeals for the

14

Armed Forces, 2001)

15

2.

Charges that are not a UMC for findings may be UMC for

16

sentencing where the nature of the harm requires a remedy that

17

focuses more appropriately on punishment, United States versus

18

Campbell, 71 M.J. 19 (Court of Appeals for the Armed Forces, 2012)

19

3.

Successive withdrawals off funds from different

20

accounts through stolen automatic teller machine cards are separate

21

offenses even if the withdrawals occurred at substantially the same

22

time and place, United States versus Aquino, 20 M.J. 712 (Army Court

12001

15584

1

of Military Review, 1985); see also United States versus Kulathungam,

2

1999 West Law 35021445 (Army Court of Criminal Appeals, 1999)

3

Conclusions of Law

4

UMC for findings-merge Specifications 4 and 6 of Charge II

5

and Specifications 5 and 7 of Charge II.

6

1.

Specifications 4 and 6 of Charge II.

PFC Manning had

7

the specific intent to deprive the Government of the use and benefit

8

of the records at the time he extracted the CIDNE-I SIGACTs on or

9

about 3 January 2010.

PFC Manning had the specific intent to deprive

10

the Government of the use and benefit of the records at the time he

11

extracted the CIDNE-A SIGACTs, on or about 7 January 2010.

12

does not find that PFC Manning stole and purloined the CIDNE-I and

13

CIDNE-A SIGACTs on the same day.

14

stealing and purloining of the CIDNE-I and CIDNE-A SIGACTs occurred

15

on the same day, the logic of Aquino and Kulathungam is persuasive.

16

As in these cases, PFC Manning had to access separate databases to

17

extract the CIDNE-I and CODNE-A SIGACTs.

18

access/extractions that constitute separate and distinct 18 United

19

States Code, Section 641/Article 134 offenses for findings under the

20

first Quiroz factor.

21

PFC Manning's criminality or unreasonably increase his punitive

22

exposure.

The Court

Even if the Court did find that the

These were successive

The charges do not misrepresent or exaggerate

There is no evidence of prosecutorial overreaching.

12002

15585

1

The Defense motion to merge Specifications 4 and 6 of Charge II for

2

findings is denied.

3

Specifications 5 and 7 of Charge II.

4

(a) The parties agree that PFC Manning transmitted the

5

ClDNE-1 and CIDNE-A records on the same day.

6

United States Code, Section 793(e)/Article 134 offenses in

7

Specifications 5 and 7 of Charge II, is the willful transmission of

8

national defense information to a person not authorized to receive

9

it.

The gravamen of the l8

Specification 5 of Charge II charges the willful transmission of

10

the portion of CIDNE-I database containing more than 380,000 records

11

belong to the United States government.

12

charges the willful transmission of the portion of the CIDNE-A

13

database containing more than 90,000 records belonging to the United

14

States Government.

15

information.

16

United States Code, Section 793(e)/Article 134, UCMJ under the first

17

Quiroz factor.

18

the same time or simultaneously is irrelevant for unreasonable

19

multiplication of findings analysis.

20

defense information transmitted from both the CIDNE-I and CIDNE-A

21

databases in two separate specifications does not misrepresent or

22

exaggerate PFC Manning's criminality or unreasonably increase his

23

punitive exposure.

Specification 7 of Charge II

These are separate matters of national defense

The transmission of each constitutes a violation of 18

The fact that the transmissions may have occurred at

Charging the volume of national

The prosecution has not over-reached in charging

12003

15586

1

PFC Manning as it has in Specifications 5 and 7 of Charge II.

2

Considering all of the Quiroz factors, the Court does not find

3

Specifications 5 and 7 of Charge II a UMC for findings.

4

motion to merge these offenses for findings is denied.

5

(b) The Government does not object to the Court treating

6

these offenses as one for sentencing.

7

Specifications 5 and 7 as a UMC for sentencing.

8
9

The Defense

As such, the Court will treat

UMC for sentencing-merge Specifications 4, 5, 6, and 7 of
Charge II, Specifications 8 and 9 of Charge II, Specifications 12 and

10

13 of Charge II, and Specifications 2, 3, and 4 of Charge III, with

11

Specifications 8, 12, and l6 of Charge II respectively.

12
13
14

The Quiroz factors apply differently to determining whether
there is a UMC for findings and for sentencing.
(a)

The Government concedes that Specification 4 of Charge

15

III is UMC for sentencing with Specification 16 of Charge II.

16

this case, PFC Manning committed the Article 92 violations in

17

Specifications 2 and 3 of Charge III as part of a connected chain of

18

events involving the SPKC offenses in Specifications 8 and 12 of

19

Charge II, respectively.

20

the Quiroz factors and finds each pair of specifications

21

(Specification 2 of Charge III/Specification 8 of Charge II;

22

Specification 3 of Charge III/Specification 12 of Charge II;

23

Specification 4 of Charge III/Specification 16 of Charge II) a UMC

In

For sentencing purpose, the Court applied

12004

15587

1

for sentencing.

2

multiplication of charges for all three of the 641 violations, even

3

though I didn’t say that very articulately.

4

(b)

So, all three of the 92 violations are unreasonable

With respect to United States Code, Section

5

641/Article 134 offenses in Specifications 4, 6, 8, and 12 of Charge

6

II and the 18 United States Code, Section 793(e)/Article l34 offenses

7

in Specifications 5, 7, and 9 of Charge II and the 18 United States

8

Code, Section 1030(a)(1)/Article 134 offense in Specification 13 of

9

Charge II, the Court finds that the l8 United States Code, Section

10

793(e)/Article l34 and the 18 United States Code, Section

11

1030(a)(1)/Article l34 transmission offense involve the same or a

12

subset of the records that formed the res of the 18 United States

13

Code, Section 641/Article 134 SPKC offenses.

14

Appellate Exhibit 78 that these specifications were not an

15

unreasonable multiplication of charges for findings.

16

unique facts of this case, the Court applies the Quiroz factors and

17

finds that punishing Specifications 4, 6, 8, and 12 of Charge II

18

separately from Specifications 5, 7, 9, and 13, respectively, of

19

Charge II unreasonably increases PFC Manning's punitive exposure.

20

such, the Court will treat each pair of specifications, 4 and 5 of

21

Charge 11; 6 and 7 of Charge II, 8 and 9 of Charge II, and 12 and l3

22

of Charge II as one for sentencing purposes.

12005

The Court ruled in

Under the

As

These offenses are not

15588

1

a UMC for findings, thus merger of the offenses is not appropriate.

2

Each specification remains as a stand-alone offense for findings.

3

(c) The Government concedes that Specifications 5 and 7 of

4

Charge II are UMC for sentencing, however, applying the Quiros

5

factors, the Court finds that Specifications 4 and 6 of Charge II are

6

aimed at distinctly separate criminal acts and the Government has not

7

over-reached or exaggerated PFC Manning's criminality or unfairly

8

increased his punitive exposure.

9

are not a UMC for sentencing.

Specifications 4 and 6 of Charge II

Specifications 5 and 7 of Charge II

10

are UMC for sentencing with Specifications 4 and 6 of Charge II,

11

respectively.

12

specifications does not exaggerate the accused's punitive sentencing

13

exposure.

14

The resulting 20-year maximum sentence for all four

Ruling:

15

The Court Motion -- The Defense Motions to Merge

16

Specifications for Unreasonable Multiplication of Charges for

17

findings and sentence is GRANTED INPART.

18

following pairs of specifications as one each for sentencing

19

purposes:

20
21

1.

Specification 2 of Charge III with Specification 8 of

Charge II;

22
23

The Court will treat the

Specification 3 of Charge III with Specification 12 of
Charge II;

12006

15589

1
2

Specification 4 of Charge III with Specification 16 of
Charge II;

3
4

(4)
Charge 11;

5
6

5.

6. Specification 8 of Charge II with Specification 9 of
Charge II;

9
10

7.

The Court's ruling reduces the maximum confinement that
may be imposed from 136 years to 90 years.

13
14

Specification 12 of Charge II with Specification 13 of

Charge II.

11
12

Specification 6 of Charge II with Specification 7 of

Charge II;

7
8

Specification 4 of Charge II with Specification 5 of

And the Court asked the parties to verify the Court’s math,
but that is what I concluded.

15

CDC[MR. COOMBS]:

16

TC[MAJ FEIN]:

17

MJ:

The defense concurs, Your Honor.

Yes, ma’am.

And that will be added as the next appellate exhibit in

18

line.

19

to correct the typo.

20

[The document was marked Appellate Exhibit 640.]

21
22

I will give it to the court reporter now and retrieve it later

MJ:

All right.

Ruling for the Defense Motion for Appropriate

Relief under R.C.M. 1001(b)(4).

12007

15590

1

On 31 July 2013, the Defense filed a motion to limit the

2

Government's aggravation evidence to its proper scope under R.C.M.

3

1001(b)(4)(Appellate Exhibit 629).

4

to three categories of Government Sentencing evidence:

5
6

1.

Specifically, the Defense objects

Chain of Events Testimony not directly related to the

accused's charged misconduct;

7

2.

"Could" Cause Damage Testimony; and

8

3.

Monetary Expenses and Use of Resources Testimony

9

On 2 August 2013, the Government filed a response in

10

opposition (Appellate Exhibit 630).

11

The Law:

12

1.

The Government may present evidence as to any

13

aggravating circumstance directly related to or resulting from the

14

offenses of which the accused has been found guilty.

15

aggravation includes, but is not limited to, evidence of financial,

16

social, psychological, and medical impact on or cost to any person or

17

entity who was the victim of an offense committed by the accused and

18

evidence of significant adverse impact on the mission, discipline, or

19

efficiency of the command directly and immediately resulting from the

20

accused's offense -- offenses.

21

in relevant part.

22
23

2.

Evidence in

R.C.M. 1001(b)(4) -- I’m sorry (d)(2)

The standard for admission of aggravating evidence

under R.C.M. 1001(b)(4) -- Am I looking at (2) or (4)?

12008

(b)(4),

15591

1

excuse me, is higher than relevance.

2

aggravating evidence under R.C.M. 1001(b)(4)is higher than relevance.

3

The offenses committed by the accused must have contributed to the

4

effects that the Government proposes as aggravation.

5

offenses must play a material role in bringing about the effects.

6

The aggravation evidence is not admissible if an independent,

7

intervening event played the only important part in bringing about

8

the effect.

9

of causes and effects. United States versus Rust, 41 M.J. 472 at 478

10
11

The standard for admission of

The accused's

An accused is not responsible for a never ending chain

(Court of Appeals for the Armed Forces 1995).
3.

If the Court decides that evidence is proper

12

aggravation evidence under R.C.M. 1001(b)(4), the Court then

13

determines whether the probative value of the aggravation evidence is

14

substantially outweighed by the danger of unfair prejudice under

15

M.R.E. 403, United States versus Martin, 20 M.J. 227 (Court of

16

Appeals for the Armed Forces 1985).

17

4.

The administrative burden of investigating or

18

prosecuting the accused or the burden of the court-martial process on

19

the unit or the military is not admissible aggravating evidence under

20

R.C.M. 1001(b)(4) 60 MJ 795, United States versus Stapp, 60 M.J. 795,

21

(Army Court of Criminal Appeals, 2004), affirmed 64 M.J. 179 (Court

22

of Appeals for the Armed Forces, 2006).

23

Conclusions of Law Generally:

12009

15592

1

1.

Determinations of whether evidence offered in

2

aggravation is directly related to or resulting from the offenses of

3

which the accused has been found guilty and whether aggravation

4

evidence of significant adverse impact on the mission, discipline, or

5

efficiency of the command is a direct and immediate result from the

6

accused's offenses are fact specific inquiries.

7

offenses that the accused has been convicted of and the amount of

8

time necessary for aggravating circumstances relating directly to or

9

resulting from his offenses to manifest themselves are appropriate

10
11

The nature of the

considerations for these inquiries.
2.

R.C.M. 1001(b)(4) sets forth examples of permissible

12

aggravating evidence.

13

adverse impact to the United States government and any United States

14

agency or mission that has been directly affected by the accused's

15

offenses or by WikiLeaks disclosures of the information communicated

16

to them by the accused.

17

3.

In this case aggravating evidence may include

Risk of damage or harm to the national security of the

18

United States and any United States agency or mission that directly

19

relates to or results from the accused's offenses or WikiLeaks

20

disclosures of the information communicated by the accused is proper

21

aggravation evidence under R.C.M. 1001(b)(4).

22

Monetary Expense and Use of Resources Testimony:

12010

15593

1

1.

Steps taken by the United States government, and

2

agencies therein, to mitigate potential damage caused by public

3

dissemination of information given to WikiLeaks by the accused is

4

proper aggravation.

5

these mitigation steps is directly related to the accused's offenses

6

and is admissible aggravation evidence under R.C.M. 1004(b)(4).

7

2.

The resources and costs associated with taking

The Court has received aggravation evidence involving

8

the Information Review Task Force (IRTF) and the Department of State

9

Persons at Risk working group.

The IRTF was established via the 5

10

August 2010, order by then Secretary of Defense, Robert Gates (AE

11

631).

12

damage caused by the accused's offenses.

13

related to investigating the accused's misconduct or the

14

administrative burden of the court-martial process.

15

established to assess damage to the United States and is independent

16

of any decision to investigate or prosecute the accused.

17

the Department of State Persons at Risk working group was formed to

18

determine whether there were identifiable persons at risk of violence

19

committed against them or incarceration based on the WikiLeaks

20

disclosures of purported Department of State cables provided to them

21

by the accused.

22

or prosecution of the accused.

All of the bulleted taskings in the order involve assessing
This is not evidence

The IRTF was

Similarly,

This group had nothing to do with the investigation

12011

15594

1

3.

Testimony received from Brigadier General (Retired)

2

Carr and Mr. Kirchhofer regarding the creation of the IRTF, its

3

mission and resourcing, and how it functioned is proper aggravation

4

evidence under R.C.M. 1001(b)(4).

5

Ambassador Kozak regarding the creation of the Department of State

6

Persons at Risk working group, its mission and resourcing, and how it

7

functioned is also proper aggravation evidence.

8

Chain of Events Testimony”

9

1.

