Title: Volume FOIA 067

Release Date: 2014-03-20

Text: 21363

Volume 67 of 111
SJAR ROT
FOIA Version

VERBAT IM 1

RECORD OF TRIAL2

(and accompanying papers)

of
(Name: Last, First, Middie initiai) (Sociai Security Number) (Rank)
Headquarters and
Headquarters Company,
United States Army Garrison U-S- Army FCDIJC Ml/er: VA 22211
(Unit/Command Name) (Branch of Service) (Station or Snip)
By
GENERAL COURT-MARTIAL
Convened by Commander

(Titie of Con vening Authority)

UNITED STATES ARMY MILITARY DISTRICT OF WASHINGTON
(Unit/Command of Con vening Authority)

Tried at

Fort. Meade, MD on see below

(Piace or Piaces of Triai) (Date or Dates of Triai-9

Date or Dates of Trial:

23 February 2012, 15-16 March 2012, 24-26 April 2012, 6-8 June 2012, 25 June 2012,

16-19 July 2012, 28-30 August 2012, 2 October 2012, 12 October 2012, 17-18 October 2012,
7-8 November 2012, 27 November - 2 December 2012, 5-7 December 2012, 10-11 December 2012,
8-9 January 2013, 16 January 2013, 26 February - 1 March 2013, 8 March 2013,

10 April 2013, 7-8 May 2013, 21 May 2013, 3-5 June 2013, 10-12 June 2013, 17-18 June 2013,
25-28 June 2013, 1-2 July 2013, 8-10 July 2013, 15 July 2013, 18-19 July 2013,

25-26 July 2013, 28 July - 2 August 2013, 5-9 August 2013, 12-14 August 2013,

16 August 2013, and 19-21 August 2013.

1 insert ?verbatirri or ?surrimari'zeo? as appropriate. This form be used by the Army and Navy for verbatim records of triai

2 See inside back co ver for instructions as to preparation and arrangement.

DD FORM 490, MAY 2000 PREWOUS OBSOLETE Front Cover

21364

WITNESSES/EVIDENCE

The United States requests this Court consider the following: (1) the referred charge
sheet, (2) Enclosures 1-7, and (3) the Forensic Report for the accused's primary SIPRNET
computer (BATES 00211066-00211069 or pp. 30-33 of the report).

LEGAL AUTHORITY AND ARGUMENT

The defense argues that the United States has failed to allege the accused "exceeded
authorized access" within the meaning of 18 U.S.C.§ 1030(a)(1). The defense argument has no
merit. The Government's theory is that the accused "exceeded authorized access" when he
violated the Government's explicit purpose-based access restriction on his SIPRNET computer.
For the reasons set forth below, this theory of criminal liability under§ 1030(a)(1) is consistent
with the plain meaning of the statutory text, the legislative history, and case law interpreting the
1
phrase "exceeds authorized access" in the context of prosecutions under§ 1030.
I.

THE STATUTORY TEXT IS CLEAR AND UNAMBIGUOUS.

The defense claims the United States has failed to state an offense because, under the
plain language of 18 U.S.C.§ 1030(a)(l), the accused did not "exceed his authorized access."
Def. Mot. at 4. The defense argument has no merit-the plain language of the statutory text
clearly supports the Government's theory or interpretation of "exceeds authorized access."
The starting point for statutory interpretation is the plain or ordinary meaning of the
language. See United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F. 2003); see also United
States v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007) ("[w]hen the statute's language is plain, the
sole function of the courts . . .is to enforce it according to its terms"); 2A Sutherland Statutory
Construction§ 45:2 (7th ed.) ("a statute, clear and unambiguous on its face, need not and cannot
be interpreted by a court"); United States v. James, 63 M.J. 217, 221 (C.A.A.F. 2006) ("a
fundamental rule of statutory interpretation is that 'courts must presume that a legislature says in
a statute what it means and means in a statute what it says there"') (citing Connecticut Nat'I
Bank v. Germain, 503 U.S. 249, 253-54 (1992)). When a statute is clear and unambiguous,
courts need not and should not consult the legislative history. Ratzlaf v. United States, 510 U.S.
135, 147-48 (1994) ("[W]e do not resort to legislative history to cloud a statutory text that is
clear."); see also United States v. Aleynikov, 737 F. Supp. 2d 173, 177 (S.D.N.Y. 2010) ("When
the statutory language is clear, there is no need to examine the statutory purpose, legislative
history, or the rule of lenity.")
An individual "exceeds authorized access" under the Computer Fraud and Abuse Act
(CFAA) and 18 U.S.C. § 1030(a)(1) when the individual "access[es] a computer with
1

To the extent the United States did not clearly articulate its theory during oral argument on23 February2012, this

brief, along with the theory presented during the Article 32 Investigation, shouldbe considered the definitive source
clarifying the Government's theory for "exceeding authorized access" on a SIPRNET computer.

3

21365

authorization and... use[s] such access to obtain or alter information in the computer that the
accesser is not entitled so to obtain or alter." 18 U.S.C. § 1030(e)(6) (emphasis added). The
defense argues that a person exceeds authorized access only when he or she uses authorized
access to a computer to obtain or alter information that he or she is never entitled to obtain or
alter. See Def. Mot. at 3. The problem with this interpretation, however, is that the defense
completely ignores the meaning of the word "so" in the definition.
"So" means "[i]n the state or manner indicated or expressed." Webster's II New
Riverside University Dictionary 1102 (1988). The presence of "so" after "entitled" in§
1030(e)(6) makes the definition unambiguous-an individual "exceeds authorized access" when
he or she obtains or alters information that he or she is not entitled to obtain or alter in those
circumstances. Put another way, the word "so" clarifies that the user might have been entitled to
obtain the information in some other circumstances, but not in that manner or under those
circumstances. See 18 U.S.C. § 1030(e)(6) ("not entitled so to obtain or alter") (emphasis
added). Thus, "exceeds authorized access" under§ 1030(e)(6) clearly contemplates exceeding
authorized access by violating an employer's purpose-based access restriction on a computer and
obtaining information that, under those circumstances, the accused was not entitled to obtain.
The defense motion offers no explanation for Congress' decision to include the word
"so" in the definition. In fact, they fail to mention the word completely when defining what
constitutes "exceeding authorized access." See Def. Mot. at 5-6 ("A person exceeds authorized
access under Section 1030(a)(1) when despite being authorized to use the computer, the accused
uses his access to the computer to obtain or alter information in the computer that he is not
entitled to obtain or alter.") ("An accused exceeds authorized access under Section 1030(a)(1)
when, despite being authorized to use the computer, the accused uses his access to the computer
to obtain or alter information in the computer that he is not entitled to obtain or alter.").
Although the defense does not address the issue, the only conclusion that can be reached is that
they consider the word "so" to be superfluous. To the extent the defense interpretation is that the
term has no independent meaning or significance, this is improper. See Corley v. United States,
556 U.S. 303, 314 (2009) ("The fundamental problem with the Government's reading of [the
statute] is that it renders [a provision] nonsensical and superfluous."). When a statute is
construed, effect should be given to all its provisions so that no part is inoperative or superfluous.

!d.
The statutory definition of "exceeds authorized access" is clear and unambiguous. The
word "so" is not superfluous and was included in the definition by Congress for a reason.
Accordingly, the defense motion should be denied because of the plain meaning of the statutory
text.

II.

THE LEGISLATIVE HISTORY SUPPORTS THE GOVERNMENT'S THEORY.

Assuming, arguendo, the statutory text is ambiguous, the relevant legislative history
confirms the Government's interpretation of§ 1030(a)(1) and "exceeds authorized access." In
1984, Congress enacted 18 U.S.C. § 1030 to address federal computer-related offenses in a
single new statute. See Counterfeit Access Device and Computer Fraud and Abuse Act of 1984,
4

21366

Pub. L. No. 98-473, sec. 2102(a), 98 Stat. 1837 (1984). The 1984 version of 18 U.S.C.§
1030(a)(1) punished knowingly accessing a computer "without authorization," or accessing a
computer with authorization and using the opportunity "such access provides for purposes to
which such authorization does not extend .... " !d. As evidenced by the language of the original
statute, Congress clearly contemplated purpose-based restrictions on computer access, like the
purpose-based restriction presented by the facts in this case. See Enclosure 2.
In 1986, Congress passed the "Computer Fraud and Abuse Act," which added to and
amended 18 U.S.C.§ 1030. See Computer Fraud and Abuse Act of 1986, Pub. L. No. 99-474,
100 Stat. 1213 (1986). Specifically, the term "exceeds authorized access" was introduced to§
1030(a)(1) and (2). !d. at§ 2(g)(6). As the Senate Report for the 1986 bill explained:
Section 2(c) [of the 1986 bill] substitutes the phrase 'exceeds
authorized access' for the more cumbersome phrase in present 18
U.S.C. § 1030(a)( l ) and (2), 'or having accessed a computer with
authorization, uses the opportunity such access provides for
purposes to which such authorization does not extend'.
The
Committee intends this change to simplify the language in 18
U.S.C. § 1030(a)(1) and (2), and the phrase 'exceeds authorized
access' is defined separately in Section 2(g) of the bill.
S. Rep. No. 99-432, pt. 3, reprinted in 1986 U.S.C.C.A.N. 2479, 2486.
In short, the Senate Report for the 1986 bill is clear-the phrase "exceeds authorized
access" was substituted for the "more cumbersome phrase" in the 1984 version of 18 U.S.C.§
1030(a)( l ). !d. Congress intended the change to "simplify the language in 18 U.S.C.§
1030(a)(1) and (2)," not wildly alter what type of conduct would be crirninalized by the 1986
version of§ 1030(a)(1). !d. Purpose-based restrictions, like those encompassed by the charged
conduct in this case, continued to exist in the shorter and simpler phrase "exceeds authorized
access."2
The defense asks this Court to scrutinize the section of the Senate Report entitled
"Additional Views of Messrs. Mathias and Leahy." See Def. Mot. at 9; S. Rep. No. 99-432, pt.
8, reprinted in 1986 U.S.C.C.A.N. 2479, 2493-96. Specifically, the defense cites to specific
language from that section and argues that the "stated reason for the amendment was to
'eliminate coverage for authorized access that aims at purposes to which such authorization does
not extend. "' Def. Mot. at 9 (quoting S. Rep. No. 99-432, pt. 8, reprinted in 1986 U.S.C.C.A.N.
2479, 2494). The defense fails to recognize that this section was devoted to a discussion of the
scope of 18 U.S.C.§ 1030(a)(3), not§ 1030(a)(1) or (2). See S. Rep. No. 99-432, pt. 8,
reprinted in 1986 U.S.C.C.A.N. 2479, 2494 (discussing the "three salutary features" of the
revised§ 1030(a)(3)). Senators Leahy and Mathias used this section to express their individual
concerns that the 1984 version of§ 1030(a)(3) encompassed "all computerized government
information, including documents that must, under the Freedom of Information Act (FOIA), be
2

Indeed, the defense notes that"[t]helanguage in the prior statute covered this situation perfectly; it criminalized

the scenario where a person 'uses the opportunity that such [authorized] access provides for purposes to which such
authorization does not extend."' Def. Mot. at9 (quotingPub. L. No. 98-473, sec. 2102(a)).

5

21367

disclosed to any member of the public upon proper request." S. Rep. No. 99-432, pt. 8, reprinted
in 1986 U.S.C.C.A.N. 2479, 2494. The Senators believed the 1984 version of§ 1030(a)(3) was
"murky" because it potentially criminalized the conduct of a federal employee who, in response
to a hypothetical FOIA request, accesses a computerized database without understanding the
precise scope of their authorization. See id. As the Senators explained, a federal employee
might resolve doubts about the scope of their authorization in those cases by refusing to disclose
information under FOIA, "a conclusion directly contrary to the principles of open government
underlying the FOIA." !d. The Senators' concerns were fully addressed by the 1986 bill, which
restricted the scope of§ 1030(a)(3) to punishing access to Government computers that occurred
"without authorization." See id.; see also 18 U.S.C.§ 1030(a)(3).
As evident from the record, Senators Mathias and Leahy did not believe the concept of
exceeding authorized access was problematic, because they approved of a bill that preserved that
basis for liability in§ 1030(a)(1) and (2), and included it in a new provision,§ 1030(a)(4). See
18 U.S.C.§ 1030. They specifically recognized that a federal employee's "access to
computerized data might be legitimate in some circumstances," but that in other circumstances,
the employee "might be held to exceed his authorization." S. Rep. No. 99-432, pt. 8, reprinted in
1986 U.S.C.C.A.N. 2479, 2494-95. The Senators may have been concerned about imposing
criminal liability on an individual for "exceeding authorized access" under§ 1030(a)(3), but they
had no similar concerns with respect to imposing liability under§ 1030(a)( l ), (2), and (4).
Indeed, their discussion of the three "salutary" features of the revised§ 1030(a)(3) acknowledged
that other sections of 18 U.S.C.§ 1030 would still be available to punish abuses of authorized
access to federal computers. See id. ("As the committee report points out, administrative
sanctions should ordinarily be adequate to deal with real abuses of authorized access to Federal
computers (assuming of course, that no other provision of section 1030 is violated).").
The legislative history of the CFAA confirms that ''exceeds authorized access"
encompasses those individuals who access computer data in violation of an express purpose­
based restriction on access. Senators Mathias and Leahy were abundantly clear that their
concerns about the 1984 version of§ 1030 were limited to the scope of§ 1030(a)(3), and not§
1030(a)(1) and (2). See id. ("Among the many improvements that it would make is a complete
revision of section 1030(a)(3).").

III.

FEDERAL CASE LAW INTERPRETING "EXCEEDS AUTHORIZED ACCESS"
SUPPORTS THE GOVERNMENT'S THEORY.

The Government's interpretation of "exceeds authorized access" is consistent with
decisions from the Fifth and Eleventh Circuits, which have held that employees who violate clear
company computer restriction agreements "exceed authorized access" under the CFAA. For
example, in United States v. John, the Fifth Circuit held that an employee of Citigroup exceeded
her authorized access in violation of§ 1030(a)(2) when she accessed confidential customer
information in violation of her employer's use restrictions and used that information to commit
fraud. United States v. John, 597 F.3d 263, 272 (5th Cir. 2010). In John, the evidence
demonstrated that the defendant was aware, through company training programs, of Citigroup's
official policy prohibiting misuse of the company's internal computer systems and confidential

6

21368

customer information. !d. As the Fifth Circuit noted, "[a]ccess to a computer and data that can
be obtained from that access may be exceeded if the purposes for which the access has been
given are exceeded." !d. Similarly, in United States v. Rodriguez, the Eleventh Circuit held that
an employee of the Social Security Administration (SSA) exceeded his authorized access under§
1030(a)(2) when he obtained personal information about former girlfriends and potential
paramours and used that information to send the women flowers or to show up at their homes.
United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2007). The evidence at trial showed
that the SSA had established a policy that prohibited employees from obtaining information from
its databases without a business reason. !d. at 1260. The SSA provided notice to employees
through mandatory training sessions, notices posted in the office, and a banner that appeared on
every computer screen daily. !d.
The reasoning of the Fifth and Eleventh Circuits is supported by the decisions of other
courts as well. See, e. g. , Cont'l Group, Inc. v. KW Prop. Mgmt. , LLC, 622 F. Supp. 2d 1357,
1372 (S.D. Fla. 2009) (computer access policies stated that computers were provided "for
business use" and were "to be used solely for the [authorizing party's] purposes"); United States
v. Salum, 257 Fed. Appx. 225, 227 (11th Cir. 2007) (officers could access NCIC system only for
official business of criminal justice agency); Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d
238, 242-43, 248 (S.D.N.Y. 2000), a.ff'd, 356 F.3d 393 (2d Cir. 2004) (in order to submit query
to website, users must agree not to use responsive data for direct marketing activities); United
States v. Czubinski, 106 F.3d 1069, 1071 (1st Cir. 1997) ("[IRS] employees may not use any
Service computer system for other than official purposes.").
The defense asks this Court to adopt the interpretation of "exceeds authorized access"
favored by the en bane Ninth Circuit Court of Appeals in United States v. Nosal (Nosal Ill), 2012
WL 1176119 (C.A.9 (Cal.)). See Def. Mot. at 12. Nosal Ill held that the phrase "exceeds
authorized access" in the CFAA does not extend to violations of use or access restrictions. Nosal
Ill, 2012 WL 1176119, at 7. However, Nosal III is seriously flawed for several reasons. First,
while the majority acknowledged that the CFAA was "susceptible to the government's broad
interpretation" of the statutory text, the court found the defendant's narrower version more
plausible-and immediately launched into a parade of horribles that would ensue if the statutory
text was given the government's interpretation. See id. at 3-6. In fact, the Nosal III majority
spent much of the opinion considering scenarios not presented by the facts of the case-what the
dissent called "far-fetched hypotheticals involving neither theft nor intentional fraudulent
conduct, but innocuous violations of office policy." !d. at 8 (Silverman, J., dissenting). As the
dissent noted, the majority was preoccupied by the potential vagueness of other sections of the
CFAA, when the majority should have "wait[ed] for an actual case or controversy to frame these
issues, rather than posit a laundry list of wacky hypotheticals." /d. at 10 (Silverman, J.,
dissenting); see also infra Part V (discussing vagueness analysis).
Second, while the majority considered the narrower interpretation of the legislative
history the "more sensible reading," they failed to seriously consider, beyond a short footnote,
the legislative history with respect to Congress' intent to substitute a simpler phrase (exceeds
authorized access) for "a more cumbersome phrase" in the 1984 version. See id. at 3; see also
supra Part II (discussing the Senate Report for the 1986 bill). Instead, the majority simply stated
that because one of the reasons for the 1984 bill was to address computer hacking, it is

7

21369

"possible" to read both prohibitions ("without authorization" and "exceeding authorized access")
as applying to hackers. Nosal Ill, 2012 WL 1176119; at 3. In the majority's view, "without
authorization" would apply to "inside" hackers, and "exceeds authorized access" would apply to
"outside hackers." /d. While the majority found this construction "plausible" or "possible,"
those words practically scream ambiguity. See id. Thus, the majority chose to neglect other
methods of statutory interpretation, specifically legislative history, when led down that path by
their own analysis.
Although the facts of the Nosal case are similar to those presented by this case, the other
cases cited by the defense are not relevant to this Court's inquiry. See Def. Mot. at 6, 9, 11-12
(listing cases in support of the defense interpretation); see also United States v. Nosal (Nosal II),
642 F.3d 781, 782-83 (9th Cir. 2011) (summarizing facts of Nosal). As the Nosal II court noted,
the defendant was subject to a computer use policy that placed clear and conspicuous restrictions
on his access to the system and to a database in particular. See id. at 787. The other cases cited
by the defense did not consider such explicit purpose-based restrictions or limitations on
computer access. See, e.g., Aleynikov, 737 F. Supp. 2d at 175 ("Among other things, Goldman
employees were required to execute a confidentiality agreement. ..."); Int'l Ass'n of Machinists
& Aerospace Workers v. Werner-Matsuda, 390 F. Supp. 2d 479, 498 (D.Md. 2005) ("Defendant
Werner-Matsuda signed a Registration Agreement stipulating not to use the information
provided through VL lodge for any purpose that would be contrary to the policies and procedures
established by the [lAM] Constitution."); Walsh Bishop Assocs., Inc. v. O'Brien, 2012 WL
669069, No. 11-2673 (DSD/AJB) (D.Minn. Feb. 28, 2012) ("Walsh Bishop argues that a person
exceeds authorized access by accessing information in order to use it in a manner contrary to an
employer's interests and use policies."); Xcedex, Inc., v. VMware, Inc., 2011 WL 2600688, No.
10-3589 (PJS/JJK) (D.Minn. June 8, 2011). In short, the courts in the representative cases cited
by the defense did not consider explicit purpose-based restrictions on computer access like this
case and the John and Rodriguez cases.
This Court should reject the Nosal III interpretation of "exceeds authorized access" and
adopt the reasoning of the Fifth and Eleventh Circuits. Nosal Ill, as source of precedent, is
severely flawed. The majority improperly considered hypotheticals and scenarios not presented
by the facts of the case and ignored relevant legislative history bearing on the issue. The other
cases cited by the defense are not on point.
IV.

RULE OF LENITY DOES NOT APPLY.

The defense argues that in cases where there are two possible interpretations of a statute­
one broad and one narrow - courts should apply the rule of lenity and adopt the narrow
interpretation. Def. Mot. at 20. Although the statutory text and legislative history are clear in
this case and support the interpretation of the United States, the simple existence of some
statutory ambiguity is not sufficient to warrant application of the rule of lenity. Muscarello v.
United States, 524 U.S. 125, 138 (1998). Most statutes are ambiguous to some degree; thus the
"mere possibility of articulating a narrower construction . . . does not by itself make the rule of
lenity applicable." Id. (quoting Smith v. United States, 508 U.S. 223, 239 (1993)). The Supreme
Court has stated that "the rule of lenity only applies if, after considering text, structure, history,
and purpose, there remains a 'grievous ambiguity or uncertainty in the statute,' such that the
8

21370

Court must simply guess as to what Congress intended." Barber v. Thomas, 130 S. Ct. 2499,
2508-09 (2010) (quoting Muscarello, 524 U.S. at 139). In this case, there is no grievous
ambiguity or uncertainty. If the Court is not convinced that "so" has independent meaning, the
legislative history is clear on the issue of what interpretation to give "exceeds authorized access"
in§ 1030-Congress explained that the phrase was substituted for the "more cumbersome"
phrase encompassing purposed-based restrictions. See supra Part II. In short, the problem posed
by statutory interpretation in this case is no different from any other case. The rule of lenity does
not stand for the proposition that the accused automatically wins in cases of ambiguity. See
Muscarello, 524 U.S. at 139 ("Yet, this Court has never held that the rule of lenity automatically
permits the defendant to win.")

V.

THE ACCUSED DOES NOT HAVE STANDING TO RAISE VAGUENESS
CHALLENGE.

Finally, the defense argues that the Government's "expansive interpretation" of "exceeds
authorized access" puts a provision of§ 1030 in constitutional jeopardy-specifically by
rendering a sub-paragraph of§ 1030(a)(2) void-for-vagueness. See Def. Mot. at 21-22.
However, the accused is not charged with this allegedly vague provision. The only provision at
issue in this case -§ 1030(a)(1) - is also the only provision the accused may challenge for
vagueness, as it is applied to him. See Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 495 (1982) ("A [party] who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the conduct of others.");
Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2718-19 (2010) (quoting Vill. of
Hoffman); United States v. Kim, 808 F. Supp. 2d 44, 52 (D.D.C. 2011) ("Defendant was not
charged under the retention clause [of§ 793(d)] and therefore he lacks standing to challenge it on
vagueness grounds."). In short, the defense may not argue that a statutory interpretation renders
an entirely different provision of§ 1030 unconstitutionally vague, nor can he argue vagueness
with respect to hypothetical applications of§ 1030(a)( l ). Void-for-vagueness challenges must
be limited to the facts of the accused's own case. An interpretation of a phrase under§
1030(a)( l ) that may lead to absurd results under another provision of§ 1030 is irrelevant to the
issues before this Court. Accordingly, this Court should decline to consider the defense
arguments relating to vagueness.

9

21371

CONCLUSION

The United States respectfully requests this Court DENY the defense motion to dismiss
Specifications 13 and 14 of Charge II. For the reasons stated above, the United States has
adequately stated an offense punishable under 18 U.S.C.§ 1030(a)( l ). In the alternative, the
United States requests the Court either defer ruling on this motion until the presentation of
evidence, or simply amend the specifications to leave the lesser-included offenses charging
violations of clauses 1 and 2 of Article 134, Uniform Code of Military Justice.

\\i�L-M�
�N�
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 24 May 2012.

��
Trial Counsel

7 Ends
1. Article 32 Testimony of SA David Shaver
2. Accused's SIPRNET Warning Banner
3. Continuation Sheet, DD Form 457, pp. 29-32
4. Washington Post, dtd 31 Dec 12, Cables Leak Reveals Flaws of Information-Sharing Tool
5. AIR of SA Mander, dtd 5 Jan 11
6. Excerpt of AR 25-2, dtd 24 Oct 07
7. Accused's Non-Disclosure Agreements

10

21372

UNITED STATESOFAMERICA

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
^oint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

GOVERNMENTRESPONSE TO
DEFENSE MOTIONTO DISMISS
SPECIFICATIONS 13 AND 14
OFCHARGEHFORFAILURE
TO STATEAN OFFENSE
Enclosurel
24 May 2^12

21373

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46

SPECIAL AGENT DAVID SHAVER, C i v i l i a n , was c a l l e d as a w i t n e s s
f o r t h e p r o s e c u t i o n , was sworn, and t e s t i f i e d i n substance as
follows:
DIRECT EXAMINATION
Questions by a s s i s t a n t t r i a l counsel 1:
I work f o r the Army Computer Crimes I n v e s t i g a t i v e U n i t . I
began working f o r them i n 1999, a t the time I was i n the
m i l i t a r y as a CID agent and an i n v e s t i g a t o r . I am i n a
s u p e r v i s o r y p o s i t i o n now, I am the Special Agent i n charge o f
the d i g i t a l f o r e n s i c s and research branch. Our j o b i s t o
conduct examinations o f d i g i t a l media i n support o f CCIU cases.
The p r i m a r y mission i s t o i n v e s t i g a t e any i n t r u s i o n i n t o any
Army computer worldwide, however we are tasked t o do o t h e r
stuff.
I have r e c e i v e d t r a i n i n g from s e v e r a l l o c a t i o n s . The f i r s t
would be the Law Enforcement T r a i n i n g Center, i n Glencoe,
Georgia; the Defense Cyber Crime Center i n Maryland, and I have
been t r a i n e d on v a r i o u s commercial products as w e l l .
Products
such as a f o r e n s i c product c a l l e d ENCASE, which i s a computer
f o r e n s i c program t h a t a l l o w s you t o examine d i g i t a l media. I
r e c e i v e d t r a i n i n g on Windows, Unix, Linux, and Macintosh. I
h o l d s e v e r a l c e r t i f i c a t i o n s ; I am a c e r t i f i e d computer crime
i n v e s t i g a t o r , an ENCASE c e r t i f i e d examiner, A+ and net p l u s .
The A+ c e r t i f i c a t i o n i s a hardware-based c e r t i f i c a t i o n . Net
Plus i s a network-based c e r t i f i c a t i o n .
I have p u b l i s h e d
a r t i c l e s r e l a t e d t o the f i e l d o f computer f o r e n s i c s . I coauthored a chapter on Windows f o r e n s i c s i n the handbook o f
d i g i t a l f o r e n s i c s i n v e s t i g a t i o n s . I have given s e v e r a l
s c h o l a r l y p r e s e n t a t i o n s . A v i r t u a l machine i s where we
developed a process t o take a f o r e n s i c image and t u r n i t i n t o a
v i r t u a l machine on your host computer. By using a v i r t u a l
machine you can gain the p e r s p e c t i v e o f examining the computer
as a subject has used i t .

125

21374

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47

I was n o t i f i e d o f t h i s case i n l a t e May o f ^010, I examined
pieces o f media r e l a t e d t o t h i s case. The f i r s t t h i n g s I
examined were two SIP^ computers. They were h i s p r i m a r y and
secondary computers.
An IP i s an I n t e r n e t p r o t o c o l address,
which i s a s e t o f numbers t h a t are unigue t o each computer. I
am f a m i l i a r w i t h I n t e l i n k , I n t e l i n k i s Google o f t h e SIPRNET. I
examined I n t e l i n k logs, those l o g f i l e s ranged from October ^009
u n t i l May ^010.
Erom t h e l o g s I was able t o o b t a i n t h e m a j o r i t y
o f t h e a c t i v i t y t h a t happened on t h e computer.
I identified
some k i n d o f guery and then I ran a search a g a i n s t l o g f i l e s f o r
t h a t guery, a f t e r t h a t I v e r i f i e d i t as w e l l . I p u t them i n t o
an Excel spreadsheet f o r ease of review. I n o t i c e d t h a t t h e r e
were a l o t o f searches t h a t seemed out o f p l a c e , t h e keyword
searches t h a t he was using seemed o u t o f place f o r h i s j o b .
^The t r i a l counsel p u b l i s h e d screenshot documents f o r the
witness t o view on a monitor.^
That i s a screenshot o f t h e Excel spreadsheet t h a t I
c r e a t e d c a l l e d keywords.
I t i s a f i l t e r e d spreadsheet o f t h e
keyword searches f o r WikiLeaks.
Erom November ^009 through May
2010, I found over one hundred searches f o r WikiLeaks under PEC
Manning^s p r o f i l e . This i s a d i f f e r e n t screenshot from t h a t
same Excel spreadsheet; t h i s time we f i l t e r e d on t h e keyword
Iceland.
The f i r s t search f o r I c e l a n d was 9 January ^010, i t i s
o n l y f i l t e r e d on t h e keyword I c e l a n d and t h i s came from PEC
Manning^s p r o f i l e . This i s another screenshot from t h e same
Excel spreadsheet; t h i s time I f i l t e r e d on the keyword
r e t e n t i o n , and i t was searching f o r t h e r e t e n t i o n o f
i n t e r r o g a t i o n videos. That search was done 2^ November 2009,
t h a t was t h e f i r s t time t h a t he searched f o r i t .
The I n t e l i n k program a l s o t h e captured t h e use o f a WGET
program t o download a l a r g e number o f f i l e s . WGET i s a command
l i n e u t i l i t y t o download f i l e s from a Web s e r v e r . Command l i n e
means i t i s non g r a p h i c a l , meaning t h a t you have t o open up a
command prompt and then you are able t o type t h e commands, i t i s
l i k e a DOS program.
WGET i s n o t a standard program on an Army
computer.
As p a r t o f my j o b t o i n v e s t i g a t e i n t r u s i o n s , I g e t a
l i s t o f a u t h o r i s e d software and WGET i s not on t h a t l i s t . The
f i r s t time t h a t I saw PEC Manning access WGET was March o f 2010.
This i s another p o r t i o n of t h e screenshot o f t h e Excel
spreadsheet t h a t I c r e a t e d f o r I n t e l i n k . This p o r t i o n i s
f i l t e r e d on the word WGET. The server i n g u e s t i o n was a
SharePoint server, so i t stores f i l e s by ID number, i t i s a
database.
The numbers beside the f i l e ID number r e p r e s e n t the
a c t i o n t h a t was taken f o r t h e searches, i f a document was

126

21375

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47

downloaded, i f the search came back, f i l e n o t found, t h i n g s o f
t h a t n a t u r e . There were over seven hundred examples o f t h e
computer using WGET commands f o r the month o f March p e r t a i n i n g
t o ^TE Guantanamo 8ay detainee suspects. I know t h i s because I
downloaded the same documents using the same program, and I used
the same path. And I know t h a t they were the same documents
t h a t were on the WikiLeaks website because I compared the two.
When we conduct a f o r e n s i c examination, t h e f i r s t t h i n g we
do i s we v e r i f y the hashes, t h a t the a c g u i s i t i o n matches t h e i r
v e r i f i c a t i o n hashes. We scan the computer f o r a n t i v i r u s and
then we g e n e r a l l y conduct keyword searches.
So when I began my
f o r e n s i c examination t h e f i r s t t h i n g t h a t I l o o k a t i s the hash
values o f t h e images. The hash values have t o match because i f
they don^t match, then t h e r e i s a problem w i t h t h e image. The
hash values o f the a c q u i r i n g image and o f the image t h a t I
looked a t matched. The primary t o o l s t h a t I use t o examine
computers are ENCASE. I plug keywords i n t o ENCASE and then I
search f o r keywords, I search both the a l l o c a t e d and t h e
u n a l l o c a t e d spaces. A l l o c a t e d space i s places on t h e hard
d r i v e , f i l e s t h a t are c r e a t e d t h a t you can see, such as a Word
document o r e-mail. U n a l l o c a t e d space i s places on the hard
d r i v e which have not been used y e t o r i t may c o n t a i n d e l e t e d
files.
I was a l s o able t o recover d e l e t e d f i l e s , because
d e l e t e d f i l e s are s t i l l on the hard d r i v e u n t i l something i s
w r i t t e n over top o f them.
With respect t o the ^dot^ .22 computer, I was given a
s e r i e s o f chat l o g s , they were statements concerning t h e
Department o f S t a t e , UTE Guantanamo 8ay Cuba, t h i n g s l i k e t h a t ,
so t h a t i s where I s t a r t e d my keyword l i s t .
The chat logs were
c o l l e c t e d from Mr. Lamo, I was l o o k i n g f o r t h i n g s t h a t were
i d e n t i f i e d i n t h e chat l o g s . I d i d a search i n t h e a l l o c a t e d
space, and I found f o u r complete U^TE Guantanamo Bay, Cuba
detainee assessments. I knew t h a t they were detainee
assessments because I read them. They were under PEC Manning^s
user p r o f i l e . This computer had two web browsers on i t ,
I n t e r n e t Explorer and E i r e f o x . The c o n f i g u r a t i o n f o r t h e
I n t e r n e t e x p l o r e r web browser was a standard Army c o n f i g u r a t i o n
where the user c o u l d not c l e a r the I n t e r n e t h i s t o r y . The
I n t e r n e t h i s t o r y on a Windows computer would be s t o r e d i n a f i l e
c a l l e d index.dat. I t s t o r e s I n t e r n e t i n f o r m a t i o n as w e l l as
f i l e s t h a t were opened up on t h e computer. The o t h e r web
browser on the computer was E i r e f o x , i t was c o n f i g u r e d t o have
I n t e l i n k as i t s homepage and t o auto s t a r t p r i v a t e browsing when
i t started.

1^7

21376

1
2
3
4
5
6
7
8
9
10
11
12
13
14
1^
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
^2
33
34
35
36
37
38
39
40
41
42
43
44
45

I found a ^dot^ . ^ i p f i l e under PEC Manning^s user p r o f i l e
and i n s i d e o f i t were over ten thousand complete Department o f
State cables, web pages. I a l s o found an Excel spreadsheet, i t
was a spreadsheet w i t h t h r e e tabs, the f i r s t tab was WGET, the
second tab was 0^10-0410, and the t h i r d tab was 0510.
I n the
second tab was Department of State message r e c o r d numbers t h a t
were p u b l i s h e d between March 2010 u n t i l A p r i l 2010, they were
s e g u e n t i a l , whoever d i d t h i s was o b v i o u s l y keeping t r a c k of
where they were, the f i r s t number was 251,2^^, and then a
s e g u e n t i a l number a f t e r t h a t . To my knowledge WikiLeaks has
released 251,2^7 cables. On a t h i r d tab i t was a l l of the
Department of State cables t h a t were p u b l i s h e d i n May 2010. I t
was j u s t message record numbers not the f u l l cable.
There was a WGET tab i n t h e r e as w e l l , i t was over ten
thousand message record numbers, the second column was the
command l i n e using WGET t h a t downloaded t h a t message r e c o r d
number from the Department of State net c e n t r i c server. The
f i r s t column i s the message record number, and there^s about ten
thousand t h e r e .
The next column i s a s c r i p t , i t ^ s a
mathematical computation b a s i c a l l y saying take e v e r y t h i n g t h a t
i s In column A and put i t i n column B, but i n the r i g h t p a t h .
The I n v e s t i g a t i n g O f f i c e r s t a t e d t h a t i t would be e a s i e r t o
understand i f they were able t o see the document t h a t the
witness was t a l k i n g about.
The t r i a l counsel informed the I n v e s t i g a t i n g O f f i c e r t h a t
although the document i s not c l a s s i f i e d i t i s c u r r e n t l y marked
as c l a s s i f i e d and t h a t i s the reason why he was not a b l e t o
d i s p l a y the document i n open c o u r t .
The defense counsel o b j e c t e d t o a l l p a r t i e s viewing the
document from the j u r y box s t a t i n g t h a t i t would be b e t t e r f o r
everyone t o recess and reconvene tomorrow when the problem i s
fixed.
The t r i a l counsel s t a t e d t h a t h i s d i r e c t l i n e o f
g u e s t i o n i n g would not take t h a t much longer and reguested
continue w i t h the g u e s t i o n i n g of t h i s witness.

to

The I n v e s t i g a t i n g O f f i c e r s t a t e d t h a t i t would be b e t t e r
f o r a l l i f the t r i a l counsel j u s t continued w i t h h i s l i n e o f
g u e s t i o n i n g e x p l a i n i n g the document i n d e t a i l .

128

21377

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
4^
43
44
45
46

The t r i a l c o u n s e l gave t h e document number t o t h e
I n v e s t i g a t i n g O f f i c e r so t h a t he w o u l d be a b l e t o r e v i e w i t once
he went back t o h i s chambers.
The d i r e c t e x a m i n a t i o n
follows^

b y A s s i s t a n t T r i a l Counsel 1 c o n t i n u e d as

I n Column B i t i s an E x c e l f o r m u l a , t o t a k e what i s i n
Column A and p u t i t i n t o a s c r i p t so i t c o u l d i d e n t i f y t h e
file.
A f t e r you have a l l o f column B f i l l e d , you w o u l d be a b l e
t o copy t h a t column as t e x t and p u t i t i n a b a t c h f i l e ; and r u n
t h e b a t c h f i l e i n a command s c r i p t . There w e r e a b o u t t e n
t h o u s a n d commands i n t h a t b a t c h , and I saw t h o s e message r e c o r d
numbers on t h e l e f t , t h e y were downloaded i n t o t h e o r i g i n a l ^ i p
f i l e I discussed e a r l i e r .
T h i s i s a l l under PEC Manning^s u s e r p r o f i l e .
I n the
Windows p r e f e t c h f o l d e r t h e r e were s e v e r a l i n s t a n c e s o f WGET
being run.
P r e f e t c h i s a Windows f e a t u r e t o speed up t h e
c o m p u t e r . The c o m p u t e r w i l l i d e n t i f y p r o g r a m s t h a t you use on a
r e g u l a r b a s i s , so t h e n e x t t i m e you r u n t h e p r o g r a m i t w i l l l o a d
quicker.
^^ou can r u n t h a t p r o g r a m WGET a t t h e same t i m e f r o m
v a r i o u s l o c a t i o n s ; t h a t way you w i l l b e a b l e t o d o w n l o a d a l o t
of f i l e s simultaneously.
WGET was i n PEC Manning^s p r o f i l e , i t a p p e a r e d 4 May 2010.
I t was n o t t h e f i r s t t i m e t h a t he used t h a t f i l e because t h e r e
were p r e f e t c h f i l e s p r e d a t e t h a t .
W i t h i n t h e Windows temp
f o l d e r t h e r e were two f i l e s , t h e s e f i l e s each c o n t a i n e d
a p p r o x i m a t e l y 100 c o m p l e t e D e p a r t m e n t o f S t a t e c a b l e s , t h e s e
f i l e s were i n CS^ f o r m a t and t h e y c o n t a i n e d a base 64 encoded
v e r s i o n o f the cables.
A CS^ f i l e i s a Comma S e p a r a t e d ^ a l u e .
I t i s j u s t a way o f m o v i n g f i l e s f r o m one d a t a b a s e t o a n o t h e r .
Base 64 i s an e n c o d i n g scheme, i t t r a n s f o r m s d a t a and documents
i n t o a d i f f e r e n t format.
Someone w o u l d do t h a t t o s t r e a m l i n e
t h e p r o c e s s o f t a k i n g t h e c a b l e s o u t ; i t t o o k away a l l t h e
p u n c t u a t i o n , a l l t h e s p a c i n g , and j u s t p u t t h e i n f o r m a t i o n i n
s t r a i g h t base 64.
I found evidence i n the u n a l l o c a t e d space; I
i d e n t i f i e d thousands o f t h e S t a t e Department c o m p l e t e c a b l e s .
They were u n c l a s s i f i e d o r s e c r e t . They were n o t a l l c o m p l e t e .
Other i n f o r m a t i o n t h a t I found r e l a t i n g t o detainee
i n f o r m a t i o n was ISNs, t h e I n t e r n m e n t S e r i a l Numbers, w h i c h a r e a
u n i g u e p a t t e r n o f c h a r a c t e r s . I d i d a s e a r c h f o r them and I
f o u n d h u n d r e d s o f documents w i t h t h a t c o n v e n t i o n .
The ISN i s
t h e i n t e r n m e n t s e r i a l number and i s used as an i d e n t i f i e r .
I

129

21378

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47

found ISNs on PEC Manning^s computer.
index.dat f i l e .

They were found i n the

I am f a m i l i a r w i t h the charges and s p e c i f i c a t i o n s . I found,
i n the a l l o c a t e d space, the movie, a c t u a l l y s e v e r a l movies; one
was the released v e r s i o n from WikiLeaks and t h e r e was another
v e r s i o n which appeared t o be the source f i l e f o r i t . The f i r s t
i n s t a n c e of t h a t video being t h e r e was March, through
examination of the r e s t o r e p o i n t s I was able t o determine t h a t .
r e s t o r e p o i n t i s another M i c r o s o f t f e a t u r e and they are c r e a t e d
when an o p e r a t i n g system i s updated or program i s i n s t a l l e d so
i f t h e r e ^ s a problem w i t h the computer you can go back i n time
and get your computer t o work again.
I do recognise t h a t image, t h i s i s a screenshot of the
ENCASE program d i s p l a y i n g from l e f t t o r i g h t the f i l e n a m e which
i s the r e s t o r e p o i n t , the middle column shows you the 12 ^ u l y
2007 C^ engagement ^one f i l e was present under PEC Manning^s
profile.
I b e l i e v e the f i r s t time i t was viewed was 2 March
2010.
There were no r e s t o r e p o i n t s b e f o r e the month o f March
due t o the f a c t t h a t the computer had problems and i t was
reimaged p r i o r t o t h a t .
I found i n f o r m a t i o n r e l a t i n g t o an i n v e s t i g a t i o n done on a
m i l i t a r y o p e r a t i o n i n A f g h a n i s t a n . W i t h i n the index.dat f i l e
t h e r e were hundreds o f f i l e s which appeared t o be p a r t of the
i n c i d e n t , and I recovered d e l e t e d PDEs and ^PEG images
p e r t a i n i n g t o the Gharani i n c i d e n t . That i s an image o f the
index.dat which I put i n t o an Excel spreadsheet f o r ease of
v i e w i n g . I t i s j u s t a snippet of i t . Erom l e f t t o r i g h t you
have the date column and t o the r i g h t o f t h a t you have the U^L,
what s i t e s were v i s i t e d . The date i s A p r i l 10, 2010, says
Bradley.Manning as a f i l e .
That means t h a t i t i s a f i l e on the
computer not a website and then you continue r e a d i n g and i t
g i v e s t h e path. I t appears t h a t somebody u s i n g the
Bradley.Manning user p r o f i l e downloaded a l a r g e number f i l e s
concerning the Earah i n c i d e n t and a t the end c r e a t e d a
Earah.^ip. A l l of t h i s was time s e g u e n t i a l . I n u n a l l o c a t e d
space I recovered numerous ^PEG images and PDE f i l e s , they
appear t o be from p r e s e n t a t i o n s , screenshots of p r e s e n t a t i o n s ,
p i c t u r e s from a i r c r a f t , reconnaissance over the combat ^one.
^The witness was t e m p o r a r i l y excused, d u l y warned, and
withdrew from the courtroom.^
I^The A r t i c l e ^2 hearing recessed a t 1^^4,
2011.^

130

1^ December

21379

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47

iThe A r t i c l e ^2 hearing was c a l l e d t o order at 09^4, 19
December 2011.^
The I n v e s t i g a t i n g O f f i c e r c a l l e d the h e a r i n g t o o r d e r , and
s t a t e d t h a t a l l p a r t i e s present p r i o r t o the recess were once
again present.
SPECIAL AGENT DAVID SttAVER, C i v i l i a n , was r e c a l l e d as a w i t n e s s
f o r t h e p r o s e c u t i o n , was reminded t h a t he was s t i l l under o a t h ,
and t e s t i f i e d i n substance as f o l l o w s ^
CROSS^EX^INATION
Questions by t h e c i v i l i a n defense co^nsel^
I d i d the computer f o r e n s i c s on both of the computers t h a t
were sent t o my o f f i c e t h a t PEC Manning used. I d i d not do a
b i t by b i t a n a l y s i s o f a l l the SIP^ computers i n the SCIE. 1 do
not know the t o t a l number o f SIPP computers i n the SCIE. I do
not know i f the program WGET was on the o t h e r computers.
WGET i s a program t h a t i s used f o r data mining, a key j o b
f o r a n a l y s t s i s t o do data m i n i n g . yesterday I s t a t e d t h a t
WikiLeaks released over 250,000 cables. And d u r i n g my a n a l y s i s
I found d i p l o m a t i c cables i n the f i l e c a l l e d f i l e s . ^ i p , t h a t
f i l e was found i n a l l o c a t e d computer space. I d i d not compare
the cables t h a t I found i n the f i l e w i t h the cables t h a t were on
the WikiLeaks website. None o f those cables t h a t I found i n the
f i l e s . ^ i p f o l d e r were on the WikiLeaks website. The computer
t h a t I found these cables on was a SIPP computer. I was not
aware t h a t a n a l y s t s were d i r e c t e d t o look a t these cables. I
was not aware t h a t no password was r e q u i r e d t o access these
files.
I d i d not know t h a t t h e r e was no p r o h i b i t i o n f o r any
a n a l y s t t o download these f i l e s .
Generally, you cannot date and timestamp t h i n g s t h a t a r e i n
the u n a l l o c a t e d space. And w i t h u n a l l o c a t e d space t h e r e i s
n o t h i n g t h a t you can t i e t o one p a r t i c u l a r user. I found the
video t h a t has been c a l l e d the Apache v i d e o ; i t was on one o f
the SIPP computers.
I d i d not know t h a t the Apache video was a
t o p i c of d i s c u s s i o n among the a n a l y s t s a t EOB ^^ammer. I d i d not
know t h a t these a n a l y s t s were t a l k i n g about and watching t h i s
c e r t a i n video back i n December 2009. I f a f i l e has been d e l e t e d
and the space t h a t was a l l o c a t e d and has been w r i t t e n over I
cannot f i n d out what t h a t f i l e was.
I t e s t i f i e d t h a t WGET was
used t o download hundreds of f i l e s onto the a l l o c a t e d space o f

131

21380

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47

t h e computer. I n t h e a l l o c a t e d space I found f o u r detainee
assessments, and i n the u n a l l o c a t e d space I found ^ero.
REDIRECT EXAMINATION
Questions by A s s i s t a n t T r i a l

Counsel 1^

The cables i n the f i l e s . ^ i p f o l d e r were n o t r e l e a s e d .
O^^CTION
The defense counsel o b j e c t e d t o the l i n e o f g u e s t i o n i n g
s t a t i n g i t was cause f o r s p e c u l a t i o n .
The I n v e s t i g a t i n g O f f i c e r o v e r r u l e d the
objection.

defense^s

The r e d i r e c t examination by the t r i a l counsel c o n t i n u e d as
follows^
When the f i l e s . ^ i p was c r e a t e d t h e r e was something wrong,
t h e r e was a problem w i t h i t , i f a person using Win^ip t r i e d t o
open i t , i t would not open because i t was a c o r r u p t e d f i l e . So
you would need s p e c i a l t o o l s i n order t o open t h e f i l e s i n t h a t
^ i p folder.
O^^CTION
The defense counsel o b j e c t e d s t a t i n g the t r i a l counsel was
asking l e a d i n g q u e s t i o n s .
The I n v e s t i g a t i n g O f f i c e r s u s t a i n e d the o b j e c t i o n .
The r e d i r e c t examination b y t h e t r i a l counsel c o n t i n u e d as
follows^
I d i d f i n d f i l e s r e l a t e d t o the Earah i n v e s t i g a t i o n i n t h e
u n a l l o c a t e d space. I found f o u r detainee assessments i n t h e
a l l o c a t e d space. I d i d f i n d evidence o f the detainee
assessments i n t h e index.dat f i l e f o l d e r . The detainees have a
unigue naming system, t h e ISN, I looked f o r the p a t t e r n f o r t h a t
and t h e r e were hundreds o f those i n t h e i n d e x . d a t . The
index.dat f i l e i s a M i c r o s o f t f i l e used t o l o g a l l o f t h e
websites and f i l e s viewed by the user.
RECROSS EXAMINATION

132

21381

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47

Questions by t h e c i v i l i a n defense co^nsel^
I ^as n o t a b l e t o open t h e f o r m o f f i l e on u n a l l o c a t e d
space.
I t e s t i f i e d t h a t t h e f i l e s . ^ i p f o l d e r was c o r r u p t e d I
was n o t a b l e t o t e l l when i t was c o r r u p t e d .
The I n v e s t i g a t i n g O f f i c e r c l o s e d t h e c o u r t r o o m .
iThe A r t i c l e

^2 h e a r i n g r e c e s s e d

a t 1012, 19 December

2011.^
^The A r t i c l e
December 2 0 1 1 ^

^2 h e a r i n g was c a l l e d t o o r d e r a t 1016, 19

The I n v e s t i g a t i n g O f f i c e r opened t h e c o u r t r o o m .
SPECIAL AGENT DAVID SHAVER, C i v i l i a n , was c a l l e d as a w i t n e s s
f o r t h e p r o s e c u t i o n , was s w o r n , a n d t e s t i f i e d i n s u b s t a n c e a s
follows^
DIRECTEXAMINATION
Questions by a s s i s t a n t

trial

c o u n s e l 1^

An I P a d d r e s s i s an I n t e r n e t p r o t o c o l a d d r e s s .
I ti sa
u n i g u e s e t o f numbers t h a t i s a s s i g n e d t o a c o m p u t e r so t h a t i t
can t a l k on t h e n e t w o r k .
The I d o t ^ .40 machine was t h e machine
t h a t PEC Manning^s u s e r p r o f i l e was o n . T h a t was h i s s e c o n d a r y
computer.
I v e r i f i e d t h e a c g u i s i t i o n and v e r i f i c a t i o n hashes,
t h e hashes matched. Then I scanned i t w i t h a n t i v i r u s , t h e n I
c o n d u c t e d my e x a m i n a t i o n .
The c o n f i g u r a t i o n o f t h i s computer was t h a t i t was a
c l a s s i f i e d c o m p u t e r , a Windows o p e r a t i n g s y s t e m on t h e Army
domain. I t has CD b u r n i n g t o o l s , i t had ^ o x i o t h a t was
i n s t a l l e d on t h e c o m p u t e r . P o x i o i s CD b u r n i n g s o f t w a r e .
Poxio
was on t h e o t h e r c o m p u t e r , t h e I d o t l .22 c o m p u t e r t h a t a l s o had
P^C Manning^s u s e r p r o f i l e on i t . USB p o r t s were d i s a b l e d f o r
s t o r a g e , i t i s an Army p o l i c y .
On b o t h c o m p u t e r s t h e USB p o r t s
were d i s a b l e d . When you b u r n a d i s k u s i n g P o x i o , t h e CD has t o
be named and i t was named by d a t e .
T h i s image i s an a r t i f a c t ,
t h e naming o f a CD t h a t I b u r n e d when I r e - c r e a t e d , I t u r n e d t h e
^ d o t ^ .22 c o m p u t e r i n t o a v i r t u a l machine. A v i r t u a l machine i s
a b i t b y b i t image o f a c o m p u t e r , i t c o n v e r t s i t t o a r u n n i n g
c o m p u t e r w i t h i n y o u r computer w h i c h a c t s as a h o s t , so i t i s
r u n n i n g v i r t u a l l y i n t h e memory o f t h e h o s t c o m p u t e r .
I wanted
t o v e r i f y t h a t a CD c o u l d be b u r n e d f r o m t h i s computer a n d so I

133

21382

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47

t u r n e d i t i n t o a v i r t u a l machine, logged on as a user and then I
burned a d i s c .
My i n v e s t i g a t i v e plan f o r t h e ^ d o t l .40 computer was t h e
same t h i n g as t h e ^dotl .22, t o see i f t h e r e were any
Department o f State cables, see i f t h e r e were any Guantanamo Bay
detainee assessments on t h e r e . I approached i t t h e same way.
I n the u n a l l o c a t e d space I l o c a t e d a d e l e t e d CS^ f i l e c o n t a i n i n g
over 100,000 complete Department o f State cables, which had been
converted t o Base 64 format. A CS^ i s a Comma Separated ^ a l u e ;
i t i s j u s t a way o f t r a n s f e r r i n g data from one database t o
another area. The u t i l i t y o f a CS^ i s a common format, and
between each f i e l d t h e r e i s a comma. Base 64 i s j u s t a way o f
encoding i n f o r m a t i o n , the b e n e f i t f o r i t i n t h i s case would be
t o remove a l l o f t h e c h a r a c t e r s , a l l o f the grammatical
c h a r a c t e r s . When something i s base 64 encoded i t looks l i k e , t o
t h e u n t r a i n e d eye, g i b b e r i s h . I found more than 100,000 f u l l
cables.
The image i s a very small p o r t i o n of t h e recovered CS^
f i l e , and what I^ve done f o r t h i s one i s , t o keep i t p r e s e n t a b l e
i n open c o u r t ; I f i l t e r e d i t on some o f t h e u n c l a s s i f i e d
Department o f State cables. On the l e f t , t h e f i r s t f i e l d would
be the numbers, the person who was doing t h i s wanted t o ensure
t h a t he obtained a l l o f them, so each one o f them had a unigue
number. The second f i e l d i s t h e date o f when i t was p u b l i s h e d ,
when t h e a c t u a l cable i t s e l f was p u b l i s h e d on t h e Department o f
State servers t h i s i s the Message r e c o r d Number, MPN. A message
r e c o r d number i s how the Department o f State l a b e l s t h e i r
cables. And t o the r i g h t o f t h a t i s t h e base 64 s t u f f t h a t I
spoke o f . There i s a reverse process t o decode base 64. I t
presents the i n f o r m a t i o n i n p l a i n t e x t . And I was able t o
decode these cables.
I found t h i s d e l e t e d CS^ i n u n a l l o c a t e d space, b u t I c o u l d
n o t a s s o c i a t e t h a t w i t h a user p r o f i l e , ^ou can decode manually
one a t a time, b u t t h a t would be very time-consuming and prone
t o e r r o r s . Through s c r i p t i n g you can create an automated process
t o decode f o r you i n a v e r y g u i c k manner. I d i d n o t f i n d a
s c r i p t t o decode i t on t h i s computer. I d i d n o t f i n d any other
data sets on t h e ^dot^ .40 computer.
I do recognise t h a t image, which i s the warning banner f o r
t h e computers, ^dot^ .22 and t h e ^dot^ .40 computers. When you
f i r s t s t a r t the computer and t r y t o l o g on, you are presented
w i t h t h i s warning banner. The f i r s t sentence s t a t e s , ^^^ou are
accessing a US government ^USG^ i n f o r m a t i o n system t h a t i s

13^

21383

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

p r o v i d e d f o r US government a u t h o r i s e d use only.^^ When a user
f i r s t logs on t o t h e computers t h a t I examined, you^re f i r s t
prompted w i t h t h i s warning screen and then you have t o press
okay.
CROSS-EXAMINATION
Questions by t h e c i v i l i a n defense counsels
The CS^ f i l e t h a t I j u s t discussed was i n u n a l l o c a t e d
space, so I cannot say t h a t i t was PEC Manning t h a t accessed
t h i s i n f o r m a t i o n . I do n o t know whether usernames and passwords
were shared a t t h e T-SCIE on EOB hammer. The u n a l l o c a t e d space
w i t h t h e c a b l e s cannot be date and time stamped. I found t h i s
i n f o r m a t i o n on a c l a s s i f i e d computer; t h e r e i s n o t h i n g wrong
w i t h t h i s i n f o r m a t i o n being on a c l a s s i f i e d computer.
I did not
f i n d any f o r e n s i c evidence t h a t t h i s i n f o r m a t i o n was sent t o
anyone.
IThe witness was t e m p o r a r i l y excused,
withdrew from the courtroom.^

135

d u l y warned, and

21384

UNITED STATESOFAMERICA
V.

Manning,BradleyE.
PFCUSArmy,
HHC, U.S. Army Oarrison,
^oint Base Myer-Henderson Hall
FortMyer, Virginia 22211

OOVERNMENTRESPONSETO
DEFENSE MOTIONTO DISMISS
SPECIFICATIONS 13 AND 14
OFCHAROEHFORFAILURE
TO STATEAN OFFENSE
Enclosure2
24May2tH2

oem

._e_.cet__coo use 235 Be .o:uo.n_ V103 cce seam
mes. use 6 .w_.ec_oze .3 5
_ecow.ea _ue.e_e. .3305 {oz 6 .wco_.eo_E..EEoo _ueu_uo__>_a .oo.coo es:
_o uc__o._coE .o .o in. 3 .ce?coo Hoc.
Ween w. .e>onm. 5 Eugen _eco2ea 5:
.oc.3we_e.c_ mm: .0206 2 Eozcoo wweooe use me?ueec;
b_5oo? uou:_oc_ w_ 98.3 ace .2 new: 5 tewo_om__9
men use use ec_.3o_ .oo_ns? 2e
Se m_ do no.no.2? e.e_u ego?.
use .oeaac_ mes am: ace .4 .6.
vce .ceEeo.2:o .o:v:oon_E _eccou.en_ _u:e wcozeaaow
.B,o.28 .2 .3 .3
823.3 .2 w_ co 2o._coE vce

mm: on uco?ucoo mc_3o__o_ e5 2 .5300 so; 6. 2 uesoeze eo_>e_u
ace 838_ m. am #3 en: .2
2 6.. ssam c3eE_o_c. .82 9.383 9e

3:31.. 4 II

21386

UNITED STATESOFAMERICA
V.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Oarrison,
^oint Base Myer-Henderson Hall
FortMyer,Virginia 22211

OOVERNMENTRESPONSETO
DEFENSE MOTIONTO DISMISS
SPECIFICATIONS 13 AND 14
OFCHAROEHFORFAILURE
TO STATE AN OFFENSE
Enclosure3
24 May 2012

21387

Continuation Sheet, DD Form 457, U.S. v. PFC Bradley E. Manning
Manning's secondary SIPRNET computer,and evidence of Department of State cables
published before March 2010 were found in Unallocated Clusters on PFC Manning's personal
computer, including data appearing to have a .csv file structure listing Department ofState cables
with numbers preceding 251,287 in a format similar to the cables found on PFC Manning's
primary SIPRNET Computer.'^' Additionally, examination of Department of State cable
message record numbers released by WikiLeaks identified 251,298 individual message record
numbers; examination of PFC Manning's personal computer and his primary and secondary
SIPRNET computers showed that they contained 83% of all the message record numbers
released to WikiLeaks.'^^
This evidence, taken together, leads to a conclusion that the 251,287 files released by WikiLeaks
were provided to WikiLeaks by PFC Manning.
The evidence showed that in his chats with Mr. Lamo conceming the State Department cables,
PFC Manning said, "it was forwarded to WL ... and god knows what happens now ... hopefully
worldwide discussion, debates, and reforms ... I want people to see the truth... regardless of who
they are... because without information, you cannot make informed decisions as a public,"''''' which
indicates that that he converted this database to his own use or the use ofanother in that he
wanted to make this information public and thus deprive its owner, the United States, of its use
or benefit. While there was evidence that PFC Manning had the authority to access diplomatic
cables for his job,'^'* he had no authorization to take this database from its owner and thus his
taking it constituted stealing it.
The evidence showed that the valuation of the Net-Centric Diplomacy database was over $4
million.'^^
The evidence showed that 18 U.S.C. 641 exists and that PFC Manning's conduct in stealing the
database and converting it to his own use and the use of WikiLeaks was prejudicial to good order
and discipline and was service discrediting.
I thus conclude that reasonable grounds exist to believe that PFC Manning committed the offense
alleged in Specification 12 of Additional Charge II.
Additional Charge II, Specification 13 (Art. 134, UCMJ; 18 U.S.C. 1030(a)(1)):
Law
In order to prove this offense, the govemment must establish the following six elements:

PFC Manning's Secondary SIPRNET Computer Forensic Report, Bates # 00199494-507, at 1, 12-14.
PFC Manning's Personal Computer Forensic Report, Bates # 00124283-362, at 51-54.
DoS Files Forensic Report, Bates U 00054320-34, at 14.
Lamo Chat, 10 Ex. 19(D), at 33.
Testimony of CPT Lim (stating he gave analysts the link through email to access diplomatic cables).
NCD Valuation Documents, Bates # 00410556-60.

29

21388

Continuation Sheet, DD Form 457, U.S. v. PFC Bradley E. Manning
(1) that at or near Contingency Operating Station Hammer, Iraq, between on or about 28 March
2010 and on or about 27 May 2010, the accused knowingly exceeded authorized access on a
Secret Intemet Protocol Router Network computer;
(2) that the accused obtained information that has been determined by the United States
govemment by 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;
(3) that the accused had reason to believe that the information he obtained could be used to the
injury of the United States or to the advantage of any foreign nation;
(4) that the accused willfully communicated, delivered, or transmitted the said information to a
person not entitled to receive it;
(5) that 18 U.S.C. section 1030(a)(1) exists; and
(6) that, under the circumstances, the conduct of the accused was to the prejudice of good order
and discipline in the armed forces and was of a nature to bring discredit upon the armed
forces.'^^
Facts
The evidence showed that PFC Manning's primary SIPRNET computer contained, under his
user profile, a file named "files.zip" in the "bloop" folder that had over 10,000 Department of
State cables in .html web page format, and that over 4,000 of these cables were classified.'^' A
CD accessed on PFC Manning's personal computer containingfiles.zipwas burned on 4 May
10.'''^ The evidence showed that another document in the "bloop" folder, "backup.xlsx," was a
spreadsheet with cables published in March, April, and May 2010.'-'^ The tab in this spreadsheet
including cables published in March and April 2010 started with a cable with number 251,288.
The evidence showed that PFC Manning's primary SIPRNET computer had a version of wget
(software used to downloadfilesfrom a server) that was the same version found in the
Department of State logfiles,the Intelink logfiles,and that was downloaded on a NIPRNET
computer by a user of PFC Manning's user profile.'*" A user of PFC Manning's user profile on
that NIPRNET computer did Google searches for WikiLeaks and wget.exe on 3 May 10 and
downloaded wget to that profile. A user of PFC Manning's user profile then transferred wget
from the NIPRNET to SIPRNET on 4 May 2010, under PFC Manning's user profile."*'

These elements are a tailored version of Eighth Circuit Model Jury Instruction 6.18 ,1030A.
Testimony of SA Shaver; PFC Manning's Primary SIPRNET Computer Forensic Report Bates # 00211037-110,
at31.
Testimony of SA Shaver.
PFC Manning's Primary SIPRNET Computer Forensic Report, Bates # 00211037-110, at 31; spreadsheet, at
Bates # 00296982; Testimony of SA Shaver.
'•^ PFC Manning's Primary SIPRNET Computer Forensic Report, Bates # 00211037-110, at 37.
'•" Testimony of SA Shaver.

30

21389

Continuation Sheet, DD Form 457, U.S. v. PFC Bradley E. Manning
The evidence showed that on 20 Atlgust 2011,WikiLeaks released 251,287 Department ofState
cables in unredacted form and made them available on the Internet'*^ While the evidence was
that Wikil^eaks did not release the cables in the files zip folder,'*^ the forensic examination tbtind
thousands of State Department cables in unallocated space on PFC Manning'sprimary SIPRNET
computer, ranging in classification from tinclassified to secret; many were complete, but many
others were not'** Additionally, the forensic examination ofPFCManning'sprimary SIPRNET
computerrevealedthatadeleted and partially overwritten file named "c:^Lost
File^backup^farah.zip" was originally created onlOApril2010and contained 582 Department of
State Cables, over 250 ofwhich were classified.'*^ The evidence showed the Department of
State cables were in .CSV format,away of moving files from one database to another,and were
Base64 encoded.'*^ ^nalysisofPFCManning'ssecondary SIPRNET computer and his personal
computer also showed many Department ofState cables thathad been converted to Base64 and
stored in CSV format'*' Specifically,approximatelyll3,000 complete Department ofState
cables converted to 8ase64 were fotindinadeleted .CSV file in Unallocated Clusters on PFC
Manning'ssecondary SIPRNET comptiter,'*^ and evidence ofDepartment ofState cables
published bef:^re March 2010werefr^und in Unallocated Clusters on PFC Manning'spersonal
comptiter,includingdataappearing to havea.CSV file structure listing Department ofState cables
with numbers preceding 251,287 inafbrmatsimilarto the cables found on PFC Manning's
primary SIPRNET Computer.'*^ Additionally,examinationofDepartment ofState cable
message record numbers released by Wikil^eaks identified 251,298 individual message record
numbers; examination ofPFCManning'spersonal computer and his primary and secondary
SIPRNETcomputers showed that they contained 83^ of all the message record numbers
released to WikiLeaks.'^"
This evidence, tal^en together, leads toaconclusion that the 251,287 files released by WikiLeaks
were provided toWikiLeaks by PFC Manning.
The evidence showed that in his chats with Mr. Lamo conceming the State Department cables,
PFC Manning said,"itwas forwarded to Wl^...and god knows whathappens now. hopefully
worldwide disctission, debates, and reforms ..Iwant people to see the truth...regardless of who
they are because without information.yoti cannot make informed decisions asaptiblic,"'^'
which indicates that that he had reason to believe that the information he obtained could be used
to the initiry ofthe United States or to the advantage ofany foreign nation.

Testimony of SA Bettencourt; Testimony of SA Shaver.
'•"^ Testimony of SA Shaver SA Shaver also testified there was a problem withfiles.zipwhen it was created, and if
a person using WinZip tried to open it. it would not open because it was a corrupted file, and one would need special
tools to open the files in files.zip. Based on that testimony, it appears that WikiLeaks did not release the cables in
files zip because they could not open them
Testimony of SA Shaver.
PFC Manning's Primary SIPRNET Computer Forensic Report, Bates # 00211037-110, at 34-36.
Testimony of SA Shaver.
PFC Manning's Primary SIPRNET Computer Forensic Report, Bates # 00211037-110, at 36.
PFC Manning's Secondary SIPRNET Computer Forensic Report, Bates # 00199494-507, at 1, 12-14.
''" PFC Manning's Personal Computer Forensic Report, Bates # 00124283-362, at 51-54.
DoS Files Forensic Report, Bates U 00054320-34, at 14.
Lamo Chat. 10 Ex. 19(D), at 33.

31

21390

Continuation Sheet, DD Form 457,U.S.v.PFC Bradley E. Manning
While there was evidence that PFC Manning had the authority to access diplomatic cables f:^r his
job,'^^the context ofthat evidence wa^thataccess was authorizedfortheanalysts to do their job.
The evidence also showed that before logging on to his primary and secondary SIPRNET
computers. PFC Manning had to click "01^" onawamingbanner,the first sentence of which
read,"^ou are accessingaU.S.Oovemment (USC) Information System (IS) that is provided tor
USO-authorizedtiseonIy."'^^Accordingly,accessing diplomatic cables in order to provide them
toaperson not entitled to receive it exceeded authorized access. PFC Manning had no
authori^.ation to transfer this inf:^rmation toWikiLeaks, which was not entitled to receive it.
The evidence showed that these cables were properly classified and remain classified.'^*
The evidence showed thatl8U.SC.1030(a)(l)exists and that PFC Manning'sconduct in
providing these classified cables to WikiLeaks was prejudicial to good order and discipline and
was service discrediting.
Additional ChargeII,Speeifieation 14 (Art. 134, UCM.1^1^ U.S.C. 1030(a)(l))^

In order to prove thisoffense, the govemment must establish the f:^llowing six elements:
(1) that at ornearContingency Operating Station Hammer, Iraq, between on or aboutl5
February 2010and on or aboutl8Febrttary 2010,the accusedknowingly exceeded authorized
access onaSecret Intemet Protocol Router l^etwork computer;
(2) that the accused obtained information that has been determined by the United States
govemment by Executive Order or statute to require protection against unauthorized disclosure
fbrreasons of national defense or foreign relations, to wit:aclassified United States Department
ofStatecable titled "Reykjavikl3";
(3) that the accused had reason to believe that the informationheobtainedcottld be used to the
injury ofthe United States orto the advantage ofany foreign nation;
(4) thatthe accused willfully communicated, delivered, ortransmitted the said inf:^rmation toa
person not entitled to receive it;
(5) thatl8USCsectionl030(a)(l)exists:and
(^) that, under the circumstances, the conduct of the accused was to the prejudice of good order
and discipline in the armed forces and was ofanature to bring discredit upon the armed f:^rces.

Testimony of CPT Lim (stating he gave analysts the link through email to access diplomatic cables).
Testimony of SA Shaver, lO Ex. 11 (P), at 1 (Bates # 00376856).
154 ,
' Classification Review, Bates # 00376903-53.

32

21391

UNITED STATES OF AMERICA
V.

Manning, Bradley E.
PFCUSArmy,
HHC, U.S. Army Carrison,
^oint Base Myer-Henderson Hall
FortMyer, Virginia 22211

OOVERNMENTRESPONSETO
DEFENSE MOTIONTO DISMISS
SPECIFICATIONS 13 AND 14
OFCHAROEHFORFAILURE
TO STATE AN OFFENSE
Enclo^ure4
24May 21112

21392

Page 1 of 4

Cables leak reveals fiawsofinformation-sharing tool

#e tPaisljington post
Cables leak reveals flaws of information-sharing
tool
By Joby Warrick
Washington Post Staff Writer
Friday, December 31,2010; AOl
Before the infamous leak, the 250,000 State
Department cables acquired by anti-secrecy
activists resided in a database so obscure
that few diplomats had heard of it.
It had a bureaucratic name, Net-Centric
Diplomacy, and served an important mission:
the rapid sharing of information that could
help uncover threats against the United
States. But like many bureaucratic inventions,
it expanded beyond what its creators had
imagined. It also contained risks that no one
foresaw.
Millions of people around the world now
know that the State Department's secret
cables became the property of WikiLeaks. But
only recently have investigators understood
the critical role played by Net-Centric
Diplomacy, a computer initiative that became
the conduit for what was perhaps the biggest
heist of sensitive U.S. govemment documents
in modern times.
Partly because of its design but also because
of confusion among its users, the database
became an inadvertent repository for a vast
array of State Department cables, including
records of the U.S. government's most
sensitive discussions with foreign leaders
and diplomats. Unfortunately for the

department, the system lacked features to
detect the unauthorized downloading by
Pentagon employees and others of massive
amounts of data, according to State
Department officials and informationsecurity experts. The result was a disastrous
setback for U.S. diplomatic efforts around the
globe.
"This was as bad as it gets," said Patrick F.
Kennedy, undersecretary of state for
management, referring to the diplomatic
fallout. "We had, over the course of many
years, built up a huge amount of faith and
trust. That's ruptured now, all over the
world."
U.S. officials and security analysts describe
the leak as a cautionary tale, one that
underscores flaws in security for secret
government data while also exposing a
Advertisement

^
%#

65% OFF
The l a i l y »eaJ - Abilene, TX $69 for
a Bazzle Pro Blue Sonic Toothbrush
w i t h Sanitizing UV-Light Base ($199
Value). Shipping Included.

GET DEAL AT:
I www.PrintGroupon.com/383361
_ _

Time Sensitive Qffian

http://www.washinglonpost.com/wp-dyn/content/artide/2010/12/30/AR2010123005005_pf.ht(nl

Print Powered By (H^ForrTia tDynarriics""

http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123005005_p... 5/23/2012

21393

Cables leak reveals flaws ofinformationsharing tool

Page 2 of 4

#e tOasIjingtott |3ost
Cables leak reveals flaws of information-sharing
tool
downside to the U.S. government's
enthusiastic embrace of information-sharing
in the months after the Sept. 11, 2001,
terrorist attacks.
Investigations into the attacks concluded
that government agencies had failed to share
critical information that could have helped
uncover the Sept. 11 plot. Because of that
lapse. Congress tasked the Office of the
Director of National Intelligence with
pressuring key government agencies including the Pentagon, the Homeland
Security Department and the State
Department - to find ways to rapidly share
information that could be relevant to
possible terrorist plots and other threats.
The State Department, with its hundreds of
diplomatic posts worldwide, was already
making tens of thousands of classified cables
available to intelligence and military officials
with secret securit) clearances. But in 2005,
the DNl and the Defense Department agreed
to pay for a new State Department computer
database that could allow the agency's cables
to flow more easily to other users throughout
the federal govemment.
"It was consistent with the concept of
needing to share information after September
11th," said State Department spokesman P.J.
Crowley. "We were asked to do it, and the
Pentagon paid for it."

Net-Centric Diplomacy was launched in 2006
and tied into a giant Defense Department
system known as the Secret Intemet Protocol
Router Network, or SlPRnet. Soon, nearly half
a million govemment employees and
contractors with security clearances could
tap into the diplomatic cables from computer
terminals around the globe.
The State Department's new database quickly
garnered praise as a model of interagency
collaboration. The database was named a
finalist for an Excellence in Government
award in 2006. The following year, thenDirector ofNational Intelligence John D.
Negroponte, whose agency led the push for
information-sharing, congratulated State
Department officials for making their secret
cables "available in a timely, user-friendly
way."
"The State Department's commitment shows
Advertisement

Send lloweis
for an\ occasion

^'••"$1999
Pfoh'lowt'i^
oner ONLY available ak

prof I owersjcom/happy
or call 1.877.804.1133
http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123005005_pf.html

Print Powered By (Bj^^rrrgtlDynarnics J

http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123005005_p... 5/23/2012

21394

Cables leak reveals fiawsofinformation-sharing tool

Page 3 of 4

Wfittoasijingtonpost
Cables leak reveals flaws of information-sharing
tool
the way for other agencies," Negroponte
wrote in a Jan. 29, 2007, letter to thenSecretary of State Condoleezza Rice.
The flaws did not become apparent until
much later. One of biggest problems:
Sensitive cables were often dumped willynilly into the database regardless of whether
they belonged there, according to two
department officials familiar with the
internal procedures for data storage.
Thousands of cables and other documents
pass through Foggy Bottom daily, and to
ensure that they are routed properly, each is
assigned a code or codes, similar to a Zip
code. One such six-letter code - SIPDIS flags a computer to route the document to
the Net-Centric database, allowing it to be
viewed by intelligence officers and military
personnel worldwide.

A few State Department officials expressed
early concems about unauthorized access to
the database, but these worries mostly
involved threats to individual privacy,
department officials said. In practice, agency
officials relied on the end-users of the data mostly military and intelligence personnel to guard against abuse.
The department was not equipped to assign
individual passwords or perform
independent scrutiny over the hundreds of
thousands of users authorized by the
Pentagon to use the database, said Kennedy,
the undersecretary of state.
"It is the responsibility ofthe receiving
agency to ensure that the information is
handled, stored and processed in accordance
with U.S. government procedures," he said.
To prevent illegal intrusion, the State

In practice, embassy employees added the
code word SlPDlS by rote, often without fully
understanding what it meant, said one ofthe
department officials, who spoke on the
condition of anonymity because he was not
authorized to discuss the subject.
"It wasn't clear what was to be shared or not
shared," the official said. "So you end up
with a cable in the database that contains
embarrassing stuff about [German Prime
Minister Angela] Merkel. Is that the kind of
stuff that a warfighterreally needs to see?"

Advertisement

Send llovvei^
lor any occasion '

Boiiqiiets

W

PniMowri-s

Offer ONLY available ak

prof I owersjcom/happy
or call 1.877.804.1133
http://www.washingtonpost.com/wp-dyn/content/aiticle/2010/12/30/AR2010123005005_pf.html

Print Powered By (jg^FormatPynamics^

http://wwv,'. washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123005005_p...

5/23/2012

21395

Page 4 of 4

Cables leak reveals flaws ofinformationsharing tool

#etoasijingtxmpost
Cables leak reveals flaws of information-sharing
tool
Department has long maintained safeguards
that make it difficult for an individual to
download sensitive information onto a
portable device such as a flash drive or
compact disc. But Kennedy acknowledged
that the department had no means of
overseeing practices by other agencies using
its data.

Intelligence Dennis C. Blair urged that the
database include not only cables but also emails between State Department officials.
Such a move would "ensure that critical
information will reach the necessary readers
across the government," Blair wrote.
Clinton refused.

U.S. investigators suspect that Bradley
Manning, an Army private stationed in the
Persian Gulf downloaded the 250,000 State
Department cables to compact discs from a
computer terminal in Kuwait. He then
allegedly provided the files to WikiLeaks,
which shared them with newspapers and
posted hundreds of them online.
In the wake of the leak. State Department
officials cut off outside access to Net-Centric
Diplomacy pending a review. Some secret
documents are still being made available to
other agencies through a different network
designed to handle highly classified data,
Kennedy said.
Although it is perhaps small comfort, the
disclosures could have been worse. In May,
the Obama administration's top intelligence
officer asked the State Department to expand
the amount of material available to other
agencies through Net-Centric Diplomacy.

Advertisement

Send Uovvers
Ibr am occasion *

Pi\ )h low el's

In a letter to Secretary of State Hillary
Rodham Clinton, then-Director ofNational

Offer ONLY available ak

proflowersjcom/happy
or call 1.877.804.1133
http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2ai0123005005_pf.html

Print Powered By g|TF^,rnnatp'ynarnics'"']

http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123005005_p... 5/23/2012

21396

Appellate Exhibit 91
Enclosure 5
3 pages
ordered sealed for Reason 6
Military Judge's Seal Order
dated 20 August 2013
stored in the original Record
of Trial

21397

UNITED STATES OF AMERICA
V.

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

GOVERNMENT RESPONSE TO
DEFENSE MOTION TO DISMISS
SPECIFICATIONS 13 AND 14
OF CHARGE I I FOR FAILURE
TO STATE AN OFFENSE
Enclosure 6
24 May 2012

21398

SF 86
#ucstionairc For National Security Positions
SF 328
Certificate Pertaining to Foreign Interests
Appendix B
Sample Acceptable Use Policy
B - 1 . Purpose
This appendix provides a sample AIJP that may be used by organizations to obtain explicit acknowledgements from
individuals on their responsibilities and limitations in using ISs.
B-2. Explanation of conventions in sample acceptable use policy
Figure B-1, below, illustrates a representative AUP. In this figure, text appearing in italicized font should be replaced
with the appropriate information pertinent to the specific AUP being executed. Army organizations may tailor the
information in the sample AUP to meet their specific needs, as appropriate.

