Title: Volume FOIA 065

Release Date: 2014-03-20

Text: 20699

Volume 65 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)
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

20700

Script Ibr Initial Clostrre Hearing
(^l)United States or Defense files "Request fbr Closed Session^s^ under Military Rule of
Evidence 505(^)(5)and Rule forCourtsMartial^06(b)(2)
(^2) Military Judge setsahearing to discuss whether trial will be closed;
(^3) Moving party outlines what testimony^evidence they would like to present inaclosed
session; other party responds; militaryjudge makes findings
TC^C: Ma'am, the (United States)(Defense)requestsaclosed session under MRE 505(j)(5)
session)(the trial).
MJ: Maylsee the govemment requests
MJ: The govemment wishes to present classified evidence in support ofits request, is that
corrects
TC:Yes, Ma'am.
MJ: Defbnse, do you have any objections'
DC:
MJ: Iwill now close the court. Iwill callarecess, and when we retum, the only personnel in
the courtroom will be the accused, (^
) defense counsel, (^
) trial counsel, the court
security officer, those personnel detailed to the defense and prosecution teams, the
representatives ofthe relevant govemment agencies, the Military Judge'ssupport paralegal, the
Court Reporter, and myself The audio and video feeds to the media center and the theater will
be severed.
MJ: The court is in recess.
^CONDUCT CLOSEDSESSIONDRILL)
MJ: This Article 3^(^a)session is called to order. Let the record reflect that we are now ina
closed Article 3^^a)session. The audio and video feeds to the media center and the theater have
been severed. The audio and video feeds to the Defense and Govemment support trailers are not
severed, and only properly cleared members ofthe defense and prosecution teams are in the
trailer. The only personnel in the courtroom are the accused,(^
) defense counsel,(^
)
trial counsel, the court security officer, the accused, those personnel detailed to the defense and
prosecution teams, the representatives ofthe relevant govemment agencies, the Military Judge's
support paralegal, the Court Reporter, and myself

20701

TC: This closed Article 39(a) session is classified
expected classification level).''''

{state highest

TC/DC: Ma'am, the (United States)(Defense) requests you close the proceedings for (the
testimony of/the introduction of) under MRE 505(jX5) and RCM 806(b)(2)
MJ: On what grounds?
TC/DC: The (United States)(Defense) has reason to believe (the testimony/the evidence) may
disclose classified information. The (United States)(Defense) anticipates that the
testimony/evidence will disclose information relating to (provide an unclassified summary of the
classified testimony/evidence).
MJ: (United States)(Defense), do you have any objections?
TC/DC:
MJ: Govemment, can you confirm the information is classified?
TC: Yes, Ma'am. The United States offers (
memorandum)(security officer) to confirm that
this testimony/evidence has been properly classified at the (classification level) level.
{TC hands the documents in question to the court security officer and defense)
TC: The United States is handing you what has been previously marked as Appellate Exhibit
{exhibit number) which is the {classification review/memo) for this information.
M J : Defense, do you have any objection to this exhibit?
DC:
TC: Closing the proceeding is necessary to protect this classified information, an overriding
interest specifically enumerated under MRE 505(j)(5). The value of protecting this classified
information, the disclosure of which (list each item and give security damage levels for each)
\{CONFIDENTIAL; "could reasonably be expected to cause damase to national security")
{SECRET; "could reasonably be expected to cause serious damase to national security ") {TOP
SECRET: "could reasonably be expected to cause exceptionally srave damase to national
security")}, outweighs the value of an open proceeding. No lesser methods short of closing the
proceeding are available. Closure of the proceeding is necessary for the (prosecution to (explain
how prosecution intends to use the testimony of each specific witness/each specific piece of
evidence- elicit classified testimony, discuss classified information in ev/c/e«ce))(defense to
(explain how the defense intends to use the testimony of each specific witness/each specific piece
of evidence- elicit classified testimony, discuss classified information in evidence), accordim to
their motion). Furthermore, closure is necessary to ensure the accused receives a fair trial. The
United States requests you only close the proceeding for those specific portions of the
(testimony/evidence) wherein this classified information may be disclosed. If you authorize a

20702

closed session, the United States requests you make case-specific findings on the record
justifying closure, as required under RCM 806(b)(2).
MJ: Defense, would you like to be heard on this matter?
DC:
(IF APPROVED)
MJ: Imake the fbllowing findings of fact:
(1) that the ^v^^^^^^B^^.^^^^^^^^) has been properly classified ^/^.^.^^/^^^^^^^/^^Z.)
by^^^^^B^^^.^^^^^^/^.^.^^/^^^^^^^^^^^^^;

(2) that protecting this classified infbrmation is an overriding interest;
(3) that the overriding interest of protecting this classified infbrmation will be
prejudiced ifthe proceedings remain open outweighs the value ofan open proceeding;
and
(^) that other methods ofprotecting the infbrmation were considered, but no
lesser methods short ofclosing the proceeding could be used to protect the overriding
interesL The proceeding shall remain closed only fbr those portions of testimony wherein
classified infbrmation may be disclosed.
(lENOT APPROVED)
MJ: ^(thedocument is not properly classified) (protecting this classified infbrmation is
not an overriding interest)(the overriding interest of protecting this classified infbrmation
does not outweigh the value of an open proceeding)(other methods of protecting the
infbrmation will be used (.^^^^^^^/^^^B^^^/^^^.^))(
)^
MJ: Iwill now callarecess, and when we retum, all spectators and media will be seated in the
gallery,and the audio and video feeds to the media center and the theater will be restored. Iwill
then open the court.
TC: This closed Article 39(a)session was classified

(.^^^^^/^^^/^^.^^

^/^.^.^^^^^^^^/^^/)."

MJ: This court is in recess.
(CONDUCTOPENSESSIONDRILL)
MJ: This Article 39(a)session is called to order. Let the record reflect that the court is now
open. The audio and video feeds to the media center and the theater have been restored. All

20703

spectators and media are now seated in the gallery. All parties present in the closed trial session
are again present.
TC: This portion ofthe trial is unclassified.
MJ: Priorto opening this hearing, the Court Security Officer secured, in the courtroom safe, all
classified material not in use, and the court security officer has completed the courtroom opening
checklist. This checklist will be marked as an Appellate ExhibiL
MJ: Imake the fbllowing findings of fact: (Summarize findings offset (Unclassified).

20704

Script to Close the Cot^rtroom tor ClassitiedEvidence or Ar^nment
TC/DC: Your honor, the (United States)(Defense)move to close the courtroom, under your
previous findings conceming this (portion ofthe witnesses testimony)(evidence)(portion of
argument).
MJ: Iwill now close the court. Iwill callarecess, and when we retum, the only personnel in
) defense counsel,(^
) trial counsel,the court
the courtroom will be the accused,(^
security officer, those personnel detailed to the defense and prosecution teams, the
representatives of the relevant government agencies, the Military Judge'ssupport paralegal,the
Court Reporter, and myself The audio and video feeds to the media center and the theater will
be severed.
MJ: This court is in recess.
(CONDUCT CLOSEDSESSIONDRILL)
MJ: This Article 39(a)session is called to order. Let the record reflect that we are now ina
closed Article 39(a)session. The audio and video feeds to the media center and the theater have
been severed. The audio and video feeds to the Defense and Govemment support trailers are not
severed, and only properly cleared members ofthe defense and prosecution teams are in the
trailer. The only personnel in the courtroom are the accused,(^
) defense counsel, (^
)
trial counsel, the court security of^cer, the accused, those personnel detailed to the defense and
prosecution teams, the representatives ofthe relevant govemment agencies, the Military Judge's
support paralegal, the Court Reporter,and myself
TC: This closed Article 39a session is classified
^.^^^^^^^Z^.^.^^^^^^^^/^^/)."

(.^/^^^/^^^/^^.^^

20705

Script to Open the Cottrtroom
MJ: Iwill now callarecess, and when we retum, all spectators and media will be seated in the
gallery,and the audio and video feeds to the media center and the theater will be restored. Iwill
then open the court.
TC: This closed Article 39(a)session was classified

(.^^^^^Z^Z^/^^.^^

^/^.^.^Z/^^^^^^^/^^/)."
MJ: This court is in recess.
(CONDUCTOPENSESSIONDRILL)
MJ: This Article 39(a)session is called to order. Let the record reflect that the court is now
open. The audio and video feeds to the media center and the theater have been restored. All
spectators and media are now seated in the gallery. All parties present in the closed trial session
are again present.
TC: This portion ofthe trial is unclassified.
MJ: Prior to opening this hearing, the Court Security Officer secured, in the courtroom safe, all
classified material not in use, and the court security officer has completed the courtroom opening
checklisL This checklist will be marked as an Appellate Exhibit.

20706

Close Courtroom Battle Drill
Task: Close the Courtroom to Hear Classified Information
1. TC or DC notifiy the MJ of their intent to publish classified information.
2. MJ orders the courtroom closed, following the script.
3. The bailiff makes the closure announcement to the gallery.
4. The MPs advise DES inner cordon guards that the courtroom has been closed.
5. The accused's escorts physically clear the courtroom of all unauthorized personnel,
as per the MJ's order and badge type.
6. The accused's escorts and MPs post as guards outside the courtroom entrances.
7. The TC support paralegal disengages the audio and video feed cables to the media
operations center (MOC) and the theater.
8. The TC support paralegal calls the MOC and the theater to verify they are not
receiving any transmission from the courtroom.
9. The CSO verifies that only authorized personnel remain in the courtroom based on
security badges and the MJ instructions.
10. The CSO retrieves classified information from courtroom safe, as necessary.
11. The MJ support paralegal assists the court reporter with switching to the classified
recording equipment.
12. If digital information is to be displayed, the CSO retrieves the classified laptop from
the courtroom safe and the TC support paralegal connects the laptop to applicable
system.
13. The CSO completes closed hearing checklist and provides it to the court reporter to
be marked as an Appellate Exhibit.
14. The CSO ensures all parties are ready to begin, and then notifies the MJ that his
checklist is complete.

20707

O^er^ Courtroom Battle Drill
1

MJordersthecourtroomopen,followingthescripL

2 Thecourtreporterstopsrecordingandswitchestotheunclassifiedrecording
equipment, with the assistance of the MJ support paralegal.
3. If digital information was displayed,theTC support paralegal will disconnect the
classified display laptop and hand the laptop to the CSO, who will secure the laptop in
the courtroom safe.
4 The court reporter gathers all classified exhibits and hands them to the CSO.
5. TheTC and OC gather all classified information in their areas and hands them to
eithertheCSOortheirsupportpersonnelforproperstorage
^PAOSEO^TILI^JCOI^PLETEST^EUI^CLASSI^IEOSOI^I^AI^Y)
^. The CSO reviews the unclassified summary to verify that it is unclassified.
7. The CSO gathers and secures the MJ's classified material and secures the
information in the courtroom safe.
3. The CSO locks the courtroom safe.
9. The CSO inspects the courtroom for classified information.
10. The CSO completes open hearing checklist and provides it to the court reporterto
be marked as an Appellate ExhibiL
11 The CSO ensures all parties are ready to begin, and then notifies the MJ that his
checklist is complete
12. MJ directs the CSO to open the courtroom.
13. TheTC support paralegal notifies the MOC and the theater the feed will be restored
in5minutes
14. TheTC support paralegal advises DES personnel that the courtroom has been
opened.
15. Escorts post in the courtroom.

20708

18 TheTC support paralegal engages the external audio and video feeds
17. Once the spectators are seated,theTC and OC notify the junior bailiffthat all
parties and spectators are seated
18. The junior bailiff notifies the MJ the hearing is ready to be opened.

20709

Closed Heahno Checklist
All spectators have been cleared out of the courtroom
All remaining personnel possessavalid security badge.
guards are posted outside courtroom entrances.
Classified recording equipment is in place
Audio and video feed to the MOC and the theater are severed
The MJ Unclassified Summary is verified unclassified.

Signed

Time

Oate

20710

Open Hearing Checklist
Classified display laptop (if used) is disconnected and secured in the
courtroom safe.
All the court reporter's classified material and the exhibits are
secured in the courtroom safe
All the TC's classified material is secured in the courtroom safe or
with the prosecution team
All the DCs classified material is secured in the courtroom safe or
with the defense team.
All the MJ's classified material is secured in the courtroom safe
The courtroom safe is locked.
The courtroom does not contain classified information.

Signed

Time

Oate

20711

Bailiff Script for Closed Sessions

COURTROOM HAS NOW BEEN CLOSED.
COURTROOM THROUGH THE DOUBLE
DOORS BEHIND YOU. SECURITY
PERSONNEL WILL ESCORT YOU TO THE
APPROPRIATE TRAILERS OUTSIDE.
THANK YOU."

20712

Williams, Patri, cia CIV JFHQ-NCRIMDW SJA
From:

Sent:
To:

Subject:
Signed By:

Lind, Denise R COL USARMY (US)

(b) (6)

Monday, March 12, 2012 2:11 PM
Williams, Patricia CIV JFHQ-NCR/MDW SJA
FW: CSO Comment/Recommendation (UNCLASSIFIED)

(b)(6)

Classification: UNCLASSIFIED
Caveats: NONE
Tricia,
Pis include this email from Mr. Prather as an AE.
Thank you,
D
Denise R. Lind
COL,JA
Chief Judge, 1st Judicial Circuit

-----Original Message----From: Lind, Denise R COL USARMY (US)
Sent: Friday, February 24, 2012 10:34 AM
To: 'Prather,Jay R Mr CIV USA OSA'
Subject: RE: CSO Comment/Recommendation (UNCLASSIFIED)
Classification: UNCLASSIFIED
Caveats: NONE
Mr. Prather,
Thank you. I will take this under advisement and pass on to counsel for
both sides.
D
Denise R. Lind
COL, JA
Chief Judge,1st Judicial Circuit

APPELLATE EXIDBIT � \ �
1

Page---L..._ ofPage(s)

'-f

.

20713

(b)(6)

-----Original Message----From:

(b0(6)

Sent: Friday,February 24,2012 9:04 AM
To: Lind, Denise R COL MIL USA OSA
Subject: CSO Comment/Recommendation (UNCLASSIFIED)
Ma'am,

I received an "Un-deliverable" from my Office e-mail.

V/r

Jay R. Prather
----Original Message----From: Prather, Jay R Mr CIV USA DCS G-2
Sent: Friday,February 24,2012 8:57 AM
To: Lind, Denise R COL MIL USA OTJAG
Subject; CSO Comment/Recommendation (UNCLASSIFIED)
Classification: UNCLASSIFIED
Caveats: NONE
Ma'am,
After a few hours (overnight) to think things over,as the CSO,I feel
the need To express comments I recommendations in response to yesterday's
arraignment proceedings (motions).
I understand this e-mail/correspondence may become part of court records and
will probably Need to be presented to both the Trial and Defense counsel
teams.
2

20714

I hope I have not mis-construed the defense's motion to basically, have the
CSO be the Classification Decision authority for the Court. I do not recall
the exact verbiage in the motion and understand That the decision on said

·

motion is pending.
Only the Original Classification decision Authority (OCA), the entity who
owns the data, can Make the decision as to what is classified or not
classified, and if it is classified, declassify that sitid data.
With that said, My recommendation is as follows:
1) The Security personnel assigned, Defense, Trial Co.unsel or CSO should
not be placed into a position To make a Security Classification decision
without first consultation with the OCA for that Data. Be it through Direct
consultation with the OCA or in-depth review of OCA Classification
determinations provided thus far In the case.
2) Any Motion, ex parte etc., by either side (Trial Counsel, Defense).
·should have ah OCA review/determination Prior to submission to the Court
This will prevent any potential "Leakage"
of classified data into
an Open Court document, etc. This further protects the Court and yourself.
as the Judge.
3) The Court require a statement/certification to the effect of such review
in (2) above be included within the Motion, ex parte etc...This should
preclude any potentialPerjury ·or conflict of interest issues. In the case
of Defense counsel, I would further recommend that this statement be signed
by the Military counsel assigned, I do not think Mr. Coombs, as a Civilian
Lawyer, would be able to "Certify"
on behalf of the Government.
I am available to discuss further if necessary.
V/r
Jay R. Prather
Senior Program Protection Architect
DAMI-CDS/ARTPC

(b)(6)

3

20715

(b)(6)

Classification: UNCLASSIFIED
Caveats: NONE

Classification: UNCLASSIFIED
Caveats: NONE

Classification: UNCLASSIFIED
Caveats: NONE

Classification: UNCLASSIFIED
Caveats: NONE

4

20716

UNITED STATES OF AMERICA
v.

PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia

22211

)
)
)
)
)
)
)
)
)

Prosecution Proposed
Case Calendar
Update

29 February 2012

1 . The proposed calendar is based u pon several assu mptions. To the extent these assu mptions
prove to be incorrect or too ambitiou s, the schedule will be correspondingly longer. These
assu mptions are:
a. The United States and defense file their motions according to the judicial calendar, and
there are no continu ances.
b. All parties to this cou rt-martial protect classified information and err on the side of
caution when creating docu mentation that could contain classified information.
c. The military ju dge establishes adequate procedures under M ilitary Rule ofEvidence
( M RE 505 ) to adjudicate defense requ ests and to review potentially discoverable documents.
d. Based on the accu sed's charged and alleged misconduct, inclu ding the alleged
compromise of over 700 ,000 documents which are presu med classified, there are more than ten
military commands, national intelligence agencies, andExecu tiveBranch D epartments which
have equ ities directly involved to varying degrees, and more than fifty of the same with
tangential involvement.
e. D efense requ ests for classified information do not requ ire inter- agency coordination
between multi pleExecu tiveBranch D epartments, Agencies, and organizations. 1
£ No additional clearances or "read-ons" to any programs will be requ ired based on the
United States or defense's u se of classified information.

g. All fact witnesses are available for trial and a trial date is set sixty days in advance of the
last round of pretrial motions hearings, so that the United States can properly coordinate with
senior members of the United States government and all witnesses for both the defense and
government. For a contested cou rt-martial, the United States intends to call more than forty
witnesses for the trial, many of whom will be offered as expert witnesses.
h. The United States has gathered more than 100 ,000 documents consisting of more than 3
million pages. The United States has gathered approximately eight terabytes of u seable digital
information found on approximately twenty- three items of digital media belonging to the
1

The United States recognizes that the defense is unaware of the approval processes for certain classified

information and will make requests based on classified information it deems necessary under MRE 505.

1

20717

accused, third- party individuals, and the United States, which it intends to offer for admission
and u se during this cou rt-martial.2 The United States also intends to offer for admission more
than seventy-five different pieces of documentary evidence. For pu rposes of this schedule, the
United States assu mes the defense will not stipulate to evidence admission.
i. The consolidation of issu es relating to classified information during pretrial hearings and
trial will increase ju dicial efficiency and minimize potential delay.
j. Although the General Cou rt- Martial Convening Authority recently selected the cu rrent
panel, panel availability will likely change by 1 Ju ne 20 12 , thu s changing the venire.
2 . Prosecu tion Proposed Calendar. The prosecu tion separated the projected issues into seven
phases. These seven phases bu ild u pon each other and culminate with all litigation concerning
classified information closer to the trial. M ost of the classified evidentiary motions are
predicated u pon decisions on the legal and unclassified evidentiary motions.
a.

Phase 1. Immediate Action (21 February 2012 - 16 March 2012)

( 1)

Proposed Case Calendar

(A)
(B)
(C)
(D)
(2 )

Original Filing: 2 1 February 20 12
Secondary Filing: 29 February 20 12
Response: N/A
Article 39(a): 15 -16 March 20 12

Defense Motion for Appropriate Relief under MRE 505

(A) Filing: 17 February 20 12
(B) Response: 8 March 20 12
(C) Article 39(a): 15- 16 March 20 12
(3)

Defense Bill of Particulars

(A) Filing: 16 February 20 12
(B) Response: 8 March 20 12
(C) Article 39(a): 15 - 16 March 20 12
(4 )

Defense Motion to Compel Discovery # 1

(A) Filing: 16 February 20 12
(B) Response: 8 March 20 12
(C) Article 39(a): 15- 16 March 20 12
(5 )

Defense Motion to Compel Depositions

(A) Filing: 16 February 20 12
(B) Response: 8 M arch 20 12
2

A terabyte of storage space could roughly hold "3.6 million 300 Kilobyte images or maybe about 300 hours of

good quality video." United States v. Salyer, No. S-10-0061, 2011 WL 1466887, slip op. at 1 n.2 (E.D.Cal., Apr.
18, 2011)

.

Additionally, a terabyte is roughly equivalent to the digital version of "1,000 copies of the Encyclopedia

Britannica" or one-tenth of the printed collection of the Library of Congress. Id.

2

20718

(C) Article 39(a): 15-16 March 2012
b.

Phase 2. Legal Motions, excluding Evidentiary Issues (29 March 2012 - 20 April

2012)

(1 )

Prosecution Proposed Members Instructions, including elements, for Article

104, Article 134, Specifications 1 through 16, including Lesser Included Offenses.

(A) Filing: 29 March 2012
(B) Response: 12 April 2012
(C) Article 39(a): 19-20 April2012
(2 )

Defense Unlawful Command Influence

(A) Filing: 29 March 2012
(B) Response: 12 April2012
(C) Article 39(a): 19-20 April2012
(3)

Defense Improper Referral

(A) Filing: 29 March 2012
(B) Response: 12 April2012
(C) Article 39(a): 19-20 April2012
(4)

Defense Dismissal o f Charges

(A) Filing: 29 March 2012
(B) Response: 12 April2012
(C) Article 39(a): 19-20 April2012
(5 )

Defense Jurisdictional Defects

(A) Filing: 29 March 2012
(B) Response: 12 April2012
(C) Article 39(a): 19-20 April2012
(6)

Defense Constitutional Challenges to UCMJ, MREs and RCMs

(A) Filing: 29 March 2012
(B) Response: 12 April2012
(C) Article 39(a): 19-20 April2012
(7 )

Unreasonable Multiplication of Charges

(A) Filing: 29 March 2012
(B) Response: 12 April2012
(C) Article 39(a): 19-20 April2012
(8 )

Updated Proposed Case Calendar

(A) Filing: 29 March 2012
(B) Response: N/A
(C) Article 39(a): 19-20 April2012

3

20719

(9)

Reciprocal Discovery Requests

(A) Filing: 29 March 2012
(B) Response: 12 April2012
(C) Article 39(a): N/A
(1 0 ) MRE 404(b) Disclosures
(A) Filing: 6 April2012
(11 ) Witness Lists Exchanged
(A) Filing: 6 April2012
(B) Government Response: 1 3 April2012
(12 ) Production of Compelled Discovery
(A) Date: 16 April 2012 3
c.

for Defense Motion to Compel Discovery #1

Phase 3. Evidentiary Issues not Involving Classified Information under MRE 505

( 23 April 2012 -1 7 May 201 2)

(1 )

Compel Discovery # 2

4

(A) Filing: 23 April2012
(B) Response: 7 May 2012
(C) Article 39(a): 14-16 May 2012
(2 )

Motions in Limine

(A) Filing: 23 April2012
(B) Response: 7 May 2012
(C) Article 39(a): 14-16 May 2012
(3)

Motions to Suppress

(A) Filing: 23 April2012
(B) Response: 7 May 2012
(C) Article 39(a): 14-16 May 2012
(4 )

Compel Experts

(A) Filing: 23 April2012
(B) Response: 7 May 2012
(C) Article 39(a): 14-16 May 2012
(5 )

Compel Witnesses

(A) Filing: 23 April 2012
3

This date is proposed for unclassified information. lf the information is classified, the United States will evaluate

whether it should request a continuance, in order to properly determine how many original classification authorities
must approve production or an alternative under MRE 505.
4

Although the defense has stated they will only file a single motion to compel discovery, the United States

anticipates at least one additional motion to compel discovery for unclassified information.

4

20720

(B) Response: 7 May 2012
(C) Article 39(a): 14-16 May 2012
(6)

(A) Filing: 23 April2012
(B) Response: 7 May 2012
(C) Article 39(a): 14-16 May 2012
(7)

Pre-Authenticate Evidence

(A) Filing: 23 April2012
(B ) Response: 7 May 2012
(C) Article 39(a): 14-16 May 2012
(8 )

5
Pre-Qualify Experts

(A) Filing: 23 Apri1 2012
(B) Response: 7 May 2012
(C) Article 39(a): 14 -16 May 2012
(9)

Requests for Judicial Notice

(A) Filing: 23 April2012
(B) Response: 7 May 2012
(C) Article 39(a): 14-16 May 2012
(1 0 ) Privileges
(A) Filing: 23 April2012
(B) Response: 7 May 2012
(C) Article 39(a): 14-16 May 2012
(11 ) Defense Notice of

Intent to Disclose Classified Information under MRE

505(h)(l)

(A) Filing: 23 April2012
(12 ) Defense Notice of Accused's
(A) Date: 1 7 May 2012 6

5

Forum Selection and Notice of Pleas in Writing

The United States anticipates that a minimum of two days will be required to pre-qualify all experts, which focus

on unclassified material.
6

If the accused selects a panel, the United States proposes the panel be notified no less than sixty days prior to trial,

in order to coordinate for extended special duty and travel.

5

20721

d. Phase 4. Evidentiary Issues Involving Classified Information under MRE 505 (24
7
May 2012- 22 June 2012)
(1 )

Motions in Limine

(A) Filing: 24 May 2012
(B) Response: 7 June 2012
(C) Article 39(a): 20-22 June 2012
(2 )

Litigation Concerning MRE 505 Substitutions (including In Camera Review)

(A) Filing: 24 May 2012
(B) Response: 7 June 2012
(C) Article 39(a): 20-22 June 2012
(3)

Motions to Suppress

(A) Filing: 24 May 2012
(B) Response: 7 June 2012
(C) Article 39(a): 20 -22 June 2012
(4)

Compel Experts

(A) Filing: 24 May 2012
(B) Response: 7 June 2012
(C) Article 39(a): 20-22 June 2012
(5 )

Compel Witnesses

(A) Filing: 24 May 2012
(B) Response: 7 June 2012
(C) Article 39(a): 20-22 June 2012
(6)

(A) Filing: 24 May 2012
(B) Response: 7 June 2012
(C) Article 39(a): 20-22 June 2012
(7 )

Pre-Authenticate Evidence

(A) Filing: 24 May 2012
(B) Response: 7 June 2012
(C) Article 39(a): 20-22 June 2012
(8 )

Pre-Qualify Experts

(A) Filing: 24 May 2012
(B) Response: 7 June 2012
(C) Article 39(a): 20 -22 June 2012

7

This process will likely require the military judge to review classified information within a special facility or

under special handling procedures. Additionally, this process will likely take some time for the military judge to
make her rulings on all classified information evidentiary motions.

6

20722

(9)

Judicial Review of Discoverable Information

(A) Filing: 24 May 2012
(B) Response: 7 June 2012
( C) Article 39( a): 20-22 June 2012
(1 0 ) Production of Compelled
(A) Date: 14 June 20128
e.

Discovery for Defense Motion to Compel Discovery # 2

Phase 5. Miscellaneous Motions (15 June 2012 - 18 July 2012)

(1)

9

Grunden Hearing for all Classified Information

(A) Filing: 15 June 2012
(B) Response: 6 July 2012
( C) Article 39(a): 16-18 July 2012
(2 )

Article 13

(A) Filing: 15 June 2012
(B) Response: 6 July 2012
( C) Article 39(a): 16-18 July 2012
(3)

Speedy Trial, including Article 10

(A) Filing: : 15 June 2012
(B) Response: 6 July 2012
( C) Article 39(a): 16-18 July 2012
(4 )

(A) Filing: : 15 June 2012
(B) Response: 6 July 2012
( C) Article 39( a): 16-18 July 2012
(5 )

(A) Filing: 15 June 2012
(B) Response: 6 July 2012
( C) Article 39(a): 16-18 July 2012

8

This date is proposed for unclassified information. If the information is classified, the United States will evaluate

whether it should request a continuance, in order to properly determine how many original classification authorities
must approve production or an alternative under MRE 505.
9

The defense stated during multiple RCM 802 conferences, that they expect the Speedy Trial motion to be very

lengthy. The United States expects the Article 13 motion to be very lengthy and potentially require many witnesses
to travel from across the United States. The United States proposes one additional week before the responses are
due, and this will allow more time to answer the motions while concurrently planning for the Phase 4 motions
hearing (20 - 22 June 2012).

7

20723

f

Phase 6. Member Selection (23 July 2012 - 30 July 2012)

(1 )

Voir Dire Questions

(A) Filing: 23 July 2012
(B) Response: N/A
(C) Ar ticle 39(a): N/A
(2 )

Flyer Due

(A) Filing: 23 July 2012
(3)

Questionnaires

(A) Filing: 23 July 2012
g.

Phase 7. Trial by Members (30 July 2012 - 17 August 2012)

(1 ) Article 39(a): 30 July 2012
(2 ) Voir D ire: 31 July 2012
( 3 ) Trial: 31 July - 3 August 2012, 6- 1 0 an d 1 3 - 1 7 August 2012 10

�rn
CPT, JA
Trial Counsel

10

Although all parties, panel members, and witnesses should be available seven days each week, the prosecution

recommends scheduling the trial with members for five days per week, to allow the panel members two-days rest so
they may better stay focused on their duties and better retain the information.

8

20724

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
U.S. Army, (b) (6)
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
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)
)
)

DEFENSE PROPOSED CASE
MANAGEMENT ORDER

DATED: 29 February 2012

1. The Defense submits the following proposed Case Management Order for the Court’s
consideration:
a. Per a docket request, the Government requested a trial date of 3 April 2012. The Defense
requested that the trial begin on 30 April 2012.
b. Given the timeline detailed below and the need to accommodate the Government’s request
for a delay to respond to the Defense’s initial motions, the Defense requests the Court to set trial
for 5 June – 22 June 2012. The Defense does not believe the trial will require the entire
scheduled time.
2. Under the Government’s proposed case calendar, approximately five months are spent
dealing with pretrial motions. Although the case deals with a large volume of classified
evidence, five months is an exaggerated time line for the resolution of preliminary issues.
Additionally, the Government’s proposed trial date is over two years (26 months) from the date
of PFC Manning’s arrest.
3. In the interest of assisting the Court in resolving timeline disputes, the Defense has adopted
the Government’s general format for the Case Management Order.
a. Phase 1. Immediate Action (21 February – 16 March 2012)

Filing Date

1) Proposed Case Calendar

14 February 2012
*Secondary Filing
on 29 March 2012
14 February 2012

2) Defense Motion for Appropriate
Relief under MRE 505
3) Defense Bill of Particulars
4) Defense Motion to Compel Discovery
5) Defense Motion to Compel

1

Response
Date

Article 39(a)

8 March 2012
* N/A

15 – 16 March 2012

8 March 2012

15 – 16 March 2012

20725

Filing Date

Article 39(a)

Depositions1
6) Government Discovery Due Diligence
Statement to support Defense Waiver

Response
Date

8 March 2012

N/A

15 – 16 March 2012

b. Phase 2. Discovery Issues (23 March – 20 April 2012)

Filing Date

Response
Date

Article 39(a)

1) Section III Disclosure
2) M.R.E. 404(b) Disclosures
3) Defense M.R.E. 505(h) Notice
4) Reciprocal Discovery Requests
5) Government Notice of Intent to Use
Expert Witnesses
6) Defense Request for Expert
Assistance
7) Production of Compelled Discovery
8) Member Questionnaire
9) Witness List Exchange

23 March 2012

N/A

19 – 20 April 2012

30 March 2012
30 March 2012
30 March 2012

13 April 20122
13 April 2012
N/A

19 – 20 April 2012
19 – 20 April 2012
19 – 20 April 2012

2 April 2012

13 April 2012

N/A

2 April 20123
13 April 2012
19 April 2012

N/A
N/A
26 April 20125

19 – 20 April 20124
19 – 20 April 2012
N/A

c. Phase 3. Legal Motions, excluding Evidentiary Issues (30 March –4 May 2012)

Filing Date

1) Proposed Elements and Instructions
for Article 92, Article 104, and Article
134 (Specifications 1 through 16)
2) Proposed Elements and Instructions

9 April 2012

1

Response
Date

23 April 2012

Article 39(a)
3 – 4 May 2012

If the Court orders the depositions, the Defense requests that these depositions take place between the 26th and 30th
of March.
2
If the Government objects to information contained in the Defense notice on classified privilege grounds, not being
relevant, or proposes an alternative to the requested Defense information, the Defense will request an in camera
review of the relevancy grounds by the Court. The basis for such a review is that the Defense should be treated
similarly to the Government when it files for an in camera proceeding under M.R.E. 505(i)(4)(A).
3
The Government shall provide all compelled discovery by 2 April 2012 either to the Defense or to the Court
pursuant to Military Rule of Evidence 505(i). If the Government fails to provide the compelled discovery by 2
April 2012, the Court will consider appropriate sanctions under Military Rule of Evidence 505(i)(4)(E).
4
Should the Government wish to contest the disclosure of classified information, it must request an in camera
proceeding under M.R.E. 505(i). The Government is required to submit an affidavit ex parte to the Court
demonstrating a reasonable expectation of damage to national security. From the perspective of the government, the
Court must assess whether, in fact the information is properly privileged. This causes the Court to review whether
the material is classified information, and if the disclosure would be detrimental to the national security. If the Court
makes a finding that the Government meets the requirements with respect to the classified information, an in camera
proceeding is held after appropriate notice to the Defense concerning the information at issue.
5
The Government must provide notice of any Defense requested witness that it intends to oppose production of at
trial.

2

20726

Filing Date

for Lesser Included Offenses
3) Defense Unlawful Command
Influence
4) Defense Improper Referral
5) Jurisdictional Defects
6) Defense Dismissal of Charges
7) Defense Unreasonable Multiplication
of Charges
8) Defense Jurisdictional Defects
9) Constitutional Challenges to UCMJ,
MREs and RCMs

Response
Date

Article 39(a)

d. Phase 4 Evidentiary Issues (16 April – 11 May 2012)

Filing Date

Response
Date

Article 39(a)

applicable)
2) Motions in Limine
3) Motions to Suppress Statements
and/or items seized
4) Government Notice to Defense of In
Camera Review Request6
5) Notice of Accused’s Forum selection
and Notice of Pleas in writing

16 April 2012

30 April 2012

10 – 11 May 2012

27 April 2012

4 May 2012

10 – 11 May 2012

10 May 2012

N/A

10 – 11 May 2012

e. Phase 5 Miscellaneous Motions (4 May – 25 May 2012)

Filing Date

1) Grunden Hearing for all Classified
Information
2) Article 137
3) Speedy Trial, including Article 10
4) Compel Experts (if necessary)
5) Compel Witnesses (if necessary)

4 May 2012

6

Response
Date
18 May 2012

Article 39(a)
24 – 25 May 2012

If the Court determines an in camera proceeding is appropriate, the Government must provide notice to the
Defense. The information within the Government’s notice may be described by generic terms as the Court has
approved, rather than identifying the classified information. Following the briefing and argument by the parties in
the in camera proceeding, the Court determines whether any of the classified information must be disclosed to the
Defense. Only classified information that is “relevant and necessary to an element of the offense or a legally
cognizable defense and is otherwise admissible” is subject to disclosure. M.R.E. 505(i)(4)(B). The Court must
decide this issue from the Defense’s point of view.
7
The Article 13 motion will have several witnesses. If the Court wishes to handle the motion during the 24 – 25
May 39(a), the Defense recommends starting the 39(a) on the 23 rd to allow for the needed time to present witness
testimony.

3

20727

7) Pre-Authenticate Evidence
8) Pre-Qualify Experts
9) Requests for Judicial Notice
10) Any additional motion that does not
11) Government Request for Alternatives
to Full Disclosure under M.R.E.
505(i)(4)(D) (IF necessary)

Filing Date

Response
Date

Article 39(a)

18 May 2012

N/A

24 – 25 May 2012

f. Phase 6. Member Selection (23 May – 4 June 2012)

Filing Date

1) Voir Dire Questions
2) Court-Martial Flyer

23 May 2012
23 May 2012

Response
Date
N/A
N/A

Article 39(a)
4 June 2012
4 June 2012

4. The point of contact for this memorandum is the undersigned at (401) 744-3007 or by e-mail
at coombs@armycourtmartialdefense.com.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

4

20728

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
U.S. Army, (b) (6)
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)

SUPPLEMENT TO THE
DEFENSE MOTION FOR
APPROPRIATE RELIEF UNDER
MILITARY RULE OF
EVIDENCE 505
DATED: 29 February 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by and through counsel, moves this court, pursuant to R.C.M. 906
and Military Rule of Evidence (M.R.E.) 505 to issue a Protective Order under M.R.E. 505(g)(1).
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1).
FACTS
3. The Defense incorporates those facts referenced in Appellate Exhibit IV.
4. On 24 February 2012, the Defense contacted the Government in an effort to collaborate on
the proposed content for the Court Protective Order. The Defense’s goal was to clarify the
Government’s position, and ensure that the parties could agree on the basic issue that needed to
be resolved – i.e. who should decide whether a given submission contained classified
information. The Defense’s position was that the Government should not be in a position where
it unilaterally decides whether something that the Defense or the Court submits constitutes
spillage. Instead, the Defense submitted that the parties needed to identify a neutral third party,
such as the Court Security Officer, to be given this interpretive role. [See Attachment A for
entire email exchange].
5. The Government responded to the Defense’s email by stating that it was in the process of
consulting with various stakeholders and would have a draft protective order for the Defense’s
review in about a week. The Government expressed confusion over the Defense’s use of the
word “Government” in its email. In particular, the Government stated, “What is confusing is
1

20729

your use of the word ‘government.’ If you mean the prosecution, then we agree. If you mean
the United States Government, then we disagree because an OCA, or their delegate, is the
ultimate authority on what is classified when it comes to their classified information.”
6. The Defense clarified that the use of the word ‘government’ was intended to be synonomous
with ‘prosecution.’ The Defense then reiterated its position and asked the Government to clarify
its basic position on the issue. The Government responded by stating it would be “impossible” to
answer the Defense’s question without having “a few days to speak with the OCA or their
representatives.”
7. Frustrated by the Government’s failure to state (even in one sentence) its basic position, the
Defense clarified that it was really just looking for a “yes” or “no” answer to the following
question: “Is it your position that the CSO (and not trial counsel) will work with the OCA to
determine if a filing contains classified information?” The Defense informed the Government
that it needed an answer to this question so that it could prepare accordingly.
8. The Government again responded that it intended to get the Defense an answer by “the
middle to the end of the week” once it spoke with the OCAs or their representatives about the
issue.
9. Due to the Government’s nonresponsive answer, the Defense reiterated to the Government
that it was simply looking for an answer regarding whether the Government envisioned a role for
the CSO or not. The Defense informed the Government that if it could not even provide the
Defense with the Government’s basic position on this critical issue (i.e. who reviews and
determines whether a document contains classified information), then it did not seem that the
Government was amenable to working together on the issue.
10. The Government responded that it disagreed and believed that the Government and Defense
could work together on a solution. However, the Government maintained that it had to “consider
all equities involved” and that the “prosecution represents the United States government and its
collective interests.” The Government stated that before it could commit to a course of action it
“MUST figure out the process, who would be involved, and consider all courses of action (as
directed by the military judge).” The Government then stated that it was “exploring all the
different methods to allow for efficient and safe submissions of documents to the court” and
“should have a proposed way forward by the middle to end of this week, which we intend to
share with you for comment, in an effort to work together for a final product.”
11. The Defense subsequently informed the Government that it believed the Government was
unnecessarily making the process more difficult than it needed to be. Because of the
Government’s continued refusal to answer a basic question, the Defense informed the
Government that it would proceed with a separate course of action.
12. The Government replied that it thought it was “unfortunate that within one duty day of our
hearing, you [the Defense] have made the decision not to work together on this issue.” The
Government stated that “although your question seemed simple to you and the defense, the
prosecution is not in the position to commit to a course of action without first consulting with
2

20730

entities that would be required to actually conduct the work that you propose or that COL Lind
suggested, such as an OCA representative consulting with the CSO or a CSO equivalent,
communicating over a secure network, etc.” The Government then informed the Defense that it
would “diligently work this week to develop a proposed plan” and would submit the plan to the
Defense for comment prior to submitting it to the Court.
13. The Defense reiterated, yet again, the fact that it was not looking for a commitment by the
Government to a course of action, but simply an agreement on the basic issue we were trying to
resolve. Additionally, the Defense stated the Government’s process in drafting a protective order
and then submitting it in a week for the Defense’s comment did constitute “working together”
with the Defense.
14. The Defense believes that the Government’s responses are clearly obstructionist. It is
impossible to believe that the Government cannot commit, without input from the OCAs, to: a)
identifying what the issue is that needs resolving; and b) stating its basic position on the issue.
The Defense was not seeking the Government’s position on the logistics of the process, but
merely its starting point for the protective order. If parties are asked to work together to build a
vehicle, but one wants to build a car and the other to build a bicycle, it is unlikely that the
process will be a productive one. Without knowing whether the Government is building a car or
a bicycle, the Defense is at a distinct disadvantage in the process.
WITNESSES/EVIDENCE
15. The Defense requests the following witnesses be produced in support of this motion:
a. OCA for Specification 3 and 15 of Charge II;
b. Mr. Jay Prather, Court Security Officer
LEGAL AUTHORITY AND ARGUMENT
16. The Defense relies upon the legal authority and argument advanced in Appellate Exhibit IV.
17. The Defense seeks the issuance of the revised Protective Order in order to achieve the
following basic goals:
a. To avoid a reoccurrence of the 14 February 2012 claimed “spillage” of classified
information;
b. To propose a process that protects the Defense from the Trial Counsel unilaterally
deciding whether a Defense filing contains classified information1;
1

The Defense believes that the Trial Counsel has an inherent conflict of interest with regard to whether a Defense
submission contains potentially classified information. By calling “spillage” on the Defense, a Trial Counsel could:
a) embarrass the Defense by publicly disclosing that the Defense had improperly disclosed classified information (as
at the Arraignment); b) threaten to suspend security clearances, as it has in the past; and c) call into question the

3

20731

c. To propose a process whereby the Defense and the Court are similarly-situated in terms of
their respective obligations and protections in the event of an inadvertent spillage;
d. To propose a process that does not add unnecessarily onerous requirements on the parties.
18. This is not the first court-martial to involve classified information. The Court and the parties
have dealt with other cases involving classified information. With experience as our guide, there
is no reason to create an overly elaborate process for what should be a rather straightforward
issue.
19. At the outset, the parties and Court should be entitled to rely upon their respective security
experts to determine whether a specific filing contains classified information. It is the job of the
identified security experts for each party and the Court to advise on proper classification
decisions and to ensure that classified information is properly protected and marked. Once the
parties and Court have obtained assurances from their independent experts that a filing does not
contain classified information, the following process should control:
a. The Court may immediately submit its filing;
b. The Government may immediately submit its filing pursuant to local rules;
c. The Defense must submit its filing (other than strictly procedural filings) to the Court
Security Officer for his concurrence. If the Court Security Officer concurs with the Defense
experts that the filing by the Defense does not contain classified information, the Defense
submits its filing pursuant to local rules. If notwithstanding the “blessing” of the CSO, the Trial
Counsel (in consultation with the OCA) believes a filing by the Defense or the Court contains
classified information, then this determination will control. If such a determination is made, the
Defense or the Court will not be deemed to have intentionally or negligently released classified
information.
20. The Defense has drafted a revised proposed Protective Order. See Attachment B. The
revised Protective Order details appropriate procedures to protect classified information while
still ensuring an efficient and effective court-martial process. See generally, M.R.E. 505(g)(1).
If the Defense motion is opposed by the Government, then the Defense requests oral argument.

professionalism and ethics of the Defense. In short, making the Trial Counsel the arbiter of potential spillage and
the giving the Trial Counsel the ability to argue such a spillage was intentional puts too much power in the Trial
Counsel’s hands. [Note: I have deliberately used the expression “Trial Counsel” rather than “Government” since the
Government expressed confusion on this point].

4

20732

CONCLUSION
21. Based on the above, the Defense requests that the Court issue the attached Protective Order.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

5

20733

-----Original Message----From: coombs@armycourtmartialdefense.com
[mailto:coombs@armycourtmartialdefense.com]
Sent: Monday, February 27, 2012 12:15 AM
To: Fein, Ashden CPT USA JFHQ-NCR/MDW SJA; Morrow III, JoDean, CPT USA
JFHQ-NCR/MDW SJA; Overgaard, Angel M. CPT USA JFHQ-NCR/MDW SJA; Whyte,
Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman
Subject: RE: Protective Order

Ashden,
Two points of clarification:
1. As you well know, I have not asked you to “commit to a course of action” – I have asked in as
many ways as I possibly can whether we even agree on the basic issue.
2. Completing a protective order and then giving it to me for comment does not constitute
“working together” on the protective order.
David
David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com
***Confidentiality Notice: This transmission, including attachments, may contain confidential
attorney-client information and is intended for the person(s) or company named. If you are not
the intended recipient, please notify the sender and delete all copies. Unauthorized disclosure,
copying or use of this information may be unlawful and is prohibited.***
-------- Original Message -------Subject: RE: Protective Order
From: "Fein, Ashden CPT USA JFHQ-NCR/MDW SJA"
(b) (6)
Date: Sun, February 26, 2012 10:31 pm
To: , "Morrow III, JoDean, CPT USA
JFHQ-NCR/MDW SJA" (b) (6)
"Overgaard,
Angel M. CPT USA JFHQ-NCR/MDW SJA"
>, "Whyte, Jeffrey H. CPT USA
(b) (6)
JFHQ-NCR/MDW SJA" (b) (6)
Cc: "Matthew kemkes" (b) (6)
>, "Paul Bouchard"
(b) (6)
"Joshua Tooman"

20734

David,
It is unfortunate that within one duty day of our hearing, you have made the
decision not to work together on this issue. Although your question seems
simple to you and the defense, the prosecution is not in the position to
commit to a course of action without first consulting with the entities that
would be required to actually conduct the work that you propose or that COL
Lind suggested, such as an OCA representative consulting with the CSO or a
CSO equivalent, communicating over a secure network, etc.
All the prosecution has asked for, from the defense, is a few days to consult
with the equity holders to determine the most efficient means to protect the
information and whether the different proposals are feasible. As always, you
are free to proceed with a separate course of action; however the prosecution
will diligently work this week to develop a proposed plan and we will submit
this plan to you, prior to submitting to the military judge (as she
directed), for comment to determine if there is a common plan or at least
some processes that both the defense and prosecution agrees with.
v/r
Ashden
-----Original Message----From: coombs@armycourtmartialdefense.com
[mailto:coombs@armycourtmartialdefense.com]
Sent: Sunday, February 26, 2012 9:50 PM
To: Fein, Ashden CPT USA JFHQ-NCR/MDW SJA; Morrow III, JoDean, CPT USA
JFHQ-NCR/MDW SJA; Overgaard, Angel M. CPT USA JFHQ-NCR/MDW SJA; Whyte,
Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman
Subject: RE: Protective Order
Ashden,
I think that the Government is unnecessarily making the process more
difficult than it needs to be. This is something that COL Lind cautioned
against doing. Because you continue to refuse to provide any answer to basic
questions, I will proceed with a separate course of action.
Best,
David
David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com

20735

***Confidentiality Notice: This transmission, including attachments, may
contain confidential attorney-client information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying or
use of this information may be unlawful and is prohibited.***

-------- Original Message -------Subject: RE: Protective Order
From: "Fein, Ashden CPT USA JFHQ-NCR/MDW SJA"
(b) (6)
Date: Sun, February 26, 2012 8:53 pm
To: , "Morrow III, JoDean, CPT
USA
JFHQ-NCR/MDW SJA" , "Overgaard,
Angel M. CPT USA JFHQ-NCR/MDW SJA"
, "Whyte, Jeffrey H. CPT USA
(b) (6)
JFHQ-NCR/MDW SJA" (b) (6)
Cc: "Matthew kemkes" (b) (6)
"Paul Bouchard"
(b) (6)
"Joshua Tooman"
David,
I disagree- I know the prosecution and defense can work out a
solution, but
the prosecution must consider all equities involved. As you know, the
prosecution represents the United States government and its
collective
interests. Just because we, as prosecutors, might think a proposed
course of
action is the best way forward, that does not necessarily equate to
the most
efficient and approved way forward, especially if a course of action
requires
cooperation and concurrence with organizations outside the direct
command and
control of the convening authority.
It is very conceivable to envision a role for the CSO to essentially
be a
classified information clerk for the Court; however before the
prosecution,
on behalf of the United States government, commits to any course of
action,
we MUST figure out the process, who would be involved, and consider
all
courses of action (as directed by the military judge).
As per the military judge's instructions, the prosecution is

20736

exploring all
the different methods to allow for efficient and safe submissions of
documents to the court and how to best have that information managed.
We
should have a proposed way forward by the middle to end of this week,
which
we intend to share with you for comment, in an effort to work
together for a
final product.
v/r
Ashden
-----Original Message----From: coombs@armycourtmartialdefense.com
[mailto:coombs@armycourtmartialdefense.com]
Sent: Sunday, February 26, 2012 7:42 PM
To: Fein, Ashden CPT USA JFHQ-NCR/MDW SJA; Morrow III, JoDean, CPT
USA
JFHQ-NCR/MDW SJA; Overgaard, Angel M. CPT USA JFHQ-NCR/MDW SJA;
Whyte,
Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman
Subject: RE: Protective Order
Ashden,
I'm not sure why you can't answer that question now -- either you
envision a
role for the CSO or you do not. If you can't even give me the
government's
basic position on this critical issue (i.e. who reviews and
determines
whether a document contains classified information), it doesn't
really seem
that you are amenable to working together on this.
David
David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com
;;
***Confidentiality Notice: This transmission, including attachments,
may

20737

contain confidential attorney-client information and is intended for
the
person(s) or company named. If you are not the intended recipient,
notify the sender and delete all copies. Unauthorized disclosure,
copying or
use of this information may be unlawful and is prohibited.***

-------- Original Message -------Subject: RE: Protective Order
From: "Fein, Ashden CPT USA JFHQ-NCR/MDW SJA"
(b) (6)
Date: Sun, February 26, 2012 7:28 pm
To: , "Morrow III, JoDean, CPT
USA
JFHQ-NCR/MDW SJA" (b) (6)
>, "Overgaard,
Angel M. CPT USA JFHQ-NCR/MDW SJA"
, "Whyte, Jeffrey H. CPT USA
(b) (6)
JFHQ-NCR/MDW SJA" >
Cc: "Matthew kemkes" (b) (6)
>, "Paul Bouchard"
(b) (6)
"Joshua Tooman"
David,
Thank you. I intend to get you the answer by the middle to end of the
week,
once I speak with the OCAs or their representatives about the issue.
v/r
Ashden
-----Original Message----From: coombs@armycourtmartialdefense.com
[mailto:coombs@armycourtmartialdefense.com]
Sent: Sunday, February 26, 2012 7:26 PM
To: Fein, Ashden CPT USA JFHQ-NCR/MDW SJA; Morrow III, JoDean, CPT
USA
JFHQ-NCR/MDW SJA; Overgaard, Angel M. CPT USA JFHQ-NCR/MDW SJA;
Whyte,
Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman
Subject: RE: Protective Order
Ashden,
I am really just looking for a "yes" or "no" answer to the following
question: Is it your position that the CSO (and not trial counsel)
will work
with the OCA to determine if a filing contains classified
information? I

20738

need an answer to this so that I can prepare accordingly. Thanks.
Best,
David
David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com
***Confidentiality Notice: This transmission, including attachments,
may
contain confidential attorney-client information and is intended for
the
person(s) or company named. If you are not the intended recipient,
notify the sender and delete all copies. Unauthorized disclosure,
copying or
use of this information may be unlawful and is prohibited.***

-------- Original Message -------Subject: RE: Protective Order
From: "Fein, Ashden CPT USA JFHQ-NCR/MDW SJA"
(b) (6)
Date: Sun, February 26, 2012 7:18 pm
To: , "Morrow III, JoDean, CPT
USA
JFHQ-NCR/MDW SJA" (b) (6)
, "Overgaard,
Angel M. CPT USA JFHQ-NCR/MDW SJA"
, "Whyte, Jeffrey H. CPT USA
(b) (6)
JFHQ-NCR/MDW SJA" (b) (6)
>
Cc: "Matthew kemkes" (b) (6)
, "Paul Bouchard"
(b) (6)
"Joshua Tooman"
David,
I know you asked for an answer by tomorrow, but that will be
impossible
because we will need a few days to speak with the OCA or their
representatives. We ask that you give us until the middle to the end
of next
week to come up with a proposal, so that we may work together to find
a
reasonable way forward.

20739

As I stated in my previous email- I absolutely think we can reach an
agreement that you will likely be 98% amenable with. Our starting
point will
be your proposed order and we are going to work from there to find a
process
that will work with our partner organizations, the command, and
everyone's
resources.
v/r
Ashden
-----Original Message----From: coombs@armycourtmartialdefense.com
[mailto:coombs@armycourtmartialdefense.com]
Sent: Friday, February 24, 2012 6:30 PM
To: Fein, Ashden CPT USA JFHQ-NCR/MDW SJA; Morrow III, JoDean, CPT
USA
JFHQ-NCR/MDW SJA; Overgaard, Angel M. CPT USA JFHQ-NCR/MDW SJA;
Whyte,
Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman
Subject: RE: Protective Order
Ashden,
To clarify what I wrote: I did indeed mean "the prosecution" when I
said
"government". However, I do not believe that the prosecution should
be the
one working in conjunction with the OCA to make judgment calls on
whether
something is classified. If your proposed order continues to maintain
the
position that the prosecution – in conjunction with the OCAs (or
their
delegates) – should be the one to determine spillage, then I think we
may be
Best,
David
David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com

20740

***Confidentiality Notice: This transmission, including attachments,
may
contain confidential attorney-client information and is intended for
the
person(s) or company named. If you are not the intended recipient,
notify the sender and delete all copies. Unauthorized disclosure,
copying or
use of this information may be unlawful and is prohibited.***
-------- Original Message -------Subject: RE: Protective Order
From: "Fein, Ashden CPT USA JFHQ-NCR/MDW SJA"
(b) (6)
Date: Fri, February 24, 2012 5:48 pm
To: , "Morrow III, JoDean, CPT
USA
, "Overgaard,
JFHQ-NCR/MDW SJA" Angel M.
CPT USA JFHQ-NCR/MDW SJA"
, "Whyte, Jeffrey H. CPT USA
(b) (6)
JFHQ-NCR/MDW SJA" (b) (6)
>
Cc: "Matthew kemkes" (b) (6)
>, "Paul Bouchard"
(b) (6)
"Joshua Tooman"
David,
I absolutely think we can reach an agreement! We met with the
Department of
Justice Litigation Security Group today to understand how the federal
courts
administratively process filings and other related matters in cases
dealing
with classified information.
I am confident that by the middle to end of next week, we will have a
draft
of an order that you will likely be 98% amenable with. Our starting
point
will be your proposed order and we are going to work from there to
find a
process that will work with our partner organizations, the command,
and
everyone's resources.
However, just to clarify a statement you wrote belowYou wrote: "I do not believe that the government should unilaterally
decide

20741

whether something that the defense or the judge submits is in
violation of a
classification decision." What is confusing is your use of the word
"government." If you mean the prosecution, then we agree. If you mean
the
United States Government, then we disagree because an OCA, or their
delegate,
is the ultimate authority on what is classified when it comes to
their
classified information.
Have a good weekend.
v/r
Ashden
-----Original Message----From: coombs@armycourtmartialdefense.com
[mailto:coombs@armycourtmartialdefense.com]
Sent: Friday, February 24, 2012 5:37 PM
To: Fein, Ashden CPT USA JFHQ-NCR/MDW SJA; Morrow III, JoDean, CPT
USA
JFHQ-NCR/MDW SJA; Overgaard, Angel M. CPT USA JFHQ-NCR/MDW SJA;
Whyte,
Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman
Subject: Protective Order
Ashden,
I wanted to reach out to you to see if we could come to an agreement
on the
protective order. It seems to me that the reason for our disconnect
is that
we can't seem to agree on the basic issue. I understand your position
to be
that everyone has an obligation to protect classified information,
and that
it is not the role of the defense (or anyone) to second guess the
classification determinations. I agree with you on this. However, my
view is
that we need to figure out who decides whether something is in
violation of
the classification decision. In some cases, it is clearly not
self-evident
whether something violates the OCAs' determination or not.
I do not believe that the government should unilaterally decide
whether
something that the defense or the judge submits is in violation of a
classification decision. Instead, I believe that a neutral third
party (such
as the Court Security Officer) should be given this interpretive

20742

role. To be
clear, the CSO is not reviewing or second-guessing the classification
determination, but simply providing his expert opinion whether, given
the
classification determination, a submission by either the defense or
the
government runs afoul of the OCA prohibitions. This is exactly what
Mr.
Prather did with regards to the ex parte submission by the defense.
It would be helpful if you could let me know by Monday whether we can
at
least agree on what the issue is here - i.e. who should decide
whether a
given submission reveals classified information in light of existing
OCA
classification determinations. If we can't even agree on the starting
point
for this discussion, it may not make sense to pursue this issue
jointly.
Best,
David
David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com
***Confidentiality Notice: This transmission, including attachments,
may
contain confidential attorney-client information and is intended for
the
person(s) or company named. If you are not the intended recipient,
notify the sender and delete all copies. Unauthorized disclosure,
copying or
use of this information may be unlawful and is prohibited.***

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
PROTECTIVE ORDER

V.

U.S. Army,

Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

DATED:

1. This matter comes before the Court upon the motion of the defense for a Protective Order to
prevent the unauthorized disclosure or dissemination of classi?ed information and documents in
the captioned case. The defense seeks a Protective Order covering documents and information
previously made available to the accused in the course of his employment with the United States
government, as well as documents and information which have been, or will be, reviewed or
made available to the accused or defense counsel in this case.

2. This Court ?nds that this case will involve classi?ed infonnation, the storage, handling, and
control of which requires special security precautions mandated by statute, Executive Order, and
regulation, and access to which requires the appropriate security clearances and a ?need-to-
know.?

3. Pursuant to the authority granted by Military Rule of Evidence 505; relevant Executive
Orders of the President of the United States; regulations of the Departments of Defense and
Anny; and in order to protect classi?ed information, it is hereby ORDERED as follows:

a. The procedures set forth in this Protective Order apply to the accused, all counsel of
record, all other counsel involved in this case, all court personnel, and all other individuals who

b. The provisions of this Protective Order and Military Rule of Evidence 505 will apply to all
pretrial, trial, post-trial and appellate matters concerning the above captioned case. If necessary,
the procedures may be modified from time-to-time by further order of the Military Judge acting
under her supervisory authority to ensure a fair and expeditious trial, while protecting the
national security interests of the United States.

c. The following definitions apply to the ORDER:

(1) ?Classi?ed information,? shall mean:

. . 20744

(A) any document or information which has been classi?ed by any executive branch
agency in the interests of national security or pursuant to Executive Order 13562, or its
predecessor Orders, as or or additionally
controlled as ?Sensitive Compartmented Information?

(B) any document or information, regardless of its physical form or characteristics,
which has been derived from information from the United States government that was classi?ed
by the United States pursuant to Executive Order 13562 as or

(C) verbal classi?ed information known to or retained by the accused or defense
counsel;

(D) any information, regardless of place of origin that could reasonably be believed to
contain classi?ed information, or that refers to national security or intelligence matters; or

(E) any document or information as to which the accused or defense counsel have been

noti?ed orally or in writing that such documents or information contained classi?ed information.
(2) The words ?documents? ?information? or ?associated material? as used in this

ORDER include, but are not limited to, all written or printed matter of any kind, formal or
informal, including originals, identical copies, and all non-identical copies, whether different
from the original by reason of any notation made on such copies or otherwise, including without
limitation, papers, correspondence, memoranda, notes, letters, reports, summaries, inter?of?ce
and intra-of?ce communications, notations of any sort concerning conversations, meetings, or
other communications, and all manner of electronic data processing and storage.

learning, or otherwise coming to know, in any manner, classi?ed information.

(4) ?Secure area? means a storage facility designated by the Court Security Of?cer for the
storage, handling, and control of classi?ed information.

(5) The word ?or? should be interpreted as including ?and,? and vice versa; ?he? should
be interpreted as including ?she,? and vice versa.

(6) The ?defense? refers to and includes the accused, his military and civilian counsel.

d. All classi?ed documents and information contained therein shall remain classi?ed unless
they bear clear indication that they have been declassi?ed by the agency or department of
government (hereinafter referred to as ?originating agency?) that originated the document or the
information contained therein.

e. Information in the public domain is ordinarily not classi?ed. However, if the defense
anticipates seeking the con?rmation or denial of whether information in the public domain is
classi?ed, by questioning any person who has, or has had, access to classi?ed information, or if a

. . 20745

truthful response to a request or question put forth by the defense counsel about information in
the public domain requires an individual to reveal classi?ed information, in any proceeding
(including pretrial, trial, and post-trial and appellate proceedings) relating to the above captioned
case, then the defense must comply with the notice requirements under M.R.E. 505 and the terms
of this ORDER.

f. Any unauthorized disclosure of classi?ed information may constitute a violation of the
Uniform Code of Military Justice as well as the criminal laws of the United States. Attorneys
who intentionally or knowingly violate this ORDER may be reported to their State Bar
Association. In addition, any violation of the terms of this ORDER shall be brought immediately
to the attention of this Court and may result in a charge of contempt of court and possible referral
for criminal prosecution. Any breach of this ORDER may also result in termination of an
individual?s access to classi?ed information. This Protective Order is to ensure that those
authorized to receive classi?ed information in connection with this case will never divulge that
information to anyone not authorized to receive it, without prior written authorization from the
originating agency and in conformity with this ORDER.

g. Mr. Jay Prather is appointed as Court Security Of?cer. Mr. Prather shall function as an
officer of the Court.

h. Personnel Security Investigations and Clearances

(1) The Court has been advised that all military trial and defense counsel assigned to this
case hold at least a SECRET security clearance and require access to the classi?ed information
and documents at issue in this case.

(2) The Court Security Of?cer will verify that the security clearances of all counsel are in
proper order. Once an individual counsel?s security clearance is veri?ed, that counsel shall have
unfettered access to classi?ed information that is relevant and necessary to prepare for this case,
subject to the requirements of this ORDER. Any changes or substitutions of military trial or
defense counsel shall be immediately made known to the Court Security Of?cer and Military
Judge. Any new military trial or defense counsel shall be served with a copy of this ORDER and
shall be subj ect to the provisions of this ORDER.

(3) Neither the accused, his civilian defense counsel, Mr. David E. Coombs, any
associated counsel or employee of civilian defense counsel, may have access to classi?ed
information in connection with this case, unless that person ?rst shall:

(A) execute all forms needed by the government to complete a personnel security
investigation and make a determination whether to grant a limited access authorization; and have
been granted, a security clearance or Limited Access Authorization by the Department of the
Army, as veri?ed by the Court Security Of?cer. Upon the execution and ?ling of the
Memorandum of Understanding (MOU) at Appendix A, the government, under the supervision
of the Court Security Of?cer, shall expeditiously undertake the required action to ascertain the

(B) sign the sworn statement in the MOU at Appendix A to this ORDER. Any
retained civilian defense counsel?s MOU shall include a statement expressing his understanding
that the failure to abide by the terms of this Protection Order will result in a report to his State
Bar Association.

(C) sign a standard form nondisclosure agreement as a condition of access to classi?ed
information. Each person executing the MOU at Appendix A must provide an original to the
Court Security Of?cer.

i. Upon compliance with the procedures set forth above, the Court Security Of?cer shall
authorize the following attorney for the defense to be given access to classi?ed documents and
all other information as required by the Government?s discovery obligations and otherwise as
needed to prepare for this case: Mr. David E. Coombs. Any additional person whose assistance
the defense reasonably requires, including defense witnesses, may only have access to classi?ed
information after ?rst satisfying the requirements described in this ORDER. The Court Security
Of?cer, without the need for prior notice to trial counsel, will verify that the identi?ed individual
has the requisite security clearance and a need-to-know. If the identi?ed individual does not
have the requisite security clearance and a need-to-know, the Court Security Of?cer shall direct
the individual to execute, through trial counsel, all forms needed by the government to complete
a personnel security investigation in order to make a determination whether the individual
quali?es for a limited access authorization grant. If such a process is completed, the Court
Security Of?cer shall ensure the individual complies with all other requirements described in this

j. In addition to the MOU contained in Appendix A, any person who as a result of this case
gains access to information contained in any Department of the Army Special Access Program,
as the term is de?ned in Executive Order 13526, or to SCI, or to any information subject to
special handling procedures, shall sign any nondisclosure agreement that is speci?c to that
information.

k. All requests for clearances and access to classi?ed information in this case by persons
subject to this ORDER or for clearances to a higher level of classi?cation, shall be made to the
Court Security Of?cer, who shall process the requested security clearances.

l. The security procedures contained in this ORDER shall apply to any civilian defense
counsel retained by the accused, and to any other persons who may later receive classi?ed
information from the government in connection with this case. The substitution, departure, or
removal from this case of defense counsel or any other cleared person associated with the
defense as an employee or witness or otherwise, shall not release that person from the provisions
of this ORDER or the MOU executed in connection with this ORDER.

m. In the event classi?ed information must be presented at trial, the following procedures
shall apply:

(1) The defense shall provide notice of intent to elicit classi?ed information at trial to the
government and the Court consistent with Military Rule of Evidence (M.R.E.) 505(h) and any

. . 20747

Case Management Order entered by the Court. All associated material and other documents of
any kind or description containing any of the information in the defense disclosure notice shall
be stored under conditions prescribed by the Court Security Of?cer.

(2) The notice under M.R.E. 505(h) shall contain a brief but speci?c written description of
any information known or believed to be classi?ed, which the defense reasonably expects to
disclose or cause to be disclosed in any pretrial motion, proceeding or at trial.

(3) The defense disclosure notice, if containing classi?ed information, shall be ?led under
seal with the Court Security Of?cer, as more particularly set forth below in paragraph

11. Handling and Protection of Classi?ed Information.

(1) The Court Security Of?cer shall arrange for and maintain an appropriately approved
secure area for the use of classi?ed information and documents related to this case. He shall
make prompt arrangements for the storage of such material. The Court is informed that both
government and defense counsel have approved receptacles for storing classi?ed information.
The Court Security Officer shall verify this fact. If the Court Security Of?cer determines the
receptacles for the government or defense to be insufficient, the Court Security Of?cer shall
establish procedures to assure that proper storage is provided to the government or defense. The
Court Security Of?cer, in consultation with defense counsel, shall establish procedures to ensure
that the defense secure area may be maintained and operated in the most ef?cient manner
consistent with the protection of classi?ed information. The Court Security Of?cer shall not
reveal to the government the content of any conversations he may hear among the defense, nor
reveal the nature of the documents being reviewed or the work being generated. The presence of
the Court Security Of?cer shall not operate to render inapplicable the attomey-client privilege or
the attorney work product doctrine.

(2) All pleadings and other documents ?led by the government or defense shall be
handled under one of the following procedures:

(A) Classi?ed Information: Any pleading or other document that contains any
classi?ed information or that a party believes may contain classi?ed information shall be ?led
under seal with the Court Security Officer. The parties shall ?le under seal both the original
pleading or document and two copies. Pleadings ?led under seal with the Court Security Officer
shall be marked, ?Filed Under Seal with the Court Security Of?cer.? The time of physical
submission to the Court Security Of?cer shall be considered the date and time of ?ling. The
Court Security Of?cer shall examine the pleading or document and, if necessary, in
consultation with representatives of the original classi?cation authorities, determine whether the
pleading or document contains classi?ed information. If the Court Security Of?cer determines
that the pleading or document does not contain classi?ed information, he shall unseal the
submission, and alert the ?ling party to this fact. The ?ling party shall then submit the pleading
or document pursuant to local rules. If the Court Security Of?cer determines that the pleading or
document contains classi?ed information, he shall ensure that the portion of the document
containing classi?ed information is marked with the appropriate classi?cation marking and
remains under seal. All portions of all papers ?led that do not contain classi?ed information

shall be immediately unsealed by the Court Security Of?cer and ?led pursuant to local rules.

The original portion of the document containing classi?ed information will be held by the Court
Security Of?cer for insertion in the classi?ed portion of the record of trial. The Court Security
Of?cer shall immediately deliver copies of the entire ?led pleading or document to the Court and
opposing counsel in accordance with appropriate handling procedures.

(B) Procedural or Administrative Matters: Any pleading or document that is strictly
procedural or administrative in nature motions for extensions of time, continuances,
scheduling matters, etc.) can immediately be ?led by the parties pursuant to local rules.

(C) Unclassi?ed Matters: The Government may immediately submit, pursuant to local
rules, any ?ling which it believes is unclassi?ed. Any pleading or document that the defense, in
consultation with its detailed security experts, believes to be unclassi?ed shall be electronically
sent to the Court Security Of?cer for his review. The time of electronic submission to the Court
Security Of?cer shall be considered the date and time of ?ling. The Court Security Of?cer shall,
that same day,? examine the pleading or document and, if necessary, in consultation with
representatives of the original classi?cation authorities, determine whether the pleading or
document contains classi?ed information. If the Court Security Of?cer determines that the
pleading or document does not contain classi?ed information, he shall alert the defense to this
fact. The defense shall then Submit the pleading or document pursuant to local rules.
If the Court Security Of?cer determines that the pleading or document contains classi?ed
information, he shall follow appropriate procedures to correct the inadvertent spillage. The
Court Security Of?cer shall then ensure that the portion of the document containing classi?ed
information is marked with the appropriate classi?cation marking and is placed under seal. All
portions of all papers ?led that do not contain classi?ed information shall be immediately
returned to the ?ling party by the Court Security Of?cer, so that the party may ?le the document
pursuant to local rules. The original portion of the document containing classi?ed information
will be held by the Court Security Of?cer for insertion in the classi?ed portion of the record of
trial. The Court Security Of?cer shall immediately deliver copies of the entire ?led pleading or
document to the Court and opposing counsel in accordance with appropriate handling
procedures.

(D) Government Non-Concurrence: If the government does not concur with a
determination by the Court Security Of?cer regarding whether a ?ling by the defense or the
Court contains classi?ed information, the government?s determination shall control. However, if
such a determination is made, the inadvertent spillage of classi?ed information by the defense or
the Court shall not be deemed a violation of this ORDER.

(3) The Court Security Of?cer shall maintain a separate sealed record for classi?ed
material and shall maintain an unclassi?ed index of such material. The Court Security Of?cer
shall be responsible for maintaining the secured records for purposes of later proceedings or
appeal.

If the pleading or document is filed at the end of the day, the Court Security Of?cer shall review the pleading or
document the next morning.

(4) Classi?ed documents and information, or information believed to be classi?ed, shall
only be discussed in an area approved by the Court Security Of?cer, and in which persons not
authorized to possess such information cannot overhear such discussions.

(5) No one may discuss any of the classi?ed information over any standard commercial
telephone instrument or any inter-of?ce communication system, or in the presence of any person
who is not authorized to possess such information. Requests for secure telephones, fax
machines, or other secure communication devices must be submitted to the Court Security
Of?cer for coordination.

(6) All mechanical devices of any kind used in the preparation or transmission of
classi?ed information in this case may be used only with the approval of the Court Security
Of?cer and in accordance with instructions he shall issue.

(7) Upon reasonable advance notice to the Court Security Of?cer, defense counsel shall
be given access during normal business hours and at other times on reasonable request, to
classi?ed documents which the government is required to make available to defense counsel but
elects to keep in its possession. Persons permitted to inspect classi?ed documents by this
ORDER may make written notes of the documents and their contents. Notes of any classi?ed
portions of these documents, however, shall not be disseminated or disclosed in any manner or in
any form to any person not authorized to receive it subject to this ORDER. Such notes will be
secured in accordance with the terms of this ORDER. Persons permitted to have access to the
documents will be allowed to view their notes within an area designated by the Court Security
Of?cer. No person permitted to inspect classi?ed documents by this ORDER, including defense
counsel, shall copy or reproduce any part of said documents or their contents in any manner or
form, except as provided by the Court Security Of?cer, after he has consulted with the Court.

(8) The defense shall not disclose the contents of any classi?ed documents or information
to any person not previously approved by Court or the Court Security Of?cer without ?rst
obtaining the permission of Court Security Of?cer. Prior to obtaining approval, the Court
Security Of?cer shall verify (1) the intended recipient holds the required security clearance; (2)
that the intended recipient has signed the MOU in Appendix and (3) the intended recipient has
a need-to-know.

(9) Documents that do or might contain classi?ed information shall be transcribed,
recorded, typed, copied or otherwise prepared only by persons who have received an appropriate

(10) If counsel for the government advises the defense that certain classi?ed information
or documents may not be disclosed to the accused, then defense counsel shall not disclose such
information or documents to the accused without prior concurrence of counsel for the
government or, absent such concurrence, approval of the Court. Counsel for the government
shall be given an opportunity to be heard in response to any defense request for disclosure to the
accused of classi?ed information.

(11) All classi?ed documents and information to which any person is given access in this
case are now and will remain the property of the United States Government. At the conclusion
of this case, all classi?ed information provided by the government to the defense shall be
returned by the defense upon demand of the Court Security Officer. At the conclusion of trial,
any notes, summaries, or other documents prepared by the defense that do or might contain
classi?ed information shall be destroyed by the Court Security Officer in the presence of civilian
defense counsel or his designated military defense counsel, unless otherwise ordered by the
Court.

(12) As the identity of government intelligence employees or the nature of that employee?s
affiliation with this case may be classi?ed, and as certain security arrangements may be
necessary to protect classi?ed information that may be discussed, the defense may not contact
any employee of any government intelligence agency without making prior arrangements for
such contact with the Court Security Of?cer. The Court Security Officer shall ensure that all
necessary precautions are taken to protect classi?ed information during any such contact
between defense and a government intelligence employee. ?Government intelligence
employees? are employees from the following organizations: Anny Counterintelligence; Central
Intelligence Agency, Defense Intelligence Agency, Department of Homeland Security Office of
Intelligence and Analysis, Department of State, Federal Bureau of Investigation, National
Security Agency, Of?ce of the Director of National Intelligence, and Of?ce of the National
Counterintelligence Executive.

o. A copy of this ORDER shall issue forthwith to all counsel assigned this case and to
civilian defense counsel, with a further order that defense counsel advise the accused of the
contents of this ORDER and furnish him a copy.

p. Nothing contained in these procedures shall be construed as a waiver of any right of the
accused.