The testimony received from

The Court agrees that there comes a point at which

10

there have been so many additional intervening events or links in the

11

chain between the accused's offenses and the ensuing risk or harm

12

that the ensuing risk or harm is no longer directly related to or a

13

direct result of the accused's offenses, United States versus Rust,

14

41 M.J. 472 at 478 (Court of Appeals for the Armed Forces, 1995).

15

However, the fact that there has been an intervening event or

16

decision does not automatically absolve the accused from

17

responsibility if his offenses played a material role in creating the

18

risk of damage or harm or contributed in causing the ensuing risk or

19

harm, United States versus Lawson, 33 M.J.946 at 959 and 960 (Navy

20

Marine, Court of Appeals, l991), affirmed, 36 M.J. 414, (Court of

21

Appeals for the Armed Forces 1993).

22

played the only important role in causing a risk or harm is a case

23

specific factual determination.

12012

Whether intervening events

15595

1

2.

Both the IRTF and the DOS Persons at Risk group were

2

created to assess what damage occurred from the accused's offenses

3

and what mitigation measures were necessary to address that damage.

4

The testimony by Brigadier [sic](Retired) Carr, Mr. Kirchhofer, and

5

Ambassador Kozak regarding the findings of the IRTF and the

6

Department of States Persons at Risk group and the steps taken by

7

these entities to mitigate the risk of damage and actual damage

8

identified in the findings is a direct result of the accused's

9

offenses and is proper aggravation evidence.

The decision by

10

Secretary Gates to establish the IRTF and any similar decision made

11

by Department of State to establish the Persons at Risk group were

12

not intervening causes that changed the resulting risk of damage or

13

actual damage caused by the accused's misconduct

14

3.

The Court considered the testimony in closed session

15

given by Principle Deputy Assistant Secretaries (PDAS) Dibble and

16

Feeley.

17

examples of harm caused as a direct result of the accused's offenses

18

that occurred shortly after the publication of particular purported

19

cables released by WikiLeaks.

20

officials in the aftermath of publication did not constitute an

21

intervening cause that played the only important role in causing the

22

harm.

23

WikiLeaks directly resulted in the decisions made by the foreign

The Court finds that their testimony provided concrete

The decisions made by foreign

The actions of the accused leading to the disclosures by

12013

15596

1

officials as set forth in the testimony.

2

Dibble and PDAS Feeley is proper aggravation under R.C.M. 1001(b)(4)

3

4.

The testimony of PDAS

Ms. Swart's testimony centered around the evolution of

4

the DOS Net-Centric Diplomacy (NCD)Database and the impact of the

5

accused's misconduct on interagency access to NCD.

6

her testimony involves impact directly resulting from the accused's

7

misconduct.

8

1001(b)(4).

9
10

The Court finds

It is admissible aggravation evidence under R.C.M.

Could Cause Damage Testimony
1.

This is really the same thing as risk of damage or

11

harm to the United States which the Court finds is admissible

12

aggravation evidence provided the risk of damage or harm directly

13

relates to or results from the accused's offenses. This determination

14

is also a fact specific determination for each witness or exhibit

15

proffered by the Government.

16

2.

Brigadier General (Retired) Carr and Mr. Kirchhofer's

17

testimony regarding the IRTF's resourcing, missions, and operations

18

is proper aggravation evidence under R.C.M. 1001(b)(4).

19

3.

Brigadier General (Retired) Carr's testimony regarding

20

how the IRTF identified a need to warn families of Soldiers with

21

medical data that the information might be released by WikiLeaks is

22

proper aggravation evidence, however, the Court will disregard his

23

speculation that families may have to relive tragic events if the

12014

15597

1

information was released.

2

General (Retired) Carr's testimony regarding the Taliban killing.

3

4.

The Court will also disregard Brigadier

Brigadier General (Retired) Carr's testified that

4

WikiLeaks' publication of over 90,000 CIDNE-A SIGACTs and over

5

380,000 CIDNE-I SIGACTs given to WikiLeaks by the accused disclosed

6

TTPs, human sources, and other information that, taken collectively,

7

reveal show the United States conducts operations and shows what

8

information the United States know or didn't know at the time.

9

risks to national security caused by disclosure of information given

10

to WikiLeaks by the accused is proper aggravation evidence because it

11

is evidence of risk created as a direct result of the accused's

12

offenses.

13

5.

These

Brigadier General (Retired) Carr's expert testimony

14

regarding degradation in information sharing with the United States

15

and between the United States and foreign partners and coalition

16

forces is proper aggravation evidence because the degradation in

17

information sharing was a direct result of the accused's offenses.

18

6.

Ambassador Kozak was properly qualified as an expert in

19

United States efforts to foster democracy abroad and human rights

20

concerns.

21

continue to cause, a chilling effect on people making them afraid to

22

come forward and foster democracy abroad and human rights concerns is

He opined that the accused's offenses caused, and will

12015

15598

1

speculative and inadmissible aggravation evidence.

2

disregard it.

The Court will

3

Military Rule of Evidence 403 analysis:

4

Brigadier General (Retired) Carr, Mr. Kirchhofer, Ms.

5

Dibble, Mr. Feeley, Ms. Swart and Ambassador Kozak were properly

6

accepted as experts.

7

substantially outweighed by the danger of prejudice under M.R.E. 403.

8

This is a judge alone trial the Court will confine its consideration

9

of any hearsay admitted through these witnesses to its proper purpose

10

The probative value of their testimony is not

of evaluating the expert's opinion in accordance with M.R.E. 703.

11

Conclusions of Law - Procedure Forwards:

12

I read those yesterday so I don’t intend to repeat that.

13

And we are now following the procedure where after each witness

14

testified, during the course of the testimony the defense will lodge

15

their objections.

16

particularized objections.

17

know their position, and will come out with a ruling witness by

18

witness, testimony by testimony.

19

address with either of these two motions?

Afterwards, the defense will give the Court
The government will then let the Court

Is there anything else we need to

20

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

21

TC[MAJ FEIN]:

22

MJ:

23

No, ma'am.

All right, do we need a recess before we call the witness

or are we ready to go?

12016

15599

1

TC[MAJ FEIN]:

2

ATC[CPT MORROW]: The United States calls Major General Michael

We're ready, ma’am.

3

Nagata.

4

MAJOR GENERAL MICHAEL NAGATA, U.S. Army, was called as a witness for

5

the prosecution, was sworn, and testified as follows:

6
7
8
9
10

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

Sir, you are Major General Michael Nagata, Commander,

United States Special Operations Command Central, MacDill Air Force
Base, Florida?

11

A.

That's correct.

12

Q.

And, sir, when did you assume command of, I'm going to say

13

U.S. SOCCENT?

14

A.

I took command approximately five weeks ago.

15

Q.

So June 2013?

16

A.

That's correct.

17

Q.

And, sir, describe your duties as the Commander?

18

A.

As the Commander of SOCCENT, I command the special

19

operations forces assigned to U.S. Central Command, and I am

20

responsible to the Commander of SOCCENT for conducting special

21

operations activities that support his campaign goals and objectives.

22

Q.

And does that include all the services, sir?

23

A.

It does.

It is a joint command, so I have representatives

12017

15600

1

from all the services.

2
3
4
5
6

Q.

And, sir, if you would just briefly describe the region of

Central Command?
A.

Central Command encompasses countries that range from the

7

Middle East, to the Central Asian states, to what we generally refer

8

to as South Asia, including Pakistan.

9
10
11
12
13
14

Q.

And, sir, where were you assigned prior to taking command

of U.S. SOCCENT?
A.

Prior to my command tenure now, I spent approximately 18

months as an officer on the Joint Staff in the Pentagon.
Q.

And, sir, what were you doing on the Joint Staff?

your portfolio so to speak?

15

A.

16

Joint Staff.

17

operations directorate.

18

director for special operations and counterterrorism.

19
20
21

What was

Q.

I was a member of the J-3 operations directorate of the
In that capacity, I was a deputy director within the
My specific function was entitled the deputy

And, sir, who did -- I assume you provided advice to the J-

3, who else were you providing advice to in that capacity?
A.

In that capacity, I provided my military advice about two

22

subjects; special operations and counterterrorism, to the J-3 of the

23

Joint Staff, the vice chairman, and the chairman -- of the Chairman

12018

15601

1
2
3
4

of the Joint Staff.
Q.

And, sir, in that position what were your day-to-day

responsibilities generally?
A.

My day-to-day responsibilities generally involve two

5

functions.

6

advice to those three senior officials.

7

day matter on all plans, policies, directives, and orders that

8

affected or that were connected with the employment of special

9

operations and counterterrorist capabilities in the department.

10
11
12

Q.

One, as I just referenced, was providing my best military
I also worked on a day-to-

Sir, in layman's terms, what is the difference between

special operations and general purpose force operations?
A.

Special operations forces are drawn from all the services

13

of the United States military.

14

organized and equipped to conduct specific missions that are

15

associated with the legislation that created U.S. Special Operations

16

Command in the late 1980s.

17

counterterrorism, foreign internal defense, unconventional warfare,

18

special recognizance.

19

elements, small teams, with unique military capabilities that

20

sometimes operate behind enemy lines, almost always operate in high

21

risk areas for the purposes of achieving military goals.

22
23

Q.

And they are specifically trained,

These are a mission such as

As a general rule these involve small

And, sir, if you would just describe what you mean by

foreign internal defense and special operations forces roles in that?

12019

15602

1

A.

Foreign internal defense is not exclusively the domain of

2

special operations forces, but it is something that special

3

operations forces conduct around the world in order to facilitate the

4

creation of improved military capabilities and capacity within those

5

nations that are allies or partners of the United States.

6
7

Q.

And, sir, prior to assuming your position on the Joint

Staff, where were you assigned?

8

A.

9

of Pakistan.

10

Prior to reporting to the Joint Staff, I was in the country
I was the Deputy Chief or Deputy Commander of the

Office of the Defense Representative to Pakistan.

11

Q.

And how long were you in that position, sir?

12

A.

I was in that position for 26 months.

13

Q.

July 2009 to September 2011, approximately?

14

A.

That is correct.

15

Q.

And, sir, I'm going to use the acronym ODRP from here on

16

out to refer to the Office of Defense Representative Pakistan.

17

that okay?

Is

18

A.

Yes.

19

Q.

Sir, are you here today to discuss your observations and

20

experiences while assigned as the Deputy Chief for Operations ODRP

21

Pakistan from 2009 to 2011?

22

A.

I am.

23

Q.

And, sir, before we discuss that specific topic, sir, I'd

12020

15603

1

like to just talk briefly about your career.

2

Army?

When did you join the

3

A.

I joined the Army in 1981.

4

Q.

And you were initially enlisted, sir?

5

A.

I was.

6

Q.

And when were you commissioned?

7

A.

I was commissioned in 1982.

8

Q.

What was your branch?

9

A.

I was infantry officer initially.

10

Q.

And I assume you received the standard training for an

11

infantry officer?

12

A.

I did, indeed.

13

Q.

And, sir, when did you switch over to the Special Forces

14
15

community?
A.

I volunteered for and attended the Army’s Special Forces

16

Qualification course in 1984.

17

operations field since that time.

18

Q.

And I've remained in the special

And, sir, if you would, can you just describe generally

19

sort of the types of jobs you've had in the Special Forces field or

20

community?

21

A.

Certainly.

I have spent a great deal of my career,

22

subsequent to 1984, in special forces -- Army special forces units of

23

various types, predominantly the 1st Special Forces Group

12021

15604

1

headquartered in Fort Lewis, Washington.

2

that is forward deployed to Okinawa; has for many years.

3

in all the battalions of the 1st Special Forces Group.

4

as a detachment commander, a company executive officer, a battalion

5

executive officer, and I was also the group operations officer in the

6

1990s.

7

assignments; special operations organizations and activities that

8

conduct classified military operations.

9

purposes I alluded to earlier, to achieve combatant command goals and

10
11
12
13
14
15
16

It also has a battalion
I’ve served

I’ve served

I have also spent a great deal of my career in classified

But, again, for the same

objectives.
Q.

And, sir, did you have command positions in those special

mission units?
A.

I did indeed.

I served at command levels as both a major,

a lieutenant colonel, and a colonel.
Q.

Sir, just for background, the 1st Special Forces Group is

focused mainly on the Asia region?

17

A.

That is correct.

18

Q.

And, sir, and sort of that time period, did you have any

19

special schooling -- not special schooling, but did you attend the

20

National War College or any other additional civilian education or

21

military education?

22
23

A.

I did.

I had professional military education at virtually

every rank as is prescribed in the Army professional -- professional

12022

15605

1

development process.

2

unique courses, training programs, and educational programs.

3

Q.

I also attended a number of special operations

And, sir, what about sort of nontraditional jobs?

For

4

example, have you worked at the Pentagon in sort of a policy capacity

5

or something similar?

6

A.

I have.

I think the two most significant jobs that I had

7

that took me out of the core special operations career path were in

8

2003 to 2005, I was a -- I was a staff officer in the Office of the

9

Secretary of Defense.

Specifically, I worked for the Under Secretary

10

of Defense for Intelligence.

11

an agency -- another agency of the government where I conducted a

12

classified assignment.

13

Q.

I also spent a tour of duty detailed to

And, sir, when you were the -- working for the Under

14

Secretary of Defense for Intelligence, what was your position or

15

responsibilities or even your portfolio in that position?

16

A.

My portfolio generally contained two broad compartments.

17

The first one was that I advise the Under Secretary and his senior

18

staff about activities where the functions and personnel and

19

capabilities involved in military intelligence were integrated with

20

the activities of special operations forces.

21

responsibility I had is I was the prin -- I was the lead officer in

22

the Under Secretary staff for a major effort to reform military

23

intelligence practices in the department.

12023

The second major

15606

1
2
3
4
5
6

Q.

And, sir, during your career, approximately how many

deployments have you, how many times have you deployed?
A.

I don't have a precise number.

My guess is I have well

over two dozen deployments overseas.
Q.

And did those deployments include deployments to Central

Asia and Pakistan as well?

7

A.

They did.

8

Q.

Sir, I want to go back to your work as the Deputy Chief for

9

Operations at the ODRP.

Again, you were in that position for 26

10

months?

11

A.

That's correct.

12

Q.

And was it unusual to be assigned to that job for longer

13
14

than a year or up to 26 months?
A.

Yes, it was unusual.

I was originally informed that my

15

assignment would be a year-long deployment.

16

Pakistan and understanding the scope, scale, and difficulty of the

17

mission we had there, I volunteered to extend, and I ended up staying

18

for 26 months.

19
20
21

Q.

After arriving in

And where -- where were you physically located or assigned

while you were working at the ODRP?
A.

I was physically located at the U.S. Embassy, which is

22

within the diplomatic enclave of the capital city of Islamabad.