AR 25-2 • 24 October 2007

61

21399

Acceptable Use Policy
1. Understanding. I understand that I have the primary responsibility to safeguard the
information contained in classified network name (CNN) and/or unclassified nefwork name (UNN)
from unauthorized or inadvertent modification, disclosure, destruction, denial of service, and use.
2. Accass Access to this/these network(s) is for official use and authorized purposes and as set
forth in DoD 5500.7-R, "Joint Ethics Regulation" or as further limited by this policy.
3. Revocabllity. Access to Army resources is a revocable privilege and Is subject to content
monitoring and security testing.
4. Classified information processing. CNN is the primary classified IS for (insert your
organization). CNN is a US-only system and approved to process (insert classification) collateral
Information as well as; (insert addilbnal caveats or handiing instructions). CNN is not authorized
to process [insert classification or additional caveats or special tiandling instructbns).
a. CNN provides communication to external DoD (or specify other appropriate U.S.
Government) organizations using the SIPRNET. Primarily this is done via electronic mall and
internet netviforking protocols such as web, ftp, telnet (insert others as appropriate).
b. The CNN is authorized for SECRET or lower-level processing in accordance with
accreditation package number, identification, etc.
c. The classification boundary between CNW and UNW requires vigilance and attention by all
users, CNN is also a US-only system and not accredited for transmission of NA TO material.
d. The ultimate responsibility for ensuring the protection of information lies with the user. The
release of TOP SECRET information through the CNN is a security violation and will be
investigated and handled as a security violation or as a criminal offense
5. Unclassified Information Processing. UNN is the primary unclassified automated
administration tool for the {insert your organizatbn) UNN is a US-only system.
a. L/A/N provides unclassified communication to external DoD and other United States
Government organizations Primarily this is done via electronic mail and internet networking
protocols such as web, ftp, telnet (insert others as appropriate).
b UNN is approved to process UNCLASSIFIED, SENSITIVE information in accordance with
(insert local regulation dealing with automated information system security management
program),
c. The UNN and the Intemet, as viewed by the {insert your organization), are synonymous. Email and attachments are vulnerable to interception as they traverse the NIPRNET and Intemet.

Figure B - 1 . Acceptable use policy

62

AR 25-2 • 24 October 2007

21400

6. Minlmufii security rules and requirements. As a CNN and/or UNN system user, the
following minimum security rules and requirements apply:
9. Personnel are not permitted access to CNN and UA/A/unless in complete compliance with the
(insert your organization) personnel security requirement for operating in a TOP SECRET
system-high environment.
b. I have completed the user security awareness-training module. I will participate in all training
programs as required (inclusive of threat identification, physical security, acceptable use policies,
malicious content and logic identification, and non-standard threats such as social engineering)
before receiving system access.
c. I will generate, store, and protect passwords or pass-phrases. Passwords will consist of at
least 10 characters with 2 each of uppercase and lowercase letters, numbers, and special
characters. I am the only authorized user of this account. (I will not use user ID, common names,
birthdays, phone numbers, military acronyms, call signs, or dictionary words as passwords or
pass-phrases.)
d. I will use only authorized hardware and software. 1 will not install or use any personally owned
hardware, software, shareware, or public domain software.
e. I will use virus-checking procedures before uploading or accessing information from any
system, diskette, attachment, or compact disk.
f. 1 will not attempt to access or process data exceeding ttie authorized IS classification level.
g I will not alter, change, configure, or use operating systems or programs, except as specifically
authorized.
h. I will not introduce executable code (such as, but not limited to, exe, com, vbs, or bat files)
without authorization, nor will I write malicious code.
i. I will safeguard and mark with the appropriate classification level all information created,
copied, stored, or disseminated from the IS and will not disseminate it to anyone without a
specific need to know.
j . I will not utilize Army- or DoD-provided ISs for commercial financial gain or illegal activities.
k. Maintenance will be performed by the System Administrator (SA) only.
I. I will use screen locks and log off the workstation when departing the area.
m. I will immediately report any suspicious output, files, shortcuts, or system problems to the
(insert your organization) SA and/or lASO and cease all activities on the system.
n. I will address any questions regarding policy, responsibilities, and duties to (insert your
orgar}ization) SA and/or lASO.

Figure B - 1 . Acceptable use policy—Continued

AR 2 5 - 2 . 24 October 2007

63

21401

0. I understand that each IS is the property of the Army and is provided to me for official and
authorized uses. I further understand that each IS is subject to monitoring for security purposes
and to ensure that use is authorized. I understand that I do not have a recognized expectation of
privacy in official data on the IS and may have only a limited expectation of privacy in personal
data on the IS. I realize that I should not store data on the IS that I do not want others to see.
p. I understand that monitoring of (CNN) (UNN) will be conducted for various purposes and
information captured during monitoring may be used for administrative or disciplinary actions or
for criminal prosecution. I understand that the following activities define unacceptable uses of an
Army IS:
Unsert specific criteria)









to show what is not acceptable use
to show what is acceptable during duty/non-duty hours
to show what is deemed proprietary or not releasable (key word or data identification)
to show what is deemed unethical (e.g., spam, profanity, sexual content, gaming)
to show unauthorized sites (e.g., pornography, streaming video, E-Bay)
to show unauthorized services (e.g., peer-to-peer, distributed computing)
to define proper email use and restrictions (e.g., mass mailing, hoaxes, autofonwarding)
to explain expected results of policy violations (l", 2"'', 3"*, etc)

(Note: Activity in any criteria can lead to criminal offenses.)
q. The authority for soliciting a social security number (SSN) is EO 939. The information below
will be used to identify you and may be disclosed to law enforcement authorities for investigating
or prosecuting violations. Disclosure of information is voluntary; however, failure to disclose
information could result in denial of access to (insert your organization) information systems.
7. Acknowledgement. I have read the above requirements regarding use of (insert your
grganizatign) access systems. I understand my responsibilities regarding these systems and the
information contained in them.
insert name here
Directorate/Division/Branch
insert name here
Last Name, First, Ml

*

insert name tiere
Signature

insert date here
Date
insert Rank/Grade and SSN here
Rank/Grade/ SSN
insert ptione number here
Phone Number

Figure B - 1 . Acceptable use policy—Continued

64

AR 25-2 • 24 October 2007

UNITED STATES OF AMERICA
v.

Manning, Bradley E.

PFC, U.S. Army,

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



21402

GOVERNMENT RESPONSE TO
DEFENSE MOTION TO DISMISS
SPECIFICATIONS 13 AND 14
OF CHARGE II FOR FAILURE
TO STATE AN OFFENSE

Enclosure 7
24 May 2012








FORM DEC 91 (ES)

C)

21403

SENSITIVE COMPARTMENTED INFORMATION NONDISCLOSURE STATEMENT




ROUTINE USEISI:

Register.

DISCLOSURE.

PRIVACY ACT STATEMENT
E0 9397. November 1943 ISSNI.

The information contained herein will be used to precisely identify iridividiiais when it
is necessary to certify their aocess to sensitive compartmentecl information.

Blanket routine uses. as published by Defense intelligence Agency in the Federal

Voluntary: howeveri failure to provide requested information may result in delaying
the processing of your oeitification.

An Agreement Between

1. Intending to be legally bound. I hereby accept the obligations
contained in Agreement in consideration of my being granted
accss to iriforination or material protected within Special Access
Programs. hereinafter referred to in this Agreement is Sensitive
Information (SCII, I have been adxisod that SCI
involves or derives from intelligence menu or methods and is
dasn?ed or in the process of a dassifiration under the
standards of I-Lxei-utivc Order 12356 or other Fxecuive order or
statute. I understand and atzepl that by being granted access to SCI.
special con?dence and mist shall be placed in me hy the United States
Cowrtiment. REM

3 I hereby acknowledge that I have received a security
indoctrination concerning the nature and protection of SCI. including
the procedures to be followed in ascertaining whether other persons to
whom I contemplate disclosing this information have been approved
for to it. and I undemnrd these procedures. lunderstand that I
tnay be required to sign subsequent agreements upon being granted
accent to different categories of SCI. I furtlier understand that all my

l3?m

3. I have been advised that unauthorized disclosure. unauthorized
retention. or negligent handling of SCI by me could cause irreparable
to the United States or be used to advantage by a foreign
nation. I hereby agi ee that I never divulge anything marked as
SCI or that I know to be SCI to anyone who is not authorized to
receive Lt without prior written authorization from the United States
Government department or agency Departinent or
Agentiyl that last authori-Jed my access to SCI. I understand that it is
my responsibility to consult with appropriate management autlioritim
in the Department or Agency that last authorized my in SCI.
whether or not I am sti.lJ employed by or tntsocialed with that
Department or Agency or a contractor thereof. in order to ensure that
I know whether information or matmial within my knowledge or
corrupt that I have reason to believe might be SCI. or related to or
derived from SCI. is considered by such Depamrient or Agency to be
SCI. I further iuiderstand that I am also obligated by law and
regulation not to disclose any classi?ed information or material in an
unauthor.zcd fashion BE-.nq

4 In considerauon of bung granted access to SCI and of being
assigned or retained in a position of special con?dence and trost
requiring access to SCI. I hereby agree to submit for security review
by the or Agency that East authorized my access to such
information or material. any writing or other prepanlion in any form.

an?! required to sign such subsequent

SCI or description of activities that produce or relate to SCI or that I

Rim

under this Agreement continue to t-sdst whether or not I 1
30 working days from date of receipt.

including a work of ?ction. that or purports to contain any



eawntto

Typed Name!

I

i access to SCI or tint I have prepared for public disclosure. I

I

I
I
1

and the United States.

4 {Cantirrued} have reason to believe are derived from SCI.
that I contemplate disclosing to any pi:rsm\ not authorized to have

understand and agree that my obligation to submit such preparations
for review applit-_r. during the course of ray access to SCI and
therea?er. and I agree to make any required prior to
discussing the preparation with. or showing it to. anyone who is not
authorized to have access in SCI. 1 further agree that I will not
disclose the contents of such preparation to any person not
authorized to have access to SCI until I have received written
authorization from the Depaitrnent or Agenqi that last
my aoccss to that such disclosure is permitted.

5 I understand that the purpose of the review described in
paragapl: 1 is to give the United States a reasonable opportunity to
determine whether the preparation submitted pursuaiit to paragraph
*1 set forth any SCI. I fintlier understand that the Department or
Agency to which I have made a submission will act upon them.
coonlinating within the Intelligence Community when appropriate.
and make a ncspaiise to me within a reasonable time not to rnzceed

BEN

6. Ihave been advised that any breach ofthis Agreement may
result in the termination of my access to SCI and removal from a
position of special con?dence and mist rizqzrirmg such acmss, as
well as the termination of my employment or other relationships
with any Department or Agency that provides me with access to
In addition. I have been advised that any unauthorized
disciasrirv: of SCI by me may constitute violanons of United Stats
criminal laws. including the provisions 01' Sections 793. T98.
and 952. Title 18. United States Code. and of Seithon T8?3Ibl. Title
50. United States Code. Nothing in this Agreement constitutes a
waiver by the United States of the right to prosecute me for any

statutory violation. 2 Sn,

7. I understand that the United States Government may seek
any remedy available to it to enforce this Agrciement. including. but
not limited to. application for a court order prohibiting disclosure of
information in breach of this Agreement I have been advised that
the action can he brought against me in any of the several
appropriate United States District Courts where the United States
Government may elect to file the action Court costs and reasonable
attorneys? fees incurred by the United States Government may be
.i.
8 I understand that all to which I may obtain
acct-_-3 by signing this Agreement is nuvr and will teinain the
property of the United States Covcrmoczt titties?. and until
by an app: opt-are official or ?nal ruling of ii



?$30



5-I

PREVIOUS EDITIONS ARE OBSOLETE.

L-pug Pg-rfurr-\ Pro

8 (Continued) court of law. Subject to such determination. I
do not now. not will I ever. possess any right. interest. title or
claim whatsoever to such information. I agree that I shall rt-ttim all
materials that may have come Into my possession or for which I am
responsible because of such access. upon demand by an authorized
of the United States Government or upon the
conclusion of my employment or other relationship with the
States Government entity providing me access to such materials. If
I do not ?than such rnatrrials ti nimst. I understand this may
be a vlotati Section 793. Tl! I8. United States Code

9 Unless and until I am released in writing by an authorized
ii.? the Dcparteien: or Pt?cng that last provideo me
with access to SCI I at all the conditions and
obligations imposed upon me by this A during the
time I am granted access to SCI. and at a times ?thereafter gram

10 Each provision of this Agreenten: LS severabic If a art
should find any eat to be unenforceable. all
other ptuvislortt of this Agxeeuttu shall remaltt tn full force and
?Hits Agreement concenu SCI and does not set forth
other nditiotxs and obligations not related to SCI as mav now or
hereafter pertain to myemployment by or amignnient or relationship
with the Dcparurient or Agency

II. l?hese restrictions are consistent with and do not supersede

conflict with or alter the employee obltgatons. rights. or
liabilities created by Executive Order 12355; Section 7211 of Title

BEA

disclosures to Congas): Section .

I
I

contr



ll /C'an!i'nuctI} oftllegaliry. waste. fraud.
abuse or public health or safety tmazsl. the Identities
Protection Ad of ?.982 (50 USC 421 a seq.) (guvcritirig disclosures
that could expose oon?dennaf Government agents) and the statutes
wbldi protect against disclosure that may compromise the nattonaf
including Sec?ort SH. 793. 794. 798. and 952 of Tlt':e 18.
United States Code. and Section orthe Subvcrate Aco this Act
of 1950 (50 USC Section 733(5)). The de?nitions teqtitternc.-its.
obligations. tights. sanctioru and liabilities treated by said Euxutive
Order and listed are incoiptiaated into tins agmment and are

Pm

12. I have read this Agreement carefully and my questiorn. it any.
have been answered to my satisfaction. I acknowledge that the
btie?ng has made available Sections 793 794. 798. and 952 of
Title i8. United States Code and Section 78303) of Title 30. United
States de. and Exeninve Order 12356. as amended. so that I may
read them at this timehereby assign to the United States Covernmen: all rights.
and interest. and all royalties. remuneratlons. and emoluments that
have restifted. will result. or may result from an)? disdamtc.
or revelation rid consistent with the terms of this

Agreement Rf

It This Agorment shall be interpreted undei and in contortcance

Qnomr

5. United States Lode

1034 or Title in. coat. as by [he . with thelaws of the United Sites. 355

Protection Art (gctci-ran disclosure to by

mernbas of the Section 2 of Title 5. United 15 I malte this Asgtieicent without an)" mmta reseivatior. or

States Code. as amended by the Wliistleblower Protection Act purpose of evasion gran?
16 rvoeo on first Imrral? 1). NKISVC 18. SOCIAL stcurmv no 19 BILLET NO

2o. ORGANIZATDN 2 1_ SIG

HHc,s3. 12:1 tom DIV

?3 we Ej-


22. SIC-NED

(Y mum -0)
090133

FOR USE BY MILITARY AND GOVERNIENI CIVILIAN PERSONNEL

23 TYPED on NAME rm. Middle rmmin

2S SIEENA IURF

SECTION

The execution 0! this Agreement was witnessed by the undemgned. who accepted it on behalf of the United
Govemment as a prior condition of accm to Compartmented

24 ORGAMLA HON

lo? bit) (cit

25. OATE SIGNED
I

Ioqoi mt?,



FOR USE BY PERSONNEL



The excctitiori of this was witnessed hi? the undersigned.

27 TWEO OR PRINYED NAM /last. cirsc Mrudte Imwl)

28 ORGANIZAYION

29. SIGNATURE

30. OATE SIGNED
(WMM00)
I

to Sensitive COfIlp3tIlIl(?nl8d Infonnatioti.
31. rveeo on Prtturco (Last, Frsr, noodle mmar)

33. SIGNATUR



.32"bttGA~tzArtott
1


This Agreement was accepted by the undersigned on behalf of the United States Government as a prior tit" access

7 34. one SIGNED
('.'rMu00)

DD FORM DEC 91



21404



21405

?rs

CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT

AGREEMENT IMAM AND THE UNITED STATES

(Name of lndrirrdual or

3 lntend no to be iegalty bound. thereby accept the obligations contained in this Agreement in consideration of my being
granted access to information. As used in this Agreement. classified nfori-nation is married or unmarked classified
inctudirig orat communications that is class?fied under the standards of EXECMWC Order ?.2858. Or under any
other Executive order 0; gtatutc that proh?oits the unauttiorired disclosure of information in the interest of national security;
and unclassified information that meets the standards for classification and is in the process of a cfassrlicatson
as provided in Sections 1.2. 1 3. and tdte) of Executive Order 12958. or under any other Executive otder or statute that
reuuires protection for such in me interest of nationai security. understand and accept that by being granted
.'icr:ess to coriioerricre and trim? strait be placed in miei tiy the Uri.-led Ltov-errirnerit

2. thereby acknowledge that have received a security indoctrination the nature and protection oi? classified
informaton including the piocadiires to be followed in ascertaining whether other persons whom contemplate disciosmg
ir-?orrnation have beer approved for access it and that understand tnese procedures

i have been advrsed thatthe disclosure, unauthorized retention, or negligent handli-.g of classi?ed

in?oimatiori Dy me Could cause daniaoe or iirrzparable in to the United States or could be used to advantage by a torsion
ltiereby agree that witl never divulge classrrir-id inforriiatiori to anyone unless? ta? 7 have ot?icialty verlfied that'thi:
recipient has been properly authorized by the United States Government to receive it, or have been given prior
notice of :iuthorizatio~ lror~- :hri States Government Department or Agency (hereina?te' Department or Agency)
responsible for the classification or the information or tag! granting me a security cteararzcu that such is permitted
understand that IH am uncertain about the classi?cation status of information, am required to from an authorized
ot?cial that the iniormaiion is unclassrtiad before may disclose it. except to a person as provided in (ail or lb). above I

further understand that I am obligated to comply with laws and regulations that prohibit the criaulhoozed disc.osure 0?
?ntormaiion

4 have been advised that any breach of this Agreement may result in the termination of any security ctearances hold
{Bt'.'l0va? from any position of special confidence and trust requiring such clearances. or the termination of my or
other relationships with the Departments or Agencies that granted rny securty clearance or clearances. In addition. I have
been advised that any unauthorized disclosure otclassifiedir-1ormat=on by me may constitute a violation, or violations of
United States criminal laws. inctuding the provisions ofsections 641, 793. 794. 798. '95-2 and 1924. Title 18. United

States. Code, the provisions of Secton 7El3(b), Tim: United States Code. and the provisions ofthe lnletlagence
Act of 1982 I recogriize that nothng If? Agrer3n'icn! constitutes a waiver by the United States of the right to
prosecute the tor any statutory violation

assign to the United States Governmen? all royalties, and emoluments ttiattave resulted. will



riisult or "way result 1-or? any Qigclosure? or of ciassilied information not consr.sti::nt with the terms of

this Agreement

6. I understar that the Uni?ed States Government may seen any remedy available to it to enforce the Agreement includl?g.
but not limited to. application for a court order disclosure 9? in oreacn of this Agreement

I lundevstand that all classi?ed information to which I have access or may obtain access by signing this Agreer-ent is now
an: will rcinaic D-?ioerty of or ..r~.der trir -;cn?iC? or the States it" .2: 3' -2 uvtii
try an aw timer of .3 .:r:iuii of ?low agree that strait an art ctassitied in.1teiiar". have. or may
tun?ie into my or ?or an-i bi::caiise.- such at:c.:as.s tat upon demand by an

iv; arlhe-llnite1 Sltriler. F':ove::nrnent. noon concliision ot "iy enipioyinen! or other relatiorshie wi'h the
o? that last? granted we a seciirilv ztiecira Hit?: or lira? rm: access :0 or {St
upon the conclusion of my employment or other relationship thatreouires access to classi?ed information. It 5 do not return
such materials upon reouest, understand that this may be a violation of Section 733 and.lOr192rt. true 18. United States

Code a -

8 Unless and until I am released in wnting by an authorizedrepreseintative o! the United States Government Jnderstand
that all conditions and obligations nposed upon me by this apply durnq the time? am granted access to classif? ed
information and at all times thereafter.

Each provision of the is a court stsoold find any of the to be

:3

at; ping: of mix, rernain in list: hirer,? arid ettoct.

I rev:-riic
STANDARD FORM 311
P'e:scJ bed try
32 CFR EC. ?-2958
PE it? 03

Tu
i? 5-pi? -w





21406

13 These a-e th are cc net supersede. n9ms or created by Exccutwc Crdc' $2356. Section 7211 of 5. States Code to
6024 0! Tutlc 10. United States Code, as amended by the Mutotawwhistleblowcr Protection Act
d=scIosurc to Corg-es: by members -at the mtHar?1;j at Tttle S. States Code, as amended by ?In-
nwer Act (governmg of-Itcgahzv. waste. fraud ab.;sc or :>ubI3r t'eatt' 3' satety threats) the
Intetltgenca Man:-hes Protecmn Act of 1982 :50 US 42?. tau?: expose cmft'Jentr.13
agcr*ts,, and the statutes w?-?ct protect agamst that rcay cotnpro?tse the natronal

-:41 793. 794
Act 011950 (St -S Sectuow 763(5))

(98 952 and 1934 0. ?me I8 U-1:tcc States Code are Section the Agw-ties
The cetnttions, onltgattons ng'~ts 5anctto"IS and creatpc by

sand Execut-we Ctcer 310 hsted statutes are rncorporatcc thus Agreemcrt anc ate



have roar.? thus Agrec'nc"' curcfulty and my .1 any have been

I that He or

otn-r,e' has made avattab-0 to ma Inc Exccuttvc Order and statute?: referenced to this Agreer?cnt and Its Imoicmantmg
regutahcn (32? CFR Sectvon 2003 20; s: that may read them at thus tumc. .ft so choose


.


I 5'2? 03?

socm. SECURITK





ucewsee ca wee CHASEIJ vnovme NAVIE mac Gt NUMBER)

/4 . ric?warg.
ACCEPTANCE

WITNESS

THE EXECUTION OF THIS AGREEMENT WAS WITNESSED BY
THE UNDERSIGNED



Uri -


(354
or pnnf;



DATE
cg) 08

l.v'r
'4 I:
Inst?


til

7

4?-hm -?Jr

THE UNDERSIGNED ACCEPTED mus AGREEMENT on
BEHALF or THE UNITED sures GOVERNMENT.




Nam?; ANS Armvess

titan. .
10100 N. Loop
FT

SECURITY DEBRIEFING ACKNOWLEDGMENT

in p? .-. um otrwr ?Jan: 5rd crric-'3 to
?At twyve no that w-P

?r .if"."Itl -3-.2 "It: nnantnm UM

ulgur .-at on the? 2

Wt-' Ir,? hr: - em-ra? -smear am

-?iv :1-rt? rmzaun tn sat (Tl t. as-Fed 12.3" arr? nu? I (P-aw rtt-I; cu worc?

?Pd 1
SIGNATURE EMDLOVEE

uh-Sub. 1- -.



at wumess


5

IN: ".-tan .7 vtI':r'n attr-.c an an In?: .s?-vtnetr ?Jr:
2: 3'1 solzc trr: an: -v?-mt vac; w-?I Lt: mark? at tr.? vt'U3'3

.+.tuvr.at: that mthoruy tot your "xncuu -?4crr1:trt Number is 9397 .m 55?: (scum-. yo
whr-r -t rrecessury in tiaetbfy that y-ru hm.? I0 nducatu-r above or 2) amp-.5 gm

Woman-:u' -'tUt:atP1 'na' at you - 5 net

Mandatow tad-4': to some) 'm.'tr.1c he

--at cu :v an nt yot. an-.955 to
as NOT APPLICABLE TO PERSONNEL S25-NING THIS ACRE
STANDARD room 112 BACK (REV 1-oo;
A9C9tv1 CD

ai-






21407

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

)
)
)
)
)
)
)
)
)
)

DEFENSE REPLY TO
GOVERNMENT RESPONSE TO
DEFENSE MOTION TO DISMISS
FOR FAILURE TO STATE AN
OFFENSE: SPECIFICATIONS 13
AND 14 OF CHARGE II
DATED: 29 May 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by counsel, pursuant to applicable case law and Rule for Courts
Martial (R.C.M.) 907(b)(1)(B), requests this Court to dismiss Specifications 13 and 14 of Charge
II because the Government has failed to allege that PFC Manning’s alleged conduct exceeded
authorized access within the meaning of 18 U.S.C. Section 1030(a)(1).
ARGUMENT
2. At long last, the Government has clarified its theory of how PFC Manning allegedly exceeded
his authorized access. The Government has specified that because PFC Manning’s access to the
SIPRNET computers was governed by a purpose-based limitation or restriction – namely, that he
was “accessing a U.S. Government (USG) Information System (IS) that is provided for USGauthorized use only” – he “exceeded authorized access when he accessed those classified
government computers for an unauthorized or expressly forbidden purpose.” Government
Response to Defense Motion to Dismiss for Failure to State an Offense: Specifications 13 and 14
of Charge II [hereinafter Government Response], at 2. However, this purpose-based limitation
or restriction theory of exceeds authorized access is, for the reasons articulated in the Defense
Motion to Dismiss for Failure to State an Offense: Specifications 13 and 14 of Charge II
[hereinafter Defense Motion],1 premised on an impermissible interpretation of the phrase
“exceeds authorized access,” as that term is defined in 18 U.S.C. Section 1030(e)(6). The
Government’s arguments to the contrary are without merit.
3. The Defense agrees that the statutory text is clear and unambiguous. However, far from
supporting the Government’s expansive interpretation of the term “exceeds authorized access,”
the clear and unambiguous statutory definition of the term supports the Defense interpretation of
the phrase: a person exceeds authorized access only when he accesses a computer with
authorization and obtains or alters information on the computer that he is not entitled to obtain or
1

All citations to the Defense Motion are to the page number, not to the numbered paragraph.

21408

alter. Indeed, the Government has not cited any case finding that the clear and unambiguous
meaning of the phrase supports the Government’s expansive interpretation.
4. To the extent this Court concludes that the language of Section 1030(e)(6) is ambiguous, the
legislative history of Section 1030(e)(6) and of Section 1030 as a whole supports the Defense’s
interpretation of “exceeds authorized access.” The Government’s assertion to the contrary is
incorrect.
5. Moreover, the case law interpreting the phrase “exceeds authorized access” overwhelmingly
supports the limited interpretation of that phrase advocated by the Defense. The cases relied on
by the Government are poorly reasoned and incorrectly decided. The Government’s attempt to
distinguish this case from the many cases adopting the limited interpretation is entirely meritless.
6. Additionally, the Government is incorrect that the rule of lenity is inapplicable in this case.
Even assuming, as the Government asserts, that application of the rule of lenity requires a
“grievous ambiguity,” that standard is clearly met here.
7. Finally, the Government fundamentally miscomprehends the Defense’s discussion of
vagueness. The Government erroneously focuses on PFC Manning’s standing to assert a voidfor-vagueness challenge when no such challenge was raised by the Defense Motion. The
Government’s misunderstanding must not distract this Court from addressing the Defense’s
actual argument that, as a matter of statutory construction, the fact that the Government’s
interpretation would render one provision of Section 1030 unconstitutionally vague provides yet
another reason why the Government’s interpretation should be rejected and the Defense’s
interpretation should be adopted.2
A.

The Clear and Unambiguous Language of 18 U.S.C. Section 1030 Supports the
Interpretation Advocated by the Defense

8. In its Response, the Government asserts that “the plain language of the statutory text clearly
supports the Government’s theory or interpretation of ‘exceeds authorized access.’” Government
Response, at 3. The Government does not cite a single case for this unequivocal assertion.
9. Additionally, the Government’s desperate attempt to pin its interpretation on one word in the
statutory definition – “so” – is without merit. That argument received full consideration by the
en banc Ninth Circuit, at both oral argument and in its written opinion in United States v. Nosal
(Nosal III), 676 F.3d 854 (9th Cir. 2012) (en banc), and was squarely rejected. The principal
cases upon which the Government relies, United States v. John, 597 F.3d 263 (5th Cir. 2010),
and United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010), do not provide any support for
the Government’s heavy reliance on “so.” In short, the only case to accept the Government’s
reliance on that one word was the panel majority in United States v. Nosal (Nosal I), 642 F.3d
2

The Government offers no response to the Defense argument that overwhelming academic commentary supports
the Defense’s interpretation of the phrase “exceeds authorized access.” Thus, the Government apparently does not
dispute that, should this Court rule in favor of the Government on this issue, it would be ruling contrary to the
established view of several computer crime scholars, including Professor Orin Kerr.

2

21409

781 (9th Cir. 2011), and that decision was promptly rejected by the en banc Ninth Circuit in
Nosal III. Moreover, the Defense’s interpretation of the phrase “exceeds authorized access” does
not, as the Government asserts, read the word “so” out of the statute. Rather, it is the
Government’s interpretation that requires the Court to rewrite the clear and unambiguous text of
Section 1030(e)(6) by unjustifiably ascribing an expansive meaning to the simple word “so.”
10. Finally, the Government simply ignores the Defense argument that the language of the
specifications in this case further demonstrate that the language of Section 1030(e)(6) is clear
and unambiguous. The Government’s inability to effectively respond to this argument is yet
additional evidence that the Government’s argument regarding the clear and unambiguous
language is meritless.
11. Therefore, this Court should determine that the clear and unambiguous language of Section
1030(e)(6) supports the Defense’s proposed interpretation of the phrase “exceeds authorized
access.”
12. As an initial matter, the Government does not cite a single case for its assertion that the clear
and unambiguous language of Section 1030(e)(6)’s definition of the phrase “exceeds authorized
access” supports its interpretation. John and Rodriguez, the two cases upon which the
Government principally relies, offer no such support, as neither case referred to Section 1030 as
“clear” or “unambiguous.” The Government’s lack of citation speaks volumes about the
weakness of its position. In its Motion, the Defense cited numerous cases supporting its
contention that the clear and unambiguous language of Section 1030(e)(6) mandates the more
limited interpretation of “exceeds authorized access:” a person exceeds authorized access only
when he accesses a computer with authorization and obtains or alters information on the
computer that he is not entitled to obtain or alter. See, e.g., United States v. Zhang, No. CR-0500812 RMW, 2010 WL 4807098, at *3 (N.D. Cal. Nov. 19, 2010) (“Nonetheless, a plain
reading of [S]ection 1030(e)(6)’s definition . . . compels a different conclusion. An individual
‘exceeds authorized access’ if he or she has permission to access a portion of the computer
system but uses that access to ‘obtain or alter information in the computer that [he or she] is not
entitled so to obtain or alter.’ As the court in Norsal [sic] explained, ‘there is simply no way to
read that definition to incorporate policies governing use of information unless the word alter is
interpreted to mean misappropriate.’” (citations omitted)); United States v. Aleynikov, 737 F.
Supp. 2d 173, 192 (S.D.N.Y. 2010) (“The Government’s theory that the CFAA is violated
whenever an individual uses information on a computer in a manner contrary to the information
owner’s interest would therefore require a departure from the plain meaning of the statutory
text.”); Orbit One Commc’ns, Inc. v. Numerex Corp., 692 F. Supp. 2d 373, 385 (S.D.N.Y. 2010)
(“The plain language of [Section 1030] supports a narrow reading. [Section 1030] expressly
prohibits improper ‘access’ of computer information. It does not prohibit misuse or
misappropriation.”); Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962, 965 (D. Ariz. 2008)
(“[T]he plain language of [Section] 1030(a)(2), (4), and (5)(A)(iii) target ‘the unauthorized
procurement or alteration of information, not its misuse or misappropriation.’”). In response, the
Government asks this Court to hold that the clear and unambiguous meaning of Section
1030(e)(6) supports the expansive interpretation of the phrase, and it offers this Court no
authority to support such an unwarranted step.

3

21410

13. Even more troubling is the Government’s “so” argument. 3 The Government explains that,
in its view, “so” has the following meaning: “‘So’ means ‘[i]n the state or manner indicated or
expressed.’ According to the Government, the presence of ‘so’ after ‘entitled’ in § 1030(e)(6)
makes the definition unambiguous – an individual ‘exceeds authorized access’ when he or she
obtains or alters information that he or she is not entitled to obtain or alter in those
circumstances.” Government Response, at 4 (citation omitted) (emphasis and alteration in
original).
14. This interpretation of “so” was roundly rejected by the en banc Ninth Circuit in Nosal III.
See 676 F.3d at 857-58. In the Nosal III oral argument in December 2011, the government
argued that the use of the word “so” was critically important in the drafting and interpretation of
the statute. Indeed, the government seemed to suggest that the entire interpretation of Section
1030 hinged on this two-letter word. The judges did not appear impressed with the
government’s argument, and they harped on what they saw as the government’s strained
interpretation of the word “so.” At various points early in the argument, the judges expressed
their concern:
I guess I’m not sure why that [interpretation of ‘so’] is necessary . . . it’s possible.
Why can’t you read the ‘so’ as applying to physical restrictions?
...
But that’s not necessarily the case . . . where actually you do have physical access,
you can do it but you’re just not allowed to go there. You’re not required to do
any hacking, it’s simply they say you are not authorized to go into that area. Why
isn’t that [interpretation of ‘so’] possible?
...
3

The Government’s argument in this respect is essentially a cut-and-paste of the panel majority’s decision in Nosal
I:
The government contends that Nosal's interpretation of “exceeds authorized access” would render
superfluous the word “so” in the statutory definition. We agree. “So” in this context means “in a
manner or way that is indicated or suggested.” Webster's Third New Int'l Dictionary 2159 (Philip
Babcock Gove, ed.2002). Thus, an employee exceeds authorized access under § 1030(e)(6) when
the employee uses that authorized access “to obtain or alter information in the computer that the
accesser is not entitled [in that manner] to obtain or alter.” We decline to render meaningless a
word duly enacted by Congress. See Corley v. United States, 556 U.S. 303, 129 S.Ct. 1558, 1566,
173 L.Ed.2d 443 (2009) (“[O]ne of the most basic interpretive canons [is] that a statute should be
construed so that effect is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant.” (internal quotation marks and alteration omitted)). Because the
statute refers to an accesser who is not entitled to access information in a certain manner, whether
someone has exceeded authorized access must be defined by those access limitations. The plain
language of the statute supports the government's interpretation.”

Nosal I, 642 F.3d at 785-86. This argument was emphatically rejected by the overwhelming majority of the en banc
Ninth Circuit in Nosal III. See 676 F.3d at 857-58.

4

21411

But if you’re not permitted . . . and you do it anyway . . . you’re not allowed to go
there. And if you do, you’re violating . . . the restrictions in which case, you are
doing it . . . . I don’t know why that isn’t just . . . . I don’t know why that doesn’t
give effect to the word ‘so’ just as you would if you were accessing it with an
improper motive.
...
But that’s not the question. The question is not whether you could do better job
of drafting, the question is whether this is a necessary meaning [of ‘so’] . . . . Now
the fact that it could have been better drafted . . . I go back and read some of my
opinions from 20 years ago and I have a bunch of words I wished I’d left out.
Every time you go back and redraft something you say, “oh god what was I
thinking of.” But unless it’s necessary [to interpret ‘so’ as you suggest], then it
seems to me that the answer you have to give is “That’s a possible interpretation.”
Once we’re in the world of possible interpretation, aren’t we then required by the
rule of lenity to adopt the one that sweeps in the least number of people?
Oral Argument at 5:29, 6:24, 7:46, 8:41, United States v. Nosal, 676 F.3d 854 (No. 10-10038),
available at http://www.ca9.uscourts.gov/media/view_video_subpage.php?pk_vid=0000006176.
This skepticism fermented into outright rejection in the en banc majority opinion:
The government's interpretation would transform the CFAA from an anti-hacking
statute into an expansive misappropriation statute. This places a great deal of
weight on a two-letter word that is essentially a conjunction. If Congress meant
to expand the scope of criminal liability to everyone who uses a computer in
violation of computer use restrictions – which may well include everyone who
uses a computer – we would expect it to use language better suited to that
purpose.
676 F.3d at 857.
15. Moreover, John and Rodriguez do not support the Government’s heavy reliance on “so.”
For one thing, neither case gave any indication that the word “so” was critical to the holding.
For another thing, at least one of these courts – the Rodriguez Court – mistakenly omitted the
word “so” from its quotation of Section 1030(e)(6): “The Act defines the phrase ‘exceeds
authorized access’ as ‘to access a computer with authorization and to use such access to obtain or
alter information in the computer that the accesser is not entitled to obtain or alter.’” 628 F.3d at
1263 (quoting 18 U.S.C. § 1030(e)(6)) (mistakenly omitting word “so” between “entitled” and
“to”); see 18 U.S.C. § 1030(e)(6). Thus, not only did both of the appellate cases upon which the
Government principally relies not place any emphasis whatsoever on the word “so,” one of those
cases actually omitted this supposedly critical word from its quotation of the statutory definition.
This provides further support for the conclusion that the Government’s desperate reliance on
“so” is untenable.

5

21412

16. Of the cases cited by the Government, only the Ninth Circuit panel majority in Nosal I
bought the Government’s “so” argument. See 642 F.3d at 785-86. That decision was promptly
rejected by an overwhelming majority of the en banc Nosal III Court. See 676 F.3d at 857.
What the Government’s argument in this case comes down to, then, is a plea for this Court to
ignore the recent, directly on point decision of an en banc United States Court of Appeals and
strike out on its own, resurrecting a meritless argument that the Nosal III Court has persuasively
laid to rest. This Court should reject this hopeless plea.
17. Additionally, contrary to the Government’s assertion, the interpretation of “exceeds
authorized access” offered by the Defense does not render the word “so” superfluous. In its
Response, the Government asserts that “[a]lthough the defense does not address the issue, the
only conclusion that can be reached is that they consider the word ‘so’ to be superfluous.”
Government Response, at 4. Even a cursory reading of the Defense Motion reveals that this
statement is flatly incorrect in both respects; the Defense did address the issue, and the Defense
offered an interpretation of the phrase “exceeds authorized access” that did not render “so”
superfluous. The Defense continues to assert, as it did in the Defense Motion, that “Congress
could just as well have included ‘so’ as a connector or for emphasis.” Nosal III, 676 F.3d at 858;
see Defense Motion, at 13 (quoting this language). This interpretation of “exceeds authorized
access” does not render “so” superfluous, and it has the added benefit, conspicuously absent
from the Government’s interpretation, of not relying on a two-letter word to “transform the
CFAA from an anti-hacking statute into an expansive misappropriation statute.” Nosal III, 676
F.3d at 857.
18. Indeed, it is the Government’s interpretation of “so,” not the Defense’s interpretation, that
requires this Court to rewrite the clear and unambiguous language of Section 1030(e)(6). By the
Government’s own admission, for the Government to “prevail” this Court would need to
interpret Section 1030(e)(6) to read “an individual ‘exceeds authorized access’ when he or she
obtains or alters information that he or she is not entitled to obtain or alter in those
circumstances.” Government Response, at 4 (emphasis in original). This Court should follow
the wise lead of other courts and reject the request that it pick up a legislator’s pen to rewrite this
statute. See, e.g., Walsh Bishop Assocs., Inc. v. O’Brien, No. 11-2673 (DSD/AJB), 2012 WL
669069, at *3 (D. Minn. Feb. 28, 2012) (“The language of [Section] 1030(a)(2) does not support
the interpretation of Walsh Bishop. Instead, Walsh Bishop’s interpretation requires the court to
rewrite the statute to replace the phrase ‘to use such access to obtain or alter information that the
accesser is not entitled so to obtain or alter’ with ‘to use such information in a manner that the
accesser is not entitled so to use.’ But subsection (a)(2) is not based on use of information; it
concerns access. Indeed, the language of subsection (a)(1) shows that Congress knows how to
target the use of information when it intends to do so.”). Therefore, the Government’s “so”
argument should be rejected.
19. In addition to the lack of case law in support of the Government’s “clear and unambiguous”
argument and its meritless “so” argument, the Government’s contention that the clear and
unambiguous language of Section 1030 supports its interpretation of the term “exceeds
authorized access” is flawed for another reason: it fails to address the Defense’s argument that
the specifications in this case demonstrate that Section 1030’s clear and unambiguous text favors
the limited interpretation advocated by the Defense. In the Section 1030(a)(1) specifications, the
6

21413

Government alleges, in pertinent part, that PFC Manning “knowingly exceeded authorized
access on a Secret Internet Protocol Router Network computer, and by means of such conduct
having obtained information . . . .” Charge Sheet, Specification 13 (emphases supplied). It is
clear from this specification that “exceeding authorized access” is different from, and a predicate
to, “obtaining information.”
20. However, if the term “exceeded authorized access” is interpreted as the Government
suggests, the charge would be redundant and nonsensical. It would allege, in pertinent part, that
PFC Manning “knowingly [“accessed that computer . . . to obtain these documents,” see Oral
Argument, Unauthenticated Transcript, 23 February 2012, pp. 71-72] on a Secret Internet
Protocol Router Network computer, and by means of such conduct having obtained information .
. . .” Charge Sheet, Specification 13 (alteration supplied). Thus read, the charge does not make
sense since “exceeding authorized access” is conflated with obtaining documents for an improper
purpose, which is the next part of the specification (“by means of such conduct having obtained
information”). Thus, the exceeding authorized access cannot be the same as “obtain[ing]
information” or the specification falls apart. This provides further evidence that the plain
meaning of the statute is clear: Section 1030 asks only whether the accused had authorized
access to the computer and information in question. It does not contemplate an inquiry into what
an accused otherwise does with properly accessed information. The Government’s inability to
effectively respond to this argument is yet additional evidence that the Government’s argument
regarding the clear and unambiguous language is meritless.
21. In the end, Section 1030(a)(1) prohibits “exceeding authorized access,” not “exceeding
authorized use.” The Government’s interpretation, in conflating the concepts of “access” and
“use,” impermissibly attempts to punish PFC Manning for exceeding his authorized use. This
cannot be done. See Lewis-Burke Assocs. LLC v. Widder, 725 F. Supp. 2d 187, 194 (D.D.C.
2010) (“‘Exceeds authorized access’ should not be confused with exceeds authorized use.”
(internal quotations omitted)); Bell Aerospace Servs, Inc. v. U.S. Aero Services, Inc., 690 F.
Supp. 2d 1267, 1272 (M.D. Ala. 2010) (“‘Exceeds authorized access’ should not be confused
with exceeds authorized use.”).
22. For these reasons and those stated in the Defense Motion, the clear and unambiguous
language of the definition of “exceeds authorized access” supports the limited interpretation of
that phrase: a person exceeds authorized access only when he accesses a computer with
authorization and obtains or alters information on the computer that he is not entitled to obtain or
alter.
B.

The Legislative History of 18 U.S.C. Section 1030 Supports the Interpretation
Advocated by the Defense

23. To the extent this Court determines that the Government’s proposed interpretation of the
phrase “exceeds authorized access” is a plausible one, and thus concludes that the language of
Section 1030(e)(6) is ambiguous, the legislative history of Section 1030(e)(6) and of Section
1030 as a whole supports the Defense’s interpretation of “exceeds authorized access.” The
Government is incorrect that the 1986 Amendments to Section 1030 support its interpretation;
7

21414

indeed, it does not cite even one case stating that the legislative history lends itself to an
expansive reading of “exceeds authorized access.” By contrast, many of the cases cited by the
Defense have concluded that the legislative history supports a limited interpretation of “exceeds
authorized access” and have rejected the expansive interpretation advocated by the Government.
24. The Ninth Circuit in Nosal III, for example, explained that Congress’s replacement of the
phrase “having accessed a computer with authorization, uses the opportunity such access
provides for purposes to which such authorization does not extend” with the phrase “exceeds
authorized access” supported the limited interpretation of that phrase that it adopted, and further
undermined the Government’s proposed interpretation. 676 F.3d at 858 n.5. Along similar lines,
the Alyenikov Court explained:
Notably, in 1986, Congress amended the CFAA to substitute the phrase “exceeds
authorized access” for the phrase “or having accessed a computer with
authorization, uses the opportunity such access provides for purposes to which
such authorization does not extend.” See S.Rep. No. 99–432, at 9, as reprinted in
1986 U.S.C.C.A.N. 2479, 2486. By enacting this amendment, and providing an
express definition for “exceeds authorized access,” Congress’s intent was to
“eliminate coverage for authorized access that aims at ‘purposes to which such
authorization does not extend,’” thereby “remov[ing] from the sweep of the
statute one of the murkier grounds of liability, under which a [person’s] access to
computerized data might be legitimate in some circumstances, but criminal in
other (not clearly distinguishable) circumstances that might be held to exceed his
authorization.” Id. at 21, 1986 U.S.C.C.A.N. at 2494–95.
737 F. Supp. 2d at 192 n.23. Several other courts have echoed similar sentiments. See, e.g.,
Walsh Bishop Assocs., Inc., 2012 WL 669069, at *3 (“Further, the legislative purpose and history
supports the plain meaning of the statute. Congress enacted [Section 1030] to deter ‘the criminal
element from abusing computer technology in future frauds.’ H.R. Rep. No. 98–894, at 4
(1984), reprinted in 1984 U.S.C.C.A.N. 3689, 3690. As originally enacted, [Section 1030]
applied to a person who (1) knowingly accessed without authorization or (2) ‘having accessed a
computer with authorization, uses the opportunity such access provides for purposes to which
such authorization does not extend.’ Pub. L. No. 98–473, § 2102, 98 Stat. 2190, 2190–91
(1984). Congress amended the statute by replacing the latter means of access with the phrase
‘exceeds authorized access.’ See Pub. L. No. 99–474, § 2, 100 Stat. 1213, 1213 (1986). The
stated reason for the amendment was to ‘eliminate coverage for authorized access that aims at
purposes to which such authorization does not extend.’ See S. Rep. No. 99–432, at 21 (1986),
reprinted in 1986 U.S.C.C.A.N. 2479, 2495 (internal quotation marks omitted). As a result,
Congress amended the statute to remove use as a basis for exceeding authorization.”); Condux
Int'l, Inc. v. Haugum, No. 08-4824 ADM/JSM, 2008 WL 5244818, at *5 (D. Minn. Dec. 15,
2008) (“Had Congress [under Section 1030] intended to target how a person makes use of
information, it would have explicitly provided language to that effect.”); Shamrock Foods, 535
F. Supp. 2d at 966 (“[T]he legislative history confirms that [Section 1030] was intended to
prohibit electronic trespassing, not the subsequent use or misuse of information.”); Int’l Ass’n of
Machinists & Aerospace Workers v. Werner-Matsuda, 390 F. Supp. 2d 479, 499 n.12 (D. Md.
2005) (explaining the purpose of the change in legislative language).
8

21415

25. Thus, the Government’s interpretation of the legislative history has been soundly rejected by
both appellate and trial courts, in both the civil and criminal context. It should be likewise
rejected by this Court.
26. Accordingly, for these reasons and those stated in the Defense Motion, the legislative history
of Section 1030 provides further support for the interpretation of “exceeds authorized access”
advocated by the Defense and further undermines the interpretation advocated by the
Government.
C.

Case Law Supports the Interpretation Advocated by the Defense

27. The case law interpreting the phrase “exceeds authorized access” overwhelmingly supports
the limited interpretation of that phrase advanced by the Defense. The cases relied on by the
Government are poorly reasoned and, not surprisingly, incorrectly decided. Moreover, the
Government’s vain attempt to distinguish this case from the litany of cases adopting the limited
interpretation is entirely without merit. John and Rodriguez, upon which the Government places
principal reliance, are emblematic of the flawed reasoning that adopts the expansive
interpretation of “exceeds authorized access.” Neither the John Court nor the Rodriguez Court
offered any explanation – much less any plausible explanation – as to how its interpretation of
“exceeds authorized access” could be squared with the plain meaning of Section 1030. As the
court stated in Aleynikov:
[These cases] identify no statutory language that supports interpreting [Section
1030] to reach misuse or misappropriation of information that is lawfully
accessed. Instead, they improperly infer that “authorization” is automatically
terminated where an individual “exceed[s] the purposes for which access is
‘authorized.’” But “the definition of ‘exceeds authorized access’ in [Section]
1030(e)(6) indicates that Congress did not intend to include such an implicit
limitation in the word ‘authorization.’”
737 F. Supp. 2d at 193 (emphasis supplied) (citations omitted).
28. The en banc Nosal Court further pointed out that the Rodriguez and John decisions were the
product of the courts’ failure to consider the broader implications of their holdings. The Nosal
III Court explained that:
These courts looked only at the culpable behavior of the defendants before them,
and failed to consider the effect on millions of ordinary citizens caused by the
statute’s unitary definition of “exceeds authorized access.” They therefore failed
to apply the long-standing principle that we must construe ambiguous criminal
statutes narrowly so as to avoid “making criminal law in Congress’s stead.”
676 F.3d at 862-63 (quoting United States v. Santos, 553 U.S. 507, 514 (2008) (plurality
opinion)). In short, the Defense has used far more ink in criticizing John and Rodriguez than
9

21416

those courts used in their “analysis” of the phrase “exceeds authorized access.” The perfunctory
discussion and short-sighted reasoning employed by the John and Rodriguez Courts should leave
any court highly skeptical of the Government’s expansive interpretation.
29. The only other two criminal cases identified by the Government – United States v. Salum,
257 F. App’x 225 (11th Cir. 2007) and United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997)
– are even worse. These cases offer no analysis and simply state in conclusory fashion that the
defendant exceeded his authorized access.
30. Understandably concerned with the dearth of quality case law supporting its position, the
Government attempts to distinguish this case from the multiple authorities supporting the
Defense’s position. The Government asserts that the cases cited by the Defense, other than
Nosal III, “did not consider . . . explicit purpose-based restrictions or limitations on computer
access.” Government Response, at 8. This argument is meritless.
31. To the extent the Government is attempting to draw a distinction between “explicit purposebased restrictions or limitations” and implicit purpose-based restrictions or limitations – and it is
not at all clear what the Government means when it says “explicit” – such a distinction finds no
support in Section 1030, its legislative history, or the case law interpreting it. The expansive
interpretation defines exceeding authorized access in terms of the purposes for which the
computer is accessed or the purposes for which the information is obtained. Under this theory,
the purpose for which the computer is accessed or the information is obtained controls whether
access has been exceeded. In the typical case, a defendant uses a computer to obtain information
for non-business purposes, and defendant thereby exceeds authorized access. There is no basis
in law or logic for distinguishing cases where there is a contractual or other “explicit” restriction
on computer use for non-business purposes from cases where there is some type of agency-based
restriction on computer use for non-business purposes. In either type of case, the purpose of the
user in accessing the computer or obtaining the information controls whether the user has
“exceeded authorized access.”
32. In any event, the Government is simply wrong that the cases cited by the Defense do not
involve explicit purpose-based restrictions. A simple examination of each of the cases
“distinguished” by the Government reveals that each involved an explicit purpose-based
restriction on the defendant’s use of the computer or the information. See Walsh Bishop Assocs.,
Inc., 2012 WL 669069, at *4 n.4 (explicit purpose-based restriction: “the [computer-use] policy
defines inappropriate use as: ‘Revealing or publicizing proprietary, confidential or private
information . . . Sending (upload) or receiving (download) copyrighted materials, trade secrets,
proprietary information or similar materials without prior authorization . . . making unauthorized
use of the intellectual property or proprietary data of ours or others.’”); Xcedex, Inc., v. VMware,
Inc., No. 10-3589 (PJS/JJK), 2011 WL 2600688, at *4 (D. Minn. June 8, 2011) (explicit
contractual purpose-based restriction: “According to the Amended Complaint, the 2009 Work
Order ‘confirmed that Xcedex [plaintiff] would deliver authorization to access and use its
X_Factor software as a service’ but limited such access and use to ‘4,000 devices and
licenses.’”); Aleynikov, 737 F. Supp. 2d at 175 (explicit contractual purpose-based restriction:
“Goldman [the employer] also limits access to the Trading System’s source code only to
Goldman employees who have reason to access that source code, such as the programmers
10

21417

working on the Trading System.”); Int’l Ass’n of Machinists & Aerospace Workers, 390 F. Supp.
2d 479, 498 (explicit contractual purpose-based restriction: “Defendant Werner-Matsuda signed
a Registration Agreement stipulating not to use the information provided through VL lodge for
any purpose that would be contrary to the policies and procedures established by the [IAM]
Constitution.”). The same can be said for the other cases cited in the Defense motion. In short,
the purpose-based restrictions in the cases cited in the Defense Motion are no different in kind
from the purpose-based restriction that the Government contends existed in this case.
33. More importantly, the Government’s confusion on this point should not draw attention away
from the ultimate inquiry. Any type of purpose-based restriction, whether explicit or implicit,
focuses on the defendant’s use of the computer or information (e.g. is the defendant using the
computer or obtaining the information for non-business purposes?). Section 1030(e)(6),
however, makes clear that the inquiry should be directed to the user’s access to that computer
and information (e.g. is the user accessing information to which his authorization does not
extend?). See Lewis-Burke Assocs. LLC, 725 F. Supp. 2d at 194 (“‘Exceeds authorized access’
should not be confused with exceeds authorized use.” (internal quotations omitted)); Bell
Aerospace Servs, Inc., 690 F. Supp. 2d at 1272 (“‘Exceeds authorized access’ should not be
confused with exceeds authorized use.”). Therefore, any purpose-based restriction theory should
be rejected as untenable.
34. Accordingly, for these reasons and those stated in the Defense Motion, the overwhelming
majority of the persuasive case law on the interpretation of the phrase “exceeds authorized
access” supports the interpretation advanced by the Defense: a person exceeds authorized access
only when he accesses a computer with authorization and obtains or alters information on the
computer that he is not entitled to obtain or alter.
D.

The Rule of Lenity Requires That “Exceeds Authorized Access” Be Read in Its
Narrow Sense

35. The Defense continues to maintain that the clear and unambiguous language of Section 1030
supports the limited interpretation of “exceeds authorized access.” Only if this Court determines
that the Government’s expansive interpretation is plausible, and that Section 1030 is therefore
ambiguous, must this Court consider the rule of lenity. If this Court does determine that Section
1030’s definition of “exceeding authorized access” is ambiguous, the rule of lenity is one of the
many factors that, along with Section 1030’s legislative history, well-established principles of
statutory construction, case law interpreting the phrase “exceeding authorized access” and the
academic commentary on Section 1030, supports the conclusion that the Defense’s limited
interpretation is more appropriate than the Government’s. The Government’s formulaic
invocation of a “grievous ambiguity” standard, with no analysis of the ambiguity that would be
present in this case if both the limited and expansive interpretations of “exceeding authorized
access” are permissible, provides the Government with no relief. The ambiguity that results if
both the Defense’s and the Government’s interpretations are plausible is surely grievous enough
to warrant application of the rule of lenity.

11

21418

36. At the outset, it should be noted that the Government has cited no case from a military court
that applies the “grievous ambiguity” standard for the rule of lenity. See Government Response,
at 8-9. The Defense’s research revealed no military decision even using the words “grievous”
and “ambiguity,” or some variant of those terms, in the same sentence. Moreover, a careful look
at Supreme Court precedent suggests that the Court does not actually use a “grievous” ambiguity
standard and that the expression is only referred to in passing.4 Nonetheless, even assuming,
arguendo, that the “grievous ambiguity” standard articulated in the Government’s Response is
the controlling standard for the rule of lenity, the rule of lenity should still be applied in this case
if the Court determines that both interpretations of “exceeds authorized access” are plausible.
37. Under Barber v. Thomas, 130 S. Ct. 2499 (2010) and Muscarello v. United States, 524 U.S.
125 (1998), the two cases cited by the Government for the “grievous ambiguity” standard, see
Government Response, at 8-9, a “grievous ambiguity” exists where “the Court must simply
guess as to what Congress intended.” Barber, 130 S. Ct. at 2508-09 (internal quotations
omitted); see Muscarello, 524 U.S. at 138-39.
38. In its Response, the Government has simply mouthed this standard and asserted, in
conclusory fashion, that no grievous ambiguity exists. See Government Response, at 8-9. Upon
closer inspection, however, it becomes clear that if this Court concludes that both interpretations
of “exceeds authorized access” that have been advanced by the parties are permissible, Section
1030 does contain the requisite “grievous ambiguity.”
39. The Supreme Court’s decision in Muscarello provides an apt example of why this is so. In
Muscarello, the issue was “whether the phrase ‘carries a firearm’ [used in 18 U.S.C. Section
924(c)] is limited to the carrying of firearms on the person.” 524 U.S. at 126. In resolving this
issue, the Court concluded that the term “carry” had an ordinary meaning and that Congress
intended for that ordinary meaning to govern the phrase “carries a firearm.” Id. at 127-131. This
ordinary meaning supported the Government’s interpretation and undermined the defendants’
interpretation. See id. Additionally, the Court noted that the question had not perplexed the
courts of appeals; instead, those courts were in unanimous agreement that the ordinary meaning
of the term “carry” applied to Section 924(c). Id. at 131-32. These factors led the Court to
conclude that its decision was “based on much more than a ‘guess as to what Congress intended,’
and [that] there [was] no ‘grievous ambiguity[.]’” Id. at 139.
40. This case, by contrast, possesses none of the factors identified by the Court in Muscarello.
For one thing, to the extent there is a commonly understood, ordinary meaning of “exceeds
authorized access” the Defense submits that it favors the limited interpretation. Certainly the
Government cannot claim that its expansive interpretation, which conflates the concepts of
“access” and “use,” see Argument, Part A, supra, is supported by any commonly understood,
ordinary meaning of “exceeds authorized access,” if such an ordinary meaning exists. Thus,
4

In a search of Supreme Court case law, there were 7 cases that referred to “grievous ambiguity” in reference to the
rule of lenity. Most of these 7 cases simply cross-referenced each other. By contrast, there were 72 Supreme Court
cases that did not use the grievous ambiguity standard when applying the rule of lenity. These cases articulated the
doctrine as some variation of the following: “The rule of lenity requires ambiguous criminal laws to be interpreted in
favor of the defendants subjected to them.” See United States v. Santos, 553 U.S. 507, 514 (2008) (plurality
opinion). Moreover, as discussed, military courts have not adopted a “grievous ambiguity” standard.

12

21419

unlike in Muscarello, the Government’s interpretation is not supported by the ordinary meaning
of the phrase under examination. Also, far from being uniform on this issue, most courts of
appeals have not addressed the issue of the proper interpretation of the phrase “exceeds
authorized access” under Section 1030. The few that have examined the issue have come to
widely divergent results. Compare Nosal III, 676 F.3d at 863-64 (adopting limited
interpretation), with John, 597 F.3d 263 (adopting expansive interpretation), and Rodriguez, 628
F.3d 1258 (same); see also Ajuba Intern., L.L.C. v. Saharia, No. 11-12936, 2012 WL 1672713,
at *10 (E.D. Mich. May 14, 2012) (“The parties’ dispute reflects a nationwide split of authority
concerning the proper interpretation of the terms ‘without authorization’ and ‘exceeds authorized
access.’). Therefore, if both the expansive interpretation and the limited interpretation of
“exceeds authorized access” are permissible then, with a circuit split and no ordinary meaning
supporting the Government’s interpretation, courts are left to simply venture a guess as to what
Congress intended the phrase to mean. Thus, the requisite “grievous ambiguity” exists.
41. Moreover, the difference between the conduct that is punishable under the two
interpretations of “exceeding authorized access” is hardly academic. As discussed elsewhere,
see Defense Motion, at 21-24; see also Argument Part E, infra, a staggering amount of conduct
is punishable under the expansive interpretation that would not be punishable under the limited
interpretation. This wide gulf between the conduct that is punishable under the varying
interpretations is even further evidence of the “grievous ambiguity” that exists.
42. Indeed, this was precisely the concern that led the Nosal III Court to rely, at least in part, on
the rule of lenity in reaching its conclusion. The Nosal III Court explained that, given the wide
range of conduct made punishable under the Government’s interpretation of “exceeds authorized
access,” the rule of lenity should be invoked:
In United States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788
(1988), the Supreme Court refused to adopt the government's broad interpretation
of a statute because it would “criminalize a broad range of day-to-day activity.”
Id. at 949, 108 S.Ct. 2751. Applying the rule of lenity, the Court warned that the
broader statutory interpretation would “delegate to prosecutors and juries the
inherently legislative task of determining what type of . . . activities are so
morally reprehensible that they should be punished as crimes” and would “subject
individuals to the risk of arbitrary or discriminatory prosecution and conviction.”
Id. By giving that much power to prosecutors, we're inviting discriminatory and
arbitrary enforcement.
We remain unpersuaded by the decisions of our sister circuits that interpret the
CFAA broadly to cover violations of corporate computer use restrictions or
violations of a duty of loyalty. See United States v. Rodriguez, 628 F.3d 1258
(11th Cir.2010); United States v. John, 597 F.3d 263 (5th Cir.2010); Int'l Airport
Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir.2006). These courts looked only at the
culpable behavior of the defendants before them, and failed to consider the effect
on millions of ordinary citizens caused by the statute's unitary definition of
“exceeds authorized access.” They therefore failed to apply the long-standing
principle that we must construe ambiguous criminal statutes narrowly so as to
13

21420

avoid “making criminal law in Congress's stead.” United States v. Santos, 553
U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008).
676 F.3d at 862-63.
43. Therefore, for these reasons and those articulated in the Defense Motion, this Court should,
if it determines that Section 1030(e)(6) is ambiguous, apply the rule of lenity and adopt the
limited interpretation of “exceeds authorized access” advocated by the Defense.
E.

The Government Profoundly Misunderstands the Defense’s Vagueness Discussion

44. Of all the meritless arguments made in the Government’s Response, the most glaring is the
Government’s response to the Defense’s vagueness discussion. Whether it honestly
misunderstood the Defense’s argument or attempted to use its void-for-vagueness response as a
red herring, the Government mistakenly focuses on PFC Manning’s standing to make a void-forvagueness claim. In so doing, the Government offers no response to the Defense’s real argument
concerning the vagueness of one provision of Section 1030: because the interpretation of
“exceeds authorized access” chosen by a court applies to all provisions of Section 1030 in which
that phrase is used and because the Government’s expansive interpretation would render one of
those provisions unconstitutionally vague, as a matter of statutory construction, this Court must
adopt the narrower interpretation to save Section 1030’s constitutionality.
45. In the event that the Defense Motion was at all unclear on this point, the Defense now
reiterates that the vagueness section of its Motion, see Defense Motion, at 21-24, was not making
a void-for-vagueness challenge to Section 1030(a)(1), or any other subsection of Section 1030,
on PFC Manning’s behalf. Rather, the Defense was merely illustrating the vagueness problems
that the Government’s interpretation would pose for one provision of Section 1030. And since
the interpretation of “exceeds authorized access” chosen by a court in any Section 1030
prosecution must apply to all provisions of Section 1030 using that phrase, the Court must, as a
matter of statutory construction, consider the vagueness issues the Government’s interpretation
poses in selecting the proper interpretation of the phrase. When the Defense’s argument is
viewed in this appropriate light, the Government’s discussion of which provisions of Section
1030 PFC Manning does and does not have standing to challenge on vagueness grounds is
nonresponsive to the Defense’s argument and entirely beside the point.
46. In the course of discussing PFC Manning’s standing to raise a vagueness challenge, the
Government asserts the following: “An interpretation of a phrase under § 1030(a)(1) that may
lead to absurd results under another provision of § 1030 is irrelevant to the issues before this
Court.” Government Response, at 9. This statement could not be further from the truth.
47. It is a bedrock principle of statutory construction that “identical words and phrases within
the same statute should normally be given the same meaning.” Powerex Corp. v. Reliant Energy
Servs., Inc., 551 U.S. 224, 232 (2007); see Nosal III, 676 F.3d at 859 (quoting this language).
This principle makes manifest that the interpretation given to “exceeds authorized access” under
any provision of Section 1030 must also be given to all other provisions of Section 1030 where
14

21421

this phrase appears. See Nosal III, 676 F.3d at 859. Additionally, the Government has helpfully
cited Corley v. United States, 556 U.S. 303 (2009), a case which supports the Defense’s position.
In Corley, the Court discussed “one of the most basic interpretative canons, that ‘[a] statute
should be construed so that effect is given to all its provisions, so that no part will be inoperative
or superfluous, void or insignificant.’” 556 U.S. at 314 (quoting Hibbs v. Winn, 542 U.S. 88, 101
(2004)) (emphasis supplied). In Corley, the Court found that “[t]he fundamental problem with
the Government’s reading of [the subsection at issue] is that it renders [another subsection]
nonsensical and superfluous.” Id. at 314. Thus, Corley recognizes that an interpretation of a
certain provision of a statute must be reconciled with what that interpretation would mean for
another section of that same statute.
48. Taken together, the principles of statutory construction identified in Powerex Corp. and
Corley readily demonstrate why the Government’s above-quoted assertion that is utterly baseless
and flatly incorrect: where, as here, a statute uses identical words and phrases within a statute
(such that those identical words and phrases must be given the same meaning), a court may not
construe a provision in that statute in a way that renders any provision of it void. See Corley,
556 U.S. at 314; Powerex Corp., 551 U.S. at 232. The Government’s suggestion that “[a]n
interpretation of a phrase under § 1030(a)(1) that may lead to absurd results under another
provision of § 1030 is irrelevant to the issues before this Court[,]” Government Response, at 9,
completely ignores these fundamental principles.
49. Remarkably, the Government’s statement perfectly mirrors the discredited argument of the
government in Nosal III:
The government argues that our ruling today would construe “exceeds authorized
access” only in subsection 1030(a)(4), and we could give the phrase a narrower
meaning when we construe other subsections. This is just not so: Once we define
the phrase for the purpose of subsection 1030(a)(4), that definition must apply
equally to the rest of the statute pursuant to the “standard principle of statutory
construction . . . that identical words and phrases within the same statute should
normally be given the same meaning.” Powerex Corp. v. Reliant Energy Servs.,
Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007). The phrase
appears five times in the first seven subsections of the statute, including
subsection 1030(a)(2)(C). See 18 U.S.C. § 1030(a)(1), (2), (4) and (7). Giving a
different interpretation to each is impossible because Congress provided a single
definition of “exceeds authorized access” for all iterations of the statutory phrase.
See id. § 1030(e)(6). Congress obviously meant “exceeds authorized access” to
have the same meaning throughout [S]ection 1030. We must therefore consider
how the interpretation we adopt will operate wherever in that section the phrase
appears.
676 F.3d at 859 (emphasis in original). This point was also clearly stated in the Defense Motion.
See Defense Motion, at 22-23 n.12.
50. At bottom, the Government is, through a misplaced focus on PFC Manning’s standing to
raise a vagueness challenge, inviting this Court to ignore well-established principles of statutory
15

21422

construction in determining which interpretation of the phrase “exceeds authorized access” to
adopt. This Court should, based on the principles of Corley and Powerex Corp. and for the
reasons stated in Nosal III, decline that invitation.
51. Therefore, the fact that a particular interpretation of “exceeds authorized access” could
render another provision of Section 1030 unconstitutionally vague is indeed relevant to this
Court’s inquiry into the proper interpretation of that phrase. In the Defense Motion, the Defense
identified several reasons why the expansive interpretation of “exceeds authorized access” would
render Section 1030(a)(2)(C) unconstitutionally vague. The Government has offered no rebuttal
to this argument; it instead focused on what it erroneously perceived as an obstacle to the Court’s
consideration of the arguments (i.e. PFC Manning’s standing to raise a vagueness challenge).
The Defense will therefore not repeat the many unopposed arguments as to why the expansive
interpretation of “exceeds authorized access” renders Section 1030(a)(2)(C) unconstitutionally
vague.
52. However, now that the Government has finally specified its theory of “exceeds authorized
access” – namely, that the warning banner on a Government computer stating that the computer
is to be used for Government-authorized use only constitutes an explicit purpose-based
restriction on access, see Government Response, at 1-2 – a brief comment on the vagueness
concerns for users of Government computers is warranted. This theory clearly implicates the
constitutional vagueness concerns specified in the Defense Motion. Warning banners like the
one referenced by the Government in its Response, see id., are commonplace for Government
computers. If a Soldier lawfully accesses a Government computer displaying a warning banner
of this type, but then checks his or her personal email, or sports scores, or any of the other
countless trivial things people do on their computers in a day’s work, the Soldier will have
committed a federal offense under Section 1030(a)(2)(C) if the Government’s interpretation is
accepted. How can a Soldier be expected to know that his occasional innocent use of his
computer for some trivial personal purpose could lead to his court-martial? Indeed, the void-forvagueness doctrine was meant to prohibit enforcement of offenses with such serious notice
deficiencies. Moreover, any assertion that the prosecuting authorities would never charge a
Soldier for such minor misconduct cannot cure the constitutional violation. See United States v.
Stevens, ___ U.S. ___, 130 S.Ct. 1577, 1591 (2010) (“We would not uphold an unconstitutional
statute merely because the Government promised to use it responsibly.”).
53. Therefore, because the Government’s interpretation of “exceeds authorized access” renders
Section 1030(a)(2)(C) unconstitutionally vague, it cannot be adopted by this Court for any
provision of Section 1030. See Corley, 556 U.S. at 314; Powerex Corp., 551 U.S. at 232; Nosal
III, 676 F.3d at 859. Accordingly, sound principles of statutory construction require that this
Court adopt the Defense’s interpretation of this phrase.
CONCLUSION
54. For the reasons articulated above and in the Defense Motion, the Defense requests this Court

16

21423

to dismiss Specifications 13 and 14 of Charge II because the Government has failed to allege that
PFC Manning’s alleged conduct exceeded authorized access.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

17

21424

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

)
)
)
)
)
)
)
)
)

DEFENSE MOTION TO
COMPEL IDENTIFICATION OF
BRADY MATERIALS

DATED: 10 May 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (R.C.M.) 701(a)(6), respectfully requests that the Government be compelled
to identify Brady material when providing discovery to the Defense.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. The Defense, as the moving party, bears the burden of this motion by a preponderance of the
evidence pursuant to R.C.M. 905(c)(1) and (2).
FACTS
3. PFC Manning is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of conduct prejudicial to 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, 104, and 134, UCMJ, 10 U.S.C. §§ 892, 904, 934 (2010).
4. To date the Government has provided the Defense with twelve (12) pages of Brady material
taken from an assessment/investigation/working document review by the Office of the National
Counterintelligence executive (ONCIX), Office of the Director of National Intelligence (ODNI),
and the Information Review Task Force (IRTF) of the Defense Intelligence Agency (DIA). See
Attachment to Appellate Exhibit XXXI.

21425

5. Additionally, the Government has provided the Defense with 458 files, totaling 6,905 pages,
from the Federal Bureau of Investigation (“FBI”), which, “at a minimum”, contains Brady
material.
WITNESSES/EVIDENCE
6. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this Court to consider the following evidence in support of the Defense’s
motion:
a. Charge Sheet.
b. Government assertions during various R.C.M. 802 sessions.
LEGAL AUTHORITY AND ARGUMENT
7. The Defense submits that the Government’s obligations under R.C.M. 701(a)(6) and U.S. v.
Brady, 373 U.S. 83 (1963), should require it to provide applicable disclosures to the Defense
independent of other disclosures. That is, this Honorable Court should require the Government
to separate or identify Brady material due the circumstances of PFC Manning’s case.
8. R.C.M. 701(a)(6) and Brady require that the Government disclose to the Defense all evidence
that reasonably tends to negate guilt, reduce the degree of guilt or reduce an accused’s
punishment. See also AR 27-26, para. 3.8(d). While the rules and case law do not specifically
require the Government to identify what material is Brady, it is clear that, under certain
circumstances such a requirement would be warranted. U.S. v. Skilling, 554 F.3d 529 (C.A. 5th
Cir., 2009). Indeed, it is well within this court’s discretion to order such. U.S. v. Salyer, 2010
WL 3036444 (E.D.Cal.). Case law supports the Defense’s position that, given the
circumstances, specific identification of Brady material is warranted in PFC Manning’s case.
9. U.S. v. Hsia, 24 F.Supp.2d 14 (D.D.C. 1998) is instructive on how the Government should go
about fulfilling their obligation under Brady when there is voluminous discovery. There, the
accused was provided with access to 600,000 documents. The court held, “[t]he government
cannot meet its Brady obligations by providing Ms. Hsia with access to 600,000 documents and
then claiming that she should have been able to find the exculpatory information in the haystack.
To the extent that the government knows of any documents or statements that constitute Brady
material, it must identify that material to Ms. Hsia.” Id. at 29-30. See also, U.S. v. Rubin, -F.Supp.2d--, 2011 WL 5448066 (S.D.N.Y. 2011).
10. The court’s ruling in U.S. v. Salyer also provides guidance. Salyer involved a case with
millions of pages of discovery. The prosecution argued that its discovery obligations were
satisfied by simply disclosing the voluminous documents to the Defense and pointed to several
cases supporting their position that the Government has no duty to identify Brady material.
While acknowledging the cases cited by the Government, the court rejected the Government
2

21426

position and held that Government did have an obligation to both disclose and identify Brady
material under the circumstances facing Salyer. The court was particularly persuaded by the
sheer volume of discovery, the relatively small size of the Defense team, the accused’s pre-trial
confinement, the lack of parallel civil litigation with overlapping evidence and the lack of
corporate assistance to sift through volumes of discovery. Id. at 7. See also, U.S. v. W.R. Grace,
401 F.Supp.2d 1060, 1080 (D.Mont 2005).
11. The factors set forth by the Salyer court were later adopted by the court in U.S. v. Rubin,
supra. Rubin involved allegations of conspiracy to illegally rig bids, fix prices and manipulate
the market investment instruments. Id. at 1. There were a total of 210 transactions that allegedly
substantiated the alleged crimes and the discovery was voluminous. Id. While holding that the
prosecution did not need to specifically identify Brady material, the court nonetheless weighed
the factors considered by the Salyer court. In addition to noting that the discovery provided to
the Defense was searchable, the court was also persuaded that the Defense had corporate
assistance in the defense, there was “ongoing parallel civil litigation with overlapping documents
and evidence” and there were multiple defendants with “overlapping discovery needs”, the
accused was not in pre-trial confinement, and there was not a small Defense team. Id. at 4.
Clearly, the Rubin court adopted the factors set forth in Salyer in determining whether an
exception to the general rule was warranted.
12. The circumstances of PFC Manning’s case warrant a requirement that the Government
specifically identify Brady material. Indeed, each of the factors discussed by the Salyer and
Rubin courts weigh in favor of such a requirement.
a. PFC Manning has been in pre-trial confinement for nearly two years and has been denied
the opportunity to participate in his defense in a truly meaningful way. PFC Manning has no
opportunity to review much of the discovery in this case because the Joint Regional Confinement
Facility (“JRCF”) lacks the SCIF requisite for such review. Indeed, the discovery in question is
only available in Rhode Island and Maryland, both thousands of miles from PFC Manning’s
location in Kansas.
b. The discovery provided by the Government is not text searchable. Moreover, the
documents are not readily available to the Defense, as no member of the Defense team has easy
access to the documents. Mr. Coombs is required to drive over 30 miles to gain access to the
material in question, while CPT Tooman can currently only access the material by going TDY
for several days at a cost of thousands of taxpayer dollars.
c. There are not multiple defendants, nor is there parallel civil litigation with overlapping
discovery needs.
d. As a Soldier in the U.S. Army, PFC Manning has no corporate assistance with his defense.
e. The Defense team is relatively small compared to the Government. The Government has
at least four (4) Officers working full time, one (1) Officer working part time, two (2) legal
administrators and an unknown amount of paralegal support. By contrast, the Defense consists
solely of Mr. Coombs, CPT Tooman, a legal administrator (who is currently in the process of
3

21427

completing a PCS move) and the newly detailed counsel, MAJ Tom Hurley. Whereas the
Government attorneys are geographically located in one place, the Defense is spread throughout
the country with varying levels of access to evidence and PFC Manning.
f. The discovery in this case is already voluminous and, presumably, there is more to come.
13. There is incentive to rule in favor of the Defense so as to prevent the Government from
burying Brady material in mountains of voluminous discovery. The courts in Hsia and Salyer
each warned of the possibility of such a practice. At issue presently are nearly 7,000 pages of
discovery, but there are, no doubt, tens of thousands of pages looming on the horizon. Ruling
against the Defense on this motion creates the incentive for the Government to bury Brady
material and force the Defense to sift through stacks of paperwork in order to prepare a
competent defense – all while the Government has actual knowledge of Brady material. This is
not in accordance with the spirit of Brady.
14. The Government has already set a precedent for itself when disclosing Brady material. Until
the FBI documents, the Government had been providing Brady materials separately. When the
Government specifically identifies Brady material in some instances (like the Government’s first
12 page disclosure) and fails to do so in others (like the FBI documents), the implication is that
no Brady material is present when the documents aren’t identified as such.
15. The Government has made clear that they are already identifying Brady material as part of
their due diligence requirement. It would not be overly arduous for the Government to
specifically identify Brady material for the Defense when they are already doing it for
themselves. It would be quite easy for the Government to simply identify Brady material before
turning documents over to the Defense.1 Any resistance to such a request would only suggest
that either:
a) The Government is not actually specifically identifying Brady material, or
b) That the Government wishes to place a burden on the Defense so as to gain a tactical
advantage.
16. The circumstances of PFC Manning’s case warrant requiring the Government to identify
Brady material. PFC Manning is a lone accused in pre-trial confinement, he has a relatively
small Defense team, there is no concurrent civil litigation and much of the voluminous discovery
is either not searchable or not easily accessed by the Defense. The burden of this requirement on
the Government will be minimal and, perhaps most importantly, will ensure that the Government
does not bury Brady material within its discovery disclosures.

1

Indeed, when the Government expressed concern about the difficulty of comparing original and redacted motions,
the Defense voluntarily adopted a system that would make it easier for the Government to meaningfully compare the
documents.

4

21428

CONCLUSION
17. For the foregoing reasons, the Defense requests this Court require the Government to
specifically identify all Brady material when providing discovery to the Defense.
Respectfully submitted,

JOSHUA J. TOOMAN
CPT, JA
Defense Counsel

5

21429

UNITED STATES OF AMERICA
v.

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

)
)
)
)
)
)
)
)

Prosecution Response
to Defense Motion to Compel
Identification of Brady Materials

24 May 2012

)

RELIEF SOUGHT

The prosecution requests that the Court deny the Defense Motion to Compel
Identification of Brady Materials (Defense Motion) because the rules of discovery do not support
the defense's request for the prosecution to separate or identify material under Brady v.
Maryland, 373 U.S. 83 (1963) or Rule for Courts-Martial (RCM) 701(a)(6).
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,United States,R.C.M. 905(c) (2008).
FACTS
1. The United States stipulates to those facts cited in Defense Motion�[ 3.