It is so ORDERED, this the day of March 2012.

DENISE R. LIND

COL, JA
Chief Judge, Judicial Circuit

0 20751

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

PROTECTIVE ORDER
v. TO: COURT SECURITY

OFFICER

US. Army.

Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221

DATED:

1. This Court has determined it necessary for the Court Security Officer to verify that
substantive matters submitted by the Court and defense do not contain classi?ed information, or
if they do, to follow appropriate security measures in order to protect classi?ed information.

2. The provisions of this ORDER are not intended to apply to strictly procedural motions or
orders by the Court or the defense motions for extensions of time, continuances, scheduling
matters, etc.).

3. Based upon the Protective Order of this Court, it is hereby ORDERED

a. The Court Security Officer shall review the contents of Court and defense
submissions for the sole purpose of determining whether the submission and any attachments
contain classi?ed information. The Court Security Of?cer will not be making any classi?cation
determinations, but simply assessing whether, in light of OCA classi?cation decisions, a given
Court or defense submission contains classified information. In the case of defense submissions,
the Court Security Of?cer shall endeavor to review the submission and make his assessment the
same day the submission is received.

b. The Court Security Officer is directed to limit his review to the extent necessary to
determine whether any submission and any attachment contains classi?ed information.

c. The Court Security Of?cer is directed not to divulge the contents of any ex parte
submission in this case to any individual, unless so ordered by the Court.

d. Upon completing his review, the Court Security Of?cer shall provide a written declaration
to the Court or the defense (as applicable) indicating whether a submission is classi?ed or
unclassi?ed.

e. If the Court Security Of?cer determines that the pleading or document ?led by the defense
does not contain classi?ed information, he shall immediately alert the defense to this fact. The
defense shall then submit the pleading or document pursuant to local rules. If the Court Security

Of?cer determines that the pleading or document contains classi?ed information, he shall ensure
that the portion of the document containing classi?ed information is marked with the appropriate
classi?cation marking and is placed under seal. All portions of all papers ?led that do not
contain classi?ed information shall be returned to the Defense by the Court Security Of?cer and
?led pursuant to local rules. The original portion of the document containing classi?ed
information will be held by the Court Security Of?cer for insertion in the classi?ed portion of
the record of trial. The Court Security Of?cer shall immediately deliver copies of the entire ?led
pleading or document to the Court and opposing counsel in accordance with appropriate
handling procedures.

f. The Court Security Of?cer shall comply with all requirements stated in the Court?s
Protective Order.

It is so ORDERED, this the day of March 2012.

DENISE R. LIND
COL, JA
Chief Judge, Judicial Circuit

20753

UNITED STATES
GOVERNMENT MOTION
FOR PROTECTIVE ORDER

V.

U.S. Army,

Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221 1

DATED: 13 March 2012

RELIEF SOUGHT

1. The Defense requests that the Court deny the Govemment?s proposed Protective Order. The
Defense requests that the Court grant the Defense?s proposed Protective Order (with or
without the minor amendments referenced herein). See M.R.E. 505(g)(1). Additionally, the
Defense requests that Mr. Prather and the relevant OCA be produced as witnesses for the
motions argument.

A-no

7 Aside from all Motions and attachments already in evidence, the Defense references herein

Attachment A: Government Email to Defense Dated 26 February 2012

Attachment B: Court Protective Order ?United States v. Diaz

Attachment C: Memorandum of 18 September 2010 to Sta?' Judge Advocate re:
?Preliminary Classi?cation Review of the Aecused?s Mental States

ARGUMENT

3. The Govemment?s proposed Protective Order is not only nonsensical, it is it downright
draconian. The Defense maintains that if the Govemment?s Proposed Protective Order is
approved, PFC Manning will be denied his right to counsel in contravention of the Sixth
Amendment of the United States Constitution. Moreover, the Defense is dumbfounded that CPT
Fein would indicate in his 26 February 2012 email to Mr. Coombs that the Govemment?s
Protective Order would be something that the Defense would ?likely be 98% amenable with.?
See Attachment A. The Government could not have been more off-the-mark. The Defense
maintains that the Government?s Protective Order is the equivalent of using dynamite to kill a

20754

4.

M.R.E. 505(g)( l) allows a court to make an "appropriate" protective order to guard against

"disclosure of classified information.". Here the Government's requested order is both not
"appropriate" within the meaning ofM.R.E. 505(g)( l), nor it is designed to guard only
"classified" information. It is designed to guard information that is not classified, but that the
Government feels should be "treated as classified." Moreover, the restrictions that the
Government would attempt to place on the Defense are far outside of the realm of the measures
contemplated under M.R.E. 505(g)( l )(A)-(G).1

5. At the outset, the Defense would note that its Protective Order does not contain "countless
legal and factual errors" as stated by the Government.

See Prosecution Response to Defense

Motion for Appropriate Relief UnderMilitary Rule of Evidence 505, page 2. Simply because
the Government does not like the Defense's Protective Order does not mean that the Protective

Order contains "countless legal and factual errors."

(See discussion, infra

at C.).

6. The Defense's Protective Order was adapted from the Protective Order in
Diaz, 2009 CCA LEXIS 79 (N-M.C.C.A. Feb. 19, 2009),

aff'd,

United States v.

69M.J. 127 (C.A.A.F. 2010).

Indeed, the Protective Order endorsed by the military judge inDiaz had been drafted and
proposed by the Government in that case (not the Defense).

See

Attachment

B.

Thus, the

Protective Order the Defense submits should govern this case-one which apparently contains
countless factual and legal errors-was very similar to a Protective Order advanced by the

Government, and adopted by the Military Judge in Diaz. Notably, theDiaz court thought that a
Protective Order in the nature of what the Defense is currently submitting was appropriate to

deal with classified infonnation that was not already available in the public realm. Additiomilly,

theDiaz case has been reviewed by both the Navy-Marine Court of Criminal Appeals and the

Court of Appeals for the Armed Forces; neither of these courts expressed any concern with the

Protective Order in that case.

7. To the extent that there are differences between the Diaz Protective Order and the current
Defense Protective Order, this was simply designed to deal with the issue of inadvertent spillage.
From a review of the Government's motion, it appears that it too also had access to.th eDiaz
Protective Order. If the Government did have access to the Diaz Protective Order, this makes its
attack regarding the Defense's "countless" errors particularly disingenuous.
1

(1) Protective order. If the government agrees to disclose classified information to the accused, the military judge,

at the request of the government, shall enter an appropriate protective order to guard against the compromise of the
inforniation disclosed to the accused. The terms of any such protective order may include provisions:

(A) Prohibiting the disclosure of the information except as authorized by the military judge;

(B) Requiring storage of material in a manner appropriate for the level of classification assigned to the
documents to be disclosed;

(C)

reasonable notice;
(D) Requiring appropriate security clearances for persons having a need to examine the information in
connection with the preparation of the defense;

(E)

Requiring the maintenance of logs regarding access by all persons authorized by the military judge to

have access to the classified information in connection with the preparation of the defense;
(F) Regulating the making and handling of notes taken from material containing classified information; or
(G) Requesting the convening authority to authorize the assignment of government security personnel and
the provision of government storage facilities.

2

20755

8. Below, the Defense will separately address the following issues:

A. Ftmdamental Problems with the Government?s Protective Order
B. Other Problems with the Govemment?s Protective Order
C. Addressing the Govemment?s Concerns with the Defense?s Protective Order and

Associated Motions

In sum the Defense maintains that the Government has lost all perspective on this issue. The
case has been ongoing for nearly two years, largely without incident. That the Government
views a ?xture potential and internal ?spillage? (or ?spillage? by inference) as having the
potential to cause ?exceptionally grave darnage? to the national security of the United States?
when it acknowledges that the information is already in the public domain is wholly
unreasonable and out of touch with reality. See Government Proposed Protective Order,
paragraph 3.q. By this statement, the Defense certainly does not intend to minimize the
importance of safeguarding information; however, it approaches the issue with a modicum of
common sense in light of the realities of criminal litigation.

A. Fundamental Problems with the Govern ment?s Protective Order

9. The Government?s Protective Order is far too broad. lt treats unclassi?ed information as
classi?ed information and requires that the Defense (but not the Government) take onerous steps
to safeguard this unclassi?ed information.3 In this respect, the Defense will address:

i) The Government?s creation of a new category of information, ?information treated
as classi?ed.?

ii) The scope of the de?nitions of classi?ed information.

The Govemment?s proposal that all Defense team members work on all non-
procedural matters from a classi?ed computer at an appropriate ?govemment
facility.?

iv) The Govemment?s procedure for ?ling documents.

v) The Govemment?s sanctions for disclosing ?classi?ed? information.

10. Information ?Treated as? Classi?ed: The Government has invented a new category of
information that it believes should be subject to a Protective Order?infonnation that is ?treated
as classi?ed?. The Government has prepared a list on its own, entitled Judicial Order to Treat
Certain Information As Classified Information (?Supplemental Order?), wherein lists facts,
information, or things that it believes should be ?treated as classi?ed.? See Government
Proposed Protective Order, paragraph There is no such category of information to be
?t:reated as dassi?ed? information is either classi?ed or it is not. As the Government is so apt

2 Under Executive Order 13526, it is only Top Secret information that has the potential to cause exceptionally grave
damage to national security. See l.2( 1). PFC Manning is not even charged disclosing Top Secret
Information. Moreover, the Defense believes that the damage assessments that it has been requesting in discovery
for years will reveal that the original alleged disclosures did not cause less ?exceptionally grave
damagc??to national security. If this is the case, how can a second disclosure of that same information cause
exceptionally grave damage? The Government loses all credibility when it makes such ridiculous assertions.

3 This is ironic given that the Government has, on at least two occasions, inadvertently disclosed classi?ed

information itsel?

20756

to point out, only the 0CAs can determine whether something is or is not classi?ed. By adopting
the ?treated as classi?ed? procedure, the Government has usurped the role of the OCAs by
unilaterally deeming certain things to be ?off limits? for either the Defense or the Court to
mention.

11. If this list were approved in writing by the relevant OCAs as actually being classi?ed, the
Defense would obviously not reference the information. Presumably this could have been done
and submitted to the Court and the Defense as part of this motion.? Tellingly, the Government
acknowledges ?that the Supplemental Order is n_ot a substitute for a classi?cation review by an
appropriate Authority.? See Government Proposed Protective Order, paragraph If that is
the case, why weren?t the items in the Supplemental Order shown to the OCAs and actually
determined by the OCAs to be classi?ed, rather than ?treated as classi?ed??

12. The fact the Government chose to put things on its list, but not to get an OCA statement that
the material is, in fact, classi?ed should speak volumes. It signals that the information is not
actually classi?ed?it is simply information that the Govemment does not want the Defense to
reference. Absent a showing that something is actually classi?ed, the Govermnent does not get
to restrain the Defense?s speech in this manner.

13. The Government justi ?es its ?treated as classi?ed? category of information as being a way
to ?facilitate an ef? cient ?ling process that protects classi?ed information.? See Government
Proposed Protective Order, paragraph 3.n. (4). The Government?s proposal is anything but
e?icient, as discussed below. Moreover, the Government is wrong when it says that it is a
process for ?protect[ing] classi?ed information? it is instead a process for protecting what the
Government thinks should be ?off limits? for the Defense.

14. The Government?s position on the ?treated as classi?ed? information is also internally
incoherent. If the information is on the Govemment?s list, it is deemed to be classi?ed and it
cannot be referenced. If instead, the Court Security Of?cer sees something in a ?ling that is not
on the list, but he believes is classi?ed, then the Government proposes that the parties go through
the process of having the OCA determine whether the information is classi?ed. If the
Government envisages a role for the OCAs, why have the OCAs not approved the governrnent-
created list?

15. The implication of the Govemment?s position is that motions and ?lings which do not
actually contain classi?ed information (but simply information that the Government deems
should be ?treated as classi?ed?) will be shielded from public view. Undoubtedly, this is an
ancillary bene?t to the Government, who will be protected ?om public scrutiny in a high-pro?le
case.

Indeed, at page 1 of its Supplement to Prosecution Motion fora Protective Cider, the Government refers to
Enclosure 1 as providing just a ?small sampling of classi?ed information tint might otherwise seem unclasa?cd, but
has been determined to be classi?ed by the appropriate The Defense questions why, to the extent that a list
of classi?ed items is appropriate, this list of actually classi?ed items, is not the approrriatc one to be using in the
instant case? As long as everything on the list has been determimd to be classi?ed by the OCA and evidence is
provided to that e?ect, the Defense would not object to a list

4

20757

16. To the extent that the Court would consider creating a category of information that should be
?treated as classi?ed? (which the Defense submits the Court should not consider), the Defense
requests that it have the ability to challenge certain things on the list by submitting a request to
the relevant OCA as to whether the material is actually classi?ed. The Defense objects to
relying on the sheer say-so of the Government that something should be ?treated as classi?ed.?

'tion of ?Cl i?ed? Info ation am a 3. c. 1 . The Defense objects to the
Govemment?s de?nition of ?classi?ed? information in paragraph and in its
proposed Protective Order. The scope of these provisions is alarmingly broad and would deem
almost everything to be classi?ed.

18. For instance, paragraph 3.c.(l of the Govemment?s proposed Protective Order says that
?classi?ed? inforrnati on is ?any information that refers or relates to national security or
intelligence matters.? 5 Para. is similar in that it covers ?any information obtained ?'om
any agency, department or other governmental entity .. . that refers to national security or
intelligence matters.? This could mean that almost every document involved in this case would
be classi?ed, as they can all be construed as ?referring? or ?relating? to national security or
intelligence matters.

19. Paragraph of the Government?s Protective Order states that ?classi?ed?
information includes ?any document and information, including non-written, aurally [sic.]
acquired information, which the accused or defense counsel have been noti?ed orally or in
writing that such document or information may be classi?ed.? (emphasis added). Notably, the
Government does not state that the information is actually classi?ed. Rather, all it would take
for the Government to prevent the Defense from mentioning something in a ?ling (or having to
?le something under classi?ed procedures) is for the Government to say that ?We believe fact
is classi?ed.? If the Government genuinely believes fact?-to be classi?ed, the appropriate
course of action is to determine through the OCA process whether fact? is actually classi?ed.
Through this provision, the Government is trying to surreptitiously have the ability to play the
trump card on whether the Defense is able to reference certain infonnation.

20. Restrictions on Accused?s Constitutional Right to Counsel: Equally troubling (or perhaps
even more so) is the Government?s attempt, under the guise of a Protective Order, to deny PFC
Manning his right to counsel. In paragraph 3.k. of its Protective Order, the Government
advances an incredulous proposition: that Defense cotmsel shall prepare any and all pleadings or
other documents, including substantive communications email), in a?govemrnent facility.?
In short, the Government proposes that the Defense team literally move to a place with an

5 The Defense Protective Order also deems classi?ed informationto be ?any information, regardless of place of
origin, that could reasonably be believed to contain classi?ed information, or that refersto national security or
irtelligencc matters? In retrospect, and in light of the current motion, the Defense does not believe
this to be an appropriate provision hr the Protective Order and would ask that the court strike that subsection from
the Defense?s Protective Order. Under normal circumstances, that Defense would think that the parties would
exercise common sense in imerpreting this provision. However, the Defense now believes that the Government will
interpret this provision as applying to all documents which re?arence or re?r to national security or intelligence
tters, even if they are clearly not classi?ed or believed to be classi?ed.

5

20758

approved ?govemment facility? (Kansas6, Washington D.C. or Maryland) for the next six
months while preparing for trial. Every time that Defense counsel would want to jot down notes
for a pleading or cross-exarnination, draft documents, or send the Court or Government an email,
it would have to do so from an approved government facility. Such a suggestion is patently
outrageous. See also Protective Order, paragaph (all documents prepared by the defense
that ?do or may contain classified information? shall be ?prepared only by persons who have
government facility on the three provided laptop computers. . .

21. Moreover, there is no logical reason why Defense counsel would have to do all substantive
work on this case in a government facility, while the Court would not. In other words, it makes
no sense to distinguish between the Court and the Defense in this respect. If the Government
believes that moving to a place with a government facility for the next six months is how the
Defense must proceed, it must also believe that Your Honor must transact all business dealing
with this case (other than purely procedural issues) ?om a secure government facility.

22. If the Defense is required to work only from a government facility, the accused will be
denied his right to eotmsel. Major Kemkes is currently attending ILE training, which would
make it physically impossible for him to work from a government facility. That would mean that
one of the accused?s counsel would not be able to work on this case at least for the next few
months.

23. Mr. Coombs lives in Providence, Rhodc Island.7 He has a family and other professional
obligations. Under the Government?s proposed plan, Mr. Coombs will be forced to leave his
family for the next six months and secure housing and transportation in Maryland, at a
signi?cant personal cost to him or his clients Moreover, every time Mr. Coombs would want to
work on the case (which is very o?en), he would need to physically be in a government facility.
If he were to wake up in the middle of the night and want to work on the case, he would need to
go to a government facility and work on one of three designated laptops. If the Military Judge
were to ask Mr. Coombs to respond to an inquiry on a non-procedural matter ?what is your
position on the Jones case??), Mr. Coombs would have to physically travel to a government
facility to respond.? Further, it seems that Mr. Coombs would not be able to use a blackberry or
his personal computer to receive email; any email related to this case would only be available if
Mr. Coombs physically went to the government facility.

The Government refers to the Trial Defense Service Omee on Fort Leavenworth, KS as being a ?government
fzcility? within the meaning of the Protective Order. As the Government lcnows, PFC Manning was moved to Fort
Made prior to the arraignment in early February and is not scheduled to go back to Kansas. As such, it is unclear
why this is listed as a ?govemment facility? as it is not a viable location from which to operac.

7 My apologies for the (somewhat obnoxious) reference to myself in the third-person. It seemed to be the clearest
way to delineate between the accused?s counsel.

A conservative guess ofthe expenses that Mr. Coombs would incur is in the range

9 In all likelihood. the government facility that Mr. Coombs would be wcrking from is the trailer on Fort Meade,
Maryland Altlmigh TDS oi?ces are also on the list of ?government facilities,? the Defense does not believe that
TDS would allow civilian counsel ml] and unfettered access to TDS o?ices to work on a case for six months or
longer.

20759

24. This is all in stark contrast with Government cotmsel. All the Government attorneys in the
case could work on tmelassi?ed matters on their personal computers and could receive and send
emails on their personal computers or handheld devices. They could work on motions in their
of?ce or in the comfort of their home, according to their personal schedule. They would be able
to respond to emails from the Com, witnesses, and relevant parties instantaneously and with
ease. Meanwhile, Mr. Coombs would be ?guratively shackled to Fort Meade, Maryland for six
or more months, travelling to the ?government facility? any time he had any thoughts or wished
to send any non-procedural email. This proposal is absolutely ludicrous. No counsel should
have to try to defend a client under these draconian restrictions. The Defense would hazard to
guess that no court martial proceeding, or any criminal proceeding in the United States, has been
tried under these conditions. Not only would this violate the accused?s right to counsel in
contravention of the Sixth Amendment, it would be an impermissible restriction on the liberty
interests of the Defense team.

25. This ?solution? o?ered by the Government would have the obvious effect of dampening the
vigor with which the Defense team could mount a defense. It would have the corresponding
bene?t for the Government of litigating against a weaker opponent. The Defense believes that
this was actually the intent of the provision and is genuinely disappointed in the Government, a
representative of the United States, for resorting to such tactics.

26. The Defense has, for almost two years, been able to vigorously defend the accused without
the need for such unprecedented measures. There has been only one incident of claimed spillage
by the Defense a ?spillage? that the Government concedes was only such because the
information was classi?ed by inference. The Defense cannot fathom how the Government
could, in good faith, advance this restriction as part of its Protective Order to deal with pleadings
and ?lings which are unclassi?ed. The Defense is ?illy aware of its responsibilities to guard
classified information; it does not need to be in virtual lockdown to guard against the possibility
that something it might say (which it knows not to say) might be determined by the Government
to constitute unauthorized dis closure by inference.

27. Filings with the Court: The Government?s proposal for only the Defense") to ?le every
document (other than strictly procedural in nature) under seal even if it does not contain
classi?ed information is tmnecessary. It places an undue burden on the Defense because it
requires that the document be ?led in person or through secure email, even where it is
abundantly clear that the document is not classi?ed.

28. At paragraphs and (S) of its Protective Order, the Government seems to contemplate
that it will be the Defense security experts who will physically ?le the relevant motions. It is not
clear why it must be the Defense experts who ?le the motions and not the Defense attorneys
(given that, under the Government?s proposal, the Defense attorneys will be at Fort Meade).
Hard copy delivery would be impossible in most cases, as the Defense security experts are not
physically located at Fort Meade, but rather in Washington D.C. And all of these measures are
proposed to be in place in order to provide the Court Security O?icer with what everyone knows
is an unclassi?ed document.

The Government is not placed tmderthe same burden as the Defense to ?le every document other that ?purely
administrative rmtions, such as extersions of time or continuances? under seal. Se paragraph 3.0.

7

20760

29. At paragraph of its Protective Order, the Government indicates that all Defense
?lings must be submitted to the Court Security Of?cer by midnight on the date of ?ling. There
is also a corresponding provision for the Government at paragraph 3.0. Is the Government
suggesting the Court Security Of?cer stay in his of?ce until after midnight on the dates of
Defense and Government ?lings to order to receive the relevant information (whether by secure
email or by hand delivery)? If so, it is impossible to reconcile this requirement with the
Govemment?s position that having Mr. Prather testify about his role in a preliminary hearing is
too onerous a requirement to place on him. See page 5 Prosecution Response to Defense Motion
for Appropriate Relief under Military Rule of Evidence 505.

30. Moreover, the Govemment?s proposal for ex parte ?lings by the Defense at paragraph
is laughable, as it contemplates the Government examining the potentially classi?ed
portion of the axpartc ?ling. The Government notes that if the Court Security Of?cer
determines that the ex parte ?ling may contain classi?ed information, he must inform the
Defense and Trial Counsel of that fact. The Defense must then provide a ?classi?ed information
supplement? and turn that over to the Trial Counsel. Under the Govemment?s proposal, ?The
trial counsel shall then consult with the appropriate agencies to determine whether the
supplement contains classi?ed infonnati on.? The Defense does not understand how the ex parte
nature of the ?ling is maintained if the Government has a role in reviewing the information in
conjunction with the OCAs.

31. Violation of the Protective Order: The Government states at paragraph 3.q. of its proposed
Protective Order that:

Any unauthorized disclosure or dissemination of classi?ed documents or information
constitute violations of United States criminal laws. In addition, any violation of the
terms of this Order shall be immediately brought to the attention of the Court and may
result in a charge of contempt of the Court and possible referral for criminal prosecution.
Any breach of this Order _rr_gy also result in the termination of a person's access to
classi?ed documents or information and a formal complaint to that person?s state bar
association.

32. Apparently, the Government believes that by underlying the word this is somehow
responsive to the Defense?s and Court?s concerns about being subject to contempt proceedings
and disbarment in the event of unauthorized disclosure. The way the Government?s Protective
Order is drafted, almost everything is deemed to be classi?ed. The potential for the Defense and
for the Court to violate the Government? Protective Order is not only real, but likely.

33. The term ?may? does not explain any of the following: Who decides whether a Defense or
Court dis closure should be reported to bar association? Will the Government prosecute the
Defense or Military Judge for disclosing classi?ed information? If so, under what standard?
What if the information is not actually classi?ed, but simply deemed to be classi?ed (or, in the
words of the Government, ?treated as classi?ed?)? Does disclosing information that is ?treated
as classi?ed? but not actually classi?ed subject the Defense and the Court to criminal or
disciplinary sanction? Is there a distinction between intentional, negligent and accidental

20761

disclosure? Under what circumstances will a violation of the order result in a suspension of
security clearances? Who decides whether the Defense?s or the Court?s security clearances will
be revoked?

34. The point is that the Government has not provided any standard?much less a clear
standard?to govern the very real concerns of the Defense and the Court. Given the incredibly
broad nature of the Protective Order sought by the Government, the Defense is very concerned
about inadvertently disclosing ?classi?ed? information. Where the Defense is not permitted to
reference any actually classi?ed information, information ?to be treated as classified? or
information ?referring? or ?relating? to national securi or intelligence matters, the Defense will
be walking on eggshells for the next six months. The Defense does not wish to risk criminal
sanctions and professional disciplinary proceedings because the Government wishes for anything
and everything to be deemed classi?ed. The whole purpose of the system put in place by the
Defense?s motion is to immunize it (and the Court) from criminal and ethical sanctions so long
as the appropriate protocols are followed. The Govemm ent?s Protective Order contains no such
limitations.

35. The Govemment?s Protective Order has the Defense wondering whether this is just a bad
joke. The Defense cannot fathom how the Government could not see the failings of the system it
proposes be in place to safeguard information which, while classi?ed, has been in the public
realm for the past two years.

B. Other Problematic Aspects of the Govemment?s Protective Order

36. The Defense would also point to the following (non-exhaustive) list of issues with the
Govemment?s Protective Order:

0 -Under the Govemment?s Protective Order, there is virtually no role for the Defense
Security Experts. It seems that the Government envisages the Defense Security Experts
as merely facilitating and opining on logistics handling, storage). The Government
states at paragraph 3.f. that ?Detailed defense security experts are not authorized to make
independent classi?cation determination, that is, whether information is classi?ed.? As
the Defense has repeatedly stated, the Government is missing the boat. The Defense
experts would not make an ?independent classi?cation determination??they would
simply advise whether the Defense is permitted to say/write something in light of existing
OCA determinations. Incidentally, it is ironic that the Government is so opposed to
Defense experts making an ?independent classi?cation determination? when that is
exactly what the Government is doing through the ?treat as classi?ed" designation.

0 The Government excludes from paragraph 3.i. of its Protective Order one attorney who
has been assigned to the Defense, CPT Joshua Tooman.

0 The Defense opposes requesting approval of security clearances through the Trial
Counsel as suggested at paragraph 3.i of its Protective Order. The Government does not
have any incentive to process such requests expeditiously, as demonstrated by prior

20762

history in this case. Instead, the Defense submits that the requests be processed through
the Court Security Officer.

The Government's restrictions with paragraph 3.1.(6) do not account for the Defense
speaking with any of the OCAs either by deposition or by other pretrial interview.
Additionally, this provision does not address situations where the Defense is interviewing
unit witnesses, such as other intelligence analysts from PFC Manning's unit. These
witnesses have knowledge of classified and other information that is the subject of this
case. Under the Government's Protective Order, the Defense would have to engage in

paragraph 3.m. of Protective Order are both unclear and unreasonable. The section
indicates that "[i]f it becomes necessary for the accused to review or discuss classified
matters, or otherwise meet with defense counsel, then the trial counsel shall coordinate
this meeting. The defense counsel shall notify the trial counsel in writing, no less than
ten calendar days in advance." It is unclear whether the Government's position is that for

any meeting ("or otherwise meet with defense counsel"), the Defense counsel must pre­
approve this request with the Government

1 0 days

in advance. 11 The Defense assumes

that this cannot be what the Gov ernment intended, as it does not need the Government's
permission to visit the accused. As such, it must mean that if classified information is to
be discussed, the Government needs

10 days to arrange the meeting.

This is an

unreasonable requirement. The Defense understands that there may be some logistical
concerns with the confmement facility, but the Government does not need a week and a
half to coordinate the accused's movement.
C. Addressing the Government's Concerns with the Defense's Protective Order and
Associated Motions
37. The Government goes to great lengths to explain why the Defense's Protective Order
"contains countless legal and factual errors"/ "clerical errors" and why the Order "violates the
spirit ofMRE 505(g)(l)." See Prosecution Response to Defense Motion for Appropriate Relief
Under Military Rule of Evidence 505, page 2. There are no such errors. In reality, the
Government simply does not like the Defense's order because it takes the power away from the
Government and places it in the hands of a third party neutral.
38. The Government says that a "major concern" is that the Defense is giving too much to the
Court Security Officer to do. "Requiring the CSO to absorb all of these tasks ... may cause
future delays, in addition to unnecessarily burden an expert upon whom the parties and the Court
rely heavily." See Prosecution Response to Defense Motion for Appropriate ReliefUnder
Military Rule of Evidence
11

505, page

It is not clear whether the Government believes that the Defense must disclose the content of the classified

information as a precondition to the meeting. This issue has arisen in the past, and the Defense submitted a

Memorandum on 18 September 2010 detailing its position. See Attachment C. To the extent that the proposed
provision can be read as requiring disclosure of the contents of the classified information, the Defense maintains that
United States

v.

Schmidt, 60 M.J. 1 (C.A.A.F.) precludes the Government from requiring such disclosure.

10

20763

badges/paperwork; being the liaison for any persons who, in ?xture, need security clearances
(though there may be no such persons); making sure that Defense requests for equipment are
submitted to the relevant entities, etc. In short, the Defense is asking that the Court Security
Officer be the intermediary on these issues. That the Government claims these responsibilities
are too burdensome for Mr. Prather, while the Defense claims they are not, underscores why Mr.
Prather needs to testify as a witness.

39. The Government also with some semantic issues in the Defense?s Protective Order.
See Prosecution Response to Defense Motion for Appropriate Relief Under Military Rule of
Evidence 505, page 3. In response to the speci?c items raised by the Government:

i) The Defense is not clear on why the Government believes that it has ?improperly
de?ne[d] [the] scope? of the Protective Order.

ii) The de?nition of ?defense? is not problematic, as other provisions that are more
speci?c refer to ?defense experts.? However, the Defense is happy to broaden that
provision.

The provision related to 505(h) is unobjectionable; the Government simply thinks it
should be contained in a different motion.

iv) If the Government believes that the term ?Government Intelligence Employees? is
too narrowly de?ned, the Defense is happy to amend the list.

v) The Defense has included restrictions on the accused?s access to classified
discovery. See Defense Protective Order, paragraph 3.n.(l 0).

40. The minor nature of the Govemment?s complaints shows that the Defense?s Protective Order
is virtually unobjectionable. This is not surprising given that the Defense has prsented a logical,
ef?cient, and common sense way of proceeding in this case (also essentially the same order
originally used in the Diaz case). Indeed, it was ?in light of these concems??concems which
the Defense just addressed in the two preceding paragraphs?that the Government asked the
Court to deny the Defense?s Protective Order. If these are indeed the Govemment?s concerns
with the Defense Protective Order, these concems are very easily addressed.

41. The Government asks that the Court deny the Defense request for the production of the
OCA. After a and repetitive history of the OCA process, the Government argues in one
paragraph why the Defense?s request should be denied:

In sum, the Defense has failed to articulate why the anticipated testimony of the
referenced OCA is ?relevant and necessary.? The witnesses? anticipated testimony,
speci?cally to ?obtain clari?cation regarding the scope of its classi?cation
detennination on referencing the OCA within court ?lings and open court? is ?not

relevant and necessary? but instead simply rguested to assist the Defense in
safeguarding classi?ed information. (citations omitted, emphasis added).

See Prosecution Response to Defense Motion for Appropriate Relief Under Military Rule of
Evidence 505, page 5.

11

20764

42. The Defense fully ?admits? that the OCA is requested to assist the Defense (and the Court)
in safeguarding classi?ed information. The Defense is puzzled at why this means that the OCA
is not ?relevant and necessary.? Ifthere is an OCA that could clarify what the Defense (and the
Court) can say and cannot say, how is that not ?relevant and necessary? in a proceeding to
determine how to protect infomiation? The Government inexplicably puts a nefarious spin on
the Defense requesting guidance on how to safeguard classi?ed information.

43. Ultimately, the goal is to protect classi?ed information. In order to do so, the Defense and
Court must know what they can say or write without disclosing classi?ed information. In this
case, there is an added complication in that the Government (and apparently the OCA) believes
that something can be ?classi?ed by inference.? Accepting that to be true for the moment, then
the Defense and Court must know what combination of otherwise unclassi?ed information
amounts to an impermissible disclosure of ?classi?ed by inference? information. The OCA can
easily provide that guidance, likely in a 15 minute closed session. That way, all parties will
know where they stand and the there is no need for the ?treated as classi?ed? list that the
Government has proposed. We will actually be treating as classi?ed that information which is
actually classi?ed.

CONCI

44. Based on the above, and its prior submissions, the Defense requests that the Court reject the
Government?s Protective Order in its entirety. It also renews its request for the Court to adopt
the Defense?s Protective Order as outlined herein.

Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

12

ATTACHMENT A

. . 20766

David Coombs
From: Fein, Ashden CPT USA SJA

Sent: Sunday, February 26, 2012 10:32 PM

To: Morrow JoDean, CPT USA
Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA
SJA

Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman

Subject: RE: Protective Order

David,

It is unfortunate that within one duty day of our hearing, you have made the decision not to work together on this issue.
Although your question seems simple to you and the defense, the prosecution is not in the position to commit to a
course of action without first consulting with the entities that would be required to actually conduct the work that you
propose or that COL Lind suggested, such as an OCA representative consulting with the CS0 or a C50 equivalent,
communicating over a secure network, etc.

All the prosecution has asked for, from the defense, is a few days to consult with the equity holders to determine the
most efficient means to protect the information and whether the different proposals are feasible. As always, you are
free to proceed with a separate course of action; however the prosecution will diligently work this week to develop a
proposed plan and we will submit this plan to you, prior to submitting to the military judge (as she directed), for
comment to determine if there is a common plan or at least some processes that both the defense and prosecution
agrees with.

v/r
Ashden

From:

Sent: Sunday, February 26, 2012 9:50 PM

To: Fein, Ashden CPT USA Morrow JoDean, CPT USA Overgaard, Angel M.
CPT USA Whyte, Jeffrey H. CPT USA SJA

Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman

Subject: RE: Protective Order

Ashden,

I think that the Government is unnecessarily making the process more difficult than it needs to be. This is something
that COL Lind cautioned against doing. Because you continue to refuse to provide any answer to basic questions, I will
proceed with a separate course of action.

Best,
David

David E. Coombs, Esq.
Law Of?ce of David E. Coombs
11 South Angell Street, #317

ATTACHMENT

20768

WNOJ^SSIFIEL
DEPARTMENT OF THE NAVY
GENERAL COURT-MARTIAL
NAVY-MARINE CORPS TRIAL JUDICIARY
CENTRAL JUDICIAL CIRCUIT

U N I T E D

S T A T E S
PROTECTIVE ORDER
v.

Matthew M. DIAZ
LCDR, JAGC, USN
1. This matter comes before the Court upon t h e motion o f t h e
Govemment f o r a P r o t e c t i v e Order t o prevent t h e unauthorized
d i s c l o s u r e o r dissemination of c l a s s i f i e d n a t i o n a l securityi n f o r m a t i o n and documents i n the captioned case. The Government
seeks a P r o t e c t i v e Order covering documents and i n f o r m a t i o n
p r e v i o u s l y made a v a i l a b l e t o the accused i n t h e course of h i s
employment w i t h the United States Government, as w e l l as
documents and i n f o r m a t i o n which have been, o r w i l l be, reviewed
or made a v a i l a b l e t o the accused o r defense counsel i n t h i s
case.
2. This Court f i n d s t h a t t h i s case w i l l i n v o l v e c l a s s i f i e d
n a t i o n a l s e c u r i t y i n f o r m a t i o n , the storage, handling, and
c o n t r o l o f which requires special s e c u r i t y precautions mandated
by s t a t u t e , Executive Order, and r e g u l a t i o n , and access t o which
requires the appropriate s e c u r i t y clearances and a "need-toknow ."
3.
Pursuant t o t h e a u t h o r i t y granted by M i l i t a r y Rule o f
Evidence 505; r e l e v a n t Executive Orders o f t h e President o f t h e
United States; r e g u l a t i o n s of the Departments o f Defense and
Navy; the general supervisory a u t h o r i t y o f t h e M i l i t a r y Judge;
and i n order t o p r o t e c t the n a t i o n a l s e c u r i t y of the United
States, i t i s hereby ORDERED as f o l l o w s :
a. The procedures set f o r t h i n t h i s P r o t e c t i v e Order apply
to the accused, a l l counsel o f record, a l l other counsel
involved i n t h i s case, a l l court personnel, and a l l other
i n d i v i d u a l s who receive access t o c l a s s i f i e d n a t i o n a l s e c u r i t y
i n f o r m a t i o n or documents i n connection w i t h t h i s case.

APPELLATE FXHWIT T V

CLASSJRED

Imi^m:^

20769

b.
The p r o v i s i o n s o f t h i s P r o t e c t i v e Order and M i l . R.
E v i d . 505 w i l l a p p l y t o a l l p r e t r i a l , t r i a l , p o s t - t r i a l ar^d
a p p e l l a t e m a t t e r s c o n c e r n i n g t h e above c a p t i o n e d case. I f
necessary, t h e p r o c e d u r e s may be m o d i f i e d f r o m t i m e - t o - t i m e b y
f u r t h e r o r d e r o f t h e M i l i t a r y Judge a c t i n g u n d e r h i s s u p e r v i s o r y
a u t h o r i t y t o ensure a f a i r and e x p e d i t i o u s t r i a l , w h i l e
protecting the national security i n t e r e s t s o f the United States.
c. The f o l l o w i n g d e f i n i t i o n s a p p l y t o t h i s ORDER:
1. ^ a c l a s s i f i e d i n f o r m a t i o n , ^ ^
information^^ s h a l l mean:

and ^^national

security

A. any document o r i n f o r m a t i o n w h i c h has been
c l a s s i f i e d b y any e x e c u t i v e b r a n c h agency i n t h e i n t e r e s t s o f
n a t i o n a l s e c u r i t y o r p u r s u a n t t o E x e c u t i v e O r d e r 12^5^, as
amended b y E x e c u t i v e Order 132^2, o r i t s p r e d e c e s s o r Orders as
^^CON^IDENTIAL,^^ ^^SECRET,^^ o r ^^TOP S E C R E T , o r a d d i t i o n a l l y
c o n t r o l l e d as ^^Sensitive Compartmented I n f o r m a t i o n ^ ^ (SCl^;
^. any document o r i n f o r m a t i o n , r e g a r d l e s s o f i t s
p h y s i c a l f o r m o r c h a r a c t e r i s t i c s , now o r f o r m e r l y i n t h e
p o s s e s s i o n o f a p r i v a t e p a r t y w h i c h has been d e r i v e d f r o m
i n f o r m a t i o n from t h e U n i t e d S t a t e s government t h a t was
c l a s s i f i e d b y t h e U n i t e d S t a t e s p u r s u a n t t o E x e c u t i v e Order
132^2 as ^^CONEIDE^T^AL,^^ "SECRET,or "TOP S E C R E T , o r
a d d i t i o n a l l y c o n t r o l l e d as "SC^^^;
C. v e r b a l c l a s s i f i e d i n f o r m a t i o n
r e t a i n e d b y t h e accused o r defense c o u n s e l ;

known t o o r

D. a n y i n f o r m a t i o n ,
regardless o f p l a c e o f o r i g i n
and i n c l u d i n g " f o r e i g n government i n f o r m a t i o n , ^ ^ as t h a t t e r m i s
de^ir^ed i ^ ^ ^ e ^ u t i v ^ 0:^der :L^^5^, as amended b y E x e c u t i v e Order
1^2^2, o r i t s p r e d e c e s s o r Orders t h a t c o u l d reasor^ably be
believed t o contain c l a s s i f i e d information, o r that refers t o
national security o r i n t e l l i g e n c e matters; o r
E. any document o r i n f o r m a t i o n as t o w h i c h t h e
accused o r defense c o u n s e l have been n o t i f i e d o r a l l y o r i n
w r i t i n g t h a t such documents o r i n f o r m a t i o n c o n t a i n c l a s s i f i e d
information.
2. The words "documents^^ " i n f o r m a t i o n ^ ^ o r " a s s o c i a t e d
material^^ as used i n t h i s ORDER i n c l u d e , b u t a r e n o t l i m i t e d t o ,
a l l w r i t t e n o r p r i n t e d m a t t e r o f any k i n d , f o r m a l o r i n f o r m a l ,
i n c l u d i n g o r i g i n a l s , i d e n t i c a l c o p i e s , and a l l n o n - i d e n t i c a l
^PPEtt^E^^^^^I^^^

^^^^^^^^^ED

^^^^^^

20770

^^^^^^^^^^0
copies, whether d i f f e r e n t from the o r i g i n a l by r e a s o n o f any
n o t a t i o n made on such copies or otherwise, i n c l u d i n g without
l i m i t a t i o n , papers, correspondence, memoranda, notes, l e t t e r s ,
telegrams, r e p o r t s , summaries, i n t e r - o f f i c e and i n t r a - o f f i c e
communications, n o t a t i o n s of any s o r t concerning conversations,
meetings, or other communications, b u l l e t i n s , t e l e t y p e s ,
t e l e f a x , invoices, worksheets, and a l l dra:fts, a l t e r a t i o n s ,
m o d i f i c a t i o n s , changes and amendments of any k i n d t o the
foregoing, graphic or o r a l records or representation's of any
k i n d , i n c l u d i n g , without l i m i t a t i o n , photographs, charts,
graphs, microfiche, m i c r o f i l m , video tapes, sound recordings o f
any kind, and motion p i c t u r e s , e l e c t r o n i c , mechanical or
e l e c t r i c records or representations of any k i n d , i n c l u d i n g ,
without l i m i t a t i o n , tapes, cassettes, d i s c s , CD-ROM, recording,
f i l m s , t y p e w r i t e r ribbons, computer, or word processor d r i v e s ,
d i s c s , or tapes, and a l l manner of e l e c t r o n i c data processing
and storage.
3. "Access t o c l a s s i f i e d informations means having
access t o , reviewing, reading, l e a r n i n g , o r otherwise coming t o
know, i n any manner, c l a s s i f i e d i n f o r m a t i o n .
^. "Secure area^^ means a storage f a c i l i t y designated
by the Security O f f i c e r f o r the storage, handling, and c o n t r o l
of c l a s s i f i e d i n f o r m a t i o n .
5. The word "or^^ should be i n t e r p r e t e d as i n c l u d i n g
"and,^^ and v i c e versa; "he^^ should be i n t e r p r e t e d as i n c l u d i n g
"she,^^ and v i c e versa.
^. The "defense^^ r e f e r s t o and includes t h e accused,
h i s m i l i t a r y and c i v i l i a n counsel.
d. .^11 c l a s s i f i e d ^ocum^^t^ a^d i^:^ormatio:^ contained
t h e r e i n s h a l l remain c l a s s i f i e d unless they bear c l e a r
i n d i c a t i o n t h a t they have been d e c l a s s i f i e d by t h e agency or
department of govemment t h e r e i n a f t e r r e f e r r e d t o as
" o r i g i n a t i n g agency^^^ t h a t o r i g i n a t e d the document or t h e
i n f o r m a t i o n contained t h e r e i n .
e. I n f o r m a t i o n i n the p u b l i c domain i s o r d i n a r i l y not
c l a s s i f i e d , however, i f t h e defense a n t i c i p a t e s seeking t h e
c o n f i r m a t i o n or d e n i a l of whether i n f o r m a t i o n i n t h e p u b l i c
domain i s c l a s s i f i e d , by questioning any person who has, or has
had, access t o c l a s s i f i e d i n f o r m a t i o n , or i f a t r u t h f u l response
t o a request or question put f o r t h by t h e defense counsel about
i n f o r m a t i o n i n the p u b l i c domain requires an i n d i v i d u a l t o
APPEtlATE tXHffilT