23

Headquarters of ODRP and my commander, Vice Admiral Mike LeFever,

12024

The

15607

1
2
3
4

were all co-located together at the U.S. Embassy.
Q.

And, sir, I don't think we have discussed this yet, but

what is the mission of the ODRP?
A.

The mission of the ODRP had three broad components.

One

5

was to represent the United States military as part of the U.S.

6

country team or U.S. Embassy there in Islamabad.

7

-- in all embassies there's some form of military component because

8

there are also mil-to-mil or military-to-military relationships with

9

host nations.

That was one.

Obviously there is

Number two, we had a security

10

assistance program with the Pakistan military, which is a fairly

11

routine practice out of many of the embassies around the world

12

wherein we provide assistance to the host nation's military.

13

then we also had a specific counter-insurgency support mission that

14

we were doing under military combatant command authorities whereby we

15

were providing training, advice, and assistance to those Pakistan

16

military organizations that were conducting combat operations against

17

violent extremist organizations that threatened the Pakistani state.

18
19
20

Q.

And

And, sir, do we have comparable offices to the ODRP in

other countries?
A.

We do.

Not all of them have the same kind of name.

Often

21

they're named -- they’re called Offices of Military Cooperation or

22

Defense Attaché Offices.

23

What probably made ODRP a little unusual was the scope and scale of

We had all those functions within ODRP.

12025

15608

1

our activities because the relationship with Pakistan had developed

2

to the point that we were providing significantly greater quantities

3

of all three of the functions that I just described than we would in

4

most countries that people are generally familiar with.

5

Q.

And, sir, what is it about our relationship with Pakistan

6

that resulted in the decision to set up the ODRP there?

7

describe that process?

8
9

A.

I can.

Can you

There -- there had been a Defense Attaché Office --

some form of a security cooperation office there for years.

But the

10

coalescing of ODRP, as the organization that I have just described,

11

did not occur until approximately early 2009, when the Central

12

Command Commander decided that we needed a much more robust

13

organization that was specifically tailored to directly support the

14

Pakistan military that had begun significant combat operation --

15

operations against violent extremist organizations, specifically

16

Taliban forces that existed in the border areas between Afghanistan

17

and Pakistan.

18

the coalition forces, ISAF, and Afghans were fighting in Afghanistan.

19

So the CENTCOM Commander decided that it was in CENTCOM's interest,

20

it was in the nation's interest, and in the Pakistani's interest as

21

well, to support them more aggressively and more strongly in their

22

military operations against the Taliban.

23

Q.

Obviously these were the same kinds of enemies that

And, sir, you mentioned that the -- the Chief or the

12026

15609

1

Commander of ODRP was Vice Admiral -- Vice Admiral LeFever?

2

A.

That's correct.

3

Q.

Did Vice Admiral LeFever have a background in special

4
5

operations?
A.

He did not.

Vice Admiral LeFever is a surface warfare

6

officer of the United States Navy.

7

assigned to the ODRP was because we had a growing special operations

8

presence in Pakistan, which the Pakistan military had requested, and

9

I was sent there to provide a -- to provide the benefit of my own

10
11

One of the reasons that I was

experience, my own affiliation with the special operations community.
Q.

And, sir, how did your duties as the Deputy Chief or Deputy

12

Commander of ODRP differ from what your boss was doing day-to-day or

13

how did they overlap?

14

A.

They overlapped significantly.

As his Deputy Commander,

15

obviously I would have the responsibility one would normally

16

associate with a deputy commander.

17

responsible for the functions of the organization.

18

all of his various advisory staff and command functions.

19

just alluded to, because I come from the special operations

20

community, what he asked me to do was focus on the application of

21

special operations forces, special operations capabilities that were

22

supporting the Pakistan military and their combat operation.

23

Q.

Whenever he was absent, I was
I assisted him in
But as I’ve

And, sir, is it fair to say that in your role as deputy

12027

15610

1

chief you had oversight over everything that was happening with

2

respect to special operations in Pakistan in that timeframe?

3

A.

I did.

4

Q.

Sir, can you describe your contact with your Pakistani

5

counterparts and their military -- how that worked and your

6

relationships?

7

A.

I can.

First of all, my contact with my Pakistan military

8

counterparts was frequent.

9

general headquarters in the Capital or visiting some of their field

I was generally either visiting their

10

headquarters several times a week.

11

from the Chief of Army Staff, all the way down to Division and

12

Brigade level commanders, depending on the function, depending on the

13

activities of that particular period of time.

14

characterize all my activities as being to ensure that the support we

15

were providing them, that they had requested, was as effective as

16

possible.

17

was constantly attempting to solicit from my Pakistani counterparts

18

is to what degree they were satisfied, to what degree they were

19

actually becoming more effective as a result of our support.

20
21

Q.

I was interacting with everyone

Qualitatively, I would

So whether it was training, advising or assisting, what I

And, sir, you said you interacted with your Pakistani

counterparts several times a week?

22

A.

That's correct.

23

Q.

And what service in the Pakistani military did you

12028

15611

1

primarily interact with?

2

A.

3

of Pakistan.

4

forces.

5

insurgency operations against the Taliban and violent extremist

6

organizations.

7

it -- the interaction I had with the Army was orders of magnitude

8

larger.

9

Q.

The bulk of my interactions with the -- were with the Army
It is the single largest service in the Pakistani armed

It was conducting the vast preponderance of the counter-

I did frequently engage with the other services but

And, sir, what -- why is our relationship with your

10

Pakistani partners, in particular the Army, important to our national

11

security ultimately?

12

A.

It is important for a number of reasons.

Previously I

13

alluded to the fact that in many ways the Pakistan military is

14

combating the same violent extremist enemy in the border areas

15

between Afghanistan and Pakistan that the NATO coalition, U.S. forces

16

and Afghan forces are combating inside Afghanistan.

17

that the border is porous, and this adversary has the ability to flow

18

back and forth across that border with a great deal of impunity.

19

So anything we can do to support the Pakistan military's

20

effectiveness against this enemy is an advantage for the forces that

21

are fighting in Afghanistan.

22
23

It's well-known

It is also important because Pakistan is a nuclear armed
state, but it is under significant threat from violent extremist

12029

15612

1

organizations, and it is in the interest of the United States to

2

ensure that Pakistan remains a stable and secure state to prevent a

3

connection being established between terrorists and violent extremist

4

organizations and their nuclear arsenal.

5

Thirdly, it is well-known that there has been a long

6

history of armed confrontation and great tension between Pakistan and

7

India.

8

States, as well as globally it is a rising power.

9

destabilizes the relationship between Pakistan and India is -- can

India is one of the largest trading partners of the United
Anything that

10

have an effect on U.S. national interests.

11

the more stable, the more fruitful that relationship between those

12

two nations are, the better off the United States interests are

13

regionally.

14

Q.

And the more peaceful,

And, sir, if you could, in an unclassified manner, how are

15

we assisting the Pakistanis with their security efforts in their

16

country?

17

A.

We had a very large and robust program for providing the

18

assistance I will describe.

19

security assistance, a great deal of equipment, resources and

20

training to the Pakistan military broadly; Army, Air Force, Navy,

21

Marines.

22

insurgency effort in the northwest, but the vast preponderance of it

23

was.

We were providing, as a matter of formal

Not all of it was being used to support the counter-

12030

15613

1

Secondly, as I've already described, we had a growing

2

population of U.S. special operations personnel that have been

3

brought to Pakistan, at the Pakistani's request, to provide direct

4

support to their combat formations that were engaging with violent

5

extremist organizations preponderantly in the northwest of the

6

country in two specifics provinces.

7

northwest frontier province.

8

And, also, the Federally Administered Tribal Areas, or FATA of

9

Pakistan that is right along the border with Afghanistan.

One used to be known as the old

Today it’s called Khyber Pakhtunkhwa.

The scale

10

of both of these forms of assistance and support had grown steadily

11

in the years prior to my arrival and grew steadily in the first year

12

and a half of my tenure at ODRP.

13

Q.

And, sir, in October and November of 2010, how would you

14

characterize your relationship and our relationship with the

15

Pakistani military?

16

A.

Was it a positive one?

It was a very positive trajectory at the time.

It was not

17

without problems.

It was not without difficulties.

18

without friction.

But in general it was a positive trajectory and

19

increasingly so.

20

the Pakistani military and Pakistani government was becoming

21

increasingly aware that the struggle that they had with violent

22

extremist organizations, primarily in the northwest of their country,

23

was becoming an existential threat to the survival of the nation, and

It -- this is true for two reasons.

12031

It was not

First of all,

15614

1

they recognized that they needed help.

2

as you probably recall in the summer and fall of 2010, there was a

3

massive humanitarian crisis in Pakistan as the result of the worst

4

flood the country had ever experienced since it was established in

5

1947.

6

Pakistan was submerged under water as a result of this flood.

7

approximately three months the United States government and the

8

United States military conducted a massive humanitarian relief

9

operation in Pakistan.

The second reason was because

Approximately 20 percent of the country -- of the land mass of
For

My specific duties, aside from being the

10

Deputy Commander for ODRP, and we were the commander for the

11

humanitarian relief efforts by the US military, I also commanded a

12

battalion-size helicopter task force in northwest Pakistan, which was

13

one of the worst affected areas by this flood.

14

other international partners and in partnership with the Pakistan

15

military, had done a great deal of very difficult work to rescue

16

people from the flood-affected areas, to provide humanitarian relief

17

supplies and to augment the Pakistani government’s attempts to

18

recover from the flood.

19

90-day period we recovered over 40,000 Pakistani citizens from the

20

northwest of the country.

21

great deal of gratitude and good will that our efforts had earned as

22

a result of that massive flood relief effort.

23

to the positive trajectory of our military-to-military relationships.

And we, along with

My specific task force, for example, in that

We were predictably benefiting from a

12032

That was contributing

15615

1

Again, not perfect, not without problems and friction, but it was

2

definitely a positive trajectory.

3

Q.

Sir, do you recall becoming aware that purported Department

4

of State information had been released publicly in November 2010 and

5

December 2010?

6

A.

I do indeed.

7

Q.

And without disclosing classified information in an open

8

session, did you observe any impact to the mission of the ODRP in

9

this timeframe as a result of the releases?

10

A.

11

TC[MAJ FEIN]:

12

I did.
Your Honor, we would move to a closed session at

this time?

13

MJ:

14

ADC[MAJ HURLEY]: No, ma'am.

15

MJ:

Defense, do you want to conduct an open cross-examination.

How long of a recess do we need.

And just before we

16

proceed into closed session, we have another witness that we're going

17

to hear from today, is that correct?

18

ATC[CPT MORROW]: That's correct, ma’am.

19

MJ:

20
21

And we'll be hearing from that witness in open session,

right?
ATC[CPT MORROW]: Open and then a very brief closed session for

22

that witness.

23

MJ:

Will we have a need to reopen the session for this witness?

12033

15616

1

ATC[CPT MORROW]: No, Your Honor.

2

MJ:

All right, so for the public's benefit, what time do you

3

anticipate -- again, this is going to be tentative time.

4

depend how long various things that need to occur take place.

It may

5

TC[MAJ FEIN]:

6

[Pause]

7

ATC[CPT MORROW]: Your Honor, we're going to with 1330 at this

8

time.

9

time.

10
11

Ma’am, if the parties may have a moment?

And, of course, we'll notify the Court if we need additional

MJ:

Why don't we make it 1400 to ensure that we -- everything

that needs to be done is done.

12

ATC[CPT MORROW]: That’s fine, Your Honor.

13

MJ:

14

session.

15

All right.

This Court is now going to go into closed

We will reopen the Court on or about 1400 this afternoon.

TC[MAJ FEIN]:

Ma'am, I'm sorry, and also, just for the record,

16

this is -- this closure is pursuant to Appellate Exhibit 550 of the

17

Court’s previous ruling.

18
19

MJ:

Thank you.

All right.

So how long of a recess do you

need?

20

ATC[CPT MORROW]: Twenty minutes, Your Honor.

21

MJ:

Major General Nagata, please don’t discuss your testimony

22

or knowledge of the case with anyone during the recess while we

23

transition into close session.

12034

15617

1

WIT: I Understand.

2

MJ:

3
4

Court is in recess.

[The court-martial recessed at 1054, 6 August 2013.]
[END OF PAGE]

12035

15618

Pages 12036 through 12095 of
this transcript are classified
“SECRET”. This session (6
August 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.

15619






[The court?martial was called to order at 1125, 6 August 2013.]

MJ: Court is called to order. Major Fein, please account for

the parties and the status of the court.

Yes, ma'am. Your Honor, all parties [present]

when the court last recessed are again present. The witness is on

the witness stand??ma'am, all parties, when the court last recessed,

are again present, including??the witness is on the witness stand.

This is a closed session at the Secret level. The bailiff is

present, the Court's paralegal is present, members of the prosecution

and defense teams are present, and the security.

Also, Your Honor, the court security officer completed his
closed hearing checklist and that will be filed with the post?trial
allied papers.
MJ: Proceed.

[The examination of MG Nagata continued.]
Questions by the assistant trial counsel
Q. General Nagata, we talked, briefly, about the

but I'd like to go back to that for a
in closed session.

moment, if we could,

Closed Session 1 1 2 3 6

Closed Session 2

15620

And, sir, you've said??now, you've said it several times,

Yes.

Was the nature of that

Sre:E~5}

12037

Closed Session 3

And,

Sir,

15621



air, from your perspective,

when did it become apparent to you that the release of

336935}

12038

15622

MJ: Yes?

Sorry, sir. Objection, hearsay, ma'am.

MJ: Yes?

Your Honor, we'd offer these statements under

M.R.E. 803(3), but he can describe the general nature of the

conversation as well.

MJ: Well, he was just saying, "He said, So, what are you

relying on?

The state of mind of the declarant, M.R.E.
803(3).
MJ: All right. I'm going to overrule the objection. Go ahead.
[Examination of the witness continued.]

Q. Sir, let's go back to??




4.

I

Closed Session 4 12039

MJ:

WIT:

MJ:

WIT:

15623

I'm sorry, sir. Could you say that name one more time?

Thank you.

the time,

[Examination of the witness oontinued.]

Q.

Q.

CbsedSes?on5

And, air,

And, air, if you would, just describe sort of what

12040

15624

Captain Morrow, I'm sorry. Ma'am, we would

renew our objeotion. Based on the government's response, we don't

believe what General Nagata is talking about??