See

2. The accused recently relieved two attorneys and removed them from the defense team.
24 Apr. 2012 Article 39a hearing.

3. There are three safes available to the defense. A safe assigned to the Trial Defense
Service (TDS) Office on Ft. Myer in Building 229, Joint Base Myer-Henderson Hall, VA, has
been available since 12 Oct. 2010. A safe assigned to the TDS Office on Ft. Leavenworth in
Building 244, Ft. Leavenworth, KS,has been available since 22 June 2011. A safe assigned to
the TDS Office on Ft. George G. Meade has been available since 10 Aug. 2011. See Appellate
Exhibit V, Enclosure 7.
4. The Unites States established a remote office in a government facility,including a
printer, at the Naval War College for Mr. Coombs to enable him to review classified information.
See Enclosure 2.

21430

WITNESSES/EVIDENCE

The United States does not request any witnesses be produced for this response. The
United States respectfully requests that the Court consider Appellate Exhibit V,Prosecution
Motion for Protective Order, 21 Feb. 2012,and its enclosures. The United States also requests
the Court consider the enclosures listed at the bottom of this motion.
LEGAL AUTHORITY AND ARGUMENT

The Court should not Order the United States to separate and identify specific Brady
material because the United States is not obligated to prepare the defense's case. The United
States has not operated in bad faith and has worked to provide Brady materials as soon as
practicable pursuant to RCM 701(a)(6).
I.

THE UNITED STATES IS NOT REQUIRED TO SEPARATE BRADY
MATERIAL

RCM 701(a)(6) requires a trial counsel, "as soon as practicable, disclose to the defense
the existence of evidence known to the trial counsel which reasonably tends to: (A) [n]egate the
guilt of the accused of an offense charged; (B) [r]educe the degree of guilt of the accused of an
offense charged; or (C) [r]educe the punishment." RCM 701(a)(6) is the military's Brady rule.
United States v. Williams,50 M.J. 436, 441 (C.A.A.F. 1999). As a general rule, the United
States is under no duty to direct an accused to Brady material within a larger mass of disclosed
evidence. United States v. Skilling,554 F.3d 529 (5th Cir. 2009) vacated in part on other
grounds,130 U.S. 2896 (2010) (citing United States v. Mulderig,120 F.3d 534, 541 (5th Cir.
1997); United States v. Mmahat,106 F.3d 89,94 (5th Cir. 1997)); United States v. Warshak,631
F.3d 266,297 (6th Cir. 2010) (citing Skilling,554 F.3d at 576). Additionally, the Seventh
Circuit upheld the proposition that the United States is under no duty to direct the defense to
exculpatory evidence within a large mass of undisclosed evidence. See United States v. Gray,
648 F.3d 562,567 (7th Cir. 2011) (quoting Skilling,554 F.3d at 576). The Eleventh Circuit has
also rejected the claim that the United States must identify specific Brady material amidst
voluminous material because the defense could request a continuance or advise the United States
of a defense theory to help the United States provide relevant discovery materials. See United
States v. Jordan,316 F.3d 1215,1253-54 (11th Cir. 2003). Accordingly, the United States does
not violate its Brady obligations by providing large quantities of discovery. Warshak,631 F.3d
at 274.
Brady

"does not place any burden upon the Government to conduct a defendant's
investigation." United States v. Marrero,904 F.2d 251,261 (5th Cir. 1990). When evidence is
equally available to the defense and prosecution, the accused must investigate and bears
responsibility for failing to conduct the investigation diligently. See Kutzner v. Cockrell,303
F.3d 333,336 (5th Cir. 2002). "If the rule were otherwise, it would place '[the United States] in
the untenable position of having to prepare both sides of the case at once."' United States v.
Rubin/Chambers, Dunhill Insurance Services,825 F. Supp.2d 451,454 (S.D.N.Y. 2001)
(quoting United States v. Ohle,2011 WL 651849 at *4 (S.D.N.Y. 7 Feb. 2011)). Finally, "Brady
does not mean that the government must take the evidence it has already disclosed to [the
2

21431

defense], sift through this evidence, and organize it for [the defense's] convenience." United
v. Dunning, 2009 WL 3815739 at *1 (D. Ariz. 12 Nov. 2009).

States

The United States may satisfy its Brady obligations through disclosures of exculpatory or
impeachment material within large productions of documents or files. See Warshak, 631 F.3d at
297 (describing as "empty" the argument that the government failed to fulfill its Brady
obligations by handing over millions of pages of evidence to defense to find exculpatory
information); cf Strickler v. Greene, 527 U.S. 263, 283 n. 23 (1999) (noting that an open file
policy may increase the efficiency and fairness of the criminal process). Simply advising the
defense of the availability of I 0,000 pages of documents satisfies Brady. See United States v.
Serfling, 504 F.3d 672, 678 (determining that notifying the defendant of the existence of
documents and making them available for inspection is not a suppression for Brady purposes
1
where defendant chose not to inspect them). The United States has endeavored to disclose all
evidence and information contained within the prosecution's files and those files which the
prosecution must search, including Brady material, as soon as it has been able given the need for
classification reviews and approvals. Additionally, the United States has disclosed more broadly
than Brady requires. Brady materials have been and will continue to be provided to the defense,
which exceeds disclosing the mere existence of the materials or making them available for
disclosure; the provision of materials satisfies the United States' obligations under Brady.
The defense contends that the Court should prevent the United States from burying the
defense in voluminous discovery. In response, the United States provides Brady material as soon
as practicable. The United States turns over information after receiving the requisite approvals
for unclassified and classified materials. Although the defense claims that nearly 7,000 pages are
2
at issue , the defense neglects the fact that many of these pages contain redactions, are blank, or
little information; therefore, inspecting the pages to examine the information is easier than sifting
through millions of pages to find certain material. Moreover, the page count presented by the
defense represents a fraction of the page counts discussed in cases the defense cites. Compare
United States v. Salyer, 2010 WL 3036444 (E.D. Cal. Aug. 2, 2010) (involving millions of
pages); United States v. Hsia, (involving 600,000 documents and not pages).
Finally, the United States disputes that it has separated and identified Brady material
previously or that the United States has a duty to do so. Instead, the United States has provided
Brady materials to the defense in a timely manner to expedite the defense's ability to do its due
3
diligence. The United States is under no obligation to sift through the provided evidence and
4
organize it for the defense's convenience.
1

The United States notes that these cases focus on merely providing the defense the opportunity to inspect

documents within the possession of the government according to applicable rules. RCM

701 only requires

inspection of such documents, yet the defense requests the Court order the United States to identify Brady material
specifically that is contained within the produced documents the defense currently possesses.
2

The United States does not stipulate that

7,000 pages are at issue; instead, the United States responds to the

defense claim.
3

Brady
See Enclosure 3, Enclosure 4, Enclosure 5. Each time the United States sends or delivers a discovery

The defense confuses the notice the prosecution provides in emails focused on discovery as identification of

material.

production, it sends an email similar to these enclosures and provides a brief explanation of the material.

3

21432

II.

GOOD FAITH TEST IN SKILLING IS THE CORRECT TEST, NOT SALYER

Assuming, arguendo, the Court determines that discovery in this case necessitates
specific identification of Brady material, Skilling presents the correct test, not Salyer. Skilling is
a published Fifth Circuit Court of Appeals decision. Additionally, the Sixth Circuit has adopted
the Skilling test in Warshak. Warshak, 631 F.3d at 297-298 (discussing and applying Skilling
factors). Contrastingly, Salyer is a district court slip opinion involving business records
pertaining to racketeering. Salyer also suggests that its application should be limited. See Sayler
at *8 ("The [magistrate judge] does not find, nor would he, that the identification requirements of
this case would apply to other cases not similarly situated in factual circumstances."). In Salyer,
the magistrate judge also noted that the prosecution sought voluminous material because, in
essence, it could. Salyer at *3 n. 4 (noting that grand jury subpoenas are deliberately worded
broadly). Here, the broad consequences of the alleged acts of the accused have determined the
scope of discovery. Cf United States v. Qadri, 2010 WL 933752 at *5 (D. Haw. Mar. 9, 2010)
(considering the complex nature of the alleged crimes and necessity of coordinating branches of
government in the investigation as factors for determining whether delays were undue).
Skilling describes three factors that might lead a court to conclude that the United States
must identify Brady material: 1) padding an open file with voluminous information, 2) creating
a voluminous file that is unduly onerous to access, and 3) operating in bad faith in performing its
Brady obligations. See Skilling,554 F.3d at 577. The United States has not padded discovery or
acted in bad faith, nor has the defense provided any evidence of padding or specific bad faith.

Additionally, the United States has not created a voluminous file that is unduly onerous
to access. The defense has received discovery in electronic format in individual "PDF" files.
Similarly, the defense further protests that materials are not readily accessible, but the United
States has provided multiple safes, in four different geographic locations for storing and
accessing classified-information where legally permitted. See Appellate Exhibit V, Enclosure 7;
see also Enclosure 1. Also, the defense does not require a SCIF because neither the information
being produced, none of the material subject to this motion, nor the material produced in
discovery, thus far, is sensitive compartmented information (SCI). All TDS offices have been
approved to hold and use classified material so long as the material is stored properly within the
safe, including the office located at Fort Leavenworth, Kansas where the accused is located for
pretrial confinement.
In the past year, the United States has equipped three TDS offices, and provided three
safes, three classified laptops, a separate classified office at the Naval War College with a
printer, courier cards, and personnel. See Appellate Exhibit V p. 2; Appellate Exhibit V,
Enclosures 5, 8; Enclosure 2. The United States stands ready to consider future requests by the
defense as they are made; however, the defense must first make those requests. Ultimately, the

4

The United States rejects the defense's assertions that it would not be overly arduous to identify Brady material

for the government. Separating and identifying the

Brady information would require preparing both sides of this

case and would slow discovery, especially considering at this point in litigation the United States has produced
approximately

44,835 documents totaling 447,745 pages. If the Court is inclined to order the United States. to

identify Brady material, then the prosecution would have to re-review these documents for identification purposes.

4

21433

United States has operated in good faith in delivering Brady materials via common means,which
do not create an unduly onerous burden on the defense.
III.

APPLICATION OF SALYER FACTORS SUPPORTS NOT REQUIRING
SEPARATION AND SPECIFIC IDENTIFICATION OF BRADY MATERIALS

Assuming, arguendo,that Salyer describes the proper standard, the facts do not support
requiring the United States to separate and identify Brady material. First,as noted above, the
United States provides Brady materials as soon as practicable to maximize the time during which
the defense may exercise its due diligence. Second,the defense describes its team as small,but
the defense recently relieved two of its members,and has not asked for additional support from
the command nor TDS. Third,the accused has received considerable resources from the United
States to put forth his defense. See,e.g.,Appellate Exhibit V, Enclosures 5,6, 7, and 8. Finally,
since the accused moved to Fort Leavenworth, Kansas,the United States taken steps to ensure
that the accused may participate in his defense and communicate with the members of his
defense team. The United States has offered to fund all military defense counsel and government
team members,including experts,to fly anytime to visit their client. The accused has been
granted limited access to classified material to assist in the preparation of his defense.
Furthermore,classified material can be delivered to Fort Leavenworth to aid in coordination of
the defense,but the defense has chosen not to move the information themselves with courier
cards,nor requested the Government's assistance. Therefore,discovery is not overly onerous for
the defense.
CONCLUSION

For the foregoing reasons,the United States requests the Court to Deny Defense Motion
to Compel Identification of Brady Material.

ALEXANDER S. VON ELTEN
CPT,JA
Assistant Trial Counsel

ASHDEN FEIN
MAJ,JA
Trial Counsel

5

21434

I certify that I served or caused to be served a true copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 24 May 2012.

�m
MAJ, JA
Trial Counsel

5 Enclosures
1. David Coombs, Re: Classified Information, 19 Apr 12 Email
2. MAJ Fein, Re: Outstanding Issues, 23 Apr 12 Email
3. MAJ Fein, US v. PFC BM (Discovery Update), 1 Sep 11 Email
4. MAJ Fein, US v. PFC BM (Art 32 Report & Discovery), 13 Jan 12 Email
5. MAJ Fein, Discovery, 4 Apr 12 Email

6

UNITED STATES OF AMERICA

v?

Manning, Bradley E.

PFC, U.S. Army,

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



21435

Prosecution Response

to Defense Motion to Compel
Identi?cation of Brady Materials
Enclosure 1

24 May 2012

21436

l2axid_C.99ml2s

To:

CC:
Subject: RE: Classi?ed Infonnation

Date: Thursday, April 19, 2012 8:34:07 PM

Ashden,

Here are the answers to your questions:

1) The classi?ed information will remain at Fort Meade and Fort Myer. The
Fort Meade location will be used to provide the Defense with access to
classi?ed information during any motions hearing and the trial. The Fort

Myer location will be for our paralegal. Chief Santiago is PCSing in July.

I believe her replacement will be given the same of?ce that she currently

is in at Fort Myer. Once CPT Tooman completes his PCS to D.C., we can move
the Leavenworth safe to his of?ce.

2) Computer forensic work: Currently, our forensic work is being done with
CPT Bouchard acting as the government representative being present. In the
future, we will have either CPT Bouchard, our paralegal or CPT Tooman
present;

3) My access: When I am in VA, my access is covered by the Navy Security
representative, Ms. Socorro Robillard. When I have access in MD, I am
always with a government representative.

4) Courier Cards: Can you explain why the courier cards will need to be
returned?

Please let me know if you have any questions or concerns.

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



Notice: This transmission, including attachments, may
oontain 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 MAJ USA SJA

Sent: Thursday, April 19, 2012 8:20 PM

21437

To: Tooman, Joshua CPT USARMY (US)

Cc: David Coombs; Morrow JoDean, CPT

USA ergaar nge . USA Whyte,
Jeffrey H. CPT USA VonEIten, Alexander S. 1LT USA
Ford, Arthur D. CW2 USA SJA

Subject: Classi?ed Information

Josh,

Now that the other military defense counsel are no longer on the case,
please notify us when all the classi?ed information within their possession
is properly secured by the defense experts, pursuant to the Courts order
and their courier cards have been returned to relevant security managers.
Also, please let us know which location the classi?ed material will be
stored, so we can properly account for the material.

Additionally, it is our understanding that in the past MAJ Kemkes, Paul, or
Melissa were present, as government representative, with the forensic
experts when conducting their review. What is the defense's plan in order
to ensure a government representative (military or civilian) is present
anytime classi?ed information is being accessed, to include David's access
in MD or

Thank you!

v/r
MAJ Fein

UNITED STATES OF AMERICA
v.

Manning, Bradley E.

PFC, U.S. Anny,

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



21438

Prosecution Response

to Defense Motion to Compel
Identi?cation of Brady Materials
Enclosure 2

24 May 2012



From:
To:

Subject: RE: Outstanding Issues
Date: Monday, April 23, 2012 7:30:16 PM
Attachments:

David,

1. For me FBI ?le, the United States provided me defense with, at a minimum, all information that we
determined was discoverable under RCM 701(a)(6) and Brady. Redacted information falls outside RCM
701(a)(6) and Brady.

2. As explained before, Mr. Parra spoke wi?w Eric Lakes and CPT Bouchard about this before the
arraignment. Speci?cally, Mr. Parra spoke with CPT Bouchard on the phone and explained that the
military defense oounsel, as the government supervisors of the contract must submit a separate request
to contracting because they are ultimately responsible for the unauthorized commitment of funds.
Addi?onally, on 8 Feb 12, Mr. Parra spoke with Eric Lakes and CPT Bouchard on the phone and
explained that in order to receive the payment for the unauthorized amount, both the military defense
counsel and Eric Lakes had to deal directly with the contracting of?cer who issued the contract. The

information is printed on the contract for the contractor and is Sherry L. Camer,
At the end of last week, the contract modi?cation di no occur on a

ing issue; owever ay contrac'a'ng is ?nalizing the modi?cation. We will send the updated
contract, once we receive it, but Mr. Lakes will receive a copy before we do. Still as of today, the
defense has $35,000 for forensic expert consultation.

3. The United States previously provided all the Section disclosures up to arraignment. Under our
continuing Section obligation, the United States provides the attached updated disclosures for
information produced since arraignment.

4. As per the Court's direction, the United States established a remote office in a government facility for
you to work with classi?ed information, including a printer. NWC has a printer available with the
standalone classi?ed laptop. As per our arrangement with the NWC, that printer is to be used to print
any classi?ed material to minimize couriering of classi?ed material. Along with the printer, NWC is
providing the toner or ink, and the prosecution is ready to send any additional supplies, if NWC
requests. Please print the material at the government facility to minimize any possible security issues.

5. OCA POC Contact Information. The last OCAs that you should need contact information for are at
CENTCOM. Please contact COL Bruce Pagel, Acting SJA, CENTCOM at to
coordinate any conversations or meetings. This should be the remaining contact in ormation.
Please let us know whether there are others that you need assistance with obtaining. The United States
still has not received a Touhy request for the other Agency, if the defense still intends to submit one.

6. Interim Forensic Reports. Today we delivered to CW2 Santiago a copy of the interim forensic reports
(BATES: 00419805-00445503). We also a copy to NWC (Tracking: 798316692805).

v/
Ashden



From: David Coombs

Sent: Saturday, April 21, 2012 6:35 PM

To: Fein, Ashden MAJ USA Overgaard, Angel M. CPT USA
Morrow JoDean, CPT USA Whyte, Jeffrey H. CPT USA
VonE|ten, Alexander S. 1LT USA Ford, John CIV (US)

Cc: 'Tooman, JoshuaJ CPT USARMY Santiago, Melissa CW2 USARMY (US)

Subject: Outstanding Issues

21440

Ashden,

Please respond to the following issues before the end of Monday:

1) Who redacted the FBI discovery and under what standard?

2) What has the Government done to address the contract overage issue since January? who in
contracting has the Government being working with to resolve this issue?

3) You had indicated that you would be providing additional Section disclosures to the Defense.
When will these be provided? Also, why weren't these part of the original Section disclosures?

4) When does the Government intend to provide hard copies to me at the NWC of the 793 Charged
documents?

I intend to address each of the above issues during our next 802.

Best,

David

David E. Coombs, Esq.

Law Of?ce 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 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

UNITED STATES OF AMERICA

V.

Manning, Bradley E.

PFC, U.S. Army,

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





Prosecution Response
to Defense Motion to Compel
Identi?cation of Brady Materials
Enclosure 3

24 May 2012

21442



From
Subject: US v. PFC BM (Discovery Update)
Date: Thursday, September 01, 2011 11:12:00 AM

David,

We placed a DVD in the mail today containing unclassi?ed discovery (BATES:
042807-044864). This DVD includes multiple pretrial con?nement documents
from the con?nement facilities. A copy is being delivered to MAJ Kemkes
today.

v/
Ashden

UNITED STATES OF AMERICA
v.

Manning, Bradley E.

PFC, U.S. Army,

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



Prosecution Response
to Defense Motion to Compel
Identi?cation of Brady Materials
Enclosure 4

24 May 2012

21443

21444



From:
To:

Cc:

Bcc:

Subject: US v. PFC BM (Art 32 Report Discovery)
Date: Friday, January 13, 2012 4:02:00 PM
Importance: High

David,

Yesterday, we produced misc CID documents, an additional classi?cation review for audit logs, and
con?nement documents (BATES: 00410702-00410788). We also sent a copy of the IQ report to you
and CPT Tooman. CW2 Santiago signed for the classi?ed portions at Fort Myer. The tracking shows
FEDEX delivered the CD5 to you and CPT Tooman (Coombs: 876470104907; Tooman: 876470104860).

Have a good weekend.

v/r
Ashden

UNITED STATES OF AMERICA
v.

Manning, Bradley E.

PFC, U.S. Army,

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



21445

Prosecution Response

to Defense Motion to Compel
Identi?cation of Brady Materials
Enclosure 5

24 May 2012

21446






From:

To:

Cc:

-


Bcc: -
Subject Discovery

Date: Thursday, April 12, 2012 8:27:00 PM

David,

Tonight, we the following:

To your of?ce (Tracking: 7934 4983 5976)- unclassi?ed material (BATES: 00419647-419804) consisting
of various CID documents, unclassi?ed but sensitive damage assessments impact statements as part
of our due diligence searches, the audio for the arraignment and motions hearing, and other
miscellaneous documents.

To NWC for you (Tracking: 7934 4752 7495)- classi?ed material, complete reproduction of previously
produced classi?ed material, the initial production of FBI material, but with corrected BATES numbers
(BATES: 00412614-00417914), a new production of additionally approved FBI material (BATES:
00417915-00419518), and miscellaneous classi?ed documents (BATES00419519-00419646).

Based on your previous request an the change of military defense counsel, we are working to ?nalize a
complete reproduction of ALL material so you and your team have a fresh copy. Additionally, we intend
to give you an updated Section disclosure by the middle of next week.

Now that there is a change in military defense counsel, which of?ce would you like us to send the
information?

Thanks.

v/r

Ashden

21447

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

)
)
)
)
)
)
)
)
)

Defense Reply to
Government Response to
Defense Motion to Compel Identification
Identification ofofBrady Materials
29 May 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (R.C.M.) 701(a)(6), respectfully requests this Court to compel the
Government to identify Brady material when providing discovery to the Defense.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. The Defense, as the moving party, bears the burden of this motion by a preponderance of the
evidence pursuant to R.C.M. 905(c)(1) and (2).
FACTS
3. The Defense relies on those facts set forth in its original filing on 10 May 2012.
4. The Defense stipulates to those facts set forth by the Government in their Response to
Defense Motion to Compel Identification of Brady Material, dated 24 May 2012.
WITNESSES/EVIDENCE
5. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this Court to consider the following evidence in support of the Defense’s
motion:
a. Charge Sheet.
b. Government assertions during various R.C.M. 802 sessions.
c. Email chain, June 2011
LEGAL AUTHORITY AND ARGUMENT
6. The Defense submits that the Government’s obligations under R.C.M. 701(a)(6) and U.S. v.
Brady, 373 U.S. 83 (1963), should require it identify Brady disclosures to the Defense as part of

21448

its ongoing discovery obligations. Whether employing the standard established by either the
Skilling or Salyer, the circumstances are such that the requested relief is warranted.
7. The Government asserts that this court should weigh the factors considered by the Skilling
court because Skilling is a published 5th Circuit opinion. While Salyer, cited by the Defense, is
not a published opinion, the factors considered there have since been adopted by courts in cases
that have resulted in a published opinion. See, U.S. v. W.R. Grace, 401 F.Supp.2d 1060, 1080
(D.Mont 2005). Moreover, it is important to note the test adopted by the Salyer court came into
being when one of the scenarios contemplated by Skilling came before the court. The
Defense’s overarching position that the Government should be required to specifically identify
Brady material is also one that is supported by cases that either are, or will be, reported. See U.S.
v. Hsia, 24 F.Supp.2d 14 (D.D.C. 1998) and U.S. v. Rubin, --F.Supp.2d--, 2011 WL 5448066
(S.D.N.Y. 2011).
8. The factors set forth in Salyer are the appropriate factors for this Court’s consideration.
Again, each of these factors weighs heavily in the Defense’s favor.
a. PFC Manning has no opportunity to participate in his Defense in a meaningful way.
It is unreasonable to expect the Defense to conduct all of its trial preparation within
the walls of the JRCF. The space available at the JRCF is not sound proof and lacks
internet and printing capabilities for the Defense. Moreover, the voluminous nature
of the discovery in this case makes it impracticable for counsel to take the material to
PFC Manning. Defense requests to meet with PFC Manning at the Fort Leavenworth
TDS office have been consistently met with Government resistance due to the
logistical hurdles the Government and JRCF have created for themselves.
b. The Discovery provided by the Government is not text searchable and access requires
travel by the majority of the Defense team.
c. There are not multiple defendants, nor is there parallel civil litigation with
overlapping discovery needs.
d. As a Soldier in the U.S. Army, PFC Manning has no corporate assistance with his
defense.
e. The Defense team is relatively small compared to the Government’s team. Not only
is the Defense team geographically separated, but it is worth noting that, unlike
Government counsel who are working exclusively on this case, detailed Defense
counsel also represent other clients and do not have the ability to donate 100% of
their time to the instant case. Additionally, after two years, the Government waited
until virtually the eve of trial to begin providing the Defense with Brady materials.
As such, Defense counsel are forced to spend valuable time sifting through discovery
at a critical juncture in PFC Manning’s case. Given the timing of the Government’s
disclosures, it is appropriate that they should specifically identify the Brady material.

2

21449

9. Even Skilling, championed by the Government, contemplated scenarios where the
Government should be required to identify Brady material. There, the court listed a number of
scenarios where identifying Brady information should be required including: padding an open
file, creating a voluminous file that is unduly onerous to access, and operating in bad faith in
performing its Brady obligations. 554 F.3d at 577. Assuming, arguendo, that the Skilling
standard is appropriate, each of the contemplated Skilling scenarios face the court in PFC
Manning’s case and warrant specific identification of Brady material by the Government.
a. The Government appears to be padding an open file.
The Government mentions in a footnote that the instant Defense request would require
them to re-review hundreds of thousands of pages of discovery. If the Government is doing their
due diligence, certainly they must be keeping track of what material they have determined falls
under the purview of Brady. The Government’s frequent assertions that a disclosure contains
“at a minimum Brady” or “at least Brady” without actually keeping track of the Brady material
suggests that the Government is, indeed dumping discovery on the Defense without first
verifying that it does actually contain Brady. Either the Government is not being diligent and is
dumping discovery on the Defense on the eve of trial or they have been diligent and have closely
tracked the Brady material they have uncovered. If the later is true, it would not be difficult at
all for the Government to specifically identify Brady material.
b. Access to discovery in this case is unduly onerous on the Defense.
Not only are there hundreds of thousands of pages of discovery in this case, the Defense
and, most importantly, PFC Manning have limited access to the discovery. The Government
points to the fact that multiple safes have been provided to the Defense as evidence that the
Defense’s access to evidence is not unduly onerous. Of particular note to the Government is the
existence of a safe at Fort Leavenworth. However, it must be noted that while CPT Tooman is
currently stationed at Fort Leavenworth and has had an attorney-client relationship with PFC
Manning for over a year, CPT Tooman was only officially detailed to PFC Manning’s case last
month. Until recently, CPT Tooman’s involvement with the Defense was merely tangential. As
such, placement of a safe at Fort Leavenworth did little to aid in the preparation of the Defense
with PFC Manning’s detailed counsel thousands of miles away for the lion’s share of his stay at
the JRCF.
Moreover, while the ability to store sensitive discovery at Fort Leavenworth has been in
place, the mechanisms put in place by the Government for PFC Manning to actually see the
sensitive discovery are unduly onerous. It is unreasonable to expect the Defense to conduct trial
preparation involving voluminous, classified discovery, within a confinement facility. Ironically,
throughout this case the Government has balked at Defense requests to meet with PFC Manning
at the Fort Leavenworth TDS office due the hoops it has to jump through to make such a meeting
happen. See attached emails. If it is unduly onerous for the Government to facilitate a meeting
between PFC Manning and his counsel in a TDS office, certainly it must be unduly onerous for
the Defense to prepare in the same operating environment.
While the Government has provided electronic copies of its discovery, these electronic
copies are not text searchable, a factor considered by the court in Skilling. Moreover, for the
reasons discussed above and in the Defense’s original motion, access to this discovery requires
3

21450

significant travel by the majority of the Defense team. Again, most importantly, gaining PFC
Manning access to the evidence against him is unduly onerous, as the Government has itself
asserted since his movement to the JRCF. Because the Defense’s access to the complete
discovery is unduly onerous, as contemplated by Skilling, the Government should be obligated to
specifically identify Brady material going forward.
c. The Government’s misunderstanding of its Brady obligation was tantamount to bad
faith.
As recently as March 2012 the Government did not understand its requirements under
Brady and R.C.M. 701(a)(6). This court acknowledged as much in its April 25, 2012 ruling on
the Defense Motion to Dismiss All Charges With Prejudice, noting, “the Government disputed it
was obligated to disclose classified Brady information that was material to punishment.” For
nearly two years the Government operated its discovery with a fundamental misunderstanding of
what is required for disclosure. The fact that the Government took a wholly unsupported view of
Brady and deliberately withheld what appears to be Brady material (i.e. damage assessments) for
two years amounts to bad faith. Under the circumstances, the Defense believes that the
Government’s failure to apply the correct Brady standard warrants that they be required to
specifically identify Brady material to the Defense.
10. Finally, the Government asserts that specifically identifying Brady material would result in
the Government preparing the Defense case. The fact of the matter is that the Government is
already reviewing every page of discovery and making a determination as to what should be
redacted and what must be provided due to Brady or other discovery obligations. Requiring the
Government to pick up a highlighter and mark what they have already identified as Brady
material is not overly arduous. Indeed, it is not arduous at all. Given the fact that the
Government has waited until this late date to begin providing the Defense with Brady material,
requiring the Government to specifically identify Brady material is appropriate.
CONCLUSION
11. For the foregoing reasons, the Defense requests this Court require the Government to
specifically identify all Brady material when providing discovery to the Defense.
Respectfully submitted,

JOSHUA J. TOOMAN
CPT, JA
Defense Counsel

4

21451

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

)
)
)
)
)
)
)
)
)

DEFENSE MOTION TO
COMPEL DISCOVERY #2

10 May 2012

RELIEF SOUGHT
1. In accordance with the Rules for Courts Martial (R.C.M.) 701(a)(2), 701(a)(5), 701(a)(6) and
905(b)(4), Manual for Courts-Martial (M.C.M.), United States, 2008; Article 46, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 846; and the Fifth and Sixth Amendments to the United
States Constitution, the Defense respectfully requests that the Court compel the requested
discovery. Specifically, the Defense requests that the Court order:
a) Full investigative files by CID, DIA, DISA, and CENTCOM/SOUTHCOM related to PFC
Manning, WikiLeaks, and/or the damage occasioned by the alleged leaks be produced to the
Defense under R.C.M. 701(a)(2). Further, that the HQDA file related to the 17 April 2012
request be produced under R.C.M. 701(a)(2) and 701(a)(6).
b) FBI, DSS, DOS, DOJ, Government Agency, ODNI, and ONCIX files in relation to PFC
Manning and/or Wikileaks be produced to the Defense, or alternatively, that they be produced
for in camera review to determine whether the evidence is discoverable under R.C.M. 701(a)(2)
as being material to the preparation of the defense. If the Court concludes that the files of the
above agencies are not within the possession, custody, or control of military authorities, the
Defense still requests that the Court order production of the entire file under the “relevant and
necessary” standard under R.C.M. 703(f);
c) The Government state with specificity the steps it has taken to comply with its
requirements under R.C.M. 701(a)(6);
d) The Government produce Brady materials from certain identified agencies;
e) The Government produce all evidence intended for use in the prosecution case-in-chief at
trial obtained from DIA, DISA, CENTCOM/SOUTHCOM, FBI, DSS, DOS, DOJ, Government
Agency, ODNI, ONCIX and any aggravation evidence that it intends to introduce during
sentencing from the above named organizations.

1

21452

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)(A). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1).
EVIDENCE
3. The Defense does not request any witnesses be produced for this motion.1 The Defense
requests that this Court consider the following evidence in support of this motion:
a.
b.
c.
d.

Appellate Exhibits VIII, XXVI, XXXI, XXXVI, XLIX, XLVIII, and LXVIII
Unofficial Transcript, 23 February 2012
Attachment A (Department of the Army Memorandum dated 17 April 2012)
Attachment B (Email from Ashden Fein, 17 April 2012)
FACTS

4. The following facts are based upon the Government’s concessions in Appellate Exhibit XLIX
and the Court’s Ruling in Appellate Exhibit XXXVI and Appellate Exhibit LXVIII. There are
four types of entities involved in this case that are relevant for the purpose of this motion: 1)
Military organizations/entities; 2) Entities that participated in a joint investigation; 3) Other
“closely aligned” agencies; and 4) Unrelated law enforcement agencies which were specifically
identified by the Defense.
a) Military Organizations/Entities
Army Criminal Investigation Command (CID). The primary law enforcement
organization within the Department of the Army focused on investigating the accused.
Defense Intelligence Agency (DIA). An intelligence agency within the DOD which
operated the Information Review Task Force (IRTF), a DOD directed organization that
was responsible for conducting a comprehensive DOD review of classified documents
posted to the WikiLeaks website and any other associated materials.
Defense Information Systems Agency (DISA)
United States Central Command (CENTCOM) and United States Southern
Command (SOUTHCOM)
b) Joint Investigations

1

The Defense requests the testimony of Ambassador Patrick Kennedy for the purposes of this motion if the
Government maintains that the damage assessment items listed for the DOS within paragraph 16, infra, do not exist.

2

21453

FBI. The primary law enforcement organization within the DOJ, focused on
investigating matters related to the accused.
Diplomatic Security Service (DSS). The primary law enforcement organization within
the Department of State (DOS), focused on investigating matters related to the DOS.
c) Closely Aligned Organizations
Department of State. The accused is charged with compromising the DOS’s documents
and the Government intends to use additional information from the Department during its
case-in-chief.
DOJ. The Government collaborated with the federal prosecutors within the DOJ during
the accused’s investigation.
Government Agency. The accused is charged with compromising Government
Agency’s documents and the Government intends to use additional information from the
Agency during its case-in-chief.
Office of the Director of National Intelligence (ODNI). The Government intends to
use information from this Department during its case-in-chief.
ONCIX. The Court found in its ruling that ONCIX was a closely aligned agency. See
Appellate Exhibit XXXVI at 11, paras. 4, 8.
d) Unrelated Law Enforcement Files Specifically Identified by the Defense
Interagency Committee Review. The results of any investigation or review concerning
the alleged leaks in this case by Mr. Russell Travers, National Security Staff’s Senior
Advisor for Information Access and Security Policy. Mr. Travers was tasked to lead a
comprehensive effort to review the alleged leaks in this case. See Defense Discovery
Request Dated 8 December 2010 and 13 October 2011 within Appellate Exhibit VIII;
President’s Intelligence Advisory Board. Any report or recommendation concerning
the alleged leaks in this case by Chairman Chuck Hagel or any other member of the
Intelligence Advisory Board. See Defense Discovery Request Dated 13 October 2011
within Appellate Exhibit VIII;
House of Representatives Oversight Committee. The results of any inquiry and
testimony taken by House of Representative Oversight Committee led by Representative
Darrell Issa. The committee considered the alleged leaks in this case, the actions of
Attorney General Eric Holder, and the investigation of PFC Bradley Manning. See
Defense Discovery Request Dated 10 January 2011 and 13 October 2011 within
Appellate Exhibit VIII .

3

21454

ARGUMENT
A.

Information That the Government Does Not Dispute is Under Military Control

5. The Government agrees that information in the possession, custody, and control of CID, DIA,
DISA, and CENTCOM and SOUTHCOM falls within R.C.M. 701(a)(2). While the Government
has turned over some of this material, and is in the process of turning over the Information
Review Task Force Report, the Defense renews its previous discovery requests for the entire
files from these organizations related to PFC Manning, WikiLeaks, and/or the damage
occasioned by the alleged leaks (to include any document, report, analysis, file, investigation,
letter, working paper, damage assessment (or anything that can be reasonably construed as
falling within the aforementioned)).
6. In its Ruling on 23 March 2012 (Appellate Exhibit XXXI), the Court ordered the Government
to report on whether DIA (among others) had any “investigative files relevant to this case.” The
Government responded on 20 April 2012 that DIA did not have any investigative files relevant to
this case. This was surprising to the Defense given that the 12 pages of Brady material that the
Government had provided a week earlier revealed that the DIA did have what the Defense would
consider “an investigation” into the alleged leaks.
7. Apparently, the Court and the Government took a much more narrow view of “investigation”
than the Defense intended. It seems that the Government thought that the Defense was seeking
only discovery of a formal investigation into the leaks (and perhaps files labeled as
“Investigation”). The Defense did not intend in its discovery request for only formal
investigations to be turned over to the Defense. Indeed, it has always requested broad discovery
of all documents related to PFC Manning, WikiLeaks, and/or the damage occasioned by the
alleged leaks.2
8. For the sake of clarity, the Defense requests that, to the extent that they have not yet been
produced, the entire CID, DIA, DISA, and CENTCOM and SOUTHCOM files related to PFC
Manning, WikiLeaks, and/or the damage occasioned by the alleged leaks be produced to the
Defense. These files would include, but not be limited to, documents, reports, analyses, files,
investigations, letters, working papers, and damage assessments (or anything that can be
reasonably construed as falling within the aforementioned). These documents do not need to be
formal investigative files in order to be in the purview of what the Defense requests. These
documents are material to the preparation of the Defense as they will show what, if any, damage
was caused by the alleged leaks which will help the Defense prepare both for the merits and
sentencing, if necessary.
B.

Joint Investigations and Closely Aligned Agencies

2

For the purpose of this motion and subsequent motions, “damage” occasioned by the alleged leaks should be read
broadly to include any mitigation efforts to correct such damage.

4

21455

9. The Government acknowledges that the FBI and DSS participated in a joint investigation of
this case. It also acknowledges that the DOS, DOJ, Government Agency, and ODNI are closely
aligned with the Government in this case. The Court found that ONCIX was also closely aligned
with the Government in this case. Where the requested discovery is in the possession of an
entity that conducted a joint investigation or an entity that is closely aligned with the prosecution,
the discovery is deemed to be in the “possession, custody, or control of military authorities”
within the meaning of R.C.M. 701(a)(2).
10. R.C.M. 701(a)(2)(A) provides that, upon request of the Defense, the Government shall
permit the Defense to inspect:
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 material 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.
(emphasis supplied). The Government has previously maintained that because the FBI and the
DOJ are organizations not subject to a military command, then the requested materials are not
within the possession, custody, or control of military authorities. See Appellate Exhibit XLIX.
11. As argued previously, the rule does not speak to whether other organizations such as the
DOS, FBI, DOJ, ONCIX, ODNI, DSS, or Government Agency are under military control.
Rather, it speaks to whether the books, papers, documents, etc. are within the “possession,
custody or control” of military authorities. Whether a document is in the “possession, custody,
or control” of military authorities is a legal question, not a factual one. See United States v.
Santiago, 46 F.3d 885, 893 (9th Cir. 1995) (“[T]his issue involves a legal determination of the
meaning of ‘in the possession of the government[.]’”). Although the issue of what items are
legally considered to be in the “possession, custody or control” of military authorities appears to
be a question of first impression in military courts, it has frequently arisen in federal courts. See
Fed. R. Crim. P. 16 (the federal court equivalent to R.C.M. 701(a)(2)); see also United States v.
Stone, 40 M.J. 420, 422 n.1 (C.M.A. 1994) (when discussing R.C.M. 701(a)(2), noting that “a
similar right to discovery [is] provided in Fed. R. Crim. P. 16”); Drafter’s Analysis, Manual for
Courts–Martial, Rule 701 Discovery (“(a) Disclosure by the trial counsel. This subsection is
based in part on Fed. R. Crim. P. 16(a), but it provides for additional matters to be provided to
the defense . . . . [R.C.M. 701(a)(2)] parallels [then-]Fed. R. Crim. P. 16(a)(1)(C) and (D) [now
Fed. R. Crim. P. 16 (a)(1)(E)]”).
12. The language of Fed. R. Crim. P. 16 and R.C.M. 701(a)(2) is nearly identical, except that the
federal rules use the term “government” instead of “military authorities.”3 The term
3

Rule 16(a)(1)(E) reads as follows:
Upon a defendant’s request, the government must permit the defendant to inspect and to copy or
photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or
copies or portions of any of these items, if the item is within the government’s possession, custody,

5

21456

“government” under Rule 16 is synonymous with “prosecution” or “trial counsel.” See United
States v. Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997) (“Binding precedent has construed the
term government in Rule 16(a)(1) to refer to the defendant’s adversary, the prosecution, given
the repeated references to the attorney for the government in 16(a)(1)(A), (B) and (D) and
16(a)(2), and language in [then-]16(a)(1)(C) referring to papers and documents intended for use
by the government as evidence in chief at the trial.” (internal quotations omitted)). Although the
military rule parallels Fed. R. Crim. P. 16(a)(1)(E), R.C.M. 701(a)(2) is intended to be broader
than its federal counterpart, in that it requires that the Government turn over not only evidence
which is within trial counsel’s control, but also in the control of military authorities generally.4
13. The key under both of these rules is determining when a given item is considered to be
within a prosecutor’s “possession, custody, or control.” Since military courts have not addressed
this issue directly, federal court precedent is instructive in determining how the phrase
“possession, custody, or control” under R.C.M. 701(a)(2) should be interpreted.
14. The Defense incorporates its analysis of federal precedent to interpret “possession, custody,
or control” from Appellate Exhibit XLVIII. It is clear that under federal law, a prosecutor
cannot evade his discovery obligations under the federal equivalent to R.C.M. 701(a)(2) simply
by saying that the requested information is not in the possession, custody or control of the
government. Instead, the prosecutor is required to either turn over material which: i) he has
access to or knowledge of; or ii) is held by agencies that participated in a joint investigation of
the accused or by agencies that are closely aligned with the prosecution.
15. R.C.M. 701(a)(2) must be interpreted to include information that is technically in the hands
of a joint investigative agency or any other closely aligned agency. Otherwise, the trial counsel
would “be allowed to avoid disclosure of evidence by . . . leaving relevant evidence to repose in
the hands of another agency while utilizing his access to it in preparing his case for trial; such
evidence is plainly within his Rule 16 ‘control.’” United States v. Trevino, 556 F.2d 1265, 1272
(5th Cir. 1977). If R.C.M. 701(a)(2) were not interpreted in line with federal case law, all an
Army prosecutor would need to do to evade his R.C.M. 701(a)(2) discovery obligations would
be to involve aligned or cooperating agencies in the case and then ensure that these agencies kept
the evidence that the prosecutors did not want disclosed in its entirety.5 United States v.
Poindexter, 727 F. Supp. 1470, 1478 (D.D.C. 1989) (“[S]everal courts have noted that a
prosecutor who has had access to documents in other agencies in the course of his investigation
cannot avoid his discovery obligations by selectively leaving the materials with the agency once
or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
Fed. R. Crim. P. 16(a)(1)(E) (emphasis supplied).
4
To avoid confusion, it is helpful to read R.C.M. 701(a)(2) as referring to matters within the possession, custody, or
control of either trial counsel or military authorities. In this way, it parallels Rule 16, except that it allows for more
generous disclosure, in that it includes items within military control as well.
5
The Defense recognizes, of course, that the Government would still have an obligation under Brady to produce
favorable evidence.

6

21457

he has reviewed them.”). This does not comport with the spirit of R.C.M. 701(a)(2), nor the
letter of Rule 701(a)(2), properly construed. See also Article 46, UCMJ (“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.”).6
16. Under R.C.M. 701(a)(2), the Court should conclude that the below-requested discovery by
the Defense is within the “possession, custody, or control” of the Government and compel the
Government to produce the requested discovery from those agencies that participated in a joint
investigation or are closely aligned. If any such agency does not voluntarily provide the
requested information, the Court should order production of the requested information under
R.C.M. 703(f)(4)(B). The use of R.C.M. 703(f)(4)(B) recognizes that although not factually
within the “possession, custody, or control” of the Government, the items are legally within the
“possession, custody, or control” of the Government. See Appellate Exhibit LXVIII (“[T]he fact
that information controlled by another agency is discoverable under RCM 701 may make such
information relevant and necessary under RCM 703 for discovery.”).
a) FBI. The Government has produced what it has characterized as “at least Brady” material
from the FBI file. The Government has submitted heavily redacted FBI files to the Defense. As
the Court has already concluded, the requirements for discovery and production of the evidence
are the same for classified and unclassified information. The only exception is when the
Government moves for limited disclosure under M.R.E. 505(g)(2) or claims the M.R.E. 505
privilege for classified information. In the instant case, the Government has not moved for a
limited disclosure nor has it asserted the privilege on behalf of the FBI. As such, the
Government cannot submit to the Defense a redacted version of the FBI file when such a file is
within its possession, custody or control.7 The Government’s belief that it can unilaterally redact
information stems from its erroneous understanding of classified discovery. In the
Government’s motion argument the following was stated in response to the Court’s question:
6

R.C.M. 701(a)(2) must be read consistently with federal case law to include documents that are maintained or held
by agencies that are jointly investigating the accused or agencies that are closely aligned with the prosecution. If it
were not so read, then defendants in federal cases would benefit from much broader discovery rights than their
military counterparts, as those defendants would have access under Rule 16(a)(1)(E) to documents of agencies
involved in joint investigations or agencies that are closely aligned with the prosecution, while military accuseds
would not. This, in turn, could not be reconciled with the repeated statements of military courts that military
discovery is much broader than that available in civilian courts. See 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 accused.”
(emphasis omitted)); United States v. Hart, 29 M.J. 407, 410 (C.M.A. 1990) (“[D]iscovery available to the accused
in courts-martial is broader than the discovery rights granted to most civilian defendants.”); United States v.
Killebrew, 9 M.J. 154, 159 (C.M.A. 1980) (“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.”).
7
Then-CPT Fein also stated in oral argument, “And we have been working with the Federal Bureau of Investigation
to turn over any material that would be pertaining to the accused. But because that information is classified that
requires the procedures under M.R.E. 505.” See Unofficial Transcript from Motions Argument 23 February 2012, at
158. This quote recognizes that the Government has represented that it would turn over “any material” related to the
accused (not only Brady material). This is a very strong indicator that this material is in the possession, custody and
control of the Government.

7

21458

MJ: I guess that is where I am going. How does M.R.E. 505 protect disclosure of
classified information if the privilege is not invoked?
TC: Yes, ma’am. Because it gives the government the option to voluntarily--like-as Mr. Coombs pointed out, to voluntarily disclose information. To disclose
information with redactions [and] substitutions and if the defense doesn’t have an
issue with, it doesn’t require a court to make a ruling. And it goes all the way to
the other extreme of the government invoking the privilege whole cloth and then
as it is contemplated in the ah--excuse me, in the ‘in-camera’ review under
M.R.E. 505(i), that if its--if there is an unjust result by which withholding, that
the Court could then sanction the prosecution and the government.
[Unofficial Transcript from Motions Argument 23 February 2012, p. 157]
The Court has ruled that in order for M.R.E. 505 to apply, the Government must invoke a
privilege. It cannot skip over the invocation of the privilege and go straight to unilateral
redactions and substitutions. Accordingly, the Defense moves to compel disclosure of the full
FBI file as it pertains to the accused, WikiLeaks and/or the alleged leaks. If the Government
wishes to make redactions, it must follow the proper procedure under M.R.E. 505 for doing so.
b) Diplomatic Security Service (DSS). The Government has turned over limited files from
its joint investigation with DSS. The discovery provided deals only with the item charged in
Specification 14 of Charge II. The Government has not turned over any DSS files or
investigation dealing with Specifications 12 or 13 of Charge II. The Defense moves for the full
DSS file as it pertains to the accused, WikiLeaks and/or the alleged leaks.
c) Department of State. The Government has provided the Court what is has stated is the
only document that addresses the ongoing DOS damage assessment and review (what the
Government refers to as “the damage assessment”). The Government has not provided, to the
Defense’s knowledge, any documents related to the following:
(1) The Chiefs of Mission review of the released cables at affected posts discussing their
initial assessment, as well as their opinion regarding the overall effect that the WikiLeaks
release could have on relations within their host country, if any;
(2) The WikiLeaks Working Group composed of senior officials throughout the
Department that was created to review potential risks to individuals from the release of
cables by WikiLeaks, if any;
(3) The “Mitigation Team” created by the Department of State to address the policy,
legal, security, counterintelligence, and information assurance issues presented by the
release of the documents to WikiLeaks, if any; AND
(4) The Department’s reporting to Congress concerning any effect caused by the
WikiLeaks’ disclosure and the steps undertaken to mitigate them, if any. The
Department convened two separate briefings for members of both the House of
Representatives and the Senate in December of 2010. The Department also appeared
8

21459

twice before the House Permanent Select Committee on Intelligence on 7 and 9
December 2010.
The Defense moves for each of these specifically-requested items, as well as any other
documents related to the accused, WikiLeaks and/or the alleged leaks.8
d) DOJ. The Government collaborated with the federal prosecutors within the DOJ during
the accused’s investigation. The Government has not turned over any substantive material
related to this investigation from the DOJ. The Defense moves for any documents from the DOJ
related to the accused, WikiLeaks and/or the alleged leaks.
e) Government Agency. The accused is charged with compromising Government Agency’s
documents and the Government intends to use additional information from the Agency during its
case-in-chief. The Government has yet to produce any internal investigation (to include working
papers and other internal documents, reports or files) or damage assessment from this agency.
The Defense moves for any documents from Government Agency related to the accused,
WikiLeaks and/or the alleged leaks.
f) Office of the Director of National Intelligence (ODNI). The Government intends to use
information from this Department during its case-in-chief. Yet, the Government has not turned
over any documents by ODNI. The letter to ODNI from the Assistant General Counsel of the
Federal Trade Commission regarding the “documents that were compromised in the Department
of State’s Net-Centric Diplomacy database” clearly shows that ODNI has conducted some sort of
internal review of the cables. See Attachment to Appellate Exhibit XXXI. The Defense moves
for any documents from ODNI related to the accused, WikiLeaks and/or the alleged leaks.
g) ONCIX. The Government has claimed this agency does not have any forensic reports,
investigation, or damage assessment. However, the 12 pages of Brady material produced to the
Defense clearly indicates that ONCIX has material responsive to the Defense’s request under
R.C.M. 701(a)(2). See id. As such, the Defense moves for any documents from ONCIX related
to the accused, WikiLeaks and/or the alleged leaks.
17. The Court should conclude that the files from the above listed agencies are within the
possession, custody, or control of the Government under R.C.M. 701(a)(2) and order that all the
requested documents be produced to the Defense.
C. The Government’s Brady Search
18. The Government has a due diligence duty to search for evidence that is favorable to the
defense and material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); R.C.M.
701(a)(6). The trial counsel’s due diligence duty applies to: “(1) the files of law enforcement
authorities that have participated in the investigation of the subject matter of the charged offense;
8

Again, to avoid any confusion, the Defense is requesting any document, report, analysis, file, investigation, letter,
working paper, damage assessment (or anything that can be reasonably construed as falling within the
aforementioned)) related to the accused, WikiLeaks and/or the damage occasioned by the leaks. If the Government
maintains that such documents do not exist, the Defense requests Ambassador Patrick Kennedy be required to testify
regarding the above information.

9

21460

(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.” United States v. Williams, 50 M.J. 436,
441 (C.A.A.F. 1999) (internal quotations and citations omitted).
19. “For relevant files known to be under the control of another governmental entity, Trial
Counsel must make the fact known to the Defense and engage in good faith efforts to obtain the
material.” Appellate Exhibit XXXVI at 8, para. 3. The Defense has requested specific
information from within a specified entity in at least the following three instances:
a) Interagency Committee Review. The results of any investigation or review concerning
the alleged leaks in this case by Mr. Russell Travers, National Security Staff’s Senior Advisor
for Information Access and Security Policy. Mr. Travers was tasked to lead a comprehensive
effort to review the alleged leaks in this case;
b) President’s Intelligence Advisory Board. Any report or recommendation concerning the
alleged leaks in this case by Chairman Chuck Hagel or any other member of the Intelligence
Advisory Board; and
c) House of Representatives Oversight Committee. The results of any inquiry and
testimony taken by House of Representative Oversight Committee led by Representative Darrell
Issa. The committee considered the alleged leaks in this case, the actions of Attorney General
Eric Holder, and the investigation of PFC Bradley Manning.
See Defense Discovery Request Dated 8 December 2010, 10 January 2011 and 13 October 2011
within Appellate Exhibit VIII.
20. The Government has failed to inform the Defense that the requested files were under the
control of another government entity and has also failed to document its good faith efforts to
obtain the requested relevant material. The Government should be required to state the steps it
has taken to comply with its requirements under R.C.M. 701(a)(6). Specifically, the Government
should respond to the following four questions:
a) Has the Government attempted to contact the identified agency to conduct a Brady review
under R.C.M. 701(a)(6)?
b) When did the Government make its inquiry?
c) How many documents did the Government review?
d) What were the results of the Government’s inquiry? In particular, do any of these
discovery requests contain Brady material?
21. The Defense also requests that the Court order the Government to respond to the above
questions not only for these three specific requests, but for all agencies that the Government has

10

21461

contacted to conduct a review under R.C.M. 701(a)(6) to ensure that it has, in fact, complied
with its Brady obligations.
22. The Defense to date has received only 12 pages of Brady material (and apparently, some
Brady material may be buried within the FBI file). The Defense believes, based on the 12 pages
of Brady, that other organizations have similar documents, files, assessments, working papers,
reports, etc. that support the Defense’s argument that the alleged leaks did little to no damage.
The Defense thus requests that the aforementioned questions be answered for each of the 63
relevant agencies, and any other organization that the Government contacted for Brady
information. 9 At the very least, the Government should be prepared to state, on the record, that
its search of the 63 relevant agencies and other organizations it has contacted has not yielded any
Brady material (i.e. material that is favorable to the accused, in that it reasonably tends to reduce
guilt, negate guilt, or reduce punishment). In making such a statement, the Government should
provide a statement of exactly what it asked for from these agencies.
23. The Defense further requests that the Government provide Brady material from the
specifically-mentioned agencies and files in Part (A) and (B) of this motion and/or state that it
has reviewed the relevant files and that there is no Brady information within these files. In
particular, the Defense requests that the Government provide Brady material from the following
files:
a) Files that the Government does not dispute are within military custody, possession and
control under R.C.M. 701(a)(2) (i.e. CID, DIA, DISA, and CENTCOM and SOUTHCOM);
b) Files that the Defense believes are within the custody, possession and control of military
authorities under R.C.M. 701(a)(2) because such agencies have conducted a joint investigation or
are closely aligned with the prosecution. In particular, the Defense requests Brady material from
the following agencies:
(1) FBI. The Government has produced what it has characterized as “at least Brady”
material from the FBI file. The Defense requests that the Government specify what it
believes is Brady material and certify that this is the only Brady material contained in
the entire FBI file.
(2) Diplomatic Security Service (DSS). The Defense requests that the Government
produce all Brady material from DSS, or certify that such Brady material does not
exist.
(3) Department of State. As indicated, the Government has not provided any
documents related to the following:
(i) The Chiefs of Mission review of the released cables at affected posts
discussing their initial assessment, as well as their opinion regarding the
9

Question A for all other agencies that the Government has contacted to conduct a review under R.C.M. 701(a)(6)
should be changed to require a response to “Which specific agencies has the Government contacted to conduct a
Brady review under R.C.M. 701(a)(6)?

11

21462

overall effect that the WikiLeaks release could have on relations within their
host country, if any;
(ii) The WikiLeaks Working Group composed of senior officials throughout
the Department that was created to review potential risks to individuals from
the release of cables by WikiLeaks, if any;
(iii) The “Mitigation Team” created by the Department of State to address the
policy, legal, security, counterintelligence, and information assurance issues
presented by the release of the documents to WikiLeaks, if any; AND
(iv) The Department’s reporting to Congress concerning any effect caused by
the WikiLeaks’ disclosure and the steps undertaken to mitigate them, if any.
The Department convened two separate briefings for members of both the
House of Representatives and the Senate in December of 2010. The
Department also appeared twice before the House Permanent Select
Committee on Intelligence on 7 and 9 December 2010.
The Defense requests that the Government produce Brady material from each of these
specifically-requested items as well as Brady material from the entire DOS file
related to the accused, WikiLeaks and/or the alleged leaks, or certify that such Brady
material does not exist.
(4) DOJ. The Defense requests that the Government produce all Brady material
from the DOJ, or certify that such Brady material does not exist.
(5) Government Agency. The Defense requests that the Government produce all
Brady material from Government Agency, or certify that such Brady material does
not exist.
(6) Office of the Director of National Intelligence (ODNI). The Defense has
already received some Brady material related to ODNI. The Defense requests that the
Government produce all Brady material from ODNI, or certify that such Brady
material does not exist.
(7) ONCIX. The Defense has already received some Brady material related to
ONCIX. The Defense requests that the Government produce all Brady material from
ONCIX, or certify that such Brady material does not exist.
24. In summation, the Defense requests:
a) Brady material from the Interagency Committee Review; the President’s Intelligence
Advisory Board; the House of Representatives Oversight Committee;
b) Brady material from files that the Government does not dispute are within military
custody, possession and control under R.C.M. 701(a)(2) (i.e. CID, DIA, DISA, CENTCOM and
SOUTHCOM) and Brady material responsive to the 17 April 2012 HQDA Memo (discussed
below).
12

21463

c) Brady material from files that the Defense believes are within the custody, possession and
control of military authorities under R.C.M. 701(a)(2) because such agencies have conducted a
joint investigation or are closely aligned with the prosecution (i.e. FBI, DSS, DOS, DOJ,
Government Agency, ODNI, ONCIX);
d) That the Government respond to the following four questions in respect to each of the
aforementioned requests:
(1) Has the Government attempted to contact the identified agency to conduct a
Brady review under R.C.M. 701(a)(6)?
(2) When did the Government make its inquiry?
(3) How many documents did the Government review?
(4) What were the results of the Government’s inquiry? In particular, do any of these
discovery requests contain Brady material?
e) That the Government respond to the following four questions in respect to each of each of
the other 63 agencies and other organizations it has contacted in its search for Brady material:
(1) Which agencies did the Government contact to conduct a Brady review under
R.C.M. 701(a)(6)?
(2) When did the Government make its inquiry?
(3) How many documents did the Government review?
(4) What were the results of the Government’s inquiry? In particular, do any of these
discovery requests contain Brady material?
25. The Defense has consistently maintained – and continues to maintain – that the Government
has not understood its Brady obligations. The Defense also believes that, to the extent that the
Government is conducting a Brady search, it is not doing so in a diligent and timely manner.
26. The Defense has just learned that on 29 July 2011, the Government sent out a memo to
Headquarters, Department of the Army requesting it to task Principal Officials to search for, and
preserve, any discoverable information.10 See Attachment A (Department of the Army
Memorandum dated 17 April 2012). According to a 17 April 2012 Memorandum for Principal
Officials of Headquarters, Department of the Army, “[i]t was only recently determined that no
action had been taken by HQDA pursuant to the 29 July 11 memo from DOD OGC.” Id. This
memo shows that no action had been taken by HQDA for nine months in response to the
Government’s request for Brady and other potentially discoverable material. In other words, the
10

The Defense also requests that this Court compel production of the HQDA file related to the 17 April 2012
request under R.C.M. 701(a)(2) and 701(a)(6).

13

21464

Government has not yet completed a Brady search of its own files (i.e. files which are clearly in
the possession, custody, and control of military authorities) even though two years have elapsed
since PFC Manning was arrested. That the Government cannot “get its ducks in a row” with
respect to discovery which is clearly under its control does not inspire confidence that the
Government has diligently conducted a Brady search of other agencies.
27. In fact, there are huge questions and inconsistencies in the Government’s statements
regarding its search for Brady material. See also Appellate Exhibits XXVI, XXXI, and XLVIII.
For instance, the Defense received 12-pages of Brady material several weeks ago, detailing
responses by various government agencies that the alleged leaks did little to no damage to those
organizations. The Defense was troubled that it was only now receiving such Brady material.
Based on the nature of that Brady material, the Defense believes there is much more similar
Brady material out there that the Government has not disclosed. The Defense asked the
Government why it was only now receiving such material. MAJ Fein’s response was as follows:
Since prior to referral, we have been coordinating with different federal
organizations which we have reason to believe prepared an assessment, as a result
of our continuing Williams and/or ethical obligations. Those organizations began
providing us with these assessments as early as a few weeks ago and as recent as a
few days ago. We adopted an efficient method of receiving, reviewing, and, if
necessary, obtaining approval for the disclosure of the assessments, so that we can
produce the discoverable portions, if any, to the defense as soon as possible.
These assessments are the most current.
The prosecution will continue to produce as much information as authorized to
mirror open-file discovery, but only pursuant to the authority we receive, based on
balancing disclosure with protecting national security.
See Attachment B (Email from Ashden Fein, 17 April 2012).
28. There are several troubling aspects to MAJ Fein’s statement.11 First, MAJ Fein states that
although the Government has been coordinating with several different organizations (presumably
the 63 organizations the Government has previously referenced), these organizations “began
providing us with these assessments as early as a few weeks ago.” Apparently, the Government
is saying that it took almost two years for organizations to provide the Government with
discoverable information. It appears that, with the vast majority of the 63 organizations, the
Government has yet to receive (much less disclose) Brady information. What is even more
problematic is that the Government represented at an earlier 802 session that it had already
searched the various agencies and that these agencies did not possess any Brady material. This
makes no sense: either the Government has already searched the agencies and there is no Brady
material, or the Government has not yet searched the agencies and there may be Brady material.

11

The Defense would point out that in this email, MAJ Fein himself referred to these interim documents four times
as “assessments.” In light of this, the Government cannot claim it did not understand what the Defense was asking
for when it asked for damage assessments or assessments of damage/harm to national security.

14

21465

29. Second, the Government still seems to believe that it is the arbiter of what should or should
not be disclosed in the interests of national security. It states that the prosecution will continue to
provide as much information as authorized, “based on balancing disclosure with protecting
national security.” Given that the email concerned documents which referenced damage from
the leaks (or lack thereof), the discoverable material the Government was talking about was
Brady material. The Defense reads the Government’s email as saying that it will conduct a
balancing test to determine what Brady information is discoverable. As previously argued, it is
not the role of the Government to balance the rights of the accused with national security.
30. Third, in response to the Defense’s question, “Additionally, some of these assessments are
interim assessments. Do you have any follow up assessments? at 6:42 pm on 16 April 2012, the
Government replied at 9:47 on 17 April 2012 that “[t]hese assessments are the most current.”
Given the incredibly short turn-around time on the Government’s response, it is hard to believe
that the Government actually checked to see if these were the latest assessments. In fact, two
things would support the fact that they may not be the most recent assessment of damage. These
documents were prepared in November 2010, in the immediate aftermath of the leaks; it is likely
that these agencies would also be asked to look into the longer-term impact of the leaks. Further,
the Government has repeatedly stated that assessing damage is something that takes place over a
period of years, not just at one snapshot of time. It is unlikely that an agency would simply rely
on one snapshot in November 2010 to assess the impact of the leaks and then never return again
to the issue.
31. The aforementioned is intended to provide concrete examples that the Government is not
diligently fulfilling its Brady obligations. Regardless of whether the Government’s conduct
amounts to a discovery violation, this Court has actual knowledge that things are remiss in the
Government’s Brady search. Accordingly, this Court cannot continue to accept on faith that the
Government has understood its Brady obligations and that it is diligent in fulfilling them. See
United States v. Cerna, 633 F. Supp. 2d 1053, 1056 (N.D. Cal. 2009) (noting that “[t]he
government is fond of saying that it knows its Brady obligations and will honor them.”); 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, No. 99 CR
689, 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.”);
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.” (citation omitted)). The latest memo from HQDA
reveals the Government’s utter lack of diligence in undertaking its Brady search. Why would the
Government wait until over a year after preferral of charges to begin its search for Brady
material? How could the Government not have noticed that for nine months, it had not received
any material from any principal officials in the Army? If the Government cannot even search its
15

21466

own files properly, how can we believe them when they say they have diligently searched the
files of other organizations? In order to ensure that the Government has done what it actually
claims it is doing, it must provide an accounting for its Brady search. If the Government has
nothing to hide, then it should not object to providing this Court and the Defense with a
comprehensive accounting of its Brady search.
D. The Government’s Evidence in Merits and Sentencing
32. The Government has a requirement, after service of charges, upon request of the Defense, to
permit the Defense to inspect material intended for use by the trial counsel as evidence in the
prosecution case-in-chief at trial. R.C.M. 701(a)(2). Additionally, upon request of the Defense,
the trial counsel shall permit the Defense to inspect written material that will be presented at the
presentencing proceedings. R.C.M. 701(a)(5)(A). The Government has indicated that it intends
to use information from at least the DOS, Government Agency, and ODNI. The Defense has
previously requested timely access to this information, and the Court indicated that it would not
allow the Government to wait until the eve of trial to provide access to the requested
information.
33. The trial is currently scheduled to begin on 21 September 2012. The Defense believes that
timely access to this information should begin now. The Government has had over two years to
cull through the charged information and review documents from the various named agencies.
During this time, the Government has been permitted to select which information it believes
should be used for merits and which for sentencing. The Defense has not had equal access to
this same information, or the ability to factor this information into the defense’s theory on the
merits or any possible sentencing case. The requested information is material to the preparation
of the defense, and should be turned over immediately. To allow the Government to restrict the
Defense’s access to this information is to provide the Government with an unfair tactical
advantage that will likely prejudice PFC Manning’s right to a fair trial.
CONCLUSION
34. In accordance with the above, the Defense requests that the Court order that:
a) Full investigative files by CID, DIA, DISA, and CENTCOM/SOUTHCOM related to PFC
Manning, WikiLeaks, and/or the damage occasioned by the alleged leaks be produced to the
Defense under R.C.M. 701(a)(2). Further, that the HQDA file related to the 17 April 2012
request be produced under R.C.M. 701(a)(2) and 701(a)(6).
b) FBI, DSS, DOS, DOJ, Government Agency, ODNI, and ONCIX files in relation to PFC
Manning and/or Wikileaks be produced to the Defense, or alternatively, that they be produced
for in camera review to determine whether the evidence is discoverable under R.C.M. 701(a)(2)
as being material to the preparation of the defense. If the Court concludes that the files of the
above agencies are not within the possession, custody or control of military authorities, the
Defense still requests that the Court order production of the entire file under the “relevant and
necessary” standard under R.C.M. 703;
16

21467

c) The Government state with specificity the steps it has taken to comply with its
requirements under R.C.M. 701(a)(6);
d) The Government produce Brady materials from certain identified agencies;
e) The Government produce all evidence intended for use in the prosecution case-in-chief at
trial obtained from DIA, DISA, CENTCOM/SOUTHCOM, FBI, DSS, DOS, DOJ, Government
Agency, ODNI, ONCIX and any aggravation evidence that it intends to introduce during
sentencing from the above named organizations.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

17



ATTACHMENT A



21469

DEPARTMENT OF THE ARMY
omce or me CHBEF or sun
zoo mm PENTAGON
WASHINGTON oc 20310-o2oo

S: 23 April 2012

DAJA-CL
APR 17 2012

MEMORANDUM FOR PRINCIPAL OFFICIALS OF HEADQUARTERS, DEPARTMENT
OF THE ARMY

SUBJECT: Preservation and Production of Records Relating to PFC Bradley E.
Manning

1. Request your assistance in searching for and preserving any documents or ?les with
material pertaining to: any type of investigation; working groups; resources provided to
aid in rectifying an alleged compromise of government infonnation; damage
assessments of the alleged compromise; or the consideration of any remedial measures
in response to the alleged activities of PFC Manning and WikiLeaks. See enclosures
for further details. Provide an af?rmative response with production of records. or a
negative response, by 23 Apr 12 to the points of contact below.

2. My points of contact for this action are LTC Charles Lozano, commercial:
1 or MAJ Alyssa Adams, commercial:





FOR THE SECRETARY OF THE ARMY:

Encls WILLIAM .

Lieutenant General, U.S. Anny
Director of the Army Staff

21470

FOUO
4. OFFICE SYMBOL s. SUBJECT
DAJA-CL SUBJECT: Preservationand Bndieyr?.
Manning

s. Eccpoc DRE (L

33; couuanrszulapts cog?rm?

7. EXECUTIVE MMARYIACTION MEMORANDUM

Key Points

3 The U.S. Army is prosecuting PFC Bradley E. Manning under the Uniform Code of Military Justice
(UCMJ) for alleged illegal collection and disclosure of national defense and foreign relations information.

are requesting the preservation and production of records relating totheeourt.
martial case of U.S. v. PFC Manning.

it was only recently determined that no action had been taken by HQDA pursuant to the 29 Jul 11 memo
from OGC. .

Ofiice of the General Counsel memo, 29 Jul 11.

Encl: TAB A: Memo for DAS signature
TAB B: OTJAG Criminal Law Division, memo 29 Mar 2012. ucix
TAB C: OGC memo. 29 Jui 2011. Ha. -. 1.
1. Purpose:
To obtain DAS approval on memo tasking HQDA Principal Officials to search for and preserve any documents or
tiles pertaining to PFC Bradley E. Manning, and provide an affirmative response to OTJAG.
2. Discussion:

a. DOD OGC is requesting that HQDA search for and preserve any documents with material pertaining to: any
type of investigation; working groups; resources provided to aid in rectifying an alleged compromise of
government Information; damage assessments of the alleged compromise; or the consideration of any remedial
measures in response to the alleged activities of PFC Manning and

b. Any relevant evidence is to be preserved and provided to the prosecutors in the court-martial of PFC Bradley
Manning for discovery purposes.

3. Recommendation:
and sign memo at TAB A.

COMPLETED





MHODA FORM 5. 2011 FOUO I




APPROVED DISAPPROVED COMMENT



or 3


21471

FOUO
0. LEAD AGENCY STAFF COORDINATION TRACKING NUMBER:
mu guy? nm: on mm mu: rw?f??ol
Ch. CLD COL Chuck Pede. Chief, Criminal Law Division. zmk?n;
AJAG BG John w. Miller In, Assistant Judge Advocate General - .3
pamc-um NV LTG Dana K. Chipman. TJAG um-no
ACTIGH OFFICER
LTC Charles Lozan_o-6
FILE LOCATION:

RECOMMENDATION FOR Proctor, -4
9. STAFF COOFIDINATIGI
cououn mus (nne. ussrmue) more neumcs

10. Rsuulxsavtoc:

Io. ?orcana?a ?uua auzuhn






ATTACHMENT



21473

From: "Fein, Ashden MAJ USA







0
Date: Tue, Apr 17, 2012 9:47 am
To: "David Coombs"
Cc: "Bouchard. Paul CPT USARMY


Overgaard, Angel M. CPT USA
'Whyte, Jeffrey H. CPT USA
nElten, Alexander S. 1LT USA
"Ford, Arthur D. CW2 USA

David,

Since prior to referral. we have been coordinating with different federal
organizations which we have reason to believe prepared an assessment. as a
result of our continuing Williams and/or ethical obligations. Those

organizations began providing us with these assessments as early as a few
weeks ago and as recent as a few days ago. We adopted an ef?cient method of
receiving, reviewing, and, if necessary. obtaining approval for the

disclosure of the assessments, so that we can produce the discoverable
portions, if any, to the defense as soon as possible. These assessments are
the most current.

The prosecution will continue to produce as much information as authorized to
mirror open-?le discovery, but only pursuant to the authority we receive.
based on balancing disclosure with protecting national security.

v/r
Ashden



From: David Coombs
Sent: Monday, April 16, 2012 6:42 PM

To: Fein. Ashden MAJ USA SJA

Subject: RE: Discovery

Ashden,

With regards to I am not clear when the Government received these
assessments. I understand from your email that you reviewed the assessment
over the past few weeks. but how long have you had these assessments?
Additionally, some of these assessments are interim assessments. Do you
have any follow up assessments?

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



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

21474

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 MAJ USA SJA

Sent: Monday. April 16, 2012 5:48 PM

To: David Coombs; Overgaard, Angel M. CPT USA JFHQ-NCRIMDW Morrow
JoDean, CPT USA Whyte. Jeffrey? N. CPT USA
VonElten, Alexander S. 1LT USA SJA

Cc: Tooman. Joshua USARMY

Subject: RE: Discovery
David,

Below are our responses to the applicable questions. The others should be
OBE or subject to other emails today.

1) The prosecution has been working with many government agencies pursuant
to our obligation to search for discoverable information under Williams. As

we identify discoverable information, we seek approvals to release the
information. Over the past few weeks, we reviewed these particular
assessments; identi?ed discoverable information contained within, obtained
approvals to release them, and produced them to the defense as soon as
possible.

2) The prosecution continues to review additional unclassi?ed
assessment(s), and will diligently work to obtain approvals to turn the
discoverable portions, if any, over in discovery.

4) The United States will notify you of the individual, once we receive the
infonnation. We expect this decision in the next few days. Additionally,
we will work to provide you contact infonnation for the individual and/or
setup a time prior to the motions hearing for you to interview the
individual.

5) I am con?dent we can work on this as we move forwardposition to send any as of yet. We will address this issue after the next
motions hearing.

7) I will check with Mr. Parra about this issue.

8) The Department of State is processing your Touhy request and we were
told
that they might have an answer by the end of this week.

9) Please see your previous email at the very bottom.

A) Defense expert witnesses. We should be able to give you a comprehensive
answer on the status of funding for your experts and their contract issues

by Wednesday. as per my email last week. Once CW2 Parra returns this is his
priority. They are currently funded for their travel tomorrow. SGT Feito

is making their reservations and has been trying to contact them.

8) OCA POCs.
1. Rear Admiral David Woods (CDR Thomas Welsh. SJA. JTF-GTMO.

2. LT Gen Schmidle (LTC Lisa Gumbs, OSJA. CYBERCOM at? 3.
Vice Admiral Robert Harward (should obtain tomorrow) 4. Rear Admiral Donegan

21475

(should obtain tomorrow)

v/r
Ashden



From: David Coombs

Sent: Friday, April 13, 2012 5:57 PM

To: Fein, Ashden MAJ USA JFHQ-NCRIMDW Overgaard, Angel M. CPT USA
Morrow JoDean, CPT USA Whyte,
Jeffrey H. CPT USA VonE|ten. Alexander S. 1LT USA
SJA

Cc: 'Tooman. Joshua CPT USARMY

Subject: Discovery

Ashden,

I received the unclassi?ed discovery today. Also, the classified discovery
was received by NWC. I have arranged to see the facility next week at the
NWC.

I have a couple of questions that I would like to have answers to:

1) With regards to the unclassi?ed damage assessments provided in
discovery, when did the Government receive these documents?

2) Are there any more unclassi?ed damages assessments in the Government's
possession?

3) Do you have an update on the 14 hard drives?

4) Who is the Government bringing from the Department of State for the
motions hearing? Can you provide this person's contact information?

5) Are you planning on providing me with your proposed If so.
perhaps this is something we can agree upon.

6) Did you receive the emails from COL Lind regarding her email problems?

7) I have forwarded the documentation regarding badges for my family. Has
Mr. Parra heard anything on that issue?

8) Has the DOS provided any further updates on my Touhy request?

9) When does the Government plan to have PFC BM in the Fort Meade area?
Additionally, is the plan to return him to the JRCF immediately after the

39(a) is completed? The Defense's preference would be to return PFC BM to
military control at the JRCF.

Thank you for your attention to the above matters.

Best,
David

David E. Coombs, Esq.

Law Oflice 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

21476

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

)
)
)
)
)
)
)
)
)

Prosecution Response
to Defense Motion to
Compel Discovery #2
24 May 2012

RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny, in part, the Defense Motion to Compel Discovery #2. The
prosecution requests that this Court deny the following:
( 1 ) the production, inspection, or in camera review of all Defense Intelligence Agency
(DIA), Defense Information Systems Agency (DISA), United States Central Command
(CENTCOM), United States Southern Command (SOUTHCOM), and Headquarters, Department
of the Army (HQDA) records related to the accused, WikiLeaks, and/or damage resulting from
the charged offenses for failing to provide a specific request or an adequate basis under RCM
701 (a)(2);
(2) the production, inspection, or in camera review of all Federal Bureau of Investigation
(FBI), Diplomatic Security Service (DSS) Department of State (DoS), Department of Justice
(DoJ), Government Agency, Office of the Director of National Intelligence (ODNI), and Office
of the National Counterintelligence Executive (ONCIX) records related to the accused,
WikiLeaks, and/or damage resulting from the charged offenses under RCM 70 1 (a)(2) because
such files are outside the "possession, custody, or control of military authorities, " or, in the
alternative, for failing to provide a specific request or an adequate basis under RCM 701 (a)(2);
(3) the production of all FBI, DSS, DoS, DoJ, Government Agency, ODNI, and ONCIX
records related to the accused, WikiLeaks, and/or damage resulting from the charged offenses
under RCM 703 for failing to provide a specific request or an adequate basis under RCM 703;
and
(4) requiring the prosecution to respond to inquiries relating to its .due diligence search
for discoverable information as being without a factual or legal basis.
The prosecution continues its Williams and ethical search for Brady material and either
has produced, or is diligently working to produce, any discovered material. See United States v.
Williams, 50 M.J. 436, 44 1 (C.A.A.F. 1 999); see also Brady v. Maryland, 373 U.S. 83, 87 ( 1 963)
(favorable to the accused and material either to guilt or punishment).

1

21477

BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the defense bears the burden of persuasion on any factual issue, the
resolution of which is necessary to decide the motion. Manual for Courts-Martial (MCM),
United States, Rule for Courts-Martial (RCM) 905(c)(2) (2008). The burden of proof is by a
preponderance of the evidence. RCM 905(c)( l ).
FACTS

The prosecution provides the following facts in support of this motion.
I:

GOVERNMENT ORGANIZATIONS.

The prosecution agrees with the defense that Army Criminal Investigation Command
(CID), DIA, DISA, CENTCOM, and SOUTHCOM are military organizations or entities. See
Def. Mot. at 2; see also Appellate Exhibit (AE) XLIX at 4-5; see also AE L at 2.
The prosecution agrees with the defense that the FBI, DSS, DoS, Dol, Government
Agency, ODNI, and ONCIX are not military organizations or entities. See Def. Mot. at 2; see
also AE XLIX at 4-5; see also AE L at 4 (defense stated that "[n]o one is disputing what military
authorities are").
The prosecution has produced the entire CID case file relating to the accused, WikiLeaks,
and/or the damage resulting from the charged offenses and understands its continuing obligation
to produce any subsequent material.
The prosecution agrees with the defense that the FBI and DSS participated in a joint
investigation with CID of the accused. See Def. Mot. at 2-3; see also AE XLIX at 4-5; see also
DoD Directive 5525.7.
The prosecution agrees with the defense that the DoS, Dol, Government Agency, and
ODNI are entities closely aligned with the prosecution. See Def. Mot. at 3; see also AE XLIX at
4-5. The prosecution does not agree that ONCIX is an entity closely aligned with the
1
prosecution. See Williams, 50 M.J. 44 1 . However, in light of the prosecution's existing
obligation to search the files of ONCIX, the prosecution does not presently request
reconsideration of the Court's ruling. See id.