UNCLASSIFIED

[y

i_of_^_: ™OED PARF 20771 ^^CLASSIFIE^ r e v e a l c l a s s i f i e d ir^formation, i n any proceeding ^ i n c l u d i n g p r e t r i a l , t r i a l , and p o s t - t r i a l and appellate proceedings^ r e l a t i n g t o t h e above captioned case, then the defense must comply w i t h the n o t i c e requirements under M i l . R. Evid. 505 and t h e terms o f t h i s ORDER. f . Any unauthorized d i s c l o s u r e of c l a s s i f i e d i n f o r m a t i o n may c o n s t i t u t e v i o l a t i o n s o f the Uniform Code o f M i l i t a r y J u s t i c e as w e l l as the c r i m i n a l laws o f the United States, i n c l u d i n g but not l i m i t e d t o , the p r o v i s i o n s o f Sections ^ ^ 1 , ^^3, ^5^, and 1^2^, T i t l e 18, United States Code, and Sections ^21 and ^83 ^b^, T i t l e 50, United States Code. A t t o m e y s who v i o l a t e t h i s ORDER may be reported t o t h e i r State ^ a r Association. I n a d d i t i o n , any v i o l a t i o n o f t h e terms o f t h i s ORDER s h a l l be brought immediately t o the a t t e n t i o n of t h i s Court and may r e s u l t i n a charge of contempt o f court and p o s s i b l e r e f e r r a l f o r c r i m i n a l prosecution. Any breach o f t h i s ORDER may also r e s u l t i n t e r m i n a t i o n o f an i n d i v i d u a l ' s access t o c l a s s i f i e d i n f o r m a t i o n . Persons subject t o t h i s ORDER are advised t h a t d i r e c t or i n d i r e c t unauthorized d i s c l o s u r e , r e t e n t i o n , o r n e g l i g e n t handling o f c l a s s i f i e d documents o r i n f o r m a t i o n could cause serious damage, and i n some cases, e x c e p t i o n a l l y grave damage t o the n a t i o n a l s e c u r i t y of the United States, o r may be used t o the advantage of a f o r e i g n n a t i o n against the i n t e r e s t s of t h e United States. This P r o t e c t i v e Order i s t o ensure t h a t those authorized t o receive c l a s s i f i e d i n f o r m a t i o n i n connection w i t h t h i s case w i l l never d i v u l g e t h a t i n f o r m a t i o n t o anyone n o t authorized t o receive i t , w i t h o u t p r i o r w r i t t e n a u t h o r i z a t i o n from the o r i g i n a t i n g agency and i n conformity w i t h t h i s OROER. g. l^ieutenant Maurice ^unt, U.S. ^avy, ^ a v a l S t a t i o n N o r f o l k , i s appointed as Court S e c u r i t y O f f i c e r . LT ^unt s h a l l f u n c t i o n as an o f f i c e r of the Court. h. Personnel S e c u r i t y Investigation's and Clearances 1. The Court has been advised t h a t t h e f o l l o w i n g m i l i t a r y t r i a l and defense counsel hold a SECRET s e c u r i t y clearance and r e q u i r e access t o the c l a s s i f i e d i n f o r m a t i o n and documents a t issue i n t h i s case: ^ ^ ^ ^ CDR Rex Guinn, JAGC, US^, T r i a l Counsel LT James Hoffman, JAGC, US^, T r i a l Counsel LCDR ^aren Somers, JAGC, USN, D e t a i l e d Defense Counsel LT J u s t i n Henderson, JAGC, USN, A s s i s t a n t Defense Counsel APPELLAn ExwenlEl UNCLASS8 F8 ED P^GE i L APPENDED PAGE_/3- 20772 ^^^LA99^F^E^ 2. The Security Managers of Region Legal Service O f f i c e M i d - A t l a n t i c and Navy Legal Service O f f i c e M i d - A t l a n t i c s h a l l without delay v e r i f y t o the Court S e c u r i t y O f f i c e r t h a t the s e c u r i t y clearances of the above-named counsel are i n proper order, and are d i r e c t e d t o a s s i s t those counsel t h a t do not have the r e q u i s i t e s e c u r i t y clearances i n o b t a i n i n g such clearances. Once a m i l i t a r y counsel^s s e c u r i t y clearance i s v e r i f i e d , t h a t counsel s h a l l have u n f e t t e r e d access t o c l a s s i f i e d i n f o r m a t i o n t h a t i s relevant and necessary t o prepare f o r t h i s case, subject t o the requirements o f t h i s ORDER. Any changes o r s u b s t i t u t i o n s of m i l i t a r y t r i a l o r defense counsel s h a l l be immediately made known t o the Court S e c u r i t y O f f i c e r and M i l i t a r y Judge Any new m i l i t a r y t r i a l or defense counsel s h a l l be served w i t h a copy o f t h i s ORL^ER and s h a l l be subject t o the p r o v i s i o n s o f t h i s ORDER. 3. Neither the accused, h i s c i v i l i a n defense counsel, Mr. V i c t o r ^ e l l e y , any associated counsel or employee o f c i v i l i a n defense counsel, may have access t o c l a s s i f i e d i n f o r m a t i o n i n connection w i t h t h i s case, unless t h a t person f i r s t shall: a^ execute a l l forms needed by the government t o complete a p e r s o n n e l s e c u r i t y i n v e s t i g a t i o n a n d m a k e a determination whether t o grant a l i m i t e d access a u t h o r i z a t i o n ; and have been granted, a s e c u r i t y clearance o r L i m i t e d Access A u t h o r i z a t i o n by the Department o f the Navy, through the Court S e c u r i t y O f f i c e r . Upon the execution and f i l i n g o f the MOU a t Appendix A, the government s h a l l e x p e d i t i o u s l y undertake t h e r e q u i r e d a c t i o n t o a s c e r t a i n the applicant's e l i g i b i l i t y f o r access t o c l a s s i f i e d i n f o r m a t i o n . b^ s i g n the swom statement i n the Memorandum o f Understanding ^MOU^ a t Appendix A t o t h i s ORDER. Any r e t a i n e d c i v i l i a n defense counsel^s MOU ^ h ^ l l i:^^lud^ 2^ ^tateme^t expressing h i s understanding t h a t the f a i l u r e t o abide by t h e terms o f t h i s P r o t e c t i v e Order w i l l r e s u l t i n a r e p o r t t o h i s State ^ar Association. c^ s i g n a standard form nondisclosure agreement as a c o n d i t i o n o f access t o c l a s s i f i e d i n f o r m a t i o n . Each person executing the MOU a t Appendix A must provide an o r i g i n a l t o the Court Security O f f i c e r and a copy t o the T r i a l Counsel and Convening A u t h o r i t y . i . Upon compliance w i t h the procedures set f o r t h above, the f o l l o w i n g attorney f o r the defense s h a l l be given access t o c l a s s i f i e d documents and a l l o t h e r i n f o r m a t i o n as r e q u i r e d by APPEtt^X^I^I^^^^ ^A^E^^^^^ ^^^^E^PAGE^^L^ 20773 the govemment^s discovery o b l i g a t i o n s and otherwise as needed to prepare f o r proceeding i n t h i s case: Mr. V i c t o r ^ e l l e y . Any a d d i t i o n a l person whose assistance the defense reasonably r e q u i r e s , i n c l u d i n g defense witnesses, may only have access t o c l a s s i f i e d i n f o r m a t i o n i n t h i s case a f t e r f i r s t o b t a i n i n g from t h i s Court, w i t h p r i o r n o t i c e t o the government, an approval f o r access t o the r e q u i r e d l e v e l of c l a s s i f i c a t i o n on a need-to-know b a s i s , and a f t e r s a t i s f y i n g the other requirements described i n t h i s ORDER f o r access t o c l a s s i f i e d i n f o r m a t i o n . ^. I n a d d i t i o n t o the Memorandum of Understanding contained i n Appendix A, any person who as a r e s u l t of t h i s case gains access t o information contained i n any Department o f the Navy Special Access Program, as t h a t term i s defined i n Executive Order 12^58, o r t o S e n s i t i v e Compartmented I n f o r m a t i o n ^SCI^, o r to an information subject t o Special Category ^SPECAT^ handling procedures, s h a l l s i g n a n y nondisclosure agreement t h a t i s s p e c i f i c t o that Special Access Program o r t o t h a t S e n s i t i v e Cor^partmented I n f o r m a t i o n or SPECAT i n f o r m a t i o n . k. A l l requests f o r clearances and access t o c l a s s i f i e d i n f o r m a t i o n i n t h i s case by persons not named i n t h i s OR^ER o r f o r clearances t o a higher l e v e l o f c l a s s i f i c a t i o n , s h a l l be made t o the Court S e c u r i t y O f f i c e r , who, a f t e r n o t i f y i n g t r i a l counsel f o r the govemment, s h a l l promptly process the requested s e c u r i t y clearances. I f t r i a l counsel f o r the government o b j e c t s t o such requests f o r access o r f o r clearances t o a higher l e v e l of c l a s s i f i c a t i o n , the matter s h a l l be brought t o the a t t e n t i o n of the Court f o r r e s o l u t i o n . 1. The s e c u r i t y procedures contained i n t h i s ORDER s h a l l apply t o any c i v i l i a n defense counsel r e t a i n e d by the accused, and t o any other persons who may l a t e r receive c l a s s i f i e d i n f o r m a t i o n from the U.S. ^epartmer^t of the Navy i n connection w i t h t h i s case. The substitution^, departure, o r removal from t h i s case of defense counsel o r any other c l e a r e d person associated w i t h the defense as an employee o r witness o r otherwise, s h a l l not release t h a t person from the p r o v i s i o n s o f t h i s ORDER or the MOU executed i n connection w i t h t h i s DRIVER. m. I n the ever^t c l a s s i f i e d i^formatior^ must be preser^ted a t t r i a l , the f o l l o w i n g procedures s h a l l apply: 1. The defense s h a l l provide n o t i c e o f i n t e n t t o e l i c i t c l a s s i f i e d i n f o r m a t i o n a t t r i a l t o T r i a l Counsel and the M i l i t a r y Judge c o n s i s t e n t w i t h M i l i t a r y Rule of Evidence 505^h^ and any Case Management Order entered. A l l associated m a t e r i a l UNCLASSIRFD APPELLATEEX^^^T^^^^ ^A^E^^^^^^^^^^ APPENDED PAGEIS 20774 ^^CLASS^F^ED and o t h e r documer^ts o f any k i n d o r d e s c r i p t i o r ^ c o n t a i n i n g any o f t h e i n f o r m a t i o n i n t h e defense d i s c l o s u r e n o t i c e s h a l l be s t o r e d under c o n d i t i o n s p r e s c r i b e d by t h e C o u r t S e c u r i t y O f f i c e r . 2. The n o t i c e under M i l . R. E v i d . 505 s h a l l c o n t a i n a b r i e f b u t s p e c i f i c w r i t t e n d e s c r i p t i o n o f any i n f o r m a t i o n known o r b e l i e v e d t o be c l a s s i f i e d , which t h e defense r e a s o n a b l y e x p e c t s t o d i s c l o s e o r cause t o be d i s c l o s e d i n any p r e t r i a l motion, proceeding, or a t t r i a l . 3. The defense d i s c l o s u r e n o t i c e s h a l l be f i l e d under s e a l w i t h t h e Court S e c u r i t y O f f i c e r , as more p a r t i c u l a r l y s e t f o r t h below i n p a r a g r a p h n.2. n. h a n d l i n g and P r o t e c t i o n of C l a s s i f i e d I n f o r m a t i o n . 1 T h e C o u r t S e c u r i t y o f f i c e r s h a l l a r r a n g e f o r and m a i n t a i n an a p p r o p r i a t e l y approved secure a r e a f o r t h e use o f c l a s s i f i e d i n f o r m a t i o n and documents r e l a t e d t o t h i s case, ^e s h a l l m a k e p r o m p t arrangements f o r t h e s t o r a g e o f s u c h m a t e r i a l . The C o u r t i s i n f o r m e d t h a t b o t h t r i a l and defense c o u n s e l have approved r e c e p t a c l e s f o r s t o r i n g c l a s s i f i e d i n f o r m a t i o n . I f t h e s e r e c e p t a c l e s are d e t e r m i n e d by t h e Court S e c u r i t y O f f i c e r t o be i n s u f f i c i e n t , t h e Court S e c u r i t y O f f i c e r s h a l l e s t a b l i s h p r o c e d u r e s t o assure t h a t p r o p e r s t o r a g e i s p r o v i d e d and t h a t t h e s e c u r e area i s a c c e s s i b l e t o defense c o u n s e l d u r i n g b u s i n e s s hours and a t o t h e r t i m e s upon r e a s o n a b l e r e q u e s t as approved by the C o u r t S e c u r i t y O f f i c e r . The C o u r t S e c u r i t y O f f i c e r , i n c o n s u l t a t i o n w i t h defense c o u n s e l , s h a l l e s t a b l i s h p r o c e d u r e s t o assure t h a t t h e secure a r e a may be m a i n t a i n e d and o p e r a t e d i n t h e most e f f i c i e n t manner c o n s i s t e n t w i t h t h e p r o t e c t i o n o f c l a s s i f i e d i n f o r m a t i o n . The Court S e c u r i t y O f f i c e r s h a l l n o t r e v e a l t o t h e govemment t h e c o n t e n t o f any c o n v e r s a t i o n s he may hear among t h e defense, n o r r e v e a l t h e mature o:^ t h e docume:^t^ b e i n g r e v i e w e d o r t h e work b e i n g g e n e r a t e d . The presence o f t h e Court S e c u r i t y O f f i c e r s h a l l n o t o p e r a t e t o r e n d e r i n a p p l i c a b l e t h e a t t o r r ^ e y - c l i e n t p r i v i l e g e o r t h e a t t o r n e y work p r o d u c t doctrine. 2. A l l p l e a d i n g s and o t h e r documents f i l e d by t h e defense s h a l l be f i l e d under s e a l w i t h t h e C o u r t S e c u r i t y Officer. Defense s h a l l f i l e under s e a l b o t h t h e o r i g i n a l p l e a d i n g o r document and two c o p i e s . The C o u r t S e c u r i t y O f f i c e r may g r a n t p e r m i s s i o n , s p e c i f i c t o a p a r t i c u l a r , n o n - s u b s t a n t i v e p l e a d i n g o r document ^e.g., m o t i o n s f o r e x t e n s i o n s o f t i m e , c o n t i n u a n c e s , schedulir^g m a t t e r s , e t c . ^ n o t c o n t a i n i n g i n f o r m a t i o n t h a t i s o r m i g h t be c l a s s i f i e d o r under s e a l , t o ^CLASSIFIED AP^^tl^E EXHIBIT^ OPPEMDEDPAGEZSZI 20775 f i l e t h e p l e a d i n g o r document ^ o t under s e a l . P l e a d i n g s f i l e d under s e a l w i t h t h e C o u r t S e c u r i t y O f f i c e r s h a l l be marked, " E i l e d Under Seal w i t h t h e Court S e c u r i t y O f f i c e r . T h e t i m e o f p h y s i c a l s u b m i s s i o n t o t h e Court S e c u r i t y O f f i c e r s h a l l be c o n s i d e r e d t h e d a t e and t i m e o f f i l i n g . The Court S e c u r i t y O f f i c e r s h a l l p r o m p t l y examine t h e p l e a d i n g o r document and, i n consultation with representatives of the o r i g i n a l c l a s s i f i c a t i o n a u t h o r i t i e s , d e t e r m i n e whether t h e p l e a d i n g o r document c o n t a i n s c l a s s i f i e d information. I f t h e Court S e c u r i t y O f f i c e r d e t e r m i n e s t h a t t h e p l e a d i n g o r document c o n t a i n s c l a s s i f i e d i n f o r m a t i o n , he s h a l l ensure t h a t t h e p o r t i o n o f t h e document c o n t a i n i n g c l a s s i f i e d i n f o r m a t i o n i s marked w i t h t h e a p p r o p r i a t e c l a s s i f i c a t i o n m a r k i n g and remains under s e a l . A l l p o r t i o n s o f a l l papers f i l e d t h a t do n o t c o n t a i n c l a s s i f i e d i n f o r m a t i o n s h a l l be i m m e d i a t e l y u n s e a l e d b y t h e C o u r t S e c u r i t y O f f i c e r and filedpursuant to local rules The o r i g i n a l p o r t i o n o f t h e document c o n t a i n i n g c l a s s i f i e d i n f o r m a t i o n w i l l be h e l d by t h e Court S e c u r i t y O f f i c e r f o r i n s e r t i o n i n t h e c l a s s i f i e d p o r t i o n of t h e r e c o r d o f t r i a l . The Court S e c u r i t y O f f i c e r s h a l l immediately d e l i v e r copies of the e n t i r e f i l e d pleading o r document t o t h e Court and o p p o s i n g c o u n s e l . 3. Ar^y p l e a d i n g o r o t h e r document f i l e d b y t h e govemment c o n t a i n i n g c l a s s i f i e d i n f o r m a t i o n s h a l l be f i l e d under s e a l w i t h t h e C o u r t S e c u r i t y O f f i c e r . Pleadings f i l e d under s e a l w i t h t h e C o u r t S e c u r i t y O f f i c e r s h a l l be marked, " E i l e d Under Seal w i t h t h e Court S e c u r i t y O f f i c e r . T h e t i m e o f p h y s i c a l s u b m i s s i o n t o t h e Court S e c u r i t y O f f i c e r s h a l l be c o n s i d e r e d t h e d a t e and t i m e o f f i l i n g . A copy o f any such p l e a d i n g o r document s h a l l be i m m e d i a t e l y p r o v i d e d t o t h e C o u r t and t o o p p o s i n g c o u n s e l . ^. The C o u r t S e c u r i t y O f f i c e r s h a l l m a i n t a i n a s e p a r a t e s e a l e d re^o:^d ^ o r ^ l a s ^ i f i e d m a t e r i a l ar^d s h a l l m a i n t a i n an u n c l a s s i f i e d i n d e x o f such m a t e r i a l . The Court S e c u r i t y o f f i c e r s h a l l be r e s p o n s i b l e f o r m a i n t a i n i n g t h e s e c u r e d r e c o r d s f o r purposes o f l a t e r p r o c e e d i n g s o r a p p e a l . 5. C l a s s i f i e d n a t i o n a l s e c u r i t y documents and i n f o r m a t i o n , o r i n f o r m a t i o n b e l i e v e d t o be c l a s s i f i e d , s h a l l o n l y be d i s c u s s e d i n an area approved by t h e Court S e c u r i t y O f f i c e r , and i n w h i c h persons n o t a u t h o r i z e d t o possess such i n f o r m a t i o n cannot o v e r h e a r such d i s c u s s i o n s . ^. No one may d i s c u s s any o f t h e c l a s s i f i e d i n f o r m a t i o n over any s t a n d a r d commercial t e l e p h o n e i n s t r u m e n t o r any i n t e r - o f f i c e communication system, o r i n t h e presence o f any AP^tLA^EX^^B^T^^^^^ PA^E^ ^ O E ^ ^ ^ ^ ^ ^^^r^^^^^^A^E 20776 ^^CLASS^F^ED p e r s o n who i s n o t a u t h o r i z e d t o possess such i n f o r m a t i o n . Requests f o r secure t e l e p h o n e s , f a x machines, o r o t h e r secure communication d e v i c e s must be s u b m i t t e d t o t h e C o u r t S e c u r i t y Officer f o r coordination. ^. A l l m e c h a n i c a l d e v i c e s o f any k i n d used i n t h e preparation o r transmission of c l a s s i f i e d information i n t h i s case may be used o n l y w i t h t h e a p p r o v a l o f t h e C o u r t S e c u r i t y O f f i c e r and i n accordance w i t h i n s t r u c t i o n s he s h a l l i s s u e . 8. Upon r e a s o n a b l e advance n o t i c e t o t h e C o u r t S e c u r i t y O f f i c e r , defense c o u n s e l s h a l l be g i v e n access d u r i n g n o r m a l b u s i n e s s hours and a t o t h e r t i m e s on r e a s o n a b l e r e q u e s t , t o c l a s s i f i e d n a t i o n a l s e c u r i t y documents w h i c h t h e government i s r e q u i r e d t o make a v a i l a b l e t o defense c o u n s e l b u t e l e c t s t o keep i n i t s p o s s e s s i o n . Persons p e r m i t t e d t o i n s p e c t c l a s s i f i e d n a t i o n a l s e c u r i t y documents b y t h i s ORDER may make w r i t t e n n o t e s o f t h e documents and t h e i r c o n t e n t s . Notes o f any c l a s s i f i e d p o r t i o n s o f these documents, however, s h a l l n o t be d i s s e m i n a t e d o r d i s c l o s e d i n any manner o r i n any f o r m t o any p e r s o n n o t a u t h o r i z e d t o r e c e i v e i t s u b j e c t t o t h i s ORDER. Such n o t e s w i l l be s e c u r e d i n accordance w i t h t h e terms o f t h i s ORDER. Persons p e r m i t t e d t o have access t o t h e documents w i l l be a l l o w e d t o v i e w t h e i r n o t e s w i t h i n an area d e s i g n a t e d b y t h e C o u r t S e c u r i t y O f f i c e r . No p e r s o n p e r m i t t e d t o i n s p e c t c l a s s i f i e d n a t i o n a l s e c u r i t y documents b y t h i s ORDER, i n c l u d i n g defense c o u n s e l , s h a l l copy o r r e p r o d u c e any p a r t o f s a i d documents o r t h e i r c o n t e n t s i n any manner o r f o r m , e x c e p t as p r o v i d e d b y t h e C o u r t S e c u r i t y O f f i c e r , a f t e r he has c o n s u l t e d w i t h t h e C o u r t . ^. The defense s h a l l n o t d i s c l o s e t h e c o n t e n t s o f any c l a s s i f i e d documents o r i n f o r m a t i o n t o any p e r s o n n o t named i n t h i s P r o t e c t i v e Order w i t h o u t f i r s t o b t a i n i n g t h e p e r m i s s i o n o f the Court, f o l l o w i n g v e r i f i c a t i o r ^ b y t h e Court S e c u r i t y O f f i c e r of ^1^ t h e intended r e c i p i e n t holds t h e r e q u i r e d s e c u r i t y c l e a r a n c e ; ^2^ t h a t t h e i n t e n d e d r e c i p i e n t has s i g n e d t h e MOU i n Appendix A; and t h e i:^tended r e c i p i e n t has a need-to-know. Defense c o u n s e l w i l l p r o v i d e n o t i c e t o t r i a l c o u n s e l o f i n d i v i d u a l s i t wants t o have v i e w c l a s s i f i e d m a t e r i a l a s s o c i a t e d w i t h t h e case. Counsel f o r t h e government s h a l l be g i v e n an o p p o r t u n i t y t o be h e a r d i n response t o any defense r e q u e s t f o r d i s c l o s u r e o f c l a s s i f i e d i n f o r m a t i o n o r documents t o a p e r s o n n o t named i n t h i s ORDER. 10. Documents t h a t do o r m i g h t c o n t a i n c l a s s i f i e d i n f o r m a t i o n s h a l l be t r a n s c r i b e d , r e c o r d e d , t y p e d , d u p l i c a t e d , c o p i e d o r o t h e r w i s e p r e p a r e d o n l y b y p e r s o n s who have r e c e i v e d ED APPELLATE EXHtSr ;ri APPENDED PAGE 20777 an appropriate approval f o r access t o c l a s s i f i e d i n f o r m a t i o n . 11. I f counsel f o r the government advises defense counsel t h a t c e r t a i n c l a s s i f i e d i n f o r m a t i o n o r documents may n o t be disclosed t o the accused, then defense counsel s h a l l not d i s c l o s e such i n f o r m a t i o n or documents t o the accused without p r i o r concurrence of counsel f o r the government or, absent such concurrence, approval of the Court. Counsel f o r the govemment s h a l l be given an o p p o r t u n i t y t o be heard i n response t o any defense request f o r d i s c l o s u r e t o the accused of such c l a s s i f i e d information. 12. A l l c l a s s i f i e d documents and i n f o r m a t i o n t o which any person i s given access i n t h i s case are now and w i l l f o r e v e r remain the p r o p e r t y of the United States Government. At the conclusion of t h i s case, a l l c l a s s i f i e d i n f o r m a t i o n provided by the government t o t h e defense s h a l l be r e t u r n e d by t h e defense upon demand of the Court Security O f f i c e r . At the conclusion o f t r i a l , any notes, summaries, or other documents prepared by t h e defense t h a t do o r might contain c l a s s i f i e d i n f o r m a t i o n s h a l l be destroyed by the Court Security O f f i c e r i n the presence of c i v i l i a n d e f e n s e counsel or h i s d e s i g n a t e d m i l i t a r y defense counsel, unless otherwise ordered by the Court. 13. As the i d e n t i t y of government i n t e l l i g e n c e employees may be c l a s s i f i e d , and as c e r t a i n s e c u r i t y arrangements may be necessary t o p r o t e c t c l a s s i f i e d i n f o r m a t i o n t h a t may be discussed, the defense may not contact any employee of any govemment i n t e l l i g e n c e agency without making p r i o r arrangements f o r such contact w i t h an a t t o r n e y f o r t h e government, unless the defense f i l e s a motion w i t h t h e Court t o authorize such contact, gives the govemment n o t i c e o f such motion without r e v e a l i n g the name o f t h e employee t h e defense seeks t o contact, and obtains a court o r ^ e r a u t h o r i s i n g t h a t contact. Eurther, the defense s h a l l give p r i o r n o t i c e t o government a t t o m e y s of any contacts i t intends t o make w i t h any employee of any govemment i n t e l l i g e n c e agency f o r any reason, i n c l u d i n g f o r the purpose of d e c l a s s i f y i n g any c l a s s i f i e d i n f o r m a t i o n r e l a t i n g t o t h i s case. "Government i n t e l l i g e r ^ c e employees^^ are employees from the f o l l o w i n g o r g a n i z a t i o n s : Central I n t e l l i g e n c e Agency, Defense I n t e l l i g e n c e Agency, Department of homeland Security, Department o f State, Eederal bureau of I n v e s t i g a t i o n , National S e c u r i t y Agency, and Navy Intelligence. o. A copy of t h i s ORDER s h a l l issue f o r t h w i t h t o defense counsel named h e r e i n , w i t h a f u r t h e r order t h a t said defense APPE^EDPA5E 20778 UNCLASSIFIED counsel advise the accused of the contents o f t h i s ORDER and f u m i s h him a copy. p. Nothing contained i n these procedures s h a l l be construed as a waiver of any r i g h t o f the accused. I t i s so ORDERED, t h i s t h e day of January 2007 X/^^^./v, ^Daniel E. O'Toole, Captain, JAG Corps, U.S. Navy C i r c u i t M i l i t a r y Judge yHOLASSIFIED a " " "0 F^_^ / ^ APPENDED Pfi6E__I_L 20779 UNCLASSIFIED APPENDIX A MEMORANDUM OF UNDERSTANDING 1. I , , understand that 1 may be the recipient of information and intelhgence that concerns the present and future security of the United States and that belongs to the United States. This information and intelligence, together with the methods of collecting and handling it, are classified according to security standards set by the U.S. Govemment. I have read and understand the provisions of the espionage laws (sections 793, 794, and 798 of Title 18, United States Code) concerning the disclosure of information relating to the national defense and the provisions of the Intelhgence Identities Protection Act (section 421 of Title 50, United States Code) and I am familiar with the penalties for the violation thereof I have also read and understand the provisions of SECNAV Instruction 5510.36, dated 17 March 1999, including Changes 1 and 2, conceming safeguarding, disseminating, transmitting and transporting, storage and destmction, and loss or compromise of classified information. 2. I agree that I will never divulge, publish or reveal, either by word, conduct or any other means, such infoimation or intelligence unless specifically authorized in writing to do so by an authorized representative of the U.S. Government or as ordered by the Convening Authority. I further agree to submit for prepublication review any article, speech or other publication derived from, or based upon experience or information gained in the case of United States v. LCDR Matthew M. Diaz, JAGC. USN. I understand this review is solely to ensure that no classified national security information is contained therein. 3. I understand that this agreement will remain binding on me after the conclusion of proceedings in United States v. LCDR Matthew M. Diaz, JAGC. USN. 4. I have received, read and understand the Protective Order entered by the Mihtary Judge on , in the case of United States v. LCDR Matdiew M. Diaz. JAGC, USN. relating to classified information, and I agree to comply with the provisions thereof. 5. 1 understand that noncompUance with this Order will be reported to my command, and, if apphcable, to my State Bar Association. Signature Date Witnessed, swom and subscribed to before me this Signature day of , 2006. Date UMOILAgBBFEED ' APPELtm EXHIBIT J J ± Z PAGE_fa3xOf / r ^ aPPENOEO PAGE / " 0 0 ATTACHMENT 20781 18 September 2010 MEMORANDUM THRU StaffJudge Advocate, Office ofthe StaffJudge Advocate, US Army Military District of Washington, Fort Lesley J. McNair, Washington D.C. 30219 FOR Commander, US Army Garrison, Joint Base Myer-Henderson Hall, Fort Myer, Virginia 22211 SUBJECT: Preliminary Classification Review of the Accused's Mental Impressions - United States V. PFC Bradley Manning 1. The defense believes that your order, dated 17 September 2010, directing PFC Manning to disclose the classified information that he wishes to discuss with his defense counsel and the Rules for Court-Martial (R.C.M.) 706 board to Mr. Charles Ganiel prior to disclosing this information to his civilian and military defense counsel is not a lawful order and in contravention of the holding of the Court of Appeals for the Armed Forces (C.A.A.F.) in United States v. Schmidt, 60 M.J. 1 (C.A.A.F. 2004). The order attempts to circumvent the important role of the attomey-client relationship in maintaining the faimess and integrity of the militaryjustice system. As such, it is a violation of PFC Manning's rights under the Sixth Amendment and Article 27 of the Uniform Code of Military Justice to the effective assistance of counsel in preparing a defense. Schmidt, at 2, citing United States v. King, 53 M.J. 425 (C.A.A.F. 2000). 2. In Schmidt, the appellant was charged with dereliction of duty for failing to exercise appropriate flight discipline and failing to comply with rules of engagement and special instructions in an air-to-ground bombing incident that caused the deaths of several Canadian soldiers in Afghanistan. The appellant was privy to classified information pertaining to his case. The militaryjudge mled, and the Air Force Court of Criminal Appeals (A.F.C.C.A.) affirmed, that the appellant could not discuss the classified aspects ofhis case with his civilian defense counsel (who eventually obtained an interim security clearance) without submitting a request through the trial counsel. The C.A.A.F. vacated the A.F.C.C.A. opinion and reversed the mling of the militaryjudge, holding that Military Rule of Evidence (M.R.E.) 505 "does not require an accused, without benefit ofhis own counsel, to engage in adversarial litigation with opposing counsel as a precondition to discussing with defense counsel potentially relevant information" that is already in the appellant's knowledge or possession. Schmidt, 60 M.J. at 2. As such, the govemment cannot create a "classified information wall" between the accused and his defense counsel as a precondition to the client being able to speak to his civilian and military defense counsel. Id. 3. The defense is well aware of its obligations to safeguard classified information under Army Regulation 380-5 and 18 U.S.C. §§ 793, 794, and 798 and 50 U.S.C. § 421. Based upon this knowledge, on 30 August 2010, the defense voluntarily retumed classified information that was given to it by the govemment without legal authority or proper authorization. See Attachment A. Likewise, on 25 August 2010, the defense alerted the government to the concem of classified information being divulged during the R.C.M. 706 process. As such, the defense renews its request that each defense counsel receive at least Top Secret - Sensitive Compartmented 20782 SUBJECT: Preliminary Codification Review of the Accused's M^fel Impressions - United States V. PFC Bradley Manning Information (TS-SCI) clearance. The defense team is currently comprised of the following counsel: Mr. David Coombs (MAJ(P) in the United States Army Reserves); MAJ Matthew J. Kemkes; and CPT Paul R. Bouchard. 4. Additionally, the defense renews its request for limited authorization for PFC Maiming's access to classified information. It is likely that PFC Manning's access has been suspended due to the preferred charges. It is anticipated that the defense will need to discuss and share access to the classified information at issue in this case with our client. Therefore, the defense requests authorization for limited access to classified information by the accused in accordance with M R E. 505(d)(4). 5. In order to comply with the preparation and filing ofM.R.E. 505(h) notice, the defense requests that the protective order dated 17 September 2010 be amended to reflect the following additional guidance: a. The accused and defense counsel shall prepare forthwith, but in no event later than business days before any R.C.M. 706 Board, Article 32 Investigation, or court hearing, a brief written description of any information known or believed to be classified, which the accused reasonably expects to disclose or cause to be disclosed in any pre-trial motion or proceeding, or at trial of this case, hereinafter referred to as "the Accused's Disclosure Notice"), as required under Military Rule of Evidence 505(h). b. For purposes of preparing the Accused's Disclosure Nofice, defense counsel, subject to compliance with the applicable provisions of this Order, shall be allowed to discuss, communicate and receive information from the accused conceming any matter believed by the accused to contain, involve or relate to classified information, and believed by the accused to relate to this case. Any retained civilian defense counsel shall also comply with the provisions of this Order before having access to said classified information. c. The accused, through counsel, shall advise the Convening Authority and the trial counsel when he has prepared or possesses the Accused's Disclosure Notice or any other material which the accused or counsel believes contains classified information, which he intends to offer at any R.C.M. 706 Board, the Article 32 Investigation, file in court or use in court, and shall then deliver to the Court Security officer directly, or by means of a courier designated by the Court Security Officer, the Accused's Disclosure Notice and all copies thereof, or any other pleadings. All Associated materials and other documents of any kind or description containing any of the information in the Accused's Disclosure Notice shall be stored under conditions prescribed by the Court Security Officer. d. Until further Order of the Convening Authority or the Court, the Accused Disclosure Notice and all other written pleadings shall be delivered to the Court Security Officer. The time of delivery to the Court Security Officer shall be considered the date of filing. The Court Security Officer shall promptly review such pleadings and shall determine with the assistance and consultation of the attomey for the govemment and any personnel from any agency 20783 SUBJECT: Preliminary Codification Review of the Accused's M^fe Impressions - United States v. PFC Bradley Manning necessary to make such determination, whether any of the material submitted is classified, and the level of classification of any such material. If the pleading or information does not contain any classified information, the Court Security Officer shall forward it immediately to the R.C.M. 706 Board or Article 32 Investigating Officer or Court for routine filing. If the pleading does contain classified information, or information which might lead to or cause the disclosure of classified information, the Court Security Officer shall, after consultation with the trial counsel and original classification authority: (1) mark it appropriately; (2) give a marked copy to the trial counsel; (3) have the original filed under seal and stored under appropriate security conditions. In this way, any documents containing classified information (or information believed to be classified and which must undergo a classification determination) which are filed shall be sealed by order of the Convening Authority. 6. The defense requests acknowledgement of receipt of this response. The defense further requests that the Convening Authority rescind his "Preliminary Classification Review Order" dated 17 September 2010 and amend his "Protective Order" as discussed above. 7. The POC is the undersigned at (b) (6) (b) (6) or by e-mail at DAVID E. COOMBS Civilian Defense Counsel 20784 IN THE UNITED STATES ARMY FIRST JUDICIAL CIRCUIT UNITED STATES DEFENSE REPLY TO GOVERNMENT RESPONSE v. TO BILL OF PARTICULARS MANNING, Bradley E., PFC U-S- Anny, Headquarters and Headquarters Company, U.S. Anny Garrison, Joint Base Myer-Henderson Hall, DATED: 13 March 2012 Fort Myer, VA 22211 RELIEF SOUGHT 1. PFC Bradley E. Marming, by and through counsel, moves this court, pursuant to R.C.M. 906(b)(6) and the Fifth, Sixth and Eighth Amendments to the United States Constitution to direct the Government to file the particulars that the Government has indicated it was opposed to ?ling in its 8 March 2012 Response to the Defense Motion for Bill of Particulars (?Government Response?). BURDEN OF PERSUASION AND BURDEN OF PROOF 2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2). The burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1). 3. The Defense does not request any witnesses be produced for this motion. The Defense respectfully requests this court to consider the referred charge sheet in support of its motion. LEGAL AUTHORITY AND ARGUMENT 1. Section 1030 Offense Exceeds Authorized Access 4. The Government states at page 2 of its Response Motion, ?the defense seeks the manner in which Maxming exceeded his authorized access of a Secret Internet Protocol Router computer.? (emphases supplied). This is exactly what the Defense is seeking. The Govermnent states that ?the purpose of a bill of particulars is to secure facts, not legal theories.? Id. When the Defense asks ?how? or ?the manner in which? it is asking for the facts tmderlying the 20785 offense, and not the legal theory of the Government. To provide some examples to help guide the Government in what the Defense is seeking, did PFC Manning steal a password and logon to the computer, thereby exceeding authorized access? Did PFC Manning electronically by-pass a security protocol or ?rewall, thereby exceeding authorized access? Did PFC Manning not have security privileges to enter a certain area of the SIPRNET, thereby exceeding authorized access? The Defense needs to know what facts underlie PFC Marming?s alleged exceeding of authorized access. The Govermnent?s Response states at page 2, ?the purpose of the bill of particulars is not to ?nd out what the government knows, but what the government claims.? The Defense wants to know what facts the Government ?claims? amount to PFC Manning exceeding his authorized access. Only then can the Defense know how to prepare a defense. 5. The Govemment?s claim that it has provided sufficient facts in the charge sheet is inaccurate. The charge reads as fo1lows:' SPECIFICAT ION 13: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28 March 2010 and on or about 27 May 2010, having knowingly exceeded authorized access on a Secret Internet Protocol Router Network computer, and by means of such conduct having obtained information that has been determined by the United States government pursuant to an Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, to wit: more than seventy-?ve classi?ed United States Department of State cables, will?illy communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted the said infonnation, to a person not entitled to receive it, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation, in violation of 18 U. S. Code Section 1030(a) (1), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. (emphases supplied). While the charge provides the ?where? and ?when?, it does not provide the far more important ?how.? Since the Government has proceeded to charge PFC Marming under 18 U.S.C. 1030 for ?exceeding authorized access,? the Defense must know what factual acts amount to PFC Manning actually having exceeded his authorized access. The speci?cation further refers to ?such conduct? but it does not describe what conduct. This is what the Defense needs to know. The factual basis of the charges is not a secret and would not divulge the Government theory of the case. IL Article 92 Offense 6. The Government has misunderstood the nature of the Defense?s request for this particular. It does not seek the mechanics by which PFC Manning is alleged to have added unauthorized software. As with the previous offense, a series of questions can explain the facts (not legal theory) that the Defense seeks. Are you alleging that PFC Manning saved the software as a program on the computer? Are you alleging that PFC Marming ran the software from the Note that Speci?cation 14 is identical, with the exception of what was allegedly disclosed. 20786 compact disc drive? Are you alleging that he ran the program as an executable ?le on the computer desktop? The Defense seeks the factual predicate for the Govemment?s allegation that PFC Marming has added unauthorized so?ware in violation of Army Regulation 25-2. Ill. Section 641 Offenses 7. The Defense?s request does not ?attempt[] to restrict the Govemment?s proof at trial.? The Defense?s request speci?cally contemplates that the Government may be alleging that PFC Manning stole, purloined and converted. Although the Defense would maintain that there is a subtle distinction between ?steal? and ?purloin,? the Government appropriately recognizes in its Response that there is clearly a distinction between ?steal? and ?convert? The Defense is asking the Government: Are you alleging that PFC Marming ?stole?? Are you alleging that PFC Marming ?converted?? Or, are you alleging both? This hardly restricts the Govemment?s proof at trial. It simply identi?es for the Defense what it should be prepared to defend against. 8. If the Government alleges that PFC Marming both ?stole? and ?converted,? does this apply equally to all the charged speci?cations? Or, are there speci?cations where the Government is alleging that PFC Marming ?stole? (but did not convert), or conversely that he ?converted? (but did not steal). The Defense has not suggested that it will be ?paralyzed? by decisions over what evidence to present. See Government Response at page 3. However, the Government should not be permitted to play ?hide-the-ball? with the Defense, particularly when it has charged twenty- two (22) different speci?cations for what is essentially one discrete course of conduct. The Defense should not have to prepare two different ?Game Plans? if the Government is relying only one of the two prongs of 18 U.S.C. 641 (assuming, for the purposes of this motion, that there is not a large distinction between steal and purloin). CONCLUSION 9. Based on the above, the Defense requests that the Court order the Government to ?le the particulars for the above requested information. Respectfully submitted, DAVID EDWARD COOMBS Civilian Defense Counsel 20787 UNITED STATES DEFENSE REPLY TO v. PROSECUTION RESPONSE TO DEFENSE MOTION TO MANNING, Bradley E., PFC COMPEL DEPOSITIONS U.S. Army, Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer-Henderson Hall, Fort Myer, VA 22211 DATED: 13 March 2012 RELIEF SOUGHT 1. In accordance with the Rules for Courts-Martial (R.C.M.) 702(c)(2), the Defense requests that an oral deposition of the requested individuals be conducted prior to trial. BURDEN OF PERSUASION AND BURDEN OF PROOF 2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2). The burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1). FACTS 3. The Defense incorporates its earlier facts and supplements as follows. 4. On 28 February 2012, the Defense renewed its request for contact information for the civilian OCAs. See Attachment A. In its email, the Defense reminded the Government of the Govemment?s promise to provide the contact information. The Government had promised on 1 February 2012 to ?start working with each organization to determine the best way for the defense to contact the individuals.? See Attachment B. Only a?er the Defense renewed its request for the contact information did the Government provide a point of contact for Mr. Robert Betz, one of the three OCAs. The Government has still not provided the Defense with the relevant contact information for Mr. Patrick Kennedy or Mr. Robert Roland. 5. At the time the Government provided the point of contact infonnation for Mr. Betz, it also alerted the Defense to a possible ouhy issue.? See generally, United States ex rel. ouhy v. Regan, 340 U.S. 462 (1951). On 29 February 2012, the Government stated ?we are still working with those organizations to determine if there is an exception to the normal process that can occur, rather than you submitting a Touhy request.? See Attachment C. The Defense responded that it did not believe a Touhy request was applicable in cases where the United States was a party. Id. The Government replied for Touhy, please look Because this case involves entities outside of all individuals (defense counsel or not) are required to follow the Touhy regulations in order to speak to those individuals.? Id. 20788 6. The Defense does not request any witnesses be produced for this motion. The Defense respectfully requests this Court to consider the referred charge sheet in support of its motion, as well as the Attachments referenced herein. Attachment A: Defense Email Reiterating Request for OCA Contact Information Attachmart B: Government Email on 1 February 2012 Responding to Defense Request for OCA Contact Information Attachment C: Govemment?s Touhy Requirements Assertion Attachment D: Reducing Over-Classi?cation Act Attachment E: Investigating O??rcer?s Detemrination on Unswom Declarations by OCAs LEGAL AUTHORITY AND ARGUMENT 7. In support of its position that the Court should deny the Defense?s request, the Government states that once an Original Classi?cation Authority (OCA) makes a classi?cation determination it is presumed proper, and it is not the province of this Court to question that determination. See Prosecution Response to Defense Motion to Compel Depositions at page 7. The Govemment fails to appreciate the limitations of the classi?cation determination in regards to the charged offenses. Classi?cation determinations alone do not satisfy the mens rea requirement of 18 U.S.C. 793(e). United States v. Diaz, 69 M.J. 127, 133 (C.AA.F. 2010) (holding that although ?classi?cation may demonstrate that an accused has a reason to believe that information relates to national defense and could cause harm to the United not all information that is contained on a classi?ed or closed computer system pertains to national defense. Likewise, not all information that is marked as classi?ed, in part or in whole, may in fat: meet the criteria for 8. The Defense, contrary to the Govemment?s assertion, has not con?ated damage and potential impact on security. Instead, the Defense simply appreciates the limitations of the OCA classi?cation determination. An OCA classi?cation determination does not necessarily equate to proof that the accused knew or had a reason to believe the charged information could be used to the injury of the United States or to the advantage of any foreign nation. 9. The Government wants to treat the determinations as the ?nal statement regarding whether something ?could? cause damage. See Prosecution Response to Defense Motion to Compel Depositions at page 7. A classi?cation determination is not conclusive on the question of whether information ?could? cause damage to the United States or be used to the advantage of any foreign nation. United States v. Morison, 844 F.2d 1057, 1086 Cir.), cert denied, 488 U.S. 908 (1988). At most, the OCA determination is merely probative of the issue regarding whether information could cause damage to the United States. Id. at 1086 .. I assume we reaf?rm today, that notwithstanding information may have been classi?ed, the govemment must still be required to prove that it was in fact ?potentially damaging or use?rl,? that the fact 20789 of classi?cation is merely probative, not conclusive, on that issue. . . (emphasis in original.) Additionally, while the determinations were at one point in history ?worthy of great deference,? such is not necessarily the case anymore. The United States has acknowledged that it has a problem with over-classi?cation. See Attachment (passage of the Reducing Over- Classi?cation Act by President Barack Obama on 7 October 2010 in order to attempt to deal with the problem of Govemment Such a problem calls into question a determination whether certain items ?could? cause damage based solely on the basis of its classi?cation. As Justice Stewart of the Supreme Court so aptly stated in regards to the Pentagon Papers, ?for when everything is classi?ed, then nothing is classi?ed. . New York Times v. United States, 403 U.S. 713, 729 (1971). 10. The OCA classi?cation determination are only ?conclusive on the question of authority to possess or receive the information.? Morison, 844 F.2d at 108 6. Whether the accused, in fact, knew or had a reason to believe the charged information could be used to the injury of the United States or to the advantage of any foreign nation is not determined by the OCA. Id. at 1086 (detailing the appropriate limitations of classi?cation determinations to only the question of authority to possess or receive the information by holding ?[t]his must be so to avoid converting the Espionage Act into the simple Government Secrets Act which Congress has re?ised to enact?). 1. Given the fact the OCA determinations are merely probative on the element of the 18 U.S.C. 793(e) offense, the Defense should be entitled to examine the basis for the OCA determinations as to why the information was classi?ed and the belief regarding whether the reviewed information really ?could? cause damage to national security. The Defense was not given the ability to question the OCAs at the Article 32 hearing. The OCAs were essential witnesses that should have been produced. Their testimony went to the heart of one of the elements of the charged offenses. The Investigating Of? cer failed to appreciate the signi?cance of the requested witnesses? testimony and improperly determined that each OCA witness was not reasonably available. 12. The Investigating Of?cer did not provide any support or reasons to buttress his conclusion that the OCAs were ?not reasonably available.? United States v. Samuels, 1959 WL 3613 (C.M.A.) (the investigating of?cer should set out the circumstances upon which the conclusion of the unavailability is predicated). Instead, the Investigating simply adopted the Govemment?s bald assertions that the witnesses were unavailable. As the Govemment acknowledges, two of the requested OCAs, Mr. Robert Betz and LtGen Robert Schmidle, were stationed at Fort Meade, Maryland. It is indefensible to suggest that neither was ?reasonably available? to be produced at the Article 32 which was held at the home base. The Investigating Of?cer ignored the Defense?s request to require the government to at least inquire as to whether the OCA witnesses were available. Instead, the Investigating Of?cer chose to rely upon a rote recitation of the test for availability. 13. Once he determined that the OCA witnesses were not available, the Investigating Of?cer 20790 proceeded to consider the unswom statements of each of the Due to the Investigating Of?cer?s determination, the Defense did not have an opportunity to cross-examine the OCAs at the Article 32. It is without question that the OCAs were vital witnesses. The Government justi?ed repeated delays for over a year in order to obtain their classi?cation reviews. If the OCA determinations were not vital, the Government would not have gone to such great to ensure that the Investigating Of?cer consider the unswom statements.2 14. In addition to arguing that the Investigation Of?cer?s detenninati on on availability of the OCAs was correct, the Government argues that the Defense has incorrec?y cited authority for its requested relief. The Govermnent attempts to distinguish the cited authority cited by stating ?none of the cases are factual on point, in that none of them deal with a deposition being requested apart from a request to reopen an Article 32. . . This ?critique? is without merit. The cases cited by the Defense deal with the enforcement of pretrial rights the right of the accused to have the presence of a ?key witness? at the Article 32. The cases also support the proposition that ?if an accused is deprived of a substantial pretrial right on timely objection, he is entitled to judicial enforcement of this right, without regard to whether such enforcement will bene?t him at trial.? See United States v. Chuculate, 5 M.J. 143, 144-45 (C.M.A. 1978). Contrary to the Govemment?s assertion, this standard of revi ew is not limited to reopening the Article 32. Instead, it applies to the enforcement of a substantial pretrial right. Id. at 145.3 Such enforcement is within the discretion of the military judge, and may be in the form of reopening the Article 32 or (as in this case) ordering a deposition. 15. The Government argues thatt he Defense?s request is not timely in that there is no evidence that any of the requested witnesses will not be available for trial. The Government also states that it will ?provide defense counsel with timely and meaningful access to all trial witnesses as the prosecution did at the Article 32.? This promise by the Government to provide access as it ?did at the Article 32? is why the Defaise is requesting relief from the Court. 16. At the Article 32, the Government relied upon the importance of the duty positions of the various OCAs to deny access. In its response to the motion to compel depositions, the Government repeated this argument, and also pointed to the fact that ?[b]eing an original classi?cation authority was only one of stated many responsibilities.? See Although CPT Kolky is not an OCA, he is the individual the Government chose to conduct the classi?cation review of Apache video. As such, he is the only witness that the Defense is aware of that could speak to the classification review. 2 The Defense maintains its position that the Investigating Of?cer improperly considered, over Defense objection, the unswom statements under RCM. 405. Signi?cantly, the Investigating O?icer did not determine the unswom declarations were in tact sworn declarations under R.C.M. 405. Instead, the Investigating Of?cer determined that although the OCA statements were unswom, they Carried with them the same ?indicia of reliability? as sworn statements. See Attachment E. 3 The Chuculate decision cites several examples of judicial enforcement of a substantial pretrial right such as: United Statm v. Mickel, 9 U.S.C.M.A. 324, 26 C.M.R 104 (l958)(tailure to provide Article 27(b) quali?ed counsel at an Article 32 hearing was a substantial pretrial right capable of judicial enforcement); United States v. Donaldson, 23 U.S.C.M.A. 293, 49 C.M.R. 542 (1975) (properly convened Article 32 investigation was a substantial pretrial right capable of judicial enforcement); United States v. Ledbetter, 2 M.J. 37 (C.MA. 1976) (presence of key witnesses at Article 32 hearing was a substantial pretrial right capable of judicial enforcement); United States v. Chestnut, 2 MJ. 84 (C.M.A. 1976) (?rilure to grant a motion for continuance to depose a witness (who was actually present for trial purposes) denial of a substantial pretrial right capable of judicial enforcement). 20791 Prosecution Response to Defense Motion to Compel Depositions at 12. However, perhaps most troubling is the Government's recent reliance on Touhy regulations to restrict the Defense's access to the civilian OCAs. See Attachment C. 17. The Defense exchanged numerous emails with the Government in an attempt to flush out the Government's position on Touhy and how that would impact a ruling by the Court. Shockingly, the Government asserted that it first became aware of the possible Touhy issue earlier that very week (apparently from the requested OCAs). Such an admission by the Government is evidence " of the Government's lack of due diligence in this case. The fact that the Defense wanted to interview the relevant OCAs was not a surprise to the Government. The Defense had requested that these witnesses be present at the Article 32; requested from both the SPCMCA and GCMCA to depose the relevant OCA witnesses; and requested contact information for the relevant OCAs. The fact that the Government was just now finding out that Touhy requirements may apply is inexcusable. 18. Ultimately, the Government appears to have restricted its interpretation of Touhy requirements to only the Defense's access to the non-DoD OCA witnesses. The Government does not seem to understand that discovery and access to witnesses flows through the trial counsel. The Government cannot hide behind Touhy. This is especially so if the Government actually has had access to the witness (i.e. to interview that person). In this instance, the Government has had access to the relevant OCAs. The Government's position, requiring the Defense to submit a Touhy request, is yet another example of the Government impeding the defense's access to these witnesses, and is also in violation of Article 46, UCMJ. 19. The Government's position on witness availability ignores the practical realities of the situation. Each of the OCAs is either a General Officer or a high ranking civilian employee.4 Their respective duty positions require more than your average witness coordination. The Defense cannot simply drop by the OCAs' duty location or pick up a phone and call a specific OCA. The Defense would need to coordinate with each OCA to obtain a time and place for the interview. Given the topic of discussion, the interview would have to be in person, and at an approved location. Assuming the OCAs did agree to be interviewed, the Defense could not dictate the time or the location of the interview. The relative difficulty of dealing with different OCAs and given the location of each OCA almost assures that any interview would not take place in advance of trial. 20. The interviews of the OCAs should have taken place as part of the Article 32. The fact that these witnesses were improperly denied has placed the Defense in the position of relying upon the OCAs to make themselves available for (an adversarial) interview or upon the Government to coordinate access to these witnesses. 2 1. Given the improper denial by the Article 32 Investigating Officer of these witnesses; the Government's previous actions of refusing to provide contact information for the civilian OCAs; the Government's last-minute Touhy position; and the practical difficulties involved in 4 This is true for each individual that conducted a classification determination with the exception of CPT James Kolky. 5 20792 interviewing the requested OCAs, the Defense respectfully requests that the Court grant the Defense?s request to depose these witnesses. v. RELIEF REQUESTED 22. Accordingly, pursuant to the Rules for Courts-Martial (R.C.M.) 702(c)(2), the Defense requests that an oral deposition of the above-listed OCAs be conducted prior to trial. Respectfully submitted, DAVID EDWARD COOMBS Civilian Defense Counsel 20793 ATTACHMENT A 20794 David Coombs From: Sent: To: Cc: Subject: Attachments: David Coombs Tuesday, February 28, 2012 2:18 PM •Fein, Ashden CPT USA JFHQ-NCR/MDW SJA' 'Matthew kemkes'; 'Paul Bouchard'; 'Joshua Tooman'; 'Melissa Santiago'; 'MorrowIII, JoDean, CPT USA JFHQ-NCR/MDW SJA'; 'Overgaard, Angel M. CPT USA JFHQNCR/MDW SJA'; Whyte, Jeffrey H. CPT USA JFHQ-NCR/MDW SJA'; 'Ford, Arthur D. W O l USA JFHQ-NCR/MDW SJA' Defense Time line Draft Timeline.pdf Ashden, Attached is the Defense's draft timeline. I believe that for the most part we line up on the general grouping. As mentioned before, you have a lot more time built into your Phase 3 and Phase 4 motions. I have combined those phases. Also, given the unanticipated three week extension on the initial motions, the Defense will be submitting only one time lime instead of two. If the Court orders the depositions, the Defense will request that the depositions occur before the end of March in order to avoid any unnecessary delay. Lastly, I was wondering if the Government had contact information for the civilian OCAs? You had told me on 1 February 2012, that you would be providing this information to me. I would like to be able to speak, in general with each of the OCAs prior to the deposition (if ordered) and if a deposition is not ordered, to explore calling each as a Defense witness. Let me know i f y o u have any questions. Best, David David E. Coombs, Esq. Law Office of David E. Coombs 11 South Angell Street, #317 Providence, RI 02906 Toll Free: 1-800-588-4155 Local: (508) 689-4616 Fax: (508) 689-9282 coombs^armycourtmartialdefense.com www.armvcourtmartialdefense.com '***Confidenti3lity Notice: This transmission, including attachments, may contain confidential attorney-client information and is intended for the person(s) or company named. If you are not the intended recipient, please notify the sender and delete all copies. Unauthorized disclosure, copying or use ofthis information may be unlawful and is prohibited.'*** 20795 ATTACHMENT 20796 David Coombs From: Fein, Ashden CPT USA SJA Sent: Wednesday, February 01, 2012 6:12 PM To: Cc: Matthew kemkes; Bouchard, Paul CPT USARMY Tooman, Joshua CPT USARMY Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA DW Ford, Arthur D. W01 USA Melissa Santiago Subject: RE: 4 of 4 Attachments: 120201-Defense Computer Forensics Expert Consultants.pdf; 120201-GCMCA Response to Request for Oral David, Absolutely. We will start working with each organization to determine the best way for the defense to contact the individuals. Attached are the GCMCA's decisions on the Defense Computer Forensic Experts and the Deposition Requests. Have a good night. v/r Ashden -?-Original From: Sent: Tuesday, January 31, 2012 5:42 PM To: Fein, Ashden CPT USA DW SJA Cc: Matthew kemkes; Bouchard, Paul CPT USARMY Tooman, Joshua CPT USARMY Morrow JoDean, CPT USA Overgaa rd, Angel M. CPT Whyte, Jeffrey H. CPT USA JFHQ- Ford, Arthur D. W01 USA Melissa Santiago Subject: RE: 4 of 4 Ashden, would like to explore the possibility of calling these individuals as defense witnesses. Please be so kind as to provide contact information for them. Thank you. Best, David David E. Coombs, Esq. Law Office of David E. Coombs 11 South Angeli Street, #317 Providence, RI 02906 Toll Free: 1-800-588-4156 Local: (508) 689-4616 20797 ATTACHMENT 20798 David Coombc From: Fein. Ashden CPT USA SJA Sent: Wednesday, February 29, 2012 9:10 AM To: David Coombs Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow Ill, loDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur 0. W01 USA SJA Subject: Multiple Items Attachments: 1202XX-Government Proposed Case Calendar (DRAFT for DEFENSE 2).pdf David, Scheduling: 1. We made most of the changes you recommended based on time phasing. 2. The reason we have Motions to Com pel a second time, is that we are planning for a second round from the defense, understanding that you have not intimated such, but it seems likely considering the amount of information in this case and based on potential rulings of the militaryjudge, if favorable to the defense. 3. We are Confused by your addition of the "Defense Request for Amended Section Disclosure" for the next motions hearing. The Court already ruled on this issue, and instructed the defense to seek clarification if something is confusing- is there something that you and the other counsel do not understand on our disclosure? Please let us know so we may assist. 4. During our second 802 conference, after the defense offered to waive continued and future searching of Government records for Brady/Giglio information, the Court instructed the parties to essentially determine whether there can be a waiver of the accused's right for the prosecution to discover brady/giglio material. The Court did not state that this would be the subject of a motions hearing the next time we go on the record, as memorialized in the military judge listing the motions we are arguing in her post-arraignment 802 conference summary email. We have been and plan on working with multiple entities, including GAD and our State Bars, to determine if this can occur. As we stated during the conference, the United States does not oppose this limitation; HOWEVER we are not clear whether this waiver can occur both from a legal and ethical standpoint, and we do not know the effect it would have for IAC purposes on appeal. As we continue to research this issue, we welcome the defense's assistance to provide us their authorities on the legal, ethical, and prevention of IAC issues. Please take into account that this proposed waiver/limitation will likely include the prosecution not discovering some mitigating evidence for sentencing purposes, if any, even though the prosecution will intend to put on an aggravation case. S. we do not agree that phases 4 and 5 should be combined. In a "normal" case that involves a spattering of classi?ed information from one or two OCAs, we would agree. However because this case involves more than ten OCAs that are inside and outside we do not think it is realistic to combine unclassified and classi?ed evidentiary motions. Additionally, the United States intends to offer for admission more than 20 items of digital media and more than seventy-five different pieces of documentary evidence. it is more realistic to space these two phases out and allow for adequate time for the Court to consider pre-authentication and pre-admission of the evidence and then pre-quali?cation of the many experts. For planning purposes, we are assuming the defense will not 1 20799 stipulate to admission of the evidence or qualifications of the experts? if we are incorrect in that assumption then please let us know and we will adjust our calendar and the way forward. 6. We agree that the timelines will adjust if the Court orders depositions, but we have chosen to give a proposal based on the information today and not contingencies based on Court rulings. We also predict that this schedule will shift more to the right based on additional defense motions, as in most cases- but as you know, that is not in our control. OCA Contact information: Since 1 February 2012, the prosecution has been working with the different organizations to determine the best way for the defense to contact the individuals. For Mr. Betz, please Contact LTC Lisa Gumbs, OSJA, CYBERCOM at llgumbs@nsa.gov. She is the POC at CYBERCOM. As for the OCA for Specifications 3 and 15 of Charge II and Ambassador Kennedy, we are still working with those organizations to determine if there is an exception to the normal process that can occur, rather than you submitting a Touhy request. While we continue to work on the possibility of an exception under each organization's housekeeping rules, would you like us to concurrently assist you in obtaining their Touhy information? ASUS: command needs your client's to give them money and there is no way to bill him or the HCCF. However, it appears the command has one of PFC BM's check in their possession which CPT Bouchard or a member of the defense could use to obtain the money. From the command: We won't be able to take the money from HCCF. PFC BM was sent with three checks from the JRCF, we deposited two at HCCF. We still have the third. We could have him coordinate with either his lawyer or his family to have the check cashed, give us the amount needed to purchase his uniforms and then he can instruct his family/lawyer on what to do with the remaining amount. Otherwise the only other idea would be to draft a memo for PFC BM to sign stating that he wants to purchase the uniforms and to have his lawyer release the funds to us. Address of HCCF: we are still working with PMO to determine if the HCCF location/address should be given out. We think this information is to protect PFC BM and the if that is the answer, then we will come up with a proposal to ensure he can still receive the mail. Protective Order: We are still working with Dol and DA experts on the procedures for the protective order and coordinating with many of the OCAs. Hopefully by COB tomorrow, I will have an answer to your question as to whether we envision a process that has the CS0 going directly with the OCAS. V/r Ashden 20800 David Coombs From: David Coombs Sent: Wednesday, February 29, 2012 10:25 AM To: 'Fein, Ashden CPT USA Cc: ?Matthew kemkes'; ?Paul Bouchard'; ?Joshua Tooman?; ?Melissa Santiago?; ?Morrow JoDean, CPT USA 'Overgaard, Angel M. CPT USA 'Whyte, Jeffrey H. CPT USA ?Ford, Arthur D. W01 USA Subject: RE: Multiple Items Ashden, 1. I see that you have made some changes in your time line. 2. I believe you should exercise the same logic that you do in your point I do 11ot believe we should be building in delays based upon a Motion to Compel that has not been filed and may not be ?led. If the Government provides the requested discovery either to the Defense or to the Court for a in camera review under M.R.E. 505(i), the Defense does not anticipate further discovery requests. 3. Disregard. I reconsidered the issue. 4. I think you may be misconstruing your obligations under Brady. You do not need to look any further that R.C.M. 905(b)(4) and the Williams case to see that your obligation to search is much more limited than you represented in the 302 session. US. v. Williams, 50 436 (C.A.A.F. 1999) The scope of the due- diligence requirement with respect to governmental ?les beyond the prosecutor?s own ?les generally is limited to: (1) the ?les of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses. see, Um'redS!a!es v. Bryan, 868 F.2d 1032 (9th Cir.). cert. denied. 493 U.S. 858. 1 10 167, 107 L.Ed.2d 124 (2) investigative ?les in a related case maintained by an entity ?closely aligned with the? prosecution, see, United Slates v. Hankins, 872 F.Supp. 170, I72 (D.N.J.). affd. 61 F.3d 897 (3d Cir.). cert. denied. 516 U.S. 968, 116 427. 133 L.Ed.2d 343 (1995); and (3) other ?les, as designated in a defense discovery request. that involved a speci?ed type of information within a speci?ed entity, see, United States v. Velwler-, 62 F.3d 544, 550 (3d Cir.l You seem to believe that your Brady obligations require you to search every ?ling cabinet of the U.S. Government. That simply is not (and cannot be) the case. Otherwise. Brady obligations would be carried to the point of absurdity. The Defense (and the Court) cannot be in a position to evaluate whether you have taken diligent steps to ensure that your Brady obligations have been satis?ed unless you provide those steps to us. So. I believe you should be prepared to detail: a) what the Government has done over the last year and a half to obtain Brady material and; b) the steps that you are planning to take to ensure you are complying with your obligations. Only that way can we evaluate whether your steps are/have been suf?cient, and whether your proposed steps are necessary. A point of clari?cation on the waiver issue: The Defense will not be waiving the right to Brady material. We simply believe that searching, for instance, the U.S. Department of Agriculture ?les, will not yield Brady material. As such, the Defense will waive what it believes are unnecessary searches which are not at all likely to yield Brady material (and thus believes are not part of the Government?s due diligence obligations). I hope this clari?es the issue for you. If need be, we can address it with the judge. 5. We will have to agree to disagree on this point. With regards to your experts and evidence. this can easily be taken care of pursuant to the Defense timeline shortly before trial. 20801 6. I don?t believe the time line needs to adjust if the depositions are ordered. Instead. I would recommend that the Government starts planning on the possibility that the depositions will be ordered so that we can complete them in the short tenn. The Defense will recommend that the depositions take place at the end of March. OCA contact: I will reach out to LTC Gumbs. With regards to the other OCAS. I am not really sure why you referenced Touhy. See Alexander v. Federal Bureau of Investigation. l86 F.R.D. 66 (D.D.C. I998) ("The Supreme Court's holding in Touhy is applicable only in cases where the United States is not a party to the original legal proceeding. Touhy simply holds that a subordinate government of?cial will not be compelled to testify or to produce documents in private litigation. in which the federal government or any of its agencies is not a party in cases where a departmental regulation prohibits disclosure in the absence of consent by the head of the department. In cases originating in federal court in which the federal government is a party to the underlying litigation. the Tauhy problem simply does not arise. In such cases, there is no requirement that the litigant proceed under the APA and ?le a separate lawsuit in order to obtain testimony from a witness") ASUs Just have the commander Contact me and I will pay for the ASUS. HCCF: Please let me know by COB. PFC Manning's family plans to release the contact information so that supporters can send mail to him. Mail that was recently sent to the JRCF has been returned to sender instead of forwarded to Howard County. I recommend instructing the RCF to start forwarding mail to the following address: Howard County Department of Corrections 7301 Waterloo Road, P.O. Box 250 Jessup. Maryland 20794 Protective Order: I plan to submit my revised protective order later today. I have adjusted the process to eliminate what I believe was your major hang up that somehow the CS0 would be trumping the OCA. This was never the case under my original protective order. but I have spelled it out clearly under the revised order. Best, David David E. Coombs. Esq. Law Office of David E. Coombs I 1 South Angeli Street, #317 Providence, RI 02906 Toll Free: 1-800-588-4156 Local: (508) 689-4616 Fax: (508) 689-9282 *Con?dentiality Notice: This transmission. including attachments. may contain con?dential attorney-client information and is intended for the person(s) or company named. If you are not the intended recipient. please notify the sender and delete all copies. Unauthorized disclosure. copying or use of this information may be unlawful and is From: Fein, Ashden CPT USA SJA Sent: Wednesday, February 29, 2012 9:10 AM 20802 From: Fein, Ashden CPT USA SJA Sent: Wednesday, February 29, 2012 10:59 AM To: David Coombs Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow JoDean. CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA JFHQ- SJA Subject: RE: Multiple Items David, Thank you. As for the Brady issue, we agree with your assertions below; however this is all predicated on what information the prosecution knows exists or could exist, and we recognize that you are not privy to our work product to know this information. We agree that it would be absurd to require the prosecution to search the entire government and we are not claiming that is what we think we need to do or should do. On the contrary, from the beginning of this case, the prosecution developed criteria to determine whether we have a good faith basis or not to search for Brady/Giglio information at certain organizations. This issue will likely need to be extensively briefed, and I recommend we discuss in conference with the military judge on the best way to go forward and not until the next hearing. The reason is so we can determine all the different steps that will be required to have this limitation- such as under a protective order which the court orders the prosecution to limit their search (Rules of Ethics applications) or whether the defense should motion the court to limit discovery, etc. As for Touhy, please look again. The issue right now is you speaking with the government of?cials outside of court- proceedings. The normal process for anyone outside the United States government to speak to an official is to request under each organization's Touhy regulations. I know that in the military justice system we are used to the process of having defense counsel go direct with representatives, such as commanders, 1SGs, doctors, etc., and not filing a Touhy request because that is authorized in our Touhy regulations (AR 27-40). Because this case involves entities outside of DOD, all individuals (defense counsel or not) are required to follow the Touhy regulations in order to speak to those individuals. As we committed on 1 February, we are still working with those organizations to determine if there is an exception to the normal process that can occur, rather than you submitting a Touhy request. We will have the command contact you immediately for the uniform money. v/r Ashden From: David Coombs Sent: Wednesday, February 29, 2012 10:25 AM To: Fein, Ashden CPT USA SJA Cc: Matthew kemkes; ?Paul Bouchard'; ?Joshua Tooman'; ?Melissa Santiago?; Morrow Ill, JoDean, CPT USA JFHQ- Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA DW Ford, Arthur D. W01 USA SJA Subject; RE: Multiple items 20803 David Coombs . From: David Coombs Sent: Wednesday, February 29, 2012 11:16 AM To: 'Fein, Ashden PT USA Cc: ?Matthew kemkes?; ?Paul Bouchard?; ?Joshua Tooman'; ?Melissa Santiago?; ?Morrow JoDean, CPT USA ?Overgaard, Angel M. CPT USA JFHQ- 'Whyte, Jeffrey H. CPT USA ?Ford, Arthur D. W01 USA Subject: RE: Multiple Items Ash den, 1. I do not believe anything needs to be extensively briefed. The Government simply needs to provide a statement of due diligence to the Defense and Court. Only then can we be in a position to determine whether a motion or a Court Order is necessary. in other words, you seem to have the process backwards. Moreover, you committed in the 802 session to provide the Court and the Defense this information. Am Ito understand that you are now resiling from this commitment? 2. Please point me to the relevant regulations/instructions/a uthority that you are relying upon to state Touhy even applies in a criminal context. would the Government's position be that a Touhy request is necessary if the Court orders a deposition? In addition, is it your position that you have been looking into this issue for almost a month to determine if there is an exception to the "normal" process, and still do not have an answer? Best, David David E. Coombs, Esq. Law Office of David E. Coombs 11 South Angeli Street, #317 Providence, Ri 02906 Toll Free: 1-800-588-4156 Local: (508) 689-4616 Fax: (508)689-9282 ""Confidentia|ity Notice: This transmission, including attachments, may contain confidential attorney-client information and is intended for the person(s) or company named. If you are not the intended recipient, please notify the sender and delete all copies. Unauthorized disclosure, copying or use of this information may be unlawful and is From: Fein, Ashden USA SJA [ma? Sent: Wednesday, February 29, 2012 10:59 AM To: David Coombs Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow Ill, JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. I David Coombs 20804 From: David Coombs Sent: Thursday, March 01, 2012 8:23 AM To: ?Fein, Ashden CPT USA Cc: 'Matthew l JoDean, CPT USA 'Overgaard, Angel M. CPT USA JFHQ- NC 'Whyte, Jeffrey H. CPT USA DW ?Ford, Arthur D. W01 USA Subject: RE: Multiple Items Ashden. Please respond to point 2 in my previous email. Thanks. Best. David David E. Coombs. Esq. Law Office of David E. Coombs 1 1 South Angeli Street. #317 Providence. RI 02906 Toll Free: 1-800-588-4156 Local: (508) 689-4616 Fax: (508) 689-9282 Notice: This transmission. including attachments, may contain con?dential attomey-client information and is intended for the person(s) or company named. I you are not the intended recipient. please notify the sender and delete all copies. Unauthorized disclosure. copying or use of this information may be unlawful and is From: David Coombs Sent: Wednesday, February 29, 2012 11:16 AM To: 'Fein, Ashden CPT USA Cc: ?Matthew kemkes?; ?Paul Bouchard'; ?Joshua Tooman'; ?Melissa Santiago?; ?Morrow JoDean, CPT USA JFHQ- 'Overgaard, Angel M. CPT USA 'Whyte, Jeffrey H. CPT USA ?Ford, Arthur D. W01 USA Subject: RE: Multiple Items Ashden, 1. I do not believe anything needs to be extensively briefed. The Government simply needs to provide a statement of due to the Defense and Court. Only then can we be in a position to determine whether a motion or a Court Order is necessary. In other words, you seem to have the process backwards. Moreover, you committed in the 802 session to provide the Court and the Defense this information. Am Ito understand that you are now resiling from this commitment? 20805 David Coombs From: Fein, Ashden CPT USA SJA Sent: Thursday, March 01, 2012 9:02 AM To: David Coombs Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. WO1 USA JFHQ- SJA Subject: RE: Multiple Items David, The United States has been working since 1 February on a method outside of the normal process for the defense to have access to government officials, rather than you submitting a Touhy request. The Touhy regulations do apply in criminal context and I am sure you will find many criminal cases that reference the Touhy regulations. I recommend starting with ACCA's unpublished opinion in US v. Kitmanyen (ARMY 20110609). Although the legal issue in this case is not on point, it is clear that ACCA considered Touhy as part of the criminal process, but that case Touhy was at issue as part of the judicial process-subpoenas. As I wrote earlier, the issue at bar is the defense speaking with these government officials outside of court-proceedings. Your request on 1 February was to speak with the government representatives as potential defense witnesses. We are trying to assist the defense with that request, but you are still welcome to submit a Touhy request to the organizations. If you would like us to concurrently obtain the Touhy request information for you, please let us know. If the Court orders any depositions, then we will address any Touhy issues, if they exist, with each non-DoD entity and the Court. v/ Ashden From: David Coombs Sent: Wednesday, February 29, 2012 11:16 AM To: Fein, Ashden CPT USA SJA Cc: Matthew kemkes; ?Paul Bouchard?; ?Joshua Tooman?; ?Melissa Santiago?; Morrow JoDean, CPT USA JFHQ- Overgaard, Angel M. CPT USA DW Whyte, Jeffrey H. CPT USA DW Ford, Arthur D. W01 USA SJA Subject: RE: Multiple Items Ashden, 1. I do not believe anything needs to be extensively briefed. The Government simply needs to provide a statement of due diligence to the Defense and Court. Only then can we be in a position to determine whether a motion or a Court Order is necessary. in other words, you seem to have the process backwards. Moreover, you committed in the 802 session to provide the David Coombs From: Sent: To: Cc: Subject: Ashden, 20806 David Coombs Thursday, March 01, 2012 12:22 PM 'Fein, Ashden CPT USA ?Matthew kemkes?; ?Paul Bouchard'; ?Joshua Tooman'; ?Melissa Santiago?; ?Morrow Ill, JoDean, CPT USA 'Overgaard, Angel M. CPT USA JFHQ- 'Whyte, Jeffrey H. CPT USA 'Ford, Arthur D. W01 USA RE: Multiple Items With regards to Touhy, the Defense's position is that Touhy does not apply in criminal cases. Only three military cases even reference Touhy, and none support the proposition that Touhy applies in a court-martial. However, I want to make sure that I understand the Government position on this issue. 1) Does the Government agree that Touhy does not apply in regards to CPT Kolky; RADM Donegan; Mr. Betz; LtGen Schmidle; VADM Hanivard; and RADM Woods? 2) Is it the Government's position that Touhy requirements apply to Mr. Kennedy? a) IF YES - Please provide the current regulation from the DOS regarding Touhy request requirements. b) Will Mr. Kennedy cooperate in an informal interview with the Defense without a Touhy request? c) Will Mr. Kennedy cooperate with a deposition ordered by the Court without a Touhy request? d) Will the DOS provide the requested damage assessments/documents if the motion to compel discovery is granted without a Touhy request? 3) Is it the Government's position that Touhy requirements apply to the OCA of Specification 3 and 15 of Charge a) IF YES - Please provide the current regulation from the OCAs organization regarding Touhy request requirements. b) Will the OCA cooperate in an informal interview with the Defense without a Touhy request? c) will the OCA cooperate with a deposition order by the Court without a Touhy request? d) will the OCA's organization provide the requested damage assessments/documents if the motion to compel discovery is granted without a Touhy request? 4) what steps, if any, are you undertaking to persuade any organization that may believe a Touhy request is required to waive such a requirement? 5) How long has the Government known that there may be a Touhy issue? Please let me know if you have any questions. Best regards, 20807 David Coombs From: Fein, Ashden CPT USA SJA Sent: Thursday, March 01, 2012 7:18 PM To: David Coombs Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow Ill, JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA JFHQ- SJA Subject: RE: Multiple Items David, A. For your client's mail: Supporters or family may send mail to: Commander, HHC USAG Attn: PFC Manning 239 Sheridan Ave, 417 JBM-HH, VA 22211 The mail will be logged once it is received at the company. Mail will be collected until a command visit and then it will be brought to the facility. Mail will be screened in accordance with the inmate hand book at the HCCF and then given to PFC Manning. If it must be returned or destroyed for any reason then that will be annotated on the log. PFC Manning will sign the log to indicate that he received that mail on that day. 8. As for your Touhy information request below: 1. Yes. According to 5405.2 and AR 27-40, Touhy appears to not apply to access to personnel or information for courts-martial. 2. We are working with the organization to determine an appropriate response and the way forward. I searched the CFR and found 22 CFR Part 172. 3. We are working with the organization to determine an appropriate response and the way forward. I searched the CFR and found the cite. If you call, I can give it to you over the phone so long as it is stored separate and apart from your email based on the sensitive nature; however I recommend typing the organization's name and "Touhy" in google, and you will be pointed to the citation. 4. We have been working with the organizations to determine if there is a streamlined process either through the Touhy process or as an exception. We have also made it clear that if Touhy is the only way and it does not hinder the process, that we as the military prosecution intend to submit the documents for the defense, once the defense completes the requirements. 5. Early this week, the prosecution became aware that the normal course for all defense counsel is to submit a Touhy request. Prior to then and continuing today, the prosecution has worked to see if there was a streamlined process to obtain the information. C. Uniforms: The command will contact you tomorrow. 20808 D. EnCase images: As previously stated, based on the defense preservation request, the United States preserved all the drives that could be reasonably located in the government. As we prepare for our motion response, we are updating the status of these drives to understand the population that exists and finalizing whether any of them are discoverable (and produce them) or potentially discoverable (if the military judge rules in favor of the defense). v/r Ashden Message?-?-- From: David Coombs Sent: Thursday, March 01, 2012 12:22 PM A To: Fein, Ashden CPT USA SJA Cc: Matthew kemkes; ?Paul 8ouchard'; ?Joshua Tooman'; 'Me|is5a Santiago?; Morrow Ill, JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA DW SJA Subject: RE: Multiple items Ashden, With regards to Touhy, the Defense's position is that Touhy does not apply in criminal cases. Only three military cases even reference Touhy, and none support the proposition that Touhy applies in a court-martial. However, i want to make sure that I understand the Government position on this issue. 1) Does the Government agree that Touhy does not apply in regards to CPT Kolky; RADM Donegan; Mr. Betz; LtGen Schmidle; VADM Harward; and RADM Woods? 2) ls it the Government's position that Touhy requirements apply to Mr. Kennedy? a) IF YES Please provide the current regulation from the DOS regarding Touhy request requirements. b) Will Mr. Kennedy cooperate in an informal interview with the Defense without a Touhy request? c) Will Mr. Kennedy cooperate with a deposition ordered by the Court without a Touhy request? d) Will the DOS provide the requested damage assessments/documents if the motion to compel discovery is granted without a Touhy request? 3) Is it the Government's position that Touhy requirements apply to the OCA of Specification 3 and 15 of Charge a) IF YES - Please provide the current regulation from the OCAs organization regarding Touhy request requirements. b) will the OCA cooperate in an informal interview with the Defense without a Touhy request? 20809 David Coombs From: David Coombs Sent: Friday, March 02, 2012 12:11 PM To: 'Fein, Ashden CPT USA Cc: ?Matthew kemkes?; ?Paul Bouchard'; ?Joshua Tooman?; ?Melissa Santiago?; ?Morrow JoDean, CPT USA 'Overgaard, Angel M. CPT USA JFHQ- 'Whyte, Jeffrey H. CPT USA ?Ford, Arthur D. W01 USA Subject: RE: Multiple Items Ashden, I've spent the past couple of days trying to wrap my mind around your Touhy issue, and I can't seem to process what you think this means going forward. If I understand what you are saying, despite the Government's discovery obligations under Williams, you think there is an additional impediment (the Touhy request) to the Defense getting discovery? 50, even if a judge determines that the material is relevant and should be disclosed, you (the Govern ment) will not disclose it and will require the Defense to go through cumbersome administrative channels to try to obtain this material? Ultimately, as you likely know, the agencies will deny access to these materials because they are classified, and that is one of the bases for denial of a Touhy request. So, even if you are ordered to produce this material, it will not be produced because of bureaucratic red-tape. I'm sorry to be beating a dead horse, but if this is your position, it seems utterly crazy to me. Moreover, I don't understand how the Government was able to provide other discovery from agencies outside the DOD, under your view, absent a Touhy request? with the discovery you already provided, you searched other agencies and provided the Defense with the relevant materials. why is this any different? Are you saying it's different because in one scenario, the Government handed things over voluntarily, but in the other scenario, the Government would be handing things over pursuant to a Motion to Compel? If that's the case, then couldn?t the Government simply deny discovery of materials it didn't want to hand over to the Defense, have a judge order the production of the discovery, and then set Touhy up as the ultimate roadblock? In other words, it seems that the Government ultimately controls whether the Defense will ultimately have a "Touhy issue." Further, if a Motion to Compel is granted, it is the Government that is ordered to produce evidence i.e. go get it and give it to the Defense. So I don't see how Touhy is implicated at all given that the discovery request is of the Government, and not of the agency itself. Another thing I don?t understand is that you've had access to these witnesses (since you were able to obtain the OCA unsworn declarations]. You also represented at the Article 32 that all of these individuals were prepared to testify telephonically if needed. This would appear to be a clear violation of Article 46 if you are now attempting to prevent equal access to these witnesses by hiding behind Touhy. Finally, if under your view, Touhy regulations clearly apply as part of the criminal process and this is the way that discovery/witness requests must be processed (even when compelled), how is it that you've only learned of this process a week ago? As you well know, I have been submitting discovery requests for a year and a half. I have been asking in various capacities to speak with the OCAs for 5-6 months. How can you not have informed yourself of how my discovery/deposition requests could be satisfied before now? It seems that either: a) you were not diligent in processing Defense requests, or b) Touhy is not actually an impediment to me getting the relevant discovery, but rather an 11th-hour roadblock conveniently erected by the Government. I really need you to provide more clarity on the Government's position. Please do not tell me that you are "working with the relevant agencies to find an answer." The Government?s position on how Touhy affects this case does not depend 20810 on consultation with other organizations. I ask that you clarify exactly how you think Touhy applies to your discovery obligations by Monday at 5:00, so that we can be prepared to discuss this at our 802 Conference on Tuesday. Best, David David E. Coombs, Esq. Law Office of David E. Coombs 11 South Angell Street, #317 Providence, RI 02906 Toll Free: 1-800-588-4156 Local: (508)689-4616 Fax: (508) 689-9282 ?*ConfidentiaIity Notice: This transmission, including attachments, may contain confidential attorney?c|ient information and is intended for the person(s) or company named. If you are not the intended recipient, please notify the sender and delete all copies. Unauthorized disclosure, copying or use of this information may be unlawful and is prohibited.? From: Fein, Ashden SJA Sent: Thursday, March 01, 2012 7:18 PM To: David Coombs Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA SJA Subject: RE: Multiple Items David, A. For your client's mail: Supporters or family may send mail to: Commander, HHC USAG Attn: PFC Manning 239 Sheridan Ave, 417 JBM-HH, VA 22211 The mail will be logged once it is received at the company. Mail will be collected until a command visit and then it will be brought to the facility. Mail will be screened in accordance with the inmate hand book at the HCCF and then given to PFC Manning. if it must be returned or destroyed for any reason then that will be annotated on the log. PFC Manning will sign the log to indicate that he received that mail on that day. 8. As for your Touhy information request below: 1. Yes. According to 5405.2 and AR 27-40, Touhy appears to not apply to access to personnel or information for courts-martial. 20811 David Coom bs From: Sent: Friday, March 02, 2012 12:34 PM To: Fein, Ashden CPT USA SJA Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA JFHQ- Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA SJA Subject: RE: Multiple Items Ashden. I look forward to a detailed response on Monday. I ask that you reply to all of the issues/questions I raised in my email. Best. David David E. Coombs. Esq. Law Office of David E. Coombs 1 South Angel] Street. #3l7 Providence. RI 02906 Toll Free: 1-800-588-4156 Local: (508) 689-4616 Fax: (508) 689-9282 Notice: This transmission. including attachments. may contain con?dential attorney-client infonnation and is intended for the person(s) or company named. If you are not the intended recipient, please notify the sender and delete all copies. Unauthorized disclosure, copying or use of this infonnation may be unlawful and is -- Original Message Subject: RE: Multiple Items From: ?Fein, Ashden CPT USA Date: Fri, March 02, 2012 12:22 pm To: "David Coombs? Cc: '?Matthew kemkes? "Paul Bouchard? Joshua Tooman" ?Melissa Santiago" "Morrow JoDean, CPT USA "Overgaard, Angel M. CPT USA "Whyte, Jeffrey H. CPT USA "Ford, Arthur 0. wo1 USA I 20812 David Coombs From: Fein, Ashden CPT USA SJA Sent: Friday, March 02, 2012 12:23 PM To: David Coombs Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow 111, JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA JFHQ- SJA Subject: RE: Multiple Items David, Thank you. On Monday, Iwill provide you a more detailed reply to this email; however at first glance, I think you are misinterpreting or not understanding what I have previously wrote. Overall this does not prevent the defense's access to witnesses and information, it simply sets out requirements to request access under certain circumstances (as outlined in the CFRS). v/r Ashden Message?-?- From: David Coombs Sent: Friday, March 02, 2012 12:11 PM To: Fein, Ashden CPT USA SJA Cc: Matthew kemkes; 'Paul Bouchard'; ?Joshua Tooman'; 'MeIissa Santiago?; Morrow Ill, JoDea n, CPT USA JFHQ- Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA SJA Subject: RE: Multiple Items As hden, I've spent the past couple of days trying to wrap my mind around your Touhy issue, and I can't seem to process what you think this means going forward. If I understand what you are saying, despite the Government's discovery obligations under Williams, you think there is an additional impediment (the Touhy request) to the Defense getting discovery? 50, even if a judge determines that the material is relevant and should be disclosed, you (the Government) will not disclose it and will require the Defense to go through cumbersome administrative channels to try to obtain this material? Ultimately, as you likely know, the agencies will deny access to these materials because they are classi?ed, and that is one of the bases for denial of a Touhy request. So, even if you are ordered to produce this material, it will not be produced because of bureaucratic red?tape. I'm sorry to be beating a dead horse, but if this is your position, it seems utterly crazy to me. Moreover, I don't understand how the Government was able to provide other discovery from agencies outside the DOD, under your view, 1 20813 David Coombs From: Fein, Ashden CPT USA SJA Sent: Monday, March 05, 2012 4:59 PM To: Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA JFHQ- SJA Subject: RE: Multiple Items David, Bottom line, the United States will not withhold any evidence based on the Touhy regulations. Our interpretation of the Touhy regulations and relevant case law is that the regulations are NOT a basis to withhold evidence from the defense. The Touhy regulations simply centralize the decision making process within an agency, in order to provide information based on subpoena, judicial order, or private party requests. Your prior requests, based on the purported authorities, were denied for multiple reasons, and then you asked for access based on the individuals being potential defense witnesses. This Touhy-issue arose when you asked for an update on the prosecution obtaining access to two individuals for you to interview outside of the judicial process- thus a private party request for an interview. If you do not wish to wait on a Court's ruling, then you may submit a Touhy request to the entities and request access to the individuals. it is the prosecution's intent to continue helping the defense obtain access, although the Touhy regulations do not make an exception for our assistance. The prosecution will assist you with these requests, if you choose to go down this path concurrent with the judicial process. If the Court rules in favor of the defense on discovery or depositions dealing with outside agencies, then the prosecution will continue to coordinate this judicial process with the agencies under their Touhy regulations. Although Touhy applies, the prosecution does not forecast any issues with subpoenas or judicial orders being executed under each entity's applicable rules. Again, Touhy is not a basis to withhold evidence, but rather a housekeeping rule to process requests and ensure centralized decision-making. If information is withheld under Touhy regulations, it will be based on a proper authority, such as the classi?ed information privilege. v/r Ashden From: Sent: Friday, March 02, 2012 12:34 PM To: Fein, Ashden CPT DW SJA Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow ill, JoDean, CPT USA Overgaard, Angel M. CPT Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA SJA 20814 David Coombs From: David Coombs Sent: Monday, March 05, 2012 5:23 PM To: 'Fein, Ashden CPT USA Cc: ?Matthew l loDean, CPT USA 'Overgaard, Angel M. CPT USA JFHQ- 'Whyte, Jeffrey H. CPT USA ?Ford, Arthur D. W01 USA Subject: RE: Multiple Items Ashden, Based upon your email, it is my understand that: 1) If the Court orders depositions, you do not see the need for a Touhy request from the Defense and believe the Court's order will be complied with by the 2) If the Court orders the Defense requested discovery, you do not see the need for a Touhy request from the Defense and believe the Court's order will be complied with by the 3) if the Court orders the Defense requested discovery, it will either be provided to the Defense or the Government will seek to not disclose the information pursuant to M.R.E. 505; and 4} If the Court does not order depositions, you believe that Touhy does apply and would necessitate a Touhy request form the Defense in order to be provided equal access to the requested OCAS under Article 46. Please inform me if the above is correct. Thank you. Best, David David E. Coombs, Esq. Law Office of David E. Coombs 11 South Angeli Street, #317 Providence, RI 02906 Toll Free: 1-800-588-4156 Local: (508) 689-4616 Fax: (508)689-9282 Notice: This transmission, including attachments, may contain confidential attorney-client information and is intended for the person(s) or company named. If you are not the intended recipient, please notify the sender and delete all copies. Unauthorized disclosure, copying or use of this information may be unlawful and is Message--?-? 20815 David Coombs From: Fein, Ashden CPT USA SJA Sent: Monday, March 05, 2012 5:51 PM To: David Coombs Cc: Matthew kemkes: Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA SJA: Whyte, Jeffrey H. CPT USA Ford, Arthur D. WO1 USA JFHQ- SJA Subject: RE: Multiple Items David, If the Court orders any process, then the prosecution will work with the entities under their Touhy rules and will not turn to the defense to submit requests on top of the Court ordered process- the prosecution is responsible under the military justice system to obtain Court ordered evidence; however an entity can still object, but will have to state a proper basis. The prosecution has no reason to believe an entity will object, except on the basis of classified information. If there is no Court ordered process, then the defense will need to submit a Touhy request to speak with any Government employee outside of the pursuant to federal law. it is the prosecution's intent to continue helping the defense obtain access, although the Touhy regulations seem to not make an exception for our assistance, but we will continue to endeavor to assist. I hope this clarifies the issue. v/ Ashden From: David Coombs Sent: Monday, March 05, 2012 5:23 PM To: Fein, Ashden CPT USA SJA Cc: Matthew kemkes; ?Paul Bouchard'; ?Joshua Tooman?; ?Melissa Santiago?; Morrow JoDean, CPT USA JFHQ- Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur 0. W01 USA SJA Subject: Multiple items Ashden, Based upon your email, it is my understand that: 1) If the Court orders depositions, you do not see the need for a Touhy request from the Defense and believe the Court's order will be complied with by the 2) If the Court orders the Defense requested discovery, you do not see the need for a Touhy request from the Defense and believe the Court's order will be complied with by the 3) If the Court orders the Defense requested discovery, it will either be provided to the Defense or the Government will seek to not disclose the information pursuant to M.R.E. 505; and 20816 David Coombs '0 From: David Coombs Sent: Monday, March 05, 2012 6:07 PM To: 'Fein, Ashden CPT USA Cc: 'Matthew keml JoDean, CPT USA 'Overgaard, Angel M. CPT USA JFHQ- 'Whyte, Jeffrey H. CPT USA ?Ford, Arthur D. WO1 USA Subject: RE: Multiple Items Ashden, Thank you. That does provide clarity. If the request for depositions is denied, I would like to submit a Touhy request for Mr. Kennedy and for the OCA of Spec 3 and 15 of Charge ll. Since each agency has its own specific requirements, can you provide me with the format that the DOS and the OCA for Spec 3 and 15 of Charge ll would require for such a request? One potential problem with the Touhy request is that I will not know for sure the substance of the testimony expected of the relevant employee (other than what was stated in the classification determinations). This is one of the reasons that I would like to speak to these individuals. Finally, with regards to the DOD OCAS, I plan to wait on the judge?s ruling regard the depositions before attempting to speak with any of them. If the Court does not order depositions, does the Government want the Defense to go through a specific POC for each OCA (as the Government requested the Defense to do with Mr. Betz)? If so, could the Government be prepared to provide those POCs on the 16"? of March? Best, David Identify the employee or record; Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request; Identify the parties to your proceeding and any known relationships they have to the Department's mission or programs; (cl) Show that the desired testimony or records are not reasonably available from any other source; Show that no record could be provided and used in lieu of employee testimony; Provide the substance of the testimony expected of the employee; and Explain why you believe your Touhy Request complies David E. Coombs, Esq. Law Office of David E. Coombs 11 South Angell Street, #317 Providence, RI 02906 Toll Free: 1-800-588-4156 Local: (508) 689-4616 Fax: (508) 689-9282 David Coombs From: Sent: To: Cc: Subject: David, 20817 Fein, Ashden CPT USA SJA Monday, March 05. 2012 6:27 PM David Coombs Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA JFHQ- SJA RE: Multiple Items If the depositions are denied, the prosecution will assist with setting up the Touhy request, to include submitting them on behalf of the defense (this will have to occur for one of the OCAs based on the classi?cation). As for the OCAs, we will start accumulating the proper PDCs for each OCA so that the defense may reach out to them. We should be able to accomplish this by 16 March, absent some major intervening issue. v/r Ashden -?--Original From: David Coombs Sent: Monday, March 05, 2012 6:07 PM To: Fein, Ashden CPT USA SJA Cc: Matthew kemkes; ?Paul Bouchard'; ?Joshua Tooman'; ?Melissa Sa ntiago'; Morrow Ill, JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA SJA Subject: RE: Multiple Items Ashden, Thank you. That does provide clarity. If the request for depositions is denied, I would like to submit a Touhy request for Mr. Kennedy and for the OCA of Spec 3 and 15 of Charge II. Since each agency has its own specific requirements, can you provide me with the format that the DOS and the OCA for Spec 3 and 15 of Charge ll would require for such a request? One potential problem with the Touhy request is that I will not know for sure the substance of the testimony expected of the relevant employee (other than what was stated in the classification determinations). This is one of the reasons that I would like to speak to these individuals. Finally, with regards to the DOD OCAs, I plan to wait on the judge's ruling 1 20818 To: David Coombs Cc: Matthew kemkes; Paul Bouchard; Joshua Tooman; Melissa Santiago; Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. W01 USA DW SJA Subject: Multiple items David, Scheduhngz 1. We made most of the changes you recommended based on time phasing. 2. The reason we have Motions to Compel a second time, is that we are planning for a second round from the defense, understanding that you have not intimated such, but it seems likely considering the amount of information in this case and based on potential rulings of the militaryjudge, if favorable to the defense. 3. We are confused by your addition of the "Defense Request for Amended Section Disclosure" for the next motions hearing. The Court already ruled on this issue, and instructed the defense to seek clarification if something is confusing- is there something that you and the other counsel do not understand on our disclosure? Please let us know so we may assist. 4. During our second 802 conference, after the defense offered to waive continued and future searching of Government records for Brady/Giglio information, the Court instructed the parties to essentially determine whether there can be a waiver of the accused's right for the prosecution to discover brady/giglio material. The Court did not state that this would be the subject of a motions hearing the next time we go on the record, as memorialized in the military judge listing the motions we are arguing in her post-arraignment 802 conference summary email. We have been and plan on working with multiple entities, including GAD and our State Bars, to determine if this can occur. As we stated during the conference, the United States does not oppose this limitation; HOWEVER we are not clear whether this waiver can occur both from a legal and ethical standpoint, and we do not know the effect it would have for IAC purposes on appeal. As we continue to research this issue, we welcome the defense's assistance to provide us their authorities on the legal, ethical, and prevention of IAC issues. Please take into account that this proposed waiver/limitation will likely include the prosecution not discovering some mitigating evidence for sentencing purposes, if any, even though the prosecution will intend to put on an aggravation case. S. We do not agree that phases 4 and 5 should be combined. in a "normal" case that involves a spattering of classified information from one or two OCAS, we would agree. However because this case involves more than ten 0CAs that are inside and outside we do not think it is realistic to combine unclassified and classified evidentiary motions. Additionally, the United States intends to offer for admission more than 20 items of digital media and more than seventy-five different pieces of documentary evidence. It is more realistic to space these two phases out and allow for adequate time for the Court to consider pre-authentication and pre-admission of the evidence and then pre?qua|ification ofthe many experts. For planning purposes, we are assuming the defense will not stipulate to admission of the evidence or qualifications of the experts- if we are incorrect in that assumption then please let us know and we will adjust our calendar and the way forward. 6. We agree that the timelines will adjust if the Court orders depositions, but we have chosen to give a proposal based on the information today and not contingencies based on Court rulings. We also predict that this schedule will shift more to the right based on additional defense motions, as in most cases- but as you know, that is not in our control. 20819 OCA Contact Information: Since 1 February 2012, the prosecution has been working with the different organizations to determine the best way for the defense to contact the individuals. For Mr. Betz, please contact LTC Lisa Gumbs, OSJA, CYBERCOM at llgumbs@nsa.gov. She is the POC at CYBERCOM. As for the OCA for Specifications 3 and 15 of Charge ll and Ambassador Kennedy, we are still working with those organizations to determine if there is an exception to the normal process that can occur, rather than you submitting a Touhy request. While we continue to work on the possibility of an exception under each organization's housekeeping rules, would you like us to concurrently assist you in obtaining their Touhy information? ASUSI command needs your client's to give them money and there is no way to bill him or the HCCF. However, it appears the command has one of PFC BM's check in their possession which CPT Bouchard or a member of the defense could use to obtain the money. From the command: We won't be able to take the money from HCCF. PFC BM was sent with three checks from the JRCF, we deposited two at HCCF. we still have the third. We could have him coordinate with either his lawyer or his family to have the check cashed, give us the amount needed to purchase his uniforms and then he can instruct his family/lawyer on what to do with the remaining amount. Otherwise the only other idea would be to draft a memo for PFC BM to sign stating that he wants to purchase the uniforms and to have his iawyer release the funds to us. Address of HCCF: We are still working with PMO to determine if the HCCF location/address should be given out. We think this information is to protect PFC BM and the facility. If that is the answer, then we will come up with a proposal to ensure he can still receive the mail. Protective Order: We are still working with Do] and DA experts on the procedures for the protective order and coordinating with many of the OCAs. Hopefully by COB tomorrow, I will have an answer to your question as to whether we envision a process that has the CS0 going directly with the 0CAs. V/r Ashden 20820 ATTACHMENT 20821 The President Signs H.R. 553, The Reducing Over-Classification Act | The White House /12/12 Cct l.m:!'.! i:)i.l;ilc< Search WhiteHouse^ov ' / t ^ ' n , - fTii: r - % e W i i t e House Blog o Our Top Stories 11)0 l u l l plov n H ' i U SiUi.'il )uii i n i'olli I K l l ' . \ ice IVc^iiK lit Biilcii Ti in el 1(1 Mi'xii'o.unl IIuiiclui 11-. Utii'.l Vail Voivi [o Know Vbuiil I (KIIIVS HnnsiiiK I'lr.siiloiU Uh.imii Vcu-iiiii.': ill tin- W \nti(iitiii-.'mciil Subscri!3f! to tlim While Hou The President Signs H.R. 553, The Reducing OverClassification Act Ben Rhodes October 07. 2010 03 05 PM EOT Share This Post WHFTEHOUSEeOV IN YOUR ME Today, the President signed into law bipartisan legislation to decrease oyer-classifica'.ion and promote information sharing across the federal government and with state, local tribal, and private sector entities. Sign up for email upda President Obama and : Administration Official! V<>i/r F i i i i i i ! 1(/(f,"('s.s As Ihe President has highlighted previously, protecting national security infomiation and demonstrating our commitment to open govemment through the proper application of classification standards are equally important and compatible priorities Enlisting the power of our democratic values strengthens Durability to counter terronsm and is critical lo keeping America secure and the American people informed PHOTOS OF THE DAY gfi m VIEVVPHOTO OAl I EHIF.S JUMP TO: ASfifiCilic tvlOMth Other While House Blopj, PI csidin t Bn ruvk (Itiam a sii^ns the- ttcilu cinj; Over CI a ssifi cat inn Bill in Iho Ovd\ Office Rep .lano Harm nn. D-Cu l i f , st.inil.\ licliiiiit tli e Ti rThe President was joined in the Oval Ofnce by the bill's sponsor. Rep Jane Harmsn, Chair /vvw.v/hitehouse.gov/blog/2010/10/07/president-signs-hr-553-reducing-ovBr-ciassification-act 1/ /12/12 The President Signs H.R. 553, The Reducing Over-Classification Act j The White House 20822 ofthe Intelligence, Information Sharing, and Terrorism Risk Assessment Subcommittee of the House Committee on Homeland Security The 9/11 Commission concluded that over-classification and inadequate information sharing contributed to the government's failure to pre\ent the attacks of 9/11 As Commissioner Richard Ben-Venisle testified (pdf) before Congress in 2005: The Commission found, howewr, that the failure to share information was the single most important reason why the United States go\emment failed to detect and disrupt the 9/11 plot ., Infomiation has to flow more fieely Much more information needs to be declassified A great deal of information should never be classified at all. The Reducing Over-Classification Act (H R. 553) (pdf) takes concrete action to implement these lessons. It does this by establishing procedures to promote infonnation sharing with state, local, tribal, and private sector entities, and by providing training and incentives to promote accurate classification of information by federal employees Specifically, the Act requires the Department ofHomeland Security to designate a Classified Infonnation Advisory Officer to disseminate educational materials and administer training programs to assist slate, local, tribal, and private sector entities; it directs the Director of National Intelligence to establish guidance to standardize fonnats fbr intelligence products: and it institutes annual training for employees wilh original classification authority. The legislation also directs federal Inspectors General to assess the effectiveness of agency classification policies Enacting this legislation is the latest of many steps in the President s aggressive campaign to reduce unwarranted secrecy: to improve information sharing and analysis across the federal go\«mment; and to build the most open administration in history. For example' • On December 29, 2009, the President issued Executive Order 13526 lo significantly improve the system for classifying, safeguarting. and declassifying national security information, including the establishment of the Malional Declassification Center to conduct a unified and efficient declassification revew of historically important older records. The President also issued a memo to the heads of federal agencies highlighting the importance of implementing these changes promptly and effectively, • On June 25, 2010, Ihe Information Security Oversight Office of Ihe National Archives and Records Administration issued a final implementing directive (pdf) pursuant to Executive Order 13526, to further enhance the effectiveness of this system. • On August 18, 2010, the President issued an additional directive, Executive Order 13549, vwhich establishes for the first time a Classified National Securily Infonnation Program that enhances national security by facilitating the sharing and safeguarding of classified national security infomiation with first responders and other officials in state, local, tribal, and private sector entities. When It passed H R 553, Congress recognized the Administration's significant progress on these issues. As the Senate Homeland Security and Govemment Affairs Committee stated in its report (pdf) on this legislation. H R. 553 is intended to complement Executive Order 13526, and "both the Order and the Act Mil promote the goals of transparency, information sharing, and security." Ben Rhoijes is Deputy National Security Advisor for Strategic Communications Related Topics: Homeland Securily PmJOUSPOST Video and SlilemanI: Celctiratirig Archbishop Desmond Tutu NEXT POST West Wing Week: "A Farewell lo Rahm" /WW. whitehouse.gov/blog/2010/10/07/president-signs-hr-553-redudng-over-classification-acl 21 20823 riicvrjn JINMrNT^—« lAflOM ^ 1 i.PfVf PUBLIC LAW 111-258—OCT. 7, 2010 REDUCING OVER-CLASSIFICATION ACT 20824 124 STAT. 2648 PUBLIC LAW 111-258—OCT. 7, 2010 Public Law 111-258 111th Congress An Act Oct 7, 2010 (HR~553i Reducing Over- Classification Act. 6 USC 101 note. To require the Secretary of Homeland Security to develop a strategy to prevent the overK:lassification of homeland security and other information and to promote the sharing of unclassified homeland security and other information, and for other purposes. Be it enacted by ihe Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Reducing Over-Classification Act". 6 USC 124m note. SEC. 2. FINDINGS, 50USC435d SEC. 3. DEFINITIONS. Congressfindsthe following: (1) The National Commission on Terrorist Attacks Upon the United States (commonly known as the "9/11 Commission") concluded that security requirements nurture over-classification and excessive compartmentation of infonnation among agencies. (2) The 9/11 Commission and others have observed that the over-classification of information interferes with accurate, actionable, and timely information sharing, increases the cost of information security, and needlessly limits stakeholder and public access to information. (3) Over-classification of information causes considerable confusion regarding what information may be shared with whom, and negatively affects the dissemination of information within the Federal Government and with State, local, and tribal entities, and with the private sector. (4) Over-classification of information is antithetical to the creation and operation of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485). (5) Federal departments or agencies authorized to make original classification decisions or that perform derivative classification of information are responsible for developing, implementing, and administering policies, procedures, and programs that promote compliance with applicable laws, executive orders, and other authorities pertaining to the proper use of classification markings and the policies of the National Archives and Records Administration. In this Act; 20825 PUBLIC LAW 111-258—OCT. 7, 2010 124 STAT. 2649 (1) DERIVATIVE CLASSIFICATION AND ORIGINAL CLASSIFICA- TION.—The terms "derivative classification" and "original classification" have the meanings given those terms in Executive Order No. 13526. (2) EXECUTIVE AGENCY.—-The term "Executive agency" has the meaning given that term in section 105 of title 5, United States Code. (3) EXECUTIVE ORDER NO. 13526.—-The term "Executive Order No. 13526" means Executive Order No. 13526 (75 Fed. Reg. 707; relating to classified national security information) or any subsequent corresponding executive order. SEC. 4. CLASSIFIED INFORMATION ADVISORY OFFICER. (a) I N GENERAL.—Subtitle A of title I I ofthe Homeland Security Act of 2002 (6 U.S.C. 121 et seq.) is amended by adding at the end the following: "SEC. 210F. CLASSIFIED INFORMATION ADVISORY OFFICER, 6 USC 124m, "(a) REQUIREMENT TO ESTABLISH.—The Secretary shall identify Designation, and designate within the Department a Classified Information Advisory Officer, as described in this section. "(b) RESPONSIBILITIES.—The responsibilities of the Classified Information Advisory Officer shall be as follows: "(1) To develop and disseminate educational materials and to develop and administer training progiams to assist State, local, and tribal governments (including State, local, and tribal law enforcement agencies) and private sector entities— "(A) in developing plans and policies to respond to requests related to classified information without communicating such information to individuals who lack appropriate security clearances; "(B) regarding the appropriate procedures for challenging classification designations of information received by personnel of such entities; and "(C) on the means by which such personnel may apply for security clearances. "(2) TO inform the Under Secretary for Intelligence and Analysis on policies and procedures that could facilitate the sharing of classified information with such personnel, as appropriate. "(c) INITIAL DESIGNATION.—Not later than 90 days after the Deadline date of the enactment of the Reducing Over-Classification Act, the Secretary shall— "(1) designate the initial Classified Information Advisory Officer; and "(2) submit to the Committee on Homeland Security and Notification. Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives a written notification ofthe designation.". (b) CLERICAL AMENDMENT.—The table of contents in section Kb) of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by inserting after the item relating to section 210E the following: "Sec. 210K. Classified Information Advisory Officer 20826 124 STAT, 2650 PUBLIC LAW 111-258—OCT. 7, 2010 SEC. 5. INTELLIGENCE INFORMATION SHARING. (a) DEVELOPMENT OF GUIDANCE FOR INTELLIGENCE PROD- UCTS.—Paragraph (IJ of section 102A(g) of the National Security Act of 1947 (50 U.S.C. 403-lig)I is amended— (1) in subparagraph (Ei, by striking 'and" at the end; (2> in subparagraph iF). by "striking the period at the end and inserting a wmicoion and "and"; and (3) by adding at the end the following: "(G) in accordance with Executive Order No. 13526 (75 Fed. Reg. 707; relating to classified national security information) (or any subsetiuenl corri'.Hponding executive order), and part 2001 of title 32, Code of Federal Regulations (or any subsequent corresponding regulation), establish— "the formata for classified and unclassiucd intelligence products created by elements of the intelligence community for purposes of promoting the sharing of intelli;;cncu products; and "(lit policies and procedures requiring the increased use, in appruprialc caseA, nnd including portion markings, o(^ the classification of portions of information within one intelligence product . (hi CREATION OF UNrijVSSIFrED INTEI-UGENOE PRODUCTS AS APPROPRIATE FOR STATE, LOCAL, TRIBAL, AND PRIVATE SECTOR STAKEHOLDERS.— (1) RESPONSIBILITIES OF SECRETARY RELATING TO INTELLIGENCE AND ANALYSIS AND INFRASTRUCTURE PROTECTION.— Paragraph (3) of section 201(d) of the Homeland Security Act of 2002 (6 U.S.C. 121(d)) is amended to read as follows: "(31 To integrate relevant information, analysis, and vulnerability assessments (regardless of whether such information, analysis or assessments are provided by or produced by the Department! in order to— "(A) identify priorities for protective and support measures regarding terrorist and other threats to homeland security by the Department, other agencies of the Federal Govemment. State, and local government agcncieo and authorities, the private sector, and other entities; and "(B) prepare finished intelligence and information products in both classified and unclassified formats, as apprO" priate, whenever reasonably expected to he of benefit to a Slate, local, or tribal government (including a State, local, or tribal law enforcement agency) or u private sector entity ". (2) ITACG DETAIL.—Section 210D(d) ofthe Homeland Security Act of 2002 (6 U.S.C. 124k(d)) is amended(A) in paragraph (5)— (i) in subparagraph (D), by striking "and" at the end; (ii) by redesignating subparagraph (E) as subparagraph (F); and (iii) by inserting afl;er subparagraph (D) the following: "(E) make recommendations, as appropriate, to the Secretary or the Secretary's designee, for the further dissemination of intelligence products that could likely 20827 PUBLIC LAW 111-258—OCT7,2010 124STAT2851 i n f o r m e r improvethe security of a S t a t e . l o c a l , o r tribal govemment, (includingaState,local,or tribal law enforcement agency)oraprivate sector entity; and"; ( ^ ) i n p a r a g r a p h ( 6 ) ( C ) , b y striking "and"at the end; (C) i n paragraph (7), by striking the period at the endandinsertingasemicolonand"and";and (D) by adding at the end the following: "(^) compile an annual assessmentofthe ll^ACGDetails A^scss^er^t. performance, including summaries of customer feedback, i n preparing, disseminating, and requesting thedissemination of intelligence products intended for State, local and tribal govemment (including State,local, a n d t r i b a l lawenforcement agencies) and private sector entities; and "(9) provide the assessment developed pursuant to paragraph (^)to the program manager for use in the annual reports required by subsection(c)(2).". (c) INTERAGENCY THREAT ASSESSMENT AND COORDINATION GROUPANNUALREPORTl^ODiFiCATION.—Subsection(c)ofsection 210D of the Homeland SecurityAct of 2002 (6 U S C , 124k) is amended— (1) i n the matter preceding paragraph (1), by striking ", i n consultation with the Information Sharing Council,"; (2) inparagraph(l), by striking "and" at the end; (3) in paragraph (2), by striking the period at the end andinsertingasemicolonand"and";and (4) by adding at the end the fbllowing: "(3) in each report required by paragraph (2) submitted As^c^srr^er^t after the date of the enactment of the Reducing Over-Classification Act, include an assessment of whether the detailees under subsection (d)(5) have appropriate access to all relevant information, as required by subsection (g)(2)(C).". SEC.^PRO^OTIONOFACCURATECLASSIFICATIONOFINFORI^TION, ^0USC4^5r^o^e (a) INCENTIVES FOR ACCURATE CLASSIFICATIONS.—In making cashawards u n d e r c h a p t e r 4 5 o f title 5, UnitedStatesCode, the President or the head o f a n Executive agency with an officer or employee who is authorised to make original classification decisions or derivative classification decisions may consider such officer's or employee's consistent and proper classification ofinformation. (b) lNSPECTOR GENERAL EVALUATIONS.— (1) REQUIREMENT FOR EVALUATIONS.—Not later than Sep D^adline^ tember ^0, ^ f l t ^ , the inspector general of each department or agency of the United States with an officer or employee whoisauthori^edtomakeoriginalclassifications.inconsultation with the Infbrmation Security Oversight Ofiice, shall carry out no less than two evaluations of that department or agency oracomponent of the department or agency— (A) to assesswhether applicable classificationpolicies, procedures,roles,andregulationshavebeenadopted,followed^ and effectively administered within such department, agency,or component; and (R) to identify policies,procedures,rules, regulations, or management practices that may be contributing to persistent misclassification of material within such department, agency orcomponent. (2) DEADLINESF0REVALUATI0NS.— 20828 124 5TAT2^52 PUBLIC LAW 111 258—OCT. 7,2010 (A) INITL^L EVALUATIONS.—Each first evaluation required by paragraph (l)shall be completed no later than September 30, 2013 (R) SECOND EVALUATIONS—Each second evaluation required by paragraph (1) shall review progress made pursuant to the results of thefirst evaluation and shall be completed no later than September 30, 2016. (3) REPORTS.— (A^ REt^t^EMENT.—Each inspector general who is required tocarr^ out anevabiationunder paragraph(l) shallsubmit tothe appropriate entitiesareportoneach such evaluation (B) CONTENT.—Each report submittedunder subparagraph (A) shall includeadescription of— (i) the policies, procedures, rules, regulations, or management practices, i f any, identified by the inspector general under paragraph(l)(R); and (ii) the recommendations,ifanv.oftheinspector general to address anysuch identified policies, procedures, rules,regulations, or management practices (C) COORDINATION—The inspectorsgeneral whoare required to carry ^^ut evaluations under paragraphdlsball coordinate with e^ichotl^r and ^^thtb^^ Information Security Oversight Ofiice toensure that evaluations follow a consistent methodology, as appropriate, that allows for cross-agency comparisons. (4) APPROPRL^TEENTITIESDEFlNED.—Inthissobsection,the term "appropriate entities" means— (A) the Committee on Homeland Security and Govemmental Affairs and the Select Committee on Intelligence ofthe Senate; (Bl the Committeeon Homeland Security, the Committee on Oversight and Government Refbrm, and the Permanent Select Committee on Intelligence of the House ofRepresentatives; (Cl any other committee of Congress with^urisdiction overadenartmentoragency referred to in paragraph (1); (D^ tne head o f a department or agency referred to in paragraphll^: and (E) the Director of the Infbrmation Security Oversight Office ^0USC43^d Re^u^rerr^^ot^ Deadlme SEC. ^.CLASSIFICATIONTRAINING PROGRAM, (oilN GENERALS—Th^ head of each Executive agency.in accordExecutive Order 13526, shall require annual training fbr eaeh employee who hat^ original clarification authority. For employees who perform derivativ^^ classification, or anc responsible fbr analysis, dissemination, preparation, production, receipt, publication, or othe^i^communicationofclassifiedinfbrmation, training shall be pro^^de^ at lea^tever^ two years. Such training shall^ (lieducafe the employee, as appropriate, re^ardmg— (A) the guidance established under subparagraphtG^ of sectionl02A(gKl^ of the National SecuritvAct(^f 1947 (50 u s e . 4(^3-l^gl^lii, as added by section 5(a)13^, regarding the formatting of finished intelligence products; 20829 PUBLIC LAW 111 258—OCT 7,2010 124^TAT.2^5^ (^) the proper use of classification markings, including portion markings that indicate the classification of portions ofinformation; and (C) any incentives andpenalties related to the proper classification oflntelligence infbrmation; and (2) ensure suchtrainingisaprerequisite, once completed successfully,as evidenced by an appropriate certificate or other record,for— (A) obtaining original classification authority or derivatively classifying information; and (8) maintaining such authority, (b) RELATIONSHIP TO OTHER PROGRAMS.—The head of each Executiveagency shallensure thatthe training required by subsection (a) is conducted efficiently and in conjunction with any other required security, intelligence, or other training programs to reduce the costs and administrative burdens associated with carrying out the training required by subsection (a). Approved October7,2010 LEGISLATIVE HISTORY—H.R. 553: SENATE REPORTS: No. 111-200 (Comm. on Homeland Security and Governmental Affairs). CONGRESSIONAL RECORD: Vol. 155 (2009): Feb. 3, om,,dcr«l and paired House. Vol. 156 (2010): Sept. 27, rantidurcd and passed Senate, amended. Sept. 2B. House toricurriftl in Senate amendment. o ATTACHMENT 20830 20831 David Coombs From: Sent: To: Almanza, Paul R LTC RES USAR USARC (b) (6) Wednesday, December 14, 2011 2:19 PM Almanza, Paul; coombs@armycourtmartialdefense.cQm: (b) (6) Cc: Subject: Attachments: Determinations and Evidence List (UNCLASSIFIED) 28 USC 1746 Legislative History.rtf; US v. Gunderman (67 MJ 683).rtf; Nissho-Iwai v Kline (845 F2d 1300).rtf; Hart v Hairston (343 F3d 762) 2003.rtf; Manning Article 32 Def Obj to Gov Evid Determin 121411.doc; Manning Article 32 Evidence List 121411.doc; 28 USC 1746 Legislative History.rtf; US v, Gunderman (67 MJ 683).rtf; Nissho-lwai v Kline (845 F2d 1300).rtf; Hart v Hairston (343 F3d 762) 2003.rtf; Manning Article 32 Def Obj to Gov Evid Determin 121411.doc; Manning Article 32 Evidence List 121411.doc Classification: UNCLASSIFIED Counsel Three issues, listed below. And in addition to attaching the documents referenced in 1., below, I am also attaching my determinations regarding defense objections to government evidence and my evidence list. 1. Statements under penalty of perjury, I received legal advice from my legal advisor yesterday concerning whether a statement under penalty of perjury constitutes a "sworn statement" permitting it to be considered over defense objection if the witness is not reasonably available. The advice was that in accordance with the text of 28 U.S.C. Section 1746, a declaration under penalty of perjury is legally given "like force and effect" of a sworn statement and for purposes of consideration as an alternative to testimony at the Article 32 may be considered as a sworn statement. LTC Holzer also advised that the discussion to Article 131 (see para. 57c(3)) mentions signing a summarized transcript of Article 32 testimony under penalty of perjury, which indicates that such statements signed outside of an Article 32 hearing but associated with such an investigation can be considered. I also note that the classification review statements at issue all indicate that they are in the "course ofjustice" as they all indicate the persons making the statements knew they were being prepared for use in this case. As such, I consider these statements to have the same Indicia of reliability as sworn statements. Based on his advice and my review of the indicia of reliability, I intend to consider the statements made under penalty of perjury provided by RADM Kevin Donegan, Mr. Robert Betz, LtGen Robert Schmidle, VADM Robert Harward, Mr. Patrick Kennedy, RADM David Woods, and the person subscribing Bates numbers 00378148-00378175 and 0041062300410634. LTC Holzer provided four documents, attached, supporting his advice: a. The legislative history of 28 U.S.C. Section 1746. b. US V. Gunderman, 67 M.J. 683 (A.CC.A, 2009) c. Nissho-lwai v. Kline, 845 F.2d 1300 (5th Cir. 1988) d, Hart v. Hairston, 343 F.3d 762 {5th Cir. 2003). 2. Request for reconsideration of closure determination/request for media exclusion and gag order. I recognize that the defense disagrees with my determination that reasonable alternatives to closure, such as thorough voir dire o f t h e panel members and appropriate rulings and instructions by the military judge, would ensure that should this case be referred to trial, PFC Manning would receive a fair trial. However, I do not believe that the defense has shown why 20832 thesealterr^ativestoclosureare insufficient. Additionally, with respecttothe defense^sreference to "high rankir^g officials ...hav(ingj made improper comments concerning PFC Manning^sprobable guilt and appropriate punishment,"in Mr.Coombs^sl31621 December 2011 email,lfind that thorough voir dire and appropriate rulings and instructions by the militaryjudge will adequately address the risk ofunlawful command influence Itherefore deny the defense^s requestfor reconsideration of my closure determination. With respect to the defense^srequest to exclude the media from discussionofthe five topics at issue and to issueagag order preventing otherwitnesses from discussingthose topics, those requests are denied. 3. Invocation of Article 31^Fifth Amendment rights.The recommendationlreceived from my legal advisorwas that once witnesses invoke their Article 31 or Fifth Amendment rights, those witnesses are not reasonably available. LTC Holzer also recommendedthat counsel for the witnesses be contacted to determine whetherthere are any areas of inquii^th^tth^ witness could r^^poiid to qu^slioningwiihoutinvokingtheir rights. Should It b^th^ca^et^^ indicate there are no areasthatthe witnesses will discuss withoutinvokingtheir rights, LTC Holzer recommended that the witness be called in lieu of relyingonawritten statement oftheir intent to invoke their rights, Accordingly,llntend to call both SFCAdkins and WOl Balonek as noted below. Thank you. LTC Almanza On 12/14/11, coombs(5)armycourtmartialdefense.com wrote: > LTC Almanza, > > > > > > I will be available on my cell at 1500. > > > > > > Best, > > > David > > > > > > > > David E. Coombs, Esq. > Law Office of David E. Coombs > 11 South Angell Street, #317 > Providence, RI 02906 > 20833 UNITED STATES DEFENSE REPLY TO PROSECUTION RESPONSE TO DEFENSE MOTION TO COMPEL DISCOVERY V. MANNING, Bradle E. PFC u.s.Anny. Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer-Henderson Hall, Fort Myer, VA 22211 DATED: 13 March 2012 RELIEF SOUGHT 1. In accordance with the Rules for Courts-Martial (R.C.M.) 70l(a)(5), 70l(a)(6), 70l(a)(2)(A) and 906(b)(6), Manual for Courts-Martial (M.C.M.), United States, 2008; Article 46, Uniform Code of Military Justice and the Fifth and Sixth Amendments to the United States Constitution, the Defense respectfully requests that the Court compel the requested discovery. 2. The Government fundamentally rnisunderstands its discovery obligations in this case. It references inapposite federal case law for Brady, cites to the wrong rule in the Rules for Courts- Martial, and fails to follow the appropriate process for challenging discovery requests. After an overview of what the Government claims are its constitutional and other discovery obligations, the Government concludes, ?in light of the facts and legal authority outlined above, the United States has produced all discoverable information that is required under RCM 703 and the Constitution.? See Prosecution Response to Defense Motion to Compel Discovery, page 6. We have a very serious problem The Government in this case does not know what it is doing. 3. The starting point for the Govemment?s discovery obligations is R.C.M. 701. Shockingly, the Government seems to have completely overlooked R.C.M. 701. It believes instead that its discovery obligations are govemed by R.CM. 703.1 It states in the ?rst line of its legal argument, ?Rule for Court-Martial (R.C.M.) 703 and the Supreme Court ruling in Brady outline the obliga?on of the United States to produce unclassi?ed information.? See Prosecution Response to Defense Motion to Compel Discovery, page 5. The Govermnent could not be further off base. 4. R.C.M. 703 does not apply to the Govemment?s discovery obligations; rather, it deals with the production of witnesses and evidence. As stated in an article by Lieutenant Colonel Eric Carpenter, ?discovery and production rules are fairly simple if you can distinguish one from the other.? Simpli?IingDiscovetjy and Production: Using Easy Frameworks to Evaluate the 2009 Term of Cases, THE ARMY LAWYER 31 (January 2011). He explains the difference as follows: The only reference to 701 in the Govemment?s motion is at p. 5, where the Govemmem states that ?The rule does not govern the production of classified information? See RCM. 701(f). Fundamentally, discovery rules govem how the parties will exchange infonnation. The rules for discovery establish how each party must help the 1 party to develop the pa1ty?s case. Discovery deals with preparation and investigation. Discovery means ?nding or learning something that was previously unknown and is used to ?reveal facts and develop evidence.? A party can seek discovery and obtain information that might not be not admitted into evidence at trial. For example, the information might be used to develop other evidence that the party will eventually try to admit. In contrast, production rules focus on presenting evidence or witnesses at trial. At that point, the party has been through discovery, gathered facts, and chosen which facts will be introduced as evidence at trial. The party now needs the help of compulsory process to bring those facts to the courtroom typically through a witness or physical evidence. When we look at the RCMs, we see language that re?ects this fundamental difference between discovery and production. For example, look at the rule that deals with speci?c discovery requests from the defense, RCM This rule states that when the defense requests a speci?c item, then the government must disclose that item if certain conditions are met. One of these potential conditions is that the item must be ?material to the preparation of the defense.? That language deals with preparation and investigation, not with whether that item will ultimately be introduced at trial. Id. at 31-32 (footnotes omitted). The Government has completely confused the difference between ?discovery? and ?production.? It has inexplicably been operating under the assumption that 703, the production rule, govems its discovery obligations. It is no wonder why the Government has not provided any of the requested discovery, including Brady discovery it does not even know what rules govem. 20834 5. Below, the Defense addresses the Govemment?s fundamental misunderstanding of its Bradv obligations, its other discovery obligations pursuant to R.C.M. 701 and the entire process of trying a classi?ed evidence case. A. 6. As indicated, RC.M. 701 is the relevant rule governing pretrial discovery. In particular, The Government Does ot Understand its Brady Obligations R.C.M 70l(a)(6) provides the following: 70l(a)(6) Evidence favorable to the defense. The trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to: (A) Negate the guilt of the accused of an offense charged; 20835 (B) Reduce the degree of guilt of the accused of an offense charged; or (C) Reduce the punishment. 7. R.C.M. 701 is the military?s version of the Brady rule. See, United States v. Santos, 59 . 317, 321 (CA.AF. 2004) (?Regardless of whether the defense has made a request, the Government is required to disclose known evidence that ?reasonably tends to? negate or reduce the degree of guilt of the accused or reduce the punishment that the accused may receive if convicted.? See R.C.M. 701 see also Williams, 50 MJ. at 440 (noting that R.C.M. 701121116) implements the disclosure rguirements of Brady ]))(emphasis added). The rule is not mentioned even once in the Govemment?s response. 8. R.C.M. 701 is much more expansive than the U.S. Supreme Court?s actual decision in Brady. Military courts have recognized this time and again. For instance, in United States v. rigueros, 69 604 (A. Ct. Crim. App. 2010), the Army Court of Criminal Appeals very recently remarked that: Our superior court has previously noted that R.C.M. 701, ?which sets forth speci?c requirements with respect to evidence favorable to the defense implements . . . the Supreme Court?s decision in Brady v. Maryland . . We view our superior court?s guidance as requiring us to analyze nondisclosure issues under the statutory and executive order standards set forth by RC.M. 701 and Article 46, UCMJ, which are broader than the Brady constitutional standard. . . . The military iustice svstern provides for broader discovery than due process and Brady rguire. Id. at p. 609, 610 (emphasis added); see also United States v. Eshalomi, 23 MJ . 12, 24 (C.M.A. 1986) (the broad discovery rights granted by Congress and the President are intended to provide ?more generous discovery to be available for [the] military accused? than the minimal requirements of pretrial disclosure required by the Constitution); United States v. Matt, 2009 WL 4048019 at *4 (N-M. Ct. Crim. App. 2009) (?Article 46, UCMJ, and R.C.M. 701 give an accused the right to obtain favorable evidence. Discovery in a court-martial context is broader than in federal civilian criminal proceedings and is designed to eliminate pretrial Santos, 59 at 321 (?The military justice system provides for broader discovery than required by practice in federal civilian criminal trials. Article 46, UCMJ, mandates that ?the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.? The President has implemented Article 46 in Rule for Courts Martial rigueros, 69 MJ. at 610 (?The military justice system provides for broader discovery than due process and Brady require?); United States v. Hart, 29 MJ. 407, 410 (C.M.A. 1990) available to the accused in courts-martial is broader than the discovery rights granted to most civilian defendants?); United States v. Guthrie, 53 M.J. 103, 105 (C.A.A.F. 2000) (?Discovery in military practice is open, broad, liberal, and generous?); United States v. Simmons, 38 M.J. 376, 380 (C.M.A. 1993) (?Congress intended more generous discovery to be available for military United States v. Killebrew, 9 MJ . 154, 159 (C.M.A. 1980) 20836 (?Military law has long been more liberal than its civilian counterpart in disclosing the government?s case to the accused and in granting discovery rights.? United States v. Adens, 56 M.J. 724, 731 (A. Ct. Crim. App. 2002) (?The military criminal justice system contains much broader rights of discovery than is available under the Constitution or in most civilian jurisdictions?) (citations omitted). 9. The wording of the rule itself shows that it is intended to be broader than the minimum due process protections provided by the Brady case. See, e. Carpenter, supra, at 34 701(a)(6) states that the bene?t of the doubt goes to the defense: the govemment needs to disclose the evidence if it reasonably tends to be in original). 10. Additionally, the trial counsel has a greater obligation than even R. C.M 701(a)(6) would suggest. This is because Army Regulation (AR) 27-26, Rule 3.8(d) provides: RULE 3.8 Special Responsibilities of a Trial Counsel A trial counsel shall: make timely disclosure to the defense of all evidence or information known to the lawyer that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the lawyer, except when the lawyer is relieved of this responsibility by a protective order or regulation; The Commentary to this Rule recognizes that trial counsel is not simply an advocate but is responsible to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.? Id. Further, Rule 3.4 provides: RULE 3.4 Fairness to Opposing Party and Counsel A lawyer shall not: unlawfully obstruct another party?s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing patty; The Commentary to this section observes: The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of 20837 evidence, improperly in?uencing witnesses, obstructive tactics in discovery procedure, and the like. Documents and other items of evidence are o?en essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the Govemment, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed, or destroyed. Id. See United States v. Kinzer, 39 M.J. 559, 562 (A.CM.R. 1994); Adens, 56 MJ. at 731-32. See also Captain Elizabeth Cameron Hernandez, The Brady Bunch: An Examination of Disclosure Obligations In the Civilian Federal and Military Justice Systems, 67 A.F. L. REV. 187, 241 evident in the broad language of Model Rule a prosecutor?s duty to disclose evidence is more expansive than that required in Brady. Additionally, the Model Rules make no provision for whether the information is ?material? to the defense; rather, it requires disclosure of ?all evidence or information? which may negate the guilt or mitigate the offense of the accused?). Thus, the Government has an obligation under Rule 701(a)(6) and AR 27-26 to turn over evidence ?favorable? to the accused. The Brady standard in the military is not the exacting one under which the Government has been operating for almost two years. 11. In its Response to the Defense Motion to Compel Discovery, the Government fundamentally misapprehends its Brady obligations. It believes that the threshold of Brady material is one that does not exist in the military justice system. It is well-established that while Brady may be the starting point in discovery obligations, it is not the end point. Under the Govemment?s reading of Brady, it would only be required to disclose an exculpating ?smoking gun? in order to ?il?ll its Brady obligations. This is simply not the case. 12. Aside from a case cited by the Defense (Williams), the Government does not cite a single military case dealing with Brady. Rather it cites broad and misleading propositions of law ?'om the United States Supreme Court. Nowhere is this more apparent than in the Government?s use of the Cone v. Bell case. See 556 U. S. 449, 129 S. Ct. 1769 (2009). The Government cites Cone for the proposition that ?favorable evidence is subject to constitutionally mandated disclosure when it ?could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.??2 See Prosecution Response to the Defense Motion to Compel Discovery, page 5. The Government does not mention that the quotation is followed by footnote 15 which reads, in its entirety: Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor?s ethical or statutory obligations. See Kyles, 514 U.S., at 437, 115 S. Ct. 1555 rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice Prosecution Function and Defense Function 3 3.11(a) (3d See also ABA Model Rule of Professional Conduct 3.8(d) (2008) (?The prosecutor in a criminal case shall? ?make timely disclosure to the defense of all evidence or information known to 2 Even if this were the applicable standard?which it most certainly is not?the Government is citing the standard of appellate review whether con?dence in the verdict is undermined). 20838 the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal?). As we have often observed, the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure. Cone, 129 S. Ct. at 1783 n.15 (citations omitted). The Supreme Court itself thus recognizes that Brady operates as a ?oor and not a ceiling for the Govemment?s disclosure obligations. As indicated, under the military justice system and under the Regulation governing the Government?s ethical responsibilities, disclosure obligations in the military are much broader than the Brady case and its federal progeny would suggest 13. The Government then cites Cone for another misleading proposition, that ?evidence that is material to guilt will often be material for sentencing purposes as well; the converse is not always true.? See Prosecution Response to the Defense Motion to Compel Discovery, page 6. The Defense reads this as suggesting that its requested discovery material (in particular, the damage assessments) may be relevant for sentencing, but that does not mean that they are relevant to guilt or innocence. Thus, the Government believes the damage assessments do not need to be produced because they are not Brady material.3 The Government has completely taken this sentence out of context. In Cone, the state withheld evidence of the defendant?s drug use which the defense maintained was relevant to the sentence the defendant ultimately received. The Supreme Court agreed, stating: Neither the Court of Appeals nor the District Court fully considered whether the suppressed evidence might have persuaded one or more jurors that Ccne?s drug addiction especially if attributable to honorable service of his country in Vietnam was suf?ciently serious to justify a decision to imprison him for life rather than sentence him to death Because the evidence suppressed at Cone?s trial may well h_ave been material to the iurv?s assessment of the proper punishment in this case, we conclude that a ?rll review of the suppressed evidence and its effect is warranted. Id. at 1786 (emphasis added) (citations omitted). Thus, far from supporting the Govemment?s position, the Cone case undermines it. The Cane case recognizes that evidence may be Brady material if it would be important for sentencing, even though it may not have been relevant for the merits.4 It appears that the Govemment is operating under the assumption that evidence is not Brady material unless it deals with the merits of the case, rather than sentencing. This point 3 The Defense believes that this utter misreading of the law also explains why the Government has gone to great pains to distinguish between ?could? and ?should? in reference to the damage assessments. Even if one were to accept that whether the alleged leaks caused actual damage was not relevant to the merits (which the Defense does not in any way concede), the actual damage done by the leaks is most certainly material for sentencing. But by trying to distinguish between ?could? and ?should? and then very misleadingly citing a case saying that evidence that is material for sentencing may not be material br the merits, the Government is clearly attempting to evade its disclosure obligations. 4 The Defense did not distinguish any of the other cases cited by the Government simply because the Govemment is so wholly off-the-mark on the relevant disclosure obligations. 20839 is also illustrated in the Govemment?s citation to United States v. Agurs, 427 U.S. 97, 112 (1976), where the Government emphasizes that ?the proper standard of materiality must re?ect our overriding concern with the justice of the ?nding of guilt.? (Government italics). By italicizing the expression ?finding of guilty? the Government is reading Brady to mean that evidence that is favorable as to sentencing is not Brady material. The Government utterly fails to understand what Brady (either the military or federal version) means. 14. The Government has an affirmative duty to seek out Brady material. See United States v. Williams, 50 M.J. 436, 442 (C.A.A.F. 1999). The Defense, in other words, does not need to request Brady material in general, or speci?c items it believes constitute Braay material, in order for the Govemment?s obligation to disclose that information to arise. See, e. g, United States v. Agurs, 427 U.S. 97, 107 (1976). Thus, the relevant inquiry is the following: Is the material ?favorable? to the defense within the meaning of R.CM. If so, the material must be turned over to the Defense.? 15. The Govemment?s insistence that the Defense make an acceptable showing that the information is ?relevant and necessary? under R.C.M. 703 (the production rule) is completely misplaced. The Defense has no such obligation. The obligation is the other way around: the Government must disclose information which is favorable under RC.M 701 to the Defense ?as soon as practicable.? Here, the Government has not done so. 16. The Defense strongly believes that the damage assessments and associated reports are classic Brady material. The Defense believes that these damage assessments will show that the alleged leaks did minimal to no damage to national security. The Defense has several good faith bases for these beliefs. First, Government officials have publicly referred to reports which indicate that the alleged leaks did not compromise sources or methods. Second (and perhaps more important), if the information were not favorable to the Defense, the Government would gladly have handed the material over to the Defense. That the Government has been ?ghting tooth-and-nail to withhold discovery in contravention of its obligations demonstrates that the evidence is favorable within the meaning of Brady.7 As such, the Defense strongly believes that the Government has deliberately withheld Brady material, impacting the accused?s right to a fair trial. B. The Government Does Not Understand the Discovery Process Outside of Brady 17. Separate and apart from the Brady issue, properly understood, R.C.M 70l(a)(2)(A) allows for the Defense to inspect documents and reports. In other words, the obligations under R.C.M. 701 are in addition to the obligations found under the military rule which embodies Brady. R.C.M. 70l(a)(2)(A) reads: A?er service of charges, upon request of the defense, the Government shall permit the defense to inspect: 5 As quali?ed by the Govemmerfs ethical responsibilities underRegulation. 6 Claims of privilege are discussed Imder Section C. 7 Even if such evidence were not Brady material, it is still subject to disclosure under R.C.M. 20840 (A) Any books, papers, documents, photographs, tangible objects, buildings, or places, or copies of portions thereof, which are within the possession, custody, or control of military authorities, and which are maten'_al to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case?in-chief at trial, or were obtained from or belong to the accused. Id. (emphasis added). Under this rule, the Government has an obligation to allow the Defense to inspect, inter alia, documents or tangible objects within the possession, custody or control of military authorities.8 The only limitation is that these items must be ?material to the preparation of the defense.? This is not, in any way, an exacting standard 18. Speci?c discovery requests must be turned over if the requested information or items would be relevant or helpful in any way to the defense, even if that information will not ultimately be admissible at trial. The requested items, in fact, do not need to be favorable; even unfavorable items may be material to the preparation of a defense. See Adens, 56 at 734-35. 19. The case law reaffirms that ?material? under RC.M 701 is not a difficult standard to satisfy. In US. v. Cano, 2004 WL 5863050 at *3 (A. Crim. Ct. App. 2004), our superior court discussed the content of the ?materiality? standard under R.CM. 701 In reviewing AE in camera, the military judge said that he examined the records and AE contained ?everything . . . [he] thought was even remotely potentially helpful to the defense.? That would be a fair trial standard, but our examination finds a great deal more that should have been disclosed as ?material to the preparation of the defense.? We caution trial judges who review such bodies of evidence in camera to do so with an and mind?set of a defense counsel at the beginning of case preparation. That is, not solely with a view to the presentation of evidence at trial, but to actually preparing to defend a client, so that the mandate of Article 46, UCMJ, is satisfied. See also US. v. Roberts, 59 MJ. 323, 326 (C.A.A.F. 2004) (?The defense had a right to this information because it was relevant to SA M's credibility and was therefore material to the 8 All of the speci?c Defense requests ask for information which is in the ?possession, custody, or control of military authorities? within the meaning of Williams, 50 M.J. 436 (C.A.A.F 1999). The Government has not once in the past year and a half objected to any of the Defcnse?s discovery requests on the basis that the infomiation sought is not in the ?possession, custody, or control of military authorities.? Rather, the Government has simply said that the requests were not speci?c enough or that it did not believe the material was relevant or necessary under RCM. 703. In the event that the Government now switches its ?game plan? to deny discovery, it should be estopped from arguing that any of the Defcnse?s requested information is not in the ?possession, custody, or control of military authorities.? See, e. United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989) (?The prosecutor will be deemed to have knowledge of and access to anything in the possession, custody, or control of any federal agency participating inthe same investigation of the United States v. Simmons, 38 MJ. 376, 381 (C.M.A. 1993) (holding that trial counsel must exercise due diligence in discovering the results of exams and tests which are in possession of Kyles v. Whitley, 514 US. 419, 437 (1995) individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the behalf in the case, including the 20841 preparation of the defense for purposes of the Government's obligation to disclose under R.C.M. 701(a)(2)(A).")(emphasis added); Adens, 56 M. J. at 733 ("We respectfully disagree with our sister court's narrow interpretation that the term 'material to the preparation of the defense' in R.C.M. 701(a)(2)(A) and (B) is limited to exculpatory evidence under the Brady line of cases and hold that our sister court's decision in Trimper should no longer be followed in Army courts­ martial. There is no language in R.C.M. 701, or in its analysis, indicating any intent by the President to limit disclosure under Article 46, UCM J, to constitutionally required exculpatory matters. As noted above, R.C.M. 701 is specifically intended to provide 'for broader discovery than is required in Federal practice' (R.C. M. 701 Analysis, at A21 32), and unquestionably is intended to implement an independent statutory right to discovery under Article 46, UCMJ."); United States v. Webb, 66 M. J. 89, 92 (C.A. A.F. 2008) ( "[U]pon request of the defense, the trial counsel must permit the defense to inspect any documents within the custody, or control of military authorities that are 'material to the preparation of the defense.' R.C.M. 701(a)(2)(A). Thus, an accused's right to discovery is not limited to evidence that would be known to be admissible at trial. It includes materials that would assist the defense in formulating a defense strategy. "). 20. Thus, under R.C.M. 701(a)(2)(A), the Government must tum over specifically requested items that are material to the preparation of the Defense. The Defense does not need to show that the items are "relevant and necessary" under R.C.M. 703, as the Government believes. 21. If the Government does not think that the requested items are "material to the preparation of the defense, " the Government cannot, under any circumstances, unilaterally withhold discovery. See United States v. Gonzalez, 62 M.J. 303, 306 (C. A. A.F. 2006) ("When a defendant makes a specific request for discoverable information, it is error if the Government does not provide the requested information. "). The appropriate course of action if the Government maintains that the requested material does not meet the R.C.M. 701(a)(2)(A) standard is to follow the procedures outlined in R.C.M. 701(g)(2) for an in camera determination by the Military Judge. The Rule provides, in pertinent part: Upon a sufficient showing the military judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the military judge may permit the party to make such showing, in whole or in part, in writing to be inspected only by the military judge. 22. In other words, if the Government believes that a discovery request is inappropriate, it must file a motion with the military judge requesting an in camera review. It cannot continue to state that the Defense has not adequately demonstrated materiality within the meaning of R.C.M. 701(a)(2)(A) and thereby refuse the discovery request.9 Alternatively, if the material is classified, the Government must proceed under M.R.E . 505, discussed below. This comports 9 For example, the Government does not believe that the hard drives of soldiers within PFC Manning's unit are "relevant and necessary" (the wrong standard). Perhaps this also means that the Government does not believe that this physical evidence is material to the preparation of the Defense. If so, the Government must motion the Military Judge under RC.M. 70l(g)(2) for an appropriate determination (or under R.C.M. 505,if the material is classifed). It cannot continue, as it has for almost two years, to refuse to provide the discovery to the Defense because it does not feel that the Defense should get it. 9 20842 with logic and common sense: How can an adversarial party be the unilateral arbiter of what is ?material to the defense? within the meaning of R.C.M. 701 The Government has not requested an in camera review because, of course, it is not even reading the correct discovery rule. C. The Government Does Not Understand that the Potentially Classi?ed Nature of the Information Does Not Mean that it Does Not Need to Comply With its Discovery Obligations 23. The Government believes that the classi?ed nature of some of the discovery sought somehow means that the material is immunized from discovery. This is simply not the case. If the Government does not wish to turn over either: a) R.C.M. material (properly understood); or b) items speci?cally requested pursuant to R.C.M. 701 that is claims are classi?ed, then it must follow the proper procedures under MR.E. 505. The Government has not done so. Instead it has withheld discovery on the erroneous belief that MR.E. 505 means that the information is not discoverable. See Prosecution Response to Defense Motion to Compel Discovery, p. 7 fact that these hard drives were collected ?om a classi?ed facility, namely the SCIF, con?rms that the rules of production under Military Rule of Evidence (M.R.E.) 505 should govern whether these images are discoverable?). 24. The Government has not claimed a privilege under M.RE. 505(t), nor has the Government provided the requested infonnation to the Court under .R.E. 505(i). Instead, the Government has simply withheld the requested infonnation under its belief that ?production? and not ?discovery? rules control. This is not only improper, it is an incorrect view of the law. Moreover, that the Government does not know what procedure to follow in a classi?ed evidence case completely undermines the Defense?s con?dence in the ability of the Government to ful?ll its discovery obligations. D. The Government?s Response Continues to Obscure the Truth 25. The Defense is tired of the games the Government continues to play. Even if the Defense could somehow overlook the elephant in the room that the Government does not understand military discovery the Government?s response illustrates perfectly the garnesmanship that military courts do not countenance. The Defense provides some examples below. These are not intended to be comprehensive, but to show how disingenuous the Government has been in this proceeding i) The Government at page 1 states ?on 16 November 2011, Defense did not speci?cally request ?les completed with the assistance of the O?ice of the Director of National Intelligence.? The Govemment?s statement gives the impression that the Defense never speci?cally requested ?les completed with the assistance of the Office of the Director of National Intelligence. Such a statement, as the Government fully knows, is inaccurate. The Defense, a month earlier, on 13 October 2011, speci?cally requested ?any and all documentation relating to any review or damage 10 vi) 20843 assessment conducted by ODNI [the Office of the Director of National Intelligence] or in cooperation with any other government agency.? See Defense?s 13 October 2011 Discovery Request at l.c.vi. Likewise, when the Government states on page 2 of its response that the ?Defense did not speci?cally request any alleged information completed by the WikiLeaks Task Force on 1 December 2011, this too is misleading. The Defense speci?cally requested infonnation from the WTF on 13 October 201 1 ?any report, damage assessment or recommendation by the Wikileaks Task Force or any other CIA member concerning the alleged leaks in this case.? See Defense?s 13 October 2011 Discovery Request at Additionally, the Defense requested on 8 December 2010 ?any and all documentation related to the Central Intelligence Agency (CIA) investigation of Wikileaks announced by CIA Director Leon The announcement by former CIA Director Panetta of the agency?s review was the creation of the Wikileaks Task Force. Thus the Defense has repeatedly requested all of this information. The Government asks at page 8 that the ?United States respectfully requests the Court deny Defense?s request for damage assessments, if any should exist.? The Government then states that it will not produce the ?alleged damage assessment by the or the ?alleged damage assessment by the The Defense knows that these assessments exist. The Government should not be permitted to continue its game of smoke and mirrors by referring to an ?alleged? damage report. It obviously knows that such reports exist; accordingly, itis not accurate to refer to them as ?alleged? and to continue to refuse to acknowledge their existence. The Government has indicated at page 11 that the DOS ?has not completed a damage assessment? and that ONCIX ?has not completed a damage assessment.? The Defense believes that the Government may be playing fast?and-loose with the term ?completed.? The Defense requested any and all reports and documents related to a damage assessment. That neither of these organizations has ?completed? a damage assessment does not mean that the requested information does not exist. The Government states at page 12-14 that ?the United States is unaware of ?any forensic results and investigative reports? from within [agency] that contributed to any law enforcement investigation. ?Unaware? is not a standard; either these exist or do not exist. Notably, the Government does not indicate that it actually looked for the Defense-requested materials. The Government says at page 8 that it intends to produce information related to the accused from an open FBI investigation ?that is discoverable under Brady.? As discussed above, the Government is operating under the wrong Brady standard. Moreover, the Government has an obligation to produce these ?les as part of the R.CM. 701 request. Finally, why has the Government not already secured the appropriate approvals? With respect to almost every discovery request, the Government complains that the Defense has failed to state ?with speci?city? what it was requesting. Short of 11 20844 referring to a report/document by name, the Defense could not possibility state any of the discovery requests with more speci?city. The Defense has asked for information, documents, reports, etc. created by certain named agencies related to the accused?s alleged disclosure of documents. The Government knows full well ?exactly what [the Defense] desires.? Prosecution Response to Defense Motion to Compel Discovery, page 12-14. It just does not want to provide this information. Moreover, if the Government needs more speci?city does not understand what the Defense is seeking), how can it claim that the requested discovery is not ?relevant and necessary?? If the Government cannot pinpoint what the Defense is looking for, then obviously it cannot claim that this unknown item is not ?relevant and necessary.? The two are wholly inconsistent. 26. The Govemment?s responses to both the Protective Order and this Motion to Compel are disheartening. At the Article 32 hearing I asked the Investigating Officer, ?Is this the best that military justice can do?? I echo that sentiment again now. CONCLUSION 27. Based on the above, and the original motion submitted by the Defense (including the parte supplement) the Defense requests that the Court order the Government to obtain the requested information and provide this information to the Defense. Respect?illy submitted, DAVID EDWARD COOMBS Civilian Defense Counsel 12 20845 SWORN STATEMENT For use of this form, see AR 190,45; the proponent agency Is PMG. PRIVACY ACT STATEMENT AUTHORITY: PRINCIPAL PURPOSE: Tifle 10. USC Section 301; TMe 5. USC Section 2951; E.O. 9397 Social Sacurtty Number (SSN). To document potential criminal activity involving the U.S.Amiy, and to allow Anny ofndais to malntan discipline, law and order through investigation of complaints and incidents. ROUTINE USES: Information provided may be luMher disclosed to federal, state, local, and fbreign govemment law enforcement agendas, prosecutois, courts, child protective services, victims, witnesses, the Department of Veterans Affairs, and the OlMca of Personnel ManagemenL information provided may be used for detemtlnatlons regardng Judicial or non-Judldal purishment, other administrative disdpllnaiy actions, security dearaices, recniitment, retention, placement, and other personnel actions. DISCLOSURE: Disdosure of your SSN and other Information Is voluntary. i. L66AYioiJ Fort Myer, Virginia 2. DATE S. LAST NAME, FIRST NAME. MIDDLE NAME (VYYVmOD) 2012/02/17 3. TIME 4. F i l £ NUMBER 1000 6. SSN 7. GRADE«TATUS (b) (6) Papakie, Brian Robert E-8/MSgt 8. ORGANIZATION OR ADDRESS HQMC PSL Corrections 755 S. Courthouse Rd. Suite 2000 Arlington, VA 22204-2478 8. I, MSgt Brian Robert Papakie , WANT TO MAKE THE FOLLOWING STATEMENT UNDER OATH: On 18 January 2011, Two video recordings of PFC Bradley E Manning were documented in the Quantico Pre-trial Confinement Facility. The two videos wererecordedat the same time. The Camera was stopped and started again with an approximate time lapse of 1 minute in an attempt to better the angle ofthe individual speaking with PFC Manning. This was done by the camera man walking around the oppisite hallway tothe other end of the Alpha Row c£ cells. The recordings were takoi due to PFC Manning becoming irrational in his cell by throwing his body around and appeared to attempt sdf bodily harm. Under the Brig Commanding OfScer's direction, PFC Manning was placed on Suicide Risk status. During the course of obtaining PFC Manning's clothing, a video recording was conducted to documentfteoccurrence. One video shows myself retriving PFC Manning's gear and the other . video is a conclusion of the incident with GySgt Blenis talking with PFC Manning in an attempt to calm the situation. Tbe recordings were tumed ova- the the Marine Corps Staff Judge Advocates Office on Marine Corps Base Quantico and no other videos of PFC Manning were taken diiimg his confinement at the Quantico Pre-trial Confinement Facility .-End Of Statement- 10. EXHiBrr 11. INmALS OF PERSON MAKING STATEMENT PAGE 1 OF BRP ADDITIONAL PAGES MUST CONTAIN THE HEADING "STATEMENT OF TAKENAT PAGES DATED THE BOTTOM OF EACH ADDITIONAL PAGEMUST BEAR THE INITIALS OF THEPERSON MAKING THESTATEMENT. AND PAGE NUMBER MUST BE INDICATED. DAFORM 2823, NOV 2006 ManningB_00412612 PREVIOUS EDITIONS ARE OBSOLETE APOPEvl.OIES APPELLATE EXHEBTrXXyn ( 2 ? ; Page_J__ofPage(s) % 20846 STATEMENT OF 9. STATEMENT MSgt Brian. Robert Papakie TAKENAT Ft Myer DATED 2012/02/17 (Continued) AFFIDAVIT , MSgt Brian Robert Papakie WHICH BEGINS ON PAGE 1, AND ENDS ON PAGE . HAVE READ OR HAVE HAD READ TO ME THIS STATEMENT I FULLY UNDERSTAND THE CONTENTS OF THE ENTIRE STATEMENTMADE BY ME. THE STATEMENT IS TRUE. IHAVE INITIALED ALL CORRECTIONS AND HAVE INITIALED THE BOTTOM OF EACH PAGE CONTAINING THE STATEMENT. I HAVE MADE THIS STATEMENT FREELY VfTHOUT HOPE OF BENEFIT OR REWARD, WITHOUT THREAT OF PUNISHMENT, AND WTTHOUT COERCION, UNLAWFUL INFLUENCE. OR UNLAWFUL INDUCMHENT. (Signature Making Statement) Subscribed and swom to before me. a person authorized by law to WrrNESSES; administer oaths, this " 0RGANIZAT10N OR ADDRESS of Perxin |*7 Qr\ /A-f e, b , ^XiQ I t^L/\ I dayof igraon Administering Oath) (Signature oiS^ra i ^ A n ffc-bcrja^ (Typed Name of Person Administering Oath) io O.5.C. ORGANIZATION OR ADDRESS (Authority To Admirister Oaths) INITIALS OF PERSON MAKING STATEMENT PAGES DA FORU1823, NOV 2008 ManningB_00412613 APOPEvl.OIES APPELLATE ESinBITjOlVIJ Paje_2-_rfpage(s) Z- 20847 CHARGESHEET I. PERSONAL DATA 1. NAME OF ACCUSED (Last, Fist, MI) 2. SSN 3. GRADE OR RANK 4. PAY GRADE MANNING, Bradley . PFC 3 5. UNIT OR ORGANZATION 6. CURRENT SERVICE Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer Henderson Hall Fort Myer, Virginia 22211 2 Oct 07 4 years 7. PAY PER MONTH a. NATURE OF RESTRAINT OF 9. IMPOSED ACCUSED a. BASIC b. SEAIFOREIGN DUTY c. TOTAL1,950.00 None $1,950.00 Pre Trial Confinement 29 May 10 - Iz II. CHARGES AND SPECIFICATIONS 10. I: VIOLATION OF THE UCMJ, ARTICLE 104. THE SPECIFICATION: In that Private First Class Bradley E. Manning, U.S. Army, did, at Or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, without proper authority, knowingly give intelligence to the enemy, through indirect means. CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 134. SPECIFICATION 1: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and On or about 27 May 2010, wrongfully and wantonly cause to be published on the internet intelligence belonging to the United States government, having knowledge that intelligence published on the internet is accessible to the enemy, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. (See Continuation Sheet) PREFERRAL 11a. NAME OF ACCUSER (Last, First, MI) b. GRADE c. ORGANIZATION OF ACCUSER Leiker, Cameron SIGNATURE OF I) e. DATE (23425 1 MAR 2011 AFFIDAVIT: Before me, the undersigned, authorized by law to administer oaths in cases of this character, personally appeared the above named accuser this 8'4? day of Ck ZOI 1, and signed the foregoing charges and speci?cations under oath that he/she is a person subject to the Uniform Code of Military Justice and that he/she either has personal knowledge of or has investigated the matters set forth therein and that the same are true to the best of his/her knowledge and belief. ASHDEN FEIN MDW, OSJA Typed Name of O?ioer Organization of Of?oer Trial Counsel 4? Grade Of?dal Capacity to Administer Oath (See R. C.M. 3J7(b) - must be a commissioned officer) i 1 DD FORM 458, MAY 2000 PREVIOUS EDITION IS OBSOLETE. 20848 12- e? On 2011, the accused was informed ofthe charges against him/her and ofthe name(s) of The accuser( known to me (See R. C. M. 308 (See R. C.M 308 if notification cannot be made.) CAMERON A. LEI KER HQ CMD BN USA Typed Name of Immediate Commander Organization of Immediate Commander A 0- 5 Signature IV. RECEIPT BY SUMMARY COURT-MARTIAL CONVENING AUTHORITY 13. The sworn charges were received at hours. 2011 at HQ CMD BN, Us A Designation of Command or Officer Exercising Summary Court-Martial Junsdidion (See R. C. M. 403) CAMERON A . LEIKER Commanding Typed Name of Of?cer Official Capacity of Of?cer Signing A 5 v. SERVICE OF CHARGES 14a. DESIGNATION OF COMMAND OF b. PLACE c. DATE Headquarters, U.S. Army Military 20120203 District of washinqton Fort McNair. DC General Court Court-Martial convening Order Number 1, this headquarters, dated 2 February . subject to the following instnictionszz None . Bv Command 0' MG MICHAEL s. LINNINGTON Command or Order LOUIS J. BOSTON JR. Chief, Milita?y Justice Typed Name of O?ioer Of?cial Capacity of Officer Signing 4 Grade If 71 Signature 15. On 3 eh am?-r? (L I (caused to be) sewed a copy hereof on?oad-o?gthe above named accused. To A I - 3 Typed We of Ta! Counsel Grade or Rank of Trial Counsel 4. 1 When an aipropnate commander signs personally, inapplicable words are stricken. 2 See RC. 601(e) conceming instructions. If none, so state. DD FORM 458 (BACK), MAY 2000 20849 CONTINUATION SHEET, DA FORM 458, MANNING, Bradley E., Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer Henderson Hall, Fort Myer, Virginia 22211 Item 10 (Cont?d): SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or about 5 April 2010, having unauthorized possession of information relating to the national defense, to wit: a video file named ?l2 JUL 07 CZ ENGAGEMENT ZONE 30 GC Anyone.avi", with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, to a person not entitled to receive it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 22 March 2010 and on or about 26 March 2010, having unauthorized possession of information relating to the national defense, to wit: more than one classified memorandum produced by a United States government intelligence agency, with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, to a person not entitled to receive it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or about 5 January 2010, steal, purloin, or knowingly convert another, a record or thing of value of the United States or of a department or agency thereof, to wit: the Combined Information Data Network Exchange Iraq database containing more than 380,000 records belonging to the United States government, of a value of more than$1,000, in
violation of 18 U.S. Code Section 641, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.