MJ: Is the request hearsay?

Yes, ma'am. We??ma'am, we believe the request

is hearsay, yes.

MJ: All right. Is it offered for the truth of something in the

past? The government has offered it under M.R.E. 803(3), so I've

overruled your objection.


Thanks, ma'am.

[Examination of the witness oontinued.]




4.

I

Closed Session 6 1 2 4 1

15625

Q. General Nagata, I'm handing you what's been marked as

Prosecution Exhibit 202 for identification. Can you just briefly

describe what that is?

A. [Examining PE 202 for identification.]

Your Honor, permission to publish?

MJ: Go ahead. And it's Prosecution Exhibit??what?

202 for identification.

MJ: Okay.

[The assistant trial counsel published PE 202 for identification on
the projected screen.]

Q. Sir, we'll talk about

Closed Session 7

12042

Closed Session 8

And,

sir,

I can.

if you would, can you,

12043

just,

15626

Closed Session 9

12044

15627

Closed Session 10

And,

sir,

what was the result of a Conversation with

12045

15628

15629

I

5%-4


?at V.-

i?

entirely from the Northwest. Either the people that were operating

with those Frontier Corps brigades or the training centers in Khyber

Pakhtunkhwa??he told me, specifically, "Do not bring them back to
Islamabad. Do not send them back to the United States." His
expectation, as he explained it to me, was this was a temporary
suspension.

Q. How did having

A.

Closed Session 11

12046

Captain

MJ: Yes?

I can interrupt. Ma'am, just

1001(b)(4) objection.
MJ: Got it.

[Examination of the witness continued.]

N2

7:5?

+3

Closed Session 12

12047

15630

OLl1f

And, sir,

And, sir, you referred to, sort of,

using my own word??but the??

Closed Session 13

Yes.

Can you describe how that worked

12048

15631

the??and maybe I'm

MJ:

WIT:

CbsedSes?on14

And what did you observe after the release,

And how long were you there?

I left in September of 2011.



12049

I'm sorry,

sir.

15632

15633

Ma'am, we would object to that last answer,

again, under 1001(b)(4).
MJ: The 2011 or the other one?
The 2011. ma'am. The

The??I'm sorry,

information??the 2011 information
MJ: A11 right. Thank you.

[Examination of the witness continued.]

once the transition a bit into some of the??sort of

Q. Circa,

the other observations and impacts you experienced while you were

there. Are you familiar with the phrase,
A I am
Q. And,
A-

Closed Session 15

12050

Closed Session 16

12051

15634

And, sir,



CbsedSes?on17

was the

Captain Morrow,

12052

again??ma'am,

15635

1001(b)(4).

MJ: Okay. Let me ask just a follow up question on that.

don't understand??

WIT:
MJ: A11 right. Thank you. I have your objection.
Yes, ma'am.

[Examination of the witness oontinued.]

Q. Sir, you referred to a,

Closed Session 18

12053

15636

I

can.

Got it.

Captain

[Examination of the witness Continued.]

CbsedSes?on19



12054

ma'am.

15637

Sir, did this



[Examination of the wit

CbsedSes?on20

Captain Morrow,

ness continued.]



12055

1001(b)(4),

ma'am.

15638

Closed Session 21

And,

Sir,

12056

15639

Sorry, 1001(b)(4), ma'am.

Q. Sir, oVera11,

A.

Q. And, air,

A. No, it had not.

Thank you, sir.
MJ: Cross examination?

Thank you, ma'am.

I'm handing the court reporter

Exhibit 202 for identification.

Closed Session 22

12057

15640

Prosecution

15641

Captain??well, let's leave that just in case

it comes up. I don't know if it will, but in an abundance of

caution, thank you.

I'm putting prosecution Exhibit 202 for identification back

up on the monitor. Sir, can you see it okay?
WIT: I can.
Sir, I'm going to take a second just to get

organized, if that's okay. Ma'am, same.
MJ: Certainly.
CROSS-EXAMINATION

Questions by the assistant defense counsel

Q. It's barely morning. Good morning, General Nagata.
A. Good morning.
Q. Sir, let's start off with

A. That is correct.
Q.
MJ: when?

I'm going to answer that question right now,
ma'am.


4-

Closed Session 23 1 2 5 8

That is correct.

A. Roughly.

A. Yes.

Q. And you also describe then, generally,

A. That is correct.



Closed Session 24

12059

15642

it's difficulties?

Not just

That's correct.

Often??and this is just a generalized notion,



15643

General

Nagata??but often the concerns and the??that are felt in the

Closed Session 25

Very often,

YES.

12060



15644



Q. And that

A. It does.

Q.

A. It does.

Q. And there were concerns??and just getting back to the

general are of my questions??
A.


Closed Session 26

12061

Closed Session 27

But one dimension of that cohcerh??

ID SOHIE CELSES, YES.

Now, you testified earlier that there

Yes.

And that

It did.

That's correct.

I
as

12062

15645

Closed Session 28

They do.

And for the longest time,

12063

15646

And the WikiLeaks disc1osures,

Is that right?

A.

Q.

that

A-

Q.

Closed Session 29

In my estimation,

And there were other factors that

And, sir,

you just did with Captain Morrow,

Uh-huh.

The

Correct.

And there was also

Correct.

YES.

contributed to the

okay?

12064

15647

I just want to go over parts of the closed direct

That's correct.

Q.

A.

Q. And we'll get tc??

A.

Q. Yes, sir. Sc??ahd, agaih, going back to the clcsed part of
your direct, sir, you indicated with Captain Morrow that there were??

A.

Q. Are there??ahd that observation that you had was from your-
?frcm

Closed Session 30

15648

12065

Closed Session 31

Did you attempt to identify any

And these were with your??

12066

15649

Closed Session 32

15650



Now, sir, again, you testified in your closed direct that
And then, after that,
We did.

Did you attempt to identify any other??

12067

Now, and just since we're on the tOplC,
conversations??
A. Okay.
Q.
A. He did.
Q. And that was reflected, also,
A. It was.
Q-
A. That is correct;

CbsedSes?on33

12068

s1r??1n your

15651

Closed Session 34

15652



Now, you testified that??

That's correct.

And that??

Approximately.

And you testified in your open direct that there were

There were.

And that those challenges,

?'11

12069

today,

Q.

15653

And, sir,
Uh?huh.

were??

There is always friction in that relationship.

And, typically speaking, from our Conversation earlier

Right. Sir, I'm just editing a couple of questions I've

already asked you.

Closed Session 35



12070

MJ:

WIT:

MJ:

Now, this changed??or,

it was,

Yes,

What was that number again

Thank you.

I

I'm sorry?

[Examination of the witness continued.]

Q-

terms??

CbsedSes?on36

And that was the result of

Yes, it was.

So 1et's ta1k about??and these,

12071

again,

sir are in

15654

general

Closed Session 37

They are, indeed.

And those with

Right.

I don't

They??



15655

I would characterize it a 1itt1e differently.

think I know



12072

The topic you've raised is something I cannot discuss in

this setting.

Q.

Closed Session 38

Yes,

sir.

Sir,

could you discuss the??



12073

15656

Closed Session 39



The?do you recall assessing that

Yes, sir.

Yes, that's always true.

And that attitude existed before the WikiLeaks disclosures?

lt did.

Generally speaking,

sir,

you knew that

And it certainly existed after as well?

12074

15657

15658

Q. A11 right, sir. So, what I want to do now is I'm going to
try be, in my subsequent questions, very specific in terms of time
frames.

MJ: A11 right.

Q. And the first time frame that I want to talk about is from

A. Uh?huh.

Q.

MJ: A11 right.

Q. So that disoreet period of time.

A. Right.

Q. Sir, how Iong was that period of time, to your memory?

A. My reoo11eotion is that spanned,

MJ: I'm sorry, that

WIT:

[Examination of the witness oontinued.]

Q.

A.

Closed Session 40

So, approximately 2 months?

Thereabouts.

12075

A11 right, sir. So, in??just to

A. It did.
Q. And, again,
around February of 2011?

A. Yes,

in February.

Q. And, air, now, 1et's go back to
A. Yes.
Q.

Closed Session 41

12076

I can't remember the exact date,

15659

you indicated that that incident happened

the substance of your

but I believe it was

Closed Session 42

Yes.

12077

15660

Closed Session 43

And in the??

Okay.

Going back to

12078

15661

Now,

And,

question and I will skip that very convoluted question and move onto



Closed Session 44

sir,

15662



let me just skip to??that was a very convoluted

12079

Okay.

Q. hope is less convoluted.
A. A11 right.

Q.

A. Yes.

Q.

A. That's correct.

Q. And he

A. Right.

Q.

A.

Q.

A.

Q. And the effects that you

A. Uh?huh.

1

Closed Session 45 1 2 8 0

15663

Captain Morrow about,

A.

Q.

15664

those all of the effects that you talked with
sir, in your direct examination?
Yes.

Do you recall, in the conversation that you had with

Captain Morrow during your direct examination,

Closed Session 46

And speaking of the

A11 right.
The
Yes, as far as I know, unrelated.
Now,


12081

Closed Session 47

In my View, yes.

Right. And the??and it goes both ways.

I do not know.

It did.

336935}

12082

15665

Osama bin

A.

MJ:

WIT:

MJ:

CbsedSesdon48

.a
3

But it did
Absolutely.

And that

That is correct.

It did.

And that??

I think that's the right date, yes.

And the United States government representatives
Laden in his home in Abbottabad, Pakistan?
That's correct.

And the date of that was?

ma'am?

I'm sorry,

The date of that was?

12083

15666

ki11ed

WIT:



sir?

WIT:

I believe you said 1 May of 2011.

I believe that's the right date.

[Examination of the witness continued.]

Q.

Q.

A.

CbsedSes?on49

And that concern??

It was.

12084

15667

Does that generally comport with your memory,

And this incident??

I did not.

Yes, that's my understanding.

Overall,

It did.

And there??again,

much like before,

15668

Counterfactuals, here,

are just far too speculative to suss out which was??which of these

A.

three complicating factors, sir, was the
Yes, however,
I

Closed Session 50

12085

worst to have to deal with?

Now, sir, you talked about
A. Uh?huh.

Q.

A. Yes.

Q. And that

A. Yes.

Q. And we



Closed Session 51 1 2 8 6

15669

15670

Just going through the other questions I have,

sir, to make sure that I've already asked them. If I can have a

second, ma'am? Sir, thank you. I don't have any further questions.

MJ: Redirect?
Just briefly, Your Honor.

REDIRECT EXAMINATION

Questions by the assistant trial counsel

Q. Sir, you

A. I did.

Q. And, in your opinion,
A.

Q. And how would you

A.

;n . 1 fl?;
. E:

CbsedSesdon52

12087

Closed Session 53

And, sir,

Fortunately,

12088

15671

15672

Thank you, sir. I have nothing further.

MJ: Sir, I just have a couple of questions.

EXAMINATION COURT-MARTIAL

Questions by the military judge:

Q. When was the flood?

A. The flood occurred in August of 2010.

Q. I believe testified to WikiLeaks release was early December

of 2010?

A. I think the release was in late November.

Q. How did the WikiLeaks??

A.

Q. And I believe you testified earlier,

;n . 1 fl?;
. E:

CbsedSesdon54

12089

Closed Session 55

Yes.

12090

15673

Closed Session 56

This

Yes.

There was a



12091

15674

No, there was not.

A. No.

MJ: 1 think that's all I have. Does either side have

further, based on what I asked?

Ma'am, I do have a question.

MJ: Go ahead.
RECROSS EXAMINATION
Questions by the assistant defense counsel

Q. General Nagata,

A. That is correct.

Thanks.

MJ: Anything else from the government?

One more question, Your Honor.

Closed Session 57 1 2 92

15675

anything

15676


-

REDIRECT EXAMINATION
Questions by the assistant trial counsel

Q. Sir, in your estimation,

Thank you.

MJ: Well, the defense counsel's actually triggered another one
from me.

EXAMINATION BY THE COURT-MARTIAL

Questions by the military judge:

Q. The question that you responded to was:
A. That's correct.
Q. Did the language ever change
A.


CbsedSesdon58

12093

?ca ?.11
Q. I believe you testified earlier that
A. Yes, they did.
Q. And I don't want to misinterpret things
A.

MJ: Thank you, sir. Any fo11ow?up based on

No, Your Honor.
No, ma'am.
MJ: Temporary or permanent exousal?

Temporary, Your Honor.

Closed Session 59 12094

15677

that you say-

that?

15678

[The witness was duly warned, temporari1y excused, and withdrew from

the courtroom.]

I'm retrieving Prosecution Exhibit 202 for

identification from the ELMO.

Thank you, Captain Morrow.

[The assistant trial counsel handed PE 202 for identification to the
court reporter.]

MJ: A11 right. The Court is noticing it's a little over an

hour until 1400. Do you want to make it a little bit later?

No, ma'am, I think we can make 1400.

MJ: You can make 1400?

Yes, ma'am, and let me rephrase my answer to

the Court's question: I'll be read at??or the defense will be ready

at 1400.
MJ: Okay. Because what I don't want to do is have dribb1es and
drabs, need another 15 minutes, I need another 15 minutes," so

we're going to be ready at 1400?

Yes, ma'am.

MJ: Okay, so be it. Court is in recess until 1400.

[The court?martial recessed at 1249, 6 August 2013.]

Closed Session 60 1 2 9 5

15679

1
2
3
4

[The court-martial was called to order at 1405, 6 August 2013.]
MJ:

Court is called to order.

Major Fein, please account for

the parties.
TC[MAJ FEIN]:

Yes, ma'am.

All parties in the Court when the

5

last recessed are again present except Captain Overgaard is absent.

6

Also, ma'am, this is an unclassified session, and prior to its

7

opening the Court security officer completed his open hearing

8

checklist to be filed with the post-trial allied papers.

9

MJ:

10

witness?

Is there anything we need to address before we call the

11

TC[MAJ FEIN]:

12

ADC[MAJ HURLEY]: No, ma'am.

13

MJ:

14

ATC[CPT MORROW]: The United States calls Colonel Julian

No, ma'am.

Please call the witness.

15

Chesnutt.

16

COLONEL JULIAN CHESNUTT, U.S. Air Force, was called as a witness for

17

the prosecution, was sworn, and testified as follows:

18
19
20
21

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

Sir, you are Colonel Julian Chesnutt, United States Air

Force?

22

A.

Yes.

23

Q.

And you are currently the senior defense official and the

12096

15680

1

Defense Attaché to Israel?