1 The ONCIX is a subordinate organization to ODNI. See Office of the National Counterintelligence Executive,
About Us, available at https://www.ncix.gov/about.php (last visited 22 May 201 2). The prosecution is closely
aligned with ODNI, however, the prosecution is not closely aligned with all its subordinate organizations, to include
ONCIX. The prosecution is not closely aligned with ONCIX because they do not share a working relationship. See
AE XLIX at 4-5. The prosecution has not been given access to review all ONCIX records. The prosecution is
actively seeking authority to review such records for RCM 701 (a)(6) and Brady.

2

21478

The FBI is a subordinate organization to DoJ. The FBI and DoJ are not Department of
Defense (DoD) agencies operating under Title 10 status or subject to a military command.
2
Neither DoD nor any military command exercises control over the FBI or DoJ. See id.
DSS is the security and law enforcement arm of the DoS. The DSS and DoS are not DoD
agencies operating under Title 10 status or subject to a military command. Neither DoD nor any
3
military command exercises control over the DSS or DoS. See id.
The ODNI, ONCIX, and Government Agency are not DoD agencies operating under
Title 10 status or subject to a military command. Neither DoD nor any military command
exercises control over the ODNI, ONCIX, and Government Agency. See id.
II:

DEFENSE DISCOVERY REQUESTS.

The prosecution agrees with the defense that, on 8 December 2010, the defense requested
the discovery of the "results of any investigation or review by Mr. Russell Travers who has been
appointed by President Obama to head an interagency committee assigned to assess the damage
caused by Wikileaks exposures and to organize efforts to tighten security measures in
government agencies." Def. Mot. at 1 9(a). On 1 2 April 201 1 and in response to the 8 December
20 1 0 request, the prosecution responded that the "defense has failed to provide any basis for its
request." Attachment M to AE VITI. Since 1 2 April 2011, the defense has not provided any
factual basis or legal authority for its request.
The prosecution agrees with the defense that, on 13 October 20 11, the defense requested
the discovery of "[a]ny report or recommendation concerning the alleged leaks in this case by
Mr. Russell Travers, National Security Staff's Senior Advisor for Information Access and
Security Policy." Def. Mot. at 19(a). On 27 January 2012 and in response to the 13 October
2011 request, the prosecution responded that the "defense has failed to provide an adequate basis
for its request." Attachment M to AE VIII. Since 27 January 201 2, the defense has not provided
any factual basis or legal authority for its request.
The prosecution agrees with the defense that, on 13 October 2011, the defense requested
the discovery of "[a]ny report or recommendation concerning the alleged leaks in this case by
Chairman Chuck Hagel or any other member of the Intelligence Advisory Board." Def. Mot. at
19(b). On 27 January 2012 and in response to the 1 3 October 2011 request, the prosecution
responded that it "has no knowledge of any such records, outside publicly made statements
through press conferences or media organizations, equally accessible by the defense" and that
"[t]he defense is invited to renew its request with more specificity and an adequate basis for its

2

From the onset of this case, the prosecution has defined Dol as Main Justice and the United States Attorney's
Offices, and not its subordinate organizations, to include the FBI. See AE XLIX at 5. The Dol and FBI maintain
distinct roles in this case and, as such, are not, and cannot be, synonymous for discovery purposes.
3 From the onset of this case, the prosecution identified the distinct roles of DoS and DSS in this case. See AE
XLIX at 4. The DoS and DSS are not, and cannot be, synonymous for discovery purposes.

3

·

21479

request." Attachment M to AE VIII. Since 27 January 2012, the defense has not provided any
4
factual basis or legal authority for its request.
The prosecution agrees with the defense that, on 1 0 January 201 1 , the defense requested
the discovery of the "results of any inquiry and testimony taken by House of Representative
oversight committee led by Representative Darrell Issa. The committee is due to look into
Wikileaks, the actions of Attorney General Eric Holder, and the investigation of PFC Bradley
Manning." Def. Mot. at 19(c). On 12 April 20 1 1 and in response to the 10 January 20 1 1
request, the prosecution responded that it "has no knowledge of any such records, outside
publicly made statements through press conferences or media organizations, equally accessible
by the defense." Attachment M to AE VIII. Since 1 2 April 2011, the defense has not provided
any additional information to support its request.
The prosecution agrees with the defense that, on 13 October 2011 , the defense requested
the "results of any inquiry and testimony taken by House of Representative oversight committee
led by Representative Darrell Issa,. The committee discussed the actions of WikiLeaks, the
actions of Attorney General Eric Holder, and the investigation of PFC Bradley Manning." Def.
Mot. at 1 9(c). On 27 January 2012 and in response to the 13 October 201 1 request, the
prosecution responded that it "has no knowledge of any such records, outside publicly made
statements through press conferences or media organizations, equally accessible by the defense"
and that "[t]he defense is invited to renew its request with more specificity and an adequate basis
for its request." Attachment M to AE VIII. Since 27 January 201 2, the defense has not
provided any additional information to support its request.
III:

FORENSIC RESULTS OR INVESTIGATIVE FILES.

On 20 April 20 1 2, the prosecution notified the Court that the DoS has forensic results or
investigative files, that the prosecution reviewed those materials for evidence that is favorable to
the accused and material to either guilt or punishment, and that the prosecution has produced this
material to the defense. See AE LVI.
On 20 April 2012, the prosecution notified the Court that the FBI has forensic results or
investigative files and that the prosecution was reviewing those materials for evidence that is
favorable to the accused and material to either guilt or punishment: See id. Since then, the
prosecution has produced, at a minimum, all evidence from the applicable FBI forensic results or
investigative files that is favorable to the accused and material to either guilt or punishment.
On 20 April 20 1 2, the prosecution notified the Court that DIA and ONCIX do not have
any forensic results or investigative files. See id.
On 2 May 201 2, the prosecution notified the Court that the CIA has forensic results or
investigative files and that the prosecution reviewed those materials for evidence that is
favorable to the accused and material to guilt or punishment. See Enclosure. Since then, the

4

The prosecution is in the process of searching for discoverable information from the Intelligence Advisory Board
under its ethical responsibilities.

4

21480

prosecution has produced, at a minimum, all evidence from the CIA forensic results or
investigative files that is favorable to the accused and material to either guilt or punishment.
WITNESSES/EVIDENCE

The prosecution does not request any witnesses be produced for this motion. The
prosecution requests that the Court consider the Appellate Exhibits referenced herein and the
enclosure listed at the bottom of this motion.
LEGAL AUTHORITY AND ARGUMENT

The prosecution respectfully requests this Court deny, in part, the Defense Motion to
Compel Discovery #2. The prosecution requests that this Court deny the following:
( 1 ) the production, inspection, or in camera review of all DIA, DISA, CENTCOM,
SOUTHCOM, and HQDA records related to the accused, WikiLeaks, and/or damage resulting
from the charged offenses for failing to provide a specific request or an adequate basis under
RCM 70 1 (a)(2);
(2) the production, inspection, or in camera review of all FBI, DSS DoS, DoJ,
Government Agency, ODNI, and ONCIX records related to the accused, WikiLeaks, and/or
damage resulting from the charged offenses under RCM 70 1 (a)(2) because such files are outside
the "possession, custody, or control of military authorities," or, in the alternative, for failing to
provide a specific request or an adequate basis under RCM 70 1 (a)(2);
(3) the production of all FBI, DSS, DoS, DoJ, Government Agency, ODNI, and ONCIX
records related to the accused, WikiLeaks, and/or damage resulting from the charged offenses
under RCM 703 for failing to provide a specific request or an adequate basis under RCM 703;
and
(4) requiring the prosecution to respond to inquiries relating to its due diligence search
for discoverable information as being without a factual basis.
The prosecution continues its Williams and ethical search for Brady material and either
has produced, or is diligently working to produce, any discovered material. See United States v.
Williams, 50 M.J. 436, 44 1 (C.A.A.F. 1 999); see also Brady, 373 U.S. at 87.
1:

THE DEFENSE HAS NEITHER PROVIDED SPECIFICITY NOR
STATED AN ADEQUATE BASIS WITH ITS REQUEST FOR ALL DIA,
DISA, CENTCOM, AND SOUTHCOM RECORDS RELATED TO THE
ACCUSED, WIKILEAKS, AND/OR DAMAGE RESULTING FROM THE
CHARGED OFFENSES.

Rule for Courts-Martial (RCM) 70 1 (a)(2) states that, upon defense request, the
prosecution shall permit the defense to inspect materials within the possession, custody, or
control of military authorities, "which are material to the preparation of the defense or are
5

21481

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[.]" RCM 70 1 (a)(2). The rule is triggered upon a defense
request "specifying what must be produced." RCM 70 1 (a), analysis. The "request should
indicate with reasonable specificity what materials are sought." Id.; see also United States v.
Eshalomi, 23 M.J. 1 2, 22 (C.M.A. 1 986) (a request is specific when it gives "the prosecutor
notice of exactly what the defense desire[s]") (citing United States v. Agurs, 427 U.S. 97, 1 06
( 1 976) (a request for '"all Brady material' or for 'anything exculpatory' . . . gives the prosecutor
no better notice than if no request is made ")).
RCM 70 1 (a)(2) is "grounded on the fundamental concept of relevance." United States v.
Graner, 69 M.J. 1 04, 1 07 (C.A.A.F. 20 1 0). In order to have the military judge compel release of
evidence either as discovery under RCM 701 or as evidence production under RCM 703, the
defense must establish that the evidence is relevant either to the merits or to sentencing. See id.
(holding that "the military judge did not abuse his discretion in determining that the defense did
not present an adequate theory of relevance to justify the compelled production of the
[document], the only piece of evidence identified with specificity in the defense request") (the
military judge did not abuse his discretion in declining to order the production of documents for
which the defense failed to meet the burden to compel production); see also AE XXXVI at 9.
The defense argues all DIA, DISA, CENTCOM, and SOUTHCOM records relating to
the accused, WikiLeaks, and/or damage resulting from the charged offenses are material to the
preparation of a defense because "they will show what, if any, damage was caused by the
[charged offenses] which will help the defense prepare both for the merits and sentencing, if
5
necessary. " The prosecution requests that this Court deny the defense's request for discovery of
all such records under RCM 701(a)(2) for two reasons: first, the defense failed to provide a
specific request; and second, the defense failed to provide an adequate basis for why all such
records are discoverable.
A. The Defense Failed to Provide Specificity in its Request.
The Court of Military Appeals in Eshalomi reasoned that a request is specific when it
gives "the prosecutor notice of exactly what the defense desire[s]. " Eshalomi, 23 M.J. at 22
(discussing whether the defense made a specific request for information pretrial) (citing Agurs,
427 U .S. at 1 06 (a request for '"all Brady material' or for 'anything exculpatory' . ..gives the
prosecutor no better notice than if no request is made")). Here, the defense requests the
production of all DIA, DISA, CENTCOM, and SOUTHCOM records, to include all investigative
files, related to the accused, WikiLeaks, and/or the damage resulting from the charged offenses
under RCM 70 1 (a)(2). The defense defines all records to "include, but not be limited to,
documents, reports, analyses, files, investigations, letters, working papers, and damage
assessments (or anything that can be reasonably construed as falling within the
6
aforementioned). " Def. Mot. at 4. Though broad in scope, the military discovery process is
5

The defense clarified its request to include all documents related to the accused, WikiLeaks, and/or the damage
occasioned by the alleged compromise. See Def. Mot. at 4.

6 The defense's request is a classic fishing expedition. See United States v. Batchelor, 19 C.M.R. 452, 525
(A.C.M.R. 1955) (defense may not expect "without basis in law or reason,. . . the personnel, files, papers, and

6

21482

"not designed to permit an accused to fish blindly for evidence with only hope for tackle and
prayer for bait." United States v. Calley, 46 C.M.R 113 1 , 1 1 87 (A.C.M.R 1973). Given the
sheer breadth and substance of the charged misconduct, the prosecution is not on notice of what
the defense desires when it requests all records from an organization relating to the accused,
7
WikiLeaks, and/or any damage resulting from the charged offenses. Accordingly, the defense
has failed to provide a specific request.
B. The Defense Failed to Provide an Adequate Basis for Discovery.
RCM 701 (a)(2) states that, upon defense request, the prosecution shall permit the defense
to inspect materials within the possession, custody, or control of military authorities, "which are
material 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[.]" RCM
701 (a)(2). RCM 701 (a)(2) is "grounded on the fundamental concept of relevance." Graner, 69
M.J. at 1 07. In order to have the military judge compel release of evidence either as discovery
under RCM 701 or as evidence production under RCM 703, the defense must establish that the
evidence is relevant either to the merits or to sentencing. See id. ; see also AE XXXVI at 9.
Here, the defense argues all such records are discoverable under RCM 701 (a)(2) (i.e.,
"material to the preparation of the defense") because the records "will show what, if any, damage
was caused by the [charged offenses] which will help the defense prepare both for the merits and
sentencing, if necessary." Def. Mot. at 4. Requesting all records, without limitation, does not
demonstrate "an adequate theory of relevance" to justify the compelled discovery of such
records. See Graner, 69 M.J. at 1 08. Absent establishing an adequate threshold standard of
relevance, the information cannot be material to the preparation of the defense. See id. at 108.
The basis for the request (i.e., what damage, if any, resulted will be material to the preparation of
the defense) is inconsistent with the broad scope of the request (i.e., all records relating to the
8
accused, WikiLeaks, and/or any damage from the above organizations).
The defense defines "damage" in its request "broadly to include any mitigation efforts to
9
correct such damage." Def. Mot. at 4. Requesting any mitigation efforts to correct any damage

resources of the Government be available and fully utilized, without restriction, as counsel might see fit in order to
enable him to realize fulfillment of his purely exploratory requests, whether material or not, to pursue his theories of
defense, whether with or without basis, and to engage in a pure fishing expedition, all irrespective of any
unreasonableness or undue burden on the Government"); see also Graner, 69 M.J. at 108 (ruling that the defense
shall "present an adequate theory of relevance to justify the compelled production of [documents]").
7 Only damage assessments and working papers, relating to a damage assessment, have been specifically requested
by the defense. Consistent with the Court Order, dated 23 March 20 1 2, the prosecution is in the process of
producing the only damage assessment from any of the above organizations - DIA. See AE XXXVI at 12. By DIA
damage assessment, the prosecution means the IRTF damage assessment. The Secretary of Defense directed the
DIA to establish the IRTF to lead a comprehensive DoD review of classified documents posted to the WikiLeaks
website. See Enclosure to AE LXXII; see also AE XII at 5.
8

The prosecution estimates all such records would consist of more than 250,000 pages.

9 The defense's request to define damage "broadly" contradicts any argument that its request puts the prosecution
on notice of what the defense desires.

7

21483

caused by the charged offenses is inconsistent with the defense's proffered basis for its discovery
(i.e., to "show what, if any, damage was caused by the [charged offenses]"). The prosecution
agrees that some portions of the remedial process may be discoverable under RCM 701 (a)(6),
Brady, or if the defense can demonstrate an adequate theory of relevance (e.g., portions relevant
to the charged offenses). See Graner, 69 M.J. at 1 08.
II:

THE DEFENSE HAS NOT PROVIDED AN ADEQUATE BASIS FOR
WHY THE HEADQUARTERS, DEPARTMENT OF ARMY RECORDS, IN
ITS ENTIRETY, IS DISCOVERABLE UNDER RCM 701(a)(2).

The prosecution respectfully requests that this Court deny the defense request that the
10
HQDA records be produced in their entirety under RCM 70l (a)(2) and RCM 70 1 (a)(6). The
prosecution recently received the HQDA records and has been reviewing the records for
information discoverable under RCM 70 1 (a)(6) and Brady under its ethical obligations. The
prosecution will provide all information within the HQDA records that is discoverable under
RCM 70 1(a)(6) and Brady. However, the defense has neither put the prosecution on notice of
what the defense desires nor provided an adequate basis for why all information are "material to
the preparation of the defense" under RCM 701 (a)(2). The defense offers the conclusory
assertion that all HQDA records responsive to the prosecution's request are discoverable under
RCM 70 1 (a)(2) without providing an adequate basis for why such records are "material to the
preparation of the defense." Absent a specific request with an adequate basis, the prosecution
requests that the Court deny discovery under RCM 70 1 (a)(2).
III:

THE FBI, DSS, DOS, DOJ, GOVERNMENT AGENCY, ODNI, AND
ONCIX FILES ARE NOT WITHIN THE POSSESSION, CUSTODY, OR
CONTROL OF MILITARY AUTHORITIES.

The prosecution respectfully requests that this Court deny discovery of all FBI, DSS,
11
DoS, DoJ, Government Agency, ODNI, and ONCIX records related to the accused and/or
WikiLeaks under RCM 701 (a)(2) because such files are not within the possession, custody, or
control of military authorities. See RCM 70 1 (a)(2). Further, the prosecution requests that this
Court deny the defense's request for an in camera review of such records. In the alternative,

10

To clarify, the "HQDA tile" referenced by the defense is not an actual "file." Instead, pursuant to its independent
ethical obligations and not in response to a defense request, the prosecution requested that HQDA provide
documents that may be discoverable under RCM 70 I (a)(6) and Brady. The documents responsive to the
prosecution's request are those at issue. The prosecution has no knowledge of any "file" maintained by HQDA
relating to the accused. See AR 25-400-2 (describing a file as an "accumulation of records maintained in a
predetermined physical arrangement or to a place documents in a predetermined location according to an overall
plan of classification"). Here, any documents responsive to the prosecution's request were not maintained in a
predetermined physical arrangement or to a place documents in a predetermined location according to an overall
plan. Instead, the HQDA records came from distinct subordinate organizations of the Department of Army. See
Attachment A to Defense's Motion.
11

The defense claims the prosecution "has not turned over any documents by ODNI." The defense is incorrect.
The prosecution has produced ODNI documents to the defense. See,�, ODNI Classification Review (BATES
0041076 1-004 10770); lntelink logs (BATES 004 1 1 153-0041 1 154).

8

21484

should the Court review the records in camera, RCM 70 1 (a)(6) and Brady are the applicable
standards of discovery for materials outside the possession, custody, or control of military
authorities.
The question before this Court is whether all files of a non-DoD organization that the
prosecution is required to search under Williams (i.e., ( 1 ) law enforcement authorities that have
participated in the investigation of the subject matter of the charged offenses and (2) an entity
closely aligned with the prosecution) are within the possession, custody, or control of military
authorities. Although there are no military cases defining "military authorities," the plain
language, scope and operation of RCM 70 1 (a)(2), coupled with the CAAF ruling in Williams,
confirm the term "military authorities" does not extend beyond DoD agencies operating under
Title 10 status or subject to a military command. In the alternative, the prosecution does not
have both access to, and knowledge of, the requested material.
The prosecution agrees with the defense that the FBI, DSS, DoS, Dol, Government
Agency, ODNI, and ONCIX are not military organizations or entities. See Def. Mot. at 2; see
also AE XLIX at 4-5; see also AE L at 4 (defense counsel stated that "no one is disputing what
military authorities are."). None of the above organizations are DoD agencies operating under
Title 10 status are subject to a military command. Neither DoD 'nor any military command
exercises any control over the above organizations.
A. The Drafters Did Not Intend RCM 701(a)(2) to Extend Beyond the Files of Those
Organizations Under Military Authority or Subject to Military Control.
The drafters promulgated RCM 70 1 to govern discovery after referral. See Graner, 69
M.J. at 1 07. RCM 701 (a)(2) governs the discovery of materials within the possession, custody,
or control of military authorities. See RCM 701 (a)(2). Defining "military authorities" in this
context is a matter of first impression. Absent controlling precedent on this issue, the "rules of
statutory construction apply in interpreting the R.C.M." United States v. Hunter, 65 M.J. 399,
401 (C.A.A.F. 2008) (interpreting the provisions of RCM 705); see also United States v. Custis,
65 M.J. 366, 370 (C.A.A.F. 2007) ("[I]t is a well established rule that principles of statutory
construction are used in construing the Manual for Courts-Martial in general and the Military
Rules of Evidence in particular."). The starting point.for statutory interpretation is the plain or
ordinary meaning of the language. See United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F.
2003); see also Custis, 65 M.J. at 370 ("When the statute's language is plain, the sole function of
the courts.. . is to enforce it according to its terms."); United States v. James, 63 M.J. 2 1 7,22 1
(C.A.A.F. 2006) ("[A] fundamental rule of statutory interpretation is that 'courts must presume
that a legislature says in a statute what it means and means in a statute what it says there."')
(citing Connecticut Nat' I Bank v. Germain, 503 U.S. 249, 253-54 ( 1 992); 2A Sutherland
Statutory Construction § 45:2 (7th ed.) ("[A] statute, clear and unambiguous on its face, need not
and cannot be interpreted by a court.").
The plain language of RCM 70 1 (a)(2) states that:
[a]fter services of charges, upon request of the defense, the
Government shall permit the defense to inspect: (A) any books,
9

21485

papers, documents, photographs, tangible objects, buildings, or
places, or copies of portions thereof, which are within the
possession, custody, or control of military authorities[.]
RCM 701 (a)(2)(A). The plain language of the rule requires that the item be within the
possession, custody, or control of a military authority. See Article 1 , UCMJ ('"military' refers to
any or all of the armed forces"); see also RCM 1 02(b) (providing that the "rules shall be
construed "to secure simplicity in procedure, fairness in administration, and the elimination of
unjustifiable expenses and delay."). The prosecution defines "military authorities" to include
DoD agencies operating under Title 1 0 status or subject to a military command. This definition
is consistent with, or possibly broader than, its application in other court-martials and its
interpretation with respect to other Rules for Courts-Martial. See Simmons, 38 M.J. at 38 1
(requiring trial counsel to make available for inspection a polygraph report in the possession of
military investigative authorities); see also RCM 1 06, 301 , 305(f), 405. The FBI, DSS, DoS,
Dol, Government Agency, ODNI, and ONCIX are not DoD agencies operating under Title 1 0
status or subject to a military command.
The defense's argument hinges on the analysis of RCM 70 1(a)(2), which provides that
the rule "parallels Fed. R. Crim. P. 1 6(a)( 1 )(C) and (D)." See Def. Mot. at 5; see also RCM
70l (a)(2), analysis; Fed. R. Crim. P. 1 6(a)(1 )(E) {"[U]pon a defendant's request, the government
must permit the defendant to inspect. .. [items] ...within the government's possession, custody, or
control."). The defense requests that the Court adopt the federal precedent for Rule 1 6, and not
RCM 70l (a)(2) defining what is in the possession, custody, or control of military authorities.
The defense argues that federal precedent defines "government" under Rule 16 as the
"prosecution." Thus, according to the defense, Rule 1 6 can be synonymously read as follows:
"upon defendant's request, the [prosecution] must permit the defendant to
inspect...[items] ... within the [prosecution's] possession, custody, or control." Under defense's
argument, RCM 70l(a)(2), in turn, would read as follows: "[U]pon request of the defense, the
[prosecution] shall permit the defense to inspect...[items] ...within the possession, custody, or
control of military authorities."
However, there are no cases that define "military authorities" under RCM 701 (a)(2) to
include the United States Government. Moreover, such a reading would contravene the drafter's
intention that RCM 70 1(a)(2) only apply to items within "military authorities." The rules of
discovery clearly contemplate word choice. See RCM 70 1 (a)(l )(C) (relating to materials "in the
possession of the trial counsel"). Though RCM 70 1 (a)(2) parallels Rule 1 6, the two are not
identical. Had the drafter intended the scope of RCM 70 1 (a)(2) to apply to files within the
possession, custody, or control of the United States Government, the drafters were free explicitly
say so by replacing "military authorities" with "United States Government."
The only military case cited by the defense in support of its proposition that RCM
70 1 (a)(2) governs discovery of materials outside military authorities is Charles, a Court of
Military Appeals case. See United States v. Charles, 40 M.J. 4 1 4 (C.M.A. 1 994). In Charles, the
defense requested to inspect the training and personnel records of two civilian police officers in
the possession of the trial counsel. The trial counsel submitted the records to the military judge
for an in camera review under RCM 701 (g)(2), and the military judge denied discovery as not
10

21486

being "material to the preparation of the defense. " On appeal, the issue was whether the military
judge properly denied the defense's request as not being "material to the preparation of the
defense"- not whether the records were "within the possession, custody, or control of military
authorities. " Whether the records were "within the possession, custody, or control of military
authorities" was not an issue because the trial counsel submitted the records for in camera
review under RCM 701(g)(2). The records at issue were in the possession of the trial counsel
and the trial counsel had authority to produce the records for in camera review. The trial counsel
had knowledge and access to the document. Those facts do not exist here.
Lastly, the prosecution requests that the Court consider the "administrative workability"
of the provision. McCollum, 58 M.J. at 344 (Crawford, C. J., concurring) (citing Geier, 529 U.S.
at 873). Extending the definition of "military authorities" beyond military commands or
organizations subject to military control would carry drastic implications. Subjecting the files of
all closely aligned organizations, under Williams, to open inspection, if "material to the
preparation of the defense, " would result in a new graymail tactic, a "problem " in discovery
practice. See, e.g., MRE 505, analysis; see also AE LUI at 4 (the defense previously highlighted
that "the standard of materiality [relating to RCM 701(a)(2)] is not a high one"). Here, such a
tactic would lead to nearly insurmountable consequences. For example, if an inspection of all
FBI, DSS, DoS, DoJ, Government Agency, ODNI, and ONCIX classified records "material to
the preparation of the defense" is allowed, assuming such exist, the defense could flood the
Court with MRE 505 procedures, stall the criminal proceeding, and, if the privilege under MRE
505 is invoked in light of national security concerns, inundate those agencies with classification
reviews. See RCM 102(b) ("[T]hese rules shall be construed to secure simplicity in procedure,
fairness in administration, and the elimination of unjustifiable expenses and delay. "). Such a
result would incent future offenders to expose the files of victim agencies with knowledge that
compromising information, particularly highly classified information, would likely stall the
criminal proceeding.
B. The Defense's Argument is Inconsistent with the CAAF Ruling in Williams.
The CAAF in Williams defined the prosecutor's duty to search for information
discoverable under RCM 701(a)(6) and Brady. See id. at 441. In Williams, the CAAF held that
the prosecution must exercise due diligence in discovering favorable information and that the
scope of this due diligence requirement extends beyond the prosecutor's own files to include:
(1) the files of law enforcement authorities that have participated in
the investigation of the subject matter of the charged offenses; (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.
See id. at 441; see also United States v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003) ("the
individual prosecutor has a duty to learn of any favorable evidence known to others acting on the
government's behalf in this case"). Here, the prosecution shall search, inter alia, the files of law
enforcement authorities that participated in a joint investigation (i.e., FBI and DSS) and the
11

21487

investigative files in a related case maintained by an entity closely aligned with the prosecution
12
(i.e., DoS, DoJ, Government Agency, and ODNI ) for RCM 701(a)(6) or Brady material. See
Williams, 50 M.J. at 441. Contrary to Williams, the defense is requesting the prosecution to
broaden its standard of review to include RCM 701(a)(2) material or, in the alternative, to
broaden that which is within the prosecutor's own files to include those entities under Williams.
See Def. Mot. at 13-4 (arguing that the prosecution has not completed its search for Brady
material within "its own files" because the HQDA documents "are clearly in the possession,
custody, and control of military authorities"). The CAAF in Williams did not intend such a
result. The defense is confusing the RCM 70 1 (a)(2) language with the prosecution's obligation
to search for RCM 701(a)(6) and Brady material under Williams.
The prosecution shall search its own files, along with those outlined in Williams, for
RCM 701(a)(6) and Brady material- not information that is "material to the preparation of the
defense." The CAAF in Williams clearly contemplated all rules of discovery, to include RCM
701(a)(2), when it outlined what discovery standard the prosecution shall use when searching the
files of law enforcement authorities that participated in a joint investigation and the investigative
files in a related case maintained by an entity closely aligned with the prosecution. The CAAF
cited RCM 701(a)(2), yet did not extend this standard to the prosecution's due diligence
obligation because that obligation is to search for "favorable" material. See Williams, 50 M.J. at
441; see also Brady, 373 U.S. at 87. Requiring the prosecution to search the entities under
Williams for 701(a)(2) material would subsume the ruling in Williams. The defense is confusing
the RCM 701 (a)(2) analysis with the prosecution's obligations under Williams.
The CAAF in Williams clearly identified the prosecutor's own files from the files of law
enforcement authorities participating in the investigation and the investigative files of entities
closely-aligned with the prosecution. The defense argues for the whole-cloth inclusion of all
records the prosecution shall search under Williams as being "within the possession, custody, or
control of military authorities." See Def. Mot. at 5. The defense's request to merge the files of
law enforcement authorities participating in the investigation and the investigative files of
closely-aligned entities with the prosecutor's own files for RCM 701(a)(2) purposes is
inconsistent with Williams. See Williams, 50 M.J. at 441 ("the scope of the due-diligence
requirement with respect to government files beyond the prosecutor's own files generally is
limited to ... ") (emphasis added)).
The Court has previously held that the prosecution shall only search the above records for
RCM 70 1 (a)(6) and Brady material. See AE XXXVI at 12; see also AE LXIX at 2.
C. In the Alternative, the Prosecution does not have both Access to, and Knowledge of,
All FBI, DSS, DoS, DoJ, Government Agency, ODNI, and ONCIX Records relating to the
Accused or WikiLeaks.

12

The prosecution is not closely aligned with ONCIX because they do not share a working relationship. See AE
XLIX at 4-5. The prosecution has not been given access to review all ONCIX records. The prosecution is actively
seeking authority to review such records for RCM 701 (a)(6) and Brady. Further, ODNI does not maintain
investigative files and is only closely aligned under Williams because they have contributed evidence for the merits.

12

21488

Defining what is in the "possession, custody, or control of military authorities" is a matter
of first impression in the military justice system. If the Court finds federal law instructive in this
matter, then Rule 16 should be used as a persuasive authority for this issue. Federal courts
interpret information "in the possession of the government" under Rule 1 6 to include information
"of which the prosecutor has knowledge and to which the prosecutor has access. " United States
v. Bryan, 868 F.2d 1032, 1 036 (9th Cir. 1 989) ("[A] prosecutor need not comb the files of every
federal agency which might have documents regarding the [accused] in order to fulfill his or her
obligations under [Rule 1 6.]"). Whether the prosecution has knowledge of, and access to,
information is a "factual determination[] that must necessarily be made on a case-by-case and
agency-by-agency basis[.]" See United States v. W. R. Grace, 401 F.Supp.2d 1 069, 1 078
(2005); see also United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1 995) (stating, however,
that the "meaning of 'in the possession of the government"' is a legal question). In Santiago, the
Ninth Circuit held that the government had access to Bureau of Prison files because "the
government was able to obtain [the accused's] prison file from the Bureau of Prisons." Id., at
894 (stating that "the fact that the Bureau of Prisons and the United States Attorney's Offices are
both branches of the Department of Justice would facilitate access by federal prosecutors to
prison files").
The prosecution does not have both access to, and knowledge of, all FBI, DSS, DoS,
13
Dol, Government Agency, and ODNI records relating to the accused and/or WikiLeaks. See
Bryan, 868 F.2d at 1036. To this date, outside what it has already produced to the defense,
the prosecution has only limited access to the requested records for the purpose of
satisfying its legal and ethical obligation to search for Brady and RCM 701(a)(6) material.

Unlike the facts in Santiago, the prosecution can neither obtain nor produce the requested records
without the organization's approval and the organizations are not DoD entities. The prosecution
does not have approval to disclose all such records from the above organizations, outside those
previously produced in discovery. The defense's concern that the prosecution can avoid
disclosure under RCM 70 1 (a)(2) simply by keeping the documents in the hands of the agencies
is misplaced because the prosecution has no authority to remove the documents from the
agencies' hands.
This Comt previously contemplated this issue. On 2 1 March 20 12, the Court requested
that the prosecution, inter alia, respond to whether it has "access" to the IRTF damage
assessment. See AE XXXVI at 6-7. The prosecution responded that it "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 DoD (military authority)." See id., at
6. The Court made the finding that only "[s]ome of the information in the IRTF damage
assessment is under the possession, custody, or control of military authmities." Id., at 1 0.
Similarly, the prosecution has been given limited access to the FBI, DSS, DoS, Dol, Government
Agency, and ODNI records relating to the accused and/or WikiLeaks for the purpose of
reviewing for any favorable material, specifically RCM 701(a)(6) and Brady. See Williams, 50

13 The prosecution is not closely aligned with ONCIX because they do not share a working relationship. See AE
XLIX at 4-5. The prosecution has not been given access to review all ONCIX records. The prosecution is actively
seeking authority to review such records for RCM 70 I (a)(6) and Brady.

13

21489

M.J. at 441.1 4 Should the prosecution not have authority to produce information not owned by
DoD, the prosecution does not, and cannot, have access to the information for discovery
purposes.
IV:

ASSUMING, ARGUENDO, THE COURT CONCLUDES THAT THE FBI,
DSS, DOS, DOJ, GOVERNMENTAGENCY, ODNI, AND ONCIX FILES
ARE WITHIN THE POSSESSION, CUSTODY, OR CONTROL OF
MILITARY AUTHORITIES, THE DEFENSE CONTINUALLY FAILS TO
PROVIDE A SPECIFIC REQUEST AND/OR AN ADEQUATE BASIS
UNDER RCM 701(a)(2).

Even assuming this Court concludes that the FBI, DSS, DoS, DoJ, Government Agency,
ODNI, and ONCIX files are within the possession, custody, or control of military authorities, the
prosecution respectfully requests that the Court deny defense's request for all files from those
organizations for failure to provide specificity or an adequate basis for its request. The defense
has failed to put the prosecution on notice of what it desires and to provide an adequate basis for
why the entire files are "material to the preparation of the defense." See RCM 701(a)(2); see
also Calley, 46 C.M.R. at 1187 (the military discovery process is "not designed to permit an
accused to fish blindly for evidence with only hope for tackle and prayer for bait"). The
prosecution adopts the arguments set forth above in support of its request to deny discovery
under RCM 701(a)(2) of the entire files from the requested organizations. See supra Section I.
The defense further requests production under RCM 701(a)(2) of the following: (1) any
Government Agency forensic results or investigative files and any damage assessment; (2) any
documents relating to the Chiefs of Mission review, the WikiLeak:s Working Group, the
"Mitigation Team," and the DoS's reporting to Congress in December 2010; and (3) DSS files or
investigations dealing with Specification 12 or 13 of Charge II.
The prosecution is in the process of disclosing, whether in limited disclosure or in its
entirety, any Government Agency forensic results or investigative files and damage assessment
that are discoverable under RCM 701(a)(6) and Brady. The prosecution respectfully requests
that the Court deny defense's request for all Government Agency forensic results or investigative
files for failure to provide specificity or an adequate basis for its request. See sup ra Section I.
The prosecution respectfully requests that the Court deny defense's request for any
documents related to the Chiefs of Mission, WikiLeak:s Working Group, "Mitigation Team," and
DoS's reporting to Congress in December 2010 for failure to provide specificity or an adequate
basis for its request. The prosecution further requests this Court deny defense's request to have
Under Secretary of State for Management Patrick Kennedy be required to testify regarding the
requested materials the defense has failed to provide specificity or an adequate basis for why the
proffered testimony is relevant. See Graner, 69 M.J. at 108; see also Appellate Exhibit XV.
Instead, the defense is requesting Under Secretary Kennedy's testimony as an alternative
measure to accomplish its fishing expedition to learn of information to which it should request.

14 The prosecution has not been given access to review all ONCIX records. The prosecution is actively seeking
authority to review such records for RCM 70 1(a)(6) and Brady.

14

21490

The prosecution has produced the DSS file relevant to this case. See Appellate Exhibit
LVI. The prosecution respectfully requests that the Court deny defense's request for any DSS
files or investigation dealing with Specifications 12 or 13 of Charge II for failure to provide
specificity or an adequate basis for its request.
V:

ALL FBI, DSS, DOS, DOJ, GOVERNMENT AGENCY, ODNI, AND ONCIX
DOCUMENTS ARE NOT RELEVANT AND NECESSARY UNDER RCM
703.

Under RCM 703, "[e]ach party is entitled to the production of evidence which is relevant
and necessary." RCM 703(f); see also RCM 401 (defining relevance); see also RCM 703(f)( l ),
discussion ("Relevant evidence is necessary when it is not cumulative and when it would
contribute to a party's presentation of the case in some positive way on a matter in issue. ").
RCM 703 requires that the defense "list the items of evidence to be produced and [] include a
description of each item sufficient to show its relevance and necessity." RCM 703(f)(3); see also
Graner, 69 M.J. at 108.
RCM 703 is "grounded on the fundamental concept of relevance. " Graner, 69 M. J. at
108. In order to have the military judge compel the production of evidence under RCM 703, the
defense must establish that the evidence is relevant either to the merits or to sentencing. See id.
(holding that "the military judge did not abuse his discretion in determining that the defense did
not present an adequate theory of relevance to justify the compelled production of the
[document], the only piece of evidence identified with specificity in the defense request"); see
also AE XXXVI at 9; see also Calley, 46 C.M.R. at 1187 (the military discovery process is "not
designed to permit an accused to fish blindly for evidence with only hope for tackle and prayer
for bait").
The defense requests the production under RCM 703 of all FBI, DSS, DoS, DoJ,
Government agency, ODNI, and ONCIX documents relating to the accused and/or WikiLeaks.
The defense has not provided an adequate basis for why all such documents are relevant and
necessary under RCM 703. Further, the defense has not provided a description of each item
sufficient to show its relevance and necessity. See RCM 703(f)(3). Absent a proper basis, all
documents of each organization, as requested by defense, are not relevant and necessary under
15
RCM 703.
Assuming the FBI records are outside the scope of RCM 70l (a)(2), should the defense
submit a specific request and provide a proper basis, the FBI records are only discoverable under
RCM 701(a)(6) and Brady, and only subject to production under RCM 703. Any material that
16
falls outside these rules generally is not subject to disclosure. The defense argues the
prosecution "cannot submit to the defense a redacted version " of documents in discovery, but
instead the prosecution must follow the proper procedure under MRE 505. See Def. Mot. at 7-8.
Under this logic, for instance, the prosecution shall disclose an entire file per se when only a few
15
16

The prosecution estimates all such records would consist of more than 250,000 pages.
The document
15

21491

sentences therein contain discoverable information. Such a result is inconsistent with any rule of
discovery. MRE 505(g)(2) is only necessary when the prosecution requests "limited disclosure."
Here, the prosecution submitted full disclosure of discoverable materials contained within the
FBI records under MRE 505(g)( l ). The defense has not provided an adequate basis or authority
for why such material to relevant and necessary under RCM 703.
VI:

THE DEFENSE'S REQUEST FOR THE PROSECUTION TO RESPOND
TO INQUIRIES RELATING TO ITS DUE DILIGENCE SEARCH FOR
DISCOVERABLE INFORMATION IS WITHOUT A FACTUAL BASIS.

The prosecution respectfully requests that the Court deny defense's request for the
prosecution to respond to inquiries relating to its due diligence search for discoverable
information. There is no legal authority to support defense's request.
Should the Court be inclined to order the prosecution to answer these questions or
variations of these questions, the prosecution requests leave of the Court to enable the
prosecution to prepare internal memoranda and other attorney work-product, and present this
information to the Court ex parte under RCM 701 (g)(2), based on it being attorney work­
product. See RCM 70 1 (g)(2).
VII:

THE PROSECUTION CONTINUES ITS WILLIAMS AND ETHICAL
SEARCH FOR BRAD Y MATERIAL AND EITHER HAS PRODUCED OR
IS DILIGENTLY WORKING TO PRODUCE ANY DISCOVERED
MATERIAL.

The prosecution shall disclose evidence that is favorable to the defense and material to
guilt or punishment. See Brady, 373 U.S. at 87; see also RCM 70 1 (a)(6). The prosecution
continues its search under Williams and applicable ethical rules for RCM 70l (a)(6) and Brady
material and either has produced or is diligently working to produce any discovered Brady
material. See Brady, 373 U.S. at 87. See also Appellate Exhibit XLIX.
On 23 March 20 1 2, the Court ordered the prosecution to produce or disclose Brady
material contained within the three damage assessments. See AE XXXVI at 1 2. On 1 8 May
20 1 2, the prosecution complied with this Order. The Court further ordered the prosecution to
search all DoS, FBI, DIA, ONCIX, and CIA forensic results or investigative files, if any, for
Brady material. The prosecution has produced this material. See Enclosure.
The prosecution shall, and will, disclose Brady and RCM 70 1 (a)(6) material even in the
absence of a defense request. See Jackson, 59 M.J. at 334. The prosecution has produced all
classified and unclassified damage assessments that the prosecution discovered under its ethical
obligations and for which it has approval to disclose. To date, the prosecution has disclosed
twenty-seven damage assessments, pursuant to its ethical obligations and absent a defense
request. The prosecution has retrieved eight additional assessments and continues to work
diligently to obtain the approvals for those that contain discoverable information.

16

21492

VIII:

THE PROSECUTION WILL DILIGENTLY CONTINUE TO PRODUCE
ALL INFORMATION IT INTENDS TO USE IN ITS CASE-IN-CHIEF OR
IMPLEMENT MRE 505 PROCEDURES, IF APPLICABLE.

From the onset, the prosecution had a plan on how to efficiently handle the classified
information and evidence in this case. Days after referral, the prosecution detailed its plan
regarding the procedures, discovery, and production of classified and unclassified information.
See AE XX. The prosecution explained the necessity for additional time to obtain approvals to
produce classified information, to include coordinating with multiple original classification
authorities and implementing MRE 505 procedures. See id.; see also AE XII.
The prosecution intends to use classified and unclassified informa�ion in its case-in-chief.
See AE XII. The prosecution is diligently working to ensure that it has produced all information,
unclassified and classified, that it intends to use in its case-in-chief. Based on the ongoing
criminal investigations, additional information is continuously collected and found, and as that
information is gathered, the prosecution produces the material that is discoverable under
applicable discovery rules. Besides certain classified material which will likely require
protections under MRE 505 and has been planned for under the Court's Scheduling Order, the
prosecution has produced virtually all information that it intends to use in its case-in-chief.
IX:

THE PROSECUTION WILL DILIGENTLY CONTINUE TO PRODUCE
ALL INFORMATION IT INTENDS TO PRESENT AT PRESENTENCING
PROCEEDINGS OR IMPLEMENT MRE 505 PROCEDURES, IF
APPLICABLE.

The prosecution intends to present classified and unclassified information at
presentencing proceedings, which the prosecution has contemplated from the onset of this case.
See supra Section VIII. The prosecution has already produced unclassified and classified
material that it intends to use during presentencing proceedings, and is diligently working to
make available for inspection other written material, either through seeking limited disclosure
under MRE 505(g)(2) or RCM 70 1 (g), or by invoking the privilege under MRE 505 for portions
of the material, as per the Court scheduling order.
CONCLUSION

In sum, the prosecution respectfully requests this Court deny,in part,the Defense Motion
to Compel Discovery #2. The prosecution requests that this Court deny the following:
( 1 ) the production, inspection, or in camera review of all DIA, DISA, CENTCOM,
SOUTHCOM, and HQDA records related to the accused, WikiLeaks, and/or damage resulting
from the charged offenses for failing to provide a specific request or an adequate basis under
RCM 70l (a)(2);
(2) the production, inspection, or in camera review of all FBI, DSS DoS, DoJ,
Government Agency, ODNI, and ONCIX records related to the accused, WikiLeaks, and/or
damage resulting from the charged offenses under RCM 70 1 (a)(2) because such files are outside
17

21493

the "possession, custody, or control of military authorities," or, in the alternative, for failing to
provide a specific request or an adequate basis under RCM 70 1 (a)(2);
(3) the production of all FBI, DSS, DoS, DoJ, Government Agency, ODNI, and ONCIX
records related to the accused, WikiLeak:s, and/or damage resulting from the charged offenses
under RCM 703 for failing to provide a specific request or an adequate basis under RCM 703;
and
(4) requiring the prosecution to respond to inquiries relating to its due diligence search
for discoverable information as being without a factual basis.



J. HUNTER WHYTE
CPT, JA
Assistant Trial Counsel

Enclosure
Prosecution Disclosure to the Court, dated 1 8 May 20 1 2

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 24 May 201 2.

�Ji\H

YTE

CPT, JA
Assistant Trial Counsel

18

21494

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

)
)
)
)
)
)
)
)
)

Prosecution Response
to Defense Motion to
Compel Discovery #2
Enclosure
24 May 2012

21495

FOR OFFICIAL USE ONLY

UNITED STATES OF AMERICA
v.

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

)
)
)
)
)
)
)
)
)

Prosecution Disclosure
to the Court

18 May 2012

1. On 23 March 2012, the Court ordered the prosecution as follows:
a. 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.
b. The Government shall contact Department of State (DOS), Federal Bureau of
Investigation (FBI), Defense Intelligence Agency (DIA), Office of the National
Counterintelligence Executive (ONCIX), and Central Intelligence Agency (CIA) to determine
whether these agencies contain any forensic results or investigative files relevant to this case.
The Government will notify the court NLT 20 April 2012 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.
c. 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 lAW MRE 505(c) for the classification under that agency's control.
d. 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 IAW RCM 70l(g)(2).
e. 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 review IAW 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 IAW MRE 505(i)(2) and (3) and provide notice to the
Defense under MRE 505(i)(4)(A).

1
FOR OFFICIAL USE ONLY

21496

FOR OFFICIAL USE ONLY

2. On 16 April 2012, the Court granted the Government's motion for leave of the Court to
extend the time to respond from 20 April 2012 to 2 May 2012 as to whether the CIA will release
classified information in original form, provide for limited disclosure under MRE 505(g)(2), or
invoke the classified information privilege under MRE 505(c).
3. On 20 April 2012, the United States notified the Court of the following:
a. The prosecution contacted the DOS, FBI, CIA, DIA, and ONCIX to determine whether
these agencies contain any forensic results or investigative files relevant to this case.
(1) DOS. DOS has forensic results and investigative files. The United States reviewed
this information for evidence that is favorable to the accused and material to either guilt or
punishment. Additionally, prior to the Court's order, the United States produced this information
to the defense.
(2) FBI. FBI has forensic results and investigative files. The United States is reviewing
this information for evidence that is favorable to the accused and material to either guilt or
punishment. Additionally, prior to the Court's order, the United States started producing this
information to the defense.
(3)

DIA.

(4)

ONCIX.

DIA does not have any forensic results or investigative files.
ONCIX does not have any forensic results or investigative files.

b. The United States anticipates that the FBI is the only government entity that is a
custodian of classified forensic results or investigative files relevant to this case that will seek
limited disclosure lAW MRE 505(g)(2).
4. On 2 May 2012, the United States notified the Court of the following:
a. The prosecution contacted the CIA to determine whether this agency contains any
forensic results or investigative files relevant to this case.
The CIA has investigative files. Th� United States reviewed this information for
evidence that is favorable to the accused and material to either guilt or punishment.
CIA.

b. The United States anticipates that the FBI and CIA are the only government entities that
are custodians of classified forensic results or investigative files relevant to this case that will
seek limited disclosure lAW MRE 505(g)(2).
5. On 11 May 2012, the Court denied the Government's Motion to find the DOS Draft Damage
Assessment not discoverable.

2
FOR OFFICIAL USE ONLY

21497

FOR OFFICIAL USE ONLY

6.

Forensic Results or Investigative Files.

a. FBI. The United States completed its review of the FBI investigative file for evidence
that is favorable to the accused and material to either guilt or punishment. 1 On 16 March 2012,
and immediately following the Court's issuing of the classified information protective order, the
United States started voluntarily disclosing information from the FBI file, including information
favorable to the accused and material to either guilt or punishment under MRE 505(g)(1).
Except for twenty-two documents, as of the date of this response, the United States has
voluntarily produced all information (unclassified or classified) under MRE 505(g)(l ). The
twenty-two remaining documents will be delivered to the defense on 21 May 2012 under MRE
505(g)(1).
b. CIA. The United States completed its review of the CIA forensic results or investigative
files for evidence that is favorable to the accused and material to either guilt or punishment. 2
Any information (unclassified or classified) the prosecution identified will be voluntarily
produced under MRE 505(g)(1) and delivered to the defense on 21 May 2012.
7.

Damage Assessments.

a. DOS. The DOS provided the prosecution a copy of the draft DOS damage assessment to
make available for the defense to inspect in a government facility under MRE 505(g)(l ). See
Enclosure. The copy does not contain redactions or summaries. The DOS authorizes only
defense counsel and their security experts to inspect the document. The accused is not
authorized to inspect or receive any information contained within the document. The
prosecution requests the defense provide four duty days notice before each time they would like
to inspect the document, so that the proper facility and government security expert may be made
available.
b. DIA. The United States completed its review of the DIA Information Review Task Force
(IRTF) Final Report for evidence that is favorable to the accused and material to either guilt or
punishment. The United States also reviewed the document for information material to the
preparation of the defense because DIA is an intelligence agency within the Department of
Defense. Concurrent with this response, the United States is filing ex parte a Government in
camera Motion for Authorization of a Substitution under MRE 505(g)(2). This motion directly
responds to whether the United States identified any information that was favorable to the
accused and material to guilt or punishment and includes a copy of the original damage
assessment and an alternate version. Additionally, the motion outlines other equity holders
outside of military authorities that request certain redactions or summaries of their information.
If the Court authorizes the substitutions under MRE 505(g)(2), then DIA and other equity
holders are not invoking the classified information privilege under MRE 505(c) and MRE 505(i),
and the alternative copy of the Final Report will be made available to the defense for inspection
1 The United States understands its continuing obligation to review the FBI forensic results or investigative files
until this court-martial is complete.
2 The United States understands its continuing obligation to review the CIA forensic results or investigative files
until this court-martial is complete.

3
FOR OFFICIAL USE ONLY

21498

FOR OFFICIAL USE ONLY

at DIA under MRE 505(g)(l ) and MRE 505(g)(2). This alternative copy includes any
unclassified information that is responsive to the Court's Order. DIA authorizes only defense
counsel and their security experts to inspect the document at DIA, and requires the security
experts to be present with defense counsel. The accused is not authorized to inspect or receive
any information contained within the document.
c. CIA. The United States completed its review of the WikiLeaks Task Force report for
evidence that is favorable to the accused and material to either guilt or punishment. The United
States did not identify any unclassified information that was responsive to the Court's Order.
Concurrent with this response, the United States is filing ex parte a Government in camera
Motion for Authorization of a Substitution under MRE 505(g)(2). This motion directly responds
to whether the United States identified any information that was favorable to the accused and
material to guilt or punishment and includes a copy of the original report and an alternative
version, if required. If the Court authorizes the substitutions under MRE 505(g)(2), the CIA is
not invoking the classified information privilege under MRE 505(c) and MRE 505(i).

~

ASHDEN FEIN
MAJ, JA
Trial Counsel

Enclosure
Letter from DOS, dated 18 May 2012, without attachment (Sensitive but Unclassified without
Attachment)

4
FOR OFFICIAL USE ONLY

United States Department of State

21499

The Legal Adviser
Washington, D. C. 20S20

SECRET//NOFORN
(SENSITIVE BUT UNCLASSIFIED when separated from enclosure)

May 18, 2012
Major Ashden Fein
Trial Counsel, Criminal Law Division
Office of the Staff Judge Advocate
Department of the Army
Re: United States v. Private First Class Bradley E. Manning
Dear Major Fein:
Enclosed please find a draft document entitled "WikiLeaks: Foreign Policy
Impact of the Net-Centric Diplomacy Compromise" ("the draft"). The draft
document is classified "Secret//Nofom" (i.e., Secret and not to be shared with
foreign nationals), and is the same as was provided under cover of our April 25,
2 012 letter, except that we have now placed a watermark of the word "DRAFT" on
each page of the draft document, whereas the previous version we provided only
had this watermark on the cover page.
Pursuant to the Court's orders dated May 11, 2012 and March 2 3, 2012 in
the above referenced matter, we are providing you this draft document to allow
defense counsel to inspect the draft inside a government facility as part of
classified discovery. Additionally, we authorize the defense Security Experts,
referred to in paragraph 3(f) (page 3) of the Court's March 16, 2012 Protective
Order for Classified Information, to inspect the draft, as required by them to
perform their functions in this case. We do not authorize the defendant to inspect
the draft, nor do we authorize defense counsel to convey the substance of classified
information contained in the draft to the defendant.

SECRETIINOFORN
(Sensitive But Unclassified when separated from attachment)

SECRET//NOFORN

21500

(Sensitive But Unclassified when separated from attachment)
-2We have not declassified the draft document, nor do we anticipate doing so
within the timeframe that this case may proceed to trial. As such, the document
remains classified "Secret//Nofom" (i.e., Secret and not to be shared with foreign
nationals). We understand that all defense counsel have a security clearance and
have signed a Standard Form 312 Classified Information Nondisclosure Agreement
(SF 312) and a protective order, and as such are bound to safeguard and handle the
enclosed draft in accordance with Executive Order (EO) 13526 and the CAPCO
standards, as well as the requirements reflected in SF 312 and the Court's
protective order. We understand that defense counsel will be allowed to take
notes; however, any notes of classified information will themselves be classified
and will also be safeguarded and handled appropriately consistent with EO 13526
and the CAPCO standards, as well as the requirements reflected in SF 312 and the
Court's protective order.
We do not object to this letter being shared with the Court or defense
counsel.

Richard C. Visek
Deputy Legal Adviser

Enclosure: As stated

SECRET//NOFORN
(Sensitive But Unclassified when separated from attachment)

21501

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES

v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)
)
)

DEFENSE REPLY
TO GOVERNMENT
RESPONSE TO DEFENSE
MOTION TO COMPEL
DISCOVERY #2

29 May 2012

RELIEF SOUGHT
1. In accordance with the Rules for Courts Martial (R.C.M.) 701(a)(2), 701(a)(5), 701(a)(6) and
905(b)(4), Manual for Courts-Martial (M.C.M.), United States, 2008; Article 46, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 846; and the Fifth and Sixth Amendments to the United
States Constitution, the Defense respectfully requests that the Court compel the requested
discovery. Specifically, the Defense requests that the Court order:
a) Full investigative files by CID, DIA, DISA, and CENTCOM/SOUTHCOM related to PFC
Manning, WikiLeaks, and/or the damage occasioned by the alleged leaks be produced to the
Defense under R.C.M. 701(a)(2). Further, that the Headquarters Department of the Army
(HQDA) file related to the 17 April 2012 request be produced under R.C.M. 701(a)(2) and
701(a)(6). See Attachment A to Defense Motion to Compel Discovery #2, dated 10 May 2012.
b) FBI, DSS, DOS, DOJ, Government Agency, ODNI, and ONCIX files in relation to PFC
Manning and/or Wikileaks be produced to the Defense, or alternatively, that they be produced
for in camera review to determine whether the evidence is discoverable under R.C.M. 701(a)(2)
as being material to the preparation of the defense. If the Court concludes that the files of the
above agencies are not within the possession, custody, or control of military authorities, the
Defense still requests that the Court order production of the entire file under the “relevant and
necessary” standard under R.C.M. 703(f);
c) The Government state with specificity the steps it has taken to comply with its
requirements under R.C.M. 701(a)(6);
d) The Government produce Brady materials from certain identified agencies;

21502

e) The Government produce all evidence intended for use in the prosecution case-in-chief at
trial obtained from DIA, DISA, CENTCOM/SOUTHCOM, FBI, DSS, DOS, DOJ, Government
Agency, ODNI, ONCIX and any aggravation evidence that it intends to introduce during
sentencing from the above named organizations.
WITNESSES/EVIDENCE
2. The Defense would ask that this Court consider the Appellate Exhibits referenced herein, as
well the attachment.
ARGUMENT
3. The Government continues to resist providing the Defense clearly relevant discovery. It
continues to state that the Defense’s requests “lack specificity” or that the Defense has not
“provided a relevant basis for its requests.” See, e.g. Government Response, p. 3. The
Government’s refrain is getting old. The Defense has provided the Government with a laundry
list of relevant discovery that the Defense does not yet have and that it needs in order to try this
case. And the Government responds in its typical nonsensical, smoke-and-mirrors fashion.
4. The Defense rests on the submissions in its Motion to Compel Discovery #2, but would like
to specifically respond to certain issues raised by the Government.

A.

Defense Discovery Requests for Law Enforcement Files Specifically Identified by
the Defense

5. The Government acknowledges that the Defense has made requests for the following:
Interagency Committee Review. The results of any investigation or review
concerning the alleged leaks in this case by Mr. Russell Travers, National
Security Staff’s Senior Advisor for Information Access and Security Policy.
Mr. Travers was tasked to lead a comprehensive effort to review the alleged
leaks in this case. See Defense Discovery Request Dated 8 December 2010 and
13 October 2011 within Appellate Exhibit VIII;
President’s Intelligence Advisory Board. Any report or recommendation
concerning the alleged leaks in this case by Chairman Chuck Hagel or any other
member of the Intelligence Advisory Board. See Defense Discovery Request
Dated 13 October 2011 within Appellate Exhibit VIII;
House of Representatives Oversight Committee. The results of any inquiry
and testimony taken by House of Representative Oversight Committee led by
Representative Darrell Issa. The committee considered the alleged leaks in this
case, the actions of Attorney General Eric Holder, and the investigation of PFC
Bradley Manning. See Defense Discovery Request Dated 10 January 2011 and
13 October 2011 within Appellate Exhibit VIII.
2

21503

6. With respect to the Interagency Committee Review, the Government states that the “defense
has failed to provide any basis for its request.” Government Response, p. 3. The authority, of
which the Government should not need to be reminded, is Brady. Where the Defense makes a
“discovery request[] that involve[s] a specified type of information within a specified entity” the
Government has a due diligence obligation under R.C.M. 701(a)(6)/Brady/Williams to search for
that information. United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999). There is no
indication that the Government has made any effort to search the files of Mr. Travers’
investigation.
7. With respect to the President’s Intelligence Advisory Board and the House of Representatives
Oversight Committee, the Government maintains that it “has no knowledge of any such records,
outside publicly made statements through press conferences or media organizations, equally
accessible by the defense” and that “[t]he defense is invited to renew its request with more
specificity and an adequate basis for its request.” Government Response, pp. 3-4. Again, the
authority the Government is looking for is Brady. Moreover, the Government has resorted to its
old tactics in saying it “has no knowledge of any such records.” Id. This argument is
reminiscent of the Government’s statement that it was “unaware” of forensic results or
investigative files relevant to this case maintained by DOS, FBI, DIA, ONIX and CIA. See
Appellate Exhibit XVI. As the Court stated in its Ruling, “The Government has advised the
Court it is ‘unaware’ of any forensic results or investigative files [maintained by the specified
agencies]. 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.” See
Appellate Exhibit XXXVI at p. 11.
8. Suspiciously, the Government states in footnote 4 that “the prosecution is in the process of
searching for discoverable information from the Intelligence Advisory Board under its ethical
responsibilities.” Government Response, p. 4. First, the Defense request was made in October
2011, 7 months ago. Why is the Government “in the process of searching for discoverable
information”? Why haven’t these files yet been searched? The Defense would venture to guess
that the Government’s “diligent” search began when the Government received the Defense’s
motion to Compel Discovery #2 on 10 May 2012. Second, the Government’s footnote is
inconsistent with the position in its motion that the Defense has not provided a specific basis for
discovery and that it has “no knowledge” of discoverable information. Which is it? Is the
Government’s position that the Defense is entitled to Brady material from the Intelligence
Advisory Board files, or that information from these files is not discoverable?
9. Further, the Government’s (footnote) concession that the Defense is entitled to Brady
information from the Intelligence Advisory Board begs the question of why the Defense is also
not entitled to Brady material from the other two specified sources (the Interagency Committee
Review and House of Representatives Oversight Committee). It is not clear to the Defense what
is so special about the Intelligence Advisory Board that the Government is searching those files
for Brady, but not searching the other files.

3

21504

B.

Files that the Government Does Not Dispute Are Within Military Possession,
Custody and Control

10. The Government states that the Defense is not entitled to certain files from DIA, DISA,
CENTCOM and SOUTHCOM that are clearly within military possession, custody and control
for two reasons – first, the defense failed to provide a specific request; and second, the defense
failed to provide an adequate basis for why all such records are discoverable. Government
Response, p. 6.
11. The Government laments that the Defense failed to provide specificity in its request. The
Defense finds the Government’s position almost laughable. At the past motions argument, the
Defense raised with the Court the fact that the Government represented that DIA and ONCIX do
not have any investigative files, all while producing to the Defense in discovery what the
Defense would consider to be investigative files. See Appellate Exhibit LVI. The Government
then went to great pains to specify that DIA and ONCIX did not technically have an
“investigation” into the leaks, nor did they have a “damage assessment.” This culminated in the
Government submitting the Prosecution Brief Discussing Investigations and Damage
Assessments where it sought to define the scope of what it means by “investigation” and what it
means by “damage assessment.” See Appellate Exhibit LXXII. According to the Government’s
Brief, “[i]nvestigations can be broken down into two categories: criminal and administrative.
Criminal investigations are concerned with discovering evidence and finding the individual
responsible for the crime. Administrative investigations encompass fact finding inquiries.” Id.,
p. 1. The Government stated that “damage assessments” as “multi-discipline, multi-agency,
lengthy inquiries, consider the effects of compromised classified information to reach strategic
opinions.” Id. Apparently, the Brady material from ONCIX that the Government produced was
neither an “investigation” nor a “damage assessment” according to the Government’s arbitrary
delineation of those terms. The Defense asked the Government how it should phrase a discovery
request in order to obtain material similar to the ONCIX material (i.e. documents that deal with
damage from the leaks that are neither “investigations” nor “damage assessments”). The
Government indicated that, for whatever reason, the proper term was “working papers.”1
12. Knowing that the Government would fabricate a definition of “working papers” that
somehow avoided producing what the Government knows the Defense is asking for, the Defense
requested: information “related to PFC Manning, WikiLeaks, and/or the damage occasioned by
the alleged leaks (to include any document, report, analysis, file, investigation, letter, working
1

It is unclear why the Government believes that the term “working papers” captures what the Defense is seeking
(i.e. reports, assessments, documents, emails, etc. that chronicle the harm, if any, from the alleged leaks). The term
“working papers” suggests to the Defense that the relevant government agency is still working with the information
in question. For instance, the Environmental Protection Agency recently wrote to the Government stating,
“Approximately one year ago, after reviewing approximately 2400 documents, EPA determined that there were no
EPA documents that were problematic and needed to be reported and provided to NCIX.” See Attachment.
Similarly, Human Health Services wrote that “HHS/OSSI reviewed about 6 thousand documents. We found that
these documents did not reflect any damaging or derogatory comments related interactions with foreign
counterparts/officials. Most of the documents pertained to personnel movements and scene setters for foreign trips.”
Id. Even though the Defense is seeking this type of information (i.e. information about whether the alleged leaks
caused harm within different agencies of government), it does not believe that the emails from the EPA or HHS
would qualify as a “working paper.” Consequently, if the Defense had simply asked for “working papers” the
Government would have responded that it did not have any discoverable material, as it has in the past.

4

21505

paper, damage assessment (or anything that can be reasonably construed as falling within the
aforementioned)).”2 Defense Motion, p. 4. The Defense included the term “working papers” to
make it abundantly clear that the Defense is looking for information that might not meet the
Government’s overly technical definition of “investigation” and “damage assessment.”
13. Ironically, when the Defense made a specific request for an “investigation” or a “damage
assessment,” the Government responded that because these are terms of art for the Government,
it did not have any responsive material. When the Defense broadened its request to capture more
than the Government’s technical (and self-imposed) definitions, the Government complained that
the request was “too broad.” The Defense is not clear on what magic language the Government
would like for the Defense to use to convey what everybody understands the Defense is looking
for.3 According to the Government, the Defense’s previous requests were “too narrow” and now
they are “too broad.” The Defense believes that no Defense discovery request would ever be
“just right” to satisfy Goldilocks.
14. Moreover, the Government cannot even keep track of its own definitions. In its Response, it
indicates that it has disclosed “twenty-seven damage assessments … [and] has retrieved eight
additional assessments.” Government Response, p. 16. The Government is clearly not referring
to “damage assessments” but rather to what it would term “working papers” (e.g. reports from
departments such as the Department of Housing, the National Archives, etc. regarding the impact
of the leaks). By morphing, distorting and constantly changing definitions, the Government is
trying to “define” itself out of producing relevant discovery. It cannot be permitted to do this.
15. The Government then complains that the Defense has failed to provide an adequate basis for
discovery. The Government states that “[r]equesting all records, without limitation, does not
demonstrate ‘an adequate theory of relevance’ to justify the compelled discovery.” Government
Response, p. 7. The Government, again in a throwaway footnote, states that it “estimates that all
such records would consist of more than 250,000 pages.” Government Response, p. 7. So the
Government is saying that there are 250,000 pages in its possession, custody and control that
relate to the accused, WikiLeaks and/or the damage occasioned by the leaks that it has not
produced to the Defense? And that possibly it has not searched for Brady? If so, this is very
disconcerting to the Defense.
16. The Government also states that “the prosecution agrees that some portions of the remedial
process may be discoverable under RCM 701(a)(6), Brady, or if the defense can demonstrate an
adequate theory of relevance (e.g. portions relevant to the charged offenses).” Government
Response, p. 8. The Defense is not clear on what the Government is saying. Is there material
within DIA, DISA, CENTCOM and SOUTHCOM that relates to the remedial process that the
Government has not disclosed? If not, why not? The Defense is also not clear on what the
Government means in its parenthetical – “e.g. portions relevant to the charged offenses.”
Government Response, p. 8. How can the Defense identify the “portions” of the remedial
measures when it has not seen them? In short, the Defense has already explained numerous
times why remedial measures are relevant to the charged offenses and/or sentencing. It is not a
2

The Government says in footnote 7 that “[o]nly damage assessments and working papers, related to a damage
assessment, have been specifically requested by the defense.” The Defense does not understand what this means.
3
Apparently, the Government is able to clearly understand its own formulation of the discovery request to HQDA.
That information is exactly what the Defense is looking for as well.

5

21506

large logical leap to conclude that if the remedial measures were fairly insignificant, this would
be favorable for sentencing; conversely, if the remedial measures were fairly significant, this
would not be as favorable for sentencing. As such, the Defense cannot understand why the
Government does not see the very obvious relevance of the remedial measures contained in
documents within its possession, custody and control.
17. The Government opposes producing to the Defense the results of the (delayed) HQDA
memo. It states that:
The prosecution recently received the HQDA records and has been reviewing
the records for information discoverable under RCM 701(a)(6) and Brady under
its ethical obligations. The prosecution will provide all information within the
HQDA records that is discoverable under RCM 701(a)(6) and Brady.
Government Response, p. 8.
The Government believes, however, that such records are not discoverable under R.C.M.
701(a)(2) because “defense has neither put the prosecution on notice of what the defense desires
nor provided an adequate basis for why all information are [sic] ‘material to the preparation of
the defense.’” Id. The Government’s first reason for not producing these records makes no
sense. The Government asserts that the “defense has [not] put the prosecution on notice of what
the defense desires.” The Defense “desires” the documents responsive the HQDA request.4 The
Government’s second reason is equally disingenuous – that the Defense has not provided an
adequate basis for why all information is material to the preparation of the Defense.5
18. If one even cursorily examines the Government’s request, it is abundantly clear why all of
this information would be material to the preparation of the Defense. The Government requested
the following:
… any documents or files with material pertaining to: any type of investigation;
working groups; resources provided to aid in rectifying an alleged compromise
of governrnent [sic.] information; damage assessments of the alleged
compromise; or the consideration of any remedial measures in response to the
alleged activities of PFC Manning and Wikileaks. See Attachment A to
Defense Motion to Compel Discovery #2, dated 10 May 2012.
The Government’s assertion that the Defense has not sufficiently proffered why damage
assessments, remedial measures, and investigations into the leaks is relevant is like the
Government making the Defense articulate why the CID file is material to the preparation of the
Defense. It is so plainly self-evident from the documents requested why they would be relevant
for the Defense that the Government simply looks like it is hiding something by refusing to turn
them over pursuant to R.C.M. 701(a)(2).

4

At footnote 10, the Government maintains that all this information is not in a specific “file” (it then proceeds to
define ‘file’ for the Defense’s edification). The Government knows exactly what the Defense is seeking – the
documents that were sent to HDQA in response to this Memo. An instruction on the word “file” is not necessary.
5
The Government apparently concedes that “the standard of materiality [relating to RCM 701(a)(2)] is not a high
one.” Government Response, p. 11.

6

21507

C.

Files of Joint Investigative Agencies and Agencies that Are Closely Aligned with the
Government

19. As argued in the Defense’s Motion to Compel Discovery #2 and in Appellate Exhibit
LXVIII, the Government is misunderstanding what term needs interpreting in R.C.M. 701(a)(2).
It is not the term “military authorities” that needs interpreting; rather it is the term “possession,
custody and control” that needs interpreting.6 The Defense largely rests on its previous
submissions in this respect. The Defense, however, would like to clarify several points with
respect to the Government’s argument that the documents requested by the Defense are not
within the possession, custody and control of military authorities under R.C.M. 701(a)(2).
20. First, the Government has very conveniently set up a straw man when it says that the
Defense defines “military authorities” to include “the United States Government.” Government
Motion, p. 10. That is not the Defense’s argument. The Defense does not believe that the
Government, under R.C.M. 701(a)(2) needs to search the files of the “United States
Government.” The Defense’s position is that the trial counsel’s obligations to disclose
information to the Defense pursuant to R.C.M. 701(a)(2) extend to those documents of closely
aligned and jointly investigating agencies because such documents are within his possession,
custody and control.
21. Second, the Government maintains that “[e]xtending the definition of ‘military authorities’
beyond military commands or organizations subject to military control would carry drastic
implications:
Subjecting the files of all closely aligned organizations, under Williams, to open
inspection, if “material to the preparation of the defense,” would result in a new
graymail tactic, a “problem” in discovery practice. See, e.g., MRE 505,
analysis; see also AE LIII at 4 (the defense previously highlighted that “the
standard of materiality [relating to RCM 701(a)(2)] is not a high one”). Here,
such a tactic would lead to nearly insurmountable consequences. For example,
if an inspection of all FBI, DSS, DoS, DoJ, Government Agency, ODNI, and
ONCIX classified records “material to the preparation of the defense” is
allowed, assuming such exist, the defense could flood the Court with MRE 505
procedures, stall the criminal proceeding, and, if the privilege under MRE 505 is
invoked in light of national security concerns, inundate those agencies with
classification reviews. See RCM 102(b). Government Response, p. 12.
22. The Government’s argument overlooks the fact that, in federal courts across the country,
judges have uniformly accepted the interpretation advanced by the Defense. The judicial system
is not in shambles; the “drastic implications” cited by the Government have not come to fruition;
there has not been widespread “graymailing” of the United States Government; the consequences
have not been “nearly insurmountable” in federal court. The Government’s overreaction to a
very well-established federal rule again suggests that there is something that the Government is
trying to hide by not turning over documents of closely aligned agencies and agencies that
participated in a joint investigation.
6

The Defense assumes that the second reference to the Defense’s interpretation of R.C.M. 701(a)(2) on p. 10
(middle of the page) is simply a typo.

7

21508

23. Third, the Government states that it does not have “both access to, and knowledge of” all
records of jointly aligned agencies or agencies that participated in a joint investigation.
Government Response, p. 13 (emphasis in original). It appears that the Government is saying
that it does not have “access to” the files because “the prosecution has only limited access to the
requested records” and has “no authority to remove the documents from the agencies’ hands.”
Id. It further states that in the event that the prosecution does not have the authority to disclose
certain information, then the prosecution “does not, and cannot, have access to the information
for discovery purposes.” Id. at p. 14. The Government is confusing “access” with “authority to
disclose.” Access simply means the right to look at, inspect or get to the information in question.
Access does not necessarily imply that the accessor has the right to give or disclose the
information in question. For instance, the Defense has access to classified discovery in this case.
However, the Defense does not have the authority to disclose that information publicly. Thus,
“access” addresses only the question of whether the Government has had the right or ability to
see, inspect, examine, look at, etc. the information in question. It does not address the question
of whether the Government is permitted to disclose that information. If the Government’s
interpretation were accepted, it would gut the “possession, custody and control” analysis in
Federal Rule 16. All information that is not in the physical possession, custody or control of the
trial counsel will be “owned” by, to use the Government’s expression, other equity holders.
Thus, all the trial counsel would need to do is say that while it has the ability to see, observe or
examine the material in question, it does not have permission to disclose it. Such is the
functional equivalent of leaving evidence to “repose” in the hands of another agency, as
discussed in Trevino. See United States v. Trevino, 556 F.2d 1265, 1272 (5th Cir. 1977). Finally,
the Court’s ruling contemplates that evidence may be discoverable under R.C.M. 701(a)(2) as
being within the custody, possession, and control of military authorities, but that the Government
might not have permission to disclose that information, thus necessitating resort to R.C.M. 703.
See Appellate Exhibit LXVIII (“[T]he fact that information controlled by another agency is
discoverable under RCM 701 may make such information relevant and necessary under RCM
703 for discovery.”).
24. Finally, the Government argues that if such documents are determined to be in the
possession, custody or control of military authorities for the purposes of R.C.M. 701(a)(2), that it
specifically objects to producing the following: (1) any Government Agency forensic results or
investigative files and any damage assessment; (2) any documents relating to the Chiefs of
Mission review, the WikiLeaks Working Group, the “Mitigation Team,” and the DoS’s reporting
to Congress in December 2010; and (3) DSS files or investigations dealing with Specification 12
or 13 of Charge II. Government Response, p. 14. The Government argues that the Defense has
failed to “provide specificity or an adequate basis for its request.” Id. The Defense’s request
with respect to these documents was very specific and the “basis” for the request has been
articulated many times (and, in any event, is self-evident from the nature of the documents
requested).

CONCLUSION
25. Pursuant to the Defense’s Motion to Compel Discovery #2 and this Reply Motion, the
Defense respectfully requests that this Court compel the requested discovery and that this Court
8

21509

order the Government to provide an accounting in respect of its Brady obligations pursuant to the
Court’s inherent authority under R.C.M. 102, 701(g)(3)(D), and 801(a)(3).
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

9

21510

ATTACHMENT

21511

Fein, A s h d e n CPT USA JFHQ-NCR/MDW SJA
(b) (1) (B)
From:
Friday, February 17, 2012 8:34 AM
Sent:
Fein, Ashden CPT USA JFHQ-NCR/MDW SJA
To:
Courts Martial: Private Bradley Manning
Subject:

CLASSIFICATION: UNCLASSIFIED CAVEATS: FOUO TERMS: NONE
Ashden - SGT Princeton Bradley contacted us on 16 February 2012 regarding the referenced
matter. SGT Bradley requested information regarding documents previously forward to us by
ONCIX. The following are relevant facts as we know them:

1.
On 27 October 2010, we received a disc from ONCIX containing 726 documents. ONCIX
requested that we review the documents to determine whether they were US Department of
Education documents.

2.
When ONCIX provided the documents, they told us that they were identified as
potentially belonging to the US Department of Education through application of the search
terms "DOE" and "education" to their document collection.

We subsequently reviewed a l l documents provided by ONCIX.

4.
We determined that none of the documents were US Department of Education documents
and we informed ONCIX accordingly.

(b) (1) (B)

ManningB_00419661

21512

Bradley, Princeton L. SGT USA JFHQ-NCR/MDW SJA
MBfaauuBaaamntwmvmmmip^^

From;
Sent:
To:
Cc:
Subject:

(b) (1) (B)

Friday, March 02, 2012 12:54 PM
USA JFHQ-NCR/MDW SJA
(b) (1) (B)
IX Response (UNCLASSIFIED)

Sergeant Bradley:
EPA has no documents to provide to the Department of the Army, per your request, below.
Approximately one year ago, after reviewing approximately 2400 documents, EPA determined that
there were no EPA documents that were problematic and needed to reported and provided to
NCIX. EPA informed this to NCIX i n an informal, oral communication.
(b) (1) (B)

From: "Bradley, Princeton L. SGT USA 3FHQ-NCR/MDW S]A"
I>
< (b) (6)
To:
(b) (1) (B)
Cc:
Date: 02/27/2012 04:52 PM
Subject:
Request to Review NCIX Response (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: FOUO
Ma'am,
Good afternoon, I hope that you are well. I am a paralegal for the prosecution team in the
Court-Martial of Private First Class Bradley Manning in connection with "W#kileaks." The
purpose of this email i s to request a copy of a l l documents that your organization provided
to NCIX approximately one year ago. Although we have been coordinating with NCIX/ODNI for the
past year, just two weeks ago they determined that we cannot review copies of your
organization's documents in their possession, and we must directly go to your organization to
coordinate a review.
We are requesting this information to determine i f there i s any information that may be
discoverable and may require production by the government. None of the information w i l l leave
our office, unless your organization has approved i t s release, and i t w i l l remain classified
at a l l times.
We would l i k e to review the documents from your organization as soon as possible. This short
suspense i s necessary as the accused was arraigned last week, and to allow for enough time to
coordinate with your organization, i f information i s discoverable. I f the information i s
classified, please feel free to use the lead prosecutor's SIPRNET and JWICS email addresses
below to transmit your documents. I f you would like to speak with me, please c a l l at 202685-1975 and i f you would like to speak with our lead prosecutor, please c a l l Captain Ashden
Fein at 202-685-4572.
1

ManningB_00447381

21513

SIPRNET: (b) (6)
3WICS:
Thank y o u .