20850
CONTINUATION SHEET, DA FORM 458, MANNING, Bradley E.
Myer Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 5: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 9 February 2010,
having unauthorized possession of information relating to the national
defense, to wit: more than twenty classified records from the
Combined Information Data Network Exchange Iraq database, with reason
to believe such information could be used to the injury of the United
States or to the advantage of any foreign nation, willfully
communicate, deliver, transmit, or cause to be communicated,
delivered, or transmitted, the said information, to a person not
entitled to receive it, in violation of 18 U.S. Code Section 793(e),
such conduct being prejudicial to good order and discipline in the
armed forces and being of a nature to bring discredit upon the armed
forces.

SPECIFICATION 6: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 31 December 2009 and on or about 8 January 2010,
steal, purloin, or knowingly convert another,
a record or thing of value of the United States or of a department or
agency thereof, to wit: the Combined Information Data Network
Exchange Afghanistan database containing more than 90,000 records
belonging to the United States government, of a value of more than
$1,000, in violation of 18 U.S. Code Section 641, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. SPECIFICATION 7: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 31 December 2009 and on or about 9 February 2010, having unauthorized possession of information relating to the national defense, to wit: more than twenty classified records from the Combined Information Data Network Exchange Afghanistan database, with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, to a person not entitled to receive it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. 20851 CONTINUATION SHEET, DA FORM 458, MANNING, Bradley E., -, Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer Henderson Hall, Fort Myer, Virginia 22211 SPECIFICATION 8: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, on or about 8 March 2010, steal, purloin, or knowingly convert another, a record or thing of value of the United States or of a department or agency thereof, to wit: a United States Southern Command database containing more than 700 records belonging to the United States government, of a value of more than$1,000, in
violation of 18 U.S. Code Section 641, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.

SPECIFICATION 9: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 8 March 2010 and on or about 27 May 2010, having
unauthorized possession of information relating to the national
defense, to wit: more than three classified records from a United
States Southern Command database, with reason to believe such
information could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted, the
said information, to a person not entitled to receive it, in violation
of 18 U.S. Code Section 793(e), such conduct being prejudicial to good
order and discipline in the armed forces and being of a nature to
bring discredit upon the armed forces.

SPECIFICATION 10: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 April 2010 and on or about 27 May 2010, having
unauthorized possession of information relating to the national
defense, to wit: more than five classified records relating to a
military operation in Farah Province, Afghanistan occurring on or
about 4 May 2009, with reason to believe such information could be
used to the injury of the United States or to the advantage of any
foreign nation, willfully communicate, deliver, transmit, or cause to
be communicated, delivered, or transmitted, the said information, to a
person not entitled to receive it, in violation of 18 U.S. Code
Section 793(e), such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.

20852
CONTINUATION SHEET, DA FORM 458, MANNING, Bradley 3.,

Myer Henderson Hall, Fort Myer, Virginia 22211

SPECIFICATION 11: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 1 November 2009 and on or about 8 January 2010,
having unauthorized possession of information relating to the national
defense, to wit: a file named PAX.zip" containing a video named
PAX.wmv?, with reason to believe such information could be used
to the injury of the United States or to the advantage of any foreign
nation, willfully communicate, deliver, transmit, or cause to be
communicated, delivered, or transmitted, the said information, to a
person not entitled to receive it, in violation of 18 U.S. Code
Section 793(e), such conduct being prejudicial to good order and
discipline in the armed forces and being of a nature to bring
discredit upon the armed forces.

SPECIFICATION 12: In that Private First Class Bradley E. Manning,
U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 28 March 2010 and on or about 4 May 2010, steal,
purloin, or knowingly convert another, a
record or thing of value of the United States or of a department or
agency thereof, to wit: the Department of State Net Centric Diplomacy
database containing more than 250,000 records belonging to the United
States government, of a value of more than $1,000, in violation of 18 U.S. Code Section 641, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. SPECIFICATION 13: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28 March 2010 and on or about 27 May 2010, having knowingly exceeded authorized access on a Secret Internet Protocol Router Network computer, and by means of such conduct having obtained information that has been determined by the United States government pursuant to an Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, to wit: more than seventy five classified United States Department of State cables, willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted the said information, to a person not entitled to receive it, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation, in violation of 18 U.S. Code Section 1030(a)(1), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. 20853 CONTINUATION SHEET, DA FORM 458, MANNING, Bradley 3., Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer Henderson Hall, Fort Myer, Virginia 22211 SPECIFICATION 14: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or about 18 February 2010, having knowingly exceeded authorized access on a Secret Internet Protocol Router Network computer, and by means of such conduct having obtained information that has been determined by the United States government pursuant to an Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, to wit: a classified Department of State cable titled "Reykjavik 13", willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted the said information, to a person not entitled to receive it, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation, in violation of 18 U.S. Code Section 1030(a)(1), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. SPECIFICATION 15: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 15 February 2010 and on or about 15 March 2010, having unauthorized possession of information relating to the national defense, to wit: a classified record produced by a United States Army intelligence organization, dated 18 March 2008, with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, to a person not entitled to receive it, in violation of 18 U.S. Code Section 793(e), such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. SPECIFICATION 16: In that Private First Class Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 11 May 2010 and on or about 27 May 2010, steal, purloin, or knowingly convert another, a record or thing of value of the United States or of a department or agency thereof, to wit: the United States Forces Iraq Microsoft Outlook SharePoint Exchange Server global address list belonging to the United States government, of a value of more than$1,000, in
violation of 18 U.S. Code Section 641, such conduct being prejudicial
to good order and discipline in the armed forces and being of a nature
to bring discredit upon the armed forces.

20854
CONTINUATION SHEET, DA FORM 458, MANNING, Bradley E.
Myer Henderson Hall, Fort Myer, Virginia 22211

ABBETEGNAE CHARGE VIOLATION OF THE UCMJ, ARTICLE 92.

SPECIFICATION 1: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 1 November 2009 and on or about 8 March 2010,
violate a lawful general regulation, to wit: paragraph 4
Army Regulation 25 2, dated 24 October 2007, by attempting to bypass
network or information system security mechanisms.

SPECIFICATION 2: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 February 2010 and on or about 3 April 2010,
violate a lawful general regulation, to wit: paragraph 4
Army Regulation 25 2, dated 24 October 2007, by adding unauthorized
software to a Secret Internet Protocol Router Network computer.

SPECIFICATION 3: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq, on
or about 4 May 2010, violate a lawful general regulation, to wit:
paragraph 4 Army Regulation 25 2, dated 24 October 2007, by
adding unauthorized software to a Secret Internet Protocol Router
Network computer. -

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 11 May 2010 and on or about 27 May 2010, violate a
lawful general regulation, to wit: paragraph 4 Army
Regulation 25 2, dated 24 October 2007, by using an information system
in a manner other than its intended purpose.

SPECIFICATION 5: In that Private First Class Bradley E. Manning, U.S.
Army, did, at or near Contingency Operating Station Hammer, Iraq, on
divers occasions between on or about 1 November 2009 and on or about
27 May 2010, violate a lawful general regulation, to wit: paragraph
7 4, Army Regulation 380 5, dated 29 September 2000, by wrongfully
storing classified information.

20855

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: DEFENSE MOTION
v. FOR BILL OF PARTICULARS

U.S. Army,
HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall DATED: 15 March 2012
Fort Myer, Virginia 22211

Defense has ?led a motion for the Government to provide a Bill of Particulars pursuant to
RCM 906(b)(6) and the i?h, Sixth, and Eights Amendments to the U.S. Constitution. Defense
argues that a bill of particulars is necessary for him to understand the charges against him so he
may adequately prepare his defense and not be subjected to unfair surprise at trial.

A?er considering the pleadings, evidence presented, and argument of counsel, the Court
finds and concludes the following:

Factual Findings:
1. PFC Manning is charged with:

a. 5 speci?cations of violating a lawful general regulation; [Charge Speci?cations 1-
5]

b. 1 speci?cation of aiding the enemy; [Charge 1, the Speci?cation]

c. 1 speci?cation of disorders and neglects to the prejudice of good order and discipline
and service discrediting; [Charge II, Speci?cation 1]

d. 8 speci?cations of communicating classi?ed information (18 U.S.C. 793(e)); [Charge
11, Speci?cations 2,3,5,7,9,l0,1 1, and 15]

e. 5 speci?cations of stealing or knowingly converting Government property (18 U.S.C.
641); [Charge 11, Speci?cation speci?cations of knowingly exceeding authorized access to a Government computer
(18 U.S.C. 1030(a)(1); [Charge II, Speci?cations 13 and 14]

2. Defense seeks the following information in the Bill of Particulars:

a. Violation of a Lawful General Regulation
1. Specification 1 - What is the alleged conduct the Government believes was an
attempt to bypass network or information security mechanisms?
2. Specifications 2 and 3 What is the unauthorized so?ware alleged to have
been added to the Secret Internet Protocol Router Network Computer?

Al?. X551 (lg)
- "4915!

20856

3. Speci?cations 2 and 3 Which computer is the unauthorized so?ware
alleged to have been added to the Secret Intemet Protocol Router Network Computer?

4. Speci?cations 2 and 3 How is the Government alleging the so?ware was
added to the Secret Internet Protocol Router Network Computer?

b. Aiding the Enemy
1. Who is the enemy?
2. How did PFC Manning knowingly give intelligence to the enemy?
3. What is the indirect means allegedly used in order to aid the enemy?
4. What ?intelligence? is the Government alleging PFC Manning gave to the

enemy?

c. Disorders and Neglects to the Prejudice of Good Order and Discipline and
Service Discrediting;
1. Who is the enemy?
2. In what manner did PFC Manning wrongfully and wantonly cause intelligence

to be published on the intemet?

d. Communicating Classi?ed Information (18 U.S.C. 793(e));
l. Speci?cation 3 Government identify the exact number and speci?c records
it believes supports this speci?cation charged as ?more than one classi?ed memorandum

produced by a U.S. Government intelligence agency?.
2. Speci?cation 5 - Government identify the exact number and speci?c records

it believes supports this speci?cation charged as ?more than twenty classi?ed records from the

Combined Information Data Network Exchange Iraq database?.

3. Speci?cation 7 - Government identify the exact number and speci?c records
it believes supports this speci?cation charged as ?more than twenty classi?ed records from the
Combined Information Data Network Exchange Iraq database?.

4. Speci?cation 9 Govemment identify the exact number and specific records
it believes supports this specification charged as ?more than three classi?ed records from a
United States Southern Command database?.

5. Speci?cation 10 - Government identify the exact number and speci?c records
it believes supports this speci?cation charged as ?more than ?ve classi?ed records relating to a
military operation in Farah Province, Afghanistan occurring on or about 4 May 2009?.

6. Speci?cation 13 Government identify the exact number and speci?c records
it believes supports this specification charged as ?more than seventy-?ve classi?ed Department
of State cables?.

e. Stealing, Purloining, or Knowingly Converting Government Property (18 U.S.C.
641);
1. What theory of culpability does the Government rely on ?stole?, ?purloined?
or ?converted?
2. If the Government relies on all 3 theories, does each theory of culpability
apply equally to every charged item?

l030(a)(1);

2 APPELLATE
Page

20857

1. Specification 13 How did PFC Manning ?knowingly exceed authorized
access on a Secret Internet Protocol Router Network computer??

2. Speci?cation 14 How did PFC Manning ?knowingly exceed authorized
access on a Secret Internet Protocol Router Network computer??

3. The Government answered all of the questions posed in the defense bill of particulars except
the following:

l030(a)(1)
Speci?cation 13 - How did PFC Manning ?knowingly exceed authorized access
on a Secret Internet Protocol Router Network computer??
Speci?cation 14 How did PFC Manning ?knowingly exceed authorized access
on a Secret Internet Protocol Router Network computer??

b. Violation of a Lawful General Regulation
Specifications 2 and 3 How is the Government alleging the software was
added to the Secret Internet Protocol Router Network Computer?

c. Stealing, Purloining, or Knowingly Converting Government Property (18 U.S.C.
641); Specifications Charge 11
1. What theory of culpability does the Government rely on ?stole?, ?purloined?

or ?converted?
2. If the Government relies on all 3 theories, does each theory of culpability

apply equally to every charged item?
The Law:
The discussion to RCM 906(b)(6) provides that the purposes of a bill for particulars are to:

a. inform the accused of the nature of the charge(s) with suf?cient precision to enable
him to prepare for trial;

b. avoid or minimize the danger or surprise at the time of trial; and

c. enable the accused to plead acquittal or conviction in bar of another prosecution when
the specification itself is too vague and inde?nite for such purpose.

A bill of particulars should not be used to conduct discovery of the Govemment?s theory of a
case, to force detailed disclosure of acts underlying a charge, or to restrict the Govemment?s
proof at trial.

Analysis:

1. The Government responses to the Defense Request for Bill of Particulars are suf?cient to
satisfy the purpose of a Bill of Particulars.

APPELLATE EXHIBIT .
3 0??age
20858

2. Speci?cations 13 and 14 of Charge II: The question posed by the defense in the bill of
particulars - How did PFC Manning ?knowingly exceed authorized access on a Secret Internet
Protocol Router Network computer?? is one that forces the government to reveal detailed
disclosures of the acts underlying the charge. The speci?cations as charged suf?ciently inform
the accused of the nature of the offense with sufficient precision enabling him to prepare for trial,
to avoid or minimize surprise at trial, and to enable the accused to plead acquittal or conviction
in bar of another prosecution. Both speci?cations advise the accused of when and where the
charged exceeded authorized access occurred. Both speci?cations identify the speci?c computer
and information involved. 18 USC 1030(e)(6) de?nes the term ?Exceed authorized access? to
mean to access a computer with authorization and to use such access to obtain or alter
information in the computer such that the accessor is not entitled so to obtain or alter. This
de?nition and other de?nitions in the statute provide the defense suf?cient notice to prepare for
trial.

3. Specifications 2 and 3 of Charge How is the Government alleging the software was
added to the Secret Internet Protocol Router Network Computer? This question also requires the
govemment to reveal detailed disclosures underlying both speci?cations. In speci?cations 2 and
3 of Charge the accused is charged with violating Anny Regulation 25-2, paragraph 4-
dated 24 October 2007. In both speci?cations, the Government followed the model
speci?cation in the Manual for Courts-Martial in drafting the charge. This model speci?cation
provides for the government to allege how that law?il regulation was violated. In both
speci?cations the government alleges the regulation was violated by the accused in that he
added unauthorized software to a Secret Internet Protocol Router Network Computer. The
speci?cation provides the defense sufficient notice to prepare for trial.

4. Specifications Charge II These speci?cations are charged in the
disjunctive in that PFC Manning ?stole?, ?purloine or ?converted?. The Government will
provide the defense with particulars on which one or all of the three theories the Government
will rely upon for speci?cations 4, 6, 8, 12, and 16. The question posed by the defense ?If
the Government relies on all 3 theories, does each theory of culpability apply equally to every
charged item?? is beyond the scope of a bill of particulars and seeks detailed information
regarding the Govemment theory of the case.

RULING: Defense Motion for Bill of Particulars is Granted in Part and Denied in Part

ORDERED, this the [my of March 2012.

DENISE R.
COL, JA
Chief Judge, Judicial Circuit

APPELLAIE EXHIBIT Xx .

20859

IN THE UNITED STATES ARJvfY
FIRST JUDICIAL CIRCUIT
)

UNITED STATES OF AMERICA

)
)

v.

)

)
)
)
)
)

PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Ruling
Defense Request to
Fiie Ex Parie Suppiemeni

15 March 2012

Defense moves this Comi to consider an ex parte supplement to its Motion to Compel
Discovery.

The Government opposes. After considering the pleadings, evidence presented, and

argmnent of com1sel, the Comi finds and concludes the following:
Factual Findings.

1. On 14 February 2012, the defense submitted motions to the Comi and the Government, to
. include an ex parte supplement to its Motion to Compel Discovery.

2. On 15 February 2012, the Comi, via email, requested the Defense to provide authority for the
Court to consider the ex parte supplement.

Also via email on 15 February 2012, the Defense

provided the following authority that is also contained in the ex parte supplement.
The Defense, in unusual situations is entitled to an ex pmie hearing to justify a
motion for appropriate relief. United States v. Garries, 22 MJ 288, 291 (C.M.A.
1986) (recognizing the inherent authority in the military judge to permit an ex
parte proceeding in the unusual circumstance where it is necessary to ensure a fair
trial); United States v. Kaspers, 47 MJ 1 76 (C.A.A.F. 1997) (holding that a
military judge has broad discretion to protect the rights of the military accused to
include conducting an ex parte hearing).

In the instant case, the Defense is not

requesting an ex parte hearing. Instead, the Defense simply desires to present the
Comi with an ex parte supplement to its motion to compel discovery.
Due to the Government's refusal to provide the requested discovery, the Defense
is placed in the position of having to disclose, to a pmiisan opponent, why it
believes ce1iain evidence is relevant and should be produced for trial.

If the

Defense is required to disclose its theory of relevance, the Govermnent will
receive an advance notice of the defense's theory and the opportm1ity to prepare to
rebut and counter the requested discovery. The Government simply has to refuse
to provide requested discovery in order to force the Defense to stand in open court
and explain how each request is relevant and necessary.

In meeting this

challenge, the Defense is forced to explain why the requested discovery is needed,
how the requested discovery is relevant to a fact in issue, and why the requested
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20860

discovery is necessary to the Defense_ In doing so, the Defense must bi:l.lmuch of its trial strategy it will disclose to justify the production of the requested
discovery.

This mandated disclosure of the Defense's case theory provides an

In order to avoid this unfair advantage, the Defense believes that this is one of
those unusual situations where an ex parte hearing would be appropriate. United
States v. Garries, 22 MJ 288,291 (C.M.A. 1986); United States v. Kaspers, 47 MJ
176 (C.A.A.F. 1997).
3.

On 23 February 2012, the Defense filed its ex parte submission under seal as AE IX. The

Comi asked the Government if it objected to the ex parte submission. The Government advised
the Court it did not object. At the arraigmnent, the Government learned that it had not received
emails from the Comt and from the Defense sent prior to arraigmnent.
4. After arraigmnent, the Govenm1ent learned it had experienced email server problems and had
not received emails from the Defense or the Comi between 14 February and 23 February 2012.

5. On 24 February 2012, the Goverm11ent received the emails that it had not received from the
defense and the Court between 14 and 23 February 2012. The same day the Govermnent
received the above email, the prosecution emailed the Court and requested the oppmiunity to
object. Also on 24 February 2012, the Defense sent the Court emails from the Govermnent dated
15 and 16 February 2012 indicating they knew the Defense was filing an Ex Parte supplement.
The Govenunent renewed their request for reconsideration at the telephonic RCM 802
conference held on 6 March 2012.
The Law:
1.

There is no express authority in RCM 701 (Discovery) for the Comi to consider ex parte

filings by the Defense when determining whether evidence is relevant, material, or favorable to
the defense. RCM 701(g)(2) (Protective and Modifying Orders) does authorize the Court to
allow ex parte showings by either party when moving the Court to restrict or limit discovery.
There is also no express authority in RCM 703 (Production of Witnesses and Evidence) for the
Court to consider ex parte filings by the defense. RCM 703(£)(3) states, "any defense request for
the production of evidence . . . shall include a description of each item sufficient to show its
relevance and necessity, a statement where it can be obtained, and, if known, the name, address,
and telephone number of the custodian of the evidence."
2. The Comi of Appeals for the Armed Forces in United States v. Garries, 22 M.J. 288, 291
(CMA 1986) and United States v. Kaspers, 47 M.J. 1 76 (CAAF 1997) recognized, that although
an accused has no right to an ex pmie hearing, military comis have inherent authority to grant the
accused an ex parte l1earing to detnonstrate rele\.'a11Ce fu"'1d 11ecessity for

a11

expert �vvitness under

RCM 703(d) if the circumstances are unusual.
3. This case involves an ex parte supplement rather than an ex parte hearing and the ex parte
supplement is in fmiherance of a motion to compel discovery rather than a motion to compel an

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20861

expert witness. Thus, it is
an

ex

a.n

open question whether the Court has iJ1J1ere21t authority to consider

parte supplement from the Defense in furtherance of a motion to compel discovery under

RCM 701 or a motion to produce evidence under RCM 703.
Analysis:

1. Although the Government was aware the Defense intended to file an ex parte submission in
support of its Motion to Compel Discovery before 23 February 20 12, when it informed the Comi
it had no objection to the ex parte submission, the Government had not received the 15 February
2012 email from the Defense setting forth authority for the filing. Under these circumstances,
the Court will allow the Government to respond and will reconsider its ruling.
2. Assuming the Court does have inherent authority to consider an ex parte filing by the Defense
in support of a motion to compel discovery, the Court has examined the Defense's ex parte
submission to determine whether it demonstrates unusual circumstances. The Court finds none.
3. The parties disagree on whether the motion to compel discovery involves discovery under
RCM 70 1 (requiring the Court to make findings of relevance, materiality, and whether
potentially discoverable information is favorable to the defense and material to guilt or
punishment) or produCtion of evidence under RCM 703 (requiring the Comi to make findings of
relevance and necessity).

In either case, the position of the

pariies for such initial

determinations should be made on the record.
4.

This case involves classified information. Should the Comi determine that any of the

information or evidence in the motion to Compel is discoverable by the Defense, the
. Government may invoke the privilege for classified information in MRE 505 and move the Court
to conduct an in camera review. Should that occur, the Defense may renew its request for the
Comi to consider its ex parte supplement when conducting in camera review.
RULING: The Government motion to reconsider is GRANTED. The Defense Motion for the

Court to consider the ex parte supplement is DENIED.
ORDERED this 15 111 day of March 2012.