2

A.

Yes.

3

Q.

Sir, where are you currently physically located?

4

Do you

work out of Israel?

5

A.

Tel Aviv.

6

Q.

And how long have you been in that position?

7

A.

Approximately one year.

8

Q.

And, sir, generally, what are your responsibilities as the

9
10
11

senior defense official and the defense attaché to Israel?
A.

Primarily duty is the military advisor to the U.S.

ambassador.

12

Q.

And do you supervise personnel in that position?

13

A.

Approximately 30 personnel.

14

MJ:

I'm going to ask you, if you would, sir, please speak up

15

just a little bit.

16

WIT: Okay.

17

Q.

You said you supervise approximately 30 personnel?

18

A.

Yes.

19

Q.

And who are the people you supervise?

20

A.

I have attachés from every service, operations NCOs from

21

every service, and locally engaged staff Israelis and several GS

22

civilians.

23

Q.

And, sir, can you describe, generally, the oversight

12097

15681

1

relationship between your service of the United States Air Force, the

2

Department of Defense, and the Department of State, how that sort of

3

works together?

4

A.

Right.

I'm still, obviously, an Air Force officer on loan

5

to -- for the -- administratively to Defense Intelligence Agency who,

6

in turn, staffs us out to State Department run U.S. embassies.

7

Q.

8

country team?

9

A.

Yes, I am.

10

Q.

And, sir, prior to your assignment as a senior defense

11

And, sir, as the defense attaché, are you part of the

official and defense attaché to Israel, where were you assigned?

12

A.

To Islamabad, Pakistan.

13

Q.

And where were you working in Islamabad?

14

A.

I was working in the U.S. Embassy there as the defense

15

attaché.

16

Q.

And were you the senior defense attaché to Pakistan?

17

A.

Yes, I was.

18

Q.

And how long were you in that position, sir?

19

A.

Two years.

20

Q.

And can you give me like sort of an approximate start date

21

and an approximate end date?

22

A.

Mid-November 2010 until October 2012.

23

Q.

And, sir, as the senior defense attaché in Pakistan, did

12098

15682

1
2
3
4
5

you work under the ODRP?
A.

I worked alongside with ODRP, but we had a separate

reporting chain.
Q.

And, sir, generally, what were your responsibilities in

that position, sort of the same as what you're doing now?

6

A.

Also, the -- as a military advisor to the U.S. ambassador.

7

Q.

And can you describe -- do you have, like, representational

8

duties and that sort of thing as well?

9

Court, please?

10

A.

Can you describe that for the

Yes, I'm the -- I represent the Department of Defense to

11

the host nation military.

12

whether Air Force, Navy, Army represent their specific service to the

13

host nations, Air Force, Army, Navy as the case may be.

14

Q.

And then each of my service attachés,

And, sir, are you here today to discuss impacted defense

15

attaché operations you observed as a result of disclosure of

16

purported Department of State information?

17

A.

Yes, I am.

18

Q.

All right, sir.

Before we sort of dive more deeply into

19

your time in Islamabad, I'd like to briefly discuss your career

20

progression.

21

States Air Force?

How long have you served as an officer in the United

22

A.

Twenty-four years.

23

Q.

And what was your military area of specialty before

12099

15683

1

becoming a defense attaché?

2

A.

Pilot.

3

Q.

And have you held any command positions in the Air Force?

4

A.

Yes, several flight commands and squadron command and

5

Specifically A-10 and F-16 pilot.

deputy group command.

6

Q.

And have you deployed during your career?

7

A.

Yes, I have.

8

Q.

To where, sir?

9

A.

To Iraq, to Korea, twice to Turkey, to Cape Verde, to

10

Panama, to Romania and -- those are my primary ones.

11
12

Q.

And, sir, how do you -- can you describe for the Court how

13

you made the transition from sort of a pilot career track to the

14

defense attaché service?

15

A.

I was serving one year as an instructor at Georgetown

16

University as a national defense fellow and I was working for --

17

supervised by a former U.S. Ambassador who recommended that career

18

path.

19
20
21

Q.

And can you describe the training you received as a defense

attaché?
A.

Approximately six months of attaché training, followed by

22

six months of Urdu language training, which is the national language

23

of Pakistan, and approximately six months of flight training to fly

12100

15684

1
2
3

the C12 aircraft, which is located in Pakistan.
Q.

So you had -- you had additional flight duties as well as

your sort of duties as a defense attaché in Pakistan?

4

A.

Yes, I did.

5

Q.

And, sir, approximately how long from sort of start to

6

finish was the defense attaché training?

7

A.

Eighteen months.

8

Q.

And, sir, how does the defense attaché training prepare you

9
10

for particular countries assignments?
A.

The attaché School itself is general.

It trains attachés

11

for every country -- U.S. attaches for every country.

12

have a phase of approximately one month where you meet with experts

13

in the U.S. government on your host nation in the country you go to.

14

Then, in addition to that, you normally receive a language training

15

and that can be anywhere from three months to a year.

16
17
18

Q.

And, sir, how are you -- how did you end up working in

Pakistan versus some other country?
A.

And then you

How did that work?

I was -- I volunteered to go.

Then my service -- the Air

19

Force nominated me and a joint decision through DIA and the Air Force

20

and the joint staff and vetting by the ambassador to take the

21

position.

22
23

Q.

And, sir, did you have any experience in that region prior

to your position as the defense attaché there?

12101

15685

1

A.

No, my first assignment.

2

Q.

And what about your experience with bilateral military

3

relationships?

4
5

A.

I had conducted several combined exercises primarily with

NATO allies throughout my career.

6

Q.

All right, sir, let's talk about some of your

7

responsibilities while assigned to Islamabad -- or U.S. Embassy,

8

Islamabad.

9

while assigned as a defense attaché there?

10
11

do?

What were the primary sort of missions you were promoting
What were you trying to

Or what was the mission of the attaché office?
A.

We were -- we coordinated engagements, exercises, and

12

defense cooperation with the host nation military.

13

represented our service components to the host nation military and we

14

-- we gave advice to other members of the country team and other

15

members of ODRP about how we best thought we could assist the

16

Pakistanis in conducting counter-insurgency operations to assist our

17

efforts in Afghanistan.

18

Q.

We also

And, sir, while serving as the defense attaché to Pakistan,

19

do you recall becoming aware of the release of purported State

20

Department information in the November of 2010 timeframe, so shortly

21

after you got there?

22

A.

Yes.

23

Q.

And, generally, how did you first become aware of -- that

12102

15686

1

this was something that was going on?

2

A.

Through the open press.

3

Q.

Are you talking about the open press in Pakistan?

4

A.

In Pakistan and through U.S. outlets in Pakistan.

5

ATC[CPT MORROW]: Your Honor, as this time, we would move to a

6
7
8
9

closed session, but if defense wants an opportunity to cross.
ADC[MAJ HURLEY]: Ma’am, we don't have any open session crossexamination questions.
MJ:

All right.

Well, is there any reason that we need to have

10

another open session before the end of the day?

11

ruling with respect to yesterday's witness.

12

to the parties and just read it on the record following the next

13

morning if that's preferable.

I will have my

However, I can give it

14

ATC[CPT MORROW]: Tomorrow is fine, Your Honor.

15

MJ:

16

ATC[CPT MORROW]: Ma’am, do you want to start at 10?

17

What time would you like us to start tomorrow morning?
Can we have

a second to talk?

18

MJ:

19

[Pause]

20

ADC[MAJ HURLEY]: Ten o’clock’s fine, ma'am.

21

MJ:

22

ADC[MAJ HURLEY]: Yes, please.

23

MJ:

Yes, please.

We'll start at 10:00?

All right.

Members of the gallery, we are going to move

12103

15687

1

into closed session based upon my findings in Appellate Exhibit -- I

2

believe it was 450?

3

TC[MAJ FEIN]:

4

MJ:

550.

550, Your Honor.

Okay.

That will be the conclusion of the open

5

proceedings today.

6

earlier, I have a ruling ready to go for the witness that testified

7

yesterday.

8

I will read it on the record tomorrow.

9

need to address before we recess for the closed session?

We will be starting at 1000 tomorrow.

I will give the parties that ruling in advance today, and

10

ADC[MAJ HURLEY]: No, ma'am.

11

TC[MAJ FEIN]:

12

MJ:

Is there anything else we

No, ma'am.

All right.

Colonel Chesnutt, during the recess, please

13

don't discuss your testimony with anyone.

14

you're free to step out.

15

WIT: Yes, ma'am.

16

MJ:

17
18

As I said

As soon as we recess

Court is in recess.

[The court-martial recessed at 1415, 6 August 2013.]
[END OF PAGE]

12104

15688

Pages 12105 through 12131 of
this transcript are classified
“SECRET”. This session (6
August 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.

15689

21 [The cc>urt?martial was called to order at 1445, 6 August 2013.]

Closed Session 1 1 2 1 5



15690

MJ: Court is called to order. Major Fein, please account for

the parties and the status of the courtroom.

Yes.

MJ: witness is on the witness chair.

Yes, ma'am. All parties, when the court last

recessed, are again present. This is a closed session at the Secret

level, Your Honor. Included with the parties is the bailiff, the

Court's paralegal, members of the defense team, members of the

prosecution team, and security.
Also, the court security officer has completed a closed
hearing checklist and that will be filed with the post?trial allied
papers.

MJ: Okay. Proceed.
[Examination of Colonel Chesnutt continued.]

Questions by the assistant trial counsel

Q. Colonel Chesnutt, before we get into some of the impact you

Closed Session 2 1 2 1 6

Closed Session 3

And how do you??

12107

15691

A11 right. So 1et's sort of move into what

aftermath of the release of cables.

Closed Session 4

And why did you do that, sir?

So was it more, air,

Right.

And, sir,



Yeah,

And can you explain that, please?



12108

15692

happened in the

And you were the??

A. Yes, I did.

Q. And, sirhis replacement?
A.

Q.

A.

Q. And why not?

MJ: Yes?

I'm sorry to interrupt.
MJ: Okay. Just a moment. Noted.

[Examination of the witness oontinued.]

Q.

Closed Session 5

12109

1001(b)(4),

15693

ma'am.

A11 right, so 1et's explore this a little bit.

A. It's

Q. And do

MJ: When?

Closed Session 6



12110

15694

MJ:

Closed Session 7

12111

15695

MJ:

[Examination of the witness Continued.]

A.

A. Right.

MJ:
WIT: Okay.
[Examination of the witness Continued.]

Q.

1
59
9.0?



Closed Session 8 12112

15696

Yes,

A. Yes.



CbsedSes?on9

Captain Morrow,



12113

it became increasingly difficult.

if I

15697

on the

15698

MJ: Okay. Got it.

[Examination of the witness oontinued.]

Q.

A. Yes, it was.

Q. And can you explain that, please?
A.

MJ: Yes?

Pardon me. Objection, hearsay, ma'am.

MJ: All right. What's

Your Honor, we'd often under 803(3) as well.

MJ: Okay. Your objection is noted.

Yes, ma'am.

MJ: And go ahead; it's overruled right now.

[Examination of the witness oontinued.]

. As. T.




Closed Session 10 1 2 1 1 4

Closed Session 11

Sir,

Yes, it was

And how 80?

Yes.

As a rule,

YES.



12115

15699

Closed Session 12

12116

15700

Ma'am, the
1001(b)(4).
MJ: Okay.

[Examination of the witness continued.]

Q.

Q. And did that

Q. Sir,

Closed Session 13 12117

15701

Thank you, sir.
MJ:

WIT:

MJ: Thank you. Defense?

Yes, ma'am. Sir,

second to get organized here?

ma'am,

CROSS-EXAMINATION

15702

if I can take a

Questions by the assistant defense counsel

Q. Good afternoon,
A. Good afternoon.
Q. Sir,

A.

Q.

A. Yes.

Q.

A- Yes.

Q.

A. Yes.

Q.

CbsedSes?on14

sir12118

15703

Sir, you testified, just there at the end,

Yes.

Do you reoa11??we'Ve had two interviews before today, is

that correct?

A.

Closed Session 15

Yes.
One was yesterday and one was months ago over in Tamberg?
Yes.

And, in those interviews, you indicated that,

Yes.

So, sir, and going on,

Yes.

And, sir, just to reinforce in my mind,

12119

CbsedSes?on16



2012.

2012?

So, sir, getting back to these

Yes.

Yes.

Yes.

Yes.

Sir, ??ahd before I move

Right.

our Conversations previously,

Right.

12120

15704

on from

15705

?.11

Q.

A. Yes.

Q. And that's your testimony, here, today as well?
A. Yes.

Q.

A. Yes.

Q. So, sir, moving on to

A.

Q. The bin Laden raid. Thank you. Abbottabad.

happened approximately 1 May 2011?

A. Yes.
Q. And the bin Laden raid??that's
killed, right?
A. Yes.
Q.
A. Yes, it did.

Closed Session 17

12121

the raid that

And that

bin Laden was

Yes.

Q. And, sir, going back, again,

A. Sure.

Q. just negleoted to ask you this guestion.

in no way, connected to the WikiLeaks

to you knowledge, right?

A. No, no connection.

.- ?2

626*

+3

Closed Session 18

12122

15706

disclosures,

And the Abbottabad raid??I'm just going to have to use my

Oklahoma pronunciation on

A.

Q.

with that

MJ:

WIT:

MJ:

WIT:

MJ:

Closed Session 19

"Bin Laden raid" works too.

I apologize. Yeah, "bin Laden raid."

OHS .

Not that I'm aware of.

Yes.

By what time?
By May 2011.

I don't mean to interrupt you,

Thank you.

12123

15707

Let's go

[Examination of the witness oontinued.]

Q.

leaving in October of 2012?

A.

Q.

ACC:

of questioning,

A.

CbsedSesdon20

Thank you,

Yes.

And I recall,

Yes.

Yes.

Yes,

Sir,

sir,

Right.

sir.

I have.

the??I forgot

maybe.

Sir,

yesterday,

we talked,

yesterday,

to ask you about

So,

15708

about your

if we could go back to that line

I apologize for skipping around.

12124

Yes.
The

Yes.

And, sir, if I could get you to tease out,

the problem that resulted only because

A.

Q.

About a month.

Okay, so the early part of December 2010?
Yes.

And the

Yes.

So there was a 2-month time window when it??when

complicating factor was the WikiLeaks disclosures.

A.

Closed Session 21

Yes.