Very Respectfully,
Princeton Bradley
Sergeant, U.S. Army
Paralegal Non-Commissioned Officer
Military Justice, OSJA
Fort McNair

(b) (1) (B)

Classification: UNCLASSIFIED
Caveats: FOUO

ManningB_00447382

21514

BradBey, Princeton L. SGT USA JFHQ-NCR/MDW SJA
From:
Ser^t:
To:
Subject:

(b) (1) (B)

Wednesday, March 07, 2012 11:45 AM
Bradley, Princeton L. SGT USA JFHQ-NCR/MDW SJA
RE: Request to Review NCIX Response (UNCLASSIFIED)

" I have contacted you on behalf of the prosecuting attorneys to request a point of contact i n
your General Counsel's Office with regard to the documents your organization sent to the NCIX
regarding the "W#kileaks" incident. Those documents, should they be deemed relevant and
necessary, would be used i n the U.S. Army Court Martial of PFC Bradley Manning, but only with
the permission of your agency."
Sergeant Bradley,
I believe I know what you are referring t o . Shortly after the "W#kileaks" incident, I was
contacted by NCIX and given a briefing. They said they had done a word search (the words
being "Postal", "Inspection", and " Service") of the released records and found three
pertaining to the Postal Inspection Service. They provided me with a CD containing the
reports and asked me t o review them and advise i f we had been compromised i n any way.
The Postal Service does not have original classification authority, so I was somewhat
surprised that they had found anything pertaining to us. I reviewed the documents and they
were a l l the same document. I t was a summary of activities compiled by another agency. I
don't know why i t was classified.
I t mentioned a v i s i t to a U.S. Attorney's Office and
listed what agencies were present. One was the Postal Inspection Service. The information
was meaningless. I either phoned or emailed the NCIX contact and advised him of t h i s . I did
not send any documents to the NCIX ("with regard to the documents your organization sent to
the NCIX").
Please advise i f you need anything further.
(b) (1) (B)

From: Bradley, Princeton L. SGT USA 3FHQ-NCR/MDW(b)
(6)
(b) (1) (B)

Subject: Re: Request t o Review NCIX Response (UNCLASSIFIED)
Sir,
Unfortunately, I personally do not have 3WICS access. Our lead prosecutor Captain Ashden Fein
however has both DWICS and SIPRNET access. I have provided those email addresses below.
However, I would like to add that although we work i n a secured environment, CPT Fein does
not currently have 3WICS access at his desk and must go to our SCIF i n order t o reply to your
emails. I f you require any additional information please feel free to contact me.
(b) (6)

ManningB_00447383

21515

Very Respectfully,
Sergeant Princeton Bradley
OSJA, Military Justice
Fort McNair, Bldg^2
202685 1975
(b) (6)

(b) (1) (B)

Sir,
Do you have a JWICS email address that I may respond to^
Thank you
(b) (1) (B)

From: Bradley, Princeton L. SGT USA JFHQ-NCR/MDW SJA
[mailto:P(b) (6)
(b) (1) (B)

Subject: Request to Review NCIX Response (UNCLASSIFIED)
Classification: UNCLASSIFIED
Caveats: FOUO

Sir,

Good afternoon, I hope that you are doing well. I am sending you this email
to confirm that I am i n fact SGT Princeton Bradley and that I l e f t the voice message on your
answering machine on the 29th of February. I apologize for the lapse i n communication, I
have been out of the office since last Friday. I would also take this opportunity t o
elaborate on the request I mentioned in my message.

As you may recall, I am currently a paralegal for the prosecution team i n the U.S. Army
Court-Martial of Private First Class Bradley Manning i n connection to "W#kileaks." I have
contacted you on behalf of the prosecuting attorneys to request a point of contact i n your
General Counsel's Office with regard to the documents your organization sent to the NCIX
regarding the "W#kileaks" incident. Those documents, should they be deemed relevant and

ManningB_00447384

21516

necessary, would be used in the U.S. Army Court Martial of PFC Bradley Manning, but only with
the permission of your agency.

These documents w i l l remain classified at a l l times, and w i l l only be used, i f at a l l , within
the guidelines given by your General Counsel's Office. This being said, the prosecuting
attorneys need to coordinate with your OGC department to establish those guidelines and
ensure proper use of those documents. I f at a l l possible, please send both SIPRNET and JWICS
email addresses, as well as phone numbers, for the points of contact that you are able t o
obtain. Also, I would stress that because the accused was arraigned as of the 23rd of
February, the prosecution team i s in need of this information as soon as possible. Thank you
very much for your assistance i n this matter and please contact me i f you have any questions
or concerns.

Very Respectfully,
SGT Princeton Bradley
Paralegal Non-Commissioned Officer
Military Justice, OSJA
Fort McNair, Bldg32
(b) (6)

Classification: UNCLASSIFIED
Caveats: FOUO

ManningB^00447385

21517

Bradley, Princeton L. SGT USA JFHQ-NCR/MDW SJA
From:
Sent:
To:
Subject:

Whyte, Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
Thursday, April 19, 2012 9:12 AM
Bradley, Princeton L. SGT USA JFHQ-NCFl/MDW SJA
FW: US V. Manning (UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE
Human Health Services - please process
-Original Message-

(b) (1) (B)

Sent: Thursday, April 19, 2012 8:54 AM
To: Whyte, Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
Subject: RE: US v. Manning (UNCLASSIFIED)
HHS/OSSI reviewed about 6 thousand documents. We found that these documents did not reflect
any damaging or derogatory comments related interactions with foreign counter
parts/officials. Most of the documents pertained to personnel movements and scene setters for
foreign t r i p s .

Let me know i f you need any more info

Thanks

(b) (1) (B)

This email contains information that is SENSITIVE BUT UNCLASSFIED (SBU) and i s intended FOR
OFFICIAL USE ONLY. The email or i t s attachments should not be disseminated, distributed, or
copied to persons not authorized to receive such information. The contents of this email are
not intended for public release. Please contact the originator prior t o sharing t h i s

ManningB_00447386

21518

information and ensure that a l l sensitive correspondence i s properly labeled prior t o e-mail
dissemination. I f you are not the intended recipient or have received this communication i n
error, please notify the originator immediately and erase a l l copies of the message and i t s
attachments.

(b) (1) (B)

Classification: UNCLASSIFIED
Caveats: NONE
Sir,

Thank you for speaking with me earlier today. Here i s my contact information for the
requested material. Please l e t me know i f your department requires anything additional from
our office or i f you have any further questions about what we are requesting.

v/r

J. Hunter Whyte
CPT, JA
T r i a l Counsel
United States Army Military District of Washington

Classification: UNCLASSIFIED
Caveats: NONE
Classification: UNCLASSIFIED
Caveats: NONE

ManningB^00447387

21519

Fein A s h d e n C A P T NORTHCOM USA Military
From:
Sent:
To:
Cc:
Subject:

(b) (1) (B)
Thursday, March 22, 2012 9:31 AM
Fein Ashden CAPT NORTHCOM USA Military

(b) (1) (B)

Responses from the Department of Veterans Affairs to Wiki Leaks questions

CLASSIFICATION: UNCLASSIFIED
CAVEATS: FOUO
TERMS: NONE

Good morning Sgt Princeton Bradley,

My name i (b) (1) (B)
a Security Specialist here at the Department of Veterans Affairs I work w i (b) (1) (B) |
(b) (1) h o is the SSO. (b) (1) ^ l i s on leave and she wanted me to send you the answers to the Wiki Leaks questions
from the Department of Veterans
Affairs. The answers to the Wiki Leaks questions are below:
(B)
(B)
Answers:
1.

There were no additional documents found in addition to those provided by IRTF.

2.

Veterans Affairs (VA) does not have classification authority; therefore, none of the documents were originated by
VA. CONFIDENTIAL was the highest classification level referencing VA documents.

3.

In the event of a public release of the documents, there will no impact on the VA. VA does not collect intelligence;
therefore, no revelation of sources and method and no impact on going or future agency activities.

4.

There will be no impact on VA's ability to fulfill its mission.

5.

There is no impact; therefore, no plan to mitigate.

6.

There is no financial impact; therefore, no planned mitigation efforts.

7.

There are no other issues.

Respectfully,

(b) (1) (B)

CLASSIFICATION: UNCLASSIFIED
CAVEATS: FOUO
TERMS: NONE

ManningB_00447389

21520

Whyte, Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
(b) (1) (B)

From:

Sent:
To:

rhursday. May 03, 2012 4:32 PM
Whyte, Jeffrey H. CPT USA JFHQ-NCR/MDW SJA
SEC WL Declaration

Subject:

UNCLASSIFIED
Captain White:
In mid-October 2010, the United States Securities and Exchange Commission (SEC) received a request from
NCIX to conduct a review of certain documents relevant to a national security matter. The agency reviewed a
total of 1,497 separate documents created between 2004 and mid-2010. The SEC review indicated that this
agency did not suffer any damage or impact resultingfromthe compromise of those documents.
We communicated ourfindingsverbally to NCIX in the February/March 2011 timeframe. In May/June 2011
timeframe, we also talked with N ARA - Information Security Oversight Office (ISOO) as to the review and
results.
(b) (1) (B)

ManningB_00447392

21521

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES

v.
MANNING, Bradley E., PFC
U.S. Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

)
)
)
)
)
)
)
)
)
)
)

SUPPLEMENT TO
DEFENSE MOTION TO
COMPEL DISCOVERY #2

30 May 2012

ADDITIONAL FACTS
1. On 30 May 2012, the Government requested a telephonic 802 conference in order to, inter
alia, clarify the scope of the Court’s 29 May Ruling ordering the Government to produce a
witness from the State Department to testify at the 6-8 June 2012 motions argument.
2. During the call, the Government requested clarification as to what the Defense would be
asking the State Department witness, so as to ensure that the right witness was provided and so
that, if necessary, protective measures could be put in place to safeguard classified information.
The Defense stated that it would ask the Department of State witness questions about whether
documents exist within the Department of State with respect to the following:
(a) The Chiefs of Mission review of the released cables at affected posts
discussing their initial assessment, as well as their opinion regarding the overall
effect that the WikiLeaks release could have on relations within their host
country, if any;
(b) The WikiLeaks Working Group composed of senior officials throughout the
Department that was created to review potential risks to individuals from the
release of cables by WikiLeaks, if any;
(c) The “Mitigation Team” created by the Department of State to address the
policy, legal, security, counterintelligence, and information assurance issues
presented by the release of the documents to WikiLeaks, if any; AND
(d) The Department’s reporting to Congress concerning any effect caused by the
WikiLeaks’ disclosure and the steps undertaken to mitigate them, if any. The
Department convened two separate briefings for members of both the House of
Representatives and the Senate in December of 2010. The Department also
appeared twice before the House Permanent Select Committee on Intelligence on
7 and 9 December 2010.

21522

See Defense Motion to Compel Discovery #2 at p. 8, 11-12. For instance, it would ask the
Department of State witness whether the WikiLeaks Working Group was actually created; if so,
whether they had any documentation and in what form; and whether any of this material is
already contained within the damage assessment provided by the Department of State.
3. The Government expressed confusion about producing the witness. MAJ Fein stated that it
seemed like the Defense was asking for what material might be found within the Department of
State. If so, the proper way to do this is not through a witness, but through a proper discovery
request. The Defense was absolutely baffled by MAJ Fein’s statement.1 The Defense has made
previous discovery requests for this information, but the Government has prevaricated on
whether it even existed. More importantly, the request for this information was most recently
made in the Defense Motion to Compel Discovery #2. To now suggest that the Defense has not
asked for this information is preposterous.
4. When the Defense and the Court pointed out that the Defense had repeatedly asked for this
information, the Government switched its tune, almost pretending that it had not made the crazy
statement to the effect that if the Defense wanted this information, it should have asked for it.
5. The Government’s new argument was that it does not dispute that the things referenced above
actually happened (i.e. the Government would stipulate that a Working Group, Mitigation Team,
etc. were constituted), but instead disputes whether the Defense is entitled to these documents.
That is, the Government conceded that documents from (1)-(4) exist, but maintained that the
Defense had not stated an adequate basis for discovery and thus was engaging in a “fishing
expedition.” Thus, it was not entitled to these documents under R.C.M. 701(a)(6) or 701(a)(2).
6. The Defense asked whether the Government had seen the requested documents. The
Government admitted that it was still working to get these documents and had not reviewed
them. Its first priority was getting the damage assessment from the Department of State; these
other documents had lower priority. The Defense expressed its disbelief that discovery requests
were made for these documents in 2011, and the Government had not obtained (much less
reviewed) the documents when the trial is scheduled for a mere few months from now. The
Defense also asked the Government how it could claim that these documents were not
discoverable when it had not yet reviewed them. The Government did not provide a response.
7. The Court ultimately ordered the Government to produce a witness from the Department of
State and directed that the Defense’s questioning be limited to what documents, if any, existed
within the Department of State.2 The Court also ordered the Government to put together a list of
all the evidence (both documentary and testimonial) that it intended to introduce in aggravation.
Because some of the evidence might be classified, the Court permitted the Government to
propose a workable format for this list.

1

The Court also indicated repeatedly that it was confused by MAJ Fein’s statement.
In light of the new information learned by the Defense, the Defense indicated that it would also like to question the
witness about when the Government asked for (1)-(4) from the Department of State. The Court was of the view that
this was a question for the Government and not for the Department of State.

2

2

21523

ARGUMENT
8. In its Motion to Compel Discovery #2, the Defense asked for the Court to order the
Government to prepare a “due diligence” statement explaining the steps it has taken in its Brady
search. In that motion, the Defense explained the reasons why it was imperative that the
Government be held to account for its Brady search. In particular, the Defense referenced a 17
April 2012 memo from HQDA which revealed that the Government had not yet conducted a
Brady search of its own files. The memo showed that the Government sent an original request
out in July 2011, but that the Government did not realize that the request had not been acted
upon until nearly nine months later. This utter lack of diligence in searching its own files does
not inspire confidence that the Government is diligently searching files of closely aligned
agencies.
9. The Defense has now learned of new information that supports the Defense’s argument that
the Court should order the Government to prepare a “due diligence” statement. The Government
has not conducted a search of files within the Department of State, an agency that is “closely
aligned” with the Government within the meaning of Williams. United States v. Williams, 50
M.J. 436 (C.A.A.F. 1999). Under Williams, a prosecutor must search:
(1) the files of law enforcement authorities that have participated in the
investigation of the subject matter of the charged offenses; (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. [citations omitted].
The Defense submits that the Government has a Brady obligation to search files from the State
Department both under the second and the third prong of Williams.
10. The Government appears to be saying that it needs some authority or proffer or relevance,
above and beyond Brady/Williams, in order to conduct this search. This position is troubling.
The Defense made a “discovery request[] that involved a specified type of information within a
specified entity” for items (1)-(4), referenced above. At this point, the Government’s
Brady/Williams obligations kick in and the Defense does not need to proffer any further basis for
the Government. The relevance of the documents requested is so self-evident (harm, mitigation,
risk to individuals, etc.) that the Government’s position that the Defense had not stated an
adequate basis for these documents is disheartening.
11. Even if the Defense had not made a specific request (which is clearly did), the Government
would still have an obligation to search the Department of State files. The Government
recognizes this in its Response Motion where it states, “The prosecution shall, and will, disclose
Brady and RCM 701(a)(6) material even in the absence of a defense request.” Government
Response Motion, p. 16. Despite apparently being aware of the relevant law, the Government
still does not understand what it is doing.
12. The Defense had assumed that since the Court set the Government straight in its 23 March
2012 Ruling, the Government was (albeit belatedly) following-through on its Brady obligations.
The more the Defense learns – either through accident or through conversations involving

3

21524

tangentially-related matters – the more it is apparent that the Government still does not have a
handle on Brady and discovery in general.
13. To date, the Defense has received very little Brady material. The Government assures the
Defense that more is forthcoming. See Government Response, p. 16. R.C.M. 701(a)(6) requires
the Government to provide Brady material “as soon as practicable.” Most of the Brady material
provided thus far (with the exception of the damage assessments) is unclassified. It is unclear
why unclassified Brady material was not provided earlier, and why the Defense is still waiting
for the bulk of Brady discovery. The Government has had over two years to perform a Brady
search. It can hardly be said that providing Brady to the Defense two years into the case (and
less than three months before trial) qualifies under R.C.M. 701(a)(6) as “as soon as practicable.”
The Defense believes that the Government is either willfully blind to its discovery obligations or
that it is dragging out the process to obtain a tactical advantage. Neither can be tolerated.
14. Further, there are big question marks on whether the Government has searched for Brady in
all the relevant files. Based on: a) the HQDA Memo; b) the Government’s admission about not
even starting the Department of State search; and c) Brady information being provided to the
Defense in dribs and drabs, it is safe to assume that the Government is missing the mark on its
Brady obligations, despite its protestations to the contrary.
15. At this juncture, there are serious Brady questions regarding the following agencies or
organizations:
a) Interagency Committee Review – the Government does not appear to have conducted a
Brady search
b) the President’s Intelligence Advisory Board – the Government states that it is in the
process of searching for Brady (Government Response, p. 4).
c) the House of Representatives Oversight Committee - the Government does not appear to
have conducted a Brady search
d) the Chiefs of Mission review – the Government has not conducted a Brady search
e) the WikiLeaks Working Group - the Government has not conducted a Brady
search
f) the “Mitigation Team” created by the Department of State - the Government has
not conducted a Brady search
g) the Department of State’s reporting to Congress - the Government has not
conducted a Brady search
h) DIA – it is unclear whether the Government has conducted a Brady search
i) DISA - it is unclear whether the Government has conducted a Brady search
j) CENTCOM and SOUTHCOM - it is unclear whether the Government has conducted a
Brady search
k) April 2012 HQDA Memo – the Government is currently in the process of conducting a
Brady search
l) FBI – the Government claims to have produced all Brady from the grand jury testimony;
the Government claims to have produced “at least Brady” in the remaining portions of the
FBI file it has produced, but it is unclear whether the Government has actually completed
its Brady search of other FBI files
m) DSS - it is unclear whether the Government has conducted a Brady search
4

21525

n) DOS – the Government does not appear to have conducted a Brady search (since its first
priority was simply getting the Court the damage assessment).
o) DOJ - it is unclear whether the Government has conducted a Brady search
p) Government Agency - it is unclear whether the Government has conducted a Brady search
q) ODNI - it is unclear whether the Government has conducted a Brady search
r) ONCIX – the Government is currently in the process of conducting a Brady search
s) 63 agencies and other organizations the Government has claimed to have contacted – the
Government represented that it already searched the 63 agencies and that none of these
agencies had Brady material; apparently, it is now re-searching these files under the
correct Brady standard.
16. Not only has the Defense not yet received Brady material from all of these organizations, but
it seems that the Government has not even contacted some of these organizations. See e.g.
Government Response, p. 3-4 (stating that the prosecution is in the process of searching for
discoverable information from the Intelligence Advisory Board; but resisting searching for Brady
material from the Interagency Committee Review and the House of Representatives Oversight
Committee).
17. At a certain point, we can no longer believe the Government when they say they know what
they are doing and they are working “diligently.” This is simply not the case. The HQDA
Memo and the fact that they have not reviewed key Department of State files prove otherwise.
As such, the Government should be directed to account for the steps that it has taken in fulfilling
its Brady obligations, as discussed in the Defense’s Motion to Compel Discovery #2.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

5

21526

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

)
)
)
)
)
)
)
)
)

Prosecution Response to
Supplement to Defense Motion to
Compel Discovery #2

31 May 2012

The prosecution respectfully requests the Court deny the defense's request that the
prosecution account for the steps that it has taken in fulfilling its Brady obligations for the
reasons provided in the Prosecution Response to Defense Motion to Compel Discovery #2. The
prosecution responds to the Supplement to Defense Motion to Compel Discovery #2 (hereinafter
the"Supplemeqt") as follows.

FACTS
The prosecution agrees with, disputes, and supplements those facts alleged in the
Supplement as follows.
On 29 May 2012, the Court ordered the prosecution to have a Department of State
witness with knowledge of damage assessments available to testify for the 6-8 June 2012 Article
39(a) session. The Court stated that the witness need not be Ambassador Kennedy.
On 29 May 2012, the prosecution requested that the Court clarify what type of
information the Court intended to elicit from the DoS witness and whether the inquiry would
focus specifically on the DoS. The Court responded that the purpose of the DoS witness is to
address the question by the defense, specifically whether the draft damage assessment is the last
damage assessment by the DoS.
The prosecution agrees with paragraph 1 of the Supplement that, on 30 May 2012, the
prosecution requested a telephonic Rule for Courts-Martial (RCM) 802 conference to clarify,
inter alia, the scope of the DoS witness' testimony.
The prosecution agrees with paragraph 2 of the Supplement insofar as the defense stated
it would ask the DoS witness a series of questions about the existence of the Chiefs of Mission
review, WikiLeaks Working Group, Mitigation Team, and DoS reporting to Congress, and
whether such records are part of the most recent DoS damage assessment. The defense stated
that its questions would elicit a"yes" or"no" response. 1 The prosecution offered to stipulate to
the existence of the Chiefs of Mission review, .WikiLeaks Working Group, Mitigation Team, and
DoS reporting to Congress, as referenced in Under Secretary for Management Patrick Kennedy's
testimony on 10 March 2011. The defense declined.

1

The Supplement itself confirms the defense's ultimate objective in questioning the DoS witness where the defense

proffers that it will ask the witness "in what form" any documents are in; namely, to later formulate discovery
requests. See Supplement, at 2.

1

21527

The defense also stated that it would ask the DoS witness whether, and when, the
prosecution contacted the DoS to conduct its review of any relevant records. The Court stated
that the witness would not be required to testify to whether and when the prosecution contacted
the DoS.
The prosecution opposed the scope of the defense's proffered examination of the DoS
witness as being a fishing expedition to undercover intra- and inter-agency workings to develop
future discovery requests.
The prosecution disputes paragraphs 3-4 of the Supplement. The prosecution has never
denied, or questioned, the existence of the Chiefs of Mission review, WikiLeaks Working Group,
Mitigation Team, and DoS reporting to Congress. In fact, until recently, the defense had not
requested any information from, yet alone reference, the Chiefs of Mission, WikiLeaks Working
Group, Mitigation Team, or the DoS reporting to Congress.2 Neither the pre-referral discovery
requests nor the Defense Motion to Compel Discovery makes such a request.
On 10 May 2012, the defense requested"any documents related to" the Chiefs of
Mission, WikiLeaks Working Group, Mitigation Team, or the DoS reporting to Congress in
discovery under RCM 701(a)(2) or, in the alternative, in production under RCM 703. See
Defense Motion to Compel Discovery #2 (hereinafter"Discovery #2"). On 24 May 2012, the
prosecution requested that the Court deny the discovery under RCM 701(a)(2) or production
under RCM 703 of any such documents"for failure to provide specificity or an adequate basis
for its request." Prosecution Response to Discovery #2. The prosecution reasons that requesting
"any documents" is not a specific request and that the defense is required to articulate why
requested information is discoverable or subject to production under RCM 701(a)(2) or RCM
703.
The prosecution disputes paragraph 5 of the Supplement. Again, the prosecution
consistently has denied discovery under RCM 701(a)(2) or production under RCM 703 of"any
documents related to" the Chiefs of Mission, WikiLeaks Working Group, Mitigation Team, or
the DoS reporting to Congress"for failure to provide specificity or an adequate basis for its
request." Id. The prosecution has never stated that the defense is not entitled to any information
discoverable under RCM 701(a)(6), and has consistently stated that the prosecution intends to
review all documents for Brady and RCM 701(a)(6) material that is provided by the DoS that are
responsive. See Prosecution Response to Discovery #2; see also AE XLIX, at 2.
The prosecution disputes paragraph 6 of the Supplement insofar as the defense stated that
it made discovery requests for the Chiefs of Mission, WikiLeaks Working Group, Mitigation
Team, or the DoS reporting to Congress in 2011 and that the prosecution prioritized its duty to
search for Brady and RCM 701(a)(6) material under Williams. First, the defense had not

2

The defense stated that it made a request for these materials in 2011. Until 10 May 2012, the defense made no

request. The prosecution assumes the defense believes its blanket requests for all Do S files included these materials.
The prosecution has repeatedly stated its position that the requests are not specific to inform a search. See
discussion

infra.

2

21528

requested this information with specificity until three weeks ago. Second, during the conference,
the prosecution stated that the DoS is currently working to provide all responsive files, including
any information from the groups listed above, to the prosecution for its review for Brady or
RCM 701(a)(6) material. The DoS chose to prioritize the production of the damage assessment;
however they continued to work on accumulating the documents from throughout the DoS and
their many different systems.
The prosecution disputes paragraph 7 of the Supplement insofar as the Court ordered the
prosecution to put together a list of all the evidence (both documentary and testimonial) that it
intends to introduce in aggravation." Supplement, at 2. The Court did not order the prosecution
to list each specific piece of evidence it intends to use in aggravation, but instead ordered the
prosecution to provide a list of what type of evidence it intends to use in aggravation solely to
assist the Court in conducting its Military Rule of Evidence (MRE) 505 review to make
discovery determinations. The Court clarified that the prosecution may present an unclassified
version of such evidence; again, sufficient for the Court to conduct its MRE 5 05 review to make
discovery determinations. The Court did not order the prosecution to specifically identify each
piece of aggravating evidence it intends to use. The prosecution also specifically acknowledged
that it will not use certain aggravation evidence, although it might exist during its presentencing
case.
The parties agree that the FBI and DSS participated in a joint investigation with CID of
the accused. The parties agree that DoS, DoJ, Government Agency, and ODNI are entities
closely aligned with the prosecution, for purposes of Williams. See Government Response to
Discovery #2, at 2.
The parties agree that FBI, DSS, DoS, DoJ, Government Agency, ODNI, and ONCIX are
not military organizations or entities. See id., at 2.

LEGAL AUTHORITY AND ARGUMENT
The prosecution shall, inter alia, search for Brady and RCM 701(a)(6) material, disclose
Brady and RCM 701(a)(6) material, and permit the defense to inspect materials within the
possession, custody, or control of military authorities under RCM 701(a)(2). The prosecution
requests the Court deny the defense's request for the prosecution to account for the steps it has
taken in fulfilling its discovery obligations and deny the defense's discovery requests.
1:

DUTY TO SEARCH FOR BRADY AND RCM 701(a)(6) MATERIAL

The prosecution shall search the following: (1) its own files; (2) the files of law
enforcement authorities that have participated in the investigation of the subject matter of the
charged offenses; (3) the investigative files in a related case maintained by an entity closely
aligned with the prosecution; and (4) other files, as designated in a defense discovery request,
that involved a specified type of information within a specified entity. See United States v.
3
Williams, 50 M.J. 436,441 (C.A.A.F. 1999).
3

The prosecution also bears an obligation to search for Brady and RCM 70l(a)(6) material under its own ethical

rules. The prosecution has produced twenty-seven damage assessments, pursuant to its ethical obligation and absent

3

21529

A. The Prosecution's Own Files
The prosecution has searched its own files and disclosed any Brady and RCM 701(a)(6)
material contained therein. The defense argues that the prosecution's own files include the
Headquarters, Department of Army (HQDA) records. The HQDA records at issue are those that
the prosecution retrieved pursuant to its independent ethical obligations, and not a defense
request. The prosecution is searching those records for Brady and RCM 701(a)(6) material.
B. Law Enforcement Files
Here, the parties agree that CID, FBI, and DSS are law enforcement authorities that have
participated in the investigation of the subject matter of the charged offenses. Thus, the
prosecution shall search the CID, FBI, and DSS files for Brady and RCM 701(a)(6) material.
The prosecution has produced the entire CID and DSS files relating to the accused. See
Prosecution Response to Defense Motion to Compel Discovery #2, at 2, 15. The prosecution has
produced, at a minimum, all Brady and RCM 701(a)(6) material from the FBI law enforcement
file relating to the accused.
The prosecution further requested that the FBI search its entire records for information
relating to any damage resulting from the charged offenses. The prosecution discovered that the
FBI conducted an impact statement, outside of the FBI law enforcement file, for which the
4
prosecution intends to file an ex parte motion under MRE 505(g)(2).
C. Closely Aligned Entities
5
Here, the parties agree that DoJ, Government Agency, DoS, ODNI, DIA, DISA,
CENTCOM, and SOUTHCOM are entities closely aligned with the prosecution under Williams.
Thus, the prosecution shall search the DoJ, Government Agency, DoS, ODNI, DIA, DISA,
CENTCOM, and SOUTHCOM files for Brady and RCM 701(a)(6) material, and the prosecution
recognizes that some of these organizations also fall within the DoD and could be subject to
discovery requests under RCM 701(a)(2) (discussed below). The prosecution has produced, or
disclosed to the Court all forensic results or investigative files, and damage assessments by DoJ
and Government Agency that are discoverable under Brady and RCM 701(a)(6). The

a defense request or originating from a closely aligned organization under Williams. The prosecution is

coordinating to search the President's Intelligence Advisory Board for Brady and RCM 70 I(a)(6) material under its
ethical obligation, based on having an independent good faith basis that Brady and RCM 70 I(a)(6) material might

exist.
4

The prosecution has intended to address this matter during the discussion of the case calendar at the upcoming

RCM 802 conference. Once the prosecution receives approval to disclose classified or unclassified in formation, the
prosecution intends to produce any Brady or RCM 70l(a)(6) material to the defense

as soon as possible; however,

the current case calendar outlines MRE 505 proceedings to take place at a future date.
5

The prosecution has defined DoJ as Main Justice and the United States Attorney's Offices, and not its subordinate

organizations, to include the FBI. See AE XLIX at 5.

4

21530

prosecution continues to search ODNI, DIA, DISA, CENTCOM, and SOUTHCOM files for
Brady and RCM 701(a)(6) material.
The DoS is "the lead U.S. foreign affairs agency within the Executive Branch and
the lead institution for the conduct of American diplomacy." See Enclosure at 6. The DoS
"operates more than 270 embassies, consulates, and other posts worldwide staffed by Locally
Employed (LE) Staff and more than 13,500 Foreign Service officers[]" and over 10,500 civil
service corps employees, and a total of 29,832 full-time permanent employees. See Id at 6-7.
As such, conducting its Williams search of DoS files for Brady and RCM 701(a)(6) material is a
challenging, time-consuming task. The prosecution has produced all DoS forensic results and
investigative files that are discoverable under Brady and RCM 701(a)(6). Further, as of 18 May
2012, the DoS damage assessment has been available for defense counsel to inspect pursuant to
the prosecution's filing. The prosecution continues to work with the DoS to search the DoS
records for Brady and RCM 701(a)(6) material, to include information relating to the Chiefs of
Mission review, WikiLeaks Working Group, Mitigation Team, and the DoS reporting to
Congress.
The prosecution is not closely aligned under Williams with ONCIX, a subordinate
organization to ODNI, because the prosecution does not share a working relationship with
ONCIX. See AE XLIX at 4-5. The prosecution has not been given access to review all ONCIX
records. The prosecution is actively seeking authority to review such records for Brady and
RCM 701(a)(6) material.
D. Defense Requests
On 10 May 2012, the defense made a specific request from a specific entity under
Williams for records from the Chiefs of Mission, WikiLeaks Working Group, Mitigation Team,
and the DoS reporting to Congress. The prosecution agrees with the defense that the prosecution
already bore this obligation (i.e., files of closely aligned entities under Williams). However, as
stated above the process is challenging and time-consuming and the prosecution continues to
work with the DoS to search DoS records for Brady and RCM 701(a)(6) material, including

records relating to the groups listed by the defense.6 The ongoing search for Brady and RCM
701(a)(6) material at the DoS does not reflect upon the "diligence" of the prosecution, but instead

upon the gravity of the charged offenses and the widespread United States Government response,
including the response within entire Departments of the Executive Branch. See AE XII, at 1.
The prosecution continues its position that the defense has not provided an adequate basis
or additional information to support its request for the results of any investigation or review
relating to the Interagency Committee Review or the House of Representatives Oversight
Committee. The defense has not provided a sufficient request for why Brady material
(information that is favorable to the accused and material to either guilt or punishment) exists in
these alleged records. These requests do not constitute specific requests under Williams.

6

The prosecution maintains that the defense has not provided an adequate basis for the discovery or production of

such records, outside any Brady or RCM 70l(a)(6) material.

5

21531

II:

DUTY TO DISCLOSE BRADY AND RCM 701(a)(6) MATERIAL.

The prosecution shall, and will, disclose Brady and RCM 701(a)(6) material even in the
absence of a defense request. The prosecution has already produced Brady and RCM 701(a)(6)
material, to include twenty-seven separate damage assessments. For any remaining Brady and
RCM 701(a)(6) material which has been discovered, the prosecution is diligently working for the
approval to disclose that information to the defense or, should the prosecution seek limited
disclosure, file an ex parte motion under MRE 5 05 (g)(2).
The defense continuously speculates that the prosecution is withholding Brady
information because the prosecution has not produced large amounts of Brady information. This
speculation is based on a faulty premise-that extensive Brady information exists. The defense
fails to contemplate that Brady information is simply lacking. To date, the prosecution has not
discovered any exculpatory information. The prosecution has identified some mitigation
evidence and possible Giglio material, and has produced or is seeking approval to produce that
material.

Ill:

DUTY TO PERMIT THE INSPECTION OF MATERIALS UNDER RCM
701(a)(2).

The parties agree that CID, DIA, DISA, CENTCOM, and SOUTHCOM are military
organizations or entities. The parties agree that the FBI, DSS, DoS, DoJ, Government Agency,
ODNI, and ONCIX are not military organizations or entities. See id., Government Response to
Defense Motion to Compel Discovery #2, at 2. The FBI, DSS, DoS, DoJ, Government Agency,
ODNI, and ONCIX records are not within the possession, custody, or control of military
authorities. See id. at 8-14. Accordingly, any FBI, DSS, DoS, DoJ, Government Agency,
ODNI, or ONCIX records are discoverable under Brady and RCM 701(a)(6) (as described
above), but not under RCM 701(a)(2). 7 Since prior to referral, the prosecution has consistently
informed the defense that they have not provided an adequate legal basis for discovery of the
FBI, DSS, DoS, DoJ, Government Agency, ODNI, or ONCIX records, because they are
requesting the material under RCM 701(a)(2), yet the defense still continually submits requests
under RCM 701(a)(2).

IV:

THE GRAVITY OF THE CHARGED OFFENSES, THE WIDESPREAD
UNITED STATES GOVERNMENT RESPONSE, AND THE ACCUSED'S
DUE PROCESS RIGHTS LEAD TO A CHALLENGING DISCOVERY
PROCESS TO ENSURE THE ACCUSED RECEIVES A FAIR TRIAL.

The purpose of this Response is to simplify the discovery process in light of the gravity
of the charged offenses and the necessary widespread United States Government response.
Above all, the prosecution's obligation under Williams is an arduous task, though manageable,
for two reasons: first, many of the records the prosecution has or will search are classified, which
requires the prosecution to gain approval to review and, if necessary, disclose those files to the
defense; second, the entities under Williams are numerous and include some of the largest
federal agencies or Departments in the United States Government (e.g., DoS, ODNI, FBI, DoJ,
7

Any records may also be discoverable under RCM 914 and other evidentiary rules.

6

21532

DIA). This complicates the gathering of, and prolongs the review of, such files. These
complications exist largely because of the gravity of the charged offenses - the quantity of
information, substance of the information,and the national security concerns inherent in the
compromised information.

CONCLUSION
The prosecution respectfully requests the Court deny the defense's request that the
prosecution account for the steps that it has taken in fulfilling its Brady obligations for the
reasons provided in the Prosecution Response to Defense Motion to Compel Discovery #2.

ASHDEN FEIN
MAJ,JA
Trial Counsel
Enclosure
United States Department of State Fiscal Year 2011 Agency Financial Report

I certify that I served or caused to be served a true copy of the above on Mr. David Coombs,
Civilian Defense Counsel via electronic mail, on 31 May 2012.

ASHDEN FEIN
MAJ,JA
Trial Counsel

7

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITEDSTATES

DEFENSE REPLY TO

PROSECUTION RESPONSE TO

SUPPLEMENT TO

DEFENSE MOTION TO

COMPEL DISCOVERY #2
v.

DEFENSE MOTION FOR
MANNING, Bradley E., PFC MODIFIED RELIEF
US. Army,
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, 2 June 2012
Fort Myer, VA 22211

RELIEF SOUGHT

I. In its Motion to Compel Discovery the Defense sought the following:

In accordance with the Rules for Courts Martial (R.C.M.) 701 701 70l(a)(6)
and 905(b)(4), Manual for Courts-Martial (M.C.M.), United States, 2008; Article 46,
Uniform Code ofMilitaryJustice (UCMJ), l0 U.S.C. 846; and the Fifth and Sixth
Amendments to the United States Constitution, the Defense respectfully requests that the
Court compel the requested discovery. Speci?cally, the Defense requests that the Court
order:

a) Full investigative ?les by CID, DIA, DISA, and related
to PFC Manning, WikiLeaks, and/or the damage occasioned by the alleged leaks be
produced to the Defense under R.C.M. 701 Further, that the HQDA ?le related to
the 17 April 2012 request be produced under R.C.M. 70l(a)(2) and 70l(a)(6).

b) FBI, DSS, DOS, DOJ, Government Agency, ODNI, and ONCIX ?les in relation to
PFC Manning and/or Wikileaks be produced to the Defense, or alternatively, that they be
produced for in camera review to determine whether the evidence is discoverable under
R.C.M. 70l(a)(2) as being material to the preparation of the defense. If the Court
concludes that the ?les of the above agencies are not within the possession, custody, or
control of military authorities, the Defense still requests that the Court order production
of the entire ?le under the ?relevant and necessary? standard under R.C.M. 703(f);

c) The Government state with speci?city the steps it has taken to comply with its
requirements under R.C.M. 70l

d) The Government produce Brady materials from certain identi?ed agencies;

21533

21534

e) The Government produce all evidence intended for use in the prosecution case-in-
chief at trial obtained from DISA, FBI, DSS, DOS,
DOJ, Government Agency, ODNI, ONCIX and any aggravation evidence that it intends
to introduce during sentencing from the above named organizations.

2. The Defense modi?es its request for relief as speci?ed below:

a) The Defense moves for the Court to suspend these proceedings and order the
Government state with speci?city the steps it has taken to comply with its requirements
under R.C.M. 70l Once a complete accounting is done, the Court and the parties
can detennine the best way forward. The Defense requests that the Court hear oral
argument on the Defense?s request for a due diligence statement prior to hearing oral
argument on the Motion to Compel Discovery.

b) The Defense also moves to compel the following discovery:

i) The four computers that the Government represented would be
produced on 18 May 2012. On 16 April, the Government stated it was
con?dent that the 4 computer hard drives could be provided by 18 May 20l 2.
The computer hard drives were not provided on 18 May 2012. On 29 May, the
Defense asked when it should expect to receive the hard drives. The
Government indicated that they would have approval by the end of the week.
As of 2 June, 2012, the Government still has not produced these four hard
drives. See Attachment A.

ii) The FBI impact statement under R.C.M. 70l(a)(2) and 70l

The ONCIX damage assessment under R.C.M. 701 and 70l(a)(6).



3. The Defense does not request any witnesses for this motion but does request the Court to
consider the referenced documents and the previous pleadings of the parties.

FACTS

4. For the bene?t of the Court, the Defense would like to provide a timeline with respect to
requests for discovery from the Department of State, along with supporting attachments. This
timeline will aid the Court in determining issues raised in the Defense?s Motion to Compel
Discovery

Discoverv Request for lnfonnation from Department of State

8 December 2010: Discovery request for ?All forensic results and investigative reports
by the Department of State regarding the information obtained by Wikileaks as
referenced by Assistant Secretary of State for Public Affairs PJ. Crowley. Additionally,

2

21535

any speci?c damage assessment by the Department of State regarding the disclosures of
the diplomatic cables by Wiki Leaks. Any assessment, report, e-mail, or document by
Secretary of State Hillary Rodham Clinton regarding the disclosures of diplomatic cables
by Wikileaks. Any report, e-mail, or document discussing the need for the State
Department to disconnect access to its ?les from the govemment?s classi?ed network.?
Attachment to Appellate Exhibit XVI at paragraph

16 February 2011: Discovery request for ?Access to all classi?ed infonnation that the
government intends to use in this case. To include any damage assessment or
information review conducted by any governmental agency or at the direction of a
government agency.? Attachment to Appellate Exhibit XVI at paragraph

l3 October 201 Discovery request for ?Department of State: Any and all
documentation relating to a review of the alleged leaks in this case and any speci?c
damage assessment by the Department of State regarding the disclosure of diplomatic
cables, the subject of this case, by WikiLeaks.? Attachment to Appellate Exhibit XVI

at paragraph

22 November 20] 1: Discovery Request for Production of Evidence Article 32
?Department of State: The Department of State fonned 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. According to published reports in multiple new agencies, including the
Associated Press, The Huf?ngton Post, and Reuters, intemal U.S. government reviews by
the Department of Defense and the Department of State have determined that the leak of
diplomatic cables caused only limited damage to U.S. interests abroad, despite the
Obama administration?s public statements to the contrary. congressional of?cial
briefed on the reviews stated that the administration felt compelled to say publicly that
the revelations had seriously damaged American interests in order to bolster legal efforts
to shut down the WikiLeaks website and bring charges against the leakers. According to
the published account We were told (the impact of Wiki Leaks revelations) was
embarrassing but not damaging,? said the official, who attended a brie?ng given in late
2010 by State Department of?cials. 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.? See generally, huf?ngtonpost. com/20]
wikileaks-rev 81 077 8.htm I). This determination is at odds with the classi?cation
review conducted by the OCA. Mr. Patrick Kennedy should not be permitted to espouse
an opinion which is inconsistent with the damage assessments conducted by the
government. Brady v. Maryland, 373 U.S. 83 Jencks v. United States, 353 U.S.
657 (195 Attachment to Appellate Exhibit XVI at paragraph

December 20] 1 Discovery Request to Compel Production of Evidence Article 32
?The collateral investigations by the Department of State, the Federal Bureau of
Investigation, the Defense Intelligence Agency, the Of?ce of the National
Counterintelligence Executive and the Central Intelligence Agency. The defense is
entitled to receive any forensic results and investigative reports by any of the cooperating

3

21536

agencies in this investigation. United States v. Williams, 50 MJ. 436, 44 1
United States v. Bryan, 868 F.2d 1032, 1036 Cir. 1989); United States v.
Brooks, 966 F.2d I500, I503 Article 46, Uniform Code ofMilitary Justice
(UCMJ). The government responded that it ?has no knowledge of any Braajz or Jencks
material [and] has provided all forensic results and investigative reports requested
that are in its possession and that the United States has authority to disclose.
Attachment to Appellate Exhibit XVI at paragraph

?The Department of State damage assessment review conducted by its task force of over
I20 individuals. This task force reviewed each released diplomatic cable. See Appendix
G. The government responded that it ?has no knowledge of any Brady or Jencks
material [and] does not presently have the authority to disclose damage assessments,
if any, cited by the defense and will make a determination whether to provide the
information if and when it becomes available. Id. At paragraph

?This is a news story by Reuters indicating the State Department representatives testi?ed
before a congressional hearing on the release of diplomatic cables. According to the
news accounts, the State Department official told Congress that they the impact of the
releases were emban'assing but not damaging.? Appendix to Attachment to
Appellate Exhibit

20 January 2012: Discovery request: ?Does the Government possess any report, damage
assessment, or recommendation by the Department of State concerning the alleged leaks
in this case? If yes, please indicate why these items have not been provided to the
Defense. If no, please indicate why the Government has failed to secure these items.?
Attachment to Appellate Exhibit XVI at paragraph

Other Relevant Facts

10 March 20l l: Ambassador Kennedy testifies to Congress about the existence of a
Chiefs of Mission review, WikiLeaks Working Group, Mitigation Team, and the DOS
report to Congress. See Attachment B.

2 December 201 I 2 the Defense submitted its witness list to the Article 3 2 Investigating
Officer, naming Ambassador Patrick Kennedy as witnesses. See Court?s Ruling
Appellate Exhibit

14 December 20] the lO determined that Mr. Kennedy was not reasonably available.
Id.

20 January 2012: the Defense filed with the Government a Discovery Request wherein it
asked for complete contact information for Ambassador Patrick Kennedy. Id.

23 January 20 I2: the Defense ?led a request for an oral deposition of Mr. Kennedy with
the General Court-Martial Convening Authority. Id.

27 January 2012: the Government responded that it would not provide contact
information for Mr. Kennedy because he was not a Government witness, but if he later
became a Government witness they would provide access. Id.

4

21537

1 February 2012: the Defense requested contact information for AmbassadorPatrick
Kennedy in order to explore calling Mr. Kennedy as a Defense witness. The Government
indicated it would provide contact information for Mr. Kennedy.

Id.

1 February 2012: the GCMCA denied the Defense's request to order a deposition of Mr.
Kennedy.

Id.

1 6 February 2012: the Defense filed its Motion to Compel a deposition of Mr. Kennedy;
the Defense also filed Motion to Compel Discovery #1 , seeking
assessments by the Department of State.

inter alia, damage
See Appellate Exhibits VII and VIII.

28 February 2012: the Defense renewed its request for contact information for Mr.
Kennedy.

See Attachment A to Appellate Exhibit XXV.

29 February 2012: the Government indicated that the Defense would have to submit a

Touhy request in order to speak with Mr. Kennedy. The Government asserted that it first
Touhy issue earlier that very week. See Attachment C to

became aware of the possible
Appellate Exhibit XXV.

13 March 2012: the Defense filed its Reply to the Government's Response to the
Defense's Motion to Compel a deposition of Mr. Kennedy; the Defense also filed a Reply
to the Government's Response to Motion to Compel Discovery.

See Appellate Exhibits

XXV and XXVI.
1 5 -1 6 March 2012: Court considers the Defense's Motion to Compel Discovery and
Depositions.
1 6 March 2012: Court issues its Ruling on Defense Motion to Compel Depositions. The
Court denied the Defense's request to compel a deposition of Mr. Kennedy. The Court
determined that the Government has not impeded the Defense's access to Mr. Kennedy
and that the Government has volunteered to assist the Defense in coordinating interviews
and an in any applicable

Touhy process. The Court also determined that there was no
See Appellate Exhibit

evidence that Mr. Kennedy would not be available for trial.
XXXIII.

23 March 2012: The Court issued its Ruling on the Defense Motion to Compel
Discovery.

See Appellate Exhibit XXXVI. The Court held that the Government had a

due diligence duty to search for evidence that is favorable to the Defense and material to
guilt or punishment. This included a due diligence duty to search any damage assessment
pertaining to the alleged leaks in this case made by the DOS. The Court ordered the
Government to notify the Court NLT 20 April 2012 whether any forensic results or
investigative files relevant to this case existed within the DOS. Finally, the Court ordered
the Government to immediately begin the process of producing the damage assessment
from the DOS.

Id.

23 March 2012: the Defense submits its

Touhy request by Fed-Ex to the DOS and

emailed a copy of the request to the Government listing Mr. Kennedy as the DOS witness
and specifically discussing the Chiefs of Mission review, WikiLeaks Working Group,
Mitigation Team, and DOS reporting to Congress.
5

See Attachment C.

21538

2 6 March 2012: The Government sought clarification based upon the Court's 23 March
Order. The Government stated that the DOS had not completed a damage assessment.
The Government also stated " . . . although the Department has monitored and continues to
monitor the impact of the release of the cables discussed in Under Secretary's Kennedy's
declaration in this case, the Department has not finalized an assessment of the damage to
date, or over a shorter interim period of time. The Department only has a working draft
that is not complete." The Government also acknowledged that it was "aware of
investigative files maintained by the FBI and DOS."

See Attachment B.

27 March 2012: the Defense sent to the Government and Court the statement by Mr.
Kennedy before the Senate Committee on Homeland Security and Governmental Affairs.
The email discussed in detail the Chiefs of Mission review, WikiLeaks Working Group,
Mitigation Team, and DOS reporting to Congress. The Defense maintained that is issue
was not whether there is a "completed" damage assessment, but whether the DOS had
done what Mr. Kennedy testified to at the Senate hearing. The Defense stated that all of
this information should be produced to the Defense under paragraphs 4-6 of the Court' s
23 March 2012 Ruling.

Id.

28 March 2012: the Government sent an email to the Court and Defense stated that it
disagreed with the Defense's interpretation of Mr. Kennedy's statement. The
Government requested an opportunity to discuss the issue at an 802 conference that day.

See Attachment D.
28 March 2012: the Court conducted a telephonic 802 session with the parties. The
Court indicated that the Government would need to either produce what the DOS had, or
produce a witnesses to testify regarding the DOS's efforts.
9 April 2012: the Government stated that they had been notified that the legal advisor to
the DOS had received the Defense' s

Touhy request. See Attachment E.

9 April 2012: the Defense asked if the DOS had done anything on the request since it
had been two weeks since the Defense Fed-Ex'd the request to the DOS.

Id.

13 April 2012: the Defense requested the Government to provide it with an update on the

Touhy request for Mr. Kennedy. Id.
1 6 April 2012: the Government stated that the DOS was processing the Defense' s
request and might have an answer by the end of the week.

Touhy

Id.

1 7 April 2012: the Court sent an email to the parties requesting that the Government
advise the Court as to the State Department representative would be available for the 17
April Article 39(a).

See Attachment F.

20 April 2012: the Government provided notice to the Court and the Defense that the
DOS had forensic results and investigative files. The Government represented that it had
reviewed this information for evidence that was favorable to the accused and material to
either guilt or punishment. The Government also represented that "prior to the Court's
order, the United States produced this information to the defense." See Appellate Exhibit
LVI.
6

21539

20 April 2012: The Government sent an email to the parties indicating that the DOS
witness was no longer needed since the DOS would authorize the Government to submit,
in camera and ex parte, the classified draft assessment along with an explanation of the
dra?, for the Court?s review. The Government maintained that ?the draft damage
assessment was not discoverable under RCM 70l(a)(6) or Braajz because it was a mere
draft.? See Attachment F.

1 May 2012: the Court issued its Ruling Granting the Government?s Motion to
Reconsider the Court?s ruling of 23 March 2012 with respect to the DOS Damage
Assessment. Having reconsidered the ruling, the Court found that the fact that the DOS
Damage Assessment is a draft does not make the dra? speculative or not discoverable
under RCM 701. As such, the Court order the Government to comply with the 23 March
20l2 Ruling. See Court Ruling ll May 2012.

l5 May 20 l2: the Defense requested if the Government had any update on the Touhy
request for Mr. Kennedy. See Attachment E.

l5 May 20 l2: the Government stated that had made an inquiry this morning and should
be hearing back from the DOS in the next day or two. The Government had not provided
any ?irther update on the Touhy request. Id.

ARGUMENT
A. The Government's Lack of Due Diligence With Respect to the Department of State

5. The Government makes a big production in its Response to Supplement to Defense Motion to
Compel Discovery #2 [Government Response to Supplement] that ?until recently, the defense
has not requested any information ?om, yet alone reference the Chiefs of Mission,

Wiki Leaks Working Group, Mitigation Team or the Reporting to Congress.? Government
Response to Supplement, p. 2. It states that ?neither the pre-referral discovery requests nor the
Defense Motion to Compel Discovery makes such a request.? Id It further states that it disputes
paragraph 6 ?insofar as the defense stated that it made discovery requests for ?the Chiefs of
Mission, Wiki Leaks Working Group, Mitigation Team or the Reporting to Congress.? Id.
In footnote 2, it states again, ?until 10 May 2012, the defense made no request for [these items].
The prosecution has repeatedly stated its position that the requests are not specific to inform a
search.? Id. As if its position was not clear, the Government states once again, the ?defense had
not requested this infonnation with speci?city until three weeks ago.? Id. at p. 3. The
Government?s submissions suggest that it was only just now learning that the Department of
State had information related to the Chiefs of Mission, WikiLeaks Working Group, Mitigation
Team or the Reporting to Congress. Nothing could be further from the truth.

6. By its own admission, Patrick Kennedy testi?ed before Congress as to the existence of the
Chiefs of Mission, Wikibeaks Working Group, Mitigation Team and the Reporting to
Congress on 10 March 201 1. See Government Response to Supplement, p. 1. Accordingly, the
Government had notice 15 months ago that there were documents within the Department of State
that could contain Brady material.

21540

7. Moreover, as the above timeline reveals, the parties have been litigating about this very issue
for months. The timeline shows:


There have been six pre-referral discovery requests for material within the Department of



The Defense moved to compel Department of State damage assessments at the Article 32

State with respect to the alleged leaks;
hearing;


The Defense moved to compel damage assessments, forensic results and investigative
files from the Department of State in the Motion to Compel Discovery #1 ;



The Government has knowledge that the Defense has been seeking to depose Mr. Patrick



The Defense' s

Kennedy about for approximately 8 months;

Touhy request on 23 March 2012 , which a copy was provided to the Court

and Government counsel, referenced the Chiefs of Mission, WikiLeaks Working Group,
Mitigation Team and the DoS Reporting to Congress; and


The Defense submitted Mr. Kennedy's declaration (regarding the Chiefs of Mission,
WikiLeaks Working Group, Mitigation Team and the DoS Reporting to Congress) to the
Court on 27 March 2012.

8. One must also not forget the context in which all these battles were fought. The Government
refused to acknowledge what the Department of State had and did not have in terms of
. documentation with respect to the leaks (in fact, the Government referred to the Department of
State damage assessment as "alleged"). For instance, in its Response to the Defense Motion to
Compel #1, it stated "The United States disputes any allegation, including those relating to
whether, when, and to what extent select agencies, departments and organizations reviewed the
compromised information, supported by unofficial public statements." Appellate Exhibit XVI,
p. 1 . The Defense then proffered publicly available documents referring to the Chiefs of
Mission, WikiLeaks Working Group, Mitigation Team and the DoS Reporting to Congress to
prove to the Court that the Department of State, a closely aligned agency, had information that
was clearly relevant to the charged offenses. For the Government to imply that it was not "on
notice" of material within the Department of State because the Defense had not made a request
for this specific material is unbelievable.
9. Toward the end of the Government Response to Supplement, it states in passing, that "[t]he
prosecution agrees with the defense that the prosecution already bore this obligation [to search
the files of Chiefs of Mission, WikiLeaks Working Group, Mitigation Team and the DoS
Reporting to Congress] (i.e., files of closely aligned agencies under Williams."
Government agrees that it was already obligated to search these files under

Id. p. 5. If the
Brady/Williams, why

are there no less than .five references in its submission to the fact that the Defense did not file a
formal discovery request for this particular information? Such a request is entirely superfluous
given the Government's: a) actual knowledge that these documents exist, and; b) the
1
Government' s existing obligations under Brady to search these documents.

1

The Government states that the "Supplement itself confirms the defense's ultimate objective in questioning the

DoS witness where the defense proffers that it will ask the witness 'in what form' any documents are in; namely, to
later formulate discovery requests." Government Response to Supplement, p. l. The Government's position makes
no sense. The Defense has already subm itted no less than nine discovery requests (including motions to co mpel) for

8

21541

10. The Defense?s latest discovery request for Brady ?om the ?les of Chiefs of Mission,
WikiLeaks Working Group, Mitigation Team and the Reporting to Congress did not trigger
the Govemment?s Braafv obligation. The obligation already existed once it had knowledge
(constructive or actual) that such ?les existed within the Department of State. At the very latest,
the Govemment?s Brady obligation to search through these files in March 20] 1,
when Ambassador Kennedy made his public declaration? Since then, l5 months have elapsed
and the Government has not yet received, much yet reviewed, these files. See Government
Response to Supplement, p. 2 (?the prosecution intends to review all documents for
Brady.. p. 3 (?the is cun'ently working to provide all responsive ?les, including any
information from the groups listed above?). The fact that the Department of State ?chose to
prioritize the production of the damage assessment? is irrelevant. See Government Response to
Supplement, p. 3. The Department of State does not bear Bran)? obligations, the Government
does. While the Department of State is a large organization and obtaining Braa?z and other
discoverable material may be ?challenging [and] time-consuming,? there is no excuse and can
be no excuse for letting over two years go by since placing PFC Manning in pre-trial
con?nement without reviewing Department of State documents for Brady. Government
Response to Supplement, p. 5.

ll. There is no reason why production and review ofChiefs ofMission, WikiLeaks Working
Group, Mitigation Team and the Reporting to Congress could not have been accomplished
simultaneously with the production of the Department of State damage assessment (though the
Defense submits that such a review and production should already have occurred, at the latest, in
the March 201] timeframe when Ambassador Kennedy made his statements). In other words,
the production of the Department of State damage assessment and the review/production of other
Department of State files (including, but not limited to, those four referenced files) are not
mutually exclusive.

12. As if tojustify its failure to review Department of State files for Brady at this late date, the
Government points out that ?as of I8 May 2012, the damage assessment has been available
for defense counsel to inspect pursuant to the prosecution?s ?ling.? Government Response to
Supplement, p. 5. The Govemment?s statement is only a half-truth. The Government has
imposed arbitrary limitations upon the Defense?s access to the Department of State damage
assessment. In particular, the Defense must give the Government at least four duty days? notice
in order to access the damage assessment. This would mean that the earliest the Defense could
have accessed the damage assessment was 25 May 2012 (one week ago). The Government also
imposed another limitation on the Defense?s access: Defense counsel could only access the
document in the presence of its security experts. Thus, access involves coordinating with the
Government and its own experts, who have many other responsibilities. During the telephonic
802 conference, the Defense raised the issue of the restrictions placed upon access. In particular,
the Defense stated that it was difficult to coordinate with Defense experts to be present because

infonnation from the Department of State. If the Government provides this information, as it is required to do, there
is no need for ?later discovery requests.?

2 The Defense submits that the obligation may have actually much earlier. By its own admission, the
Government and the Department of State are closely aligned and share a close working relationship. lt has a duty to
inform itself, therefore, of tiles within the Department of State which might contain Brady material. lf the
Mitigation Team, Working Group, etc. were assembled (as the Defense suspects) in the immediate aftennath of the
leaks, the Government bore an obligation to search these ?les earlier than March 201 I.

9

21542

the experts? command was tasking them to do duties that took them out of the D.C. area. The
Defense followed-up with MAJ Fein on this issue, providing him with a Memo for the
Convening Authority which confirmed for the experts (and their command) that their ?rst
priority was this case. On I June 2010, the Government rather than making it easier for the
Defense to access the Department of State damage assessment, made it harder. The Government
is now stating that the Defense must submit a fonnal request through the convening authority to
re-approve the appointment of the Defense experts. The convening authority would then have
the ability to either approve or disapprove the necessity for these experts. See Attachment G.

I3. The bottom line is that the Government is closely aligned with the Department of State. it
had knowledge at the very latest, in March 201 I that the Department of State had created the
Chiefs of Mission review, WikiLeaks Working Group, Mitigation Team and that the Department
of State had reported to Congress. It likely knew about these things much earlier. it had a duty
in early 20] I, not in mid-2012, to arrange for a review of these files as part of its Braajz
obligations. Instead, it willfully chose to ignore its Brady obligations and, even worse yet,
obfuscate for the Defense and the Court what materials the Department of State had and didn?t
have. The Government?s utter lack of diligence with respect to the Department of State is
emblematic of its ?diligent Brady search? in other closely aligned agencies.

B. Additional acts In Support of the Defense?s Request for a Due Diligence Statement

l4. The Government raises new issues in its latest submission that further bolster the Defense?s
argument that the Court should order a due diligence accounting.

l5. First, the Government states that ?the prosecution continues to search DIA, DISA,
CENTCOM, and SOUTHCOM files for Brady and RCM 70l(a)(6) material.? Government
Response to Supplement, p. 5. Again, this is a startling admission. These are the military?s own
files. Why hasn?t the Government already searched its own files? Over two years have elapsed
since the beginning of the case, trial is three months away, and the Government ?continues to
search? its own ?les? Much like the HQDA memo, if the Government has not already
performed a Brady search in respect of files in its own backyard, it cannot be trusted to have
diligently searched the files of other organizations. The Defense believes that there are only two
possible explanations for this utter lack of diligence: a) the Government has not yet, a?er two
years, searched its own files for some inexplicable reason; b) the Government already searched
its own ?les using the wrong Braajz standard; now that the Court clari?ed for the Government
what is Brady obligations entail, the Government is going back and secretly doing the ?re-
review? that the Defense said was necessary.3 Either way, the Government's conduct is
inexcusable.

16. Second, the Government casually mentions that it ?discovered that the FBI conducted an
impact statement, outside of the FBI law enforcement file, for which the prosecution intends to
?le an ex parte motion under MRE Government Response to Supplement, p. 4.
What does the Government mean that it ?discovered? that the FBI conducted an impact
statement? The Government and the FBI engaged in ajoint investigation of the accused and are

3 See Appellate Exh?ait
10

21543

closely aligned. The Defense has repeatedly asked for documents from the moreover, the
Government has a duty to turn over Brady even in the absence of a Defense Request. See
Government Response to Supplement, p. 6 (?The prosecution shall, and will, disclose Brady
even in the absence of a defense

l7. On 20 January 20l2, the Defense made the following discovery request: ?Does the
Government possess any report, damage assessment, or recommendation as a result of anyjoint
investigation with the Federal Bureau of lnvestigation (F Bl) or any other governmental agency
concerning the alleged leaks in this case? lf yes, please indicate why these items have not been
provided to the Defense. lf no, please indicate why the Government has failed to secure these
items.? See Attachment to Appellate Exhibit at paragraph On 31 January 2012, the
Government responded: "The United States will not provide the requested information. The
defense has failed to provide any basis for its request. The United States will reconsider this
request when provided with an authority that obligates the United States to provide the requested
information.? Attachment to Appellate Exhibit paragraph

18. Apparently, despite the Defense?s discovery request, the Government did not disclose the
existence of the FBI impact statement in January. When was the impact statement prepared?
Why is the Government only now ?discovering? its existence, as if by happenstance, three
months before trial? Presumably, the impact statement is something that has been in the works
for a while. ln other words, the Bl impact statement did notjust magically appear out of thin
air. Why has the Government not disclosed its existence to the Defense or to the Court? This
latest revelation by the Government shows that the Court and the Defense are left completely in
the dark about relevant documents that exist in closely aligned agencies until the Government
decides, at its convenience, to con?rm or reveal their existence. Further, the Government states
that it intends to produce any Braajz material ?as soon as possible; however, the current case
calendar outlines MRE 505 proceedings to take place a future date.? Government Response to
Supplement, p. 4. The subtext of this statement is that it will be months before the Defense gets
access to the FBl?s impact statement.

19. Third, the Government again is trying to de?ne its way out of conducting, and providing,
Brady discovery. The Government apparently believes that the following request for documents
from the lnteragency Committee Review and the House of Representatives Oversight Committee
is not a ?speci?c? request under Williams: Government Response to Supplement, p. 4.

lnteragency Committee Review. The results of any investigation or review concerning
the alleged leaks in this case by Mr. Russell Travers, National Security Staffs Senior
Advisor for lnformation Access and Security Policy. Mr. Travers was tasked to lead a
comprehensive effort to review the alleged leaks in this case. See Defense Discovery
Request Dated 8 December 2010 and l3 October 201 1 within Appellate Exhibit

House of Representatives Oversight Committee. The results of any inquiry and
testimony taken by House of Representative Oversight Committee led by Representative
Darrell lssa. The committee considered the alleged leaks in this case, the actions of
Attorney General Erie Holder, and the investigation of PFC Bradley Manning. See
Defense Discovery Request Dated 10 January 201 I and 13 October 201 1 within
Appellate Exhibit

ll

21544

Government Response to Supplement, p. 4. Apparently, however, the following request for
Brady from the President?s lntelligence Advisory Board is a speci?c enough request:

President?s Intelligence Advisory Boa rd. Any report or recommendation concerning
the alleged leaks in this case by Chairman Chuck Hagel or any other member of the
lntelligence Advisory Board. See Defense Discovery Request Dated 13 October 20]
within Appellate Exhibit

20. The Defense cannot, under any stretch of the imagination, understand how the lnteragency
Committee Review and the House of Representatives Oversight Committee request is not
suf?ciently speci?c, but the President?s lntelligence Advisory Board is. The Government
provides no authority to suggest that this is not a speci?c request under Williams. ln United
States v. rigueros, 69 MJ. 604 (Army Ct.Crim.App. 2010), the court found the following to be
a speci?c request under Williams ?copies of any and all records maintained by any health care
provider, to include mental health care for any sessions with either Mrs. or Mrs.
lf the Trigueros request for ?any and all records maintained by any health care
provider [in respect of named individuals]" is a sufficiently speci?c request, then so too are
requests for ?The results of any investigation or review concerning the alleged leaks in this case
by Mr. Russell Travers? or ?The results of any inquiry and testimony taken by House of
Representative Oversight Committee led by Representative Darrell lssa.?

The Government also states that the ?defense has not provided a suf?cient request for why
Brady material exists in these alleged records.? Government Response to Supplement, p. 5.
There are two problems with this statement. First, the Government is back to playing hide-the-
ball by referring to these as ?alleged records.? Id. lt already tried this with the ?alleged damage
assessments? and that did not work. Second (and more importantly), the Defense does not need
to make a proffer, above and beyond the speci?c request, as to why Braajz material might exist in
these records. lt is obvious that investigations into the harm occasioned by the leaks might
reveal that the leaks did no damage i.e. classic Brady material. So, it appears that we are back
to square one: the Government still does not understand Brady.

22. Fourth, the Government continues to maintain that it is not closely aligned with ONCIX,
despite the Court?s ruling to the contrary. Government Response to Supplement, p. 5. The
position is troubling, given the Brady/Williams requirement to search the ?les of closely aligned
agencies. If the Government believes that ONCIX is not closely aligned, it must follow that it
believes it does not need to conduct a Brady search of ?les. See id. at p. 5 (?The
prosecution is not closely aligned under Williams with ONCIX .. ln fact, the Government
states ?the prosecution has not been given access to review all records.? 1d., p. 5. Given
this statement, the Defense has serious doubts as to whether the Government is complying with
its Brady obligations with respect to ONCIX.

23. i?h, and probably the most troubling, is the Govemment?s hour revelation that ONCIX
has in fact produced a damage assessment, despite the Government?s misrepresentations to the
contrary. See also Defense Response to Government Notice to Court of ONCIX Damage
Assessment. The Government represented to the Court on 21 March 2012 that has not
produced any interim or ?nal damage assessment in this matter.? See Appellate Exhibit
As such, the Court did not address in its 23 March 2012 ruling, other than to say that the
Government needed to search ONCIX for investigative ?les, forensic results, and Brady.

I2

21545

24. On 24 May, 2012, MAJ Fein wrote to the Genaal Counsel at stating, ?On March
23, 2012, the Court ruled that the Department of State?s draft damage assessment was
discoverable, and did not rule on dra?.? See Prosecution Notice to Court of
ldenti?cation of Damage Assessment, attached Letter from ein to Tricia Wellman,
May 24, 2012 (emphasis added). The reason that the Court ?did not rule on dra?? was
because the Government represented to the Court that did not possess a damage
assessment, in either completed or draft fonn. MAJ Fein makes it look like this is simply an
error on the Court ?s part, stating ?the ?prosecution must notify the Court of the apparently
inconsistency in the Coun?s order.? To the extent that there is an ?inconsistency? it is one which
the Government created when it misrepresented to the Court on 21 March 20l2 that ONCIX not
have ?any interim or final damage in this matter.?

25. The Government waited over two months to tell the Defense and the Court about the
ONCIX interim damage assessment. Undoubtedly, it willjustify its failure to inform the Court
of the interim damage assessment by stating that it was filing a motion for reconsideration of the
23 March 2012 ruling with respect to the Department of State damage assessment. The
Government cannot use its own baseless motions for reconsideration - citing one case that is not
on point from I963 to justify its failure to correct its misrepresentation to the Court. The trial
counsel owes a duty of candor to the Court. See Rule 3.3 AR 27-26. By holding on to this
information for two months, the Government has breached it duty of candor to the Court,
resulting in a further delay of discovery for the Defense.

D. Suspending the Proceedings Pending a Due Diligence Statement is Necessary to
Preserve PFC Manning?s Right to a Fair Trial

26. As indicated above, the Defense modi?es its request for relief in that it requests that this
Court temporarily suspend the proceedings while the Government is preparing a due diligence
statement. The Defense would agree that this time period (which the Defense submits should be
no longer than a few weeks) would not be attributable to the Defense or the Government for
speedy trial purposes.

27. To recap, the Defense is still waiting for Braafy material and material discoverable under
R.CM. 70l(a)(2) from at least the following organizations:

a) lnteragency Committee Review

b) President?s lntelligence Advisory Board

c) House of Representatives Oversight Committee
d) Chiefs ofMission review

e) WikiLeaks Working Group

f) ?Mitigation Team? created by the Department of State
g) Department of State?s reporting to Congress

h) Other DOS files

i)

j) DISA

k) CENT COM and SOUTHCOM

l) April 2012 HQDA Memo

13

21546

m) FBI generally; FBI Impact Statement
n) DSS
o) DOJ
p) Government Agency
q) ODNI
r)

ONCIX damage assessment; ONCIX generally

s)

63 agencies and other organizations the Government has claimed to have contacted

28. The volume of unproduced discovery is staggering given that the trial is scheduled for
September, a mere 3 months from now. If the proceedings are not temporarily suspended (i.e.
the trial schedule proceeds as planned despite the Defense not receiving discovery) the following
motions will be impacted:
1.

Witness Lists (22 June 2012)- how can the Defense prepare a witness list when it has
not seen discovery from over 20 different sources? [Note: the Witness List in turn
impacts the Motion to Compel Experts and Witnesses

2.

( I I July 2012)]

M.R.E. 505(h)(l ) Notice (22 June 2012)- how can the Defense give M.R.E. 505 notice
when it still hasn't received all the discovery from Motion to Compel #1?

3.

Motion to Compel Discovery #3 (22 June 2012)- if the Defense is still waiting for
discovery from the Motion to Compel Discovery #1 and #2, how can the Defense file a
motion to Compel Discovery #3?

4. Pre-Authenticate andPre-Admit Evidence (22 June 2012)- unlike the Government, the
Defense will not have the discovery to pre-admit or pre-authenticate by 22 June 2012.
5.

Defense Notice ofPlea and Forum (11 July 2012)- the discovery that the Defense
received will enable the Defense to make informed decisions about plea and forum.

6.

Speedy Trial/Article 10 (27 July 2012)- the Defense believes that is should not be forced
to file a speedy trial motion until all discovery is produced; since diligence is part and
parcel of a speedy trial motion, that motion cannot be resolved until the underlying
discovery process is complete.

29. The Defense maintains that the Governme11t's failures with respect to discovery have
already impactedPFC Manning's right to a fair trial. The purpose of discovery is to enable the
Defense to prepare its case. When the Defense is receiving discovery one month before trial
(e.g. the "newly-discovered" ONCIX damage assessment; the FBI impact statement), there is no
way that the Defense can adequately prepare its case. If the Government requires over two years
4
Brady obligations (See Government Response to Supplement, p. 5),

to fulfill its "challenging"

then surely the Defense requires some period of time longer than one month to integrate all the
voluminous discovery into the case. The Defense submits that it should have, at a minimum, two
to three months after all discovery is complete to prepare its case. The Government should not
be able to circumvent its discovery obligations for two years, then dump discovery on the
Defense last-minute, and expect that there will be a fair battle. Indeed, the Defense believes that
this was the intention of the Government- to defeat its adversary by adopting untenable
5
litigation positions designed to frustrate discovery.

4

What is more "challenging" than a Brady search is to litigate a case without the benefit of Brady (and other)

discovery.
5

For instance:

14

21547

30. As the Government is apt to point out, this is a complicated case involving a great deal of
information. How can the Defense be expected, after it took the Government two years to collect
this infonnation, to read, process and integrate this information into its case (including
identifying witnesses; developing questions for witnesses; determining how this information can
be used in cross-examination; determining how this information can be used for impeachment
purposes; determining which of elements of the 22 speci?cations can be attacked using this
information, etc.).6 To allow the Government over two years to perfect its case and to allow the
Defense a matter of weeks is simply unfair. It is setting the accused up to be denied his right to a
fair trial, and is setting Defense counsel up to lneffective Assistance of Counsel claims.

3 I . Accordingly, the Defense believes that if we continue with the current trial schedule at this
point, we will have a rush to failure. Things are slipping through the cracks; the Government is
just now ?discovering? new damage assessments; there is still a large volume of unproduced
discovery. Accordingly, the Defense requests that this Court suspend the proceedings for two to
three weeks, order the Government to account for its Brady obligations, and then resume the
proceedings once that accounting is complete.

Respectfully submitted,

.

DAVID EDWARD COOMBS

Civilian Defense Counsel

a) Maintaining that Brady did not apply to punishment;

b) Maintaining that R.C.M. 70l did not apply to classi?ed discovery;

c) Disputing the relevance of facially items (such as damage assessments);

d) Using the R.C.M. 703 standard, instead of the appropriate R.C.M. 701 standard;

e) Referring to damage assessments as ?alleged? to frustrate the Defense?s access to them;

I) Maintaining that the Department of State and ONCIX had not ?completed" a damage assessment;

g) Maintaining that it was ?unaware? of forensic results and investigative tiles;

h) Resisting production of the Department of State damage assessment under the ?authority? of Giles (which
provided no legal support for its position);

i) Despite understanding Defense discovery requests, de?ning ?damage assessments? and ?investigations" to
avoid producing discovery. A?er instructing the Defense that it should not use the term ?damage
assessments? to refer to informal reviews of harm (instead, to use ?Working papers?), to now refer to
working papers as ?damage assessments?;

j) lnsisting on a threshold of speci?city for Brady requests that does not exist or some additional showing of
relevance.

6 The Court should bear in mind that much of this discovery will be classi?ed, necessitating additional safeguards.

l5

ATTACHMENT A

21549

David Coombs

From: Fein, Ashden MAJ USA SJA

Sent: Monday, April 16, 2012 5:31 PM

To: David Coombs

cc: Morrow m.:ooean.cPT
USA Overgaard, Angel M. CPT USA Whyte,
Jeffrey H. CPT USA VonElten, Alexander S. 1LT USA JFHQ-NCR
Ford, Arthur D. CW2 USA SJA

Subject: RE: Hard Drives (EnCase Forensic Images)

David,

As for the forensic drives, CID will continue examining the drives as per the Court's order and we will provide the results
by 20 April 2012. However, in an effort to save time and resources for all parties involved (defense, government
computer experts, government classification experts), we can produce the forensic images of the drives, as per the
defense's original request. The defense will be able to conduct any analysis/procedure it wishes with complete copies of
the drives.

We can wait until after 20 April 2012, however it will take more time after that to get those drives fully reviewed for
security classification purposes, than merely the filenames. If the defense ultimately wants the forensic images and
access to the files (as per the original motion and the renewed

motion) sooner than later, the United States recommends the defense support this way forward, so we can divert CID
resources from continuing to search for these programs and having to dedicate security experts to the review of the
lists, and just have all of them focus on the actual files. We are confident we will be able to have them reviewed and
approved, absent some unusual issue, by 18 May 2012.

Following this email, I will send you responses to your questions from Friday. My previous email was intended to simply
explain that I will provide you answers by C08 today, for your questions you asked on Friday.

v/r
Ashden

Message--?--

From: David Coombs

Sent: Monday, April 16, 2012 5:02 PM

To: Fein, Ashden MAJ SJA

Morrow Ill, JoDean, CPT USA
Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA VonElten,
Alexander S. 1LT USA Ford, Arthur D. CW2 USA SJA

Subject: RE: Hard Drives (EnCase Forensic Images)

Ashden,

I guess I don't understand what you are saying. If you are doing the searches for unauthorized software, per the Court's
order, you should have the results NLT 20 April. If you are also doing a search utilizing the method the Defense experts

suggested, you should have those results NLT 20 April. So I would like the results of either search on or before 20 April.

At that point, we can discuss whether you would also provide an EnCase copy to the Defense.

Also, why can't you respond to any of the Defense's questions until Friday?

1



21550
I would like to have the answers to tin: questions sooner rather than later, especiauy with respect to the following:

1) With regards to the unclassified damage assessments provided in discovery, when did the Government receive these
documents?

2) Are there any more unclassified damages assessments in the Government's possession?

3) Who is the Government bringing from the Department of State for the motions hearing? Can you provide this
person's contact information?

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-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

Sent: Monday, April 16, 2012 4:49 PM

To: David Coombs

Morrow JoDean, CPT USA
Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA VonElten,
Alexander S. 1LT USA Ford, Arthur D. CW2 USA SJA

Subject: RE: Hard Drives (EnCase Forensic Images)

Importance: High

David,

Thank you. We will coordinate the forensic experts travel; however we are confused by your email. In the defense
renewal of the motion to compel discovery, you ask the Court to "order the Government to conduct searches on the
relevant After the initial review of the drives and understanding how much information will be required
to be reviewed for classification, the United States is willing to perform exactly what the defense is requesting, with the
addition of providing forensic images of the drives, as per the original request. It would be wholly less efficient for the
defense and the United States to continue having our forensic experts conduct a cursory review of the drives and litigate
this issue, when the government is willing to provide the defense the information you originally requested (assuming we
obtain the proper approvals for any classified information). Please provide clarification.

We will provide you answers to your questions on Friday and updates on other issues by COB today.

2



21551

v/r
Ashden



From: David Coombs

Sent: Monday, April 16, 2012 4:36 PM

To: Fein, Ashden USA SJA

Morrow JoDean, CPT USA
Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA VonElten,
Alexander S. 1LT USA Ford, Arthur D. CW2 USA SJA

Subject: RE: Hard Drives (EnCase Forensic Images)

Ashden,

I would like for you to run the search per the court's order. Once we have the results of those searches, then I will give
you my position on the option you propose. Additionally, I still need my forensic expert to travel this week to conduct
needed forensic work, and I would like for him to be present for the motions hearing. Lastly, please provide answers to
the other questions that I sent to you last Friday.

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



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

Sent: Monday, April 16, 2012 3:53 PM

To: David Coombs

Morrow Ill, JoDean, CPT USA
Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA VonElten,
Alexander S. 1LT USA Ford, Arthur D. CW2 USA SJA

Subject: Hard Drives (Encase Forensic Images)

Importance: High

David,





21552

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.

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 identified 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 classification.