12��

COL, JA

Chief Judge, 1st Judicial Circuit

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20862

UNITED STATES
v.
U.S. Army, (b) (6)
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)

DEFENSE MOTION
TO DISMISS ALL CHARGES
WITH PREJUDICE

DATED: 15 March 2012

RELIEF SOUGHT
1. In accordance with the Rules for Courts-Martial (R.C.M.) 701(g)(3)(D), the Defense moves to
dismiss all charges in this case with prejudice.1
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1).
WITNESSES/EVIDENCE
3. The Defense respectfully requests this Court to consider the Defense’s Motion to Compel
Discovery, the Prosecution Response to the Defense’s Motion to Compel Discovery, and the
Defense’s Reply to the Prosecution Response to the Defense’s Motion to Compel Discovery.
LEGAL AUTHORITY AND ARGUMENT
A.

The Government has Abdicated Wholesale Its Discovery Obligations

4. As the Government is quick to point out, this case is one of the largest and most complex cases
in United States military history. It involves hundreds of thousands of pages of classified
documents. It involves twenty-two specifications, including one of “Aiding the Enemy.” The
accused is facing life in prison. All of this and the Government does not understand its basic
discovery obligations.
5. For nearly two years, the Government has been representing that it has been diligently
searching high and low for Brady material. But it does not know what Brady material is. It
believes that Brady is the standard set by the United States Supreme Court, when it is not. The
1

As the Defense only just became aware of the Government’s fatal misunderstanding of the relevant discovery rules
on March 8, 2012, the Defense would like to reserve the right to supplement this Motion as necessary.

1

20863

Brady principle is reflected in military practice in R.C.M. 701(a)(6) and in Army Regulation 2726, which governs trial counsel’s ethical responsibilities. As military courts have recognized over
and over, military rules and ethical obligations mandate much broader Brady disclosure than
Supreme Court’s actual 50-year old decision in Brady v. Maryland.
6. How could the Government not know that the military has adopted R.C.M. 701(a)(6), along
with AR 27-26, as the Brady standard? How could the Government have been operating under
the wrong standard for almost the past two years? There are no words to justify such an abject
failure to understand the military discovery process.
7. The damage assessments, if they say what the Defense believes they say, are classic Brady
material that has been under the Government’s nose this whole time. That the Government does
not see this as Brady material demonstrates how big of a problem we have. How many other
things has the Government reviewed and discounted over nearly the past two years as not
constituting Brady material that was actually Brady material? Since the Government used the
incorrect standard the whole time, there is undoubtedly Brady material “out there” that the
Government has missed in its reviews.
8. In addition to deliberately withholding Brady material, the Government deliberately withheld
discovery under R.C.M. 701(a)(2)(A) because it thought that R.C.M. 703 was the correct
discovery rule. The Defense has been asking for myriad specific items within the control, custody
and possession of military authorities for nearly two years. These items are “material to the
preparation of the defense” within the meaning of R.C.M. 701(a)(2)(A). The standard for
“materiality” is not a high one. Information or items are material within the meaning of this rule
if they would be helpful to the defense in developing its case and formulating its strategy. In not
providing the specifically requested discovery, the Government has committed another willful
discovery violation, separate and apart from Brady.
9. As the Defense discussed in detail in its Reply, the Government failed to acknowledge the
existence of R.C.M. 701(a)(6) or 701(a)(2)(A) in its motion. Instead, it focused on R.C.M. 703 (a
rule governing production of witnesses and evidence at trial) and the federal Brady standard. The
Defense cannot fathom how four individual trial counsels detailed to this case could not
understand what their discovery obligations are. Either the discovery violations are willful or
they are grossly negligent. Either way, the Government’s abdication of its basic discovery
responsibilities is unconscionable and irreparably prejudicial, mandating that all charges should
be dismissed with prejudice.
B.

No Remedy Short of Dismissal Can Remedy the Government’s Flagrant Discovery
Violations

10. The Defense respectfully requests that this Court dismiss all the charges with prejudice. In so
asking, the Defense acknowledges that dismissal is a drastic remedy, to be exercised with great
caution. However, R.C.M. 701(g)(3)(D) does authorize a Court to grant such a dismissal in
extraordinary circumstances. The Rule provides that “[i]f at any time during the court-martial it is
brought to the attention of the military judge that a party has failed to comply with this rule, the

2

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military judge may take one or more of the following actions: … (D) Enter such other order as is
just under the circumstances.” The Defense submits that a dismissal with prejudice is the only
order that that would be “just” under these very unique circumstances. A “[d]ismissal of charges
with prejudice . . . is an appropriate remedy where the error cannot be rendered harmless.” U.S. v.
Lewis, 63 M.J. 405, 416 (C.A.A.F. 2006) (dismissing all charges with prejudice due to the
prosecutor’s use of unlawful command influence over the military judge).
11. Federal courts have explicitly recognized that dismissal of charges with prejudice may be an
appropriate remedy for a discovery violation. See United States v. Struckman, 611 F.3d 560, 577
(9th Cir. 2010) (“Nonetheless, our circuit has recognized that dismissal with prejudice may be an
appropriate remedy for a Brady or Giglio violation using a court’s supervisory powers where
prejudice to the defendant results and the prosecutorial misconduct is flagrant. We review for an
abuse of discretion the district court’s decision whether to dismiss the indictment to cure
prejudice resulting from such misconduct.”)(citations omitted); United States v. Miranda, 526
F.2d 1319, 1325 n.4 (2d Cir. 1975) (sanctions which may be imposed against the Government for
failure to disclose material available to the defense include “the exclusion or suppression of other
evidence concerning the subject matter of the undisclosed material, the grant of a new trial, or, in
exceptional circumstances, dismissal of the indictment or the direction of a judgment of
acquittal.”) (citations omitted); United States v. Chapman, 524 F.3d 1073, 1086 (9th Cir. 2008)
(although the appropriate remedy for a Brady violation will usually be a new trial, “a district court
may dismiss the indictment when the prosecution’s actions rise . . . to the level of flagrant
prosecutorial misconduct.”).
12. Military courts have implicitly recognized the power of the trial court to dismiss charges with
prejudice for discovery violations. In Vigil v. Bower, 1996 WL 233211 (A.F. Ct. Crim. App.
1996), the trial judge ordered new trial for the accused where the prosecution was “extremely
negligent” in withholding evidence. The accused petitioned for extraordinary relief on the basis
that the charges should have been dismissed with prejudice instead. The Air Force Court of
Criminal Appeals denied the petitioner’s requested relief, stating that:
[T]he military judge took prompt and decisive action when she learned, after
trial, of the alleged discovery violations. The petitioner takes issue with her
conclusion about the government’s actions. However, the fact that the
petitioner—or even another judge—might have reached a different conclusion
does not give this Court reason to direct a different result.
Id. at *2. The “different conclusion” that the court was referring to was the conclusion that
charges be dismissed with prejudice, thereby acknowledging that this remedy is at the disposal of
the military judge. Thus, it is within the sound discretion of the court to dismiss all charges with
prejudice in this case. See also United States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005)
(court recognized that “[w]hile prosecutorial misconduct does not automatically require a new
trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel's
misconduct ‘actually impacted on a substantial right of an accused.’” (quoting United States v.
Meek, 44 M.J. 1, 5 (C.A.A.F. 1996)).

3

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13. We know now that the Government has been playing by the wrong “rules of the game” since
the beginning of the case. We know that there is Brady material out there, but that the
Government does not know what Brady material is. We know that there are reports in the control,
custody and possession of military authorities, but that the Government does not realize that it has
to give them to the Defense. We know that that the Government was literally on the wrong page
of the Rules for Court Martial when it denied the Defense’s discovery requests for nearly two
years.
14. No remedy short of dismissal can fix these problems. If the Court orders the Government to
re-conduct discovery applying the correct R.C.M. rules and Brady standard, the proceeding will
be delayed another two years. The Government has represented that it has diligently conducted
searches for Brady material and in response to Defense discovery requests since May 2010, when
charges were preferred. In one session, trial counsel indicated that he had searched for files
within the Department of Agriculture. All these searches will need to be conducted again—this
time, using the correct rules. There is no way around it. And there is no conceivable way that
these searches can be conducted in a timely manner given how long the original search took. PFC
Manning has already been in pretrial confinement for a total of 656 days, with a large portion of
that time in solitary confinement, in violation of PFC Manning’s Article 13 rights. Any additional
delay in this case to re-conduct Brady searches from scratch would amount to a per se violation of
PFC Manning’s right to a speedy trial.2
15. We cannot pretend that this did not happen. We cannot pretend that the Government did, in
fact, know what it was doing this whole time. It did not. Even if the Government undertook to
provide the specifically requested items at this point, such a “solution” is not a solution at all.
First, the Defense was already supposed to have this discovery by now so that it could integrate
this material, if necessary, into its case. This material may have resulted in other leads and
theories that the Defense could have explored.3 Turning the specifically requested items over at
such a late date has already prejudiced the Defense’s ability to adequately prepare for trial.
Second, and more importantly, even if the Government were to immediately provide4 all the
specifically requested items, the Government will still not have complied with its Brady
obligations. After such flagrant discovery violations, the Government cannot be allowed to
circumvent R.C.M. 701(a)(6) simply by providing specifically requested discovery under R.C.M.
701(a)(2)(A).
16. Moreover, the Defense does not know what evidence, Brady or otherwise, was destroyed or
lost owing to the Government’s discovery violations. Evidence that may have existed two years
ago may not be in existence today. Had the Government done its job correctly the first time, this
material would have been provided to the Defense. The Government will undoubtedly argue that
this contention is speculative—that we do not know what information has been lost or destroyed
over nearly the past two years. And that is exactly the Defense’s point. We don’t know what we
2

The Defense maintains that PFC Manning has already been deprived of his constitutional right to a speedy trial.
For instance, even if the Defense immediately receives an EnCase copy of the requested hard drives, its forensic
experts will need several months to review the material.
4
We know that the Government, even if ordered, will not immediately provide the requested discovery as it has
indicated in its Supplement to the Case Management Order that it requires 45-60 days to coordinate and determine if
it will claim privilege over these items under R.C.M. 505.
3

4

20866

don’t know. But, the reason we don’t know is because of the Government’s egregious
misconduct.
17. The Defense has not located any cases with facts directly analogous to the instant case—this
is likely because no other trial counsel in reported history has so completely missed-the-mark on
its discovery obligations. Normally, in cases involving discovery violations, trial counsel has
withheld one or two particular items of discovery from the defense, which the defense then asserts
post-trial was prejudicial to a substantial right of the accused. See, e.g., United States v. Adens,
56 M.J. 724 (A. Ct. Crim. App. 2002). To the Defense’s knowledge, there is no case where the
Government just did not understand how basic discovery works.
18. With that said, there is precedent for a court to dismiss charges where the prosecution has
committed willful, egregious or grossly negligent discovery violations. In United States v.
Koubriti, 336 F. Supp. 2d 676 (E.D. Mich. 2004), the first case prosecuted and tried in the
aftermath of September 11th, the defendant alleged that the government had not fully met its
discovery obligations under Brady and Giglio and that it had engaged in a pattern of misconduct.
After the defendants were convicted of charges of, inter alia, conspiracy to provide material
resources to terrorists, the defense discovered that “at least one document [ ] was intentionally not
disclosed but unquestionably should have been.” Id. at 678. After being made aware of this
issue, the court ordered a wholesale review of the government’s files, a review that took well over
six months.5 The review revealed a pattern of prosecutorial discovery violations:
As thoroughly detailed in the Government's filing, at critical junctures and on
critical issues essential to a fair determination by the jury of the issues tried in
this case, the prosecution failed in its obligation to turn over to the defense, or to
the Court, many documents and other information, both classified and nonclassified, which were clearly and materially exculpatory of the Defendants as
to the charges against them. Further, as the Government's filing also makes
abundantly clear, the prosecution materially misled the Court, the jury and the
defense as to the nature, character and complexion of critical evidence that
provided important foundations for the prosecution’s case.
As the Government’s filing also makes clear, these failures by the prosecution
were not sporadic or isolated. Rather, they were of such a magnitude, and were
so prevalent and pervasive as to constitute a pattern of conduct, that when all of
the withheld evidence is viewed collectively, it is an inescapable conclusion that
the Defendants’ due process, confrontation and fair trial rights were violated
5

The court indicated at p. 678:
It is a fair statement that at the inception of this review no one, least of all the Court, could have
anticipated the nature and scope of the issues—not to mention the sheer number of documents—
that would ultimately be involved in this investigation. (Just one complicating factor, for example,
was the necessity for the Court to review many classified documents and for the Court to seek
security clearance for its staff and defense counsel, a time consuming process.) Certainly, no one
could have imagined last winter that it would be almost autumn before the review was completed
and a resolution at hand.

5

20867

and that the jury’s verdict was infected to the point that the Court believes there
is at least a reasonable probability that the jury’s verdict would have been
different had constitutional standards been met.
Id. at 680-81.
19. The judge then stated “one might well ask why and how this happened.” Id. at 861. The
However, it is sufficient to say here that two things are obvious to the Court
from both its review of the Government’s filing, as well as its own independent
review of all the documents and evidence presented to it. First, the prosecution
early on in the case developed and became invested in a view of the case and
the Defendants' culpability and role as to the terrorism charges, and then simply
ignored or avoided any evidence or information which contradicted or
undermined that view. In doing so, the prosecution abandoned any objectivity or
impartiality that any professional prosecutor must bring to his work. It is an
axiom that a prosecutor must maintain sufficient distance from his case such
that he may pursue and weigh all of the evidence, no matter where it may lead,
and then let the facts guide him. That simply did not happen here.
More broadly, when viewed against the backdrop of the September 11 attacks
upon our Nation and the public emotion and anxiety that has ensued, the
prosecution's understandable sense of mission and its zeal to obtain a conviction
overcame not only its professional judgment, but its broader obligations to the
justice system and the rule of law.
Id. Accordingly, the government in that case moved to dismiss the conspiracy charges. The court
granted the motion, stating that “the Government’s decision could not have been an easy one and,
no doubt, is one that will come in for criticism and second-guessing from some quarters.
However, it is the right decision.” Id. at 679.
20. Like the Koubriti case, this case is one that is high-profile and has attracted a great deal of
domestic and international scrutiny. No doubt, the Government in this case feels compelled to
convict the accused and make an example out of him. But, as the court in Koubriti points out, this
does not mean that the Government can ignore its “broader obligations to the justice system and
the rule of law.” See id. at 861. In this case, it has done just that.
21. In United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008), the Ninth Circuit affirmed the
district court’s decision to dismiss the indictment due to reckless violations of the government’s
discovery obligations in that case. The Ninth Circuit stated:
We have never suggested, however, that “flagrant misbehavior” does not
embrace reckless disregard for the prosecution’s constitutional obligations.
Here, although the case involved hundreds of thousands of pages of discovery,
the AUSA failed to keep a log indicating disclosed and nondisclosed materials.

6

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The AUSA repeatedly represented to the court that he had fully complied with
Brady and Giglio, when he knew full well that he could not verify these claims.
When the district court finally asked the AUSA to produce verification of the
required disclosures, he attempted to paper over his mistake, offering “in an
abundance of caution” to make new copies “rather than find the record of what
we turned over.” Only when the court insisted on proof of disclosure did the
AUSA acknowledge that no record of compliance even existed. Finally, the
dates on many of the subsequently disclosed documents post-date the
beginning of trial, so the government eventually had to concede that it had
failed to disclose material documents relevant to impeachment of witnesses
who had already testified. In this case, the failure to produce documents and to
record what had or had not been disclosed, along with the affirmative
misrepresentations to the court of full compliance, support the district court’s
finding of “flagrant” prosecutorial misconduct even if the documents
themselves were not intentionally withheld from the defense. We note as
particularly relevant the fact that the government received several indications,
both before and during trial, that there were problems with its discovery
production and yet it did nothing to ensure it had provided full disclosure until
the trial court insisted it produce verification of such after numerous
complaints from the defense.
Id. at 1085. The court expressed particular concern with the government’s position on appeal.
On appeal, the government had tried to argue that the withheld material was not, in fact, Brady
material. The court was disheartened by the government’s tactics on appeal, stating that “[the
government] still has failed to grasp the severity of the prosecutorial misconduct involved here, as
well as the importance of its constitutionally imposed discovery obligations. Accordingly,
although dismissal of the indictment was the most severe sanction available to the district court, it
was not an abuse of discretion.” Id. at 1088.
22. There are several other cases where courts dismissed charges in order to remedy egregious
discovery violations. In United States v. Lyons, 352 F. Supp. 2d 1231 (M.D. Fla. 2004), the court
dismissed with prejudice the charges against the defendant because of the prejudice caused by the
Government’s numerous and flagrant Brady and Giglio violations. The court noted that although
dismissal was an unusual remedy, it was required in this case because “the Government [ ]
perpetuated an unjust deprivation of [defendant’s] liberty throughout [the] case . . . despite
obvious concerns about the Government’s investigative and prosecutorial methods, despite actual
notice of Brady and Giglio problems, and with unconscionable delay and prejudice to [the
defendant] as well as the judicial process.” Id. at 1251. In another case, United States v. Dollar,
the trial court dismissed the conspiracy charges with prejudice given that the “defense counsel
ha[d] been unrelenting in their effort to obtain Brady materials” and “[t]he United States’ general
response ha[d] been to disclose as little as possible, and as late as possible.” 25 F. Supp. 2d 1320,
1332 (N.D. Ala. 1998). The court recognized that “[i]n its determined effort to convict the
defendants, the United States ha[d] trampled on their constitutional right to Brady materials.” Id.
The words could not be more apt if spoken about the Government in this case.

7

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23. There is no military authority directly on point. Again, this is because there likely has not
been such a flagrant abdication of discovery responsibilities by trial counsel. However, military
appellate case law reveals that our courts take the issue of discovery violations very seriously and
recognize the inherent authority of the trial judge to fashion appropriate remedies. See United
States v. Trigueros, 69 M.J. 604, 608 (A. Ct. Crim. App. 2010) (military judge fashioned a
remedy that precluded the government from presenting any victim impact evidence or any
aggravation evidence in its sentencing case in chief).
24. In United States v. Adens, 56 M.J. 724 (A. Ct. Crim. App. 2002), the Army Court of Criminal
Appeals set aside the findings of guilty and the sentence in a case where the prosecutor withheld
discovery from the defense. The defense had specifically requested certain physical discovery
under R.C.M. 702(a)(2)(A); the government, despite having this evidence in its possession, did
not provide the requested discovery because it wanted to gain the maximum tactical advantage
from this evidence and use it on rebuttal. Id. at 733-43. On appeal, the government conceded that
this violated R.C.M. 701(a)(2)(A), but argued that no prejudice ensued. The appellate court
disagreed. Importantly, it found that equal opportunity to obtain evidence is a “substantial right
of the accused” within the meaning of Article 59(a), independent of the due process rights
provided under Brady. It held that when a trial counsel fails to disclose information pursuant to a
specific request or when prosecutorial misconduct is present, the evidence is considered material
unless the government can show that failure to disclose was harmless. Id. at. 733. While the trial
judge attempted to fashion a remedy (i.e. the government would not be able to present “any
evidence” concerning the withheld materials), she did not go far enough. Id. at 734. In particular,
the trial judge “failed to instruct the members to disregard the testimony about [the evidence] by
[the special agent] on redirect examination.” Id. The court thus set aside the findings of guilt and
the sentence, stating:
Professional advocacy may be aggressive, but it does not include making
personal attacks on one’s adversary. As a result of the personal animosity
between the principal litigators, trial counsel lost his focus and forgot that “[a]s
a representative of a sovereign, a prosecutor’s duty is not to win the case, but to
ensure that justice is done.” “The purpose of a criminal trial is truth finding
within constitutional, codal, Manual, and ethical rules.” Counsel must always be
mindful that the Rules of Professional Conduct applicable to Army courtsmartial provide that a lawyer shall not “unlawfully obstruct another party's
access to evidence ... having potential evidentiary value.” AR 27–26, Rule 3.4
(Fairness to Opposing Party and Counsel) (emphasis added); The comment to
Rule 3.4 explains:
The procedure of the adversary system contemplates that the evidence in a case
is to be marshalled competitively by the contending parties. Fair competition in
the adversary system is secured by prohibitions against destruction or
concealment of evidence, improperly influencing witnesses, obstructive tactics
in discovery procedure, and the like.
Considering the purposes behind the broad military discovery rule and the intent
of the rules of professional responsibility, the successful trial counsel will

8

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engage in full and open discovery at all times and will scrupulously avoid
gamesmanship and trial by ambush, which have no place in Army courtsmartial.
Id. at 735 (citations omitted)(emphasis in original).
25. In United States v. Jackson, 59 M.J. 330 (C.A.A.F. 2004), the Court of Appeal for the Armed
Forces set aside the findings and sentence in a case where the government committed a discovery
violation under R.C.M. 701(a)(2)(B). In that case, the defense had an ongoing discovery request
for information related to quality control at the laboratory that tested the accused’s specimen in a
prosecution for methamphetamine. The court concluded that the failure to turn the report over to
the accused deprived the defense of information that could have been considered by the members
as critical on a pivotal issue in the case—the reliability of the laboratory’s report that Appellant’s
specimen produced a positive result. Id. at 335-36. See also United States v. Webb, 66 M.J. 89
(C.A.A.F. 2008) (military judge did not abuse discretion in ordering new trial where government
did not disclose impeaching evidence concerning witness who was the assigned observer of
accused’s provision of urine sample for drug testing).
26. The findings and sentence were also set aside in United States v. Stewart, 62 M.J. 668 (A.F.
Ct. Crim. App. 2006) owing to the government’s discovery violations. Stewart involved a
prosecution where the alleged victim claimed that she had been drugged and raped. The trial
counsel requested, inter alia, all of the victim’s medical records and any evidence that might tend
to negate the guilt of the accused (i.e. Brady material). The defense was told that it was provided
with the “relevant portions” of the medical records. Id. at 669. After a discovery dispute over the
relevant medical records, the judge reviewed the records in camera and determined that about 24
pages (20% of the total) would be released to the defense. Id. at 670. At trial, the trial counsel
referred to documents that had not been released to the defense, at which time the defense learned
of other important evidence (in particular, that the victim had taken several medications that could
explain her symptoms on the night of the alleged rape). The defense moved for a mistrial. The
military judge did not grant a mistrial, but instead suggested a number of options to alleviate the
impact of the tardy disclosure. The accused was convicted and sentenced. On appeal, the court
concluded that “[t]he pages withheld by the government and the military judge contained
evidence that could undermine every part of the government’s case.” Id. at 671. The court
continued:
We are sympathetic to the difficulties experienced by trial counsel in dealing
with sensitive medical information. DW’s reluctance to permit the appellantss
counsel access to her records undoubtedly played a significant part in the trial
counsel’s decision to withhold them. That reluctance, however, did not amount
to a bar against their release. Trial counsel still must examine evidence in the
possession, custody, or control of the military authorities, and disclose
information favorable to the defense.
While it is apparent trial counsel here made a conscientious effort to balance
their discovery obligations against DW’s privacy concerns, the presence or
absence of good faith is not the issue. “The suppression by the prosecution of

9

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evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Trial counsel should not have withheld
the records.
… Whenever the government withholds evidence, it assumes the risk that—as
here—the evidence will turn out to be material and favorable to the defense.
Id. at 671-72.
27. Unfortunately, there are far too many of these discovery and Brady violations in our military
justice system. See United States v. Trigueros, 69 M.J. 604, 608 (A. Ct. Crim. App. 2010)
(government failed to disclose medical records of health counseling sessions which victim
attended following alleged rape); United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004) (military
judge erred in not ordering government to disclose to the defense information about lead
investigator which could have been used for impeachment); United States v. Behenna, 70 M.J.
521 (A. Ct. Crim. App. 2011) review granted 2012 CAAF LEXIS 61 (January 13, 2012).
28. The Government does not get a “do over” in this case. The Government has so completely
misapprehended its professional and constitutional obligations that the case cannot be saved.
These are, as one judge remarked, “self-inflicted wounds.” United States v. Lawrence, 19 M.J.
609, 614 (A.C.M.R. 1984). They could have easily been avoided if the Government had played
fairly and within the bounds of zealous professional advocacy. Here, the Government appears to
have committed the same fatal error as the prosecutors in Koubriti: the Government “abandoned
[the] objectivity or impartiality that any professional prosecutor must bring to his work.” 336 F.
Supp. 2d at 681. In so doing, the Government has caused irreparable prejudice to the accused.
CONCLUSION
29. For these reasons, and for the reasons outlined in the Defense’s Reply to the Government’s
Response to the Defense Motion to Compel Discovery, and in accordance with the Rules for
Courts-Martial (R.C.M.) 701(g)(3)(D), the Defense moves to dismiss all charges in this case with
prejudice.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

10

20872

IN

THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

HHC, U.S. Army Garrison

)
)
)
)
)
)

Joint Base Myer-Henderson Hall

)

UNITED STATES
v.

Fort Myer, Virginia 22211

)

PROTECTIVE ORDER
FOR
CLASSIFIED INFORMATION

DATED:

H.o

mar

c;?(D I�

1. This matter comes before the Court upon motions by both defense and the prosecution for a
Protective Order to prevent the unauthorized disclosure or dissemination of classified national
security information which will be reviewed by, or made available to, or is otherwise in the
possession of, the accused and the parties in this case.
2. The Court finds this case will involve information that has been classified in the interest of
the national security. The storage, handling and control of this information will require special
security precautions mandated by statute, executive order, and regulation, and access to which
requires the appropriate security clearances and a "need-to-know." Under Executive Order
13526, "need-to-know" means a determination within the executive branch in accordance with
directives issued pursuant to this order that a prospective recipient requires access to specific
classified information in order to perform or assist in a lawful and authorized governmental
function.
3. Pursuant to the authority granted under Military Rule of Evidence (MRE) 505; the general
supervisory authority of the Court; and in order to protect the national security, it is hereby
ORDERED that the Prosecution's Motion for a Protective Order under MRE 505(g)(l) is
GRANTED; and it is further ORDERED that:
a. Purpose. The purpose of this Order is to establish the procedures that must be
followed by the accused, all defense counsel of record, members of the defense team, all other
counsel involved in this case, any Court personnel, and all other individuals who receive access
to, or otherwise are in possession of, classified documents or information in connection with this
case.
b. Application. The procedures set forth in this Protective Order and MRE 505 shall
apply to all pre-trial, post-trial, and appellate aspects of this case, and may be modified from time
to time by further order of the Court acting under MRE 505 and the Court's inherent supervisory
authority to ensure a fair and expeditious trial.
c. Definition. The following definitions apply.

APPE�ATE EXHIBIT

)( X )( \ I

Page_!__ ofPage(s) 8

20873

(1) As used herein, the terms "classified national security information and
documents," "classified information," and "classified documents" refer to:
(a) Any classified document or information which has been classified by
any Executive Branch agency in the interests of national security or pursuant to Executive Order
13526 or its predecessor Orders as "CONFIDENTIAL," "SECRET," or "TOP SECRET," or
additionally controlled as "SENSITIVE COMPARTMENTED INFORMATION (SCI);"
(b) Any document or information, regardless of its physical form or
characteristics, now or formerly in the possession of a private party, which has been derived
from United States government information that has been classified by the United States
pursuant to Executive Order 13526 or its predecessor Orders as "CONFIDENTIAL,"
"SECRET," or "TOP SECRET," or additionally controlled as "SENSITIVE
COMPARTMENTED INFORMATION (SCI);"
(c) Any other classified information, in any form, previously known to the
accused or defense counsel;
(d) Any document and information, including non-written, aurally
acquired information, which the accused or defense counsel have been notified orally or in
writing that such document or information may be classified; or,

.

(e) Any information, regardless of place or origin and including "foreign
government information," as that term is defined in Executive Order 13526, that could
reasonably be believed to contain classified information; and,

(f) Any information obtained from any agency, department or other
governmental entity, including a member of the intelligence community, as defined in 50 U.S.C.
§ 401a, that could reasonably be believed to contain classified information.
(2) As used herein, the words "documents" or "information" shall include, but
are not limited to, all written or printed matter of any kind, formal or informal, including
originals, conforming copies and non-conforming copies (whether different from the original by
reason of notation made on such copies or otherwise), and further include, but are not limited to:
(a) Papers, correspondence, memoranda, notes, letters, reports,
summaries, photographs, maps, charts and graphs, inter-office and intra-office communications,
notations of any sort concerning conversations, meetings, or other communications, bulletins,
cables, telexes, telecopies, teletypes, telegrams, and telefacsimiles, invoices, accountings,
worksheets, and drafts, alterations, modifications, changes and amendments of any kind to the
foregoing;
(b) Graphic or oral records or representations of any kind, including, but
not limited to, photographs, maps, charts, graphs, microfiche, microfilm, videotapes, sound
recordings of any kind, and motion pictures;

2

20874

(c) Electronic, mechanical or electric records of any kind, including, but
not limited to, tapes, cassettes, disks, recordings, films, typewriter ribbons, word processing or
other computer tapes or disks, and all manner of electronic data processing storage; and
(d) Information acquired aurally, or in any other manner not detailed in
(a) through (c), above.
reviewing, reading, learning, or otherwise coming to know in any manner any classified
information.
(4) As used herein, "government facility" shall mean a United States government
building that is approved for handling and storage of classified information up to the "SECRET"
level.
(5) As used herein, the "court security officer" is Mr. Jay Prather for this case, for
the purpose of supervising security arrangements necessary to protect from unauthorized
disclosure any classified documents or information submitted or made available to the Court in
connection with this case.
d. Declassification. All classified documents, and information contained therein, shall
remain classified unless the documents bear a clear indication that they have been declassified by
the agency or department that is the original classification authority's agency of the document or
the information contained therein (hereinafter, the "originating agency").
e. Public Domain. Information in the public domain is ordinarily not classified.
However, if classified information is reported in the press or otherwise enters the public domain,
the information does not lose its classified status merely because it is in the public domain. And
information reported in the press or otherwise in the public domain may be considered classified
and subject to the provisions of MRE 505 if the information in fact remains classified and is
confi1mation corroborates the information in question. Accordingly, any attempt by the accused
or defense counsel to have classified information that has been reported in the public domain
confirmed or denied at trial or in any public proceeding in this case shall be governed by MRE
505 and all provisions of this Order.
f. Security Experts. Detailed security experts shall provide advice concerning
procedures governing the appropriate storage, handling, and transmittal of presumptively
classified documents and information, pursuant to this order and applicable regulations and
federal law. Detailed security experts should be consulted by defense and trial counsel regarding
any question of derivative classification or any other matter that could reasonably be believed to
relate to classified information, but are not authorized to make classification determinations; that
is, whether information is properly classified.
g. Trial Counsel. The Court has been advised that all "trial counsel" detailed to this case
have the requisite security clearances to have access to the classified documents and information
3

20875

that relates to this case. All references to trial counsel, as used in this Order, refer only to the
attorneys listed in this paragraph.
h. Protection of Classified Information. The Court finds that, in order to protect the
classified documents and information involved in this case, no person, except the military judge,
trial counsel, members of the prosecution team, appropriately cleared United States Government
personnel, personnel of the originating agency, defense counsel, the accused, and members of the
defense team shall have access to the classified documents and information in this case. No
defense counsel or member of the defense team shall have access to any classified documents
and information in this case unless that person shall first have:
(1) Signed the Memorandum of Understanding in Appendix A, agreeing to
comply with the terms of this Order. The signed Memorandum of Understanding shall be filed
with the Court and added to the appellate re.cord. The substitution, departure, or removal for any
reason from this case of defense counsel, or anyone associated with the defense team, shall not
release that person from the provisions of this Order or the Memorandum of Understanding
executed in connection with this Order.
(2) Persons other than trial counsel, appropriately cleared United States
Government personnel, and personnel of the originating agency, can only obtain access to
classified documents and information after having been granted a security clearance through
coordination with the trial counsel and with permission of the Court, either through this Order
(for those named in paragraph 3(i) below), or by a separate Order sought by the defense. The
Government shall have the opportunity to object to and litigate the appropriateness of any
additional disclosures of classified information under MRE 505. Before any person other than
trial counsel, appropriately cleared United States Government employees, and personnel of the
originating agency, are permitted by the Court to inspect and review classified documents or
information, that person must also sign the Memorandum of Understanding.

·

i. Defense Counsel. Subject to the provisions of paragraph 3(h), defense counsel of
record shall be given access to classified documents and information as required by the
government's discovery obligations and otherwise as necessary to prepare for proceedings in this
case. This Order shall apply to any substituted counsel in the event that any defense counsel of
record discontinue their involvement in this matter, so long they meet all requirements under this
order. Any additional person whose assistance the defense reasonably requires may only have
access to classified documents and information in this case after obtaining approval, through the
trial counsel, from the Deputy Chief of Staff for Intelligence, United States Army pursuant to
Army Regulation 380-67, Personnel Security Program, paragraph 3-23/ The Government shall
have the opportunity to object to and litigate the appropriateness of any additional disclosures of
classified information under MRE 505.
j. Security Clearance. Unless already holding an appropriate security clearance and
approved for access to classified documents and information in this case, for the purpose of
that may be involved in this case, all persons whose assistance the defense or Court reasonably
requires in this case shall complete a standard Form 86 ("Security Investigation Data for
4

20876

Sensitive Position"), attached releases, and fingerprints, to be submitted to the trial counsel. The
trial counsel shall take all reasonable steps to process all security clearance applications.
k. Area of Review. Defense counsel shall only discuss, store, review, and otherwise
handle classified documents and information in an approved government facility. Defense
counsel shall prepare any and all pleadings, documents, or other substantive communications
containing classified information, in a government facility. The trial counsel shall ensure the
government facility will be outfitted with any secure office equipment requested by the defense
that is reasonable and necessary to the preparation of the accused's defense in this case. The
security experts detailed to the defense, in consultation with defense counsel, shall establish
procedures to assure that the government facilities are maintained and operated in the most
efficient manner consistent with the protection of classified documents arid information.
1. Procedures for Handling of Classified Information. Defense counsel and the defense
team shall have access to classified documents and information only as follows:

(1) All classified documents and information produced by the United States to
the defense counsel, in discovery or otherwise, and all classified documents and information
possessed, created, or maintained by .the defense counsel, shall be stored, maintained, and used
only in the government facility, as outlined in this ORDER;
·

(2) The defense counsel shall have free access to the classified documents and .
information made available to them in the government facility, and shall be allowed to take notes
and prepare documents with respect to those materials.
(3) No person, including the defense counsel, shall copy or reproduce any
classified documents and information in any form, except under the direct and on-site
supervision of the security experts detailed to the defense.
(4) All documents, pleadings, and substantive communications prepared by the
defense that do or may contain classified information, shall be transcribed, recorded, typed,
duplicated, copied, or otherwise prepared only by persons who have received an appropriate
approval for access to classified documents and information, and in the government facility on
the three provided laptop computers in accordance with the procedures approved by the security
experts detailed to the defense. All such documents and any associated materials (such as notes,
drafts, copies, typewriter ribbons, magnetic recordings, and exhibits) containing classified
information. Nothing in this ORDER shall be construed to authorize trial counsel access to
any attorney-client privileged information;

(5) The defense counsel shall discuss classified documents and information only
within the government facility, and shall not discuss or attempt to discuss classified documents
or information over any standard commercial telephone instrument or office intercommunication
system, including but not limited to the Internet.
(6) The defense shall not disclose, without prior approval by the United States in
the first instance or by the Court upon notice to and opportunity to be heard by the United States,
5

20877

the contents of any classified documents or information to any person not authorized pursuant to
this Order, including defense witnesses, except the Court, Court personnel, and the trial counsel,
but only if the court security officer verifies (1) the intended recipient holds the required security
clearance; (2) that the intended recipient has signed the Memorandum of Understanding in
Appendix A; and (3) the intended recipient has a need-to-know. Trial counsel shall be given an
opportunity to be heard by the Court in response to any defense request to the Court for
disclosure to a person not named in this Order. Any person approved by the United States in the
first instance or by the Court upon notice to and an opportunity to be heard by the United States
for disclosure under this paragraph shall be required to obtain the appropriate security clearance
as necessary, to sign and submitto the Court the. Memorandum of Understanding in Appendix A,
and to comply with all terms and conditions of this Order. If preparation of the defense requires
that classified documents or information be disclosed to persons not named in this Order, then,
upon approval by the Court, the trial counsel shall promptly seek to obtain security clearances for
them at the request of defense counsel.
The defense shall provide the trial counsel with the names of any intended recipients(s) and
notice of the classified information that is expected to be disclosed or elicited pursuant to MRE
505(h)(3). Notice shall be provided in writing, no less than ten duty days to allow the trial
counsel to file an objection, if any, under MRE 505 with the Court. At all times that defense
discloses classified information under this subparagraph, a defense security expert shall be
present to assist the defense in complying with this subparagraph.
(7) If trial counsel advises the defense counsel, in writing, that certain classified
information or documents may not be disclosed to the accused, then defense counsel shall not
disclose such information or documents to the accused without prior concurrence of the trial
counsel, absent such concurrence, approval of the Court. Trial counsel shall be given an
opportunity to be heard in response to any defense request for disclosure to the accused of
classified information.
m. Restrictions on Accused's Access to Classified Information The accused and defense
are not authorized to discuss, handle, review or otherwise transmit classified information outside
of an approved government facility.
n. Filings with the Court. The following rules apply with respect to filings.
(1) Until further order of this Court, any pleading, document, or other substantive
communication filed by the defense counsel that contains classified information or information
reasonably believed to be classified, shall be filed with the Court through the court security
officer either by approved courier or through SIPRNET. The date and time of submission to the
·court security officer shall be considered the date and time of filing. At the time of making a
submission to the court security officer, trial counsel and defense counsel shall notify the Court
and other party via electronic communication that a submission was made to the court security
officer and provide a title of the document, which does not disclose any potentially classified
information. The court security officer shall promptly deliver to the Court and trial counsel, any
filing by the defense counsel that contains classified information.

6

20878

(2) The court security officer shall promptly examine any pleading or other
document, filed by the defense counsel, through their security experts or approved courier, and
verify whether the pleading or document contains classified information.
o. Government Filings. Any pleading or other document filed by the trial counsel
containing classified information shall be filed with the Court through the court security officer
following the same procedures as outlined in paragraph 3(n). The date and time of physical
submission to the court security officer shall be considered the date and time of the filing. The
court security officer shall immediately deliver to the Court and defense counsel (unless such
filing is ex parte) any pleading or document to be filed by the government that contains classified
information.
p. Violations of this Order. Any unauthorized disclosure of classified information may
constitute violations of the Uniform Code of Military Justice as well as criminal laws of the
United States, including but not limited to, the provisions of Sections 641, 793, 794, 798, 952,
and 1924, Title 18, United States Code, and Sections 421 and 783(b), Title 50, United States
Code. Attorneys who violate this Order may be reported to their State Bar Association. In
addition, any violation of the terms of this Order shall be brought immediately to the attention of
this Court and may result in a charge of contempt of court and possible referral for criminal
prosecution. Any breach of this Order may also result in the termination of an individual's
unauthorized disclosure, retention, or negligent handling of classified documents or information
could cause serious damage, and in some cases, exceptionally grave damage to the national
security of the United States, or may be used to the advantage of a foreign nation against the
interests of the United States. This Protective Order is to ensure that those authorized to receive
classified information in connection with this case will never divulge that information to anyone
not authorized to receive it, without prior written authorization from the originating agency and
in conformity with this Order. The Court will take into consideration whether any counsel relied
upon their security experts appointed by the United States Government to assist them.
q. Property of the United States. All classified documents and information to which
defense counsel and defense team members have access in this case are now and will remain the
property of the United States. The defense counsel and defense team members who receive
classified documents and information shall return all such classified documents and information
in their possession obtained through discovery from the United States in this case, or for which
they are responsible because of access to classified documents and information, upon demand of
the court security officer. The notes, summ aries, and other documents prepared by the defense
that do or may contain classified information shall remain at all times in the government facility
under the guidance of the security experts detailed to the defense for the duration of this case. At
the conclusion of this case, all such notes, summaries, and other documents, which the defense
counsel wants to be retained, will be sealed and provided to the Criminal Law Division, Office of
the Staff Judge Advocate, U.S. Army Military District of Washington for proper storage during
the appellate process, if applicable. Any other such documentation shall be destroyed by the
security experts detailed to the defense in the presence of defense counsel.

7

20879

r. Further Protective Order. Nothing in this Order shall preclude the United States from
seeking a further protective order pursuant to MRE 505 as to particular items of discoverable
material.
s. Subsequent Action. A copy of this Order shall be issued forthwith to counsel for the
accused, who shall be responsible for advising the accused and defense team members of the
contents of this Order. The defense counsel and defense team members to be provided access to
classified information shall execute the Memorandum of Understanding appended to this Order,
and defense counsel shall file executed originals with the Court and the court security officer and
serve executed originals of such document upon the United States. The execution and filing of
the Memorandum of Understanding is a condition precedent for defense counsel, defense team
members, and any other person working for the defense to have access to classified information.
It is also a condition precedent for the accused and any defense witness to have access to
classified information pursuant to paragraph 3(1)(6) above.

tf'day of March 2012.

ORDERED, this th� /
t

£)/�

DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit

8

20880

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

)
)
)
)
)
)
)
)

V.

HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

MEMORANDUM OF
UNDERSTANDING

1, Having familiarized myself with the applicable laws, I understand that I have already received
and/or may be the future recipient of information and documents which pertain to the national
security of the United States and which are the property of the United States, and that such
infonnation and documents, together with the methods of collecting such information, are
classified according to security standards set by the United States govemment.
2, I agree that I shall never divulge, publish, or reveal, either by word, conduct, or any other
means, such classified information or documents unless specifically authorized in writing to do
so by an authorized representative of the United States government, or as authorized by the Court
pursuant to Military Rule of Evidence (MRE) 505 or the Protective Order entered in the abovecaptioned case, or as otherwise ordered by the Court,
3, I agree that this Memorandum of Understanding and any other nondisclosure agreement
signed by me in connection with this case will remain forever binding upon me,
4, I have received, read, and understand the Protective Order entered by the First Judicial Circuit
in the above-captioned case, and I agree to comply with the provisions contained therein,
5, I declare under penalty of perjury under the laws of the United States that the foregoing is tme
and correct to the best of my knowledge, information, and belief.

Name:
Date and Place of Birth:

(signature)
Date:

20881

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: DEFENSE MOTION
V. TO COMPEL DEPOSITIONS

U.S. Army,
HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall DATED: 16 March 2012
Fort Myer, Virginia 22211

Defense moves this Court to Compel Oral Depositions prior to trial in accordance with RCM

702(c)(2). Government opposes. After considering the pleadings, evidence presented, and argument of
counsel, the Court ?nds and concludes the following:

Background:

1. Defense moves the Court to Order oral depositions of the following individuals:

a. CPT James Kolky, 1? Cavalry Division, Fort Hood, Texas, Brigade S-2
. (Defense proffers he will testify about his classi?cation

review of the three Apache gun videos that were sent to his Division by FORSCOM.
Speci?cally, he will testify that the videos were not classi?ed at the time of their alleged
release. However, he will testify that he believes that videos should have been classi?ed.
He will also testify regarding his classi?cation detennination).

b. RADM Kevin M. Donegan, Director of Operations for United States Central Command, 7115
South Boundary Boulevard, MacDill Air Force Base, Florida 33621,

(Defense proffers that RADM Donegan conducted classi?cation
reviews on two PowerPoint slide presentations of official reports originated by USCENTCOM. The
PowerPoint presentations are the subject of Speci?cation 10 of Charge II. RADM Donegan will
testify regarding his classi?cation determination and his belief of the impact on national security due

to the release of the infonnation.)

c. Robert E. Betz, USCYBERCOM Chief Classi?cation Advisory Officer, the Government
has not provided the defense with contact information for Mr. Betz. (Defense proffers Mr.
Betz will testify about his classi?cation detennination concerning the alleged chat logs
between Mr. Lamo and PFC Bradley Manning. Speci?cally, he will testify about his
classi?cation assessment of information discussed in the alleged chat logs.)

d. LtGen Robert E. Schmidle, Deputy Commander U.S. Cyber Command,
LtGen Schmidle, is the Original Classi?cation Authority

(OCA) over the information discussed by Mr. Betz. (Defense proffers LtGen Schmidle will
testify that he concurs with the classi?cation determination and impact statements made by

APPELLATE EXHIBIT x?s 33
1 of K9

20882

Mr. Betz. The Defense would like to question him regarding his declaration and the basis for
his belief.)

e. VADM Robert S. Harward, USCENTCOM, Deputy Commander, MacDill Air Force Base,
Florida 33621, (Defense proffers VADM Harward will
testify concerning his classi?cation review and classi?cation detennination concerning the CIDNE
Afghanistan Events, CIDNE Iraq Events, other brie?ngs and the BE22 PAX.wmv video. Speci?cally,
VADM Harward will testify conceming his classi?cation determination and his belief of the impact on
national security ?'om having this information released to the public.)

f. Patrick F. Kennedy, Under Secretary of State for Management. (Defense proffers that
Government has not provided contact information for Mr. Kennedy; that Mr. Kennedy will testify
concerning his review of the disclosure of Department of State Diplomatic Cables stored within the
Net-Centric Diplomacy server and part of SIPDIS. Mr. Kennedy will testify conceming his
classi?cation detennination and the impact of the release of the infonnation on national security.)

efense proffers that RADM Woods will testify concerning his
review of the disclosure of ?ve documents, totaling twenty-two pages. RADM Woods will testify
concerning his classi?cation determination and his belief regarding the impact of the release of the
information on national security).

h. Mr. Robert Roland. (Defense proffers that the government has not provided contact infonnation
for Mr. Roland).

2. Defense argues the requested depositions of Mr. Kolky and Mr. Roland are needed because the
witnesses were essential witnesses and should have been produced in person at the Article 32 hearing. An
additional ground for the remaining depositions is that the Article 32 Investigating O?icer improperly
detennined that the witnesses were not reasonably available at the Article 32 hearing. The witnesses were
essential witness and should have been produced in person at the Article 32 hearing. Defense
argues that the depositions are necessary because the Govemment impeded Defense access to interview
the witnesses.

Factual Findings:
The Court adopts the following factual ?ndings as stipulated to by the parties:

1. PFC Manning is charged with ?ve speci?cations of violating a lawful general regulation, one
speci?cation of aiding the enemy, one speci?cation of disorders and neglects to the prejudice of good
order and discipline and service discrediting, eight speci?cations of communicating classi?ed
information, ?ve speci?cations of stealing or knowingly converting Government property, and two
speci?cations of knowingly exceeding authorized access to a Govemment computer, in violation of
Articles 92, 104, and 134, UCMJ, 10 U.S.C. 892, 904, 934 (2010).

2. The original charges were preferred on 5 July 2010. Those charges were dismissed by the convening
authority on 18 March 2011. The current charges were preferred on 1 March 2011. On 16 December
through 22 December 2011, these charges were investigated by an Article 32 10. The charges were
referred without special instructions to a general court-martial on 3 February 2012.

3. The Defense requested the classi?cation detenninations during discovery on 15 November
2010. On or about November 2011 the Defense had all of the OCA classi?cation detenninations.

2 APPELLATE

ilf Pagels)

. ?i

20883

4. On 2 December 201 1, the Defense submitted its witness list to the Article 32 Investigating Of?cer
(IO), naming the seven OCAs. The witness list did not include Mr. Roland. On 7 December, the
Government responded to the Defense?s witness list. The Government objected that CPT Kolky was not
relevant. The Government requested the IO to ?nd each OCA not reasonably available for the Article 32
given his duty position because the difficulty, delay, and e?'ect on military operations outweighed the
signi?cance of his testimony under MRE 405(g)( On 8 December 201 1, the Defense challenged the
Govemment?s position that the OCAs were not reasonably available.

5. On 14 December 2011, the IO made his detenninations regarding defense requested witnesses. In
relevant part, the 10 found:

CPT Kolky not relevant to the form of the charges, the truth of the charges or infonnation as may be
necessary to make an infonned recommendation as to disposition; speci?cally; whether three Apache gun
videos that were sent to his Division were not classi?ed at the time of their alleged release and whether
they should have been, recognizing that the government states the video is not classi?ed and doesn?t
allege it is classi?ed, is not relevant to a detennination as to whether PFC Manning committed the
charged offenses and, if so, what the disposition of those charges should be.

RADM Donegan not reasonably available because while his testimony is relevant, he is located in
Florida and is Director of Operations; the signi?cance of his expected testimony with
respect to his classi?cation detenninations concerning the two PowerPoints at issue does not outweigh the
difficulty, expense, and effect on military operations of obtaining his presence in the investigation.

Mr. Betz - not reasonably available because while his testimony is relevant, he is CY Chief
Classi?cation Advisory Officer, the signi?cance of his expected testimony with respect to his
classi?cation detenninations concerning the alleged chat logs between Mr. Lamo and PFC Manning does
not outweigh the difficulty, expense, and effect on military operations of obtaining his presence in the
investigation.

LTG Schmittle - not reasonably available because while his testimony is relevant, he is
Deputy Commander; the signi?cance of his expected testimony with respect to his classi?cation
detenninations concerning the alleged chat logs between Mr. Lamo and PFC Manning does not outweigh
the di?iculty, expense, and effect on military operations of obtaining his presence in the investigation.

VADM Harward - not reasonably available because while his testimony is relevant, he is located in
Florida and is CENT Deputy Commander; the signi?cance of his expected testimony with respect
to his classi?cation determinations concerning the CIDNE Afghanistan events, CIDNE Iraq Events, other
brie?ngs, and the BE22 PAX.wmv video does not outweigh the dif?culty, expense, and effect on military
operations of obtaining his presence in the investigation.

Mr. Kennedy - not reasonably available because while his testimony is relevant, he is the Under Secretary
of State for Management; the signi?cance of his expected testimony with respect to his classi?cation
determinations concerning diplomatic cables does not outweigh the difficulty, expense, and effect on
military operations of obtaining his presence in the investigation.

RADM Woods - not reasonably available because while his testimony is relevant, he is Commander of
the Joint Task Force Guantanamo; the signi?cance of his expected testimony with respect to his
classi?cation determinations concerning the documents at issue does not outweigh the difficulty, expense,
and effect on military operations of obtaining his presence in the investigation.

of Pager 5) LO

-

Page 3

.
I

20884

6. The Defense also objected to the IO considering the OCA affidavits submitted IAW 28 U.S.C. 1746.

7. While the 10 was pondering whether to consider the OCA affidavits, the Government offered to have
the OCA testify telephonically. The defense objected to telephonic testimony.

8. On 23 January 2012, the Defense ?led a Request for Oral Deposition with the General Court-Martial
Convening Authority (GCMCA). On 1 February 2012, the GCMCA denied the Defense?s request ?nding
the IO did not improperly determine that the witnesses were not reasonably available and because there is
no evidence that the witnesses will be unavailable for trial if found relevant and necessary.

9. On 20 January 2012, the Defense ?led a Discovery Request asking for complete contact infonnation
for three OCAs. On 27 January 2012, the Government responded that it would not provide contact
infonnation for the OCAs because they were not Goverrunent witnesses but if they became Government
witnesses, the Government would assist in coordinating meetings for defense interviews.

10. On 1 February 2012, the Defense advised the Government of its intent to explore calling the OCAs as
witnesses and asked for contact infonnation. On 1 February 2012, the Government advised the Defense it
would provide contact infonnation and start working with each organization to detennine the best way for
the defense to contact them. On 29 February 2012 the Government has provided contact information for
Mr. Betz.

1 1. The Government advised the Court that for the 2 non-DoD OCA, the Defense may have to ?le a
request with the agency to interview the OCA IAW ouhy regulations promulgated 5 U.S.C. 301.
Defense disputes that ouhy applies when the U.S. is a party, citingAlexander v. Federal Bureau of
Investigation, 186 F.R.D. 66 (D.D.C. 1998). The Government offered to assist the Defense in contacting
the OCA and in the ouhy process, if applicable.

The Law:

1. Article 49, UCMJ and RCM 702 govern depositions in courts-martial. RCM 702 provides that a
deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the
case, it is in the interest of justice that the testimony of a prospective witness be taken and preserved for
use at an Article 32 investigation or for trial.

2. The purpose of a deposition is to preserve the testimony of an unavailable witness. Article 49(d) and
analysis to RCM 702(a).

3. Both Article 49 and RCM 702 states that a request for deposition may be denied only for good cause.
The discussion to the rule provides that the fact that a witness is or will be available for good cause in the
absence of unusual circumstances, such as the improper denial of a witness request at an Article 32
hearing, unavailability of an essential witness at an Article 32 hearing, or when the Government has

4. RCM 405(g)(l)(A) and provide that a relevant witness, to include a witness who is timely
requested by the accused, who is not cumulative shall be produced if reasonably available. The
investigating officer (IO) determines whether a requested relevant witness is reasonably available. A
witness is ?reasonably available? when the witness is located within 100 miles of the situs of the
investigation and the signi?cance of the testimony and personal appearance of the witness outweighs the
dif?culty, expense, delay, and effect on military operations of obtaining the witness? appearance.

4 Page Ll ol'Pagc(S) (D

APPELLATE

20885

5. RCM 405(g)(4)(B) provides in relevant part that the Article 32 can consider sworn statements over
the objection of the defense if the witness is not reasonably available. RCM 405 does not provide
authority for the 10 to consider unswom statements over the objection of the defense if the witness is not
reasonably available.

6. 28 USC 1746 provides in relevant part ?Wherever, under any law of the United States or under any
mle, regulation, order, or requirement made pursuant to law, any matter is required or pennitted to be
supported, evidenced, established or proved by the sworn declaration, veri?cation, certi?cate, statement,
oath, or af?davit, in writing of the person making the same, such matter may, with like force and effect be
supported, evidenced, established, or proved by the unsworn declaration, certi?cate, veri?cation, or
statement, in writing of such person which is subscribed by him as true under penalty of perjury, and
dated in substantially the following form: (1) If executed without the United States: declare (or
certify, verify, or state) under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on (date). (2) If executed within the United States, its territories,
possessions, or commonwealths: declare (or certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date).

7. RCM 405(g)(4)(B) is a law of the United States for purposes of 28 USC 1746 that allows proof of a
matter by swom statement. An Article 32 IO may consider an af?davit ?led IAW 28 USC 1746 to the
same extent he/she considers a sworn statement. Unswom declarations under 28 USC 1746 are elevated
to the level of sworn statements because they subject the declarant to the penalties of perjury under the
United States Code and False Swearing under Article 134, UCMJ (element 1 that the accused took an
oath or an equivalent).

8. A witness has no obligation to submit to a pretrial interview. US. v. Morgan, 24 93 (CMA 1987).
The Government may not induce a witness to refuse to answer questions of defense counsel. US. v.
Killebrew, 9 MJ 154 (CMA 1980).

Analysis:

1. The detennination regarding the requested Defense witnesses was not an improper denial. The
l0 properly balanced the signi?cance of each witness? testimony against the di?iculty, expense, and
effect on military operations of obtaining that presence in the investigation.

2. The IO properly considered the OCA affidavits IAW 28 USC 1746. This statute provides that such
affidavits may be used as proof under any law of the United States where any matter is required or
permitted to be proved by sworn statement. RCM 405(g)(4)(B) is such a law.

3. Military cases addressing deposition as a remedy for an Article 32 investigation where the IO
improperly denied production of an essential witness such as a key witness providing the only direct
evidence of a crime or the victim of a sexual assault. Unlike such witnesses, the OCA providing
classi?cation reviews are not essential witnesses.

4. The Govemment has not impeded the Defense access to the OCA. Recognizing the challenges of
coordinating interviews with government witnesses in high level positions, the Government has
volunteered to assist the defense in coordinating interviews and in any applicable ouhy process.

5. There is no evidence that any of the witnesses will be unavailable for trial should they be deemed
relevant and necessary.

6. There is good cause to deny the request for depositions for all of the witnesses.

APPELLATE xx?

5 Page or Pagets) (9

20886

RULING: Defense Motion to Compel Depositions is DENIED.

ORDERED, this the gz?day of March 2012.

DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit

5 Page_(9. ?fPa2e
APPELLATE EXHIBIT

20887

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES

ORDER TO COURT SECURITY
OFFICER AND DETAILED
SECURITY EXPERTS

V,

HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

DATED: 22 March 2012

1. This matter comes before the Court upon the Protective Order entered on 16 March 2012
(hereinafter "Protective Order") to prevent the unauthorized disclosure or dissemination of
classified national security information which will be reviewed by, or made available to, or is
otherwise in the possession of, the accused and the parties in this case.
2. The Courtfindsthis case will involve infbrmation that has been classified in the interest of
the national security. The storage, handling and control ofthis information will require special
security precautions mandated by statute, executive order, and regulation, and access to which
requires the appropriate security clearances and a "need-to-know," Under Executive Order
13526, "need-to-know" means a determination within the executive branch in accordance with
directives issued pursuant to this order that a prospective recipient requires access to specific
classified information in order to perform or assist in a lawful and authorized govemmental
ftinction,
3. Pursuant to the authority granted under Military Rule ofEvidence (MRE) 505; the general
supervisory authority of the Court; and in order to protect the national security, it is hereby
ORDERED that:
a. Definitions, All definitions listed in the Protective Order shall apply herein.
b. Court Security Officer. Mr, Jay Prather shall serve as the court security officer for
supervising security arrangements necessary to protectfromunauthorized disclosure any
classified documents or information submitted or made available to the Court in connection with
the above-referenced court-martial.
(1) The defense may request to disclose classified information to recipients not
authorized pursuant to the Protective Order, subject to the approval by the United States or the
Court. If such request is approved, the court security officer shall verify that the intended
recipients ofclassified information hold the required security clearance, sign the Memorandum
ofUnderstanding in Appendix A of the Protective Order, and have a need-to-know. The court
security officer may request the assistance of trial counsel to verify whether the intended
recipients hold the required security clearance. The court security officer shall promptly notify
APPELLATE EXHIBITjUULL/
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20888

the United States and the Court whether such intendedrecipients ofclassified infbrmation satisfy
these three requirements.
(2) The cotirt security officer shall accept receipt ofany pleading, document, or
other substantive communication filed byeitherpartythat contains classified inftormation or
infbrmation reasonably believed to be classifieds if required.
(3) The court security officer shall promptly examine any pleading or other
document filed by eitherpartythat contains classified inftormation or ir^fbrmation reasonably
believed to be classified to determine any question of derivative classification or any other matter
that could reasonably be believed to relate to classified infbrmation, but is not authorized to
make classification determinations; that is, whether infbrmation is properly classified and verify
whetherthe pleading or document contains classified infbrmation and is properlymarked.
(4) The court security officer shall promptly deliverto the Courtand opposing
party any filing by eitherparty that contains classified infbrmation, exceptftorany^^^^^^ filing
which shall be delivered only to the Court, absent Court approval
(5) The court security officer shall promptly notifytheprosecution(as the
Command^srepresentative), over SIPRNET or by other approved means under Army Regulation
380-5, ofany spillage of classifiedinftormation.
c. Security Experts, Detailed security experts shall provide advice to theirrespective
party concemingprocedures goveming the appropriate storage, handling, and transmittal of
classified documents and inftormation, pursuantto the Protective Order and applicable
regulations and federal law. Detailed security experts shall also provide theirrespective party
with procedures fbrpreparing any document, pleading, and substantive communication that
contains classified infbrmation or infbrmation reasonably believed to be classified. Detailed
security experts should be consulted by the defense and the prosecution regarding any question
of derivative classification or any othermatterthat could reasonably be believed to relate to
classified infbrmation, but are not authorized to make classification determinations; that is,
whether infbrmation is properly classified,
(1) Adetailed security expert shall review, in-person or over SIPRNET, while in
agovemment facility approved fbr classified infbrmation processing, any pleadings document, or
subject ofcommunication, including all attachments and enclosures thereto, which contains
classified infbrmation or infbrmation reasonably believed to be classified, whether by original,
derivative, or compilation, and verify whetherthepleading or document contains classified
infbrmation and is properly marked.
(2) Asecurity expert detailed to the defense shall be present at all times that the
defense intends to disclose or elicit classified infbrmation underparagraph3(l)(6) ofthe
Protective Order and shall promptlyterminate any conversation wheneverthe defense elicits, or
attempts to elicit, classified infbrmation not previously approved fbr disclosure by the United
States or the Court, or wheneverthe intended recipient discloses classified infbrmation fbrwhich
the defense has no need-to-know.
APPELLATEEXHIBIT^^^^^
P ^ ^

^P8^^^^^^

20889

(3) Ifrequested bythe defense,aseeurity expert detailed to the defense shall
properly and promptly deliver any pleading or documentfiledbythe defense to the court
security officer and the prosecution, except fbr any ^^^^^^^ filing which shall be delivered only
to the Court or court security officer.
(4) Detailed security experts to the defenseshall properly destroy,by means
approved fbr classified infbrmation destruction, any documents requested by the defense, in the
presence ofthe defense,
(5) Detailed security experts to the defense shall promptlynotify the court
security officer, over SIPRNET or by other approved means under Army Regulation 380 5, of
any spillage ofclassified infbrmation,
d. Communications. Any communication related to this case, including intemal
communications between members ofthe prosecution or defense and communications between
the parties, the Court, and the court security officer, that contains classified infbrmation or
infbrmation reasonably believed to be classified shall not be transmitted over any standard
commercial telephone instmmenfor office intercommunication system, including but not limited
to the Intemet, Any communicationrelated tothis case, including intemal conm^unications
between members ofthe prosecution or defense and communications between the parties, the
Court, and the court security officer, that contains classified infbrmation or infbrmation
reasonably believed to be classified shall be transmitted over SIPRNETor by other approved
means under Army Regulation 380-5.
4, Further Order. The procedures set forth in this Ordermay be modified by further order ofthe
Court acting under MRE 505 and the Courtis inherent supervisory authorityto ensureafair and
expeditious trial.
5. Army Regulation 380-5. No procedure in this Order shall operate to supersede, or causea
violation of^ any provision ofArmy Regulation 380-5.
ORDERE^D, this the 22nd day ofMarch2012.

r / / /
" DENISE R. LIND
COL, JA
Chief Judge, 1 st Judicial Circuit

APPELLATE EXHIBITjyUU}/
Page_^_ofPage(s)

20890

Williams, Patricia CIV JFHQ-NCR/MDW SJA
From:
Sent:
To:
Cc:

Subject:
Attachments:
Signed By:

Lind, Denise R COL USARMY (US)(b) (6)
Thursday, March 22, 2012 4:36 PM
Fein, Ashden MAJ USA JFHQ-NCR/MDW SJA; David Coombs; Williams, Patricia CIV JFHQNCR/MDW SJA
Matthew kemkes; Bouchard, Paul R CPT USARMY (US); Santiago, Melissa S CW2 USARMY
(US); Morrow III, JoDean, CPT USA JFHQ-NCR/MDW SJA; Overgaard, Angel M. CPT USA
JFHQ-NCR/MDW SJA; Whyte, Jeffrey H. CPT USA JFHQ-NCR/MDW SJA; Ford, Arthur D.
CW2 USA JFHQ-NCR/MDW SJA;(b) (6)
Prather, Jay R CIV (US)
RE: Court Order to Security Officer and Detailed Security Experts (UNCLASSIFIED)
document2012-03-22-162644.pdf
(b) (6)
l

Classification: UNCLASSIFIED
Caveats: NONE
All,
Attached is the signed Security Expert Order. Trial counsel, please ensure
all security officers are served with it. Ms. Williams, please add the
order as the next AE in line.
D
Denise R. Lind
COL, JA
Chief Judge, 1st Judicial Circuit

Original Message
From: Fein, Ashden CPT USA JFHQ-NCR/MDW SJA
(b) (6)

Sent: Thursday, March 22, 2012 3:08 PM
To: Lind, Denise R COL USARMY (US); David Coombs
Cc: Kemkes, Matthew J MAJ USARMY (US); Bouchard, Paul R CPT USARMY (US);
Santiago, Melissa S CW2 USARMY (US); Morrow III, JoDean, CPT USA
JFHQ-NCR/MDW SJA; Overgaard, Angel M CPT USARMY (US); Whyte, Jeffrey H CPT
(b) (6)
USARMY (US); Ford, Arthur D Jr CW2 USARMY (US);
Subject: RE: Court Order to Security Officer and Detailed Security Experts
(UNCLASSIFIED)
Ma'am,
APMULATE EXHIBITjSJUtiV
Page 4

ofPme(s) l\

20891

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
RULING:
AMICUS CURIAE FILINGS
U.S. Army, (b) (6)
U.S. Army Garrison, Joint Base MyerHenderson Hall, Fort Myer, VA 22211

DATED: 23 March 2012

The Court has been advised that there may be non-parties who will move the Court for
leave to file an amicus curiae brief The Court will not grant leave to a non-party tofilean
amicus brief The Govemment or the Defense may attach a filing by a non-party as part of a
party brief filed within the suspense dates set by the Court.

DENISE R. LIND
COL, JA
ChiefJudge, 1*'Judicial Circuit

20892

W i l l i a m s , P a t r i c i a CIV J F H Q - N C R / M D W S J A
From:
Sent:
To:
Cc:

Subject:
Attachments:
Signed By:

Lind, Denise R COL USARMY (US) (b) (6)
Friday, March 23, 2012 6:30 PM
David Coombs
Matthew kemkes; Bouchard, Paul R CPT USARMY (US); Santiago, Melissa S CW2 USARMY
(US); Williams, Patricia CIV JFHQ-NCR/MDW SJA; Morrow III, JoDean, CPT USA JFHQNCR/MDW SJA; Overgaard, Angel M. CPT USA JFHQ-NCR/MDW SJA; Whyte, Jeffrey H.
CPT USA JFHQ-NCR/MDW SJA; Ford, Arthur D. CW2 USA JFHQ-NCR/MDW SJA;
(b) (6)
Prather, Jay R CIV (US); Williams, Patricia CIV JFHQ-NCR/MDW
SJA; Fein, Ashden MAJ USA JFHQ-NCR/MDW SJA
Rulings: Motion to Compel Discovery; Amicus Curiae Filings (UNCLASSIFIED)
document2012-03-23-182149.pdf; document2012-03-23-182225.pdf
(b) (6)

Classification: UNCLASSIFIED
Caveats: NONE
Counsel,
Attached are rulings re: Motion to Compel Discovery; Amicus Curiae Filings.

D
Denise R. Lind
COL, JA
Chief Judge, 1st Judicial Circuit

Classification: UNCLASSIFIED
Caveats: NONE

APPEILATE EXmBrr-xxxv
Page 2. flfpag^.^ 2_

20893

IN 1HE UNITED STATES ARMY

FIRST WDICIAL CIRCUIT
)
)

UN I T E D S T ATE S
v.

)
)

US
. . Army, (b) (6)
U.S. Army Garrison, Joint Base Myer­
Henderson Hall, Fort Myer, VA 22211

)

RULING: DEFENSE MOTION
TO COMPE L DISCOVERY

)
)
DATED: 23 March 2012

)
)

Defense moves the Court to compel discovery. Government opposes. After considering
the pleadings, evidence presented, and argument of counsel, the Court f nds and concludes the
following:

Factual Findings:
1 . In its Motion of 14 February 2012, the Defense moved the Court to compel the following
discovery from the GovernmentlAW RCM 70l(a)(2) (Documents, tangible objects, and reports
within the possession, custody, or control of military authorities that is material to the
preparation of tbe defense), 70l(a)(5)(Information to be offered by the Government at
Sentencing), 705(a)(6)(Evidence favorable to tbe Defense) and 906(b)(7)(Motion for
Appropriate Relief regarding discovery and production of evidence). The Government response
is listed below each item:
Video in

a. FOIA

2 of

II: A copy of any Freedom

oflnformation Act (FOIA) request and any response or internal discussions of any such FOIA
request that is related to the video that is the subject of Specification 2 of Charge II.
On 3 October 2011, the Government produced all enclosures to any
Freedom of !nformation Act (FOIA) response, specifically BATES 00000772-000008 5 1 . On 1 5
Government

March 2012, the Government advised the Court it had given the Defense the information
requested.
b.

Video: The video of PFC Manning being ordered to surrender his clothing at the

direction of CW4 James Averhart and his subsequent interrogation by CW4 Averhart on 1 8
January 201 1 . The Defense filed a preservation of evidence request over one year ago, on 1 9
January 201 1 for this information. The Defense alleges the Government produced the video of
PFC Manning being ordered to surrender his clothing, but not the video of the subsequent
interrogation by CW4 Averhart. The Defense alerted the Government to the need to locate the
additional video in a telephone conversation on 12 December 2011. The Defense proffered that
the requested video is relevant to support the accused's claim of unlawful pretrial punishment.
The Defense presented no evidence that the video exists.

20894

Upon Defense request, the United States promptly preserved all
Government
Quantico videos requested by Defense. On 6 December 2011, the United States produced all
videos of the alleged Quantico incident, specifically BATES 00408902 00408903. The alleged
video referenced by the Defense does not exist.
In an email to the Court dated 20 March 2012, the Defense accepted Trial Counsel's
representation that the Government has provided the Defense with all videos provided to the
Government by Quantico.
An Encase forensic image of each computer from the Tactical
c. EnCase Forensic
Sensitive Compartmented Information Facility (T SCIF) and the Tactical Operations Center
lOth M ountain Division, Forward Operating Base (FOB) Hammer, Iraq. On 30 September 2010
CID requested preservation of hard drives used during the 2d BCT deployment to Iraq. The
Defense submitted a preservation request for this evidence on 21 September 2011.
Government
On 21 September 2011- more than one year after the accused's tmit
redeployed back to Fort Drum, New York- the Defense requested that the United States
preserve these hard drives. The Government identified four commands or agencies that may
possess hard drives responsive to this request and submitted a Request to Locate and Preserve
Evidence to each command or agency. Those entities included: (1 ) 2d Brigade Combat Team,
lOth M ountain Division (2/10 M TN); (2) the Federal Bureau oflnvestigation (FBI); (3) Third
Army, United States Army Central (ARCENT); and (4) the Computer Crime Investigative Unit,
U.S. Army Criminal Investigative Command (CCIU). The Government request to 2/10 M TN
yielded the preservation of 181 hard drives, of which the United States has identified thirteen as
being located within the SCIF during the unit's deployment to FOB Hammer. None of those
thirteen hard drives contained the "bradley.manning" user profile. At the Article 39(a) session
on 15 March 2012, the Government advised there were 14 hard drives responsive to the Defense
discovery request. The Government argues the hard drives are not relevant and necessary for the
Defense tmder RCM 703(t) and that, because they are classified, the rules of production tmder
M RE 505 should govern whether the images are discoverable.
Assessments and
d.
assessments and records from closely aligned investigations:

The foUowing damage

(I) Central
Any report completed by the WL Taskforce (WTF) and
any report generated by the WTF tmder the direction of former Director Leon Panetta.

of Defense: The damage assessment completed by the Information
(2)
Review Task Force (IRTF) and any report generated by the IRTF under the guidance and
direction of former Secretary of Defense Robert Gates. Additionally, the Defense requests all
forensic results and investigative reports by any of the cooperating agencies in this investigation
(DOS, FBI, DIA, the Office of the National Counterintelligence Executive (ONCIX), and the
CIA).

2

20895

(3)

of Justice: Any documentation related to the DOJ investigation into the

disclosures by WikiLeaks concerning PFC Bradley Manning, including any grand jury testimony
or any information relating to any 18 U.S.C. § 2703(d) order or any search warrant by the
(4)

of State: The damage assessment completed by the DOS, any report

generated by the task force assigned to review each released diplomatic cable, and any report or
assessment by the DOS concerning the released diplomatic cables.
Government

The Government intends to disclose all relevant and necessary

classified and unclassified grand jury testimony that the Government is authorized under the
federal rules to the Defense. The Government: ( 1 ) confirms the existence of completed WTF
and IRTF damage assessments; (2) confirms the existence of a damage assessment by DOS that
is not complete; and (3) denies that ONCIX has produced an interim or final damage assessment.
At the Article 39(a) session on 1 5 March 2012, the Government stated that it had no authority to
disclose or discuss the requested damage assessments. The Government argues that Defense has
not demonstrated that the damage assessments are relevant and necessary to an element of the
offense or a legally cognizable defense and otherwise inadmissible in evidence under RCM
703(f) because the Defense is confusing prospective OCA classifications determinations
assessing whether damage could occur (relevant to elements of charged offenses) with hindsight
damage assessments determining what damage did occur (not relevant to elements of charged
offenses). The Government further responded that it is unaware of any forensic results and
investigative reports from within the DOS, FBI, DIA, ONCIX, or the CIA, that contributed to
any law enforcement investigation.
2. The accused is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of disorders and neglects to the prejudice of
good order and discipline and service discrediting, eight specifications of communicating
classified information, five specifications of stealing or knowingly converting Government
property, and two specifications of knowingly exceeding authorized access to a Government
computer, in violation of Articles 92, 1 04, and 134, UCMJ, 1 0 U.S.C, §§ 892, 904, 934 (2010).
3. The Defense Motion to Compel the EnCase Forensic Images, the damage assessments from
WTF, IRTF, and DOS, and forensic and investigative reports from DOS, FBI, DIA, ONCIX, or
the CIA remain at issue.

4.}he Defense submitted the following proffers of relevance and evidence in support of its
Motion to Compel:

EnCase Forensic Images: The Defense requested an EnCase forensic image of each computer
Team, 10th Mountain Division, Forward Operating Base Hammer, Iraq.
a. Proffer of relevance: The Defense proffers that an EnCase Image would allow its
forensic expert to inspect the 1 4 seized government computers from the T-SCIF and TOC. Such
inspection would allow the Defense to discover whether it was common for Soldiers to add

3

20896

technically unauthorized computer programs to their computers and that the practice of the unit
was to tacitly authorize that addition of unauthorized programs including but not limited to:
miRC (a full featured Internet Relay Chat client for Windows that can be used to communicate,
share, play or work with others on IRC networks); Wget (a web crawler program designed for
robustness over slow or unstable network connections); GEOTRANS (an application program
which allows a user to easily convert geographic coordinates among a wide variety of coordinate
systems, map projections and datums); and Grid Extractor (a binary executable capable of
extracting MGRS grids from multiple free text documents and importing them into a Microsoft
Excel spreadsheet) to their computers. The Defense argues this information is relevant because
the Government has charged PFC Manning with adding unauthorized software to his government
computer in Specifications 2 and 3 of Charge III. The information is relevant to establish the
defense theory that the addition of software not on the approved list of authorized software was
authorized by the accused's chain of command through the practice of condoning and implicitly
or explicitly approving the additions of such software.
b. Evidence: The Defense has provided the Court with a swnmary of what the defense
asserts the following witnesses deployed with the accused testified to at the Article

32

investigation:
CPT Steven Lim- Soldiers listened to music and watched movies on their
computers and saved music, movies, and games (unauthorized software).
CPT Casey Fulton- Soldiers saved music games, and computers to their
Mr. Jason Milliman- Soldiers added unauthorized games and music to their
computers and was aware Soldiers were adding unauthorized software to their computers,
although he did not believe the practice was common.
CPT Thomas Cherepko He saw unauthorized music, movies, games, and
unauthorized programs improperly stored on the T-Drive. He advised his immediate supervisor
and the Brigade Executive Officer concerning the presence of unauthorized media on the T­
Drive. Nothing was done.
Ms. Jihrleah Showman- She and everyone else in the unit viewed M-IRC Chat as
mission essential and everyone put it on their computers.