12125

15709

in your mind,

the only

15710






Q. And the incidents that you described with Captain Morrow on

A. Yes.
Q. I believe there were a few of them and 1'11

just go through a few of them just to see if you can recall if that

was just during that time window or at any other time window.

A. Yes.

Q. A11 right?
A. Yes,

Q.

A. Yes.

Q.

A-

Closed Session 22

12126

15711


Q. And, in your memory,
A. Yes.
Q. Can you??as you sit there right now, can you think of any

of the effects, that you talked with Captain Morrow on direct,

Sir, I'm just going to take a look at my

notes. Co1one1 Chesnutt, I don't have any more questions.

WIT: Thank you.
MJ: Redirect?
Briefly, Your Honor.
REDIRECT EXAMINATION
Questions by the assistant trial counsel

Q. Sir, you

A. Right.

Closed Session 23 12127

15712



Q.

A.

Q. And you, obviously,

A.

Thank you, sir.

MJ:



[sio]

under 1001(b)(4).

MJ:

CbsedSes?on24

Anything else from the defense?

to provide

Okay.

No, ma'am, other than the 1ast??the disablity

ma'am, we'd object to that

Just give me one second, here.

EXAMINATION BY THE COURT-MARTIAL

12128

15713

Questions by the military judge:

Q. Colonel Chesnutt, I know you testified as to this, but

these

.331

A. Yes, ma'am.

Q. And that was after the release of the WikiLeaks cables?

A. Specifically,

MJ: I think that's all I have. Anything based on that?

No, ma'am.
No, Your Honor.
MJ: Temporary or permanent excusal?

Temporary, Your Honor.

Closed Session 25

12129

15714

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

the courtroom.]

MJ: Counsel, we said 10 o'clock tomorrow, right?

Yes, ma'am.

MJ: Okay. I should have the last order with Undersecretary

Kennedy ready, probably, in about 10 minutes. So I can either give
it to the court reporter or if you just want to come by chambers and
whatever works.

get it; Anything else we need to address?

Ma'am, may we confer with the parties for just
a second?

A. Yes.
[The parties for both sides conferred.]

Ma'am, we just wanted to talk to you about the
way forward that we reached with respect to this classified evidence
and we'll probably use the same procedure tomorrow, as necessary.
What we're going to do is write out our objections??write them out??
hand?write them because of the??some constraints we have with this
classified evidence??the government will type out our objections and
then type out their responses on an appropriately classified
computer,

print that out and then deliver that to you??whatever means

the Court would like.

Closed Session 26 12130

15715

MJ: Okay. Why don't we do it this way??wi11 this work: if you

can deliver it to me in the morning so??1 can't see another way to do

that??then 1'11 have it tomorrow morning. During the course of the

day, 1'11 go through it, 1'11 have the o1assified??my olassified

notes, here, as well, and then just address it pieoe?by?pieoe, day-

by?day witnesses. Does that work?

Yes, ma'am, we'11 complete it tonight and have it

ready for Mr. Prather tomorrow morning for when you show up.
MJ: A11 right.

The defense has no objection to that course of

action, ma'am.
MJ: Okay. Anything else we need to address?
No, ma'am.

No, ma'am.
MJ: Court is in reoess unti1 zero??or 1000 tomorrow.
[The court?martial recessed at 1511, 6 August 2013.]

OF

Closed Session 27 12131

15716

1
2
3
4

[The court-martial was called to order at 1012, 7 August 2013.]
MJ:

Please be seated.

Court's called to order.

Major Fein,

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

Yes, Your Honor.

All parties present when court

5

last recessed are present with the only exceptions:

6

is absent, Captain Overgaard is present.

Captain Morrow

Also, ma’am as of 9:55 this morning, seven members of the

7
8

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

9

the courtroom, eleven spectators in the courtroom, the overflow

10

trailer is not being used but it's available.
Additionally, Your Honor, yesterday what's been marked as

11
12

Appellate Exhibit 642 is titled, “The Government Response to Defense

13

Objections under R.C.M. 1001(b)(4),” for Major General Nagata and

14

Colonel Chesnutt dated yesterday, 7 August 2013, and it's classified.

15

Incorporated within that, based off of the agreement of the parties,

16

is also the defense's handwritten filing, the government wrote that

17

out and that's included in Appellate Exhibit 642.
Also, at the next recess the government will be having

18
19
20

marked the redacted unclassified version of Appellate Exhibit 642.
MJ:

All right.

So just to make sure for the record that we're

21

clear, both sides have agreed that for classified objections the

22

defense will hand write them out, give them to the government, and

12132

15717

1

there will be one, basically, joint filing that includes the defense

2

objections as well as the government's response?

3

CDC[MR. COOMBS]:

4

TC[MAJ FEIN]:

5

MJ:

6

TC[MAJ FEIN]:

Yes, ma'am.

Yes, ma'am.

Okay.
Also, ma'am, I apologize, this is an open session

7

of course, it’s unclassified and I have the court security officer's

8

open hearing checklist and it will be filed with the Post-Trial

9

Appellate Exhibits.

10

MJ:

All right.

Thank you.

As I said yesterday, the court is

11

prepared to rule on the defense motion for appropriate relief under

12

R.C.M. 1001(b)(4) for Under Secretary Kennedy.

13

the parties yesterday so they would be prepared for today.

14

ruling is as follows:

15

I gave that ruling to
The

On 5 August 2013, in accordance with the procedures

16

established in the court's ruling, defense motion for appropriate

17

relief under R.C.M. 1001(b)(4) Appellate Exhibit 639, the defense

18

filed the following six specific objections to the testimony of Under

19

Secretary Patrick Kennedy, Appellate Exhibit 636:

20

Also, on 5 August 2013, the government filed a response in

21

opposition, Appellate Exhibit 637.

22

government position is below the objection followed by the court's

23

ruling on that objection.

12133

For each defense objection, the

15718

1

One, the testimony relating to the diminution of reporting

2

through diplomats in the field and through those who would speak to

3

Department of State diplomats in various countries.

4

Kennedy indicated that he believed the diminution of reporting was

5

due to a chilling effect caused by the charged leaks in the case.

6

The defense objects to this testimony as not being directly related

7

to or resulting from PFC Manning's misconduct under R.C.M.

8

1001(b)(4).

9

Under Secretary

Government's position: Under Secretary Kennedy's opinion on

10

diminution of reporting was based on facts or data perceived by or

11

made known to Under Secretary Kennedy before the hearing.

12

conclusion was that PFC Manning's misconduct caused a diminution of

13

reporting, which was the natural and probable consequence of PFC

14

Manning's actions, and not based on any intervening event that played

15

the only important part in bringing about the effect.

16

Ruling:

His

A. Under Secretary Kennedy's testimony that there

17

was a diminution in reporting due to chilling effect caused by

18

WikiLeaks' releases of purported Department of State cables given to

19

WikiLeaks by PFC Manning is admissible aggravation evidence under

20

R.C.M. 1001(b)(4) with the caveat: to the extent that Under Secretary

21

Kennedy's testimony is limited to periods directly following the

22

WikiLeaks releases or directly following subsequent media accounts of

12134

15719

1

the WikiLeaks releases in the various countries.

2

related to and resulting from PFC Manning's offenses.
B.

3

It is directly

The foundation for Under Secretary Kennedy's opinion

4

that PFC Manning's misconduct resulted in the WikiLeaks disclosures

5

of the purported Department of State cables caused a long-term

6

diminution in reporting that continues to date is not based on

7

quantifiable data, it is speculative and inadmissible under M.R.E.

8

403.

The court will not consider it.
Two, the testimony related to the belief that if we, the

9
10

United States, do not have the trust of others we cannot get accurate

11

information and that if we, the United States, do not get accurate

12

information we cannot compile a complete product.

13

objects to this testimony as not directly related to or resulting

14

from PFC Manning's misconduct under R.C.M. 1001(b)(4).
The government's position:

15

The defense

Under Secretary Kennedy

16

provided this information as context for the foundation of his

17

ultimate opinion and this was based on his personal experience and

18

knowledge.

19

Ruling: This is explanatory testimony that falls within the

20

scope of Under Secretary Kennedy's expertise in the use of diplomatic

21

reporting.

22

purpose.

It is admissible under R.C.M. 1001(b)(4) for that

12135

15720

Three, the testimony related to the belief that non-

1
2

governmental persons were no longer willing to talk fully and frankly

3

with the United States diplomats due to the charged leaks in this

4

case. The defense objects to this testimony as not being directly

5

related to or resulting from PFC Manning's misconduct under

6

R.C.M. 1001(b)(4).
Government position:

7

Under Secretary Kennedy's opinion on

8

the lack of openness of nongovernmental persons was based on facts or

9

data perceived by or made known to Under Secretary Kennedy before the

10

hearing.

11

the unwillingness of non-governmental personnel to talk fully and

12

frankly with the United States and was a natural and probable

13

consequence of PFC Manning's actions and not based on any intervening

14

event that played the only important part in bringing about that

15

effect.

16

This conclusion that PFC Manning's misconduct resulted in

Ruling:

This opinion testimony is similar to the opinion

17

testimony in One above and is admissible aggravation under R.C.M.

18

1001(b)(4) for the -- a limited duration and time following the

19

WikiLeaks releases or subsequent media accounts of the WikiLeaks

20

releases in the various countries, as set forth in the court's ruling

21

in One above.

22
23

Four, the testimony related to the belief that some
embassies included less information in their reporting than they did

12136

15721

1

before out of the fear that the information would not be protected.

2

Under Secretary Kennedy testified that the act of reporting less

3

information was a self-generated limitation on information from

4

various embassies and not the result of the direction by the

5

Department of State.

6

directly related to or resulting from PFC Manning's misconduct under

7

R.C.M. 1001(b)(4).

8

The defense objects to this testimony as not

Government position: Under Secretary Kennedy's opinion that

9

embassies included less information in their reporting was based on

10

facts or data perceived by or made known to Under Secretary Kennedy

11

before the hearing.

12

resulted in embassies including less information was the natural and

13

probable consequence of PFC Manning's actions and not based on any

14

intervening event that played the only important role in bringing

15

about that effect.

16

Ruling:

His conclusion was that PFC Manning's misconduct

The testimony that PFC Manning's offenses caused

17

some embassies to include less information in their reporting for

18

fear that information will not be protected is admissible under

19

R.C.M. 1001(b)(4) but is limited in time to the periods directly

20

following the WikiLeaks releases or directly following subsequent

21

media accounts of the WikiLeaks releases in the various countries as

22

set forth in the court's ruling in One above.

12137

PFC Manning's offenses

15722

1

directly resulted in the decisions by certain embassies to report

2

less information in their cables.

3

Five, the testimony related to the belief that the

4

disclosures had a chilling effect on diplomatic reporting and that

5

the disclosures have had and will continue to have an impact on

6

reporting for some indefinite period.

7

testimony as not being directly related to or resulting from PFC

8

Manning's misconduct under R.C.M. 1001(b)(4) and also as being

9

speculative.

10

Government position:

The defense objects to this

Under Secretary Kennedy's opinion on

11

the chilling effect of diplomatic reporting and his opinion on the

12

future impact on reporting were based on facts or data perceived by

13

or made known to Under Secretary Kennedy before the hearing.

14

conclusion was that PFC Manning's misconduct resulted in this

15

chilling effect and the future impact and these results were the

16

natural and probable consequences of PFC Manning's actions and not

17

based on any intervening events that played the only important role

18

in bringing about those effects.

19

Ruling:

His

A. Under Secretary Kennedy's opinion on the

20

chilling effects on diplomatic reporting occurring during periods

21

directly following the WikiLeaks releases or directly following

22

subsequent media accounts is admissible under R.C.M. 1001(b)(4) as

23

directly related to or resulting from PFC Manning's offenses.

12138

15723

1

B.

The foundation for Under Secretary Kennedy's opinion

2

that PFC Manning's misconduct resulted in WikiLeaks' disclosures of

3

purported Department of State cables caused a long-term chilling

4

effect on diplomatic reporting that continues to date and will

5

continue into the future is not based on any quantifiable data.

6

is speculative and inadmissible under M.R.E. 403.

7

consider it.

8
9

It

The court will not

Six, the testimony that due to the perceived chilling
effect on diplomatic reporting, the decrease in information has had a

10

negative effect on policy makers in Washington, D.C. and our

11

interagency partners.

12

testified that policy decisions are being made based on incomplete

13

information, because other countries choose not to engage, or chose

14

not to engage in full and frank reporting, which reporting is relied

15

upon by policy makers.

16

directly related to or resulting from PFC Manning's misconduct under

17

R.C.M. 1001(b)(4) and also as being speculative.

18

objects based on foundation since Under Secretary Kennedy did not

19

explain how he is familiar with policy making, the various variables

20

that go into policy making, and how diplomatic reporting fits into

21

policy making.

22

Under Secretary Kennedy did not explain what type of policy making he

Specifically, Under Secretary Kennedy

The defense objects to this testimony as not

The defense also

Also, "policy making" is an extremely broad category.

12139

15724

1

was referring to and certainly he is not an expert on policy making

2

in general.

3

Government position:

The government qualified Under

4

Secretary Kennedy as an expert in the fields of "management and

5

operations of the Department of State," and "the use of diplomatic

6

reporting by United States policymakers."

7

contest this expertise.

8

impact to policy makers in Washington, D.C. and interagency partners

9

was based on facts or data perceived by or made known to Under

The defense did not

Under Secretary Kennedy's opinion on the

10

Secretary Kennedy before the hearing and not speculative in nature.

11

His conclusion was that PFC Manning's misconduct had a chilling

12

effect that negatively affected policy makers, which was the natural

13

and probable consequence of PFC Manning's actions, and not based on

14

any intervening event that played the only important role in bringing

15

about that effect.

16

Ruling: A.

Under Secretary Kennedy's testimony about

17

policy making in general, the variables that go into policy making

18

and how diplomatic reporting fits into policy making is within his

19

expertise on the use of diplomatic reporting by United States policy

20

makers and his 40 plus years of working at the highest levels of

21

inter -- of the

22

admissible, and is admissible to lay the foundation for his opinions

23

in One, Three, Four, and Five above.

interagency decision making organizations is

12140

15725

B.

1

The foundation for Under Secretary Kennedy's opinion

2

that the accused offenses had a negative effect on policy making in

3

Washington, D.C. and our interagency partners and that policy

4

decisions are being made based upon incomplete information because

5

other countries chose not to engage in full and frank reporting,

6

which reporting is relied upon by policy makers, is not based on any

7

quantifiable data, it is speculative and inadmissible under M.R.E.