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 classified information and the
prosecution to obtain needed approvals. Now knowing that only five drives are at issue (the fifth 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.
Additionally, please let us know whether you still require your forensic experts to travel this week or next week for the
motions hearing.

v/
Ashden



David Coombs


From: Fein, Ashden MAJ USA SJA
Sent: Saturday, April 21, 2012 5:39 PM
To: David Coombs; Overgaard, Angel M. CPT USA Morrow

JoDean, CPT USA Whyte, Jeffrey H. CPT USA
VonE|ten, Alexander S. 1LT USA Ford, Arthur D. CW2 USA
SJA

Cc: Tooman, JoshuaJ CPT USARMY Santiago, Melissa CW2 USARMY
ts@cyberagentsinc.com
Subject: RE: Computers
David,

We will start working on obtaining approvals to turn the drives over.
Additionally, we will ensure that the modified contract is sent out to the defense expert and CPT Tooman as the
government representative.

v/
Ashden



From: David Coombs

Sent: Saturday, April 21, 2012 11:09 AM

To: Fein, Ashden MAJ USA Overgaard, Angel M. CPT USA Morrow Ill, JoDean,
CPT USA DW Whyte, Jeffrey H. CPT USA DW VonE|ten, Alexander S. 1LT USA JFHQ-
Ford, John CIV (US)

Cc: ?Tooman, Joshua CPT USARMY Santiago, Melissa CW2 USARMY

Subject: Computers

Ashden,

Please start the process of providing EnCase copies of the relevant hard drives to the Defense. Additionally, our experts
did not receive a copy of the latest contract.

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
coom





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

21555

David Coombs

From: Fein, Ashden MAJ USA SJA
Sent: Tuesday, May 29, 2012 10:05 AM
To: David Coombs; Overgaard, Angel M. CPT USA Morrow

JoDean, CPT USA Whyte, Jeffrey H. CPT USA
von Elten, Alexander S. CPT USA Hurley, Thomas MAJ
USARMY Tooman, Joshua CPT USARMY Santiago, Melissa CW2 USARMY
Ford, Arthur D. CW2 USA SJA

Subject: RE: Reciprocal Discovery

David,

We expect to have approval to turn the drives over by the end of this week.
we have copies ready to deliver to Fort Myer for your experts.

v/r
Ashden

-?--Original

From: David Coombs

Sent: Tuesday, May 29, 2012 9:59 AM

To: Fein, Ashden USA Overgaard, Angel M. CPT USA Morrow Ill, JoDean,
CPT USA Whyte, Jeffrey H. CPT USA von Elten, Alexander S. CPT USA JFHQ-
Hurley, Thomas MAJ USARMY ?Tooman, Joshua CPT USARMY ?Santiago, Melissa CW2
USARMY Ford, Arthur D. CW2 USA SJA

Subject: RE: Reciprocal Discovery

Ashden,

Thank you. Also, I just wanted to follow-up on the 4 computer hard drives.
in a previous email, you indicated that the Defense would likely have these by 18 May. That was almost two weeks ago.
Do you have an update on when the Defense will get access to the hard drive?

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



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





ATTACHMENT


1

21557

David Coombs

From: David Coombs

Sent: Wednesday, March 28, 2012 9:14 AM

To: ?Lind, Denise COL USARMY

Cc: ?Matthew kemkes'; 'Bouchard, Paul CPT USARMY ?Santiago, Melissa CW2

USARMY ?Williams, Patricia CN ?Morrow Ill, JoDean, CPT

USA 'Overgaard, Angel M. CPT USA

'Whyte, Jeffrey H. CPT USA ?Ford, Arthur D. CW2 USA JFHQ-

'Prather, Jay CIV 'Wi|liams, Patricia CIV
I

Subject: RE: Government Clarification Request Re: Dept. of State
Attachments: TestimonyKennedy201l0310.pdf
Ma'am,

My previous attempt to send this email may not have gotten through due to the word WL being in the body of the
message. I have now made the needed changes to the my original message the starts below:

With regards to the Department of State damage assessments, the Defense requests that the Court review the
statement by Ambassador Kennedy before the Senate Committee on Homeland Security and Governmental
Affairs. Ambassador Kennedy clearly states that the DOS has done damage assessments. Specifically, within his
testimony, Ambassador Kennedy notes the following:

1) When material was leaked in July 2010, the DOS worked with to identify any alleged State Department
material that was in WL's possession;

2) The Department of State immediately asked Chiefs of Mission (Ambassador) at affected posts to review any
purported State material in the release and provide an assessment, as well as a summary of the overall effect the WL
release could have on relations with the host country;

3) "On November 28, 2010, the State Department took the following actions: 1) Established a 24/7 WL Working Group
composed of senior officials from throughout the Department, notably our regional bureaus; 2) Created a group to
review potential risks to individuals; and 3) Suspended access to

4) The Department of State also created a Mitigation Team to address the policy, legal, security, counterintelligence,
and information assurance issues presented by the release of these documents

5) The Department of State convened two separate briefings for members of both the House of Representatives and
the Senate within days (December 2, 2010) of the first disclosure by WL and appeared twice before the House
Permanent Select Committee on Intelligence (December 7 and 9, 2010).

It is important to note that following the briefings referenced in paragraph 5, officials who attended those briefings were
quoted by Reuters as stating that "the administration felt compelled to say publicly that the revelations had seriously
damaged American interests in order to bolster legal efforts to shut down the WL websites and bring charges against the
leakers.? The same congressional official stated "we were told the impact of the WL revelations was embarrassing but
not damaging."



21558
The issue is not whether there is a "co.np|eted? damage assessment, but whethe. tne Department of State has done

what Ambassador Kennedy testified to at the Senate hearing. If so, all this material should be produced in accordance
with paragraphs 4-6 of the Court's Order.

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: Fein, Ashden MAJ USA SJ

Sent: Monday, March 26, 2012 9:31 PM

To: Lind, Denise COL USARMY (US)

Cc: David Coombs; Matthew kemkes; Bouchard, Paul CPT USARMY Santiago, Melissa CW2 USARMY
Williams, Patricia CIV Morrow Ill, loDean, CPT USA Overgaard, Angel M. CPT
USA Whyte, Jeffrey H. CPT USA MDW Ford, Arthur D. CW2 USA
Prather, Jay CIV Williams, Patricia CIV SJA

Subject: RE: Rulings: Motion to Compel Discovery; Amicus Curiae Filings (UNCLASSIFIED)

Ma'am,

In reference to the motion to compel discovery, the prosecution is confused by the Court's analysis in paragraph 2 on
Page 10 and the ultimate order based on that analysis. As stated on/in the record, the Department of State has not
completed a damage assessment. Furthermore, although the Department has monitored and continues to monitor the
impact of the release of the cables discussed in Under Secretary's Kennedy's declaration in this case, the Department
has not finalized an assessment of the damage to date, or over a shorter interim period of time. The Department only
has a working draft that is not complete, and based on the document being a working draft, the Department has not
authorized its release to any US Government agency, including the prosecution. The Court's analysis seems to group the
completed assessment by the ClA's WTF with the Department's working draft. Based on no assessment or interim
report existing, the prosecution is not clear with what the Court is ordering us to produce to the defense or for an in
camera review.

Finally, to clarify any misunderstanding resulting from paragraph 8 on page 11, the prosecution is (was) aware of
investigative files maintained by the FBI and DOS. Prior to referral, the prosecution produced the Diplomatic Security
Services (investigative organization of DOS) documents, and immediately after the protective order was ordered the
prosecution produced the approved documents from the classified FBI file. There are additional documents the
prosecution is seeking approval to produce from the FBI and we have been working to obtain those approvals since

2

21559
referral. The prosecution is unclear vmether the Court intended to create a broad uiscovery order for material outside

military authorities (encompassing material we have already
produced) or a specific order for that material.

Thank you.


MAJ Fein



From: Lind, Denise COL USARMY (us)

Sent: Friday, March 23, 2012 6:30 PM

To: David Coombs

Cc: Matthew kemkes; Bouchard, Paul CPT USARMY Santiago, Melissa 5 CW2 USARMY Williams, Patricia CIV
Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA
Whyte, Jeffrey H. CPT USA Ford, Arthur D. CW2 USA

Prather, Jay CIV Williams, Patricia Fein, Ashden MAJ USA

SJA

Subject: Rulings: Motion to Compel Discovery; Amicus Curiae Filings

(UNCLASSIFIED)

Classification:
Caveats: NONE

Counsel,

Attached are rulings re: Motion to Compel Discovery; Amicus Curiae Filings.

Ms. Williams please add as next AE in line.

Denise R. Lind

COL, JA
Chief Judge, 1st Judicial Circuit

Classification: UNCLASSIFIED
Caveats: NONE





21560

David Coombs

From: David Coombs
Sent: Wednesday, March 28, 2012 8:59 AM

To:

Subject: FW: Government Clarification Request Re: Dept. of State
Attachments: TestimonyKennedy20110310.pdf

Ashden,

Below is the email, along with attachment, that I sent yesterday.

Best,
David

David E. Coombs, Esq.

Law Of?ce 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 con?dential attomey-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: David Coombs

Sent: Tuesday, March 27, 2012 9:28 PM

To: ?Lind, Denise COL USARMY

Cc: ?Matthew kemkes?; 'Bouchard, Paul CPT USARMY ?Santiago, Melissa CW2 USARMY ?Williams, Patricia
CIV ?Morrow JoDean, CPT USA 'Overgaard, Angel M. CPT USA JFHQ-
'Whyte, Jeffrey H. CPT USA ?Ford, Arthur D. CW2 USA
'Prather, Jay CIV ?Williams, Patricia CIV

Subject: Government Clari?cation Request Re: Dept. of State

Ma'am,

with regards to the Department of State damage assessments, the Defense requests that the Court review the
statement by Ambassador Kennedy before the Senate Committee on Homeland Security and Governmental
Affairs. Ambassador Kennedy clearly states that the DOS has done damage assessments. Specifically, within his
testimony, Ambassador Kennedy notes the following:

1) When material was leaked in July 2010, the DOS worked with to identify any alleged State Department
material that was in WikiLeaks? possession;



21561
2) The Department of State immedimeiy asked Chiefs of Mission (Ambassador) a. affected posts to review any

purported State material in the release and provide an assessment, as well as a summary of the overall effect the
WikiLeaks release could have on relations with the host country;

3) "On November 28, 2010, the State Department took the following actions: 1) Established a 24/7 WikiLeaks working
Group composed of senior officials from throughout the Department, notably our regional bureaus; 2) Created a group
to review potential risks to individuals; and 3) Suspended access to

4) The Department of State also created a Mitigation Team to address the policy, legal, security, counterintelligence,
and information assurance issues presented by the release of these documents

5) The Department of State convened two separate briefings for members of both the House of Representatives and
the Senate within days (December 2, 2010) ofthe first disclosure by WikiLeaks and appeared twice before the House
Permanent Select Committee on intelligence (December 7 and 9, 2010).

It is important to note that following the briefings referenced in paragraph 5, officials who attended those briefings were
quoted by Reuters as stating that "the administration felt compelled to say publicly that the revelations had seriously
damaged American interests in order to bolster legal efforts to shut down the WikiLeaks websites and bring charges
against the leakers." The same congressional official stated "we were told the impact of the WikiLeaks revelations was
embarrassing but not damaging.?

The issue is not whether there is a "completed" damage assessment, but whether the Department of State has done
what Ambassador Kennedy testified to at the Senate hearing. If so, all this material should be either produced in
accordance with paragraphs 4-6 of the Court's Order.

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: Fein, Ashden MAJ USA SJA

Sent: Monday, March 26, 2012 9:31 PM

To: Lind, Denise COL USARMY (US)

Cc: David Coombs; Matthew kemkes; Bouchard, Paul CPT USARMY Santiago, Melissa 5 CW2 USARMY
Williams, Patricia Morrow Ill, JoDean, CPT USA Overgaard, Angel M. CPT
USA Whyte, Jeffrey H. CPT USA Ford, Arthur D. CW2 USA

2



21562
Prather, Jay CIV Williams, . atricia CIV SJA

Subject: RE: Rulings: Motion to Compel Discovery; Amicus Curiae Filings (UNCLASSIFIED)
Ma'am,

In reference to the motion to compel discovery, the prosecution is confused by the Court's analysis in paragraph 2 on
Page 10 and the ultimate order based on that analysis. As stated on/in the record, the Department of State has not
completed a damage assessment. Furthermore, although the Department has monitored and continues to monitor the
impact of the release of the cables discussed in Under Secretary's Kennedy's declaration in this case, the Department
has not finalized an assessment of the damage to date, or over a shorter interim period of time. The Department only
has a working draft that is not complete, and based on the document being a working draft, the Department has not
authorized its release to any US Government agency, including the prosecution. The Court's analysis seems to group the
completed assessment by the CIA's WTF with the Department's working draft. Based on no assessment or interim
report existing, the prosecution is not clear with what the Court is ordering us to produce to the defense or for an in
camera review.

Finally, to clarify any misunderstanding resulting from paragraph 8 on page 11, the prosecution is (was) aware of
investigative files maintained by the FBI and DOS. Prior to referral, the prosecution produced the Diplomatic Security
Services (investigative organization of DOS) documents, and immediately after the protective order was ordered the
prosecution produced the approved documents from the classified FBI file. There are additional documents the
prosecution is seeking approval to produce from the FBI and we have been working to obtain those approvals since
referral. The prosecution is unclear whether the Court intended to create a broad discovery order for material outside
military authorities (encompassing material we have already

produced) or a specific order for that material.

Thank you.

V/r
MAJ Fein



From: Lind, Denise COL USARMY (us)

Sent: Friday, March 23, 2012 6:30 PM

To: David Coombs

Cc: Matthew kemkes; Bouchard, Paul CPT USARMY Santiago, Melissa 5 CW2 USARMY Williams, Patricia CIV
Morrow Ill, JoDean, CPT USA Overgaard, Angel M. CPT USA
Whyte, Jeffrey H. CPT USA Ford, Arthur D. CW2 USA
Prather, Jay CIV Williams, Patricia CIV Fein, Ashden MAJ USA
SJA

Subject: Rulings: Motion to Compel Discovery; Amicus Curiae Filings

(UNCLASSIFIED)

Classification: UNCLASSIFIED
Caveats: NONE

Counsel,

Attached are rulings re: Motion to Compel Discovery; Amicus Curiae Filings.

Ms. Williams please add as next AE in line.



Denise R. Lind
COL, JA
Chiefludge, 1st Judicial Circuit

Classification: UNCLASSIFIED
Caveats: NONE

21563

21564
I

ATTACHMENT

21565

Evid Coombs

From: David Coombs

Sent: Friday, March 23, 2012 6:12 PM

To: ?Lind, Denise COL USARMY

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 'Fein, Ashden MAJ USARMY

Subject: Touhy Request
Attachments: Touhy Request - Kennedy.pdf
Ma'am,

The Defense has submitted the attached Touhy request for Ambassador Kennedy. The Government has assured the
Defense that it will provide timely and meaningful access to the potential witness.

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 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

The Law Office of

David E. Coombs

The Executive Office

Office of the Legal Adviser, Room 5519
United States Department of State

2201 Street,

Washington, DC 20520-6310

March 23, 2012

Re: Touhy Request for Ambassador Patrick Kennedy

To Whom it May Concern:

This letter serves as a Touhy Request of the United States (U.S.) Department of State
pursuant 22 Code of Federal Regulations (C.F.R.) Part l72, requesting the appearance and
testimony of employee, Ambassador Patrick Kennedy, Under Secretary for Management,
US. Department of State. The defense, on behalf of Private First Class Bradley Manning,
requests that Ambassador Kennedy be made available for a pretrial interview on April 27,
2012, or as required thereafter until the completion of his interview.

Background

Arnbassador Kennedy provided a 51?--page declaration in the matter of United States
v. Private First Class Bradley Mannigg. The declaration documented Ambassador
Kennedy?s belief regarding the expected damage to national security from the disclosure of
certain identi?ed information.

7

Ambassador Kenned Re uested 'l'est1'mony



Ambassador Kennedy is the Department of State employee who has the required
knowledge and who can testify about the following topics:

(1) The Net?Centric Diplomacy (NCD) database and the creation of Distribution


(2) Diplomatic reporting procedures and the nature of SIPDIS cables;

(3) The results of Chiefs of Mission review of the released cables at affected posts
discussing their initial assessment, as well as their opinion regarding the overall effect that
the W/ikiLeaks release could have on relations within their host country, if any;

(4) The results of the WikiLeaks \Working Group composed of senior officials throughout
the Department that was created to review potential risks to individuals from the release of

cables by \X?ikiLeaks, if any;

11 SOUTH ANGELL ST. #317 PROVIDENCE, RI 02906 - TEL: (508) 689-4616 - FAX: (508)689-9232

21566

(5) The ?Mitigation Team? created by the Department of State to address the policy, legal,
security, counterintelligence, and information assurance issues presented by the release of the
documents to \lVikiLeal~:s, if any;

(6) The Department?s reporting to Congress concerning any effect caused by the Wikilxaks?
disclosure and the steps undertaken to mitigate them, if any. The Department convened two
separate brie?ngs for members of both the House of Representatives and the Senate in
December of 2010. The Department also appeared twice before the House Permanent
Select Committee on lntelligence on 7 and 9 December 2010;

(7) The removal of the NCD from SIl?RE\iet, and its continued availability on the Joint
Worldwide Intelligence Communications System

(8) The declaration provided by Arnbassador Kennedy on October 30, 2011, including each
diplomatic cable reviewed by Ambassador Kennedy for his declaration.

I request that Ambassador Kennedy appear in person to provide this testimony and
that he work with the defense, if possible, to provide written responses in advance of his
interview to basic background questions. I also ask that Ambassador Kennedy gather any
records that would assist him in providing this testimony. The records may involve
classified information. As such, the exact nature of these records is not described in any
detail. However, the above description of information sought should identify the needed
records in such a way that ?an employee of the Department of State who is familiar with the
subject area of the request can locate the records with a reasonable amount of effort.? 22
C.F.R. 171.10(a) and 171.31.

Ambassador Testimony is Not Available from Another Source

Since Ambassador Kennedy is the Under Secretary ofState for Management and has
over 18 years of experience .in classi?cation management of national security information,
security, and intelligence, he has the knowledge necessary to explain the Departrnenfs
position on the nature of the released documents to and the damage, if any, from
such release.

The information that Ambassador Kennedy can provide through oral and written
testimony is not available from any other source that is admissible at the court?martial. The
Department has not issued any official records that contain the information that the defense
requests from Ambassador Kennedy. Therefore, the defense needs Ambassador I{cnnedy?s
testimony or another official record of the Department in order to have this information
entered into evidence at the court?martial.

This Touhy Request complies with 22 C.F.R.

As explained above, Ambassador Kennedy is the only known source of the
information that the defense needs to present at the court?martial. Although the requested
information would likely implicate Part and the request should
nonetheless be authorized given the involvement of the Department in the case.

11 SOUTH A.NGF.1.1. ST. #317 - PROVIDENCE, RI 02906 - TEL: (508)689-4616 Fax:(508) 689-9282

21567

21568

Ambassador Kennedy?s testimony does not impede the Department?s ability conduct

its official business, create an undue burden, or prejudice any ongoing law enforcement
investigation.

Costs for this Request

This Touhy Request is made on the behalf of "Private First Class Manning. The
defense requests that the Department waive any fee associated with this request given the
fact that the United States is a party to case.

Thank you for your consideration of this request. Please contact me directly to
discuss this request or if you need any additional inforrnation. I look forward to hearing

from you soon.


. AVID 19:. (JOOMBS
Civilian Defense Counsel

Cc: Mr. john Blank
Mr. Jason Mehta
Major Ashden Fein

11 SOUTH ANGELL ST. #317 - PROVIDENCE, R1 D2906 - TEL: (508) 6394616 - FAX: (508) 689-9282



ATTACHMENT

21570

David Coombs

W.
From: Fein, Ashden MAJ USA SJA
Sent: Wednesday, March 28, 2012 9:28 AM
To: Lind, Denise COL MIL USA OTJAG
Cc: David Coombs; Matthew kemkes; Bouchard, Paul CPT USARMY Santiago, Melissa

CW2 USARMY Williams, Patricia CIV Morrow I11, JoDean,

CPT USA Overgaard, Angel M. CPT USA

Whyte, Jeffrey H. CPT USA Ford, Arthur D. CW2 USA JFHQ-

Prather, Jay CIV Williams, Patricia CIV SJA
Subject: RE: Government Clarification Request Re: Dept. of State

Ma'am,

The United States disagrees with the defense's interpretation of this document and its reliance on anonymous
government officials making unofficial statements to the press. We would like the opportunity to discuss at the
telephonic RCM 802 conference today.

v/r
MAJ Fein



From: David Coombs

Sent: Wednesday, March 28, 2012 9:14 AM

To: Lind, Denise COL MIL USA OTJAG

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

CW2 USARMY Williams, Patricia CIV Morrow Ill, JoDean, CPT USA
Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA Ford, Arthur D.
CW2 USA ?Prather, Jay CIV Williams, Patricia CIV Fein, Ashden MAJ
USA SJA

Subject: RE: Government Clarification Request Re: Dept. of State

Ma'am,

My previous attempt to send this email may not have gotten through due to the word WL being in the body of the
message. I have now made the needed changes to the my original message the starts below:

With regards to the Department of State damage assessments, the Defense requests that the Court review the
statement by Ambassador Kennedy before the Senate Committee on Homeland Security and Governmental Affairs.
Ambassador Kennedy clearly states that the DOS has done damage assessments.

Specifically, within his testimony, Ambassador Kennedy notes the following:

1) When material was leaked in July 2010, the DOS worked with to identify any alleged State Department
material that was in WL's possession;

ATTACHMENT

21572

David Coombs

From: Fein, Ashden MAJ USA SJA
Sent: Monday, April 09, 2012 11:35 AM

To: David Coombs

Cc:

Morrow JoDean, CPT USA
Overgaard, Angel M. CPT USA
Whyte, Jeffrey H. CPT USA Ford, Arthur D. CW2 USA JFHQ-
SJA
Subject: Touhy Update

David,

On Friday, we received an update from the Department of State that the Office of the Legal Adviser received your
request and is processing it through the appropriate channels. I will send an update as I receive them. Do you still
intend to submit the other request to the federal agency?

v/r
Ashden

21573

David Coombs




From: David Coombs
Sent: Monday, April 09, 2012 12:24 PM
To: 'Fein, Ashden MAJ USA
Cc:
?Morrow JoDean, CPT USA
?Overgaard, Angel M. CPT USA
?Whyte, Jeffrey H. CPT USA 'Ford, Arthur D. CW2 USA JFHQ-

Subject: RE: Touhy Update
Ashden,

This was Fed-Ex?d two weeks ago. All that the DOS has done is confirmed receipt? I plan to submit additional
Touhy requests.

Best,
David

David E. Coombs, Esq.

Law Office of David E. Coombs

1 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 con?dential attomey-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 information may be
unlawful and is

From: Fein, Ashden MAJ USA SJA .

Sent: Monday, April 09, 2012 11:35 AM
To: David Coombs

Cc:

CPT USA Overgaard, Angel M. CPT USA
Whyte, Jeffrey H. CPT USA Ford, Arthur D. CW2 USA SJA
Subject: Touhy Update






Morrow JoDean,

David,

On Friday, we received an update from the Department of State that the Office of the Legal Adviser received your
request and is processing it through the appropriate channels. I will send an update as I receive them. Do you still
intend to submit the other request to the federal agency?

21574

David Coombs


From: David Coombs

Sent: Friday, April 13, 2012 5:57 PM

To: 'Overgaard, Angel CPT USARMY ?Morrow
I11, JoDean, CPT USA ?Whyte, Jeffrey CPT USARMY

Cc: 'Tooman, Joshua CPT USARMY
Subject: Discovery
Ashden,

I received the unclassi?ed discovery today. Also, the classi?ed discovery was received by NWC. have
arranged to see the facility next week at the NWC.

I have a couple of questions that I would like to have answers to:

1) With regards to the unclassi?ed damage assessments provided in discovery, when did the Government
receive these documents?

2) Are there any more unclassi?ed damages assessments in the Govemment?s possession??
3) Do you have an update on the 14 hard drives?

4) Who is the Government bringing from the Department of State for the motions hearing? Can you provide
this person?s contact information?

5) Are you planning on providing me with your proposed If so, perhaps this is something we can agree
upon.

6) Did you receive the emails from COL Lind regarding her email problems?

7) have forwarded the documentation regarding badges for my family. Has Mr. Parra heard anything on that
issue?

8) Has the DOS provided any further updates on my Touhy request?

9) When does the Government plan to have PFC BM in the Fort Meade area? Additionally, is the plan to
return him to the RCF immediately after the 39(a) is completed? The Defense?s preference would be to return
PFC BM to military control at the JRCF.

Thank you for your attention to the above matters.

Best,
David

David E. Coombs, Esq.
Law Office of David E. Coombs



21575

1 1 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 con?dential attomey-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

21576

David Coombs

From: Fein, Ashden MAJ USA SJA

Sent: Monday, April 16, 2012 5:48 PM

To: David Coombs; Overgaard, Angel M. CPT USA Morrow Ill,
JoDean, CPT USA Whyte, Jeffrey H. CPT USA
VonElten, Alexander S. 1LT USA SJA

Cc: Tooman, Joshua CPT USARMY

Subject: RE: Discovery

David,
Below are our responses to the applicable questions. The others should be OBE or subject to other emails today.

1) The prosecution has been working with many government agencies pursuant to our obligation to search for
discoverable information under Williams. As we identify discoverable information, we seek approvals to release the
information. Over the past few weeks, we reviewed these particular assessments; identified discoverable information
contained within, obtained approvals to release them, and produced them to the defense as soon as possible.

2) The prosecution continues to review additional unclassified assessmentls), and will diligently work to obtain
approvals to turn the discoverable portions, if any, over in discovery.

4) The United States will notify you of the individual, once we receive the information. We expect this decision in the
next few days. Additionally, we will work to provide you contact information for the individual and/or setup a time prior
to the motions hearing for you to interview the individual.

5) I am confident we can work on this as we move forwardposition to send any as of yet. We will
address this issue after the next motions hearing.

7) I will check with Mr. Parra about this issue.

8) The Department of State is processing your Touhy request and we were told
that they might have an answer by the end ofthis week.

9) Please see your previous email at the very bottom.

A) Defense expert witnesses. We should be able to give you a comprehensive answer on the status of funding for your
experts and their contract issues by Wednesday, as per my email last week. Once CW2 Parra returns this is his priority.
They are currently funded for their travel tomorrow. SGT Feito is making their reservations and has been trying to
contact them.

B) OCA POCs.
1. Rear Admiral David Woods (CDR Thomas Welsh, SJA, JTF-GTMO,


2. LT Gen Schmidle (LTC Lisa Gumbs, OSJA, CYBERCOM at") 3. Vice Admiral Robert Harward (should
obtain tomorrow) 4. Rear Admiral Donegan (should obtain tomorrow)

v/
Ashden

21577

David Coombs

From: Fein, Ashden MAJ USA SJA
Sent: Tuesday, May 15, 2012 3:14 PM
To: David Coombs; Overgaard, Angel M. CPT USA Morrow

JoDean, CPT USA Whyte, Jeffrey H. CPT USA
VonE|ten, Alexander S. 1LT USA SJA

Cc: Tooman, Joshua CPT USARMY Hurley, Thomas MAJ USARMY Santiago,
Melissa CW2 USARMY (US)
Subject: RE: Discovery
David,

we asked this morning and they should be getting back to us in the next day or two with an update.

v/
Ashden

Message--?

From: David Coombs

Sent: Tuesday, May 15, 2012 3:09 PM

To: Fein, Ashden USA Overgaard, Angel M. CPT USA Morrow Ill, JoDean,
CPT USA Whyte, Jeffrey H. CPT USA VonE|ten, Alexander S. 1LT USA JFHQ-
SJA

Cc: 'Tooman, Joshua CPT USARMY Hurley, Thomas MAJ USARMY Santiago, Melissa 5 CW2 USARMY (US)
Subject: RE: Discovery

MAJ Fein,
Do you have any update on the Touhy request?

Best,
David

David E. Coombs, Esq.

Law Of?ce 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



?"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

ATTACHMENT

21579



David Coombs

From: Lind, Denise COL USARMY (US)

Sent: Tuesday, April 17, 2012 2:00 PM

To: Fein, Ashden MAJ USARMY (US)

Cc: Ford, Arthur Jr CW2 USARMY Tooman,

Joshua CPT USARMY Santiago, Melissa CW2 USARMY Morrow JoDean,
CPT USA Overgaard, Angel CPT USARMY Whyte, Jeffrey
CPT USARMY VonElten, Alexander S. 1LT USA Jefferson,
Dashawn MSG USARMY Williams, Patricia A CIV (US)

Subject: US v. PFC BM - Ruling on Gov't Request - Leave to Respond; Article 39(a); and trial
calendar (UNCLASSIFIED)

Attachments: 120413-Motion for Leave.pdf; document2012-04-16-145110.pd? Draft Update Calendar
final16 April 12.docx

Signed By: denise.lind@us.army.mi|

Classification: UNCLASSIFIED
Caveats: NONE

Counsel,

1. Attached please ?nd the Court's ruling granting the Government motion
for Leave to Respond. The original motion is also attached. I will try to
add the ruling works. Ms. Williams, please add the
motion and ruling as the next AE in line (do not add the draft calendar
discussed in (3) below).

2. For the Article 39(3) 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
afternoon, 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.



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

David Coombs

From:
Sent:
To:
Cc:

Subject:

Your Honor,

21580

Fein, Ashden MAJ USA SJA

Friday, April 20, 2012 7:29 PM

Lind, Denise COL MIL USA OTJAG

David Coombs; Tooman, Joshua CPT USARMY
Morrow JoDean, CPT USA Overgaard, Angel M. CPT USA
Whyte, Jeffrey H. CPT USA VonElten,
Alexander S. 1LT USA Ford, Arthur D. CW2 USA
Jefferson, DaShawn MSG MIL USA OTJAG

DOS Witness Follow-on

This email is a follow?on to our previous email referencing the production of a Department of State (DOS) witness for

our upcoming motions hearing.

The DOS will authorize the prosecution to submit, in camera and ex parte, the classified draft assessment along with an
explanation of the draft, for the Court's review. The prosecution anticipates receiving these documents within the next
week. The DOS has asked the prosecution to readdress with the Court the issue of whether its draft assessment is
discoverable based on the proposed filing.

The prosecution maintains that the draft damage assessment is not discoverable under RCM 701(a)(6) or Brady, because
it is a mere draft. See Giles. Pending your consideration of the above request, the prosecution will continue its efforts
to review the information contained in the assessment under RCM 701(a)(6) and Brady, to ensure that there would be
no delay in meeting a May 18 deadline.

v/r
MAJ Fein

21581

ATTACHMENT

21582



David Coombs

From: Fein, Ashden MAJ USA SJA

Sent: Friday, June 01, 2012 7:36 PM

To: David Coombs

Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Santiago,
Melissa 5 CW2 USARMY Morrow I11, JoDean, CPT USA
Overgaard, Angel M. CPT USA Whyte, Jeffrey H. CPT USA JFHQ-
von Elten, Alexander S. CPT USA Ford, Arthur D.
cw2 USA SJA

Subject: RE: Security Expert

Attachments: Security Expert Memo.docx; Approval Defense Expert in IA Smith.pdf;
101012?Appointment of 2d Defense Security Expert Ha||.pdf; 101028?Defense Request
for IA Expert.pdf; 100928-Defense Request for 2d Security Expert.pdf; 100917-
Appointment of Defense Security Expert.pdf

David,

Based on your request, we reached out to the different chains of command of the experts to receive input, including Ms.

Smith's. We have realized that each of the defense's referenced experts were appointed approximately 1.5 years ago,
and as you know were appointed as expert consultants in their respective fields. See Requests and Appointment
documents. Based on the draft memorandum you provided, it appears that their jobs have morphed since their original
appointment as consultants.

We recommend that you turn your draft memorandum into a request to the GCMCA for reappointment. This request
should reflect the scope of the responsibilities you anticipate these experts will provide, the reasons why these experts
are necessary, an estimate of how much time their obligation to the defense team will take, and request their position
as a defense expert consultant take priority over all other work. we will take this request to their chains of commands,
obtain approval disapproval support, and then route it to the GCMCA for action.

Once we receive the requests, we will start routing them immediately. This should be sufficient to ensure that the
defense is receiving the proper support and the right person is providing that support based on the scope.

Additionally, we can ensure that they will not have any difficulty with their respective chains of command by having the
commands sign-off on the reappointment.

Please let me know if you have any questions/concerns.

V/r
Ashden



From: David Coombs
Sent: Wednesday, May 30, 2012 2:58 PM

To: Fein, Ashden MAJ USA SJA

Cc: Hurley, Thomas MAJ USARMY (US)

Subject: Security Expert

Ashden,



21583

As discussed in today's 802 hearing, our experts are frequently tasked to perform other duties by their respective
commands. These duties result in them not being available to perform their duties as defense experts. I have just
finished speaking with them about this issue.

Mr. Hall and Mr. Ganiel have asked me to obtain a court order or memorandum from COL Lind that they can use to
show to their individual directors to avoid future conflicts. I told them that I didn't believe COL Lind needed to weigh in
on the issue, and that it was something that the convening authority could resolve with memorandum similar to his
appointment memorandum. I have typed up a memorandum that believe should avoid future availability issues.

If our experts continue to have difficulty with their respective chain of commands after the memorandum, then the
Defense would request direct contact with the chain of command on this issue with defense counsel being present.
Let me know if you 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: 1-800-588-4156

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

21584

DEPARTMENT OF THE ARMY
JOINT BASE MYER-HENDERSON HALL
204 LEE AVENUE
FORT MYER, VIRGINIA 22211-1199

REPLY TO
ATTENTION OF:



IMND-MHH-ZA 30 May 2012
MEMORANDUM FOR Mr. David E. Coombs, Civilian Defense Counsel

SUBJECT: Duties as Defense Security Experts U.S. v. PFC Bradley Manning

On 17 September 2010 and 12 October 2010, I appointed Mr. Charles Ganiel, U.S. Army Test
and Evaluation Command and Mr. Cassius Hall, U.S. Army Intelligence and Security Command,
as expert consultants for the defense in the above-named case. I also designated both individuals
as members of the defense team under U.S. v. Toledo, 25 M.J. 270 (C.M.A. 1987) and Military
Rule of Evidence 502. This Expert appointment was at no expense to the United States beyond
mileage reimbursement, if applicable.

Mr. Ganiel and Mr Hall?s obligations as security experts for the defense include, reviewing
motions and other materials for classified information; accompanying defense counsel on
witness interviews where classified information may be discussed; accompanying defense
counsel whenever required to do so in order to view classi?ed information provided to the
defense in discovery; being present in the courtroom during any session; and acting as expert
consultants or if the defense wishes, expert witnesses for the defense. This duty takes
precedence over Mr. Ganiel and Mr. Hall?s normal duties.

CARL R. COFFMAN, JR.
COL, AV
Commanding

21585

UNITED STATES OF AMERICA
v.

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

)
)
)
)
)
)
)
)
)

GOVERNMENT MOTION FOR
APPROPRIATE RELIEF: PROPOSED
LESSER-INCLUDED OFFENSES

10 May 2012

RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court adopt the Government's proposed lesser-included offenses prior
to trial.
BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the United States has the burden of persuasion on any factual issue
the resolution of which is necessary to decide the motion. Manualfor Courts-Martial (MCM),
United States, Rule for Courts-Martial (RCM) 905(c)(2) (2008). The burden of proof is by a
preponderance of the evidence. RCM 905(c)(1).

PROPOSED LESSER-INCLUDED OFFENSES

The United States proposes the following possible lesser-included offenses for
Specifications 2-16 of Charge II [Offenses charged under Clause 3 of Article 134, UCMJ]:
A. Clauses 1 and 2 of Article 134, UCMJ
B . Attempts under Article 80, UCMJ

The United States proposes the following possible additional lesser-included offense for
Specifications 4, 6, 8, 12, and 16 of Charge II [Violations of 18 U.S.C. § 641]:
A. Value of [record] [thing of value] less than $1,000

WITNESSES/EVIDENCE

The United States requests the Court consider the referred charge sheet in support of its
motion.

1

21586

LEGAL AUTHORITY AND ARGUMENT

Article 79, Uniform Code of Military Justice (UCMJ), states that "[a]n accused may be
found guilty of an offense necessarily included in the offense charged or of an attempt to commit
either the offense charged or an offense necessarily included therein. " UCMJ art. 79 (2008). To
determine whether an offense is necessarily included in the offense charged, the Court of
Appeals for the Armed Forces (CAAF) applies the "elements" test. United States v. Arriaga, 70
M. J. 51, 54 (C.A. A.F. 2011); see also United States v. Jones, 68 M. J. 465, 468 (C. A. A. F. 2010).
The elements test compares the elements of each offense. "If all of the elements of offense X are
also elements of offense Y, then X is [a lesser-included offense] ofY." Jones, 68 M.J. at 470.
The greater and lesser offenses do not need to "employ identical statutory language. " United
States v. Alston, 69 M.J. 214, 216 (C.A. A. F. 2010). "Instead, the meaning of the offenses is
ascertained by applying the 'normal principles of statutory construction.'" !d. (citing Carter v.
United States, 530 U.S. 255, 263 (2000)).

I.

OFFENSES UNDER CLAUSES 1 AND 2 OF ARTICLE 134 ARE LESSER­
INCLUDED OFFENSES OF SPECIFICATIONS 2 THROUGH 16 OF CHARGE II,
AS DRAFTED BY THE UNITED STATES.

Offenses arising under clauses 1 and 2 of Article 134, UCMJ, are lesser-included
offenses of Specifications 2-16 of Charge II because the elements of offenses under clauses 1
and 2 are necessarily included in the elements of Specifications 2-16, as drafted in this case. In
United States v. Medina, 66 M.J. 21 (C. A.A.F. 2008), CAAF had the opportunity to address
whether an offense arising under clauses 1 and/or 2 of Article 134, UCMJ, depending on the
facts, necessarily stands as an included offense to an offense arising under clause 3 of Article
134, UCMJ. !d. at 25. The court compared the elements of clauses 1 and 2 with the elements of
clause 3 and concluded that the elements of clauses 1 and 2 were not textually contained within
the clause 3 offense charged in the case.1 Id. However, the court ultimately held that although
clauses 1 and 2 are not necessarily lesser-included offenses of clause 3 offenses, they may be
lesser-included offenses depending on the drat
f ing of the specification. !d. at 26.
In this case, the United States has charged the accused with violations of Federal law in
Specifications 2-16 of Charge II under clause 3 of Article 134, UCMJ. See Charge Sheet. In
these specifications, each element of the applicable Federal law is expressly alleged, in
accordance with the drafting guidance in the MCM. MCM pt. IV, �60. c. (6)(b). Additionally, the
clause 3 specifications include the additional element that the conduct was "prejudicial to good
order and discipline in the armed forces" and "of a nature to bring discredit upon the armed
forces. " See Charge Sheet. As such, the United States has made clauses 1 and 2 of Article 134
lesser-included offenses of Specifications 2-16 by including the second element of the clause 1
and 2 offenses in the specifications, as described by the court in Medina. See Medina, 66 M.J. at
1

Clauses

1 and 2 of Article

134, UCMJ, require two elements of proof

(1) That the accused did or failed to do

certain acts; and (2) That, under the circumstances, the accused's conduct was to the prejudice of good order and
discipline in the armed forces or of a nature to bring discredit upon the armed forces. If conduct is punished as a

crime or offense not capital under clause 3, the proof must establish every element of the crime or offense as
required by the applicable law. MCM pt. IV, �60.b.

2

21587

26. This is true even if the first element of proof under clause 1 and 2 (''That the accused did or
failed to do certain acts" ) does not employ identical statutory language to the applicable Federal
law in Specifications 2-16 under the elements test. See Alston, 69 M.J. at 216. At least one
element of each Federal offense (e.g. "That the accused willfully communicated information
related to the national defense" under 18 U.S.C. § 793(e)) is the functional equivalent of"that the
accused did...certain acts" under clauses 1 and 2. Thus, the two elements of proof for a clause 1
and 2 offense are a subset of the elements of proof for Specifications 2-16 of Charge II, as
drafted by the United States in this case-making clauses 1 and 2 lesser-included offenses.

II.

AN ATTEMPT TO COMMIT THE OFFENSE CHARGED IS A LESSER­
INCLUDED OFFENSE.

It is well-settled that an attempt to commit the charged offense is a lesser-included
offense. See United States v. Brown, 63 M.J. 735, 737 (C. A.A.F. 2006); see also UCMJ art. 79
(2008) (stating that "[a]n accused may be found guilty of an offense necessarily included in the
offense charged or of an attempt to commit either the offense charged or an offense necessarily
included therein." ) (emphasis added). An attempt to commit any of the offenses alleged in
Specifications 2-16 of Charge II is a lesser-included offense.

III.

STEALING, PURLOINING, OR KNOWINGLY CONVERTING GOVERNMENT
PROPERTY WORTH LESS THAN $1, 000 IS A LESSER-INCLUDED OFFENSE
OF SPECIFICATIONS 4, 6, 8, 12, AND 16 OF CHARGE II.

Specifications 4, 6, 8, 12, and 16 of Charge II allege that the accused stole, purloined, or
knowingly converted government property worth more than $1, 000, in violation of 18 U.S.C. §
641. See Charge Sheet. Under these specifications, the value of the government property is an
element of the offenses. See Carter, 530 U.S. at 272-73 (rejecting argument that ''value
exceeding $1, 000" under 18 U.S.C. § 2113(b) is a sentencing factor rather than an element).
Using the elements test employed by CAAF in Arriaga to determine lesser-included offenses, it
is clear that stealing or knowingly converting government property worth less than $1, 000 is a
lesser-included offense. If the value element is eliminated in Specifications 4, 6, 8, 12, and 16, a
cognizable offense constituting a subset of elements still remains-a violation of 18 U.S.C. §
641. See Schmuck v. United States, 489 U.S. 705, 716 (1989) ("One offense is not 'necessarily
included' in another unless the elements of the lesser offense are a subset of the elements of the
charged offense." ). Thus, stealing, purloining, or knowingly converting government property
worth less than $1, 000 is a lesser-included offense of Specifications 4, 6, 8, 12, and 16 of Charge
II.

3

21588

CONCLUSION

The United States respectfully requests the Court adopt the Government's proposed
lesser-included offenses.

\J��
&,
T,JA
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 10 May 2012.

��
�t:
Trial Counsel

4

21589

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

)
)
)
)
)
)
)
)
)
)

DEFENSE MOTION FOR
INSTRUCTIONS ON LESSER
INCLUDED OFFENSE (LIO)

DATED: 10 May 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law, Article
79, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 879 (2010), and Rule for Courts
Martial (R.C.M.) 920(e)(2), requests this Court to instruct the members on the elements of
Article 92(1) for a violation of Army Regulation 380-5 (AR 380-5) as a lesser included offense
(LIO) of each of the offenses alleged in Specifications 1, 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. The Defense, as the moving party, bears the burden of this motion by a preponderance of the
evidence pursuant to R.C.M. 905(c)(1) and (2)(A).
FACTS
3. PFC Manning is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of conduct prejudicial to 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, 104, and 134, UCMJ, 10 U.S.C. §§ 892, 904, 934.
4. Specifically, in Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II, PFC Manning is
charged with unauthorized possession and disclosure of information relating to the national
defense in violation of 18 U.S.C. Section 793(e). See Charge Sheet. In addition, each of these
specifications allege that the conduct described therein is prejudicial to good order and discipline
in the armed forces and is of a nature to bring discredit upon the armed forces, in violation of
Article 134. See id. Finally, Specification 1 of Charge II charges PFC Manning with wrongfully

21590

and wantonly causing United States intelligence to be published on the internet, having
knowledge that the intelligence placed on the internet is accessible to the enemy, in violation of
Article 134. See id.
5. Additionally, as stated by this Court in the “Factual Findings” section of its Ruling on the
Defense’s Motion to Dismiss Specification 1 of Charge II for Failure to State an Offense, “[a]t
the time of PFC Manning’s alleged unlawful actions, Army Regulation 380-5 (Department of the
Army Information Security Program) was in effect. The regulation is a punitive lawful general
order per paragraph 1-21[.]” See Appellate Exhibit LXXX at 1.
WITNESSES/EVIDENCE
6. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this court to consider the following evidence in support of the Defense’s
motion:
a. Charge Sheet
b. Army Regulation 380-5.
LEGAL AUTHORITY AND ARGUMENT
7. Article 79 provides that “[a]n accused may be found guilty of an offense necessarily included
in the offense charged or of an attempt to commit either the offense charged or an offense
necessarily included therein.” 10 U.S.C. § 879. To determine whether an offense is “necessarily
included” in a charged offense, id., the Court of Appeals for the Armed Forces has adopted the
“elements test.” See United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011); United States v.
Bonner, 70 M.J. 1, 2 (C.A.A.F. 2011); United States v. Jones, 68 M.J. 465, 468, 470-71
(C.A.A.F. 2010). Under the elements test, “one offense is not ‘necessarily included’ in another
unless the elements of the lesser offense are a subset of the elements of the charged offense.”
United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010) (quoting Schmuck v. United States,
489 U.S. 705, 716 (1989)); see Bonner, 70 M.J. at 2.
8. Analysis under the elements test begins by identifying and comparing the elements of the
charged offense and the purported LIO:
[O]ne compares the elements of each offense. If all of the elements of offense X
are also elements of offense Y, then X is an LIO of Y. Offense Y is called the
greater offense because it contains all of the elements of offense X along with one
or more additional elements.
Jones, 68 M.J. at 470. However, “[t]he elements test does not require that the two offenses at
issue employ identical statutory language. Instead, the meaning of the offenses is ascertained by
applying the ‘normal principles of statutory construction.’” Alston, 69 M.J. at 216 (quoting
2

21591

Carter v. United States, 530 U.S. 255, 263 (2000)); see Arriaga, 70 M.J. at 54; Bonner, 70 M.J.
at 2.
9. Additionally, identification of the elements of the offenses under the elements test need not
rely solely on the statutory text in the abstract, untethered to any consideration of how the
offenses are charged in the particular case at hand. On the contrary, the Court of Appeals for the
Armed Forces has made clear that “comparison of the statutory elements as charged in the
specification is allowed.” Arriaga, 70 M.J. at 54 (emphasis supplied); see id. at 55 (“Regardless
of whether one looks strictly to the statutory elements or to the elements as charged,
housebreaking is a [LIO] of burglary . . . . [T]he offense as charged in this case clearly alleges
the elements of both offenses.” (emphases supplied)); see also United States v. Nealy, 71 M.J.
73, ___, No. 11-0615, 2012 WL 1108134, at *7-8 & n.1 (C.A.A.F. March 30, 2012) (Baker, C.J.,
concurring in the result) (explaining that, under Arriaga, the specification itself may provide
notice to an accused of the LIOs of the charged offense(s)); Alston, 69 M.J. at 216 (examining
the elements as charged in the specification when conducting an elements test analysis).
10. Consideration of the elements of the offenses as charged is completely consistent with
Jones. In Jones, the Court explained that the paramount concern of the elements test was
ensuring that an accused has notice of the LIOs of which he could be convicted. See 68 M.J. at
468. The Jones Court made clear that the specification in any particular case could provide that
notice: “[W]hat is general [in the statutory text of Article 134] is made specific through the
language of a given specification. The charge sheet itself gives content to that general language,
thus providing the required notice of what an accused must defend against.” Id. at 472. In fact,
the Government itself has recently acknowledged that the court can properly consider how
offenses are alleged in the specification in making LIO determinations under the elements test.
See Brief for Appellee United States, United States v. Nealy, 71 M.J. 73 (No. 11-0615), 2011
WL 5358403, at *7-10 (C.A.A.F. Oct. 25, 2011) (discussing continued vitality of the pleadingselements test of United States v. Weymouth, 43 M.J. 329 (C.A.A.F. 1995), even after Jones); id.
at *8 (“Jones . . . implicitly acknowledges reliance upon the ‘pleadings-elements’ test to
ascertain the elements in any particular case.”); id. at *9 (“[T]he ‘elements’ of any given offense
cannot be based solely upon what Congress enacted, but must also include the specific pleading
in any particular case.”); id. at *10-12 (explaining how provoking speeches or gestures under
Article 117 may be a LIO of communicating a threat under Article 134, “[d]epending on the
[n]ature of the [a]llegation”).
11. In the last analysis, the elements test is the approach used to determine whether one offense
is a “subset” of another. See Schmuck, 489 U.S. at 716; Bonner, 70 M.J. at 2; Jones, 68 M.J. at
469. Where it is impossible to commit the greater offense without also committing the purported
LIO, the elements test has been satisfied. See Schmuck, 489 U.S. at 719 (“To be necessarily
included in the greater offense the lesser must be such that it is impossible to commit the greater
without first having committed the lesser.” (quoting Giles v. United States, 144 F.2d 860, 861
(9th Cir. 1944)) (internal quotations omitted)); Arriaga, 70 M.J. at 55 (holding that
housebreaking is a LIO of burglary because “it is impossible to prove a burglary without also
proving a housebreaking.”).

3

21592

12. When a LIO is reasonably raised by the evidence, the court must instruct the members on the
elements of that LIO. See R.C.M. 920(e)(2) (“Instructions on findings shall include: . . . (2) A
description of the elements of each lesser included offense in issue”); Arriaga, 70 M.J. at 55 (“A
military judge has a sua sponte duty to instruct the members on lesser included offenses
reasonably raised by the evidence.” (quoting United States v. Upham, 66 M.J. 83, 87 (C.A.A.F.
2008))); United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (“[U]nder R.C.M. 920(e)(2),
the military judge ha[s] a sua sponte duty to instruct the court members on LIOs under the
prevailing law”); Jones, 68 M.J. at 468 (“[M]ilitary judges must instruct the members on LIOs
reasonably raised by the evidence”).
13. In the instant case, a violation of AR 380-5, chargeable under Article 92(1), is a LIO for
each of the offenses alleged in Specifications 1, 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II.
Accordingly, the Defense requests that this Court instruct the members of the elements of this
LIO. See Arriaga, 70 M.J. at 55; Girouard, 70 M.J. at 11; Jones, 68 M.J. at 468.
A.

A Violation of Army Regulation 380-5, Chargeable Under Article 92(1), is a Lesser
Included Offense of Each Specification Charging PFC Manning with a Violation of
18 U.S.C. Section 793(e) and Article 134

14. In Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II, PFC Manning is charged with
violations of Section 793(e) and Article 134. See Charge Sheet. Under the elements test
analysis, a violation of AR 380-5, chargeable under Article 92(1), is a LIO for each of these
specifications.
15. The first step in an elements test analysis is to identify the elements of each offense. See
Jones, 68 M.J. at 470; Arriaga, 70 M.J. at 54; Bonner, 70 M.J. at 2. In Specifications 2, 3, 5, 7,
9, 10, 11 and 15 of Charge II, the Government has used the third clause of Article 134 to charge
violations of Section 793(e). See 10 U.S.C. § 934 (“crimes and offenses not capital” clause). In
general, “[i]f the conduct is punished as a crime or offense not capital, the proof must establish
every element of the crime or offense as required by the applicable law[,]” Manual for CourtsMartial (MCM), Part IV, para. 60.b – here, Section 793(e). In this case, though the specific date
ranges and the particular information at issue vary, the core elements of Section 793(e), charged
as a violation of the third clause of Article 134, are identical in Specifications 2, 3, 5, 7, 9, 10, 11
and 15 of Charge II. See Arriaga, 70 M.J. at 54-55 (resort to the specification in the particular
case is proper in an elements test analysis); see also Nealy, 2012 WL 1108134, at *7-8 & n.1
(Baker, C.J., concurring in the result) (same). Those core elements are as follows:
(1) The accused, at or near Contingency Operating Station Hammer, Iraq,
between on or about [varying date ranges], had unauthorized possession of
information;
(2) The information was relating to the national defense, to wit: [the named
information];

4

21593

(3) The accused knew or had reason to believe that the information could be used
to the injury of the United States or to the advantage of any foreign nation;
(4) The accused willfully communicated, delivered, or transmitted, or caused to
be communicated, delivered, or transmitted the information to a person not
entitled to receive it; and
(5) Under the circumstances, the conduct of the accused was to the prejudice of
good order and discipline in the armed forces and of a nature to bring discredit
upon the armed forces.
See Charge Sheet; see also 10 U.S.C. § 934 (containing statutory text supporting element 5
above); 18 U.S.C. § 793(e) (containing statutory text supporting elements 1-4 above).
16. A violation of AR 380-5 charged under Article 92(1) would have the following elements:
(1) There was in effect a certain lawful general order or regulation in the
following terms: Paragraphs 1-21 and 6-1, Army Regulation 380-5, dated 29
September 2000;
(2) The accused had a duty to obey this regulation; and
(3) That on divers occasions between on or about [varying date ranges], at or near
Contingency Operating Station Hammer, Iraq, the accused violated this lawful
general regulation by knowingly, willfully, or negligently disclosing classified or
sensitive information to unauthorized persons.
See MCM, Part IV, para. 16.b(1); see also 10 U.S.C. § 892(1); AR 380-5, para. 1-21(a)(1).
17. After the elements have been identified, the next step in an elements test analysis is to
compare the elements of the two offenses to determine whether the elements of one offense are
“necessarily included” in the other. See Arriaga, 70 M.J. at 54; Bonner, 70 M.J. at 2; Alston, 69
M.J. at 216; Jones, 68 M.J. at 470. This comparison “does not require that the two offenses at
issue employ identical statutory language. Instead, the meaning of the offenses is ascertained by
applying the ‘normal principles of statutory construction.’” Alston, 69 M.J. at 216 (quoting
Carter, 530 U.S. at 263); see Arriaga, 70 M.J. at 54; Bonner, 70 M.J. at 2.
18. In this case, each of the elements of the Article 92(1) offense is necessarily included in one
or more elements of the Article 134 offense charged in Specifications 2, 3, 5, 7, 9, 10, 11 and 15
of Charge II. As all of the elements of the Article 92(1) offense are necessarily included in the
Article 134 offense, the Article 92(1) offense is a LIO of the Article 134 offense.
19. Taking the elements in order, elements one and two of the Article 92(1) offense (existence
of the lawful general regulation and accused’s duty to obey it) are necessarily included in the
first element of the Section 793(e) offense (the accused’s unauthorized possession of
information). The lawful general regulation – AR 380-5 – covers the handling of classified and
5

21594

sensitive information. See AR 380-5, para. 1-1 (“This regulation establishes the policy for the
classification . . . transmission, transportation, and safeguarding of information requiring
protection in the interests of national security. It primarily pertains to classified national security
information, now known as classified information, but also addresses controlled unclassified
information, to include for official use only and sensitive but unclassified.”). The regulation
prohibits, among other things, “[c]ollecting, obtaining, recording, or removing, for any personal
use whatsoever, of any material or information classified in the interest of national security[.]”
Id., para. 6-1. Any “unauthorized possession of information” relating to the national defense
must necessarily implicate the duties imposed by AR 380-5. In other words, the duty to obey the
regulation on handling classified and sensitive information imposed by AR 380-5 (the first two
elements of the Article 92(1) offense) is a subset of the unauthorized possession of each charged
Section 793(e) violation (the first element of the Section 793(e) offense). Thus, the first two
elements of the Article 92(1) offense are necessarily included in the first element of the Section
793(e) offense.
20. Additionally, the third element of the Article 92(1) offense (violation of AR 380-5 by
knowingly, willfully, or negligently disclosing classified or sensitive information to a person not
authorized to receive it under paragraph 1-21 of the regulation) is necessarily included in the
fourth element of the Section 793(e) offense (willfully communicated, delivered, or transmitted,
or caused to be communicated, delivered, or transmitted information relating to the national
defense to a person not entitled to receive it). Indeed, the third element of the Article 92(1)
offense and the fourth element of the Section 793(e) offense are nearly identical, and the
statutory language of the offenses need not mirror each other perfectly. See Alston, 69 M.J. at
216; see Arriaga, 70 M.J. at 54; Bonner, 70 M.J. at 2. While the Article 92(1) offense can be
committed by a knowing, willful, or negligent disclosure, the inclusion of “knowingly” and
“negligently” in this element is of no moment because “[t]he fact that there may be an
‘alternative means of satisfying an element in a lesser offense does not preclude it from being a
lesser-included offense.’” Arriaga, 70 M.J. at 55 (quoting United States v. McCullough, 348
F.3d 620, 626 (7th Cir. 2003)). In this case, each of the willful communications, deliveries, or
transmissions of information relating to the national defense to a person not entitled to receive it
alleged in Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II necessarily included a willful
disclosure of classified or sensitive information to a person not authorized to receive it. The
specific information related to the national defense identified in Specifications 3, 5, 7, 9, 10 and
15 of Charge II is alleged to be classified. See Charge Sheet. The information identified in
Specifications 2 and 11 of Charge II, though not alleged to be classified, readily fits the
definition of either “classified information” or “sensitive information,” as those terms are used in
AR 380-5. See id.; AR 380-5. Additionally, the conduct alleged in each of these specifications
involved a willful disclosure of the information to a person not authorized to receive it.
Therefore, the third element of the Article 92(1) offense is necessarily included in the fourth
element of the Section 793(e) offense.
21. Moreover, the first two elements of the Article 92(1) offense are also necessarily included in
the fifth element of the Section 793(e) offense, as the Government has charged that offense in
this case. The Government has used clause 3 of Article 134 to charge the Section 793(e) offense
and has alleged that the conduct underlying the Section 793(e) violation was to the prejudice of
good order and discipline in the armed forces and of a nature to bring discredit upon the armed
6

21595

forces. See Charge Sheet. The alleged conduct that is to the prejudice of good order and
discipline in the armed forces and of a nature to bring discredit upon the armed forces also, as it
is alleged by the Government, necessarily includes a violation of the duty to obey the regulation
on handling classified information. As the MCM instructs:
A breach of a custom of the service may result in a violation of clause 1 of Article
134 . . . . Many customs of the service are now set forth in regulations of the
various armed forces. Violations of these customs should be charged under
Article 92 as violations of the regulations in which they appear if the regulation is
punitive.
MCM, Part IV, para. 60.c(2)(B); see Appellate Exhibit LXXX at 4 (“Violations of customs of
the service that are made punishable in punitive regulations should be charged under Article 92
as violations of the regulations in which they appear.”). So it is here. The conduct that the
Government alleges was to the prejudice of good order and discipline in the armed forces and of
a nature to bring discredit upon the armed forces – a Section 793(e) violation – necessarily
included a breach of a custom of the service now set forth in a punitive regulation – AR 380-5.
As the violation of the regulation is necessarily included in the conduct underlying the Section
793(e) violation, the duty to obey the regulation is also included in that conduct. Thus, the first
two elements of the Article 92(1) offense are also necessarily included in the fifth element of the
Section 793(e) offense, as the Government has charged that offense in this case.
22. In sum, because every element of the Article 92(1) offense is necessarily included in one or
more elements of the Section 793(e) offense, as charged under clause 3 of Article 134, the
Article 92(1) offense is a subset of the Section 793(e) offense. Every violation of Section 793(e)
perpetrated by a member of the Army must, of necessity, include a violation of AR 380-5. It is
impossible for a member of the Army to violate Section 793(e) in the manner alleged by the
Government, see Arriaga, 70 M.J. at 54-55, without also violating AR 380-5. See Schmuck, 489
U.S. at 719 (explaining that when it is impossible to commit the greater offense without also
committing the lesser offense, the lesser offense is a LIO); Arriaga, 70 M.J. at 55 (similar); see
also United States v. Baba, 21 M.J. 76, 78 (C.M.A. 1985) (Cox, J., concurring in the result)
(“The elements of an offense under Article 92, Uniform Code of Military Justice, 10 U.S.C. §
892 . . . are necessarily included in the elements of an offense under Article 134, UCMJ, 10
U.S.C. § 934, and 18 U.S.C. § 793(d).”).
23. Thus, a violation of AR 380-5 charged under Article 92(1) is a LIO of each Section 793(e)
violation charged in Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II. Accordingly, this
Court should instruct the members on the elements of the Article 92(1) LIO for each of these
specifications. See Arriaga, 70 M.J. at 55; Girouard, 70 M.J. at 11; Jones, 68 M.J. at 468.
B.

A Violation of Army Regulation 380-5, Chargeable Under Article 92(1), is a Lesser
Included Offense of Specification 1, of Charge II

24. In Specification 1 of Charge II, PFC Manning is charged with wrongfully and wantonly
causing United States intelligence to be published on the internet, having knowledge that the
7

21596

intelligence placed on the internet is accessible to the enemy, in violation of Article 134. See
Charge Sheet. Under the elements test analysis, a violation of AR 380-5, chargeable under
Article 92(1), is a LIO for this specification.
25. Specification 1 of Charge II charges a violation of Article 134 under the first and second
clauses of that article. See 10 U.S.C. § 934 (the “all disorders and neglects to the prejudice of
good order and discipline in the armed forces” clause and the “all conduct of a nature to bring
discredit upon the armed forces” clause). In general, conduct punished under clause 1 and 2 of
Article 134 requires proof of the following elements:
(1) That the accused did or failed to do certain acts; and
(2) That, under the circumstances, the accused’s conduct was to the prejudice of
good order and discipline in the armed forces or was of a nature to bring discredit
upon the armed forces.
MCM, Part IV, para. 60.b. In this case, the elements of the clause 1 and 2 Article 134 offense
are alleged in the specification, see Arriaga, 70 M.J. at 54-55 (resort to the specification in the
particular case is proper in an elements test analysis), as follows:
(1) The accused, 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 caused to be published on the internet intelligence belonging to the
United States, having knowledge that intelligence published on the internet is
accessible to the enemy; and
(2) Under the circumstances, the conduct of the accused was to the prejudice of
good order and discipline in the armed forces and of a nature to bring discredit
upon the armed forces.
See Charge Sheet. A violation of AR 380-5 charged under Article 92(1) would have the same
elements as outlined above, see Argument, Part A, supra, namely:
(1) There was in effect a certain lawful general order or regulation in the
following terms: Paragraphs 1-21 and 6-1, Army Regulation 380-5, dated 29
September 2000;
(2) The accused had a duty to obey this regulation; and
(3) That on divers occasions between on or about [varying date ranges], at or near
Contingency Operating Station Hammer, Iraq, the accused violated this lawful
general regulation by knowingly, willfully, or negligently disclosing classified or
sensitive information to unauthorized persons.
See MCM, Part IV, para. 16.b(1); see also 10 U.S.C. § 892(1); AR 380-5, para. 1-21(a)(1).

8

21597

26. Comparing the elements of these two offenses, the first and second elements of the Article
92(1) offense (existence of lawful general order or regulation and the accused’s duty to obey it)
are necessarily included in the second element of the clause 1 and 2 Article 134 offense (conduct
of the accused to the prejudice of good order and discipline in the armed forces and of a nature to
bring discredit upon the armed forces). The Government has alleged that wrongfully and
wantonly causing intelligence to be published on the internet is the conduct that is prejudicial to
good order and discipline and service discrediting. That same conduct, in the manner that it is
alleged by the Government, necessarily includes a violation of the duty to obey the regulation on
handling classified information. Moreover, the conduct underlying the clause 1 and 2 Article
134 offense necessarily included a breach of a custom of the service now set forth in a punitive
regulation – AR 380-5. See MCM, Part IV, para. 60.c(2)(B) (“Many customs of the service are
now set forth in regulations of the various armed forces. Violations of these customs should be
charged under Article 92 as violations of the regulations in which they appear if the regulation is
punitive.”); see also Appellate Exhibit LXXX at 4. As the violation of the regulation is
necessarily included in the conduct underlying the clause 1 and 2 Article 134 offense, the duty to
obey the regulation is also included in that conduct. Therefore, the first and second elements of
the Article 92(1) offense are necessarily included in the second element of the clause 1 and 2
Article 134 offense.
27. Additionally, the third element of the Article 92(1) offense (violation of AR 380-5 by
knowingly, willfully, or negligently disclosing classified or sensitive information to unauthorized
persons) is necessarily included in the first element of the clause 1 and 2 Article 134 offense
(wrongfully and wantonly causing to be published on the internet information belonging to the
United States, having knowledge that intelligence published on the internet is accessible to the
enemy). It is true, as this Court has recognized, that the mens rea required by these two elements
is different: “AR 380-5 punishes knowing, willful, or negligent disclosure of classified or
sensitive information to unauthorized persons. It does not punish the ‘wanton’ conduct charged
in Specification 1 of Charge II[.]” See Appellate Exhibit LXXX at 5. But this fact does not
change the LIO analysis, as the two offenses need not employ mirror-image statutory language.
See Arriaga, 70 M.J. at 54; Bonner, 70 M.J. at 2; Alston, 69 M.J. at 216.
28. The MCM does not define the term “wanton” in the context of disclosure of information, but
it does define the term in two other contexts. See MCM, Part IV, para. 35.c(8) (defining
“wanton” for purposes of Article 111); id., Part IV, para. 100a.c(4) (defining “wanton” for
purposes of Article 134, offense of “reckless endangerment”). Both definitions provided by the
MCM are essentially the same: “‘Wanton’ includes ‘Reckless’ but may connote willfulness, or a
disregard of probable consequences, and thus describe a more aggravated offense.” Id., Part IV,
para. 100a.c(4); see id., Part IV, para. 35.c(8) (“‘Wanton’ includes ‘reckless’, but in describing
the operation or physical control of a vehicle, vessel, or aircraft ‘wanton’ may, in a proper case,
connote willfulness, or a disregard of probable consequences, and thus describe a more
aggravated offense.”).
29. Thus, “wanton” as used in the first element of the clause 1 and 2 Article 134 offense could
potentially include “knowingly,” “willfully,” or “negligently,” as “wanton” can cover
recklessness, willfulness, or a disregard of probable consequences. Moreover, even if not every
mens rea specified in AR 380-5 is included in “wanton,” that fact does not mean that the Article
9

21598

92(1) offense is not a LIO of the clause 1 and 2 Article 134 offense. “The fact that there may be
an ‘alternative means of satisfying an element in a lesser offense does not preclude it from being
a lesser-included offense.’” Arriaga, 70 M.J. at 55 (quoting McCullough, 348 F.3d at 626). At
the very least, “wanton” can include “willful.” See MCM, Part IV, para. 35.c(8); id., Part IV,
para. 100a.c(4). In this case, the Government has clearly indicated that the means by which PFC
Manning wrongfully and wantonly caused intelligence to be published on the internet was his
alleged willful disclosure of the information to WikiLeaks. See Arriaga, 70 M.J. at 54-55 (resort
to the specification in the particular case is proper in an elements test analysis). In other words,
the publication that PFC Manning wrongfully and wantonly caused necessarily included the
willful disclosure and, therefore, necessarily included the violation of AR 380-5.
30. Additionally, the fact that the Article 134 offense “adds an additional element not included
in the AR 380-5 offense, that the accused knew that the intelligence published on the internet is
accessible to the enemy,” Appellate Exhibit LXXX at 5, does not alter the conclusion that the
third element of the Article 92(1) offense is necessarily included in the first element of the clause
1 and 2 Article 134 offense. A greater offense can have an additional element not included in the
LIO; indeed, a greater offense “is called the greater offense because it contains all of the
elements of [the LIO] along with one or more additional elements.” Jones, 68 M.J. at 470.
31. This conclusion is also in no way cast into doubt by this Court’s observation that the Article
134 offense “punishes the distribution of ‘intelligence’ which includes information that does not
fall within AR 380-5.” See Appellate Exhibit LXXX at 5. The fact that the term “intelligence”
as used in the clause 1 and 2 Article 134 offense is a broad enough term to include information
that is not confidential or sensitive is irrelevant to the LIO inquiry in this case.
32. It is clear from the way in which the Government has alleged the specifications, especially
the date ranges provided in the clause 1 and 2 Article 134 offense, see Arriaga, 70 M.J. at 54-55
(resort to the specification in the particular case is proper in an elements test analysis), that the
“intelligence” referenced in the clause 1 and 2 Article 134 offense includes the classified or
sensitive materials identified in Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II. See
Charge Sheet. Thus, for these reasons, the third element of the Article 92(1) offense is
necessarily included in the first element of the clause 1 and 2 Article 134 offense.
33. Because each of the elements of the Article 92(1) offense is necessarily included in one or
more of the elements of the clause 1 and 2 Article 134 offense, the Article 92(1) offense is a
subset of the charged Article 134 offense. It is impossible for a member of the Army to violate
Article 134 in the manner alleged by the Government, see Arriaga, 70 M.J. at 54-55, without
also violating AR 380-5. See Schmuck, 489 U.S. at 719; Arriaga, 70 M.J. at 55; see also Baba,
21 M.J. at 78 (Cox, J., concurring in the result).
34. Therefore, a violation of AR 380-5 charged under Article 92(1) is a LIO of the clause 1 and
2 Article 134 offense charged in Specification 1 of Charge II. Accordingly, this Court should
instruct the members of the Article 92(1) LIO for this specification. See Arriaga, 70 M.J. at 55;
Girouard, 70 M.J. at 11; Jones, 68 M.J. at 468.

10

21599

CONCLUSION
35. For the reasons articulated above, the Defense requests that this Court instruct the members
on the elements of the Article 92(1) LIO of each offense alleged in Specifications 1, 2, 3, 5, 7, 9,
10, 11 and 15 of Charge II.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

11

21600

UNITED STATES OF AMERICA
v.

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

)
)
)
)

)
)
)
)
)

Prosecution Response
to Defense Motion for
Instructions on Lesser
Included Offense (LIO)
24May 2012

RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court deny the Defense Motion for Instructions on Lesser Included
Offense. The proposed lesser-included offense (LIO), an Article 92(1) offense in violation of
AR 380-5 (hereinafter an "Article 92(1) offense"), is not an LIO of Specifications 2, 3, 5, 7, 9,
10, 11, and 15 of Charge II (hereinafter the "18 U.S.C. § 793(e) offenses"), or of Specification 1
of Charge II for two reasons: first, the alleged LIO requires elements not required for the alleged
greater offenses; and second, it is possible to prove the alleged greater offenses without first
proving the alleged LIO.
BURDEN OF PERSUASION AND BURDEN OF PROOF

As the moving party, the defense bears the burden of persuasion on any factual issue, the
resolution of which is necessary to decide the motion. Manual for Courts-Martial (MCM),
United States, Rule for Courts-Martial (RCM) 905(c)(2) (2008). The burden of proof is by a
preponderance of the evidence. RCM 905(c)(1).
FACTS

The prosecution stipulates to those facts set forth in paragraphs 3-5 of the defense's
motion. See Def. Mot. at 3-4.
Army Regulation (AR) 380-5 defines classified information as "information and material
that has been determined, pursuant to EO 12958 or any predecessor order, to require protection
against unauthorized disclosure and is marked to indicate its classified status when in
documentary and readable foriiL" AR 380-5, para. 1-1; see also AE LXXX at 2.
AR 380-5 defines sensitive, but unclassified, information as "information originated from
within the Department of State which warrants a degree of protection and administrative control
and meets the criteria for exemption from mandatory public disclosure under the Freedom of
Information Act." AR 380-5, para. 5-7; see also AE LXXX at 2.
AR 380-5 defines "sensitive information" as "[a]ny information, the loss, misuse, or
unauthorized access to or modification of which could adversely affect the national interest or
the conduct of federal programs, or the privacy to which individuals are entitled under section
552a of Title 5, USC (the Privacy Act), but which has not been specifically authorized under
1

21601

criteria established by an Executive Order or an Act of Congress to be kept secret in the interest
of national defense or foreign policy." AR 380-5, para. 5-19(a).
Intelligence is defined as information that may be useful to the enemy for any of the
many reasons that make information valuable to belligerents. Intelligence imports that the
information conveyed is true or implies the truth, at least in part. See AE LXXX at 2; see also
Manual for Courts-Martial, United States pt. IV, 27-9, Military Judges' Benchbook (1 January 2010) (3-28-4) (Benchbook).
The Benchbook lists the following elements for a charged offense under Article 92(1),
UCMJ:
(1) That there was in existence a certain lawful general (order)
(regulation) in the following terms: (state the date and specific
source of the alleged general order or regulation and quote the
order or regulation or the specific portion thereof);
(2) That the accused had a duty to obey such (order) (regulation);
and
(3) That (state the time and place alleged), the accused (violated)
(failed to obey) this lawful general (order) (regulation) by (here the
military judge should enumerate the specific acts and any state of
mind or intent alleged which must be established by the
prosecution in order to constitute the violation of the order or
regulation).
WITNESSES/EVIDENCE

The prosecution does not request any witnesses be produced for this motion. The
prosecution requests that the Court consider the Appellate Exhibits referenced herein.
ELEMENTS

The prosecution requests this Court adopt the following elements for the specifications
charging misconduct in violation of 18 U.S.C. § 793(e), specifically Specifications 2, 3, 5, 7, 9,
10, 11, and 15 of Charge II, and for Specification 1 of Charge II:
18 U.S.C. § 793(e)
(1) That the accused, at or near Contingency Operating Station Hammer, Iraq and
between on or about (state date range) had possession of information relating to the national
defense, to wit: (the named information);
(2) That the possession was unauthorized;

2

21602

(3) That the accused had reason to believe that such information could be used to [the
injury of the United States] [the advantage of any foreign nation];
(4) That the accused willfully communicated, delivered, transmitted, or caused to be
communicated, delivered, or transmitted, the said information, to a person not entitled to receive
it;
(5) That, at the time, 18 U.S.C. § 793(e) was in existence; and
(6) That, under the circumstances, the conduct of the accused was to the prejudice of
good order and discipline in the armed forces and was of a nature to bring discredit upon the
armed forces.
See Charge Sheet; see also AE LVIII at 2.
Specification 1 of Charge II
(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq,
between on or about 1 November 2009 and on or about 27 May 2010, cause to be published on
the internet intelligence belonging to the United States government;
(2) That the accused did so wrongfully and wantonly;
(3) That the accused had knowledge that intelligence published on the internet is
accessible to the enemy; and
(4) That, under the circumstances, the conduct of the accused was to the prejudicial
to good order and discipline in the armed forces and of a nature to bring discredit upon the armed
forces.
See Charge Sheet; see also AE LX at 4.
LEGAL AUTHORITY AND ARGUMENT

The prosecution respectfully requests this Court deny the Defense Motion for Instructions
on Lesser Included Offense. An Article 92(1) offense, in violation of AR 380-5, is not an LIO of
the 18 U.S.C. § 793(e) offenses or of Specification 1 of Charge II for two reasons: first, the
alleged LIO (i.e., an Article 92(1) offense) requires elements not required for the alleged greater
offenses; and second, it is possible to prove the alleged greater offenses without first proving the
alleged LIO.
Article 79, UCMJ, states that "[a]n accused may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit either the offense charged or an
offense necessarily included therein." Article 79, UCMJ. Military courts adopt the "elements
test to determine whether one offense is an LIO of another." United States v. Arriaga, 70 M.J.
51, 54 (C.A.A.F. 2011). This test requires the Court first to determine the elements of the
3

21603

charged offense and the alleged LIO by applying the principles of statutory construction, and
second to "compare the elements of the two offenses to see if the latter is a subset of the former."
United States v. Bonner, 70 M.J. 1, 2 (C.A.A.F. 2011); see also Arriaga, 70 M.J. at 54 (finding
that the court may consider the statutory elements or the elements as charged); see also United
States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010) (stating that the offenses need not "employ
identical statutory language,"' but "[i]nstead the meaning of the offenses is ascertained by
applying the 'normal principles of statutory construction"').
Under the elements test, "if all of the elements of [the lesser offense] are also elements of
[the greater offense], then [the lesser offense] is an [LIO] of [the greater offense]." United States
v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). Put another way, if it is impossible to prove the
greater offense without also proving the lesser offense, an LIO instruction is proper. See
Arriaga, 70 M.J. at 55; see also Schmuck v. United States, 489 U.S. 705, 719 (1989) ("[T]o be
necessarily included in the greater offense the lesser must be such that it is impossible to commit
the greater without first having committed the lesser"). However, "[w]here the lesser offense
requires an element not required for the greater offense, no instruction is to be given under
[Article 79, UCMJ])." Jones, 68 M.J. at 470 ((citing Schmuck, 489 U.S. at 719 (discussing Fed.
R. Crim. P. 31(c) "whose language at that time," CAAF concluded, "was almost identical to
Article 79, UCMJ")).
In Arriaga, the appellant was charged with burglary and the military judge, sua sponte,
provided an LIO instruction for housebreaking. The intent element of burglary, as charged,
required the intent to commit an offense under Article 120, UCMJ, which also satisfied the intent
element of housebreaking. On appeal, the CAAF affirmed with the following reasoning:
While in another case it may be possible to prove a housebreaking
offense by proving the intent to commit a criminal offense not
designated in the third element of burglary, that is not the offense
charged in this case. The offense as charged included all of the
elements of housebreaking and all of those elements are also
elements of burglary. Housebreaking is therefore a lesser included
offense of burglary.
Id., at 55. Here, the alleged LIO (i.e., an Article 92(1) offense) contains elements not required
for the 18 U.S.C. § 793(e) offenses or for Specification 1 of Charge II, either by statute or as
written- specifically the existence of AR 380-5 and the accused's duty to obey it. Further, it is
possible to prove the 18 U.S.C. § 793(e) offenses and Specification 1 of Charge II, either by
statute or as written, without also proving an Article 92(1) offense. Thus, an Article 92(1)
offense is not an LIO of the 18 U.S.C. § 793(e) offenses or of Specification 1 of Charge II.
I:

AN ARTICLE 92(1) OFFENSE, IN VIOLATION OF ARMY
REGULATION 380-5, IS NOT A LESSER-INCLUDED OFFENSE OF THE
18 U.S.C. § 793(e) OFFENSES.