Damage Assessments and Closely Aligned Investigations: The Defense requested the
following damage assessments and records from closely aligned investigations:

(1) Central Intelligence Agency: Any report completed by the WTF and any report
generated by the WTF under the direction of former Director Leon Panetta.

(2) Department of Defense:

The damage assessment completed by the Information

Review Task Force (IRTF) and any report generated by the IRTF under the guidance and
direction of former Secretary of State Robert Gates.

forensic results and investigative reports by any of the cooperating agencies in this investigation
(DOS, FBI, DIA, the Office of the national Counterintelligence Executive and the CIA).

(3) Department of Justice: The DOJ has conducted an investigation into the disclosures
by WikiLeaks as referenced by Attorney General of the United States Eric H. Holder. The

4

20897

Defense requested any grand jury testimony and any information relating to any 18 U.S.C. §
other social media site that was relevant to PFC Bradley Manning.

(4) Department of State: The DOS formed a task force of over 120 individuals to
review each released diplomatic cable. The task force conducted a damage assessment of the
leaked cables and concluded that the information leaked either represented low-level opinions or
was already commonly known due to previous public disclosures.
Proffer of Relevance for all Damage Reports: The Defense argues that evidence of
damage assessments (whether favorable or not) are material to the preparation of the defense for
the merits and sentencing lAW RCM 70l(a)(2) and that, if the damage assessments are
favorable, they are also relevant, helpful to the defense, and discoverable under RCM 70l (a)(6)
and Brady v. Maryland, 373 U.S. 83 (1963). Even if the extent of actual damage caused by the
alleged leaks was not relevant to the merits, it is relevant discovery for the defense to prepare its
presentencing case.
Evidence: The Defense provided its 30 November 2011, request to the Article 32
Investigation Officer (10) for the production of evidence to include the damage assessments.
That request includes the following:

a. 5 August 2010 creating the IRFT and !6 August 2010 letter from former
Defense Secretary Robert Gates to Senator Carl Levin discussing the !RTF.
b. 8 November 2010 message from former CIA Director, Leon Panetta to CIA
that the Office of Security is directed to fully investigate the damage
from WL. 22 December 2010 Washington Post article stating that the CIA established the WTF
to assess the impact of exposure of thousands of leaked diplomatic cables.

c. 18 January 2011 Reuters article stating "Internal U.S. government reviews
have determined that a mass leak of diplomatic cables caused only limited damage to U.S.
interests abroad, despite the Obama administration's public statements to the contrary". The
article listed the sources as two congressional aides familiar with briefings by State Department
officials and Congress. The article further went on to state "National security officials familiar
with the damage assessments being conducted by defense and intelligence agencies told Reuters
the reviews so far have shown "pockets" of short-term damage, some of it potentially harmful.
Long term damage to U.S. intelligence and defense operations, however, is unlikely to be
serious, they said." And "But current and former intelligence officials note that while WL has
released a handful of inconsequential CIA analytical reports, the website has made public few if
any real intelligence secrets, including reports from undercover agents or ultra-sensitive technical
intelligence reports, such as spy satellite pictures or communications intercepts."
All forensic results and investigative reports by any of the cooperating agencies in this
investigation (DOS, FBI, DIA, the Office of the national Counterintelligence Executive and
the CIA).

5

20898

Proffer of relevance: None
Evidence: None

5. The Defense filed discovery requests for the EnCase Images, damage assessments, and
forensic results and investigative reports by any of the cooperating agencies in the investigation.
On

13 October 2011, the Defense made a specific request for Brady material, identifYing the
damage assessments. On 30 November 2011, the Government responded to the requests for the
damage assessments under Brady that the Government has no knowledge of any Brady material

in the possession of the CIA, Department of Defense, Department of Justice, or the Department
of States, and it would furnish such records if it became aware of them and that the Government
did not have authority to disclose the damage assessments. At or near

15 December 2011, the
32 10 that the damage assessments were classified, that the

Government does not have to discuss the substance of the damage reports, and that all but the
IRTF are not under the control of military authorities. On 31 January 2012, the Government
responded to Defense Discovery Requests for damage assessments stating it would not provide
the damage requests because the defense failed to provide an adequate basis for its request and
that the Defense was invited to renew its request with more specificity and an adequate basis for
the request.
6. On 21 March 2015, the Court required the Government to respond to the following factual
questions regarding each of the requested damage assessments. The Government response
follows the question.

QUESTIONS:
I . Is each in the possession, custody, or control of military authorities?
Government
a. Defense Intelligence Agency (DIA) and the Information Review Task Force (IRTF)­
Yes, the classified document itself is in the possession of military authorities (DIA); however,
the document contains material from other Agencies and Departments outside the control of
military authorities. The military controls the document itself, but not all the information within
its four corners.
b. Wiki!eaks Task Force (WTF)- No.
c. Department of State (DOS) -DOS has not completed a damage assessment.
d. Office of the National Counterintelligence Executive (ONCIX)- ONCIX has not
produced any interim or final damage assessments in this matter.

2.

If no, what agency has custody of each of the damage assessments?

Government
WTF - The Central Intelligence Agency has possession, custody, and control.

Government
a. DIA and IRTF- The prosecution was given limited access for the purpose of reviewing
for any discoverable material. The prosecution only has control of the information within the
document that is owned by the Department of Defense (military authority).

6

20899

b. WTF - The prosecution was given very limited access for the purpose of reviewing for
preparation of the previous motions hearing. The prosecution will have future access to complete
a full review for Brady material, as outlined below.
4. Has the Prosecution examined each of the damage assessments for Brady material?
Government
a. DIA and !RTF- Yes.
b. WTF -No.
4a. If yes, is there any favorable material?
Government
DIA and IRTF- Yes; however, the United States has only found classified information that is
"favorable to [theJ accused that is material... to punishment." Cone v. Bell, 129 S.Ct. 1769, 1772
favorable material relevant to findings.
4b. If no, why not?
Government
WTF- The prosecution has only conducted a cursory review of the damage assessment in order
to understand what information exists within the Agency, and has not conducted a detailed
review for Brady material. This process is ongoing and the prosecution will produce all
"evidence favorable to [theJaccused that is material to guilt or to punishment[}" if it exists, W1der
the procedures outlined in MRE 505, Cone v. Bell, 129 S.Ct. at 1 772; see also Brady v.
Maryland, 373 U.S. at 87. Additionally, the United States is concurrently working with other
Federal Organizations which we have a good faith basis to believe may possess damage
assessments or impact statements, and will make such discoverable information available to the
defense under MRE 505.

END OF QUESTIONS
7. No head of an executive or military department or government agency concerned has claimed
a privilege to wilhhold classified information lAW MRE 505(c).

The Law:
1. Defense discovery in the military justice system is governed by the Constitutional standards
set forth by lhe Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963) and recently
reaffirmed in Smith v. Cain, (slip opinion I 0 January 2012), Article 46, UCMJ (Opportunity to
Obtain Witnesses and Olher Evidence), RCM 701 (Discovery), and, also, by RCM 703
(Production of Evidence) when the requested discovery is evidence not under the control of
military authorities. For classified information, where the Government volW1tarily agrees to
disclose classified information in whole or in limited part to the accused, the provisions ofMRE
505(g) apply. Where the Government seeks to use MRE 505 to withhold classified infonnation,
a privilege must be claimed lAW MRE 5 05(c). US.

v.

Schmidt, 6 0 M.J. I (C.A.A.F. 2004).

2. Brady requires the Government to disclose evidence that is favorable to the defense and
material to guilt or pW1ishment.

Favorable evidence is exculpatory and impeachment evidence.

7

20900

Brady applies to classified information. The Government must either disclose evidence that is

favorable to the defense and material to guilt or punishment, seek limited disclosure IAW MRE
505(g)(2), or invoke, the privilege for classified information under MRE 505(c) and follow the
procedures under MRE 505(f) and (i). The classified information privilege under MRE 505 does
not negate the Government's duty to disclose information favorable to the defense and material
to punishment under Brady. The Government may provide the information to the Court and
move for limited disclosure lAW MRE 505(g)(2), If the privile\le is claimed, MRE 505(i)
allows the Government to propose alternatives to full disclosure.
3. Trial Counsel have a due diligence duty to review the files of others acting on the
Government's behalf in the case for favorable evidence material to guilt or punishment. The
scope of Brady due diligence is to examine files beyond the Trial Counsel's files is limited to:
(1) the files of law enforcement authorities that have participated in the investigation of
the subject matter of the charged offense;
(2) investigative files in a related case maintained by an entity closely aligned with the
prosecution; and
(3) other files, as designated in a defense discovery request, that involved a specified type
of information within a specified entity.
For relevant files known to be under the control of another governmental entity, Trial
Counsel must make that fact known to the Defense and engage in good faith efforts to obtain the
materiaL U.S, v, Williams, 50 MJ, 436 (CAAF 1999}
4. Article 46, UCMJ (Opportunity to obtain witnesses and other evidence) provides in relevant
part that trial connsel, defense counsel and the court-martial shall have equal opportunity to
obtain witnesses and other evidence in accordance with such regulations as the President may
prescribe.
5. The President promulgated RCM 701 to govern discovery and RCM 703 to govern evidence
production. The rules work together when production of evidence not in the control of military
authorities is relevant and necessary for discovery. U.S. v. Graner, 69 MJ 104 (C.A.A.F. 2010).
The requirements for discovery and production of evidence are the same for classified and
unclassified information under RCM 701 and 703 unless the Government moves for limited
disclosure under MRE 505(g)(2) or claims the MRE 505 privilege for classified information, If
the Government voluntarily discloses classified information to the defense, the protective order
and limited disclosure provisions ofRCM 505(g) apply. If, after referral, the Government
invokes the classified information privilege, the procedures ofRCM 505(f) and (i) apply.
6. Relevant discovery rules in RCM 70l(Discove:ry) are:

1

The parties have not presented the Court with any military cases directly on point. Cone v. Bell, 556 U.S. 449

(2009) does not address classified infonnation disclosures required by the Government under Brady. Federal courts
using the Classified Infonnation Procedures Act (CIPA) recognize that Brady requires disclosure of evidence by the
prosecution when it is both favorable to the accused and material either to guilt or punislunent. See

661 F.3d 271 (6lh Cir. 201 1).

8

U.S.

v.

Hanna,

20901

a. RCM 70l(a)(2) (Documents, tangible objects, reports) governs defense requested
discovery of evidence material to the preparation of the defense that is within the possession,
custody, or control of military authorities, whose existence is know or by due diligence should be
known by the Trial Counsel. The rule provides for such discovery after service of charges upon
the accused.
b. RCM 70l(a)(6) (Evidence favorable to the defense) codifies Brady and provides that
the trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence
know to the trial counsel which reasonably tends to: (A) negate the guilt of the accused to an
offense charged; (B) reduce the degree of guilt of the accused of an offense charged; or (C)
reduce the punishment.
c. RCM 70I(f) provides that nothing in RCM 701 shall be construed to require the
disclosure of information protected from disclosure by the Military Rules of Evidence. RCM
70l(f) applies to discovery of classified information when the Government moves for limited
disclosure under MRE 505(g)(2) of classified information subject to discovery lAW RCM 701 or
when the Government claims a privilege under MRE 505(c) for classified information.
d. RCM 70l(g) authorizes the military judge to regulate discovery. A military judge is
not detailed to a court-martial until charges are referred for trial (Article 26(a) UCMJ).
7. RCM 703 (Production of Witnesses and Evidence) states in relevant part:
a. RCM 703(f)( l ) provides that each party is entitled to the production of evidence which
is relevant and necessary.
b. RCM 703(1)(4) provides that evidence under the control of the government may be
obtained by notifying the custodian of the record of the time, place, and date the evidence is
required and requesting the custodian to send or deliver the evidence. The custodian of the
evidence may request relief on the grounds that the order of production is unreasonable or
oppressive. After referral, the military judge may direct that the subpoena or order of production
be withdrawn or modified. Subject to MRE 505 (Classified Evidence), the military judge may
direct that the evidence be submitted for an in camera inspection in order to determine whether
relief should be granted.

8.

Both the discovery rules under MRE 701 and the evidence production rules under MRE 703

are grounded in relevance. In order to have the military judge compel release of evidence either
as discovery under MRE 701 or as evidence production under MRE 703 , the Defense must
establish that the evidence is relevant either to the merits or to sentencing, U.S. v. Graner, 69 MJ
104 (C.A.A.F. 20!0) .

9. Prior to referral, the Government may decline to disclose information requested by the
Defense JAW RCM 701 where the Government contests relevance and materiality.

After

referral, RCM 70I(g) empowers the military judge to deny or regulate discovery to include
requiring the Government to produce the requested discovery for in camera review. RCM
701 (g) does not require the Government to produce all discovery requested by the Defense to the

9

20902

Court for in camera review. As in this case, where the Government withholds discovery, the
Defense may move for a Motion for Appropriate Relief to Compel Discovery lAW RCM
906(b)(7) and, where classified information is withheld by the Government, IAW MRE 505(d).
Upon such a motion and a sufficient showing by the Defense of relevance and materiality, the
Court may require the evidence to be produced for in camera review.
10. If classified discovery is at issue and the government agrees to disclose classified
information to the defense, the military judge shall enter an appropriate protective order if the
government requests one lAW MRE 505(g)(l )or allow the Government to move for limited
disclosure under MRE 505(g)(2).
11. If classified discovery detrimental to national security is at issue and the government does
not wish to disclose the classified information in part or in whole to the defense, the government
must claim a privilege under MRE 505(c).

There is no privilege Wlder MRE 505 for classified

information W1less the privilege is claimed by the head of the executive or military department or
government agency concerned based on a finding that the information is properly classified and
that disclosure would be detrimental to the national security.
12. MRE 505(e) (Pretrial Session) states in relevant part that after referral and prior to
arraignment any party may move for a session under Article 39(a) to consider matters relating to
classified information in connection with the trial. Following such a motion or sua sponte the
military judge promptly shall hold a session to establish the timing of requests for discovery, the
provision of notice under MRE 505(h), and the initiation of procedures under MRE 505(i). In
addition the military judge may consider any matters that relate to classified information or that
may promote a fair and expeditious trial.
Analysis:
l. No government entity in possession of any discovery at issue has claimed a privilege under
MRE 505(c). Thus, Brady, RCM 70l(a)(2), 70l(a)(6), and 70l(g) govern discovery of both
classified and unclassified information. MRE 505(g) also applies when the Government
voluntarily discloses classified information. RCM 703(f) requires that discovery of evidence
outside the control of military authorities be relevant and necessary.
2. The 14 hard drives for which the EnCase Images are requested are within the possession,
custody, or control of military authorities. Some of the information in the IRFT damage
assessment is under the possession, custody, or control of military authorities. The DOS and
WTF damage assessments are in the possession, custody, and control of the Department of State
and the Central Intelligence Agency, respectively.
3. Because no privilege has been invoked under MRE 50S( c) and the Government has not
moved for limited disclosure !AW RCM 505(g)(2), RCM 70l(f) does not preclude disclosure of
classified information that is material to the preparation of the defense under RCM 70l(a)(2) or
classified information that is favorable to the defense under RCM 701(a)(6).

10

20903

4. Under Brady and RCM 70l (a)(6), the Government has a due diligence duty to search for
evidence that is favorable to the defense and material to guilt or punishment. This includes a due
diligence to search any damage assessment pertaining to the alleged leaks in this case made by
the CIA, DoD, DOJ, and DOS. These agencies are entities closely aligned with the prosecution
in this case. The Government must disclose any favorable classified information from the
damage assessments that is material to punishment, move for limited disclosure under MRE
5 0 5(g)(2), or claim the privilege lAW MRE 50S(c).
5. The Government has examined the IRTF damage assessment and has found information
favorable to the accused that is material to pm1ishment. The Court further finds that the IRTF
damage assessment is relevant and necessary for discovery under Brady and RCM 701(a)(6).
6. The Court finds that the WTF and DOS damage assessments may contain evidence favorable
to the accused that is material to punishment. The Court finds that these damage assessments are
relevant and necessary for the Government to examine for Brady material.
7. The Court finds all 3 damage assessments relevant and necessary for the Court to conduct an

in camera review to detennine whether they contain infonnation that is favorable to the accused
and material to punishment under Brady, whether they contain information relevant and
favorable to the accused under RCM 701(a)(6), and whether they contain infonnation material to
the preparation of the defense under RCM 70l(a)(2).

8.

The Government has advised the Court it is "unaware" of any forensic results or investigative

files relevant to this case maintained by DOS, FBI, DIA, ONCIX, and CIA. These agencies are
closely aligned to the Government in this case. The Government has a due diligence duty to
determine whether such forensic results or investigative files that are germane to this case are
maintained by these agencies. The Government will advise the Court whether they have
contacted DOS, FBI, DIA, ONCIX, and CIA and that each of these agencies have stated to the
government that no such forensic results or investigative files exist.
The Court finds that a complete search of the relevant 14 hard-drives of computers from the
Tactical Sensitive Compartmented Information Facility (T-SCIF) and the Tactical Operations
'
1h
(BCT), 1 0 Mountain Division, Forward Operating Base (FOB) Hammer, Iraq is not material to

9.

the preparation of the defense for specifications 2 and 3 of Charge lli lAW RCM 70l (a)(2). At
least some of the information on the hard drives is classified. The witnesses at the Article 32
investigation testified that Soldiers would save unauthorized music, movies, games, and other
programs such as Google Earth and M-IRC Chat. The Defense has evidence from the Article 32
witnesses to further the defense theory. Although a complete search is not material, the Court
will direct the Government to search each of the 14 hard drives Wget, M-IRC Chat, Google
Earth, movies, games, music, and any other specifically requested program from the Defense.
The Government will disclose the results of the search to the Defense under MRE 70l (g)(I) and
505(g)(2). The Defense may renew its Motion to Compel Encase Forensic Images after receipt
of the results of the Government search.

RULING: The Defense Motion to Compel Discovery is Granted in Part.

II

20904

ORDER:

1. The Government will immediately begin the process of producing the damage assessments
that are outside the possession, custody, or control of military authorities IAW RCM
703(f)(4)(A). If necessary, the Government shall prepare an order for the Court to sign for each
custodian.
2. The Government will immediately cause an inspection ofthe 14 hard drives as provided in
paragraph (Analysis 9) above. On or before 30 March 2012, Defense will provide a list of
additional tenns the Defense wants the Government to add to its search of the 1 4 hard drives.
On or before 20 April2012, the Government will provide the results of the search.
3. The Government shall contact DOS, FBI, DIA, ONCIX, and CIA to detennine whether these
agencies contain any forensic results or investigative files relevant to this case. The Government
will notify the court NLT 20 April2012 whether any such files exist. If they do exist, the
Government will examine them for evidence that is favorable to the accused and material to
either guilt or punishment.
4. By 20 Apri12012 the Government will notify the Court with a status of whether it anticipates
any government entity that is the custodian of classified evidence that is the subject of the
Defense Motion to Compel will seek limited disclosure lAW MRE 505(g)(2) or claim a privilege
JAW MRE 505(c) for the classification under that agency's control.
5. By 18 May 2012 the Government will disclose any unclassified information from the 3
damage assessments that is favorable to the accused and material to guilt or punishment and
provide any additional unclassified information from the damage assessments to the Court for in
camera review JAW RCM 70l(g)(2).
6.

By 18 May 2012 the Government will identify what classified information from the 3 damage
reports it found that was favorable to the accused and material to guilt or punishment. By 18
May 2012 the Government will disclose all classified information from the 3 damage
assessments to the Court for in camera reviewlAW RCM 70l(g)(2) or, at the request of the
Government, in camera review for limited disclosure under MRE 505(g)(2). By 18 May 2012, if
the relevant Government agency claims a privilege under MRE 505(c) and the Government
seeks an in camera proceeding under MRE 505(i), the Government will move for an in camera
proceeding lAW MRE 505(i)(2) and (3) and provide notice to the Defense under MRE 5054(A).
So ORDERED: this 23rd day of March 2012.

COL,JA
ChiefJudge, 1 stJudicial Circuit

12

20905

FOR OFFICIAL USE ONLY

UNITED STATES OF AMERICA
v.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)

)
)
)
)
)

Prosecution Request
for Leave to Respond to
Portions of the Court Order
until 2 May 2012
13 April 2012

1.

The United States requests leave of the Court to respond to a portion of paragraph 4 of the
Court's 23 March 2012 Judicial Order (hereinafter "Court Order") until 2 May 2012, which
requires the United States to notify the Court whether the Central Intelligence Agency (CIA),
through trial counsel, will seek limited disclosure under MRE 505(g)(2) or claim a privilege
under MRE 505(c) of any classified "forensic results or investigative files relevant to this case"
by 20 April 2012.
2. In compliance with paragraph 3 of the Court Order, the United States immediately began the
process of determining whether CIA has "forensic results or investigative files relevant to this
case" and examined them for evidence that is potential!y discoverable. On 11 April 2012, the
United States identified certain information and requested the authority to release the information
to the defense. The CIA is currently reviewing the information to obtain the necessary approvals
to either: (1) release the classified information in its original form; (2) provide the documents for
a limited disclosure under MRE 505(g)(2); or (3) to invoke the classified information privilege
under MRE 505(c).
3. The CIA advised the United States that they will need additional time to make this
determination. The CIA has also advised that although they need additional time to make the
above decision, they do not expect to require any additional time in order to meet the Court's
disclosure suspense of 18 May 2012, regardless of their decision listed above.
4.

The prosecution's request will not necessitate any delay in the proceedings or delay in
responding to the defense. The prosecution does not anticipate requesting leave in responding by
18 May 2012. As such, there will be no prejudice to the defense.

Trial Counsel

FOR OFFICIAL USE ONLY

20906

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
RULING:
LEAVE TO RESPOND
UNTIL 2 MAY 2012

v.
U.S. Army, (b) (6)
U.S. Army Garrison, Joint Base MyerHenderson Hall, Fort Myer, VA 22211

DATED: 16 April 2012

The Govemment has moved for leave ofCourt to extend thetimeto respondfrom20
April 2012 - 2 May 2012 as to whether the CIA will release classified infbrmation in original
form, provide for limited disclosure under MRE 505(g)(2), or invoke the classified information
privilege under MRE 505c. The Govemment asserts the delay in response time will not delay
the Court ordered date of disclosure of 18 May 2012. The Defense does not object.
The Govemment motion is GRANTED.
So ORDERED this 16^^ day of April 2012.

DENISE R. LINIJ
COL, JA
ChiefJudge,
Judicial Circuit

APPELLATE EXfflBITiQCjfVlL'C38)
Page \ 0fPa2e(s) i\

20907

Williams, Patricia CIV JFHQ-NCR/MDW SJA
From:
Sent:
To:
Cc:

Subject:
Attachments:
Signed By:

Lind, Denise R COL USARMY (US) (b) (6)
Tuesday, April 17, 2012 2:00 PM
Fein, Ashden MAJ USA JFHQ-NCR/MDW SJA
coombs@armycourtmartialdefense.com; Ford, Arthur D. CW2 USA JFHQ-NCR/MDW SJA;
Tooman, Joshua J CPT USARMY (US); Santiago, Melissa S CW2 USARMY (US); Morrow III,
JoDean, CPT USA JFHQ-NCR/MDW SJA; Overgaard, Angel M. CPT USA JFHQ-NCR/MDW
SJA; Whyte, Jeffrey H. CPT USA JFHQ-NCR/MDW SJA; VonElten, Alexander S. ILT USA
JFHQ-NCR\MDW SJA; Jefferson, DaShawn MSG MIL USA OTJAG; Williams, Patricia CIV
JFHQ-NCR/MDW SJA
US v. PFC BM - Ruling on Gov't Request - Leave to Respond; Article 39(a); and trial calendar
(UNCLASSIFIED)
120413-Motion for Leave.pdf; document2012-04-16-145110.pdf; Draft Update Calendar
final16 April 12.docx
(b) (6)

Classification: UNCLASSIFIED
Caveats: NONE
Counsel,
1. Attached please find the Court's ruling granting the Govemment motion
for Leave to Respond. The original motion is also attached. I will try to
motion and ruling as the next AE in line (do not add the draft calendar
discussed in (3) below).
2. For the Article 39(a) session starting Tues, 24 April, we will meet in
chambers for an RCM 802 conference at 0900 and go on the record at 1000. I
would like to handle all of the outstanding discovery issues on Tuesday.
Both sides have advised me that there will be witnesses - forensics POCs for
the hard drive issue, and state department POC for the damage assessment
issue. Please confer and confirm that all witnesses/evidence for discovery
issues will be available Tuesday.
3. Case calendar. I have the parties' input on the case calendar. Tuesday
aftemoon, we will meet in chambers to finalize it (subject to review every
30 days). Please review the attached (very rough) draft as a baseline with
trial scheduled 20 September -15 October 2012. Certain motions that do
not involve classified information are moved up in the schedule (article 13
and speedy trial to July) and classified/unclassified issues are not severed
in the Article 39(a) sessions. We currently have "replies" built in to the
calendar. They shouldn't be necessary for motions addressed shortly before
trial per the draft schedule.
D

APPEXLATE EXmBITJlMvn i
^ ofPage(s) 4

20908

Denise R. Lind
COL, JA
Chief Judge, 1st Judicial Circuit

Original Message
From: Fein, Ashden MAJ USA JFHQ-NCR/MDW SJA
(b) (6)

Sent: Thursday, April 12, 2012 9:37 PM
To: Lind, Denise R COL USARMY (US)
Cc: coombs@armycourtmartialdefense.com; Ford, Arthur D Jr CW2 USARMY (US);
Tooman, Joshua J CPT USARMY (US); Santiago, Melissa S CW2 USARMY (US);
Morrow IH, JoDean, CPT USA JFHQ-NCR/MDW SJA; Overgaard, Angel M CPT USARMY
(US); Whyte, Jeffrey H CPT USARMY (US); VonElten, Alexander S. ILT USA
JFHQ-NCR\MDW SJA; Jefferson, Dashawn MSG USARMY (US); Williams, Patricia A
CIV (US)
Subject: US v. PFC BM
Ma'am,

Attached are the following documents:

1. Government's Proposed Case Calendar
2. Govemment's Response to Dismiss all Charges
3. Govemment Response to Dismiss Specification 1 of Charge II
4. Govemment Response to Motion to Dismiss Article 104
5. Govemment Response to UMC Motion

As for the defense's motion to renew its motion to compel discovery of
computers, the United States relies on its response to the defense's

APPELLATE EXHIBIT X x x v i ii
Pa«e_5L.«fPage(s) 4

20909

original motion, the record durmg the motions hearing, the Court's^^ing,
and the RCM 802 conference.

Additionally,weFEDE^ed the Court and defense the audio recordings along
with FTR Gold Player and it should arrive tomorrow. Finally,the govemment
added ILTAlecVonElten to the emaiL He is now detailed to the case but as
of today he will not go on the record.

v/r
MAJ Fein

Classification: UNCLASSIFIED
Caveats: NONE

APPELLATE EXHIBIT XAxVI' I
Page_Ji_ofPage(s) 4"

20910

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

U N I T E D S TA T E S
v.

)
)

INTERIM ORDER:

)

GOVERNMENT REQUEST FOR

)

LEAVE TO FILE PROTECTIVE

)

ORDER(S)

)

U.S. Army, (b) (6)

)

)

U.S. Army Garrison, Joint Base Myer­
Henderson Hall, Fort Myer, VA 22211

)

DATED: 28 March 2012

)

1. At an RCM 802 conference after the Article 39(a) session on 16 March 2012, the Defense
advised the Government and the Court of its intent to publish (without enclosures) Defense
filings and proposed filings with the Court on the internet. The Government, via email dated 23
March 2012, 1733, advised the Court that the Government opposes internet publication of such
Defense filings. The Government further requested that, prior to any internet publication of a
Court filing or proposed filing by the Defense, the Government have:
1.

an opportunity to file a motion for a protective order or multiple protective orders

under RCM 70l (g) and RCM 806(d); and
2. 30 days to receive input from all different federal entities on what discovery
information such agencies did not intend to be publicly available.
2. The Defense via email dated 23 March 2012, 1745 and 1803 advised the Government of its
intent to publish on the internet all previous Defense filings with the Court (without enclosures)
and proposed Defense filings for the next Article 39(a) session (24-26 April 2012) unless subject
to a protective order by the Court. (The emails are attached to this order as Attachment A.)
3.

A pleading is "filed" with the Court when it is identified as an exhibit on the record at an

Article 39{a) session.

Pleadings served on the opposing party that have not been identified on

the record at an Article 39(a) session are "proposed filings".
4.

This Interim Order is issued lAW MRE 505(g) and (h), MRE 506(g) and (h), RCM 701 (g)

and RCM 806(d), and Seattle Times v. Rhinehart, 104 S.Ct. 2199 (1984). This Interim Order
provides procedures for the Government to request protective order(s) prior to any public release
of Defense Court filings or proposed filings. The Court finds this Interim Order necessary W1der
the above authorities. The Government has provided the Defense both classifed information and
government infonnation subject to protective order under MRE 505(g)( l ) and MRE 506(g) This
Court has issued a protective order for classified information provided to the Defense in
discovery. (Protective orders are attached at Appendix B). The Defense accepted such

20911

discovery and agreed to comply with the protective orders.

There have been two classified

information spillage incidents to date in this case.
5. This Interim Order applies to all previous Court filings and any pleadings proposed for Court
filing during the Article 39(a) session currently scheduled to be held on 24-26 April 2012.

INTERIM ORDER (10):
1. The Government request to file a motion for a protective order or multiple protective orders
prior to public release of Defense Court filings or proposed Court filings is GRANTED as
provided below.
2. The Defense will notify the Government of each Defense Court filing or proposed filing
intended for public release. Defense will provide the Government with the original filing and the
redacted filing intended for public release.
3. Government motions for protective order will:
a.

address each Defense Court filing or proposed Court filing individually and identify, with

particularity, each portion of the filing to which the Government objects to public release and the
legal basis for each objection to public release.
b.

provide proposed findings of fact for the Court with respect to each portion of each filing

to which the Government objects to public release.
4. Suspense Dates for Defense Court filings and proposed filings the Defense intends to
publicly release:
a.

Defense Appellate Exhibits filed with the Court to date and proposed Court filings served

on the Government on or before 29 March 2012:

2 April2012- Defense notifications to the Government IAW IO paragraph (2);
17 April2012 - Government objections to public release and motion(s) for protective
order providing the Court with information ordered in IO paragraph (3);

20 April2012- Defense Response to Government Motions for Protective Order.
b.

Defense responses to Government motions served on the Government on or before 12

Apri12012:
12 April2012 - Defense notifications to the Government IAW IO paragraph (2);
17 Apri12012 - Government objections to public release and motion(s) for protective
order providing the Court with information ordered in IO paragraph (3);

20 April2012
c.

Defense Response to Government Motions for Protective Order.

Defense replies served on the Government on or before 17 Apri12012:

2

20912

17 April 2012 -Defense notifications to the Government !AW !0 paragraph (2);
19 Apri12012- Government objections to public release and motion(s) for protective
order providing the Court with information ordered in 10 paragraph (3);

20 Apri12012 Defense Response to Government Motions for Protective Order.
5. TheDefense will not publicly release anyDefense Appellate Exhibit or proposed filing with
the Court to which the Government objects until after the Government motions for protective
order are addressed at the Article 39(a) session 24-26 April 2012.
6. TheDefense will not disclose any information known or believed to be subject to a claim of
privilege under MRE 505 or MRE 506 without specific Court authorization. Prior to any
disclosure of classified information, theDefense will provide notice under MRE 505(h) and
follow the procedures under that rule.
7. Personal identifying information (PII) will be redacted from allDefense filings publicly
released. PII includes personal addresses, telephone numbers, email addresses, first 5 digits of
social security numbers, dates of birth, financial account numbers, and the names of minors.
8. To protect the safety of potential witnesses all persons who are not parties to the trial shall be
referenced by initials of first and last name in any Defense filing publicly released.
9. For future Defense filings with the Court where the Government moves for a protective order
preventing public release, the Court proposes the procedures in the draft protective order at
Attachment C.

Objections to the proposed procedures will be addressed at the Article 39(a)

session 24-26 April 2012.
So ORDERED: this 28

lli

day of March 2012.

££#
COL,JA

1
Chief Judge, 15 Judicial Circuit

3

0 20913

Waybright, Daniel W. SGT USA JFHQ-NCRIMDW SJA

From: David Coombs

Sent: Friday, March 23, 2012 6:03 PM

To: Lind, Denise COL USARMY (US)

Cc: Kemkes, Matthew MAJ USARMY Bouchard, Paul CPT USARMY Santiago,

Melissa CW2 USARMY ?Morrow Ill. JoDean, CPT USA
Overgaard, Angel CPT USARMY Whyte, Jeffrey CPT USARMY Ford,
Arthur Jr CW2 USARMY Prather, Jay CIV
Williams, Patricia A CIV Fein, Ashden MAJ USARMY (US)

Subject: RE: Defense's Release of Court Filings (UNCLASSIFIED)

Ma'am,

Just to be clear, the Defense does not intend to publish any attachments; thus, the concerns
about discovery are unwarranted. we request that this issue be resolved in a timely manner,
as we would like to make public our filings for the next Article 39(a).

v/r
David

David E. Coombs, Esq.

Law office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282

Notice: This transmission, including attachments, may contain confidential
attorney-client information and is intended for the

person(s) or company named. If you are not the intended recipient, please notify the sender
and delete all copies. unauthorized disclosure, copying or use of this information may be
unlawful and is

From: Lind, Denise COL USARMY (US)
Sent: Friday, March 23, 2612 5:52 PM
To: David Coombs
Cc: Kemkes, Matthew MAJ USARMY Bouchard, Paul CPT USARMY Santiago, Melissa
CW2 USARMY ?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Jeffrey CPT USARMY Ford, Arthur Jr USARMY

Prather, Jay CIV Williams, Patricia A CIV Fein, Ashden
MAJ USARMY (US)
Subject: RE: Defense's Release of Court Filings (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

Counsel,

2mM4
Do not publish any filings J!|!he internet until I have had an pportunity to consider the
position of the parties.

Denise R. Lind
COL, JA
Chief Judge, 1st Judicial Circuit

From: David Coombs
Sent: Friday, March 23, 2612 5:45 PM
To: Lind, Denise COL USARMY (us)
Cc: Kemkes, Matthew MAJ USARMY Bouchard, Paul CPT USARMY Santiago, Melissa 5
CW2 USARMY ?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY whyte, Jeffrey CPT USARMY Ford, Arthur Jr cw2 USARMY

Prather, Jay CIV williams, Patricia A CIV Fein, Ashden
MAJ USARMY (us)
Subject: RE: Defense's Release of Court Filings

Ma'am,

The proceedings have not been sufficiently open and transparent, as evidenced by this second
letter that has been sent by the Center for Constitutional Rights regarding these
proceedings. The Defense does not concur with the Government's dire predictions. In Federal
cases that involve classified information (such as the recent Drake case), the pleadings are
always publicized.

The Defense intends to publish its motions starting on Monday, unless subject to a gag order.
with regards to future motions, the Defense intends to publish its motions a few days after
filing so as to ensure that there is no inadvertent spillage.

v/r
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02966

Toll Free: 1-860-588-4156

Local: (568) 689-4616

Fax: (568) 689-9282

*?*Confidentiality Notice: This transmission, including attachments, may contain confidential
attorney-client information and is intended for the

person(s) or company named. If you are not the intended recipient, please notify the sender
and delete all copies. Unauthorized disclosure, copying or use of this information may be
unlawful and is

20915
rein. Asnaen wu usA s?

Sent: Friday, March 23, 2012 5:33 PM

To: Lind, Denise COL USARMY (US)

Cc: David Coombs; Matthew kemkes; Bouchard, Paul CPT USARMY Santiago, Melissa
USARMY Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA JFHQ-
whyte, Jeffrey H. CPT USA Ford, Arthur D. USA
Prather, Jay CIV williams, Patricia CIV
SJA

Subject: Defense's Release of Court Filings

Ma'am,

The United States opposes the defense's request to freely publish all motions, responses, and
replies on the Internet. The defense's request would act to publicize information provided
to the defense in discovery, the public disclosure of which may require outside agency
approval and the substance of which may cause irreparable prejudice to the United States.
Much of the information in this case was disclosed under various protective orders which
remain in effect, including grand jury subpoena information, Secretary of the Army 15-6
investigation information, and law enforcement sensitive information. This protected
information was provided to the defense for discovery and under the specific condition not to
publish or release it outside of the specific individuals who were allowed access to the
information.

The defense purports that it wants to publish this information online to keep the public
informed of the proceeding. The public, however, is already well informed of the
proceedings. The public was present at the Article 32 hearing, the arraignment, and the
first motions hearing, and will continue to be present at all open portions of the motions
hearings and the trial.

The command provided the theater next door for overflow area so that the public can freely
watch the proceedings and the media operations center for the media. Additionally, other
than the electronic filing process, the military justice system is more open than the federal
system from the Article 32 proceedings through the end of the trial.

The United States does not intend to publish its pleadings online. If the defense remains
intent on publishing all pleadings and their enclosures online, the United States requests
the opportunity to file a motion for a protective order or multiple protective orders under
RCM 7e1(g)(2) and

896(d) for the Court to regulate the defense's use of information gained through discovery.
Additionally the United States requests the Court allow the prosecution thirty days to
receive input from all the different federal entities on what information they provided for
discovery which they did not intend to be made publically available. The sole purpose of
discovery is to prepare for trial. Motions are filed to shape legal issues and belong to the
Court. Most motions, motions to suppress or exclude evidence or testimony, are not
appropriate for publication. Freely publicizing all pleadings, at this stage of the
proceedings, may undermine the effectiveness of the publicity order and will circumvent
those measures adopted to regulate what is available to the public and significantly
jeopardize many interests of the United States, to include, protecting classified information
(in the case of a spillage), preserving the confidentiality of law enforcement information,
preventing potential witnesses from receiving information outside the scope of their
projected testimony, protecting testifying witnesses, protecting trial participant safety,
protecting the personal information of potential panel members, preventing disclosure of
government information that threatens national security and is unclassified, and the
deliberative processes of the United States Government. Furthermore, the United States
believes that the defense's intended course of action would result in a substantial
likelihood of materially prejudicing the proceeding, in violation of, inter alia, RCM
806(d) and Army Regulation 27-26, specifically Rule 3.6.

0 0 20916

v/r
MAJ Fein

Classification: UNCLASSIFIED
Caveats: NONE

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

DRAFT ORDER:

v. GOVERNMENT MOTION:
PROTECTIVE

U.S. Army,

U.S. Army Garrison, Joint Base Myer-
Henderson Hall, Fort Myer, VA 22211

DATED:

1. This Order applies when the Defense proposes to publicly release Defense Court filings or
proposal ?lings.

2. A pleading is ??led? with the Court when it is identi?ed as an exhibit on the record at an
Article 39(a) session. Pleadings served on the opposing party that have not been identified on
the record at an Article 39(a) session are ?proposed ?lings?.

3. This Order is issued IAW MRE 505(g) and MRE 506(g) and RCM 70l(g) and RCM
806(d), and Seattle Times v. Rhinehart, 104 2199 (1984). The Order provides procedures
for the Govemment to request protective order(s) prior to any public release of Defense Court
?lings or proposed ?lings. The Court ?nds this Order necessary under the above authorities.
The Govemment has provided the Defense both classi?ed information and government
information subject to protective order under MRE S05(g)( 1) and MRE 506(g). This Court has
issued a protective order for classi?ed information provided to the Defense in discovery. The
Defense accepted such discovery and agreed to comply with the protective orders. There have
been two classi?ed infonnation spillage incidents to date in this case.

4. This Order supplements the Interim Order issued by the Court on 28 March 2012.

ORDER:

1. The Defense will notify the Government of each Defense Court ?ling or proposed ?ling
intended for public release. Defense will provide the Government with the original ?ling and the
redacted ?ling intended for public release.

2. Government motions for protective order will:

a. address each Defense Court ?ling or proposed Court ?ling individually and identify, with

particularity, each portion of the filing to which the Government objects to public release and the
legal basis for each objection to public release.

b. provide proposed ?ndings of fact for the Court with respect to each portion of each ?ling
to which the Government objects to public release.

3. Suspense Dates for Defense Court ?lings and proposed ?lings the Defense intends to
publicly release. The Court is currently scheduling Article 39(a) sessions with the following
schedule: 2 weeks to ?le motions; 2 weeks to ?le responses; 5 days to ?le replies.

a. NLT the scheduled ?ling date for motions, responses, or reply for each Article 39(a)
session, the Defense shall provide the Government notice IAW paragraph (1) of this Order.

b. The Government shall provide the Court with information ordered in paragraph (2) of
this Order NLT:

l. the scheduled ?ling date for responses for Defense motions;
2. the scheduled ?ling date for replies for Defense responses; and
3. 3 days after ?ling of Defense replies.

The Court will grant motions for continuance for good cause.

4. The Defense will not publicly release any Defense Appellate Exhibit or proposed ?ling with
the Court to which the Government objects until after the Government motion(s) for protective
order are addressed at the next scheduled Article 39(a) session.

5. The Defense will not disclose any information known or believed to be subject to a claim of
privilege under MRE 505 or MRE 506 without speci?c Court authorization. Prior to any
disclosure of classi?ed information, the Defense will provide notice under MRE 505(h) and
follow the procedures under that rule.

6. Personal identifying information (PII) will be redacted from all Defense ?lings publicly
released. includes personal addresses, telephone numbers, email addresses, ?rst 5 digits of
social security numbers, dates of birth, ?nancial account numbers, and the names of minors.

7. To protect the safety of potential witnesses all persons who are not parties to the trial shall be
referenced by initials of first and last name in any Defense ?ling publicly released.

So ORDERED: this _day of March 2012.

DENISE R. LIND
COL, IA
Chief Judge, Judicial Circuit

20918

From:

To:

Cc: I
-

subject:

Data: Tuesday, March 27, 2012 6:14:00 PM
A?ldlm??t?

Ma'am,
The govemment is sending you three emails with attadied protective orders.

This email contains all the military protective orders in place prior to referral and an example of their

v/r
MAJ Fein

From: Lind, Denise COL USARMY (us)

Sent: Tusday, March 27, 2012 3:42 PM

To: Fein, Ashden MAJ USA David Coombs

Cc: Kemkes, Matthew MAJ USARMY Boudiard, Paul CPT USARMY Santiago, Melissa
CW2 USARMY Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA
Whyte, Jeffrey H. CPT USA Ford, Arthur D. CNVZ USA
Prather, Jay CIV Williams, Patricia CIV SJA

Subject: Protective Orders (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Counsel,
Trial counsel, by (308 today, provide the Court with a copy of all protective
orders issued to the defense prior to referral regarding defense discovery.

Thank you,

Denise R. Lind
COL, JA
Chief Judge, 1st Judicial Circuit

??-?-Original
From: Fein, Ashden USA SJA

. 0 20920

Sent: Monday, Mar 25, 2012 9:55 AM

To: Lind, Denise COL USARMY David Coombs

Cc: Kemkes, Matthew MAJ USARMY Bouchard, Paul CPT USARMY
Santiago, Melissa 5 CW2 USARMY Morrow JoDean, CPT USA
Overgaard, Angel CPT USARMY Whyte, Jeffrey CPT
USARMY Ford, Arthur Jr CW2 USARMY Prather, Jay CIV
Williams, Patricia A CIV (US)

Subject: RE: Defense's Release of Court Filings (UNCLASSIFIED)

Ma'am,

The teleconference bridge is reserved for 2 hours on 28 March 2012
(1300-1500).

The dial-in instructions are:

Note: when you dial, you will be asked to input this PASSCODE: "183603".
Afterwards, dial the key to join the conference call. The line will
beready 5 minute prior to start of teleconference.

v/r
MAJ Fein

From: Lind, Denise COL USARMY (us)

Sent: Monday, March 26, 2012 9:54 AM

To: Fein, Ashden USA David Coombs

Cc: Matthew kernkes; Boudiard, Paul CPT USARMY Santiago, Melissa

QN2 USARMY Morrow JoDean, CPT USA Overgaard,
Angel M. CPT USA Whyte, Jeffrey H. CPT USA
Ford, Arthur D. CW2 USA
Prather, Jay CIV Williams, Patricia CIV JFHQ-N

Subject: RE: Defense's Release of Court Filings (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Counsel,

1300 on 28 March 2012 is ?ne.

Denise R. Lind

COL, JA
Chief Judge, 1st Judicial Circuit

From: Fein, Ashden USA SJA

I I

ent: on ay, ar 1 AM
To: Lind, Denise COL USARMY David Coombs
Cc: Kemkes, Matthew MAJ USARMY Bouchard, Paul CPT USARMY

Santiago, Melissa CW2 USARMY Morrow JoDean, CPT USA
Overgaard, Angel CPT USARMY Whyte, Jeffrey CPT
USARMY Ford, Arthur Jr cw2 USARMY
Prather, Jay CIV Williams, Patricia A CIV (US)

Subject: RE: Defense's Release of Court Filings (UNCLASSIFIED)

Ma'am
I

Both parties recommend 1300 on Wednesday (28 Mar) for the telephonic RCM 802
conference. The United States will establish a 2 hour long bridge.

v/r
MAJ Fein

From: Lind, Denise COL USARMY

Sent: Friday, Mardi 23, 2012 6:35 PM

To: David Coombs

Cc: Matthew kemkes; Bouchard, Paul CPT USARMY Santiago, Melissa 5

CW2 USARMY Morrow JoDean, CPT USA Overgaard,
Angel M. CPT USA Whyte, Jeffrey H. CPT USA

Ford, Arthur D. USA
Prather, Jay CIV Williams, Patricia CIV JFHQ-NC MDW Fein,

Ashden MAJ USA SJA
Subject: RE: Defense's Release of Court Filings (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Counsel,

Please confer and schedule a telephonic RCM 802 conference with me Tuesday
or Wed after 1000.

Thank you,

Denise R. Lind
COL, JA
Chief Judge, 1st Judicial Circuit

From: David Coombs

Sent: Friday, March 23, 2012 6:03 PM

To: Lind, Denise COL USARMY (US)

Cc: Kemkes, Matthew MAJ USARMY Bouchard, Paul CPT USARMY
Santiago, Melissa CW2 USARMY ?Morrow JoDean, CPT USA
Overgaard, Angel CPT USARMY Whyte, Jeffrey CPT
USARMY Ford, Arthur Jr CW2 USARMY

Prather, Jay CIV Williams, Patricia A CIV in, en

USARMY (US)

Subject: RE: Defense's Release of Court Filings (UNCLASSIFIED)

Ma'am,

Just to be clear, die Defense does not intend to publish any attachments;
thus, the concerns about discovery are unwarranted. We request that this
issue be resolved in a timely manner, as we would like to make public our

?lings for the next Article 39(a).

v/
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282

Notice: This transmission, induding attachments, may
contain con?dential attomey-dient information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all oopies. Unauthorized disclosure, copying
or use of this information may be unlawful and is

From: Lind, Denise COL USARMY (us)

Sent: Friday, March 23, 2012 5:52 PM

To: David Coombs

Cc: Kemkes, Matthew MAJ USARMY Boudiard, Paul CPT USARMY
Santiago, Melissa 5 CW2 USARMY ?Morrow JoDean, CPT USA
Overgaard, Angel CPT USARMY Whvte, Jeffrey CPT
USARMY Ford, Arthur Jr CW2 USARMY

Prather, Jay CIV Williams, Patricia A CIV Fein, Ashden
USARMY (US)

Subject: RE: Defense's Release of Court Filings (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Counsel,

Do not publish any ?lings on the intemet until I have had an opportunity
to consider the position of the parties.

Denise R. Lind
COL, JA
Chief Judge, 1st Judicial Circuit

From: David Coombs

Sent: Friday, March 23, 2012 5:45 PM

To: Lind, Denise COL USARMY (US)

Cc: Kemkes, Matthew] MAJ Bouchard, Paul CPT USARMY
Santiago, Melissa ON2 USARMY ?Morrow JoDean, CPT USA
Overgaard, Angel CPT USARMY (US): Whvte, Jeffrev CPT
USARMY Ford, Arthur Jr USARMY

Prather, Jay CIV Williams, Patricia A CIV Fein, Ashden MAJ
USARMY (US)
Subject: RE: Defense's Release of Court Filings

Ma'am,

The proceedings have not been suf?ciently open and transparent, as
evidenced by this second letter that has been sent by the Center for
Constitutional Rights regarding these proceedings. The Defense does not
concur with the Government's dire predictions. In Federal cases that
involve dassi?ed information (such as the recent Drake case), the

The Defense intends to publish its motions starting on Monday, unless
subject to a gag order. with regards to future motions, the Defense intends
to publish its motions a few days after ?ling so as to ensure that there is

v/
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282

Notice: This transmission, including attachments, may
contain confidential attomey-dient infonnation and is intended for the
peison(s) or company named. If you are not the intended recipient, please
notify the sender and delete all oopies. Unauthorized disclosure, copying
or use of this information may be unlawful and is

From: Fein, Ashden MAJ USA SJA

Sent: Fn' y, Mar 2 2012 5: 3 PM

To: Lind, Denise COL USARMY (US)

Cc: David Coombs; Matthew kemkes; Bouchard, Paul CPT USARMY
Santiago, Melissa CW2 USARMY Morrow JoDean, CPT USA
Overgaard, Angel M. CPT USA Whyte,
Jeffrey H. CPT USA Ford, Arthur D. CW2 USA
?rather, Jay CIV Williams, Patrida

CIV -

Subject: Defense's Release of Court Filings

Ma'am,

The United States opposes the defense's request to freely publish all
motions, responses, and replies on the Internet. The defense's requst
would act to publidze information provided to the defense in discovery, the
public disdosure of which may require outside agency approval and the
substance of which may cause irreparable prejudice to the United States.
Much of the information in this case was disclosed under various protective

orders which remain in effect, including grand jury subpoena information,
Secretary of the Army 15-6 investigation information, and law enforcement
sensitive information. This protected information was provided to the
defense for discovery and under the speci?c condition not to publish or
release it outside of the specific individuals who were allowed access to
the information.

The defense purports that it wants to publish this information online to

keep the public informed of the proceeding. The public, however, is already
well informed of the proceedings. The public was present at the Article 32
hearing, the arraignment, and the ?rst motions hearing, and will continue

to be present at all open portions of the motions hearings and the trial.

The command provided the theater next door for over?ow area so that the
public can freely watch the proceedings and the media operations center for
the media. Additionally, other than the electronic filing process, the

military justice system is more open than the federal system from the
Article 32 proceedings through the end of the trial.

The United States does not intend to publish its pleadings online. If the
defense remains intent on publishing all pleadings and their enclosures
online, the United States requests the opportunity to ?le a motion for a
protective order or multiple protective orders under RCM 701(g)(2) and
806(d) for the Court to regulate the defense's use of information gained
through discovery. Additionally the United States requests the Court allow
the prosecution thirty days to receive input from all the different federal
entities on what information they provided for discovery which they did not
intend to be made publically available. The sole purpose of discovery is to
prepare for trial. Motions are ?led to shape legal issues and belong to

the Court. Most motions, motions to suppress or exclude evidence or
testimony, are not appropriate for publication. Freely publicizing all
pleadings, at this stage of the proceedings, may undermine the
effectiveness of the publicity order and will circumvent those measures
adopted to regulate what is available to the public and signi?cantly
jeopardize many interests of the United States, to include, protecting
dassified information (in the case of a spillage), preserving the
con?dentiality of law enforcement information, preventing potential
witnesses from receiving information outside the scope of their projected
testimony, protecting tstifying witnesses, protecting trial participant
safety, protecting the personal information of potential panel members,
preventing disclosure of government information that threatens national
security and is unclassi?ed, and the deliberative processes of the United
States Government. Furthermore, the United States believes that the
defense's intended course of action would result in a substantial likelihood
of materially prejudicing the proceeding, in violation of, inter alia, RCM
806(d) and Army Regulation 27-26, speci?cally Rule 3.6.

v/r
MAJ Fein

Classi?cation: UNCLASSIFIED
Caveats: NONE

Classi?cation: UNCLASSIFIED
Caveats: NONE

Classi?cation: UNCLASSIFIED
Caveats: NONE

Classi?cation: UNCLASSIFIED
Caveats: NONE

MEMORANDUM FOR Convening Authority

SUBJECT: Acknowledgment of Protective Order for the Secretary of the Army AR 15-6
Investigation United States v. PFC Bradlev Manning

1. I. Dr . (i - have read and understand the protective order, dated 22
June 2011. relating to the SecArmy AR 15-6 Investigation, andl agree to comply with the
provisions thereof. I understand that further disclosure of the SecArmy AR 15-6 Investigation is
unauthorized unless the disclosure adheres to the requirements of the protective order.

2. I understand that the unauthorized disclosure, unauthorized retention, and negligent handling
of the SecA.rmy AR 15-6 Investigation will result in the Convening Authorit_v?s review of the
access procedures utilized in this case and may limit ease of access to all evidence related to this
case in the future.

3. If I am uncertain about whether documents or information are covered by this protective
order, I understand that I must con?rm with the Convening Authority through the trial counsel.

4. I understand that I remain bound to this agreement after the conclusion of all proceedings, if
any, in the above referenced case. Upon termination of all proceedings, the sensitive information
disclosed in this case shall be returned to the trial counsel.

DATE

DEPARTMENT OF THE ARMY
JOINT BASE IJYEFI-HENDERSON I-IALL
204 LEE AVENUE
FORT men, VIRGINIA 22211-1199

IMND-MI-II-I-ZA 2-Z

MEMORANDUM FOR SEE DISTRIBUTION
SUBJECT: Protective Order for Law Enforcement Sensitive Information and Other Sensitive
Information United States v. PFC Bradley M@mg?

1. PURPOSE. The purpose of this protective order is to prevent the unauthorized disclosure or
dissemination of law enforcement sensitive information, grand jury information, search warrant

documents, and applications and orders pursuant to 18 U.S.C. 2703(d) (hereinafter ?sensitive
information"). This protective order covers all sensitive infonnation previously available to the
accused, defense counsel, or other authorized recipients in the course of this case or which will
be made available to the accused, defense counsel, and other authorized recipients of sensitive
information in this case.

2. APPLICABILITY. Without authorization from me, defense counsel shall not disclose or
distribute sensitive information to any person or entity other than the following ?authorized
recipients?: other defense counsel of record for the accused; the accused; any
associate, paralegal, or clerical employee involved in the defense of the accused; the Article
32 Investigating Of?cer; third parties whose testimonies are taken in this action, but only to
the extent necessary to elicit testimony concerning the statement; and independent experts
needed to provide technical or expert services or testimony in the prosecution of the accused.

3. ORDER. In order to protect sensitive information, it is hereby ORDERED:

a. Authorized recipients shall not disclose sensitive information to any person not named
above. Defense counsel may only provide sensitive information to the above authorized
recipients when necessary for the purpose of preparing a defense to the charges pending against
the accused.

b. The procedures set forth in this protective order apply to sensitive information disclosed
in this case, including all sensitive documents and associated materials previously disclosed
during discovery.

c. The term ?sensitive information? refers to:

(1) all law enforcement sensitive information and documents (or information contained
or referenced therein) disclosed to authorized recipients as part of the proceedings in this case,
including without limitation, U.S. Army Criminal Investigation Command reports and exhibits,
Federal Bureau of Investigation reports and exhibits, Diplomatic Security Service reports and

. . 20928
IMND-MHH-ZA

SUBJECT: Protective Order for Law Enforcement Sensitive Information and Other Sensitive
Information United States v. PFC Bradle Mannin

exhibits, and other law enforcement sensitive reports, operational details and reports,
investigative details and reports, and any attachments thereto;

(2) any information related to the locations, functions, or activities of any
Support Teams or any member thereof;

(3) all federal district court documents and associated materials disclosed to authorized
recipients as part of the proceedings in this case, including without limitation, grand jury
information, search warrant documents, and applications and orders pursuant to 18 U.S.C.
2703(d); and

(4) information and documents known or that reasonably should be known by
authorized recipients to be sensitive information.

d. The words "documents" or "associated materials" as used in this protective order include,
but are not limited to, all written or printed matter of any kind, formal or informal, including the
originals and all non-identical copies, whether different from the original by reason of any
notation made on such copies or otherwise, including, without limitation, papers,
correspondence, memoranda, notes, letters, telegrams, reports, summaries, inter-office and intra-
of?ce communications, notations of any sort, bulletins, teletypes, telefax, invoices, worksheets,
and all drafts, alterations, modi?cations, changes, and amendment of any kind to the foregoing,
graphic or aural records or representations of any kind, including, without limitation,
photographs, charts, graphs, micro?che, micro?lm, video tapes, sound recordings of any kind,
motion pictures, any electronic, mechanical or electric records or representations of any kind,
including, without limitation, tapes, cassettes, CDs, DVDs, thumbdrives, hard drives, other
recordings, ?lms, typewriter ribbons and word processor discs or tapes.

e. The word ?or" should be interpreted as including ?and,? and vice versa; ?he? should be
interpreted as including ?she,? and vice versa.

f. Authorized recipients must sign a written acknowledgment (enclosed) that they are bound
by the terms of this protective order as a condition precedent to the disclosure of information.

g. Authorized recipients must also sign a copy of any relevant district court disclosure and
protective order after having read the protective order and having the contents of the protective
order fully explained to them by defense counsel.

h. Defense counsel shall prepare a list of the names of all persons to whom sensitive
information is disclosed and obtain a copy of their signed acknowledgments. Defense counsel
will ?le the list and acknowledgments with the trial counsel prior to receiving the protected
sensitive information. Prior to any additional disclosure of sensitive information, defense
counsel must supplement the list and ?le additional acknowledgments with the trial counsel.

IMND-MHH-ZA

0 20929

SUBJECT: Protective Order for Law Enforcement Sensitive Information and Other Sensitive
Information - United ?tates v. PFC Bradlev Manning

i. Upon termination of all proceedings, if any, the sensitive information disclosed in this

case shall be returned to the trial counsel.

j. If authorized recipients are uncertain whether documents or information are covered by
this protective order, they must con?rm with me through the trial counsel.

Authorized recipients are advised that a violation of this protective order will result in my
review of the access procedures utilized in this case and may limit ease of access to all evidence
related to this case in the future. Violations of this protective order may also violate federal
district court disclosure and protective orders and will result in the forwarding of your name to
the U.S. Attorney?s Of?ce for the Eastern District of Virginia.

4. MODIFICATION. Should the accused or any other party listed in paragraph 2 wish to
disclose sensitive information to any person or for any purpose other than those indicated in
paragraph 2, they may, upon written request, seek modi?cation of this protective order through

the trial counsel to me.

5. NOTIFICATION. If you suspect or have reason to believe that any unauthorized disclosure
of sensitive information has occurred, notify me through the trial counsel as soon as practicably

possible.

6. Nothing contained in this protective order shall be construed as a waiver of any right of the

accused.

Encl
Acknowledgment

DISTRIBUTION: (w/encl)
Defense Counsel

Accused

Article 32 Investigating Of?cer

CARL R. COFFMAN, JR
COL, AV
Commanding

MEMORANDUM FOR Convening Authority

SUBJECT: Acknowledgment of Protective Order for Law Enforcement Sensitive Information
and Other Sensitive Information United ?tates v. PFQ Bradley Manning

1. I, 9 have read and understand the protective order, dated 22
June 2011, relating to sensitive information, and I agee to comply with the provisions thereof. I
understand that further disclosure of this sensitive information is unauthorized unless the
disclosure adheres to the requirements of the protective order.

2. I understand that the unauthorized disclosure, unauthorized retention, and negligent handling
of this sensitive information will result in the Convening Authority's review of the access
procedures utilized in this case and may limit ease of access to all evidence related to this case in
the future. Violations of this protective order may also violate federal district court disclosure
and protective orders and will result in the forwarding of my name to the U.S. Attomey?s O?ice
for the Eastern District of Virginia. I understand that I also must sign a copy of any relevant
district court disclosure and protective order as a condition precedent to receiving grand jury
information, search warrant documents, and applications and orders pursuant to 18 U.S.C.
2703(d).

3. If] am uncertain about whether documents or information are covered by this protective
order, I understand that I must con?rm with the Convening Authority through the trial counsel.

4. I understand that I remain bound to this agreement after the conclusion of all proceedings, if
any, in the above referenced case. Upon termination of all proceedings, the sensitive information
disclosed in this case shall be returned to the trial counsel.

DATE SIGNATURE

MEMORANDUM FOR Convening Authority

SUBJECT: Acknowledgment of Protective Order for Law Enforcement Sensitive Information
and Other Sensitive Information United States v. PFC Bradley Manning

1. l, g? that it have read and understand the protective order, dated 22
June 2011, relating to sensitive information, and I agree to comply with the provisions thereof. I
understand that further disclosure of this sensitive information is unauthorized unless the
disclosure adheres to the requirements of the protective order.

2. I understand that the unauthorized disclosure, unauthorized retention, and negligent handling
of this sensitive information will result in the Convening Authority?s review of the access
procedures utilized in this case and may limit ease of access to all evidence related to this case in
the future. Violations of this protective order may also violate federal district court disclosure
and protective orders and will result in the forwarding of my name to the US. Attorney?s Office
for the Eastern District of Virginia. I understand that I also must sign a copy of any relevant
district court disclosure and protective order as a condition precedent to receiving grand jury
information. search warrant documents. and applications and orders pursuant to 18 U.S.C.
27(l3(d).

3. If lam uncertain about whether documents or information are covered by this protective
order. I understand that 1 must confirm with the Converting Authority through the trial counsel.

4. I understand that I remain bound to this agreement after the conclusion of all proceedings, if

any, in the above referenced case. Upon termination of all proceedings, the sensitive information
disclosed in this case shatl be returned to the trial counsel.

I
at?? Ev

hire I

DEPARTMENT OF THE ARMY
JOINT BASE MYER-HENDERSON HALL
204 LEE AVENUE

FORT MYER, VIRGINIA 22211-1199
ATTENTION or

IMND-MHH-ZA 17 September 2010

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Protective Order for Classi?ed Information United States v. PFC Bradley Manning

1. PURPOSE. The purpose of this Protective Order is to prevent the unauthorized disclosure
or dissemination of classi?ed national security information in the subject named case. This
Protective Order covers all information and documents previously available to the accused in the
course of his employment with the United States Govern.ment or which have been, or will be,
reviewed or made available to the accused, defense counsel, and other recipients of classified
information in this case.

2. APPLICABILITY. ?Persons subject to this Protective Order? include the following:
a. the Accused;
b. Military and Civilian Defense Counsel and Detailed Military Paralegals;

c. Members of the Defense Team IAW M.R.E. 502 and U.S. v. Toledo, 25 M.J. 270
(C.M.A. 1987);

d. Security Officers;

e. Members of the Rule for Courts-Martial 706 Inquiry Board; and

f. Behavioral Health Providers for the Accused.
3. ORDER. In order to protect the national security and pursuant to the authority granted under
Military Rule of Evidence (MRE) 505, relevant executive orders of the President of the United
States, and regulations of the Departments of Defense and of the Amiy, it is hereby ORDERED:

a. The procedures set forth in this Protective Order and the authorities referred to above will
apply to the Rule for Courts?Martial (RCM) 706 inquiry, Article 32 investigation, pretrial, trial,
post-trial, a11d appellate matters concerning this case.

b. The term ?classified information" refers to:

(1) any classi?ed document (or infomiation contained therein);

0 20933

SUBJECT: Protective Order for Classi?ed Information United States v. PFC Bradle Mannin

(2) information known or that reasonably should be known by persons subject to this
Protective Order to be classi?able. If persons subject to this Protective Order are uncertain as to
whether the information is classi?ed, they must con?mi whether the information is classi?ed;

(3) classi?ed documents (or information contained therein) disclosed to persons
subject to this Protective Order as part of the proceedings in this case;

(4) classi?ed documents and information which have otherwise been made known to
persons subject to this Protective Order and which have been marked or described as:
or

c. All such classi?ed documents and information contained therein shall remain classi?ed
unless such classi?ed information bear clear indication they have been declassi?ed by the
government agency or department that originated the document or information contained therein
(hereinafter refeired to as ?original classi?cation authority?).

C1. The words "documents" or "associated materials" as used in this Protective Order
include, but are 11ot limited to, all written or printed matter of any kind, formal or informal,
including the origina.ls and all non-identical copies, whether different from the original by reason
of any notation made on such copies or otherwise, including, without limitation, papers,
correspondence, memoranda, notes, letters, telegrams, reports, stunmaries, inter?of?ce and intra-
of?ce communications, notations of any sort, bulletins, teletypes, telefax, invoices, worksheets,
and all drafts, alterations, modi?cations, changes, and amendment of any kind to the foregoing,
graphic or aural records or representations of any kind, including, without limitation,
photographs, charts, graphs, micro?che, micro?lm, video tapes, sound recordings of any kind,
motion pictures, any electronic, mechanical or electric records or representations of any kind,
including, without limitation, tapes, cassettes, CDs, DVDs, thumbdrives, hard drives, other
recordings, ?lms, typewriter ribbons and word processor discs or tapes.

e. The word ?or? should be interpreted as including ?and?, and vice versa; ?he? should be
interpreted as including ?she?, and vice versa.

f. Persons subject to this Protective Order are advised that direct or indirect unauthorized
disclosure, retention, or negligent handling of classi?ed infomiation could cause serious and, in
some cases, exceptionally grave damage to the national security of the United States, or may be
used to the advantage of a foreign nation against the interests of the United States. These
security procedures are designed to ensure that persons subject to this Protective Order will never
divulge the classi?ed information disclosed to them to anyone who is not authorized to receive it,
without prior written authorization from the original classi?cation authority and in conformity
with these procedures.

g. Persons subject to this Protective Order are admonished that they are obligated by law
and regulation not to disclose any classi?ed information in an unauthorized fashion.

20934

SUBJECT: Protective Order for Classi?ed Information - United States v. PFC Bradle I Mannin

11. Persons subject to this Protective Order are admonished that any breach of the security
procedures in this Protective Order may result in the termination of their access to classi?ed
information. In addition, they are admonished that any unauthorized disclosure, possession, or
handling of classi?ed infonnation may constitute violations of United States criminal laws,
including but not limited to, the provisions of Sections 641, 793, 794, 798, and 952, Title 18,
United States Code, and Sections 421 and 783(b), Title 50, United States Code. ln addition, for
those persons who are attorneys, a report will be ?led with their State Bar Association.

4. Prior to any RCM 706 inquiry, Article 32 investigation, or court?martial proceeding, a
security officer will be appointed in writing and served with a copy of this protective order.

5. Personnel Security Investigations and Clearances

a. The storage, handling, and control of classi?ed information requires special security
precautions mandated by statute, executive orders, and regulations, and access to which require a
security clearance.

b. Once a person subject to this Protective Order obtains a security clearance and executes a
non-disclosure agreement (SF 312), that person is eligible for access to classified infonnation,
subject to the convening authority?s disclosure determination.

c. As a condition of receiving classified infomiation, any retained civilian defense counsel
will agree to the conditions speci?ed herein and execute all necessary fonns so that the
Department of the Army may complete the necessary personnel security investigation to make a
determination whether to grant access. Any retained civilian defense counsel will also sign the
Acknowledgment of Protective Order (hereinafter Any retained civilian
defense counsel shall also sign a standard form nondisclosure agreement (SF 312) as a condition

cl. In addition to the Acknowledgment, any person who as a result of this case gains
access to information contained in any Department of the Army Special Access Program,
as that term is defined in Executive Order 13526 [or for events occurring before 27 June
2010, 13.0. 12958], or to Sensitive Compartmented Information (SCI), shall sign any
nondisclosure agreement which is speci?c to that Special Access Program or to that
Sensitive Compartmented Information.

e. All other requests for clearances for access to classi?ed information in this case for
persons not named in this Protective Order or for clearances to a higher level of classi?cation,
shall be made through the trial counsel to the convening authority.

f. The security procedures contained in this Protective Order shall apply to any civilian
defense counsel retained by the accused, and to any other persons who may later receive

classi?ed information from the US. Department of the Army in connection with this case.

6. Handling and Protection of Classi?ed Information

. . 20935
IMND-MHH-ZA

SUBJECT: Protective Order for Classi?ed Infomiation United States v. PFC Bradley Manning

a. All persons subject to this Protective Order shall seek guidance from their respective
security of?cers with regard to the appropriate storage and use of classi?ed information.

b. The defense security officer will ensure appropriate physical security protection for any
materials prepared or compiled by the defense, or by any person in relation to the preparation of
the accused?s defense or submission Lmder MRE 505. The materials and documents (de?ned
above) requiring physical security include, without limitation, any notes, carbon papers, letters,
photographs, drafts, discarded drafts, memoranda, typewriter ribbons, computer diskette,
magnetic recording, digital recordings, or other documents or any kind or
description.

c. Classi?ed information, or information believed to be classi?ed, shall only be discussed in
an area approved by a security of?cer, and in which persons not authorized to possess such
information cannot overhear such discussions.

d. No one shall discuss any classi?ed information over a standard commercial telephone
instrument, an inter?of?ce communication system, or in the presence of any person who is not
authorized to possess such infomiation.

e. Written materials prepared for this case by persons subject to this Protective Order shall
be transcribed, recorded, typed, duplicated, copied, or otherwise prepared only by persons who
this Protective Order.

f. All mechanical devices, of any kind, used in the preparation or transmission of classi?ed
infomiation in this case may be used only with the approval of a security of?cer.

g. Upon reasonable advance notice to the trial counsel or a security of?cer, defense counsel
shall be given access during normal business hours and at other times on reasonable request, to
classi?ed documents which the government is required to make available to defense counsel but
elects to keep in its possession. Persons permitted to inspect classi?ed documents by this
Protective Order may make written notes of the documents and their contents. Notes of any
classi?ed portions of these documents, however, shall not be disseminated or disclosed in any
marmer or form to any person not subject to this Protective Order. Such notes will be secured in
accordance with the tenns of this Protective Order. Persons permitted to have access to
classi?ed documents will be allowed to view their notes wit.hin an area designated by a security
of?cer. No person pemritted to inspect classi?ed documents by this Protective Order, including
defense counsel, shall copy or reproduce any part of said documents or their contents in any
manner or fonn, except as provided by a security of?cer, after he has consulted with the trial
counsel.

h. The persons subject to this Protective Order shall not disclose the contents of any
classi?ed documents or infomiation to any person not named herein, except the trial counsel and
military judge.

0 0 20936

SUBJECT: Protective Order for Classi?ed Infonnation United States v. PFC Bradley Manning

i. All persons given access to classi?ed information pursuant to this Protective Order are
advised that all information to which they obtain access by the Protective Order is now and will
forever remain the property of the United States Government. They shall return all materials
which may have come into their possession, or for which they are responsible because of such
access, upon demand by a security officer.

j. All persons subject to this Protective Order shall sign the Acknowledgment, including the
defense counsel and accused. The signing and ?ling of this Acknowledgment is a condition
precedent to the disclosure of any classi?ed information to any person subject to this Protective
Order.

7. This Protective Order supersedes all previous protective orders. Nothing contained in this
Protective Order shall be construed as a waiver of any right of the accused.

R. COFFMAN,
COL, AV

DISTRIBUTION:

1-Trial Counsel

1-Civilian Defense Cotmsel
1-Senior Military Defense Cotmsel
l?Accused

1-Defense Experts

1-R.C.M. 706 Inquiry Board

0 0 20937

DEPARTMENT OF THE ARMY
1ST ARMORED Division AND
UMTED STMES
CAMP LIBERTY, tt=tAQ
APO AE 0934.:

?G_jm_m_

AE -THE

FOR Slit?

Si Protecth-e Order

1. in order to protect the and pursttans to the authority granted under Military
Rule of Evidence tMRl;l 505. relevant executive orders ofthe President of the United States. and
ofthe Department ofthe Arm}; 1 ORDER:

at. ?i he following procedures. MRE 505. and the authorities referred to ohm will
apply to all matters concerning the 'tovestigation into alleged :ift'cnses. pr:-trial negotiations. and
Articic 32. Liniliomr Code ofMilit:tr_v Justice (LICMJ), pre-trial investigation in this

ii. :15 used herein. the term ?classified intorrnatioit or document" relers to:
any classified document (or information conutinet: therein):
(3 tnfomtatton lxnown by the accused or defense counsel to be

ciassitied documents tor information contained therein) disclosed to the accused or
defense counsel as pan ofthe procmdittgs in this case;

t-?ll documents and inform atiort which have otherwise been made known to Ute
accused or defense and which but been rnarlted or described as:
or OP

c. All such classilicd documents and inforrnation contained therein shall remain ctassi?cd
ttn.css the} beat? a Clear intiicatioit that they have been of?ciatly declassi?ed by the Government
agency or department that originated the document or the contained therein
(hereinafter referred to 21-: the "originating

d. The words "documents" or "a:;sticiated materials." as used in this Order include. but are
not limited to. ali or printed matter ol'art)' kirtd. formal or intormai. including the
origittals and all non-identical copies. whether from the original by reason ofan}
notation made on such copies or otltemise. including. Vt-3111015! iirnitation. papers.
rnemoranda- notes. letters. telegrams. reports. summaries. inter-ottice and intra-
office notations. o1'an_v sort telex. invoices. and
all drafts. alterations. ntodilicattons. changes and amendment otiany kind to the foregoing.
graphic or aural record:-' or representations ofany kind. incltiding, without limitation.
photographs. charts. graphs. micro?che. microfilm, video tapes. sound recordings of-nn_t kind.