8

403.

The court will not consider it.
M.R.E. 403 analysis.

9

Under Secretary Kennedy was properly

10

accepted as an expert in management and operations of the Department

11

of State and in the use of diplomatic reporting.

12

of those portions of his testimony ruled admissible as aggravation

13

evidence under R.C.M. 1001(b)(4) is not substantially out-weighed by

14

the danger of unfair prejudice under M.R.E. 403.

15

limited the scope of the opinion to the periods directly following

16

WikiLeaks releases or directly following subsequent media accounts of

17

WikiLeaks releases in the various countries.

18

of August, 2013.

The probative value

The court has

So ordered the 6th day

And I believe that ruling is already an Appellate Exhibit;

19
20

is that correct?

21

witness?

Anything else we need to address before we call the

22

CDC[MR. COOMBS]:

23

TC[MAJ FEIN]:

No, Your Honor.

No, ma'am.

But may the parties have a moment?

12141

15726

1

MJ:

Yes.

2

[There was a pause while the trial counsel conferred at the counsel

3

table.]

4

TC[MAJ FEIN]:

No, ma'am.

5

MJ:

6

ATC[CPT OVERGAARD]:

No further issues.

Please call the witness.
United States calls Mr. James McCarl.

7

JAMES MCCARL, civilian, was called as a witness for the prosecution,

8

was sworn, and testified as follows:
DIRECT EXAMINATION

9
10

Questions by the assistant trial counsel [Captain Overgaard]:

11

Q.

And you are Mr. James McCarl?

12

A.

Yes.

13

Q.

What is your current position?

14

A.

I'm the Chief of the Mission Integration Division for the

15

Joint IED Defeat Organization’s Counter-IED Operations Intelligence

16

Integration Center.

17
18

Q.

Okay.

You are the division chief, basic -- or the Chief

Mission Integration Division?

19

A.

That's correct.

20

Q.

Okay.

21

That’s what you said?

And then what does -- and then you said the counter-

IED operations integration center?

22

A.

Yes.

23

MJ:

Chief of -- say that one more time.

12142

15727

1

WIT:

Okay.

2

ATC[CPT OVERGAARD]:

3

WIT:

It was fast for us.

I am the division Chief for the Mission Integration

4

Division, that division is a part of the counter-IED operations and

5

integration center which is a subordinate portion of the Joint IED

6

Defeat Organization.

7

Questions continued by the assistant trial counsel [Captain

8

Overgaard]:

9

Q.

And what is -- how long have you been in that position?

10

A.

Almost 6 years.

11

Q.

And what is the mission of the Joint IED Defeat

12
13

Organization or JIEDDO?
A.

It was originally established to deal with the IED threat

14

that emerged in Iraq and subsequently also in Afghanistan.

15

three essential lines of operation.

16

device.

17

to defend against an IED or to detect it.

18

the force how to use that equipment and how to work tactically

19

against IED's.

20

is in attacking the network, which is to do the intelligence analysis

21

about how IEDs are employed, who's doing that, and then provide to

22

tactical units a method by which they can strike back at the threat.

It has

Those are, first, to defeat the

By that I mean, it is technically applied against -- either
The second one is to train

And the third one, in the area where I operating in,

12143

15728

Q.

1

And then you said that another subset, or the subset under

2

which you work is the JIEDDO Counter-IED Operations Integration

3

Center?

4

A.

Operations and Intelligence Integration Center.

5

Q.

Can you explain to us what that means?

6

A.

It is -- I can.

The COIC is what is known as and it

7

essentially handles all of that third line of operation, which is the

8

attack the network portion.

9

the moment, slightly over seven hundred, at its apex about nine

And so in my capacity I supervise, at

10

hundred, intelligence and operations analysts, about two hundred of

11

which were forward in Afghanistan and Iraq all the way down to

12

battalion level.

13

them in allowing them to attack the threat networks that put out

14

IEDs.

15
16

Q.

And you said you've been the Chief Mission Integration --

the Chief for the Mission Integration Division for 6 years?

17

A.

Yes.

18

Q.

Okay.

19

And our purpose is to provide analytic support to

Almost, it will be 6 years in October.
And you're here today to testify as an expert in

adversary use of improvised explosive devices or IEDs?

20

A.

Yes.

21

Q.

And specifically, you will provide specialized knowledge on

22

what purported information was released by the WikiLeaks in CIDNE

23

databases and your opinion on: One, how the adversary can use the

12144

15729

1

information that was released; and two, the changes in enemy IED TTPs

2

following the releases of the purported U.S. Government information?

3

A.

Yes.

4

Q.

And if any questions that you're asked today, sir, require

5

you to disclose classified information or you believe will require

6

you to disclose classified information, please just let us know and

7

we'll answer -- ask those questions in a closed session.
Now, sir, what effects do IEDs have on military efforts?

8

A.

9

Well, it's a matter of record that the IEDs are the number

10

one casualty producer in both Iraq and Afghanistan.

11

apex, probably accounted for about 80% of all the casualties were a

12

result of an IED event.

13

now.

14

It's -- at its

So it sort of goes between 60 and 80% right

But it's the significant weapon of choice by the threat.
Q.

And you mentioned the obvious threat in Iraq and

15

Afghanistan, are IEDs used elsewhere against U.S. forces in the

16

world?

17

A.

So the answer is yes on two planes.

There are a number of

18

IE -- every month between seven hundred and a thousand IEDs go off

19

around the globe in other places.

20

are on the ground, for example, there are special operations forces,

21

and I would not be able in this form to go into those locations, but

22

there are special operations forces throughout Africa and Latin

23

America who potentially are in contact with those but they're not as

12145

There are places where U.S. forces

15730

1

prolific against U.S. persons as they are in Afghanistan, but they're

2

certainly prolific against U.S. interest and allies.

3

Q.

Where does JIEDDO -- where do they primarily operate?

4

A.

Originally we were focused strictly on Iraq and Afghanistan

5

to the forces in contact there.

6

that allows us to -- and we do operate, in support of every one of

7

the combatant commands around the globe.

8
9
10
11

Q.

Now we have an expanded portfolio

And you said Iraq and Afghanistan were some of the primary

places that JIEDDO operated.

What do members of JIEDDO do in

theater?
A.

It follows the three lines of operation that I described.

12

So it deploys equipment, both protective equipment -- and that could

13

be for an individual or it could be protective equipment like the

14

MRAPs which were fielded as vehicles that were resistant to IEDs,

15

that is one application.

16

have trainers who observe the enemy TT and P and then attempt to

17

synthesize that into methods that you can use to counter that.

18

then the third is where my particular effort is and that is that I

19

have analysts, operations specialists, and analysts all the way down

20

to battalion level whose job it is to expose the network,

21

analytically examine and expose what the enemy network is.

22

people who build the IEDs, put them out, and make that exposure

The second one is to train the force.

12146

The

We

And

15731

1

available to the action arm to attack that network, either kill or

2

capture.

3
4
5

Q.

And the third line of operation that you described, is that

primarily done in theater or is that done stateside as well?
A.

Well, there's two parts to it.

Obviously, the first

6

portion is to understand the network.

So the bulk of that is done

7

back here in the U.S. where my effort is to synthesize and integrate

8

intelligence from around the intelligence community and from wherever

9

else we can acquire it, allies, et cetera, that's the see portion,

10

see the enemy portion of that mission.

The attacking the network

11

portion, JIEDDO has no authority there.

12

the combatant commander and on down to his tactical units who do have

13

the authorities.

14

a forward presence that allows them to attack the network there, in

15

theater.

Its position is to empower

And so we're basically providing that to them with

16

Q.

And what types of data do you use to compile this analysis?

17

A.

It's an ever-expanding and changing set, but we take about

18

two hundred different data feeds.

Many of them are the traditional

19

data feeds that you would get from the intelligence community, the

20

SIGACTS that come out of the combatant command and the tactical units

21

in the field.

22

or information as well.

23

of those things, because they help expose portions of the network

But we also use nontraditional types of intelligence
Business intelligence, threat finance, all

12147

15732

1

that you wouldn't see otherwise.

So as a dynamic -- it’s a dynamic

2

piece, it changes all the time, but roughly about two hundred

3

different data feeds.

4

Q.

Did that include Department of State Cables?

5

A.

It did.

6

Q.

And basically all the INTs?

7

A.

Yes ----

8

Q.

Depending on whether or not ----

9

A.

---- every ----

10

Q.

---- they're relevant?

11

A.

Everything that comes out of the intelligence community

12

that is available to -- that is available we will use and have access

13

to.

14
15
16

Q.

And who typically tasked JIEDDO with preparing analytical

products?
A.

There are two sources.

One would be sort of the

17

programmatic community who is -- who are attempting to either create

18

a new or produce a new piece of equipment.

19

electronic warfare system to defeat a remote controlled IED, or it

20

could be, but more often in my case, it is a bottom up piece that

21

comes from the supported unit on the ground in the field.

22

they would ask us, they could ask us any number of types of

23

analytical questions and we'll provide that support.

12148

Whether it be an

And so

15733

Q.

1
2

So it typically -- does it typically come from the

combatant commands?
A.

3

It typically comes from the units in contact for us.

Now

4

that’s -- there are no absolutes in this.

We get requests from the

5

combatant commands themselves at the, you know, the four-star level.

6

We have gotten requests from support outside of DOD, State Department

7

for example.

8

have, we have been in business, we have done eighteen thousand plus

9

requests for support.

But the bulk, you know, put it in perspective, since we

Each one of those is an analytical effort of

10

some kind, some are large, some are small.

11

vast majority of that comes from the tactical units in the field who

12

are looking for support on a counter-IED problem that they're trying

13

to solve.
Q.

14

But the bulk of that, the

And when you're responding to these requests for analysis

15

from tactical units, could you give an example of how that would

16

work?

17

with that information?

18

What -- how would you receive it and then what you would do

A.

Right.

Well, I'll give you two examples just so -- because

19

they're slightly different.

Unit going into the field to take up a

20

position and own the battle space will typically ask us questions,

21

like, “Where are the IEDs going off?”, “What are the high density

22

areas?”, “Where can we expect to see IEDs?”, “What kinds of IEDs will

23

these be?”, “Will they be pressure plate, command wire, remote

12149

15734

1

control, all of the above?

Who is the network that's supplying this?

2

Do we know the names of the people in that network?

3

bed down?

4

have of a pattern of life on them so that we can strike that now?”

5

So tha -- a lot of that is about situational awareness because

6

they're going there the first time.

Where are their compounds of interest?

Where do they
And so, do you

Longer term battle space owners will typically begin to

7
8

integrate our products with their planning for their next operation.

9

So we typically plan -- we typically support operations on a weekly

10

basis.

They will say back to us, “We're going to go into this

11

particular area, we need to know what to expect in there.”

12

give them a build-out similar to the one I just described, but it

13

will help them shape their ISR and then subsequent their op ----

We'll

14

Q.

What is ISR?

15

A.

Their intelligence, surveillance, and reconnaissance.

So

16

before an operation goes down, typically they have what's in the

17

vernacular in the theater, called the ISR soak.

18

week, could be more, in which they will assemble over the expected

19

area of operation all of the intelligence and surveillance and

20

reconnaissance assets that they need to begin to understand what is

21

happening on that particular piece of terrain.

22

that because we have our own understanding of that terrain and our

23

own analyses that will point that ISR to particular places.

12150

So it might be a

We will help steer

And then

15735

1

support subsequently the pattern of life on individuals in there that

2

they're going after.

3

Q.

And sir, before you joined JIEDDO what was your career?

4

A.

I was -- served for 30 years in the United States Army,

5

retired as a colonel.

6

different combat tours in various places.

7

and ran the INSCOM intelligence and operations center, as well as I

8

ran, for 2 years, the Army's Red Team for -- directly for the Vice

9

Chief of Staff of the Army at that time, General Cody.

Commanded a battalion and brigade.

Had four

And most recently stood up

And then the

10

last thing before I retired, I served a tour in Afghanistan as a

11

Chief of Staff for the national mission force SOTF, task forces in

12

Afghanistan.

13

Q.

And did you say your branch, sir?

14

A.

I was military intelligence.

15

Q.

Could you tell us a little bit more about the Red Team --

16
17

the Red Team projects that you worked on?
A.

Right.

So the idea, when General Schoomaker was the Chief

18

of Staff of the Army he was a big believer in Red Team and he

19

institutionalized this idea by creating a Red Team University that

20

taught people how to do it.

21

threat.

22

question than a pure intel question.

23

I'm going to be on this particular piece of terrain or I'm going to

And its purpose is to emulate the

And so it allows the commander to ask a slightly different

12151

For example, I'm a commander,

15736

1

be doing this particular activity, if you were the enemy, how would

2

you react under these conditions, at this time, what kind of

3

scenarios would we see from that?

4

through mitigation strategies and how they might deal with those

5

possible scenarios and so as a Red -- as the Chief of the Army's Red

6

Team for 2 years, essentially I spent about once a month I spent a

7

session with the Chief of Staff, Vice Chief, and all the principals

8

in the bunker at the Pentagon sparring with them as their adversary.

9

And it included both Jihadist radical philosophy and IED component

10

parts to it.

11

Q.

12
13

That allows commanders to think

Did you also -- did you work with JIEDDO at all in that

capacity?
A.

I did.

As JIEDDO began to emerge as an organization -- it

14

got its start as an Army organization, transitioned to a joint

15

organization.

16

JIEDDO -- Red Team projects.

17
18
19

Q.

So in its early days we did several projects for

And sir, as one of the senior intel officers at JIEDDO, who

relies on your expertise in the adversary use of IEDs?
A.

Well, all of the, essentially all of those requests for

20

support, every one of those things is my responsibility.

21

extension at any one time I've got two hundred analytic projects that

22

are -- that rely on my support and my expertise because I do, and am

23

responsible for, the quality control of those products going down to

12152

So by

15737

1

the tactical commanders.

2

commander, or even down to platoon leader.

3

headquarters itself, I am one of the senior intelligence officers

4

there so, therefore, the JIEDDO director also uses me.

5

I was his subject matter expert just last week in the briefing to

6

Congress.

7
8
9
10

ATC[CPT OVERGAARD]:

That can be division commander, corps
And within the JIEDDO

For example,

And ma'am, we, at this time, offer Mr.

McCarl as an expert in adversary use of IEDs.
ADC [MAJ HURLEY]:
MJ:

All right.

No objection, ma'am.
So accepted.