The elements test requires the Court first to determine the elements of the 18 U.S.C. §
793( e) offenses and the alleged LIO by applying the principles of statutory construction, and
4

21604

second to "compare the elements of the two offenses to see if the latter is a subset of the former."
Bonner, 70 M.J. at 2. The prosecution requests this Court adopt the above elements for the
specifications charging misconduct in violation of 18 U.S.C. § 793(e).
The proposed elements of an alleged Article 92(1) offense are as follows:
(1) That there was in effect a certain lawful general order or regulation in the
following terms: Paragraphs 1-21 and 6-1, Army Regulation 380-5, dated 29 September 2000;
(2) That the accused had a duty to obey such regulation; and
(3) That on divers occasions between on or about [varying date ranges], at or near
Contingency Operating Station Hammer, Iraq, the accused violated this lawful general regulation
by knowingly, willfully, or negligently disclosing classified or sensitive information to
unauthorized persons.
The elements of an Article 92(1) offense are not a subset of the elements of the 18 U.S.C.
§ 793(e) offenses, either by statute or as written. An Article 92(1) offense requires elements not
required for the 18 U.S.C. § 793(e) offenses, either by statute or as written. See Jones, 68 M.J. at
470 ("Where the lesser offense requires an element not required for the greater offense, no [LIO]
instruction is to be given"). The first and second elements of an Article 92(1) offense (i.e., that
AR 380-5 was in existence and that the accused had a duty to obey it) are not elements of the 18
U.S.C. § 793(e) offenses, either by statute or as written. Further, it is possible to prove the 18
U.S.C. § 793(e) offenses, either by statute or as written, without also proving an Article 92(1)
offense. See Arriaga, 70 M.J. at 55 (stating that there should not be an LIO instruction where it
is possible to prove the greater offense without also proving the lesser offense).
The defense argues that the first and second elements of an Article 92(1) offense are
necessarily included in elements of the 18 U.S.C. § 793(e) offenses, specifically that the
accused's had unauthorized possession of information, and that the conduct was prejudicial to
good order and discipline and of a nature to bring discredit upon the armed forces (hereinafter,
"clauses 1 and 2"). See Def. Mot. at 19, 21. The defense argues the third element of an Article
92(1) offense is necessarily included in the fourth element of the 18 U.S.C. § 793(e) offenses.
See Def. Mot. at 20. The prosecution responds to each defense argument in turn.
The first and second elements of an Article 92(1) offense (i.e., that AR 380-5 was in
existence and that the accused had a duty to obey it) are not necessarily included in the element
of unauthorized possession, either by statute or as written. The defense reasons that "any
'unauthorized possession of information' relating to the national defense must necessarily
implicate the duties imposed by AR 380-5." Def. Mot. at 19. The Soldier may have an
obligation to safeguard that information under AR 380-5; however, proof that AR 380-5 was in
effect and that the Soldier had a duty to obey it is not necessary to satisfy the element of
unauthorized possession, either by statute or as written. The Government may prove
unauthorized possession by means other than AR 380-5. See Arriaga, 70 M.J. at 55 (stating that
there should not be an LIO instruction where it is possible to prove greater offense without also
proving lesser offense). Thus, the first and second elements of an Article 92(1) offense are not
5

21605

necessarily included in the element of unauthorized possession under the 18 U.S.C. § 793(e)
offenses, either by statute or as written.
The first and second elements of an Article 92(1) offense are not necessarily included
in
.
I
clauses 1 and 2 of the 18 U.S.C. § 793(e) offenses, as written. The defense argues the charged
misconduct necessarily includes a violation of AR 380-5 to s�tisfy clauses 1 and 2. See Def.
Mot. at 21. Again, while the Manual for Courts-Martial contemplates that "[a] breach of a
custom of the service may result in a violation of clause 1 of Article 134," the prosecution is not
limited to AR 380-5 in proving the elements of clauses 1 and 2. See MCM, Part VI, The prosecution is at liberty to present other circumstances that satisfy these elements. It is
possible to prove clauses 1 and 2 without the use of AR 380-5. See Arriaga, 70 M.J. at 55
(stating that there should not be an LIO instruction where it is possible to prove greater offense
without also proving lesser offense). Thus, the first and second elements of an Article 92(1)
offense are not necessarily included in any element of the 18 U.S.C. § 793(e) offenses, either by
statute or as written.
The third element of an Article 92(1) offense is not necessarily included in the fourth
element of Specifications 2 and 11 of Charge II, either by statute or as written. The elements of
Specifications 2 and 11 of Charge II, as written, do not require the prosecution to prove the
information was classified or sensitive, as defined under AR 380-5. See Jones, 68 M.J. at 470
("Where the lesser offense requires an element not required for the greater offense, no [LIO]
instruction is to be given"). AR 380-5 governs the safeguarding of classified or sensitive
information, not national defense information. National defense information for an 18 U.S.C. §
793 offense is information that is (1) "closely held by the government. .. [and (2)] potentially
damaging to the United States or useful to an enemy of the United States if disclosed without
authorization." United States v. Rosen, 599 F.Supp.2d 690, 695 (E.D. Va. 2009) (ruling that
"evidence that information is classified does not, by itself, establish that the information is
national defense information; evidence that information is classified is, at most, evidence that the
government intended that the designated information be closely held"). Thus, the third element
of an Article 92(1) offense is not necessarily included in the fourth element of Specifications 2
and 11 of Charge II, either by statute or as written.
Accordingly, an Article 92(1) offense, in violation of AR 380-5, is not an LIO of the 18
U.S.C. § 793(e) offenses.
II:

AN ARTICLE 92(1) OFFENSE, IN VIOLATION OF ARMY
REGULATION 380-5, IS NOT A LESSER INCLUDED OFFENSE OF
SPECIFICATION 1 OF CHARGE II.

The elements test requires the Court first to determine the elements of Specification 1 of
Charge II and the alleged LIO by applying the principles of statutory construction, and second to
"compare the elements of the two offenses to see if the latter is a subset of the former." Bonner,
70 M.J. at 2. The prosecution requests this Court adopt the above elements for Specification 1 of
Charge II. The proposed elements of an alleged Article 92(1) offense in violation of AR 380-5
are listed above. See supra Section I.
1

Clauses I and 2 are not statutory elements of I 8 U.S.C. § 793(e).

6

21606

The elements of an Article 92(1) offense are not a subset of the elements of Specification
1 of Charge II, either by statute or as written. An Article 92(1) offense requires elements not
required for an Article 134 offense or under Specification 1 of Charge II, as written. See Jones,
68 M.J. at 470 ("Where the lesser offense requires an element not required for the greater
offense, no [LIO] instruction is to be given"). The first and second elements of an Article 92(1)
offense (i.e., that AR 380-5 was in existence and that the accused had a duty to obey it) are not
elements of an Article 134 offense or under Specification 1 of Charge II, as written. Further, it is
possible to prove an Article 134 offense and Specification 1 of Charge II without also proving an
Article 92(1) offense. See Arriaga, 70 M.J. at 55 (stating that there should not be an LIO
instruction where it is possible to prove greater offense without also proving lesser offense).
The defense argues the first and second elements of an Article 92(1) offense in violation
of AR 380-5 (i.e., the existence of AR 380-5 and the accused's duty to obey it) are necessarily
included in clauses 1 and 2 of an Article 134 offense or under Specification 1 of Charge II, as
written. The defense argues that the third element of an Article 92(1) offense (i.e., that the
accused violated AR 380-5 by knowingly, willfully, or negligently disclosing classified or
sensitive information to unauthorized persons) is necessarily included in the first, second, and
third elements of Specification 1 of Charge II, as written (i.e., that the accused wrongfully and
wantonly cause to be published on the internet intelligence belonging to the United States
government, knowing that intelligence published on the internet is accessible to the enemy). The
prosecution responds to each defense argument in turn.
The first and second elements of an Article 92(1) offense (i.e., the existence of AR 380-5
and the accused's duty to obey it) are not necessarily included in clauses 1 and 2 of an Article
134 offense or under Specification 1 of Charge II, as written. As explained above, it is possible
to prove clauses 1 and 2 without the use of AR 380-5. See supra Section I; see also Arriaga, 70
M.J. at 55 (stating that there should not be an LIO instruction where it is possible to prove
greater offense without also proving lesser offense). The first and second elements of an Article
92(1) offense are not necessarily included in any element of an Article 134 offense or under
Specification 1 of Charge II, as written.
The third element of an Article 92(1) offense (i.e., that the accused violated AR 380-5 by
knowingly, willfully, or negligently disclosing classified or sensitive information to unauthorized
persons) is not necessarily included in the first, second, and third elements of Specification 1 of
Charge II, as written (i.e., that the accused wrongfully and wantonly cause to be published on the
internet intelligence belonging to the United States government, knowing that intelligence
published on the internet is accessible to the enemy). The prosecution recognizes that
"intelligence encompasses more than classified and sensitive information." AE LXXX at 2.
However, Specification 1 of Charge II, as written, does not require the prosecution to prove the
intelligence was classified or sensitive under AR 380-5- an element required for an Article
92(1) offense in violation of AR 380-5. See Jones, 68 M.J. at 470 ("Where the lesser offense
requires an element not required for the greater offense, no [LIO] instruction is to be given").
Proving information may be useful to the enemy for any of the many reasons that make
information valuable to belligerents and that it is true or implies the truth, at least in part, may be
accomplished without the use of AR 380-5. See Arriaga, 70 M.J. at 55 (stating that there should
7

21607

not be an LIO instruction where it is possible to prove greater offense without also proving lesser
offense). Thus, the third element of an Article 92(1) offense is not necessarily included in the
first, second, and third elements of Specification 1 of Charge II, as written.
CONCLUSION

The prosecution respectfully requests this Court deny the Defense Motion for Instructions
on Lesser Included Offense. An Article 92(1) offense, in violation of AR 380-5, is not an LIO of
the 18 U.S.C. § 793(e) offenses or of Specification 1 of Charge II for two reasons: first, the
alleged LIO (i.e., an Article 92(1) offense) requires elements not required for the alleged greater
offenses; and second, it is possible to prove the alleged greater offenses without first proving the
alleged LIO.

sJjiYT

E
CPT, JA
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 24 May 2012.

�HY:

CPT, JA
Assistant Trial Counsel

8

21608

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

)
)
)
)
)
)
)
)
)
)

DEFENSE REPLY TO
GOVERNMENT RESPONSE TO
DEFENSE MOTION FOR
INSTRUCTIONS ON LESSER
INCLUDED OFFENSE (LIO)
DATED: 29 May 2012

RELIEF SOUGHT
1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law, Article
79, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 879 (2010), and Rule for Courts
Martial (R.C.M.) 920(e)(2), requests this Court to instruct the members on the elements of
Article 92(1) for a violation of Army Regulation 380-5 (AR 380-5) as a lesser included offense
(LIO) of each of the offenses alleged in Specifications 1, 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II.
ARGUMENT
2. The arguments raised in the Government’s Response to Defense Motion for Instructions on
Lesser Included Offense (LIO) [hereinafter Government’s Response] can be easily cabined into
one or more of the following categories: nonresponsive to the Defense arguments, without merit,
incomplete, or inconsistent with established case law. Upon close inspection, none of the
Government’s arguments as to why Article 92(1) is not a LIO of the 18 U.S.C. Section 793(e)
offenses or why Article 92(1) is not a LIO of the clause 1 and 2 Article 134 offense are correct.
Accordingly, this Court should, for the reasons stated herein and in the Defense Motion for
Instructions of Lesser Included Offense (LIO) [hereinafter Defense Motion], grant the relief
requested by the Defense.
A.

A Violation of Army Regulation 380-5, Chargeable Under Article 92(1), is a Lesser
Included Offense of Each Specification Charging PFC Manning with a Violation of
18 U.S.C. Section 793(e) and Article 134

3. In its Response, the Government disputes that any of the elements of an Article 92(1) offense,
charged as a violation of AR 380-5, are necessarily included in a violation of Section 793(e)
charged under clause 3 of Article 134.1 The Government’s contentions are incomplete,
1

This Reply uses the elements set out in the Defense Motion. For ease of reference, those elements are reproduced
in this footnote. For the Section 793(e) violations charged in Specifications 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II,
those elements are:

21609

foreclosed by clear precedent from the Court of Appeals for the Armed Forces, or both. All of
its arguments are without merit. Each is discussed in turn.
4. The Government first contends that the first and second elements of the Article 92(1) offense
(i.e. the existence of the lawful general regulation and the accused’s duty to obey it) are not
necessarily included in the first element of the Section 793(e) offense (i.e. unauthorized
possession of the information) because “[t]he Government may prove unauthorized possession
by means other than AR 380-5.” Government Response, at 5. For support the Government
offers the following citation and parenthetical: “See Arriaga, 70 M.J. at 55 (stating that there
should not be an LIO instruction where it is possible to prove greater offense without also
proving lesser offense).” Id. at 5.
5. While it may be true that the unauthorized possession element of Section 793(e) may, in some
cases, be proved by means other than AR 380-5, the Government’s response does not specify
how, as the offenses are charged in this case, this can be done. Any proper “elements test”
analysis must consider the elements of the offenses not only in the statutory abstract, but also as
those elements are charged in the specification. See United States v. Arriaga, 70 M.J. 51, 54
(C.A.A.F. 2011) (“[C]omparison of the statutory elements as charged in the specification is
allowed.” (emphasis supplied); id. at 55 (“Regardless of whether one looks strictly to the
statutory elements or to the elements as charged, housebreaking is a [LIO] of burglary . . . .
[T]he offense as charged in this case clearly alleges the elements of both offenses.” (emphases
supplied)); see also United States v. Nealy, 71 M.J. 73, 79 & n.1 (C.A.A.F. 2012) (Baker, C.J.,
concurring in the result) (explaining that, under Arriaga, the specification itself may provide
(1) The accused, at or near Contingency Operating Station Hammer, Iraq, between on or about
[varying date ranges], had unauthorized possession of information;
(2) The information was relating to the national defense, to wit: [the named information];
(3) The accused knew or had reason to believe that the information could be used to the injury of
the United States or to the advantage of any foreign nation;
(4) The accused willfully communicated, delivered, or transmitted, or caused to be
communicated, delivered, or transmitted the information to a person not entitled to receive it; and
(5) Under the circumstances, the conduct of the accused was to the prejudice of good order and
discipline in the armed forces and of a nature to bring discredit upon the armed forces.
Defense Motion, at 4-5. The elements of an Article 92(1) offense for a violation of AR 380-5 are:
(1) There was in effect a certain lawful general order or regulation in the following terms:
Paragraphs 1-21 and 6-1, Army Regulation 380-5, dated 29 September 2000;
(2) The accused had a duty to obey this regulation; and
(3) That on divers occasions between on or about [varying date ranges], at or near Contingency
Operating Station Hammer, Iraq, the accused violated this lawful general regulation by knowingly,
willfully, or negligently disclosing classified or sensitive information to unauthorized persons.
Id. at 5.

2

21610

notice to an accused of the LIOs of the charged offense(s)); United States v. Alston, 69 M.J. 214,
216 (C.A.A.F. 2010) (examining the elements as charged in the specification when conducting
an elements test analysis). Indeed, Alston makes clear that the mere fact that the greater offense
could, in some other case, be proved without necessarily including the lesser offense does not
preclude the lesser offense from being a LIO where the greater offense, as charged in the
particular specification at issue, demonstrates that the lesser offense is in fact included in the
greater offense.
6. In Alston, the accused was charged with rape by force under Article 120(a)(1). 69 M.J. at
215. Article 120(t)(5) provides three different methods by which the force element of rape by
force can be established:
The term “force” means action to compel submission of another or to overcome
or prevent another’s resistance by -(A) the use or display of a dangerous weapon or object;
(B) the suggestion of possession of a dangerous weapon or object that is used in a
manner to cause another to believe it is a dangerous weapon or object; or
(C) physical violence, strength, power, or restraint applied to another person,
sufficient that the other person could not avoid or escape the sexual conduct.
10 U.S.C. § 920(t)(5). However, the facts alleged in the charge in Alston indicated that only one
of those methods – Article 120(t)(5)(C) – was implicated in that particular case:
[T]he charge at issue alleged that [the accused] caused Private E–2 (PV2) T, a
fellow soldier, to “engage in a sexual act, to wit: penetration of her vagina with
his fingers by using power or strength or restraint applied to her person sufficient
that she could not avoid or escape the sexual conduct.”
69 M.J. at 215. The military judge instructed the members on the elements of rape by force and
on the elements of the purported LIO of aggravated sexual assault under Article 120(c)(1)(B),
which required causing bodily harm. Id.
7. The Court of Appeals for the Armed Forces found that aggravated sexual assault under
Article 120(c)(1)(B) was a LIO of rape by force under Article 120(a)(1) based on the facts
alleged in the charge. Id. at 216. In comparing the elements of the two offenses, the Alston
Court helpfully explained:
The second element of aggravated sexual assault – “causing bodily harm” under
Article 120(c)(1)(B) – means “any offensive touching of another, however slight.”
Article 120(t)(8). The parallel element in the offense of rape as charged in the
present case – using “force” under Article 120(a)(1) – means “action to compel
submission of another or to overcome or prevent another’s resistance by . . .
physical violence, strength, power, or restraint applied to another person,
3

21611

sufficient that the other person could not avoid or escape the sexual conduct.”
Article 120(t)(5)(C).
Id. (emphasis supplied). The Court’s conclusion that aggravated sexual assault was, based on the
charged conduct, a LIO of rape by force was unaffected by the fact that the force element of rape
could have been proven, in some other case, through the different methods provided in Article
120(t)(5)(A)-(B):
The bodily harm element of aggravated sexual assault under Article 120(c) –
defined in Article 120(t)(8) to include an offensive touching, however slight – is a
subset of the force element in the offense of rape under Article 120(a), as defined
in Article 120(t)(5)(C). We note that the definitions of force in Article
120(t)(5)(A) and Article 120(t)(5)(B), which do not require an offensive touching,
are not at issue in the present case.
Id. (emphasis supplied).
8. Thus, Alston clearly demonstrates why the Government’s conclusory and vague assertion that
“[t]he Government may prove unauthorized possession by means other than AR 380-5[,]”
Government Response, at 5, even if true in some abstract sense, is nonresponsive to the
appropriate inquiry of whether the first two elements of the Article 92(1) offense are included in
the first element of the Section 793(e) offense as that offense is charged in the specification. If
the Government’s theory (i.e. if there is a way to prove a particular element of the greater offense
without including the relevant element of the purported LIO, then the purported LIO is not an
LIO) were correct, Alston would have been decided differently: The fact that the force element
of rape by force could be proved three different ways, see Article 120(t)(5)(A)-(C), and that only
one of those ways included an offensive touching, would have precluded the finding of the Court
of Appeals for the Armed Forces that sexual aggravated assault was, based on the charged
conduct, a LIO of rape by force, see Alston, 69 M.J. at 216.
9. Far from providing support for the Government’s theory, Alston unmistakably rejects it. The
fact that the greater offense in the general, abstract sense (i.e. divorced from the language of the
specification) allows the Government to prove the greater offense without also proving the lesser
offense does not preclude the lesser offense from being a LIO of the greater offense where, as
here, the greater offense, as charged in the specification, will require the Government to establish
the elements of the lesser offense. In such a case, the lesser offense is properly determined to be
a LIO of the greater offense. See Alston, 69 M.J. at 216; see also Nealy, 71 M.J. at 79 & n.1
(Baker, C.J., concurring in the result); Arriaga, 70 M.J. at 54-55.
10. Arriaga, notwithstanding the Government’s citation to it, does not change this analysis. The
Arriaga Court explained that:
Regardless of whether one looks strictly to the statutory elements or to the
elements as charged, housebreaking is a lesser included offense of burglary.
Comparing the statutory elements, it is impossible to prove a burglary without

4

21612

also proving a housebreaking. Furthermore, the offense as charged in this case
clearly alleges the elements of both offenses.
70 M.J. at 55. The Government represents that Arriaga “stat[es] that there should not be an LIO
instruction where it is possible to prove [the] greater offense without also proving [the] lesser
offense.” Government Response, at 5. First of all, nowhere in the above quoted passage or the
rest of the Arriaga opinion does the Court make any statement to this effect. See Arriaga, 70
M.J. at 54-55. Additionally, as demonstrated above, the Government has confused possibility in
the general or abstract sense (which is not determinative in the LIO inquiry) with possibility
under the facts alleged in the specification. Arriaga provides no support for the Government’s
erroneous position that because of the mere fact that the greater offense can, in some other
prosecution or in some general sense, be proved without proving the elements of the lesser
offense, the lesser offense is not a LIO. Alston is directly contrary to this position, and Arriaga
did not modify Alston in this regard.
11. Returning to the proper inquiry, the Government has in no way indicated how it can prove
the element of unauthorized possession of the information charged in Specifications 2, 3, 5, 7, 9,
10, 11 and 15 of Charge II without also establishing the existence of the accused’s duty to obey
the regulation on handling classified and sensitive information. That is not surprising, for the
Government would be hard pressed to accomplish such a feat. As was stated in the Defense
Motion, any “unauthorized possession of information” relating to the national defense must
necessarily implicate the duties imposed by AR 380-5. Accordingly, the duty to obey the
regulation on handling classified and sensitive information imposed by AR 380-5 (the first two
elements of the Article 92(1) offense) is a subset of the unauthorized possession of each charged
Section 793(e) violation (the first element of the Section 793(e) offense). Therefore, the first two
elements of the Article 92(1) offense are necessarily included in the first element of the Section
793(e) offense.
12. The Government next contends that the first two elements of the Article 92(1) offense are
not necessarily included in the fifth element of the Section 793(e) offense (i.e. the clause 1 and 2
of Article 134 element) because “[i]t is possible to prove clauses 1 and 2 without the use of AR
380-5.” Government Response, at 6.
13. Much like the Government argument discussed above, this cryptic and vague sentence
provides no indication of how the Government can prove clauses 1 and 2 of Article 134, based
on the specifications in this case, without establishing the existence of an accused’s duty to obey
AR 380-5. For one thing, to the extent the Government is asserting that the first two elements of
the Article 92(1) offense are not necessarily included in the fifth element of the Section 793(e)
offense because it is possible, in some general and abstract sense, to prove clauses 1 and 2
without the use of AR 380-5, that argument is meritless in light of Alston. See Alston, 69 M.J. at
216 (rejecting the notion that the fact that there is some way to prove the greater offense without
proving the lesser offense, the lesser offense cannot be a LIO of the greater offense, regardless of
the language of the specification in any particular case); see also supra. The Government’s
inaccurate citation to Arriaga does not support its position. See supra.

5

21613

14. For another thing, the Government has offered no indication of how it could prove that the
conduct alleged in this specification constitutes a violation of clause 1 and 2 without necessarily
establishing a violation of AR 380-5. As was stated in the Defense Motion, the conduct that the
Government alleges was to the prejudice of good order and discipline in the armed forces and of
a nature to bring discredit upon the armed forces – a Section 793(e) violation – for the fifth
element of the Section 793(e) offense necessarily included a breach of a custom of the service
now set forth in a punitive regulation – AR 380-5. As the violation of the regulation is
necessarily included in the conduct underlying the Section 793(e) violation, the duty to obey the
regulation is also included in that conduct. Accordingly, the first two elements of the Article
92(1) offense are also necessarily included in the fifth element of the Section 793(e) offense, as
the Government has charged that offense in this case. The Government has offered no real
response to this Defense argument.
15. Finally, the Government argues that the third element of the Article 92(1) offense (i.e. the
accused knowingly, willfully, or negligently disclosed classified or sensitive information to
unauthorized persons) is not necessarily included in the fourth element of the Section 793(e)
offense (i.e. the accused willfully communicated, delivered, or transmitted, or caused to be
communicated, delivered, or transmitted the information to a person not entitled to receive it), at
least with respect to Specifications 2 and 11 of Charge II. See Government Motion, at 6. The
Government reasons that this is because “Specifications 2 and 11 of Charge II, as written, do not
require the prosecution to prove the information was classified or sensitive, as defined under AR
380-5.” Id.
16. At the outset, with respect to this element of the Article 92(1) offense, the Government only
challenges whether “sensitive or classified information” is necessarily included in the “national
defense information” specified in Specifications 2 and 11 of Charge II. The Government does
not dispute that the third element of the Article 92(1) offense is necessarily included in
Specifications 3, 5, 7, 9, 10 and 15 of Charge II, as these specifications expressly allege that the
information is “classified.” See Charge Sheet.
17. Specifications 2 and 11 of Charge II require the Government to prove that the information is
“relating to the national defense.” Id. If the Government is able to prove that the information is
relating to the national defense, it will necessarily establish that the information is “sensitive”
under AR 380-5. Thus, the Government’s only objection to the Defense position that the third
element of the Article 92(1) offense is necessarily included in the fourth element of the Section
793(e) offense – namely, that proving that the information is national defense information will
not establish that the information is classified or sensitive under AR 380-5 – is without merit.
18. In its Response, the Government proposes the following definition of national defense
information: “National defense information for an 18 U.S.C. § 793 offense is information that is
(1) ‘closely held by the government . . . [and (2)] potentially damaging to the United States or
useful to an enemy of the United States if disclosed without authorization.’” Government
Response, at 6 (quoting United States v. Rosen, 599 F. Supp. 2d 690, 695 (E.D. Va. 2009)).
Therefore, by its own admission, the Government will need to prove that the information in
Specifications 2 and 11 of Charge II is “potentially damaging to the United States or useful to an

6

21614

enemy of the United States if disclosed without authorization.” Id. AR 380-5 defines “sensitive
information” as:
Any information, the loss, misuse, or unauthorized access to or modification of
which could adversely affect the national interest or the conduct of federal
programs, or the privacy to which individuals are entitled under section 552a of
Title 5, USC (the Privacy Act), but which has not been specifically authorized
under criteria established by an Executive Order or an Act of Congress to be kept
secret in the interest of national defense or foreign policy.
AR 380-5, para. 5-19a; see Government Response, at 1-2 (containing this definition). Thus, if
the Government is able to prove that the information in Specifications 2 and 11 of Charge II is
national defense information (i.e. that it is “potentially damaging to the United States or useful to
an enemy of the United States if disclosed without authorization”) it will, of necessity, establish
that the information is also sensitive information under AR 380-5 (i.e. that it is “information, the
loss, misuse, or unauthorized access to or modification of which could adversely affect the
national interest or the conduct of federal programs”). The fact that the definition of sensitive
information is broad enough to include information that is not national defense information is
irrelevant to the LIO inquiry. See Arriaga, 70 M.J. at 55 (“The fact that there may be an
‘alternative means of satisfying an element in a lesser offense does not preclude it from being a
lesser-included offense.’” (quoting United States v. McCullough, 348 F.3d 620, 626 (7th Cir.
2003))). As the Government has defined “national defense information” and as AR 380-5
defines “sensitive information,” if information is national defense information it is, by necessity,
sensitive information. Thus, for this reason and the reasons articulated in the Defense Motion,
the third element of the Article 92(1) offense is necessarily included in the fourth element of the
Section 793(e) offense.
19. At the end of the day, the elements test is the approach used to determine whether one
offense is a “subset” of another. See Schmuck v. United States, 489 U.S. 705, 716 (1989); United
States v. Bonner, 70 M.J. 1, 2 (C.A.A.F. 2011). Because every element of the Article 92(1)
offense is necessarily included in one or more elements of the Section 793(e) offense, as charged
under clause 3 of Article 134, the Article 92(1) offense is a subset of the Section 793(e) offense.
Every violation of Section 793(e) perpetrated by a member of the Army must, of necessity,
include a violation of AR 380-5. It is impossible for a member of the Army to violate Section
793(e) in the manner alleged by the Government, see Arriaga, 70 M.J. at 54-55, without also
violating AR 380-5. See Schmuck, 489 U.S. at 719 (explaining that when it is impossible to
commit the greater offense without also committing the lesser offense, the lesser offense is a
LIO); Arriaga, 70 M.J. at 55 (similar); see also United States v. Baba, 21 M.J. 76, 78 (C.M.A.
1985) (Cox, J., concurring in the result) (“The elements of an offense under Article 92, Uniform
Code of Military Justice, 10 U.S.C. § 892 . . . are necessarily included in the elements of an
offense under Article 134, UCMJ, 10 U.S.C. § 934, and 18 U.S.C. § 793(d).”).
20. Therefore, for these reasons and for the reasons stated in the Defense Motion, an Article
92(1) offense stating a violation of AR 380-5 is a LIO for each Section 793(e) offense alleged by
the Government.

7

21615

B.

A Violation of Army Regulation 380-5, Chargeable Under Article 92(1), is a Lesser
Included Offense of Specification 1 of Charge II

21. In its Response, the Government disputes that any of the elements of an Article 92(1)
offense, charged as a violation of AR 380-5, are necessarily included in the clause 1 and 2
Article 134 offense charged in Specification 1 of Charge II.2 Much like its arguments with
respect to the Article 92(1) LIO for the Section 793(e) offenses, see Part A, supra, the
Government’s arguments with respect to the Article 92(1) LIO for the clause 1 and 2 Article 134
offense are incomplete, inconsistent with clear case law, or both. Each argument is discussed in
turn.
22. The Government first argues that the first two elements of the Article 92(1) offense (i.e. the
existence of the lawful general regulation and the accused’s duty to obey it) are not necessarily
included in the second element of the clause 1 and 2 Article 134 offense (i.e. that the conduct of
the accused was to the prejudice of good order and discipline in the armed forces and of a nature
to bring discredit upon the armed forces) because “it is possible to prove clauses 1 and 2 without
the use of AR 380-5.” Government Response, at 8.
23. This remarkably cryptic and conclusory argument is, for the reasons stated above, entirely
meritless. See Part A, supra. Namely, to the extent the Government is arguing that the first two
elements of the Article 92(1) offense are not necessarily included in the second element of the
clause 1 and 2 Article 134 offense because it is possible, in some general and abstract sense, to
prove clauses 1 and 2 without the use of AR 380-5, that argument is meritless in light of Alston.
See Alston, 69 M.J. at 216. The Government’s citation to Arriaga does not somehow do away
with this indisputable fact. In addition, the Government has offered no indication of how it could
prove that the conduct alleged in this specification constitutes a violation of clause 1 and 2
without necessarily establishing a violation of AR 380-5. The Government has thus offered no
real rebuttal to the Defense argument that the conduct that is allegedly prejudicial to good order
and discipline and service discrediting – wrongfully and wantonly causing intelligence to be
published on the internet with the knowledge that intelligence published on the internet is
accessible to the enemy – necessarily includes the breach of a custom of the service now set forth
in a punitive regulation – AR 380-5. Accordingly, the Defense maintains that, the duty to obey
that regulation (the first and second elements of the Article 92(1) offense) is necessarily included
in the prejudicial and service discrediting conduct (the second element of the clause 1 and 2
Article 134 offense).
2

Like above, see note 1, supra, the elements of Specification 1 of Charge II outlined in the Defense Motion are used
in this Reply. Those elements are:
(1) The accused, 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 caused to be published
on the internet intelligence belonging to the United States, having knowledge that intelligence
published on the internet is accessible to the enemy; and
(2) Under the circumstances, the conduct of the accused was to the prejudice of good order and
discipline in the armed forces and of a nature to bring discredit upon the armed forces.
Defense Motion, at 8.

8

21616

24. The Government next asserts that the third element of the Article 92(1) offense (i.e. the
accused knowingly, willfully, or negligently disclosed classified or sensitive information to
unauthorized persons) is not necessarily included in the first element of the clause 1 and 2 Article
134 offense alleged in Specification 1 of Charge II (i.e. wrongfully and wantonly causing to be
published on the internet intelligence belonging to the United States, having knowledge that
intelligence published on the internet is accessible to the enemy) because “Specification 1 of
Charge II, as written, does not require the prosecution to prove the intelligence was classified or
sensitive under AR 380-5 – an element required for an Article 92(1) offense in violation of AR
380-5.” Government Response, at 8.
25. While the Government is not “required to prove” that the intelligence was classified or
sensitive in order to secure a conviction on Specification 1 of Charge II, the elements test does
not ask what the Government is “required to prove.” Rather, the elements test is used to
determine whether one offense is a “subset” of another. See Schmuck, 489 U.S. at 716; Bonner,
70 M.J. at 2. A comparison of the definitions of “intelligence” and “sensitive information”
demonstrates that if the Government is able to prove that the information in Specification 1 of
Charge II is “intelligence,” it will necessarily establish that the information is “sensitive
information” under AR 380-5. Thus, because information that is “intelligence” is necessarily
“sensitive information” under AR 380-5, the third element of the Article 92(1) offense is a subset
of the first element of the clause 1 and 2 Article 134 offense charged in Specification 1 of Charge
II.
26. If the information is intelligence, it means that it “may be useful to the enemy for any of the
many reasons that make information valuable to belligerents.” Appellate Exhibit LXXX, at 2;
see Government Response, at 8. If the information is useful to the enemy, it is certainly
“information, the loss, misuse, or unauthorized access to or modification of which could
adversely affect the national interest,” AR 380-5, and is thus sensitive information under AR
380-5. The fact that the definition of sensitive information is broad enough to include
information that is not “intelligence” is irrelevant to the LIO inquiry. See Arriaga, 70 M.J. at 55
(“The fact that there may be an ‘alternative means of satisfying an element in a lesser offense
does not preclude it from being a lesser-included offense.’” (quoting McCullough, 348 F.3d at
626)). Therefore, for this reason and the reasons stated in the Defense Motion, the third element
of the Article 92(1) offense is necessarily included in the first element of the clause 1 and 2
Article 134 offense charged in Specification 1 of Charge II.
27. In sum, because each of the elements of the Article 92(1) offense is necessarily included in
one or more of the elements of the clause 1 and 2 Article 134 offense, the Article 92(1) offense is
a subset of the charged Article 134 offense. It is impossible for a member of the Army to violate
Article 134 in the manner alleged by the Government, see Arriaga, 70 M.J. at 54-55, without
also violating AR 380-5. See Schmuck, 489 U.S. at 719; Arriaga, 70 M.J. at 55; see also Baba,
21 M.J. at 78 (Cox, J., concurring in the result). Therefore, the Article 92(1) offense, charged as
a violation of AR 380-5 is a LIO of the clause 1 and 2 Article 134 offense charged in
Specification 1 of Charge II.

9

21617

CONCLUSION
28. For the reasons articulated above and in the original motion submitted by the Defense, the
Defense requests that this Court instruct the members on the elements of the Article 92(1) LIO of
each offense alleged in Specifications 1, 2, 3, 5, 7, 9, 10, 11 and 15 of Charge II.
Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

10

21618

INTHEUNITEDSTATESARMY
FIRST JUDICIAL CIRCUIT

UNITEDSTATES
DEFENSEMOTIONTO
RE^UIRENONEXPARTE
FILING BY GOVERNMENT

V.

MANNING, Brad1eyE,PFC
U.S Army, (b) (6)
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
FortMyer, VA 22211

22May2012

RELIEFSOUGHT
1. In accordance with the Rules for Courts Martial (RCM) 905,Military Rule ofEvidence
(MRE) 505,Manual forCourtsMartial (MCM), United States,2008;andtheFifthandSixth
Amendments to the United States Constitution, the Defense respectfully requests that the Court
require the Govemment to fileanon^^^^^^^ version ofits motion for substitutions under MRE
505(g)(2) IAWMRE505(i)(4)(A)

BURDEN OF PERSUASION AND BURDEN OF PROOF
2. As the moving party,the Defense has the burden of persuasion. RCM 905(c)(2)(A). The
burden of proofis byapreponderanceofthe evidence. RCM 905(c)(1).

EVIDENCE
3. The Defense does not request any witnesses be produced for this motion. The Defense
requests that the Court consider the following:
a) Govemment Disclosure to the Court dated18May 2012; and
b) Defenseemail request dated21May 2012, Court'srequest for the filing ofamotion
dated 22 May 2012, and Defense'sacknowledgement dated 22 May 2012. (Attachment).

FACTS
4. On 18 May 2012, the Govemment filed an in camera motion for substitutions under MRE
505(g)(2). On 21 May 2012, the Defense requested by e-mail that the Court order the

APPELLATE EXHIBIT CL V I
Page
of Page(s)

21619

Govemmenttofileanon^^^^^^^ version ofits motion. On 22 May 2012, the Court requested
the Defense to fileawritten motion in support ofits request.

ARGUMENT
5. MRE 505(g)(2) permits the militaryjudge to authorize the limited disclosure ofclassified
information following an ^^^c^^^^^review,unless the military judge determines that the
classified information itselfis necessary to enable the accused to prepare for triaL Z^.;.^^^^^.^^
^^^^^^^^^^^.^^.^^^^^^^^,31ML 8 4 9 ( N M C M R 1990),aff'd35MJ 396(CM.A.l^^^
Limited disclosure and substitutes include:
a) Deletion ofspecific items ofclassified information ftom documents to be made available to
an accused;
b) Substitutionofaportion or summary of the information for such documents;
c) Substitutionofastatement admitting relevant facts;
All ofthese are permitted unless thejudge determines that the classified information itselfis
necessary to enable the accused to prepare fortrial.
MRE 505(g)(2).
6. As discussed in/^^^^^^^^,arequest for an ^^c^^^^^ review for substitutions under MRE
505(g)(2) is controlled by the procedures outlined in MRE 505(i). .^^^^^^^^,31M.J.at 857. As
in the instant case, the govemment in/.^^^^^^^ sought to limit or prevent disclosure ofclassified
information under MRE 505(g)(2). The Court stated:
Germane to this appeal are the subdivisions that authorizeamilitary judge to
limit or prevent disclosure to an accused of classified information.
Mil.R.Evid. 505(g)(2) is applicable when the Government needs to limit or
prevent disclosure.
(2) ^^^^^^^ .^^.^c^^.^^^^ The militaryjudge, upon motion of the
Govemment, shall authorized[sic] (A) the deletion of specified items
of classified information ftom documents to be made available to the
defendant, (B) the substitution of a portion or summary of the
information for such classified documents, or(C) the substitution ofa
statement admitting relevant facts that the classified information
would tend to prove, unless the military judge determines that
disclosureof theclassifiedinformationitselfisnecessarytoenable
the accusedtopreparefor trial.The Govemment'smotion and any
materials submitted in support thereof shall, upon request of the
Govemment, be considered by the military judge in camera and shall
not be disclosed to the accused.
In makingamotion to prevent or limit disclosure of classified information,

21620

"the Govemment shall submit the classified information for examination
only by the military judge and shall demonstrate by affidavit that disclosure
of the information reasonably could be expected to cause damage to the
nationalsecurity inthedegreerequiredto warrantclassificationunderthe
applicable executive order, statute, or regulation." Mil.R.Evid. 505(i)(3).
Once the Govemment has met this standard,thenthe"military judge shall
determine whether the information may be disclosed at the court-martial
proceeding"MilREvid 505(i)(4)
at 856 7. Thus, as/^^^^^^^^ makes clear, ifthe Govemment is moving for an ^^^c^^^^^
review under MRE 505(g)(2), it must submit the classified evidence and an affidavit ^.:^^^^^^
demonstrating that disclosure ofthe information reasonably could be expected to cause damage
to the national security. Basedonthe Govemment'smotion, it does not appear that the
Govemment has submitted to the Court an affidavit demonstrating why the information
reasonably could be expected to cause damage to the national security.
7. Onceajudge determines that the Govemment has met the standard in MRE 505(i)(3), the
Govemment must provide notice to the accused ofthe information that will be at issue in the
c^^^^^ proceeding. MRE505(i)(4)(A)provides:
Upon finding that the Govemment has met the standard set forth in
subdivision (i)(3) with respect to some or allof the classified information at
issue, the military judge shall conduct an ^^^c^^^^^ proceeding. Prior to the
^^c^^^^^ proceeding, the Govemment shall provide the accused with notice
ofthe information that will be at issue.This notice shall identify the classified
information that will be at issue whenever that informationpreviously has
beenmade available to the accused inconnection withproceedings in the
same case. The Govemment may describe the information by generic
category, in such form as the military judge may approve, rather than
identifying the classified information when the Govemment has not
previously made the information available to the accused in connectionwith
pretrial proceedings.
8. The proceduresofMRE 505(i)(4)(A)envision the Govemment filinganon-^:^^^^^^ filing in
agenericform. The mle places within the control ofthe militaryjudge the form and substance
ofthis generic filing. The analysis to the MRE 505(i) states that the Govemment may describe
the information inageneric fashion, i^^^ Analysis ofMRE 505(i) at A22 41. However, the
generic description is subject to approval by the militaryjudge. Ifthe generic description by the
Govemment is not "sufficiently specific to enable the defense to proceed during the ^^^c^^^^^
session, the military judge may order the govemment to release the information for use during
the proceeding or face the sanctions under subdivision (i)(4)(E)."
9. The Defense cannot be expected to respond to the Govemment'smotion inavacuum. The
Govemment mustfileanon-^^^^^^^version ofits motion under MRE 505(i)(4)(A). This
version must be approved by the militaryjudge.
Additionally,the Govemment should be

21621

required to provide its proposed substitutions to enable the Defense to adequately proceed during
the ^^^c^^^^^ session. Analysis ofMRE 505(i) at A22 41.
10. Without this documentation, the Defense will be unable to adequately respond and proceed
within the ^^^c^^^^^ proceeding. Currently,the Defense has no idea what type of substitution
the Govemment is requesting. The Defense does not know if the Govemment is requestinga
total substitution or partial substitution to the document. Is the Govemment requesting that the
information within the damage assessments be rewritten to be more general'^ Is the Govemment
requesting that certain information within the damage assessments be eliminated or obscured^ Is
the Govemment requestingasummary be substituted for the information within the damage
assessments^ If so,what is the basis for the requested substitutions Additionally,the
Govemment states that the motion "outlines other equity holders outsideofmilitary authorities
that request certain redactions or summaries oftheir information." Is the request by "other
equity holders" in addition to the substitution under MRE 505(g)(2)or is this an assertion of
privilege under MRE 505(c)'^
11. In short, the Defense needs more information than it currently has in order to participate in
this aspect ofthe case. Accordingly,the Defense requests that the Court order the Goverrm^ent
to fileanon^^^^^^^ version ofits motion for substitutions IAWMRE 505(i)(4)(A). The
Defense requests that the Court review this filing to ensure that it is sufficiently specific to
enable the Defense to proceed during the ^^c^^^^^ session. Ifnot, the Defense requests that the
Court order the Govemment to releaseacopy ofits ^^^^^^^ motion and the classified
information for use during the proceeding. Ifthe Govemment refiises, the Defense requests
appropriate sanctions under MRE 505(i)(4)(E).

CONCLUSION
12. In accordance with the above, the Defense requests that the Court order the Govemment to
file a non-ex parte version of its motion for substitutions 1AW MRE 505(i)(4)(A).

Respectfully submitted,

THOMAS F. HURLEY
MAJ, JA
Defense Counsel

DAVID E. COOMBS
Civilian Defense Counsel

21622

ATTACHMENT
Original Message
From: Hurley, Thomas F MAD USARMY (US)
Sent: Tuesday, May 22, 2012 12:39 PM
To: Lind, Denise R COL USARMY (US); Fein, Ashden MAD USARMY (US)
Cc: David Coombs; Tooman, Doshua D CPT USARMY (US); Santiago, Melissa S CW2
USARMY (US); Morrow I I I , DoDean, CPT USA DFHQ-NCR/MDW SDA; Overgaard, Angel M CPT
USARMY (US); Whyte, Deffrey H CPT USARMY (US); VonElten, Alexander S. ILT USA
DFHQ-NCR\MDW SDA; Ford, Arthur D Dr CW2 USARMY (US); Defferson, Dashawn MSG
USARMY (US); Lykes, Elias F CW4 USARMY (US); Prather, Day R CIV (US)
Subject: RE: Ex Parte Requests by the Government (UNCLASSIFIED)
Ma' am
Understood.
the Court.

The defense w i l l f i l e a motion for the relief i t requests from

v/r
tfh
Original Message
From: Lind, Denise R COL USARMY (US)
Sent: Tuesday, May 22, 2012 11:08 AM
To: Hurley, Thomas F MAD USARMY (US); Fein, Ashden MAD USARMY (US)
Cc: David Coombs; Tooman, Doshua D CPT USARMY (US); Santiago, Melissa S CW2
USARMY (US); Morrow I I I , DoDean, CPT USA DFHQ-NCR/MDW SDA; Overgaard, Angel
M CPT USARMY (US); Whyte, Deffrey H CPT USARMY (US); VonElten, Alexander S.
ILT USA DFHQ-NCR\MDW SDA; Ford, Arthur D Dr CW2 USARMY (US); Defferson,
Dashawn MSG USARMY (US); Lykes, Elias F CW4 USARMY (US); Prather, Day R CIV
(US)
Subject: RE: Ex Parte Requests by the Government (UNCLASSIFIED)
Counsel,
I f a party wants the Court to act, the party must submit a motion with
relevant authority supporting the action requested.

Denise R. Lind
COL, DA
Chief Dudge, 1st Dudicial Circuit

21623

Original Message
From: Hurley, Thomas F MAD USARMY (US)
Sent: Monday, May 21, 2012 5:41 PM
To: Lind, DeniseRCOLUSARMY (US); Fein, Ashden MAD USARMY (US)
Cc: David Coombs; Tooman, Doshua D CPT USARMY (US); Santiago, Melissa S CW2
USARMY (US); MorrowIII, DoDean, CPTUSADFHONCR/MDWSDA; Overgaard, Angel
MCPT USARMY (US); Whyte, Deffrey HCPT USARMY (US); VonElten, Alexanders.
ILTUSADFHONCR^MDWSDA; Ford, Arthur DDrCW2USARMY (US); Defferson,
Dashawn MSG USARMY (US); Lykes, Elias FCW4 USARMY (US); Prather, Day RCIV
(US)
Subject: Ex Parte Requests by the Government (UNCLASSIFIED)
Ma'am,
Tbe Defense intends to f i l e a reply motion to the Government's ex parte
request for substitutions under MRE 505(g)(2). The t r i a l calendar indicates
that the Defense response motion is due NLT CO^ 29 May 2012. In order to
comply with that deadline, the Defense requests that the Court order the
Government to provide the Defense with a non ex parte version of i t s
motion(s). The defense also requests that the Court order the Government to
provide a copy oT i t s proposed substitutions.
The Defense cannot be expected to respond to the Government's motions in a
vacuum. The non ex parte versions of the Government's motions and the
proposed substitutions w i l l enable the Defense to f u l l y brief the issue for
the Court.
Without this documentation, the Defense is unable to adequately respond.
For instance: What type of substitution is the Government requesting^ Are
they requesting partial substitutions to the document, but s t i l l providing
the rest to the Defenses I f so, what is the basis for the partial
substitutions Are they requesting a complete substitution for the documents
I f so, what is that basis^ Additionally, the Government states that the
motion "outlines other equity holders outside of military authorities that
request certain redactions or summaries of their information." Is this
request in addition to the substitution or is this request a request under
MRE 505(g)(2)^
In short, in order to respond, the Defense needs something to be able to
respond to. As such, we request that you direct the Government to f i l e a
non-ex parte version of i t s motion(s) for substitutions under MRE 505(g)(2).
v/r
MAD Hurley
Thomas F. Hurley
MAD, DA
US Army Defense Counsel Assistance Program
thomas.f.hurley4.mil^mail.mil (work email)
thomashurleyl^me.com (iPhone email)
703.^93.0327 (office)
223.0327 (DSN office)
703.209.80^1 (cell)

21624

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

1.

)
)
)
)
)
)
)
)
)

Prosecution Request
for Leave to Respond to
the Defense's Motion to Require
Non-Ex Parte Filing by Government
23 May 2012

The United States requests leave of the Court to respond to the Defense Motion to Require

Non Ex Parte Filing by Government, dated 22 May 2012 until 29 May 2012. On 22 May 2012,
-

the Court ordered, via email, the United States to respond by close of business (COB) on
Thursday, 24 May 2012.
2.

On 23 March 2012, the Court ordered the United States to "disclose all classified information

from the 3 damage assessments to the Court for in camera review lAW RCM 701(g)(2) or, at
the request of the Government, in camera review for limited disclosure under MRE 505(g)(2)."
See Appellate Exhibit XXXVI (emphasis added). Since that date, the defense has had adequate
time to prepare a motion to request the Court not to consider material ex parte, especially since
they were on notice that the Court ordered the classified information to be disclosed to the Court
and not to the defense and the Court. On 18 May 2012, pursuant to the Court's order, the United
States disclosed to the Court the material through an ex parte motion for an in camera review
under MRE 505(g)(2). See Government's Response to Court Discovery Order, dated 18 May
2012 (not yet marked as an Appellate Exhibit).
3.

The defense waited until 21 May 2012 and then contested via email the process that the

Court outlined in its 23 March 2012 order and the United States followed on 18 May 2012, by
stating they intended to file a reply to the Government's Response to Court Discovery Order,
according to the trial calendar. See Enclosure. However, the trial calendar does not contemplate
any response by the defense for a Government MRE 505(g)(2) filing, but rather a response to a
Government Filing IAW MRE 505(i), if any. See Appellate Exhibit LXX . Then, at 1704 hours
on 22 May 2012, the defense filed its unscheduled Motion to Require Non Ex-Parte Filing by
Government.
4.

The Court, with the concurrence of both parties, established a two week filing, two week

response, five day reply, and one week Court preparation schedule for all motions. See
Appellate Exhibit LXX . On 10 May 2012, the defense filed five motions totaling 68 pages.
Only three of these motions were filed according to the Court's Scheduling Order. One motion
was filed early (Brady ID Motion) and the other motion included a significant amount of
material outside the scope of the Court's Order (Compel Discovery #2). Regardless, the United
States is following the Court's Scheduling Order and working to complete its responses which
are due tomorrow, 24 May 2012.
5.

The United States requests at least two additional duty days to respond to the defense's

motion and for the response to be due by COB on 29 May 2012. This will allow the prosecution
to complete its responses to the scheduled motions and then to adequately research and respond

1

21625

to the defense's newest motion. The Government's request will not necessitate any delay in the
proceedings; as such, there will be no prejudice to the defense.

Trial Counsel
Enclosure
Email Chain, dated 22 My 2012

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 23 May 2012.

~
MAJ, JA

Trial Counsel

2

UNITED STATES OF AMERICA
V.

Manning, Bradley E.

PFC, U.S. Army,

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



21626

Prosecution Request
for Leave to Respond to
the Defense's Motion to Require
Non-Ex Parte Filing by Government

Enclosu re

23 May 2012

21627

From:

To: Ling, Qgnigg QQL USARMY i - A

Cc:


A FH-N W4 ARM

Subject: RE: Ex Parte Requests by the Government (UNCLASSIFIED)
Date: Tuesday, May 22, 2012 12:39:18 PM

Classi?cation: UNCLASSIFIED
Caveats: NONE

Ma'am

Understood. The defense will ?le a motion for the relief it requests from
the Court.

v/


?-?-?Origina|

From: Lind, Denise COL USARMY (US)

Sent: Tuesday, May 22, 2012 11:08 AM

To: Hurley, Thomas MAJ USARMY Fein, Ashden MAJ USARMY (US)

Cc: David Coombs; Tooman, Joshua CPT USARMY Santiago, Melissa CW2
USARMY Morrow JoDean, CPT USA Overgaard, Angel
CPT USARMY Whyte, Jeffrey CPT USARMY VonElten, Alexander S.
1LT USA Ford, Arthur Jr CW2 USARMY Jefferson,
Dashawn MSG USARMY Lykes, Elias CW4 USARMY Prather, Jay CIV
(US)

Subject: RE: Ex Parte Requests by the Government (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Counsel,

If a party wants the Court to act, the party must submit a motion with
relevant authority supporting the action requested.



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



From: Hurley, Thomas USARMY (US)

Sent: Monday, May 21, 2012 5:41 PM

To: Lind, Denise COL USARMY Fein, Ashden MAJ USARMY (US)

Cc: David Coombs; Tooman, Joshua CPT USARMY Santiago, Melissa CW2
USARMY Morrow JoDean, CPT USA Overgaard, Angel
CPT USARMY Whyte, Jeffrey CPT USARMY VonE|ten, Alexander S.
1LT USA Ford, Arthur Jr CW2 USARMY Jefferson,
Dashawn MSG USARMY Lykes, Elias CW4 USARMY Prather, Jay CIV

21628

(US)
Subject: Ex Parte Requests by the Government (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Ma'am,

The Defense intends to ?le a reply motion to the Government's ex parte
request for substitutions under MRE 505(g)(2). The trial calendar indicates
that the Defense response motion is due NLT COB 29 May 2012. In order to
comply with that deadline, the Defense requests that the Court order the
Government to provide the Defense with a non?ex parte version of its
motion(s). The defense also requests that the Court order the Government to
provide a copy of its proposed substitutions.

The Defense cannot be expected to respond to the Government's motions in a
vacuum. The non-ex parte versions of the Government's motions and the
proposed substitutions will enable the Defense to fully brief the issue for

the Court.

Without this documentation, the Defense is unable to adequately respond.
For instance: what type of substitution is the Government requesting? Are
they requesting partial substitutions to the document, but still providing

the rest to the Defense? If so, what is the basis for the partial

substitution? Are they requesting a complete substitution for the document?
If so, what is that basis? Additionally, the Government states that the
motion "outlines other equity holders outside of military authorities that
request certain redactions or summaries of their information." Is this
request in addition to the substitution or is this request a request under

MRE 505(g)(2)?

In short, in order to respond, the Defense needs something to be able to
respond to. As such, we request that you direct the Government to ?le a
non-ex parte version of its motion(s) for substitutions under MRE 505(g)(2).

v/r
MAJ Hurley

Thomas F. Hurley
MAJ, JA
US Army Defense Counsel Assistance Program



Classi?cation: UNCLASSIFIED
Caveats: NONE

Classi?cation: UNCLASSIFIED
Caveats: NONE

21629

Classi?cation: UNCLASSIFIED
Caveats: NONE

21630

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE RESPONSE TO
v. PROSECUTION REQUEST FOR
LEAVE TO RESPOND TO THE
MANNING, Bradley E., PFC MOTION TO
U.S. Army, REQUIRE NON-EX PARTE
Headquarters and Headquarters Company, U.S. FILING
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211 23 May 2012


RELIEF SOUGI IT

1. PFC Bradley Manning, by and through the undersigned Defense counsel, opposes the
Government?s request for leave of Court to respond to the Defense Motion to Require Non-Ex
Parte Filing by Government until 29 May 2012. The Defense requests that the Court order the
Government to respond by 24 May 2012.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Government has the burden of persuasion. RCM The
burden of proof is by a preponderance of the evidence. RCM 905

FACTS

3. On 18 May 2012, the Government ?led an in camera motion for substitutions under MRE
505(g)(2). On 21 May 2012, the Defense requested by e-mail that the Court order the
Government to file a non-ex parte version of its motion. On 22 May 2012, the Court requested
the Defense to ?le a written motion in support of its request. The Defense complied with the
Court?s request on that same day.

4. The Court ordered the Government to file a response to the Defense?s motion by close of
business on the 24 May 2012. The Government then requested leave of the Court until 29 May
2012 to respond to the. Defense?s motion. The Defense opposed the Government?s request.

APPELLATE five: I (.105)
Pagcj of Pagc(s)



21631

ARGUMENT

5. The relief requested by the Government: a) is based upon false assumptions and, b) does not
provide the Court with enough time to properly adjudicate this matter during the next Article
39(a) session.

A. The Government?s I-?alse Assumptions

6. The Government asserts that the Defense ?has had adequate time to prepare a motion to
request the Court not to consider material ex parte, especially since they were on notice that the
Court ordered the classified information to be disclosed to the Court and not to the defense gig
the Court.? See Prosecution Request for Leave dated 23 May 2012 (emphasis in original). The
Government clearly does not understand the Defense?s motion.

7. The Defense is not requesting that the Court refuse to consider material ex parte from the
Government. Instead, the Defense is simply requesting that the Government ?le, in addition to
its ex parte ?ling to the Court, a separate non?exparte filing to the Court and Defense as
required by MRE Such a ?ling is required in order to provide the Defense with the
ability to participate in the in camera session with respect to the proposed redactions and
substitutions. See Analysis to MRE

8. The Government is also mistaken when it asserts that the Defense is contesting the process as
the Court outlined in its 23 March 2012 Order. The Defense is not. The 23 March 2012 order
contemplates a response by the Defense for a Government MRE 505(g)(2) ?ling. The
Government?s MRE 505(g)(2) ?ling falls under the procedure for in camera review IAW MRE
505(i). The Defense had assumed that a non-ex parte ?ling for the Defense would have
accompanied the Government?s 18 May 2012 ?ling with the Court. When it was clear the
Government was not planning to ?le anything for the Defense to respond to, the Defense
requested the Government to ?le the required non-ex parte version of its motion.

B. Timing Issues Presented bv the Government?s Request

9. The Government requests almost a week to respond to a straightforward motion. The
Defense cited one case (which had already been provided to the Court and the Government) and
cited one subsection of MRE 505 in support of its motion. It should not take ?ve prosecutors
nearly a week to respond to the issue raised.

10. This matter needs to be resolved during the 39a sessions scheduled from 6-8 June 20 2.
Allowing the Government to delay ?ling their response until 29 May will compress the motion
schedule prior to the next iteration court appearances. That compressed schedule will make it
dif?cult, if not impossible, to litigate this motion in une. For instance, if the Court rules for the
Defense on the necessity of a non-ex parte ?ling on 29 May, then the Government would likely
ask for at least another 4 duty days to compose the non-exparte ?ling. That request, if granted,
would bring us to 4 June 2012, the same calendar week of the pre-trial hearings. Given that the
Defense will be travelling during that time, with limited access to research materials and the

21632

internet, it would not be able to respond (or respond adequately) to the Govemment?s motion for
redactions and substitutions.

CONCLUSION

I I. In accordance with the above, the Defense requests that you order the Government to
provide a response by the Court?s original ?ling date of 24 May 2012. That way, this issue can
be resolved at the upcoming motions argument.

submitted,

THOMAS F.

MAJ, JA
Defense Counsel



DAVID E. COOMBS
Civilian Defense Counsel

21633

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

)
)
)
)
)
)
)
)
)

Prosecution Response
to Defense Motion to Require
Non-Ex Non
Parte Filing
by Government
28 May 2012

RELIEF SOUGHT
The Government requests that the Court deny the Defense Motion to Require Non-Ex
Parte Filing by Government (Defense Motion) because Military Rule of Evidence (MRE) 505,
the Fifth Amendment to the United States Constitution (Fifth Amendment), and the Sixth
Amendment to the United States Constitution (Sixth Amendment) do not support the defense’s
request to compel the Government to file a non-ex parte version of its MRE 505(g)(2) motion.
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, R.C.M. 905(c) (2012).
FACTS
The United States stipulates to those facts cited in the defense motion.
WITNESSES/EVIDENCE
The United States does not request any witnesses be produced for this response. On 18
May 2012, the United States submitted two classified motions ex parte (hereinafter "classified
motions"). The United States respectfully requests that the Court consider the classified motions.
LEGAL AUTHORITY AND ARGUMENT
The Court should not Order the Government to file a non-ex parte version of its motion
because MRE 505(g)(2) explicitly provides for ex parte consideration with no response by the
defense. Additionally, the defense confuses the Government's filing under MRE 505(g)(2) as a
filing under MRE 505(i)(4)(A) and relies upon a case that is inapposite. The defense presents no
legal authority to support its proposition that either the Fifth Amendment or the Sixth
Amendment require filing of a non-ex parte version of the motion.

21634

I.

BACKGROUND

MRE 505 is based on the Classified Information Procedures Act (CIPA), 18 U.S.C. App.
3 (2012).1 MCM MRE 505 analysis, at A22-41 (2012). MRE 505 is procedure-oriented, and
states the procedures and standards for the use of classified information in a court-martial. See
United States v. Lonetree, 31 M.J. 849, 856 (N.M.C.M.R. 1990, aff'd, 35 M.J. 396 (C.M.A.
1992). Additionally, MRE 505 attempts to balance the interests of an accused who desires
classified information for his defense and the interests of the government in protecting that
information. Id. Specifically, MRE 505(g)(2) is based on Section 4 of the CIPA. Compare
MRE 505(g)(2) (authorizing deletion of specified items in classified information, substitution or
summary of classified information, or substitution of statements admitting relevant facts that
classified information would tend to prove) with Section 4 of the CIPA (authorizing deletion of
specified items in classified information, a substitution of a summary of classified information,
or substitution of statements admitting relevant facts that the classified information would tend to
prove). The purpose of the CIPA and MRE 505 is to protect classified information at any stage
of a court-martial. See United States v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002).
II.
MRE 505(G)(2) EXPLICITLY PROHIBITS DISCLOSURE OF THE
GOVERNMENT’S MOTION
MRE 505(g)(2) is derived from Section 4 of CIPA. See MCM MRE 505 analysis, at
A22-42 (2012). Ex parte reviews of classified information are permitted when a statute
expressly provides for such reviews. United States v. Libby, 429 F.Supp.2d 18, 21 (D.D.C.
2006). Section 4 of CIPA provides a mechanism for the Government to move ex parte and in
camera to limit discovery of certain classified information. See United States v. Sarkissian, 841
F.2d 959, 965 (9th Cir. 1988). “The legislative history emphasizes that ‘since the government is
seeking to withhold classified information from the defendant, an adversary hearing with defense
knowledge would defeat the very purpose of the discovery rules.’” Id. (quoting H.R. Rep. No.
831, 96th Cong., 2d Sess. 27 n. 22). CIPA does not require the Government to invoke the
privilege before the Court may grant a request to proceed ex parte and in camera. See id. at 96566; United States v. Pringle, 751 F.2d 419, 426-27 (1st Cir. 1984). Moreover, under Section 4 of
CIPA, a defendant's absence from the ex parte review does not unfairly prejudice him, nor would
it unfairly prejudice an accused under MRE 505(g)(2). See generally United States v. Mejia, 448
F.3d 436, 458 (D.C. Cir. 2006) (discussing close analogies where the defendant is not entitled to
access the evidence reviewed by the court in camera, including disclosures under the Jencks Act,
18 U.S.C. § 3500(b) (2012) and Brady v. Maryland, 373 U.S. 83 (1963)).
Motions submitted by the Government under MRE 505(g)(2), upon the Government’s
request, shall not be disclosed to the accused. MRE 505(g)(2) (stating in relevant part, “The
Government’s motion and any materials in support thereof . . . shall not be disclosed to the
accused.”). Similarly, Section 4 of the CIPA also permits ex parte submissions. Libby, 429
F.Supp.2d at 22 (determining that Section 4’s permits ex parte submissions because it permits
1

The CIPA was written to combat “graymail,” which entailed a defendant in a criminal case seeking disclosure of
sensitive national security information to discourage the Government from continuing prosecution. See MCM MRE
505 analysis, at A22-41 (2012).

2

21635

the government to submit written statements to be inspected by the court alone, upon a showing
of good cause). Here, the Government submitted the classified motions under MRE 505(g)(2).
As in Libby, the Government submits the classified motions to the Court, under MRE 505(g)(2).
Accordingly, the plain meaning of MRE 505(g)(2) provides that the Defense Motion should be
denied.
III.
LONETREE DOES NOT PROHIBIT EX PARTE SUBMISSIONS UNDER
MRE 505(G)(2)
The defense argues that under MRE 505(i)(4)(A), the Government must provide a non-ex
parte version of its motion. The Government agrees that, if the United States moves for an "in
camera proceeding" under MRE 505(i)(4)(A), that is must provide the defense notice and that
notice typically comes in the form of a motion. However; the defense's argument and the
Government's agreement is inapplicable to the issue at bar, because the Government has not
invoked the classified information privilege and filed a motion under MRE 505(i)(4)(A), but
sought authorization of a limited disclosure under MRE 505(g)(2). MRE 505(i) only applies to
"in camera proceedings" which are only applicable to the (i) subdivision of MRE 505 and not
other subdivisions, such as MRE 505(g)(2). See MRE 505(i)(1).
The defense argues that Lonetree requires ex parte motion submissions under MRE
505(g)(2) be subject to the procedures outlined in MRE 505(i). See Defense Motion ¶ 6. As
noted above, application of this argument necessitates ignoring the procedures explicitly stated in
MRE 505(g)(2). Compare MRE 505(g)(2) (describing the procedure for and conditions of
limited disclosure) with MRE 505(i)(1)-(3) (stating the procedure for an "in camera proceeding"
concerning the use of classified information). Ultimately, the defense seems to confuse the
Court's ability to conduct an in camera and ex parte review under MRE 505(g)(2) with an "in
camera proceeding" under MRE 505(i), which are completely different processes under different
subdivisions of MRE 505.
Lonetree does not apply to this issue because that case concerned the use of classified
information at trial by a witness under MRE 505(i), not the submission of an ex parte motion
concerning discovery under MRE 505(g)(2). See Lonetree, 31 M.J. at 855-56. MRE 505(i)(1)(3) sets forth procedures concerning the use of classified information at proceedings. See MRE
505(i)(2) (stating that the Government may move under the rule for an in camera proceeding
concerning the use at any proceeding of any classified information) (emphasis added); Lonetree
31 M.J. at 856 (discussing the government motion to prevent disclosure of classified information
to preclude cross-examination) In Lonetree, the government sought to prevent disclosure of
classified information relating to a witness to preclude certain cross-examination regarding the
classified information. Lonetree, 31 M.J. at 856. The potential use of classified information in
Lonetree required a motion under MRE 505(i)(2) concerning its use at a proceeding. In
comparison, MRE 505(g)(1)-(2) set forth procedures regarding protective orders and limited
disclosure, including disclosures outside proceedings where the Government agrees to disclose
classified information to the defense, either in original form under MRE 505(g)(1) or in a limited
manner under MRE 505(g)(2). Because MRE 505(i)(2)’s applicability is limited to use at

3

21636

proceedings and invocation of the classified information privilege, its requirements cannot apply
to voluntary limited disclosures under MRE 505(g).2
CONCLUSION
For the foregoing reasons, the United States requests the Court to deny the Defense
Motion to Require Non-Ex Parte Filing by Government for limited disclosure of classified
information motions under MRE 505(g)(2).

//Original Signed//
ALEXANDER von ELTEN
CPT, JA
Assistant Trial Counsel

//Original Signed//
ASHDEN FEIN
MAJ, JA
Trial Counsel
I certify that I served or caused to be served a true copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 28 May 2012.

//Original Signed//
ASHDEN FEIN
MAJ, JA
Trial Counsel

2

Although the dicta cited by the defense in Lonetree suggests that MRE 505(i)(3)-(4) applies to MRE 505(g)(2),
the U.S. Navy-Marine Corps Court of Military Review does not distinguish in its dicta between motions concerning
limiting the use of information at a proceeding and motions concerning limiting disclosure for purposes of
discovery. Additionally, the U.S. Court of Military Appeals chose not to rule on MRE 505's application. The
United States argues the dicta should not be applied beyond the facts of Lonetree. Accordingly, Lonetree stands for
the proposition that MRE 505(i) only applies to the Government invoking the privilege to and preventing disclosures
of classified information at any proceeding. Additionally, if the Court rules that a substitution is not adequate under
MRE 505(g)(2), then the Government may seek to invoke the privilege under MRE 505(c), which would then likely
cause a motion for an in camera proceeding, under MRE 505(i).

4

21637

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REPLY TO
PROSECUTION RESPONSE TO
DEFENSE MOTION TO
REQUIRE NON-EX PARTE
FILING BY GOVERNMENT

VI

MANNING, Bradley E., PFC

U-S- Army,

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

29 May 2012



RELIEF SOUGHT

I. In accordance with the Rules for Courts Martial (RCM) 905, Military Rule of Evidence
(MRE) 505, Manual for Courts-Martial (MCM), United States, 2008; and the Fifth and Sixth
Amendments to the United States Constitution, the Defense respectfully requests that the Court
require the Government to file a non-ex parte version of its motion for substitutions under MRE
IAW MRE

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party. the Defense has the burden of persuasion. RCM The
burden of proofis by a preponderance ofthe evidence. RCM 905(e)( I

EVIDENCE

3. The defense has no additional evidence for the Court to consider along with this reply.

FACTS

4. The dctense has no additional facts for the Court to consider along with this reply.

LEGAL AUTHORITY

5. There is no additional legal authority for the Court to consider along with this reply.

21638

ARGUMENT

6. It is important to note that the defense does not seek the disclosure of the Government?s
Motions for Substitution to the Court. We seek only a nor1?ex parte summary of those motions.
That non-ex parte summary will then allow the defense to (1) better understand the decision the
Court is making with regard to the potential substitutions and (2) provide input on that decision
to the Court.

7. It must also be noted that the govemmenfs declaration of privilege is immaterial to the claim
of the defense. It is the position of the defense that, if the government seeks substitutions of
privileged material under MRE 505(g), then it must provide a non-privileged summary of the
action it requests to the defense.

8. The construct of the Navy?Marine Corps Court of Military Review?s decision in QSL
Lonetrg, 31 NH. 949 1990) is not dicta. It is controlling. In Lonetree, the
government sought the Limited Disclosure protections of MRE 505(g)(2). The held
that MRE procedures ?contains the standard to be employed by the military judge to
determine when classified information must be disclosed to the defense.? One of those
procedures is the standard in MRE another is the govemment?s demonstration of
national security nature of the information in MRE 505(i)(3), and another is the overall
procedure described in MRE The last procedure contains the relief we seek a
non-ex parre disclosure by the government which allows the defense to participate in the process
with the Court.

9. The government?s reliance on certain federal cases provides little direct assistance to the
Court. After all. Article 46, UCMJ, provides a militaiy accused with greater discovery rights
than those enjoyed by his civilian counterparts. More helpful is the treatment of those cases by
the military appellate courts. Consider the Court of Military Appeals opinion in (Di
Lonetree, 35 M.J. 396 (C-MA 1992)), it failed to see a meaningful distinction between a claim of
privilege during discovery and one made during trial. See Lonetree, 35 M.J. at 409 n.l0 (citing
US V. Sarkissian, 841 F.2d 959 Cir. 1988) and US V. 867 F.2d 617 (DC Cir. 1989').
Thus, the governmenfs parsing of MRE 505 between in camera reviews under MRE 505(g)
(discovery) and ex parte proceedings under MRE 505(i) (confrontation) is one not shared by the
highest military court.



21639

CONCLUSION
10. In accordance with the above, the Defense requests that the Court order the Government to
?le a non?ex parte version of its motion for substitutions IAW MRE

Respectfully submitted,

it -

THOMAS F. HURLEY
MAJ, JA
Defense Counsel

DAVID E. COOMBS
Civilian Defense Counsel

21640

IN THE UNITED STATES ARMY
FIRST WDICIAL CIRCUIT

UN I T E D S T A T E S

)

)

RULING' DEFENSE MOTION'

v.

)

NON-EX PARTE

)
)

FILING BY GOVERNMENT

MANNING, Bradley E., PFC
U.S. Army,

)

(b) (6)

Headquarters and Headquarters Company, U.S. Army

)

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

)

)

29 May 2012

On 18 May 2012, the Government made disclosures to the Court and provided notice of its intent
to file ex parte motions for the Court to conduct an in camera review and authorize a substitution of the
classified DIA Information Review Task Force (lRT) Final Report and a substitution for the classified
WikiLeaks Task Force report. The Government filed the ex parte motions with the Court. On 22 May
2012, the Defense Moved the Court to require the Government to file a non- ex parte version of its
affidavit JAW MRE 505(g)(2) and MRE 505(i)(4)(A). On 28 May 12, the Government filed an opposing
response. On 29 May 2012, the Defense filed a Reply. After considering the pleadings, evidence
presented, and argument of counsel, the Court finds and concludes the following:

l. MRE 505(g) (Disclosure ofClassified Information to the Accused) provides procedures when the
Government agrees to voluntarily disclose classified infonnation to the Defense.
2. MRE 505(g)(2) (Limited Disclosure) mandates that the Military Judge, upon motion of the
Government, shall authorize:
a) Deletion of specific items of classified information from documents to be made available to an
accused;
b) Substitution of a portion or summary of the information for such documents; or
c) Substitution of a statement admitting relevant facts;
unless the Military Judge determines that disclosure of the classified information itself is necessary to
enable the accused to prepare for trial. The Government's motion and any materials submitted in support
thereof shall, upon request of the Government, be considered by the Military Judge in camera and shall
not be disclosed to the accused.
3.

Defense cites the Navy-Marine Court of Military Review's decision in US.

v.

Lonetree, 31 M.J. 849

(N-M-C.M.R. 1990), aff'd 35 M.J. 396 (C.M.A. 1992) for the proposition that in camera review for
substitutions under MRE 505(g)(2) are controlled by the procedures outlined in MRE 505(i). Lonetree,
31 M.J. at 857.
4. MRE 505(g)(2) provides specified procedures when the Government voluntarily discloses classified
information but seeks a limited disclosure of that infonnation to the Defense. The Government is not
required to make a claim of privilege prior to making an motion for limited disclosure IA W MRE
505(g)(2). Nothing in MRE 505(g)(2) states that an in camera proceeding under MRE 505(i) is required

1

21641

for a voluntary limited disclosure of classified information by the Government. Other provisions ofMRE
505 identify when in camera proceedings under MRE 505(i) apply. See MRE 505(f) (MRE 505(i)
applies when the Government has invoked a claim of privilege under MRE 505(c)), MRE
505(g)(3(B)(invoking MRE 505(i) where a privilege has been invoked under RCM 914), and MRE
505(h)( 4)(prohibiting the Defense from disclosing classified information until the Government has been
afforded a reasonable opportunity to seek a determination under MRE 505(i)).
5. MRE 505(g)(2) is derived from Section 4 of the Classified Information Procedures Act (CIPA). See
MCM, MRE 505(g)(2) analysis, A22-24. Federal courts interpret Section 4 of the CIPA as authorizing
the Government to provide
privilege. See U.S.

v.

ex parte filings to the Court for limited disclosure without invoking a claim of
Mejia, 448 F.Jd 436,457 (D.C. Cir. 2006).

6. MRE 505(i) does not apply to voluntary limited disclosure by the Government of classified
information. The procedures o f M R E 505(g)(2) apply. To the extent the Navy- Marine Court of
Criminal Appeals in Lonetree states otherwise, the Court disagrees.
7. The 18 May 2012 Prosecution Disclosure to the Court provides the Defense and the public with notice
of what in camera motions the Government intends to file. In order to ensure the Defense and the public
have notice of the general nature of the proposed substitutions proposed by the Government and the
national security interest the Government seeks to protect with the substitutions, the Government shall file
an unclassified redacted version of its

ex parte motions. The Government is not required to submit the

proposed substitutions to the Defense.
8. On 14 February 2012, Defense filed an

ex parte supplement for the Court to consider in ruling on the
IX). On 15 March 2012, the Court ruled it would not

Defense Motion to Compel Discovery (AE
consider the

ex parte supplement when deciding the Defense Motion to Compel Discovery but that the
ex parte supplement at the request of the Defense when conducting in camera

Court would consider the
reviews IAW MRE 505.

9. Defense will advise the Court by I June 2012 if the Defense desires the Court to consider the
supplement when conducting the MRE 505(g)(2)

ex parte

in camera reviews requested by the Government.

RULING:

I. The Defense motion to require the Government to submit non-ex parte affidavits is GRANTED IN
PART. The Government will provide the Court and the Defense with an unclassified redacted version of
its

ex-parte motion NLT 30 May 2012 that describes the general nature of the proposed substitutions and

the national security interest the Government seeks to protect with the substitutions.
2.

Defense will advise the Court NLT 1 June 2012 if the Defense requests the Court to consider the

parte supplement when conducting the MRE 505(g)(2) in camera reviews.
ORDERED: This 29th day of May 2012.

w/&
DENISE R. LIND

COL, JA
Chief Judge, }51 Judicial Circuit

2

ex

21642

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

)
)
)
)
)
)
)
)

DEFENSE PROPOSED CASE
MANAGEMENT ORDER

22 May 2012

)

I. 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.

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)

c.

Phase 2(b). Legal Motions (10 May 2012 - 8 June 2012)

(A) Filing: 10 May 2012
(B) Response: 24 May 2012
(C) Reply: 29 May 2012
(D) Article 39(a): 6-8 June 2012
( I ) Defense Motion to Dismiss All Charged Offenses under 18 U.S.C. 793(e)
(2) Defense Motion to Dismiss All Charged Offenses under 18 U.S.C. 1030(a)(1)
(3) Government and Defense Motions for Proposed Lesser Included Offenses
(4) Defense Motion to Compel Discovery #2 and to Compel ONCIX, DOS, FBI
investigation lAW RCM 701(a)(2)

(5) Government Motion to Reconsider Motion to Compel DOS Damage Assessment
(6) Defense Motion to Compel Brady Identification within Discovery

(7) Updated Proposed Case Calendar
(A) Filing: 24 May 12
(B) Response: 29 May 12

-- ----;:\:-:7l( (..1 ld)
APPELLATE EXHlBIT C)(. \

_91' Pa&e(s)

Page.

l

21643

(8) Disclosure of Unclassified Results of 3 Damage Assessment Searches to Defense
in Response to the Court's Ruling, 30 March 2012
(A): 18 May 2012
(9) 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): 18 May 2012
(I 0) Government Filing for In Camera Proceeding IAW MRE SOS(i) with Notice to
Defense (if Privilege is Claimed) in Response to the Court's Ruling, 30 March 2012
(Disclosure Issues)

(/\):
(B):
(C):
(D):

Filing: 18 May 2012
Response: 2 9 May 2012
Reply: N/A
Article 39(a): 6-8 June 2012

( II) Court Rulings based on in camera review of damage assessments
(A): Article 39(a): 6-8 June 2012

d. Phase 3a. Evidentiary Issues (22 June 2012 - 20 July 2012)
(A) Filing: 22 June 2012
(B) Response: 6 July 2012
(C) Reply: I I July 2012
(D) Article 39(a): 1 6-20 July 2012
(I) Defense Motion to Compel Discovery #3 (if any)
(2) Government Motion to Compel Discovery (if any)
(3) Motions in Limine (Evidence Discovered to Date)
(4) Motions to Suppress (Evidence Discovered to Date)
(5) Pre-Authenticate/Pre-Admit Evidence

1

(6) Requests for Judicial Notice
(7) Witness Lists Exchanged
(A) Filing: 22 June 2012
(B) Government Objection to Defense Witnesses: 6 July 2012
(C) Motion to Compel Production: II July 2012
(D) Response: 13 July 2012
1

At the Court's direction, the Government needs to provide some basis indicating that they do not need to

also authenticate

before the members.

2

21644

(8) Proposed Members Instructions for all Charged Offenses
(9) Defense Motion to Compel Experts
(A) Filing: L I July2012
(B) Response: 13 July2012
(I 0) Defense Motion to Compel Witnesses
(A) Filing: 11 July2012
(B) Response: 13 July2012
( II ) Defense Notice oflntent to Disclose Classified Information under MRE
SOS(h)(1) (For Discovery Received- Motion to Compel #1)
(A) Filing: 22 June 2012
(12) Defense Notice of Piea!Forum
(A) Filing: II July2012
(13) Updated Proposed Case Calendar
(A) Filing: 6 July2012
(B) Response: II July2012
(14) Proposed Questionnaires- the parties will confer and arrive at a questionnaire
Before the Article 39(a) session 16-20 July2012. Issues of disagreement will be
addressed at the Article 39(a) session where the questionnaire will be approved and
submitted to detailed members and alternates for response NLT 3 August 2012.

e. Phase 3b. Evidentiarv Issues (3 August 2012-31 August 2012)
(A) Filing: 3 August 2012
(B) Response: 17 August 20 L 2
(C) Reply: 22 August 2012
(D) Article 39(a): 27-31 August 2012
(1) Motions in Limine (Classified Information not previously Disclosed)
(2) Motions to Suppress (Classified Information not previously Disclosed)
(3) Article 13
(A) Filing: 27 July20122
(B) Response: 17 August 2012
(C) Reply: 22 August 2012
(D) Article 39(a): 27-31 August 2012
2

The filing date of one week earlier for the Defense motions is to give the United States the necessary

time to respond.