0 0 20938

1 -Tit/S
Si Order

ttlotion pictures- au_\ eicctronic; mechanical or electric records or representations ofany kind.
including without limitation. tapes. cassettes. discs. recording. lilms. typewriter ribbons and
word processor discs or tapes.

e. The word "or" should be interpreted as including ?and" and vice tersa.

l? Those named hereut are adt ised that direct or indirect unauti?.ori7cd disclosure. retention.
or negligent handling of classified information could cause serious and. in some cases.
cxceptionall} grave damage to the national security ofthc Urjted States. or mag. he used to the
advantage ot'a foreign nation against the interests oi" the United States. lihese Sccurit}
Procedures are to ensure that persons suhiect to these Procedures will never divulge the classi?ed
information disclosed to them to Hn}0l1L? who is not authorized by the carigittating agency and in
with these prot etlures.

Persons subject to these Procedures are admonished that they are obligated by law and
regulation not to disclose any classi?ed national security information in an unauthorized titshion.

?ti. Persons subject to these Procedures are admonished that any breach olthese
the) are admonished that an) unauthorized disclosure. possession or handling ofclassilied
may constitute \i0iaIi0!1S of United States criminal laws. including but not limited
to. the proxisions of Sections ?241. 793. 794. 798 and 0:32. Title 18. nitcd States Code. and
Sections 421 and 733th). Iitie 50. United States Code. In addition. for those persons who are
attorne} s. a report \\lii be liked with their State Bar ?tssociation.

1 information in the public domain is ordinarily not classi?ed. Holt-ever. it? classilice
ictliormation is reported in the press or enters the public domain. the i nfomtattott does
not lose its classified status merely because it is in the public domain. An} attempt by the
defense to hat classi?ed infomtation that has been reported in the public domain but uhich it
knot?. or has reason to believe is classilied. conlirmcd. or denied at triai or in an). publzc
H'|li'l15 case shall be governed by Section 3 of the Ciassitied Procedures
Act. IR US. Code Appendix Ill.

3. Personnel Security Investigations and Clearances. This case will in volve classi?ed national
security information or documents. be storage. handling. and control of uhich requires special
security precautions by statute. executive orders. and regttlations. and access to which
requires a special sceurtt} clearance.

at. "l he L?onxerung Authoritg.-' has been advised that the U?icer has the requisite
security clearance to have ac eess to the classi?ed and documents which will be at
issue in th.s ease The investigating (.)tliccr is to have unlettered access to that elassifcd
infomtatiort necessary to prepare for this mt estigation. subicct to requirement in paragraph

o. The Comenmg .-?tuthorttg. has been advised that the govenunertt trial counsel working on
this case i1C1\- the requisite securit) clearances to have access to the elassilied information and

0 0 20939

i
Si Prozcctive Order

jet-uments which vtill he at issue in this case. The government trial counsel are to have
unt?cttet'ed access to classi?ed information necessary to prepare for this in\'csngatzort, subject to
the in paragraph below.

c. the thnvening has been advised that I-?mate first Class (PFC) Brad.e_v
detailed defense counsel hat. the requisite security clearance to hate access to the
rclet ant and necessary classi?ed information and documents which will be at issue in this case.
As a condition of classi?ed inl'om1ation_ the detailed defense counsel agree to the .
conditions speci?ed herein this order.

ti As :1 condition of receiving classi?ed antonnation. an} retained defense counsel will

agree to the conditions speci?ed herein and execute all necessary forms so that the
ma} complete the necessary personnel security background inxestigation to make a
determination whether defense counsel is eligible lot a limited ac authorization. An}
retained defense counsel will also sign the statement in paragraph Se. 1 pan the execution and
filing of the statements set forth in paragraphs 3_c and by any retained defense counsel
possible. the required inquiries to ascertain defense counsel?: eligibility for access to classi?ed
information.

[here are two conditions precedent to obtaining access to tilt.? classi?ed int'ormanc?n at
it-3SL1Cll'1 this case.

tl All individuals. other than Lite Uf?ecr. and
detaiicd delense counsels and personnel til? the originating agency . can obtain access only after
ha?. ing provided the necessar} information required for, and having been granted. a securit)
clearance or Limited Access Authorization by the Department of the Army or Department of
State. through the investigation Sccurit} Ofliecr: and

(2) Each person. otherthan the Department of named herein and
personnel of the originating agency. before being granted access to classiticti information must
also Sign .1 sworn statement that states:

if (LP

I I that I mat be the recipient :'mor'mrmon
uml that til and that In the?
States and with the imre read and zmderxiumf the rgfitire
'93. ?'94 and "95 of mic? I .niJed States (fade) t'mtcerm'ng the
0/ relating In the ncrtirlm-if rle/?tnxe raid the of the
.?denritie.c Proremrm At?: (.wch?on 43! of title 50. (.3-whet! States Code: and
am with the pen.-.thic; pr-at-rrlcu? for the ?ulcvm.-n

0 0 20940

V- l/
Protective Order

that I am! dimulgc, or rweut?, L?1lhL?)" ht word tvmiucr. air
an} metms. we/2 iztilirntalirirt Ur inIt'Htgen??t' ztniesx (mIh0ri:t'uurhowsed nfme US. or as
ntlteru rite by the Cam?! I fur:/tar czgret: I0 mhnii.? /nr
rm}; urncle. ur other ;mh1tm!mn t1err'rt=djrun1 or base upon or
informurrtm gunted in I/re of Citfled .1 ?r:t'uIe Fm?! "It/is Brut?et
/mtderstund this rericn it wleiytu ensure no nanrmul?
ix c'0r2Ic::'mi I/rervfn

3. 1 that rim it-if! rernmn mu u?er the
0/lrhe in tin? case? u/ 'm'Ied Slrries? Pritgle HrsI_

4. reudtmd zmderstunrl the mm-red lbs:
(?nm'ening -iur/7orir_t on . 301'?) in the case
Fin?! Bradley refuiirtg rt: irtfw'muI:rm. and I
ru cumpfy flu?

1 km?

Any \/iOl with A retained defense counsel shall inclutle a statenient cxpressiitg
that the failure to abide b} the terms 01' these Security Procedures xx Ell result in 3
report to his State Bar Association. Each such person the above statement must tile an
original with the ()ftit;cr and provide an angina! each to the Investigation Security
Ulfcer and the Cotinsel.

t. In addition to signing the NIOU in paragraph Se. any person who. as a result ufthis
imestigatinn. gains aces: 35; to inronmtion contained in any Department of the Special
Program. as that term is tlclincd in section 4.2 otfxceutivc Order 12356- to Qensitive
Contpartntented tSCl), or to any information subject In Special (Tate;-gory
ltattdling procedures. shall Sign arty non-diselosttre agrcentent which is speci?c to that Special
Access Program. S?I?lSt1l\ lnfonnation. or SPECAT inFonnarion_

3 All ntlter requests for clearances for access to classi?ed inforntatitm in this case by
persons not in these Procedures, or requests for clearances for access to information at a
higher {eve} ofelassiticationr shall he made to the Inxestlgatinn Securit} vtho, upon
approval the shall process the requests.

it. Bclore any person subject to these Securit} Procedures. other than
tnal counsel. detailed defense counsel. and personnel ufthe originating agcne) uho haxc
appropriate level security clearances. access 10 an; classified inftirtnatimt. that person
shall he with a copy ofthesc Procedures and shall execute the written agreement set limb
in paragraph

0 20941

rotectit Order

The Procedures shall apply to any delense co unscl of the accused. and to an) other
persons who may later recene classified information from the Department of the firm) or
Department ol?State in connection with this case.

- Handling; and Protection ol?Classifted lnlormation.

a. All counsel shall seek guidance from the liwestigation Security Dtlicer with regard to
appropriate storage and use ofclassificd information.

b. The lntestigatioit Security ()f'ficcr will provide appropriate physical security protection
tor any materials prepared or compiled by the defense. or by an_\ person in relation to tit
preparation of the accused's delense or submission under 505. The materials and
documents (de?ned above) requiring security include. without limitation. any notes.
carhon papers. letters. photographs. dr;u'ts- discarded drafts. memorattda. typewriter ribbons.
magnetic recording. or other documents or any kind or descriptiott. (.'lassilied materials prepared
b} the defense shall be maintained by the lmestigation Secunt} Oliliccr in a separate scaled
contaitter to which only the defense counsel shall hate access.

c. Classtlieddoeuments and information. or information bcliewed to be classi?ed shall be
discussed only in an area approx ed by ?die Int estigation Security f)f?fieer. and in which persons
not authorized to possess such information cannot overltcar such discussions.

J. one shall discuss any classified infonnation over any standard commercial telephone
instrumcn: or any inter-ollice communication system, or in the presence of an). person who is not
authorized to possess such

Written materials prepared for this case by the accused or defense counsel shall Dc
trariscrihcd. recorded. typed. duplicated. copied or otheru ise prepared only by persons who are

All mechanical devices olan) kind used in the preparation or transmission ofclassilied
i:tt'orntation in this case may be used only with the apprmal ofthe investigation Security Ol?cet
and in accordance with instructions he or she shall issue.

Upon reasonable notice ofthe lnrestigauoti Security Ol'ticet'. defense counsel
shall be given access during normal business hours. and at other times on reasonable request. to
classi?ed national security documents \-thich the government is required to make available to
defense counsel but elects to keep in its possession. Persons permitted to inspect elussilied
documents by t.-tcse Procedures may make written notes oi? the documents and their contents.
Notes olazt} classified portions of these documents. howcw er. shall not be disseminated or
disclosed in an} manner or form to an} person not subject to these Procedures. Such notes will
be secured in accordance with the terms of these Procedures. Persons permitted to have access to
ciassilied documents will be allowed to their notes withm an area designated by the
lniesttgation Security ()f?cer. No person permitted to inspect classi?ed documents b} these
Precedurcs. including defense counsel. shall copy or reproduce any part of said documents or

0 0 20942

I ii/.
Order

their contents in any maimer or form. except as prox-idcd by the investigation Otticcr.
utter he or She has consulted with the Convening Authority,

It Without prior authorization ofthe Department ofthe or Department of?tate. there
shatl be no disclosure to anyone not named in these Procedtues by persons who may later receive
a security clearance or limited access authorization lrom the Department ofthe Arm} or
Department ot?Statc in eonnecti on with this case except to or from got eminent einpioyees
acting in the course of their otticial duties) ofany classified national security information or
national security document (or information contained thereint until such time. ifcver. that such
documents or information are declassified.

The defense shall not disclose the contents of any classi?ed documents or intimnation to
any person except those persons identi?ed to them by the investigating as having the
appropriate clearances. and a need to know.

i. All persons gixen access to ciassilied information pursuant to these Procedures are
advised that all information to which they obtain access by these Procedures is now and will
remain the property of the United States Government They shall return ail materials
which rna?, have come into their possession. or for which they are responsibte because of such
access. upon demand by the investigation Securtt) (ttlicer.

L. cop} of these Procedures shall issue forthwith to defense counsel. with further order
that the defense trounsei advise the accused named herein of the contents Procedures.
and fumish him a copy, The accused. through defense counsel. shall sign the
statements set forth in paragraph Ffolithesc Procedures. and counsel Shall forthwith tiie an
original with the investigating Officer and provide an original each to the investigation Security
Ot't'rcer and the Govcrtuncnt Counsel. the signing and tiling ofthis statement by the accused IS
a condition precedent to the disclosure otetassitied to the accused.

5 Nothing. contained in these Procedures shall be construed as uaix er of any right

accused

i.
TERR
Maior General. ll?-RA

Commanding

ii 3 I
0li?.cet'
Trial (?oonsct
Defense Counsci

0 20943

DEPARTMENT OF THE ARMY
UNI rso sures DIVISION-CENTER
CAMP LIBERTY,
APO AE 09344

TO
5?

mama? OF . I

FOR Stir

St Protectit-e Order

I. in order to protect the national security and pursuant to the granted under Military
time of vtdence 505. relevant executive orders ofthe President of the United States. and
of the Department ofthc Arm}; I ORDER:

u. The follovting secttrit) procedures. MRE 505. and the authorities referred to 13hO\ will
app!) to all matters concerning the into alleged ::?ffettses. pr:-trial negotiations?. and
/trticic 32. Unilomt Code of Military pre-trial investigation in this caste.

h. As used herein. the term ?classified infotmatiott or document" refers to:
(I 3 any Classified document (or infomtatiori container. therein):
(2 tnfomtattott known by the accused or counsel to be classifiable:

ci:-tssitied documents tor information contained therein} disclosed to the accused or
defense counsel as part oi? the proceedings in this case;

(4) classi?ed documents and infonnation which have otherwise been made known to the
accused or detcnse counsel and whiclt hate been marked or described as:
or OP

c. All such classilicd documents and information cootaitted therein shall remain ctassificd
untess they bear a clear intiication that they have been of?ciaily declassi?ed by the Govemtnent
?agency or department that ttriginated the document or the contained therein
{hereinafter referred to as the ?originatir1?__' agertc y"l.

d. The words ''documents?' or materials" as used in this Order include. hut are
not limited to- ali xx ritten or matter ot'an}' kind. formal or ittforntai. including the
originals and all non-?identrcai t:0pies_ whether dil'l'erent from the original by reason ofan)

tation made on such copies Or otherwise. ittcludittg. Vt-iLi10ltI limitation. papers.
memoranda- notes. letters. telegrams. reports. summaries. inter-of?ce and
office notations sort httilctins. telex. invoices. worksheets, and
all dram. alterations. modi?cations. changes and amendment olany kind to the foregoing.
graphic or aural records or representations ofany kind- incltiding. without limitation.
photographs. charts. graphs. micro?che. microtilrn. Video tapes. sound recordings ofonx kind,

0 20944

.-XEJ
Si Order

tztotiun pictures. an) electronic; mechanical or electric records or representations ofany kind.
tneiuding without limitation. tapes. cassettes. discs. recording. lilms. typewriter ribbons and
word processor discs or tapes.

e. The vtord ?or" should be interpreted as ittcluding ?and" and vice

F. Those named herein are ad-. ised that direct or indirect unautltorizcd disclosure. retention.
or negligent handling of classified information could cause serious and. in some cases.
grave the national security ofthe Urited States. or may be used to the
advantage ot'a foreign nation against the interests of the l?nited States. lhcse Security
Procedures are to ensure that persons subject to these Procedures will ttevcr divulge the classi?ed
informtittott disclosed to them to anyone who is not authorized by the origittating agency and in
corilitrtnity with these prot etiurcs.

3. Persons subject to these Procedures are admonished that they are obligated bi law" and
regulation not to disclose any classi?ed national security information in an unauthorized litsltion.

h. l'er.sons subject to these Procedures are admonished that any breach
the} are admonished that an} unauthorized disclosure. possession or handling of classilied
may constitute iolatiotts of United States criminal laws. including but not limited
to. the provisions of Sections 641. 793. 794. 798 and 052. Title I8. Lirtitcd States Code. and
Sections 421 and 793i Title 50. United States Code. In addition. for those persons who are
attornejrs. a report will be ?led with their State Bar i\s5ot:iatton.

1 Information in the public domain is ordinarily not classi?ed. Hon-ever. ifclassiliee
irtlonnation is reported in the press or otherwise enters the public domain. the 1' nfomtattott does
not lose its ciassified status merely because it is in the public domain. Any attempt by the
tleiensc to hat classi?ed information that has been reported in the public domain but uhich it
or has reason to believe is ctassilied. or denied at trial or in art)
in this case shall be governed by Section 3 of the Classitied Procedures
Act. 18 US. Code Appendix ill.

3. Personnel Security Investigations and Clearances. This case will in volxc classified national
securit} information or documents. the storage. handling. and control of witich requires special
sec urity precautions mandated by statute. executive orders. and regulations. and access to which
requires a special security, clearance.

a. he Authonty has been advised that the investigating (tllicer has the requisite
security clearance to have access to the classitied and documents which will be at
issue in th.s case The lttvestigating Otlicct is to have unfettered access to that classified
information necessart to prepare for this subject to requirement in paragraph
bcl-mt

o. The Comening has been advised that the gUv'ct1t1tlC'l'l'l trial counsel working on
this case hate the l?L?qLliSilC security clearances to have access to the classilied information and

?i

Ft}:
Si Protective Order

dc-t-ziments which will he at issue in this case. The gowemment trial coitnsei are to have
unfettered access to elassitied infonnation necessary to prepare for this suhicet to
the requirements in paragraph 3.g. below.

as. the (?amt-ning Authonty has been advised that I-?mate first Class (PFC) Brad.c_v
detailed defense counsel hate the requisite sec urn)" clearance to hate access to the
and necessary classi?ed information and docurnents which will be at issue in this case.
As 3 condition classi?ed irilomtatitin. the detailed defense counsel agree to the
conditions specified herein this order.

a condition of receiving classi?ed intormation. any retained defense counsel will
agree to the conditions speci?ed herein and execute all necessary forms so that the Government
ma} complete the necessary personnel security background imestigation to make a
determination whether defense counsel is eligible for a limited access authorization. An)
retained defense counsel wilt also sign the statement in paragraph 3.e. pon the execution and
filing of the statements set forth in paragraphs 3c and 3.1" by any retained Llefense counsel
possible. the required inquiries to ascenain defense eligibility for access to classi?ed
infotrnation.

e. lhcre are two conditions precedent to obtaining access to tht.? classi?ed at
issue in this case.

i ti All individuals. other than the triiestigatittg Officer. and

detailed detense counsels and personnel of the originating agency. can obtain access only after
ha-. ing provided the necessar} infonnation required for, and having been granted. a securit}
ctearance or Limited Access Authorization by the Department of the Army or Department of
State. through the Investigation Security. Oftieer: and

(3) Each person. other than the Department t? Anny named herein and
personnel of the originating agency. before being granted access to elassi?etl information must
also Sign .1 sworn statement that states:

if

I I uriciei-stated that I may be the recipient ti}
um! Itztellrgenee that wneern.?- the .weur.rtj.' til the to the
Urzilerl '/?his and Will? the mcrimds of
and liurrd/Eng it. are to .s'et'm'iI_t= .st0nd'm-dx
h} the I i? timemnrent I Irate? read and tnzrierxratrtf the qftize e.spmnag?-
/rrwy ?ver?/inn. amt? "98 of [Me Hi?. I ?m'It.'d (fade;

din. to;-tire of to nutinmal tie/enxe and the of the
fderzrirtex Arr 43/ of fit/iv 50. Uni1ecl.9t:tre5 Cadet and
I aim fcrnii/fttr with the pemtlries proi-icletl for the? I/rereoft

. 20945

. 20946

I V- Ill/'
Protectixe Order

3 I agwt? that I wit?! nc*L'c'i? or rcttau-'. hf: or
we/2 iitiorntalirnz or r'nIeIligenc?ururlrorxsed nfrhe US. (?nt-ernmeirr or as
ordn.-red by the Crurr: I furs/ter czgr-cc to what}! for prepuhft'c'u!im1
rm): article, .tpcec'it. or rferircd from or base upon or
irtformumm gzuutcrl in rite course of !?rzmre 'Jm',s Brudh".
umlersrurid rim rerictt tolcly In Ifmr no national?
is curizui-tori therein

3. I rim ill remain fmzding Np?? u?er the
o/the in case til 1 First

4. I r?2m*e read and the the
convening -iurfrorit?t on . EMU in the case of
[Wrote Firtr Bradlct relating to um/1
In comply with the t'hc'r'cn}

flaw

Any VIOL with a retained defense counsel shall include a statcnient
that the {ailut-c to abide b_x tl-.c Security Procedures xx ill result in a
report to his State Bar Association. Each such person the above statement must tile an
original with the Oflicer and provide an original each to the Security
Otticer and the

t. in addition to signing the MOU in paragraph 3.c. any person who. as a result ofthis
Access Program. as that term is in section 4.3 01' Order 13356. to Sensitive
information (SCI). or to any subject to Special
handling shall Slg1?ti1It)' non-disclosure agreement which is speci?c to that Special
Program. Sensitite Compartmentcd information. or SPEC Al information-

All other requests for clearances for access to classi?ed information in this cast: by
persons not n.?rlt?.1Cd in these Procedures, or requests for clearances for access to in formation at a
higher level ofclassification. shalt he made to lnxestigation Security who, upon
approval cf the A uthortty. shall process the requests.

h. Belorc any person subject to Sccuril} Procedures. other than
trial counsel. detailed defense counsel. and personnel ufthc originating agenc} xx ho hate
appropriate security clearances. rCC?i\ es access to am} classi?ed inlurrnatimt. that person
shall be scrvecl uith a copy l?rocedu?cs and shall execute the written agreement set forth
in paragraph

0 0 20947

I V- i HZ
Protcctit Order

The Procedures shall apply to any defense counsel ol? the accused. and to an) other
persons who may later receive classified information from the Department of the Arm) oi
Dc ol'State in connection with this case.

- Handling and Protection olflassi?ed information.

a. All counsel shall seek guidance from the investigation Security Uf?cer with re_t;ard to
appropriate storage and use of classified tnlorznation.

b. The Security Officer will provide appropriate physical security protection
for any materials prepared or compiled by the dclense. or by an} person in relation to the
preparation ofthe accused's tlelensc or submission under MRE 505. he materials and
documents (de?ned above) requiring include. without limitation. an} notes.
carbon papers? letters. photographs. tl1".Llls- discarded drafts. memoranda. ty pcwriter ribbons.
magnetic recording. or other documents or any kind or clestzription. materials prepzued
b) the defense shall be maintained by the lmestigation Seeurit} Ollicer in a separate sealed
container to which only the defense counsel shall hate access.

Classtlied documents and information. or information beliesed to be classi?ed shall he
discussed only in an area approt ed by the Int estigation Security t?)??icer. and in which persons
not authorized to possess such intonnation cannot overhear such discussions.

ti. one shall discuss any classilied ittfortnation over any standard commercial telephone
instrument or any communication system, or in the presence ofan) person who is not
authorized to possess Such information

Written materials prepared for this case by the accused or defense counsel shall Dr:
transcribed. recorded. duplicated. copied or otheruise prepared only by persons who are

All mechanical devtces olarty kind used in the preparation or transmission ofclassilied
in this case ma) he used only with the apprmal otthe investigation Security Ot?cet
and in accordance with instructions he or she shall issue.

Upon reasonable advance notice of the Securir} Ol'licet'. defense counsel
be given access during normal business hours. and at other times on reasonable request. to
classifmd national security documents xthich the government is required to make available to
defense counsel but elects to licep in its possession Persons permitted to inspect classi?ed
documents by t.tc:sc Procedures may make written notes ol'1he documents and their contents.
classified portions oi? these documents. shall not be disseminated or
disclosed in an} manner or form to any person not subject to these Procedures. Such notes will
be secured in accordance with the terms of these Procedures. Persons permitted to have access to
classi?ed documents will be allowed to \'ltf't\ their notes witltin an area designated by the
Int esrigatioa Of?cer. No person pet-rnitted to inspect classi?ed documents by these
defense counsel. shall copy or reproduce any part of said documents or

It

0 0 20948

their contents in any manner or except as prot-ided by the Investigation Security (ltticer.
utter he or she has consulted with the Com'enin_e Authority.

It Without prior authorization ofihe Department ofthe :\rm_v or Dcpartrnent ufstate. there
shall be no disclosure to anyone not named in these Procedures by persons who may later receive
a security clearance or limited access authorization trom the Depanment ofthe Arm} or
Department ofStatc in connection with this easel except to or from got ernment employees
acting in the course of their official duties) ot?an}? classified national security information or
national security document tor contained therein! until such time. it ever. that such
Joeuments or iitforination are declassified.

i The detense shatl not disclose the contents of any classi?ed doenrnents or tnfortnation to
any person except those persons to them hy the lntestigating as having the
appropriate clearances. and a need to know.

All persons git en access to classi?ed information pursuant to these Procedures are
advised that all information to which they obtain access by these Procedures is now and will
Tbrex-er remain the property of the United States Government They shall retum all materials
wltich rna, hat come into their possession. or for which they are responsible beezttese of Such
access. upon demand by the Investigation Security (ltlicer.

L. A copy. of these Procedures shall issue forthwith to defense counsel. with further order
that the defense counsel advise the accused named herein ofrhe contents oftlicse Procedures.
and fumish him a copy. The accused. through defense counsel. shall sign the
statements set forth in paragraph 3.t?ot' these Procedures. and counsel shall forthwith tile an
original with the investigating Officer and provide an original each to the lnvesti_2;ttion Security
Officer and the Cioveraunent Counsel. lhe signing and tiling. otthis statement the accused IS
a condition precedent to the disclosure ot'elassit'1ed information to the accused.

5 Nothing contained in these l?rocedures shall be eonstnied as uancr ofany right oftlte

accused
aw

TERR .-X-
Mater General.
Cornmandittg

Trial (?ounscl
De?cits: Ctsurtsel

. . 209.9

DEPARTMENT OF THE ARMY
UM rec sures
CAMP
APO AE 09344

2l.n_1m_

Sl i?r0tecti\?c Order

1. ln order to protect the nutionul and pursuant to the authority granted under Military
ltuic of tMRt,l 505. relevant executive orders ofth: President ofthe United States. and
ofthc Department otthc Army?. I

u. he following procedures. MRE 505. and the authorities referred to ohm will
apply to ali matters concerning the investigation into alleged pr:-trial negotiations. and
Articit: 32. Unilionn Code ofMi|itar_t- LICMJ), pre-triai investigation in this

b. As used herein. the term "classified information or document" refers to:
(1 3 any classified doc ument (or int"omtatiott cont-.1incc. therein):
(3 tnfomtatton known by the accused or counsel to be ciasstriabic:

(3) classitied tor information contained therein) disclosed to the accused or
as pan of the proceedings in this case:

t-il classified documents and inform atiort tthich have otherwise made known to the
accuscd or defense moose} and which hat been rrtarketi or described as:
or

c. Ail such ciassilicd documents and information committed therein shat! remain ctassrficd
umess they bear a clear intiicatiort that they been officially declassi?ed by the (iovemment
agency or department that originated the document or the contained therein
{hereinafter referred to as the ?originating agent;

d. The words or "associated materials" as used in this Order include. but an:
not limited to. all written ut printed matter kind. tbrmal or including the
originals and all non-identical copies. whether from the original by reason ofany
notation made on such copies or otherwise. inciuding. without Eimitation. papers.
correspondence. memorandn- notes. letters. tciegrams. reports. summaries. intcr?ot?t?tce and intrar
office notations oi'ztn_v sort httiit-tins. teletypus. telcx. invoices. it and
all alterations. moditicattons. changes and amendment ntany kind to the forcgotn".
graphic or aural records or representations of any kind. without limitation.
photo-atraphs. charts. graphs. micro?che. micro?lm. video tapes. sound recordings kind.

. . 20950

2 Jttax
S1 Order

taotion pictures- an}. electronic: mechanical or electric reco or representatioits otiany Kind.
including without limitation. tapes. cassettes. discs. recording. lilms. typeviriter riblitins and
word processor discs or tapes.

e. The "or" should be interpreted as including "and" and vice tersa.

Those named herein are ads zsed that direct or indirect unautitorircd disclosure. retention.
or negligent handling ofclassified information could L':iLtSt? serious and. in some cases.
grave dame-__-c to the national seeuritgt ofthc United States. or may be used to the
advantage ol'a fo:eign nation against the interests of the United States. lhese Sccurit}
Procedures are to ensure that persons subject to these Procedures will never divulge the classi?ed
informtitinn disclosed to them to anyone who is not autliorized by the cirigittating agency and in
with these PTUL etlures.

Persons subject to these Procedures are admonished that they are oliligatcd by law and
regulation not to disclose any classi?ed national security inforntation in an unauthorized litsltion.

h. ?ersons subject to these Procedures are admonished that any breach olithesc
the) are admonished that an} unauthorized disclosure. possession or handling of classi?ed
intortnation may constitute tiolations of lfnitccl States criminal laws. including but not limited
to. the prowisions of?ections 641. 793. 794. 798 and 0:33. Title l8. l- nitcd States Code. and
Sections -l3l and 783th). litle 50. United States Code. In addition. for those persons who are
s. a report will be liled vtitlt their State Bar Association.

3. lntonnation in the public domain is ordinarily not classi?ed. Hon-ever. it" classilice
inlonnatien is reported in the press or otherwise enters the public domain. the infomtation does
not lose its classified status merely because it is in the public domain. Any attempt by the
defense to hat a classi?ed infomtation that has been reported in the public domain but which it
or has reason to believe is classilied. corzlirmed. or denied at trial or in any publzc
proceeding in ll?t?l5 case shall be governed by Section 3 ofthe Classi?ed lttlormation Procedures
lit Code ill.

3. Personnel Security lnvestigations and Clearances. This case will involve classi?ed national
information or documents. the storage. handling. and control of uhieh requires special
precautions mandated by statute, executive orders. and re-__rulations_ and access to which
requires a special security clearance.

a. lit: Conxenirig Authority has been advised that the has the requisite
security clearance to have access to the classified inlorntation and documents which will be at
issue in th.s ease The Otliccr is to have unlettered access to that classi?ed
infomtation necessary to prepare for this mt estigation. subiect to requirement in paragraph 3.g.

b. The (?omemng has been advised that the government trial counsel working on
this case i13\~t' the requisite securit) clearances to have access to the classilicd information and

'3

..

. . 20951

i ii}.
531 l"rotectit'e Order

cit?-cttments which Will he at ?tSSur.?.' in this case. The gtwentment trial counsai are to ltatfc
unfettered access to elassitied infonnation necessary to prepare for this suhtcet to
the in paragraph 3.g_ below.

c. the Convening has been advised that Private first (?lass (PFC)
detailed defense counsel hate the requisite sec urit_\' clearance to access to the
reietant and necessary ciassitied information and documents which will be at issue in this case.
As a condition of receiving classified the detailed defense counsel agree to the
conditions specified herein this order.

As 3 condition of receiving classi?ed tntonnarion. any retaincd defense counsci will
agree to the conditions specified herein and execute all necessary forms so that the Government
mat} contpicte the necessary personnel security background int estigation to make a
detennination whether defense counsel is eligible for a iimited ac authorization.
retained defense counsel aiso Sign the statement in paragraph 3.e. 1. poo the execution and
tiling of the statements set forth in paragraphs Se and by any retained defense eouttsei
requiring access to classi?ed information. the Governrnent shall undertake. as expeditiously as
possible. the required inquiries to ascertain defense eottnsefs eligibility for access to classi?ed
information.

-: there are two conditions precedent to obtaining access to the classi?ed infonnatton at
issue in this case.

it Ail individuals. other than the Int estigating Officer. and
detailed detense counsels and personnel otthe originating agency. can obtain access only after
ha-. ing provided the necessat-_\ information required for, and having been granted. a securit_\
clearance or Limited? Autltorizatiott by the Department of the Army or Department or?
State. through the investigation Oftieer; and

(3) Each person. other than the Department ofanny employees named herein and
personnel of the originating agency. before being granted access to elassiticti information must
also sign .1 sworn statement that states:

tIf.?lIOR.?l 7 if

I umlr.-r-stand that I ma): be the ?'L?L?ljJf?'nI of iri_tm'marton
and I/tut {hr 0/ the Urtirt-u and that he/wigs the
Thtl?? t?rtfI'21?mrtrirurt and ir2IelIi_t3ent?t?. with the of
and /1:117:33? ing it. are to st'etzrit_i=
ht I/7c? I '3 read and tntderstuztti the oft/re espionage
from 79_t?_ rt-mt? of Iiliu I .m'/ed State.? Code} the
of to 1/10 ricfitnxe am! the of (he

I rgenee .'de.'2rinc.? Prm'et'tr'rm At?! Ktecrftirt 43! of title 50. (0:18: and
I um with the pt'nvitIccI for the t*r?olevmm thereof.

Lu

anningB_000396

0 . 20952

HM
RJECI Protectixe Order

.7. I ugvee {hat 1 MN dit-2r!_ u, or ht word ('umiuc'r. m?
um ru/rur nreum. xuclz mfiarnrarion or an
~,srmn_s: in do so by an reprcsenrurive n/?me US. or as
rise ordered by (he Cam?! I fur:/rer to .szu?m7I.* for
any up-rrcfe. or Other? ;mh!r?mrum demetijronr or have upon or
garner! in {/18 course Fri?)!
rerien wiuiyrr: r.-nxure rfear no
ix cwzlurrmi I/terern

1 mar rim upon mu u/Iter the
in tin? case u/ Hired Srufes Firs!

4. I have rem! :.mdm2dersIumt'II1e Securirt wru:r:'d b_t the
(bmrening on . mrhe ease
}_"rivu1e Fin! Brudlet Mannirzg rela/mg ru um/J
Io u-uh the lhr'ret'g?/

rg'I1uHrr;' I Jun?

Any \.dOt with -.1 retained detensc counse} shat? include a statement expressmg Ins
understanding that the failure to abide the terms Security Procedures result in 3
report to has State Bar Association. Each such person executing the above statement must tile an
originai with the im estigaring Of?cer and provide an onginal each to the Investigation Security
Ot?cer and the

t. in addition to the 3101? in paragraph 3.e. any person who. as a result ofthis
tmestigation. gains access to inronnation contained in any Department ofthe Arm)? Special
Access Progranx. as that term is de?ned in section 4.3 01' Executive Order 12356. to Qcnsitive
Cornpartmented lnfomtation (SCI), or to any inforntatinn subject to Special {Tatefgory
trandting procedures. shall sign any nowdiseiosure agreement uhich is speci?c to that Special
Access Program. Sartsitit Compartmented Infonnation. or SPECAT information.

Ali ntlter requests for eiearances for access to classi?ed information in this case by
persons not named in these Procedures. or requests for ctearanccs for access to information at a
higher lever ot'elassif3cation. shat} he made to the Imestigation Security who, upon
approx-at <21 Comenzng shall promptl} process the requests.

h. Belore any person subject to these Securit} Procedures. other than anal counsel. detailed defense counsei. and personnel ufthe originating agene_\ u- ho hare
appropriate revel security eiearances. rco:ei\ es access to an} irtfurrnatimt. that person
shall he Served uith a copy of these and shat! the written agreement set Forth
in paragraph ?me.

. 20953

Al: l'V~'l'llZ
SL233 EC Protectit Order

The Procedures shall apply to any Clelettse counsel of the accused. and to an) other
persons who may later t?t?C?1\xc? classiticd from the Department oftlte Arm) oi
Department ol'Statc in connection with this case.

Handling and Protection olflassitied lntortrtation.

a. All counsel shall see}: guidance from the investigation Security ()ll'tcer with regard to
appropriate storage and use ofclassitied information.

to. The lntestigation Security Officer will provide appropriate physical security protection

for any rnatcrtals prepared or compiled by the defense. or by an} person in relation to lite
preparation olthc accused?s defense or submission under 505. he materials and
documents (de?ned above) requiring security include. mtltout limitation. any notes.
carbon papers. letters. photographs, dt".Lt"ts- discarded drafts. memoranda. typewriter ribbons.
magnetic or other documents or any kind or d?Sk1IlD/ll?il. Classi?ed materials prepared
by the defense shall be maintained by the investigation Sccuriti in a separate sealed
container to which only the defense counsel shall have access.

tn ('lassit'ied documents and information. or inforrnatinn to be classi?ed shall be
discussed only in an area approved by the lntestigation Security and in which persons
not authorized to possess such intonrtation cannot such discussions.

d. No one shall discuss any classi?ed ittlonnation over any standard commercial telephone
instrument or any inter-o?iee communication system, or in the presence ofan} person who is not
authorized to possess such information

Written materials prepared for this case by the ac cuscd or defense counsel shall no
transcribed. recorded. typed. duplicated. copied or otheru ise prepared onl} by persons who are

ti. All mechanical devices olany kind used in the preparation or transmission of classified
int'ormation in this case ma} be used (ml; with the apprmal of the investigation Secttrity Ot?cez
and in accordance with instructions he or she shall issue-

g. Upon reasonable adtanee notice of the lnt'esti_r_zation Security Ot'ticer_ defense oounsel
shall be access during normal business hours. and at other times on reasonable request- to
national security documents Vt hich the is required to make available to
defense counsel but elects to keep in its possession Persons permitted to inspect elassilied
documents by t.-tese Procedures may make written notes olthe documents and their contents.
Notes oliariji classified portions of these documents. however. shall not be disseminated or
disclosed in an} manner or fortn to an} person not subject to these Procedures. Such notes will
be secured in accordance with the terms of these Procedures. Persons permitted to have access to
classified documents will be allowed to Vieu their notes an area designated by the
lnxestigation Security Officer. No person permitted to inspect classified documents 173? these
cedurcs. itictuding, defense counsel. shall cop)? or reproduce any part of said documents or

In

0 0 20954

3
Order

their contents in any manner or form. except as proxvidcd by the Investigation Security Otticer-
utter he or she has consulted with the Convcning Authority.

It Without prior authorization of the Depurtntent ofthe :\1Tn_v or Dcparttnent uf?tate. there
shall be no disclosure to anyone not named in these by persons who may later receive
a security clearance or limited access authorization trorn the Dcpartrnent of the Anni or
Department of State in connection with this case (except to or from got eminent employees
in the course ot? their otticial dutiesl ot?an_v classified national security information or
national security document tor information contained therein: until such time. ifcver. that such
documents or information are declassi?ed.

.l The defense shall not disclose the contents of any classified or tnl'ot'tnation to
any person except those persons identilied to them by the lmestigating as having the
appropriate clearances. and a need to know.

3. All persons given access to classified information pursuant to these Procedures are
advised that all inforntation to which they obtain access by these Procedures is HOVN and will
fotexcr remain the property of the United States Government They shall retum all materials
wltieh ma} have come into their possession. or for which they are responsible because of such
access. upon demand by the Investigation Security (ltlicer.

L. A copy ofthesc Procedures shall issue forthwith to defense counsel. with further order
that the defense counsel advise the accused named herein of the contents oftltese Procedures.
and furnish him a copy. The ccused. through defense counsel. shall sign the
statements set forth in paragraph Procedures. and counsel shall forthwith tile an
original with the investigating Officer and provide an originat each to the investigation Security
Ofticer and the Govcrtuncnt Counsel. the signing and filing ofthis statement b) the accused is
a condition precedent to the disclosure olelassi?cd infonnation to the accused.

?\?othing_ contained in these Procedures shall be construed as V\al\Cl' ofany right

accused
am

I.
TERR A.
Maior General.
Commanding

EJHTR

Trial (?outset
Deiertse Cottnsel

0 20955

DEPARTMENT OF THE ARMY
JOINT BASE HALL
am LEE AVENUE
FORT man. 22211-1199

IMND-MHH-ZA 2-2

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Protective Order for Secretary of the Army AR 15-6 Investigation -

1. PURPOSE. The purpose of this protective order is to prevent the unauthorized disclosure or
dissemination of the AR 15-6 Investigation ordered by the Secretary of the Army (hereinafter
?SecArmy AR 15-6 Investigation?). This protective order covers all documents and information
that are part of the SecArmy AR 15-6 Investigation, including those that have been, or will be,
reviewed or made available to the accused, defense counsel, and other recipients of the SecArmy
AR 15-6 Investigation in this case.

2. APPLICABILITY. Without authorization from me, defense counsel shall not disclose or
distribute the SecArmy AR 15-6 Investigation to any person or entity other than the following
?authorized recipients": other defense counsel of record for the accused; the accused;
any associate, paralegal, or clerical employee involved in the defense of the accused; the
Article 32 Investigating Of?cer, third parties whose testimonies are taken in this action, but
only to the extent necessary to elicit testimony concerning the statement; and independent
experts needed to provide technical or expert services or testimony in the prosecution of the
accused.

3. ORDER. In order to comply with the guidelines set forth by the releasing authority, it is
hereby ORDERED:

a. Authorized recipients shall not disclose the contents of the SecArmy AR 15-6
Investigation to any person not named above. Defense counsel may only provide the SecArmy
AR 15-6 Investigation to the above authorized recipients when necessary for the purpose of
preparing a defense to the charges pending against the accused.

b. The procedures set forth in this protective order apply to the SecArmy AR 15-6
Investigation disclosed in this case, including all evidence and documents previously disclosed
during discovery that were included or referenced in the SecArmy AR 15-6 Investigation.

c. The term ?SecArmy AR 15-6 Investigation? refers to all documents and information
gathered as part of the SecArmy AR 15-6 Investigation, all documents and information produced
during the SecArmy AR 15-6 Investigation, and all documents and information produced as a
result of the SecArmy AR 15-6 Investigation, including, but not limited to, records of adverse
action taken as a result of the SecArmy AR 15-6 Investigation and supporting documents.

. . 20956

SUBJECT: Protective Order for the Secretary of the Army AR 15-6 Investigation _Ug__i_te_d_

d. The words "documents" or "information" as used in this protective order include, but are
not limited to, all written or printed matter of any kind, formal or informal, including the
originals and all non-identical copies, whether different from the original by reason of any
notation made on such copies or otherwise, including, without limitation, papers,
correspondence, memoranda, notes, letters, telegrams, reports; summaries, inter-of?ce and intra-
of?ce communications, notations of any sort, bulletins, teletypes, telefax, invoices, worksheets,
and all drafts, alterations, modi?cations, changes, and amendment of any kind to the foregoing,
graphic or aural records or representations of any kind, including, without limitation,
photographs, charts, graphs, micro?che, micro?lm, video tapes, sound recordings of any kind,
motion pictures, any electronic, mechanical or electric records or representations of any kind,
including, without limitation, tapes, cassettes, CDs, DVDs, thumbdrives, hard drives, other
recordings, ?lms, typewriter ribbons and word processor discs or tapes.

e. The word ?or? should be interpreted as including ?and,? and vice versa; ?he? should be
interpreted as including ?she,? and vice versa.

f. Authorized recipients must sign a written acknowledgment (enclosed) that they are bound
by the terms of this protective order as a condition precedent to the disclosure of information.

g. Defense counsel shall prepare a list of the names of all persons to whom the SecArmy
AR 15-6 Investigation is disclosed and obtain a copy of their signed acknowledgments. Defense
counsel will ?le the list and acknowledgments with the trial counsel prior to receiving the
SecAnny AR 15-6 Investigation. Prior to any additional disclosure of the SecArmy AR 15-6
Investigation, defense counsel must Supplement the list and ?le additional acknowledgments
with the trial counsel.

h. Upon termination of all proceedings, if any, the SecArmy AR 15-6 Investigation shall be
returned to the trial counsel.

i. If authorized recipients are uncertain whether documents or information are covered by
this protective order, they must con?rm with me through the trial counsel.

j. Authorized recipients are advised that a violation of this protective order will result in my
review of the access procedures utilized in this case and may limit ease of access to all evidence
related to this case in the future.

4. MODIFICATION. Should the accused or any other party listed in paragraph 2 wish to
disclose the investigation or any information contained therein to any person or for any purpose
other than those indicated in paragraph 2, they may, upon written request, seek modi?cation of
this protective order through the trial counsel to me.

5. NOTIFICATION. If you suspect or have reason to believe that any unauthorized disclosure
of all or part of the SecArmy AR 15-6 Investigation has occurred, notify me through the trial
counsel as soon as practicably possible.

. . 20957

SUBJECT: Protective Order for the Secretary of the Army AR 15-6 Investigation Llnited

6. Nothing contained in this protective order shall be construed as a waiver of any right of the
accused.

Encl CARL R. COFFMAN, JR
Acknowledgment COL, AV
Commanding

DISTRIBUTION (w/encl)
Defense Counsel

Accused

Article 32 Investigating Of?cer

0 0 20958

MEMORANDUM FOR Convening Authority

SUBJECT: Acknowledgment of Protective Order for the Secretary of the Army AR 15-6
Investigation United States v. PFC Bradle

1. I, have read and understand the protective order, dated 22
June 2011, relating to the SecArmy AR 15-6 Investigation, and I agree to comply with the
provisions thereof. I understand that further disclosure of the SecArmy AR 15-6 Investigation is
unauthorized unless the disclosure adheres to the requirements of the protective order.

2. I understand that the unauthorized disclosure, unauthorized retention, and negligent handling
of the SecArmy AR 15-6 Investigation will result in the Convening Authority?s review of? the
access procedures utilized in this case and may limit ease of access to all evidence related to this
case in the future.

3. Ifl am uncertain about whether documents or information are covered by this protective
order, I understand that I must con?rm with the Convening Authority through the trial counsel.

4. I understand that I remain bound to this agreement after the conclusion of all proceedings, if
any, in the above referenced case. Upon termination of all proceedings, the sensitive information
disclosed in this case shall be returned to the trial counsel.

DATE SIGNATURE

0 20959

DEPARTMENT OF THE ARMY

JOINT BASE MYEFI-HENDERSON HALL
204 LEE AVENUE

FORT uvrsn, VIRGINIA 22211.1 199

IMND-MHH-ZA I

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Protective Order for Law Enforcement Sensitive Information _and Other Sensitive
Information - United States v. PFC Bradlev Manning

1. PURPOSE. The purpose of this protective order is to prevent the unauthorized disclosure or
dissemination of law enforcement sensitive information, grand jury information, search warrant
documents, and applications and orders pursuant to 18 U.S.C. ?2703(d) (hereinafter ?sensitive
information?). This protective order covers all sensitive information previously available to the
accused, defense counsel, or other authorized recipients in the course of this case or which will
be made available to the accused, defense counsel, and other authorized recipients of sensitive
information in this case.

2. APPLICABILITY. Without authorization from me, defense counsel shall not disclose or
distribute sensitive information to any person or entity other than the following ?authorized
recipients?: other defense counsel of record for the accused; the accused; any
associate, paralegal, or clerical employee involved in the defense of the accused; the Article
32 Investigating Officer; third parties whose testimonies are taken in this action, but only to
the extent necessary to elicit testimony concerning the statement; and independent experts
needed to provide technical or expert services or testimony in the prosecution of the accused.

3. ORDER. In order to protect sensitive information, it is hereby ORDERED:

a. Authorized recipients shall not disclose sensitive information to any person not named
above. Defense counsel may only provide sensitive information to the above authorized
recipients when necessary for the purpose of preparing a defense to the charges pending against
the accused.

b. The procedures set forth in this protective order apply to sensitive information disclosed
in this case, including all sensitive documents and associated materials previously disclosed
during discovery.

c. The term ?sensitive information? refers to:

(1) all law enforcement sensitive information and documents (or information contained
or referenced therein) disclosed to authorized recipients as part of the proceedings in this case,
including without limitation, U.S. Army Criminal Investigation Command reports and exhibits,
Federal Bureau of Investigation reports and exhibits, Diplomatic Security Service reports and

0 20960

SUBJECT: Protective Order for Law Enforcement Sensitive Information and Other Sensitive

Information United States v. PFC Bradley Manning

exhibits, and other law enforcement sensitive reports, operational details and reports,
investigative details and reports, and any attachments thereto;

(2) any information related to the locations, functions, or activities of any
Support Teams or any member thereof;

(3) all federal district court documents and associated materials disclosed to authorized
recipients as part of the proceedings in this case, including without limitation, grand jury
information, search warrant documents, and applications and orders pursuant to 18 U.S.C.
2703(d); and

(4) information and documents known or that reasonably should be known by
authorized recipients to be sensitive information.

(1. The words "documents" or "associated materials" as used in this protective order include,
but are not limited to, all written or printed matter of any kind, formal or informal, including the
originals and all non?identical copies, whether different from the original by reason of any
notation made on such copies or otherwise, including, without limitation, papers,
correspondence, memoranda, notes, letters, telegrams, reports, summaries, inter-of?ce and intra-
of?ce communications, notations of any sort, bulletins, teletypes, telefax, invoices, worksheets,
and all drafts, alterations, modi?cations, changes, and amendment of any kind to the foregoing,
graphic or aural records or representations of any kind, including, without limitation,
photographs, charts, graphs, micro?che, micro?lm, video tapes, sound recordings of any kind,
motion pictures, any electronic, mechanical or electric records or representations of any kind,
including, without limitation, tapes, cassettes, CD5, DVDs, hard drives, other
recordings, films, typewriter ribbons and word processor discs or tapes.

e. The word ?or? should be interpreted as including ?and,? and vice versa; ?he? should be
interpreted as including ?she,? and vice versa.

f. Authorized recipients must sign a written acknowledgment (enclosed) that they are bound
by the terms of this protective order as a condition precedent to the disclosure of information.

g. Authorized recipients must also sign a copy of any relevant district court disclosure and
protective order after having read the protective order and having the contents of the protective
order fully explained to them by defense counsel.

h. Defense counsel shall prepare a list of the names of all persons to whom sensitive
information is disclosed and obtain a copy of their signed acknowledgments. Defense counsel
will ?le the list and acknowledments with the trial counsel prior to receiving the protected
sensitive information. Prior to any additional disclosure of sensitive information, defense
counsel must supplement the list and ?le additional acknowledgments with the trial counsel.

. . 20961
IMND-MI-II-I-ZA

SUBJECT: Protective Order for Law Enforcement Sensitive Information and Other Sensitive

Information United States v. PFC Bradley Manning

i. Upon termination of all proceedings, if any, the sensitive information disclosed in this
case shall be returned to the trial counsel.

j. If authorized recipients are uncertain whether documents or information are covered by
this protective order, they must con?rm with me through the trial counsel.

Authorized recipients are advised that a violation of this protective order will result in my
review of the access procedures utilized in this case and may limit ease of access to all evidence
related to this case in the future. Violations of this protective order may also violate federal
district court disclosure and protective orders and will result in the forwarding of your name to
the U.S. Attomey?s Of?ce for the Eastern District of Virginia.

4. MODIFICATION. Should the accused or any other party listed in paragraph 2 wish to
disclose sensitive information to any person or for any purpose other than those indicated in
paragraph 2, they "may, upon written request, seek modi?cation of this protective order through
the trial counsel to me.

5. NOTIFICATION. If you suspect or have reason to believe that any unauthorized disclosure
of sensitive information has occurred, notify me through the trial counsel as soon as practicably
possible.

6. Nothing contained in this protective order shall be construed as a waiver of any right of the
accused.

Encl CARL R. COFFMAN, JR
Acknowledgment COL, AV
Commanding

DISTRIBUTION: (w/encl)

Defense Counsel

Accused

Article 32 Investigating Officer

0 0 20962

MEMORANDUM FOR Convening Authority

SUBJECT: Acknowledgment of Protective Order for Law Enforcement Sensitive Information
and Other Sensitive Information United ?tates v. PFQ Bradley Manning

1. I, have read and understand the protective order, dated 22
June 2011, relating to sensitive information, and I agree to comply with the provisions thereof. I
understand that further disclosure of this sensitive information is unauthorized unless the
disclosure adheres to the requirements of the protective order.

2. I understand that the unauthorized disclosure, unauthorized retention, and negligent handling
of this sensitive information will result in the Convening Authority's review of the access
procedures utilized in this case and may limit ease of access to all evidence related to this case in
the future. Violations of this protective order may also violate federal district court disclosure
and protective orders and will result in the forwarding of my name to the U.S. Attomey?s O?ice
for the Eastern District of Virginia. I understand that I also must sign a copy of any relevant
district court disclosure and protective order as a condition precedent to receiving grand jury
information, search warrant documents, and applications and orders pursuant to 18 U.S.C.
2703(d).

3. If I am uncertain about whether documents or information are covered by this protective
order, I understand that I must con?rm with the Converting Authority through the trial counsel.

4. I understand that I remain bound to this agreement after the conclusion of all proceedings, if
any, in the above referenced case. Upon termination of all proceedings, the sensitive information
disclosed in this case shall be returned to the trial counsel.

DATE SIGNATURE

\/

v

Appellate Exhibit 39
Enclosure 4
57 pages
ordered sealed for Reason 6
Milttary Judge's Seal Order
dated 20 August 20 13
stored in the original Record
ofTrial

20963

v

v

Appellate Exhibit 39
Enclosure 5
32 pages
ordered sealed for Reason 6
Military Judge's Seal Order
dated 20 August 20 13
stored in the original Record
ofTrial

20964

20965

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE REQUEST FOR
v. LEAVE TO FILE THE

18 U.S.C. SECTION 793(e)
MANNING, Bradley E., PFC ON 10 MAY 2012
US. Army.
Anny Garrison, Joint Base Myer-Henderson Hall, DATED: 28 March 2012
Fort Myer, VA 22211

l. The Defense requests leave of the Court to ?le its Motion to Dismiss All Charges Offenses
under 18 U.S.C. Section 793(e) until 10 May 2012.

2. The 10 May 2012 filing date is the next ?ling date for legal motions. Under the Defense?s
Proposed Case Management Order, we intend to recommend that the Court consider the
following motions at the subsequent motions hearing:

a. Proposed Members Instructions, including elements for Article 92. Article 104, Article
134, Speci?cations 1 through 16;

b. Prosecution Request for Instructions for Lesser Included Offenses;

c. Defense Request for Instructions for Lesser Included Offenses;

d. Government Motion Regarding R.C.M. 70] and M.R.E. 505 (issues dealing with the
following: R.C.M. 701(g)(2) review; limited disclosure requests under M.R.E. 505(g)(2); claims

of privilege under M.R.E. 505(c); procedures under M.R.E. 505(1); and in camera proceeding
under M.R.E. 505(i));

e. Defense Motion to Dismiss 18 U.S.C. Section 1030(a)(l) Offenses;

f. Defense Motion to Dismiss 18 U.S.C. Section 793(e) Offenses; and

g. Updated Proposed Case Calendar
3. The Defense?s request will not necessitate any delay in the proceedings. Instead, it simply
moves the 18 U.S.C. Section 793(6) motion from being considered on the 24 through 26th April
session to the following session. Moreover, this motion will be considered with a similar motion

dealing with 18 U.S.C. Section l030(a)(l) offenses. As such, there is no prejudice to the
Government in moving the requested motion, nor is there a delay in the proceedings.

1 L.

Page I of I?nacN 2

0

4.
at

20966

The ioint of contact for this memorandum is the undersigned at?or by e-mail

Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

2

I

20967

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITEDSTATES

RULING: DEFENSE REQUEST
V, FOR LEAVE TO FILE

18 U.S.C. SECTION 793(e)
MANNING, Bradley E., PFC on 10 May 2012
U.S. Army,
US. Army Garrison, Joint Base Myer- DATED: 29 March 2012

Henderson Hall, Fort Myer, VA 22211

The Defense has requested leave of the Court to continue the date of ?ling of its Motion
to Dismiss All Charged Offenses under Section 793(e) from 29 March 2012 to 10 May 2012.
The Government does not oppose.

RULING: The Defense Request is GRANTED.

DENISE R. IND
COL. A
Chief Judge, 1? Judicial Circuit

So ORDERED: this 29?? day of March 2012.

20968

UNITED STATES OF AMERICA
v.

PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

Prosecution Response
to Defense Motion to Dismiss All Charges
With Prejudice
12 April 2012

RELIEF SOUGHT

The prosecution respectfully requests the Court deny the Defense Motion to Dismiss All
Charges with Prejudice (the "Defense Motion") on three grounds: first, the prosecution is in
compliance with its discovery obligations; second, even assuming,

arguendo, an alleged

discovery error took place, dismissal of all charges with prejudice is an improper and unjust
remedy; and third, there is no legal authority to support dismissal of all charges with prejudice
under the facts.
BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the Defense bears the burden of persuasion and must prove any
factual issues necessary to decide this motion by a preponderance of the evidence. See Manual
for Courts-Martial (MCM), United States, Rule for Courts-Martial (RCM) 905(c) (2008).
FACTS

On 3 February 2012, the case was referred to a general court-martial.
On 16 March 2012, the Court issued a Protective Order relating to information in this
case.
On 23 March 2012, the Court ordered the prosecution to produce, inspect, or disclose to
the Court for

in camera review materials subject to the Defense's Motion to Compel Discovery.

See Enclosure 1. The Court also ordered the prosecution to notify the Court whether it
anticipates any government entity subject to the Motion to Compel Discovery will seek limited
disclosure of classified information under MRE 505(g)(2) or to claim a privilege under MRE
505(c). See id.
Since early Fall 2010, the prosecution identified the departments, agencies, and military
commands whose files it is required to search for discoverable information. See United States v.
Williams, 50 M.J. 436, 441 (C.A.A.F. 1999). On or about 25 May 2011, the prosecution began
requesting that those specific entities segregate for the prosecution to inspect and preserve any
records related to the accused, WikiLeaks, and the evidence in this case. See id., at 441; see also
Enclosure 4. Based on reviewing those entities' documents, reviewing new evidence, and any

20969

other reasonable means of leaming of new information, the prosecution subsequently developed
a good faith basis that additional discoverable files may be located at other departments,
agencies, and military commands. The prosecution submitted a further request to those entities
to segregate and preserve those records related to the accused, WikiLeaks, and the evidence in
this case, or submitted requests to those entities for specific information that is potentially
discoverable. In total, the prosecution requested thirteen departments, agencies, and military
commands to segregate and preserve such records. Furthermore, the prosecution requested
specific information that is potentially discoverable from more than fifty additional departments
and agencies. See Enclosure 6, Section V, para. 1(C). The prosecution searched, and continues
to search, those files for discoverable information under RCM 701(a)(6) and applicable case law,
to include Brady and its progeny. 1
The prosecution has disclosed all known, unclassified, discoverable information within
the possession, custody, or control of military authorities. The prosecution has disclosed all
known, classified, discoverable information within the possession, custody, or control of military
authorities for which the prosecution has authority to disclose. The prosecution is in the process
of disclosing all remaining known, classified, discoverable information within the possession,
custody, or control of military authorities for which the issuance of a protective order under
Military Rule of Evidence (MRE) 505(g) was required and the classified information privilege
will not be invoked. In addition, the prosecution is currently conducting a search of the hard
drives subject to the Order relating to the Defense Motion to Compel Discovery and will disclose
the results to the defense. See Enclosure 1.
The prosecution has disclosed all known, unclassified, discoverable information outside
the possession, custody, or control of military authorities. The prosecution has disclosed all
known, classified, discoverable information outside the possession, custody, or control of
military authorities for which the prosecution has authority to disclose. The prosecution is in the
process of disclosing all remaining known, classified, discoverable information outside the
possession, custody, or control of military authorities for which the issuance of a protective order
under MRE 505(g) was required and the classified information privilege will not be invoked.
To date, the prosecution has produced 2,729 unclassified documents, totaling 81,273
pages, and 41,550 classified documents, totaling 336,641 pages. See Enclosure 5.
WITNESSES/EVIDENCE

The prosecution does not request any witness be produced for this Motion. The
prosecution requests that the Court consider the following enclosures to this Motion in its ruling.
1. Ruling: Defense Motion to Compel Discovery, 23 March 2012 (Appellate Exhibit
XXXVI)

1

The prosecution also continues to notate any potential Jencks or Giglio material contained therein. If the defense

requested inspection of those files within the possession, custody, or control of military authorities, RCM 70l(a)(2)
applies.

2

20970

2. Defense Reply to Prosecution Response to Defense Motion to Compel Discovery, 13
March 2012 (Appellate Exhibit XXVI)
3. Defense Motion to Dismiss All Charges with Prejudice, 15 March 2012 (Appellate
Exhibit XXXI)
4. Enclosure 3 to Prosecution Supplement to Prosecution Proposed Case Calendar,
Sample Search and Preservation Request, Defense Intelligence Agency, 25 May 2011 (Appellate
Exhibit XII)

.
5. Transmittal Record, DA Form 200, 15 March 2012

6. Prosecution Supplement to Prosecution Proposed Case Calendar, 8 March 2012
(Appellate Exhibit XII)
7. Prosecution Proposed Case Calendar, 21 February 2012 (Appellate Exhibit I)
LEGAL AUTHORITY AND ARGUMENT

The prosecution requests that the Court deny the Defense Motion on three grounds: first,
the prosecution is in compliance with its discovery obligations; second, even assuming,

arguendo, an alleged discovery error took place, dismissal of all charges with prejudice is an
improper and unjust remedy; and third, there is no legal authority to support dismissal of all
charges with prejudice under the facts.
I:

THE PROSECUTION IS IN COMPLIANCE WITH ITS DISCOVERY
OBLIGATIONS.

The prosecution largely agrees with the defense's recitation of the discovery rules in its
Reply to the Prosecution Response to the Defense's Motion to Compel Discovery. See
Enclosure 2. The prosecution shall permit the defense, upon request, to inspect records ''within
the possession, custody, or control of military authorities" that are "material to the preparation of
the defense" and shall disclose information that reasonable tends to negate guilt, reduce the
degree of guilt, or reduce the punishment. RCM 701(a)(2); see also RCM 701(a)(6) (stating that
trial counsel shall provide to the defense that which "reasonably tends to negate the guilt of the
accused of an offense charged, reduce the degree of guilt of the accused of an offense charged, or
reduce the punishment").
The prosecution also bears discovery obligations under Brady and its progeny. See
Brady v. Maryland, 373 U.S. 83, 87 (1963). The prosecution shall disclose evidence that is
favorable to the accused and material to guilt or punishment. See id., at 87. The prosecution
shall

always produce Brady evidence. See Skinner v. Switzer, 131 S.Ct. 1289, 1292 (2011)

conduct pretrial"); see also Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (stating that "it is the
[government] that decides which information must be disclosed" under Brady).
The accused's charged misconduct, significant in both volume and substance, caused a
widespread government response, spanning multiple Executive Branch departments, agencies,
and military commands. See Enclosure 6. The facts set forth in this Motion outline those steps
the prosecution undertook, and continues to undertake, to satisfy its discovery obligations, in
light of the accused's charged misconduct.

3

20971

The prosecution has, and will continue to, mirror the open file discovery system as much
as practicable, taking into consideration the national security concerns relating to that which may
be discoverable. See RCM 701(a) analysis ("[M]ilitary discovery practice has been quite
liberal."); see also UCMJ art. 46 (2008) (''The trial counsel, the defense counsel, and the court­
martial shall have equal opportunity to obtain witnesses and other evidence in accordance with
such regulations as the President may prescribe."). To date, the prosecution has produced 2,729
unclassified documents, totaling 8 1,273 pages, and 41,550 classified documents, totaling
336,641 pages. See Enclosure 5. Much of the information, discoverable or not, is owned by
other government agencies and may contain multiple equity holders, requiring interagency
coordination. See Enclosure 6. The prosecution will continue to coordinate expeditiously with
those entities to ensure the accused receives a speedy and fair trial.
The defense alleges that the prosecution has committed discovery violations, to include a
violation of Brady and RCM 701 (a)(2). See Enclosure 3. The three components of a discovery
violation are as follows: first, that the evidence is discoverable; second, that the evidence was
suppressed by the government; and third, that prejudice ensued. See Strickler v. Greene, 527
U. S. 263, 282 (1999) (listing elements for a Brady violation). No such violation exists because
the prosecution has not suppressed discoverable information, but rather the Government required
a military judge to regulate discovery under RCM 701 and MRE 505 and to enforce reasonable
protective measures before authorizing further disclosure or inspection of classified information
in light of national security concerns. This is evidenced by the original Prosecution Proposed
Case Calendar where the prosecution outlined for the Court and the defense how much time it
anticipates is needed to review voluminous classified material and be able to present much of
this material to the Court under MRE 505 in a systematic and efficient process. See Enclosure 7.
The Court's recent rulings with respect to discovery and the protective order limit foreseeable
risks to national security, thus satisfYing those measures necessary to obtain approval for
disclosure or inspection.
II:

EVEN ASSUMING, ARGUENDO, AN ALLEGED DISCOVERY ERROR
TOOK PLACE, DISMISSAL OF ALL CHARGES WITH PREJUDICE
WOULD BE AN IMPROPER AND UNJUST REMEDY.

Even assuming,

arguendo, the Court finds error in discovery, dismissal of all charges

with prejudice would be an unjust and improper result. Military courts have long held that
dismissal is a drastic remedy. See United States v. Cooper, 35 M.J. 417, 422 (C.M.A. 1992)
("[E]ven where there have been allegations of flagrant and persistent prosecutorial
misconduct. . . a[n] [appellate] court should not mandate automatic reversal without regard to the
prejudicial impact of the misconduct."). Appellate courts first determine whether alternative
remedies are available, short of dismissal. See id. , at 422; see also United States v. Edmond, 63
M.J. 343, 345 (C. A.A.F. 2006) (noting that appellate courts "look[] at the fairness of the trial and
not the culpability of the prosecutor"). Trial courts should follow this same approach. Here,
cure any alleged defect that may have possibly prejudiced the accused.

4

20972

The Court has adopted one such procedure, an

in camera review under RCM 70l (g)(2),

which can also act as a remedy. On 23 March 2012, the Court ordered the prosecution to
produce information subject to the Motion to Compel Discovery for

in camera review to

determine what, if anything, is subject to discovery or inspection. See Enclosure 1. This review
ensures all discoverable information is produced?
Furthermore, dismissal of all charges with prejudice would be improper and unjust
because the prosecution is in a position to cure any possible prejudice to the accused, particularly
in light of its ongoing search for discoverable information given the volume and substance of the
accused's charged misconduct. As explained above, the prosecution promptly requested all
government entities whose files the prosecution is required to search under Williams to segregate
and preserve any records related to the accused, WikiLeaks, and the evidence in this case. See
3
Enclosure 4. Those entities continue to preserve such records. Ordering the prosecution to
adopt alternative discovery procedures in its continuous review of these preserved records, a task
the prosecution will expeditiously pursue if ordered, is another remedy available to the Court,
4
short of dismissa1.
III:

THERE IS NO LEGAL AUTHORITY TO SUPPORT DISMISSAL OF ALL
CHARGES WITH PREJUDICE UNDER THE FACTS.

There is no legal authority to support dismissal of all charges with prejudice

before the

court-martial commences under these facts. The defense argues RCM 70l (g)(3)(D) provides the
Court with this implicit authority, yet provides no authority supporting its conclusion. The
defense relies upon the rulings in Vigil, an Air Force Court of Criminal Appeals case, and
Fletcher, a Court of Appeals for the Armed Forces (CAAF) case, to conclude that a trial court
has the implicit power to dismiss charges with prejudice for alleged discovery violations during
pretrial motions practice. See Vigil v. Bower, 1996 WL 233211 (A.F. Ct. Crim. App. 1996); see
also United States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005).
In Vigil, the appellant pled guilty to an Article 112a offense and was sentenced to a
dismissal and confinement for four months. See Vigil, 1996 WL 233211.

After trial, the defense

learned of exculpatory evidence which the Government did not provide the defense. The
military judge conducted a post-trial hearing wherein the military judge found that ''this
information, if provided to the defense, would have had a high probability of causing a different
result." Id., at 1. The military judge concluded that a new trial would be "adequate to protect
[the appellant's] rights," while not giving him "an unwarranted windfall." Id. The appellant

2

As stated in the preceding section, the prosecution has anticipated, since before referral, presenting much of this

material to the Court in a systematic and efficient process, which is what the Court has ordered, but on an
accelerated timeline, based on the defense's evidentiary motions being filed prior to arraignment.
3

The purpose of this search and preserve request was two-fold; first, to ensure the prosecution complies with its

obligations under Williams; and second, to ensure that no evidence is lost or destroyed.
4

Accomplishing this task will not take "another two years" as suggested by the defense; to the contrary, the

prosecution expeditiously continues to conduct its Williams search of such voluminous information, both classified
and unclassified. The prosecution has already produced in discovery a total of 44,279 documents, consisting of
417,914 pages, even though referral took place on 3 February 2012. See RCM 701(g).

5

20973

filed a petition for extraordinary relief to reverse the military judge's ruling and dismiss all
charges with prejudice. The Court denied this petition. See id. This case provides no precedent
for dismissal of all charges. Rather, this case serves as precedent for a court to order a new trial
on the merits when the defense learns of discoverable information that the Government failed to
disclose to the defense. Here, those facts do not exist.
In Fletcher, the appellant was tried and sentenced to one month confinement for a
violation of Article 112a. See Fletcher, 62 M.J. at 175. The CAAF found that the trial counsel
engaged in prosecutorial misconduct at trial by making improper arguments and that such
misconduct prejudiced the appellant. See ill.,_,_ at 178 ("While prosecutorial.misconduct does not
automatically require a new trial or the dismissal of the charges against the accused, relief will be
granted if the trial counsel's misconduct ' actually impacted on a substantial right of an accused
(i.e., resulted in prejudice).") (citing United States v. Meek, 44 M.J. 1, 5 (C. A.A.F. 1996)). The
CAAF reversed the findings and sentence. This case provides no precedent for dismissal of all
charges

before the court-martial commences, but rather serves as precedent when alleged

prosecutorial misconduct transpired at court to the prejudice of an appellant. Here, those facts do
not exist.
Dismissal of all charges with prejudice would be an unjust result because the defense has
provided no factual basis to support its argument. The defense alleges that the prosecution
engaged in ''willful" or "grossly negligent" prosecutorial misconduct.

See Enclosure 3.

Prosecutorial misconduct is "action or inaction by a prosecutor in violation of some legal norm
or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional
ethics canon." Meek, 44 M.J. at 5. The defense cites cases whereby appellate courts concluded
that prosecutors wrongfully and completely withheld from the defense either exculpatory
evidence, otherwise discoverable information inconsistent with its theory of the case, or other
discoverable information to gain a "tactical advantage." See United States v. Charle�, 40 M.J.
414 (C.M.A. 1994) (the appellate court found error where trial counsel failed to disclose
impeachment information relating to key government witness); see also United States v.
Koubriti, 336 F. Supp. 2d 676 (6th Cir: 2004) (discussing how federal prosecutors wrongfully
failed to disclose documents ''which were clearly and materially exculpatory'' because such
documents were inconsistent with their view of the case). The defense argues the prosecution is
"deliberately withholding Brady material" without providing a factual basis. 5 See Enclosure 3.
To the contrary, the prosecution has, and will continue to, produce Brady material to the defense
as soon as possible. See Enclosure 7 (the prosecution originally requested classified procedures
under MRE 505 to take place in Phase 1 for "Immediate Action" under a systematic method to
produce classified information post-referral). The prosecution has not withlield discoverable
information, but rather the Government required a military judge to regulate discovery under
RCM 701 and MRE 505 and to enforce reasonable protective measures, such as a protective
order, before authorizing further disclosure or inspection of sensitive unclassified and classified
information in light of ongoing criminal investigations and national security concerns. The
Court's recent rulings with respect to discovery and the protective order limit foreseeable risks to

5

The only information that the prosecution has yet to disclose to the defense is classified documents for which the

classified information privilege may be invoked and/or reasonable protective measures needed to be taken, or
information the prosecution does not consider discoverable under any applicable statute, rule, or case, such as work
product.

6

20974

national security, thus satisfying those measures necessary to obtain approval for disclosure or
inspection.
The defense argues that the prosecution adopted incorrect discovery standards in
conducting its search under Williams. See Enclosure 3. To the contrary, as stated on the record
and as provided above, the prosecution continues its search for discoverable information under
Williams and will produce that which the rules of discovery under RCM 701 or the Court
requrre.
CONCLUSION

Based on the above, the prosecution requests that the Court deny Defense Motion to
Dismiss All Charges with Prejudice on three grounds: first, the prosecution is in compliance
with its discovery obligations; second, even assuming,

arguendo, an alleged discovery violation

took place, dismissal of all charges with prejudice is an improper and unjust remedy; and third,
there is no legal authority to support dismissal of all charges with prejudice under the facts.

ASHDEN FEIN

J

MAJ, JA

N
PT, JA

lhtw--

Assistant Trial Counsel

Trial Counsel

L�

AARD

�ft

J. HUNTER WHYTE

CPT, JA:

CPT, JA

Assistant Trial Counsel

Assistant Trial Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 12 April 2012.

J.

E

WHYTE

CPT, JA
Assistant Trial Counsel

7

20975

Appellate Exhibit 42
Enclosure 1
has been entered into the
record as

Appellate Exhibit 36

Appellate Exhibit 42
Enclosure 2

has been entered into the

record as
Appellate Exhibit 26

20977

Appellate Exhibit 42
Enclosure 3
has been entered into the

record as
Appellate Exhibit 31

20978

Appellate Exhibit 42
Enclosure 4
has been entered into the

record as
Appellate Exhibit 12

UNITED STATES OF AMERICA
v.

PFC, U.S. Army,

HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

0 20979

Prosecution Response

to Defense Motion to Dismiss All Charges
with Prejudice

Enclosure 5

12 April 2012

TRANSMITTAL REQD

For use of this form. see AR 25-50: the proponet angency ls DCS.

AUEIDU

1. SECURITY

Classi?ed

2. SHIPMENT NO.

3. TITLEIFILE IDENTIFICATION
ManningB_O04l2589-00417908

4. AsoI= DATE 5. SHIPMENT DATE

I5 March 2012

6. AUTHORITY FOR SHIPMENT

7. NUMBER OF RECORDS TRANSMITTED

2 DVDs

3. and telephone)

cw2 Anhur Ford

9. REQUIREMENT CONTROL SYMBOL (AR 335-15)

10. SHIPPED FROM

O?ice of the Sta?? Judge Advocate
I03 3rd Ave

32, Suite 100

Fort McNair, Washington DC 20319

11. SHIPPED TO
Trial Defense Service

RETURN RECEIPT REQUESTED (When box is checked, sign
below and mum copy to sender.)

EAIID or SENDER

I

11a. PED NAME TITLE OF ECENER
on any

10b. SIGNAT EOF

SQD7/lkrg.

I
12. TYPQ or

PUNCHED

CASSETTES

2 DVDS

MICROFILM

PHOTO FICHE

13. NUMBER OF BOXES (Packages)

14. NUMBER OF ITEMS

2 DVDS
15. METHOD or SHIPMENT
FIRST CLASS PARCEL POST
MAIL REGISTERED

16. SPECIAL INSTRUCTIONS

17. TYPE COMPONENT USED (Formagnetically reooradeddafa)

16. REMARKS

Material in this shipment is classi?ed up to

DA FORM 200, SEP 1998

PREVIOUS EDITIONS ARE OBSOLETE.

APD LF

20981

Appellate Exhibit 42
Enclosure 6
has been entered into the

record as
Appellate Exhibit 12

20982

Appellate Exhibit 42
Enclosure 7
has been entered into the

record as
Appellate Exhibit 1

20983

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
U.S. Army, (b) (6)
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)
)

TO PROSECUTION RESPONSE
TO DEFENSE MOTION TO
DISMISS ALL CHARGES WITH
PREJUDICE
DATED: 17 April 2012

RELIEF SOUGHT
1. In accordance with the Rules for Courts-Martial (R.C.M.) 701(g)(3)(D), the Defense moves to
dismiss all charges in this case with prejudice.