11

Questions continued by the assistant trial counsel [Captain

12

Overgaard]:

13
14

Q.

Sir, are you familiar with the WikiLeaks release of

purported U.S. Government information?

15

A.

Yes.

16

Q.

And when did you first become aware of that alleged release

17

of U.S. Government information?

18

A.

19

in the news.

20

Q.

21
22
23

Well, just like the rest of the general public, when it was

Was JIEDDO given any tasking in the aftermath of the

alleged release?
A

Yes.

In September of 2010, CENTCOM, Deputy J-3, sent a

request for support to us and it asked us to take a look at a

12153

15738

1

selected set, they selected them, of leaked reports.

2

three thousand seven hundred and ninety.

3

JIEDDO evaluation of what we thought the impact was as a result of

4

those leaks from an IED perspective.

5
6

Q.

There were

And to provide to them a

In the three thousand seven hundred and ninety reports that

you mentioned, where were they from?

7

A.

Those were all from the SIGACTS from Afghanistan.

8

Q.

Did they do another tasking on any ----

9

MJ:

I’m sorry, what was the number?

10

ATC[CPT OVERGAARD]:

11

WIT:

12

ATC[CPT OVERGAARD]:

13

MJ:

---- three thousand -- did I switch it?

Three thousand seven hundred and ninety.
Okay.

Thank you.

14

Questions continued by the assistant trial counsel [Captain

15

Overgaard]:

16
17
18

Q.

Did they also ask you to look at any of the CIDNE-I

SIGACTS?
A.

They did.

That followed in the next part of the following

19

year in early 2011.

20

know, here's a hundred and eleven thousand leaked SIGACTS from Iraq.

21

We'd like you to do the same thing.”

22
23

Q.

They came back to us and said, “Here's, you

And why was it necessary to determine what IED related

information may have been compromised in the purported devices?

12154

15739

1

A.

Well, it is the same -- it's the same principles as you

2

would apply to any of this.

You are absolutely -- it's essential to

3

understand what your OPSEC loss is, what your adversary may be able

4

to glean from that in order to anticipate, you know, what their

5

actions are going to be and then subsequently deal with them.

6

Q.

And sir, what role did you play in this tasking?

7

A.

Well, as the Mission Integration Division Chief, I handled

8

the quality control portion of this.

So I assigned out to three

9

different sub-elements of my division the analytic process, “I need

10

you, the ORSA guys, to do the statistical analysis on.”

11

Red Team guys to take that perspective and look at how the enemy

12

might react to it and then I asked my open source guys to take a look

13

at what reflections and what you might expect to see from both allies

14

and from the Jihadists themselves.

15

things, assigned -- I assigned an integrator, a lead for this to put

16

the product together.

17

two quality control checks before they go out.

18

really more at that point as the supervisor looking at the quality

19

control.

20

Q.

I needed the

So we assigned those three

And then, like all of our products, they get
And so I was involved

I was not the analyst who did the reading.
So you were -- so just to break it down, you were in charge

21

of these three different analytic teams who were conducting the

22

analysis?

23

A.

That's correct.

12155

15740

1
2
3

Q.

And you said there was the ORSA was the first one?

What

does ORSA mean?
A.

That's the Operational Research Systems Analysis.

It's a

4

essentially a capability that, in this case, we're using to do

5

statistical analysis to and to help us pull from these gigantic

6

mounds of data how we can sort it and understand it so that we're

7

using statistical analytic tools to help us rack and stack the

8

materials and to look for things in there that then key the analyst.

9
10
11

Q.

And then you also said you had the Red Team, which looked

at what the enemy would do if they had the information?
A.

Correct.

So if you had a particular vulnerability you

12

would -- the Red Team would give a perspective on, “If we were the

13

threat and we had this, how might we react?”

14

to the customer some understanding of what types of scenarios might

15

play out as a result of this.

So this provides back

16

Q.

And the customer in this case was CENTCOM J-3?

17

A.

Correct.

18

Q.

And then the third team that you had said was the open

19

source team?

20

A.

Correct.

21

Q.

So what was their primary focus?

22

A.

Well, again, what we're looking for there was the sweep

23

through all of reflections that we could find in open source,

12156

15741

1

particularly the Jihadist web sites but also in open news reflections

2

in allies.

3

Afghani governments, how were they reacting to this.

4

some understanding or perspective on how they, you know, viewed this.

5

Q.

For example, how were the Pakistanis, how were the

Okay.

Going back to the ORSA.

So it gave us

You said they sorted and

6

understand and used some analytic statistical processes to make their

7

determinations.

8
9

A.

Okay.

Could you walk us through what they did?
Not being an ORSA I'm going to give you a general

description of how this goes.

But essentially when you have a

10

hundred and eleven thousand different leaked reports, you have to

11

have a method by which you -- you have to have somewhere to start,

12

because you simply don't have time to read every single message.

13

the analysts began, read about three thousand roughly, correction,

14

about two thousand reports and from that got an understanding of what

15

the main key ideas and key words would be in what we were looking at

16

that were associated with the task, the analytic task of -- that we

17

were assigned.

18

script that would then allow the computer to rack and stack those

19

different reports into different categories or subject areas where we

20

could then begin to examine those each as an idea as opposed to just

21

randomly sweeping through a bunch of ideas and hoping that you can

22

figure it out later on.

So

The ORSA guys then wrote a script -- helped write a

12157

15742

Q.

1

And then after they were pulled through the -- well,

2

through the reading and computer process, did a person read all of

3

that information?
A.

4

They did.

They read the highest end sampling of those.

As

5

well, there was a -- sort of a cut off line as to how much you could

6

read of it.

7

words, raised level of hits, from that and then they read those and

8

provided the analytic work from that.
Q.

9

But they take the ones that had the most of the key

And you said they were separated into basically subject --

10

different subject areas.

11

all?

12
13

A.

Yes.

Was the severity of threat evaluated at

There was three categories of severity that we

applied.

14

Q.

15

detail?

16

A.

Well, there was high, medium, and low.

17

Q.

Okay.

18
19

And what were those three areas, without going into any

And sir, how long did the review last of all this --

a hundred and fifteen thousand approximately, SIGACTS?
A.

Well, there are a number of events going on concurrently

20

and some sequentially and then some with breaks in them, so it's not

21

easy to give you a linear description.

22

calculation, is that we spent 855 man hours, which equates to about

23

roughly $200,000 to pay all those people to do that work.

12158

I'll give you -- here's our

15743

Q.

1
2

been doing if they weren't conducting this review?
A.

3
4

And sir, what would these individuals, these analysts, have

Well, they would have been supporting tactical units in the

field.

5

Q.

Did this impact the primary mission of JIEDDO?

6

A.

Well, it impacted our mission because we had to divert

7

resources away from the tactical units in order to be able to do

8

this.

ATC[CPT OVERGAARD]:

9
10

ADC [MAJ HURLEY]:

Ma'am, we don't have any open cross-

MJ: I just have one brief question.
EXAMINATION BY COURT-MARTIAL:

14

Questions by the military judge:
Q.

16
17

That's the end of our open

examination.

13

15

All right.

direct, ma'am.

11
12

I can't quantify what that is, but it's intuitively obvious.

And if you can't answer this in an open setting, please

don't, but how long did each of these reviews take?
A.

18

Rough order of magnitude’s about three weeks on the first

19

one.

20

about maybe four weeks just to get it underway.

21

The second one was much larger so it took a little longer,

Q.

Okay.

So to get it underway?

12159

15744

A.

1

Well, I take it back.

Just to get it underway to the point

2

that we could then take a look at the -- and rack and stack it into a

3

particular product.

4

Q.

How long until the end product?

5

A.

About 5 weeks I'd say.

6

MJ:

Any follow-up based on that?

7

ATC[CPT OVERGAARD]:

8

ADC[MAJ HURLEY]:

9

MJ:

10

All right.

No, ma'am.
So the government wants to move into a closed

session; is that correct?

11

ATC[CPT OVERGAARD]:

12

TC[MAJ FEIN]:

13

No, ma'am.

Yes, ma'am.

And ma'am, this is pursuant to your previous

order Appellate Exhibit 550.
MJ:

14

Thank you.

Now I'd like the parties to confer so I can

15

advise the public when you anticipate that the next open session will

16

be.

17

[There was a pause while the counsel conferred at their counsel

18

tables.]

19
20

And remember, yesterday I believe was about a half an hour
early that -- so be generous with your time.

21

TC[MAJ FEIN]:

Yes, ma'am.

22

ADC[MAJ HURLEY]:

23

TC[MAJ FEIN]:

1500, ma'am.

1500, ma'am.

12160

15745

1

MJ:

All right.

Members of the public, we are now going to

2

proceed into closed session.

3

until 1500 but there are additional preparatory steps that counsel

4

need to take before we call the next witness.

5

the next open session at 1500 or 3:00 this afternoon.

6

recess do we need?

7

TC[MAJ FEIN]:

8

MJ:

9
10

Mr. McCarl, during the recess please don't
We'll allow you to go ahead and

And anything else we need to address before we recess the
court?
TC[MAJ FEIN]:

14

MJ:

16

How long of a

step down.

13

15

So we're going to have

20 minutes, ma'am.

discuss your testimony with anyone.

11
12

All right.

The closed session is not going to last

No, ma'am.

Court is in recess.

[The court-martial recessed at 1056, 7 August 2013.]
[END OF PAGE]

12161

15746

Pages 12162 through 12226 of
this transcript are classified
“SECRET”. This session (7
August 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.

15747




I

pl.

[The court?martial was called to order at 1139, 7 August 2013.]

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

Court last recessed are again present in court. The witness is on

the witness stand.

Major Fein, please announce the status of the hearing.

Yes, ma'am. Ma'am, this is a closed session,

classified at the SECRET level. The court security officer completed

a closed hearing checklist which will be filed with the post?trial

allied papers. Also present with the parties is the bailiff, the

Court's paralegal, members of the defense team, members of the

prosecution team, and court security.
MJ: Captain Overgaard?
ma'am.

Yes,

JAMES civilian, already on the stand as a witness for the

prosecution, was reminded of his oath, and testified as follows:
DIRECT EXAMINATION
Questions by the assistant trial counsel
Q. In the open session we talked about the severity of the
threat that was evaluated by your team.

Could you go into and

explain, first, what low severity meant?



?Ii


Closed Session 1 1 2 1 62

SQSREIF

Okay. And then, you said,

tell us what that means?

A.

Q.

MJ:

WIT:

CbsedSes?on2

And finally,

Say that one more time.

12163

15748

Could you

15749

Correct.
16 Q. And,

17

18 A.

19 Q. And, what did you do after you determined??you made these

20 determinations, what happened next?
21 A. So, the entire product was packaged together. You are

22 asking about process now? Are you talking about disposition?



Closed Session 3 1 2 1 64

Closed Session 4

Yes, sir.

And sir,



12165

15750

15751

MJ: You said, are you talking about one?

WIT: I am sorry, well in this case she asked for an example,

oorreotion, it was a??I am

thinking about something different. A series??aotually a series of

messages in there that identified that.

Q.

A. Yes.

Q.

A. I do not recall which one it was. I think it actually was

in those but that is a faint recollection that it was in both.
Q. And sir,
Was there??oould you give an example,

for example,

Closed Session 5

12166

Closed Session 6

And sir,

Yes,

sir.

in your opinion,

12167

15752

Closed Session 7

S-E-GR-EJF

12168

15753

MJ:

Yes?



Objection, ma'am.



MJ:



MJ:

A.

Q.

CbsedSes?on8

Got

That

So,

it.
Sorry to interrupt, Your Honor.

is fine. Go ahead.

what would you like me??how do you want



12169

15754

SQSREIF

Pardon me, ma'am.
MJ: Yes?
1001(b)(4).

MJ: Got it.

Q.

Closed Session 9 1 2 1 7 0

15755

MJ: Yes?



have the same question.
MJ: Okay,
WIT: Okay,



CbsedSesdon10

15756

talking about those specific examples,

Hold on just a moment.

Ma'am, the hand gestures of the witness,

I can't see them.

He said,



l2l7l

I

Closed Session 11

Describe for the record please.

Thank you, sir.

What do you mean by



12172

15757

Closed Session 12

Okay.





12173

15758

Yes, sir.

13:;

MJ: How many?

A.

Closed Session 13

So,

in your opinion,

12174

15759

15760








Ma'am, if we may just put this on the record

and then obviously reiterate in our filing. We would make an

objection under l00l(b)(4). Also, the speculative nature of the

testimony that Mr. MoCarl just rendered and we believe it also

exceeds the foundation of his expertise.

MJ: Okay, on the final basis, that is overruled.

But go ahead, okay.

Q. Sir, you said the And, you talked

about??you said,

A. It runs generally parallel. We just looked at it from
2009. We went back and looked back at the numbers reported??
So, they run something in a parallel
oourse.
Q.
A. Correot.
Q.
A. It is.
Q.

Closed Session 14

12175

stop you there.

WIT:

MJ: Thank you.
WIT: I'm sorry.

Say your question again, I'm sorry.

.331

One moment please.

[The trail oounsel oonferred.]

Thank you, sir; ma'am.
Q.
A. Well, in all of those categories they were there,



Closed Session 15

12176

15761

MJ:

WIT:

MJ:

WIT:

MJ:



MJ:

Q.

CbsedSes?on16

Okay.
When I say,

Okay.

Ma'am, the same 1001(b)(4)
Okay.

And, you said that was

Yes.

Did you



12177

objection.

15762

Closed Session 17

S-E-G-P2543

12178

15763

15764

Q. In that movement away, did that start after WikiLeaks, or

after the release of that Department of State oable?
A. That really began within the last, the significant move,
really began within the last year, within the last year.
Pardon
MJ: I have got the objection.


Thanks, ma'am.

MJ: Let me just stop you there and ask you this question then.

If it started this year, how do you oorrelate that with WikiLeaks
release?

WIT:

CbsedSes?on18

12179

MJ: All right, thank you.

DIRECT EXAMINATION CONTINUED:

Q.

CbsedSes?on19

12180

15765

15766

Captain OVergaard??

No further questions, thank you.
MJ: Defense?
Yes, ma'am. Mr. MoCar1, ma'am, it's going to

take a second to get organized, if that's okay?
MJ: That's fine.
CROSS EXAMINATION
Questions by the assistant defense counsel
Q. Good morning, Mr. MoCar1.

A. Good morning.

Q. Sir,

Closed Session 20

12181

15767

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