3

21645

(4) Speedy Trial, including Article 10
3
(A) Filing: 2 7 July2 012
( B) Response: 17 August2 0 12
(C) Reply: 22 August2 012
(D) Article 39(a): 2 7-31 August2 012

(5) Pre-Qualify Experts
(6) Government Filing for In Camera ProceedinglAW MRE SOS(i) with Notice to
Defense (if Privilege is Claimed) in Response to the Court's Ruling, 30 March 2012 (Use as
Evidence) and Government Filing for In Camera ProceedinglAW MRE SOS(i) with Notice
to Defense (if Privilege is Claimed) in Response to the Court's Ruling regarding Defense
Motion to Compel Discovery #2 and #3 and Other Remaining Litigation Concerning MRE
4
505(h) and MRE 505(i)
(A) Filing: 3 August2 0125
( B) Response: 1 0 August2 0 12
(C) Article 39(a): 27-31 August2 0 12

(7) Production of Compelled Discovery for Defense Motion to Compel Discovery #2
and #3 or Production of Limited Discovery under MRE 505(g)(2) or (3)
(8) Production of Compelled Discovery for Government Motion to Compel
Discovery

(9) Defense Additional Witness List in light of Information in Defense Motion to
Compel Discovery #2 and #3. Defense Notice of Intent to Disclose Classified Information
6
under MRE 505(h) from Compelled Discovery.


( A) Filing: 1 7 August2 012
( B) Response: 22 August2 0 12
( 10) Updated Proposed Case Calendar
( A) Filing: 17 August2 012
( B) Response: 22 August2 0 12

f.

Phase 4. Miscellaneous Motions (1 September 2012- 21 September 2012)

(I) Any Additional Motion that does not have an Identified Deadline
3

The filing date of one week earlier for the Defense motions is to give the United States the necessary

time to respond.

4
5

Government advised the Court will need 15 duty days to review discoverable material.

The fi l ing response, and reply dates are in order to provide the Court with enough time to review the
,

discoverable material.

6

This assumes that the Government does not claim a privilege or file a request for an in camera

proceeding lAW MRE 505(i).

4

21646

(A) Filing: 7 September 2012
(B) Response: 14 September 2012
(C) Article 39(a): 19-20 September 2012
(2) Grunden Hearing for all Classified Information
(A) Filing: 1 September 2012
(B) Response: 14 September 2012
(C) Article 39(a): 19-20 September 2012
(3) Voir Dire Questions, Flyer, Findings/Sentence Worksheet, all CMCO
(A) Filing for Court Review: 14 September 2012
(B) Article 39(a): 1 9-20 September 2012

g. Phase 5. Trial by Members (20 September 2012 - 12 October 2012)
(I) Voir Dire: 21 September 2012

(2) Trial: 24 September 2012 - 12 October 2012

Respectfully submitted,

c:::

/(

v

.
..

v��

DAVID EDWARD COOMBS
Civilian Defense Counsel

5

------- ---

21647

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

)
)
)
)

)

)
)
)
)

Prosecution Proposed
Case Calendar
Update

24May 2012

1. The proposed calendar is based upon the same assumptions listed in the Prosecution Proposed
Case Calendar (AE I), Prosecution Proposed Case Calendar Update (AE XX), Prosecution
Proposed Case Calendar Update (AE XLV), and Prosecution Proposed Case Calendar Update
Supplement (AE XL VI). To the extent these assumptions prove to be incorrect or too ambitious,
the schedule will be correspondingly longer.
2.

Prosecution Proposed Calendar.
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)
c.

Phase 2(b): Legal Motions (10 May 2012- 8 June 2012)

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

Filing: 10 May 2012
Response: 24 May 2012
Reply: 29 May 2012
Article 39(a): 6-8June 2012

(1) Defense Motion to Dismiss All Charged Offenses under 18 U.S.C. 793(e)
(2) Defense Motion to Dismiss All Charged Offenses under 18 U.S.C. 1030(a)(1)
(3) Government and Defense Motion for Proposed Lesser Included Offenses
(4) Defense Motion to Compel Discovery #21

1 This motion was on the Court Scheduling Order, dated 25 April 2012 (hereinafter "Court Scheduling Order"), as
Defense Motion to Compel ONCIX, DOS, FBI investigation lAW RCM 7 0 l (a)(2); however, the scope of the motion
is far beyond those three entities and RCM 701(a)(2), so the prosecution is referring to it as Defense Motion to
Compel #2. If any of the information is determined discoverable, then additional time will be needed to determine
what, if any, discovery exists. If discovery does exist and if it is classified, the organization owning the information
will need time to either disclose, give limited disclosure, or claim a privilege. The Court may have to review
additional information and the prosecution may need to request an in camera proceeding. For planning purposes and
in this proposal, the prosecution included the timeline for this process in Phase 3b with the originally scheduled
Motion to Compel #2 (which is now listed as Motion to Compel #3).

1

21648

(5) Government Motion to Reconsider Motion to Compel DOS Damage Assessment2
(A) Filing: 26 April 2012
(6) Defense l\iotion to Exelude UnehaFged Miseonduet (MRE 404(b))

(7) Defense Motion to Compel Identification of Brady in Discovery3
(8) Defense Motion to Require Non-Ex Parte Filing by Government (MRE
505(i)(4)(A))4
(A) Filing: 22 May 2012
(B) Response: 28 May 2012
(C) Ruling: 29 May 2012
(D) Government's Disclosure of Non-Ex Parte Version: 30 May 2012 (if required)
(9) Updated Proposed Case Calendar
(A) Filing: 24 May 2012
(B) Response: 29 May 2012
( 10) Disclosure of Unclassified Results of 3 Damage Assessment Searches to Defense
in Response to the Court's Ruling, 23 March 2012
(A) Filing: 18 May 2012

(1 1) 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, 23 March 2012
(A) Filing: 18 May 2012
(B) Response: 1 June 20125

(12) Go¥eFnment Filing foFIn CameFa PFoeeeding lAW l\'IRE 505(i) with Notiee to
Defense (ifPFivilege is Claimed) in Response to the CouFt's Ruling, 23 MaFeh 2012
(13) Court Rulings based on In Camera Review of Damage Assessments6
(A) Article 39(a): 6-8 June 2012

2

The prosecution submitted the Prosecution Motion to Reconsider Motion to Compel DOS Damage Assessment on
26 April 2012 and, based on the Court's ruling, dated I I May 2012, no response or subsequent argument is necessary.

3

This motion was scheduled for Phase 3a on the Court Scheduling Order, not Phase 2b.

4

This motion was unscheduled. These dates were set by the Court's ruling on 24 May 2012.

5

This date was set by the Court's ruling on 24 May 2012.

6

If the Court rules that any of the proposed summaries under MRE 505(g)(2) are not acceptable, the prosecution will
need additional time to obtain approval for a different substitution or invoke the privilege under MRE 505(c) and
MRE 505(i).

2

21649

(14) Defense Production of Government Reciprocal Discovery Request
(A) Date: 15 June 2012
d. Phase 3a. Evidentiary Issues (22 June 2012 - 20 July 2012)
(A)
(B)
(C)
(D)

Filing: 22June 2012
Response: 6 July 2012
Reply: 11 July 2012
Article 39(a): 16-20 July 2012

(1) Defense Motion to Compel Discovery #37 (if any)
(2) Government Motion to Compel Discovery (if any)
(3) Motions in Limine (Evidence Discovered to Date)
(4) Motions to Suppress (Evidence Discovered to Date)
(5) Preliminary Determinations on Admissibility/Pre-Admit Evidence8
(6) Requests for Judicial Notice

(7) Witness Lists Exchanged/Compel Witnesses & Experts
(A) Filing: 22June 2012
(B) Government Objection to Defense Witnesses: 6 July 2012
(C) Motion to Compel Production: 11 July 2012
(D) Response: 13July 2012
(D) Article 39(a): 16-20 July 2012
(8) Proposed Members Instructions for AU Charged Offenses
(9) Defense Notice of its Intent to Offer the Defense of Alibi, Innocent Ingestion, or
Lack of Mental Responsibility lAW RCM 70l(b )(2)9
(A) Filing: 22 June 2012

7

The defense filed Motion to Compel Discovery #2 in phase 2b, so this will be Motion to Compel Discovery #3. If
any of the information is determined discoverable, then additional time will be needed to determine what, if any,
discovery exists. If discovery does exist and if it is classified, the organization owning the information will need time
to either disclose, give limited disclosure, or claim a privilege. The Court may have to review additional information
and the prosecution may need to request an in camera proceeding. For planning purposes and in this proposal, the
prosecution included the timeline for this process in Phase 3b.
8

The prosecution plans on moving to pre-admit evidence that has MRE 902( I I) attestations and seeking preliminary
determinations on admissibility for summaries.

9

The prosecution recommends this deadline, so the prosecution can prepare any additional witnesses and evidence by
the secondary witness list and evidence production deadline of 3 August 2012.

3

21650

(10) Defense Notice of Intent to Disclose Classified Information under MRE 505(h)(1)
10
(For Discovery Received)
(A) Filing: 22 June 2012
(11) Defense Notice of Accused's Forum Selection and Notice of Pleas in Writing11
(A) Date: 11July 2012
(12) Updated Proposed Case Calendar
(A) Filing: 6 July 2012
(B) Response: 11 July 2012
(13) Proposed Questionnaires
(A) Filing: Parties will confer and arrive at a questionnaire before the Article 39(a) at
16-20July 2012 session
(B) Article 39(a): Disagreements will be addressed at Article 39(a) at 16-20 July
2012 session
(C) Questionnaires to Detailed Members and Alternates: 24 July 2012
(D) Suspense for Detailed Members and Alternates to Respond to Questionnaires: 3
August 2012
e.

Phase 3b. Evidentiary Issues (27 July 2012-31 August 2012)

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

Filing: 3 August 2012
Response: 17 August 2012
Reply: 22 August 2012
Article 39(a): 27-31 August 2012

(1) Motions in Limine (Classified Information not previously Disclosed)
(2) Motions to Suppress (Classified Information not previously Disclosed)
(3) Article 13
(A) Filing: 27July 201212
(4) Speedy Trial, including Article 10
(A) Filing: 27July 201213
10

The Court Scheduling Order contemplated that this disclosure would only apply to the results of Motion to Compel
#I, but it should apply to all of the information disclosed until the point in time when the motion is due.
11

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.
12

13

The defense agreed to the filing date of one week earlier to give the United States the necessary time to respond.
The defense agreed to the filing date of one week earlier to give the United States the necessary time to respond.

4

21651

(5) Pre-Qualify Experts
(6) GoveFnment Filing foFbt CtuneFa PFoeeeding lA"' 1\{RE SOS(i) with Notiee to
Defense (ifPFiYilege is Claimed) in Response to the CouFt's Ruling, 23 1\{aFeh 2012 (Use as
EYidenee)

(7) Other Remaining Litigation Concerning MRE 505(h) and MRE 505(i)14
(A) Filing: 3 August 2012
(B) Response: 10 August 201i5
(C) Reply: N/A
(D) Article 39(a): 27-31 August 2012
(8) Disclosure of Unclassified Results of Information from Motions to Compel
Discovery #2 and #3
(A) Filing: 3 August 2012

(9) Disclosure under RCM 701(g)(2) or MRE 505(g)(2) of All Information
(Unclassified and Classified) to the Court in Response to Court Rulings for Motions to
Compel Discovery #2 and #3 or Notification to the Court of Privilege under MRE 50S(c)
(A) Filing: 3 August 2012

(10) Government Filing for In

Camera Proceeding lAW MRE 505(i) with Notice to

Defense (if Privilege is Claimed) in Response to the Court Rulings for Motions to Compel #2
and #3 (if any)
(A) Filing: 3 August 2012

(11) Disclosure of All Remaining Unclassified or Classified (under MRE 505(g)(l))
Brady Material and Disclosure under MRE 701(g)(2) or MRE 505(g)(2) of All Remaining
Classified Brady Material16
(A) Filing: 3 August 2012
(12) Production of Compelled Discovery for Government Motion to Compel
Discovery

(A) Date: 3 August 2012

14 This includes in camera proceedings for Defense Notice to Disclose Classified Information and/or the
Government's Invocation of the Privilege for Merits and Sentencing Information.
1 5 The adjusted date gives the Court additional time to review any discoverable material and was agreed to by the
defense. The Government estimates the review will take no more than fifteen duty days to complete.
16 This production is for all material that is not subject to Motions to Compel Discovery or Production. This review
will require the same additional time of no more than fifteen duty days noted in Footnote #15. If the Court rules that
any of the proposed summaries under MRE 505(g)(2) are not acceptable, the prosecution will need additional time to
obtain approval for a different substitution.

5

21652

(1 3) Additional Witness List (Evidence Discovered Since 22 June 2012)17
(A) Filing: 13 August 2012
(B) Government Objection to Defense Witnesses: 16 August 2012
(C) Motion to Compel Production: 20 August
(D) Response: 23 August 2012
(D) Article 39(a): 27-31 August 2012
(14) Defense Notice of Intent to Disclose Classified Information under MRE
505(h)(1) (Evidence Discovered Since 22 June 2012)18
(A) Date: 13 August 2012
(15) Updated Proposed Case Calendar
(A) Filing: 17 August 2012
(B) Response: 22 August 2012
f.

Phase 4. Miscellaneous Motions (13 September 2012-4October 2012)19

(A) Filing: 13 September 2012
(B) Response: 27 September 2012
(C) Article 39(a): 3-4 October 2012
(1) Any Additional Motion that does not have an Identified Deadline
(2) Grunden Hearing for All Classified Information
(3) Voir Dire Questions, Flyer, Findings/Sentence Worksheet, All CMCOs
(A) Filing for Court Review: 27 September 2012
(B) Article 39(a): 3-4 October 2012

17 The prosecution changed the name from the Court Scheduling Order (Defense Additional Witness List in light of
Information in Defense Motion to Compel Discovery #2) to account for all of the discovery since the last witness list
versus just discovery disclosed as the result of the motions to compel, as well as the potential need for any additional
prosecution witnesses in response to the Defense Notice of its Intent to Offer the Defense of Alibi, Innocent Ingestion,
or Lack of Mental Responsibility and discovery received from the defense. The prosecution also shifted the dates to
allow the defense time to review any discovery from the 3 August 2012 disclosure and still litigate the additional
witnesses at the Article 39(a) that begins on 27 August 2012.
18

The prosecution changed the name from the Court Scheduling Order (Defense Notice of Intent to Disclose
Classified Information under MRE 505(h) from Compelled Discovery #2) to account for all of the discovery since the
last notice versus just discovery disclosed in a motion to compel. The prosecution also shifted the filing date to allow
the defense time to review any discovery from the 3 August 2012 disclosure.
19 There have been numerous unplanned motions submitted throughout the pre-trial process. The prosecution,
therefore, anticipates that several pretrial motions will be filed under the "Any Additional Motion" timeframe. To
plan for this likely contingency, the prosecution allotted more time for this phase than the Court Scheduling Order but
still used a condensed version of the default schedule (two weeks for parties to file motions, two weeks for parties to
file responses, five days for parties to tile replies, and one week for the Court to review all pleadings before the start
of the motions hearing). The defense acknowledged that the reply period was not necessary in the Defense Proposed
Case Management Order, dated 22 May 12.

6

21653

g. Phase 5. Trial by Members (5 October 2012-26 October 2012)
(1) Voir Dire: 5October 2012
(2) Trial: 8October 2012-26October 2012

� �
MO
CPT,JA
Assistant Trial Counsel

7

21654

UNITED STATES OF AMERICA

v. Prosecution Disclosure
to the Defense
Manning, Bradley E.
PFC, U.S. Army,
HI-IC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall 30 May 2012
Fort Myer, Virginia 22211

The United States responds to the Court's Order, dated 29 May 2012 as follows:

1. On 18 May 2012, the United States ?led an ex parte motion requesting the Court consider
that motion in camera and ex parte under MRE 50S(g)(2) and to authorize a substitution of the
portion of the Defense Intelligence Agency (DIA) Information Review Task Force (IRTF)
damage assessment that is favorable to the accused and material to guilt or punishment under
MRE 505(g)(2). The United States requested the Court authorize redactions and a summary
under MRE 505(g)(2)(A) and (B). Enclosure 1. The United States seeks to protect
information relating to the foreign relations and foreign activities of the United States, all within
the national security interests of the United States.

2. On 18 May 2012, the United States ?led an ex parte motion requesting the Court consider
that motion in camera and ex parte under MRE 505 and to authorize a substitution of the
portion of the Central Intelligence Agency (CIA) report that is favorable to the accused and
material to guilt or punishment under MRE 50S(g)(2). The United States requested the Court
authorize a summary under MRE Si: Enclosure 2. The United States seeks to
protect information relating to intelligence activities, intelligence sources or methods, and
foreign relations or foreign activities of the United States, all within the national security
interests of the United States.





ASHDEN FEIN
MAJ, JA
Trial Counsel
2 Enclosures
1. Government ex parte Motion (DIA) [unclassi?ed redacted version]
2. Government ex parte Motion (CIA) [unclassi?ed redacted version]

UNITED STATES OF AMERICA
v.

Manning, Bradley E.

PFC, U.S. Army,

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



21655

Prosecution Disclosure
to the Defense

.Enclosu re 1

30 May 2012

21656

UNITED STATES OF AMERICA
Government in camera Motion for
v. Authorimtion of a Substitution of
the DIA (IRTF) Damage Assessment
Manning, Bradley E. under MRE 505(g)(2)
PFC, US. Army,
US. Army Garrison,
Jolnt Base Myer-Henderson Hall 18 May 2012
Fort Myer, Virginia 22211
RELIEF SOUGHT

(U) COMES NOW the United States of America. by and through undersigned counsel,
respectfully requests this Court to: (l)consider this motion in camera and ex pane under MRE
505(g)(2); and (2) authorize a substitution of the portion of the Defense Intelligence Agency
Information Review Task Force (IRTF) damage assessment that is favorable to the
accused and material to guilt or punishment under MRE 505(g)(2).

BURDEN OF PE A I A BURDEN PR

(U) As the moving party, the United States has the burden of persuasion on any factual
issue the resolution of which is necessary to decide the motion. Rule for Courts Martial (RCM)
905(c)(2). The burden of proof is by a preponderance of the evidence. RCM 90S(c)( I

FACTS

(U) On 23 March 2012, the Court ordered (hereinafter "Court's Order") the prosecution to
identify what classified infonnation from the damage assessment is favorable to the accused
and material to guilt or punishment.

(U) On 23 March 20! 2, the Court ordered the prosecution to disclose all classi?ed
information from the DIA damage assessment to the Court for in camera review under 70l(g)(2)
or. at the request of the prosecution. in camera review for limited disclosure under MRE

505(g)(2).

(U) On 23 March 20l2, the Court ordered the prosecution to move for an in camera
proceeding under MRE 50S(i)(2) and (3) and provide notice to the defense under MRE
if the Department of Defense claims a privilege under RE 505(c) for the damage
assessment.

(U) According to the IRTF Final Report, the following summarizes the purpose and
overall approach of the task force.

(U) At the direction of the US. Secretary of Defense (SecDef), the
Information Review Task Force (IRTF) assessed the impact of
unauthorized WikiLeaks disclosure of United States Govemment
(USG) records. The IRTF completed a comprehensive review of

21657

more than 740,000 records known or believed compromised to
WikiLeaks, coordinated its review throughout the Intelligence
Community (IC), and integrated its efforts with those of the
National Counterintelligence Executive (NCIX).

(U) Given the enonnity of the challenge. the IRTF reached out and
received tremendous support from not only the affected
Department of Defense Components but also from the
multiple affected federal departments and agencies as well. This
whole of-govemment approach. together with close coordination
with the appropriate legal and foreign disclosure officials. enabled
the IRTF to get ahead of the WikiLeaks public releases and to
inform senior leaders and policymakers across the USG as well as
coalition govemments prior to public disclosure so that mitigation
actions could be taken.

Enclosure l.
(U) The original damage assessment is classified:
"8
(U) The proposed summarized damage assessment with redactions is classi?ed:


Although the damage assessment was ordered at the direction the Secretary



of Def . a military intelligence agency, conducted the assessment. The IRTF Final
Report contains information from other military organizations and from federal organizations
outside military authorities. DIA identi?ed the following equity holders within the Final Report:




reviewed the Final Report and do not object to their
information, contained wit in inal Report. being made available to the defense.







approved the release of their in orrnation contained within the Final Report; however, they

requested some portions to be redacted. Enclosure 5.



21658





(U) The United States does not request any witnesses be produced for this motion. The
prosecution requests that the Court consider enclosures listed at the end of this motion.

LEGAL A MENT

(U) lf classi?ed information is at issue in a coun martial, then the United States may
agree to disclose the classi?ed information to the defense under a protective order. SQ MRE
505(g)( 1). Additionally, the United States may motion the Court to "authorize (A) the deletion
of speci?c items of classi?ed information from documents to be made available to the [accused].
(B) the substitution of a portion or summary of the infomtation for classi?ed documents. or (C)
the substitution of a statement admitting relevant facts that the classi?ed information would tend
to prove." MRE 505(g)(2). The military judge "shall authorize" these alternative forms, unless
she determines "the disclosure of the classi?ed information itself is necessary to enable the
accused to prepare for trial." 3; If a motion is ?led under MRE 505(g)(2). then upon request of
the United States. the motion "shall" be considered by the military judge in camera and "shall
not be disclosed to the accused." 15L

he procedures outlined in MRE 505(g)( l) and (2) apply when the United States
voluntan ISC oses information and does not withhold classi?ed information under MRE
505(c). If the United States intends to withhold information under MRE S05(c), then the United
States must move for an in camera proceeding under MRE 505(i)(2), obtain an af?davit
demonstrating that disclosure of the infonnation reasonably could be expected to cause damage
to the national security under MRE 505(i)(3), and follow the notice procedures outlined under
MRE 505(i)(4). MRE 505(i). For the purposes of this ?ling, the DIA,
through the prosecution, are voluntarily disclosing a summary of the damage assessment,
pursuant to the Court's Order and are not withholding any classi?ed information under MRE
505(c) and MRE 505(i).

(U) Pursuant to the Court's Order. the prosecution reviewed the original IRTF damage
assessment for information favorable to the accused and material to guilt or punishment.
RCM 70l(a)(6); gg also Brady v. Mg land, 373 U.S. 83 (1963). The prosecution also reviewed
for infonnation material to the preparation of the defense because DIA is an intelligence agency
within the Department of Defense. 595 RCM 70 The prosecution reviewed the original
IRTF damage assessment and detennined that it contained information that was material to the
preparation of the defense, favorable to the accused. and material to guilt or punishment. The
prosecution identi?ed discoverable infonnation. and DIA reviewed the information to determine
if it would authorize the prosecution to voluntarily disclose the original classi?ed material to the
defense under MRE 505(g)( l) or The appropriate Original Classi?cation Authority
determined that DIA would disclose the entire Final Report in the original fonn under MRE
505(g)(l). but subject to the approvals of other equity holders of the information contained
within the report.



identi?ed the following equity holders within the Final Report:

reviewed the Final Report and do not object to

3

21659

their infonnation, contained within the Final Report. being made available to the defense under
MRE 505(g)(l). The?requested certain information be redacted or summarized

and a summary be produced under MRE Outlined below ar requests

and the prosecution's procedures taken pursuant to the Court's Order and under MRE 505(g)(2)
to provide discoverable information from within the IRTF Final report to the defense.

- approve! t!e release o. t!eir1nLrmat1on contains Ee Final Report; However.

they requested some portions to be redacted. Sg: Enclosure 5. After review of the redactions.
the prosecution identified one redaction (hereinafter "discoverable redaction") which contains

information that does meet the RCM 70 or standards and therefore is
discoverable. On page





deterrmned at the
agency would disclose the discoverable redaction in a summarized form under MRE

The prosecution reviewed the summary and determined that it accurately summarized the
original material, including providing adequate context.

(U) The remaining redacted information contained within the original damage
assessment, does go; meet the RCM 70l or Brady/Giglio standards and therefore is not
discoverable. Additionally. that infomiation is not "necessary to enable the accused to prepare

for trial" under MRE Therefore. the defense is not entitled to discovery of the
remaining redacted infonnation.



21660

hould the Court ?nd the redacted infomtation or summarized discoverable
redaction are . vcrable under RCM 70l or Brady/Giglio, or is "necessary to enable the
accused to prepare for trial" under MRE 505(g)(2), then the United States requests the
opportunity to either- (I address the Court's ?ndings to determine whether a
different alterative under MRE 505(g)(2) is appropriate and ?le that alternative with the Court,
or (2) allow for to claim a privilege under MRE and the United States to move



for an in camera proceeding under MRE





(U) The United States respectfully requests this Court to: (I) consider this motion in
camera and ex parte under MRE 505(g)(2), and (2) authorize a substitution of the portion of the
DIA (IRTF) damage assessment that is favorable to the accused and material to guilt or
punishment under MRE 505(g)(2).

ASHDEN FEIN
MAJ. JA
Trial Counsel

5 Enclosures .
I. Original DIA Damage Assessment (classi?ed
2. Redacted and Summarized DIA Damage Assessment (classi?ed

3. Draft Sealin Orders x2
dated I8 May 2012 (classi?ed

4.
5.



UNITED STATES OF AMERICA

vi

Manning, Bradley E.

PFC, U.S. Army,

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



21661

Prosecution Disclosure
to the Defense

Enclosure 2

30 May 2012

21662

UNITED STATES OF AMERICA
Government in camera Motion for
v. Authorization of a Substitution of
the CIA Damage Assessment
Manning, Bradley E. under MRE 505(g)(2)
PFC, US. Anny,
HHC, US. Army Garrison,
Joint Base Myer-Henderson Hall 18 May 2012
Fort Myer, Virginia 22211
RELIEF

(U) COMES NOW the United States of America, by and through undersigned counsel,
respectfully requests this Court to: (1) consider this motion in camera and ex parte under MRE
505(g)(2); and (2) authorize a substitution of the portion of the Central Intelligence Agency (CIA)
damage assessment (hereinafter "report") that is favorable to the accused and material to guilt or
punishment under MRE 505(g)(2).



(U) As the moving party. the United States has the burden of persuasion on any factual issue
the resolution of which is necessary to decide the motion. Rule for Courts-Martial (RCM) 905(c)(2).
The burden of proof is by a preponderance of the evidence. RCM 905(c)( I

EELS

(U) On 23 March 2012, the Court ordered (hereinafter "Court's Order") the prosecution to
identify what classi?ed information from the CIA Wikibeaks Task Force report is favorable to the
accused and material to guilt or punishment.

(U) On 23 March 2012. the Court ordered the prosecution to disclose all classi?ed
information from the CIA report to the Court for in camera review under 70l(g)(2) or, at the request
of the prosecution, in camera review for limited disclosure under MRE 505(g)(2).

(U) On 23 March 20] 2, the Court ordered the prosecution to move for an in camera
proceeding under MRE 505(i)(2) and (3) and provide notice to the defense under MRE
if the CIA claims a privilege under MRE 505(c) for the repon.

M) The CIA organized a Wikibeaks Task Force (WFF) concemin the damage to CIA
?f?m
produced a report that has been determined by the United States Government pursuant to an
executive order. statute, or regulations. to require protection against unauthorized disclosure for
reasons of national security. SE Enclosure . The original report is classi?ed

. The proposed summarized
report is classi?ed .

Based on the? classi?cation and the use of
'n the original report, the CIA will accommodate the Court in its review of the
enclosures, to include making the CIA. Headquarters available or using






21663

Mr.? is the point of contact within the Litigation Division, Office of the General
ounse and will coordinate the original report and the proposed summarized assessment being
available anytime the Court would like to review the material and the mutually agreeable location.

Mrlmay be contacted

The CIA acknowledges that the original report and the proposed summarized report
must be made part of the appellate record. Accordingly and because the documents contain -
the CIA requests the documents be permanently stored at CIA Headquarters.





(U) The CIA gives temporary custody of the summarized report to the prosecution. The
prosecution is authorized to make the report available to the defense counsel and their security
experts to inspect until the end of the court-martial. The defense counsel are only authorized access
to inspect the summarized report with their security experts present. The defense counsel and their
experts are authorized to take notes. and those notes will be classi?ed at the same level as the report.
All notes must be stored pursuant to the Court's Protective Order, dated I6 March 2012. The defense
counsel and their experts are not authorized to share the information contained within the report or
their notes with the accused. At the conclusion of the court martial, the prosecution is required to
return all the copies of the summarized report to the CIA.



(U) The United States does not request any witnesses be produced for this motion. The
prosecution requests that the Court consider enclosures listed at the end of this motion.

EGA AN A GUMEN

(U) If classi?ed information is at issue in a court-martial. then the United States may agree to
disclose the classi?ed information to the defense under a protective order. _S_eg MRE S05(g)(
Additionally. the United States may motion the Court to "authorize (A) the deletion of speci?c items
of classi?ed information from documents to be made available to the [accused]. (B) the substitution
of a portion or summary of the information for classi?ed documents. or (C) the substitution of a
statement admitting relevant facts that the classi?ed information would tend to prove." MRE
505(g)(2). The military judge "shall authorize" these alternative forms, unless she detennines "the
disclosure of the classi?ed information itself is necessary to enable the accused to prepare for trial."
If a motion is ?led under MRE 505(g)(2), then upon request of the United States, the motion
"shall" be considered by the military judge in camera and "shall not be disclosed to the accused."

(U) The procedures outlined in MRE 505(g)( l) and (2) apply when the United States
voluntarily discloses information and does not withhold classi?ed information under MRE 505(c). If
the United States intends to withhold infonnation under MRE 505(c), then the United States must
move for an in camera proceeding under MRE 505(i)(2), obtain an af?davit demonstrating that
disclosure of the information reasonably could be expected to cause damage to the national security
under MRE and follow the notice procedures outlined trnder MRE 505(i)(4). See MRE
S05(i). For the purposes of this ?ling, the CIA, through the prosecution is voluntarily disclosing a
summary of their report, pursuant to the Court's Order and is withholding any classi?ed
information under MRE 505(c) and MRE

2

21664

Pursuant to the Court's Order, the prosecution traveled to CIA headquarters and
reviewed the original?l report for information favorable to the accused and
material to guilt or punishment. 70l(a)(6); Eradv 1, Marvland. 373 U.S. 83
(I963). The prosecution reviewed the original CIA report and determined that it contained
information that was favorable to the accused and material to guilt or punishment. The particular
sections are highlighted in yellow. ?g Enclosure I. The prosecution identified discoverable
information and the CIA reviewed the information to determine if it would authorize the prosecution
to voluntarily disclose the original classi?ed material to the defense under MRE 505(g)( l) or
The CIA determined that the agency would disclose the information in a summarized form under
MRE 505(g)(2). The prosecution reviewed the summary and determined that it accurately
summarized the original material, including providing adequate context.

(U) The information contained within the original report, which is not included in the
summary. does not meet the RCM 70l(a)(6) or ?tgly/Qj_gl_jg standards and therefore is not
discoverable. Additionally. that information is not "necessary to enable the accused to prepare for
trial? under MRE 505(g)(2). Therefore, the defense is not entitled to discovery of the non
summarized information.

(U) Should the Court find the deleted. substituted. or summari7ed information is discoverable
under RCM 70 or is "necessary to enable the accused to prepare for trial?
under MRE 505(g)(2), then the United States requests the opportunity to either- I address the
Court's ?ndings with the relevant government agency to determine whether a different alterative
under MRE 505(gX2) is appropriate and file that alternative with the Court. or (2) allow for the
relevant government agency to claim a privilege under MRE 505(c) and the United States to move
for an in camera proceeding under MRE 505(i).

If the prosecution does offer
aggravating CVI ence unng presentencing portion tna en it will disclose the evidence

pursuant to RCM 70l subject to any required protections under MRE 505.

CONCLUSION

(U) The United States respectfully requests this Court to: (I) consider this motion in camera
and ex parte under MRE 505(g)(2). and (2) authorize a substitution of the portion of the CIA report
that is favorable to the accused and material to guilt or punishment under MRE 505(g)(2).





ASHDEN FEIN
MAJ, JA
Trial Counsel

3 Enclosures

1. onganan cm Rcpon[not attached]

2. Summarized CIA Report (classi?ed [not attached]

3. Draft Sealing Orders (x3)
3

21665

UNITED STATES OF AMERICA
v.

ManninJ?;, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

Prosecution Disclosure
to the Defense
Supplement

31 May 2012

The United States supplements its Disclosure to the Defense, dated 30 May 2012, with the
enclosed less redacted copy of the DIA ex-parte filing. See Enclosure. The explanation of the
national security interests the Government seeks to protect with the limited disclosure has not
changed.

ASHDENFEIN
MAJ,JA
Trial Counsel
Enclosure
Government Ex-Parte Motion (DIA) [unclassified redacted version 2]

I certify that I served or caused to be served a true copy of the above on Mr. David Coombs,
Civilian Defense Counsel via electronic mail,on 31 May 2012.

ASHDENFEIN
MAJ,JA
Trial Counsel

1

21666

UNITED STATES OF AMERICA
Prosecution Disclosure
v. to the Defense
Supplement
Manning, Bradley E.
PFC, U.S. Army, Enclosure
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall 31 May 2012
Fort Myer, Virginia 22211



21667

UNITED STATES OF AMERICA
Government in camera Motion for
v. Authorization of a Substitution of
the DIA (IRTF) Damage Assessment
Manning, Bradley E. under MRE 505(g)(2)
PFC, US. Army,
HHC, US. Army Garrison,
Joint Base Myer-Henderson Hall 18 May 2012


Fort Myer, Virginia 22211
RELIEF SOUGHT

(U) COMES NOW the United States of America. by and through undersigned counsel,
respectfully requests this Court to: (I) consider this motion in camera and ex parte under MRE
505(g)(2); and (2) authorize a substitution of the portion of the Defense intelligence Agency
Information Review Task Force (IRTB damage assessment that is favorable to the
accused and material to guilt or punishment under MRE 505(g)(2).

BURDEN OF PERSUASION AND BURDEN OF PROOF

(U) As the moving party. the United States has the burden of persuasion on any factual
issue the resolution of which is necessary to decide the motion. Rule for Courts Martial (RCM)
905(c)(2). The burden of proof is by a preponderance of the evidence. RCM 905(c)( I

FACTS

(U) On 23 March 2012, the Court ordered (hereinafter "Coun's Order") the prosecution to
identify what classified infonnation from the DIA damage assessment is favorable to the accused
and material to guilt or punishment.

(U) On 23 March 2012, the Court ordered the prosecution to disclose all classified
information from the DIA damage assessment to the Court for in camera review under 70l(g)(2)
or, at the request of the prosecution. in camera review for limited disclosure under MRE

505(

(U) On 23 March 2012, the Court ordered the prosecution to move for an in camera
proceeding under MRE 505(i)(2) and (3) and provide notice to the defense under MRE
if the Department of Defense claims a privilege under MRE 505(c) for the damage
assessment.

(U) According to the IRTF Final Report, the following summarizes the purpose and
overall approach of the DIA task force.

(U) At the direction of the US. Secretary of Defense (SecDei), the
lnforrnation Review Task Force (IRTF) assessed the impact of
unauthorized WikiLeaks disclosure of United States Government
(USG) records. The IRTF completed a comprehensive review of

21668

more than 740,000 records known or believed compromised to
WikiLeaks. coordinated its review throughout the Intelligence
Community (IC). and integrated its efforts with those of the
National Counterinielligence Executive (NC lX).

(U) Given the enormity of the challenge, the IRTF reached out and
received tremendous support from not only the affected
Department of Defense Components but also from the
multiple affected federal departments and agencies as well. This
whole of-govemment approach, together with close coordination
with the appropriate legal and foreign disclosure officials, enabled
the IRTF to get ahead of the WikiLeaks public releases and to
infonn senior leaders and policymakers across the USG as well as
coalition governments prior to public disclosure so that mitigation
actions could be taken.

Enclosure l.
(U) The original damage assessment is classified:

(U) The proposed summarized damage assessment with redactions is classi?ed:

qt Although the IRTF damage assessment was ordered at the direction the Secretary
of Defense. DIA. a military intelligence agency, conducted the assessment. The IRTF Final

Report contains infomiation from other military organizations and from federal organizations
outside military authorities. DIA identi?ed the following equity holders within the Final Report:



reviewed the Final Report and do not object to their
information. contained within the Final Report. being made available to the defense.

approve! t!e re|ease of their inlormation contained within the Final Report. however. requested

on pag?of the Final Report to be redacted. Enclosure 4.

appro se ir in rmation contained within the Final Report; however, they

requested some portions to be redacted. SE Enclosure 5.



21669



(U) The United States does not request any witnesses be produced for this motion. The
prosecution requests that the Court consider enclosures listed at the end of this motion.

LE AUTH 1 NT

(U) If classi?ed information is at issue in a court martial, then the United States may
agree to disclose the classi?ed infonnation to the defense under a protective order. ?e_e MRE
505(g)( I Additionally, the United States may motion the Court to "authorize (A) the deletion
of speci?c items of classi?ed information from documents to be made available to the [accused],
(B) the substitution of a portion or summary of the infomtation for classi?ed documents, or (C)
the substitution of a statement admitting relevant facts that the classi?ed infonnation would tend
to prove." MRE 505(g)(2). The military judge "shall authorize" these alternative forms, unless
she determines "the disclosure of the classi?ed information itself is necessary to enable the
accused to prepare for trial." lf a motion is ?led under MRE 50S(g)(2), then upon request of
the United States. the motion "shall" be considered by the military judge in camera and "shall
not be disclosed to the accused." LL

The procedures outlined in MRE 505(g)( l) and (2) apply when the United States
volunt iscloses infomtation and does not withhold classi?ed information under MRE
505(c). If the United States intends to withhold infonnation under MRE 505(c), then the United
States must move for an in camera proceeding under MRE 505(i)(2), obtain an af?davit
demonstrating that disclosure of the information reasonably could be expected to cause damage
to the national security under MRE 505(i)(3), and follow the notice procedures outlined under
MRE 505(i)(4). Si MRE 505(i). For the purposes ofthis ?ling, the DIA,

through the prosecution, are voluntarily disclosing a summary of the damage assessment,
pursuant to the Court's Order and are not withholding any classi?ed infomiation under MRE
505(c) and MRE 505(i).

(U) Pursuant to the Court's Order, the prosecution reviewed the original IRTF damage
assessment for infomtation favorable to the accused and material to guilt or punishment. _S_e_e
RCM 70l(a)(6); ,s_ee alg Brady v. Mag? 'land, 373 U.S. 83 (1963). The prosecution also reviewed
for information material to the preparation of the defense because DIA is an intelligence agency
within the Department of Defense. S55 RCM 70l(a)(2). The prosecution reviewed the original
IRTF damage assessment and determined that it contained information that was material to the
preparation of the defense. favorable to the accused, and material to guilt or punishment. The
prosecution identi?ed discoverable infonnation. and DIA reviewed the information to detennine
if it would authorize the prosecution to voluntarily disclose the original classi?ed material to the
defense under MRE 505(g)(l or The appropriate Original Classi?cation Authority
determined that DIA would disclose the entire Final Report in the original form under MRE
505(g)(l). but subject to the approvals of other equity holders of the information contained
within the report.

DIA identi?ed the following equity holders within the Final Report:

. reviewed the Final Report and do not object to

3




21670

their information. contained within the Final Report, being made available to the defense under
MRE 5OS(g)(l). The requested certain information be redacted or summarized
and a summary be produced under MRE 505(g)(2). Outlined below are?requests
and the prosecution's procedures taken pursuant to the Court's Order and under MRE 505(g)(2)
to provide discoverable information from within the IRTF Final report to the defense.

approv ained within the Final Report, however,

requested on pagergl of the ?nal Report to be redacted.
Enclosure 4. This re act in onnation contai within the original damage assessment, does
meet the RCM 70l(a)(2). RCM 70l(a)(6). or Brady/Giglio standards and therefore is not
discoverable. Additionally, that infonnation is not "necessary to enable the accused to prepare
for trial" under MRE S05(g)(2). Therefore, the defense is not entitled to discovery of the
redacted information.



hould the Court ?nd the redacted infonnation is discoverable under RCM
70l(a)(2), RCM 70! or or is "necessary to enable the accused to prepare for
trial" under MRE then the United States requests the opportunity to either- (I) address
the Court's findings with to determine whether a different alterative under MRE
505(g)(2) is appropriate and i that alternative with the Court, or (2) allow for- to claim
a privilege under MRE 505(c) and the United States to move for an in camera proceeding under
MRE 505(i).

approv|e! ?c release 0' Ileir in!ormation contain! within the Final Report; however,

they requested some portions to be redacted. See Enclosure 5. After review of the redaetions.
the prosecution identi?ed one redaction (hereinafter "discoverable redaction") which contains
infonnation that does meet the RC 7OI or standards and therefore is



discoverable. On page the Final Report. the IRTF assessed








Enclosure I. determine at
agency would disclose the discoverable redaction in a summarized form under MRE 505(g)(2).
The prosecution reviewed the summary and detennined that it accurately summarized the
original material, including providing adequate context.

(U) The remaining redacted information contained within the original damage
assessment, does gig; meet the RCM 70l or Brady/Giglio standards and therefore is not
discoverable. Additionally, that infomiation is not "necessary to enable the accused to prepare
for trial" under MRE 505(g)(2). Therefore, the defense is not entitled to discovery of the
remaining redacted infomiation.

21671

Should the Court ?nd the redacted information or summarized discoverable
redaction are . verable under RCM 70l or Brady/Giglio, or is "necessary to enable the
accused to prepare for trial" under MRE 505(g)(2), then the United States requests the
opportunity to either- (I address the Court's ?ndings? to determine whether a
different alterative under MRE 505(g)(2) is appropriate and ?le that alternative with the Court.
or (2) allow fo to claim a privilege under RE 505(c) and the United States to move
for an in camera proceeding under RE 505(i).


If the
prosecution oeso er aggravating evi nee unngt presentencing portiono the trial. then it

will disclose the evidence pursuant to RCM 701 subject to any required protections under
MRE 505.



QQMMEIDE

(U) The United States respectfully requests this Court to: (I) consider this motion in
camera and ex parre under MRE S05(g)(2). and (2) authorize a substitution of the portion of the
DIA (IRTF) damage assessment that is favorable to the accused and material to guilt or

punishment under MRE


ASHDEN FEIN
MAJ. JA
Trial Counsel

5 Enclosures .

1. Original DIA Damage Assessment (classi?ed

2. Redacted and Summarized DIA Damage Assessment (classi?ed
3. Draft Sealing Orders (x2)

4. . dated 8 May 2012 (classi?ed
5. dated 18 May 2012 (classi?ed






21672

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE RESPONSE TO
GOVERNMENT MOTIONS FOR
AUTHORIZATION OF A
SUBSTITUTION

MANNING, Bradley E., PFC

U.S. Army,

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 222i]

1 June 2012



RELIEF REQUESTED
l. The Defense requests that the Court:

a) Find that both the Defense Intelligence Agency (DIA) Information Review Task
Force (IRTF) and the Central Intelligence Agency (CIA) WikiLeaks Task Force
(WTF) damage assessments are material to the preparation of the defense and Order
that they be produced to the Defense; and

b) Deny any proposed substitutions where, considering the mindset of Defense counsel

(including the questions referenced herein), the Court concludes that the classified
infonnation itself is necessary to enable the accused to prepare for trial.

EVIDENCE

2. The Defense does not request any witnesses for this motion, but does request that the Court
consider Appellate Exhibit IX for the purposes of this motion.

FACTS

3. The DIA and CIA have not claimed a privilege under MRE 505(c). Therefore, the damage
assessments being considered by the Court are governed by Brady/R.C.M. 70l(a)(6), R.C.M.
701 and M.R.E. 505(g).

4. The Government concedes that documents within the possession of DIA, the organization that
prepared the I RTF, are governed by R.C.M. 70l(a)(2). See Government In Camera Motion for

21673

Authorization of a Substitution of the DIA (IRTF) Damage Assessment under MRE 505(g)(2) at
p. 3 (?The prosecution reviewed the original damage assessment and determined that it
contained infonnation that was material to the preparation of the defense.).

5. The WTF damage assessment was prepared by the CIA. The Court has found that the CIA is
?closely aligned? with the Government in this case. Accordingly, for the reasons outlined in
previous Defense motions, this material is discoverable under KC.M. 70l(a)(2).

6. In the Court?s 23 March 2012 ruling, the Court ruled that it would review the IRTF and WTF
damage assessments under R.C.M. 70l(a)(2) and ROM. 701 The Court stated:

The Court ?nds all 3 damage assessments relevant and necessary for the Court to conduct
an in camera review to determine 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 70l(a)(6), and whether they contain
information material to the preparation of the defense under RCM 70l(a)(2).

Appellate Exhibit p. ll.

ARGUMENT

A. The In Camera Standard
7. From reading the Govemment?s non-exparte ?ling, it seems that the Government is:

a) Asking the Court to review the IRTF damage assessment under R.C.M.
to the preparation of the defense?) standard and the R.C.M.
standard. However, it appears that the Government believes that only portions of the damage
assessment, rather than the entire damage assessment, are discoverable under R.C.M. 70l(a)(2).

b) Asking the Court to review the WTF damage assessment only under the R.C.M.
standard. The Defense believes this to be the case based on the Govemment?s
statement that ?the information contained within the original report, which is not included in the
summary, does not meet the RCM 70l(a)(6) or Brady/Giglio standard and therefore is not
discoverable.? Government In Camera Motion for Authorization of a Substitution of the lA
Damage Assessment under MRE 505(g)(2), p. 3.

Thus, there are two issues here: (1) what standard the Court will apply in reviewing the two
damage assessments; and (2) whether R.C.M. 70l(a)(2) contemplates only portions of the
document, rather than the document itself, being material to the preparation of the defense. Each
will be discussed in turn.

8. The Court has already ruled that it will be reviewing the two damage assessments to
determine ?whether they contain information relevant and favorable to the accused under RCM
70 and whether they contain information material to the preparation of the defense under

21674

RCM Appellate Exhibit The Government is attempting to surreptitiously
re-litigate the standard under which the Court has already said it would use to review the damage
assessments. Accordingly, the Court should reject this attempt to circumvent the Court?s ruling
and review the documents in accordance with its original order.

9. The case law reaf?nns that ?material? under R.C.M. 70l is not a dif?cult standard to
satisfy. ln United States v. Cano, 2004 WL 5863050 at *3 (A. Crim. Ct. App. 2004), our
superior court discussed the content of the ?materiality? standard under RCM. 70

ln 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 ?nds 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 United States v. Roberts, 59 MJ. 323, 326 (C.A.A.F. 2004) (?The defense had a right to
this infonnation because it was relevant to SA M?s credibility and was therefore material to the
preparation of the defense for purposes of the Govemment?s obligation to disclose under R.C.M.
added); United States v. Adens, 56 MJ. 724, 733 (A.C.C.A.
respect?illy disagree with our sister court?s narrow interpretation that the term
?material to the preparation of the defense? in R.C.M. 70l(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,
UCMJ, 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, United States v. Webb, 66 MJ. 89, 92
(CAA.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. 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

10. So, the first step in the Court?s analysis must be whether the IRTF and WTF damage
assessments contain Bracbz and whether they are material to the preparation of the defense as in
?helpful? to the preparation of the defense. To reiterate, the Court has already ruled that the
WTF damage assessment would be reviewed under the R.C.M. 70l(a)(2) standard, not just the
R.C.M. 70l(a)(6) standard.

I. lt appears that the Government may be trying to argue that only portions of the IRTF
damage assessment are material to the preparation of the defense, as opposed to the entire

21675

document. See e.g. Government In Camera Motion for Authorization of a Substitution of the
DIA (IRTF) Damage Assessment under MRE 505(g)(2), p. 4 ("This redacted information
contained within the original damage assessment does not meet the ... RCM 70l(a)(2)
[standard]"). R.C.M. 70 I (a)(2) does not contemplate that the defense can examine portions of
documents that are material to the preparation of the defense. Rather, R.C.M. 70l(a)(2) provides
that:
After service of charges, upon request of the defense, the Government shall
permit the defense to inspect:
(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 material 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.
Thus, the rule provides for defense counsel to inspect "documents ... which are material to the
preparation of the defense." !d. The materiality inquiry looks at the document at a whole and
not simply portions of it.

B.

The Proposed Substitutions

12. Once the Court has determined that the damage assessments contain Brady and/or are
material to the preparation to the Defense under R.C.M 70l(a)(2), then the Court must examine
the proposed substitutions with a view to determining whether the classified information is itself
necessary to enable the accused to prepare for trial. United States v. Lonetree, 31 M.J. 849 (N­
M-C.M.R. 1990), affd 35 M.J. 396 (C.M.A. 1992).
13. Limited disclosure and substitutes under MRE 505(g)(2) include:
a) Deletion of specific items of classified information from documents to be made available to
an accused;
b) Substitution of a portion or summary of the information for such documents;
c) Substitution of a statement admitting relevant facts;
All of these are permitted unless the judge determines that the classified information itself is
necessary to enable the accused to prepare for trial. See M.R.E. 505(g)(2). 1
1

MRE 505(g)(2) provides as follows: "Limited disclosure. The military judge, upon motion of the Government,

shall authorize
the defendant,

(A) the deletion of specified items of classified information from documents to be made available to
(B) the substitution of a portion or summary of the information for such classified documents, or (C)

the substitution of a statement admitting relevant facts that the classified information would tend to prove, unless the
military judge determines that disclosure of the classified information itself is necessary to enable the accused to
prepare for trial. The Government's motion and any materials submitted in support thereof shall, upon request of the
Government, be considered by the military judge in camera and shall not be disclosed to the accused."

4

21676

14. Thus, the Government is authorized under M.R.E. 505(g)(2) to substitute a summary of the
information contained in a classified document rather than the classified document. The rule
itself recognizes, however, that the Court may recognize that "disclosure of the classified
information itself is necessary to enable the accused to prepare for trial." This deference to the
accused's rights even after a claim of privilege by the government is well-settled. See United
States v. Rezaq, 134 F.3d 1121 (D.C. Cir. 1998)(holding that a trial court considering
substitutions "...should, of course, err on the side of protecting the interests of the defendant").
15. The Defense is obviously at a huge disadvantage as it does not know the nature or extent of
the proposed substitutions. However, in making the determination as to whether the classified
information is "necessary to enable the accused to prepare for trial," the Defense submits that the
Court should use a standard akin to the R.C.M. 701(a)(2) standard. That is, information that
would be helpful to the defense under R.C.M. 701(a)(2) is "necessary to enable the accused to
prepare for trial." See also cases cited supra.
16. In making the determination of whether the classified evidence is necessary or whether a
redaction/substitution is appropriate, the Defense would ask that the Court look at the following:
a) What is the extent of the redactions/substitutions?
b) Has the Government narrowly tailored the substitutions to protect a Governmental
interest that has been clearly and specifically articulated?
c) Does the substitution provide the Defense with the ability to follow-up on leads that the
original document would have provided?
d) Do the substitutions accurately capture the information within the original document?
e) Is the classified evidence necessary to rebut an element of the 22 charged offenses,
bearing in mind the Government's very broad reading of many of these offenses?
f) Does the summary strip away the Defense's ability to accurately portray the nature of the
charged leaks?
g) Do the substitutions prevent the Defense from fully examining witnesses?
h) Do the substitutions prevent the Defense from exploring all viable avenues for
impeachment?
i) Does the Government intend to use any of the information from the damage assessments?
Is so, is this information limited to the summarized document provided by the
Government? If the information intended to be used by the Government is not limited to
the summarized document, does the Defense in fairness need to receive the classified
portions of the documents to put the Government's evidence in proper context?
Does
the original classified evidence present a more compelling sentencing case than the
j)
proposed substitutions by the Government?
k) Do the proposed substitutions prevent the Defense from learning names of potential
witnesses?
I) Do the substitutions make sense, such that the Defense will be able to understand the
context?
m) Is the original classified evidence necessary to help the Defense in formulating defense
strategy and making important litigation decisions in the case?

5

21677

n) is it unfair that the Government had access to unclassi?ed version of the damage
assessment and the Defense did not? Does that provide a tactical advantage to the

Government?

CONCLUSION

17. Accordingly, the Defense requests that this Court not accept the Government?s proposed
substitutions at face value, but rather ask searching questions about whether the original
classified information is necessary to enable the accused to prepare for trial. In addition, the

Defense requests that the Court:

a) Find that both the IRTF and WTF damage assessments are material to the preparation
of the defense and Order that they be produced to the Defense; and

b) Dcny any proposed substitutions where, considering the mindset of Defense counsel
(including the questions referenced herein), the Court concludes that the classi?ed
information itself is necessary to enable the accused to prepare for trial.

Respectfully submitted,

THOMAS F. HURLEY
MAJ, JA
Defense Counsel



4.


DAVID E. COOMBS
Civilian Defense Counsel

21678

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

I.

)
)
)
)
)
)
)
)
)

Prosecution Request
for Additional Time to Supplement
Court Order to Provide Unclassified and
Redacted Version of Government

Ex-Parte Filing
30 May 2012

The United States requests additional time to supplement its response to the Court's Order to provide

the Court and the defense with an unclassified and redacted version of its Defense Intelligence Agency
(DIA) ex-parte filing (hereinafter "DIA ex-parte filing"), dated 18 May 2012, until31 May 2012.
2.

At 1652 hours on 29 May 2012, the Court ordered, via email, the United States to "provide the Court

and the Defense with an unclassified redacted version of its ex-parte motion NLT30 May 2012 that
describes the general nature of the proposed substitutions and the national security interest the
Government seeks to protect with the substitutions." See Ruling: Defense Motion: Non-Ex Parte Filing
by Government, dated 29 May 2012. The United States complied with the Court's Order by
contemporaneously filing the Prosecution's Disclosure to the Defense, dated30 May 2012, along with the
unclassified and redacted versions of its ex-parte filings.
3.

By 1900 hours tonight, the United States obtained approval from all but one federal organization with

equity in the DIA damage assessment to release an unclassified and redacted version of the DIA ex-parte
filing. The United States coordinated to obtain approval from the remaining federal organization with
equity in the DIA damage assessment by contacting, throughout the day, three separate attorneys at the
organization. The primary and alternate attorneys assigned to handle this case were out of the office for
the entire day. In an effort to exhaust all possible resources, the United States contacted a third attorney,
who is not assigned to this case and who responded at approximately 1900 hours tonight. This attorney
attempted to contact an original classification authority (OCA) to review the Government's proposed
redactions of classified information, but no OCA was available to assist.

4.

Although the United States has provided the defense an unclassified and redacted version of the DIA

ex-parte filing, the United States requests one additional duty day to supplement its response to the
Court's Order. The United States intends to receive approval from the government organization to
provide the defense a Jess redacted copy of the DIA ex-parte filing, as well as a possibly more detailed
unclassified explanation of the national security interests the Government seeks to protect with the limited
disclosure. This request will not necessitate any delay in the proceedings and will potentially disclose
even more information to the defense; as such, there will be no prejudice to the defense.

~
MAJ, JA

Trial Counsel

1

21679

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, on30 May 2012.

ASHDEN FEIN
MAJ, JA
Trial Counsel

2

21680

INTHE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

U N I T E D S T ATE S

)

v.

)
)

RULING: GOVERNMENT:
MOTION FOR

)

MANNING, Bradley E., PFC

)

U.S. Army,

)
)

(b) (6)

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,

CONTINUANCE

)

31 May 2012

)

Fort Myer, VA 22211

On30 May 2012, the Government requested a continuance from 30 May 12 to31 May 12 to
provide the Court and the Defense with an unclassified and redacted version of the Government's ex parte
Defense Intelligence Agency (DIA) filing. The reasons for the request are set forth in the Government
motion. The Government has otherwise complied with the Court's order.
RULING:

Defense has not objected.

The Government motion for a continuance until31 May 2012 is GRANTED.

ORDERED: This31st day of May 2012.

COL, JA
Chief Judge, I

1

1

Judicial Circuit

21681

UNITED STATES OF AMERICA
v.

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

)
)
)
)
)
)
)
)
)

Prosecution Notice to Court of
Identification of
NCIX Dama�e Assessment

31 May 2012

NOTICE

The prosecution hereby provides notice to the Court that the United States believes the
Court's Ruling: Defense Motion to Compel Discovery, dated 23 March 2012, (Appellate Exhibit
XXXVI) should apply to the Office of the National Counterintelligence Executive (NCIX) draft
damage assessment. The prosecution's belief is based on information the prosecution learned at
a meeting with attorneys from the Office of the Director of National Intelligence (ODNI) on 17
1
May 2012.
During the March 2012 motions hearing and based on previously received input from
NCIX, the prosecution stated that NCIX had not completed a damage assessment. Draft
Transcript at 167 ("[NCIX has] not completed the damage assessments."). In response to
subsequent inquiries from the Court in March 2012, the prosecution stated, based on input from
NCIX, that NCIX "has not produced any interim or final damage assessments in this matter."
See Appellate Exhibit XXXVI at 6. On 11 May 2012, the Court held the Department of State's
(DoS) draft damage assessment was subject to the Court's previous ruling. See Appellate Exhibit
LXXXVI. In response, the prosecution shared that ruling with ODNI and subsequently met with
their attorneys on 17 May 2012 to discuss the issue of draft documents. During that meeting,
ODNI notified the prosecution that NCIX had compiled a draft damage assessment, which is
likely similar in form to the DoS assessment,and thus would fall under the Court's ruling on 11
May 201i ODNI also stated that it hoped to produce a final damage assessment by the end of
Summer 2012.
Based on this information and in the interest of justice,the prosecution believes the
Court's ruling regarding the DoS draft damage assessment should also apply to the NCIX draft
damage assessment. Upon reaching that conclusion,the prosecution took immediate action to
remedy the discrepancy between the NCIX draft damage assessment and the DoS draft damage
assessment. On 24 May 2012, the prosecution officially notified ODNI that the NCIX draft
damage assessment must be made available to the Court no later than 3 August 2012 and
requested access to the NCIX draft damage assessment to conduct a review for discoverable
2
See Enclosure 1. On 30 May 2012, ODNI responded, granting access to the

information.
1

The NCIX is a subordinate organization to ODNI. See Office of the National Counterintelligence Executive,

About Us, available at https://www.ncix.gov/about.php (last visited 22 May 2012). For matters concerning ONCIX,
the prosecution is required to coordinate through the ODNI General Counsel's Office.
2

3 August 2012 is the suspense date set by the Court's Scheduling Order, dated 25 April 2012, as the next date

either to produce compelled discovery or file compelled discovery with the Court lAW MRE 505.

21682

prosecution for the purposes of conducting a review and stating that the most recent draft
damage assessment would be provided to the Court by the 3 August 2012 suspense date. See
Enclosure 2.
In accordance with its 24 May 2012 letter,the prosecution intends to review the NCIX
draft damage assessment for discoverable information and ensure the most recent draft,or final
copy,is made available to disclose to the Court no later than 3 August 2012.

ASHDENFEIN
MAJ,JA
Trial Counsel
2 Enclosures
1. Letter by MAJFein, dated 24 May 2012

2. Letter by ODNI, dated 30 May 2012

I certify that I served or caused to be served a true copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail,on 31 May 2012.

Trial Counsel

2

21683

UNITED STATES OF AMERICA
v.
Manning,BradleyE.
PFC^SA^^^^
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
FortMyer,Virginia 22211

Prosecution Notice to Court of
Identification of
NCIX Damage Assessment
Enclosurel
31 May 2012

21684

FOR OFFICIAL USE ONLY
DEPARTMENT OF THE ARMY
U.S. ARMY MILITARY DISTRICT OF WASHINGTON
210 A STREET
FORT LESLEY J. MCNAIR, DC 20319-5013
REPLY TO
ATTENTION OF

May 24, 2012
Criminal Law Division, Office of the Staff Judge Advocate

Ms. Tricia S. Wellman
Deputy General Counsel
Office of the Director of National Intelligence
Washington, DC 20511
Re: United States v. Private First Class (PFC) Bradley E. Manning
Dear Ms. Wellman:
Tbe U.S. Army prosecution ("prosecution"") is currently in the discovery phase of tbe
court-martial of Private First Class (PFC) Bradley Manning for his charged acts involving
WikiLeaks. Accordingly, the prosecution respectfully requests access to the most recent version
of the Office of the National Counterintelligence Executive's (NCIX) draft damage assessment
in order to review the material for any discoverable information.
During the March 2012 motions hearing and in subsequent emails to the Court, based on
the input received from NCIX, the prosecution proffered to the Court that NCIX had not
completed a damage assessment, and had not produced any interim or final damage assessment.
At that time the prosecution also proffered to the Court that the Department of State has not
completed a damage assessment. On March 23, 2012, the Court ruled that the Department of
State's draft damage assessment was discoverable, and did not rule on NCIX's draft. See
enclosed discovery order. Subsequently, the prosecution argued that drafts are speculative by
their very nature, and accordingly should not be subject to discovery rules. On May 11, 2012,
the Court held the Department of State's draft damage assessment was subject to her previous
ruling and the prosecution was required to review the draft for "information that is favorable to
[PFC Manning] and material to guilt or punishment." See enclosed ruling.
Based on the Court's ruling, the previous discovery order, and applicable ethical
obligations, the prosecution believes it must review NCIX's draft damage assessment to
determine whether there is any discoverable information, that is information which could impact
PFC Manning's rights under the U.S. Constitution, Article 46 of the Uniform Code of Military
Justice, the Rules for Courts-Martial, and applicable case law, in the draft. Additionally, the
prosecution must notify tbe Court of the above described apparent inconsistency in the Court's
order.
Based on the prosecution's review of other agencies' damage assessments, the
prosecution anticipates that if discoverable information is found, that a portion of the
discoverable information will require protection from disclosure for reasons of national security.
Such protection could be achieved either by disclosing tbe information to the defense in an
altemative form, or through the invocation of the classified information privilege, and the
prosecution will work with NCIX to develop any appropriate and necessary altemative
FOR OFFICIAL USE ONLY

21685

FOROFFICIALUSEONLY

disclosures. In order to ensure PFC Manning obtainsaspeedy trial,tbe prosecution requests that
NCIX make the most recent draft availablefor review by the prosecution as soon as possible and
tbat NCIX have the most current draft available to disclose to the Court no later than August 3,
2012, the date scheduled for other classified disclosures.
As always, the information and requirements stated above are subject to change based on
future Court rulings and orders. The prosecution will keep NCIX informed of their status.

Sincerely,

Ashden Fein
Major.US Army
Trial Counsel
Enclosures

FOROFFICIALUSEONLY

21686

UNITEB STATES OF AMERICA
v.
Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
FortMyer, Virginia 22211

Prosecution Notice to Court of
Identification of
NCIX Damage Assessment
Enclosure2
^1 May 2012

21687

UNCLASSIFIED//FOUO

OFFICE OF T H E DIRECTOR OF N A T I O N A L INTELLIGENCE
OFFICE OF GENERAL COUNSEL
WASHINGTON, DC 20511

May 30, 2012
MAJ Ashden Fein
Trial Counsel
Department of the Army
U.S. Army Military District of Washington
210 A Street
Fort Lesley J. McNair, DC 20319-5013
Re: United States v. Private First Class (PFC) Bradley E. Manning
Dear Major Fein:
I have received your May 24, 2012 letter in which you request to review tbe most recent
version of the Office of the National Counterintelligence Executive (ONCIX) draft damage
assessment related to the disclosure of U.S. Government information to the WikiLeaks
organization to determine whether it contains information discoverable in connection with the
above-captioned case. The Office of tbe Director of National Intelligence and the ONCIX
approve your request to review the draft assessment, subject to tbe timing issues discussed
further below. In addition, we will provide either a final version of tbe assessmenL or tbe most
current draft available if tbe document has not been finalized, to tbe Court by tbe August 3, 2012
deadline you have identified.
Tbe Counterintelligence Enhancement Act of 2002 (50 USC 402c) provides tbat the
ONCIX, as directed by tbe DNI and in coordination with appropriate elements of tbe department
and agencies of the United States Govemment, will oversee and coordinate tbe production of a
govemment-wide damage assessment in cases where there has been an unauthorized disclosure
of classified information. A draft damage assessment related to the disclosure of U.S.
Govemment information to the Wikileaks organization has now been compiled but is, as you
know, in a very fluid state. Standard procedure at this stage of the process is to provide the draft
to those agencies with equities in tbe document for review and comment. This process is vital to
ensure that the views of all relevant agencies are evaluated by ONCIX and included in tbe final
assessment as appropriate. The current draft could change significantly as a result of the
interagency coordination process.
It is our strong preference that your review of tbe draft take place after tbe coordination
process is completed and comments have been incorporated. Tbis version will be closer in

UNCLAS SIFIED//FOUO

21688

U^CLA^^J^FJ^FDBBFOUO

substance to the final version and will obviateaneed to review multiple versions of tbe
document as edits and changes are made. Weanticipatetbatacoordinated version will be
available by July 13,2012and invite you to review the document on that date. If you determine
tbat tbe draft document contains discoverable information we wih begin tbe clearance process at
tbat time.
You have also asked tbat we provide tbe assessment to the Court no later than August 3,
2012in order for you to meet your speedy trial obligations. Although we are hopeful thatafinal
assessment will be completed by tbat time,we will in any event provide the most current version
to tbe court no later than tbat date. Weunderstand that this presentation to the Court will be ex
parte and in camera to protect any classified equities in the assessmenL
If you have any questions or would like to discuss tbe matter further, please do not
hesitate to contact me.
Sincerely,

^. >JxCU_
Tricia S. Wellman
Deputy General Counsel

2
UNCLASSIFIED//FOUO

21689

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE RESPONSE
v. TO PROSECUTION NOTICE

TO COURT OF ONCIX DAMAGE
MANNING, Bradley E., PFC ASSESSMENT
U.S. Army, -
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, 2 June 20I 2
Fort Myer, VA 222I I

RELIEF SOUGHT
I. The Defense requests that this Court order the immediate production of the O?ice of the

National Counterintelligence Executive (ONC IX) damage assessment and all supporting
documentation for an in camera review by the Court.?

BURDEN OF PERSUASION AND BURDEN OF PROOF
2. As the moving party, the Government has the burden of persuasion. R.C.M.
The burden of proof is by a preponderance of the evidence. R.C.M.
EVIDENCE
3. The Defense does not request any witnesses be produced for this motion. The Defense
requests that this Court consider its own 23 March 2012 Discovery Ruling. Appellate Exhibit

FACTS
4. On 31 May 20I2, the Government provided notice to the Court and the Defense that ONCIX

had a draft damage assessment. Along with the Govemment?s notice, it provided a copy of its
24 May 2012 letter to ONCIX and the reply by ONCIX on 30 May 2012.

The Defense requested relief is not a waiver of other possible remedies based upon Government discovery
violations. The Defense reserves the right to request additional relief ?'om the Court.

2 The Defense assumesthat the Government is moving the Court to allow it until 3 August 2012 to produce the
ONCIX damage assessment for in camera review.

21690

ARGUMENT

5. In its Notice, the Government remarkably makes its misrepresentations and lack of diligence
look like altruism. See Prosecution Notice to Court of Identification of NCIX Damage
Assessment [hereina?er ?Govemment Notice Re: ONCIX Damage Assessment?] at p. (?in the
interests of justice, the prosecution believes the Court?s mling regarding the dra? damage
assessment should also apply to the ONCIX When this Court looks at the timeline of
events, it is clear that the ?discovery? of the ONCIX damage assessment isjust another example

and a particularly egregious one at that of the Government?s manipulation of the discovery
process.

6. The Defense submitted multiple discovery requests for forensic results, investigations and
damage assessments from closely aligned agencies, including ONCIX. In the Government
Response to the Defense Motion to Compel the Government stated that has not
completed a damage assessment.? p. l. Notably, the Government also said the exact same
thing about the Department of State. However, given the information that was available
publicly, the Defense was able to show that the Department of State was working on something,
regardless of whether it was ?completed.? Having no knowledge of anything to the contrary
with respect to ONCIX, the Defense was forced to accept the Government?s representation that
ONCIX did not have anything by way of a damage assessment.

7. On 21 March 2012, the Court required the Government to respond to several factual questions
regarding each of the Defense requested damage assessments. The Government responded to the
Court?s question regarding the ONCIX damage assessment by stating has not produced
any interim or final damage assessment in this matter.? Appellate Exhibit at p. 6. The
Defense does not believe this was an accurate statement at the time given that ONCIX is
currently in the process of ?nalizing the damage assessment, it stands to reason that ONCIX had
some form of interim/dra?/working damage assessment as of 2] March 2012. However, having
no knowledge at the time of anything to the contrary, the Defense, and now the Court, was
forced to accept the Government?s representation.

8. In the Court?s 23 March 2012 ruling, the Court ordered the Government, inter alia, to: a)
begin the process of producing the Department of State?s damage assessment to the Court for in
camera review; and b) search ONCIX for forensic results and investigative files.

9. On 23 March 20l2, the Government had an obligation to correct its misrepresentation about
damage assessment. Clearly, the Court found that the Department of State damage
assessment even if in interim or dra? form was ?relevant and necessary for the Court to
conduct an in camera review.? Appellate Exhibit p. 11. The Court also ordered the
Government to produce the other two damage assessments (the IRTF and WTF damage
assessment) at issue. In short, the Court found that damage assessments of closely aligned
agencies must be produced to the Court for in camera review. This Ruling triggered a duty on
the part of the Govemment to correct the misimpression it had created by its disingenuous use of
the expression, has not completed a damage assessment?3 and what the Defense

3 By using the expression has not completed a damage asessment" (when it should have said,
has not ?nished completing its damage assessment?) this implies that such a damage assessment was never even
perfonned.

21691

submits was an outright misrepresentation that ONCIX does not have "any interim or final
damage assessment in this matter." Clearly, as of the 23 March 2012 Ruling, the Court and the
Defense believed that ONCIX did not have any sort of damage assessment, final or interim.
Since the Government had knowledge to the contrary, there was a duty to disclose that to the
4
Court not sit on that information for over two months.
I 0. The Government's misrepresentations regarding ONCIX continued when it notified the
Court on 20 April 20 I 2 that "ONCIX does not have any forensic results or investigative files."
Appellate Exhibit LVI, p. 2. This statement was wholly inconsistent with the few pages of
Brady discovery the Government had provided a week earlier. In the Brady discovery, it was
clear that ONCIX was collecting information from various agencies in late 20 I 0 to assess what
damage, if any, was occasioned by the leaks. So how could it be that ONCIX neither had an
investigation nor a damage assessment?
11. The Defense sent an email on 21 April 2012 to the Court expressing concern about the
inconsistency between the Government's representation that ONCIX did not have a "damage
assessment" or "investigative results" and what the Defense was receiving in discovery. The
Defense wrote:
Ma'am,
In the Government's Notification to the Court yesterday, it indicated that the
Defense Intelligence Agency (DIA) and the Office of National
Counterintelligence Executive (ONCIX) did not have any forensic results or
investigative files related to this case.
Approximately a week ago, the Government produced to the Defense
approximately 12 pages of Brady materials from interim damage assessments
from November, 2010 by the Federal Communications Commission, the Federal
Trade Commission, the U.S. Department of Urban Development, the Millennium
Challenge Corporation, the National Archives, and the United States Marshals
Service. [See Attached]. Some of these interim damage assessments reference
investigations by ONCIX and DIA. For instance, the 26 November 2010
"Memorandum for the Office of the National Counterintelligence Executive
(ONCIX)", the Federal Communications Commission states, "As requested, this
Memorandum provides the response of the Federal Communications Commission
(FCC), as requested by the NCIX memo dated 26 October 2010." (p. 1).
Similarly, the 19 November 2010 letter from the U.S. Department of Housing and
Urban Development is addressed to the DIA. Moreover, the DIA is overseeing
the Information Review Task Force, an investigation into the alleged disclosures.
Further, the interim damage assessments also reveal the Office of the Director of

4

The duty to disclose does not change simply because the Government was planning on filing a motion for

reconsideration of the Court's ruling. As of23 March2012, the Court's ruling stood- and the Government had an
ethical obligation to correct the misimpression it had created. It could not sit on its laurels, then make a feeble
attempt at reconsideration, then await a ruling, then reach out to ONCIX and make arrangements, and finally reach

out to the Court to inform the Court of the fact that ONCIX did, in fact, have a damage assessment. See AR272
- 6,

Rule 3.3.

3

21692

National Intelligence (ODNI) has relevant investigative files. See letter from
United States Marshals ("On October 13, 2010, the Office of the Director of
National Intelligence (ODNI) ... provided a checklist of questions that it
recommended each agency impacted by [WL] dissemination use to assess the
impact on its operations.") The Court's ruling did not specifically address ODNI;
however, previous Defense requests for discovery asked the Government to
provide all ODNI investigative files. The Defense will renew its disc�)Very
request for ODNI investigative files and forensic results based upon the interim
damage assessments.
It is readily apparent that there are investigative files in the hands of the DIA,
ONCIX and ODNI. The interim damage assessments clearly show this.
Accordingly, the Defense does not understand how the Government can maintain
that "DIA does not have any forensic results or investigative files" and "ONCIX
does not have any forensic results or investigative files." The Defense requests
that in light of the interim damage assessments, the Government provide a full
explanation of its statement that neither of these agencies has investigative files
and provide a witness from each of the relevant agencies to appear at a motions
hearing.
See Attachment.
12. The Government waited until an 802 session to "explain away" the inconsistency. This was
when the Government conveniently and out of whole cloth fabricated definitions of "damage
assessments" and "investigations." See Appellate Exhibit LXXI. It continued to maintain that
ONCIX did not have a damage assessment (even though the Court had already concluded that
the Department of State draft/interim assessment was discoverable). And it maintained that the
data collected by ONCIX, and presumably accumulated into some report, did not fall within the
purview of the word "investigations." The Defense was stunned by the continued obfuscation.
It was abundantly clear that ONCIX had some form of inquiry into the harm from the leaks- but
the Government switched definitions around arbitrarily so as to avoid disclosing this discovery to
the Defense. The Defense then indicated to the Government that it would submit another
discovery request for, inter alia, documents from ONCIX. Once again, at this point, the
Government should have thought to itself: "We know that ONCIX has responsive
documentation, albeit in draft form. Maybe we should tell the Court?" But it didn't.
13. On 24 April 2012, the Government produced the Department of State damage assessment
for in camera review and resurrected an issue that the Court had already decided

whether the

Department of State damage assessment was discoverable. The Government's attempt to re­
litigate this issue and the authority provided in support of the motion for reconsideration was so
weak that the Court did not even want to hear from the Defense in this respect. The
Government hung its hat on one sentence of dicta from a concurring opinion in a case from
1963. On 11 May 2012, the Court denied the Government's motion.
14. One would think that at the very least, the Government would choose to inform the Court of
the ONCIX damage assessment after the Court's Ruling. It didn't. Instead, the Government
waited another three weeks to bring this issue to the Court's attention. In the interim, it
arrogantly assumed

without asking the Court

that it would have over two months to produce
4

21693

the damage assessment to the Court for in camera review. The Government already notified
ONCJX that ONCJX would have until 3 August 2012 to produce the damage assessment.
15. MAJ Fein's letter to ONCIX is telling. In his letter to the General Counsel at ONCIX, MAJ
Fein states, "On March 23, 2012, the Court ruled that the Department of State's draft damage
assessment was discoverable, and did not rule on NCIJCs draft." Government Notice Re:
ONCIX Damage Assessment, attached letter from MAJ Fein to Tricia Wellman, May 24, 2012
(emphasis added). The reason that the Court "did not rule on NCIX's draft" was because the
Government represented to the Court that ONCIX did not possess a draft damage assessment.
MAJ Fein makes it look like this is simply an error on the Court's part, stating "the "prosecution
must notify the Court of the . . . apparently inconsistency in the Court's order." To the extent that
there is an "inconsistency" it is one which the Government created when it misrepresented to the
Court on 21 March 2012 that ONCIX not have "any interim or final damage assessment in this
matter."
16. As an ancillary note, MAJ Fein's letter to the General Counsel at ONCIX reveals that the
Government has not yet started its Brady search with respect to the interim damage assessment.
The General Counsel states that "we anticipate that a coordinated version will be available by
July 13, 2012 and invite you to review the document on that date." Government Notice Re:
ONCIX Damage Assessment, letter from Tricia Wellman to MAJ Fein, 30 May 2012. Thus, it
appears that the Defense will not get Brady material from the ONCIX damage assessment, at the
earliest, until early August.
17. The Defense predicts that the Government will try to define itself out of this self-created
mess by arguing one of the following:
a) That the Government said "ONCIX has not produced any interim or final damage
assessments in this matter." (emphasis added). In other words, what it was saying was
that there might have been an interim report, but that report had not yet been produced to
the Government; or
b) That the report that existed on 21 March 2012 was pre-interim (or, in the
Government's words, it was a "working paper"), so it technically didn't fit the definition
of "interim." The Government will then define "interim" to be distinct from "working
paper" (which, of course, is distinct from "damage assessment" and which may or may
not be distinct from a "draft"). It was abundantly clear what the Court was asking: did
ONCIX have some document in existence that assessed the damage from the leaks? See
Appellate Exhibit LXXII.
The Court should not permit the Government to wiggle its way out of what is clearly a
misrepresentation to the Court and one of a long list of discovery violations.

CONCLUSION
18. The Defense requests that this Court order the immediate production of the entire ONCJX

5

21694

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.
c. Record of proceedings in court, including
Article 39(a) sessions, if any.
d. Authentication sheet, followed by certificate
of correction, if any.
e. Action of convening authority and, if appropriate, action of officer exercising general courtmartial jurisdiction.
f. Exhibits admitted in evidence.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

Inside of Back Cover

e-Highlighter

Click to send permalink to address bar, or right-click to copy permalink.

Un-highlight all Un-highlight selectionu Highlight selectionh