BURDEN OF PERSUASION AND BURDEN OF PROOF
2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1).
WITNESSES/EVIDENCE
3. The Defense does not request any witnesses for this motion, but respectfully requests this
Court to consider the following evidence:
a)
b)
c)
d)
e)
f)
g)
h)
1

Defense Motion to Compel Discovery – AE VIII;
Prosecution Response to the Defense’s Motion to Compel Discovery – AE XVI;
Defense Reply to the Prosecution Response to the Defense’s Motion to Compel
Discovery – AE XXVI;
Defense Motion to Dismiss All Charges With Prejudice – AE XXXI;
Prosecution Response to Defense Motion to Dismiss All Charges With Prejudice;
Email from then-CPT Fein1 to the Court and Defense regarding classified discovery
(22 March 2012) – Email Appendix;
Email from MAJ Fein to Defense regarding the 14 hard drives at issue in discovery
(16 April 2012) – Email Appendix;
Audio Recording of Motions Argument (15 March 2012)[“Oral Argument”];

For ease of reference, all subsequent references to this email will be to “CPT Fein.”

1

20984

i)

Enclosure to Prosecution Supplement to Prosecution Proposed Case Calendar – AE
XII.
ARGUMENT

4. As the Army Court of Criminal Appeals has recently said, “[i]gnorance or misunderstanding
of basic, longstanding … fundamental, constitutionally-based discovery and disclosure rules by
counsel undermines the adversarial process and is inexcusable in the military justice system.”
United States v. Dobson, 2010 WL 3528822, at *7 (A. Ct. Crim. App. Aug. 9, 2010). In this
case, the Government has wholly misunderstood those longstanding, fundamental and
constitutionally-based rules, resulting in irreparable prejudice to PFC Manning.
5. In this Court’s Ruling dated 23 March 2012, the Court made, inter alia, the following
findings of law:
a) Brady requires the Government to disclose evidence that is favorable to the defense and
material to guilt or punishment. Ruling: Defense Motion to Compel Discovery, p. 7,
para. 2. [hereinafter “Ruling”].
b) RCM 701(a)(6)(Evidence favorable to the defense) codifies Brady and provides that the
trial counsel shall, as soon as practicable, disclose to the defense the existence of
evidence known to the trial counsel which reasonably tends to: (A) negate the guilt of the
accused to an offense charged; (B) reduce the degree of guilt of the accused of an offense
charged; or (C) reduce the punishment. Ruling, p. 8-9, para. 6.
c) Brady applies to classified information. Ruling, p. 7-8, para. 2.
d) Where the Government seeks to use MRE 505 to withhold classified information, a
privilege must be claimed in accordance with MRE 505(c). Ruling, p. 7, para. 1.
e) The classification information privilege under MRE 505 does not negate the
Government’s duty to disclose information favorable to the defense and material to
punishment under Brady. Ruling, p. 7-8, para. 2.
f) The requirements for discovery and production of evidence are the same for classified
and unclassified information under RCM 701 and 703 unless the Government moves for
limited disclosure under MRE 505(g)(2) or claims the MRE 505 privilege for classified
information. Ruling, p. 8, para. 5.
g) RCM 701(f) applies to discovery of classified information only when the Government
moves for limited disclosure under MRE 505(g)(2) of classified information subject to
discovery under RCM 701 or when the government claims a privilege under MRE 505(c)
for classified information. Ruling, p. 9, para. 6.c.

2

20985

h) If classified discovery is at issue and the government does not wish to disclose the
classified information in part or in whole to the defense, the government must claim a
privilege under MRE 505(c). Ruling, p. 10, para. 11.
6. Based on the Court’s findings of law and the Government’s written and oral submissions, it is
clear that the Government did not understand the relevant Brady standard; did not understand its
obligations under R.C.M. 701(a)(2); and did not understand the process of classified discovery.
7. The Government contends that “[d]ismissal of all charges with prejudice would be an unjust
remedy because the defense has provided no factual basis to support its argument.” Prosecution
Response to Defense Motion to Dismiss All Charges With Prejudice, p. 6. The Defense believes
that it very clearly laid out the discovery violations in its Motion to Dismiss All Charges With
Prejudice. However, the Defense will provide a further factual basis for its Motion herein.
8. Moreover, the Defense would note that the Government has not even made an attempt to
rebut the Defense’s argument that it committed a discovery violation. The only proffer that the
Government makes in its “defense” is the following:
The prosecution has, and will continue to, mirror the open file discovery system as much
as practicable, taking into consideration the national security concerns relating to that
which may be discoverable. [legal citations omitted]. To date, the prosecution has
produced 2,729 unclassified documents, totaling 81,273 pages, and 41,550 classified
documents, totaling 336,641 pages. Much of the information, discoverable or not, is
owned by other government agencies and may contain multiple equity holders, requiring
interagency coordination. The prosecution will continue to coordinate expeditiously with
those entities to ensure the accused receives a speedy and fair trial.
The defense alleges that the prosecution has committed discovery violations, to include a
violation of Brady and RCM 701(a)(2). The three components of a discovery violation
are as follows: first, that the evidence is discoverable; second, that the evidence was
suppressed by the government; and third, that prejudice ensued. See Strickler v. Greene,
527 U.S. 263, 282 (1999) (listing elements for a Brady violation). No such violation
exists because the prosecution has not suppressed discoverable information, but rather the
Government required a military judge to regulate discovery under RCM 701 and MRE
505 and to enforce reasonable protective measures before authorizing further disclosure
or inspection of classified information in light of national security concerns. This is
evidenced by the original Prosecution Proposed Case Calendar where the prosecution
outlined for the Court and the defense how much time it anticipates is needed to review
voluminous classified material and be able to present much of this material to the Court
under MRE 505 in a systematic and efficient process. The Court’s recent rulings with
respect to discovery and the protective order limit foreseeable risks to national security,
thus satisfying those measures necessary to obtain approval for disclosure or inspection.
Prosecution Response to Defense Motion to Dismiss All Charges With Prejudice, p. 4 (citations
omitted). When this is boiled down, it amounts to the following argument:
a)
b)

The Government already given the Defense a lot of discovery;
Discovery is complicated and requires much inter-agency co-ordination;
3

20986

c)
d)

The Government did not outright suppress relevant evidence;
The Government was simply waiting for a military judge to help regulate discovery.

9. None of this, even if true,2 provides any rebuttal to the specific issues raised in the Defense’s
Motion to Dismiss All Charges With Prejudice. How can the Government now say it understood
that R.C.M. 701(a)(6) applies in light of its previous position that federal appellate Brady
applied? How can the Government say that it understood that Brady mandates the disclosure of
evidence that is favorable for sentencing when: a) it believed Brady to be concerned with
“findings of guilt”; and b) it refused to turn over damage assessments because they did not
contain material that was favorable for the merits? How can the Government say that it
understood classified discovery when its position was that R.C.M. 701 does not apply in
classified evidence cases?
10. These are but a few of the questions that the Government should have attempted to answer.
Its lack of an answer to them speaks volumes and can be construed as nothing short of an
admission that the Government has full knowledge that it committed very serious discovery
violations.
11. The Defense will address the relevant issue as follows. First, it will explain in detail why it
is clear that the Government did not understand Brady, R.C.M. 701(a)(2), or classified discovery.
Next, it will highlight the Government’s convenient ex post revisionism of the facts. Finally, it
will explain why the Government’s discovery violations warrant dismissal of all charges with
prejudice.
A)

The Government Engaged in Grossly Negligent or Willful Discovery Violations

i) The Government Did Not Understand the Relevant Brady Standard
12. The Government’s written submissions, oral submissions, and conduct illustrate that it did
not understand its Brady obligations. It is clear from the Government’s statement of law in the
Prosecution Response to Defense Motion to Compel Discovery that it does not understand what

The Government does not cite once to R.C.M. 701(a)(6), the military’s version of Brady, in
its 15-page response to the Defense’s motion to Compel Discovery.

The Government believes that its Brady obligations are governed by the federal appellate
standard. It states the relevant standard as follows:

2

The Defense would contest the accuracy of c) and d), as outlined in more detail herein. The Government cites
Strickler v. Greene, 527 U.S. 263, 282 (1999) for the elements of a Brady violation: “first, that the evidence is
discoverable; second, that the evidence was suppressed by the government; and third, that prejudice ensued.”
Prosecution Response to Defense Motion to Dismiss All Charges With Prejudice, p. 4. The government implies that
the “suppression” must be deliberate (i.e. the government actively concealed the information). However, Stickler,
says no such thing; instead, the Supreme Court in Strickler states that “that evidence must have been suppressed by
the State, either willfully or inadvertently.” See 527 U.S. at 282. Moreover, the Government is again confusing pretrial/trial issues with appellate issues. Strickler deals with the standard of review for Brady violations that are
discovered post-trial.

4

20987

“Favorable evidence ‘is subject to constitutionally mandated disclosure when it
‘could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” (citing Cone v. Bell, 556 U.S. 449, 464
(2009)). Evidence is ‘material’ within the meaning of Brady when there is a
reasonable probability that, had the evidence been disclosed, the result of the
proceeding would be different.” Id.at 469.
This is obviously not the correct standard. Under this standard, evidence would only be subject
to disclosure under Brady if it would be an absolute “game-changer.” In United States v.
Safavian, 233 F.R.D. 12, 13-14 (D.D.C. 2005), the court indicated why the appellate standard
was not (and could not be) the appropriate Brady standard for prosecutors to use:
The government acknowledges that under Brady it has the affirmative duty to
produce exculpatory evidence when such evidence is material to either guilt or
punishment. But it contends that evidence is “material” only “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” The problem with this
iteration of Brady and the government’s view of its obligations at this stage of the
proceedings, however, is that it permits prosecutors to withhold admittedly
favorable evidence whenever the prosecutors, in their wisdom, conclude that it
would not make a difference to the outcome of the trial. Most prosecutors are
neither neutral (nor should they be) nor prescient, and any such judgment
necessarily is speculative on so many matters that simply are unknown and
unknowable before trial begins: which government witnesses will be available for
trial, how they will testify and be evaluated by the jury, which objections to
testimony and evidence the trial judge will sustain and which he will overrule,
what the nature of the defense will be, what witnesses and evidence will support
that defense, what instructions the Court ultimately will give, what questions the
jury may pose during deliberations (and how they may be answered), and whether
the jury finds guilt on all counts or only on some (and which ones).
The prosecutor cannot be permitted to look at the case pretrial through the end of
the telescope an appellate court would use post-trial. Thus, the government must
always produce any potentially exculpatory or otherwise favorable evidence
without regard to how the withholding of such evidence might be viewed-with the
benefit of hindsight-as affecting the outcome of the trial. The question before trial
is not whether the government thinks that disclosure of the information or
evidence it is considering withholding might change the outcome of the trial going
forward, but whether the evidence is favorable and therefore must be disclosed.
Because the definition of “materiality” discussed in Strickler and other appellate
cases is a standard articulated in the post-conviction context for appellate review,
it is not the appropriate one for prosecutors to apply during the pretrial discovery
phase. The only question before (and even during) trial is whether the evidence at
issue may be “favorable to the accused”; if so, it must be disclosed without regard
to whether the failure to disclose it likely would affect the outcome of the
5

20988

The Government does not believe that favorable evidence for sentencing is Brady material.
It cites cases for the proposition that: a) “[e]vidence that is material to guilt will often be
material for sentencing purposes as well; the converse is not always true” and; b) “the
proper standard of materiality must reflect our overriding concern with the justice of the
finding of guilt.” Prosecution Response to Defense Motion to Compel Discovery, p. 6
(emphasis added by Government). The citations clearly show that the Government believes
that favorable evidence for sentencing is not subject to disclosure under Brady.

13. After oral argument, on 21 March 2012, the Court asked the Government to respond, inter
alia, to the following question: Is there any favorable material [in the damage assessments the
Government has reviewed?]. The Government’s response with respect to the DIA and IRTF
reviews was that there was favorable material.3 It stated that it found information that is
favorable to the accused that is material to punishment. It further stated that it had not found any
favorable material relevant to findings. The concession that the damage assessment is
“favorable” is wholly at odds with the Government’s statement two weeks earlier in its Response
to Defense Motion to Compel Discovery, where it flat-out stated, “[t]he alleged damage
assessment by the IRTF is not ‘relevant and necessary.’” Id., p. 10.
14. In its findings the Court stated that the “IRTF damage assessment is relevant and necessary
for discovery under Brady and RCM 701(a)(6).” Ruling, p. 11. The fact that the Government
did not view as relevant that which it conceded was favorable to the accused plainly illustrates
that it does not understand the Brady standard for discovery.
15. In oral argument, the Government further proved that it did not understand the Brady
standard. CPT Fein was asked by the Court to articulate what he believed Brady entailed. CPT
Fein hesitated and could not answer the question without looking down at his notes. He stated:
Ma’am – I don’t even want to cite it incorrectly. Ma’am we are required through
Brady and its progeny to do a due diligence search in order to find exculpatory …
one moment please ma’am [pause] … to search for any information that is
material to either guilt or to punishment irrespective of the good or the bad faith
of the prosecution in turning over that material.
Oral Argument, 15 March 2012, at 1:03:19. The latter part of trial counsel’s statement makes
absolutely no sense and has nothing to do with the standard for disclosure under Brady.

3

At oral argument, CPT stated that he could not disclose whether these damage assessments contained favorable
information because that fact was classified.
Court: None of the damage assessments are Brady material?
CPT Fein: Ma’am I do not have authority to answer that question.
Court: Why not?
CPT Fein: Because it’s classified information.

Oral Argument, 15 March 2012, at 1:10:30. Apparently, five days later, that fact (whether the damage assessments
contained favorable information) was no longer classified as the Government was able to send the requested
information via a non-secure email. The Defense believes that whether the damage assessments contained Brady
material was never classified information and thus, the Government misrepresented this fact to the Court.

6

20989

16. While the Defense appreciates that oral argument can be intense and stress-inducing, the
Court asked a very basic question that the Government should have been able to respond to
without consulting pre-written notes. The fact that the Government claims it fully understands
its Brady obligations, but cannot articulate what those obligations are without a cheat-sheet,
shows that the Government does not actually understand its Brady obligations. Moreover, even
with the cheat-sheet, the Government still could not pin down the Brady standard, saying that
Brady requires the government “to search for any information that is material to either guilt or to
punishment irrespective of the good or the bad faith of the prosecution in turning over that
material.” Oral Argument, 15 March 2012, at 1:03:19.
17. After the Court’s ruling on 23 March 2012, the Government went to great pains in its
subsequent emails with the Court and the Defense to clarify that it understood its Brady
obligations. Unfortunately for the Government, the proof is in the pudding. The Government’s
15-page Response to Defense Motion to Compel Discovery, its statements at the oral argument,
and its refusal to see the damage assessments as Brady material lead to one absolutely
inescapable conclusion: that the Government did not understand Brady.
ii)

The Government Did Not Understand its General Discovery Obligations Under R.C.M.
701

18. In addition, the Government did not understand discovery under R.C.M. 701(a)(2). Not
once is R.C.M. 701(a)(2) cited in the Government’s Response to the Defense Motion to Compel
Discovery. Instead, the Government cited to R.C.M. 703, the rules governing production of
evidence, to deny the discovery requested by the Defense. The reference to R.C.M. 703 was not
an accident; the Government cited to R.C.M. 703 thirty-five times in its motion. It believed that
it was only obligated to turn over specifically-requested items where the Defense could prove, to
the Government’s satisfaction, that the items were “relevant and necessary” to an element of the
charged offense. This is a much higher threshold than that which is actually mandated by
R.C.M. 701(a)(2). The Government’s failure to understand the correct standard under R.C.M.
701(a)(2) (or, more accurately, its failure to understand that R.C.M. 701(a)(2) governed
disclosure of items within its possession, custody or control) meant that the Defense was not
provided with the needed-discovery.
19. Further, the Government maintained that it was “unaware” of the existence of any forensic
results or investigative files relevant to the case maintained by DOS, FBI, DIA, ONCIX and
CIA. The Court ruled that “[t]hese agencies are closely aligned with the Government in this
case. The Government has a due diligence duty to determine whether such forensic results or
investigative files that are germane to this case are maintained by these agencies.” Ruling, p. 11.
This clearly shows that the Government did not understand its obligations of due diligence in
respect of the requested-discovery.
iii)

The Government Did Not Understand How Classified Discovery Works

20. This case is an important classified evidence case. And the Government has outright
admitted that it does not know how classified discovery works. The Defense has consistently
maintained that R.C.M. 701 governs discovery, both classified and unclassified. While R.C.M.
701(f) provides that nothing in the section shall require the disclosure of classified discovery,
this does not mean that R.C.M. 701 does not apply to classified discovery. The Government in
7

20990

its Response to the Defense Motion to Compel Discovery alluded to the fact that R.C.M. 701
does not control classified discovery when it stated, “The rule does not govern the production of
classified information. See R.C.M. 701(f) (“nothing in this rule shall…require the disclosure of
information protected from disclosure by [MRE 505]”).
21. In oral argument, CPT Fein stated that R.C.M. 701(a)(6)/Brady does not apply to classified
information: “[b]ut 701(a)(6) does not apply to classified information, which is what I started
with. The United States has complied with its obligations under 701. The one big elephant in
the room unfortunately is that everything the defense is requesting that we have not produced in
discovery is classified information.” Oral Argument, 15 March 2012, at 1:04.
22. On 22 March, 2012, CPT Fein sent an email to the parties where he stated, in no uncertain
terms, the Government’s position that R.C.M. 701 does not apply to classified discovery:
As litigated at the motions hearing, the government’s position is that classified
information does not fall under RCM 701. The information the defense has
requested in discovery is classified and the prosecution has no reason to believe it
is not classified. Because the information is classified, RCM 701 does not apply
(as per RCM 701(a) and (f)), which leaves the prosecution to use the standards
under MRE 505 along with Brady and its progeny. The defense provided no
authority to apply RCM 701(a)(2) or (6) to classified information and all the
authorities only reference unclassified information. The prosecution has relied on
MRE 505 and Brady for regulation of what classified information is discoverable.
The United States Government must always weigh the necessity to provide the
normal open-file procedures in the military justice process does not and cannot
apply to classified information, although in this case the government has turned
over as much classified information as possible while still protecting national
security. The parties are now at a point where the defense wants access to
classified information that the government does not agree to disclose under MRE
505(g)(1). To date, the only classified information the defense has requested
which the government has withheld are items subject to the motion to compel,
because they are more sensitive than the other classified information previously
produced. The prosecution has maintained from the beginning of this case, that it
intends to produce all discoverable information, under our legal and ethical
obligations.
Just because the defense requests classified information does not mean it is
discoverable, as outlined in MRE 505 and relevant case law. The United States
understands its Constitutional obligations to ensure a fair trial while balancing
national security interests by protecting classified information.
Email from CPT Fein, 22 March 2012.
23. This email shows just how off-base the Government is on its discovery obligations and on
trying a classified evidence case generally. Its position is that because the information is
classified, R.C.M. 701 does not apply, leaving the Government to use the standards set forth
8

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under M.R.E. 505 and federal Brady. The Government then assumed the job of being the arbiter
of what is discoverable, by balancing the rights of the accused with the interests of the United
States government in protecting national security. In short, the Government has usurped the role
of the military judge by becoming the sole authority of when national security concerns should
yield to the rights of the accused, and vice versa. It is startling to believe that the Government
would consider it appropriate for a prosecutor to balance national security with the rights of the
party who it is prosecuting. The Government failed to realize that such balancing, to the extent it
must be done, is fully within the purview of the military judge. And, it is only appropriate after
the Government has engaged the processes of M.R.E. 505.
24. The Government, in its motion, email, and in oral argument repeated that M.R.E. 505
governs production of classified information. But this is only half-true. M.R.E. 505 does not
apply unless the Government claims a privilege. As the Court stated in its Ruling, “[i]f classified
information detrimental to national security is at issue and the government does not wish to
disclose the classified information in part or in whole to the defense, the government must claim
a privilege under MRE 505(c).” Ruling, p. 10. The Court has found that in this case “[n]o
government entity in possession of any discovery at issue has claimed a privilege under MRE
505(c).” Id. The Government, in addition to not understanding that classified evidence is
subject to disclosure under R.C.M. 701, failed to understand the appropriate process for not
disclosing relevant discovery under M.R.E. 505.
25. In short, the Government: a) thought that R.C.M. 701 does not govern classified discovery
(whereas the Court found that it did); b) thought that the Government, and not the judge, should
engage in a balancing test of the rights of the accused and the interests of national security; and
c) failed to follow the appropriate process for claiming a privilege under M.R.E. 505, all while
withholding discovery from the Defense.
26. This case shows a cataclysmic failing of the Government to understand all aspects of the
discovery process. As the Defense indicted in its Motion to Dismiss All Charges With Prejudice,
it is not clear whether the Government’s position on discovery amounted to gross negligence or
willful misconduct.
27. The Defense believes, however, that there is ample evidence to support the contention that
the discovery violations are willful, as the Government seems to be resisting handing over
exculpatory evidence at every turn. Among the factors suggesting that the discovery violations
are willful:

The Government’s refusal, up until very recently, to acknowledge that at least some of
the damage assessments are Brady material. In oral argument, the following exchange
occurred:
Court: None of the damage assessments are Brady material?
CPT Fein: Ma’am I do not have authority to answer that question.
Court: Why not?
CPT Fein: Because its classified information.

9

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Oral Argument, 15 March 2012, at 1:10:30. The Government’s failure to acknowledge
whether the damage assessments are Brady material deliberately makes it difficult for the
Defense to compel such discovery as being Brady material and to hold the Government
accountable for its discovery violations.

The Government’s practice of referring to the damage assessments as “alleged” in order
to make it difficult for the Defense to compel discovery of something that is not even
confirmed to exist.

The Government’s misleading use of the phrase, “[X entity] has not completed a damage
assessment” when it should have said, “[X entity] has not finished completing its damage
assessment.” The former implies that such a damage assessment was never even
performed, leading one to believe that the Defense’s request is moot.

The Government maintaining that it is “unaware” of forensic results from various
organizations, without stating it looked for those results. Normally, when a party states
that it is “unaware” of certain results, this implies that it undertook to search for those
results on good faith basis.

The Government claiming that it does not know what discovery the Defense is seeking
and asking the Defense to make the request with more specificity; all while claiming that
the information is not “relevant and necessary.” As previously pointed out, these two
things are inconsistent.

The Government claiming, during a telephonic 802 session, that work product is not
exempt under Brady, but then stating that because the State Department has not
“completed” a damage assessment, such an assessment is not subject to disclosure.
Again, the two are inconsistent. As a result of the Government’s inconsistent positions
on this issue, this Court ordered the Government to produce a witness from the State
Department to appear at the oral motions argument to confirm what information is or is
not available within that agency.

The Government deliberately misunderstanding the Defense’s position regarding the
potential evidence to be obtained from a search of the 14 hard drives, and then resisting
performing simple computer searches that it has a good faith basis to believe will yield
favorable evidence for the accused.

28. This behavior by the Government would seem to suggest that the wholesale discovery
violations are part of a deliberate pattern to deny discovery to the Defense. United States v.
Hsia, 24 F. Supp. 2d 14, 30 (D.D.C. 1998) (“[C]ourts in this jurisdiction look with disfavor on
narrow readings of the government’s Brady obligations; it simply is insufficient for the
government to offer “niggling excuses” for its failure to provide potentially exculpatory evidence
to the defendant, and it does so at its peril.”).
29. Whether such discovery violations are willful or grossly negligent is of no particular import,
as both are inexcusable. See United States v. Dobson, 2010 WL 3528822, at *7 (A. Ct. Crim.
10

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App. Aug. 9, 2010) (“While we defer to the military judge’s evaluation of the witnesses’
credibility and his finding that the government’s violation of discovery rules was not deliberate,
but rather ignorant, neither is tolerable. Hiding the ball and ‘gamesmanship’ have no place in
our open system of discovery.”) (citing United States v. Adens, 56 M.J. 724, 731 (C.A.A.F.
2002) (broad discovery at an early stage reduces pretrial motions, surprise, and trial delays ...
decisions concerning withdrawal of the case, motions, pleas, and composition of the courtmartial—in short its practice “is essential to the administration of justice”); United States v.
Dancy, 38 M.J. 1, 5 n.3 (C.M.A.1993) (explaining the “unfortunate consequences of a trial
counsel’s disregard for the discovery rights of an accused”)); see also Breakiron v. Horn, 642
F.3d 126, 133 n.8 (3rd Cir. 2011) (“In this regard the prosecutor has much to answer for. When
asked at oral argument why the prosecutor did not disclose this material, the Commonwealth
conceded that it ‘seems a little strange.’ The Commonwealth also conceded that such material
would have been disclosed ‘under the modern rules of discovery.’ That response is at once true
and insufficient. It was so well-established before [defendant’s] trial as to have been axiomatic
that prosecutors must disclose impeachment evidence like that at issue here. The
Commonwealth has not otherwise attempted to explain why this material was not disclosed or to
defend the prosecutor’s failure to disclose it. Like the District Court, we are troubled by that
failure. We are at a loss to understand why prosecutors, so long after Brady became law, still
play games with justice and commit constitutional violations by secreting and/or withholding
exculpatory evidence from the defense.”).
B.

The Government Is Now Engaged In Ex Post Revisionism

30. The Government has now engaged in deliberate ex post revisionism by pretending that they
did not say what they clearly said and did not do what they clearly did. Unfortunately for the
Government, its responses and representations were in writing, in open court, or in sessions with
the Military Judge. The Government cannot now sweep this under the rug by make-believing
that these discovery violations did not happen.
31. It is telling that among the evidence that it would have the Court consider, it does not list its
own Response to the Defense Motion to Compel or its own email regarding classified discovery.
This is the best evidence of the standard the Government was operating under until it was
corrected by the Military Judge.
32. The following plainly illustrates the Government’s ex post revisionism:
a) In its latest Response, the Government “largely agrees with the defense’s recitation of
the discovery rules in its Reply.” Prosecution Response to Defense Motion to Dismiss
All Charges With Prejudice, p. 3. This is inconsistent with its actual Response to the
Defense Motion to Compel Discovery which cites almost exclusively to R.C.M. 703.
It does not reference 701(a)(2) or 701(a)(6) even once.
b) In its latest Response, the Government states, “The prosecution shall disclose
evidence that is favorable to the accused and material to either guilt or punishment.”
Prosecution Response to Defense Motion to Dismiss All Charges With Prejudice, p.
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3. In its early Response to the Defense Motion to Compel Discovery, it cited a case
which stated that the relevant standard “must reflect our overriding concern with the
justice of the finding of guilt.” Prosecution Response to Defense Motion to Compel
Discovery, p. 6. Accordingly, it did not provide the Defense with Brady material
from any damage assessment because such material was favorable only with respect
to punishment, but not the merits. See, e.g. Prosecution Response to Defense Motion
to Compel Discovery at p. 10 (“Actual damage, if any, is not relevant to any element
of the charged offenses.”).
c) In its latest Response, the Government states that “the prosecution shall always
provide Brady material.” Prosecution Response to Defense Motion to Dismiss All
Charges With Prejudice, p. 6 (emphasis by Government). This is wholly inconsistent
with its earlier position that classified information is not subject to the military Brady
standard, R.C.M. 701(a)(6). See e.g. Oral Argument, 15 March 2012, at 1:04 (trial
counsel stating “But 701(a)(6) does not apply to classified information, which is what
I started with.”).
d) In its latest Response, the Government states, “The prosecution has, and will continue
to, mirror the open file discovery system as much as practicable, taking into
consideration the national security concerns relating to that which may be
discoverable.” Prosecution Response to Defense Motion to Dismiss All Charges With
Prejudice, p. 4. This is a far cry from its position a couple of weeks ago that “[t]he
normal open-file procedures in the military justice process does not and cannot apply
to classified information.” Email from CPT Fein, 22 March 2012.
e) In its latest Response, the Government repeatedly states that “no [discovery] violation
exists because the prosecution has not suppressed discoverable information, but rather
the Government required a military judge to regulate discovery under RCM 701 and
MRE 505 and to enforce reasonable protective measures … [for] classified
information.” Prosecution Response to Defense Motion to Dismiss All Charges With
Prejudice, p. 4, 6. This is plainly not true. The Government did not engage the
assistance of the military judge “to regulate discovery.” Rather, the Defense engaged
the assistance of the military judge after the Government refused to turn over the
requested discovery on an improper basis. If the Government had sought the
assistance of the military judge, it would have, for instance, sought in camera review
of the requested matter or claimed a privilege under M.R.E. 505.4 It did neither in
this case. Moreover, how can the Government say that it “required a judge to
regulate [classified] discovery under R.C.M. 701” when it outright stated “because
the information is classified, RCM 701 does not apply?” Email from CPT Fein, 22
March 2012. The Government cannot be permitted to say that it was waiting for a
judge to regulate discovery under R.C.M. 701 when it did not believe that R.C.M. 701
was the governing standard for classified discovery.
4

If the Government were simply waiting for a judge to regulate discovery, it would be in a position at the time of
referral to claim a privilege. The case was referred to a general court martial on 3 February 2012 and the
Government now has until 18 May 2012 to assert a privilege. The proceedings have thus been delayed almost four
months waiting for equity-holders to assert a privilege.

12

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f) In its Response, the Government refutes the Defense’s argument that it used the
wrong standard by stating, “[t]o the contrary, as stated on the record and as provided
above, the prosecution continues its search for discoverable information under
Williams and will produce that which the rules of discovery under RCM 701 or the
Court require.” Prosecution Response to Defense Motion to Dismiss All Charges
With Prejudice, p. 7. The Government’s phraseology here is suspect. It appears to be
stating that it has always used the relevant R.C.M. 701(a)(6)/Brady standard
(“continues its search … under Williams”). However, the Government could not in
good faith make that contention because it is clear from its original Response motion
that it did not realize that R.C.M. 701(a)(2) and R.C.M. 701(a)(6) were the relevant
standards. See discussion above. So, the Government uses deliberately ambiguous
wording to suggest that it has always operated under the correct discovery standard—
which it has not.
33. This Court cannot accept the Government’s ritual incantations that it understands its Brady
and other discovery obligations. See United States v. Cerna, 633 F. Supp. 2d 1053, 1056 (N.D.
Cal. 2009) (noting that “the government is fond of saying that it knows its Brady obligations and
will honor them”); United States v. Hsia, 24 F. Supp. 2d 14, 29 (D.D.C. 1998) (“While the
government has represented that it ‘understands its Brady obligations and it fully intends to abide
by them,’ the Court shares defense counsel’s skepticism.”); United States v. Naegele, 468 F.
Supp. 2d 150, 152 n.2 (D.D.C. 2007) (“[N]ow that the Court realizes that its view of Brady and
the government’s have not been consistent for many years, it no longer accepts conclusory
assertions by the Department of Justice that it ‘understands’ its Brady obligations and ‘will
comply’ or ‘has complied’ with them.”); United States v. Lim, 2000 WL 782964, at *3 (N.D. Ill.
June 15, 2000) (“The government's response—which is and has been its stock response to such
motions as long as the Court can recall—is that the government ‘recognizes its obligation’ to
produce material pursuant to Brady and Giglio, that ‘the government will abide by the law,’ and
that the motion should therefore be denied as ‘moot.’ … [T]his Court does not believe that this is
an appropriate way to deal with a matter as important as the government’s obligation to produce
material that is favorable to an accused.”). Here, there is overwhelming evidence that proves that
the Government did not understand its obligations; accordingly, the Government’s repeated
representations that it understands its discovery obligations ring hollow.
C.

Dismissal of All Charges With Prejudice is the Only Appropriate Remedy

34. The Government argues that even if it committed discovery violations, dismissal of all
charges would be an unjust and improper result. The Defense submits that continuing to
prosecute an irreparably flawed case would be a more unjust and improper result.
35. The Government states that there are procedures to remedy any discovery violations. In
particular, it states that an in camera review is one such procedure that can act as a remedy.
According to the Government, “this review ensures all discoverable information is produced.”
Prosecution Response to Defense Motion to Dismiss All Charges With Prejudice, p. 5. The
Government does not explain how an in camera review will “ensure[ ] that all discoverable
information is produced.” Id. All it ensures is that particular evidence known to the Defense will
13

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be produced. It does not in any way ensure that all Brady evidence is produced.5
36. Further, the Government states that the “prosecution is in a position to cure any possible
prejudice to the accused, particularly in light of its ongoing search for discoverable information
given the volume and substance of the accused’s charged misconduct.”6 Prosecution Response
to Motion to Dismiss All Charges With Prejudice, p. 5. The Government further states:
The prosecution promptly requested all government entities whose files the
prosecution is required to search under Williams to segregate and preserve any
records related to the accused, WikiLeaks, and the evidence in this case. Those
entities continue to preserve such records. Ordering the prosecution to adopt
alternative discovery procedures in its continuous review of these preserved
records, a task the prosecution will expeditiously pursue if ordered, is another
remedy available to the Court, short of dismissal.
Id. (emphasis in original). It appears that the Government is saying that from now on, it will use
the appropriate discovery standards in reviewing potentially discoverable material. How does
this remedy the prejudice that the Government has caused by failing to review the material under
the correct standard for the past two years?
37. As the Government notes, there is potentially discoverable information in a myriad of
aligned and non-aligned agencies. According to the Government: “[i]n total, the prosecution
requested thirteen departments, agencies, and military commands to segregate and preserve such
records. Furthermore, the prosecution requested specific information that is potentially
discoverable from more than fifty additional departments and agencies.” Prosecution Response
to Motion to Dismiss All Charges With Prejudice, p. 2.
38. The problem (which the Government refuses to even acknowledge) is that the Government
has been conducting a Brady search using an improper standard—i.e. a standard much higher
than that actually mandated by R.C.M. 701(a)(6). The Government was looking for evidence
that was exculpatory on the merits; it was not looking for evidence that was “favorable to the
accused” in that it reasonably tended to reduce punishment. See R.C.M. 701(a)(6). Indeed, the
Government did not think that Brady covered information that was material to punishment. It
stands to reason that there is Brady material (properly understood) that has been “overlooked” by
the Government in its two year search.
39. The Government seems to think that the volume of provided-discovery somehow cures its
failure to perform an appropriate Brady search. At one point, the Government says “[t]o date,
the prosecution has produced 2,729 unclassified documents, totaling 81,273 pages, and 41,550
classified documents, totaling 336,641 pages.” Id. at 2. Discovery obligations are not measured
by volume. In other words, providing a large volume of discovery does not relieve the
5

In fact, the Government just disclosed twelve pages of unclassified Brady materials to the Defense, all of which are
dated as of November 2010. How is the Defense in a position to know how much other Brady material (unclassified
or classified) the Government has been withholding?
6
The Defense is not clear what the latter part of this sentence means (“given the volume and substance of the
accused’s charged misconduct.”).

14

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Government from providing all discovery which it is obligated to provide under Brady. If the
Government produced 1,000,000 classified documents, spanning 100,000,000 pages, but no
Brady material (when such material existed), this would still be a discovery violation. The
Government’s numbers here are a red-herring designed to detract attention from the fact that it
has not complied with R.C.M. 701(a)(2) and R.C.M. 701(a)(6) and that it has not understood
classified discovery.
40. The accused is denied a fair trial when he is not provided with constitutionally-required
discovery. This cannot be cured by burying the accused in a sea of other discovery. Surely our
military justice system cannot countenance a scenario where the accused is denied Brady
material, but in its stead is provided with multiple and voluminous copies of Army Regulations,
and other irrelevant (or marginally relevant) materials.
41. The only way to adequately cure the prejudice that the Government has caused is to require
the Government to start anew, this time using the correct standard. Now when the Government
reads all the documentation from the sixty-three agencies it has contacted, it can apply the
appropriate standard and provide the accused with evidence which “reasonably tends to” negate
guilt or reduce guilt or punishment. Any other order would punish the accused for the
Government’s discovery violations, while rewarding the Government for its conduct. If the
Government is not ordered to conduct a “re-review” of evidence using the correct standard, the
Government actually would fare better by using the incorrect standard of Brady review than it
would by following the law. This would be an absurd result.
42. However, while in theory the appropriate remedy is that the Government is ordered to go
back and “re-review” all the evidence in light of the correct standard, this will not work in
practice. There are several reasons why this is not a viable option. First, the process of “rereview” will take a year or two. If the Government is still in the process of reviewing the
documents for the very first time, why would a “re-review” of the documents take any shorter
period of time? This would certainly run afoul of constitutional protections afforded with respect
to speedy trial. Second, to the extent that the Government suggests that a “re-review” would not
take two years, this is only because the Government would have every incentive to expedite the
review to avoid the speedy trial clock. If a “re-review” of all documents from sixty-three
different agencies can be done in a matter of months, one might wonder: Why did it take so long
the first time? How carefully is the Government really reviewing this documentation? Third, the
Government facing an inherent conflict of interest in any potential “re-review” for Brady
material. If the Government were to find any Brady material that it missed the first time due to
applying the wrong Brady standard, this would validate the Defense’s concerns about the
discovery violations. As such, the Government would have every incentive not to locate Brady
material because that would prove that the Defense was correct about the Brady violations to
begin with.
43. Moreover, as explained in more detail in the Defense Motion to Dismiss All Charges With
Prejudice, Brady evidence may be lost or missing. The Government states that the Government
has “promptly requested all government entities whose files the prosecution is required to search
[for Brady material] to segregate and preserve any records related to the accused.” Prosecution
Response to Motion to Dismiss All Charges With Prejudice, p. 5. It stated that the purpose of
15

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this request was to “ensure that no evidence is lost or destroyed.” Id. at p. 5, n.3. The Defense
does not believe that the filing of preservation requests means that the relevant information will
actually be preserved. Nowhere is this more apparent than with the fourteen hard drives from
PFC Manning’s SCIF. The CID requested that the evidence be preserved in September 2010; the
Defense also filed a preservation request in September 2011. The Defense has recently learned
that that Government believes that most or all of the drives are not operational or have been
wiped clean. In a recent email, the Government wrote:
After consultation with the government forensic experts, it appears that out of the
14 hard drives that were identified to be present in the TOC or SCIF, 2 drives are
completely inoperable, 7 drives are wiped, 4 drives have file structures present,
and 1 drive is partially wiped. In total, only 5 drives have any information that
could answer your request and ultimately the Court's order, dated 23 March 2012.
Email from MAJ Fein, 16 April 2012. Thus, the Government’s assurances that it has segregated
and preserved any records related to the accused should be viewed with skepticism.
44. Furthermore, we are two years into this case and the Defense has only just received a first
glance at approximately twelve pages of Brady materials. All of these Brady materials are dated
as of November 2010. Why is the Defense receiving these in April 2012, a year and five months
after they were prepared? More Brady and other discoverable material may trickle in over the
next few months. How can the Defense plan trial strategy, follow-up on investigative leads, and
prepare for trial when it is still waiting for critical discovery? Our system was designed to
provide discovery as soon as practicable; it does not envision withholding Brady and other
specifically-requested discovery materials (e.g. grand jury testimony, investigative reports, etc.)
and delivering them virtually on the eve of trial.
45. To condone such a situation would provide the Government with an unfair advantage. The
Government has the full benefit of all the evidence, but is permitted to withhold that evidence
from the Defense. For instance, in its 14 June 2011 Memorandum to the Defense Intelligence
Agency, the Government requested that information related to PFC Manning, including
documents that discussed harm or damage and any measures considered in response to the
alleged leaks, be provided “immediately” to the Government. See Enclosure to Prosecution
Supplement to Prosecution Proposed Case Calendar. The Government stated that “[t]his request
is designed to allow the prosecutors to assess the totality of information available and held as
information for at least nine months that the Defense has not seen. This gives the Government a
nearly one-year head start on the Defense in terms of dealing with, assimilating, and processing
the implications of the relevant discovery. See United States v. Safavian, 233 F.R.D. 12, 19
(D.D.C. 2005) (“It is insufficient for the Justice Department merely to state that while documents
are not currently in its (or the FBI’s) possession it is continuing to make inquires of GSA
employees about e-mails, correspondence and other documents regarding [matters in dispute]
during the course of witness interviews.”).
46. As the Defense stated in its Motion to Dismiss All Charges With Prejudice, the
Government’s interest in securing a conviction and making an example out of PFC Manning has
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clouded the prosecutors’ professional judgment. This is apt to happen in high-profile cases. It is
no coincidence that many high-profile cases are plagued by serious discovery violations. See
United States v. Koubriti, 336 F. Supp. 2d 676 (E.D. Mich. 2004) (dismissing charge due to the
government’s failure to disclose both classified and unclassified material documents during the
first post-9/11 terrorism prosecution); see also United States v. Stevens, 2009 WL 6525926
(D.D.C. Apr. 7, 2009) (setting aside jury’s guilty verdict and dismissing bribery charges against
late Senator Ted Stevens given the prosecution’s failure to disclose records of an interview
favorable to the defense); see also United States v. Libby, 429 F. Supp. 2d 1 (D.D.C. 2006)
(compelling the prosecution to disclose documents related to certain intelligence briefings during
the perjury and obstruction of justice prosecution of former vice presidential advisor I. Lewis
“Scooter” Libby); see also United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005) (ordering the
government to produce a litany of documents and correspondence related to the obstruction of
justice prosecution of former GSA chief of staff, David Safavian); United States v. Behenna, 70
M.J. 521 (A. Ct. Crim. App. 2011) (discussing the prosecution’s failure to timely disclose a
government doctor’s opinion regarding forensic evidence favorable to the defense during a
highly publicized court-martial for an alleged murder occurring in Iraq), rev. granted, 2012
CAAF LEXIS 61 (Jan. 13, 2012) (reviewing the issue of whether the government’s failure to
disclose the doctor’s opinion constituted a violation of the accused’s Sixth Amendment right to a
fair trial). In this case, there is no remedy short of dismissal with prejudice that could cure the
Government’s egregious discovery violations.
CONCLUSION
47. For these reasons, and for the reasons outlined in the Defense’s Motion to Dismiss All
Charges With Prejudice and the Defense’s Reply to the Government’s Response to the Defense
Motion to Compel Discovery, and in accordance with the R.C.M. 701(g)(3)(D), the Defense
moves to dismiss all charges in this case with prejudice.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

17

Appellate Exhibit 43
Enclosure 1
has been entered into the

record as
Appellate Exhibit 8

21001

Appellate Exhibit 43
Enclosure 2
has been entered into the

record as
Appellate Exhibit 16

Appellate Exhibit 43
Enclosure 3
has been entered into the

record as
Appellate Exhibit 26

Appellate Exhibit 43
Enclosure 4
has been entered into the
record as

Appellate Exhibit 31

Appellate Exhibit 43
Enclosure 5
has been entered into the

record as
Appellate Exhibit 42

21005

EMAIL APPENDIX

22 March 2012 Email

Subject: RE: Discovery (UNCLASSIFIED)
From: "Fein, Ashden CPT USA (Add as
.
Date: Thu, Mar 22. 2012 5:25 pm
To: "David Coombs" "Lind. Denise COL MIL USA
-

Cc:

Ma'am,

As litigated at the motions hearing, the government's position is that

classi?ed information does not fall under RCM 701. The information the
defense has requested in discovery is classi?ed and the prosecution has no
reason to believe it is not classi?ed. Because the information is

classi?ed. RCM 701 does not apply (as per RCM 701(a) and which leaves
the prosecution to use the standards under MRE 505 along with Brady and its
progeny. The defense provided no authority to apply RCM 701(a)(2) or (6) to
classi?ed information and all the authorities only reference unclassi?ed
information. The prosecution has relied on MRE 505 and Brady for regulation
of what classi?ed information is discoverable.

The United States Government must always weigh the necessity to provide the

The normal open-?le procedures in the military justice process does not and
cannot apply to classi?ed information. although in this case the government
has turned over as much classi?ed information as possible while still
protecting national security. The parties are now at a point where the

agree to disclose under MRE 505(g)(l To date, the only classi?ed
information the defense has requested which the government has withheld are
items subject to the motion to compel, because they are more sensitive than
the other classi?ed information previously produced. The prosecution has
maintained from the beginning of this case, that it intends to produce all
discoverable information, under our legal and ethical obligations.

Just because the defense requests classified information does not mean it is
discoverable, as outlined in MRE 505 and relevant case law. The United
States understands its Constitutional obligations to ensure a fair trial

while balancing national security interests by protecting classi?ed
information.

v/r
CPT Fein

21006

16 Ami] 2012 Email

subiecf I Hard Dives (Encase Forensic Inages)

(EnCase Forensic Images)
From: "Fein, Ashden MAJ USA

Date:
To:
Cc:

Mon, Apr 16, 2012 3:52 pm

David.

After consultation with the government forensic experts, it appears that out
of the 14 hard drives that were identi?ed to be present in the TOC or SCIF,
2 drives are completely inoperable. 7 drives are wiped. 4 drives have ?le
structures present, and 1 drive is partially wiped. In total. only 5 drives
Court's order. dated 23 March 2012.

Based on this information and in an effort to continue producing as much
information in discovery as possible. regardless of classification, the
United States is willing to produce forensic copies of the 5 drives to the
defense. but only after receiving authorization from relevant OCAs. if

. classified information is identi?ed on the drives. In order to make this

happen, we will have our forensic experts continue their examination and then
pass the information to the security experts to start a review. Our goal is
to have the drives examined and approved for release by 18 May 2012, the
Court's deadline for the other matters in the defense motion to compel.

The United States does not acknowledge any of the defense's arguments or
stated interpretation of the relevant authorities. The United States

maintains that a complete search of these drives is not material to the
preparation of the defense. regardless of their classi?cation.

Additionally. the United States has never maintained that the forensic
computer exams will take an extended period. but rather it would takes weeks
for the security experts to review the 14 hard drives for classi?ed

information and the prosecution to obtain needed approvals. Now knowing that
only ?ve drives are at issue (the ?fth being partially wiped). this process
should not be too onerous for our security experts and they should be able to
complete everything, including obtaining approvals, if any, within the next

30 days.

Please let us know whether this is acceptable and we will notify the Court.
experts to travel this week or next week for the motions hearing.

v/r
Ashden

19

Appellate Exhibit 43
Enclosure 8

is the oral argument
dated 15 March 2012

Appellate Exhibit 43
Enclosure 9
has been entered into the

record as
Appellate Exhibit 12

21009

17 April 2012

MEMORANDUM FOR RECORD

SUBJECT: Security Expert Review of Defense Motions

l. I hereby certify that I have reviewed the following Defense motion for the presence of
classi?ed information:

a) Defense Reply to Prosecution Response to Defense Motion to Dismiss All Charges with
Prejudice

I do not believe that this motion contains classified information or information that a reasonable
person could believe to be classi?ed.

2. The point of contact for this memorandum is the undersigned a?

CHARLES J. GANIEL
Command, SSO
HQ ATEC

21010

INTHEUNITED STATES ARMV
FIRSTJUDICIALCIRCUIT
UNITEDSTATES

)
)
)

V

DEEENSEPI^OPOSEDCASE
i^ANA^El^ENTOI^EI^

^

U.S.Army,(b) (6)
Army Garrison, Joint Base MyerHenderson Hall,
FortMyer,VA 22211

)
)
)
)
)

DATED: 6April2012

1. The proposed calendar is based upon several assumptions.
a. That the parties will have two weeks from any Article 39(a)to fileamotion, two weeks to
filearesponse, one week to fileareply and that the Court will have an additional week to
considerthe filings prior to the subsequent Article 39(a).
b. That the parties will update and proposearevised case calendar after each Article 39(a) to
ensure that the order and timing ofmotions and other matters being considered makes sense and
provides fbr the orderly administration ofthe case.
2. Per the Court'sinstmctions, the Defense has adopted the Prosecution Proposed Calendar.
The prosecution separated the projected issues into seven (7) phases. The Defense has combined
phases3and4into one phase, and combined the consideration of motions from different phases
into the same phase in order to avoid any utmecessary delay ofthe proceedings.
a Phasel. Completed, with the exception of the Compel Discoverv Motions M^otion to
Disruiss^ and renewal ofBillofParticularsI^e^uest
b Phase 2fa). Le^all^otions,excludin^Evidentiarv Issues (29 March 2012
2012)^

26 April

(1) Defense motion to Dismiss Article 104 Offense
(A) Filing:29March2012
(B) Response: 12April2012
(D) Article 39(a): 24 26 April2012
(2) Defense motion to Dismiss Specificationlof Charge I I
(A) Filing:29March2012
(B) Response: 12April2012
The f^efense will not he filing an t^nlawful command Influence motion; an Improper l^eferral motions ora
Jurisdictional Defects motion.

1

APPELLATE EXMBIT VL-lV | H 4 )
Page
ofPage(s)

21011

(D) Article 39(a): 24 26 April2012
(3) Defense Unreasonable multiplication of Charges motion
(A) Filing:29March2012
(B) Response: 12April2012
(D) Article 39(a): 24 26 April2012
(4) Defense MIotion to Dismiss All Charges and Specifications with Prejudice
(B) Response: 12April2012
(D) Article 39(a): 24 26 April2012
(5) Defense Renewalfor Motion toCompelDiseovery ofComputers
(A) Filing:29March2012
(B) Response: 12April2012
(D) Article39(a):24 26April2012
(6) Defense I^enewal for Bill ofParticulars
(A) Filing:6April2012
(B) Response: 17April2012
(D) Article 39(a): 24 26 April2012
(7) I^eciprocalDiscovery Requests
(A) Filing:29March2012
(B) Response: 12 April 2012
(D) Article39(a): 24-26Aprtl2012
( ^ ) M I ^ 4 0 4 ( b ) Disclosures
(A) Filing:6April2012
(B) Response: N^A
(9) Ciovernment Motion for Appr^opriate Relief to Preclude Actual Harm or Damage
fr^om the Merits Portion of theTrial
(A) Filing:29March2012
(B) Response: 12Aprtl2012
(D) Article39(a):24 26April2012

21012

(10) Updated Proposed Case Calendar^
(A) Filing: 12 April 2012
(B) Response: 17 April 2012 (if applicable
(D) Article 39(a): 24-26 April 2012
(11) Government Notification to Court of Whether it Anticipates Limited Disclosure
or Claim of Privilege
(A) Filing: 20 April 2012
(B) Response: N/A
(D) Article 39(a): 24-26 April 2012

c. Phase 2(b). Legal Motions, excluding Evidentiary Issues (10 May 2012 - 8 June 2012)
(1) Defense Motion to Dismiss All Charged Offenses under 18 U.S.C. 793(e)
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(D) Article 39(a): 7-8 June 2012
(2) Defense Motion to Dismiss All Charged Offenses under 18 U.S.C. 1030(a)(1)
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(D) Article 39(a): 7-8 June 2012
(3) Proposed Members Instructions, including elements for all Charged Offenses
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(D) Article 39(a): 7-8 June 2012
(4) Motion for Proposed Lesser Included Offenses^
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(D) Article 39(a): 7-8 June 2012

The Defense envisions the parties submitting updated proposed case calendars prior to each Article 39(a). This
will enable the Court and the parties to have flexibility in the issues that we address. Additionally, this will enable
the Court to be able to annoimce the date and subject matter for the next Article 39(a).
^ If the parties and Court can agree on the relevant LIOs, this may not be a required motion.

21013

(5) Defense Motion for Appropriate Relief to Exclude Uncharged Misconduct Under
MRE404(b)
(A) Filing:10May2012
(B) Response: 24 May 2012
(D) Article39(a):78June2012
(6) Government Notification ofLimited Disclosure or Claim ofPrivilege and
Litigation Concerning any Proposed Substitutions (including In Camera Review)
(A) Filing andNotice to Defense: 18May2012
(B) Response: 31May 2012
(D) Article 39(a):78June 2012
(7) Production ofCompelledDiscoveryClassifiedandUnclassified
(A)Date:13July2012

d Phaser. Evidentiary Issues not Involving Classified Information under MRE ^0^(22
June2012 20July2012)
(1) Requests for Judicial Notice
(A) Filing: 22June 2012
(B) Response: 6July2012
(D) Article39(a):19 20July2012
(2) Witness Lists Exchange
(A)Filing:19July2012^
(3) Motion to Suppress
(A) Filing: 22June 2012
(B) Response: 6July2012
(D) Article39(a):19 20 July 2012
(4) CompelDiscovery^2^
(A) Filing: 22June 2012
(B) Response:6July2012
(D) Article39(a): 19 20 July 2012
^The Defense will need to have access to compelled discovery in orderto identify needed witnesses. The
Covemment should provide notice ofits intent to oppose production ofany witness by July ^01^.
^The Covemment believes that the Defense will file at least one additional motion to compel discovery for
unclassified information based upon additional information leamed by that point. The Defense does not l^ow ifthis
is accurate, but accepts the Covemment^srepresentationasapossibility.

21014

(5) Motion in Limine
(A) Filing: 22June 2012
(B) Response: 6July2012
(D) Article 39(a): 19 20 July 2012
(6) Privileges
(A) Filing: 22June 2012
(B) Response: 6July2012
(D) Article39(a):19 20July2012
(7) Defense Notice ofintent to Disclose Classified Information under MRE ^O^(h)
(A) Filing: 20 July 2012
(8) Defense Notice of Accuseds Eorum Selection and Notice ofPleasinWriting
(A) Filing: 20 July 2012^

e Phase 4. Evidentiary Issues Involving Both Unclassified and Classified Information
under MRE ^O^andMiscellaneous Motions (3 August2012 31 August2012)^
(1) CompelExperts
(A) Filing:3August2012
(B) Response: 17August2012
(D) Article 39(a): 29 31 August2012
(2) Compel Witnesses
(A) Filing:3August2012
(B) Response: 17August2012
(D) Article 39(a): 29 31 August2012
(3) Defense Article 13 Motion
(A) Filing: 27 July 2012^
^Pursuant to the Covernment^srequest, this date provides the t^nited states with forum selection and notice ofpleas
at least si^ty days priorto trial in orderto coordinate for extended special duty and travel.
^The Covemment requests two separate time periods to pre-authenticate evidence: pre-admit evidence: and prequali^ expert witnesses. The Court should deny the Covemment^srequest to pre-authenticate and admit numerous
pieces ofevidence and foundational testimony in advance ofthe court-martiaf Instead, the Defense requests that the
Court consider all evidence on an individual basis during the court-martial, ttowever, ifthe Court is inclined to preauthenticate evidence, pre-admit evidence, and pre-qualify expert witnesses, the Defense would requestthat the ^7^^
and ^^^ofAugust be set aside to accomplish this task.
^The filing date isaweek earlier forthe Defense in order to provide the Ignited states with one additional weel^ for
its response.

5

21015

(B) Response: 17August2012
(D) Article39(a):29 31 August2012
(4) Defense SpeedyTrial^Article 10 Motion
(A) Filing: 27 July 2012^
(B) Response: 17August2012
(D) Article39(a):29 31 August2012
(A) Filing:3August2012
(B) Response: 17August2012
(D) Article 39(a): 29 31 August2012
(6) Member Proposed O^^^f^^^^^^res
(A) Ftling:3August2012
(B) Response: 17August2012
(D) Article 39(a): 29 31 August2012
(7) Government Notification ofLimited Disclosure or Claim ofPriyilege and
Litigation ConcerninganyProposedSubstitutions(includingInCameraReview)for
Compelled Discovery ^2
(A) Filing:3August2012
(B) Response: 17August2012
(D) Article 39(a): 29 31 August2012
(8) Production of Compelled Discovery for Defense Motion to Compel Discovery ^2
that is not the subject ofaLimited Disclosure Request, Proposed Substitution, or Claim of
Privilege
(A)Filing:17August2012^^

f Phaser. Grunden and Panel Member Issues (24 August 2012^21 September 2012)
(1) Grunden Hearing for all Classified Information
(A) Filing:24August2012
(B) Response: 7September2012
^ The filing date isaweek earlier for the Defense in order to provide the t^nited states with one additional week fbr

its response.
This motion is only necessary if the Defense filesasecond motion to compel discovery.
This date is only applicable itthe Defense filesasecond motion to compel discovery.

6

21016

(D) Article 39(a): 21 September 2012'^
(2) Voir Dire Questions
(A) Filing: 14 September 2012
(B) Response: N/A
(D) Article 39(a): 21 September 2012
(3) Flyer Due
(A) Filing: 14 September 2012
(B) Response: N/A
(D) Article 39(a): 21 September 2012

g. Phase 6. Trial by Members (21 September 2012 -12 October 2012)
(1) Article 39(a): 21 September 2012
(2) Voir Dire: 24 September 2012
(3) Trial: 24 September - 28 September 2012; 1 October - 5 October; 8 October - 12
October 2012

DAVID EDWARD COOMBS
Civilian Defense Counsel

The Court will also, if necessary, address any classified discovery that is the subject of a second motion to
compel discovery by the Defense.

21017

From:
To:
Cc:

Subject:
Date:
Attachments:

David Coombs

Lind, Psni?g R COL MIL USA QTJAG
••Kemkes. Matthew J MAJ USARMY (USV: "Bouchard. Paul R CFT USARMY fUSV: "Santiaoo. Melissa S CW2
USARMY ruSV: Morrow I I I . JoDean. CFT USA JFHO-NCR/MDW SJA: Overoaard. Anoel M. CPT USA JFHONCR/MDW SJA: Whvte. Jeffrev H. CFT USA JFHO-NCR/MDW SJA: Ford. Arthur D. CW2 USA JFHO-NCR/MDW
SJA: (b) (6)
Williams. Patricia CIV JFHO-NCR/MDW SJA; Fein. Ashden MAJ USA JFHONCR/MDW SJA: Jefferson. DaShawn MSG MIL USA OTJAG
Updated Case Calendar
Friday, April 06, 2012 4:04:43 PM
Def. Updated Case Calendar.odf

Ma'am,
Please find attached the Defense's updated proposed case calendar.
v/r
David
David E. Coombs, Esq.
Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906
Toll Free: 1-800-588-4156
Local: (508) 689-4616
Fax: (508) 689-9282
coombs@armycourtmartialdefense.com
www.armycourtmartialdefense.com
•••Confidentiality Notice: This transmission, including attachments, may
contain confidential attorney-client information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is prohibited.***

21018

UNITED STATES OF AMERICA
v.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

Prosecution Proposed
Case Calendar
Update

12 April 2012

1 . The proposed calendar is based upon several assumptions. To the extent these assumptions
prove to be incorrect or too ambitious, the schedule will be correspondingly longer. These
assumptions are:
a. The same assumptions listed in the Prosecution'sProposed Case Calendar and Update
listed inAppellate Exhibits I and XX.
b. The Court is currently scheduling Article 39( a) sessions with the following default
schedule: two weeks for parties to file motions; two weeks for parties to file responses; five days
for parties to file replies; and one week for the Court to review all pleadings before the start of
the motions hearing.
c. The command will expend less funds by three- day long motions hearings starting no
sooner than Wednesday of each week because two days are required for infrastructure setup prior
to the beginning of the hearing. Ensuring all days are duty days minimizes cost based on
contracted work and civilian salaries.
d. The parties do not file motions outside this motions calendar; otherwise, this calendar
will likely expand and move each phase to a later date.
2 . Prosecution Proposed Calendar. The prosecution initially separated the projected issues into
seven phases. Based on the defense proposed schedule, Phase2 has been separated into two
separate phases-Phases2 ( a) and2 ( b) .
a. Phase 1. Immediate Action (21 February 2012 - 16 March 2012)
b. Phase 2(a). Legal Motions, excluding Evidentiary Issues (29 March 2012 - 26 April
2012)

(1) Defense Motion to Dismiss all Charges and their Specifications with Prejudice
(A) Filing: 15 M arch2012 ( filed early)
(B) Response: 12 April2012
(D) Article 39( a) : 24-26 April2012
(2 ) Government Motion for Appropriate Relief to Preclude Actual Harm or
Damage from the Merits Portion of Trial
1

21019

(A)
(B)
(C)
(D)

Filing: 29 M arch2012
Response: 12 April2012
Art icle 39( a) : 24-26 April2012

(3 ) Defense Motion to Dismiss Article 104 Offense
(A) Filing: 29 M arch2012
(B) Response: 12 April2012
(D) Art icle 39( a) : 24-26 April2012
(4) Defense Motion to Dismiss Specification 1 of Charge II
(A) Filing: 29 M arch2012
(B) Response: 12 April2012
(D) Art icle 39( a) : 24-26 April2012
(5 ) Defense Unreasonable Multiplication of Charges Motion
(A) Filing: 29 M arch2012
(B) Response: 12 April2012
(D) Art icle 39( a) : 24-26 April2012
(6 ) Defense Renewal for Motion to Compel Discovery of Computers
(A) Filing: 29 M arch2012
(B) Response: 12 April2012
(D) Art icle 39( a) : 24-26 April2012
(7) Defense Renewal for Bill of Particulars
(A) Filing: 6 April2012
(B) Response: 17April2012
(D) Art icle 39( a) : 24-26 April2012

(8) Reciprocal Discovery Requests
(A) Filing: 29 M arch2012
(B) Response: 12 April2012
(9) MRE 404(b) Disclosures
(A) Filing: 6 April2012
( 10) Updated Proposed Case Calendar
(A) Filing: 12 April2012
(B) Response: 17April2012
2

21020

(D) Article 39(a): 24-26 April 2012
(11) Results of Hard Drive Searches to Defense in Response to Defense Motion to
Compel Discovery #1
(A) Date: 20 April 2012

(12) Government Notification to Court Whether Relevant Files Exist with DOS,
FBI, DIA, ONCIX, and CIA

(A) Filing: 20 April 2012
(13) Government Notification to Court of Whether it Anticipates Limited Disclosure
or Claim of Privilege, based on (12) above

(A) Filing: 20 April 2012

c. Phase 2(b). Legal Motions, excluding Evidentiary Issues (10 May 2012 - 8 June
2012)

(1) Defense Motion to Dismiss All Charged Offenses under 18 U.S.C. 793(e)
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(D) Article 39(a): 6-8 June 2012
(2) Defense Motion to Dismiss All Charged Offenses under 18 U.S.C. 1030(a)(1)
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(D) Article 39(a): 6-8 June 2012
(3) Government Motion for Proposed Lesser Included Offenses
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(D) Article 39(a): 6-8 June 2012
(4) Updated Proposed Case Calendar
(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(D) Article 39(a): 6-8 June 2012
(5 ) Disclosure of Unclassified Results of 3 Damage Assessment Searches to Defense
in Response to the Court's Ruling, 30 March 2012

(A) Filing: 18 May 2012

3

21021

(6 ) Disclosure under RCM 701(g)(2) or MRE 505(g)(2) of all Information
(Unclassified and Classified) to the Court in Response to the Court's Ruling, 30 March
2012

(A) Filing: 18 May 2012

(7) Government Filing for In Camera Proceeding lAW MRE 505(i) with Notice to
Defense (if Privilege is Claimed) in Response to the Court's Ruling, 30 March 2012
(A)
(B)
(C)
(D)

Filing: 18 May 2012
Response: 1 June 2012
Article 39(a): 6-8 June 2012

(8) Witness Lists Exchanged
(A) Filing: 4 June 2012
(B) Government Response: 11 June 20121
d. Phase 3. Evidentiary Issues not Involving Classified Information under MRE 505
(22 June 2012 - 20 July 2012)

(1) Defense Motion to Compel Discovery #2
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012
(2) Government Motion to Compel Discovery
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012
(3) Motions in Limine
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012
(4) Motions to Suppress
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012
1

The defense witness list should be provided to the United States prior to motions to compel witnesses

and experts. Those motions should occur before the defense must provide MRE 505(h) notification,
based on the defense likely eliciting classified information from witnesses.

4

21022

(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012

(6) Pre-Authenticate Evidence
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012
(7 ) Requests for Judicial Notice
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39( a): 18-20 July 2012

(8) Privileges
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012
(9) Proposed Members Instructions for all Charged Offenses
(A) Filing: 22 June 20122
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012
(10) Compel Experts
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012
(11) Compel Witnesses
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(D) Article 39(a): 18-20 July 2012

2

Since these instructions depend on the outcome of the motions to dismiss in Phase 2, the United States

recommends scheduling this motion during Phase 3.

5

21023

(12) Defense Notice of Intent to Disclose Classified Information under MRE
505(h)(1)

(A) Filing: 22 June 20123

e. Phase 4. Evidentiary Issues Involving Both Unclassified and Classified Information

4
under MRE 505 (3 August 2012- 4 September 2012)

(1) Motions in Limine
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(D) Article 39(a): 29-31 August 2012
(3) Motions to Suppress
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(D) Article 39(a): 29-31 August 2012
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(D) Article 39(a): 29-31 August 2012
(5) Pre-Authenticate Evidence
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
(D) Article 39(a): 29-31 August 2012

(6) Litigation Concerning MRE 505(h) and MRE 505(i) 5
(A) Filing: 3 August 2012
(B) Response: 17 August 2012
3

The defense should provide notice under

MRE 505(h) when it files its witness list,

so that the United

States may start evaluating the list and more efficiently process the request through relevant Original
Classification Authorities. If the privilege is required to be invoked, then this will provide the United
States sufficient time to complete the necessary classification reviews, prior to Phase 4.
4

This process will likely require the military judge to review classified information within a special

facility or under special handling procedures. Additionally, this process will likely take some time for the
military judge to make her rulings on all classified information evidentiary motions.
5

This pretrial litigation encompasses any judicial review of discoverable information that the United

States previously listed in its proposed case calendars. As of today, the United States anticipates the
Court requiring fifteen duty days to review material; however as the prosecution continues its due
diligence searches, the Court might require more time.

6

21024

(D) Article 39(a): 29-31 August 2012
(7) Production of Compelled Discovery for Defense Motion to Compel Discovery #2
(A) Date: 17 August 20126
(8) Production of Compelled Discovery for Government Motion to Compel
Discovery

(A) Date: 14 August 2012

(9) Defense Notice of Accused's Forum Selection and Notice of Pleas in Writing
(A) Date: 4 September 20127
f

Phase 5. Miscellaneous Motions (14 September 2012-19 October 2012)

(1) Grunden Hearing for all Classified Information
(A) Filing: 14 September 2012
(B) Response: 28 September 2012
(D) Article 39(a): 16-19 October 2012
(2) Article 13
(A) Filing: 7 September 20128
(B) Response: 28 September 2012
(D) Article 39(a): 16-19 October 2012
(3) Speedy Trial, including Article 10
(A) Filing: 7 September 20129
(B) Response: 28 September 2012
(D) Article 39(a): 16-19 October 2012
(4) Pre-Qualify Experts

6

This date is proposed for unclassified information. If the information is classified, the United States

will evaluate whether it should request a continuance, in order to properly determine how many original
classification authorities must approve production or an alternative under MRE 505.
7

If the accused selects a panel, the United States proposes the panel be notified no less than sixty days

prior to trial, in order to coordinate for extended special duty and travel.
8

The filing date of one week earlier for the defense motions is in accordance with their schedule to give

the United States the necessary time to respond.
9

The filing date of one week earlier for the defense motions is in accordance with their schedule to give

the United States the necessary time to respond.

7

21025

(A)
(B)
(C)
(D)

Filing: 14 September 2012
Response: 28 September 2012
Article 39(a): 16-19 October 2012

(A) Filing: 14 September 2012
(B) Response: 28 September 2012
(D) Article 39(a): 16-19 October 2012

(6) Proposed Questionnaires
(A) Filing: 14 September 2012
(B) Response: 28 September 2012
(D) Article 39(a): 16-19 October 2012
g. Phase 6. Member Selection (22 October 2012- 31 October 2012)
(1) Questionnaires to Panel Members
(A) Filing: 22 October 2012
(B) Response: 25 October 2012
(D) Due to Defense: 27 October 2012
(2) Voir Dire Questions
(A) Filing: 31 October 2012
(B) Response: N/A
(C) Article 39(a): N/A
(3) Flyer Due
(A) Filing: 31 OCtober 2012
h. Phase 7. Trial by Members (5 November 2012- 23 November 2012)

(1) Article 39(a): 5November 2012
(2) Voir Dire: 6 November 2012
(3) Trial: 6-9 November 2012; 12-16 November 2012; 19-23 November 2012

ASHDEN
MAJ, JA
Trial Counsel

8

21026

UNITED STATES OF AMERICA
v.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

Prosecution Proposed
Case Calendar Update,
Dated 12 April2012
Supplement
20 April 2012

1. The proposed separation of unclassified and classified evidentiary motions is based upon
several assumptions. To the extent these assumptions prove to be incorrect or too ambitious, the
schedule will be correspondingly longer. These assumptions are:
a. The same assumptions listed in the Prosecution Proposed Case Calendar (Appellate
Exhibit I), Prosecution Proposed Case Calendar Update (Appellate Exhibit XX), and Prosecution
Proposed Case Calendar Update, dated 12 April 2012.
b. The United States must be prepared to authenticate all evidence and qualify all experts
without planning on the defense stipulating to authenticity and admissibility of evidence or
qualifications of any expert witness.
c. The United States anticipates the Court closing pretrial sessions involving classified
evidence, based on the likely testimony and argument, to include muhiple motions to suppress,
extensive litigation concerning M RE 505(h) and MRE 505(i), motions for preliminary rulings on
admissibility of evidence, and motions for rulings on qualifying experts.
2. The United States anticipates seeking preliminary rulings of admissibility for the below
categories of evidence to expedite the court-martial.
a

Physical Evidence.

(1) Unclassified Physical Evidence. The United States intends on introducing
approximately two items of physical evidence, to include the hard drive for the supply room
NIPR computer and hard drive for a NIPR computer in the SCIF. The United States anticipates
approximately fifteen different witnesses to authenticate and admit unclassified physical
evidence.
(2) Classified Physical Evidence. The United States intends on introducing
approximately fifteen items of physical evidence containing classified information, to include
muhiple items of digital media belonging to the accused, and various classified government
computer hard drives. The United States anticipates approximately twenty different witnesses to
authenticate and admit classified physical evidence.

21027

b.

Documentary Evidence.

(1) Unclassified Documentary Evidence. The United States intends on introducing
approximately sixty-five unclassified records or docwnents, to include various computer activity
logs and digital files. Additionally, the United States intends to introduce approximately thirteen
swnmaries based on these records, which will require. The United States anticipates
approximately twenty witnesses to authenticate and admit this evidence.
(2) Classified Documentary Evidence. The United States intends on introducing over
three hundred classified records or docwnents, to include charged docwnents, WikiLeaks
published documents, various computer activity logs, and chat logs. Additionally, the United
States intends to introduce approximately fifteen summaries based on these records. The United
States anticipates nearly fifteen witnesses in order to authenticate and admit this evidence, and
the majority of this process will be in closed session.
3.

The United States anticipates establishing, pretrial, the qualifications of experts in the below
categories of testimony, including Daubert hearings.

a. Expert Witnesses with Unclassified Testimony. The United States will likely seek to
qualify approximately fifteen experts focused on unclassified evidence to expedite the trial.
b. Expert Witnesses with Classified Testimony. The United States will likely seek to
qualify approximately twenty experts focused on classified evidence to expedite the trial and the
majority of this qualification will be in closed session, based on the experts' current and past
duties, education, and experiences.

ASHDENFEIN
MAJ, JA
Trial Counsel

2

21028

UNITED STATES OF AMERICA

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v.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

Draft
Case Calendar
Update

16 April 2012

1. The Court is currently scheduling Article 39(a) sessions with the following default schedule
at the request of the parties: two weeks for parties to file motions; two weeks for parties to file
responses; five days for parties to file replies; and one week for the Court to review all pleadings
before the start of the motions hearing. The time for filing replies was added after the first
Article 39(a) session on 15-16 March 2012 because the Court received reply briefs the day
before that session, the parties desire to continue to file replies, and the Court requires time to
consider them.
a. Phase 1. Immediate Action (21 February 2012- 16 March 2012)
b. Phase 2( a). Legal Motions excluding Evidentiary Issues (29 March 2012 - 26 April

2012)

(1) Defense Motion to Dismiss all Charges and their Specifications with Prejudice
(A) Filing: 15 March 2012 (filed early)
(B) Response: 12 April 2012
(D) Article 39(a): 24-26 April 2012
·

(2) Government Motion for Appropriate Relief to Preclude Actual Harm or
Damage from the Merits Portion of Trial
·

(A)
(B)
(C)
(D)

Filing: 29 March 2012
Response: 12 April 2012
Article 39(a): 24-26 April 2012

(3) Defense Motion to Dismiss Article 104 Offense
(A) Filing: 29 March 2012
(B) Response: 12 April 2012
(D) Article 39(a): 24-26 April 2012
(4) Defense Motion to Dismiss Specification 1 of Charge II
(A) Filing: 29 March 2012
(B) Response: 12 April 201 2
(D) Article 39(a): 24-26 April 201 2
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21029

(5) Defense Unreasonable Multiplication of Charges Motion
(A) Filing: 29 March 2012
(B) Response: 12 April 2012
(D) Article 39(a): 24-26 April 2012
(6) Defense Renewal for Motion to Compel Discoyery of Computers
(A) Filing: 29 March 2012
(B) Response: 12 April 2012
(D) Article 39(a): 24-26 April 2012

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(7) Defense Renewal for Bill of Particulars
(A) Filing: 6 April 2012
(B) Response: 17 April 2012
(D) Article 39(a): 24-26 April 2012
(8) Reciprocal Discovery Requests
(A) Filing: 29 March 2012
(B) Response: 12 April 2012
(9) MRE 404(b) Disclosures
(A) Filing: 6 April 20ti(10) Updated Proposed Case Calendar
(A) Filing: 12 April 2012
(B) Response: 17 April 2012
(D) Article 39(a): 24-26 April 2012
(11) Results of Hard Drive Searches to Defense in Response to Defense Motion to

Compel Discovery #1

(A) Date: 20 April 2012

(12) Government Notification to Court Whether Relevant Files Exist with DOS,

FBI, DIA, ONCIX, and CIA

(A) Filing: 20 April 2012

(13) Government Notification to Court of Whether it Anticipates Limited Disclosure
or Claim of Privilege, based on (12) above
(A) Filing: 20 April 2012 -

(14) Protective Order - Defense Publication of Its Motions

2

21030

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of

when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.
c. Record of proceedings in court, including
Article 39(a) sessions, if any.
d. Authentication sheet, followed by certificate
of correction, if any.
e. Action of convening authority and, if appropriate, action of officer exercising general courtmartial jurisdiction.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

Inside of Back Cover